JOSE CARAOS, PETITIONER, VS. IÑIGO S. DAZA, JUDGE OF FIRST INSTANCE OF BATANGAS, JOSE A. ALANO, PROVINCIAL FISCAL OF BATANGAS, AND THE DIRECTOR OF PRISONS, RESPONDENTS.

DE JOYA, J.:


This is a case of certiorari and habeas corpus in which the petition was
filed originally in this Court.

Petitioner Jose Caraos alleges in his petition that on January 6, 1944, he,
with his two brothers, Ramon Caraos and Emilio Caraos, were prosecuted for the
crime of homicide in Criminal case No8 374, entitled People vs. Jose
Caraos, in the Court of First Instance of Batangas; that after due trial, on May
3, 1944, said court rendered its judgment convicting herein petitioner of said
crime and sentenced him to suffer a term of imprisonment, ranging from six (6)
years and one (1) day of prision mayor, as minimum, to twelve (12)
years and one (1) day of reclusion temporal. as maximum, to indemnify
the heirs of the deceased Leoncio Tlagan in the sum of Two Thousand (52,000)
Pesos, and to pay one-third (1/3) of the costs; while his said two brothers were
acquitted of the crime charged; that petitioner did not appeal from said
decision, and on May 3, 1944, he commenced serving his sentence in the
provincial jail of Batangas; that on November 9, 1944, he was released from said
provincial jail “by order of the Provincial Governor of Batangas pursuant to fa
pardon issued by the authority concerned on those days of Japanese military
occupation”; that by virtue of a complaint filed by Mrs. Estrella Punzalan Vda.
de YLagan, wife of the deceased Leoncio Ylagan, victim in said homicide case,
with the Department of Justice, after liberation, the respondent Jose A. Alano,
provincial fiscal of Batangas, conducted an investigation, on February 8, 1946,
to determine the facts and circumstances of the release of herein petitioner
from the provincial jail of Batangas, taking the testimony of Antonio Casanova,
chief of police of Taal, Batangas, Estrella Punzalan Vda. de Ylagan, Marceliano
K. Medina, provincial warden of Batangas, from June, 1942 to December, 1944,
Maximo M. Malvar, provincial governor of Batangas, during the Japanese
occupation, and petitioner Jose’ Caraos himself; that, on March 6, 1946, said
Estrella Punzalan Vda, de Ylagan filed an ex parte motion in the Court
of First Instance of Batangas, requesting the issuance of a warrant for the
arrest of herein petitioner to continue serving the unexpired portion of the
penalty imposed upon him; and that on the same day, March 6, 1946, respondent
Judge Sigo S. Daza ordered the issuance of an order of commitment for the
incarceration of petitioner Jose Caraos, and at the same time ordered his arrest
for that purpose. The following day, March 7, 1946, the respondent Judge ordered
the confinement of hereiff petitioner in the provincial jail of Batangas. Jose
Caraos filed a petition for the reconsideration of said order dated March 6,
1946, which was denied on March 26, 1946.

To the petition for certiorari and habeas corpus, filed, in this Court, were
attached a copy of the docket entries in said Criminal case No. 374, as Annex
“A”; the transcript of the testimony of the witnesses that testified in the
investigation conducted by the respondent provincial fiscal of Batangas, as
Annex B; copy of said ex parte motion filed on March 6, 1946, by
Estrella punzalan Vda. de Tlagan, as Annex “C”; copy of said order issued by
respondent Judge Iñigo S. Daza, on March 6, 1946, as Annex “B”; copy of the
order, dated March 7, 1946, issued by said respondent Judge, for the confinement
in the provincial jail of Batangas of the person of petitioner Jos£ Caraos, as
Annex “E”; and copy of the order, dated March 26, 1946, issued by said
respondent Judge, denying Jose’ Caraos’ petition for the reconsideration of said
order, as Annex “F”.

On May 2, 1946, on behalf of the respondents, the provincial fiscal of
Batangas filed an answer to said petition for certiorari and habeas corpus,
expressly admitting the allegations made in said petition, except those
contained in paragraphs 4, 5, 12, 13, 14, 15, and 17, to the effect that herein
petitioner had been released on November 9, 1944, pursuant to pardon granted or
executive clemency extended to him by the proper authorities; that the orders
issued by the respondent judge for his arrest and confinement are illegal and
null and void; and that he is now being illegally detained, all of which were
expressly denied. As special defenses, respondents allege (1) that the
respondent Judge has jurisdiction to issue the order of arrest and confinement
of the petitioner, for the service of the unexpired portion of his sentence; (2)
that the petitioner’s release from the Batangas provincial Jail, where he was
temporarily confined as an insular prisoner, was ordered in a state of emergency
to provide for his safety; (3) that normal conditions having returned, it is but
just and legal that he should be rearrested and ordered to serve the unexpired
portion of his sentence; (4) that the respondent Judge had a perfect right to
issue the order complained of, in the exercise of his inherent powers, to compel
obedience to the judgment rendered by the court and to control the conduct of
its ministerial officers; (5) that there was no pardon granted or executive
clemency extended to the petitioner, at the time he was released from jail, in
November or December, 1944.

On May 13, 1946, on behalf of the respondent Director of Prisons, the
Solicitor-General filed an answer, alleging that petitioner Jose’ Caraos has
been confined in the New Bilibid Prison, since April 8, 1946, by virtue of a
mittimus issued by the Court of First Instance of Batangas, having been
convicted of the crime of homicide, on May 3, 1944, and sentenced to six (6)
years and one (1) day of prison mayor to twelve (13) years and one (1) day of
reoluslon temporal; that said respondent Director of Prisons has no knowledge or
information of any valid pardon granted by competent authority to said
petitioner so as to entitle him to be released from custody; that the pardon
alleged in the petition was illegal, nail and void, and that herein petitioner
therefore, subject to imprisonment for the unexpired portion of his
sentence.

It is an undisputed fact that on May 3, 1944, herein petitioner was found
guilty of the crime of Homicide, committed on the person of one Leonoio Ylagan,
and sentenced by the Court of First Instance of Batangas to an indeterminate
penalty ranging from six (6) years and one (1) day of prision mayor, as
minimum, to twelve (12) years and one (1) day of reclusion temporal as
maximum, and to indemnify the heirs of the deceased in the sum of Two Thousand
(12,000) Pesos, and to pay one-third (1/3) of the costs; and that Herein
petitioner did not appeal from said decision, and he commenced serving said
sentence from May 3, 1944. It is also admitted that herein petitioner was
released from the provincial jail of Batangas, where he was confined
temporarily, as an insular prisoner, in November or December, 1944.

Petitioner alleges that he was released “by order of the Provincial Governor
of Batangas, pursuant to a pardon issued by the authority concerned on those
days of Japanese military occupation.” Such is the vague and ambiguous
language used by the petitioner in the petition for certiorari and habeas corpus
filed in this Court. And the only question to be determined in this case is
whether such pardon or executive clemency had really been extended to herein
petitioner by the proper authorities, in November or December, 1944.

According to the testimony given by petitioner Jose Caraos, in the
investigation conducted by the respondent provincial fiscal, on February 8,
1946, certain relatives and friends of his, upon whom he depended to work for
his release or pardon, approached the provincial governor of Batangas to
intercede, on his behalf, for his release or pardonj that one week: before he
was actually released by the provincial warden, he had heard that he was going
to be released or pardoned, and that before his release on November 9, 1944,
there had been bombing and strafing in the vicinity of the provincial capitol of
Batangas, where the provincial jail wag located; and that he received his
release papers, but lost them*

Marceliano K. Medina, provincial warden of Batangas at the time, stated that
by order of the provincial governor all the prisoners were released in December,
1944, on account of continuous bombing, but that he could not remember whether
herein petitioner Jose Caraos was included among them; and that certain other
prisoners had been released prior to December, 1944, by executive clemency, but
whether herein petitioner was included among them, he could not remember.

Maximo M. Malvar, provincial governor of Batangas at the time, testified that
he ordered the release of all prisoners in December, 1944, on account of
continuous bombing and scarcity of food; and that others had been released
pursuant to executive clemency prior thereto, but he could not remember whether
herein petitioner was included among them.

Estrella Punzalan Vda. de Ylagan testified that after herein petitioner Jose
Caraos had been sentenced in May, 1944, she saw him in Taal, Batangas, in the
early part of December, 1944, although in her ex parte motion, dated
March 6, 1946, she stated that herein petitioner was released on November 9,
1944, due to continuous bombing and scarcity of food. The statement made by
Estrelia Punzalan Yda. de Ylagan, in her motion dated March 6, 1946, to the
effect that herein petitioner was released on November 9, 1944, must have been
influenced and induced by the declaration made by said petitioner that he had
been released on November 9, 1944, when he testified before the respondent
provincial fiscal, on February 8, 1946, in the opinion of the Court, there is
not sufficient evidence to establish the fact that on November 9, 1944, herein
petitioner was released from the provincial jail of Batangas, pursuant to a
pardon granted or executive clemency extended to him by competent authority.

Under the law, the only authority that could have granted pardon or executive
clemency to herein petitioner, during the Japanese occupation, was the President
of the so-called Philippine Republic, or the Commander-in-Chief of the Japanese
Imperial forces. (Sameth vs. Director of Prisons, p. 613,
ante). But no competent or satisfactory evidence has been presented to
show that such pardon had been granted. The order issued for his arrest was,
therefore, legal and proper. (People vs. Ponce de Leon, 56 Phil. 386,
391).

If herein petitioner had really been pardoned either by the Commander-inChief
of the Japanese Imperial Forces or by the President of the so-called Philippine
Republic, on November 9, 1944, he should have presented certified copies of his
petition for pardon and of the alleged pardon extended to him. There must be
records of such official acts, if they had really taken place; and herein
petitioner has failed to present any, coming either from the Insular Government
or the provincial government of Batangas.

In a similar case, an unsigned and uncertified copy claimed to have been
furnished to the clerk of court or the Chief of Constabulary of an alleged
pardon was not considered competent evidence to establish the fact that pardon
had really been granted to the accused {United States vs. Zapanta and
Lampano, 33 Phil. 567).

When in the petition for certiorari and habeas corpus filed in this case, the
petitioner alleged that he had been released “by order of the Provincial
Governor of Batangas pursuant to a pardon issued by the authority concerned on
those days of Japanese military occupation,” he himself unwittingly revealed
that no pardon had been legally granted by competent authorities; and that if
petitioner had been pardoned at all, it must have been extended to him by the
provincial governor of Batangas, who had absolutely no right or authority to
extend to him executive clemency. In case of an invalid pardon, the original
sentence imposed upon the prisoner must be carried out, (Cabantag vs.
Wolfe, 6 Phil, 273).

The other possible and logical conclusion is that herein petitioner was among
the prisoners whose mass release was ordered by the provincial governor of
Batangas, sometime in December, 1944, for their own safety and protection, due
to the continuous bombing and strafing of the vicinity in which the provincial
jail was located, by the American Air Force, and the scarcity of food; in which
case it was his duty to surrender himself upon the restoration of normalcy.

If the contention of the petitioner were true, his relatives and friends, who
had allegedly helped to secure his pardon, and who must have been known to him,
should have been presented as witnesses to testify to that effect, at the
investigation conducted by the provincial fiscal. Failure on his part to present
their testimony, unfortunately for him, gives rise to the presumption that there
were no such witnesses; and that if there were any, their testimony would be
adverse and unfavorable to the pretension of the prisoner. (United States
vs. Sarikala, 37 Phil. 486; Ahern vs. Julian, 39 Phil. 607;
Ramos vs. Ramos, 45 Phil. 562).

Furthermore, no special reason has been advanced why herein petitioner should
have been pardoned; and strange to say, in his testimony given before the
respondent provincial fiscal, he failed to disclose the nature of the release
papers he claimed to have received, and the authority by which they had been
allegedly issued.

Inasmuch as Herein petitioner has not surrendered to proper authorities,
after Liberation, his condition is analogous to that of a prisoner, who has
escaped from the penitentiary establishment. Under such circumstances, it was
not only the right but the imperative duty of the courts, in toe exercise of
their inherent powers (Rule 1B4, section 5, Idles of Court), concurrently with
the Chief Executive (Rev. Adm. Code, section 64 (i), to order his
arrest, so that he might serve the unexpired portion of his sentence; and the
corresponding warrant of arrest was needed by the agents of the authorities for
their own protection.

In view of the foregoing, it is evident that herein petitioner Jose Caraos
has utterly failed to establish, by competent and satisfactory evidence, that he
had been pardoned by the proper authorities, and released from the provincial
tail of Batangas, by virtue thereof, on or about November 9, 1944; and he must,
therefore, continue under confinement to serve the unexpired portion of the
sentence imposed upon him; and, consequently, his petition for certiorari and
habeas corpus must be denied and dismissed, with costs.So ordered.

Moran,
C.J., Feria, and Pablo, JJ., concur.

DISSENTING

PARAS, J.:

The record of the case shows that all the
prisoners in the provincial jail of Batangas were released in December, 1944, on
account of the emergency: lack of food and continuous bombing of the vicinity.
Some prisoners were, however, released on November 9 of the same year due to
executive clemency. The only evidence as to the exact date of the release of the
herein petitioner consists of his own testimony and that of the widow of the
deceased. The former affirmed that he had been released on November 9. His
statement to that effect is corroborated by that of the widow. His release,
therefore, could not have been due to the emergency. Had this occurred on
November 9, when the petitioner was released, no prisoners would have been
allowed to remain. In fact, petitioner knew, a week before November 9, that he
would be released on account of the efforts of his family and friends to obtain
pardon from the Chief Executive. I vote to grant his release.

DISSENTING

PERFECTO, J.:

On January 6, 1944, petitioner was prosecuted with his brothers Ramon and
Emilio for homicide, and on May 3, 1944, the Court of First Instance of Batangas
sentenced petitioner to imprisonment from 6 years and 1 day to 12 years and 1
day, to indemnify the heirs of Leoncio Ilagan in the sum of P2,000.00 and to pay
one-third of the costs. His two brothers were acquitted. The petitioner, who
never enjoyed liberty since his arrest on December 27, 1943, commenced to serve
his sentence in the provincial Jail of Batangas. On November 9, 1944, the
petitioner was released.

Petitioner alleges that his release was the result of the work of his
relatives and friends for executive clemenoy and by virtue of an order of the
Provincial Governor in pursuance of a pardon issued by the authority concerned.
In support of this allegation, petitioner invoices the testimonies given by
himself, by the Provincial Warden and by the Provincial Governor before the
Provincial Fiscal of Batangaa in an investigation conducted by the latter on
February 5, 1943. Petitioner alleges also that after investigation, respondent
Fiscal llano filed a motion of parte with the Court of First Instance of
Batangas for the issuance of a warrant of arrest against petitioner, which
petition was verbally denied by Judge Macadaeg, who told respondent to withdraw
said motion. On March 6, 1946, granting a motion ex parte filed by the
widow of leoncio Ilagan, respondent judge ordered the issuance of a warrant of
arrest against petitioner. On March 7, the same Judge issued another order
commanding the Provincial Jailer to confine the body of petitioner until further
orders.

On March 7, 1946, petitioner filed a special appearance contesting the
jurisdiction of the court over his person and the subject matter of the case.
The motion was answered by Fiscal Enriquez on March 11. On March 18, petitioner
filed a memorandum in support of the special appearance and on March 21, the
Provincial Fiscal filed a reply memorandum. On Maroh 26, respondent judge issued
an order against petitioner’s proposition.

Alleging that he is deprived of his personal freedom in Muntinlupa by the
Director of Prisons pursuant to the orders of respondent Judge dated March 6,
1946, petitioner comes now to ask relief by writ of habeas corpus. Fiscal llano,
appearing for respondents, alleges that the Court of First Instance of Batangas
has jurisdiction to order petitioner’s arrest and confinement in prison for the
purpose of serving the unaerved portion of the sentence for the crime of which
he was adjudged guilty, in pursuance of Section 5, paragraph (c), of Rule 124;
that petitioner’s release was done during emergency to provide for his safety;
that normal conditions having returned, it was legal to order his apprehension
by the proper authorities for the continuation of the service of his sentence;
that the power of the lower court to issue tike orders complained of was
supported by Section 5, par. (e), of Rule 124; that no pardon or executive
clemency was extended, to petitioner when he was released from Jail in November
or Deoember, 1944; that the record of the administrative investigation conducted
by the fiscal on February 8, 1946, was not formally offered as evidence in the
lower court and respondent judge had no way of considering the reoord as
evidence; that even if the reoord was offered as evidence, the fact that the
petitioner was granted pardon was not proved to the satisfaction of the
fiscal.

There are two main questions in this oase: (1) whether petitioner was
released on November 9, 1944, on pardon issued through executive clemency, and
(2) whether respondent judge had Jurisdiction to issue the orders complained of
for the rearrest and recommitment of petitioner.

Upon the records, we are of opinion that there is enough evidence to support
petitioner’s theory to the effect that he was released unconditionally on
November 9, 1944, in purstenoe of a pardon issued through executive clemency.
Petitioner testified that when he was released on November 9, 1944, the warden
made him believe “that I was absolutely free”. “I have — he continued —
relatives and friends whom I depended upon to work for my immediate release or
pardon, is a matter of fact one week before my release I received Information
that I would be released or pardoned.

From the testimonies of the Provincial Governor and the Provincial Warden, it
appears that in December, 1944, for prisoners’ safety, a mass release of the
prisoners from the Provincial Jail was ordered because of the constant bombings
and strafing by the American air force and the Provincial Government was unable
to provide them with sufficient food, but that before that, there were other
prisoners “who were released under executive clemency”. From these undisputed
and uncontradioted testimonies of two competent and disinterested witnesses upon
whose veracity there is absolutely no reason to doubt, it is evident that those
prisoners released from the provincial jail before the mass release made in
December, 1944, due to exceptional circumstances created by an uncontrollable
emergency, were given freedom “under executive clemency”, the very words used by
the Provincial Governor. It having been shown conclusively, without any dispute
or contradiction, that petitioner was released on November 9, 1944, there is no
way of eluding the logical consequence that he was released “under executive
clemency”.

From petitioner’s testimony, which was neither impugned nor contradicted in
any way, it appears that his relatives and friends approached Provincial
Governor Maximo Malvar to intercede in petitioner’s behalf for his release or
pardon” and that when he was set free he was handed release papers which he,
unfortunately, had lost. This testimony fits well in a pattern in which
petitioner appears to have been released from confinement on pardon. The fact
that when he was released he was handed what in the fiscal’s question is simply
described as “release papers,” does not preclude the fact that among them was
included a pardon issued through executive clemency. Let it be remembered that
during the Investigation conducted by the fiscal, petitioner appeared alone,
unassisted by any attorney, and he was made to answer only the questions the
fiscal might propound to him and coached in words which might adequately stress
what ideas the fiscal had in his mind during the investigation. The
investigation was conducted by order of the Department of Justice and upon a
complaint with it by Mrs. Estrella Punzalan, widow of Ilagan. It is probable
that the fisoal oonducted the investigation with the complaint in view and with
the purpose of finding out grounds for petitioner’s rearrest. Under such
circumstances, it can not be expected that the petitioner could correctly
present his case, notwithstanding this fact, if we are to be fair to him, his
testimony offers enough ground in support of the theory that he was granted
pardon, a word specifioally mentioned by the fiscal in one of his questions
addressed to petitioner. The question of fact we are disoussing about, being
direotly related to the criminal case and which affects the personal liberty of
an accused, must be Viewed with the idea of deciding all doubts in favor of the
aooused. Under any or all criteria of logio, we believe that petitioner has
conclusively proved that he was pardoned and released as a result of an
executive clemency extended to him. The result must by necessity favor
petitioner under the preponderance rule in civil cases or under the doubt rule
in criminal cases. That petitioner had lost his release papers, including the
pardon, and the fact that he was unable to exhibit them at the fiscal’s
investigation, is no reason to do him injustice; in the first place, because
under the Japanese occupation any one was able to lose anything; and in the
second place, the oral evidence on record supplies sufficiently the absence of
the lost primary evidence. The doctrine in U. S. vs. Zapanta (33 Phil.
567) is not applicable here, because there no evidence of the loss of the
primary evidence of the pardon was presented or offered, the simple carbon oopy
of the alleged pardon not having been identified or oertified as true oopy, and
there was no basis for admitting it as a proper secondary evidence.

That if petitioner had been pardoned either by the Commander of the Japanese
imperial Forces or by the President of the so-called Philippine Republio, he
should have presented oertified copies of his petition for pardon and the pardon
extended to him, because there must be records of such official acts, is a
proposition to which we can not agree, it appearing that petitioner was not
given the opportunity to offer said certified copies. The investigation
conducted by the fiscal was, at best, ex parte. And although petitioner
was called to testify therein, he appeared to have been summoned as an ordinary
witness, and was not given the necessary opportunity to be assisted by counsel.
In fact, petitioner contested fiscal’s jurisdiction on the matter, before he was
compelled to testify. If we have to be fair to petitioner, we must aooept the
evidence presented before the fiscal as the real fact, that is, that petttioner
had been pardoned, it appearing that the evidence presented to said effect is
not impugned or contradicted. And, if the evidence is not satisfactory to us,
petitioner must be granted the neoessary opportunity to offer what evidence he
can present in a new investigation that must be conducted by a commissioner of
this Court or by the lower court itself. He can present, then, the certified
copies and the testimony of his relatives and friends, upon the absence of of
which the majority deny him the relief sought in the petition. Grave injustice
is done! against petitioner by presuming from the lack of said evidence
conclusions adverse to Him when he was not given the opportunity to offer
it.

Under the theory maintained in our dissenting opinion in Co Kim Cham
vs. Dizon, (75 Phil., 113), the judicial process under which petitioner
was convicted and sentenced in 1943 was null and void as a result of General Mac
Arthur’s proclamation of Ootober 29, 1944, and, therefore, there is no ground
for confining the petitioner under the authority of a sentence whloh is now null
and void. Even if said decision was valid, petitioner having been released on
pardon through executive clemency, said pardon being one of his processes
declared as valid by the majority opinion in Co Kim Cham vs. Dizon,
L-5, Where a eoto government was recognized existing and functioning during the
Japanese occupation, he is still e’ntitled to the release by virtue of said
pardon.

The theory that, under the law, the only authority that could have granted
pardon or executive clemency during the Japanese occupation, “was the President
of the so-called Philippine Republic, or the Commander-in-Chief of the Japanese
Imperial Forces,” lacks any support in the record. There is no evidence of any
law existing in 1944, during the Japanese occupation, limiting to the President
of the so-called Philippine Eepublio and the Commander-in-Chief of the Japanese
Imperial Forces the power to grant pardon. We do not have any information as to
the existence of any such law, which, besides, is not among those upon which
judicial notice may be taken under the rules. If common experience prevailing
during the enemy occupation should be taken as a criterion, we would rather say
that no such, law had existed and that, under the legal confusion, anarchy and
chaos then obtaining, almost any public officer had unlimited powers of all
kinds to the extent that no one is Justified to maintain the theory that the
power of pardon was exclusively exercised by both the President of the so-called
Philippine Republic or the Commander-in-Chief of the Japanese Imperial Forces.
As correctly stated by petitioner’s oounsel in his oral argument at the hearing
of this case, it was not unusual for any Japanese officer to release or order
the release of any person found guilty and sentenced to imprisonment by any
court of justice. Although Filipino civil officers might not have exercised on
their initiative the same power of pardon, it is not improbable that they had
exercised it under directions of Japanese advisers, each of whom, at least, was
attached to every Filipino government office, including the highest of them. If
any evidence is needed, the recent case of Sameth (1-351) will readily come to
our mind to show how the Director of Prisons himself had released many prisoners
from Muntinlupa upon instructions or orders from Japanese commanders.

Our Constitution, of course, limits to the President of the Philippines the
exercise of the power of pardon, but it is not right to judge government
processes during the Japanese administration under the same legal standards
prevailing in our Commonwealth.

Now, the next question raised in this case is whether the lower court has
jurisdiction to order the arrest and recommitment of the petitioner for the
purpose of compelling him to serve the remainder of his prison term after the
criminal case for which he was prosecuted and sentenced had been completely
terminated and after the petitioner had been committed to imprisonment and, as a
matter of fact, had served many months of the imprisonment to which he was
sentenced. Petitioner maintains the negative upon the principle of separation of
powers and respondents maintain the affirmative upon the authority of Section 5,
para, (c) and (e), of Rule 124.

Section 5, pars, (c) and (e), Rule 124, is as follows:

“SEC. 5. Inherent powers of courts.— Every court shall have
power:

*          *          *          *          *          *          *

“(c) To compel obedience to its judgments, orders, and process, and to the
lawful orders of a judge out of court, in a case pending
therein;

*          *          *          *          *          *          *

(e) To compel the attendance of persons to testify in a case pending
therein.”

The above-quoted provisions do not support respondents’ position. Paragraph
(c) is clearly inapplicable. It requires the qualification “in a case
pending therein” which can not exist in the present case. (1) beoause the
criminal case in which petitioner had been sentenced had ceased to be pending
since he began to serve the sentence on May 3, 1944 and (2) because the case has
not; been and could never be pending before respondent judge, who is presiding
over a court of the Commonwealth, whioh can not be confused or identified with
the court under the Japanese regime which sentenced petitioner.

As to paragraph (e), it is evidently inapplicable became the
rearrest and the recommitment of the petitioner were not made to compel a
witness to testify in a pending case.

From the foregoing, it is evident that respondents were and are unable to
point out any law upon which respondent judge’s authority to order the rearrest
and the recommitment of the petitioner can be upgrated. In fact, no such law
exists. Much more, its existence is incompatible with the present legislation
and the principle of separation of powers, one of the pillars of our system of
government and democracy established by our Constitution, and recognized by all
civilized nations as one of the fundamental safeguards of civil liberties since
Montesquieu developed and perfected it upon the fecund germinal ideas firstly
enunciated by the encyclopedic genius of Aristotle in the following words of his
“Politics”:

“All constitutions have three elements, concerning which the good lawgiver
has to regard what is expedient for each constitution. When they are
well-ordered, the constitution is well-ordered, and as they differ from one
another, constitution differs. There is one (1) element which deliberates about
public affairs; secondly (2) that which concerned magistracies— the questions
being what they should be, over what they should exercise authority, and what
should be the mode of electing to them; and thirdly (3) that which has judicial
power.” (Book IV, Ch. 14.)

“In great states it is possible, and indeed necessary, that every office
should have a special function * * * certainly every work is better done which
receives the sole, and not the divided, attention of the worker.” (Book IV, Ch.
15.)

Under the principle of separation of powers, government functions are
divulsed and apportioned among the three departments — legislative, executive,
and judicial—and within the province of each one of them no encroachments are
allowed without violating the tripartite division established by the
Constitution.

Under that division of government functions, the custody, care, control, and
supervision of prisoners are, by their very nature, functions of executive
character and belong exclusively to the executive power. To said effect, the law
has specifically created a Bureau of Prisons under the control and supervision
of the Chief Executive, exercised through the corresponding department head, and
the Prison law has been incorporated as Chapter 45 of Administrative Code.
According to said law, the Bureau of prisons “shall have the general supervision
and of insular and provincial prisons and all penal settlements and shall be
charged with the safe-keeping of all prisoners confined therein or committed to
the custody of said Bureau.” (Section 1707, Administrative Code.) Section 1724
of the same code provides that the “regulations of the Bureau of Prisons shall
contain such rules as will best promote discipline in ill insular and provincial
prisons and penal settlements and ibest secure the reformation and safe custody
of prisoners of all classes.”

Once a sentence, condemning an accused to imprisonment, has become final and
executory, the only thing that a courts has to do is to commit the prisoner to
the proper Jail officers or employees of the executive department for the
execution of the sentence. Once commitment is complied with and the prisoner
begins to serve his prison term, the court loses completely its Jurisdiction on
the prisoner.

A court, as one of the arms of the judicial power of government, tries ana
decides a criminal case, but the function to execute its sentence or decision
belongs to the executive power. When a prisoner is committed to prison to serve
sentence, it is within the exclusive province of the executive department to see
to it that the sentence is comfiled with and, in case imprisonment as penalty is
imposed, that prisoner should serve the corresponding term according term law.
In the exercise of this function, tribunals can not encroach without exceeding
their proper jurisdiction and without violating the law. Tribunals are devoid of
powers and authority concerning the oustody and safe-keeping of prisoners. The
function belongs exclusively to executive officers who, in this respect, assume
grave responsibilities, so much so that the Revised Penal Code provides
penalties for Infidelity in the oustody of prisoners (see article 223,
et seq.)

It is significant that the majority expressly recognizes in the Chief
Excutive the power to order the arrest of petitioner, invoking to said effect
the provisions of Setion 64 (i) of the Revised Administrative Code, although
maintaining at tiie same time that the courts have the same inherent power
“concurrently with the Chief Executive”, invoking to said effect Sec. 5 of Rule
124 which, unfortunately, does not offer any provision in support of the alleged
concurrent power. She very fact that the majority intimates that the power to
arrest the petitioner, under the circumstances, is one specifically vested by
law in the Chief Executive serves to strengthen our theory to the effect that
such power is, by nature, of executive character.

If it is of executive character, it is incompatible with judicial functions
and, therefore, can not be exercised by the courts. As we have shown, does not
support the majority’s theory that the courts have the same power in concurrence
with the Chief Executive. And the rules can not provide, as intimated by the
majority, because it will be violative of the fundamental principles of the
separation of powers and it will be transgressive of an express provision of
Section 14 of Art. VIII of the Constitution, limiting the power of the Supreme
Court only wto promulgate rules concerning pleading, practice, and procedure in
all courts, and the admission to the practice of law” which evidently can not
comprehend the executive power to rearrest or order the rearrest of a prisoner
who, while serving his sentence of imprisonment was, as alleged, improperly
released without completing the service of his sentence.

Before concluding this opinion, it may not be amiss to recall what respondent
Judge himself states in his order of March 26, 1946, from which we quote:

“He (Jose Caraos) was a convict at large during that time although he did not
evade from his confinement. No existing records (were) left in the Provincial
Warden’s Office of the Governor at the present time for they “were burned during
the war. This is indeed a unique case. The executive department of the
Provincial government of Batangas by itself is powerless to arrest Jose Caraos
in order to compel him to serve his unexpired portion of his sentence because
there is not a record of his case on which to base any appropriate
action.”

This complete absence of record in the criminal case against petitioner adds
another ground in support of the theory that the lower—court lacked jurisdiction
to order the rearrest and recommitment of Caraos. If there is no record of the
case and no decision or sentence can be produced, upon what basis and authority
may petitioner be compelled to serve the alleged sentence to imprisonment? Upon
what authority may the lower court compel petitioner to serve a term of
imprisonment? Upon what authority may it issue a commitment or mittimus? A
sentence condoning the accused to suffer imprisonment for a shorter or longer
period must not be left floating in thin air or projecting the fleeting shadow
of a drifting cloud in the penumbra of nightmarish imagination.

The case for homicide can not be decided but by a court of record which,
according to section 12, Article VIII, of the Constitution, shall not render a
decision “without expressing therein clearly and distinctly the facts and the
law on which it is based.” In order that a sentence may be executed, a written
decision must firstly exist and it shall contain a clear and distinct expression
Of the facts and the law on which it is based. Where is that decision in the
case of petitioner Caraos?

If no such decision exists, what decision shall be complied with in
compelling petitioner to serve a term of imprisonment?

For all the foregoing, we are of opinion and so vote that petition must be
granted ard petitioner Jose Carraos released without the least delay.