Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

SHIGENORI KURODA, Petitioner, vs. Major General RAFAEL JALANDONI, Brigadier

General CALIXTO DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO
BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS, MELVILLE S.
HUSSEY and ROBERT PORT, Respondents.

MORAN, C.J.: chanrobles virtual law library

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

Commanding General of the Japanese Imperial Forces in The Philippines during a period
covering 19433 and 19444 who is now charged before a military Commission convened by the
Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and
failed "to discharge his duties as such command, permitting them to commit brutal atrocities
and other high crimes against noncombatant civilians and prisoners of the Imperial Japanese
Forces in violation of the laws and customs of war" - comes before this Court seeking to
establish the illegality of Executive Order No. 68 of the President of the Philippines: to enjoin
and prohibit respondents Melville S. Hussey and Robert Port from participating in the
prosecution of petitioner's case before the Military Commission and to permanently prohibit
respondents from proceeding with the case of petitioners. chanroblesvirtualawlibra ry chanrobles virtual law library

In support of his case petitioner tenders the following principal arguments. chanroblesvirtualawlibrary chanrobles virtual law library

First. - "That Executive Order No. 68 is illegal on the ground that it violates not only the
provision of our constitutional law but also our local laws to say nothing of the fact (that) the
Philippines is not a signatory nor an adherent to the Hague Convention on Rules and
Regulations covering Land Warfare and therefore petitioners is charged of 'crimes' not based
on law, national and international." Hence petitioner argues - "That in view off the fact that
this commission has been empanelled by virtue of an unconstitutional law an illegal order this
commission is without jurisdiction to try herein petitioner." chanrobles virtual law library

Second. - That the participation in the prosecution of the case against petitioner before the
Commission in behalf of the United State of America of attorneys Melville Hussey and Robert
Port who are not attorneys authorized by the Supreme Court to practice law in the Philippines
is a diminution of our personality as an independent state and their appointment as prosecutor
are a violation of our Constitution for the reason that they are not qualified to practice law in
the Philippines.
chanroblesvirtualawlibrary chanrobles virtual law library

Third. - That Attorneys Hussey and Port have no personality as prosecution the United State
not being a party in interest in the case. chanroblesvirtualawlibrary chanrobles virtual law library

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

The Philippines renounces war as an instrument of national policy and adopts the
generally accepted principles of international law as part of the of the nation.
In accordance with the generally accepted principle of international law of the present day
including the Hague Convention the Geneva Convention and significant precedents of
international jurisprudence established by the United Nation all those person military or civilian
who have been guilty of planning preparing or waging a war of aggression and of the
commission of crimes and offenses consequential and incidental thereto in violation of the laws
and customs of war, of humanity and civilization are held accountable therefor. Consequently
in the promulgation and enforcement of Execution Order No. 68 the President of the
Philippines has acted in conformity with the generally accepted and policies of international
law which are part of the our Constitution.chanroblesvirtualawlibra ry chanrobles virtual law library

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

War is not ended simply because hostilities have ceased. After cessation of armed
hostilities incident of war may remain pending which should be disposed of as in time
of war. An importance incident to a conduct of war is the adoption of measure by the
military command not only to repel and defeat the enemies but to seize and subject to
disciplinary measure those enemies who in their attempt to thwart or impede our
military effort have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct.,
2.) Indeed the power to create a military commission for the trial and punishment of
war criminals is an aspect of waging war. And in the language of a writer a military
commission has jurisdiction so long as a technical state of war continues. This includes
the period of an armistice or military occupation up to the effective of a treaty of
peace and may extend beyond by treaty agreement. (Cowles Trial of War Criminals by
Military Tribunals, America Bar Association Journal June, 1944.)

Consequently, the President as Commander in Chief is fully empowered to consummate this

unfinished aspect of war namely the trial and punishment of war criminal through the issuance
and enforcement of Executive Order No. 68. chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for
acts committed in violation of the Hague Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed the second only in 1947. It cannot be
denied that the rules and regulation of the Hague and Geneva conventions form, part of and
are wholly based on the generally accepted principals of international law. In facts these rules
and principles were accepted by the two belligerent nation the United State and Japan who
were signatories to the two Convention, Such rule and principles therefore form part of the law
of our nation even if the Philippines was not a signatory to the conventions embodying them
for our Constitution has been deliberately general and extensive in its scope and is not
confined to the recognition of rule and principle of international law as continued inn treaties
to which our government may have been or shall be a signatory. chanroblesvirtualawlibra ry chanrobles virtual law library

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

. . . The change of our form government from Commonwealth to Republic does not
affect the prosecution of those charged with the crime of treason committed during
then Commonwealth because it is an offense against the same sovereign people. . . .
By the same token war crimes committed against our people and our government while we
were a Commonwealth are triable and punishable by our present Republic. chanroblesvirtualawlibra ry chanrobles virtual law library

Petitioner challenges the participation of two American attorneys namely Melville S. Hussey
and Robert Port in the prosecution of his case on the ground that said attorney's are not
qualified to practice law in Philippines in accordance with our Rules of court and the
appointment of said attorneys as prosecutors is violative of our national sovereignty. chanroblesvirtualawlibrary chanrobles virtual law library

In the first place respondent Military Commission is a special military tribunal governed by a
special law and not by the Rules of court which govern ordinary civil court. It has already been
shown that Executive Order No. 68 which provides for the organization of such military
commission is a valid and constitutional law. There is nothing in said executive order which
requires that counsel appearing before said commission must be attorneys qualified to practice
law in the Philippines in accordance with the Rules of Court. In facts it is common in military
tribunals that counsel for the parties are usually military personnel who are neither attorneys
nor even possessed of legal training. chanroblesvirtualawlibrary chanrobles virtual law library

Secondly the appointment of the two American attorneys is not violative of our nation
sovereignty. It is only fair and proper that United States, which has submitted the vindication
of crimes against her government and her people to a tribunal of our nation should be allowed
representation in the trial of those very crimes. If there has been any relinquishment of
sovereignty it has not been by our government but by the United State Government which has
yielded to us the trial and punishment of her enemies. The least that we could do in the spirit
of comity is to allow them representation in said trials. chanroblesvirtualawlibrary chanrobles virtual law library

Alleging that the United State is not a party in interest in the case petitioner challenges the
personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that the
United State and its people have been equally if not more greatly aggrieved by the crimes with
which petitioner stands charged before the Military Commission. It can be considered a
privilege for our Republic that a leader nation should submit the vindication of the honor of its
citizens and its government to a military tribunal of our country. chanroblesvirtualawlibra ry chanrobles virtual law library

The Military Commission having been convened by virtue of a valid law with jurisdiction over
the crimes charged which fall under the provisions of Executive Order No. 68, and having said
petitioner in its custody, this Court will not interfere with the due process of such Military
commission. chanroblesvirtualawlibrary chanrobles virtual law library

For all the foregoing the petition is denied with costs de oficio. chanroblesvirtualawlibrary chanrobles virtual law library

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

Separate Opinions chanrobles virtual law library

PERFECTO, J., dissenting: chanrobles virtual law library

A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda
for Violation of the laws and customs of land warfare. chanroblesvirtualawlibrary chanrobles virtual law library

Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme
Court to practice law were appointed prosecutor representing the American CIC in the trial of
the case.chanroblesvirtualawlibrary chanrobles virtual law library
The commission was empanelled under the authority of Executive Order No. 68 of the
President of the Philippines the validity of which is challenged by petitioner on constitutional
grounds. Petitioner has also challenged the personality of Attorneys Hussey and Port to appear
as prosecutors before the commission. chanroblesvirtualawlibrary chanrobles virtual law library

The charges against petitioner has been filed since June 26, 1948 in the name of the people of
the Philippines as accusers. chanroblesvirtualawlibrary chanrobles virtual law library

We will consideration briefly the challenge against the appearance of Attorneys Hussey and
Port. It appearing that they are aliens and have not been authorized by the Supreme Court to
practice law there could not be any question that said person cannot appear as prosecutors in
petitioner case as with such appearance they would be practicing law against the law. chanroblesvirtualawlibra ry chanrobles virtual law library

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

EXECUTIVE ORDER NO. 68.

ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES

AND REGULATION GOVERNING THE TRIAL OF ACCUSED WAR CRIMINAL.

I, Manuel Roxas president of the Philippines by virtue of the power vested in me by

the Constitution and laws of the Philippines do hereby establish a National War Crimes
Office charged with the responsibility of accomplishing the speedy trial of all Japanese
accused of war crimes committed in the Philippines and prescribe the rules and
regulation such trial. chanroblesvirtualawlibrary chanrobles virtual law library

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

The National War Crimes Office shall maintain direct liaison with the Legal Section
General Headquarters, Supreme Commander for the Allied power and shall exchange
with the said Office information and evidence of war crimes. chanroblesvirtualawlibra ry chanrobles virtual law library

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

ESTABLISHMENT OF MILITARY COMMISSIONS chanrobles virtual law library

(a) General. - person accused as war criminal shall be tried by military commission to
be convened by or under the authority of the Philippines. chanroblesvirtualawlibra ry chanrobles virtual law library

II. JURISDICTION chanrobles virtual law library

(a) Over Person. - Thee military commission appointed hereunder shall have
jurisdiction over all persons charged with war crimes who are in the custody of the
convening authority at the time of the trial. chanroblesvirtualawlibrary chanrobles virtual law library
(b) Over Offenses. - The military commission established hereunder shall have
jurisdiction over all offenses including but not limited to the following: chanrobles virtual law library

(1) The planning preparation initiation or waging of a war of aggression or a war in

violation of international treaties agreement or assurance or participation in a common
plan or conspiracy for the accomplishment of any of the foregoing. chanroblesvirtualawlibrary chanrobles virtual law library

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

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

III. MEMBERSHIP OF COMMISSIONS chanrobles virtual law library

(a) Appointment. - The members of each military commission shall be appointed by

the President of the Philippines or under authority delegated by him. Alternates may
be appointed by the convening authority. Such shall attend all session of the
commission, and in case of illness or other incapacity of any principal member, an
alternate shall take the place of that member. Any vacancy among the members or
alternates, occurring after a trial has begun, may be filled by the convening authority
but the substance of all proceeding had evidence taken in that case shall be made
known to the said new member or alternate. This facts shall be announced by the
president of the commission in open court. chanroblesvirtualawlibra ry chanrobles virtual law library

(b) Number of Members. - Each commission shall consist of not less than three (3)
members. chanroblesvirtualawlibrary chanrobles virtual law library

(c) Qualifications. - The convening authority shall appoint to the commission persons
whom he determines to be competent to perform the duties involved and not
disqualified by personal interest or prejudice, provided that no person shall be
appointed to hear a case in which he personally investigated or wherein his presence
as a witness is required. One specially qualified member whose ruling is final in so far
as concerns the commission on an objection to the admissibility of evidence offered
during the trial. chanroblesvirtualawlibrary chanrobles virtual law library

(d) Voting. - Except as to the admissibility of evidence all rulings and finding of the
Commission shall be by majority vote except that conviction and sentence shall be by
the affirmative vote of not less than conviction and sentence shall be by the
affirmative vote of not less than two-thirds (2\3) of the member present. chanroblesvirtualawlibra ry chanrobles virtual law library

(e) Presiding Member. - In the event that the convening authority does not name one
of the member as the presiding member, the senior officer among the member of the
Commission present shall preside. chanroblesvirtualawlibrary chanrobles virtual law library

IV. PROSECUTORS chanrobles virtual law library

(a) Appointment. - The convening authority shall designate one or more person to
conduct the prosecution before each commission. chanroblesvirtualawlibrary chanrobles virtual law library
(b) Duties. - The duties of the prosecutor are: chanrobles virtual law library

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

commission. chanroblesvirtualawlibrary chanrobles virtual law library

(2) To prepare cases for trial and to conduct the prosecution before the commission of
all cases referred for trial. chanroblesvirtualawlibrary chanrobles virtual law library

V. POWER AND PROCEDURE OF COMMISSION chanrobles virtual law library

(a) Conduct of the Trial. - A Commission shall: chanrobles virtual law library

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

(2) Deal summarily with any contumacy or contempt, imposing any appropriate
punishment therefor. chanroblesvirtualawlibrary chanrobles virtual law library

(3) Hold public session when otherwise decided by the commission. chanroblesvirtualawlibra ry chanrobles virtual law library

(4) Hold each session at such time and place as it shall determine, or as may be
directed by the convening authority. chanroblesvirtualawlibrary chanrobles virtual law library

(b) Rights of the Accused. - The accused shall be entitled: chanrobles virtual law library

(1) To have in advance of the trial a copy of the charges and specifications clearly
worded so as to apprise the accused of each offense charged. chanroblesvirtualawlibrary chanrobles virtual law library

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

(3) To testify in his own behalf and have his counsel present relevant evidence at the
trial in support of his defense, and cross-examine each adverse witness who
personally appears before the commission. chanroblesvirtualawlibra ry chanrobles virtual law library

(4) To have the substance of the charges and specifications, the proceedings and any
documentary evidence translated, when he is unable otherwise to understand
them. chanroblesvirtualawlibrary chanrobles virtual law library

(c) Witnesses. - The Commission shall have power: chanrobles virtual law library

(1) To summon witnesses and require their attendance and testimony; to administer
oaths or affirmations to witnesses and other persons and to question witnesses. chanroblesvirtualawlibra ry chanrobles virtual law library

(2) To require the production of documents and other evidentiary material. chanroblesvirtualawlibrary chanrobles virtual law library

(3) To delegate the Prosecutors appointed by the convening authority the powers and
duties set forth in (1) and (2) above. chanroblesvirtualawlibrary chanrobles virtual law library

(4) To have evidence taken by a special commissioner appointed by the

commission. chanroblesvirtualawlibrary chanrobles virtual law library
(d) Evidence. chanroblesvirtualawlibrary chanrobles virtual law library

(1) The commission shall admit such evidence as in its opinion shall be of assistance in
proving or disproving the charge, or such as in the commission's opinion would have
probative value in the mind of a reasonable man. The commission shall apply the rules
of evidence and pleading set forth herein with the greatest liberality to achieve
expeditious procedure. In particular, and without limiting in any way the scope of the
foregoing general rules, the following evidence may be admitted: chanrobles virtual law library

(a) Any document, irrespective of its classification, which appears to the commission
to have been signed or issued by any officer, department, agency or member of the
armed forces of any Government without proof of the signature or of the issuance of
the document. chanroblesvirtualawlibrary chanrobles virtual law library

(b) Any report which appears to the commission to have been signed or issued by the
International Red Cross or a member of any medical service personnel, or by any
investigator or intelligence officer, or by any other person whom commission considers
as possessing knowledge of the matters contained in the report. chanroblesvirtualawlibra ry chanrobles virtual law library

(c) Affidavits, depositions or other signed statements. chanroblesvirtualawlibra ry chanrobles virtual law library

(d) Any diary, letter to other document, including sworn statements, appearing to the
commission to contain information relating to the charge. chanroblesvirtualawlibra ry chanrobles virtual law library

(e) A copy of any document or other secondary evidence of the contents, if the
original is not immediately available. chanroblesvirtualawlibrary chanrobles virtual law library

(2) The commission shall take judicial notice of facts of common knowledge, official
government documents of any nation, and the proceedings, records and findings of
military or other agencies of any of the United Nation. chanroblesvirtualawlibrary chanrobles virtual law library

(3) A commission may require the prosecution and the defense to make a preliminary
offer of proof whereupon the commission may rule in advance on the admissibility of
such evidence. chanroblesvirtualawlibrary chanrobles virtual law library

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

(5) All purposed confessions or statements of the accused shall bee admissible in
evidence without any showing that they were voluntarily made. If it is shown that such
confession or statement was procured by mean which the commission believe to have
been of such a character that may have caused the accused to make a false statement
the commission may strike out or disregard any such portion thereof as was so
procured. chanroblesvirtualawlibrary chanrobles virtual law library

(e) Trial Procedure. - The proceedings of each trial shall be conducted substantially as
follows unless modified by the commission to suit the particular circumstances: chanrobles virtual law library

(1) Each charge and specification shall be read or its substance stated in open
court.chanroblesvirtualawlibrary chanrobles virtual law library
(2) The presiding member shall ask each accused whether he pleads "Guilty" or "Not
guilty." chanrobles virtual law library

(3) The prosecution shall make its opening statement."(4) The presiding member may
at this or any other time require the prosecutor to state what evidence he proposes to
submit to the commission and the commission thereupon may rule upon the
admissibility of such evidence. chanroblesvirtualawlibra ry chanrobles virtual law library

(4) The witnesses and other evidence for the prosecution shall be heard or presented.
At the close of the case for the prosecution, the commission may, on motion of the
defense for a finding of not guilty, consider and rule whether he evidence before the
commission may defer action on any such motion and permit or require the
prosecution to reopen its case and produce any further available evidence. chanroblesvirtualawlibrary chanrobles virtual law library

(5) The defense may make an opening statement prior to presenting its case. The
presiding member may, at this any other time require the defense to state what
evidence it proposes to submit to the commission where upon the commission may
rule upon the admissibility of such evidence. chanroblesvirtualawlibra ry chanrobles virtual law library

(6) The witnesses and other evidence for the defense shall be heard or presented.
Thereafter, the prosecution and defense may introduce such evidence in rebuttal as
the commission may rule as being admissible. chanroblesvirtualawlibra ry chanrobles virtual law library

(7) The defense and thereafter the prosecution shall address the commission. chanroblesvirtualawlibrary chanrobles virtual law library

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

( f ) Record of Proceedings. - Each commission shall make a separate record of its

proceeding in the trial of each case brought before it. The record shall be prepared by
the prosecutor under the direction of the commission and submitted to the defense
counsel. The commission shall be responsible for its accuracy. Such record, certified by
the presiding member of the commission or his successor, shall be delivered to the
convening authority as soon as possible after the trial. chanroblesvirtualawlibra ry chanrobles virtual law library

(g) Sentence. - The commission may sentence an accused, upon conviction to death
by hanging or shooting, imprisonment for life or for any less term, fine or such other
punishment as the commission shall determine to be proper. chanroblesvirtualawlibra ry chanrobles virtual law library

(h) Approval of Sentence. - No. sentence of a military commission shall be carried into
effect until approved by the chief off Staff: Provided, That no sentence of death or life
imprisonment shall be carried into execution until confirmed by the President of the
Philippines. For the purpose of his review the Chief of Staff shall create a Board of
Review to be composed of not more than three officers none of whom shall be on duty
with or assigned to the Judge Advocate General's Office. The Chief of Staff shall have
authority to approve, mitigate remit in whole or in part, commute, suspend, reduce or
otherwise alter the sentence imposed, or (without prejudice to the accused) remand
the case for rehearing before a new military commission; but he shall not have
authority to increase the severity of the sentence. Except as herein otherwise provided
the judgment and sentence of a commission shall final and not subject to review by
any other tribunal. chanroblesvirtualawlibrary chanrobles virtual law library

VI. RULE-MAKING POWER chanrobles virtual law library

 Supplementary Rule and Forms. - Each commission shall adopt rules and forms to
govern its procedure, not inconsistent with the provision of this Order, or such rules
and forms as may be prescribed by the convening authority]or by the President of the
Philippines.
chanroblesvirtualawlibrary chanrobles virtual law library

VII. The amount of amount of seven hundred thousand pesos is hereby set aside out
of the appropriations for the Army of the Philippines for use by the National War
Crimes Office in the accomplishment of its mission as hereinabove set forth, and shall
be expended in accordance with the recommendation of the Judge Advocate General
as approved by the President. The buildings, fixtures, installations, messing, and
billeting equipment and other property herefore used by then Legal Section, Manila
Branch, of the General Headquarters, Supreme Commander for the Allied Power,
which will be turned over by the United States Army to the Philippines Government
through the Foreign Liquidation Commission and the Surplus Property Commission are
hereby specification reserved for use off the National War Crimes Office. chanroblesvirtualawlibra ry chanrobles virtual law library

Executive Order No. 64, dated August 16, 1945, is hereby repealed. chanroblesvirtualawlibra ry chanrobles virtual law library

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

MANUEL ROXAS
President of the Philippines

By the President: chanrobles virtual law library

EMILIO ABELLO
Chief of the Executive Office chanrobles virtual law library

EXECUTIVE LEGISLATION

Executive Order No. 68 is a veritable piece of Legislative measure, without the benefit of
congressional enactment. chanroblesvirtualawlibrary chanrobles virtual law library

The first question that is trust at our face spearheading a group of other no less important
question, is whether or not the President of the Philippines may exercise the legislative power
expressly vested in Congress by the Constitution. . chanroblesvirtualawlibrary chanrobles virtual law library

The Constitution provides:

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

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

There cannot be any question that the member of the Constitutional Convention were
believers in the tripartite system of government as originally enunciated by Aristotle, further
elaborated by Montequieu and accepted and practiced by modern democracies, especially the
United State of America, whose Constitution, after which ours has been patterned, has
allocated the three power of government - legislative, executive, judicial - to distinct and
separate department of government. chanroblesvirtualawlibra ry chanrobles virtual law library

Because the power vested by our Constitution to the several department of the government
are in the nature of grants, not recognition of pre-existing power, no department of
government may exercise any power or authority not expressly granted by the Constitution or
by law by virtue express authority of the Constitution. chanroblesvirtualawlibra ry chanrobles virtual law library

Executive Order No. 68 establishes a National War Crimes Office and the power to establish
government office is essentially legislative. chanroblesvirtualawlibra ry chanrobles virtual law library

The order provides that person accused as war criminals shall be tried by military
commissions. Whether such a provision is substantive or adjective, it is clearly legislative in
nature. It confers upon military commissions jurisdiction to try all persons charge with war
crimes. The power to define and allocate jurisdiction for the prosecution of person accused of
any crime is exclusively vested by the Constitution in Congress. . chanroblesvirtualawlibrary chanrobles virtual law library

It provides rules of procedure for the conduct of trial of trial. This provision on procedural
subject constitutes a usurpation of the rule-making power vested by Constitution in the
Supreme Court. chanroblesvirtualawlibrary chanrobles virtual law library

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

It appropriates the sum of P7000,000 for the expenses of the National War Crimes office
established by the said Executive Order No. 68. This constitutes another usurpation of
legislative power as the power to vote appropriations belongs to Congress. chanroblesvirtualawlibra ry chanrobles virtual law library

Executive Order No. 68., is, therefore, null and void, because, though it the President of the
Philippines usurped power expressly vested by the Constitution in Congress and in the
Supreme Court. chanroblesvirtualawlibrary chanrobles virtual law library

Challenged to show the constitutional or legal authority under which the President issued
Executive Order No. 68, respondent could not give any definite answer. They attempted,
however, to suggest that the President of the Philippines issued Executive Order No. 68 under
the emergency power granted to him by Commonwealth Act No. 600, as amended by
Commonwealth Act No. 620, and Commonwealth Act No. 671, both of which are transcribed
below:

COMMONWEALTH ACT NO. 600.

AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE

PRESIDENT TO PROMULGATE RULES AND REGULATION TO SAFEGUARD THE
INTEGRITY OF THE PHILIPPINES AND TO INSURE THE TRANQUILITY OF ITS
INHABITANTS.

Be it enacted by the National Assembly of the Philippines: chanrobles virtual law library

SECTION 1. The existence of war in many parts of the world has created a national
emergency which makes it necessary to invest the President of the Philippines with
extraordinary power in order to safeguard the integrity of the Philippines and to insure
the tranquility of its inhabitants, by suppressing espionage, lawlessness, and all
subversive to the people adequate shelter and clothing and sufficient food supply, and
by providing means for the speedy evacuation of the civilian population the
establishment of an air protective service and the organization of volunteer guard
units, and to adopt such other measures as he may deem necessary for the interest of
the public. To carry out this policy the President is authorized to promulgate rules and
regulations which shall have the force and effect off law until the date of adjournment
of the next regulation which shall have the force and effect of law until the date of
adjournment of the next regular session of the First Congress of the Philippines, unless
sooner amended or repealed by the Congress of Philippines. Such rules and regulation
may embrace the following objects: (1) to suppress espionage and other subversive
activities; (2) to require all able-bodied citizens (a) when not engaged in any lawful
occupation, to engage in farming or other productive activities or (b) to perform such
services as may bee necessary in the public interest; (3) to take over farm lands in
order to prevent or shortage of crops and hunger and destitution; (4) to take over
industrial establishment in order to insure adequate production, controlling wages and
profits therein; (5) to prohibit lockouts and strikes whenever necessary to prevent the
unwarranted suspension of work in productive enterprises or in the interest of national
security; (6) to regulate the normal hours of work for wage-earning and salaried
employees in industrial or business undertakings of all kinds; (7) to insure an even
distribution of labor among the productive enterprises; (8) to commandership and
other means of transportation in order to maintain, as much as possible, adequate and
continued transportation facilities; (9) to requisition and take over any public service
or enterprise for use or operation by the Government;(10) to regulate rents and the
prices of articles or commodities of prime necessity, both imported and locally
produced or manufactured; and (11) to prevent, locally or generally, scarcity,
monopolization, hoarding injurious speculations, and private control affecting the
supply, distribution and movement of foods, clothing, fuel, fertilizer, chemical,
building, material, implements, machinery, and equipment required in agriculture and
industry, with power to requisition these commodities subject to the payment of just
compensation. (As amended by Com. Act No. 620.) chanrobles virtual law library

SEC. 2. For the purpose of administering this Act and carrying out its objective, the
President may designate any officer, without additional compensation, or any
department, bureau, office, or instrumentality of the National Government. chanroblesvirtualawlibra ry chanrobles virtual law library

SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision
of this Act or of this Act or any of the rules or regulations promulgated by the
President under the authority of section one of this Act shall be punished by
imprisonment of not more than ten years or by a fine of not more than ten thousand
pesos, or by both. If such violation is committed by a firm or corporation, the
manager, managing director, or person charge with the management of the business
of such firm, or corporation shall be criminally responsible therefor. chanroblesvirtualawlibra ry chanrobles virtual law library

SEC. 4. The President shall report to the national Assembly within the first ten days
from the date of the opening of its next regular session whatever action has been
taken by him under the authority herein granted. chanroblesvirtualawlibrary chanrobles virtual law library

SEC. 5. To carry out the purposed of this Act, the President is authorized to spend
such amounts as may be necessary from the sum appropriated under section five
Commonwealth Act Numbered four hundred and ninety-eight. chanroblesvirtualawlibrary chanrobles virtual law library

SEC. 6. If any province of this Act shall be declared by any court of competent
jurisdiction to be unconstitutional and void, such declaration shall not invalidate the
remainder of this Act.chanroblesvirtualawlibrary chanrobles virtual law library
 SEC. 7. This Act shall take upon its approval. chanroblesvirtualawlibrary chanrobles virtual law library

Approved, August 19, 1940.

COMMONWEALTH ACT NO. 671

AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR

INVOLVING THE PHILIPPINES AND AUTHORIZING THE PRESIDENT TO
PROMULGATE RULE AND REGULATIONS TO MEET SUCH EMERGENCY.

Be it enacted the National Assembly of the Philippines; chanrobles virtual law library

SECTION 1. The existed of war between the United State and other countries of
Europe and Asia, which involves the Philippines, makes it necessary to invest the
President with extraordinary powers in order to meet the resulting emergency. chanroblesvirtualawlibra ry chanrobles virtual law library

SEC. 2. Pursuant to the provision of Article VI, section 16, of the Constitution, the
President is hereby authorized, during the existence of the emergency, to promulgate
such rules and regulation as he may deem necessary to carry out the national policy
declared in section 1 hereof. Accordingly, he is, among other things, empowered (a) to
transfer the seat of the Government or any of its subdivisions, branches, department,
offices, agencies or instrumentalities; (b) to reorganize the Government of the
Commonwealth including the determination of the order of precedence of the heads of
the Executive Department; (c) to create new subdivision, branches, departments,
offices, agency or instrumentalities of government and to abolish any of those already
existing; (d) to continue in force laws and appropriation which would lapse or
otherwise became inoperative, and to modify or suspend the operation or application
of those of an administrative character; (e) to imposed new taxes or to increase,
reduce, suspend, or abolish those in existence; (f) to raise funds through the issuance
of bonds or otherwise, and to authorize the expensive of the proceeds thereof; (g) to
authorize the National, provincial, city or municipal governments to incur in overdrafts
for purposes that he may approve; (h) to declare the suspension of the collection of
credits or the payment of debts; and (i) to exercise such other power as he may deem
necessary to enable the Government to fulfill its responsibilities and to maintain and
enforce its authority.
chanroblesvirtualawlibrary chanrobles virtual law library

SEC. 3. The President of the Philippines report thereto all the rules and regulation
promulgated by him under the power herein granted. chanroblesvirtualawlibrary chanrobles virtual law library

SEC. 4. This Act shall take effect upon its approval and the rules and regulations.
promulgated hereunder shall be in force and effect until the Congress of the
Philippines shall otherwise provide. chanroblesvirtualawlibra ry chanrobles virtual law library

Approved December 16, 1941.

The above Acts cannot validly be invoked, Executive Order No. 68 was issued on July 29,
1947. Said Acts had elapsed upon the liberation of the Philippines form the Japanese forces or,
at the latest, when the surrender of Japan was signed in Tokyo on September 2, 1945. chanroblesvirtualawlibra ry chanrobles virtual law library

When both Acts were enacted by the Second National Assembly, we happened to have taken
direct part in their consideration and passage, not only as one of the members of said
legislative body as chairman of the Committee on Third Reading population Known as the
"Little Senate." We are, therefore in a position to state that said measures were enacted by
the second national Assembly for the purpose of facing the emergency of impending war and
of the Pacific War that finally broke out with the attack of Pearl Harbor on December 7, 1941.
We approved said extraordinary measures, by which under the exceptional circumstances then
prevailing legislative power were delegated to the President of the Philippines, by virtue of the
following provisions of the Constitution:

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

It has never been the purpose of the National Assembly to extend the delegation beyond the
emergency created by the war as to extend it farther would be violative of the express
provision of the Constitution. We are of the opinion that there is no doubt on this question.;
but if there could still be any the same should be resolved in favor of the presumption that the
National Assembly did not intend to violate the fundamental law. chanroblesvirtualawlibrary chanrobles virtual law library

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

Should there be any disagreement between Congress and the President of the Philippines, a
possibility that no one can dispute the President of the Philippines may take advantage of he
long recess of Congress (two-thirds of every year ) to repeal and overrule legislative
enactments of Congress, and may set up a veritable system of dictatorship, absolutely
repugnant to the letter and spirit of the Constitution. chanroblesvirtualawlibra ry chanrobles virtual law library

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

The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulation
governing the trial of twelve criminal, issued by General Douglas Mac Arthur, Commander in
Chief of the United State Armed Forces in Western Pacific, for the purpose of trying among
other, General Yamashita and Homma. What we said in our concurring and dissenting opinion
to the decision promulgated on December 19, 1945, in the Yamashita case, L-129, and in our
concurring and dissenting opinion to the resolution of January 23, 1946 in disposing the
Homma case, L-244, are perfectly applicable to the offensive rules of evidence in Executive
Order No. 68. Said rules of evidence are repugnant to conscience as under them no justice can
expected.chanroblesvirtualawlibrary chanrobles virtual law library

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