JULIANA ETORMA, ROSARIO INDEFENSO AND GREGORIO SALUMBIDES, PETITIONERS, VS. LUCILA RAVELO AND THE DIRECTOR OF LANDS, RESPONDENTS.

The petition for certiorari filed in the above entitled case on July
13, 1946, assailed the validity of the judgment of the Court of Appeals which
affirmed in December, 1942, the decision of the Court of First Instance of
Tayabas against the petitioners, on the ground that the judgment rendered by the
Court of Appeals during the Japanese occupation was null and void, because the
question involved in the litigation was the validity or invalidity of a free
patent issued by the Governor General of the Philippines under the authority
granted by an Act of Congress of the United States; one of the parties in the
case was the Director of Lands, as officer in charge with the administration and
alienation of public lands placed under the control of the Government of the
Philippines; and the petitioners were claiming vested rights, not only under the
laws in force in the Philippines, but also under the Act of Congress of July 1,
1902. The decision of the Court of Appeals was also attacked as being in
violation of the fundamental right of the petitioners, for the reason that the
judgment of the Court of First Instance of Tayabas did not contain findings of
facts, that is, whether or not there was fraud in obtaining the free patent in
question, and the Court of Appeals made its own findings of fact without hearing
the appellants nor giving them opportunity to be heard on the questions of fact
therein raised. And the petitioners prayed that the Court of First Instance of
Tayabas, to which the case was remanded several years ago for the execution of
the judgment by the Court of Appeals, be required to send the record of said
case to this Court for consideration and decision.

We dismissed the petition for certiorari in a minute resolution of
August 14, 1946, which reads as follows:

“Considering the petition filed in G.R. No. L-718, Juliana Etorma et als.,
petitioners, vs. Lucila Ravelo et al., respondents, praying that the
decision jointly rendered in the case referred to in the petition, as well as
all the proceedings had in said cases after January 1, 1942, be declared null
and void; that the Court of First Instance of Tayabas be required to send up the
records of said cases, and that the appeal interposed by petitioners be
considered and decided by this Court: it is ordered that the petition be
dismissed.”

This Court did not deem it necessary to render a reasoned decision in
deciding the petition for certiorari, for it considered the latter
without merits. Because the decision of the Court of Appeals promulgated on
December 22, 1942, which affirmed that of the Court of First Instance of
Tayabas, has become final several years ago, and the judgments of the Courts in
the Philippines during the Japanese occupation are valid and binding in
accordance with the ruling of this Court in the case of Co Kim Cham vs.
Valdez Tan Keh and Dizon (75 Phil., 113). The fact that the question involved
was the validity of a free patent, and the Director of Public Lands was a party,
and that the authority to grant free patent was conferred upon the Governor
General, and the power to regulate the procedure to obtain it upon the
Legislature of the Philippines by Act of Congress of July 1, 1902, did not make
the judgment rendered thereon of political nature. The Acts authorizing and
regulating the grant of free patents to occupants or possessors of public lands
are municipal laws, and the judgments of the courts which apply said laws are
not of political complexion.

Now the attorney for the petitioners alleges that the ruling or doctrine laid
down in the said case of Co Kim Cham vs. Valdez Tan Keh and Dizon is not
applicable to the present case, inasmuch as the petitioners herein had refused,
by going up to the mountains, to submit themselves to the authority of the
Japanese invaders and the government established by them in these Islands; and
for that reason he now asks this Court to render a decision stating the reasons
on which it is based, in accordance with section 12, Article VIII, of our
Constitution.

The allegation that the petitioners had refused to submit themselves to the
invaders was not set up in their petition for certiorari, and therefore
could not properly be taken into consideration now for the purpose for which the
present petition has been filed. But to meet this new contention, it is
sufficient to state that the omission on the part of the petitioners or their
attorney to take proper steps, if there were any, to withdraw the case appealed
by them out of the jurisdiction of the Court of Appeals, which was continued by
the occupant during the Japanese regime, until the latter has rendered a
decision against them, constituted an implied submission to the jurisdiction of
the said court, and the fact admitted in the paragraph VI of their petition for
certiorari, that after the attorney for the petitioner was notified of
the decision of the Court of Appeals of December 22, 1942, he had filed a motion
with the Court of Appeals asking that he be granted a period of time within
which to file a motion for reconsideration of said decision, was an express
submission to the said jurisdiction, since the acts of an attorney in all
matters of ordinary judicial procedure bind his clients (section 21, Rule 127).
The subsequent filing of “an exception or protest against the decision” of the
Court of Appeals, instead of a motion for reconsideration, could not have the
effect of a withdrawal by said petitioners from the court’s jurisdiction; for a
court does not lose its jurisdiction acquired over a party by the latter’s
subsequent refusal to recognize it, specially after the court has decided the
case against him. To allow the petitioners to avoid the decision rendered
against them by the Court of Appeals would be utterly untenable, for it stands
to reason that they should not assail now the validity of said judgment had it
been in their favor.

The dissenting opinion of Messrs. Justices Hilado and Perfecto is made to
rest, not only upon the reasons set forth in their dissenting opinion in the
case of Co Kim Cham vs. Valdez Tan Keh and Dizon, supra, but
principally on the proposition that, in deciding that the governments
established in these Islands by the Japanese military forces of occupation,
under the name of Philippine Executive Commission and the Republic of the
Philippines, were de facto governments, this Court attempted to exercise
a power which exclusively belonged to the political departments of the United
States and the Commonwealth Government; because according to the Supreme Court
of the United States in the case of Jones vs. U.S. (137 U.S., 202; 34
Law. ed., 691, 696), the question “Who is the sovereign, de jure or de
facto of a territory is not a judicial, but a political question, the
determination of which by the legislative and executive departments of any
government conclusively binds the judges, as well as other officers and subjects
of the Government.” And after citing said excerpt of the decision, the said
dissenting opinion says:

“According to the doctrine just quoted, the first question to be determined
by the legislative and executive departments of the government is: Who is the
sovereign of the territory? The next is: Is he a de jure or de
facto sovereign? The determination of this second question necesarily
decides whether the government of that sovereign is de jure or de
facto, for it is not possible to speak of a sovereign in the instant
acceptation of the term, without linking him with his government. And a de
jure sovereign cannot have a de facto government, any more than a
de facto sovereign have a de jure government. * * * Differently
expressed, the proposition would be: If the question of who is the sovereign,
de jure or de facto, of a territory is not a judicial, but a
political question, that of whether the government in the territory is de
jure or de facto, cannot but be a political
question.”

This new ground is predicated upon the clearly erroneous assumption that the
determination of the question whether a government is de facto or de
jure involves necessarily the question of sovereignty. It is correct that a
government established in a territory under a sovereign de jure is a
government de jure, but it is not true that a government established in a
territory under a sovereign de jure cannot be a government de
facto. The three classes of governments de facto set forth in the
decision of this Court in the case of Co Kim Cham vs. Valdez Tan Keh and
Dizon and recognized by all the publicist and decisions of the Supreme Court of
the United States, are governments de facto established in a territory
which continued under the same sovereign de jure, or in which there was
no change of sovereignty. In the said case of Co Kim Cham vs. Valdez Tan
Keh and Dizon, this Court said: “There are several kinds of de facto
governments. The first, or goverment de facto in a proper legal sense, is
that government that gets possession and control of, or usurps, by force or by
the voice of the majority, the rightful legal government and maintains itself
against the will of the latter, such as the government of England under the
Commonwealth, first by Parliament and later by Cromwell as Protector. The second
is that which is established and maintained by military forces who invade and
occupy a territory of the enemy in the course of war, and which is denominated a
government of paramount force, as the cases of Castine, in Maine, which was
reduced to British possession in the war of 1812, and of Tampico, Mexico,
occupied during the war with Mexico by the troops of the United States. And the
third is that established as an independent government by the inhabitants of a
country who rise in insurrection against the parent state, such as the
government of the Southern Confederacy in revolt against the Union during the
war of secession.”

Were the theory advanced in the dissenting opinion correct, the decisions of
the Supreme Court of the United States in the following cases in which it held
that the governments in a territory temporarily occupied by the invading enemy
forces during war, or set up by the insurgents during insurrection or rebellion,
were de facto governments, would be also necessarily erroneous, and we do
not think the dissenting Messrs. Justices Hilado and Perfecto mean to so hold.
The Supreme Court of the United States held in the case of U.S. vs. Rice
(4 Wheaton, 258), that the government established in Castine, Maine, occupied
temporarily by the British forces in the war of 1812 was a de facto
government. The same Court held in the case of Fleming vs. Page (9 How.,
614), that the government established by the American forces in Tampico, Mexico,
during the war between the latter and United States was a de facto
government. In the cases of Thorington vs. Smith (8 Wall., 1) ; Williams
vs. Bruffy (95 U.S., 176 [quoting the decision in the case of Horn
vs. Lockhert, 17 Wall., 570]), and Baldy vs. Hunter (171 U.S.,
388), it was held that the goverments set up by the Confederate States during
the war of secession were de facto governments. And in the case of
McCleod vs. United States (229 U.S., 416), the same Supreme Court of the
United States held that the short-lived government established by Filipino
insurgents in the Island of Cebu during the Spanish American War, was a de
facto government.

The dissenting opinion further says:

“If President Roosevelt had considered the regime imposed upon this country
by the Japanese occupation army as a de facto government, within the
meaning of International Law, he would not have branded the ‘Philippine
Republic’ as a ‘puppet government’, and, since he must be presumed to know that
a de facto government in international law is a form of government, with
powers and duties of its own, as contradistinguished from a mere ‘puppet’, and
that such a government is entitled to recognition among civilized nations, he
would never have so vehemently announced in his message to the Filipino people
on October 23, 1943, that neither the one nor the other had the recognition or
the sympathy of the government of the United States—he would not have condemned
them.

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“If President Quezon and the other Filipino leaders * * * had considered
(said government) as not de facto government * * *,” they would not have
requested of the Senate and House of Representatives of Congress of the United
States, the introduction of what later became S. J. Res. No. 93, which became
law on June 29, 1944, wherein the government thus imposed upon the Filipinos by
the Japanese’s ‘own puppet government which was conceived in intrigue, born
in coercion, and reared primarily for the purpose of Japanese
selfishness and aggrandizement.’ “

In reply to these remarks, suffice it to say that the President and Congress
of the United States in describing and branding the Philippine Executive
Commission and the so-called Republic of the Philippines as puppet governments,
did not recognize them as legitimate or de jure governments, and not
being de jure they are de facto governments under the rules of
international law. An organized government established in a territory must be
either de jure or de facto, since there is no other class of
organized government known in political as well as in international law. There
is no genuine or false de facto government.

It is evidently erroneous to say that the majority “in laying down the
doctrine in the Co Kim Cham case it has unwittingly refused to be bound by the
aforesaid prior and adverse determination of the United States and Commonwealth
governments.” The decision of this Court in the case of Co Kim Cham vs.
Valdez Tan Keh and Dizon is precisely in conformity with the previous
determination of the above mentioned message of President Roosevelt and
resolution and Act of Congress of the United States, in which the so-called
Republic of the Philippines was branded as “a puppet government, which was
conceived in intrigue and born in coercion” that is, not a government de
jure. We have held in the said case of Co Kim Cham that “The so-called
Republic of the Philippines, apparently established and organized as a sovereign
state independent from any other government by the Filipino people, was, in
truth and reality, a government established by the belligerent occupant or the
Japanese forces of occupation. It was of the same character as the Philippine
Executive Commission, and the ultimate source of its authority was the same—the
Japanese military authority and government. As General MacArthur stated in his
proclamation of October 23, 1944, a portion of which has been already quoted,
‘under enemy duress, a so-called government styled as the “Republic of the
Philippines” was established on October 14, 1943, based upon neither the free
expression of the people’s will nor the sanction of the Government of the United
States.’ Japan had no legal power to grant independence to the Philippines or
transfer the sovereignty of the United States to, or recognize the latent
sovereignty of, the Filipino people, before its military occupation and
possession of the Islands had matured into an absolute and permanent dominion or
sovereignty by a treaty of peace or other means recognized in the law of
nations.”

Therefore, the conclusion that the governments of the Philippine Executive
Commission and the so-called Republic of the Philippines were now governments
de facto, because they were not recognized and were called puppet
governments by the executive and legislative departments of the United States,
is untenable, for it is premised upon a wrong conception of what a government
de facto is. It is evident that if said governments established in the
Philippines had been recognized by the executive and legislative departments of
the United States, they would have been de jure and not de facto
governments; and they were called puppet governments because they were not
established by legitimate sovereign, but they were governments de facto.
It is simply gratuitous to state that “It goes without saying that a puppet
government is no government at all, not even a de facto government.” A
puppet government is one that acts as another wills or dictates. The Republic of
the Philippines was a puppet government, because although set up apparently as a
free and independent government, was, in truth and in fact, a government de
facto established by the belligerent occupant or the Japanese military
forces, as we have already stated in the case of Co Kim Cham above quoted.

And as to what may be considered as territory occupied by the enemy, and Mr.
Justice Hilado’s contention that the laws of international law relating to
government de facto over territory occupied by Japan are not applicable,
because the latter started treacherously against the United States, we may quote
the following from our resolution on the motion for reconsideration filed in
said case of Co Kim Cham:

“(1) It is contended that the military occupation of the Philippine Islands
by the Japanese was not actual and effective because of the existence of
guerrilla bands in barrios and mountains and even towns and villages; and
consequently, no government de facto could have been validly established
by the Japanese military forces in the Philippines under the precepts of the
Hague Conventions and the law of nations.

“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 these places, was not sufficient to
make the military occupation ineffective, nor did it cause that occupation to
cease, or prevent the constitution or establishment of a de facto
government in the Islands. The belligerent occupation of the Philippines by the
Japanese invaders became an accomplished fact from the time General Wainright,
Commander of the American and Filipino forces in Luzon, and General Sharp,
Commander of the forces in Visayas and Mindanao, surrendered and ordered the
surrender of their forces to the Japanese invaders, and the Commonwealth
Government had become incapable of publicly exercising its authority, and the
invader had substituted his own authority for that of the legitimate government
in Luzon, Visayas, and Mindanao.

” ‘According to the rules of Land Warfare of the United States Army,
belligerent or so-called military occupation is a question of fact. It
presupposes a hostile invasion as a result of which the invader has rendered the
invaded government incapable of publicly exercising its authority, and that the
invader is in position to substitute and has substituted his own authority for
that of the legitimate government of the territory invaded.’ (International Law
Chiefly as Interpreted and Applied by the United States, by Hyde, Vol. II, pp.
361, 362.) ‘Belligerent occupation must be both actual and effective. Organized
resistance must be overcome and the forces in possession must have taken
measures to establish law and order. It doubtless suffices if the occupying army
can, within a reasonable time, send detachments of troops to make its authority
felt within the occupied district.’ (Id., p. 364.) ‘Occupation once
acquired must be maintained * * *. It does not cease, however, * * *. Nor does
the existence of a rebellion or the operations of guerrilla bands cause it to
cease, unless the legitimate government is reestablished and the occupant fails
promptly to suppress such rebellion or guerrilla operations.’ (Id., p.
365.)

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“(2) It is submitted that the renunciation in our Constitution and in the
Kellog-Briand Pact of war as an instrument of national policy, rendered
inapplicable the rules of international law authorizing the belligerent Japanese
army of occupation to set up a provisional or de facto government in the
Philippines, because Japan started war treacherously and emphasized war as an
instrument of national policy; and that to give validity to the judicial acts of
courts sponsored by the Japanese would be tantamount to giving validity to the
acts of these invaders, and would be nothing short of legalizing the Japanese
invasion of the Philippines.

“In reply to this contention, suffice it to say that the provisions of the
Hague Conventions which impose upon a belligerent occupant the duty to continue
the courts as well as the municipal laws in force in the country unless
absolutely prevented, in order to reestablish and insure ‘1’ordre et la vie
publice,’ that is, the public order and safety, and the entire social and
commercial life of the country, were inserted, not for the benefit of the
invader, but for the protection and benefit of the people or inhabitants of
the occupied territory and of those not in the military service, in order that
the ordinary pursuits and business of society may not be unnecessarily
deranged.

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“The fact that the belligerent occupant is a treacherous aggressor, as Japan
was, does not, therefore, exempt him from complying with the said precepts of
the Hague Conventions, nor does it make null and void the judicial acts of the
courts continued by the occupant in the territory occupied. To deny validity to
such judicial acts would benefit the invader or aggressor, who is presumed to be
intent upon causing as much harm as possible to the inhabitants or nationals of
the enemy’s territory, and prejudice the latter; it would cause more suffering
to the conquered and assist the conqueror or invader in realizing his nefarious
design; in fine, it would result in penalizing the nationals of the occupied
territory, and rewarding the invader or occupant for his acts of treachery and
aggression.” (75 Phil., 371.)

The resolution above quoted which upholds the validity of judicial acts which
are not of political complexion of de facto governments established by
the military occupant in an enemy territory, is based on the Regulations of the
Hague Convention that contain the generally accepted principles of International
Law, adopted as a part of the law of the Nation in section 3 of our
Constitution, and is supported by Dr. Lauterpacht in his 6th edition of
Oppenheim, page 51, footnote, in which it is said:

” ‘In particular, the illegality of the war undertaken in breach of the
provisions of the Pact does not automatically deprive the guilty belligerent of
the rights of warfare, including those resulting from the law of neutrality.’
(P. 157.) Subsequently he adds: ‘For war waged in violation of the Treaty is
nevertheless war conferring upon the guilty and innocent belligerents alike all
the rights flowing from the accepted law of war and neutrality.’ (P. 512.) He
further declares: ‘No authorization to disregard the duties of neutral
impartiality against the State breaking the Treaty can be deduced from the
passage in the preamble which lays down that “any signatory power which shall
hereafter seek to promote its national interests by resort to war should be
denied the benefits furnished by this Treaty.” The benefits furnished by the
Treaty are immunity from war waged as an instrument of national policy, not a
guarantee of the observance of rules of International Law, including the rules
of neutrality.’ ” (International Law by Hyde, p. 1684, Vol. III, Second Revised
Edition.)

Petition is, therefore, denied.

Moran, C.J., Paras, Pablo, Bengzon,
Padilla, and Tuason, JJ., concur.

---

PERFECTO, J.:

In addition to the legal grounds stated in the well written dissenting
opinion of Mr. Justice Hilado, concurred in by us, there are strong reasons of
substantial justice and equity in support of the granting of the petition.

Petitioners alleged that they have refused to submit themselves to the
invaders. The majority dismissed this contention by stating that it was not set
up in the petition for certiorari and, at any rate, petitioners had impliedly
submitted themselves to the jurisdiction of the Court of Appeals under the
Japanese regime, when they failed to take proper steps to withdraw the case from
said jurisdiction. But in the majority resolution itself it appears that
petitioners filed “an exception or protest against the decision” of the Court of
Appeals. To our mind, that pleading was more than enough to convey to any court
or person petitioners’ attitude of not recognizing the authority and
jurisdiction of said court.

To ask for more is to ignore the prevailing realities created by the fearsome
Japanese occupation. To require petitioners to be then and there more explicit
about their attitude, by stating the grounds of their protest, is tantamount to
expect petitioners to ogle suicide or invite self-destruction. If petitioners
had alleged the reason for their refusal to recognize the jurisdiction of the
Court of Appeals they would have stated that it was because they did not
recognize the authority of the Japanese imperial government under which the
court was instructed to function. The Japanese would not then have wasted any
time to catch petitioners to torture and execute them in Ft. Santiago or in any
of the many torture chambers or zoning camps established by the enemy all over
the country. Petitioners used the word “protest” which was strong and reckless
enough. Only self-delusion can obliterate seeing the far-reaching meaning of a
“protest” uttered under the circumstances.

We vote to grant the
petition.

---

HILADO, J., with whom concurs PERFECTO,
J.:

We dissent.

With all due respect to our brethren who maintain different views from ours
upon the very vital legal questions involved herein, we feel constrained to
dissent from the opinion of the majority. The opinion of our said brethren has
been written by Mr. Justice Feria in the form of the foregoing resolution. Said
opinion is predicated upon the doctrine, from which we also dissented, laid down
in Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113). In
registering this new dissent from that doctrine, we hope that our attitude will
not be mistaken for systematic stubbornness for it is born solely of a deep
conviction and inspired by the only purpose which a dissent should pursue
according to the memorable words of Chief Justice Hughes:

“A dissent in a court of last resort is an appeal to the brooding spirit of
the law, to the intelligence of a future day, when a later decision may possibly
correct the error into which the dissenting judge believes the court to have
been betrayed.” (“The Supreme Court” by Charles Evan Hughes, 1928 ed., p.
68.)

The cornerstone on which the opinion of the majority in the Co Kim Cham case
was based is therein stated thus:

“* * * The question to be determined is whether or not the governments
established in these Islands under the names of the Philippine Executive
Commission and Republic of the Philippines during the Japanese military
occupation or regime were de facto governments. If they were, the
judicial acts and proceedings of those governments remain good and valid even
after the liberation or reoccupation of the Philippines by the American and
Filipino Forces.” (75 Phil., 122.)

The majority held there and, in effect our said brethren maintain hero, that
during said “occupation” of the Islands by the Japanese Imperial Forces there
existed in the Philippines such de facto governments successively under
the “Philippine Executive Commission” and the so-called Republic of the
Philippines. We have advisedly placed the word “occupation” within quotation
marks because we do not admit that all of the Philippines was ever
occupied by those invaders. In fact, it should be within the judicial notice of
this Court that said occupation only affected the City of Manila and certain
other specific areas of the Philippines, but that the greater area of the
country was never under such an effective control of said forces as would have
constituted a “belligerent occupation” as this concept is known in International
Law. According to the very quotation from the Rules of Land Warfare of the
United States Army on page 5 of the foregoing resolution, belligerent occupation
is a question of fact. If so, it needs proof. And where is the evidence
showing that the section of the country to which petitioners herein repaired and
stayed for the express purpose of placing themselves beyond the effective reach
and control of the Japanese invaders, was ever effectively controlled by the
latter? The mere surrender of the military forces—not all of them, let us not
forget, for many refused to surrender and were not only not punished but were
eulogized by their very commanders in later days—did not bind the civilian
population. The Commanders, Generals Wainright and Sharp, had power and control,
for the purposes of the surrender, only over the armed forces and not over the
civilians, and it is a matter of history that when Gen. Wainright ordered the
so-called surrender he was already a prisoner of war and had previously given
up his command; and as to Gen. Sharp, it is another historical fact that he
did not order, much less intend to order, all his forces to
surrender to the enemy, but gave discretion to those who preferred to continue
the fight, to do so the best they could, so long as they detached themselves
from the surrendering units.

In thus holding that during said “occupation” there existed in the
Philippines such de facto governments, the majority of the Court in the
Co Kim Cham case—be it said with all due respect—have attempted to exercise a
power which exclusively belonged to the p61itical departments of the governments
of the United States and of the Commonwealth of the Philippines, represented by
the executive and legislative branches thereof. Not only this, but the majority,
in so doing—again we say it with all clue respect—went against the
previous determination of a political question by the President and the Congress
of the United States and the President of the Commonwealth of the Philippines.
That question precisely was whether or not such de facto governments
existed here during the Japanese occupation of the aforesaid sections of the
country.

When the preamble to the Constitution of the so-called Republic of the
Philippines declared that the Filipino people “do hereby proclaim their
independence”, and when section 2 of Article I of said instrument stipulated
that “The Republic of the Philippines shall exercise sovereignty
(underscoring supplied) over all the national territory * * *”, and when Japan
proclaimed to the world that she had given the Philippines its independence, the
Government of the United States and the exile Commonwealth Government in
Washington were placed face to face with vital questions of government—who was
the sovereign in the Philippines then? Had an independent and sovereign
government really been established in said Islands? Did any form of government
at all exist therein, and if so, what form? Their determination of these
political questions was not long in coming. The first government, through
President Roosevelt, on October 23, 1943, nine days after the inauguration of
the said “Republic of the Philippines”, made one of his most memorable
pronouncements about the activities of the enemy here in the form of his message
to the Filipino people of that date (U. S. Naval War College International Law
Documents, 1943, pp. 93-94) ; the writer’s dissent in the Co Kim Cham case (75
Phil., 199, 203), from which the following is quoted:

” ‘I wish to make it clear that neither the former collaborationist
“Philippine Executive Commission” nor the present “Philippine Republic” has the
recognition or sympathy of the Government of the United States.’
“

In the course of that message, in fact in the very first sentence thereof, he
branded the said “Republic” as “a puppet government”. President Roosevelt thus
expressed the attitude of his government towards those regimes which the
Japanese had forced upon the Filipino people by a language of unmistakable
meaning. Not only did he refuse, as the head of the United States government,
and as the highest officer of the political department thereof, to recognize the
said “Republic” as a government of any kind, but he categorically
declared that it was nothing more than “a puppet government”. It goes without
saying that a puppet government is no government at all, not even a de
facto government, for the simple reason that while a puppet government has
no power nor authority of its own, a de facto government has certain
recognized powers and authority belonging to it while it lasts.

Before June 29, 1944, President Quezon, exercising his powers and
prerogatives as President of the Commonwealth of the Philippines then in exile
in Washington, together with other Filipino leaders who were at the time in said
exile government, requested of the Senate and House of Representatives of the
Congress of the United States the introduction of what later became a joint
resolution of both Houses in the form of S. J. Res. No. 93, which became law on
June 29, 1944 (41 Off. Gaz., 3). That joint resolution characterized the
government which the Japanese Imperial Forces had thrust upon the Filipino
people as the Japanese’s “own puppet government which was conceived in
intrigue, born in coercion, and reared primarily for the purpose of
Japanese selfishness and aggrandizement.” (Recto’s Three Years of Enemy
Occupation, p. 14; italics supplied; 41 Off. Gaz., 81.)

When General of the Army Douglas MacArthur was only three days on Philippine
soil after his historic landing on Leyte, he issued his already famous
proclamation of October 23, 1944 (41 Off. Gaz., 147). In so doing, he was acting
in a very distinct sense as the representative of his superior commander, the
President of the United States. As already recalled in our several previous
dissenting and concurring opinions, General MacArthur, referring to the
“Republic of the Philippines”, declared not that it was a government but that it
was a “so-called government”; not that it had been formed legitimately under the
rules and principles of International Law or otherwise, but that it had been
established “under enemy duress”, and that it was “based upon neither the free
expression of the people’s will nor the sanction of the government of the United
States, and is purporting to exercise executive, judicial, and
legislative powers of government over the people” (41 Off. Gaz., 147; italics
supplied.)

That it was President Quezon and said other Filipino leaders who requested
the introduction of the above cited joint resolution in the Congress of the
United States, is a duly recorded fact of the contemporary history of the United
States and Commonwealth Governments during the progress of the Pacific War
(Three Years in Review, 41 Off. Gaz., 3).

All the foregoing pronouncements and declarations of the highest officials
and representatives of the political departments of the United States and
Commonwealth governments prove conclusively and beyond cavil that they did not
recognize any legality or validity, even only as a de facto government,
in the “so-called government” thus imposed upon the Filipinos by sheer brute
force and military strength. On the contrary, said pronouncements and
declarations are unanimously and emphatically expressive of the strongest
condemnation. That determination was binding upon the courts because it decided
a question which, being political in nature, was not for the courts to decide.
Even conceding that the question of what is a de jure and what is a de
facto government is a judicial one, still whether or not one or the other
class of government exists in fact in a certain territory at a certain
time, is clearly a political question for the exclusive determination of the
political departments of the government.

From Wingo’s “The Last Days of Manuel Quezon”, the following passages have
been quoted:

“On February 20 (1943) President Quezon spoke to the people of the
Philippines over the radio. * * *

*                   *                   *                   *   
               *                   *                   *

“Warning the Filipino people not to be deluded by the kind of independence
Tojo was offering them, Quezon said: ‘Assuming that tomorrow Japan was to
declare the Philippines an independent nation, what would that mean? It would
merely mean that the Philippines would be another “Manchukuo”—a government
without rights, without powers, without authority, a government charged only
with the duty to obey the dictates of the Japanese rulers.’ “

Now, we ask: As events demonstrated, did not the “Republic of the
Philippines” fulfill to the last detail the prediction of the great leader? Who
would gainsay that said “Republic” was really another Manchukuo, really a
government without rights, without powers, without authority, a government
charged only with the duty to obey the dictates of the Japanese rulers? Who
would have the temerity to say that President Quezon was a bad prophet, that the
Japanese did much better than he foretold?

In the case of Jones vs. U. S. (137 U. S., 202; 34 Law. ed., 691,
696), the following well-settled principle, theretofore invariably upheld by the
United States Supreme Court under a great variety of circumstances, was
reiterated:

“Who is the sovereign, de jure or de facto, of a territory is
not a judicial, but a political question, the determination of which by
the legislative and executive departments of any government conclusively
binds the judges, as well as all other officers, citizens and subjects, of
that government. This principle has always been upheld by this court, and has
been affirmed under a great variety of circumstances. (Gelsten vs. Hoyt,
16 U.S., 2 Wheat., 246, 324 [4:381; 401]; United States vs. Palmer,
Id., 610 [471]; the Divina Pastora, 17 U.S., 4 Wheat., 52 [4:512];
Foster vs. Neilson, 27 U.S., 2 Pet., 253, 307, 309 [7:415; 433, 434];
Keene vs. M’Donough, 33 U.S., 8 Pet., 308 [8:955]; Garcia vs.
Lee, 37 U.S., 12 Pet., 511, 520 (9:1176); Williams vs. Suffolk Ins. Co.,
38 U. S., 13 Pet., 415 [10:226]; United States vs. Yorba, 68 U.S., 1
Wall., 412; 423 [17:635; 637]; United States vs. Lynde, 78 U.S., 11
Wall., 632, 638 [20:230, 232]. It is equally well settled in England. The
Pelican, Edw. Adm. Appx. D; Taylor vs. Barclay, 2 Sim., 213; Emperor of
Austria vs. Day, 3 De G. F. & J., 217, 221, 233; Republic of Peru
vs. Peruvian Guano Co., L.R., 36 Ch. Div., 489, 497; Republic of Peru
vs. Dreyfus, L.R., 38 Ch. Div., 348, 356, 359.” (Italics
supplied.)

According to the doctrine just quoted, the first question to be determined by
the legislative and executive departments of the government is: Who is the
sovereign of the territory? The next is: Is he a de jure or a de
facto sovereign? The determination of this second question necessarily
decides whether the government of that sovereign is de jure or de
facto, for it is not possible to speak of a sovereign, in the instant
acceptation of the term, without linking him with his government. And a de
jure sovereign cannot have a de facto government, any more than can a
de facto sovereign have a de jure government. If the legislative
and executive departments, therefore, decide that the sovereign is de
jure or de facto, they are at the same time deciding that his
government in that territory is de jure or de facto. For the
spectacle can not be countenanced where the legislative and executive
departments decide whether the sovereign is de jure or de facto,
while the judicial department decides whether his government is de jure
or de facto, thus giving rise to the possibility that while the former
two departments, or either of them, decide that the sovereign is de jure,
the judicial decides that his government is de facto, and vice versa.

Differently expressed, the proposition would be: If the question of who is
the sovereign, de jure or de facto, of a territory is not a
judicial, but a political question, that of whether the government in the
territory is de jure or de facto, cannot but be a political question.

Indeed, whether a government, de jure or de facto, exists at
all in a territory, entitled to recognition by another government under
International Law, is in the very nature of things a political question
addressed to the proper political officers of the latter government. For
instance, the Department of State, as the immediate representative of the
President of the United States, was the one which dealt with the question of the
recognition or non-recognition of the so-called government of Manchukuo. That
question was never addressed to, nor considered as within the province of, the
United States Supreme Court. Secretary Stimson consistently refused to recognize
it because he maintained that it was a mere puppet government. No other
governmental department, including the judiciary, had any say in the matter. In
fact, they considered themselves bound by the action of the political
department. Now, Manchukuo and the “Republic of the Philippines” were creatures,
exactly alike, of the same “creator”; and there is no gainsaying the fact that
the “Republic of the Philippines” was no less a puppet than Manchukuo.

In Philipps vs. Payne (2 Otto. [U. S.], 130; 23 Law. ed., 649), the
Supreme Court of the United States expressly acknowledged that “in cases
involving the action of the political departments of the government, the
judiciary is bound by such action.” (Williams vs. Insurance Co., 13 Pet.,
420; Garcia vs. Lee, 12 Pet., 511; Kennel vs. Chambers, 14 How.,
38; Foster vs. Neilson, 2 Pet., 309; Nabod of Carnatio vs. East
Ind. Co., Ves. Jr., 60; Lucer vs. Barbon, 7 How., 1; R. I. vs.
Mass., 12 Pet., 714.)” And in Nelly vs. Henkel ([1] 180 U. S., 126; 45
Law. ed., 448), the same court again abided by the determination of a similar
question by the legislative and executive branches of the government thus:

“* * * it thus appears that both the legislative and executive branches of
the government concurred in not recognizing the existence of any such government
as the Republic of Cuba * * *.”

Presidents Roosevelt and Quezon, the United States Congress and General
MacArthur all concurred in not recognizing the existence of any such government
as the “Republic of the Philippines”.

This vital point now demands our consideration: Did the political departments
(legislative and executive) of the United States and the Commonwealth
Governments determine the political question of whether the “Philippine
Executive Commission” or the “Republic of the Philippines” was a de facto
government? From the facts above narrated, it is clear that they have, and that
their determination was unequivocally in the negative. If President Roosevelt
had considered the regime imposed upon this country by the Japanese occupation
army as a de facto government, within the meaning of International Law,
he would not have branded the “Philippine Executive Commission” and the
“Philippine Republic” as a “puppet government”, and, since he must be presumed
to know that a de facto government in international law is a form of
government, with powers and duties of its own, as contradistinguished from a
mere “puppet”, and that such a government is entitled to recognition among
civilized nations, he would never have so vehemently announced in his message to
the Filipino people on October 23, 1943, that neither the one nor the other had
the recognition or the sympathy of the government of the United States—he would
not have condemned them.

If President Quezon and the other Filipino leaders with him in the exile
Commonwealth government had considered the “Philippine Executive Commission” or
the “Republic of the Philippines” as such a de facto government, it is
obvious that they would never have requested of the Senate and House of
Representatives of the Congress of the United States the introduction of what
later became S. J. Res. No. 93, which became law on June 29, 1944, wherein the
government thus imposed upon the Filipinos by the Japanese Imperial Forces was
described as the Japanese’s “own puppet government which was conceived in
intrigue, born in coercion, and reared primarily for the purpose of
Japanese selfishness and aggrandizement.” Before suggesting the
introduction of that joint resolution, that is, in his radio speech to the
people of the Philippines of February 20, 1943, above partly quoted, President
Quezon, in predicting that the independence that Tojo was then offering to the
Filipinos would be another Manchukuo—a government without rights, without
powers, without authority, a government charged only with the duty to obey the
dictates of the Japanese rulers—could not have possibly had in mind a de
facto government as this term is understood in International Law.

In the same way, the Senate and House of Representatives of the United States
Congress, in adopting the aforesaid joint resolution, concurred in the attitude
of both Presidents Roosevelt and Quezon towards both the “Philippine Executive
Commission” and the “Republic of the Philippines.”

And lastly, had General MacArthur, as the representative of President
Roosevelt, considered the “Republic of the Philippines” as a genuine de
facto government, he would not have condemned it as he has in so severe and
explicit terms, in his proclamation of October 23, 1944, wherein he does not
confer upon it the honor of even the name “government”, simply referring to it
as a “so-called government.”

By their uncompromising attitude of condemnation towards those
Japanese-imposed regimes, the executive and legislative departments of the
United States and the Commonwealth governments clearly did not recognize the
existence here of a de facto government in the form either of the
“Philippine Executive Commission” or the “Republic of the Philippines.” Those
political departments of both governments were the ones vested with the
exclusive power to decide that political question (Jones vs. U. S.,
supra, and cases therein cited), and their decision “binds the judges”
(Philipps vs. Payne, supra, and cases therein cited). The
recognition or non-recognition of the existence here of such a de facto
government was a matter pertaining to the foreign relations of the United States
and the Commonwealth. And it is a truism that a nation is represented in its
foreign relations, in peace as well as in war, by the political departments of
its government, and not by the courts. The regimes imposed here by Japan during
World War II, of course, pertained to the wartime relations between the United
States and the Commonwealth, on the one hand, and Japan, on the other. And it
should be recalled that under the ordinance appended to the Commonwealth
Constitution then in force (sec. 1 [10]), Philippine foreign affairs were under
the direct supervision and control of the United States.

In considering the attitude of the United States and Commonwealth governments
towards the “Philippine Executive Commission” and the “Republic of the
Philippines,” we must not lose sight of the fact that the Commonwealth
Government, headed by President Quezon, maintained throughout the war that,
having gone into exile beyond the reach of the Japanese invaders, it never
ceased to exist and to function, despite the military occupation of certain
parts of the territory of the Philippines by the Japanese Imperial Forces. And
in this stand the Commonwealth Government was solidly backed not only by the
United States but by all the other United Nations. (Three Years in Review, 41
Off. Gaz., 3.)

“The Commonwealth Government was firmly convinced that mere military
occupation of a territory does not confer sovereign rights on the invading
army and that its legal status, therefore, under international law
would not be changed so long as it maintained its nucleus aboard through its
head, President Manuel L. Quezon and his cabinet, and by means of the
emergency powers given him by the National Assembly. This view was sustained
by the United States and the other 42 members of the international group known
as the United Nations, which officially recognized the Philippine Constitutional
Government thus established in Washington, D. C.” (Ibid., 3; italics
supplied.)

We need not reiterate here the views and arguments set forth in support of
our stand against the opinion of the majority in our dissenting and concurring
opinions in the following cases: Co Kim Cham vs. Valdez Tan Keh and Dizon
(75 Phil., 113, 371) (both as to the main decision and to the resolution on the
motion for reconsideration); in Peralta vs. Director of Prisons (75
Phil., 285); in People vs. Jose (75 Phil., 612); in Alcantara vs.
Director of Prisons (75 Phil., 494); and in De Castro vs. Court of
Appeals (75 Phil., 824).

In the hypothesis that the “Philippine Executive Commission” or the “Republic
of the Philippines” was not a de facto government, we are confident that
the majority would agree that the judicial proceedings had in the courts of said
regimes were null and void. But it is not merely a hypothesis—it has been
finally and definitely so determined by the political departments of the United
States and the Commonwealth governments.

And may we be allowed now to express the hope that this Court will see its
way clear to realizing that in laying down the doctrine in the Co Kim Cham case
it has unwittingly refused to be bound by the aforesaid prior and adverse
determination of the political departments of the United States and the
Commonwealth governments; that it will abide by that determination, recognizing
that the question at issue was a political, not a judicial one, within the
province of the political departments, to the exclusion of the judicial, just as
we would expect those departments to abide by our decisions on judicial matters;
and that thereby an end may be put to the unfortunate and unseemly conflict,
thus restoring the equilibrium of governmental powers which has been disturbed
by the error into which we sincerely, but respectfully, believe the court to
have been betrayed when it involuntarily went out of its province and entered
another—to the end that the people may be accordingly governed and guided upon a
question so vitally affecting their national and private lives.

As to the concern shown, while plausibly, for the interests of the litigants
who voluntarily submitted their controversies to the adjudication of the
Japanese-sponsored tribunals, we do not believe that the problem is absolutely
without solution. Of course, as to the immediate parties who thus voluntarily
submitted their contentious cases for settlement by said agencies of the
occupation regimes, we encounter no special difficulty in opining that the
situation could be likened to the case of parties voluntarily submitting their
controversies to arbitration, and the decisions therein rendered likened to
arbitration awards in their effects. Nothing could be further from our minds by
this statement than to cast any sort of reflection upon the learning and ability
of the officers, judicial and others, concerned—we simply base our assertion
upon what to us is a case of clear lack of legal authority for those
Japanese-created tribunals to exercise judicial functions with like effects as
tribunals acting by authority of their lawful government, or even as genuine
de facto courts.

In regards to criminal cases, where violations of the
Commonwealth laws have been committed, altho the judgments of those courts
would, we submit, also be void, where the accused have already served or
suffered any penalty thereunder, such penalty can be easily taken into account
in the judgments of the lawful courts, in which new complaints or informations
may be filed, by recommending full pardon or pro tanto commutation of
penalty by the Chief Executive.

---

BRIONES, M.:

No estoy conforme con la resolucion de la mayoria; mi opinion es que la
solicitud de certiorari esta bien fundada y, por tan to, debe concederse.
A mi juicio, el presente caso encaja perfectamente dentro de las apreciaciones y
conclusiones de mi disidencia en el asunto basico de Co Kim Cham contra
Valdez Tan Keh y Dizon. Dije entonces, en parte, lo que sigue y lo reafirmo en
esta disidencia, a saber:

“Al interpreter la prodama del General MacArthur de 23 de Octubre de 1944 que
anula todas las actuaciones del gobierno establecido en estas islas bajo la
ocupacion militar japonesa, creo que la inteleccion mas apropiada es que, como
regla general, esa proclama anula todo, incluso las actuaciones judiciales
(judicial processes), sobre todo aquellas cuya entidad y cuyos efectos
rebasan el periodo de la esclavitud forzosa y transcienden y repercuten en la
postliberacion. En otras palabras, la nulidad, la ineficacia debe ser la regla
general; y la validez, la eficacia la excepcion, la salvedad.

“La razon de esto es sencilla. El gobierno de ocupacion representaba en
nuestra vida un parentesis anomalo, de obligada ilegitimidad, y es nada mas que
natural que el gobierno legitimo, de jure, al restaurarse, no transigiese
con los actos y procesos de aquel gobierno, excepto en lo que fuera
absolutamente necesario e irremediable. Caerian, por ejemplo, bajo esta
excepcion solamente aquellos actos y procesos resultantes del hecho de que
formabamos una comunidad civilizada con necesidades e intereses individuales y
sociales complejos; y de que por instinto de conservacion y para vivir con
cierto orden y relativa tranquilidad y no precipitarnos en la anarquia y en el
caos habiamos menester la egida de un gobierno, sin importar que este no fuese
hechura de nuestra voluntad y que inclusive nos fuera repulsivo. Mas alla del
minimum de esta forzosidad, no puede haber transaccion con los actos y procesos
de aquel regimen.

“Como corolario de esta inteleccion es obvio que por mucho que nos tienten y
atraigan ciertas doctrinas y principios conocidos de derecho internacional sobre
gobiernos de facto, no es conveniente y es hasta peligroso sentar reglas
absolutas que a lo mejor no cuadran con las circunstancias peculiares de cada
caso. Lo mas seguro es enjuiciar por sus propios meritos cada acto o proceso que
se plantee.

“En la determinacion judicial de esta clase de asuntos nunca se deben perder
de vista, entre otras, las siguientes circunstancias: (1) que la invasion
japonesa, aun en el apogeo de su fuerza, jamas pudo quebrantar la lealtad
fundamental del pueblo filipino a su gobierno y al gobierno de los Estados
Unidos de America; (2) que en casi todas partes de Filipinas esta lealtad hizo
posible la articulacion y organizacion soterranea de fuerzas de resistencia
contra el enemigo; (3) que si bien el control japones era por lo general
efectivo en las ciudades y grandes poblaciones, era, sin embargo, precario en
muchos pueblos y barrios, sobre todo en aquellos que no tenian valor estrategico
o eran poco propicios a la confiscacion y rapiña, dominando practicamente en
dichos sitios las guerrillas; (4) que en algunas regiones el gobierno del
Commonwealth seguia funcionando, trasladandose de un sitio a otro para burlar la
persecucion del enemigo o acuartelandose en zonas a donde no alcanzaba la accion
de las guarniciones japonesas; (5) que muchos habitantes de los llanos y
poblados se sustrajeron a la jurisdiccion del gobierno de fuerza predominante
(paramount force), refugiandose en las montañas y lugares dominados por
las guerrillas y colocandose bajo la proteccion y salvaguardia de estas, o bien
en sitios donde no habia ni japoneses ni guerrillas; (6) y por ultimo, que
despues del desembarco del General MacArthur y de sus fuerzas libertadoras en
Leyte el 20 de Octubre de 1944, la lealtad filipina y el espiritu de resistencia
llegaron a su maxima tension y la ocupacion japonesa se fue desmoronando
rapidamente a pedazos hasta sufrir finalmente un colapso total.” (75 Phil., 403,
404.)

De autos resulta, sin eficaz contradiccion, que los peticionarios son vecinos
de la provincia de Tayabas y se refugiaron en las montañas durante la ocupacion
enemiga para no someterse a la autoridad de los japoneses y del gobierno
establecido por estos en el Archipielago. Tambien consta en autos que su
abogado, “obrando bajo instrucciones especificas”, presento una excepcion o
protesta formal contra la decision del Tribunal de Apelaciones, reservandose el
derecho de impugnar la validez de dicha decision para despues de la emancipacion
y reconquista. ¿Que mejor prueba de que los recurrentes no se sometieron a la
jurisdiccion del llamado gobierno de facto establecido por los japoneses
en Manila y en tales otras partes donde tuvieron control efectivo, y de que, por
tanto, no pueden alcanzarles ni afectarles adversamente las consecuencias
juridicas resultantes de dicho gobierno de facto? Que los recurrentes
lograron evadir con exito los tentaculos del gobierno de fuerza, lo demuestra el
hecho de que se refugiaron en las montañas a donde ya no pudo alcanzar ni
extenderse el dominio militar de los japoneses.

Por lo expuesto, los
recurrentes tienen derecho a que se considere de nuevo su apelacion.