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[WILLIAM F. PERALTA v. DIRECTOR OF PRISONS](https://lawyerly.ph/juris/view/c2692?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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75 Phil. 285

[ G.R. No. L-49, November 12, 1945 ]

WILLIAM F. PERALTA, PETITIONER, VS. THE DIRECTOR OF PRISONS, RESPONDENT.

D E C I S I O N

FERIA, J.:

Petitioner-defendant, a member of the Metropolitan Constabulary of Manila charged with  the supervision and control of the production, procurement and distribution of goods and other necessaries as denned in section 1 of Act No. 9 of the National Assembly of the  so-called Republic of the Philippines, was prosecuted for  the  crime of robbery as denned and  penalized by section 2  (a)  of Act No. 65 of the same Assembly.   He  was found guilty and sentenced to life imprisonment, which he commenced to serve on August 21, 1944, by the  Court of Special and Exclusive Criminal Jurisdiction,  created in  section 1 of  Ordinance No. 7  promulgated  by the  President of the so-called Republic of the Philippines,  pursuant to the authority conferred upon  him by the Constitution and laws  of the said Republic.  And the procedure  followed  in  the trial was the summary one established in Chapter II of Executive Order  No. 157  of the Chairman  of  the  Executive  Commission, made applicable to the trial violations of said Act No. 65  by section 9 thereof and  section  5 of said Ordinance  No. 7.

The petition for habeas corpus  is based on  the ground that the Court of Special and Executive Criminal Jurisdiction created by Ordinance No. 7 "was a political instrumentality of the military forces  of the Japanese Imperial Army, the aims and purposes of which are repugnant to those aims  and political  purposes of the Commonwealth of the Philippines, as  well  as those of the  United  States of America,  and therefore,  null  and void ab initio," that the provisions  of  said Ordinance No. 7 are violative of the fundamental laws of the Commonwealth of the Philippines and  "the petitioner has been deprived of his constitutional rights";  that the  petitioner  herein is being punished by a law created to serve the  political purpose of the Japanese Imperial Army in the  Philippines, and "that the penalties provided for are much (more)  severe than the penalties  provided for in the Revised Penal  Code."

The Solicitor General, in  his answer in behalf of  the respondent, states that, in his own opinion, for the reasons expressed in his brief in the case of People of the Philippines, plaintiff-appellant, vs. Benedicto  Jose y Santos,  defendant-appellee,  G. R. No.  L-22  (p. 612, post),  the acts and proceedings taken and had before the said Court of Special and Exclusive  Criminal Jurisdiction which resulted in  the conviction and imprisonment of the herein petitioner, should now be denied force and efficacy, and therefore the petition for habeas corpus should be  granted.   The reasons advanced by the Solicitor General in said  brief  and in  his reply memorandum in  support of his contention are, that the Court of Special and Exclusive Criminal Jurisdiction created,  and the summary  procedure prescribed therefor, by said Ordinance No,  7 in connection with Executive  Order No. 157 of the Chairman of the Executive Commission, are tinged  with political complexion; that  the procedure prescribed in Ordinance No. 7 does  not afford a fair trial, violates  the Constitution of  the Commonwealth,  and  impairs  the  constitutional rights of accused persons under their legitimate Constitution.  And  he cites, in support of this last proposition, the decisions of the Supreme Court of the United  States in the cases of Texas vs. White  (7 Wall., 700, 743);  Horn vs. Lockhart (17 Wall., 570, 581) ; United States vs. Home Insurance Co.  (22 Wall., 99, 104) ; Sprott vs. United States  (20 Wall., 459).

The City Fiscal of Manila appeared before this Court as amicus  curiæ.  In his memorandum he submits that the petition for  habeas corpus  be denied  on  the  following grounds: That the Court of Special and Exclusive Criminal Jurisdiction  and the Acts, Ordinances  and  Executive Orders, creating  it are not of a political complexion, for said Court was created, and the crimes and  offenses placed under its  jurisdiction were penalized heavily, in response to an urgent necessity, according to the preamble of Ordinance No. 7; that the right to appeal in a criminal case is not a constitutional right; and that the summary procedure established in said Ordinance No. 7 is not violative of the provision of Article III, section 1 (18) of the Constitution of the Commonwealth, to the effect that no person shall be compelled to be a witness against himself, nor of the provision of  section 1  (1)  of the same Article that no  person  shall be deprived of  life, liberty, or property without due process of law.

The features of the summary procedure adopted by Ordinance No. 7,  assailed  by the petitioner and the Solicitor General as impairing the constitutional rights of an accused are; that  the  court may  interrogate the accused and witnesses before trial in order to clarify the points in dispute; that the refusal  of the accused to answer the questions may  be considered unfavorable to him;  that if from  the facts admitted at the preliminary interrogatory it appears  that the defendant is  guilty,  he  may be immediately  convicted; and  that  the  sentence of the court is not appealable, except in case  of  death  penalty which cannot be executed unless and until reviewed and affirmed by  a  special  division of the Supreme Court composed of three  Justices.

Before proceeding further, and in  order to determine the law applicable to the questions involved in the present case, it  is  necessary to bear in mind the nature  and status of the government  established in these Islands by the Japanese forces of  occupation  under the designation of Republic of the Philippines.

In the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, pp. 113, 127, ante), recently decided, this  Court, speaking through the Justice who pens  this decision, held:

"In view of the foregoing, it  is evident that the Philippine Executive Commission, which was organized by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese  forces, was  a civil government established by the military forces  of occupation and therefore a de facto government of the second kind.  It was not different from the government established by the British in Castine, Maine, or  by  the United  States in Tampico, Mexico.  As Halleck says, 'the government established over an enemy's territory during the military occupation may exercise all the powers given by the laws of war to the conqueror over the conquered, and is  subject  to all  restrictions  which that code  imposes.  It is of little consequence  whether vsuch government be called a military or civil government. Its character is the same and the source of its authority the same.  In either case it is  a  government imposed by the laws of war and so far as it concerns the inhabitants of such  territory or the  rest  of the  world  those laws alone determine  the legality  or illegality  of  its  acts.' (Vol. 2 p.  466.)   The fact that the  Philippine Executive Commission was a civil  and not a military government and was  run by Filipinos and not by Japanese nationals is of no consequence."

And speaking of the so-called Republic of the Philippines in the same decision, this  Court said:

"The  so-called Republic of the Philippines, apparently established and organized as a sovereign state independent from any  other government by the Filipino people, was, in truth and reality,  a  government established by the belligerent occupant or the Japanese  forces of occupation. It was of the same character as the Philippine Executive Commission,  and the ultimate source of its authority was the same the Japanese  military authority and government.  As General MacArthur stated  in his proclamation of October 23, 1944, a portion of which has been already quoted, 'under enemy duress, a so-called government styled as the "Republic  of the  Philippines"  was  established  on October 14, 1943, based upon neither  the free expression of the peoples' will nor the sanction of the Government of the United States.'  Japan  had  no  legal power to grant independence to the Philippines or transfer the sovereignty of the United States to, or recognize the latent sovereignty of, the Filipino people, before its military occupation  and possession of the Islands had matured into an absolute and permanent dominion or sovereignty by  a treaty of peace or other means recognized in the law  of nations."

As the so-called Republic  of  the  Philippines was a de facto government of the second kind (of paramount force), as the government established in Castine,  Maine, during its occupation  by the British forces and as that of Tampico, Mexico, occupied during the war with that country by the United  States Army,  the  questions  involved in the present case cannot be decided  in the  light of the Constitution  of the Commonwealth  Government; because the belligerent occupant was totally independent of the constitution of the occupied territory in carrying  out the administration  over said territory; and the doctrine laid down by the Supreme Court of the United States in the cases involving the validity of judicial  and legislative acts of the Confederate States, considered as de facto governments of the third kind, does not apply to the acts  of the so-called Republic of the Philippines which is a de facto government of  paramount force.  The  Constitution of the so-called Republic  of the Philippines  can neither be  applied, since the validity of an act  of  a belligerent occupant cannot be tested in  the light of  another act of the  same occupant, whose criminal jurisdiction is drawn  entirely from the law martial as defined in the  usages of  nations.

In the case of United States vs. Rice (4 Wheaton, 246), the Supreme Court of the United States  held that, by the military occupation  of  Castine,  Maine, the  sovereignty of the  United  States in the  territory was,  of course, suspended, and the laws  of  the United States could no longer be rightfully enforced there or be obligatory upon the inhabitants who remained and submitted to the belligerent occupant.  By the surrender the inhabitants  passed under a temporary allegiance to the British government, and were bound  by such laws, and such only, as it chose to recognize and  impose.  And Oppenheim,  in his Treatise on International  Law, says that, in  carrying out the administration  over the occupied territory and  its inhabitants,  "the (belligerent)  occupant is totally independent of the  constitution and the  laws of the territory, since occupation is an aim of warfare, and the maintenance and safety of his forces, and the purpose of war, stand in the foreground of  his interest and must be promoted under all circumstances or  conditions.   (Vol. II,  Sixth Edition, Revised, 1944,  p. 342.)

The doctrine laid down in the decisions of the  Supreme Court of the United States (in the cases of Texas vs. White, 7  Wall., 700;  Horn vs. Lockhart,  17  Wall.,  570;  Williams vs. Bruffy,  96  U.  S., 176;  United  States vs. Home Insurance Co.,  20 Wall.,  249; Sprott  vs. United States, 20 Wall, 459, and others) that the judicial and legislative acts of the  Confederate  States which impaired the rights of the citizens under the Constitution  of the United States or of the States,  or  were in conflict with  those  constitutions, were null and  void, is not applicable to the present case.  Because that doctrine rests on the propositions that "the concession (of belligerency)  made to the Confederate Government   *  *  *  sanctioned no hostile  legislation *  *  *  and it  impaired in no respect the rights of loyal citizens as they had existed at the commencement of tilities" (Williams vs. Bruffy,  supra) ; that the Union  is perpetual  and indissoluble, and the obligation of allegiance to the state and obedience to her laws and state constitution, subject to the Constitution of the United States, remained unimpaired during the War of Secession (Texas vs. White, supra)  and that  the  Confederate States "in most, if not in all  instances, merely  transferred the existing state or ganizations to the support of a new and different national head.  The same constitutions, the same laws for the protection of property and personal rights remained and were administered by  the  same officers."  (Sprott vs. United States, supra).  In fine, because in the case of the Confederate States, the constitution  of each state  and  that  of the United States or the Union continued in force in those states  during the War of Secession; while the Constitution of the Commonwealth Government was suspended during the occupation of the Philippines  by  the Japanese forces or the belligerent occupant at regular war with the United States.

The questions which we have  to resolve  in the present case in the light of the law of nations are, first, the validity of  the creation  of the Court of Special  and  Exclusive Criminal  Jurisdiction, and  of  the  summary   procedure adopted for that court; secondly, the  validity of the sentence which imposes upon the petitioner the penalty of life imprisonment during the Japanese military occupation; and thirdly, if they  were then  valid, the  effect on said punitive sentence of the reoccupation of the Philippines and the restoration therein of  the Commonwealth Government.

(1)  As  to the validity of the creation of the  Court  of Special and Exclusive Criminal Jurisdiction by Ordinance No. 7, the only factor to be considered is the authority  of the legislative power which promulgated said law or ordinance.  It is well  established in  International  Law that "The criminal jurisdiction established by the invader in the occupied territory finds its source neither in the laws of the conquering or conquered state, it is drawn entirely from the law martial as denned in the usages of nations.  The authority thus derived can be asserted either through special tribunals, whose authority and procedure is defined in the military code of the conquering state,  or through the ordinary  courts  and  authorities  of the occupied district." (Taylor, International Public Law, p. 598.)   The so-called Republic of the Philippines, being a governmental instrumentality of the  belligerent occupant, had therefore the power or was competent to create the Court of Special and Exclusive Criminal Jurisdiction.   No question may arise as to whether or not a court is of a political complexion, for it is mere governmental agency charged  with the duty of applying the law  to cases  falling within its jurisdiction. Its judgments and  sentences may be  of  a political  complexion or not depending upon  the nature or character of the law so applied.  There is no room for doubt, therefore, as to the validity  of the creation  of the court in question.

With respect to the summary procedure adopted by Ordinance No. 7, and followed in  the trial of the case which resulted in  the conviction of the herein petitioner, there is also no question as to the power  or competence of the belligerent occupant to promulgate the law providing for such procedure.  For "the invader deals freely with the relations of  the inhabitants  of the occupied territory towards himself  *   *  *  for his  security also, he declares certain acts, not  forbidden by the ordinary laws of the country, to be punishable; and he so far suspends the laws which guard personal liberty as  is required  for the  summary punishment of any one  doing such acts."  (Halls International Law,  seventh  ed.,  p.  500).  A belligerent "occupant  may where necessary, set  up  military courts instead of the ordinary courts; and in case, and in so far as, he admits the administration of justice by the ordinary courts, he may nevertheless, so  far as  is necessary for military purposes, or for the maintenance of public order and safety, temporarily alter the laws, especially the Criminal  Law, on the basis of which justice is administered as well as the laws regarding procedure."  (Oppenheim'si International Law, Vol. II, sixth edition, 1944, p. 349.)

No objection  can  be set up to the legality of its provisions in the light of  the precepts of our Commonwealth Constitution relating to the rights of accused  under that Constitution, because  the latter was not in force during the period of the Japanese military occupation,  as we have already stated.  Nor may said Constitution be applied upon its revival at the time of the re-occupation of  the Philippines by  virtue of the principle of  postliminium because "a constitution  should operate prospectively only, unless the words employed show a clear intention that it should have  a retrospective effect" (Cooley's Constitutional  Limitations, seventh edition, page  97, and cases quoted  and cited in the footnote), especially as  regards laws of procedure  applied  to cases already terminated completely.

The only restrictions or limitations  imposed upon the power of a belligerent occupant to alter the laws or promulgate new  ones, especially the criminal law as well as the laws  regarding procedure, so far  as it is necessary for military purposes, that is, for his control of the territory and  the safety and protection of his army, are those imposed by the Hague Regulations, the usages established by civilized nations, the laws of humanity and the requirements of public conscience.   It is obvious that the summary procedure under consideration does not violate those  precepts.  It cannot be considered as violating the  laws of humanity and public conscience, for it is  less objectionable,  even from the point of view of those who are used to the accusatory system  of criminal procedure than the procedural  laws based on the semi-inquisitorial or  mixed system prevailing in  France and other countries in  continental Europe.

(2) The  validity  of the sentence rendered by the  Court of Special and  Exclusive Criminal Jurisdiction which imposes life imprisonment upon the herein petitioner, depends upon the competence or power of the  belligerent occupant to promulgate Act No. 65 which punishes the crime of which said  petitioner was convicted.

Westlake  says that Article  XLIII,  Section III, of the Hague Conventions of 1907 "indicates that the laws to be enforced by the occupant consist of, first, the territorial law in general,  as  that which stands  to the public order and social and commercial life of the district  in a  relation of mutual  adaptation, so  that any needless  displacement of it would defeat the  object which the  invader is enjoined to have in view, and secondly, such variations  of the territorial law as may  be required by real necessity and are not expressly prohibited  by any  of the rules  which will come before us.  Such variations will naturally  be greatest in what concerns the relation of the communities  and individuals within the district to  the  invading army. and its followers,  it being necessary for the protection of the latter, and  for the unhindered prosecution of the  war by them, that acts committed to their detriment shall not only Jose  what justification the territorial law might give them. as committed  against enemies,  but shall be repressed more severely than the territorial law would repress acts committed against fellow subjects.  Indeed the entire relation between the invaders and the invaded, so far as it may fall  within  the criminal  department  whether  by  the intrinsic nature  of the acts done or in consequence  of the regulations  made by the  invaders, may be considered as taken out of  the territorial law and  referred  to what is called martial  law."   (Westlake,  International  Law, Part II, War, p. 96.)

According to Hyde (International Law,  Vol. II, p. 386), the term "martial law," in so far as it is  used  to describe any  fact in relation to  belligerent occupation, does not refer to a particular code or system of law, or to a special  agency entrusted with its administration.  The term merely signifies that the body of law actually applied, having the sanction of military  authority, is  essentially martial. All law, by whomsoever administered,  in an occupied district is martial law; and it is none the less so when applied by the civil courts in matters devoid of special interest to the occupant.  The words "martial law" are doubtless suggestive of the power of the occupant to share the law as he sees fit; that is, to determine what shall be deemed lawful or unlawful acts, to establish tests for ascertaining the guilt of offenders, to fix penalties, and generally to administer justice through such  agencies as are found expedient.

And the United States Rules of Land Warfare provide that the belligerent  occupant may promulgate such new laws and regulations as military necessity demands, and in this class will be included those  laws which come into being as a result of military rule; that is, those which establish new crimes and offenses incident to a  state of war and are necessary for the control  of the country and the protection of  the army,  for the principal  object of  the occupant is  to provide for the security of the  invading army and to contribute to its support and efficiency and the success of its  operations.   (Pub. 1940, pp.  76, 77.)

From the above it appears clear that it was within the power and competence of the belligerent occupant to promulgate, through the National Assembly of the  so-called Republic of the Philippines, Act No.  65 of the said Assembly, which penalizes the crimes of robbery and other offenses by  imprisonment ranging  from the maximum period  of the imprisonment prescribed by the laws and ordinances promulgated  by the President of the so-called  Republic as minimum, to life imprisonment or death as maximum. Although these crimes are  defined in  the Revised  Penal Code, they were altered and penalized  by said Act No.  65 with different and  heavier  penalties, as new crimes and offenses demanded by military necessity, incident to a state of war, and necessary for the control of the country  by the belligerent occupant,  the protection and safety  of the army of occupation,  its support and efficiency,  and the success of its  operations.

They are not the same ordinary offenses penalized by the Revised Penal Code. The criminal  acts penalized by said Act No. 65 are  those committed by persons charged or connected with the supervision and control of the production, procurement and  distribution of foods and other necessaries; and the  penalties imposed upon the  violators are different from and much heavier than those  provided by the Revised Penal Code for the same ordinary crimes. The acts penalized by said Act were taken out of the territorial law or Revised Penal  Code,  and  referred to  what is called martial law by international jurists, defined above by Hyde, in order, not only to prevent food and other necessaries from reaching the "guerrillas" which were harassing the belligerent occupant from every nook and corner of the country, but also to preserve the food supply and other necessaries in  order that,  in case of necessity, the Imperial Japanese forces could easily  requisition  them, as they did,  and as they had the right to do in accordance with the law of nations for their maintenance and subsistence  (Art. LII,  Sec. Ill, Hague  Conventions of 1907). Especially taking into consideration the fact, of which this court may take judicial notice, that the  Imperial Japanese Army had depended mostly for their supply upon the  produce  of  this country.

The crimes penalized by Act No. 65 as well as the crimes against national security and  the law of nations, to wit: treason, espionage, inciting to war, violation of neutrality, correspondence with hostile country, flight to enemy's country, piracy; and the  crimes against public order,  such as rebellion, sedition and disloyalty, illegal  possession of firearms and other, penalized by Ordinance No. 7 and placed under the jurisdiction of the Court  of Special  and Exclusive Criminal  Jurisdiction are all of a political complexion, because the  acts constituting those offenses were punished,  as are all political offenses, for public rather than private reasons,  and were acts  in aid  or  favor of the enemy and directed against  the welfare,  safety  and security of the belligerent occupant.   While it is  true that these offenses, when committed against the Commonwealth or United States  Government, are denned and also penalized , by the territorial law or Revised Penal  Code,  they became inapplicable as crimes against the  occupier upon the occupation of the Islands by the Japanese forces.  And they had to be taken out of the territorial  law and made punishable by said Ordinance No. 7, for they  were  not penalized before under the Revised Penal Code when committed against the belligerent occupant or the government established by him in these Islands.  They are  also conr sidered by some  writers as war crimes in  a broad sense. In  this connection Wheaton  observes the following:

"Of 'war crimes' the number is naturally indefinite, depending as they do on the acts from time to time ordered to be  done or forbidden to be done  in  the  martial  law proclamation or regulations of the invading or occupying commander.  Thus,  in the Anglo-Boer war, the  British military authorities proclaimed the following to be offenses against their martial  law; Being in  possession  of arms, ammunition, etc.; traveling without a permit;  sending prohibited goods; holding meetings other than those allowed; using  seditious  language; spreading alarmist   reports; overcharging  for goods; wearing  uniforms without  due authority; going out of doors between certain hours; injuring military animals or stores; being in possession, without a permit, of horses, vehicles,  cycles,  etc.; hindering those in  execution of  military orders;  trespassing  on defense works. Such offenses, together with  several  others, were specified in the  Japanese regulations  made in the Russo-Japanese   war."   (Wheaton's  International  Law, War, seventh edition,  1944, p. 242.)

It is, therefore,  evident that the sentence  rendered by the Court  of  Special and Exclusive Criminal Jurisdiction against the petitioner, imposing upon him the penalty of life imprisonment, was good and valid, since it was within the admitted power or competence of the belligerent occupant to promulgate the law penalizing the crime of which petitioner  was convicted.

(3)  The last question is the legal effect of the reoccupation of the Philippines  and restoration  of the  Commonwealth Government; that is, whether or  not,  by the principle of postliminy, the punitive sentence which  petitioner is now serving fell through or ceased to be valid  from that time.

In order to  resolve this last question, it is not necessary to enter into an elaborate  discussion on the matter.  It is sufficient to quote the  opinion  on the subject of several international jurists and our recent decision in the case of Co Kim Cham vs. Valdez  Tan  Ken and  Dizon,  supra.

Hall, commenting on the effect of the principle of postiiminy upon sentences of the tribunals continued or created by the belligerent occupant, opines "that judicial acts done under  this control, when they are not of a political complexion, administrative acts so done, to the extent that they take effect during the continuance of his control, and  the various acts done during the same time by private persons under  the sanction  of  municipal law,  remain good. *  * * Political acts  on  the  other  hand  fall through as of course,  whether they introduce any positive change into the organization of the country, or whether they only suspend the working of that already in existence.   The execution also of punitive sentences ceases  as  of course when they have had reference to acts not criminal by  the municipal  law of the state, such for  example as acts directed against the  security  or control  of the  invader." (Hall's International Law, seventh edition,  p. 518.)

Westlake, speaking of the duration of the validity of punitive sentences for offenses such as the one in question, which is within the admitted power or competence of  the belligerent occupant to punish, says that: "To the extent to which the legal power of the occupant is admitted he can make law for the duration of his occupation.  Like any other legislator he is morally subject to the duty of giving sufficient notice of his enactments  or regulations, not indeed so as to be debarred from carrying out his will without notice, when required by military necessity and so far as practically carrying out his will can be distinguished from punishment, but always remembering that to punish for breach of a regulation a person who was justifiably ignorant of it would be  outrageous.   But the law made by the occupant within his admitted power, whether morally justifiable or not, will bind any  member of the  occupied population as against any other member of it, and will bind as between them all and their national government, so far as it produces an effect during the  occupation.  When the occupation comes  to  an  end and  the authority of the national government is restored, either by the progress of operations during the war or by the conclusion of a peace, no redress can be had for what has been actually carried out but nothing further can  follow from the occupant's legislation.  A prisoner detained under it must be released, and no civil right conferred by it can be further enforced. The enemy's law depends on him for enforcement as well as for enactment.  The invaded state is not subject to the indignity  of  being  obliged  to  execute  his commands." (Westlake, International Law, Part II, War, pp. 97, 98.)

And Wheaton, who, as above  stated, considers as war crimes such offenses as those penalized in Ordinance No. 7 and  Act No. 65,  says:  "In  general, the cast of the occupant possess legal validity, and under international law should not be abrogated by the subsequent government. But this rule does not necessarily apply to acts that exceed the occupant's power (e. g., alienation of the domains of the State or the sovereign), to sentences for 'war treason' and 'war crimes,' to acts of a political character, and to those that operate beyond the period of occupation.  When occupation ceases, no reparation is  legally due for what has already been carried out."   (Wheaton's International Law, supra,  p.  245.)

We have already held in our recent decision in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon, supra, that all judgments of political complexion of the courts during the Japanese regime, ceased to be valid upon the reoccupation of the islands by virtue  of  the principle  or right of postliminium.  Applying that doctrine to  the present case, the sentence  which convicted  the petitioner of a crime of a political complexion must be considered  as having ceased to be valid ipso facto upon the reoccupation or liberation of the  Philippines by General  Douglas  MacArthur.

It may not be amiss to say in  this connection that it is not necessary and proper to  invoke the  proclamation of General  Douglas  MacArthur  declaring null and void  all laws, among  them Act No. 65, of the so-called Republic of the Philippines under which  petitioner was convicted, in order to give retroactive effect to the nullification  of said penal act and  invalidate the punitive sentence  rendered against petitioner under said law, a sentence which, before the proclamation, had already  become null and of no effect.

We therefore hold that the punitive sentence under consideration, although good and valid during the military occupation of the Philippines by the Japanese forces, ceased to be good and valid ipso facto upon  the reoccupation of these Islands and the restoration therein  of the Commonwealth Government.

In view of all the foregoing, the writ of habeas corpus prayed  for is hereby granted and it  is ordered  that  the petitioner be  released forthwith, without pronouncement as to costs.  So ordered.

Jaranilla, Pablo, and Bengzon, JJ., concur.

MORAN, C. J.: I concur in the result.

 


 

CONCURRING

OZAETA, J.,

Amidst the forest of opinions  that have cropped up in this case it would seem unnecessary to plant an additional tree.  To justify our effort lest we seem intent to bring coal to  Newcastle we ought to state that the following opinion had been prepared before the others were tendered. It has been impossible for the Court to reconcile and consolidate the divergent views of its  members although they arrive at practically the same result.

Accused of robbery in the Court of Special and Exclusive Criminal Jurisdiction of Manila, the petitioner was found guilty and sentenced to  life imprisonment.  He commenced to serve the sentence on August 21,1944.  He now petitions this Court  for  the  writ  of habeas  corpus, alleging that Ordinance No. 7, by which the Court  of  Special and Exclusive Criminal Jurisdiction was  created and which was promulgated on March 8, 1944, by  the President of the "Republic of the Philippines," was null and void ab initio. The Solicitor General, answering the petition on behalf of the respondent Director of  Prisons, expressed the opinion that "the acts and proceedings taken and had before the said Court of Special and Exclusive  Criminal  Jurisdiction which resulted in the conviction and imprisonment of the herein prisoner  should  now be denied  force and  efficacy," and recommended "that the writ of habeas corpus prayed for be granted  and that  the City  Fiscal  be instructed to prepare  and file the corresponding  information  for rob- bery  against the petitioner  herein in  the Court of First Instance of Manila."

The case was argued before us on September 21 and 22, 1945, by the First Assistant Solicitor General on behalf of the respondent  and the City Fiscal as  amicus curiæ the former impugning and the latter sustaining the validity of said Ordinance  No. 7.

Section 1 of the ordinance  in question reads as follows:

"SECTION 1. There is hereby  created  in every province and city throughout the Philippines one  or more courts  of special criminal jurisdiction as the President of the Republic of the Philippines may determine upon  recommendation  of the  Minister of Justice, which courts shall have exclusive jurisdiction to try and determine crimes and  offenses penalized  by Act No.  65  entitled  'An  Act imposing heavier penalties for crimes involving robbery, bribery, falsification, frauds, illegal exactions  and  transactions, malversation  of  public funds and infidelity  as defined in the Revised  Penal Code and violations of food control laws, when committed by  public officers and employees, and for similar offenses when  committed by private individuals or entities, and providing for a summary procedure for the trial of such offenders.'"

Section 2 confers upon the court mentioned in section 1 exclusive jurisdiction  also to try the following crimes as defined in the Revised Penal Code; crimes  against national security  and  the  law  of  nations,  crimes against public order, brigandage, arson and other crimes involving  destruction, illegal  detention committed by  private individuals and kidnapping of minors; and illegal possession of firearms, as defined in an executive order.  Section 3 provides for the appointment of one  judge of first  instance to preside over  the court above mentioned  and of a special prosecutor in each special court.  Section  4 authorizes the court to impose a longer term  of imprisonment than that fixed by law, or imprisonment for life or death where not already fixed by law, for the crimes and  offenses mentioned in section 2.   The remaining sections read as follows:

"SEC. 5.  The trial of the cases arising under sections 1 and 2 hereof shall be started within two days after the filing of the corresponding information, shall be summary in procedure, and shall aim at their expeditious and prompt disposition.   Technicalities shall be avoided and all measures  calculated to serve  this end  shall be taken by the trial judge.  Said cases shall be decided within four days after the same are submitted  for decision.  The summary procedure provided in Act No. 65 insofar as not  inconsistent with the provisions  of this  Ordinance, shall govern the  trial of the cases enumerated in said  sections 1 and  2 hereof.

"SEC. 6. The decisions of the  special courts herein created shall be final except where the penalty imposed is death, in which case the records of the particular case shall be elevated en consulta to  a special division of the Supreme  Court composed  of three members to be designated by the  President of the Republic  of the Philippines. The clerk of each  special court, upon the promulgation of a decision imposing the death  penalty, shall immediately forward the records of the case to the special division of  the  Supreme  Court herein created, which shall decide the case within fifteen, days from the receipt of the records thereof.

"SEC. 7. The interest of public safety so requiring it,  the privileges of the writ of habeas corpus are hereby suspended with respect to persons accused of, or under investigations for, any of the crimes and  offenses enumerated in sections 1 and 2 hereof.

"SEC. 8. All laws, rules or orders, or parts thereof, inconsistent with the provisions hereof,  are hereby repealed ar modified accordingly.

"SEC. 9. This Ordinance  shall take effect immediately upon  its promulgation."

The summary procedure provided in Act No. 65  of the "Republic," as referred  to in section 5 above quoted, is in turn that established by  Chapter  II of  Executive  Order No.  157 of the Chairman of the Philippine Executive Commission, dated May 18, 1943.   Under said procedure (section 17)  "search warrants tmay be issued by the court  or by  any  prosecuting officer, authorizing  peace officers  to search for and seize any articles or objects described in the warrant, including those  which  may be  regarded as evidence of an offense under this Order even if such articles or objects are not included  among those  described in section 2, Rule 122, of the Rules of Court."   Section 18 reads as follows:

"SEC. 18. The accused or  his representative may be  examined by the court, and with the permission of the court, by the fiscal or other prosecuting officer  as to any  matters favorable or unfavorable to him or his principal; and either may apply to the judge for the examination of the co-accused  or the  representative  of the  latter  in matters related to the defense of the accused.  Statements made by the accused,  his co-accused,  or the  representative of the accused or a person acting in  a  similar capacity, irrespective  of the circumstances under which they were made, shall be admissible in evidence if material to the issue."

Section 21 provides for the summary trial in  the following manner:

"Such trials shall be conducted according to  the  following rules:

"(a) After arraignment and plea, the court shall immediately cause to be explained to the accused the facts constituting  the offenses with which he is charged, and the judge shall interrogate the accused and the witnesses as to the facts and circumstances of the case in order to clarify the points in dispute and those which are admitted.

"(b) Refusal of the accused to answer any questions made or allowed by the court may he considered unfavorable to him.

"(c) Except for  justifiable  reasons, the  accused shall  not be allowed to plead and assert  defenses that are inconsistent with each other.

"(d) If from the  facts admitted at the preliminary interrogation, it should appear that the accused is guilty of the crime  charged in the information, or  in  any  other information subsequently filed by the prosecuting officer,  a sentence of conviction may be immediately rendered against the accused.   Otherwise, the judge shall dictate an order distinctly specifying the facts admitted by the accused and those  which are in  dispute, and the trial shall be limited to the latter,  unless the judge, for special reasons,  otherwise directs.

"(e) Unjustified absence of an accused who has been released on bail, or of his representative shall not be a ground for interrupting the proceedings or attacking the validity of the judgment.

"The provisions of Rules  115 to 117 of the Kules of Court shall be suppletory to the foregoing insofar as they are not  in  conflict therewith."

The record shows that during their existence the  courts of special and  exclusive criminal jurisdiction created by the ordinance in  question convicted and  sentenced a total of 94 individuals, 55 of whom  had been prosecuted  for illegal possession of  firearms and 15 for robbery; and that of the 94 convicts only 3, including the herein petitioner, remain in confinement, 21 having escaped, 37 having been released,  and 33 having  died.

In  synthesis, the  argument  of the Solicitor General is as follows: Acts of the military occupant which exceed his power tested by  the criterion set forth in article  43 of the Hague  Regulations,  are  null  and  without  effect as against the legitimate government.  (Wheaton's International  Law, 7th ed.,  p. 245.)   Acts in furtherance or support of rebellion against the United States,  or intended to defeat the just rights of citizens, and  other Acts of like nature, must, in general, be regarded as invalid and void (Texas vs. White, 74 U. S., 733; 19 Law. ed., 240.)  Judicial or legislative acts in the insurrectionary states were valid where they were not hostile in their purpose or mode of enforcement  to  the  authority  of the national  government, and did not impair the rights of citizens under the Constitution.  (Horn vs. Lockhart, 17 Wall., 570-581.; 21. Law. ed., 660.)   All the enactments of the de facto legislatures in the insurrectionary states during the war, which were not hostile to the Union or to the authority of the General Government and which were not in conflict with the  Constitution of the United  States,  or  of the states, have the same validity as if they had been enactments of legitimate legislatures.   (United States vs. The Home Insurance Co.,  22 Wall., 99-104; 22 Law. ed., 818.)   Tested iby these principles of international law, Ordinance No. 7 must be declared void  (1)  because  it favored the  forces of occupation and  the  civilian  Japanese inasmuch as  it provided an excessively heavy penalty for and the summary trial of possession of firearms and violations  of food control  regulations  and (2) because it impaired the rights of citizens under the Constitution inasmuch as the procedure therein prescribed withdrew the privilege of the  accused against self-incrimination and his right to appeal to the Supreme Court  even where the penalty imposed was  life imprisonment or death.

In substance,  the City Fiscal argues that the  heavier penalty for the illegal  possession of  firearms  than that fixed by the Administrative Code was not directed  toward the suppression of underground  activities against the Japanese army, and the rigid enforcement of the food  control measures was not intended to insure the procurement of supplies by said army, because in any event the Japanese military occupant freely exercised the power to go after and  punish  his enemies directly without recurring to the agencies of the "Republic," for there were even cases where the offenders were already  in the hands of the police or courts of the "Republic" but they were unceremoniously taken from said agencies by the Japanese military police and punished or liquidated by it at Fort Santiago or elsewhere;  and as regards food control, the Japanese forces did not have any need of the measures or agencies established by the "Republic" because the Japanese forces themselves commandeered what  they needed or sent put their own agents to purchase it for them at  prices even much higher than those fixed by  the  "Republic";  that the procedure prescribed afforded a fair trial and did not violate any fundamental rights; that the military occupant was not in duty 'bound to respect the constitution and the laws of the occupied territory; that  he  could abrogate  all of them and promulgate new ones if he so chose; that the cases cited by the Solicitor General are  not  applicable  because they deal with the validity of acts and processes of the governments of the rebel states during the Civil War and are based upon the indissolubility of the Union; that the validity or nullity of the ordinance in question should be judged  in the light of  the provisions  of the Constitution and  the laws of the  "Republic"  and of generally accepted principles of international law; that even assuming that it should be judged by  the  standard  of the Constitution of the Commonwealth, the ordinance satisfies all the  requirements of said Constitution; that the right to appeal in a criminal case is not a constitutional but a purely statutory right which may be granted or withheld  at the pleasure of the state; and, finally, that the  supposed invalidity of the sentence imposed against the petitioner cannot be raised by habeas corpus.

There is no question  that in virtue of the proclamation of General MacArthur of October 23,  1944 (41 Off.  Gaz., 147, 148),  Ordinance No. 7 is no longer of any force and effect since the restoration of the Government of the  Commonwealth of the Philippines.  The question before us is whether said ordinance ever acquired any force and  effect or was  null and void ab  initio.

Invoking decisions of the Supreme Court of the United States in cases involving the validity of Acts of the Confederacy and of a rebel state  as a de facto government during the Civil War, the Solicitor General maintains that the ordinance in  question was null and void because it impaired the rights of citizens under the Constitution and because it was hostile in its purpose to the United States and the Commonwealth of the Philippines.

The decisions invoked  would  be  applicable if the so-called Republic of  the Philippines should be considered as a government established by the Filipino people in rebellion against the  Commonwealth and  the  sovereignty of the United States.   The decisions of the Supreme Court of the United States declaring invalid Acts  of a  rebel state  or of the Confederacy which were in furtherance or support of rebellion against  the United States or which  impaired the rights of citizens under the  Constitution, rest on the proposition that the Union is perpetual and indissoluble and that the obligations of allegiance to the state, and obedience to her laws, subject to the Constitution of the United States, remained unimpaired during the  War  of Secession.   (See Texas vs. White,  74 U. S., 700; 19 Law.  ed., 227,  237; Williams vs. Bruffy,  96 U. S., 176; 24 Law. ed.. 716.)  Obviously, that proposition does not hold true with respect to a de  facto government established  by the enemy in  an invaded  and occupied territory  in the course of a war between  two independent nations.  Such territory is possessed temporarily by  lawful  government at war  with the country of which the territory so possessed is a part, and during that possession  the obligations of the inhabitants to their country are suspended, although not abrogated. (United States vs. Rice, 4 Wheat., 253; Fleming vs. Page, 9 How.,  614; Baldy vs. Hunter,  171 U. S., 388; 43 Law. ed., 208, 210.)   In the case of Williams vs. Bruffy, supra, the court, speaking through Mr.  Justice Field, observed: "The  rule  stated by Vattel, that the justice of the  cause between two enemies being by the law of nations reputed' to be equal, whatsoever is permitted to the one in virtue of war is also permitted to the other, applies only to cases of regular war between independent nations.  It has no application to the case of a war between an established government and insurgents seeking to withdraw themselves from its jurisdiction or to  overthrow its  authority.  The court further stated that the concession of belligerent rights made to the Confederate Government sanctioned no hostile legislation and impaired in no respect the rights of loyal citizens  as  they  had existed at the commencement of hostilities.

On the other hand, in a war between independent nations "the  rights of the  occupant as a  law-giver  have broad scope."   He may "suspend the existing laws and promulgate new ones when the exigencies of the military service demand  such action,  According to  the  Rules of  Land Warfare he will naturally alter  or  suspend all laws  of a political nature as well as political privileges, and all  laws which affect the  welfare  and  safety  of  his command." (Hyde on International Law, vol. 2, p. 367.)  It will be seen then that in a  war between independent nations the army of occupation  has the  right to enact laws and  take measures hostile to its enemy, for its purpose was to harass and  subdue the latter; and it is not bound to respect or preserve the rights of the citizens of the occupied territory under their Constitution.

Let us now look into the nature and status of the  government styled "Republic of the Philippines" in order to determine the criterion by which the validity of its enactments should be tested.  In the  recent case  of  Co  Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No.  L-5, p. 113,  ante),  this Court,  speaking through Justice  Feria, had  occasion to  comment upon  the nature of said  government in the following words:

"The so-called Kepublic of the  Philippines, apparently established and organized as a sovereign state independent from any other government by the Filipino people, was, in truth and reality, a government established by the belligerent occupant or the Japanese forces of occupation. It was  of the same  character as the Philippine Executive  Commission,  and the ultimate source of its authority was the same the Japanese military authority and government.  As General MacArthur  stated in his proclamation  of October 23, 1944, a portion  of which had been already quoted,  'under enemy  duress a so-called government styled as the "Republic of the  Philippines" was established  on October 14, 1943, based upon neither  the free expression of the peoples' will nor the sanction of the Government of the United States.'   Japan had  no legal power to grant independence to the Philippines or transfer the sovereignty of the United States to, or recognize  the latent sovereignty of, the Filipino people, before  its military occupation  and possession of the  Islands had matured into an absolute and permanent dominion or sovereignty by a treaty of peace or  other means recognized in the law of nations. For it is a well-established doctrine in international law, recognized in Article 45 of the Hague Conventions of 1907 (which  prohibits compulsion of the population of the occupied territory to swear allegiance to  the hostile  power), that belligerent  occupation,  being essentially provisional,  does not serve to transfer sovereignty over the territory  controlled although the de jure government is during the period of occupancy deprived of the power to exercise its rights as  such.  (Thirty Hogshead of  Sugar vs. Boyle, 9  Cranch, 191; United States vs. Rice,  4 Wheat., 246; Fleming vs. Page, 9 Howard, 603; Downes vs. Bidwell, 182 U. S., 345.)  The formation of the Republic of the  Philippines was a scheme contrived by Japan to delude the Filipino people into believing in the  apparent magnanimity of the Japanese gesture of transferring or turning over the rights of government into the hands of Filipinos.  It was  established under the mistaken belief that, by doing so, Japan would secure the  cooperation or  at  least the neutrality of the  Filipino people in her war against the United States and other allied nations."

We  reaffirmed those  statements.  To show  further the fictitious character of the  much-propagandized  "independence"  which Japan  purported to grant to the  Philippines through the establishment of the "Republic," we may add that, as a matter of contemporary history and  of common knowledge, in  practice the Japanese military authorities in the Philippines never treated the "Republic of the Philippines" as an independent government after its inauguration. They continued to impose their will on its executive officials when their interests so required.   The Japanese military police arrested and punished various high officials of said government, including the First Assistant Solicitor General, and paid no attention to the protests and representations made on their behalf  by  the  President of  the "Republic."  As a  climax of their continual  impositions, in December 1944 the Japanese military authorities placed the President  and the members of his  Cabinet  under the "protective" custody of the military police, and on the 22nd of that month forced them to leave  the seat of government in Manila and hide  with them in the mountains.  The only measure  they  did not succeed in imposing upon the "Republic" was the conscription of the Filipino youth into an army  to fight with the Japanese against the United States.  So, while in theory and for the purpose of propaganda Japan professed to be a benefactor and liberator of the Filipinos, hoping thereby to secure their willing cooperation in her  war efforts,  in practice  she continued to enslave and oppress the Filipinos, as she saw that the latter remained  loyal to the United States.   She found that the Filipinos  merely  feigned cooperation  as their only means of self-preservation and that those  who could stay beyond the reach of her army of occupation manifested their hostility by harassing and attacking that army.  Thus Japan continued to oppress  and tyrannize the Filipinos notwithstanding the former's grant of "independence" to the latter. It would therefore be preposterous to declare that the "Republic of the  Philippines" was a government established by the  Filipino people  in rebellion against the Commonwealth and  the sovereignly of the United States.

The said  government  being a mere  instrumentality of the Commander in Chief of the Japanese army as military occupant, the ordinance in  question promulgated by the President of the  "Republic"  must  be deemed  as an act emanating from the power or authority  of said occupant. The question, therefore, is whether or not it was within the competence of  the military occupant  to pass such a law.

Article 43 of the Hague Regulations provides as follows;

"ART. 43. The authority of the legitimate power having actually passed into  the hands of the occupant,  the latter shall take aB steps in his power  to reestablish and insure, as far as possible, public order and safety,  while respecting, unless absolutely prevented, the laws in force in the country."

Commenting upon this article, Hyde in his work on International  Law, volume  2, pages 366,  367,  368, says:

"In consequence of his acquisition of the power to  control the territory  concerned, the occupant enjoys the right and is burdened with the  duty to take all  the measures within his power to restore and insure public  order and safety. In so doing  he is given  great latitude with respect to choice of means and mode of procedure.   This freedom may  be partly due to the circumstance  that the occupant is obliged to consider as a principal object the security,  support, efficiency  and success of his  own force in a hostile  land inhabited by nationals of  the enemy.  *  *  *

*      *      *      *      *      *      *

"The right  to legislate is not deemed to be unlimited. According to the  Hague Eegulations of 1907, the occupant  is called upon to respect, 'unless absolutely prevented, the laws in force in the country Thus in restoring  public order and safety he appears to be  bound to make serious endeavor to continue  in force the ordinary  civil and criminal laws which do not conflict with the  security of his  army or its support, efficacy, and success."

In the exercise  of his powers the commander must be guided by  his judgment and  his  experience and  a   high sense of justice.   (President McKinley, Order to the  Secretary of War, July  18, 1898, on the occupation of Santiago de  Cuba by the American forces, Moore, Dig. VII, p. 261.)

Acts  of the military occupant which exceed his power tested by the criterion set forth in article 43 of the Hague Regulations,  are null  and  without  effect as  against the legitimate  government.   (Wheaton's   International  Law, 7th ed.  [1944], p. 245.)

Hall in his Treatise on International Law (7th edition), discussing the extent of the right of a military occupant, states:

"If occupation is merely a phase  in military operations, and implies no  change in the  legal position of  the invader with respect to the occupied territory and its inhabitants, the rights  which  he possesses over them are those  which in  the special  circumstances represent his general right to do whatever acts are necessary for the prosecution of his war; in other words he has the  right of exercising such control, and such control only, within the occupied territory, as is required for his safety and the success of his operations. *  *  *  On occupying a country an invader  at once invests himself with absolute authority; and the  fact of  occupation draws with it as of  course the  substitution of his will for previously existing law whenever such substitution is reasonably needed, and also the replacement of  the actual civil  and  judicial administration by military jurisdiction.  In its  exercise however this ultimate  authority is  governed by  the condition that the invader, having only a right to such control as is necessary for his safety and the success  of his operations, must use his  power within the limits  defined by the fundamental  notion of occupation, and with due reference to its transient character.  He is therefore forbidden as a general rule to vary or suspend laws  affecting  property and private personal relations, or  which regulate  the  moral order of the community. *  *  *"   (Pages 498, 499.)

We  deduce  from the authorities that the power of the occupant is broad  and absolute  in  matters  affecting his safety.  But in  affairs which do  not affect  the security, efficacy,  and success of his military  operations, his power is  qualified  by the transient character  of his administration.   He is forbidden  "to vary or suspend laws affecting property and private personal relations, or which regulate the moral order of the community."   Unless absolutely prevented, he is bound to respect the laws, civil and criminal, in force in the country.

Tested by this criterion, was it within the power or competence of the Commander in Chief, of the Japanese army of occupation of the Philippines to promulgate Ordinance No. 7?   In so far as said ordinance created new court of special criminal jurisdiction we think his power to promulgate and enforce it during the occupation cannot be seriously disputed; but in so far as that ordinance varied radically our law of criminal procedure and deprived the accused  of certain  rights which our people have  always. treasured and considered inviolate, we are of the opinion that it  transcended his  power  or  competence.  We base, this opinion  upon the following considerations:

  1. The occupant  was  not absolutely prevented from respecting our law of criminal procedure and applying it in the Court of Special and Exclusive  Criminal Jurisdiction. The application  or  nonapplication of said  law did not affect the security,  efficacy, and success of his military operations.   The crimes over which the  said court was vested with  jurisdiction were mostly crimes against property penalized in our Revised Penal Code, which crimes did not affect the army of occupation.  As to the illegal possession of firearms the City Fiscal himself, who sustains the validity  of the ordinance, informs us that the occupant did not avail himself of said court  but  punished his enemies  direct  without recurring to  the agencies  of  the "Republic"; and  he further informs us that  "as regards food control, the Japanese forces did not have any need of the measures or agencies  established  by "Republic",  nor did they make use of them.

  2. The summary procedure prescribed in Ordinance No. 7 was inquisitorial, repugnant to  the humanitarian method of administering criminal justice adopted  by  all progressive, democratic, and freedom-loving countries of the world, and , therefore, devoid of that high sense of justice by which the military  occupant must  be guided in the exercise of his powers.  This concept is, we think, borne out by  an examination of the following features of said procedure:

    (a)  Under the rule  of procedure embodied in said  ordinance  any prosecuting officer may, on his own volition and even  without probable cause, issue a search warrant for the seizure of documents and articles  which may  be regarded as evidence of an offense in violation of section 2, Rule 122 of the Rules of Court and of the Bill  of Rights contained in the Constitution of the Commonwealth, which guarantees "the right of the people to be secure in  their persons, houses, papers, and  effects against unreasonable searches  and seizures,"  and  prohibits  the  issuance  of warrants  except upon  probable cause to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.

    (b)  The trial must be commenced within two days  after the filing of the information in violation of section 7, Rule 114, which gives the accused at least two days after the plea of not guilty within which to prepare for trial.

    (c)  The presumption of innocence in favor of the accused in all criminal prosecutions  until the  contrary is proved, which  is  likewise guaranteed by the Bill of Rights, is violated in that, after the  arraignment and before the presentation  of any proof for the prosecution, the accused is interrogated by the judge as  to the facts and circumstances of the case, and if from the facts  obtained by such interrogation  it should appear  (to the  judge)  that the accused is guilty a sentence of conviction  may be immediately rendered against him, thereby also depriving him of his right  to  meet the witnesses face to  face and of his privilege  against self-incrimination.

    The City Fiscal justifies  this feature of  the procedure by giving the following hypothetical case:  "In the  house of Juan and under his bed a policeman finds a revolver.   Juan is arrested and an information for illegal possession of firearms is filed against him by the fiscal  He is brought before the judge  of the  corresponding  special court for the preliminary interrogatory.  He is asked whether  or not he admits that the revolver was found  in his house. He answers in the affirmative but says that  he is not the owner of the revolver and he does not know how it was placed there.  Asked whether he knows of anybody who could have placed the revolver under his bed, he answers that it might have been placed there by a guest who slept on his bed the night previous to its discovery  by the police. He is asked to  give the name of  the guest referred  to and his address, but he refuses to answer.  Asked if  he has other witnesses to support his claim, he  answers that he has none. As may be seen, the  evidence  of  guilt is complete, and there  being no further evidence to be presented that may change  the result the accused  may  be then and  there sentenced by the court.  In this case, the conviction of the accused is reasonable and  fair, for his refusal to reveal the identity of his alleged guest may  be due, either to the fact that there was no such guest, or that the cause for concealing his identity is worth suffering for. Volenti non fit injuria."

    But to us that hypothetical case is a good illustration of the injustice of  such procedure. There  the  accused was convicted not because the prosecution had proved his guilt but because  he  was unable to prove his innocence.  His inability to prove who the owner of the revolver was, did not to our mind  prove him guilty ibeyond reasonable doubt, under the circumstances.  He was  accused of illegal possession of firearm, an  offense punishable under the ordinance in  question with  imprisonment for six to  twelve years. He pleaded not guilty, for according to him the revolver was not his and he did not know how it got into his house. He had no time to investigate and  try to find out whether  the policeman himself or some  other person who wished to do him harm had planted it there, for no sooner was the revolver seized than  he was  brought before the court and interrogated about it when  he was naturally dazed and in a state  of alarm.  If  the law of criminal procedure had been followed,  he would  have had ample time to reflect and  endeavor to unravel  the mystery.  He could have consulted a lawyer, and  he  would have  been entitled to at least  two days  after the  information was read to him  to investigate the facts  and prepare for the trial.  At the trial  he  would  not have  been required to answer any question or present  any proof in his defense until the  prosecution had presented its witnesses, principally the policeman.   His lawyer could have cross-examined the policeman and found out from him whether he had any grudge against the accused and how  he happened to search  the latter's house.  From the testimony of the policeman the accused might have been  enlightened as to how and by  whom the revolver was placed in his house. Suppose that the policeman should say that his informant as to the presence of the revolver under the bed of the accused was a houseboy of the latter, and  suppose that that houseboy was really the one who planted the  revolver because of some grievance he had against his master but that the latter had not suspected before that his houseboy had any revolver.  In view of the  revelation  of the policeman he would have been able to investigate and ascertain that fact.  In that way he  cpuld have satisfactorily explained how and by whom the  revolver was placed under his bed. But under the procedure  in question as  outlined by the City Fiscal, the accused was  of course utterly  unable to do that and was consequently doomed to at least  six years' imprisonment for a crime he had not committed.

    (d) Section 6 of the Ordinance in question provided: "The decisions of the  special  courts herein created  shall be final except where the penalty imposed is death, in which case the records of the particular case shall be  elevated en consulta to a special  division of the Supreme Court composed of three members to be designated by the President of  the  Republic  of  the Philippines."  Under our law of criminal procedure, which the military occupant was bound to respect unless absolutely prevented,  all persons accused of any offense have the right to appeal to the Court of Appeals or to the Supreme Court.  It is true that as a rule that right is  statutory and may be withdrawn by the legislature except in certain cases where the right to appeal is provided in the Constitution itself, as in the cases involving life  imprisonment and death penalty; but  the question here is not whether the legislative department of the legitimate government has the power to abrogate that right but  whether it was  within the  competence of  the military occupant to do so.

    (e)  In the instant case the penalty imposed upon the accused  by the special  court, after a summary trial,  was life imprisonment, and he was denied the right to have that sentence reviewed by the Supreme Court, altho under subsection 4, section 2, Article VIII of the  Constitution of the Commonwealth, he could not have been deprived by law of that right.

    (f)  Section 7 of the Ordinance suspended the privilege of the writ of habeas corpus with respect to  persons accused of or under investigation for any of the crimes and offenses enumerated in sections 1 and 2.  The Constitution of the Commonwealth prohibits th§ suspension of that privilege except in cases of invasion, insurrection,  or rebellion when  the  public  safety requires it.  The  suspension by the ordinance was not motivated by any one  of these cases but by the necessity for waging a campaign against certain classes  of crimes; martial  law was not declared;  and  the suspension of habeas corpus did not apply to all persons living  in the specified territory (as should have been done if the public  safety  required such  suspension)  but only to those accused of or investigated  for certain specified crimes or offenses.  The result of such partial suspension was  that persons accused of or  under investigation  for any  of the offenses  specified in  sections 1 and  2 could be held in detention indefinitely,  whereas persons accused of or under investigation for crimes other than those specified, such for example as  theft, physical injuries, homicide, murder, and parricide, had the right to demand their release by habeas corpus after the lapse of six hours.  The same discrimination  holds true with reference to the other features already noted above, namely, unreasonable searches and seizures, summary trial, denial of the presumption if innocence,  self-incrimination,  and denial of the right to appeal.  Such discrimination was unwarranted  and unjust and was contrary to the concept of justice prevailing in all democratic countries,  where every person is entitled to the equal protection of the  laws.

  3. It  is apparent from the foregoing examination of the main features of the  ordinance that while the methods thus adopted may not be unusual under totalitarian governments like those of the  aggressor nations  in the recent global war, they are strange and repugnant to the people of the democratic countries which  united together  to defeat said aggressors and "to reaffirm faith in fundamental human rights, in the  dignity and worth of the human person, in the equal rights of men and women  and of nations large and small,   *   *  *    and to promote social progress and better standards  of  life in  larger freedom."   (Preamble Charter  for Peace adopted  by  the United  Nations  at San  Francisco,  California,  June  26, 1945.)  The recent global war was a clash between two antagonistic ways of life, between facism  and democracy.  It would be  strange indeed if this Court,  which  functions under a democratic government that fought with the other democratic nations in that  war,  should sanction or approve the way  of life, against  which that war was fought and won at the cost of millions of lives and untold sacrifices.

  4. The case involves the  interpretation not  of constitutional but of international law, which "is based on usage and opinion"; and "he who in such a case bases his reasoning on  high  considerations  of morality may  succeed  in resolving the  doubt  in accordance  with humanity and justice."   (Principles of International Law, Lawrence, 7th ed., pp. 12, 13.)  We think the contentions for the petitioner against the validity  of the  ordinance  in  question are in accord with humanity and justice.

Before  concluding  this  opinion we deem it pertinent to comment  on the remark of the City Fiscal that, as stated in  its preamble, the ordinance in  question was promulgated in response to "an urgent necessity for waging an immediate and relentless  campaign against certain classes of  crimes  and offenses and expediting the trial and determination thereof  in order to hasten the  re-establishment of peace and order  throughout the country and promote a feeling of security among the people conducive to the earlier return of normalcy in our national  life."  We concede that the objective of the author of the ordinance was commendable,  but we think and in this we are supported by the actual  result it was unattainable thru the means and methods prescribed in  said ordinance.  Peace and order and normalcy could not be restored  unless the root cause of their disturbance were eliminated first.  That cause was the presence in the country of the Japanese army,  which  wrecked our political, social, and economic structures, destroyed  our means of  communication, robbed the people of  their food, clothing, and medicine and other necessities of life, ejected  them from their  own  homes, punished and tortured innocent men and women,  and otherwise made life unbearable.  The relative rampancy of the crimes mentioned in  said ordinance was but the effect of that cause.  The  cornering  and  hoarding of  foodstuffs would not have occurred were it not for the scarcity produced by  the  seizures and requisitions made  by the Japanese army and the  disruption of  our commerce and industries on account of the invasion.   The possession  of firearms was rendered desirable to many persons to defend themselves against  or attack the invader.  Robberies and other crimes  against property  increased  as  a result  of hunger  and privation to which the people were subjected by the rapacity of the Japanese.  It was a delusion to expect peace and normalcy to return without eliminating the cause of  their  disturbance; and  the elimination of that cause meant the expulsion or destruction of the Japanese army in the Philippines an objective to which the ordinance was not addressed.   So, even from the point of view of the Filipino people  and not of the Japanese army of occupation, the ordinance in question results untenable.

Having  reached  the  conclusion that the  enactment of the procedure embodied in said ordinance for the special court therein created was beyond the competence of the occupant, inasmuch as that procedure was inseperable from the first part of the ordinance which creates the special court and  prescribes  the jurisdiction thereof, we are constrained  to declare the whole ordinance null and void ab initio.  Consequently the  proceedings  in said court which resulted  in the  conviction and sentence of the petitioner are also void.

 


 

CONCURRING IN THE RESULT

PARAS, J.,

Charged with robbery,  the petitioner herein was found guilty and sentenced to  suffer life imprisonment.  He commenced to serve the term on August 21, 1944.  Inasmuch as he was a member of the Metropolitan  Constabulary, the basis of  the information was Act No. 65, passed  during the Japanese-sponsored Republic  of the Philippines and amending certain articles  of the Revised Penal Code.  The trial was held  by the then existing Court of Special and Exclusive Criminal Jurisdiction which was authorized to conduct proceedings in a special manner.   (Ordinance No. 7 of the "Republic")

After  General of  the  Army Douglas  MacArthur had issued the Proclamation dated October 23, 1944, the Act under which the  petitioner was  charged and convicted stands  nullified, and the original provisions of the  Revised Penal Code restored.  By virtue of article 22 of the said Code, "Penal laws shall have a retroactive effect in so far as they favor the person guilty of a felony, who is not a habitual criminal, as this term  is defined in  rule 5 of article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict  is serving the same."

In the absence of other details, it may here be assumed that the offense committed is that defined in article 294, paragraph 5, which provides as follows:

"Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer:

"The penalty of prision correctional to prision mayor in its medium period in other cases."

In accordance with the provisions of the Indeterminate Sentence Law (Acts Nos.  4103 and 4225), the maximum of the minimum penalty that can be imposed is six months of arresto mayor.

This Court has already dismissed cases wherein the  defendants were charged with the violation of laws in force at the time  of the commission and trial of the crime, after said laws  had  been  repealed by subsequent  legislation, People vs. Moran  (44  Phil., 387); People vs. Tamayo (61 Phil., 226),  and also repeatedly released on writs of habeas corpus prisoners who,  although sentenced to suffer long terms of imprisonment, were given the benefit of subsequent legislation either repealing statute under which they had been convicted or modifying the same by imposing lesser penalties, Escalante vs. Santos (56 Phil., 483); Directo vs. Director of Prisons  (56 Phil., 692).

Prisoners who behave well are almost always liberated upon the  expiration of the minimum penalty fixed  in the judgments of conviction or within a reasonable time thereafter.   In the  present case,  there  being no  information that the petitioner has acted otherwise, and having  served more than double the period of the minimum penalty that could be  imposed upon him, he  should  be  released.   As this is the effect of the decision of the majority, I  concur in the result.

 


 

CONCURRING

DE JOYA, J.,

The principal question involved in this case is the validity of the judicial proceedings held in  criminal  case No.  66 of the Court of Special and Exclusive Criminal  Jurisdiction,  established in the City  of Manila, during Japanese occupation, under the authority of Ordinance No. 7, issued by the President of the so-called Philippine Republic, and the effect on said  proceedings of the proclamation of General Douglas MacArthur, dated October 23, 1944.

In  said criminal case, herein petitioner  was accused  of the crime of robbery and sentenced to life imprisonment, on August 21, 1944.

There can  be  no doubt that the government established in this country by the Commander in Chief  of the Japanese Imperial forces,  under the name of the Philippine Executive Commission,  was  a de facto government, as already held by this Court in civil case G. R. No. L-5, entitled Co Kim Cham vs. Valdez Tan Keh and Dizon, decided on September 17,1945 (p. 113, ante).   Said government  possessed all the characteristics of a de facto government, as defined by the Supreme  Court  of the United States, in the following language:

"But there is another description of government, called also  by publicists a government de facto, but which might, perhaps, be more aptly denominated  a government of paramount force.  Its distinguishing characteristics are (1), that its existence is maintained  by active military power within the territories, and against the rightful authority of an established and lawful government; and (2), that while it exist  it must necessarily  be obeyed in  civil matters  by private citizens who,  by acts of obedience  rendered in submission  to such force, do not become responsible, as wrongdoers, for  those acts, though  not warranted by the laws of the rightful  government. Actual governments of this  sort are established  over  districts differing greatly  in extent and conditions.   They  are usually  administered directly by military authority, but  they may  be administered, also, by civil authority, supported more or less directly hy military force.' (MacLeod vs. United  States  [1913,] 229 U. S., 416.)

Under a de facto government, the courts of the country, under military occupation, should be kept open, and wherever practicable, the  subordinate officers of the local administration should be allowed to continue in their  functions,  supported by  the  military force of the  invader, because the responsibility of maintaining peace and public order,  and of punishing crime, falls directly upon the commander in chief of the occupying forces.  And in the performance of this duty, he may make use of the local courts, wholly or in part; or he may proclaim martial law (Davis, Elements of International Law [3d  ed.], pp. 330-332).

In occupied territory, the conquering power has a right to displace the pre-existing authority, and to assume to such extent as it may deem proper the exercise by itself of all the powers and  functions of government.  It may appoint all  the necessary officers and clothe them with designated powers, according  to  its  pleasure.   It may  prescribe the revenues  to be paid, and apply them to its own use or otherwise.  It may do anything necessary to strengthen  itself and weaken the enemy.   There is no limit to the powers that may be exerted  in such cases,  save those which are found  in  the laws and customs and usages of war (Cross vs. Harrison, 16 How.,  164; Leitensdorfer  vs. Webb, 20 Id.,  176;  The Grapeshot, 9 Wall.  [U.  S.],  129; New Orleans vs. Steamship Co., [1874], 20 Wall., [U. S.], 287).

It is generally the better  course  for the inhabitants of the territory, under military  occupation, that  they should continue to carry on the ordinary  administration under the invader; but the latter has no right to force them to do so. If they decline,  his only rights, and  it is also  his duty,  is to replace them by appointees  of his own, so far as necessary for  maintaining order and the  continuance of the daily life of the territory: other purposes, as these of the superior  judicial offices,  can bide their time  (Westlake, International Law, Part II, War, 2d ed., pp. 121-123).

Though the fact of occupation imposes no duties upon the inhabitants of the occupied territory, the invader himself is not left equally free.  As it is a consequence of his acts that the regular government of the country is  suspended, he is bound to take whatever means are required for the security of public order; and as his presence, so long as it  is based upon occupation, is confessedly temporary, and his rights of control spring only from the necessity of the case, he is also bound to alter or override the existing laws  as little as  possible  (Hall, International  Law,  6th ed., p. 476).

The government established here under the  Philippine Executive Commission  was more in consonance with  the general practice  among civilized nations, in establishing governments for  the maintenance of peace and order and the administration of justice, in territories  of the enemy under military occupation; because said  government  was of a temporary character. The government subsequently  established  under the so- called  Philippine Republic,  with a new constitution,  was also of the nature of a de facto government,  in accordance with  International Law, as  it was  established  under  the authority of the  military occupant and supported by  the armed forces of the latter.   But it was  somewhat different from that established under the Philippine Executive Commission,  because the former apparently, at least, had  the semblance of permanency, which, however,  is unusual  in the practices among  civilized nations,  under similar  circumstances.

Under military occupation, the original national character of the soil and of the inhabitants of the territory remains unaltered; and although the invader is invested with quasi-sovereignity, which gives him a claim as of right to  the obedience of the  conquered population,  nevertheless,  its exercise is limited by the qualification which has  gradually become established, that he must  not, as a general rule, modify the permanent institutions of  the  country (Hall, International Law, 6th ed., p. 460).

The Convention Concerning: the Laws and  Customs of War  on Land,  adopted at The Hague in 1899, lays down (Arts. 42, 43)  definite rules concerning military authority over the territory of a hostile state.  In addition to codifying the accepted law, it provides that the  occupant must respect, unless absolutely prevented, the laws in force in the country.

It will  thus  be readily seen that the municipal law of the invaded state continues  in force, in so far as it does not affect the hostile occupant unfavorably.  The regular courts of the occupied territory continue to act in  cases not affecting the  military occupation;  and it is not customary for the invader  to take the whole  administration into his own hands, as it is easier to preserve order through the agency of  the native officials,  and also because the latter are more competent to administer the laws of the territory; and  the military occupant, therefore, generally keeps in  their  posts such of the  judicial  officers as are willing to serve under him, subjecting them only to supervision by  the  military  authorities, or  by superior civil authorities appointed by him (Young vs. United States, 97 U. S., 39; 24 Law. ed., 992;  Coleman vs. Tennessee,  97 U. S., 509; 24  Law. ed., 1118; Macleod vs. United States, 229 U. S., 416;  33 Sup. Ct., 955; 57 Law. ed., 1260; Taylor, International Law, sees.  576,  578; Wilson, International Law, pp. 331-337; Hall, International Law, 6th ed. (1909), pp. 464, 465, 475, 476; Lawrence, International Law, 7th ed., pp. 412-413; Davis, Elements of  International Law,  3rd ed., pp. 330-332, 335; Holland, International Law, pp. 356- 57, 359; Westlake, International Law, Part II,  War 2d ed., pp. 121-123).

The judicial proceedings conducted, under the municipal law of the territory, before  the court  established by the military occupant  are general considered legal  and valid, even after the government established by the invader had been displaced by the legitimate government of said territory.

Thus the judgment rendered by the Confederate courts, during the Civil War, merely settling the rights of private parties  actually within their  jurisdiction, not tending to defeat the legal  rights of citizens  of the United States, nor in furtherance  of laws passed in aid of the rebellion, had been declared  legal, valid and  binding  (Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 1118;  Williams vs. Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570; 21 Law. ed.,  660; Sprott vs. United  States, 20 Wall., 249; 22 Law. ed.,  371),

When the military forces of the Confederate states were destroyed,  their government  perished, and with it all its enactments.  But the legislative acts of the several States forming the Confederacy stood on a different ground, and so far as they did not impair or tend to impair the supremacy of the national authority, or the just rights  of  citizens under the Federal constitution, they were considered as legal, valid and binding (Williams vs. Bruffy, 96 U. S., 177; 24 Law. ed., 716; Ford  vs. Surget,  97 U. S., 594; 24 Law. ed., 1018; United States vs. Ins. Co., 22 Wall. [U. S.], 99; 22 Law. ed,, 816; Ketchum vs. Buckley [1878], 99 U. S., 188; Johnson vs. Atlantic G. & W. I. Transit Co., 156 U. S., 618; 15 Sup.  Ct., 520).

In a later case, the Supreme Court of the United States reaffirmed that the  judicial and legislative acts of the rebellious States, as de facto governments, should be respected by the courts, if they were not hostile in their purpose or mode of enforcement to the authority of the national government, and did not impair the rights  of citizens under the Federal Constitution.   (Baldy vs. Hunter, 171 U. S., 388; 18 Sup.  Ct., 890; 43 Law. ed., 208.)

Under the proclamation of General Douglas MacArthur, dated October 23, 1944, declaring null and void all laws, regulations and  processes issued  and promulgated by the Philippine  Executive Commission and the Philippine Republic, during Japanese occupation, said  Ordinance No. 7 promulgated on March  8, 1944, creating the Court of Special  and Exclusive  Criminal Jurisdiction,  ostensibly for the speedy reestablishment of peace and  order, and Executive Order No. 157 of the  Chairman of  the Executive Commission, prescribing summary rules of procedure, and other allied laws, such as Act No. 65 of the puppet republic, prescribing  heavier  penalties, became  null and void, once the Japanese armies in the Philippines had been defeated, as with them the de facto governments, successively established under them, perished, and with them all their enactments and processes of a hostile character.

But there are other considerations equally important why judicial proceedings held and conducted before the  courts established by said de facto governments, under laws promulgated by them, should be declared null and void, without violating, in the least, settled  principles, judicial precedents or public policy.

Said Ordinance No. 7 adopted as integral parts thereof said Executive Order No. 157, as well as said Act No. 65 of the National Assembly of the puppet republic, prescribing exceptionally heavy  penalties for the crimes enumerated therein.

The principal crimes  mentioned in said  Ordinance No. 7 and Act No. 65 of the puppet republic and the other allied laws  are illegal possession of firearms, robbery, violations of food-control laws, falsification, malversation and bribery ; and it was under said laws that herein petitioner was prosecuted  and sentenced  to life  imprisonment  for the crime of robbery.

The penalty  of life imprisonment or death for robbery was aimed principally  at the underground forces  resolute and determined to  seize and remove  stores of food provisions,  whenever possible, to prevent them from falling into the hands  of the enemy.

The penalty  of  twelve years'  imprisonment  for  illegal possession of firearms was directed mainly against those underground forces, that had been receiving arms from the forces of liberation across the seas.

Violations of food-control  laws were included  and used as a pretext and  justification for  the seizure and confiscation of food provisions so  badly needed by the invader.

And the  inclusion under said Ordinance  No.  7 of the crime of bribery and other was used as a cloak to conceal its venom and make said law look innocent.

By the imposition of excessive penalties,  by the denial of the remedy of habeas corpus, by compelling the accused to testify against themselves, and by  denying them the right of appeal  to the highest court of  the land, except where the death penatly was imposed, and by its  summary procedure, said Ordinance No. 7 and the  other allied laws impaired and defeated  the just and legal rights of Filipino citizens under the Commonwealth Constitution,  and the supremacy of the  authority of the legitimate Government; Under said  laws,  the  persons accused were deprived  of liberty without due process of law.

In the language of this  Court, "the phrase 'due process of law'  used in  the Philippine Bill should receive a  comprehensive  interpretation, and no  procedure should  be treated as unconstitutional which makes due provision for the trial of alleged criminal before a court of competent jurisdiction, for bringing the accused into court and  notifying him of the cause he is required to  meet, for giving nim  an opportunity to be  heard, for the  deliberation and judgment of the court, and for an appeal from such judgment to the  highest tribunal"  (United States vs. Kennedy,. 18 Phil., 122).

In their conception,  in their purpose  and mode of enforcement and execution said  laws were hostile to the authority of the Commonwealth Government and that of the United States of America; as they had been  promulgated in furtherance of the war aims of the enemy, and  they are, therefore, of political character and  complexion.

Those repressive laws were aimed at the men and women who had kept the faith, and whose heroes and martyrs now lie in graves still unknown and whose names remain unsung; but whose heroic efforts and sacrifices have made immortal the legends of Filipino resistance, and made possible our participation in the councils of free and liberty-loving peoples and nations.

Said laws are contrary to the principles of Democracy, championed by North America, whose gigantic efforts and heroic sacrifices have vindicated human rights, human dignity and human freedom, and consecrated them anew all over the earth with the generous blood of her children. They violate the fundamental principles of Justice for which civilized Mankind stands, under the benign leadership of Totalitarianism and given all the nations of the earth a new birth as well as a new charter of freedom, to enable each and everyone to live a nobler and more worthy life and realize the justice and prosperity of the future.

For the foregoing reasons, I concur in the dispositive part of the opinion prepared by Mr. Justice Feria.

 


 

CONCURRING

PERFECTO, J.,

On October 21, 1944, petitioner William F. Peralta began to serve, in the Muntinglupa Prison Camp, a sentence of life imprisonment imposed by the Court of Special and Exclusive Criminal Jurisdiction, created by Ordinance No. 7 issued by President Laurel of the Republic of the Philippines under the Japanese regime, and now seeks a writ of habeas corpus in order that his liberty may be restored to him, contending that said Ordinance No. 7 was null and void ab intio because it was of a political complexion and its provisions are violative of the fundamental laws of the Commonwealth of the Philippines.

Petitioner alleges that sometime in the month of September, 1943, he joined the Constabulary forces as a private, against his will, and, before joining it, he was for several times arrested and maltreated as a guerrilla member, he being then a minor only 17 years old, and that he was prosecuted, not because he committed any crime, but because he joined the guerrilla organization, deserted the Constabulary forces, and followed political and military activities in open allegiance to the Commonwealth Government and the United States of America.

The Solicitor General, appearing in behalf of respondent Director of Prisons, answered the petition agreeing that the acts and proceedings taken and had before said Court of Special and Exclusive Criminal Jurisdiction should be denied force and efficacy, and therefore, recommended that the writ prayed for be granted.

At the hearing held on September 21, and 22, 1945, there appeared to argue the First Assistant Solicitor General, impugning the validity of said Ordinance No. 7, and the City Fiscal of Manila, as amicus curiae, who sustained the validity of the said Ordinance and the proceeding by virtue of which petitioner was sentenced to life imprisonment.

I. ORDINANCE NO. 7 AND PROCESSES UNDER IT NULLIFIED BY
THE OCTOBER PROCLAMATION OF GENERAL MACARTHUR

On October 23, 1944, General of the Army Douglas Mac-Arthur, Commander in Chief of the Philippine-American Forces, which fought in Bataan and later liberated the whole Philippines, as an aftermath of the liberation, issued a proclamation declaring:

"1. That the Government of the Commonwealth of the Philippines is, subject to the supreme authority of the Government of the United States, the sole and only government having legal and valid jurisdiction over the people in areas of the Philippines free of enemy occupation and control;

"2. That the laws now existing: on the statute books of the Commonwealth of the Philippines and the regulations promulgated pursuant thereto are in full force and effect and legally binding upon the people in areas of the Philippines free of enemy occupation and control; and

"3. That all laws, regulations and processes of any other government in the Philippines than that of the said  Commonwealth are null and void and without legal effect in areas of the Philippines  of enemy occupation and control."

It appears that Ordinance No. 7 in question has been issued under the Japanese regime and that the judicial process under which petitioner has been sentenced to life imprisonment, having been held in a court not belonging to the Commonwealth of the Philippines but organized and established under the authority of the enemy, became null and void and without effect since October 23, 1944, by virtue of the above-quoted October Proclamation of General MacArthur.

We have explained at length our position as to the effects of said October Proclamation in our dissenting opinion in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, 153, ante), and we deem it unnecessary to repeat what we stated in said opinion.

It is fortunate that all the members of the Supreme Court arrived at a unanimous conclusion as to the absolute nullity of the process under which petitioner is now being held in prison.

The shocking character of the provisions of Ordinance No. 7 and the processes held under it show once more how General MacArthur was absolutely right and justified in issuing the October Proclamation.

There are indications that more processes held under the Japanese regime will come to our knowledge, revealing strong grounds for their annulment, justifying, like the process here in question, the wisdom of the decision of General McArthur in nullifying in a sweeping manner all judicial processes held during enemy occupation.

The October Proclamation is, besides, in keeping with the following official statement of the President of the United States:

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

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

"Our sympathy goes out to those who remain loyal to the United States and the Commonwealth that great majority of the Filipino people who have not been deceived by the promises of ihe enemy.    *    *    ?

"October 23, 1943.

"FRANKLIN DELANO ROOSEVELT
"President of the United States"

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

Putting aside the October Proclamation, by a mere perusal of the ordinance in question, we will see immediately how such law and the processes held under it are incompatible with the fundamental principles and essential safeguards in criminal procedure, universally recognized in civilized modern nations and how such ordinance and processes can only be justified by a retrogressive and reactionary mentality developed under the social, cultural, and political atmosphere of the era of darkness.

II. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST
UNREASONABLE   SEARCHES   AND   SEIZURES

Section 5 of Ordinance No. 7 provides that cases arising under it shall follow the summary procedure provided in Act No. 65 of the Laurel Philippine Republic, which, in turn, is the same as that established by Chapter II of Executive Order No. 157 of the Chairman of the Vargas Philippine Executive Commission, dated May 18, 1943.

Under said procedure, "search warrants may be issued by the court or by any prosecuting officer, authorizing peace officers to search for and seize any articles or objects de-Scribed in the warrant, including those which may be regarded as evidence of an offense under this order even if such articles or objects are not included among those described in section 2, Rule 122, of the Rules of Court." This provision is repugnant to the Filipino sense of right in the matter of warrants of search and seizure, sense of right which has been clearly and definitely stereotyped in the following words of our fundamental law:

"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized." (Art. Ill, sec. 1, No. 3, Constitution of the   Philippines.)

This constitutional provision is violated by the summary, unreasonable, and arbitrary procedure provided under the authority of the ordinance in question:

(1) By authorizing "any prosecuting officer" to issue search warrants, when under our Constitution such search warrants should be issued only by a judge;

(2) By trespassing the limits established by section 2, Rule 122, of the Rules of Court, considered as a necessary element to make the warrant reasonable;

(3) By authorizing the search and seizure of articles or  objects not described  in warrant,  which  is  the real meaning of the words "including those which may be regarded as evidence of an offense under this Ordinance."

III.  DISCRIMINATORY   AND   INIQUITOUS   SUSPENSION   OF   THE
WRIT OF   HABEAS   CORPUS

Section 7 of Ordinance No. 7 in question provides that "the privileges of the writ of habeas corpus are hereby suspended with respect to persons accused of, or under investigation for, any of the crimes and offenses enumerated in sections 1 and 2 hereof."

This provision is also violative of one of the fundamental guarantees established in the Constitution of the Philippines, which provides that the writ of habeas corpus may be suspended only in case of "invasion, insurrection, or rebellion" and only "when the public safety requires it."

"The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion, insurrection, or rebellion, when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such suspension shall exist." (Art. Ill, sec. 1, No. 14, Constitution of the Philippines.)

Again, it is evident that the ordinance in question is repugnant to the deep sense of right of our people. It is so, not only because it suspends the privilege of the writ of habeas corpus, without the circumstances which can only justify said suspension, but because it flagrantly violates the fundamental principle of equality before the law, by depriving the accused, in cases falling under the ordinance in question, of the privilege of the writ of habeas corpus, which is not denied to the accused in all other cases: "No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied Jhe equal protection of the laws." (Art. Ill, sec. 1, No. 1, Constitution of the Philippines.)

IV. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST
SELF-INCRIMINATION

Under section 18 of Executive Order No. 157, above mentioned, "the accused or his representative may be examined by the court, and with the permission of the court, by the fiscal or other prosecuting officer as to any matters favorable or unfavorable to him or his principal." (Italics ours.)

It is also provided that "statements made by the accused, his co-accused, or the representative of the accused or a person acting in a similar capacity, irrespective of the circumstances under which they toere made shall be admissible in evidence if material to the issue."    (Italics ours.)

Under section 21 of Executive Order No. 157, after arraignment and plea,  "the judge shall interrogate the accused * * * as to facts and circumstances of the case in order to clarify the points in dispute and those which are admitted."

In the same section it is also provided that "refusal of the accused to answer any questions made or allowed by the court may be considered unfavorable to him." (italics ours.)

Under the same section the absence of an accused or of his representative "shall not be a ground for interrupting the proceedings or attacking the validity of the judgment."

From the foregoing, it appears:

(1) That the accused may be examined by the court or any proaecuting officer as to any matters favorable or un favorable to him;

(2) That the refusal of the accused to answer may be considered unfavorable to him;

(3) That statements made by the accused, "irrespective of the circumstances under which they were made" (that is, even under third degree procedure, or exacted through brutal kempei tortures), shall be admissible in evidence;

(4) That not only the accused, but "his representative" (his lawyer, whose personal security was jeopardized un der the Japanese regime), may be examined by the court or by the fiscal or other prosecuting officer, as if said representative or attorney is facing the same criminal prosecution instituted against his client;

(5) That the statement made by said representative or attorney, although exacted under duress, intimidation, or torture, shall bo admissible in evidence;

(6) That statements made by any person acting in a similar capacity as a representative of the accused which may be a relative or a friend or, perhaps, just a mere acquaintance, or even an impostor who might pose as a representative to assure the doom of the accused, "irrespective of the circumstances under which they were made (that is, even if made in the absence of the accused, or in  the  same  circumstances  under  which  masked  spies decreed the death of innocent citizens pointed by them during zoning concentrations), shall be admissible in evidence;

(7) That trial shall proceed in the absence of the accused ;

(8) That trial shall proceed in the absence of his at torney or other representative.

It is evident that the procedure established violates the following provisions of our fundamental code:

"In all criminal prosecutions the accused shall be presumed to be innocent until the contrary is proved, and shall enjoy the right to be heai'd by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses in his behalf." (Art. Ill, sec. 1, No. 17, Constitution of the Philippines.)

"No person shall be compelled to be a witness against himself." (Art.   Ill,   sec.   1,   No.   18,  Idem.)

The procedure is so revolving, so nauseating, and so opposed to human nature, that it takes a real courage to keep our equanimity while we are compelled to analyze it.

It is beyond our comprehension how a man, endowed with reason, could devise such an execrable system of judicial procedure, which is but a shameless mockery of the administration of justice.

We must be very careful to retain zealously the constitutional guarantee against self-incrimination. We must not forget that that constitutional guarantee was acquired as a result of protest against all inquisitorial and third degree procedures. We must not forget how, not very long ago, in the thirteen colonies of America, alleged witches were burned at the stake, as a means of compelling them to confess their fantastic compacts with the devil. We must not forget how an institution created in the twelfth century was the cause of so much tortures and sufferings, and that the terroristic menace of its rakes was abolished in Spain, and therefore in Philippines, only in 1834.

We must not forget that during normal times, under the twentieth century lights, just before the last global war started, in the United States of America and in the Philippines, denunciations of third degree procedures employed by agents of the law were often heard. This very Supreme Court, not only once, had to deal with cases where such tactics were conclusively proved. Even today, among criminal cases we have under consideration, there is evidence of confessions exacted through cruel and brutal means.

No matter what merits can be found, from the theoretical point of view, in the arguments of those who are championing the suppression of the constitutional guarantee against self-incrimination, the undeniable reality of human experience shows conclusively the absolute need of such guarantee if justice must be served. Even with the existence of such guarantee, there are officers of the law who cannot resist temptation of using their power to compel, through third degree methods, innocent or guilty persons to admit involuntarily real or imaginary offenses. Let us allow changes tending to nullify the protection against self-incrimination, and no man, however innocent he may be, shall be secure in his person, in his liberty, in his honor, in his life.

V. THE FUNDAMENTAL RIGHT OP APPEAL TRAMPLED UPON

In section 6 of Ordinance No. 7, it is provided that "the decision of the special courts herein created shall be final except where the penalty imposed is death, in which case the records of the particular case shall be elevated en consulta to a special division of the Supreme Court composed of three members to be designated by the President of the Republic of the Philippines."

This provision is a clear violation of the fundamental right of appeal, constitutionally guaranteed to all accused in the Philippines.

Under the Constitution of the Philippines, all accused are entitled to appeal to the Supreme Court:

(1) In all cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulations is in question.    (Art. VIII, sec. 2, No. 1, Con stitution of the Philippines.)

(2) In all cases involving the legality of any tax, impost, assessment, or toll,  or any penalty imposed in relation thereto.     (Art. VIII, sec 2, No. 2, Idem.)

(3) In all cases in which the jurisdiction of any trial court is in issue.    (Art, VIII, sec. 2, No. 3, Idem.)

(4) In all criminal cases in which the penalty imposed is death or life imprisonment.    (Art. VIII, sec. 2, No. 4, Idem.)

(5) In all cases in which an error or question of law is involved.    (Art. VIII, sec. 2, No. 5, Idem.)

Before the adoption of the Constitution of the Philippines, it was the prevailing theory in judicial decisions that the right of appeal is not a fundamental one, but it is a mere privilege or mere statutory grant.

The drafters of our Constitution, taught by the unerring lessons of human experience, came to the conclusion that mistake is one of the most irretrievable human weaknesses.

The drafters of our Constitution, therefore, considered it necessary to establish constitutional guarantees to reduce to its minimum the effects of such innate human weakness by providing that appeal to the highest tribunal of the land may be enjoyed by any accused, who, under the specific provisions of the Constitution, believed himself to be the victim of a wrong in any inferior court.

The fact that the provisions of section 2, of Article VIII, of the Constitution, instead of stating that the accused shall not be denied of the right of appeal in the cases mentioned therein, provide that the Supreme Court may not be deprived of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts,  in the specified cases, does not impair nor diminish the fundamental character of the right of appeal of the accused to the Supreme Court.

The provisions of section 2, of Article VIII, of the  Constitution, have been enacted by our Constitutional Convention, not for the benefit of the Supreme Court, but for the benefit and well-being of the  people.

In fact,  the Supreme Court is  just one of the instrumentalities created by the  Constitution  in the service of the  people.  The Supreme  Court  is not an entity or institution whose rights and privileges must  be constitutionally guaranteed.  It  is only  a means.   It is one of the means considered necessary by our Constitution to better serve the supreme  interest  of the  people.

As a matter of fact, the Supreme  Court of the United States itself declared that the elimination of said tribunal is not incompatible  with the existence of a government of laws.  In  a case  of denaturalization wherein the Government of the United States  sought to  deprive a person of his  American citizenship,  on the ground   that  the  1928 platform of the Communist Party  of the United  States, to which the  respondent belonged, advocated the abolition of the  Supreme Court, of the  Senate and of  the veto power of the  President, and replacement of  congressional  districts with "councils of workers" in which legislative and executive powers would  be united, the Federal Supreme Court declared:

"These  would  indeed be significant changes in  our governmental structure changes which it is safe to  say  are not desired by the majority of  the  people in this  country but whatever our personal views, as  judges we cannot say that person who advocates  their adoption through peaceful and constitutional means is not in fact attached to the Constitution those institutions are not enumerated as necessary in the government's test of 'general political philosophy', and it is conceivable that 'orderly liberty' could be maintained without them.  The  Senate has not gone  free of criticism and  one object of the Seventeenth Amendment was to make it more responsive to the popular  will.  The unicameral  legislature is not unknown  in the country.  It is true that this Court has played a large part in the unfolding of the  constitutional plan (sometimes too much so  m the opinion of  some  observers), but we  would be  arrogant indeed if we presume  that a government of laws, with  protection for minority groups, would be impossible without it. Like other agencies of government, this Court at various  lines in its existence has  not escaped the shafts of critics whose sincerity and attachment to  the Constitution is  beyond question critics who have accused it of  assuming functions of judicial review not intended to be conferred upon it, or of abusing those functions to thwart the popular will, and who have advocated  various remedies taking a wide range."  (Schneiderman vs. United States of America, June 21, 1943.)

VI. ABRIDGMENT OF THE CONSTITUTIONAL GUARANTEE OF
EQUAL PROTECTION OF THE LAWS

The constitutional guarantee of equal protection of the laws is evidently  abridged in the summary procedure  in criminal cases under  Ordinance No. 7:

(1)  By  the fact that the accused therein  are victims of search warrants specially provided for them, where the guarantees against unreasonableness in search warrants issued against other accused are specially eliminated.

(2)  By depriving the accused, under Ordinance No.  7, the privilege  of the writ of habeas corpus enjoyed by the accused in other cases.

(3)  By  depriving the accused, under Ordinance No.   7, of the fundamental right  of  appeal  in all  cases, except when sentence  of  death is  imposed.

(4)  By  discriminating against the  accused, under Ordinance No. 7,  where the  right of  appeal is retained for them, that is, in cases where the sentence imposed is death, by entrusting the power to revise said sentence to a small minority  of the Supreme  Court, under the Japanese regime, and a minority of three justices to be specially called out by the President  of the Laurel  Philippine Republic, undoubtedly with the evident purpose of assuring  the confirmation of the conviction of the  accused, and  to make the appeal en consulta just an empty gesture  to make the situation  of  the accused more  pitiful by lengthening his days of agony.

(5)  By placing the accused,  in  the cases in question, under the sword of Damocles of an unfavorable presumption, should he refuse to answer any question that the court or any prosecuting officer might propound to him.

Under our Constitution, no one shall be deprived of the "equal protection of the laws."   (Art. Ill, sec. 1, No. 1, Constitution  of  the Philippines.)

VII. THE PRESUMPTION  OF INNOCENCE OF  THE ACCUSED IN
ALL CRIMINAL PROSECUTIONS VIOLATED

Since the American  flag began to fly over our soil, the fundamental  guarantee that in all criminal prosecution the accused shall be presumed innocent until the  contrary is proved  beyond  all reasonable doubt, has been implanted in our country to remain forever.

That guarantee was  consecrated in our Constitution:

"In  all  criminal prosecutions the accused shall be  presumed to be innocent until the contrary is proved, and shall enjoy the  right to be heard by himself and  counsel, to be informed of the nature and cause  of  the accusation against  him, to have  a speedy and public trial, to meet the  witnesses face to face, and  to have compulsory process to  secure the attendance of witnesses in his behalf." (Art. Ill, sec.  1, No. 17, Constitution of the Philippines.)

This guarantee is undoubtedly violated when, in the summary procedure established by  Ordinance No. 7,  it is provided  that the refusal of the accused to  answer any question,  propounded   by the court  or  any prosecuting officer, "may raise unfavorable presumption against him."

If we have to keep  democracy  in our countryt we must be vigilant in upholding the constitutional principle  that all persons shall be presumed to be  innocent until the  contrary is proved  beyond ail reasonable doubt.

This principle is  the opposite of that prevailing under autocracies, or under facist or totalitarian regimes.  During the Japanese occupation, all persons  who  might fall under the suspicion of any Japanese or  their spies and lackeys, were presumed to be guilty of any imaginary crime until they were able to  convince their victimizers of the contrary, beyond any  reasonable doubt.   Even then, they were submitted to  preventive tortures  and long months of imprisonment, just in case they might  think  later of committing  any  offense  against the Japanese  or their collaborators.

VIII. ORDINANCE NO.  7 VIOLATED THE HAGUE
CONVENTION OP 1899

In the convention concerning the laws and customs of war on land, adopted by  the Hague in 1899, it is provided that the military occupant must respect the laws in force in the occupied  country,  unless   absolutely  prevented. (Arts.  42 and 43.)

This provision of the Convention has been flagrantly violated when,  under the enemy  occupation, the Laurel Philippine  Republic enacted Ordinance No. 7 which suspended our laws, including the fundamental one, by substantially subverting the judicial procedures in the special criminal cases instituted under said  ordinance.

For  this reason, said ordinance, being violative of international law, was null and void ab initio.

Under international law, under the most elemental principles  of law,  the  legitimate government,  once restored to its  own territory, after  expelling the enemy invader, enjoys  the absolute freedom of not recognizing or of nullifying any and all acts of the invader, including  those internationally legal ones.  The  situation is exactly the same as that of the  owner of  a house who can do anything in it that  pleases him, after  expelling the bandit who was able to usurp its possession for  a  while.

General MacArthur exercised  correctly that power by the  sweeping  nullification  decreed   in  his   October Proclamation.

But even without the October Proclamation, the judicial process maybe it  is  better  to  say injudicial  process which resulted in the imprisonment of petitioner, must be shorn of all effects because it had taken place under the authority of an ordinance  which  was null and void ab initio.

IX. THE DECISION CONVICTING THE PETITIONER HAVING BEEN
RENDERED UNDER FOREIGN AUTHORITY IS  UNENFORCEABLE

The decision by which petitioner  William F. Peralta was convicted and is being confined  for life having  been rendered by a tribunal created, functioning, and acting under the authority of a foreign State, the Emperor of the Imperial Government of Japan, is unenforceable.

It has, therefore, the nature of a foreign  decision or judgment.   For that reason, it is unenforceable within the Philippines or under the Commonwealth, as we have shown in our opinion in the case of Co Kim  Cham vs. Valdez Tan Keh and Dizon  (G. R. No. L-5, p. 153, ante).

Said  decision, having been rendered under  Ordinance No. 7, which was null and void ab  initio, carries the same vice as the ordinance under which it was rendered.

But even admitting arguendo that said decision is valid, because it is so under international law, and is not included in the nullification decreed by General Douglas MacArthur, still it cannot be enforced, being  a  foreign  decision.  A foreign decision can only be enforced through the institution of an action  before  our tribunals.  Even decisions of a court of the  United States or of  any of its  States or territories can be enforced in the Philippines only by the institution of an  action  or  special proceeding before our own courts.  This theory is confirmed by sections 47 and 48, Rule 39, of the Rules of Court, which read:

"SEC. 47. Effect of record of a court of  the United States. The effect of a judicial record  of a court of the United States or of  a court  of one  of the States or territories of  the  United States, is the same in the Philippines as in the  United States, or in the State or territory where it was made,  except that it can only be enforced here by an action or special proceeding, and except, also, that the authority of  a  guardian,  or executor,  or administrator does not extend beyond the jurisdiction of the  Government under which he was invested with his authority.

"SEC. 48. Effect of foreign judgments. The effect of a judgment of a tribunal of a foreign country, having jurisdiction to pronounce the judgment, is as follows:

"(a) In case of a judgment against a specific thing,  the judgment is conclusive upon the title to the thing;

"(b) In case of a judgment against a person, the judgment is presumptive evidence of a right as  between the parties  and  their successors in interest by a subsequent  title; but the judgment may be repelled by evidence of a want of jurisdiction,, want of notice to the party, collusion, fraud,  or clear mistake of law or fact."

X. THE  STUNNTNG  FACTS REVEALED IN THE REPORT OF  THE
DIRECTOR OF PRISONS

At the hearing of this case, respondent Director of Prisons was required to  submit statistical data concerning the number of prisoners  and the various  crimes for which they were  convicted by the Court of Special and Exclusive Criminal Jurisdiction.

In submitting  said  statistical  data, the  Solicitor General, as counsel for respondent, calls  our attention to the fact that, out of the  92 prisoners  committed by said courts to the  Bureau of Prisons  for confinement, fifty-five (55), that is  more than one-half, were convicted of  illegal  possession  of  firearms,  and that only 3  are now  actually in confinement serving  sentences, among them the petitioner in this  proceeding,  thus dissipating  the unfounded  fear entertained by the City Fiscal of  Manila, to the effect  that a pronouncement by this Supreme Tribunal that the  sentences  of the courts  in question are null and void,  will signify  the release of hundreds of criminals, whose liberty and mixing with society will endanger  public peace  and order.

Of the other  two remaining prisoners serving sentence, one has been committed for evasion of service of sentence, and the other for illegal possession of firearms.

Of the  55 prisoners convicted  for  illegal possession of firearms, 25 died, 23 were released, and 6 escaped, and this is the reason why only one remains in confinement.

It is striking that so many prisoners died, 25 of those convicted for illegal possession of firearms,  that is, almost 50% of them, and 33 of the total of 94 prisoners committed, or more than one-third of them.  This unusual and shocking percentage of mortality is  worth inquiring into and, certainly, cannot be counted very favorably to judicial proceedings which eventually lead  to  such wholesale death, if not outright massacre.

The fact that a big number of the prisoners, 21 of them, were able to escape, was not explained to us.  Is it reasonable to surmise, from the  ruthless cruelty of the proceedings and of the penalties imposed, which exacted from the mouth of  the First Assistant Solicitor General, who appeared to argue the case in behalf  of the respondent, the adjective "ferocious", that the wardens  themselves, moved by pity, directly or indirectly helped the escape?

More than one-third of  the prisoners committed  by the said courts in confinement to the Bureau of Prisons, that is, 33 of them died.  May we ask if they died because they were  executed?  Of  those who  died, one  was convicted of profiteering in rice, one of robbery, one of kidnapping of minor,  one  of violation  of  certain sections  of Act No. 66, four of  crimes against public  order,  and 25  of possession  of firearms.  If all of them  were executed by virtue  of sentences rendered by the courts in question, that fact does not speak very highly of  their proceedings. If the accused died by natural death, there must be something physically or morally  fatal in said proceedings.

If a tree must be judged by  the fruits  it bears,  how shall we judge proceedings so deadly, so  fatal, so wantonly inhuman as the proceedings had in the  special courts  in question ?

The City Fiscal of Manila exerted great efforts to show that the fact that in the proceedings  in question "the refusal of the accused to answer any question made or allowed by the court may  be considered unfavorable to  him,"  does not violate  the  constitutional   guarantee  against  self- incrimination.  He  even goes to the extent of maintaining the theory that such constitutional  guarantee is not essential  for  the protection  of  the substantial rights of  an accused.

His argument centered on the alleged freedom of the accused to refuse or not to refuse to answer any question made or allowed by the court,  alleging that, if the accused chooses to refuse to  answer, the court cannot compel him to answer under menace of punishment for contempt or  through any other coercive or minatory measures.

The  City Fiscal  seems to labor under the belief that the fact that the silence of the accused "may be considered unfavorable to him", is  of no consequence at all.

Such belief can logically be entertained alone by ignoring completely the lessons  of experience  in human conduct.

If the refusal to  answer can  be  considered unfavorably to the accused, is not that the same as placing him on the hard predicament  of choosing between  testifying  self- incriminatingly  and risking the fatal effects of a  legal presumption of guilt?  Is not that the  same as placing him between the two  steel cages of a dilemma: self-incrimination or presumption  of guilt?  Is not that the same  as placing him between Scylla and Charybdis, between a dagger  and a wall?  Either way, he will  always find himself under the inexorable sword of  Damocles of sure punishment, whether he testifies or refuses to testify.

It is not  impossible to open  a debate upon  the abstract question whether the constitutional guarantee  against self- incrimination should or should not  remain.  But the value of such a moot question, for purposes of this  case, is nil.

The  constitutional guarantee had to be adopted as a protest against inquisitorial method of the past, when accused and  suspects  were  submitted to the  most brutal torture to compel them to confess real or imaginary crimes.   That past is not  far away.   It seems that we are still smelling the stench of human flesh burned in the stakes, where suspected witches suffered  iniquitous death.

There is no doubt that the procedure in question shows the purpose of pandering to the most  flagitious doctrines in criminal proceedings.  The transgressions of the bill of rights in all its phases cannot be hidden even to a chela in constitutional law.   It is the  very negation of the administration  of  justice.  Such procedure has absolutely no place in the framework of our juridical  system.  We will feel mere whifflers in our professed convictions, principles, and creed, if we should permit ourselves to fall into the weakness of abetting it even for a moment,  which could only happen once the  flambeau of reason has ceased completely to burn.   No  one but the truckling lackeys of the arrogant enemy could have the servility of applauding the implantation of the criminal  procedure in question.

All arguments and dissertations are useless to conceal the real  fact.  Behind and under said criminal process steal-thily crawls and trundles the Nippon psychosis, like a cobra with fangs overflowing with venom.   To ferret it out from the hole where it lurks, waiting for its  victims, and crush its head with one hammer blow,  is an imperative  measure of national self-defense.

XI. THE PETITIONER IS ENTITLED, AS A MATTER  OF ABSOLUTE
RIGHT, TO IMMEDIATE RELEASE

After showing the absolute nullity  of the judicial process under which petitioner has been convicted  to suffer the penalty of life  imprisonment,  the inevitable  consequence is that he is  entitled, as a matter of  absolute right,  to be immediately released, so that he can  once again enjoy a life of freedom, which is  the natural boon to law-abiding residents of our country, and  of which he was unjustly deprived  through  means  most  abhorrent   to   human conscience.

We must not  hesitate for one moment to  do our duty in this  case.   The sooner we comply with it, the better. The process and judgment under which petitioner has been convicted and is now undergoing an unjust imprisonment, is one of the  hateful vestiges left in our country by the moral savagery of a people spiritually  perverted and debased.  The seriousness  of this matter cannot be viewed with insouciance.

We must not lose time to wipe out such vestiges  if we must protect ourselves against their  poisonous  effects in our  political,  social, and cultural patrimony.   We  must erase those vestiges if we want to keep immune from all germs of decay the democratic institutions which are the pride of our people and  country, under which we are enjoying the blessings of freedom and with which we hope to assure  the well-being and  happiness  of  the unending generations who will succeed  us in the enjoyment of the treasures accumulated by a bountiful  nature in this Pearl of the Orient.

If we allow such  vestiges to remain we are afraid that some historian  may write about Philippine democracy, Philippine race, and Philippine culture, what,  on ancient art,  Hegel said in the "Phenomenology  of the Spirit", according to  Kohler, the greatest work of genius that the nineteenth  century has produced:

"The statues set up  are corpses in stone, whence the animating soul  has flown;  while the hymns  of praise are words from which all belief has gone.  The tables of the gods are bereft  of spiritual food  and drink, and from his games and festivals, man no more receives the joyful sense of  his unity with  the  Divine Being.  The works of the muse lack the force and energy of the Spirit which derived the certainty and assurance of itself just from the crushing ruin  of goods and men.  They are themselves now just what they are for us beautiful fruit broken off  the tree, a  kindly fate has passed on those works to us, as  a maiden might  offer  such fruit off a tree.  It is not their actual  life as they  exist, that is given us, not the tree  that bore them,  not the earth and the elements, which constituted their substance,  nor the climate  that determined their constitutive character,  nor the change of  seasons which con- trolled the process of their growth. So, too,  it is  not their living world that fate preserves and gives us with those works of ancient art, not the spring and summer of that ethical life in which they bloomed  and  ripened, but the  veiled remembrance alone of this reality."

Our sense of national  self-preservation compels us, as an  imperative  duty,  not  only to restore immediately the petitioner to his personal liberty; but,  all possible means, to obliterate even the memory of the inquisitorial summary procedure depicted in the present case.

Such procedure  exhibits  either inversion, retroversion, subversion,  or perversion  of elemental human concepts.  It ignores completely and  debases the high  purposes  of a judicial procedure.  It represents a hylistic ideology which proclaims the supremacy of the state force over fundamental  human rights.  We must  never allow the neck of our people to be haltered by the lethal string of that ideology. It is  a  virus that  must be eliminated  before  it produces the logical  disaster.  Such ideology is  a cancerous excrescence that must be sheared, completely extirpated, from the live tissues of our body politic,  if the same must be saved.

We cannot understand how  any one can justify the summary process in question  under the principles embodied in our Constitution.   To profess attachment to those principies and, at the same time, to accept and justify such kind of criminal  miscarriage of justice, is just sheer hypocrisy. It is a repetition of what Seneca did when, after preaching moral virtue's,  justified without  any compunction the act of Nero, the sanguinary Roman Emperor, of murdering in cold blood his own mother.  It is reproducing  the crooked mentality of Torquemada, who, upon the pretext of combating  and  persecuting heresy to save souls  from hell, conceived the diabolical idea  of condemning their victims to  an advanced version of hell in this life,  and among those  who suffered under the same spirit of intolerance and bigotry which was its very essence are counted  some of the greatest human characters, such as Galileo, Giordano Bruno,  and  Girolamo Savonarola.  That procedure might find justification in the thick heads  of the Avars, Huns, Vandals, and Teutons, or  in  the  stratified mentality of Japanese cullions, but not in a healthy mind of a cultured person of modern times.  To  allow  any vestige of  such procedure to remain  is tantamount to reviving the situation during which  our  citizens endured sleepless  nights in constant fear of the hobnail terror stalking in the darkness, when  their personal  security  and their life were hanging by the thin fibre of chance.

We wish a way could be found  to free completely our people of the  sense  of shame, which they  cannot  help feeling, engendered by members of our race who justified such abhorrent summary procedure and allowed themselves to become a  party to the execution of a scheme only acceptable to the undeveloped mentalities of the dark ages. It is a shame that makes our blood boil when we think that countrymen of  Father  Gomez, of Rizal, of  Mabini, could accept procedures representing the brutal ideology which is the very opposite of the humane, lofty, and dignified ideology that placed said heores and martyrs among the purest and noblest specimens that humanity produced in all  countries,  in  all time, and  for all  ones and  light years to come.

It is with joy and pride that we agree with  all our brethren in unanimously granting petitioner the redress he seeks in his petition.

 


 

CONCURRING

HILADO, J., 

I concur in the result, as  well as in the  reasons stated in the majority  opinion not  inconsistent with  the views expressed in my dissenting opinion in  G. R.  No. L-5, Co Kim Cham vs. Valdez Tan Keh and Dizon (p. 199, ante).

However, I would additionally base my conclusion  upon broader grounds.

Firstly, I reiterate here by reference the arguments advanced in said dissenting opinion in additional support of the conclusion that the  writ  of mandamus herein sought should be granted.   Secondly, the importance  and transcendence of the legal  principles involved justify  further elaboration.

From the allegations of the petition herein,  it can be deduced that the petitioner William F. Peralta was a "guerrillero" when he  was arrested,  tried and convicted; and that he had never voluntarily submitted to the Japanese forces in  his civil capacity.

No attempt is made in the Solicitor General's  answer to controvert the facts alleged in the petition from  which the foregoing deduction  flows, and  from the record  nothing appears which may tend to gainsay them.  Even when he ¦was forced temporarily to join the Constabulary, which had been organized  under orders of the Japanese Army in the  Philippines, he  did so against his will.

Even granting for the sake of argument, and laying aside for the moment the reasons to  the  contrary  set forth in my aforesaid dissenting opinion, that  the rules of International Law regarding the  power of a belligerent army iof occupation to establish a provisional government in an occupied  enemy territory, are still binding upon the United States and the Commonwealth of the Philippines, yet such , rules would not be of any avail to bind the herein petitioner by the laws, regulations,  processes and other acts of the so-called  "Republic of the Philippines", under and by virtue of which said petitioner has been convicted to life imprisonment by the Court of Special and Exclusive Criminal Jurisdiction of Manila in Criminal Case No. 66 thereof.

If we analyze the different adjudications and treatises which have been cited in support of the validity or binding force of  the acts of such provisional governments, which have been variously called de facto governments, or governments of paramount force, with  a  view  to finding the real ground, and philosophical justification for the  doctrine therein announced, we will see  that that reason and that justification are made  to  consist in  the submission of the inhabitants upon whom the  said acts have  been held to be of obligatory or binding force, to the army of occupation. Thus, to cite just a few typical examples, we  quote the following excerpts from three leading cases  decided  by the Supreme Court of the  United  States:

Excerpts from Thorington vs. Smith (8  Wall.  [U. S.], 1; 19 Law.  ed., 361) :

"That while  it (government of paramount force) exists,  it must necessarily be  obeyed in civil matters by private  citizens who, by acts  of  obedience, rendered  in  submission to such force,  do not become responsible, as wrong-doers, for those acts, though not warranted by the laws  of the rightful government"  (p. 363; italics ours).

"'The authority of the United States over the territory was suspended,  and the laws  of the  United  States could no  longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted  to the conqueror.'"  (P. 364; italics ours.)

Excerpts  from  Fleming vs. Page  (9 Howard.  [U. S.], 603;  13 Law. ed., 276) :

"While it (Tampico) was occupied by our troops,  they were in an enemy's country, and not in their own;  the  inhabitants were still foreigners and enemies, and owed to the United States  nothing more than the  submission and obedience,  sometimes called  temporary allegiance, which is due from a conquered enemy, when he surrenders to a force which  he  is  unable to  resist."  (P. 281; italics ours.)

Excerpts from United States vs. Rice (4 Wheat [U. S.], 246; 4 Law. ed., 562) :

"The sovereignty of the United States over the  territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there,  or be obligatory upon the inhabitants who  remained and submitted to the conquerors."   (P, 564; italics ours.)

It  results from the above-quoted pronouncements of the Supreme Court of the United States that  the laws, regulations, processes and other acts  of the government that the occupying belligerent establishes are made binding only and precisely upon those  inhabitants from whom obedience could be  effectively  exacted,  namely, those who  remain within the effective reach of the occupying forces  and  submit to them.   This is plain common sense.  Those who conceived and developed the doctrine could not logically have thought  of the army  of occupation setting upon a civil government for those  who still continued resistance.  As to them,  further military operations would be necessary to reduce them to submission, before one could think of civilly governing them.

In  the Philippines,  during the occupation by the Japanese of Manila and certain other portions of the Archipelago, the overwhelming majority of the people never submitted to the  Japanese invaders, and never recognized any legality in  the invasion of their country, and to the very date of liberation  refused to accept the alleged protection or benefits of the  puppet governments of the "Philippine Executive Commission" and the "Republic of the Philippines."  The majority of our people lived in the provinces, in the farms, hills and  other places beyond the  effective reach of the Japanese military garrisons.  Only a small minority submitted to the invaders for various reasons, such as their having been caught in Manila or other parts of the Islands occupying government positions, or residing therein without adequate  facilities for  escaping from or evading said invaders, reasons of  ill health, disabling them from living the  hard life of  the mountains, hills,  or country places, and the like.

To have bound those of our people who constituted the great majority who never submitted to the Japanese oppressors, by the laws, regulations, processes and other acts of those two puppet governments, would not only have been utterly unjust and downright illegal, but would have placed them in the  absurd and impossible condition  of being simultaneously submitted to two mutually hostile governments, with their  respective constitutional  and  legislative enactments and institutions on the one  hand bound to continue  owing allegiance to the United  States  and the Commonwealth  Government,  and,  on the  other, to  owe allegiance, if only temporary, to Japan.  Among them we find the  petitioner William F.  Peralta.  The surrender of the Fil-American forces in Bataan and Corregidor did not matter so far as this was concerned.   Much less  did that surrender obligate all the civil population to submit to the Japanese, and obey  all their future dictations. If it did, President Roosevelt  and President Osmeiia would not have so  heartily commended the Philippine resistance movement and so enthusiastically extolled the firm stand of those who participated therein,  in the former's message of  October 23, 1943,  and in the latter's speech of Febuary 27, 1945, cited in  the  writer's above mentioned dissenting opinion.   If these historic utterances should  seem  incompatible with any provision of  the Hague Convention, we should understand from them that both Presidents must have considered such provision as no longer applicable to, or binding upon, the  United  States  and the  Philippines. Who knows but that  their attitude  was based upon  the renunciation of war  as an  instrument of national policy by their  respective  peoples,  which renunciation  necessarily includes all the "rights" or "powers" which may be claimed to be derived from war so employed?   Or else, upon  the ground that such provision does not support the wrongful acts of Japan in the Philippines?

Another reason advanced to justify the creation of a provisional civil government, with its courts and other departments, in  occupied  enemy territory, is  the  alleged convenience of the civil population.   It  can  immediately be asserted in reply that the  convenience of the above- mentioned overwhelming majority of our people, far from requiring the establishment of  such a government, was in the very nature of things positively opposed thereto.   They not only  did not need the supposed benefits of such a government, but  they  actually reputed  them as  inimical to the larger interest of the very ideology and cause for which they were continuing their resistance to those who would extend here the brutal power and  pernicious influence of the  now  exploded  "Greater  East  Asia  Co-Prosperity Sphere."  They suffered, yes, and suffered much but they placed that ideology and that cause high above their private comfort.  Let us not penalize them for it.  If this government is democratic, and when it comes to a question of convenience,  whose  will  and whose  convenience  should prevail, that of the majority  or that of the  minority? Are we going to  force those  free  citizens  of this free country to accept the alleged benefits and assume the burdens of a government they have never consented to own?

I am, furthermore, of opinion that there is another important consideration which argues against the recognition of the said government as a de facto government or government of paramount force during the Japanese occupation of the Philippine  Islands.  Japan, in starting and prosecuting this war against the United States and her allies by breaking the most vital rules of civilized warfare as prescribed by International Law, must be deemed to have forfeited the right  to invoke that law in so far as specific provisions thereof would favor her or her acts.  Japan in treacherously attacking Pearl Harbor and the Philippines, successively  on  December  7 and  8, 1941, violated the rule providing  for  the necessity  of  declaring war as established at the  Hague Conference of 1907 (Lawrence, Principles of International Law, 7th ed., pp. 321-322, 325); she has infringed the rule requiring that war prisoners be cared for and treated with humanity (Ibid, p. 377); the rule imposing the obligation to properly tend the sick and wounded (Ibid, 384), the rule interdicting bombing of open and defenseless cities (Ibid, 522, 523)  when  she bombed Manila  after it had been declared an open city and all its military defenses had  been removed; the rule exempting noncombatants from personal injury  (Ibid, 397) her violations of one or the other  of which were matters of daily occurrence, one might say, during her three and a half years of tyranny and oppression in this country, and were  climaxed by the ignominious and indescribable atrocities of  the mass massacre of innocent  civilians  during the battle for  Manila.  In  the interpretation of doubtful provisions of International  Law, Doctor Lawrence,  in his work cited above, has the following to say:

"*  *  *  if a point of Municipal Law is doubtful, men resort to supreme court for a decision, or to a  supreme legislature  for  an interpreting statute; but if a point of International Law is doubtful, they can resort only to general reasoning for a convincing argument, unless, indeed, they settle the question by blows. And International Law in many of its details is peculiarly liable to disputes and doubts, because it is based an usage and opinion.   He who in such a case bases his  reasoning on high  considerations of morality may  succeed in resolving the  doubt  in accordance with  humanity and justice." (Pp. 12,  13.)

It would seem that to deny Japan  the  benefits, because she has refused to carry the burdens of the  law, is to base our reasoning  "on high considerations of morality", and to resolve any doubt, if doubt there be, as to the point  in question, "in accordance with humanity and justice."   In other words (even if we applied said rules to the instant case), Japan, under the circumstances  of this case, could not be heard to say that the government  which she established here was a de facto government, or a  government of paramount force, as in the cases where such a government was deemed to exist.

In  addition  to what  has been  said above, let  us see if the Japanese-sponsored  "Republic of  the  Philippines" did not  introduce such fundamental  and drastic changes in the political organization of this country, as it existed upon the date of the Japanese invasion, as  to vitiate with invalidity the acts of all its departments, executive, judicial, and legislative.  To begin  with, the  Commonwealth Constitution was completely overthrown.   It was  replaced  by the  so-called constitution  of  the "Republic."  A  casual comparison of these two instruments  cannot fail to reveal a most revolutionary transformation of the political organization of the  country.  While under the Commonwealth Constitution the  retention  of American  sovereignty over the Philippines  is expressly recognized, for the purposes specified in the ordinance appended thereto, in the very preamble of the constitution of the "Republic"  the  "independence" of the Philippines is proclaimed.  While under the Commonwealth  Constitution the President  and Vice- President are elected "by direct vote of the people" Art. VII, sec. 2), under the constitution of the "Republic" the President (no Vice-President is provided for) was elected "by majority of all the members of the National Assembly" (Art. II, sec. 2).  While under the Commonwealth Constitution the legislative power is vested in a bicameral Congress with, a Senate  and a House of Representatives (Art. VI, sec.  1), under the constitution  of the "Republic" that power was vested in  a unicameral National Assembly (Art III, sec.  3).  While  under the Commonwealth Constitution the Senators are chosen at  large by the qualified electors of the Philippines  (Art. VI, sec, 2) and the Representatives by the qualified electors in the respective districts (Art. VI, sec.  5), under the constitution of the "Republic" the National Assembly was  composed  of the provincial governors and  city mayors as members  ex-oficio, and of  delegates elected every  three years, one from each  and every province and chartered city (Art. Ill, sec. 2).   While under the Commonwealth Constitution, respecting the Judicial Department, the members of the Supreme  Court and  all judges of inferior courts are appointed by the President with the  consent of the Commission on Appointments of the Congress (Art. VIII, sec. 5), under the  constitution of the "Republic"  the members of the Supreme Court were appointed by the President with  the  advice of the Cabinet, and all judges of inferior courts, by the  President with the advice of the Supreme Court (Art. IV,  sec.  4).

These  changes and innovations can be multiplied  many times,  but the foregoing will suffice for our purpose.

It has  been said constantly in this discussion that political acts,  or acts of  a political  complexion  of a de facto government or a government of paramount  force, are the only ones vitiated with nullity.  Of course, I disagree with those who so hold.  But even by this test the "Republic" or, which is the same, the Imperial Japanese Forces-which gave  it birth in thus introducing  such positive  changes in the organization of this country or suspending the working of that already  in existence, executed a political act so fundamental  and  basic in  nature and  operation  that all the subsequent acts of the new government which of course had to be based thereon, inevitably had to be contaminated by the same vitiating defect.

"Thus  judicial acts done tinder his  control,  when they are  not of a political complexion, administrative acts so done, to the extent that they take effect during the  continuance  of  his  control, and the various acts done  during the same  time  by private persons under the sanction  of municipal law, remain good. *  *  *  Political acts  on the other  hand fall through  as  of course, whether they  introduce any positive change into the  organization of  the country, or whether they only suspend the working of that already in existence.  *  *  *"   (Hall, International Law, 6th ed., p. 483; italics ours.)

Finally, upon close scrutiny, we will find that all of the de facto governments or governments of paramount force which have (been cited in all this discussion were at the same time bona fide governments.  The British established such  a  government  in  Castine, and  ran  it as  a purely British  organization, The Americans  established another such  government in  Tampico, and ran it as an American organization.   The Confederate  States established a like government in the seceding States, and ran it as the  Government of the Confederacy.   They were  all frank, sincere, und honest in their deeds as well as in their words.  But what happened  in this country during  the Japanese  occupation? When the "Republic of the  Philippines" was established on October 14, 1943, under duress  exerted by the Japanese Army,  did the Japanese openly, frankly, and sincerely say that that  government was  being  established under their  orders  and was to  be  run subject  to  their direction and control?  Far from it!  They employed all the means they could conceive to deceive the Filipino people and the  outside world  that  they had given the  Filipinos their independence, and that the Filipino people had drafted their own constitution  and  established that  "Republic" thereunder.  But  behind the curtain,  from beginning to end, there was the Imperial  Japanese Army giving orders and instructions and otherwise  directing and  controlling the activities of what  really was their  creature for the furtherance of their war aims.  I cannot believe that those who conceived  and developed the doctrine of  de  facto government or  government  of paramount force, ever intended to include therein such a counterfeit organization as the Japanese contrived here an organization which, like its counterparts in Manchukuo,  Nanking,  Burma,  and Vichy, has been appropriately called "puppet" by the civilized governments of the world.

 


 

CONCURRENTE

BRIONES, M.,

El mandamiento de habeas corpus que se solicita  debe concederse.

La proclama  del General  MacArthur de 23  de Octubre de  1944, lanzada cuatro dias despues de su desembarco en Leyte  con  las  fuerzas  libertadoras,  reza  en  parte  lo siguiente:

"3. Que todas las leyes, regulaciones y procesos de cualquier otro gobierno en Filipinas que no fuera el del Commonwealth son nulos e invalidos y caxecen de ef ecto legal en areas de Filipinas liberadas de la ocupacion y control del enemigo."

Recienteimente se ha discutido  mucho  en  esta jurisdiccion sobre si la anulacion de que trata dicha  proclama puede  referirse  tambien a actuaciones judiciales  (judicial processes).   En el asunto de Co  Kim Cham  contra Valdez Tan Keh y Dizon, R. G. No.  L-5  (pag. 113,  ante), he opinado afirmativamente, esto es, que  el alcance  de esa proclama  puede extenderse a veces a ciertos actos o procesos judiciales.  Reafirmo ahora mi opinion y con mayor vigor y enfasis si cabe.   Porque, a mi  juicio, la sentencia de reclusion perpetua impuesta al recurrente bajo la ocupacion militar japonesa es de aquellos actos judiciales del pasado regimen que por su naturaleza  y circunstancias reclaman una decidida y pronta accion de parte nuestra en el sentido de aziularla y dejarla sin efecto.  Mis razones se exponen a continuacion.

Parece innegable  que la ley  procesal bajo la cual fue enjuiciado y convicto el  recurrente durante la ocupacion japonesa era absolutamente incompatible con las salvaguardias y garantias de un proceso justo, imparcial y ordenado que la  constitucidn   y  legislacion  procesal  del  Commonwealth de Filipinas  otorgan  a todo acusado en una causa criminal.  Hay  en dicha ley ciertos aspectos  decididamente repulsivos para  una  conciencia disciplinada  en las normas y principios de  una  democracia constitucional Bajo  nuestro  sistema  procesal el acusado tiene  derecho a que no se le ponga en situacion de acriminarse.  Tiene derecho a callarse sin que por esto pueda atribuirsele cargo inculpatorio alguno.   Este es un derecho fundamental, ga- rantido  por la constitucion.

Empero bajo  el sistema procesal que se discute, "la negativa del acusado  a contestar  cualquiera  pregunta  formulada  por el tribunal o permitida  por el  mismo, puede ser considerada  en contra de dicho acusado."   (Seccion 21, Orden Ejecutiva No. 157.)  Bajo este  mismo sistema  el caracter sumarlsimo del  proceso llega a tal extremo qne "una  sentencia  condenatoria puede  dictarse inmediatamente contra el acusado  siempre que  los  hechos descubiertos en el interrogatorio preliminar demuestren que  el acusado es culpable."

Bajo  el sistema procesal del Commonwealth, cualquier acusado convicto ante el Juzgado de Primera Instancia tiene el derecho de apelar de la sentencia para ante el Tribunal superior de revision; y en los casos de condena a reclusion perpetua o a muerte, el  Tribunal  Supremo  es el llamado a revisar la causa, siendo compulsoria la revision en el caso de condena  a muerte.  Esta jurisdiccion en  apelacion del Tribunal Supremo en los casos de condena a reclusion perpetua y a muerte no se halla estatuida simplemente por una ley ordinaria, sino que esta proveida en la misma constitution del  Commonwealth.  Asi que el derecho del condenado a reclusion perpetua o a  muerte para que se revise su causa por el Tribunal Supremo es constitucional y, por ende, no puede ser abolido por un simple fiat legislativo.

En camibio, bajo el sistema procesal en controversia las sentencias de los tribunales especiales o sumarias eran  de caracter  final, excepto cuando la pena impuesta fuera la de muerte, en cuyo easo los autos se elevaban en consulta a una division especial del Tribunal  Supremo compuesta  de tres miembros (Ordenanza No. 7 de la llaniada Republica de Filipinas por la que se crearon las tribunales especiaies o sumarios).  De modo que en esta ordenanza  no solo se suprimia de una plumada el derecho de apelar reconocido y establecido por la legislacion procesal del Commonwealth aun en los casos de delitos y penas ordinaries, sino que inclusive quedaba abolido el derecho de apelar otorgado por la constitution del Commonwealth al  acusado condenado a reclusion perpetua.  Por este motivo el recurrente, a quien se le habia impuesto esta pena por  el alegado delito  de robo, no pudo apelar de la sentencia para ante el Tribunal Supremo.

La cuestion que ahora tenemos que determinar y resolver es si debemos reconocer validez  y eficacia en la sentencia por la cual el recurrente se halla extinguiendo su condena de reclusion perpetua, o debemos anularla ahora que esta en nuestras manos el poder hacerlo, restablecida como esta enteramente  la  normalidad  juridica y  constitucional en nuestro pais.

En favor de la validez de dicha sentencia se arguye que fue dictada por un tribunal creado  por un gobierno  de facto;  que aun admitiendo el caracter inquisitorial, anti-democratico de la  ley procesal bajo la cual  fue  enjuiciado el acusado,  el gobierno de facto era dueno de  establecer los  procedimientos  legates que quisiera; y  que,  segun las reglas y doctrinas conocidas  de derecho internacional, las sentencias por "crimenes de  guerra" o "delitos politicos" generalmente validas  aun  despues  de restablecido el gobierno de jure.   Se alega que en estos casos el derecho no tiene mas remedio que ceder a la fuerza, aeeptando la realidad de los heehos consumados.

Se admite, sin embargo, que la  regla tiene sus excepciones.  Una de ellas es que "los actos del ocupante militar que rebasen su poder a  tenor del criterio establecido  en  el articulo 43 de las Regulaeiones de La Haya, son nulos  y sin efecto con relacion al gobierno  legitimo."   (Wheaton's International Law, 7th ed. [1944], p. 245.)   Segiin esto, ias sentencias por "crimenes de  guerra" o "delitos politicos" cometidos durante la ocupacion son, por razones perfectamente comprensibles, nulas e invalidas al restablecerse Ja soberania legitima.   Tambien quedan comprendidos  bajo esta excepcion los denominados actos de caracter o complexion politica.

Otra  limitacion a los  poderes de  un gobierno de ocupacion militar es que el ejercicio de  tales poderes debe extenderse tan solo hasta donde fuese necesario para  su seguridad y el exito de  sus operaciones, teniendo particularmente en cuenta el caracter transeunte de su ocupacion. Como regla general, al invasor se le prohibe alterar o suspender las leyes referentes a la propiedad y a las relaeiones personates privadas, o las leyes que  regulan el orden moral de la comunidad.  (Hall, Treatise  on International  Law, 7th ed., pp. 498, 499).  Lo que se hace fuera de estas  limitaciones es  en exceso de su competencia y es generalmente nulo al restaurarse la soberania legitima.

Otra  excepcion es la  que se refiere a  los actos de un gobierno de faoto resultante de una insurreccion, rebelion, revolucion o guerra civil.  A este efecto se ha declarado, por ejemplo, que los actos en fomento o apoyo de una rebelion contra los  Estados Unidos, o encaminados a anular los jusios dereehos de los ciudadanos, y otros actos de igual indole, deben ser considerados, por lo general, invdlidos y nulos (Texas vs. White, 74 U.  S.,  733;  19 Law, edv 240). En otro caso se ha declarado  la validez de ciertos actos judiciales o legislatives en estados insurreccionados, siempre, que su proposito o modo de operation no fwere hostil a la autoridad del gobierno national, o no eonculcaren derechos de los ciudademos bajo  la Constitution. Horn  vs. Lockhart, 17 Well, 570-581;  2 Law. ed., 660.)

Visto el caso que nos ocupa a la luz de estas doctrinas, ¿cual de ellas debemos adoptar para determinar si es o no valida la  sentencia por  la cual el recurrente sufre ahora pena  de reclusion perpetua  y pide ser  liberado  mediante peticion de  habeas corpus?

Se  asevera que no  procede aplicar al  presente caso la doctrina establecida en la jurisprudencia americana sobre gobiernos de  facto resultantes  de  una insurreccion, revolucion o guerra civil porque evidentemente la llamada Reptiblica de Filipinas instaurada durante la ocupacion militar japonesa no  tenia este caracter, sino que era mas bien un gobierno  establecido mediante  fuerza y coaccion por los mismos invasores para promover ciertos designios politicos relacionados  con sus fines de guerra.   En otras  palabras, era el mismo gobierno militar de ocupacion  con fachada filipina arreglada y arbitrada coercitivamente.

Mientras estoy  conforme con una parte de la  asercion, esto es, que la aludida repiiblica no tenia caracter insurreccional ni  revolucionario,  en disfrute de plena autonomia, sino que era simple pro duct o de la coaccion y estaba  mediatizada  continuamente por  el invasor,  dinero de la otra parte, aquella que declara inaplicable  la  conocida doctrina americana mencionada arriba sobre gobiernos de facto establecidos en el  curso de una insurreccion, revolucion o guerra civil.   Y la razon es sencilla.  Si a un gobierno de facto de este ultimo tipo gobierno establecido, despues de todo,  por compatriotas, por  conciudadanos se  le coarta con la restriecion de que sus actos  legislativos o judiciales, en tanto son validos, al restaurarse el regimen de jure, en cuanto no conculcaren los derechos justos de los civdadanos, a los derechos garantidos por la constitution, pareee que no existe ninguna razon por que no se ha de aplicar la misma restriceion al gobierno de facto establecido como incidente de una guerra entre dos naciones independientes y enemigas.  En realidad, la razon de nulidad es mucho mas poderosa y fuerte cuando, en su caso como el de Filipinas, el enemigo invasor inicio la agresion de una manera inicua y traicionera y  la ejecuto luego con vesania y sadismo  que llegaron a extremos inconcebibles de  barbarie.  En  este caso la condulcacion de los justos derechos de los ciudadanos, o  de los derechos garantidos por la constitucion cobra proporciones de  mucha mayor gravedad  porque  viene a ser tan solo parte de un vasto plan de rapina, devastation y atrocidades de todo genero cometidas contra la humanidad y contra las leyes y usos  de la guerra entre  naciones civilizadas.  El  invasor, en  este caso, es como el foragido que se coloca fuera de toda ley.  Por tanto, no hay absolutamente ninguna razon para no aplicarle una restriceion que se estima buena para el insurrecto o revolucionario.

La ventaja  de extender hasta cierto punto la doctrina sobre gobiernos de facto resultantes de una insurrection, rebelion o guerra civil  a  gobiernos de facto establecidos como incidente en el curso  de una guerra entre dos naciones independientes enemigas es que, frente a casos de conculcacion de los justos derechos  de los ciudadanos, o  de los derechos garantidos por la constitucion para los efectos de declararlos validos o nulos al restablecerse el gobierno de jure, ya no se hace  preciso examinar si los actos conculcatorios  fueron motivados por razones o exigencias de la seguridad y exito de las operaciones del ocupante militar, sino que la piedra de toque de la validez o nulidad viene a ser tan  solo el acto  positivo mismo  de  la conculcacion.

Esta forma de raciocinio no solo no es heterodoxa  a la luz de los principios establecidos de derecho international, sino pareee ser una Mgica inferencia  de los mismos.   Ya hemos visto que al ocupante  militar  en  el curso  de  una guerra international se le prohibe, como regla general, alterar  o suspender las leyes references a la propiedad y a las relaciones personates  privadas, o las leyes  que regulan el or den moral de la eomunidad. (Hall, Treatise on International Law, supra.)  Ahora cabe preguntar:   ¿Son los justos derechos de los ciudadanos, b los fundamentals garantidos por  la  eonstitucion  inferiores en categoria  a  la propiedad, o a las relaeiones personates privadas, o al orden moral de la eomunidad?   ¿No son en cierto sentido hasta superiores?  Por tanto, a nadie debe  chocar que la prohibieion se  extienda a  estas  materias. Es una inclusion perfectamente natural, mas que justificada por los avances y  conquistas del moderno derecho  internacional.  Notese que  en las fraguas de esta ultima guerra se han forjado unas modalidades juridicas harto  originales  que  denotan el  esfuerzo supremo y gigante de la humanidad  por superar  la banbarie y  por dar  al traste con las formulas arcaicas,  reaccionarias.   Para  citar   solamente   algunos ejemplos los mas destacados, tenemos  el enjuiciamiento de los llamados criminales de la  guerra,  y la responsabilidad que  se exige a los jefes  militares por las atrocidades cometidas por las tropas bajo su mando.

Mi conclusion,  por tanto, es que desde cualquier angulo que se mire la sentencia  impuesta al recurrente por el tribunal  sumario de la  llamada republica de Filipinas debe ser declarada  nula, acotando  las palabras  del  Procurador General, "no solo por razones fundadas en principios de derecho internacional, sino tambien por la mas apremiante y poderosa de las razones, la  de preservar y salvaguardar a  nuestros ciudadanos de los actos del enemigo."

Dar validez a  esa sentencia ahora,  en plena atmosfera de libertad que respiran a pulmon lleno de resto de nuestros conciudadanos menos el  recurrente  y  otras que  corrieron su suerte durante la ocupacion japonesa, equivaldria tanto como prolongar el  regimen de opresidn  bajo el  cual se tramitd y  se dicto  la  referida sentencia.   Es mas, equivaldrfa a sancionar la ideologia totalitaria, despotica, medieval contra la cual nuestro pueblo lucho tan lieroicamente jugandose todo: vida, libertad y bienes materiales.

Ciertamente no  nos hemos librado de la opresion para llegar a tan irrisorio resultado.

Concedase el remedio pedido.



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