GEORGE L. TUBB AND WESLEY TEDROW, PETITIONERS, VS. THOMAS E. GRIESS, RESPONDENT.

This is a petition for habeas corpus filed by George L. Tubb and Wesley
Tedrow, citizens of the United States but residents of the Philippines, under
written contract of employment with the Army of the United States. It appears
that sometime between January 4, as alleged by petitioners, and January 13,
1947, as appearing in the “charge sheet” submitted by respondent, the herein
petitioners were apprehended by the authorities of the United States Army and
have since been held in custody. On January 28, 1947, petitioners were formally
charged by said authorities with violations of Articles of War regarding
misappropriation of United States Government property destined for military use,
said acts having been committed within premises occupied by the United States
Army under lease contracts.

Petitioners now come before this Court alleging that they are being
unlawfully deprived of their liberty and that Philippine courts have exclusive
jurisdiction over their arrest, confinement and imprisonment because (1) they
are not persons subject to military laws, and (2) martial law is no longer
enforced.

In the contract of employment entered into by petitioners with the United
States Army, it is shown that they voluntarily submitted themselves to United
States military law while serving said contract, thereby submitting themselves
to the full extent of the authority of the United States Army in this area.
This, coupled with the fact that petitioners are American citizens, makes their
position during the subsistence of said contract no different from that of
enlisted men, enlistment after all being nothing more than a contract of
voluntary service in the armed forces of one’s country. Petitioners then, in
relation to the United States Army in the Philippines and during the subsistence
of their employment contract, can be deemed to possess the status of military
personnel.

It is a settled principle of International Law that a foreign army allowed to
march through a friendly country or to be stationed in it, by permission of its
government or sovereign, is exempt from the civil and criminal jurisdiction of
the place. In applying this rule in the case of Raquiza vs. Bradford (75
Phil., 50), this Court held that “if a foreign army permitted to be stationed in
a friendly country, ‘by permission of its government or sovereign,’ is exempt
from the civil and criminal jurisdiction of the place, with much more reason
should the Army of the United States which is not only permitted by the
Commonwealth Government to be stationed here but has come to the islands and
stayed in them for the express purpose of liberating them, and further
prosecuting the war to a successful conclusion, be exempt from the civil and
criminal jurisdiction of this place, at least for the time covered by s aid
agreement of the two Governments. By analogy, an attempt of our civil courts to
exercise jurisdiction over the United States Army before such period expires,
would be considered as a violation of this country’s faith, which this Court
should not be the last to keep and uphold. By exercising it, paraphrasing the
foregoing quotation, the purpose for which the stationing of the army in the
islands was requested or agreed upon may be hampered or prejudiced, and a
portion of said military force would be withdrawn from the control of the
sovereign to whom they belong. And, again, by analogy, the agreement for the
stationing of the United States Army or a part of its forces in the Philippines
implies a waiver of all jurisdiction over their troops during the time covered
by such agreement, and permits the allied general or commander-in-chief to
retain that exclusive control and discipline which the government of his army
may require.”

The basis of this ruling is the leading case of The Schooner Exchange
vs. McFadden (7 Cranch, 116) in which the United States Supreme Court
speaking thru Chief Justice Marshall, held that “a third case in which a
sovereign is understood to cede a portion of his territorial jurisdiction is,
where he allows the troops of a foreign prince to pass through his dominions. In
such case, without any express declaration waiving jurisdiction over the army to
which this right of passage has been granted, the sovereign who should attempt
to exercise it would certainly be considered as violating his faith. By
exercising it, the purpose for which the free passage was granted would be
defeated, and a portion of the military force of a foreign independent nation
would be diverted from those national objects and duties to which it was
applicable, and would be withdrawn from the control of the sovereign whose power
and whose safety might greatly depend on retaining the exclusive command and
disposition of this force. The grant of a free passage therefore implies a
waiver of all jurisdiction over the troops during their passage, and permits the
foreign general to use that discipline, and to inflict those punishments which
the government of his army may require.”

Since then, this principle has been consistently embodied in treaties of
military character among friendly nations and has been accepted by all the
countries of the world. The most authoritative writers on International Law
firmly concur in this rule. To quote—

Wheaton.—”A foreign army or fleet, marching through, sailing over, or
stationed in the territory of another State, with whom the foreign sovereign to
whom they belong is in amity, are also, in like manner, exempt from the civil
and criminal jurisdiction of the place.” (Elements of International Law, section
95.)

Hall.—”Military forces enter the territory of a state in amity with
that to which they belong, either when crossing to and fro between the main part
of their country and an isolated piece of it, or as allies passing through for
the purposes of a campaign, or furnishing garrisons for protection. In cases of
the former Kind, the passage of soldiers being frequent, it is usual to conclude
conventions, specifying the line of road to be followed by them, and regulating
their transit so as to make it as little onerous as possible to the population
among whom they are. Under such conventions offences committed by soldiers
against the inhabitants are dealt with by the military authorities of the state
to which the former belong; and as their general object in other respects is
simply regulatory of Retails, it is not necessary to look upon them as intended
in any respect to modify the rights of jurisdiction possessed by the parties to
them respectively. There can be no question that the concession of jurisdiction
over passing troops to the local authorities would be extremely inconvenient;
and it is believed that the commanders, not only of forces in transit through a
friendly country with which no convention exists, but also of forces stationed
there, assert exclusive jurisdiction in principle in respect of offences
committed by persons under their command, though they may be willing as a
matter of concession to hand over culprits to the civil power when they have
confidence in the courts, and when their stay is likely to be long enough to
allow of the case being watched. The existence of a double jurisdiction in a
foreign country being scarcely compatible with the discipline of an army, it is
evident that there would be some difficulty in carrying out any other
arrangement.” (Italics supplied; International Law, 7th ed., section 56.)

Lawrence.—”The universally recognized rule of modern times is that a
state must obtain express permission before its troops can pass through the
territory of another state * * *. Permission may be given as a permanent
privilege by treaty for such a purpose as sending relief to garrisons, or it may
be granted as a special favor for the special occasion on which it is asked. The
agreement for passage generally contains provisions for the maintenance of order
in the force by its own officers, and makes them, and the state in whose service
they are, responsible for the good behavior of the soldiers towards the
inhabitants. In the absence of special agreement the troops would not be
amenable to the local law, but would be under the jurisdiction and control of
their own commanders, as long as they remained within their own lines or were
away on duty, but not otherwise.” (Principles of International Law, 6th ed.,
section 107, p. 246.)

Oppenheim.—”Whenever armed forces are on foreign territory in the
service of their home State, they are considered exterritorial and remain,
therefore, under its jurisdiction. A crime committed on foreign territory by a
member of these forces cannot be punished by the local civil or military
authorities, but only by the commanding officer of the forces or by other
authorities of their home State. This rule, however, applies only in case the
crime is committed, either within the place where the force is stationed, or in
some place where the criminal was on duty; it does not apply, if, for example,
soldiers belonging to a foreign garrison of a fortress leave the rayon of
the fortress, not on duty but for recreation and pleasure, and then and there
commit a crime. The local authorities are in that case competent to punish
them.” (International Law, 4th ed., Vol. I, section 445.)

Westlake affirmed Wheaton’s view.

Hyde.—”Strong grounds of convenience and necessity prevent the
exercise of jurisdiction over a foreign organized military force which, with the
consent of the territorial sovereign, enters its domain. Members of the force
who there commit offenses are dealt with by the military or other authorities of
the State to whose service they belong, unless the offenders are voluntarily
given up.” (I International Law, section 247.)

McNair and Lauterpacht.—”It is a principle of international law
that the armed force of one State, when crossing the territory of another
friendly country, with the acquiescence of the latter, is not subject to the
jurisdiction of the territorial sovereign, but to that of the officers and
superior authorities of its own command.” (Annual of Digest, 1927-1928, Case No.
114.)

Vattel.—”* * * the grant of passage includes that of every particular
thing connected with the passage of troops, and of things without which it would
not be practicable; such as the liberty of carrying whatever may be necessary to
an army; that of exercising military discipline on the officers and soldiers * *
*.” (III, 8, section 130, as quoted in Woolsey’s International Law, 6th ed.,
section 68.)

Without applying the recent treaty on military bases concluded between the
governments of the Philippines and the United States, it having reference to
base sites not involved in this case, and considering that a part of the United
States Army is stationed in the Philippines with permission of our government,
and that petitioners who belong to the military personnel of that army are
charged with violations of Articles of War for offenses committed in areas under
the control of the United States Army, thereby giving said army jurisdiction
over their person and the offenses charged, petition is dismissed, without
costs.

Feria, Pablo, Hilado, Bengzon, Briones, Hontiveros, Padilla, and
Tuason, JJ., concur.

PARAS, J.:

I concur in the result.

---

PERFECTO, J.:

Connected as civilian employees with the Manila Engineer Department of the
United States Army depot at the North Harbor, Manila, petitioners George L. Tubb
and Wesley Tedrow were arrested on January 4, 1947, by individuals posing as
agents of the CID (Criminal Investigation Division) and since then they were
confined, restrained and deprived of their liberty.

In their petition filed with this Court, dated February 20, 1947, petitioners
allege that in spite of the fact that they had been detained for more than one
month, no formal complaint or information for any specific violation of law has
been filed against them, nor any judicial writ or order for their commitment has
at any time been issued so far; that they did not commit any offense for which
they may be arrested, detained or deprived of their liberty without formal
charges or judicial warrant; that, according to information, they are detained
by the United States Army authorities at the North Harbor, Manila, at the behest
and alleged order of a certain Captain Thomas E. Griess, Security Officer of the
Manila Engineer District, whose office is at Pasay, Rizal; that their detention,
according to information, was based on the suspicion of having stolen and
disposed of certain construction materials, explosives, and other miscellaneous
items belonging to the United States Army; that they are not persons subject to
military laws and only a competent court having jurisdiction in the Philippines
can order their arrest, detention, and imprisonment; that there being no martial
law in the Philippines, war having been officially terminated as of December 31,
1946, and the Constitution in the Philippines being in full force and operation,
the detention and confinement of petitioners are utterly illegal.

Respondent Thomas E. Griess, Captain, Corps of Engineers, United States Army,
in his return averred that respondent, as an officer of the United States Army,
pursuant to orders issued by his superiors and in his official capacity as such
officer, has in custody the petitioners against each of whom charges have been
filed, which charges are to be tried and heard by a general court-martial; that
petitioners are each civilian employees of the United States Army in the
Philippines, Tubb under a written contract of employment dated January 30, 1946,
clause 26 of which, in part, reads: “The Employee understands he or she is
subject to U.S. Military Law while serving under this agreement,” and the latter
(Tedrow) under a written contract of employment dated July 29, 1946, clause 9 of
which, in part, reads: “You are subject to military law wherever it is
established by competent authorities;” that part of the United States Army is
stationed in the Philippines by virtue of the laws of the United States among
which is Joint Resolution No. 93, which provides for the mutual protection of
the United States and the Philippines and, petitioners were engaged as civilian
employees of said army; that all persons serving with the Armies of the United
States without the territorial jurisdiction of the United States are subject to
the articles of war of said country; that on January 28, 1947, formal charges
for violation of the 94th Article of War were filed against petitioner Tubb, and
on the same day formal charges for violation of the 96th Article of War were
filed against petitioner Tedrow, and it is by virtue of aforesaid charges and
military orders that respondent has custody of petitioners; that the place at
the North Harbor, Manila, where petitioners are in custody is under the
jurisdiction of the United States by virtue of duly executed leases dated June
14 and November 14, 1945; that petitioners are not confined in any prison or
jail but are confined under surveillance of respondent in their living quarters
which are situated on the leased premises.

At the hearing of this case, which took place on March 7, 1947, Atty.
Justiniano S. Montano appeared and argued for petitioner and Atty. J.A. Wolfson,
for respondent, The latter, accompanied by respondent and two-star generals of
the United States Army, garbed in their military uniform, made the statement
that this case has been communicated to Washington and that the U. S. Government
is interested in its result. The intimidation implied in the statement compelled
counsel for petitioners to make an impassioned protest against the uncalled-for
statement and one of the Justices made the statement to the effect that this
Court shall not allow any outsider to influence it in deciding this case.

No mention having been made in the decision of the incident, notwithstanding
the fact that it involves a clear attempt to jeopardize the authority and
dignity of this Court, we deem it necessary to state that such kind of attempts
should not be allowed to pass without a rebuke or a more drastic action. The
Supreme Court of the Philippines, if it is to uphold its dignity and prestige
and keep the faith and respect of the people, should not be slow in repressing,
correcting, or punishing any and all bullying tactics that any litigant or
attorney should resort to in a pending litigation. It is necessary to make of
record that in the performance of its official functions this Supreme Court will
not allow any foreign government or all the combined armies of the world to cow
it and to make it deviate even an iota from its duty. The interest of justice is
all-paramount. It is above all governments and armies, which, after all, if they
should serve the political and ethical purposes for which they are created and
established, are but also instruments to make justice effective.

Upon the undisputed facts in this case, we entertain no doubt that
petitioners are illegally deprived of their personal freedom and, therefore, are
entitled to be immediately released.

The commitment in their contracts of employment to the effect that they are
subject to military law may not repeal the mandates in the Bill of Rights of the
Constitution. Fundamental rights are not goods of commerce. They are not proper
subjects of contracts. Besides, petitioner’s commitment can never be construed
as a renunciation of their constitutional rights. Military law is not superior
nor equal to the supreme law. The Constitution is always paramount.

At the risk of being repetitious, it is necessary to remind that, under the
Constitution, no person shall be deprived of liberty without due process of law
nor shall any person be denied the equal protection of the laws. The right of
the people to be secure in their persons against unreasonable searches and
seizures shall not be violated, and no warrant shall be issued but upon probable
cause to be determined by the court after examination under oath or examination
of the complainant and the witnesses he may produce, particularly describing the
place to be searched and the persons or things to be seized. The liberty of
abode and of changing the same within the limits prescribed by law shall not be
impaired. No involuntary servitude in any form shall exist except for the
punishment of crime whereof the party shall have been duly convicted. No person
shall be allowed to answer for a criminal offense without due process of law.
All persons shall before conviction be bailable. Free access to the courts shall
not be denied to any person by reason of poverty.

All these constitutional guarantees are intended to protect not only Filipino
citizens, but all human beings within the territory of our Republic, including
American citizens and, if need be, even against their own government and army.
The fundamental law does not use the word citizens in the Bill of Rights. It
invariably uses the word person. Due process of law by which a person may be
deprived of his liberty contemplates judicial process. The Bill of Rights
contemplates judicial process. And judicial process can only be had with the
intervention of tribunals. Under Article VIII of the Constitution, the judicial
power shall be vested in one Supreme Court and in such inferior courts as may be
established by law. There cannot be and should not be any question that
petitioners1s fundamental rights, as guaranteed by the Constitution of the
Philippines, have been flagrantly violated and this Court will be recreant in
not granting them the expected relief to which they are entitled under the
law.

This is one more case in which, by majority vote, this Supreme Court
abdicates its powers, denying the victims of the redress to which they are
entitled. In this case the abdication of judicial power is aggravated by a
surrender of the sovereignty of the Filipino people. Without the benefit of
ambassadorial negotiations, of senatorial ratifications, or even of a scrap of
treaty or convention, the majority, in fact, accept and recognize
extra-territoriality, only to wash hands in petitioners’ case. No dissent is
vigorous enough against such judicial attitude.

Since international law has been indiscriminatingly and confusingly
misapplied in support of the glaringly erroneous majority opinion in Co Kim Cham
vs. Valdez Tan Keh and Dizon (75 Phil., 113), many have been misled into
imitating the example to the extent of creating a portentous Judicial vogue. The
fashionable is morbidly contagious. It seems that one is liable to lose his
self-respect if he can not invoke international law once in a while, although to
do it he has to hurriedly scratch the surface of the science and oftenly misread
his authors, an unavoidable risk in litigations where there is no legal issue
between nations. How risky it is shown by the hard time endured by those who
supported the majority opinion in the Co Kim Cham case to explain their
international law pronouncements, which shrewd counsel for petitioner in Laurel
vs. Misa (77 Phil., 856), had invoked as authority in support of the
theory of “suspended allegiance.” Inconsistencies are hard to explain. It is
even harder if the only reasonable explanation that can be given would exact an
honest admission of error. The greatness of soul required to confess an error
belongs only to the elite of moral aristocracy.

Here we have a litigation in which the legal issues are centered on the
question of the personal freedom of two individuals, small civilian employees in
the service of the U.S. army, and who happen to be under the territorial
jurisdiction of the Republic of the Philippines and under the pale of our
Constitution. The litigation does not raise any question involving any nation or
group of nations. The fact that petitioners are American citizens is
indifferent. Liberty, as one of the fundamental human rights, is a
constitutional issue, and not international. Notwithstanding this fact, the real
and only issue, the constitutional one, is side-stepped by the majority.
International law is used as a bludgeon to blast petitioners’ faith in the
inviolability of their constitutional rights.

At the expense of committing tuategory, we are compelled to conclude that
cheap international law has nowadays become a fashion in judicial and legal
circles. Under the spell of international law, the sense of legal values has
suffered and is enduring a moral disturbance, blurring judicial vision. Swayed
by the transient infatuation of the new legal fad, the majority allow themselves
to be blindfolded by the fulgour of the newly found juridical shibboleth to
ignore petitioners’ clamors for the vindication of their constitutional rights,
as guaranteed by our fundamental law, condemning their earnest prayers for
relief to the futility of “vox clamantis in diserto.” Such is the glamor of the
resounding international law that it was able to drown and obliterate completely
the humanitarian and lofty tenets stereotyped in the Constitution by the will of
the sovereign people.

Misunderstood, misinterpreted, misapplied, international law has become a
sort of juridical panacea, a universal thesaurus, always at hand for any
solution that can be desired in any ticklish litigation. It is even recognized
as endowed with aseity.

The root of this awry judicial attitude lies in a glaring misunderstanding
and misconception of Section 3, Article VIII of the Constitution which says:

“The Philippines renounces war as an instrument of national policy, and
adopts the generally accepted principles of international law as part of the law
of the Nation.”

There is the mistaken idea that international law had become part of the
Constitution and even superior to the primary principles and fundamental
guarantees expressly enunciated therein. To correct such a mistake, it is
necessary to remember the following basic ideas:

1. That the declaration that the Philippines “adopts the generally accepted
   principles of international law as part of the law of the Nation” is an
   enunciation of a general national policy but never intended to lay down specific
   principles, provisions, or rules superior or even equal to the specific mandates
   and guarantees in the fundamental law.

2. That “the generally accepted principles of international law” made part of
   our statute books are not placed in a higher legal hierarchy than any other law
   that Congress may enact.

3. That said “generally accepted principles of international law” are not fixed
   and unchangeable but, on the contrary, may undergo development and
   amplification, amendment and repeal, that is, the same biological rules that
   govern all laws, including the fundamental one.

4. That the general statement made by the Constitution implies that the
   principles of international law which should be considered as part of the law of
   the nation are subject to determination by the agencies of our government,
   including courts of justice, and once determined they may be amended, enlarged
   or repealed, exactly as any act of Congress.

5. That those principles are to be gathered from many sources—treaties and
   conventions, court decisions, laws enacted by legislatures, treatises, magazine
   articles, historical facts and others—and the majority of them must be sifted
   from conflicting opinions coming from said sources.

6. That the provisions of the Constitution should always be held supreme and
   must always prevail over any contrary law without exempting principles of
   international law, no matter how generally or universally they may be accepted.

Under the express provisions of the Constitution, petitioners appear
to be unconstitutionally deprived of their personal liberty and, therefore, are
entitled to be set free. To deny the petition, the majority invoke international law. In the
hypothesis that there is such a law in support of the majority position, that
law must give way to the supremacy of the Constitution.

The hypothesis happens to be wrong because it is expressly based on
pronouncements made in the case of Raquiza vs. Bradford (75 Phil., 50),
which, as we have shown in our opinion in said case, are completely
mistaken.

Said mistaken pronouncements are made to rely on the opinion of Chief Justice
Marshall in The Schooner Exchange vs. McFadden (7 Cranch, 116) which,
although rendered by one considered to be the greatest luminary whoever graced
the Supreme Court of the United States, was written long ago, in the
horse-and-buggy age, which, from the cultural point of view, notwithstanding the
inverse difference of years, appears to be millennia behind from our Atomic Age
than the Stone Age was from Marshall’s time.

But even accepting the validity of Chief Justice Marshall’s pronouncement,
there is nothing in them to support the majority position in this case, because,
while the American jurist recognized the jurisdiction of a foreign army passing
through another country over their “troops during their passage,” the majority
in this case fail to differentiate petitioners from said “troops,” both parties
agreeing that petitioners are civilians, and no one can pretend that Chief
Justice Marshall would commit the lexicographical error of including “civilians”
among the “troops” of an army.

The several quotations in the majority decision are inapplicable.

Wheaton is quoted by the majority to say that “a foreign army or fleet,
marching through, sailing over, or situated in the territory of another state *
* * are * * * exempt from the civil and criminal jurisdiction of the place.”
There is nothing in the words of Wheaton to authorize the majority position.
There is nothing in this case to intimate that this Supreme Court is asked or is
trying to exercise any jurisdiction over the United States Army stationed in
Manila. Petitioners are neither an army nor a fleet. They are just a couple of
American civilians.

Hall is the next authority invoked by the majority. The quotation states that
“offenses committed by soldiers” of passing or stationed military forces
“against the inhabitants are dealt with” under concluded “conventions,” adding
that when there are no such conventions, “it is believed that the commanders * *
* exert exclusive jurisdiction in principle in respect of offenses committed by
persons under their command.” It is clear that Hall offers no support to the
majority position. There is absolutely no convention that the majority may
invoke in this case, and what Hall said “it is believed” cannot seriously be
entertained by any court of justice. To accept a conjecture as an authority or a
basis to set a legal rule is below the level of judicial dignity.

“In the absence of a special agreement the troops would not be amenable to
the local law but would be under the jurisdiction and control of their own
commanders,” so says Lawrence, the third authority quoted by the majority.
Considering that petitioners are civilians and cannot be classified within the
designation of “troops,” to apply the words of Lawrence to the present case must
necessarily be based on a misreading.

The quotation from Oppenheim, the fourth authority invoked by our brethrens,
deals with “soldiers.” Has any one in this case pretended that petitioners are
soldiers?

The next authority is Westlake, affirming Wheaton’s view, and we have already
shown how this view is absolutely inapplicable to the present case.

The quotation from Hyde, the sixth authority invoked, deals with “organized
military force” and with “members of the force who commit offenses.” Here we
have another instance of missing the point, as the words “member” of an
“organized military force” can never be understood to include civilians.

The seventh authority is McNair and Lauterpacht. The quotation deals
exclusively with the jurisdiction on “the armed forces” of a foreign country.
Civilians are not a part of armed forces.

The eight and last authority is Vattel, and the quotation in the majority
opinion contains absolutely no word applicable to the present case. The nearest
are where the author says “that the grant of passage includes * * * that of
exercising military discipline on the officers and soldiers.” To apply the
quotation to the present case, petitioners must first undergo a metamorphosis to
cease’ being civilians and, through magic, become overnight “officers” or
“soldiers,” so the facts in this case can be made to conform to the legal theory
intended to be applied by the majority.

The above analysis of the very quotations inserted in the majority opinion
show conclusively that the pretended principles of international law invoked by
the majority in support of their position happen to be conclusively missing in
each and everyone of the very quotations inserted in their opinion. Only the
force of an overpowering auto-suggestion can permit one to read in those
quotations what is not written therein.

Proneness to read in the writings of authorities of international law or even
in judicial decisions any ruling, principle, or doctrine, that may justify the
trampling down of the fundamental human rights invoked by petitioners, rights
which are specifically guaranteed in our Constitution and in the constitutions
of all democracies and enlightened countries, must have been corrected once and
for all since June 25, 1945, when the Charter of the United Nations was adopted
in San Francisco.

Since then, the principles or rules of international law which may happen to
be incompatible or deviating from the principles and ideals enunciated in the
Charter must be considered obsolete.

In the said Charter, the United Nations asserted their determination:

“to save succeeding generations from the scourge of war, which twice in our
lifetime has brought untold sorrow to mankind, and

“to reaffirm faith in fundamental human rights, in the dignity and worth of
the human person, in the equal rights of men and women and of nations large and
small, and

“to establish conditions under which justice and respect for the obligations
arising from treaties and other sources of international law can be maintained,
and

“to promote social progress and better standards of life in larger
freedom.”

Anybody will notice that “fundamental human rights” and “dignity and worth of
the human person” form part of the supreme concern of the United Nations,
Neither the Philippines nor the United States of America can honorably ignore
the solemn commitments entered into by them as members of the United Nations.
All the agencies of their respective governments, including tribunals and
armies, are duty bound to respect, obey and make effective those commitments.
The preamble of the Charter specifically provides “that armed forces shall not
be used, save in common interest,” the latter comprehending the basic purposes
of the organization of the United Nations, such as “promoting and encouraging
respect for human rights and for fundamental freedoms for all without
distinction as to race, sex, language, or religion.”

There is absolutely no reason why we should be afraid, reluctant, or hesitant
in performing our duty to grant petitioners the legal relief to their illegal
and unconstitutional deprivation of personal liberty, because our action may
displease the army or the government of the United States of America, or because
the American army stationed in Manila may disregard our decision.

Justice is one of the paramount concerns and ideals of humanity. We cannot
believe that any part of the United States army stationed in the Philippines
would dare to challenge a final decision of this Supreme Court or of any court
in the Philippines. We cannot believe that any responsible officer or soldier of
that great army will ever commit an act that may tarnish the record of brilliant
and glorious achievements it accomplished in the battle of the Philippines. That
army fought to help us reconquer our freedom from Japanese slavery and to obtain
justice against the criminal invasion of our soil, and we cannot believe it will
ever do anything to obstruct the efficient functioning of our machinery of
justice.

But whether this litigation has been communicated to Washington, or whether
the United States Government is interested in its outcome, or whether the
American army may ignore any decision we may render in favor of petitioners, or
whatever adverse action may be taken by the all-powerful United States, these
are considerations that should not stop us from doing our duty in the
administration of justice. No power in the whole universe should be allowed to
deter us from performing our functions as our conscience dictates. Others may do
as they please, but we cannot have any other alternative but to keep this
tribunal as the veritable bulwark of the Constitution and of the fundamental
rights guaranteed therein. Only by failing to do so may we merit the sneers of
shame, the wrath of our people, the curse of the present and future generations,
the scorn of all humanity. There is no greater mission in life than justice.
There is no greater responsibility than to administer it.

On February 10, 1947, by unanimous vote of all the members of this Court, the
petition in Martin vs. Ramos (L-1290), was summarily dismissed, without
the need of requiring any answer from the respondents. The legal question
involved appeared so clear to entertain any doubt. All the Justices in this
Court maintained that the Court of First Instance of Ilocos Norte has
jurisdiction to try Felipe Martin, a guard in the service of the United States
Army in Laoag, for killing Pantaleon Tabac while said Martin was in the
performance of his official duties as a guard. Said court denied the petition of
Lt. Walter T. Bartlett to have Martin delivered to the United States Army.

Now the legal position in the Martin case is reversed with the decision in
the present case. The inconsistency is unquestionable. What is the reason of
this change of judicial criterion in two months1s time? There is no valid
reason. There is no legal justification.

We dissent from such judicial fickleness. The apodeictic self-contradiction
involved in the reversal can not help strengthen popular faith in the decisions
of this Court. Judicial inconsistency is a conclusive evidence that of two
inconsistent decisions one is necessarily wrong and unjust, based on false
theory, founded on fallacious doctrine. Who is going to judge which of the two
contradictory decisions is true to justice? Tribunals enunciate very often the
Latin maxim “falsus in unus, falsus in omnibus.” By its inconsistency, is not
this Supreme Court being placed in the quandary of seeing the logic of that
maxim hanging upon it as a sword of Damocles?

We refuse to believe that the fact that respondent, an officer of the United
States Army, is vigorously opposing the petition, and that his attorney hurled
at our face a menacing statement which, unfortunately, has not been met, either
promptly or belatedly, by appropriate action from this Court, has anything to do
with the reversal. But apparently stronger reasons than the inapplicable
quotations on international law made in the majority opinion must be adduced to
allay all suspicion that judicial supremacy is being abdicated in favor of
military omnipotence. A journalist has recently published this assertion: “Under
prevailing judicial policy our courts are afraid to go against the theoretical
independence of each of the three branches of government, in spite of the
judiciary’s function as guardian of the Constitution.” That the newspaperman,
instead of using another word, had written “afraid” and once Mr. Justice Ozaeta
had to allude to what he called “judicial timidity” are alarming symptoms that
need be quelled, not by verbal protests, but by positive action, the meaning of
which should be conclusive to everybody.

Larger doses of dynamism and red blood must be injected in judicial thought
so as to free it from all hindering complexities, to emancipate it from all
human frailties, to allow it to loosen all moral shackles that may keep it from
resolutely facing its tasks and acting with Olympian serenity. Formerly no
Justice or judge dared to discuss decisions or methods of their courts believing
it offensive to propriety. On March 16, 1947, we delivered before the College
Editors’ Guild a speech discussing some decisions and methods of the Supreme
Court. No one suspected then that we were starting a revolution in judicial
attitude. One week later all our brethren released public statements to the
press, addressed to the people at large, wherein, trying to answer our speech,
they took occasion to expose and condemn our alleged individual defects and
personal conduct, to the extent of assuming what our sense of righteousness and
personal dignity should counsel us and of suggesting our resignation.

The freedom of expression of Justices and judges, as one of the fundamental
human rights, achieved a moral victory against the superstitious fear to offend
the dreaded sense of propriety, which, after all, is nothing basic and is but an
expression of collective or individual taste, highly momentary and changeable as
any fashion can be. Now all the members of the Supreme Court are unanimous in
the position that we should not be afraid to exercise our freedom of expression
even outside of this Court.

Our brethren’s branding our conduct as highly improper and inconsistent with
the self-restraint of members of an appellate court can not prevail upon the
significance of their own course of action in releasing their press
statements.

Our duty to interpret, apply and make effective the Constitution must be
performed without any fear nor favor. Must not be deterred by the mistaken idea
that there exists any principle, rule or doctrine of international law that can
supersede, supplant, or overpower the fundamental law. No consideration,
absolutely no consideration, should be allowed to deviate us from that duty.

President Roxas a few days ago made the following statement:

“This administration is determined to raise the standard of the judiciary to
the highest level so that the people may have full trust and confidence in our
courts. This objective can only be attained if the judges are men of the highest
integrity and moral character, of unquestioned capacity, and of broadest human
sympathies and understanding. They should not only be familiar with the law but,
above all. they should respect and apply it under all circumstances and never to
sacrifice the same for the sake of expediency.”

The petition in this case, besides invoking the guarantees of the
Constitution, is an appeal to our “broadest human sympathies and understanding.”
If, according to President Roxas, judges should respect and apply the law “under
all circumstances and never to sacrifice the same for the sake of expediency,”
then there is absolutely no reason why petitioners should be denied the
protection of the law “par excellence,” the supreme law, the Constitution.

Of course, neither the President of the Philippines nor any authority on
earth, except the people from whose sovereignty our powers are derived, may take
any hand on how this Supreme Court is to administer justice, but the standard
set in the presidential statement is so basically sound that we do not see any
reason why it should not be included in our goals.

The decision in this case has a wider and deeper significance than
superficial observers may gather from the insignificance of the individuals
concerned. It goes down to shake the very foundations of human society and
reaches far to the destiny of civilization. The effectiveness of legal and
constitutional guarantees of human rights is the one in issue. The majority
decided to set at naught that effectiveness. If the law can not afford effective
protection to individual rights, where shall we look for that protection? Since
its more primitive stages, human society has been able to exist thanks to law as
its strongest foundation. The binding force of law unified the members of a
family under its head, patriarch or matriarch; grouped families into clans and
tribes; created towns and cities; consolidated nations and federations of
states. That binding force is the sovereign talisman that will weld all humanity
into the unity essential for the attainment of the ideal of One World.

There is despair in many hearts. There are many who feel that an upheaval is
going to doom mankind into universal destruction. They think that the very
foundations are falling apart. The harnessing of atomic energy gives them little
consolation. While it is considered as the greatest scientific triumph, the
outstanding milestone in human progress, a source of new light, new warmth, new
freedom, new happiness, it also placed man on the brink of an abyss where only
ruin and chaos can exist. The greatest victory in the conquest of nature may yet
prove to be the unhappiest and last tragedy for man. But these gloomy
premonitions, alarms, fears, and despair shall be dispelled once we think than
eventually all the countries, nations and peoples of the world will adhere to,
abide by, and enforce the principle of singleness of the law as the only means
of ensuring world peace. The Charter of the United Nations and the Statute of
the International Court of Justice are the first steps in the right direction.
They are laws intended for the majority of the nations of the earth. We hope
that in no distant future will the whole mankind he ruled by the same laws
enacted by a single world authority, representing the world’s collective
conscience.

But to attain this ideal we must strengthen faith in the law, in its
effectiveness, in its vitalizing social function, in its guarantees of human
rights. That faith can not be strengthened by making of the safeguards of the
Constitution a mummery.

The petition must be granted and so we vote.