Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-2662 March 26, 1949
SHIGENORI KURODA, petitioner,
vs.
Maor G!"!ra# RA$AEL %ALANDONI, &r'(a)'!r G!"!ra# CALI*TO DU+UE, Co#o"!#
MARGARITO TORAL&A, Co#o"!# IRENEO &UENCONSE%O, Co#o"!# PEDRO
TA&UENA, Maor $EDERICO ARANAS, MEL,ILLE S. HUSSE- a") RO&ERT PORT,
respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yenco, Jr., Ricardo A. Arci!!a and S.
Me!"i!!e #usse$ for respondents.
MORAN, C.J..
Shigenori Kuroda, forerl! a "ieutenant#$eneral of the %apanese &perial Ar! and
Coanding $eneral of the %apanese &perial 'orces in (he Philippines during a
period covering )*+,, and )*+++ -ho is no- charged before a ilitar! Coission
convened b! the Chief of Staff of the Ared forces of the Philippines -ith having
unla-full! disregarded and failed .to discharge his duties as such coand, peritting
the to coit brutal atrocities and other high cries against noncobatant civilians
and prisoners of the &perial %apanese 'orces in violation of the la-s and custos of
-ar. / coes before this Court see0ing to establish the illegalit! of E1ecutive 2rder
No. 34 of the President of the Philippines5 to en6oin and prohibit respondents Melville S.
7usse! and Robert Port fro participating in the prosecution of petitioner8s case before
the Militar! Coission and to peranentl! prohibit respondents fro proceeding -ith
the case of petitioners.
&n support of his case petitioner tenders the follo-ing principal arguents.
First. / .(hat E1ecutive 2rder No. 34 is illegal on the ground that it violates not onl! the
provision of our constitutional la- but also our local la-s to sa! nothing of the fact 9that:
the Philippines is not a signator! nor an adherent to the 7ague Convention on Rules
and Regulations covering "and ;arfare and therefore petitioners is charged of 8cries8
not based on la-, national and international.. 7ence petitioner argues / .(hat in vie-
off the fact that this coission has been epanelled b! virtue of an unconstitutional
la- an illegal order this coission is -ithout 6urisdiction to tr! herein petitioner..
Second. / (hat the participation in the prosecution of the case against petitioner before
the Coission in behalf of the <nited State of Aerica of attorne!s Melville 7usse!
and Robert Port -ho are not attorne!s authori=ed b! the Supree Court to practice la-
in the Philippines is a diinution of our personalit! as an independent state and their
appointent as prosecutor are a violation of our Constitution for the reason that the!
are not >ualified to practice la- in the Philippines.
%&ird. / (hat Attorne!s 7usse! and Port have no personalit! as prosecution the <nited
State not being a part! in interest in the case.
E1ecutive 2rder No. 34, establishing a National ;ar Cries 2ffice prescribing rule and
regulation governing the trial of accused -ar criinals, -as issued b! the President of
the Philippines on the ?*th da!s of %ul!, )*+@ (his Court holds that this order is valid
and constitutional. Article ? of our Constitution provides in its section ,, that /
(he Philippines renounces -ar as an instruent of national polic! and adopts the
generall! accepted principles of international la- as part of the of the nation.
&n accordance -ith the generall! accepted principle of international la- of the present
da! including the 7ague Convention the $eneva Convention and significant precedents
of international 6urisprudence established b! the <nited Nation all those person ilitar!
or civilian -ho have been guilt! of planning preparing or -aging a -ar of aggression
and of the coission of cries and offenses conse>uential and incidental thereto in
violation of the la-s and custos of -ar, of huanit! and civili=ation are held
accountable therefor. Conse>uentl! in the proulgation and enforceent of E1ecution
2rder No. 34 the President of the Philippines has acted in conforit! -ith the generall!
accepted and policies of international la- -hich are part of the our Constitution.
(he proulgation of said e1ecutive order is an e1ercise b! the President of his po-er
as Coander in chief of all our ared forces as upheld b! this Court in the case of
Aaashita "s. St!er 9"#)?*, +? 2ff. $a=., 33+: 1 -hen -e said /
;ar is not ended sipl! because hostilities have ceased. After
cessation of ared hostilities incident of -ar a! reain pending -hich
should be disposed of as in tie of -ar. An iportance incident to a
conduct of -ar is the adoption of easure b! the ilitar! coand not
onl! to repel and defeat the eneies but to sei=e and sub6ect to
disciplinar! easure those eneies -ho in their attept to th-art or
ipede our ilitar! effort have violated the la- of -ar. 9'( parte Buirin
,)@ <.S., )C 3, Sup. Ct., ?.: &ndeed the po-er to create a ilitar!
coission for the trial and punishent of -ar criinals is an aspect of
-aging -ar. And in the language of a -riter a ilitar! coission has
6urisdiction so long as a technical state of -ar continues. (his includes
the period of an aristice or ilitar! occupation up to the effective of a
treat! of peace and a! e1tend be!ond b! treat! agreeent. 9Co-les
%ria! of )ar Criinals b! Militar! (ribunals, Aerica Bar Association
%ournal %une, )*++.:
Conse>uentl!, the President as Coander in Chief is full! epo-ered to
consuate this unfinished aspect of -ar nael! the trial and punishent of
-ar criinal through the issuance and enforceent of E1ecutive 2rder No.
34.
Petitioner argues that respondent Militar! Coission has no %urisdiction to
tr! petitioner for acts coitted in violation of the 7ague Convention and the
$eneva Convention because the Philippines is not a signator! to the first and
signed the second onl! in )*+@. &t cannot be denied that the rules and
regulation of the 7ague and $eneva conventions for, part of and are -holl!
based on the generall! accepted principals of international la-. &n facts these
rules and principles -ere accepted b! the t-o belligerent nation the <nited
State and %apan -ho -ere signatories to the t-o Convention, Such rule and
principles therefore for part of the la- of our nation even if the Philippines
-as not a signator! to the conventions ebod!ing the for our Constitution
has been deliberatel! general and e1tensive in its scope and is not confined to
the recognition of rule and principle of international la- as continued inn
treaties to -hich our governent a! have been or shall be a signator!.
'urtherore -hen the cries charged against petitioner -ere allegedl!
coitted the Philippines -as under the sovereignt! of <nited States and
thus -e -ere e>uall! bound together -ith the <nited States and -ith %apan to
the right and obligation contained in the treaties bet-een the belligerent
countries. (hese rights and obligation -ere not erased b! our assuption of
full sovereignt!. &f at all our eergenc! as a free state entitles us to enforce
the right on our o-n of tr!ing and punishing those -ho coitted cries
against cries against our people. &n this connection it is -ell to reeber
-hat -e have said in the case of Laure! "s. Misa 9@3 Phil., ,@?:5
. . . (he change of our for governent fro Coon-ealth to
Republic does not affect the prosecution of those charged -ith the crie
of treason coitted during then Coon-ealth because it is an
offense against the sae sovereign people. . . .
B! the sae to0en -ar cries coitted against our people and our
governent -hile -e -ere a Coon-ealth are triable and punishable b!
our present Republic.
Petitioner challenges the participation of t-o Aerican attorne!s nael!
Melville S. 7usse! and Robert Port in the prosecution of his case on the
ground that said attorne!8s are not >ualified to practice la- in Philippines in
accordance -ith our Rules of court and the appointent of said attorne!s as
prosecutors is violative of our national sovereignt!.
&n the first place respondent Militar! Coission is a special ilitar! tribunal
governed b! a special la- and not b! the Rules of court -hich govern ordinar!
civil court. &t has alread! been sho-n that E1ecutive 2rder No. 34 -hich
provides for the organi=ation of such ilitar! coission is a valid and
constitutional la-. (here is nothing in said e1ecutive order -hich re>uires that
counsel appearing before said coission ust be attorne!s >ualified to
practice la- in the Philippines in accordance -ith the Rules of Court. &n facts it
is coon in ilitar! tribunals that counsel for the parties are usuall! ilitar!
personnel -ho are neither attorne!s nor even possessed of legal training.
Secondl! the appointent of the t-o Aerican attorne!s is not violative of our
nation sovereignt!. &t is onl! fair and proper that <nited States, -hich has
subitted the vindication of cries against her governent and her people to
a tribunal of our nation should be allo-ed representation in the trial of those
ver! cries. &f there has been an! relin>uishent of sovereignt! it has not
been b! our governent but b! the <nited State $overnent -hich has
!ielded to us the trial and punishent of her eneies. (he least that -e could
do in the spirit of coit! is to allo- the representation in said trials.
Alleging that the <nited State is not a part! in interest in the case petitioner
challenges the personalit! of attorne!s 7usse! and Port as prosecutors. &t is
of coon 0no-ledge that the <nited State and its people have been e>uall!
if not ore greatl! aggrieved b! the cries -ith -hich petitioner stands
charged before the Militar! Coission. &t can be considered a privilege for
our Republic that a leader nation should subit the vindication of the honor of
its citi=ens and its governent to a ilitar! tribunal of our countr!.
(he Militar! Coission having been convened b! virtue of a valid la- -ith
6urisdiction over the cries charged -hich fall under the provisions of
E1ecutive 2rder No. 34, and having said petitioner in its custod!, this Court
-ill not interfere -ith the due process of such Militar! coission.
'or all the foregoing the petition is denied -ith costs de oficio.