CIRIACO IBAÑEZ, PETITIONER, VS. HERNANDO HERNANDEZ, JUDGE OF FIRST INSTANCE OF LEYTE, ET AL., RESPONDENTS.

FERIA, J.:

The petitioner was prosecuted in seventeen (17) cases for violation of
article 213 of the Revised Penal Code, and in four (4) cases for
misappropriation of public funds defined and penalized in article 217 of the
same Code.

The Court of First Instance of Leyte, in its sentence dated May 22, 1941,
found the petitioner guilty in the said seventeen cases for violation of article
213 of the Penal Code, and four (4) cases for misappropriation of public funds
(all of which were tried jointly by agreement of the parties); but convicted him
only in three of the aforementioned seventeen cases and in three of the four
cases’ for misappropriation of public funds, in accordance with article 70 of
the Revised Penal Code.

Petitioner appealed to the Court of Appeals, and the latter affirmed with
modification the sentence of the lower court. No appeal by ceritiorari having
been taken by the petitioner to this Court, the decision of the Court of Appeals
became final after fifteen (15) days from its promulgation, and after the entry
of the judgment the case was remanded to the lower court with a certified copy
of the judgment or sentence for execution, in accordance with sections 8 and 9
of Rule 53, made applicable to criminal cases by section 17, of Rule 120.

The judgment of the Court of First Instance as affirmed by the Court of
Appeals could not be executed, because the defendant had been hiding in the
mountains of Leyte according to what the petitioner alleges in his petition.

On June 8, 1915, petitioner filed with the Court of Firsl Instance of Leyte a
motion asking the court “to suspend the reading of the decision of the Court of
Appeals” on the ground that “all acts of said Court of Appeals, being a creation
of the Japanese-sponsored government, are null and void; and that the said Court
of First Instance has no jurisdiction to have the aforesaid decision read to the
accused in view of the fact that a Court of Appeals duly constituted in
accordance with the Constitution of the Philippines and the laws of the
Commonwealth, has not yet passed upon the merits of the case on appeal to said
court.” The provincial fiscal of Leyte filed a well prepared opposition to said
motion, and the Court of First Instance of Leyte denied the motion on the
strength of the doctrine laid down by this Court in the case of Co Kim Cham vs.
Valdez Tan Keh and Dizon, (75 Phil., 113).

This case is before this Court by virtue of petition for certiorari, as
special civil action, filed by the petitioner under section 1, Rule 67.

The grounds for the petition called “motivos de accion” by the petitioner,
are (1) that the petitioner has not been able to attend to his said cases
appealed to the Court of Appeals, nor to file a motion for a new trial and to
appeal by certiorari to this Court from the Court of Appeals’ decision,
because he had’ been hiding in the mountains in onler to preserve his loyalty to
the Commonwealth and avoid serving the invader; (2) that the Japanese government
had tried to arrest him and made him serve the said sentence; (3) that the
latter was set aside by the judicial authorities of Leyte by virtue of the
amnesty granted by the President of the so-called Republic of the Philippines;
(4) that the cases against him, having been decided by the Court of Appeals
under the Japanese government, had acquired international character and required
the application of the International Law; (5) that three of the seventeen cases,
and three of the four cases above mentioned refer to the same subject matter,
and therefore he was charged with several offenses based on one and the same
act, contrary to a circular of the Attorney General issued to provincial fiscals
on October, 1941; and (6) that the respondents have issued orders and taken
steps to have the decision of the Court of Appeals executed, in excess of their
powers and jurisdiction.

All the so-called “causes of action” or grounds in support of the petition
are without merit and deserve no serious consideration.

In the case of Co Kim Cham vs. Yaldez Tan Keh and Dizon, supra, as
well as in that of Alcantara vs. Director nf Prisons (75 Phil., 491). this Court
has laid down the doctrine that the judgments and sentences, not of political
complexion, of the ordinary courts in these Islands. during the Japanese
occupation are good and valid. Therefore the respondent Judge did’ not act
without or in excess of its-jurisdiction in ordering the petitioner to appear in
order to serve the sentence complained of which is not of political complexion.

The fact that after submitting, without objection his appeal to the Court of
Appeals, the petitioner had -absconded himself in the..mountains to avoid
serving the sentence rather than for the reasons stated or alleged in his
petition, and for that reason he was prevented, according to his allegation,
from filing a motion for new trial, or an appeal “by certiorari to this
Court, did not affect the validity of the said sentence.

Messrs. Justices Hilado and Pcrfccto quote, as a new ground for their
dissent, an excerpt of the decision of the Supreme Court of the United States in
the case of Jones vs. United States (137 U. S., 202), which says that 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 all other officers, citizens and subjects, of that
government.” The only conclusion that may be drawn from the said quotation by
the dissenters is, that they propounded the new theory that the question whether
a government is de facto or de jure involves necessarily that
of sovereignty, which, being a political question, is to be determined by the
legislative and executive departments of a government, and not by the courts of
justice. This theory is clearly erroneous. It is true 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 can not be a government de
facto. The three classes of government 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 publicists and decisions of the Supreme Court of the
United States, are governments de facto in a territory under the same
sovereign de jure, or in which no question is involved as to 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 government 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 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 hold in the case of United States
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 (0
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. Lockhart, 17 Wall., 570), and Bairly vs. Hunter (171 U. S., 888), it was
held that the governments set up by the Confederate States during the war of
secession were dc facto governments. And, in the case of McCleod vs. United
States (229 U. S., -116), 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 dc facto government.

In view of the fact that there are only five Justices concurring in this
opinion, and after a rehearing the voting remained the same, the petition for
certiorari is dismissed in accordance with the provisions of Rule 56 section 2,
in relation with Rule 58, section 1, of the Rules of Court. So
ordered.

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

DISSENTING

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

We dissent.

In this case the result of the voting failed to obtain a majority. In
accordance with the provisions of Rule 56, section 2 in relation with Rule 58,
section 1, this case was set for rehearing, but no party appeared when it was
called on the day set. Thereafter, the respective opinions of the Justices and
the voting remained the same, with the consequences that, pursuant to said
section 2, this action, which was originally commenced in this Court, will be
dismissed. 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 said determination of the case. The opinion of our
said brethren has been written by Mr. Justice Feria in the form of the foregoing
decision. Said opinion is predicated upon the doctrine, from which we also
dissented, laid down in Co Kim Cham vs. Valdez Tan-Ken- and Dizon (75 Phil.,
113).

In order that the majority decision, with the dissents, in this case may be
promulgated without further delay, we have decided to merely summarize the
reasons supporting ours, without prejudice to our registering a more extended
dissent in Etorma vs. Ravelo and Director of Prisons (78 Phil., l45). Briefly,
this dissent is ‘based upon: (1) the reasons set forth-in my dissent, both from
the main decision and from the resolution on the motion for reconsideration, in
Co Kim Cham vs. Valdez Tan Keh and Dizon, supra: (2) those set. forth
in my concurring opinion in Peralta rs. Director of Prisons (75 Phil., 285) ;
(3) those set forth in my concurring opinion in People vs. Jose (75 Phil., 612)
; (4) those sot forth in my dissent in Alcantara vs. Director of Prisons (75
Phil., 494) ; (5) those set forth in my dissenting opinion in Castro vs. Court
of Appeals (75 Phil., 824) ; and (6) the doctrine in Jones vs. United States
(137 U. S., 202; 34 Law. ed., 691, 696), and in the cases therein cited,
that:

“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 lias been
affirmed under a great variety of circumstances. (Gelston vs. Hoyt, 16 U. S., 3
Wheat., 246, 324 [4:381, 401]; United States es. Palmer, Id., 610 [471]; The
Divina Pastora, 17 U. S., Wheat., 52 [4:512]; Foster vs. Neilson, 27 U. S., 2
Pet., 253, 307, 309 [7:415, 433, 434]; Keene us. 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, G8
U. S-, 1 Wall., 412, 423 [17:635, G37]; United States vit. Lynde, 78 U. S., 11
Wall., C32, 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.”; (137 U. S., 202, 213; 34 Law.-ed.,
696.)

In the case of Etorma vs. Ravelo and Director of Prisons,
supra, we propose to show the pertinence and applicability of the
doctrine in Jones vs. United States, supra, and make an’extended
discussion of the other grounds of
our dissent therein.

DISIDENTE

BRIONES, M.:

Disiento de la poncncia por las mismas razones expnestas en nii’disidenda
registrada en el asunlo de Co Rim Cham contra Yaldez Tan Ken and Dizon (75
Phil., 371).

Es un hecho no impugnado seriamente que el recurrcnte se replego en las
montanas de Leyte para huir del gobierno de fuerza predominante o de
facto establecido por los japoneses en estas Islas durante la ultima
guerra. El tenia derecho de hacerlo; no estaba obligado a rendir vasallaje a
dicho gobierno. Cuando seremonto todavia le quedaban ciertos recursos para
defenderse; y si no pudo utilizarlos fue por dicho remontamiento.

Por tanto, ahora, en la liberacion, es nada mas que justo el que se le de la
oportunidad de
agotar tales recursos, permitiendole proseguir su
apelacion.

El recurso debe estimarse.