ANASTACIO LAUREL, PETITIONER, VS. ERIBERTO MISA, RESPONDENT.

“In G. R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the
Court, acting on the petition for habeas corpus filed by Anastacio Laurel
and based on the theory that a Filipino citizen who adhered to the enemy giving
the latter aid and comfort during the Japanese occupation cannot be prosecuted
for the crime of treason defined and penalized by article 114 of the Revised
Penal Code, for the reason (1) that the sovereignty of the legitimate government
in the Philippines and, consequently, the correlative allegiance of Filipino
citizens thereto was then suspended; and (2) that there was a change of
sovereignty over these Islands upon the proclamation of the Philippine
Republic:

“(1) Considering that a citizen or subject owes, not a qualified and
temporary, but an absolute and permanent allegiance, which consists in the
obligation of fidelity and obedience to his government or sovereign; and that
this absolute and permanent allegiance should not be confused with the qualified
and temporary allegiance which a foreigner owes to the government or sovereign
of the territory wherein he resides, so long as he remains there, in return for
the protection he receives, and which consists in the obedience to the laws of
the government or sovereign. (Carlisle vs. United States, 21 Law. ed.,
429; Secretary of State Webster Report to the President of the United States in
the case of Thraser, 6 Web. Works, 526);

“Considering that the absolute and permanent allegiance of the inhabitants of
a territory occupied by the enemy to their legitimate government or sovereign is
not abrogated or severed by the enemy occupation, because the sovereignty of the
government or sovereign de jure is not transferred thereby to the
occupier, as we have held in the cases of Co Kim Cham vs. Valdez Tan Keh
and Dizon (75 Phil., 113) and of Peralta vs. Director of Prisons (75
Phil., 285), and if it is not transferred to the occupant it must necessarily
remain vested in the legitimate government; that the sovereignty vested in the
titular government (which is the supreme power which governs a body politic or
society which constitute the state) must be distinguished from the exercise of
the rights inherent thereto, and may be destroyed, or severed and transferred to
another, but it cannot be suspended because the existence of sovereignty cannot
be suspended without putting it out of existence or divesting the possessor
thereof at least during the so-called period of suspension; that what may be
suspended is the exercise of the rights of sovereignty with the control and
government of the territory occupied by the enemy passes temporarily to the
occupant; that the subsistence of the sovereignty of the legitimate government
in a territory occupied by the military forces of the enemy during the war,
‘although the former is in fact prevented from exercising the supremacy over
them’ is one of the ‘rules of international law of our times’; (II Oppenheim,
6th Lauterpacht ed., 1944, p. 482), recognized, by necessary implication, in
articles 23, 44, 45, and 52 of Hague Regulation; and that, as a corollary of the
conclusion that the sovereignty itself is not suspended and subsists during the
enemy occupation, the allegiance of the inhabitants to their legitimate
government or sovereign subsists, and therefore there is no such thing as
suspended allegiance, the basic theory on which the whole fabric of the
petitioner’s contention rests;

“Considering that the conclusion that the sovereignty of the United States
was suspended in Castine, set forth in the decision in the case of United States
vs. Rice, 4 Wheaton, 246, 253, decided in 1819, and quoted in our
decision in the cases of Co Kim Cham vs. Valdez Tan Keh and Dizon and
Peralta vs. Director of Prisons, supra, in connection with the
question, not of sovereignty, but of the existence of a government de
facto therein and its power to promulgate rules and laws in the occupied
territory, must have been based, either on the theory adopted subsequently in
the Hague Convention of 1907, that the military occupation of an enemy territory
does not transfer the sovereignty, or on the old theory that such occupation
transfers the sovereignty to the occupant; that, in the first case, the word
‘sovereignty’ used therein should be construed to mean the exercise of the
rights of sovereignty, because as this remains vested in the legitimate
government and is not transferred to the occupier, it cannot be suspended
without putting it out of existence or divesting said government thereof; and
that in the second case, that is, if the said conclusion or doctrine, refers to
the suspension of the sovereignty itself, it has become obsolete after the
adoption of the Hague Regulations in 1907, and therefore it can not be applied
to the present case;

“Considering that even adopting the words ‘temporary allegiance,’ repudiated
by Oppenheim and other publicists, as descriptive of the relations borne by the
inhabitants of the territory occupied by the enemy toward the military
government established over them, such allegiance may, at most, be considered
similar to the temporary allegiance which a foreigner owes to the government or
sovereign of the territory wherein he resides in return for the protection he
receives as above described, and does not do away with the absolute and
permanent allegiance which the citizen residing in a foreign country owes to his
own government or sovereign; that just as a citizen or subject of a government
or sovereign may be prosecuted for and convicted of treason committed in a
foreign country, in the same way an inhabitant of a territory occupied by the
military forces of the enemy may commit treason against his own legitimate
government or sovereign if he adheres to the enemies of the latter by giving
them aid and comfort; and that if the allegiance of a citizen or subject to his
government or sovereign is nothing more than obedience to its laws in return for
the protection he receives, it would necessarily follow that a citizen who
resides in a foreign country or state would, on one hand, ipso facto
acquire the citizenship thereof since he has to obey, with certain exceptions,
the laws of that country which enforce public order and regulate the social and
commercial life, in return for the protection he receives, and would, on the
other hand, lose his original citizenship, because he would not be bound to obey
most of the laws of his own government or sovereign, and would not receive,
while in a foreign country, the protection he is entitled to in his own;

“Considering that, as a corollary of the suspension of the exercise of the
rights of sovereignty by the legitimate government in the territory occupied by
the enemy military forces, because the authority of the legitimate power to
govern has passed into the hands of the occupant (Article 43, Hague
Regulations), the political laws which prescribe the reciprocal rights, duties
and obligation of government and citizens, are suspended or in abeyance during
military occupation (Co Kim Cham vs. Valdez Tan Keh and Dizon,
supra), for the only reason that as they exclusively bear relation to the
ousted legitimate government, they are inoperative or not applicable to the
government established by the occupant; that the crimes against national
security, such as treason and espionage, inciting to war, correspondence with
hostile country, flight to enemy’s country, as well as those against public
order, such as rebellion, sedition, and disloyalty, illegal possession of
firearms, which are of political complexion because they bear relation to, and
are penalized by our Revised Penal Code as crimes against the legitimate
government, are also suspended or become inapplicable as against the occupant,
because they can not be committed against the latter (Peralta vs.
Director of Prisons, supra); and that, while the offenses against public
order to be preserved by the legitimate government were inapplicable as offenses
against the invader for the reason above stated, unless adopted by him, were
also inoperative as against the ousted government for the latter was not
responsible for the preservation of the public order in the occupied territory,
yet article 114 of the said Revised Penal Code, was applicable to treason
committed against the national security of the legitimate government, because
the inhabitants of the occupied territory were still bound by their allegiance
to the latter during” the enemy occupation;

“Considering that, although the military occupant is enjoined to respect or
continue in force, unless absolutely prevented by the circumstances, those laws
that enforce public order and regulate the social and commercial life of the
country, he has, nevertheless, all the powers of a de facto government
and may, at his pleasure, either change the existing laws or make new ones when
the exigencies of the military service demand such action, that is, when it is
necessary for the occupier to do so for the control of the country and the
protection of his army, subject to the restrictions or limitations imposed by
the Hague Regulations, the usages established by civilized nations, the laws of
humanity and the requirements of public conscience (Peralta vs. Director
of Prisons, supra; 1940 United States Rules of Land Warfare 76, 77); and
that, consequently, all acts of the military occupant dictated within these
limitations are obligatory upon the inhabitants of the territory, who are bound
to obey them, and the laws of the legitimate government which have not been
adopted, as well and those which, though continued in force, are in conflict
with such laws and orders of the occupier, shall be considered as suspended or
not in force and binding upon said inhabitants;

“Considering that, since the preservation of the allegiance or the obligation
of fidelity and obedience of a citizen or subject to his government or sovereign
does not demand from him a positive action, but only passive attitude or
forbearance from adhering to the enemy by giving the latter aid and comfort, the
occupant has no power, as a corollary of the preceding consideration, to repeal
or suspend the operation of the law of treason, essential for the preservation
of the allegiance owed by the inhabitants to their legitimate government, or
compel them to adhere and give aid and comfort to him; because it is evident
that such action is not demanded by the exigencies of the military service or
not necessary for the control of the inhabitants and the safety and protection
of his army, and because it is tantamount to practically transfer temporarily to
the occupant their allegiance to the titular government or sovereign; and that,
therefore, if an inhabitant of the occupied territory were compelled illegally
by the military occupant, through force, threat or intimidation, to give him aid
and comfort, the former may lawfully resist and die if necessary as a hero, or
submit thereto without becoming a traitor;

“Considering that adoption of the petitioner’s theory of suspended allegiance
would lead to disastrous consequences for small and weak nations or states, and
would be repugnant to the laws of humanity and requirements of public
conscience, for it would allow invaders to legally recruit or enlist the
Quisling inhabitants of the occupied territory to fight against their own
government without the latter incurring the risk of being prosecuted for
treason, and even compel those who are not to aid them in their military
operation against the resisting enemy forces in order to completely subdue and
conquer the whole nation, and thus deprive them all of their own independence or
sovereignty—such theory would sanction the action of invaders in forcing the
people of a free and sovereign country to be a party in the nefarious task of
depriving themselves of their own freedom and independence and repressing the
exercise by them of their own sovereignty; in other words, to commit a political
suicide;

“(2) Considering that the crime of treason against the government of the
Philippines defined and penalized in article 114 of the Penal Code, though
originally intended to be a crime against said government as then organized by
authority of the sovereign people of the United States, exercised through their
authorized representative, the Congress and the President of the United States,
was made, upon the establishment of the Commonwealth Government in 1935, a crime
against the Government of the Philippines established by authority of the people
of the Philippines, in whom the sovereignty resides according to section 1,
Article II, of the Constitution of the Philippines, by virtue of the provision
of section 2, Article XVI thereof, which provides that ‘All laws of the
Philippine Islands * * * shall remain operative, unless inconsistent with this
Constitution * * * and all references in such laws to the Government or
officials of the Philippine Islands, shall be construed, in so far as
applicable, to refer to the Government and corresponding officials under this
Constitution;’

“Considering that the Commonwealth of the Philippines was a sovereign
government, though not absolute but subject to certain limitations imposed in
the Independence Act and incorporated as Ordinance appended to our Constitution,
was recognized not only by the Legislative Department or Congress of the United
States in approving the Independence Law above quoted and the Constitution of
the Philippines, which contains the declaration that ‘Sovereignty resides in the
people and all government authority emanates from them’ (section 1, Article II),
but also by the Executive Department of the United States; that the late
President Roosevelt in one of his messages to Congress said, among others, ‘As I
stated on August 12, 1943, the United States in practice regards the Philippines
as having now the status as a government of other independent nations—in fact
all the attributes of complete and respected nationhood’ (Congressional Record,
Vol. 29, part 6, page 8173); and that it is a principle upheld by the Supreme
Court of the United States in many cases, among them in the case of Jones
vs. United States (137 U. S., 202; 34 Law. ed., 691, 696) that the
question of sovereignty is ‘a purely political question, the determination of
which by the legislative and executive departments of any government
conclusively binds the judges, as well as all ofher officers, citizens and
subjects of the country.’

“Considering that section I (1) of the Ordinance appended to the Constitution
which provides that pending the final and complete withdrawal of the sovereignty
of the United States ‘All citizens of the Philippines shall owe allegiance to
the United States’, was one of the few limitations of the sovereignty of the
Filipino people retained by the United States, but these limitations do not do
away or are not inconsistent with said sovereignty, in the same way that the
people of each State of the Union preserves its own sovereignty although limited
by that of the United States conferred upon the latter by the States; that just
as to reason may be committed against the Federal as well as against the State
Government, in the same way treason may have been committed during the Japanese
occupation against the sovereignty of the United States as well as against the
sovereignty of the Philippine Commonwealth; and that the change of our form of
government from Commonwealth to Republic does not affect the prosecution of
those charged with the crime of treason committed during the Commonwealth,
because it is an offense against the same government and the same sovereign
people, for Article XVIII of our Constitution provides that ‘The government
established by this Constitution shall be known as the Commonwealth of the
Philippines. Upon the final and complete withdrawal of the sovereignty of the
United States and the proclamation of Philippine independence, the Commonwealth
of the Philippines shall thenceforth be known as the Republic of the
Philippines’;

“This Court resolves, without prejudice to write later on a
more extended opinion, to deny the petitioner’s petition, as it is hereby
denied, for the reasons above set forth and for others to be stated in the said
opinion, without prejudice to concurring opinion therein, if any. Messrs.
Justices Paras and Hontiveros dissent in a separate opinion. Mr. Justice
Perfecto concurs in a separate opinion.”

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PERFECTO, J.:

Treason is a war crime. It is not an all-time offense. It cannot be committed
in peace time. While there is peace, there are no traitors. Treason may be
incubated when peace reigns. Treasonable acts may actually be perpetrated during
peace, but there are no traitors until war has started.

As treason is basically a war crime, it is punished by the state as a measure
of self-defense and self-preservation. The law of treason is an emergency
measure. It remains dormant until the emergency arises. But as soon as war
starts, it is relentlessly put into effect. Any lukewarm attitude in its
enforcement will only be consistent with national harakiri. All war
efforts would be of no avail if they should be allowed to be sabotaged by fifth
columnists, by citizens who have sold their country out to the enemy, or any
other kind of traitors, and this would certainly be the case if the law cannot
be enforced under the theory of suspension.

Petitioner’s thesis that allegiance to our government was suspended during
enemy occupation is advanced in support of the proposition that, since
allegiance is identical with obedience to law, during the enemy occupation, the
laws of the Commonwealth were suspended. Article 114 of the Revised Penal Code,
the law punishing treason, under the theory, was one of the laws obedience to
which was also suspended.

Allegiance has been defined as the obligation for fidelity and obedience
which the individual owes to his government or his sovereign in return for the
protection which he receives.

“‘Allegiance,’ as the term is generally used, means fealty or fidelity to the
government of which the person is either a citizen or subject. Murray vs.
The Charming Betsy, 6 U. S. (2 Cranch), 64, 120; 2 Law. ed., 208.

“‘Allegiance’ was said by Mr. Justice Story to be ‘nothing more than the tie
or duty of obedience of a subject to the sovereign, under whose protection he
is.’ United States vs. Wong Kim Ark, 18 S. Ct., 456, 461; 169 U. S., 649;
42 Law. ed., 890.

“Allegiance is that duty which is due from every citizen to the state, a
political duty binding on him who enjoys the protection of the Commonwealth, to
render service and fealty to the federal government. It is that duty which is
reciprocal to the right of protection, arising from the political relations
between the government and the citizen. Wallace vs. Harmstad, 44 Pa. (8
Wright), 492, 501.

“By ‘allegiance’ is meant the obligation to fidelity and obedience which the
individual owes to the government under which he lives, or to his sovereign, in
return for the protection which he receives. It may be an absolute and permanent
obligation, or it may be a qualified and temporary one. A citizen or subject
owes an absolute and permanent allegiance to his government or sovereign, or at
least until, by some open and distinct act, he renonunces it and becomes a
citizen or subject of another government or sovereign, and an alien while
domiciled in a country owes it a temporary allegiance, which is continuous
during his residence. Carlisle vs. United States, 83 U. S. (16 Wall.),
147, 154; 21 Law ed., 426.

“‘Allegiance,’ as defined by Blackstone, ‘is the tie or ligament which binds
the subject to the King, in return for that protection which the King affords
the subject. Allegiance, both expressed and implied, is of two sorts, the one
natural, the other local, the former being perpetual, the latter temporary.
Natural allegiance is such as is due from all men born within the King’s
dominions immediately upon their birth, for immediately upon their birth they
are under the King’s protection. Natural allegiance is perpetual, and for this
reason, evidently founded on the nature of government. Allegiance is a debt due
from the subject upon an implied contract with the prince that so long as the
one affords protection the other will demean himself faithfully. Natural-born
subjects have a great variety of rights which they acquire by being born within
the King’s liegance, which can never be forfeited but by their own misbehaviour;
but the rights of aliens are much more circumscribed, being acquired only by
residence, and lost whenever they remove. If an alien could acquire a permanent
property in lands, he must owe an allegiance equally permanent to the King,
which would probably be inconsistent with that which he owes his natural liege
lord; besides, that thereby the nation might, in time, be subject to foreign
influence and feel many other inconveniences.’ Indians within the state are not
aliens, but citizens owing allegiance to the government of a state, for they
receive protection from the government and are subject to its laws. They are
born in allegiance to the government of the state. Jackson vs. Goodell,
20 Johns., 188, 911.” (3 Words and Phrases, Permanent ed., pp. 226-227.)

“Allegiance.—Fealty or fidelity to the government of which the person
is either a citizen or subject; the duty which is due from every citizen to the
state; a political duty, binding on him who enjoys the protection of the
commonwealth, to render service and fealty to the federal government; the
obligation of fidelity and obedience which the individual owes to the government
or to the sovereign under which he lives in return for the protection he
receives; that duty which is reciprocal to the right of protection, arising from
the political relations between the government and the citizen.

“Classification.—Allegiance is of four kinds, namely: (1) Natural
allegiance—that which arises by nature and birth; (2) acquired allegiance—that
arising through some circumstance or act other than birth, namely, by denization
or naturalization; (3) local allegiance—that arising from residence simply
within the country, for however short a time; and (4) legal allegiance—that
arising from oath, taken usually at the town or leet, for, by the common law,
the oath of allegiance might be tendered to every one upon attaining the age of
twelve years.” (3 C. J. S., p. 885.)

“Allegiance.—The obligation of fidelity and obedience which the
individual owes to the government under which he lives, or to his sovereign in
return for the protection he receives. 15 R. C. L., 140.” (Ballentine, Law
Dictionary, p. 68.)

“‘Allegiance,’ as its etymology indicates, is the name for the tie which
binds the citizen to his state—the obligation of obedience and support which he
owes to it. The state is the political person to whom this liege fealty is due.
Its substance is the aggregate of persons owing this allegiance. The machinery
through which it operates is its government. The persons who operate this
machinery constitute its magistracy. The rules of conduct which the state utters
or enforces are its law, and manifest its will. This will, viewed as legally
supreme, is its sovereignty.” (W. W. Willoughby, Citizenship and Allegiance in
Constitutional and International Law, 1 American Journal of International Law,
p. 915.)

“The obligations flowing from the relation of a state and its nationals are
reciprocal in character. This principle had been aptly stated by the Supreme
Court of the United States in its opinion in the case of Luria vs. United
States:

“Citizenship is membership in a political society and implies a duty of
allegiance on the part of the member and a duty of protection on the part of the
society. These are reciprocal obligations, one being a compensation for the
other.” (3 Hackworth, Digest of International Law, 1942 ed., p. 6.)

“Allegiance.—The tie which binds the citizen to the government, in
return for the protection which the government affords him. The duty which the
subject owes to the sovereign, correlative with the protection received.

“It is a comparatively modern corruption of ligeance (ligeantia),
which is derived from liege (ligius), meaning absolute or unqualified. It
signified originally liege fealty, i. e., absolute and unqualified
fealty. 18 L. Q. Rev., 47.

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“Allegiance may be an absolute and permanent obligation, or it may be a
qualified and temporary one; the citizen or subject owes the former to his
government or sovereign, until by some act he distinctly renounces it, whilst
the alien domiciled in the country owes a temporary and local allegiance
continuing during such residence. (Carlisle vs. United States, 16 Wall.
[U. S.], 154; 21 Law. ed., 426.” (1 Bouvier’s Law Dictionary, p.
179.)

The above quotations express ideas that do not fit exactly into the
Philippine pattern in view of the revolutionary insertion in our Constitution of
the fundamental principle that “sovereignty resides in the people and all
government authority emanates from them.” (Section 1, Article II.) The
authorities above quoted, judges and juridical publicists define allegiance with
the idea that sovereignty resides somewhere else, on symbols or subjects other
than the people themselves. Although it is possible that they had already
discovered that the people and only the people are the true sovereign, their
minds were not yet free from the shackles of the tradition that the powers of
sovereignty have been exercised by princes and monarchs, by sultans and
emperors, by absolute and tyrannical rules whose ideology was best expressed in
the famous words of one of the kings of France: “L’etat c’est moi,” or such
other persons or group of persons posing as the government, as an entity
different and in opposition to the people themselves. Although domocracy has
been known ever since old Greece, and modern democracies function on the
assumption that sovereignty resides in the people, nowhere is such principle
more imperative than in the pronouncement embodied in the fundamental law of our
people.

To those who think that sovereignty is an attribute of government, and not of
the people, there may be some plausibility in the proposition that sovereignty
was suspended during the enemy occupation, with the consequence that allegiance
must also have been suspended, because our government stopped to function in the
country. But the idea cannot have any place under our Constitution. If
sovereignty is an essential attribute of our people, according to the basic
philosophy of Philippine democracy, it could not have been suspended during the
enemy occupation. Sovereignty is the very life of our people, and there is no
such thing as “suspended life.” There is no possible middle situation between
life and death. Sovereignty is the very essence of the personality and existence
of our people. Can anyone imagine the possibility of “suspended personality” or
“suspended existence” of a people? In no time during enemy occupation have the
Filipino people ceased to be what they are.

The idea of suspended sovereignty or suspended allegiance is incompatible
with our Constitution.

There is similarity in characteristics between allegiance to the sovereign
and a wife’s loyalty to her husband. Because some external and insurmountable
force precludes the husband from exercising his marital powers, functions, and
duties, and the wife is thereby deprived of the benefits of his protection, may
the wife invoke the theory of suspended loyalty and may she freely share her bed
with the assailant of their home? After giving aid and comfort to the assailant
and allowing him to enjoy her charms during the former’s stay in the invaded
home, may the wife allege as defense for her adultery the principle of suspended
conjugal fidelity?

Petitioner’s thesis on change of sovereignty at the advent of independence on
July 4, 1946, is unacceptable. We have already decided in Brodett vs. De
la Rosa and Vda. de Escaler (p. 752, ante) that the Constitution of the Republic
is the same as that of the Commonwealth. The advent of independence had the
effect of changing the name of our Government and the withdrawal by the United
States of her power to exercise functions of sovereignty in the Philippines.
Such facts did not change the sovereignty of the Filipino people. That
sovereignty, following our constitutional philosophy, has existed ever since our
people began to exist. It has been recognized by the United States of America,
at least since 1935, when President Roosevelt approved our Constitution. By such
act, President Roosevelt, as spokesman of the American people, accepted and
recognized the principle that sovereignty resides in the people that is, that
Philippine sovereignty resides in the Filipino people.

The same sovereignty had been internationally recognized long before the
proclamation of independence on July 4, 1946. Since the early part of the
Pacific war, President Quezon had been sitting as representative of a sovereign
people in the Allied War Council, and in June, 1945, the same Filipino people
took part—outstanding and brilliant, it may be added—in the drafting and
adoption of the charter of the United Nations, the unmistakable forerunner of
the future democratic federal constitution of the world government envisioned by
all those who adhere to the principle of unity of all mankind, the early
realization of which is anxiously desired by all who want to be spared the
sufferings, misery and disaster of another war.

Under our Constitution, the power to suspend laws is of legislative nature
and is lodged in Congress. Sometimes it is delegated to the Chief Executive,
such as the power granted by the Election Code to the President to suspend the
election in certain districts and areas for strong reasons, such as when there
is rebellion, or a public calamity, but it has never been exercised by
tribunals. The Supreme Court has the power to declare null and void all laws
violative of the Constitution, but it has no power, authority, or jurisdiction
to suspend or declare suspended any valid law, such as the one on treason which
petitioner wants to be included among the laws of the Commonwealth which, by his
theory of suspended allegiance and suspended sovereignty, he claims have been
suspended during the Japanese occupation.

Suppose President Quezon and his government, instead of going from Corregidor
to Australia, and later to Washington, had fled to the mountains of Luzon, and a
group of Filipino renegades should have killed them to serve the interests of
the Japanese imperial forces. By petitioner’s theory, those renegades cannot be
prosecuted for treason or for rebellion or sedition, as the laws punishing them
were suspended. Such absurd result betrays the untenability of the theory.

“The defense of the State is a prime duty of Government, and in the
fulfillment of that duty all citizens may be required by law to render personal,
military or civil service.” Thus, section 2 of Article II of the Constitution
provides: That duty of defense becomes more imperative in time of war and when
the country is invaded by an aggressor nation. How can it be fulfilled if the
allegiance of the citizens to the sovereign people is suspended during enemy
occupation? The framers of the Constitution surely did not entertain even for a
moment the absurdity that when the allegiance of the citizens to the sovereign
people is more needed in the defense of the survival of the state, the same
should be suspended, and that upon such suspension those who may be required to
render personal, military or civil service may claim exemption from the
indispensable duty of serving their country in distress.

Petitioner advances the theory that protection is the consideration of
allegiance. He argues that the Commonwealth Government having been incapacitated
during enemy occupation to protect the citizens, the latter were relieved of
their allegiance to said government. The proposition is untenable. Allegiance to
the sovereign is an indispensable bond for the existence of society. If that
bond is dissolved, society has to disintegrate. Whether or not the existence of
the latter is the result of the social compact mentioned by Roseau, there can be
no question that organized society would be dissolved if it is not united by the
cohesive power of the citizen’s allegiance. Of course, the citizens are entitled
to the protection of their government, but whether or not that government
fulfills that duty, is immaterial to the need of maintaining the loyalty and
fidelity of allegiance, in the same way that the physical forces of attraction
should be kept unhampered if the life of an individual should continue,
irrespective of the ability or inability of his mind to choose the most
effective measures of personal protection.

After declaring that all legislative, executive, and judicial processes had
during and under the Japanese regime, whether executed by the Japanese
themselves or by Filipino officers of the puppet government they had set up, are
null and void, as we have done in our opinions in Co Kim Cham vs. Valdez
Tan Keh and Dizon (75 Phil., 113), in Peralta vs. Director of Prison (75,
Phil., 285), and in several other cases where the same question has been
mentioned, we cannot consistently accept petitioner’s theory.

If all laws or legislative acts of the enemy during the occupation were null
and void, and as we cannot imagine the existence of organized society, such as
the one constituted by the Filipino people, without laws governing it,
necessarily we have to conclude that the laws of the Commonwealth were the ones
in effect during the occupation and the only ones that could claim obedience
from our citizens.

Petitioner would want us to accept the thesis that during the occupation we
owed allegiance to the enemy. To give way to that paradoxical and disconcerting
allegiance, it is suggested that we accept that our allegiance to our legitimate
government was suspended. Petitioner’s proposition has to fall by its own
weight, because of its glaring absurdities. Allegiance, like its synonyms,
loyalty and fidelity, is based on feelings of attraction, love, sympathy,
admiration, respect, veneration, gratitude, amity, understanding, friendliness.
These are the feelings or some of the feelings that bind us to our own people,
and are the natural roots of the duty of allegiance we owe them. The enemy only
provokes repelling and repulsive feelings—hate, anger, vexation, chagrin,
mortification, resentment, contempt, spitef ulness. The natural incompatibility
of political, social and ethical ideologies, between our people and the
Japanese, making impossible the existence of any feeling of attraction between
them, aside from the initial fact that the Japanese invaded our country as our
enemy, was aggravated by the morbid complexities of haughtiness, braggadocio and
beastly brutality of the Nippon soldiers and officers in their dealings with
even the most inoffensive of our citizens.

Giving bread to our enemy, and, after slapping one side of our face, offer
him the other to be further slapped, may appear to be divinely charitable, but
to make them a reality, it is necessary to change human nature. Political
actions, legal rules, and judicial decisions deal with human relations, taking
man as he is, not as he should be. To love the enemy is not natural. As long as
human psychology remains as it is, the enemy shall always be hated. Is it
possible to conceive an allegiance based on hatred?

The Japanese, having waged against us an illegal war condemned by prevailing
principles of international law, could not have established in our country any
government that can be legally recognized as de facto. They came as
bandits and ruffians, and it is inconceivable that banditry and ruffianism can
claim any duty of allegiance—even a temporary one—from a decent people.

One of the implications of petitioner’s theory, as intimated somewhere, is
that the citizens, in case of invasion, are free to do anything not forbidden by
the Hague Conventions. Anybody will notice immediately that the result will be
the doom of small nations and peoples, by whetting the covetousness of strong
powers prone on imperialistic practices. In the imminence of invasion,
weak-hearted soldiers of the smaller nations will readily throw away their arms
to rally behind the paladium of the invaders.

Two of the three great departments of our Government have already rejected
petitioner’s theory since September 25, 1945, the day when Commonwealth Act No.
682 took effect. By said act, creating the People’s Court to try and decide all
cases of crime against national security “committed between December 8, 1941 and
September 2, 1945,” (section 2), the legislative and executive departments have
jointly declared that during the period above mentioned, including the time of
Japanese occupation, all laws punishing crimes against national security,
including article 114 of the Revised Penal Code, punishing treason, had remained
in full effect and should be enforced.

That no one raised a voice in protest against the enactment of said act and
that no one, at the time the act was being considered by the Senate and the
House of Representatives, ever dared to expose the uselessness of creating a
People’s Court to try crimes which, as claimed by petitioner, could not have
been committed as the laws punishing them have been suspended, is a historical
fact of which the Supreme Court may take judicial notice. This fact shows
universal and unanimous agreement of our people that the laws of the
Commonwealth were not suspended and that the theory of suspended allegiance is
just an afterthought provoked by a desperate effort to help quash the pending
treason cases at any cost.

Among the arguments adduced in favor of petitioner’s theory is that it is
based on generally accepted principles of international law, although this
argument becomes futile by petitioner’s admission that the theory is
advantageous to strong powers but harmful to small and weak nations, thus
hinting that the latter cannot accept it by heart. Suppose we accept at face
value the premise that the theories, urged by petitioner, of suspended
allegiance and suspended sovereignty are based on generally accepted principles
of international law. As the latter forms part of our laws by virtue of the
provisions of section 3 of Article II of the Constitution, it seems that there
is no alternative but to accept the theory. But the theory has the effect of
suspending the laws, especially those political in nature. There is no law more
political in nature than the Constitution of the Philippines. The result is an
inverted reproduction of the Greek myth of Saturn devouring his own children.
Here, under petitioner’s theory, the offspring devours its parent.

Can we conceive of an instance in which tlje Constitution was suspended even
for a moment?

There is conclusive evidence that the legislature, as policy-determining
agency of government, even since the Pacific war started on December 7, 1941,
intimated that it would not accept the idea that our laws should be suspended
during enemy occupation. It must be remembered that in the middle of December,
1941, when Manila and other parts of the archipelago were under constant bombing
by Japanese aircraft and enemy forces had already set foot somewhere in the
Philippines, the Second National Assembly passed Commonwealth Act No. 671, which
came into effect on December 16, 1941. When we approved said act, we started
from the premise that all our laws shall continue in effect during the
emergency, and in said act we even went to the extent of authorizing the
President “to continue in force laws and appropriations which would lapse or
otherwise become inoperative,” (section 2, [d]), and also to “promulgate
such rules and regulations as he may deem necessary to carry out the national
policy,” (section 2), that “the existence of war between the United States and
other countries of Europe and Asia, which involves the Philippines, makes it
necessary to invest the President with extraordinary powers in order to meet the
resulting emergency.” (Section 1.) To give more emphasis to the intimation, we
provided that the rules and regulations provided “shall be in force and effect
until the Congress of the Philippines shall otherwise provide,” foreseeing the
possibility that Congress may not meet as scheduled as a result of the
emergency, including invasion and occupation by the enemy. Everybody was then
convinced that we did not have available the necessary means of repelling
effectively the enemy invasion.

Maybe it is not out of place to consider that
the acceptance of petitioner’s theory of suspended allegiance will cause a great
injustice to those who, although innocent, are now under indictment for treason
and other crimes involving disloyalty to their country, because their cases will
be dismissed without the opportunity for them to revindicate themselves. Having
been acquitted upon a mere legal technicality which appears to us to be wrong,
history will indiscriminately classify them with the other accused who were
really traitors to their country. Our conscience revolts against the idea of
allowing the innocent ones to go down in the memory of future generations with
the infamous stigma of having betrayed their own people. They should not be
deprived of the opportunity to show through the due process of law that they are
free from all blame and that, if they were really patriots, they acted as such
during the critical period of test.

---

HILADO, J.:

I concur in the result reached in the majority opinion to the effect that
during the so-called Japanese occupation of tfie Philippines (which was nothing
more than the occupation of Manila and certain other specific regions of the
Islands which constituted the minor area of the Archipelago) the allegiance of
the citizens of this country to their legitimate government and to the United
States was not suspended, as well as the ruling that during the same period
there was no change of sovereignty here; but my reasons are different and I
proceed to set them forth:

I. SUSPENDED ALLEGIANCE

(a) Before the horror and atrocities of World War I, which were
multiplied more than a hundred-fold in World War II, the nations had evolved
certain rules and principles which came to be known as International Law,
governing their conduct with each other and toward their respective citizens and
inhabitants, in the armed forces or in civilian life, in time of peace or in
time of war. During the ages which preceded that first world conflict the
civilized governments ha.d no realization of the potential excesses of which
“men’s inhumanity to man” could be capable. Up to that time war was, at least
under certain conditions, considered as sufficiently justified, and the nations
had not on that account, proscribed nor renounced it as an instrument of
national policy, or as a means of settling international disputes. It is not for
us now to dwell upon the reasons accounting for this historical fact. Suffice it
to recognize its existence in history.

But when in World War I civilized humanity saw that war could be, as it
actually was, employed for entirely different reasons and from entirely
different motives, compared to previous wars, and the instruments and methods of
warfare had been so materially changed as not only to involve the contending
armed forces on well defined battlefields or areas, on land, in the sea, and in
the air, but to spread death and destruction to the innocent civilian
populations and to their properties, not only in the countries engaged in the
conflict but also in neutral ones, no less than 61 civilized nations and
governments, among them Japan, had to formulate and solemnly subscribe to the
now famous Briand-Kellogg Pact in the year 1928. As said by Justice Jackson of
the United States Supreme Court, as chief counsel for the United States in the
prosecution of “Axis war criminals,” in his report to President Truman of June
7, 1945:

“International law is not capable of development by legislation, for there is
no continuously sitting international legislature. Innovations and revisions in
international law are brought about by the action of governments designed to
meet a change in circumstances. It grows, as did the common law, through
decisions reached from time to time in adopting settled principles to new
situations.

*                   *                   *                   *   
               *                   *                   *

“After the shock to civilization of the war of 1914-1918, however, a marked
reversion to the earlier and sounder doctrines of international law took place.
By the time the Nazis came to power it was thoroughly established that
launching: an aggressive war or the institution of war by treachery was illegal
and that the defense of legitimate warfare was no longer available to those who
engaged in such an enterprise. It is high time that we act on the juridical
principle that aggressive war-making is illegal and criminal.

“The re-establishment of the principle of justifiable war is traceable in
many steps. One of the most significant is the Briand-Kellogg Pact of 1928 by
which Germany, Italy, and Japan, in common with the United States and
practically all the nations of the world, renounced war as an instrument of
national policy, bound themselves to seek the settlement of disputes only by
pacific means, and condemned recourse to war for the solution of international
controversies.

“Unless this Pact altered the legal status of wars of aggression, it
has no meaning at all and comes close to being an act of deception. In 1932 Mr.
Henry L. Stimson, as United States Secretary of State, gave voice to the
American concept of its effect. He said, ‘war between nations was renounced by
the signatories of the Briand-Kellogg Treaty. This means that it has become
illegal throughout practically the entire world It is no longer to be
the source and subject of rights. It is no longer to be the principle around
which the duties, the conduct, and the rights of nations revolve. It is an
illegal thing * * *. By that very act we have made obsolete many legal
precedents and have given the legal profession the task of re-examining many of
its Codes and treaties.’

“This Pact constitutes only one reversal of the viewpoint that all war
is legal and has brought international law into harmony with the common sense of
mankind—that unjustifiable war is a crime.

“Without attempting an exhaustive catalogue, we may mention the Geneva
Protocol of 1924 for the Pacific Settlement of International Disputes, signed by
the representatives of forty-eight governments, which declared that ‘a war of
aggression constitutes * * * an international crime.’

“The Eighth Assembly of the League of Nations in 1927, on unanimous
resolution of the representatives of forty-eight member-nations, including
Germany, declared that a war of aggression constitutes an international
crime. At the Sixth Pan-American Conference of 1928, the twenty-one American
Republics unanimously adopted a resolution stating that ‘war of aggression
constitutes an international crime against the human species.’

*                   *                   *                   *   
               *                   *                   *

“We therefore propose to charge that a war of aggression is a crime,
and that modern international law has abolished the defense that those
who incite or wage it are engaged in legitimate business. Thus may the forces of
the law be mobilized on the side of peace.” (“U. S. A.—An American Review,”
published by the United States Office of War Information, Vol. 2, No. 10;
italics supplied.)

When Justice Jackson speaks of “a marked reversion to the earlier and sounder
doctrines of international law” and “the re-establishment of the principle of
justifiable war,” he has in mind no other than “the doctrine taught by Grotius,
the father of international law, that there is a distinction between the just
and the unjust war—the war of defense and the war of aggression” to which he
alludes in an earlier paragraph of the same report.

In the paragraph of said report immediately preceding the one last above
mentioned Justice Jackson says that “international law as taught in the 19th and
the early part of the 20th century generally declared that war-making was not
illegal and no crime at law.” But, as he says in one of the paragraphs
hereinabove quoted from that report, the Briand-Kellogg Pact constitutes a
reversal of the viewpoint that all war is legal and has brought international
law into harmony with the common sense of mankind—that unjustifiable war is a
crime. Then he mentions as other reversals of the same viewpoint, the Geneva
Protocol of 1924 for the Pacific Settlement of International Disputes, declaring
that a war of aggression constitutes an international crime; the 8th assembly of
the League of Nations in 1927, declaring that a war of aggression constitutes an
international crime; and the 6th Pan-American Conference of 1928, which
unanimously adopted a resolution stating that war of aggression constitutes an
international crime against the human species: which enumeration, he says, is
not an attempt at an exhaustive catalogue.

It is not disputed that the war started by Japan in the Pacific, first,
against the United States’, and later, in rapid succession, against other allied
nations, was a war of aggression and utterly unjustifiable. More aggressive
still, and more unjustifiable, as admitted on all sides, was its attack against
the Philippines- and its consequent invasion and occupation of certain areas
thereof.

Some of the rules and principles of international law which have been cited
for petitioner herein in support of his theory of suspended allegiance, have
been evolved and accepted during those periods of the history of nations when
all war was considered legal, as stated by Justice Jackson, and the others have
reference to military occupation in the course of really justifiable war.

Japan in subscribing the Briand-Kellogg Pact thirteen years before she
started the aggressive war which threw the entire Pacific area into a seething
cauldron from the last month of 1941 to the first week of September, 1945,
expressly agreed to outlaw, proscribe and renounce war as an instrument of
national policy, and bound herself to seek the settlement of her disputes with
other nations only by pacific means. Thus she expressly gave her consent to that
modification of the then existing rules and principles of international law
governing the matter. With that modification, all the signatories to the pact
necessarily accepted and bound themselves to abide by all its implications,
among them the outlawing, proscription and renunciation of military occupation
of another nation’s territory in the course of a war thus outlawed, proscribed
and renounced. This is only one way of saying that the rules and principles of
international law therefore existing on the subject of military occupation were
automatically abrogated and rendered ineffective in all future cases of war
coming under the ban and condemnation of the pact.

If an unjustifiable war is a crime; if a war of aggression constitutes an
international crime; if such a war is an international crime against the human
species: a nation which occupies a foreign territory in the course of such a war
cannot possibly, under any principle of natural or positive law, acquire or
possess any legitimate power or right growing out or incident to such
occupation. Concretely, Japan in criminally invading the Philippines and
occupying certain portions1 of its territory during the Pacific war, could not
have nor exercise, in the legal sense—and only in this sense should we speak
here—with respect to this country and its citizens, any more than could a
burglar breaking through a man’s house pretends to have or to exercise any legal
power or right within that house with respect either to the person of the owner
or to his property. To recognize in the first instance any legal power or right
on the part of the invader, and in the second any legal power or right on the
part of the burglar, the same as in case of a military occupant in the ctfurse
of a justifiable war, would be nothing short of legalizing the crime
itself. It would be the most monstrous and unpardonable contradiction to
prosecute, condemn and hang the appropriately called war criminals of Germany,
Italy, and Japan, and at the same time recognize any lawfulness in their
occupation of territories they have so barbarously and feloniously invaded. And
let it not be forgotten that the Philippines is a member of the United Nations
who have instituted and conducted the so-called war crimes trials. Neither
should we lose sight of the further fact that this government has a
representative in the international commission currently trying the Japanese war
criminals in Tokyo. These facts leave no room for doubt that this government is
in entire accord with the other United Nations in considering the Pacific war
started by Japan as a crime. Not only this, but this country had six years
before the outbreak of the Pacific war already renounced war as an instrument of
national policy (Constitution, Article II, section 2), thus in consequence
adopting the doctrine of the Briand-Kellogg Pact.

Consequently, it is submitted that it would be absolutely wrong and improper
for this Court to apply to the occupation by Japan of certain areas of the
Philippines during that war the rules and principles of international law which
might be applicable to a military occupation occurring in the course of a
justifiable war. How can this Court recognize any lawfulness or validity in that
occupation when our own government has sent a representative to said
international commission in Tokyo trying the Japanese “war criminals” precisely
for the “crimes against humanity and peace” committed by them during World War
II of which said occupation was but part and parcel? In such circumstances how
could such occupation produce no less an effect than the suspension of the
allegiance of our people to their country and government?

(b) But even in the hypothesis—and not more than a mere
hypothesis—that when Japan occupied the City of Manila and certain other areas
of the Philippines she was engaged in a justifiable war, still the theory of
suspended allegiance would not hold good. The continuance of the allegiance owed
to a nation by its citizens is one of those high privileges of citizenship which
the law of nations denies to the occupant the power to interfere with.

“* * * His (of occupant) rights are not, however, commensurate with his
power. He is thus forbidden to take certain measures which he may be able to
apply, and that irrespective of their efficacy. The restrictions imposed upon
him are in theory designed to protect the individual in the enjoyment of some
highly impoi^tant privileges. These concern his allegiance to the de jure
sovereign, his family honor and domestic relations, religious convictions,
personal service, and connection with or residence in the occupied
territory.

“The Hague Regulations declare that the occupant is forbidden to compel the
inhabitants to swear allegiance to the hostile power. * * *” (III Hyde,
International Law, 2d revised ed., pp. 1898-1899.)

“* * * Nor may he (occupant) compel them (inhabitants) to take an oath of
allegiance. Since the authority of the occupant is not sovereignty, the
inhabitants owe no temporary allegiance to him. * * *” (II Oppenheim,
International Law, pp. 341-344.)

The occupant’s lack of authority to exact an oath of allegiance from the
inhabitants of the occupied territory is but a corollary of the continuance of
their allegiance to their own lawful sovereign. This allegiance does not consist
merely in obedience to the laws of the lawful sovereign, but more essentially
consists in loyalty or fealty to him. In the same volume and pages of
Oppenheim’s work above cited, after the passage to the effect that the
inhabitants of the occupied territory owe no temporary allegiance to the
occupant it is said that “On the other hand, he may compel them to take an
oath—sometimes called an ‘oath of neutrality’—* * * willingly to submit to his
‘legitimate commands.’ Since, naturally, such “legitimate commands” include the
occupant’s laws, it follows that said occupant, where the rule is applicable,
has the right to compel the inhabitants to take an oath of obedience to his
laws; and since, according to the same rule, he cannot exact from the
inhabitants an oath of allegiance, it follows that obedience to his laws, which
he can exact from them, does not constitute allegiance.

(c) The theory of suspended allegiance is unpatriotic to the last
degree. To say that when one’s country is unable to afford him its protection,
he ceases to be bound to it by the sacred ties of allegiance, is to advocate the
doctrine that precisely when his country is in such distress, and therefore most
needs his loyalty, he is absolved from that loyalty. Love of country should be
something permanent and lasting, ending only in death; loyalty should be its
worthy offspring. The outward manifestation of one or the other may for a time
be prevented or thwarted by the irresistible action of the occupant; but this
should not in the least extinguish nor obliterate the invisible feelings, and
promptings of the spirit. And beyond the unavoidable consequences of the enemy’s
irresistible pressure, those invisible feelings and promptings of the spirit of
the people should never allow them to act, to speak, nor even to think a whit
contrary to their love and loyalty to the Fatherland. For them, indicted, to
face their country and say to it that, because when it was overrun and
vanquished by the barbarous invader and, in consequence, was disabled from
affording them protection, they were released from their sacred obligation of
allegiance and loyalty, and could therefore freely adhere to its enemy, giving
him aid and comfort, incurring no criminal responsibility therefor, would only
tend to aggravate their crime.

II. CHANGE OF SOVEREIGNTY

Article II, section 1, of the Constitution provides that “Sovereignty resides
in the people and all government authority emanates from them.” The Filipino
people are the self-same people before and after Philippine Independence,
proclaimed on July 4, 1946, During the life of the Commonwealth sovereignty
resided in them under the Constitution; after the proclamation of independence
that sovereignty remained with them under the very same fundamental law. Article
XVIII of the said Constitution stipulates that the government established
thereby shall be known as the Commonwealth of the Philippines; and that upon the
final and complete withdrawal of the sovereignty of the United States and the
proclamation of Philippine independence, “The Commonwealth of the Philippines
shall thenceforth be known as the Republic of the Philippines.” Under this
provision the Government of the Philippines immediately prior to independence
was essentially to be the identical government thereafter—only the name of that
government was to be changed.

Both before and after the adoption of the Philippine Constitution the people
of the Philippines were and are always the plaintiff in all criminal
prosecutions, the case being entitled: “The People of the Philippines vs.
(the defendant or defendants).” This was already true in prosecutions under
the’Revised Penal Code containing the law of treason. “The Government of the
Philippines” spoken of in article 114 of said Code merely represents the people
of the Philippines. Said code was continued, along with the other laws, by
Article XVI, section 2, of the Constitution, which constitutional provision
further directs that “all references in such laws to the Government or officials
of the Philippine Islands shall be construed, in so far as applicable, to refer
to the Government and corresponding officials under this Constitution”—of
course, meaning the Commonwealth of the Philippines before, and the Republic of
the Philippines after, independence (Article XVIII). Under both governments
sovereignty resided and resides in the people (Article II, section 1). Said
sovereignty was never transferred from that people—they are the same people who
preserve it to this day. There has never been any change in this respect.

If
one committed treason against the people of the Philippines before July 4, 1946,
he continues to be criminally liable for the crime to the same people now. And
if, following the literal wording of the Revised Penal Code, as continued by the
Constitution, that accused owed allegiance upon the commission of the crime to
the “Government of the Philippines,” in the textual words of the Constitution
(Articles XVI, section 2, and XVIII) that was the same government which after
independence became known as the “Republic of the Philippines.” The most that
can be said is that the sovereignty of the people became complete and absolute
after independence—that they became, politically, fully of age, to use a
metaphor. But if the responsibility for a crime against a minor is not
extinguished by the mere fact of his becoming of age, why should the
responsibility for the crime of treason committed against the Filipino people
when they were not fully politically independent be extinguished after they
acquire this status? The offended party continues to be the same—only his status
has changed.

---

PARAS, J.:

During the long period of Japanese occupation, all the political laws of the
Philippines were suspended. This is in full harmony with the generally accepted
principles of international law adopted by our Constitution (Article II, section
3) as a part of the law of the Nation. Accordingly, we have on more than one
occasion already stated that “laws of a political nature or affecting political
relations, * * * are considered as suspended or in abeyance during the military
occupation” (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 113,
124), and that the rule “that laws of political nature or affecting political
relations are considered suspended or in abeyance during the military
occupation, is intended for the governing of the civil inhabitants of the
occupied territory.” (Ruffy vs. Chief of Staff, Philippine Army, 75,
Phil., 875,881.)

The principle is recognized by the United States of America, which admits
that the occupant will naturally suspend all laws of a political nature and all
laws which affect the welfare and safety of his command, such action to be made
known to the inhabitants. (United States Rules of Land Warfare, 1940, Article
287.) As allegiance to the United States is an essential element in the crime of
treason under article 114 of the Revised Penal Code, and in view of its position
in our political structure prior to the independence of the Philippines, the
rule as interpreted and practiced in the United States necessarily has a binding
force and effect in the Philippines, to the exclusion of any other construction
followed elsewhere, such as may be inferred, rightly or wrongly, from the
isolated cases^[1] brought to our attention,
which, moreover, have entirely different factual bases.

Corresponding notice was given by the Japanese occupying army, first, in the
proclamation of its Commander in chief of January 2, 1942, to the effect that as
a “result of the Japanese Military operations, the sovereignty of the United
States of America over the Philippines has completely disappeared and the Army
hereby proclaims the Military Administration under martial law over the
districts occupied by the Army;” secondly, in Order No. 3 of the said Commander
in Chief of February 20, 1942, providing that “activities of the administrative
organs and judicial courts in the Philippines shall be based upon the existing
statutes, orders, ordinances and customs until further orders provided that they
are not inconsistent with the present circumstances under the Japanese Military
Administration;” and, thirdly, in the explanations to Order No. 3 reminding that
“all laws and regulations of the Philippines have been suspended since Japanese
occupation,” and excepting the application of “laws and regulations which are
not proper to act under the present situation of the Japanese Military
Administration,” especially those “provided with some political purposes.”

The suspension of political laws during enemy occupation is logical, wise and
humane. The latter phase outweighs all other aspects of the principle aimed more
or less at promoting the necessarily selfish motives and purposes of a military
occupant. It is thus consoling to note that the powers instrumental in the
crystallization of the Hague Conventions of 1907 did not forget to declare that
they were “animated by the desire to serve * * * the interests of humanity and
the over progressive needs of civilization,” and that “in cases not included in
the Regulations adopted by them, the inhabitants and the belligerents remain
under the protection and the rule of the principles of international law, as
they result from the usages established among civilized peoples, from the laws
of humanity, and the dictates of the public conscience.” These saving statements
come to the aid of the inhabitants in the occupied territory in a situation
wherein, even before the belligerent occupant “takes a further step and by
appropriate affirmative action undertakes to acquire the right of sovereignty
for himself, * * * the occupant is likely to regard himself as clothed with
freedom to endeavor to impregnate the people who inhabit the area concerned with
his own political ideology, and to make that endeavor successful by various
forms of pressure exerted upon enemy officials who are permitted to retain the
exercise of normal governmental functions.” (Hyde, International Law, Vol. III,
Second Revised Edition, 1945, p. 1879.)

The inhabitants of the occupied territory should necessarily be bound to the
sole authority of the invading power, whose interests and requirements are
naturally in conflict with those of the displaced government, if it is
legitimate for the military occupant to demand and enforce from the inhabitants
such obedience as may be necessary for the security of his forces, for the
maintenance of law and order, and for the proper administration of the country
(United States Rules of Land Warfare, 1940, article 297), and to demand all
kinds of services “of such a nature as not to involve the population in the
obligation of taking part in military operations against their own country”
(Hague Regulations, article 52); and if, as we have in effect said, by the
surrender the inhabitants pass under a temporary allegiance to the government of
the occupant and are bound by such laws, and such only, as it chooses to
recognize and impose, and the belligerent occupant ‘is totally independent of
the constitution and the laws of the territory, since occupation is an aim of
warfare, and the maintenance and safety of his forces, and the purpose of war,
stand in the foreground of his interest and must be promoted under all
circumstances or conditions.” (Peralta vs. Director of Prisons, 75 Phil.,
285, 295), citing United States vs. Rice, 4 Wheaton, 246, and quoting
Oppenheim, International Law, Vol. II, Sixth Edition, Revised, 1944, p.
432.)

He would be a bigot who cannot or would refuse to see the cruel result if the
people in an occupied territory were required to obey two antagonistic and
opposite powers. To emphasize our point, we would adopt the argument, in a
reverse order, of Mr. Justice Hilado in Peralta vs. Director of Prisons
(75 Phil., 285, 358), contained in the following passage:

“To have bound those of our people who constituted the great majority who
never submitted to the Japanese oppressors, by the laws, regulations, processes
and other acts of those two puppet governments, would not only have been utterly
unjust and downright illegal, but would have placed them in the absurd and
impossible condition of being simultaneously submitted to two mutually hostile
governments, with their respective constitutional and legislative enactments and
institutions—on the one hand bound to continue owing allegiance to the United
States and the Commonwealth Government, and, on the other, to owe allegiance, if
only temporary, to Japan.”

The only sensible purpose of the treason law—which is of political complexion
and taken out of the territorial law and penalized as a new offense committed
against the belligerent occupant, incident to a state of war and necessary for
the control of the occupant (Alcantara vs. Director of Prisons, 75 Phil.,
494),—must be the preservation of the nation, certainly not its destruction or
extermination. And yet the latter is unwittingly wished by those who are fond of
the theory that what is suspended is merely the exercise of sovereignty by the
de jure government or the latter’s authority to impose penal sanctions or
that, otherwise stated, the suspension refers only to the military occupant. If
this were to be the only effect, the rule would be a meaningless and superfluous
optical illusion, since it is obvious that the fleeing or displaced government
cannot, even if it should want, physically assert its authority in a territory
actually beyond its reach, and that the occupant, on the other hand, will not
take the absurd step of prosecuting and punishing the inhabitants for adhering
to and aiding it. If we were to believe the opponents of the rule in question,
we have to accept the absurd proposition that the guerrillas can all be
prosecuted with illegal possession of firearms. It should be borne in mind that
“the possession by the belligerent occupant of the right to control, maintain or
modify the laws that are to obtain within the occupied area is an exclusive one.
The territorial sovereign driven therefrom, can not compete with it on an even
plane. Thus, if the latter attempts interference, its action is a mere
manifestation of belligerent effort to weaken the enemy. It has no bearing upon
the legal quality of what the occupant exacts, while it retains control. Thus if
the absent territorial sovereign, through some quasi-legislative decree, forbids
its nationals to comply with what the occupant has ordained obedience to such
command within the occupied territory would not safeguard the individual,from
prosecution by the occupant.” (Hyde, International Law, Vol. III, Second Revised
Edition, 1945, p. 1886.)

As long as we have not outlawed the right of the belligerent occupant to
prosecute and punish the inhabitants for “war treason” or “war crimes,” as an
incident of the state of war and necessity for the control of the occupied
territory and the protection of the army of the occupant, against which
prosecution and punishment such inhabits ants cannot obviously be protected by
their native sovereign, it is hard to understand how we can justly rule that
they may at the same time be prosecuted and punished for an act penalized by the
Revised Penal Code, but already taken out of the territorial law and penalized
as a new offense committed against the belligerent occupant.

In Peralta vs. Director of Prisons. 75 Phil., 285, 296), we held that
“the Constitution of the Commonwealth Government was suspended during the
occupation of the Philippines by the Japanese forces or the belligerent occupant
at regular war with the United States,” and the meaning of the term “suspended”
is very plainly expressed in the folliwing passage (page 298):

“No objection can be set up to the legality of its provisions in the light of
the precepts of our Commonwealth Constitution relating to the rights of 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 a case quoted and cited in the
foot-note), especially as regards laws of procedure applied to cases already
terminated completely.”

In much the same way, we should hold that no treason could have been
committed during the Japanese military occupation against the United States or
the Commonwealth Government, because article 114 of the Revised Penal Code was
not then in force. Nor may this penal provision be applied upon its revival at
the time of the reoccupation of the Philippines by virtue of the principle of
postliminium, because of the constitutional inhibition against any ex
post facto law and because, under article 22 of the Revised Penal Code,
criminal laws shall have a retroactive effect only in so far as they favor the
accused. Why did we refuse to enforce the Constitution, more essential to
sovereignty than article 114 of the Revised Penal Code in the aforesaid case of
Peralta vs. Director of Prisons if, as alleged by the majority, the
suspension was good only as to the military occupant?

The decision in United States vs. Rice (4 Wheaton, 246), conclusively
supports our position. As analyzed and described in United States vs.
Reiter (27 Fed. Cas., 773), that case “was decided by the Supreme Court of the
United States—the court of highest human authority on that subject—and as the
decision was against the United States, and in favor of the authority of Great
Britain, its enemy in the war, and was made shortly after the occurrence of the
war out of which it grew; and while no department of this Government was
inclined to magnify the rights of Great Britain or disparage those of its own
government, there can be no suspicion of bias in the mind of the court in favor
of the conclusion at which it arrived, and no doubt that the law seemed to the
court to warrant and demand such a decision. That case grew out of the war of
1812, between the United States and Great Britain. It appeared that in
September, 1814, the British forces had taken the port of Castine, in the State
of Maine, and held it in military occupation; and that while it was so held,
foreign goods, by the laws of the United States subject to duty, had been
introduced into that port without paying duties to the United States. At the
close of the war the place was by treaty restored to the United States, and
after that was done the Government of the United States sought to recover from
the persons so introducing” the goods there while in possession of the British,
the duties to which by the laws of the United States, they would have been
liable. The claim of the United States was that its laws were properly in force
there, although the place was at the time held by the British forces in
hostility to the United States, and the laws, therefore, could not at the time
be enforced there; and that a court of the United States (the power of that
government there having since been restored) was bound so to decide. But this
illusion of the prosecuting officer there was dispelled by the court in the most
summary manner. Mr. Justice Story, that great luminary of the American bench,
being the organ of the court in delivering its opinion, said: ‘The single
question is whether goods imported into Castine during its occupation by the
enemy are liable to the duties imposed by the revenue laws upon goods imported
into the United States. * * * We are all of opinion that the claim for duties
cannot be sustained. * * * The sovereignty of the United States over the
territory was, of course, suspended, and the laws of the United States could no
longer be rightfully enforced there, or be obligatory upon the inhabitants who
remained and submitted to the conquerors. By the surrender the inhabitants
passed under a temporary allegiance of the British Government, and were bound by
such laws, and such only, as it chose to recognize and impose. From the nature
of the case no other laws could be obligatory upon them. * * * Castine was
therefore, during this period, as far as respected our revenue laws, to be
deemed a foreign port, and goods imported into it by the inhabitants were
subjects to such duties only as the British Government chose to require. Such
goods were in no correct sense imported into the United States.’ The court then
proceeded to say, that the case is the same as if the port of Castine had been
foreign territory, ceded by treaty to the United States, and the goods had been
imported there previous to its cession. In this case they say there would be no
pretense to say that American duties could be demanded; and upon principles of
public or municipal law, the cases are not distinguishable. They add at the
conclusion of the opinion: ‘The authorities cited at the bar would, if there
were any doubt, be decisive of the question. But we think it too clear to
require any aid from authority.’ Does this case leave room for a doubt whether a
country held as this was in armed belligerent occupation, is to be governed by
him who holds it, and by him alone? Does it not so decide in terms as plain as
can be stated? It is asserted by the Supreme Court of the United States with
entire unanimity, the great and venerated Marshall presiding, and the erudite
and accomplished Story delivering the opinion of the court, that such is the
law, and it is so adjudged in this case. Nay, more: it is even adjudged that no
other laws could be obligatory; that such country, so held, is for the purpose
of the application of the law off its former government to be deemed foreign
territory, and that goods imported there (and by parity of reasoning other acts
done there) are in no correct sense done within the territory of its former
sovereign, the United States.”

But it is alleged by the majority that the sovereignty spoken of in the
decision of the United States vs. Rice should be construed to refer to
the exercise of sovereignty, and that, if sovereignty itself was meant, the
doctrine has become obsolete after the adoption of the Hague Regulations in
1907. In answer, we may state that sovereignty can have any important
significance only when it may be exercised; and, to our way of thinking, it is
immaterial whether the thing held in abeyance is the sovereignty itself or its
exercise, because the point cannot nullify, vary, or otherwise vitiate the plain
meaning of the doctrinal words “the laws of the United States could no longer be
rightfully enforced there, or be obligatory upon the inhabitants who remained
and submitted to the conquerors.” We cannot accept the theory of the majority,
without in effect violating the rule of international law, hereinabove adverted
to, that the possession by the belligerent occupant of the right to control,
maintain or modify the laws that are to obtain within the occupied area is an
exclusive one, and that the territorial sovereign driven therefrom cannot
compete with it on an even plane. Neither may the doctrine in United States
vs. Rice be said to have become obsolete, without repudiating the actual
rule prescribed and followed by the United States, allowing the military
occupant to suspend all laws of a political nature and even require public
officials and the inhabitants to take an oath of fidelity (United States Rules
of Land Warfare, 1940, article 309). In fact, it is a recognized doctrine of
American Constitutional Law that mere conquest or military occupation of a
territory of another State does not operate to annex such territory to the
occupying State, but that the inhabitants of the occupied district, no longer
receiving the protection of their native State, for the time being owe no
allegiance to it, and, being under the control and protection of the victorious
power, owe to that power fealty and obedience. (Willoughby, The Fundamental
Concepts of Public Law [1931], p. 364.)

The majority have resorted to distinctions, more apparent than real, if not
immaterial, in trying to argue that the law of treason was obligatory on the
Filipinos during the Japanese occupation. Thus it is insisted that a citizen or
subject owes not a qualified and temporary, but an absolute and permanent
allegiance, and that “temporary allegiance” to the military occupant may be
likened to the temporary allegiance which a foreigner owes to the government or
sovereign of the territory wherein he resides in return for the protection he
receives therefrom. The comparison is most unfortunate. Said foreigner is in the
territory of a power not hostile to or in actual war with his own government; he
is in the territory of a power which has not suspended, under the rules of
international law, the laws of political nature of his own government; and the
protections received by him from that friendly or neutral power is real, not the
kind of protection which the inhabitants of an occupied territory can expect
from a belligerent army. “It is but reasonable that States, when they concede to
other States the right to exercise jurisdiction over such of their own nationals
as are within the territorial limits of such other States, should insist that
those States should provide system of law and of courts, and in actual practice,
so administer them, as to furnish substantial legal justice to alien residents.
This does not mean that a State must or should extend to aliens within its
borders all the civil, or much less, all the political rights or privileges
which it grants to its own citizens; but it does mean that aliens must or should
be given adequate opportunity to have such legal rights as are granted to them
by the local law impartially and judicially determined, and, when thus
determined, protected.” (Willoughby, The Fundamental Concepts of Public Law
[1931], p. 360.)

When it is therefore said that a citizen of a sovereign may be prosecuted for
and convicted of treason committed in a foreign country or, in the language of
article 114 of the Revised Penal Code, “elsewhere,” a territory other than one
under belligerent occupation must have been contemplated. This would make sense,
because treason is a crime “the direct or indirect purpose of which is the
delivery, in whole or in part, of the country to a foreign power, or to pave the
way for the enemy to obtain dominion over the national territory” (Albert, The
Revised Penal Code, citing 3 Groizard, 14); and, very evidently, a territory
already under occupation can no longer be “delivered.”

The majority likewise argue that the theory of suspended sovereignty or
allegiance will enable the military occupant to legally recruit the inhabitants
to fight against their own government, without said inhabitants being liable for
treason. This argument is not correct, because the suspension does not exempt
the occupant from complying with the Hague Regulation (article 52) that allows
it to demand all kinds of services provided that they do not involve the
population “in the obligation of taking part in military operations against
their own country.” Neither does the suspension prevent the inhabitants from
assuming a passive attitude, much less from dying and becoming heroes if
compelled by the occupant to fight against their own country. Any imperfection
in the present state of international law should be corrected by such world
agency as the United Nations organization.

It is of common knowledge that even with the alleged cooperation imputed to
the collaborators, an alarming number of Filipinos were killed or otherwise
tortured by the ruthless, or we may say savage, Japanese Army. Which leads to
the conclusion that if the Filipinos did not obey the Japanese commands and
feign cooperation, there would not be any Filipino nation that could have been
liberated. Assuming that the entire population could go to and live in the
mountains, or otherwise fight as guerrillas—after the formal surrender of our
and the American regular fighting forces,—they would have faced certain
annihilation by the Japanese, considering the Iatter’s military strength at the
time and the long period during which they were left militarily unmolested by
America. In this connection, we hate to make reference to the atomic bomb as a
possible means of destruction.

If a substantial number of guerrillas were able to survive and ultimately
help in the liberation of the Philippines, it was because the feigned
cooperation of their countrymen enabled them to get food and other aid necessary
in the resistance movement. If they were able to survive, it was because they
could camouflage themselves in the midst of the civilian population in cities
and towns. It is easy to argue now that the people could have merely followed
their ordinary pursuits of life or otherwise be indifferent to the occupant. The
fundamental defect of this line of thought is that the Japanese are assumed to
be so stupid and dumb as not to notice any such attitude. During belligerent
occupation, “the outstanding fact to be reckoned with is the sharp opposition
between the inhabitants of the occupied areas and the hostile military force
exercising control over them. At heart they remain at war with each other. Fear
for their own safety may not serve to deter the inhabitants from taking
advantage of opportunities to interfere with the safety and success of the
occupant, and in so doing they may arouse its passions and cause it to take
vengeance in cruel fashion. Again, even when it is untainted by such conduct,
the occupant as a means of attaining ultimate success in its major conflict may,
under plea of military necessity, and regardless of conventional or customary
prohibitions, proceed to utilize the inhabitants within its grip as a convenient
means of military achievement.” (Hyde, International Law, Vol. III, Second
Revised Edition [1945], p. 1912.) It should be stressed that the Japanese
occupation was not a matter of a few months; it extended over a little more than
three years. Said occupation was a fact, in spite of the “presence of guerrilla
bands in barrios and mountains, and even in towns of the Philippines whenever
these towns were left by Japanese garrisons or by the detachments of troops sent
on patrol to those places.” (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75
Phil., 371, 373.) The law of nations accepts belligerent occupation as a fact to
be reckoned with, regardless of the merits of the occupant’s cause. (Hyde,
International Law, Second Revised Edition [1945], Vol. III, p. 1879.)

Those who contend or fear that the doctrine herein adhered to will lead to an
over-production of traitors, have a wrong and low conception of the psychology
and patriotism of their countrymen. Patriots are such after their birth in the
first place, and no amount of laws or judicial decisions can make or unmake
them. On the other hand, the Filipinos are not so base as to be insensitive to
the thought that the real traitor is cursed everywhere and in all ages. Our
patriots who fought and died during the last war, and the brave guerrillas who
have survived, were undoubtedly motivated by their inborn love of country, and
not by such a thing as the treason law. The Filipino people, as a whole,
passively opposed the Japanese regime, not out of fear of the treason statute
but because they preferred and will prefer the democratic and civilized way of
life and American altruism to Japanese barbaric and totalitarian designs. Of
course, there are those who might at heart have been pro-Japanese; but they met
and will unavoidably meet the necessary consequences. The regular soldiers faced
the risks of warfare; the spies and informers subjected themselves to the perils
of military operations, likely received summary liquidation or punishments from
the guerri las and the parties injured by their acts, and may be prosecuted as
war spies by the military authorities of the returning sovereign; those who
committed other common crimes, directly or through the Japanese army, may be
prosecuted under the municipal law, and under this group, even the spies and
informers, Makapili or otherwise, are included, for they can be made answerable
for any act offensive to person or property; the buy-and-sell opportunists have
the war profits tax to reckon with. We cannot close our eyes to the conspicuous
fact that, in the majority of cases, those responsible’for the death cf, or
injury to, any Filipino or American at the hands of the Japanese, were prompted
more by personal motives than by a desire to levy war against the United States
or to adhere to the occupant. The alleged,spies and informers found in the
Japanese occupation the royal road to vengeance against personal or
political.enemies. The recent amnesty granted to the guerrillas for acts,
otherwise criminal, committed in the furtherance of their resistance movement
has in a way legalized the penal sanctions imposed by them upon the real
traitors.

It is only from a realistic, practical and common-sense point of view, and by
remembering that the obedience and cooperation of the Filipinos were effected
while the Japanese were in complete control and occupation of the Philippines,
when their mere physical presence implied force and pressure—and not after the
American forces of liberation had restored the Philippine Government—that we
will come to realize that, apart from any rule of international law, it was
necessary to release the Filipinos temporarily from the old political tie in the
sense indicated herein. Otherwise, one is prone to dismiss the reason for such
cooperation and obedience. If there were those who did not in any wise cooperate
or obey, they can be counted by the fingers, and let their names adorn the pages
of Philippine history. Essentially, however, everybody who took advantage, to
any extent and degree, of the peace and order prevailing during the occupation,
for the safety and survival of himself and his family, gave aid and comfort to
the enemy.

Our great liberator himself, General Douglas MacArthur, had considered the
laws of the Philippines ineffective during the occupation, and restored to their
full vigor and force only after the liberation. Thus, in his proclamation of
October 23, 1944, he ordained that “the laws now existing on the statute books
of the Commonwealth of the Philippines * * * are in full force and effect and
legally binding upon the people in areas of the Philippines free of enemy
occupation and control,” and that “all laws * * * of any other government in
the Philippines than that of the said Commonwealth are null and void and without
legal effect in areas of the Philippines free of enemy occupation and
control.” Repeating what we have said in Co Kim Cham vs. Valdez Tan
Keh and Dizon (75 Phil., 113, 133), “it is to be presumed that General Douglas
MacArthur, who was acting as an agent or a representative of the Government and
the President of the United States, constitutional Commander-in-Chief of the
United States Army, did not intend to act against the principles of the law of
nations asserted by the Supreme Court of the United States from the early period
of its existence, applied by the President of the United States, and later
embodied in theHague Conventions of 1907.”

The prohibition in the Hague Conventions (Article 45) against “any pressure
on the population to take oath to the hostile power,” was inserted for the moral
protection and benefit of the inhabitants, and does not necessarily carry the
implication that the latter continue to be bound to the political laws of the
displaced government. The United States, a signatory to the Hague Conventions,
has made the point clear, by admitting that the military occupant can suspend
all laws of a political nature and even require public officials and the
inhabitants to take an oath of fidelity (United States Rules of Land Warfare,
1940, article 309), and as already stated, it is a doctrine of American
Constitutional Law that the inhabitants, no longer receiving the protection of
their native state, for the time being owe no allegiance to it, and, being under
the control and protection of the victorious power, owe to that power fealty and
obedience. Indeed, what is prohibited is the application of force by the
occupant, from which it is fair to deduce that the Conventions do not altogether
outlaw voluntary submission by the population. The only strong reason for this
is undoubtedly the desire of the authors of the Conventions to give as much
freedom and allowance to the inhabitants as are necessary for their survival
This is wise and humane, because the people should be in a better position to
know what will save them during the military occupation than any exile
government.

“Before he was appointed prosecutor, Justice Jackson made a speech in which
he warned against the use of the judicial process for nonjudicial ends, and
attacked cynics who ‘see no reason why courts, just like other agencies, should
not be policy weapons. If we want to shoot Germans as a matter of policy, let it
be done as such, said he, but don’t hide the deed behind a court. If you are
determined to execute a man in any case there is no occasion for a trial; the
world yields no respect for courts that are merely organized to convict.’
Mussolini may have got his just desserts, but nobody supposes he got a fair
trial. * * * Let us bear that in mind as we go about punishing criminals. There
are enough laws on the books to convict guilty Nazis without risking the
prestige of our legal system. It is far, far better that some guilty men escape
than that the idea of law be endangered. In the long run the idea of law is our
best defense against Nazism in all its forms.” These passages were taken from
the editorial appearing in the Life, May 28, 1945, page 34, and convey ideas
worthy of some reflection.

If the Filipinos in fact committed any errors in feigning cooperation and
obedience during the Japanese military occupation, they were at most—borrowing
the famous and significant words of President Roxas—errors of the mind and not
of the heart. We advisedly said “feigning” not as an admission of the fallacy of
the theory of suspended allegiance or sovereignty, but as an affirmation that
the Filipinos, contrary to their outward attitude, had always remained loyal by
feeling and conscience to their country.

Assuming that article 114 of the Revised Penal Code was in force during the
Japanese military occupation, the present Republic of the Philippines has no
right to prosecute treason committed against the former sovereignty existing
during the Commonwealth Government which was none other than the sovereignty of
the United States. This court has already held that, upon a change of
sovereignty, the provisions of the Penal Code having to do with such subjects as
treason, rebellion and sedition are no longer in force (People vs.
Perfecto, 43 Phil., 887). It is true that, as contended by the majority, section
1 of Article II of tHe Constitution of the Philippines provides that
“sovereignty resides in the people,” but this did not make the Commonwealth
Government or the Filipino people sovereign, because said declaration of
principle, prior to the independence of the Philippines, was subservient to and
controlled by the Ordinance appended to the Constitution under which, in
addition to its many provisions essentially destructive of the concept of
sovereignty, it is expressly made clear that the sovereignty of the United
States over the Philippines had not then been withdrawn. The framers of the
Constitution had to make said declaration of principle because the document was
ultimately intended for the independent Philippines. Otherwise, the Preamble
should not have announced that one of the purposes of the Constitution is to
secure to the Filipino people and their posterity the “blessings of
independence.” No one, we suppose, will dare allege that the Philippines was an
independent country under the Commonwealth Government.

The Commonwealth Government might have been more autonomous than that
existing under the Jones Law, but its non-sovereign status nevertheless remained
unaltered; and what was enjoyed was the exercise of sovereignty delegated by the
United States whose sovereignty over the Philippines continued to be
complete.

“The exercise of Sovereignty May be Delegated.—It has already been
seen that the exercise of sovereignty is conceived of as delegated by a State to
the various organs which, collectively, constitute the Government. For practical
political reasons which can be easily appreciated, it is desirable that the
public policies of a State should be formulated and executed by governmental
agencies of its own creation and which are not subject to the control of other
States. There is, however, nothing in a nature of sovereignty or of State life
which prevents one State from entrusting the exercise of certain powers to the
governmental agencies of another State. Theoretically, indeed, a sovereign State
may go to any extent in the delegation of the exercise of its power to the
governmental agencies of other States, those governmental agencies thus becoming
quoad hoc parts of the governmental machinery of the State whose
sovereignty is exercised. At the same time these agencies do not cease to be
instrumentalities for the expression of the will of the State by which they were
originally created.

“By this delegation the agent State is authorized to express the will of the
delegating State, and the legal hypothesis is that this State possesses the
legal competence again to draw to itself the exercise, through organs of its own
creation, of the powers it has granted. Thus, States may concede to colonies
almost complete autonomy of government and reserve to themselves a right of
control of so slight and so negative a character as to make its exercise a rare
and improbable occurrence; yet, so Wg as such right of control is recognized to
exist, and the autonomy of the colonies is conceded to be founded upon a grant
and the continuing consent of the mother countries the sovereignty of those
mother countries over them is complete and they are to be considered as
possessing only administrative autonomy and not political independence. Again,
as will be more fully discussed in a later chapter, in the so-called Confederate
or Composite State, the cooperating States may yield to the central Government
the exercise of almost all of their powers of Government and yet retain their
several sovereignties. Or, on the other hand, a State may, without parting with
its sovereignty of lessening its territorial application, yield to the governing
organs of particular areas such an amplitude of powers as to create of them
bodies-politic endowed with almost all of the characteristics of independent
States. In all States, indeed, when of any considerable size, efficiency of
administration demands that certain autonomous powers of local self-government
be granted to particular districts.” (Willoughby, The Fundamental Concepts of
Public Law [1931], pp. 74, 75.)

The majority have drawn an analogy between the Commonwealth Government and
the States of the American Union which, it is alleged, preserve their own
sovereignty although limited by the United States. This is not true for it has
been authoritatively stated that the Constituent States have no sovereignty of
their own, that such autonomous powers as they now possess are had and exercised
by the express will or by the constitutional forbearance of the national
sovereignty, and that the sovereignty of the United States and the non-sovereign
status of the individual States is no longer contested.

“It is therefore plain that the constituent States have no sovereignty of
their own, and that such autonomous powers as they now possess are had and
exercised by the express will or by the constitutional forbearance of the
national sovereignty. The Supreme Court of the United States has held that, even
when selecting members for the national legislature, or electing the President,
or ratifying proposed amendments to the federal Constitution, the States act,
ad hoc, as agents of the National Government.” (Willoughby, The
Fundamental Concepts of Public Law [1931], p. 250.)

“This is the situation at the present time. The sovereignty of the United
States and the non-sovereign status of the individual States is no longer
contested.” (Willoughby, The Fundamental Concepts of Public Law [1931], pp. 251,
252.)

Article XVIII of the Constitution provides that “The government established
by this Constitution shall be known as the Commonwealth of the Philippines. Upon
the final and complete withdrawal of the sovereignty of the United States and
the proclamation of Philippine independence, the Commonwealth of the Philippines
shall thenceforth be known as the Republic of the Philippines.” From this, the
deduction is made that the Government under the Republic of the Philippines and
under the Commonwealth is the same. We cannot agree. While the Commonwealth
Government possessed administrative autonomy and exercised the sovereignty
delegated by the United States and did not cease to be an instrumentality of the
latter (Willoughby, The Fundamental Concepts of Public Law [1931], pp. 74, 75),
the Republic of the Philippines is an independent State not receiving its power
or sovereignty from the United States. Treason committed against the United
States or against its instrumentality, the Commonwealth Government, which
exercised, but did not possess, sovereignty (id., p. 49), is therefore
not treason against the sovereign and independent Republic of the Philippines.
Article XVIII was inserted in order, merely, to make the Constitution applicable
to the Republic.

Reliance is also placed on section 2 of the Constitution which provides that
all laws of the Philippine Islands shall remain operative, unless inconsistent
therewith, until amended, altered, modified or repealed by the Congress of the
Philippines, and on section 3 which is to the effect that all cases pending in
courts shall be heard, tried, and determined under the laws then in force,
thereby insinuating that these constitutional provisions authorize the Republic
of the Philippines to enforce article 114 of the Revised Penal Code. The error
is obvious. The latter article can remain operative under the present regime if
it is not inconsistent with the Constitution. The fact remains, however, that
said penal provision is fundamentally incompatible with the Constitution, in
that those liable for treason thereunder should owe allegiance to the United
States or the Government of the Philippines, the latter being, as we have
already pointed out, a mere instrumentality of the former, whereas under the
Constitution of the present Republic, the citizens of the Philippines do not and
are not required to owe allegiance to the United States. To contend that article
114 must be deemed to have been modified in the sense that allegiance to the
United States is deleted, and, as thus modified, should be applied to prior
acts, would be to sanction the enactment and application of an ex post
facto law.

In reply to the contention of the respondent that the Supreme Court of the
United States has held in the case of Bradford vs. Chase National Bank
(24 Fed. Supp., 38), that the Philippines had a sovereign status, though with
restrictions, it is sufficient to state that said case must be taken in the
light of a subsequent decision of the same court in Cincinnati Soap Co.
vs. United States (301 U. S., 308), rendered in May, 1937, wherein it was
affirmed that the sovereignty of the United States over the Philippines had not
been withdrawn, with the result that the earlier case can only be interpreted to
refer to the exercise of sovereignty by the Philipines as delegated by the
mother country, the United States.

No conclusiveness may be conceded to the statement of President Roosevelt on
August 12, 1943, that “the United States in practice regards the Philippines as
having now the status as a government of other independent nations—in fact all
the attributes of complete and respected nationhood,” since said statement was
not meant as having accelerated the date, much less as a formal proclamation of,
the Philippine Independence as contemplated in the Tydings-McDuffie Law, it
appearing that (1) no less also than the President of the United States had to
issue the proclamation of July 4, 1946, withdrawing the sovereignty of the
United States and recognizing Philippine Independence; (2) it was General
MacArthur, and not President Osmeña who was with him, that proclaimed on October
23, 1944, the restoration of the Commonwealth Government; (3) the Philippines
was not given official participation in the signing of the Japanese surrender;
(4) the United States Congress, and not the Commonwealth Government, extended
the tenure of office of the President and Vice-President of the
Philippines.

The suggestion that as treason may be committed against the
Federal as well as against the State Government, in the same way treason may
have been committed against the sovereignty of the United States as well as
against the sovereignty of the Philippine Commonwealth, is immaterial because,
as we have already explained, treason against either is not and cannot be
treason against the new and different sovereignty of the Republic of the
Philippines.

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^[1] English case of De Jager vs.
Attorney General of Naval; Belgian case of Auditeur Militaires vs. Van
Dieren; cases of Petain, Laval and Quisling.