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PHILIPPINE SUPREME COURT DECISIONS

SECOND DIVISION

[G.R. No. L-2662. March 26, 1949. ]

SHIGENORI KURODA, Petitioner, v. Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, Respondents.

Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for Petitioner.

Fred Ruiz Castro, Federico Arenas, Mariano Yengco, Jr., Ricardo A. Arcilla, and S. Meville Hussey for Respondents.

SYLLABUS


1. CONSTITUTIONAL LAW; VALIDITY OF EXECUTIVE ORDER NO. 68 ESTABLISHING A NATIONAL WAR CRIMES OFFICE. — Executive Order No. 68 which was issued by the President of the Philippines on the 29th day of July, 1947, is valid in its section 3 that "The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the nation."cralaw virtua1aw library

2. INTERNATIONAL LAW; VIOLATORS OF THE LAWS AND CUSTOMS OF WAR, OF HUMANITY AND CIVILIZATION, LIABILITY AND RESPONSIBILITY OF. — In accordance with the generally accepted principles of international law of the present day, including the Hague Convention, the Geneva Convention and significant precedents of international jurisprudence established by the United Nations, all those persons, military of civilian, who have been guilty of planning, preparing or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto, in violation of the laws and customs of war, of humanity and civilization, are held accountable therefor.

3. ID.; POWER OF THE PRESIDENT OF THE PHILIPPINES. — IN the promulgation and enforcement of Executive Order No. 68, the President of the Philippines has acted in conformity with the generally accepted principles and policies and international law which are part of our constitution.

4. CONSTITUTIONAL LAW; POWER OF PRESIDENT AS COMMANDER IN CHIEF OR ARMED FORCES OF THE PHILIPPINES. — The promulgation of said executive order is an exercise by the President of his powers as Commander in Chief of all our armed forces.

5. ID.; ID.; — The President as Commander in Chief is fully empowered to consummate this unfinished aspects of war, namely, the trial and punishment of war criminals, through the issuance and enforcement of Executive Order No. 68.

6. INTERNATIONAL LAW; HAGUE AND GENEVA CONVENTION FORM PART OF THE LAW OF THE PHILIPPINES; EVEN IF THE PHILIPPINES WAS NOT SIGNATORY THEREOF, PROVISIONS OF PHILIPPINE CONSTITUTION HAS BEEN COMPREHENSIVE TO THAT EFFECT. — The rules and regulations of the Hague and Geneva Conventions form part of and are wholly based on the generally accepted principles of international law. In fact, these rules and principles were accepted by the two belligerent nations, the United States and Japan, who were signatories to the two Conventions. Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory.

7. id.; rights and obligations of a nation were not erased by assumption of full sovereignty RIGHT TO TRY AND PUNISH CRIMES THERETOFORE COMMITTED. — When the crimes charged against petitioner were allegedly committed, the Philippines was under the sovereignty of the United States, and thus we were equally bound together with the United Sates and with Japan, to the rights and obligations contained in the treaties between the belligerent countries. These rights and obligations were not erased by our assumption of full sovereignty. If at right, on our own, of trying and punishing those who committed crimes against our people.

8. ID.; ID.; ID.; — War crimes committed against our people and our government while we are a Commonwealth, are triable and punishable by our present Republic.

9. MILITARY COMMISSION GOVERNED BY SPECIAL LAW. — Military Commission is a special military tribunal governed by a special law and not by the Rules of Court which govern ordinary civil courts.

10. MILITARY COMMISSION; COUNSEL APPEARING BEFORE IT NOT NECESSARILY A MEMBER OF THE PHILIPPINE BAR. — There is nothing in Executive Order No. 68 which requires that counsel appearing before said commission must be attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. In fact, it is common in military tribunals that counsel for the parties are usually military personnel who are neither attorneys nor even possessed of legal training.

11. ID.; TRIAL OF WAR CRIMES BEFORE PHILIPPINE COURTS; ALLOWANCE OF AMERICAN ATTORNEYS TO REPRESENT UNITED STATES. — The appointment of the two American attorneys is not violative of our national sovereignty. It is only fair and proper that the United States, which has submitted the vindication of crimes against her government and her people to a tribunal of our nation, should be allowed representation in the trial of those very crimes. If there has been any relinquishment of sovereignty, it has not been by our government by the United States Government which has yielded to us the trial and punishment of her enemies. The least that we could do in the spirit of comity is to allow them representation in said trials.

12. ID.; ID.; ID. — It is of common knowledge that the United States and its people have been equally, if not more greatly, aggrieved by the crimes with which petitioner stands charged before the Military Commission. It can be considered a privilege for our Republic that a leader nation should submit the vindication of the honor of its citizens and its government to a military tribunal of our country.

13. ID.; JURISDICTION; SUPREME COURT WILL NOT INTERFERE WITH DUE PROCESSES OF MILITARY COMMISSION. — The Military Commission having been convened by virtue of a valid law, with jurisdiction over the crimes charged which fall under the provisions of Executive Order No. 68, and having jurisdiction over the person of the petitioner by having said petitioner in its custody, this court will not interfere with the due processes of such Military Commission.

Per PERFECTO, J., dissenting:chanrob1es virtual 1aw library

14. ATTORNEYS AT LAW; ALIENS CANNOT PRACTICE LAW. — It appearing that Attys. Hussey and Port are aliens and have not been authorized by the Supreme Court to practice law, they cannot appear as prosecutors in a case pending before the War Crimes Commission.

15. CONSTITUTIONAL LAW; LEGISLATIVE POWER VESTED IN CONGRESS; EXCEPTION. — While there is no express provision in the fundamental law prohibiting the exercise of legislative power by agencies other than Congress, a reading of the whole context of the Constitution would dispel any doubt as to the constitutional intent that the legislative power is to be exercised exclusively by Congress, subject only to the veto power of the President, to his to suspend the writ of habeas corpus, to place any part of the Philippines under martial law, to the rule-making power expressly vested by the Constitution in the Supreme Court.

16. ID.; ID.; SCOPE OF POWERS OF DIFFERENT GOVERNMENTAL DEPARTMENTS. — Because the powers vested by our Constitution to the several departments of the government are in the nature of grants, not a recognition of pre-existing powers, no department of the government may exercise any power or authority not expressly granted by the Constitution or by law by virtue of express authority of the Constitution.

17. ID.; ID.; POWER OF PRESIDENT TO PROMULGATE EXECUTIVE ORDER DEFINING AND ALLOCATING JURISDICTION FOR PROSECUTION OF WAR CRIMES ON MILITARY COMMISSION. — The provision in Executive Order No. 68 (series of 1947) of the President of the Philippines, that persons accused as war criminals shall be tried by military commission, is clearly legislative in nature and intends to confer upon military commission jurisdiction to try all persons charged with war crimes. But, the power to define and allocate jurisdiction for the prosecution of persons accused of crimes is exclusively vested by the Constitution in Congress.

18. ID.; ID.; POWER TO ESTABLISH GOVERNMENT OFFICE. — Executive Order No. establishes a National War Crimes Office; but, the power to establish government offices is essentially legislative.

19. ID.; RULE-MAKING POWER OF SUPREME COURT; PRESIDENT HAS NO POWER, MUCH LESS DELEGATE SUCH A POWER, TO PROVIDE RULES OF PROCEDURE FOR CONDUCT OF TRIALS. — Executive Order No. 68 provides rules of procedure for the conduct of trials before the War Crimes Office. This provision on procedural subject constitutes a usurpation of the rule-making power vested by the Constitution in the Supreme Court. It further authorizes military commissions to adopt additional rules of procedure. If the President of the Philippines cannot exercise the rule making power vested by the Constitution in the Supreme Court, he cannot, with more reason, delegate that power to military commissions.

20. ID.; LEGISLATIVE POWER VESTED IN CONGRESS; USURPATION OF POWER TO APPROPRIATE FUNDS. — Executive Order No. 68 appropriates funds for the expenses of the National War Crimes Office. This constitutes another usurpation of legislative power, as the power to vote appropriations belongs to Congress.

21. ID.; EMERGENCY POWERS OF PRESIDENT UNDER COMMONWEALTH ACTS NOS. 600, 620 AND 671. — Commonwealth Acts Nos. 600, 620 and 671, granting the President of the Philippines emergency powers to promulgate rules and regulations during national emergency has ceased to have effect since the liberation of the Philippines, or at latest, upon the surrender of Japan on September 2, 1945. The absurdity of the contention that these emergency acts continued in effect even after the surrender of Japan cannot be gainsaid. Only a few months after liberation, and even before the surrender of Japan, the Congress started to function normally. To let the hypothesis on continuance prevail will result in the existence of two distinct, separate and independent legislative organs. — the Congress and the President of the Philippines. Should there be any disagreement between Congress and the President, a possibility that no one can dispute, the President may take advantage of the long recess of Congress (two-thirds of every year) to repeal and overrule legislative enactments of Congress, and may set up a veritable system of dictatorship, absolutely repugnant to the letter and spirit of the Constitution.

22. STATUTORY CONSTRUCTION; PRESUMPTION THAT LEGISLATIVE BODY DID NOT INTEND TO VIOLATE CONSTITUTION. — It has never been the purpose of the National Assembly to extend the delegation (embodied in Commonwealth Acts Nos. 600, 620 and 671) beyond the emergency created by war, as to extent it farther would be violate of the express provisions of the Constitution. We are of the opinion that there is no doubt on this question; but, if there could still be any, the same should be resolved in favor of the presumption that the National Assembly did not intend to violate the fundamental law.

23. CONSTITUTIONAL LAW; DUE PROCESS AND EQUAL PROTECTION OF LAW. — Executive Order No. 68 violates the fundamental guarantees of due process and equal protection of the law, because it permits the admission of many kinds of evidence by which no innocent person can afford to get acquittal, and by which it is impossible to determine whether an accused is guilt or not beyond all reasonable doubt.


D E C I S I O N


MORAN, C.J. :


Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in the Philippines during a period covering 1943 and 1944, who is now charged before a Military Commission convened by the Chief of Staff of the Armed Forces of the Philippines, with having unlawfully disregarded and failed "to discharge his duties as such commander to control the operations of members of his command, permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces, in violation of the laws and customs of war" — comes before this Court seeking to establish the illegality of Executive Order No. 68 of the President of the Philippines; to enjoin and prohibit respondents Melville S. Hussey and Robert Port from participating in the prosecution of petitioner’s case before the Military Commission; and to permanently prohibit respondents from proceeding with the case of petitioner.

In support of his case, petitioner tenders the following principal arguments:chanrob1es virtual 1aw library

First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the provisions of our constitutional law but also our local laws, to say nothing of the fact (that) the Philippines is not a signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and, therefore, petitioner is charged of ’crimes’ not based on law, national and international." Hence, petitioner argues — "That in view of the fact that this commission has been empanelled by virtue of an unconstitutional law and an illegal order, this commission is without jurisdiction to try herein petitioner."cralaw virtua1aw library

Second. — That the participation in the prosecution of the case against petitioner before the Commission in behalf of the United States of America, of attorneys Melville Hussey and Robert Port, who are not attorneys authorized by the Supreme Court to practice law in the Philippines, is a diminution of our personality as an independent state, and their appointments as prosecutors are a violation of our Constitution for the reason that they are not qualified to practice law in the Philippines.

Third. — That Attorneys Hussey and Port have no personality as prosecutors, the United States not being a party in interest in the case.

Executive Order No. 68, establishing a National War Crimes Office and prescribing rules and regulations governing the trial of accused war criminals, was issued by the President of the Philippines on the 29th day of July, 1947. This Court holds that this order is valid and constitutional. Article 2 of our Constitution provides in its section 3, that —

"The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the nation."cralaw virtua1aw library

In accordance with the generally accepted principles of international law of the present day, including the Hague Convention, the Geneva Convention and significant precedents of international jurisprudence established by the United Nations, all those persons, military or civilian, who have been guilty of planning, preparing or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto, in violation of the laws and customs of war, of humanity and civilization, are held accountable therefor. Consequently, in the promulgation and enforcement of Executive Order No. 68, the President of the Philippines has acted in conformity with the generally accepted principles and policies of international law which are part of our Constitution.

The promulgation of said executive order is an exercise by the President of his powers as Commander in Chief of all our armed forces, as upheld by this Court in the case of Yamashita v. Styer L-129, 42 Off. Gaz., 654) 1 when we said —

"War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incidents of war may remain pending which should be disposed of as in time of war.’An important incident to a conduct of war is the adoption of measures by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war.’ (Ex parte Quirin, 317 U. S., 1; 63 Sup. Ct., 2.) Indeed, the power to create a military commission for the trial and punishment of war criminals is an aspect of waging war. And, in the language of a writer, a military commission ’has jurisdiction so long as a technical state of war continues. This includes the period of an armistice, or military occupation, up to the effective date of a treaty of peace, and may extend beyond, by treaty agreement.’ (Cowls, Trial of War Criminals by Military Tribunals, American Bar Association Journal, June, 1944.)"

Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished aspect of war, namely, the trial and punishment of war criminals, through the issuance and enforcement of Executive Order No. 68.

Petitioner argues that respondent Military Commission has no jurisdiction to try petitioner for acts committed in violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and regulations of the Hague and Geneva conventions form part of and are wholly based on the generally accepted principles of international law. In fact, these rules and principles were accepted by the two belligerent nations, the United States and Japan, who were signatories to the two Conventions. Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory.

Furthermore, when the crimes charged against petitioner were allegedly committed, the Philippines was under the sovereignty of the United States, and thus we were equally bound together with the United States and with Japan, to the rights and obligations contained in the treaties between the belligerent countries. These rights and obligations were not erased by our assumption of full sovereignty. If at all, our emergence as a free state entitles us to enforce the right, on our own, of trying and punishing those who committed crimes against our people. In this connection, it is well to remember what we have said in the case of Laurel v. Misa (76 Phil., 372):jgc:chanrobles.com.ph

". . . The change of our form of government from Commonwealth to Republic does not affect the prosecution of those charged with the crime of treason committed during the Commonwealth, because it is an offense against the same government and the same sovereign people . . ."cralaw virtua1aw library

By the same token, war crimes committed against our people and our government while we were a Commonwealth, are triable and punishable by our present Republic.

Petitioner challenges the participation of two American attorneys, namely, Melville S. Hussey and Robert Port, in the prosecution of his case, on the ground that said attorneys are not qualified to practice law in the Philippines in accordance with our Rules of Court and the appointment of said attorneys as prosecutors is violative of our national sovereignty.

In the first place, respondent Military Commission is a special military tribunal governed by a special law and not by the Rules of Court which govern ordinary civil courts. It has already been shown that Executive Order No. 68 which provides for the organization of such military commissions is a valid and constitutional law. There is nothing in said executive order which requires that counsel appearing before said commissions must be attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. In fact, it is common in military tribunals that counsel for the parties are usually military personnel who are neither attorneys nor even possessed of legal training.

Secondly, the appointment of the two American attorneys is not violative of our national sovereignty. It is only fair and proper that the United States, which has submitted the vindication of crimes against her government and her people to a tribunal of our nation, should be allowed representation in the trial of those very crimes. If there has been any relinquishment of sovereignty, it has not been by our government but by the United States Government which has yielded to us the trial and punishment of her enemies. The least that we could do in the spirit of comity is to allow them representation in said trials.

Alleging that the United States is not a party in interest in the case, petitioner challenges the personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that the United States and its people have been equally, if not more greatly, aggrieved by the crimes with which petitioner stands charged before the Military Commission. It can be considered a privilege for our Republic that a leader nation should submit the vindication of the honor of its citizens and its government to a military tribunal of our country.

The Military Commission having been convened by virtue of a valid law, with jurisdiction over the crimes charged which fall under the provisions of Executive Order No. 68, and having jurisdiction over the person of the petitioner by having said petitioner in its custody, this Court will not interfere with the due processes of such Military Commission.

Paras, Feria, Pablo, Bengzon, Briones, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions


PERFECTO. J., dissenting:chanrob1es virtual 1aw library

A military commission was empaneled on December 1, 1948, to try Lt. Gen. Shigenori Kuroda for violation of the laws and customs of land warfare.

Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court to practice law, were appointed prosecutors representing the American CIC in the trial of the case.

The commission was empaneled under the authority of Executive Order No. 68 of the President of the Philippines, the validity of which is challenged by petitioner on constitutional grounds. Petitioner has also challenged the personality of Attorneys Hussey and Port to appear as prosecutors before the commission.

The charges against petitioner has been filed since June 26, 1948, in the name of the People of the Philippines as accusers.

We will consider briefly the challenge against the appearance of Attorneys Hussey and Port. It appearing that they are aliens and have not been authorized by the Supreme Court to practice law, there could not be any question that said persons cannot appear as prosecutors in petitioner’s case, as with such appearance they would be practicing law against the law.

Said violation vanishes, however, into insignificance at the side of the momentous questions involved in the challenge against the validity of Executive Order No. 68. Said order is challenged on several constitutional grounds. To get a clear idea of the questions raised, it is necessary to read the whole context of said order which is reproduced as follows:jgc:chanrobles.com.ph

"EXECUTIVE ORDER No. 68

"ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES AND REGULATIONS GOVERNING THE TRIAL OF ACCUSED WAR CRIMINALS.

"I, Manuel Roxas, President of the Philippines, by virtue of the powers vested in me by the Constitution and laws of the Philippines, do hereby establish a National War Crimes Office charged with the responsibility of accomplishing the speedy trial of all Japanese accused of war crimes committed in the Philippines, and prescribe the rules and regulations governing such trial.

"The National War Crimes Office is established within the Office of the Judge Advocate General of the Army of the Philippines and shall function under the direction, supervision and control of the Judge Advocate General. It shall proceed to collect from all available sources evidence of war crimes committed in the Philippines from the commencement of hostilities by Japan in December, 1941, maintain a record thereof, and bring about the prompt trial of the accused.

"The National War Crimes Office shall maintain direct liaison with the Legal Section, General Headquarters, Supreme Commander for the Allied Powers, and shall exchange with the said Office information and evidence of war crimes.

"The following rules and regulations shall govern the trial of persons accused as war criminals:jgc:chanrobles.com.ph

"I. ESTABLISHMENT OF MILITARY COMMISSIONS

"(a) General. — Persons accused as war criminals shall be tried by military commissions to be convened by, or under the authority of, the President of the Philippines.

"II. JURISDICTION

"(a) Over Persons. — The military commissions appointed hereunder shall have jurisdiction over all persons charged with war crimes who are in the custody of the convening authority at the time of the trial.

"(b) Over Offenses. — The military commissions established hereunder shall have jurisdiction over all offenses including, but not limited to, the following:jgc:chanrobles.com.ph

"(1) The planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

"(2) Violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or internees or persons on the seas or elsewhere; improper treatment of hostages; plunder of public or private property; wanton destruction of cities, towns or villages; or devastation not justified by military necessity.

"(3) Murder, extermination, enslavement, deportation and other inhuman acts committed against civilian populations before or during the war, or persecutions on political, racial or religious grounds in execution of, or in connection with, any crime defined herein, whether or not in violation of the local laws.

"III. MEMBERSHIP OF COMMISSIONS

"(a) Appointment. — The members of each military commission shall be appointed by the President of the Philippines, or under authority delegated by him. Alternates may be appointed by the convening authority. Such alternates shall attend all sessions of the commission, and in case of illness or other incapacity of any principal member, an alternate shall take the place of that member. Any vacancy among the members or alternates, occurring after a trial has begun, may be filed by the convening authority, but the substance of all proceedings had and evidence taken in that case shall be made known to the said new member or alternate. This fact shall be announced by the president of the commission in open court.

"(b) Number of Members. — Each commission shall consist of not less than three (3) members.

"(c) Qualifications. — The convening authority shall appoint to the commission persons whom he determines to be competent to perform the duties involved and not disqualified by personal interest or prejudice, provided that no person shall be appointed to hear a case in which he personally investigated, or wherein his presence as a witness is required. One specially qualified member shall be designated as the law member whose ruling is final in so far as concerns the commission on an objection to the admissibility of evidence offered during the trial.

"(d) Voting. — Except as to the admissibility of evidence, all rulings and findings of the Commission shall be by majority vote, except that conviction and sentence shall be by the affirmative vote of not less than two-thirds (2/3) of the members present.

"(e) Presiding Member. — In the event that the convening authority does not name one of the members as the presiding member, the senior officer among the members of the Commission present shall preside.

"IV. PROSECUTORS

"(a) Appointment. — The convening authority shall designate one or more persons to conduct the prosecution before each commission.

"(b) Duties. — The duties of the prosecutors are:jgc:chanrobles.com.ph

"(1) To prepare and present charges and specifications for reference to a commission.

"(2) To prepare cases for trial and to conduct the prosecution before the commission of all cases referred for trial.

V. POWERS AND PROCEDURE OF COMMISSIONS

"(a) Conduct of the Trial. — A Commission shall:jgc:chanrobles.com.ph

"(1) Confine each trial strictly to a fair and expeditious hearing on the issues raised by the charges, excluding irrelevant issues or evidence and preventing any unnecessary delay or interference.

"(2) Deal summarily with any contumacy or contempt, imposing any appropriate punishment therefor.

"(3) Hold public sessions except when otherwise decided by the commission.

"(4) Hold each session at such time and place as it shall determine, or as may be directed by the convening authority.

"(b) Rights of the Accused. — The accused shall be entitled:jgc:chanrobles.com.ph

"(1) To have in advance of the trial a copy of the charges and specifications clearly worded so as to apprise the accused of each offense charged.

"(2) To be represented, prior to and during trial, by counsel appointed by the convening authority or counsel of his own choice, or to conduct his own defense.

"(3) To testify in his own behalf and have his counsel present relevant evidence at the trial in support of his defense, and cross- examine each adverse witness who personally appears before the commission.

"(4) To have the substance of the charges and specifications, the proceedings and any documentary evidence translated, when he is unable otherwise to understand them.

"(c) Witnesses. — The Commission shall have power:jgc:chanrobles.com.ph

"(1) To summon witnesses and require their attendance and testimony; to administer oaths or affirmations to witnesses and other persons and to question witnesses.

"(2) To require the production of documents and other evidentiary material.

"(3) To delegate to the Prosecutors appointed by the convening authority the powers and duties set forth in (1) and (2) above.

"(4) To have evidence taken by a special commissioner appointed by the commission.

"(d) Evidence.

"(1) The commission shall admit such evidence as in its opinion shall be of assistance in proving or disproving the charge, or such as in the commission’s opinion would have probative value in the mind of a reasonable man. The commission shall apply the rules of evidence and pleading set forth herein with the greatest liberality to achieve expeditious procedure. In particular, and without limiting in any way the scope of the foregoing general rules, the following evidence may be admitted:jgc:chanrobles.com.ph

"(a) Any document, irrespective of its classification, which appears to the commission to have been signed or issued by any officer, department, agency or member of the armed forces of any Government without proof of the signature or of the issuance of the document.

"(b) Any report which appears to the commission to have been signed or issued by the International Red Cross or a member thereof, or by a doctor of medicine or a member of any medical service personnel, or by any investigator or intelligence officer, or by any other person whom the commission considers as possessing knowledge of the matters contained in the report.

"(c) Affidavits, depositions or other signed statements.

"(d) Any diary, letter or other document, including sworn or unsworn statements, appearing to the commission to contain information relating to the charge.

"(e) A copy of any document or other secondary evidence of the contents, if the original is not immediately available.

"(2) The commission shall take judicial notice of facts of common knowledge, official government documents of any nation, and the proceedings, records and findings of military or other agencies of any of the United Nations.

"(3) A commission may require the prosecution and the defense to make a preliminary offer of proof, whereupon the commission may rule in advance on the admissibility of such evidence.

"(4) The official position of the accused shall not absolve him from responsibility, nor be considered in mitigation of punishment. Further, action pursuant to an order of the accused’s superior, or of his Government, shall not constitute a defense, but may be considered in mitigation of punishment if the commission determines that justice so requires.

"(5) All purported confessions or statements of the accused shall be admissible in evidence without any showing that they were voluntarily made. If it is shown that such confession or statement was procured by means which the commission believes to have been of such a character that they may have caused the accused to make a false statement, the commission may strike out or disregard any such portion thereof as was so procured.

"(e) Trial Procedure. — The proceedings of each trial shall be conducted substantially as follows, unless modified by the commission to suit the particular circumstances:jgc:chanrobles.com.ph

"(1) Each charge and specification shall be read, or its substance stated, in open court.

"(2) The presiding member shall ask each accused whether he pleads ’Guilty’ or ’Not guilty.’

"(3) The prosecution shall make its opening statement.

"(4) The presiding member may, at this or any other time, require the prosecutor to state what evidence he proposes to submit to the commission and the commission thereupon may rule upon the admissibility of such evidence.

"(5) The witnesses and other evidence for the prosecution shall be heard or presented. At the close of the case for the prosecution, the commission may, on motion of the defense for a finding of not guilty, consider and rule whether the evidence before the commission supports the charges against the accused. The commission may defer action on any such motion and permit or require the prosecution to reopen its case and produce any further available evidence.

"(6) The defense may make an opening statement prior to presenting its case. The presiding member may, at this or any other time, require the defense to state what evidence it proposes to submit to the commission, where upon the commission may rule upon the admissibility of such evidence.

"(7) The witnesses and other evidence for the defense shall be heard or presented. Thereafter, the prosecution and defense may introduce such evidence in rebuttal as the commission may rule as being admissible.

"(8) The defense, and thereafter the prosecution, shall address the commission.

"(9) The commission thereafter shall consider the case in closed session and unless otherwise directed by the convening authority, announce in open court its judgment and sentence, if any. The commission may state the reasons on which judgment is based.

"(f) Record of Proceedings. — Each commission shall make a separate record of its proceedings in the trial of each case brought before it. The record shall be prepared by the prosecutor under the direction of the commission and submitted to the defense counsel. The commission shall be responsible for its accuracy. Such record; certified by the presiding member of the commission or his successor, shall be delivered to the convening authority as soon as possible after the trial.

"(g) Sentence. — The commission may sentence an accused, upon conviction, to death by hanging or shooting, imprisonment for life or for any less term, fine, or such other punishment as the commission shall determine to be proper.

"(h) Approval of Sentence. — No sentence of a military commission shall be carried into effect until approved by the Chief of Staff: Provided, That no sentence of death or life imprisonment shall be carried into execution until confirmed by the President of the Philippines. For the purpose of his review, the Chief of Staff shall create a Board of Review to be composed of not more than three officers none of whom shall be on duty with or assigned to the Judge Advocate General’s Office. The Chief of Staff shall have the authority to approve, mitigate, remit in whole or in part, commute, suspend, reduce or otherwise alter the sentence imposed, or (without prejudice to the accused) remand the case for rehearing before a new military commission; but he shall not have authority to increase the severity of the sentence. Except as herein otherwise provided, the judgment and sentence of a commission shall be final and not subject to review by any other tribunal.

"VI. RULE-MAKING POWER

"Supplementary Rules and Forms. — Each commission shall adopt rules and forms to govern its procedure, not inconsistent with the provisions of this Order, or such rules and forms as may be prescribed by the convening authority or by the President of the Philippines.

"VII. The amount of seven hundred thousand pesos is hereby set aside out of the appropriations for the Army of the Philippines for use by the National War Crimes Office in the accomplishment of its mission as hereinabove set forth, and shall be expended in accordance with the recommendations of the Judge Advocate General as approved by the President. The buildings, textures, installations, messing, and billeting equipment and other property heretofore used by the Legal Section, Manila Branch, of the General Headquarters, Supreme Commander for the Allied Powers, which will be turned over by the United States Army to the Philippine Government through the Foreign Liquidation Commission and the Surplus Property Commission are hereby specifically reserved for use of the National War Crimes Office.

"Executive Order No. 64, dated August 16, 1940, is hereby repealed.

"Done in the City of Manila, this 29th day of July, in the year of Our Lord, nineteen hundred and forty-seven, and of the Independence of the Philippines, the second.

"MANUEL ROXAS

"President of the Philippines

"By the President:jgc:chanrobles.com.ph

"EMILIO ABELLO

"Chief of the Executive Office"

EXECUTIVE LEGISLATION

Executive Order No. 68 is a veritable piece of legislative measure, without the benefit of congressional enactment.

The first question that is thrust at our face, spearheading a group of other no less important questions, is whether or not the President of the Philippines may exercise the legislative power expressly vested in Congress by the Constitution.

The Constitution provides:jgc:chanrobles.com.ph

"The Legislative powers shall be vested in a Congress of the Philippines, which shall consist of a Senate and a House of Representatives." (Section 1, Article VI.)

While there is no express provision in the fundamental law prohibiting the exercise of legislative power by agencies other than Congress, a reading of the whole context of the Constitution would dispel any doubt as to the constitutional intent that the legislative power is to be exercised exclusively by Congress, subject only to the veto power of the President of the Philippines, to the specific provisions which allow the President of the Philippines to suspend the privileges of the writ of habeas corpus and to place any part of the Philippines under martial law, and to the rule-making power expressly vested by the Constitution in the Supreme Court.

There cannot be any question that the members of the Constitutional Convention were believers in the tripartite system of government as originally enunciated by Aristotle, further elaborated by Montesquieu and accepted and practiced by modern democracies, especially the United States of America, whose Constitution, after which ours has been patterned, has allocated the three powers of government — legislative, executive, judicial — to distinct and separate departments of government.

Because the powers vested by our Constitution to the several departments of the government are in the nature of grants, not a recognition of pre-existing powers, no department of government may exercise any power or authority not expressly granted by the Constitution or by law by virtue of express authority of the Constitution.

Executive Order No. 68 establishes a National War Crimes Office, and the power to establish government office is essentially legislative.

The order provides that persons accused as war criminals shall be tried by military commissions. Whether such a provision is substantive or adjective, it is clearly legislative in nature. It confers upon military commissions jurisdiction to try all persons charged with war crimes. The power to define and allocate jurisdiction for the prosecution of persons accused of any crime is exclusively vested by the Constitution in Congress.

It provides rules of procedure for the conduct of trials. This provision on procedural subject constitutes a usurpation of the rule- making power vested by the Constitution in the Supreme Court.

It authorizes military commissions to adopt additional rules of procedure. If the President of the Philippines cannot exercise the rule-making power vested by the Constitution in the Supreme Court, he cannot, with more reason, delegate that power to military commissions.

It appropriates the sum of P700,000 for the expenses of the National War Crimes Office established by the said Executive Order No. 68. This constitutes another usurpation of legislative power as the power to vote appropriations belongs to Congress.

Executive Order No. 68, is, therefore, null and void, because, through it, the President of the Philippines usurped powers expressly vested by the Constitution in Congress and in the Supreme Court.

Challenged to show the constitutional or legal authority under which the President of the Philippines issued Executive Order No. 68, respondents could not give any definite answer. They attempted, however, to suggest that the President of the Philippines issued Executive Order No. 68 under the emergency powers granted to him by Commonwealth Act No. 600, as amended by Commonwealth Act No. 620, and Commonwealth Act No. 671, both of which are transcribed below:jgc:chanrobles.com.ph

"COMMONWEALTH ACT No. 600

"AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULES AND REGULATIONS TO SAFEGUARD THE INTEGRITY OF THE PHILIPPINES AND TO INSURE THE TRANQUILLITY OF ITS INHABITANTS.

"Be it enacted by the National Assembly of the Philippines:jgc:chanrobles.com.ph

"SECTION 1. The existence of war in many parts of the world has created a national emergency which makes it necessary to invest the President of the Philippines with extraordinary powers in order to safeguard the integrity of the Philippines and to insure the tranquillity of its inhabitants, by suppressing espionage, lawlessness, and all subversive activities, by preventing or relieving unemployment, by insuring to the people adequate shelter and clothing and sufficient food supply, and by providing means for the speedy evacuation of the civilian population, the establishment of an air protective service, and the organization of volunteer guard units, and to adopt such other measures as he may deem necessary for the interest of the public. To carry out this policy the President is authorized to promulgate rules and regulations which shall have the force and effect of law until the date of adjournment of the next regular session of the First Congress of the Philippines, unless sooner amended or repealed by the Congress of the Philippines. Such rules and regulations may embrace the following objects: (1) to suppress espionage and other subversive activities; (2) to require all able- bodied citizens (a) when not engaged in any lawful occupation, to engage in farming or other productive activities or (b) to perform such services as may be necessary in the public interest; (3) to take over farm lands in order to prevent failure or shortage of crops and avert hunger and destitution; (4) to take over industrial establishments in order to insure adequate production, controlling wages and profits therein; (5) to prohibit lockouts and strikes whenever necessary to prevent the unwarranted suspension of work in productive enterprises or in the interest of national security; (6) to regulate the normal hours of work for wage-earning and salaried employees in industrial or business undertakings of all kinds; (7) to insure an even distribution of labor among the productive enterprises; (8) to commander ships and other means of transportation in order to maintain, as much as possible, adequate and continued transportation facilities; (9) to requisition and take over any public service or enterprise for use or operation by the Government; (10) to regulate rents and the prices of articles or commodities of prime necessity, both imported and locally produced or manufactured; and (11) to prevent, locally or generally, scarcity, monopolization, hoarding, injurious speculations, and private controls affecting the supply, distribution, and movement of foods, clothing, fuel, fertilizers, chemicals, building materials, implements, machinery, and equipment required in agriculture and industry, with power to requisition these commodities subject to the payment of just compensation. (As amended by Com. Act No. 620.)

"SEC. 2. For the purpose of administering this Act and carrying out its objectives, the President may designate any officer, without additional compensation, or any department, bureau, office, or instrumentality of the National Government.

"SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of this Act or of any of the rules or regulations promulgated by the President under the authority of section one of this Act shall be punished by imprisonment of not more than ten years or by a fine of not more than ten thousand pesos, or by both. If such violation is committed by a firm or corporation, the manager, managing director, or person charged with the management of the business of such firm, or corporation shall be criminally responsible therefor.

"SEC. 4. The President shall report to the National Assembly within the first ten days from the date of the opening of its next regular session whatever action has been taken by him under the authority herein granted.

"SEC. 5. To carry out the purposes of this Act, the President is authorized to spend such amounts as may be necessary from the sum appropriated under section five of Commonwealth Act Numbered Four hundred and ninety-eight.

"SEC. 6. If any provision of this Act shall be declared by any court of competent jurisdiction to be unconstitutional and void, such declaration shall not invalidate the remainder of this Act.

"SEC. 7. This Act shall take effect upon its approval.

"Approved, August 19, 1940."cralaw virtua1aw library

"COMMONWEALTH ACT No. 671

"AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR INVOLVING THE PHILIPPINES AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULES AND REGULATIONS TO MEET SUCH EMERGENCY.

"Be it enacted by the National Assembly of the Philippines:jgc:chanrobles.com.ph

"SECTION 1. The existence of war between the United States and other countries of Europe and Asia, which involves the Philippines, makes it necessary to invest the President with extraordinary powers in order to meet the resulting emergency.

"SEC. 2. Pursuant to the provisions of Article VI, section 16, of the Constitution, the President is hereby authorized, during the existence of the emergency, to promulgate such rules and regulations as he may deem necessary to carry out the national policy declared in section 1 hereof. Accordingly, he is, among other things, empowered (a) to transfer the seat of the Government or any of its subdivisions, branches, departments, offices, agencies or instrumentalities; (b) to reorganize the Government of the Commonwealth including the determination of the order of precedence of the heads of the Executive Departments; (c) to create new subdivisions, branches, departments, offices, agencies or instrumentalities of government and to abolish any of those already existing; (d) to continue in force laws and appropriations which would lapse or otherwise become inoperative, and to modify or suspend the operation or application of those of an administrative character; (e) to impose new taxes or to increase, reduce, suspend, or abolish those in existence; (f) to raise funds through the issuance of bonds or otherwise, and to authorize the expenditure of the proceeds thereof; (g) to authorize the National, provincial, city or municipal governments to incur in overdrafts for purposes that he may approve; (h) to declare the suspension of the collection of credits or the payment of debts; and (i) to exercise such other powers as he may deem necessary to enable the Government to fulfill its responsibilities and to maintain and enforce its authority.

"SEC. 3. The President of the Philippines shall as soon as practicable upon the convening of the Congress of the Philippines report thereto all the rules and regulations promulgated by him under the powers herein granted.

"SEC. 4. This Act shall take effect upon its approval, and the rules and regulations promulgated hereunder shall be in force and effect until the Congress of the Philippines shall otherwise provide.

"Approved, December 16, 1941."cralaw virtua1aw library

The above Acts cannot validly be invoked, because they ceased to have any effect much before Executive Order No. 68 was issued on July 29, 1947. Said Acts had elapsed upon the liberation of the Philippines from the Japanese forces or, at the latest, when the surrender of Japan was signed in Tokyo on September 2, 1945.

When both Acts were enacted by the Second National Assembly, we happened to have taken direct part in their consideration and passage, not only as one of the members of said legislative body but as chairman of the Committee on Third Reading, popularly known as the "Little Senate." We are, therefore, in a position to state that said measures were enacted by the Second National Assembly for the purpose of facing the emergency of an impending war and of the Pacific War that finally broke out with the attack of Pearl Harbor on December 7, 1941. We approved said extraordinary measures, by which, under the exceptional circumstances then prevailing, legislative powers were delegated to the President of the Philippines, by virtue of the following provisions of the Constitution:jgc:chanrobles.com.ph

"In times of war or other national emergency, the Congress may by law authorize the President, for a limited period and subject to such restrictions as it may prescribe, to promulgate rules and regulations to carry out a declared national policy." (Article VI, section 26.)

It has never been the purpose of the National Assembly to extend the delegation beyond the emergence created by the war, as to extend it farther would be violative of the express provisions of the Constitution. We are of the opinion that there is no doubt on this question; but if there could still be any, the same should be resolved in favor of the presumption that the National Assembly did not intend to violate the fundamental law.

The absurdity of the contention that the emergency Acts continued in effect even after the surrender of Japan can not be gainsaid. Only a few months after liberation and even before the surrender of Japan, or since the middle of 1945, the Congress started to function normally. In the hypothesis that the contention can prevail, then, since 1945, that is, four years ago, even after the Commonwealth was already replaced by the Republic of the Philippines with the proclamation of our Independence, two distinct, separate and independent legislative organs, — Congress and the President of the Philippines — would have been and would continue enacting laws, the former to enact laws of every nature including those of emergent character, and the latter to enact laws, in the form of executive orders, under the so-called emergency powers. The situation would be pregnant with dangers to peace and order, to the rights and liberties of the people, and to Philippine democracy.

Should there be any disagreement between Congress and the President of the Philippines, a possibility that no one can dispute, the President of the Philippines may take advantage of the long recess of Congress (two-thirds of every year) to repeal and overrule legislative enactments of Congress, and may set up a veritable system of dictatorship, absolutely repugnant to the letter and spirit of the Constitution.

Executive Order No. 68 is equally offensive to the Constitution because it violates the fundamental guarantees of the due process and equal protection of the law. It is especially so, because it permits the admission of many kinds of evidence by which no innocent person can afford to get acquittal, and by which it is impossible to determine whether an accused is guilty or not beyond all reasonable doubt.

The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulations governing the trial of twelve criminals, issued by General Douglas MacArthur, Commander in Chief of the United States Armed Forces in Western Pacific, for the purpose of trying, among others, Generals Yamashita and Homma. What we said in our concurring and dissenting opinion to the decision promulgated on December 19, 1945, in the Yamashita case, L-129, 1 and in our concurring and dissenting opinion to the resolution of January 23, 1946, in disposing the Homma case, L-244, 2 are perfectly applicable to the offensive rules of evidence embodied in Executive Order No. 68. Said rules of evidence are repugnant to conscience as under them no justice can be expected.

For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote to declare Executive Order No. 68 null and void and to grant the petition.

Endnotes:



1. 75 Phil., 563.

2. Not Reported.

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