Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-409             January 30, 1947

ANASTACIO LAUREL, petitioner,
vs.
ERIBERTO MISA, respondent.

Claro M. Recto and Querube C. Makalintal for petitioner.

First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for respondent.

RESOLUTION

In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the Court, acting on the
petition for habeas corpus filed by Anastacio Laurel and based on a theory that a Filipino
citizen who adhered to the enemy giving the latter aid and comfort during the Japanese
occupation cannot be prosecuted for the crime of treason defined and penalized by
article 114 of the Revised Penal Code, for the reason (1) that the sovereignty of the
legitimate government in the Philippines and, consequently, the correlative allegiance of
Filipino citizens thereto was then suspended; and (2) that there was a change of
sovereignty over these Islands upon the proclamation of the Philippine Republic:

(1) Considering that a citizen or subject owes, not a qualified and temporary, but an
absolute and permanent allegiance, which consists in the obligation of fidelity and
obedience to his government or sovereign; and that this absolute and permanent
allegiance should not be confused with the qualified and temporary allegiance which a
foreigner owes to the government or sovereign of the territory wherein he resides, so
long as he remains there, in return for the protection he receives, and which consists in
the obedience to the laws of the government or sovereign. (Carlisle vs. Unite States, 21
Law. ed., 429; Secretary of State Webster Report to the President of the United States in
the case of Thraser, 6 Web. Works, 526);

Considering that the absolute and permanent allegiance of the inhabitants of a territory
occupied by the enemy of their legitimate government or sovereign is not abrogated or
severed by the enemy occupation, because the sovereignty of the government or
sovereign de jure is not transferred thereby to the occupier, as we have held in the cases
of Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113) and of Peralta vs. Director
of Prisons (75 Phil., 285), and if it is not transferred to the occupant it must necessarily
remain vested in the legitimate government; that the sovereignty vested in the titular
government (which is the supreme power which governs a body politic or society which
constitute the state) must be distinguished from the exercise of the rights inherent
thereto, and may be destroyed, or severed and transferred to another, but it cannot be
suspended because the existence of sovereignty cannot be suspended without putting it
out of existence or divesting the possessor thereof at least during the so-called period of
suspension; that what may be suspended is the exercise of the rights of sovereignty with
the control and government of the territory occupied by the enemy passes temporarily to
the occupant; that the subsistence of the sovereignty of the legitimate government in a
territory occupied by the military forces of the enemy during the war, "although the former
is in fact prevented from exercising the supremacy over them" is one of the "rules of
international law of our times"; (II Oppenheim, 6th Lauterpacht ed., 1944, p. 482),
recognized, by necessary implication, in articles 23, 44, 45, and 52 of Hague Regulation;
and that, as a corollary of the conclusion that the sovereignty itself is not suspended and
subsists during the enemy occupation, the allegiance of the inhabitants to their legitimate
government or sovereign subsists, and therefore there is no such thing as suspended
allegiance, the basic theory on which the whole fabric of the petitioner's contention rests;

Considering that the conclusion that the sovereignty of the United State was suspended
in Castine, set forth in the decision in the case of United States vs. Rice, 4 Wheaton, 246,
253, decided in 1819, and quoted in our decision in the cases of Co Kim Cham vs.
Valdez Tan Keh and Dizon and Peralta vs. Director of Prisons, supra, in connection with
the question, not of sovereignty, but of the existence of a government de facto therein
and its power to promulgate rules and laws in the occupied territory, must have been
based, either on the theory adopted subsequently in the Hague Convention of 1907, that
the military occupation of an enemy territory does not transfer the sovereignty to the
occupant; that, in the first case, the word "sovereignty" used therein should be construed
to mean the exercise of the rights of sovereignty, because as this remains vested in the
legitimate government and is not transferred to the occupier, it cannot be suspended
without putting it out of existence or divesting said government thereof; and that in the
second case, that is, if the said conclusion or doctrine refers to the suspension of the
sovereignty itself, it has become obsolete after the adoption of the Hague Regulations in
1907, and therefore it can not be applied to the present case;

Considering that even adopting the words "temporarily allegiance," repudiated by

Oppenheim and other publicists, as descriptive of the relations borne by the inhabitants
of the territory occupied by the enemy toward the military government established over
them, such allegiance may, at most, be considered similar to the temporary allegiance
which a foreigner owes to the government or sovereign of the territory wherein he resides
in return for the protection he receives as above described, and does not do away with
the absolute and permanent allegiance which the citizen residing in a foreign country
owes to his own government or sovereign; that just as a citizen or subject of a
government or sovereign may be prosecuted for and convicted of treason committed in a
foreign country, in the same way an inhabitant of a territory occupied by the military
forces of the enemy may commit treason against his own legitimate government or
sovereign if he adheres to the enemies of the latter by giving them aid and comfort; and
that if the allegiance of a citizen or subject to his government or sovereign is nothing
more than obedience to its laws in return for the protection he receives, it would
necessarily follow that a citizen who resides in a foreign country or state would, on one
hand, ipso facto acquire the citizenship thereof since he has enforce public order and
regulate the social and commercial life, in return for the protection he receives, and
would, on the other hand, lose his original citizenship, because he would not be bound to
obey most of the laws of his own government or sovereign, and would not receive, while
in a foreign country, the protection he is entitled to in his own;

Considering that, as a corollary of the suspension of the exercise of the rights of

sovereignty by the legitimate government in the territory occupied by the enemy military
forces, because the authority of the legitimate power to govern has passed into the
hands of the occupant (Article 43, Hague Regulations), the political laws which prescribe
the reciprocal rights, duties and obligation of government and citizens, are suspended or
in abeyance during military occupation (Co Kim cham vs. Valdez Tan Keh and
dizon, supra), for the only reason that as they exclusively bear relation to the ousted
legitimate government, they are inoperative or not applicable to the government
established by the occupant; that the crimes against national security, such as treason
and espionage; inciting to war, correspondence with hostile country, flight to enemy's
country, as well as those against public order, such as rebellion, sedition, and disloyalty,
illegal possession of firearms, which are of political complexion because they bear
relation to, and are penalized by our Revised Penal Code as crimes against the
legitimate government, are also suspended or become inapplicable as against the
occupant, because they can not be committed against the latter (Peralta vs. Director of
Prisons, supra); and that, while the offenses against public order to be preserved by the
legitimate government were inapplicable as offenses against the invader for the reason
above stated, unless adopted by him, were also inoperative as against the ousted
government for the latter was not responsible for the preservation of the public order in
the occupied territory, yet article 114 of the said Revised Penal Code, was applicable to
treason committed against the national security of the legitimate government, because
the inhabitants of the occupied territory were still bound by their allegiance to the latter
during the enemy occupation;

Considering that, although the military occupant is enjoined to respect or continue in

force, unless absolutely prevented by the circumstances, those laws that enforce public
order and regulate the social and commercial life of the country, he has, nevertheless, all
the powers of de facto government and may, at his pleasure, either change the existing
laws or make new ones when the exigencies of the military service demand such action,
that is, when it is necessary for the occupier to do so for the control of the country and
the protection of his army, subject to the restrictions or limitations imposed by the Hague
Regulations, the usages established by civilized nations, the laws of humanity and the
requirements of public conscience (Peralta vs. Director of Prisons, supra; 1940 United
States Rules of Land Warfare 76, 77); and that, consequently, all acts of the military
occupant dictated within these limitations are obligatory upon the inhabitants of the
territory, who are bound to obey them, and the laws of the legitimate government which
have not been adopted, as well and those which, though continued in force, are in
conflict with such laws and orders of the occupier, shall be considered as suspended or
not in force and binding upon said inhabitants;

Considering that, since the preservation of the allegiance or the obligation of fidelity and
obedience of a citizen or subject to his government or sovereign does not demand from
him a positive action, but only passive attitude or forbearance from adhering to the
enemy by giving the latter aid and comfort, the occupant has no power, as a corollary of
the preceding consideration, to repeal or suspend the operation of the law of treason,
essential for the preservation of the allegiance owed by the inhabitants to their legitimate
government, or compel them to adhere and give aid and comfort to him; because it is
evident that such action is not demanded by the exigencies of the military service or not
necessary for the control of the inhabitants and the safety and protection of his army, and
because it is tantamount to practically transfer temporarily to the occupant their
allegiance to the titular government or sovereign; and that, therefore, if an inhabitant of
the occupied territory were compelled illegally by the military occupant, through force,
threat or intimidation, to give him aid and comfort, the former may lawfully resist and die if
necessary as a hero, or submit thereto without becoming a traitor;

Considering that adoption of the petitioner's theory of suspended allegiance would lead
to disastrous consequences for small and weak nations or states, and would be
repugnant to the laws of humanity and requirements of public conscience, for it would
allow invaders to legally recruit or enlist the Quisling inhabitants of the occupied territory
to fight against their own government without the latter incurring the risk of being
prosecuted for treason, and even compel those who are not aid them in their military
operation against the resisting enemy forces in order to completely subdue and conquer
the whole nation, and thus deprive them all of their own independence or sovereignty —
such theory would sanction the action of invaders in forcing the people of a free and
sovereign country to be a party in the nefarious task of depriving themselves of their own
freedom and independence and repressing the exercise by them of their own
sovereignty; in other words, to commit a political suicide;

(2) Considering that the crime of treason against the government of the Philippines
defined and penalized in article 114 of the Penal Code, though originally intended to be a
crime against said government as then organized by authority of the sovereign people of
the United States, exercised through their authorized representative, the Congress and
the President of the United States, was made, upon the establishment of the
Commonwealth Government in 1935, a crime against the Government of the Philippines
established by authority of the people of the Philippines, in whom the sovereignty resides
according to section 1, Article II, of the Constitution of the Philippines, by virtue of the
provision of section 2, Article XVI thereof, which provides that "All laws of the Philippine
Islands . . . shall remain operative, unless inconsistent with this Constitution . . . and all
references in such laws to the Government or officials of the Philippine Islands, shall be
construed, in so far as applicable, to refer to the Government and corresponding officials
under this constitution;

Considering that the Commonwealth of the Philippines was a sovereign government,

though not absolute but subject to certain limitations imposed in the Independence Act
and incorporated as Ordinance appended to our Constitution, was recognized not only by
the Legislative Department or Congress of the United States in approving the
Independence Law above quoted and the Constitution of the Philippines, which contains
the declaration that "Sovereignty resides in the people and all government authority
emanates from them" (section 1, Article II), but also by the Executive Department of the
United States; that the late President Roosevelt in one of his messages to Congress
said, among others, "As I stated on August 12, 1943, the United States in practice
regards the Philippines as having now the status as a government of other independent
nations — in fact all the attributes of complete and respected nationhood" (Congressional
Record, Vol. 29, part 6, page 8173); and that it is a principle upheld by the Supreme
Court of the United States in many cases, among them in the case of Jones vs. United
States (137 U.S., 202; 34 Law. ed., 691, 696) that the question of sovereignty is "a purely
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 the country.

Considering that section I (1) of the Ordinance appended to the Constitution which
provides that pending the final and complete withdrawal of the sovereignty of the United
States "All citizens of the Philippines shall owe allegiance to the United States", was one
of the few limitations of the sovereignty of the Filipino people retained by the United
States, but these limitations do not away or are not inconsistent with said sovereignty, in
the same way that the people of each State of the Union preserves its own sovereignty
although limited by that of the United States conferred upon the latter by the States; that
just as to reason may be committed against the Federal as well as against the State
Government, in the same way treason may have been committed during the Japanese
occupation against the sovereignty of the United States as well as against the
sovereignty of the Philippine Commonwealth; and that 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, for Article XVIII of
our Constitution provides that "The government established by this constitution shall be
known as the Commonwealth of the Philippines. Upon the final and complete withdrawal
of the sovereignty of the United States and the proclamation of Philippine independence,
the Commonwealth of the Philippines shall thenceforth be known as the Republic of the
Philippines";

This Court resolves, without prejudice to write later on a more extended opinion, to deny
the petitioner's petition, as it is hereby denied, for the reasons above set forth and for
others to be stated in the said opinion, without prejudice to concurring opinion therein, if
any. Messrs. Justices Paras and Hontiveros dissent in a separate opinion. Mr. justice
Perfecto concurs in a separate opinion.

Separate Opinions
PERFECTO, J., concurring:

Treason is a war crime. It is not an all-time offense. It cannot be committed in peace time.
While there is peace, there are no traitors. Treason may be incubated when peace
reigns. Treasonable acts may actually be perpetrated during peace, but there are no
traitors until war has started.

As treason is basically a war crime, it is punished by the state as a measure of self-

defense and self-preservation. The law of treason is an emergency measure. It remains
dormant until the emergency arises. But as soon as war starts, it is relentlessly put into
effect. Any lukewarm attitude in its enforcement will only be consistent with
national harakiri. All war efforts would be of no avail if they should be allowed to be
sabotaged by fifth columnists, by citizens who have sold their country out to the enemy,
or any other kind of traitors, and this would certainly be the case if he law cannot be
enforced under the theory of suspension.

Petitioner's thesis that allegiance to our government was suspended during enemy
occupation is advanced in support of the proposition that, since allegiance is identical
with obedience to law, during the enemy occupation, the laws of the Commonwealth
were suspended. Article 114 of the Revised Penal Code, the law punishing treason,
under the theory, was one of the laws obedience to which was also suspended.

Allegiance has been defined as the obligation for fidelity and obedience which the
individual owes to his government or his sovereign in return for the protection which he
receives.

"Allegiance", as the return is generally used, means fealty or fidelity to the government of
which the person is either a citizen or subject. Murray vs. The Charming Betsy, 6 U.S. (2
Cranch), 64, 120; 2 Law. ed., 208.

"Allegiance" was said by Mr. Justice Story to be "nothing more than the tie or duty of
obedience of a subject to the sovereign, under whose protection he is." United
States vs. Wong Kim Ark, 18 S. Ct., 461; 169 U.S., 649; 42 Law. ed., 890.

Allegiance is that duty which is due from every citizen to the state, a political duty binding
on him who enjoys the protection of the Commonwealth, to render service and fealty to
the federal government. It is that duty which is reciprocal to the right of protection, arising
from the political relations between the government and the citizen.
Wallace vs. Harmstad, 44 Pa. (8 Wright), 492, 501.

By "allegiance" is meant the obligation to fidelity and obedience which the individual
owes to the government under which he lives, or to his sovereign, in return for the
protection which he receives. It may be an absolute and permanent obligation, or it may
be a qualified and temporary one. A citizen or subject owes an absolute and permanent
allegiance to his government or sovereign, or at least until, by some open and distinct
act, he renounces it and becomes a citizen or subject of another government or
sovereign, and an alien while domiciled in a country owes it a temporary allegiance,
which is continuous during his residence. Carlisle vs. United States, 83 U.S. (16 Wall.),
147, 154; 21 Law ed., 426.

"Allegiance," as defined by Blackstone, "is the tie or ligament which binds the subject to
the King, in return for that protection which the King affords the subject. Allegiance, both
expressed and implied, is of two sorts, the one natural, the other local, the former being
perpetual, the latter temporary. Natural allegiance is such as is due from all men born
within the King's dominions immediately upon their birth, for immediately upon their birth
they are under the King's protection. Natural allegiance is perpetual, and for this reason,
evidently founded on the nature of government. Allegiance is a debt due from the subject
upon an implied contract with the prince that so long as the one affords protection the
other will demean himself faithfully. Natural-born subjects have a great variety of rights
which they acquire by being born within the King's liegance, which can never be forfeited
but by their own misbehaviour; but the rights of aliens are much more circumscribed,
being acquired only by residence, and lost whenever they remove. If an alien could
acquire a permanent property in lands, he must owe an allegiance equally permanent to
the King, which would probably be inconsistent with that which he owes his natural liege
lord; besides, that thereby the nation might, in time, be subject to foreign influence and
feel many other inconveniences." Indians within the state are not aliens, but citizens
owing allegiance to the government of a state, for they receive protection from the
government and are subject to its laws. They are born in allegiance to the government of
the state. Jackson vs. Goodell, 20 Johns., 188, 911. (3 Words and Phrases, Permanent
ed., 226-227.)

Allegiance. — Fealty or fidelity to the government of which the person is either a citizen
or subject; the duty which is due from every citizen to the state; a political duty, binding
on him who enjoys the protection of the commonwealth, to render service and fealty to
the federal government; the obligation of fidelity and obedience which the individual owes
to the government or to the sovereign under which he lives in return for the protection he
receives; that duty is reciprocal to the right of protection he receives; that duty which is
reciprocal to the right of protection, arising from the political relations between the
government and the citizen.

Classification. — Allegiance is of four kinds, namely: (1) Natural allegiance — that which
arises by nature and birth; (2) acquired allegiance — that arising through some
circumstance or act other than birth, namely, by denization or naturalization; (3) local
allegiance-- that arising from residence simply within the country, for however short a
time; and (4) legal allegiance — that arising from oath, taken usually at the town or leet,
for, by the common law, the oath of allegiance might be tendered to every one upon
attaining the age of twelve years. (3 C.J.S., p.885.)

Allegiance. — the obligation of fidelity and obedience which the individual owes to the
government under which he lives, or to his sovereign in return for the protection he
receives. 15 R.C.L., 140. (Ballentine Law Dictionary, p. 68.).

"Allegiance," as its etymology indicates, is the name for the tie which binds the citizen to
his state — the obligation of obedience and support which he owes to it. The state is the
political person to whom this liege fealty is due. Its substance is the aggregate of persons
owing this allegiance. The machinery through which it operates is its government. The
persons who operate this machinery constitute its magistracy. The rules of conduct which
the state utters or enforces are its law, and manifest its will. This will, viewed as legally
supreme, is its sovereignty. (W.W. Willoughby, Citizenship and Allegiance in
Constitutional and International Law, 1 American Journal of International Law, p. 915.).

The obligations flowing from the relation of a state and its nationals are reciprocal in
character. This principle had been aptly stated by the Supreme Court of the United
States in its opinion in the case of Luria vs. United States:

Citizenship is membership in a political society and implies a duty of allegiance on the

part of the member and a duty protection on the part of the society. These are reciprocal
obligations, one being a compensation for the other. (3 Hackworth, Digest of International
Law, 1942 ed., p.6.)
Allegiance. — The tie which binds the citizen to the government, in return for the
protection which the government affords him. The duty which the subject owes to the
sovereign, correlative with the protection received.

It is a comparatively modern corruption of ligeance (ligeantia), which is derived from liege

(ligius), meaning absolute or unqualified. It signified originally liege fealty, i. e., absolute
and qualified fealty. 18 L. Q. Rev., 47.

xxx     xxx     xxx

Allegiance may be an absolute and permanent obligation, or it may be a qualified and

temporary one; the citizen or subject owes the former to his government or sovereign,
until by some act he distinctly renounces it, whilst the alien domiciled in the country owes
a temporary and local allegiance continuing during such residence. (Carlisle vs. United
States, 16 Wall. [U.S.], 154; 21 Law. ed., 426. (1 Bouvier's Law Dictionary, p. 179.).

The above quotations express ideas that do not fit exactly into the Philippine pattern in
view of the revolutionary insertion in our Constitution of the fundamental principle that
"sovereignty resides in the people and all government authority emanates from them."
(Section 1, Article II.) The authorities above quoted, judges and juridical publicists define
allegiance with the idea that sovereignty resides somewhere else, on symbols or subjects
other than the people themselves. Although it is possible that they had already
discovered that the people and only the people are the true sovereign, their minds were
not yet free from the shackles of the tradition that the powers of sovereignty have been
exercised by princes and monarchs, by sultans and emperors, by absolute and tyrannical
rules whose ideology was best expressed in the famous words of one of the kings of
France: "L'etat c'est moi," or such other persons or group of persons posing as the
government, as an entity different and in opposition to the people themselves. Although
democracy has been known ever since old Greece, and modern democracies in the
people, nowhere is such principle more imperative than in the pronouncement embodied
in the fundamental law of our people.

To those who think that sovereignty is an attribute of government, and not of the people,
there may be some plausibility in the proposition that sovereignty was suspended during
the enemy occupation, with the consequence that allegiance must also have been
suspended, because our government stopped to function in the country. But the idea
cannot have any place under our Constitution. If sovereignty is an essential attribute of
our people, according to the basic philosophy of Philippine democracy, it could not have
been suspended during the enemy occupation. Sovereignty is the very life of our people,
and there is no such thing as "suspended life." There is no possible middle situation
between life and death. Sovereignty is the very essence of the personality and existence
of our people. Can anyone imagine the possibility of "suspended personality" or
"suspended existence" of a people? In no time during enemy occupation have the
Filipino people ceased to be what they are.

The idea of suspended sovereignty or suspended allegiance is incompatible with our

Constitution.

There is similarity in characteristics between allegiance to the sovereign and a wife's

loyalty to her husband. Because some external and insurmountable force precludes the
husband from exercising his marital powers, functions, and duties and the wife is thereby
deprived of the benefits of his protection, may the wife invoke the theory of suspended
loyalty and may she freely share her bed with the assailant of their home? After giving aid
and comfort to the assailant and allowing him to enjoy her charms during the former's
stay in the invaded home, may the wife allege as defense for her adultery the principle of
suspended conjugal fidelity?
Petitioner's thesis on change of sovereignty at the advent of independence on July 4,
1946, is unacceptable. We have already decided in Brodett vs. De la Rosa and Vda. de
Escaler (p. 752, ante) that the Constitution of the Republic is the same as that of the
Commonwealth. The advent of independence had the effect of changing the name of our
Government and the withdrawal by the United States of her power to exercise functions
of sovereignty in the Philippines. Such facts did not change the sovereignty of the Filipino
people. That sovereignty, following our constitutional philosophy, has existed ever since
our people began to exist. It has been recognized by the United States of America, at
least since 1935, when President Roosevelt approved our Constitution. By such act,
President Roosevelt, as spokesman of the American people, accepted and recognized
the principle that sovereignty resides in the people that is, that Philippine sovereignty
resides in the Filipino people.

The same sovereignty had been internationally recognized long before the proclamation
of independence on July 4, 1946. Since the early part of the Pacific war, President
Quezon had been sitting as representative of a sovereign people in the Allied War
Council, and in June, 1945, the same Filipino people took part — outstanding and
brilliant, it may be added — in the drafting and adoption of the charter of the United
Nations, the unmistakable forerunner of the future democratic federal constitution of the
world government envisioned by all those who adhere to the principle of unity of all
mankind, the early realization of which is anxiously desired by all who want to be spared
the sufferings, misery and disaster of another war.

Under our Constitution, the power to suspend laws is of legislative nature and is lodged
in Congress. Sometimes it is delegated to the Chief Executive, such as the power
granted by the Election Code to the President to suspend the election in certain districts
and areas for strong reasons, such as when there is rebellion, or a public calamity, but it
has never been exercised by tribunals. The Supreme Court has the power to declare null
and void all laws violative of the Constitution, but it has no power, authority, or jurisdiction
to suspend or declare suspended any valid law, such as the one on treason which
petitioner wants to be included among the laws of the Commonwealth which, by his
theory of suspended allegiance and suspended sovereignty, he claims have been
suspended during the Japanese occupation.

Suppose President Quezon and his government, instead of going from Corregidor to
Australia, and later to Washington, had fled to the mountains of Luzon, and a group of
Filipino renegades should have killed them to serve the interests of the Japanese
imperial forces. By petitioner's theory, those renegades cannot be prosecuted for treason
or for rebellion or sedition, as the laws punishing them were suspended. Such absurd
result betrays the untenability of the theory.

"The defense of the State is a prime duty of Government, and in the fulfillment of that
duty all citizens may be required by law to render personal, military or civil service." Thus,
section 2 of Article II of the Constitution provides: That duty of defense becomes more
imperative in time of war and when the country is invaded by an aggressor nation. How
can it be fulfilled if the allegiance of the citizens to the sovereign people is suspended
during enemy occupation? The framers of the Constitution surely did not entertain even
for the moment the absurdity that when the allegiance of the citizens to the sovereign
people is more needed in the defense of the survival of the state, the same should be
suspended, and that upon such suspension those who may be required to render
personal, military or civil service may claim exemption from the indispensable duty of
serving their country in distress.

Petitioner advances the theory that protection in the consideration of allegiance. He

argues that the Commonwealth Government having been incapacitated during enemy
occupation to protect the citizens, the latter were relieved of their allegiance to said
government. The proposition is untenable. Allegiance to the sovereign is an
indispensable bond for the existence of society. If that bond is dissolved, society has to
disintegrate. Whether or not the existence of the latter is the result of the social compact
mentioned by Roseau, there can be no question that organized society would be
dissolved if it is not united by the cohesive power of the citizen's allegiance. Of course,
the citizens are entitled to the protection of their government, but whether or not that
government fulfills that duty, is immaterial to the need of maintaning the loyalty and
fidelity of allegiance, in the same way that the physical forces of attraction should be kept
unhampered if the life of an individual should continue, irrespective of the ability or
inability of his mind to choose the most effective measures of personal protection.

After declaring that all legislative, executive, and judicial processes had during and under
the Japanese regime, whether executed by the Japanese themselves or by Filipino
officers of the puppet government they had set up, are null and void, as we have done in
our opinions in Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113), in Peralta
vs. Director of Prison (75, Phil., 285), and in several other cases where the same
question has been mentioned, we cannot consistently accept petitioner's theory.

If all laws or legislative acts of the enemy during the occupation were null and void, and
as we cannot imagine the existence of organized society, such as the one constituted by
the Filipino people, without laws of the Commonwealth were the ones in effect during the
occupation and the only ones that could claim obedience from our citizens.

Petitioner would want us to accept the thesis that during the occupation we owed
allegiance to the enemy. To give way to that paradoxical and disconcerting allegiance, it
is suggested that we accept that our allegiance to our legitimate government was
suspended. Petitioner's proposition has to fall by its own weight, because of its glaring
absurdities. Allegiance, like its synonyms, loyalty and fidelity, is based on feelings of
attraction, love, sympathy, admiration, respect, veneration, gratitude, amity,
understanding, friendliness. These are the feelings or some of the feelings that bind us to
our own people, and are the natural roots of the duty of allegiance we owe them. The
enemy only provokes repelling and repulsive feelings — hate, anger, vexation, chagrin,
mortification, resentment, contempt, spitefulness. The natural incompatibility of political,
social and ethical ideologies between our people and the Japanese, making impossible
the existence of any feeling of attraction between them, aside from the initial fact that the
Japanese invaded our country as our enemy, was aggravated by the morbid complexities
of haughtiness, braggadocio and beastly brutality of the Nippon soldiers and officers in
their dealings with even the most inoffensive of our citizens.

Giving bread to our enemy, and, after slapping one side of our face, offer him the other to
be further slapped, may appear to be divinely charitable, but to make them a reality, it is
necessary to change human nature. Political actions, legal rules and judicial decisions
deal with human relations, taking man as he is, not as he should be. To love the enemy
is not natural. As long as human pyschology remains as it is, the enemy shall always be
hated. Is it possible to conceive an allegiance based on hatred?

The Japanese, having waged against us an illegal war condemned by prevailing

principles of international law, could not have established in our country any government
that can be legally recognized as de facto. They came as bandits and ruffians, and it is
inconceivable that banditry and ruffianism can claim any duty of allegiance — even a
temporary one — from a decent people.

One of the implications of petitioner's theory, as intimated somewhere, is that the

citizens, in case of invasion, are free to do anything not forbidden by the Hague
Conventions. Anybody will notice immediately that the result will be the doom of small
nations and peoples, by whetting the covetousness of strong powers prone on
imperialistic practices. In the imminence of invasion, weak-hearted soldiers of the smaller
nations will readily throw away their arms to rally behind the paladium of the invaders.

Two of the three great departments of our Government have already rejected petitioner's
theory since September 25, 1945, the day when Commonwealth Act No. 682 took effect.
By said act, creating the People's Court to try and decide all cases of crime against
national security "committed between December 8, 1941 and September 2, 1945,"
(section 2), the legislative and executive departments have jointly declared that during
the period above mentioned, including the time of Japanese occupation, all laws
punishing crimes against national security, including article 114 of the Revised Penal
Code, punishing treason, had remained in full effect and should be enforced.

That no one raised a voice in protest against the enactment of said act and that no one,
at the time the act was being considered by the Senate and the House of
Representatives, ever dared to expose the uselessness of creating a People's Court to
try crime which, as claimed by petitioner, could not have been committed as the laws
punishing them have been suspended, is a historical fact of which the Supreme Court
may take judicial notice. This fact shows universal and unanimous agreement of our
people that the laws of the Commonwealth were not suspended and that the theory of
suspended allegiance is just an afterthought provoked by a desperate effort to help
quash the pending treason cases at any cost.

Among the arguments adduced in favor of petitioner's theory is that it is based on

generally accepted principles of international law, although this argument becomes futile
by petitioner's admission that the theory is advantageous to strong powers but harmful to
small and weak nations, thus hinting that the latter cannot accept it by heart. Suppose we
accept at face value the premise that the theories, urged by petitioner, of suspended
allegiance and suspended sovereignty are based on generally accepted principles of
international law. As the latter forms part of our laws by virtue of the provisions of section
3 of Article II of the Constitution, it seems that there is no alternative but to accept the
theory. But the theory has the effect of suspending the laws, especially those political in
nature. There is no law more political in nature than the Constitution of the Philippines.
The result is an inverted reproduction of the Greek myth of Saturn devouring his own
children. Here, under petitioner's theory, the offspring devours its parent.

Can we conceive of an instance in which the Constitution was suspended even for a
moment?

There is conclusive evidence that the legislature, as policy-determining agency of

government, even since the Pacific war started on December 7, 1941, intimated that it
would not accept the idea that our laws should be suspended during enemy occupation.
It must be remembered that in the middle of December, 1941, when Manila and other
parts of the archipelago were under constant bombing by Japanese aircraft and enemy
forces had already set foot somewhere in the Philippines, the Second National Assembly
passed Commonwealth Act No. 671, which came into effect on December 16, 1941.
When we approved said act, we started from the premise that all our laws shall continue
in effect during the emergency, and in said act we even went to the extent of authorizing
the President "to continue in force laws and appropriations which would lapse or
otherwise become inoperative," (section 2, [d]), and also to "promulgate such rules and
regulations as he may deem necessary to carry out the national policy," (section 2), that
"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." (Section 1.) To give
emphasis to the intimation, we provided that the rules and regulations provided "shall be
in force and effect until the Congress of the Philippines shall otherwise provide,"
foreseeing the possibility that Congress may not meet as scheduled as a result of the
emergency, including invasion and occupation by the enemy. Everybody was then
convinced that we did not have available the necessary means of repelling effectivity the
enemy invasion.

Maybe it is not out of place to consider that the acceptance of petitioner's theory of
suspended allegiance will cause a great injustice to those who, although innocent, are
now under indictment for treason and other crimes involving disloyalty to their country,
because their cases will be dismissed without the opportunity for them to revindicate
themselves. Having been acquitted upon a mere legal technicality which appears to us to
be wrong, history will indiscriminality classify them with the other accused who were
really traitors to their country. Our conscience revolts against the idea of allowing the
innocent ones to go down in the memory of future generations with the infamous stigma
of having betrayed their own people. They should not be deprived of the opportunity to
show through the due process of law that they are free from all blame and that, if they
were really patriots, they acted as such during the critical period of test.

HILADO, J., concurring:

I concur in the result reached in the majority opinion to the effect that during the so-called
Japanese occupation of the Philippines (which was nothing more than the occupation of
Manila and certain other specific regions of the Islands which constituted the minor area
of the Archipelago) the allegiance of the citizens of this country to their legitimate
government and to the United States was not suspended, as well as the ruling that during
the same period there was no change of sovereignty here; but my reasons are different
and I proceed to set them forth:

I. SUSPENDED ALLEGIANCE.

(a) Before the horror and atrocities of World War I, which were multiplied more than a
hundred-fold in World War II, the nations had evolved certain rules and principles which
came to be known as International Law, governing their conduct with each other and
toward their respective citizens and inhabitants, in the armed forces or civilian life, in time
of peace or in time of war. During the ages which preceded that first world conflict the
civilized governments had no realization of the potential excesses of which "men's
inhumanity to man" could be capable. Up to that time war was, at least under certain
conditions, considered as sufficiently justified, and the nations had not on that account,
proscribed nor renounced it as an instrument of national policy, or as a means of settling
international disputes. It is not for us now to dwell upon the reasons accounting for this
historical fact. Suffice it to recognize its existence in history.

But when in World War I civilized humanity saw that war could be, as it actually was,
employed for entirely different reasons and from entirely different motives, compared to
previous wars, and the instruments and methods of warfare had been so materially
changed as not only to involve the contending armed forces on well defined battlefields
or areas, on land, in the sea, and in the air, but to spread death and destruction to the
innocent civilian populations and to their properties, not only in the countries engaged in
the conflict but also in neutral ones, no less than 61 civilized nations and governments,
among them Japan, had to formulate and solemnly subscribe to the now famous Briand-
Kellogg Pact in the year 1928. As said by Justice Jackson of the United States Supreme
Court, as chief counsel for the United States in the prosecution of "Axis war criminals," in
his report to President Truman of June 7, 1945:

International law is not capable of development by legislation, for there is no continuously

sitting international legislature. Innovations and revisions in international law are brought
about by the action of governments designed to meet a change circumstances. It grows,
as did the common law, through decisions reached from time to time in adopting settled
principles to new situations.

xxx     xxx     xxx

After the shock to civilization of the war of 1914-1918, however, a marked reversion to
the earlier and sounder doctrines of international law took place. By the time the Nazis
came to power it was thoroughly established that launching an aggressive war or the
institution of war by treachery was illegal and that the defense of legitimate warfare was
no longer available to those who engaged in such an enterprise. It is high time that we
act on the juridical principle that aggressive war-making is illegal and criminal.

The re-establishment of the principle of justifiable war is traceable in many steps. One of
the most significant is the Briand-Kellogg Pact of 1928 by which Germany, Italy,
and Japan, in common with the United States and practically all the nations of the world,
renounced war as an instrument of national policy, bound themselves to seek the
settlement of disputes only by pacific means, and condemned recourse to war for the
solution of international controversies.

Unless this Pact altered the legal status of wars of aggression, it has no meaning at all
and comes close to being an act of deception. In 1932 Mr. Henry L. Stimson, as United
States Secretary of State, gave voice to the American concept of its effect. He said, "war
between nations was renounced by the signatories of the Briand-Kellogg Treaty. This
means that it has become illegal throughout practically the entire world. It is no longer to
be the source and subject of rights. It is no longer to be the principle around which the
duties, the conduct, and the rights of nations revolve. It is an illegal thing. . . . By that very
act we have made obsolete many legal precedents and have given the legal profession
the task of re-examining many of its Codes and treaties.

This Pact constitutes only one reversal of the viewpoint that all war is legal and has
brought international law into harmony with the common sense of mankind —
that unjustifiable war is a crime.

Without attempting an exhaustive catalogue, we may mention the Geneva Protocol of

1924 for the Pacific Settlement of International Disputes, signed by the representatives of
forty-eight governments, which declared that "a war of aggression constitutes .. an
International crime. . . .

The Eight Assembly of the League of Nations in 1927, on unanimous resolution of the
representatives of forty-eight member-nations, including Germany, declared that a war of
aggression constitutes an international crime. At the Sixth Pan-American Conference of
1928, the twenty-one American Republics unanimously adopted a resolution stating that
"war of aggression constitutes an international crime against the human species."

xxx     xxx     xxx

We therefore propose to change that a war of aggression is a crime, and that modern

international law has abolished the defense that those who incite or wage it are engaged
in legitimate business. Thus may the forces of the law be mobilized on the side of peace.
("U.S.A. — An American Review," published by the United States Office of War
Information, Vol. 2, No. 10; emphasis supplied.).

When Justice Jackson speaks of "a marked reversion to the earlier and sounder
doctrines of international law" and "the re-establishment of the principle of justifiable war,"
he has in mind no other than "the doctrine taught by Grotius, the father of international
law, that there is a distinction between the just and the unjust war — the war of defense
and the war of aggression" to which he alludes in an earlier paragraph of the same
report.

In the paragraph of said report immediately preceding the one last above mentioned
Justice Jackson says that "international law as taught in the 19th and the early part of the
20th century generally declared that war-making was not illegal and no crime at law." But,
as he says in one of the paragraphs hereinabove quoted from that report, the Briand-
Kellogg Pact constitutes a reversal of the view-point that all war is legal and has brought
international law into harmony with the common sense of mankind — that unjustifiable
war is a crime. Then he mentions as other reversals of the same viewpoint, the Geneva
Protocol of 1924 for the Pacific Settlement of International Disputes, declaring that a war
of aggression constitutes an international crime; the 8th assembly of the League of
Nations in 1927, declaring that a war of aggression constitutes an international crime;
and the 6th Pan-American conference of 1928, which unanimously adopted a resolution
stating that war of aggression constitutes an international crime against the human
species: which enumeration, he says, is not an attempt at an exhaustive catalogue.

It is not disputed that the war started by Japan in the Pacific, first, against the United
States, and later, in rapid succession, against other allied nations, was a war of
aggression and utterly unjustifiable. More aggressive still, and more unjustifiable, as
admitted on all sides, was its attack against the Philippines and its consequent invasion
and occupation of certain areas thereof.

Some of the rules and principles of international law which have been cited for petitioner
herein in support of his theory of suspended allegiance, have been evolved and accepted
during those periods of the history of nations when all war was considered legal, as
stated by Justice Jackson, and the others have reference to military occupation in the
course of really justifiable war.

Japan in subscribing the Briand-Kellogg Pact thirteen years before she started the
aggressive war which threw the entire Pacific area into a seething cauldron from the last
month of 1941 of the first week of September, 1945, expressly agreed to outlaw,
proscribe and renounce war as an instrument of national policy, and bound herself to
seek the settlement of her disputes with other nations only by pacific means. Thus she
expressly gave her consent to that modification of the then existing rules and principles of
international law governing the matter. With the modification, all the signatories to the
pact necessarily accepted and bound themselves to abide by all its implications, among
them the outlawing, prescription and renunciation of military occupation of another
nation's territory in the course of a war thus outlawed, proscribed and renounced. This is
only one way of saving that the rules and principles of international law therefore existing
on the subject of military occupation were automatically abrogated and rendered
ineffective in all future cases of war coming under the ban and condemnation of the pact.

If an unjustifiable war is a crime; if a war of aggression constitutes an international crime;

if such a war is an international crime against the human species: a nation which
occupies a foreign territory in the course of such a war cannot possibly, under any
principle of natural or positive law, acquire or posses any legitimate power or right
growing out or incident to such occupation. Concretely, Japan in criminally invading the
Philippines and occupying certain portions of its territory during the Pacific war, could not
have nor exercise, in the legal sense — and only this sense should we speak here —
with respect to this country and its citizens, any more than could a burglar breaking
through a man's house pretends to have or to exercise any legal power or right within
that house with respect either to the person of the owner or to his property. To recognize
in the first instance any legal power or right on the part of the invader, and in the second
any legal power or right on the part of the burglar, the same as in case of a military
occupant in the course of a justifiable war, would be nothing short of legalizing the crime
itself. It would be the most monstrous and unpardonable contradiction to prosecute,
condemn and hang the appropriately called war criminals of Germany, Italy, and Japan,
and at the same time recognize any lawfulness in their occupation invaded. And let it not
be forgotten that the Philippines is a member of the United Nations who have instituted
and conducted the so-called war crimes trials. Neither should we lose sight of the further
fact that this government has a representative in the international commission currently
trying the Japanese war criminals in Tokyo. These facts leave no room for doubt that this
government is in entire accord with the other United Nations in considering the Pacific
war started by Japan as a crime. Not only this, but this country had six years before the
outbreak of the Pacific war already renounced war as an instrument of national policy
(Constitution, Article II, section 2), thus in consequence adopting the doctrine of the
Briand-Kellogg Pact.

Consequently, it is submitted that it would be absolutely wrong and improper for this
Court to apply to the occupation by Japan of certain areas of the Philippines during that
war the rules and principles of international law which might be applicable to a military
occupation occurring in the course of a justifiable war. How can this Court recognize any
lawfulness or validity in that occupation when our own government has sent a
representative to said international commission in Tokyo trying the Japanese "war
criminals" precisely for the "crimes against humanity and peace" committed by them
during World War II of which said occupation was but part and parcel? In such
circumstances how could such occupation produce no less an effect than the suspension
of the allegiance of our people to their country and government?

(b) But even in the hypothesis — and not more than a mere hypothesis — that when
Japan occupied the City of Manila and certain other areas of the Philippines she was
engaged in a justifiable war, still the theory of suspended allegiance would not hold good.
The continuance of the allegiance owed to a notion by its citizens is one of those high
privileges of citizenship which the law of nations denies to the occupant the power to
interfere with.

. . . His (of occupant) rights are not, however, commensurate with his power. He is thus
forbidden to take certain measures which he may be able to apply, and that irrespective
of their efficacy. The restrictions imposed upon him are in theory designed to protect the
individual in the enjoyment of some highly important privileges. These concern his
allegiance to the de jure sovereign, his family honor and domestic relations, religious
convictions, personal service, and connection with or residence in the occupied territory.

The Hague Regulations declare that the occupant is forbidden to compel the inhabitants
to swear allegiance to the hostile power. . . . (III Hyde, International Law, 2d revised ed.,
pp. 1898-1899.)

. . . Nor may he (occupant) compel them (inhabitants) to take an oath of allegiance. Since
the authority of the occupant is not sovereignty, the inhabitants owe no temporary
allegiance to him. . . . (II Oppenheim, International Law, pp. 341-344.)

The occupant's lack of the authority to exact an oath of allegiance from the inhabitants of
the occupied territory is but a corollary of the continuance of their allegiance to their own
lawful sovereign. This allegiance does not consist merely in obedience to the laws of the
lawful sovereign, but more essentially consists in loyalty or fealty to him. In the same
volume and pages of Oppenheim's work above cited, after the passage to the effect that
the inhabitants of the occupied territory owe no temporary allegiance to the occupant it is
said that "On the other hand, he may compel them to take an oath — sometimes called
an 'oath of neutrality' — . . . willingly to submit to his 'legitimate commands.' Since,
naturally, such "legitimate commands" include the occupant's laws, it follows that said
occupant, where the rule is applicable, has the right to compel the inhabitants to take an
oath of obedience to his laws; and since according to the same rule, he cannot exact
from the inhabitants an oath of obedience to his laws; and since, according to the same
rule, he cannot exact from the inhabitants an oath of allegiance, it follows that obedience
to his laws, which he can exact from them, does not constitute allegiance.

(c) The theory of suspended allegiance is unpatriotic to the last degree. To say that when
the one's country is unable to afford him in its protection, he ceases to be bound to it by
the sacred ties of allegiance, is to advocate the doctrine that precisely when his country
is in such distress, and therefore most needs his loyalty, he is absolved from the loyalty.
Love of country should be something permanent and lasting, ending only in death; loyalty
should be its worth offspring. The outward manifestation of one or the other may for a
time be prevented or thwarted by the irresistible action of the occupant; but this should
not in the least extinguish nor obliterate the invisible feelings, and promptings of the spirit.
And beyond the unavoidable consequences of the enemy's irresistible pressure, those
invisible feelings and promptings of the spirit of the people should never allow them to
act, to speak, nor even to think a whit contrary to their love and loyalty to the Fatherland.
For them, indicted, to face their country and say to it that, because when it was overrun
and vanquished by the barbarous invader and, in consequence was disabled from
affording them protection, they were released from their sacred obligation of allegiance
and loyalty, and could therefore freely adhere to its enemy, giving him aid and comfort,
incurring no criminal responsibility therefor, would only tend to aggravate their crime.

II. CHANGE OF SOVEREIGNTY

Article II, section 1, of the Constitution provides that "Sovereignty resides in the people
and all government authority emanates from them." The Filipino people are the self-same
people before and after Philippine Independence, proclaimed on July 4, 1946. During the
life of the Commonwealth sovereignty resided in them under the Constitution; after the
proclamation of independence that sovereignty remained with them under the very same
fundamental law. Article XVIII of the said Constitution stipulates that the government
established thereby shall be known as the Commonwealth of the Philippines; and that
upon the final and complete withdrawal of the sovereignty of the United States and the
proclamation of Philippine independence, "The Commonwealth of the Philippines shall
thenceforth be known as the Republic of the Philippines." Under this provision the
Government of the Philippines immediately prior to independence was essentially to be
the identical government thereafter — only the name of that government was to be
changed.

Both before and after the adoption of the Philippine Constitution the people of the
Philippines were and are always the plaintiff in all criminal prosecutions, the case being
entitled: "The People of the Philippines vs. (the defendant or defendants)." This was
already true in prosecutions under the Revised Penal Code containing the law of treason.
"The Government of the Philippines" spoken of in article 114 of said Code merely
represents the people of the Philippines. Said code was continued, along with the other
laws, by Article XVI, section 2, of the Constitution which constitutional provision further
directs that "all references in such laws to the Government or officials of the Philippine
Islands shall be construed, in so far as applicable, to refer to the Government and
corresponding officials under this Constitution" — of course, meaning the Commonwealth
of the Philippines before, and the Republic of the Philippines after, independence (Article
XVIII). Under both governments sovereignty resided and resides in the people (Article II,
section 1). Said sovereignty was never transferred from that people — they are the same
people who preserve it to this day. There has never been any change in its respect.

If one committed treason againsts the People of the Philippines before July 4, 1946, he
continues to be criminally liable for the crime to the same people now. And if, following
the literal wording of the Revised Penal Code, as continued by the Constitution, that
accused owed allegiance upon the commission of the crime to the "Government of the
Philippines," in the textual words of the Constitution (Article XVI, section 2, and XVIII) that
was the same government which after independence became known as the "Republic of
the Philippines." The most that can be said is that the sovereignty of the people became
complete and absolute after independence — that they became, politically, fully of age, to
use a metaphor. But if the responsibility for a crime against a minor is not extinguished by
the mere fact of his becoming of age, why should the responsibility for the crime of
treason committed against the Filipino people when they were not fully politically
independent be extinguished after they acquire this status? The offended party continues
to be the same — only his status has changed.

PARAS, J., dissenting:

During the long period of Japanese occupation, all the political laws of the Philippines
were suspended. This is full harmony with the generally accepted principles of the
international law adopted by our Constitution(Article II, section 3) as a part of the law of
the Nation. Accordingly, we have on more than one occasion already stated that "laws of
a political nature or affecting political relations, . . . are considered as suspended or in
abeyance during the military occupation" (Co Kim Cham vs. Valdez Tan Keh and Dizon,
75 Phil., 113, 124), and that the rule "that laws of political nature or affecting political
relations are considered suspended or in abeyance during the military occupation, is
intended for the governing of the civil inhabitants of the occupied territory."
(Ruffy vs. Chief of Staff, Philippine Army, 75, Phil., 875, 881.)

The principle is recognized by the United States of America, which admits that the
occupant will naturally suspends all laws of a political nature and all laws which affect the
welfare and safety of his command, such action to be made known to the inhabitants.
(United States Rules of Land Welfare, 1940, Article 287.) As allegiance to the United
States is an essential element in the crime of treason under article 114 of the Revised
Penal Code, and in view of its position in our political structure prior to the independence
of the Philippines, the rule as interpreted and practiced in the United States necessarily
has a binding force and effect in the Philippines, to the exclusion of any other
construction followed elsewhere, such as may be inferred, rightly or wrongly, from the
isolated cases 1 brought to our attention, which, moreover, have entirely different factual
bases.

Corresponding notice was given by the Japanese occupying army, first, in the
proclamation of its Commander in chief of January 2, 1942, to the effect that as a "result
of the Japanese Military operations, the sovereignty of the United States of America over
the Philippines has completely disappeared and the Army hereby proclaims the Military
Administration under martial law over the district occupied by the Army;" secondly, in
Order No. 3 of the said Commander in Chief of February 20, 1942, providing that
"activities of the administrative organs and judicial courts in the Philippines shall be
based upon the existing statutes, orders, ordinances and customs until further orders
provided that they are not inconsistent with the present circumstances under the
Japanese Military Administration;" and, thirdly, in the explanation to Order No. 3
reminding that "all laws and regulations of the Philippines has been suspended since
Japanese occupation," and excepting the application of "laws and regulations which are
not proper act under the present situation of the Japanese Military Administration,"
especially those "provided with some political purposes."

The suspension of the political law during enemy occupation is logical, wise and humane.
The latter phase outweighs all other aspects of the principle aimed more or less at
promoting the necessarily selfish motives and purposes of a military occupant. It thus
consoling to note that the powers instrumental in the crystallization of the Hague
Conventions of 1907 did not forget to declare that they were "animated by the desire to
serve . . . the interest of the humanity and the over progressive needs of civilization," and
that "in case not included in the Regulations adopted by them, the inhabitants and the
belligerents remain under the protection and the rule of the principles of international law,
as they result from the usages established among civilized peoples, from the laws of
humanity, and the dictates of the public conscience." These saving statements come to
the aid of the inhabitants in the occupied territory in a situation wherein, even before the
belligerent occupant "takes a further step and by appropriate affirmative action
undertakes to acquire the right of sovereignty for himself, . . . the occupant is likely to
regard to himself as clothed with freedom to endeavor to impregnate the people who
inhabit the area concerned with his own political ideology, and to make that endeavor
successful by various forms of pressure exerted upon enemy officials who are permitted
to retain the exercise of normal governmental functions." (Hyde, International Law, Vol.
III, Second Revised Edition, 1945, p. 1879.)

The inhabitants of the occupied territory should necessarily be bound to the sole authority
of the invading power, whose interest and requirements are naturally in conflict with
those of the displaced government, if it is legitimate for the military occupant to demand
and enforce from the inhabitants such obedience as may be necessary for the security of
his forces, for the maintenance of law and order, and for the proper administration of the
country (United States Rules of Land Warfare, 1940, article 297), and to demand all
kinds of services "of such a nature as not to involve the population in the obligation of
taking part in military operations against their own country" (Hague Regulations, article
52);and if, as we have in effect said, by the surrender the inhabitants pass under a
temporary allegiance to the government of the occupant and are bound by such laws,
and such only, as it chooses to recognize and impose, and the belligerent occupant `is
totally independent of the constitution and the laws of the territory, since occupation is an
aim of warfare, and the maintenance and safety of his forces, and the purpose of war,
stand in the foreground of his interest and must be promoted under all circumstances or
conditions." (Peralta vs. Director of Prisons, 75 Phil., 285, 295), citing United
States vs. Rice, 4 Wheaton, 246, and quoting Oppenheim, International Law, Vol. II.
Sixth Edition, Revised, 1944,p. 432.)

He would be a bigot who cannot or would refuse to see the cruel result if the people in an
occupied territory were required to obey two antagonistic and opposite powers. To
emphasize our point, we would adopt the argument, in a reverse order, of Mr. Justice
Hilado in Peralta vs. Director of Prisons (75 Phil., 285, 358), contained in the following
passage:

To have bound those of our people who constituted the great majority who never
submitted to the Japanese oppressors, by the laws, regulations, processes and other
acts of those two puppet governments, would not only have been utterly unjust and
downright illegal, but would have placed them in the absurd and impossible condition of
being simultaneously submitted to two mutually hostile governments, with their respective
constitutional and legislative enactments and institutions — on the one hand bound to
continue owing allegiance to the United States and the Commonwealth Government,
and, on the other, to owe allegiance, if only temporary, to Japan.

The only sensible purpose of the treason law — which is of political complexion and
taken out of the territorial law and penalized as a new offense committed against the
belligerent occupant, incident to a state of war and necessary for the control of the
occupant (Alcantara vs. Director of Prisons, 75 Phil., 494), — must be the preservation of
the nation, certainly not its destruction or extermination. And yet the latter is unwittingly
wished by those who are fond of the theory that what is suspended is merely the exercise
of sovereignty by the de jure government or the latter's authority to impose penal
sanctions or that, otherwise stated, the suspension refers only to the military occupant. If
this were to be the only effect, the rule would be a meaningless and superfluous optical
illusion, since it is obvious that the fleeing or displaced government cannot, even if it
should want, physically assert its authority in a territory actually beyond its reach, and
that the occupant, on the other hand, will not take the absurd step of prosecuting and
punishing the inhabitants for adhering to and aiding it. If we were to believe the
opponents of the rule in question, we have to accept the absurd proposition that the
guerrillas can all be prosecuted with illegal possession of firearms. It should be borne in
the mind that "the possession by the belligerent occupant of the right to control, maintain
or modify the laws that are to obtain within the occupied area is an exclusive one. The
territorial sovereign driven therefrom, can not compete with it on an even plane. Thus, if
the latter attempt interference, its action is a mere manifestation of belligerent effort to
weaken the enemy. It has no bearing upon the legal quality of what the occupant exacts,
while it retains control. Thus, if the absent territorial sovereign, through some quasi-
legislative decree, forbids its nationals to comply with what the occupant has ordained
obedience to such command within the occupied territory would not safeguard the
individual from the prosecution by the occupant." (Hyde, International Law, Vol. III,
Second Revised Edition, 1945, p. 1886.)

As long as we have not outlawed the right of the belligerent occupant to prosecute and
punish the inhabitants for "war treason" or "war crimes," as an incident of the state of war
and necessity for the control of the occupied territory and the protection of the army of
the occupant, against which prosecution and punishment such inhabitants cannot
obviously be protected by their native sovereign, it is hard to understand how we can
justly rule that they may at the same time be prosecuted and punished for an act
penalized by the Revised Penal Code, but already taken out of the territorial law and
penalized as a new offense committed against the belligerent occupant.

In Peralta vs. Director of Prisons, 75 Phil., 285, 296), we held that "the Constitution of the
Commonwealth Government was suspended during the occupation of the Philippines by
the Japanese forces or the belligerent occupant at regular war with the United States,"
and the meaning of the term "suspended" is very plainly expressed in the following
passage (page 298):

No objection can be set up to the legality of its provisions in the light of the precepts of
our Commonwealth Constitution relating to the rights of the accused under that
Constitution, because the latter was not in force during the period of the Japanese
military occupation, as we have already stated. Nor may said Constitution be applied
upon its revival at the time of the re-occupation of the Philippines by the virtue of the
priciple of postliminium, because "a constitution should operate prospectively only, unless
the words employed show a clear intention that it should have a retrospective effect,"
(Cooley's Constitutional Limitations, seventh edition, page 97, and a case quoted and
cited in the foot-note), especially as regards laws of procedure applied to cases already
terminated completely.

In much the same way, we should hold that no treason could have been committed
during the Japanese military occupation against the United States or the Commonwealth
Government, because article 114 of the Revised Penal Code was not then in force. Nor
may this penal provision be applied upon its revival at the time of the reoccupation of the
Philippines by virtue of the principle of postliminium, because of the constitutional
inhibition against any ex post facto law and because, under article 22 of the Revised
Penal Code, criminal laws shall have a retroactive effect only in so far as they favor the
accused. Why did we refuse to enforce the Constitution, more essential to sovereignty
than article 114 of the Revised Penal Code in the aforesaid of Peralta vs. Director of
Prisons if, as alleged by the majority, the suspension was good only as to the military
occupant?
The decision in the United States vs. Rice (4 Wheaton, 246), conclusively supports our
position. As analyzed and described in United States vs. Reiter (27 Fed. Cas., 773), that
case "was decided by the Supreme Court of the United States — the court of highest
human authority on that subject — and as the decision was against the United States,
and in favor of the authority of Great Britain, its enemy in the war, and was made shortly
after the occurrence of the war out of which it grew; and while no department of this
Government was inclined to magnify the rights of Great Britain or disparage those of its
own government, there can be no suspicion of bias in the mind of the court in favor of the
conclusion at which it arrived, and no doubt that the law seemed to the court to warrant
and demand such a decision. That case grew out of the war of 1812, between the United
States and Great Britain. It appeared that in September, 1814, the British forces had
taken the port of Castine, in the State of Maine, and held it in military occupation; and
that while it was so held, foreign goods, by the laws of the United States subject to duty,
had been introduced into that port without paying duties to the United States. At the close
of the war the place by treaty restored to the United States, and after that was done
Government of the United States sought to recover from the persons so introducing the
goods there while in possession of the British, the duties to which by the laws of the
United States, they would have been liable. The claim of the United States was that its
laws were properly in force there, although the place was at the time held by the British
forces in hostility to the United States, and the laws, therefore, could not at the time be
enforced there; and that a court of the United States (the power of that government there
having since been restored) was bound so to decide. But this illusion of the prosecuting
officer there was dispelled by the court in the most summary manner. Mr. Justice Story,
that great luminary of the American bench, being the organ of the court in delivering its
opinion, said: 'The single question is whether goods imported into Castine during its
occupation by the enemy are liable to the duties imposed by the revenue laws upon
goods imported into the United States.. We are all of opinion that the claim for duties
cannot be sustained. . . . The sovereignty of the United States over the territory was, of
course, suspended, and the laws of the United States could no longer be rightfully
enforced there, or be obligatory upon the inhabitants who remained and submitted to the
conquerors. By the surrender the inhabitants passed under a temporary allegiance of the
British Government, and were bound by such laws, and such only, as it chose to
recognize and impose. From the nature of the case no other laws could be obligatory
upon them. . . . Castine was therefore, during this period, as far as respected our
revenue laws, to be deemed a foreign port, and goods imported into it by the inhabitants
were subjects to such duties only as the British Government chose to require. Such
goods were in no correct sense imported into the Unites States.' The court then
proceeded to say, that the case is the same as if the port of Castine had been foreign
territory, ceded by treaty to the United States, and the goods had been imported there
previous to its cession. In this case they say there would be no pretense to say that
American duties could be demanded; and upon principles of public or municipal law, the
cases are not distinguishable. They add at the conclusion of the opinion: 'The authorities
cited at the bar would, if there were any doubt, be decisive of the question. But we think it
too clear to require any aid from authority.' Does this case leave room for a doubt
whether a country held as this was in armed belligerents occupation, is to be governed
by him who holds it, and by him alone? Does it not so decide in terms as plain as can be
stated? It is asserted by the Supreme Court of the United States with entire unanimity,
the great and venerated Marshall presiding, and the erudite and accomplished Story
delivering the opinion of the court, that such is the law, and it is so adjudged in this case.
Nay, more: it is even adjudged that no other laws could be obligatory; that such country,
so held, is for the purpose of the application of the law off its former government to be
deemed foreign territory, and that goods imported there (and by parity of reasoning other
acts done there) are in no correct sense done within the territory of its former sovereign,
the United States."

But it is alleged by the majority that the sovereignty spoken of in the decision of the
United States vs. Rice should be construed to refer to the exercise of sovereignty, and
that, if sovereignty itself was meant, the doctrine has become obsolete after the adoption
of the Hague Regulations in 1907. In answer, we may state that sovereignty can have
any important significance only when it may be exercised; and, to our way of thinking, it is
immaterial whether the thing held in abeyance is the sovereignty itself or its exercise,
because the point cannot nullify, vary, or otherwise vitiate the plain meaning of the
doctrinal words "the laws of the United States could no longer be rightfully enforced
there, or be obligatory upon the inhabitants who remained and submitted to the
conquerors." We cannot accept the theory of the majority, without in effect violating the
rule of international law, hereinabove adverted to, that the possession by the belligerent
occupant of the right to control, maintain or modify the laws that are to obtain within the
occupied area is an exclusive one, and that the territorial sovereign driven therefrom
cannot compete with it on an even plane. Neither may the doctrine in the United
States vs. Rice be said to have become obsolete, without repudiating the actual rule
prescribed and followed by the United States, allowing the military occupant to suspend
all laws of a political nature and even require public officials and inhabitants to take an
oath of fidelity (United States Rules of Land Warfare, 1940, article 309). In fact, it is a
recognized doctrine of American Constitutional Law that mere conquest or military
occupation of a territory of another State does not operate to annex such territory to
occupying State, but that the inhabitants of the occupied district, no longer receiving the
protection of their native State, for the time being owe no allegiance to it, and, being
under the control and protection of the victorious power, owe to that power fealty and
obedience. (Willoughby, The Fundamental Concepts of Public Law [1931], p.364.)

The majority have resorted to distinctions, more apparent than real, if not immaterial, in
trying to argue that the law of treason was obligatory on the Filipinos during the Japanese
occupation. Thus it is insisted that a citizen or subject owes not a qualified and
temporary, but an absolute and permanent allegiance, and that "temporary allegiance" to
the military occupant may be likened to the temporary allegiance which a foreigner owes
to the government or sovereign to the territory wherein he resides in return for the
protection he receives therefrom. The comparison is most unfortunate. Said foreigner is
in the territory of a power not hostile to or in actual war with his own government; he is in
the territory of a power which has not suspended, under the rules of international law, the
laws of political nature of his own government; and the protections received by him from
that friendly or neutral power is real, not the kind of protection which the inhabitants of an
occupied territory can expect from a belligerent army. "It is but reasonable that States,
when they concede to other States the right to exercise jurisdiction over such of their own
nationals as are within the territorial limits of such other States, should insist that States
should provide system of law and of courts, and in actual practice, so administer them, as
to furnish substantial legal justice to alien residents. This does not mean that a State
must or should extend to aliens within its borders all the civil, or much less, all the
political rights or privileges which it grants to its own citizens; but it does mean that aliens
must or should be given adequate opportunity to have such legal rights as are granted to
them by the local law impartially and judicially determined, and, when thus determined,
protected." (Willoughby, The Fundamental Concepts of Public Law [1931], p. 360.)

When it is therefore said that a citizen of a sovereign may be prosecuted for and
convicted of treason committed in a foreign country or, in the language of article 114 of
the Revised Penal Code, "elsewhere," a territory other than one under belligerent
occupation must have been contemplated. This would make sense, because treason is a
crime "the direct or indirect purpose of which is the delivery, in whole or in part, of the
country to a foreign power, or to pave the way for the enemy to obtain dominion over the
national territory" (Albert, The Revised Penal Code, citing 3 Groizard, 14); and, very
evidently, a territory already under occupation can no longer be "delivered."

The majority likewise argue that the theory of suspended sovereignty or allegiance will
enable the military occupant to legally recruit the inhabitants to fight against their own
government, without said inhabitants being liable for treason. This argument is not
correct, because the suspension does not exempt the occupant from complying with the
Hague Regulations (article 52) that allows it to demand all kinds of services provided that
they do not involve the population "in the obligation of taking part military operations
against their own country." Neither does the suspension prevent the inhabitants from
assuming a passive attitude, much less from dying and becoming heroes if compelled by
the occupant to fight against their own country. Any imperfection in the present state of
international law should be corrected by such world agency as the United Nations
organizations.

It is of common knowledge that even with the alleged cooperation imputed to the
collaborators, an alarming number of Filipinos were killed or otherwise tortured by the
ruthless, or we may say savage, Japanese Army. Which leads to the conclusion that if
the Filipinos did not obey the Japanese commands and feign cooperation, there would
not be any Filipino nation that could have been liberated. Assuming that the entire
population could go to and live in the mountains, or otherwise fight as guerrillas — after
the formal surrender of our and the American regular fighting forces, — they would have
faced certain annihilation by the Japanese, considering that the latter's military strength
at the time and the long period during which they were left military unmolested by
America. In this connection, we hate to make reference to the atomic bomb as a possible
means of destruction.

If a substantial number of guerrillas were able to survive and ultimately help in the
liberation of the Philippines, it was because the feigned cooperation of their countrymen
enabled them to get food and other aid necessary in the resistance movement. If they
were able to survive, it was because they could camouflage themselves in the midst of
the civilian population in cities and towns. It is easy to argue now that the people could
have merely followed their ordinary pursuits of life or otherwise be indifferent to the
occupant. The fundamental defect of this line of thought is that the Japanese assumed to
be so stupid and dumb as not to notice any such attitude. During belligerent occupation,
"the outstanding fact to be reckoned with is the sharp opposition between the inhabitants
of the occupied areas and the hostile military force exercising control over them. At heart
they remain at war with each other. Fear for their own safety may not serve to deter the
inhabitants from taking advantage of opportunities to interfere with the safety and
success of the occupant, and in so doing they may arouse its passions and cause to take
vengeance in cruel fashion. Again, even when it is untainted by such conduct, the
occupant as a means of attaining ultimate success in its major conflict may, under plea of
military necessity, and regardless of conventional or customary prohibitions, proceed to
utilize the inhabitants within its grip as a convenient means of military achievement."
(Hyde, International Law, Vol. III, Second Revised Edition [1945], p. 1912.) It should be
stressed that the Japanese occupation was not a matter of a few months; it extended
over a little more than three years. Said occupation was a fact, in spite of 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 those places." (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil.,
371, 373.) The law of nations accepts belligerent occupation as a fact to be reckoned
with, regardless of the merits of the occupant's cause. (Hyde, International Law, Second
Revised Edition [1945], Vol. III, p. 1879.)

Those who contend or fear that the doctrine herein adhere to will lead to an over-
production of traitors, have a wrong and low conception of the psychology and patriotism
of their countrymen. Patriots are such after their birth in the first place, and no amount of
laws or judicial decisions can make or unmake them. On the other hand, the Filipinos are
not so base as to be insensitive to the thought that the real traitor is cursed everywhere
and in all ages. Our patriots who fought and died during the last war, and the brave
guerrillas who have survived, were undoubtedly motivated by their inborn love of country,
and not by such a thing as the treason law. The Filipino people as a whole, passively
opposed the Japanese regime, not out of fear of a treason statute but because they
preferred and will prefer the democratic and civilized way of life and American altruism to
Japanese barbaric and totalitarian designs. Of course, there are those who might at heart
have been pro-Japanese; but they met and will unavoidably meet the necessary
consequences. The regular soldiers faced the risks of warfare; the spies and informers
subjected themselves to the perils of military operations, likely received summary
liquidation or punishments from the guerrillas and the parties injured by their acts, and
may be prosecuted as war spies by the military authorities of the returning sovereign;
those who committed other common crimes, directly or through the Japanese army, may
be prosecuted under the municipal law, and under this group even the spies and
informers, Makapili or otherwise, are included, for they can be made answerable for any
act offensive to person or property; the buy-and-sell opportunists have the war profits tax
to reckon with. We cannot close our eyes to the conspicuous fact that, in the majority of
cases, those responsible for the death of, or injury to, any Filipino or American at the
hands of the Japanese, were prompted more by personal motives than by a desire to
levy war against the United States or to adhere to the occupant. The alleged spies and
informers found in the Japanese occupation the royal road to vengeance against
personal or political enemies. The recent amnesty granted to the guerrillas for acts,
otherwise criminal, committed in the furtherance of their resistance movement has in a
way legalized the penal sanctions imposed by them upon the real traitors.

It is only from a realistic, practical and common-sense point of view, and by remembering
that the obedience and cooperation of the Filipinos were effected while the Japanese
were in complete control and occupation of the Philippines, when their mere physical
presence implied force and pressure — and not after the American forces of liberation
had restored the Philippine Government — that we will come to realize that, apart from
any rule of international law, it was necessary to release the Filipinos temporarily from
the old political tie in the sense indicated herein. Otherwise, one is prone to dismiss the
reason for such cooperation and obedience. If there were those who did not in any wise
cooperate or obey, they can be counted by the fingers, and let their names adorn the
pages of Philippine history. Essentially, however, everybody who took advantage, to any
extent and degree, of the peace and order prevailing during the occupation, for the safety
and survival of himself and his family, gave aid and comfort to the enemy.

Our great liberator himself, General Douglas MacArthur, had considered the laws of the
Philippines ineffective during the occupation, and restored to their full vigor and force only
after the liberation. Thus, in his proclamation of October 23, 1944, he ordained that "the
laws now existing on the statute books of the Commonwealth of the Philippines . . . are in
full force and effect and legally binding upon the people in areas of the Philippines free of
enemy occupation and control," and that "all laws . . . of any other government in the
Philippines than that of the said Commonwealth are null and void and without legal effect
in areas of the Philippines free of enemy occupation and control." Repeating what we
have said in Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113, 133), "it is to be
presumed that General Douglas MacArthur, who was acting as an agent or a
representative of the Government and the President of the United States, constitutional
Commander-in-Chief of the United States Army, did not intend to act against the
principles of the law of nations asserted by the Supreme Court of the United States from
the early period of its existence, applied by the President of the United States, and later
embodied in the Hague Conventions of 1907."

The prohibition in the Hague Conventions (Article 45) against "any pressure on the
population to take oath to the hostile power," was inserted for the moral protection and
benefit of the inhabitants, and does not necessarily carry the implication that the latter
continue to be bound to the political laws of the displaced government. The United
States, a signatory to the Hague Conventions, has made the point clear, by admitting that
the military occupant can suspend all the laws of a political nature and even require
public officials and the inhabitants to take an oath of fidelity (United States Rules of Land
Warfare, 1940, article 309), and as already stated, it is a doctrine of American
Constitutional Law that the inhabitants, no longer receiving the protection of their native
state, for the time being owe no allegiance to it, and, being under the control and
protection of the victorious power, owe to that power fealty and obedience. Indeed, what
is prohibited is the application of force by the occupant, from which it is fair to deduce that
the Conventions do not altogether outlaw voluntary submission by the population. The
only strong reason for this is undoubtedly the desire of the authors of the Conventions to
give as much freedom and allowance to the inhabitants as are necessary for their
survival. This is wise and humane, because the people should be in a better position to
know what will save them during the military occupation than any exile government.

"Before he was appointed prosecutor, Justice Jackson made a speech in which he

warned against the use of judicial process for non judicial ends, and attacked cynics who
"see no reason why courts, just like other agencies, should not be policy weapons. If we
want to shoot Germans as a matter of policy, let it be done as such, said he, but don't
hide the deed behind a court. If you are determined to execute a man in any case there is
no occasion for a trial; the word yields no respect for courts that are merely organized to
convict." Mussoloni may have got his just desserts, but nobody supposes he got a fair
trial. . . . Let us bear that in mind as we go about punishing criminals. There are enough
laws on the books to convict guilty Nazis without risking the prestige of our legal system.
It is far, far better that some guilty men escape than that the idea of law be endangered.
In the long run the idea of law is our best defense against Nazism in all its forms." These
passages were taken from the editorial appearing in the Life, May 28, 1945, page 34, and
convey ideas worthy of some reflection.

If the Filipinos in fact committed any errors in feigning cooperation and obedience during
the Japanese military occupation, they were at most — borrowing the famous and
significant words of President Roxas — errors of the mind and not of the heart. We
advisedly said "feigning" not as an admission of the fallacy of the theory of suspended
allegiance or sovereignty, but as an affirmation that the Filipinos, contrary to their
outward attitude, had always remained loyal by feeling and conscience to their country.

Assuming that article 114 of the Revised Penal Code was in force during the Japanese
military occupation, the present Republic of the Philippines has no right to prosecute
treason committed against the former sovereignty existing during the Commonwealth
Government which was none other than the sovereignty of the United States. This court
has already held that, upon a change of sovereignty, the provisions of the Penal Code
having to do with such subjects as treason, rebellion and sedition are no longer in force
(People vs. Perfecto, 43 Phil., 887). It is true that, as contended by the majority, section 1
of Article II of the Constitution of the Philippines provides that "sovereignty resides in the
people," but this did not make the Commonwealth Government or the Filipino people
sovereign, because said declaration of principle, prior to the independence of the
Philippines, was subervient to and controlled by the Ordinance appended to the
Constitution under which, in addition to its many provisions essentially destructive of the
concept of sovereignty, it is expressly made clear that the sovereignty of the United
States over the Philippines had not then been withdrawn. The framers of the Constitution
had to make said declaration of principle because the document was ultimately intended
for the independent Philippines. Otherwise, the Preamble should not have announced
that one of the purposes of the Constitution is to secure to the Filipino people and their
posterity the "blessings of independence." No one, we suppose, will dare allege that the
Philippines was an independent country under the Commonwealth Government.

The Commonwealth Government might have been more autonomous than that existing
under the Jones Law, but its non-sovereign status nevertheless remained unaltered; and
what was enjoyed was the exercise of sovereignty over the Philippines continued to be
complete.
The exercise of Sovereignty May be Delegated. — It has already been seen that the
exercise of sovereignty is conceived of as delegated by a State to the various organs
which, collectively, constitute the Government. For practical political reasons which can
be easily appreciated, it is desirable that the public policies of a State should be
formulated and executed by governmental agencies of its own creation and which are not
subject to the control of other States. There is, however, nothing in a nature of
sovereignty or of State life which prevents one State from entrusting the exercise of
certain powers to the governmental agencies of another State. Theoretically, indeed, a
sovereign State may go to any extent in the delegation of the exercise of its power to the
governmental agencies of other States, those governmental agencies thus becoming
quoad hoc parts of the governmental machinery of the State whose sovereignty is
exercised. At the same time these agencies do not cease to be Instrumentalities for the
expression of the will of the State by which they were originally created.

By this allegation the agent State is authorized to express the will of the delegating State,
and the legal hypothesis is that this State possesses the legal competence again to draw
to itself the exercise, through organs of its own creation, of the powers it has granted.
Thus, States may concede to colonies almost complete autonomy of government and
reserve to themselves a right of control of so slight and so negative a character as to
make its exercise a rare and improbable occurence; yet, so long as such right of control
is recognized to exist, and the autonomy of the colonies is conceded to be founded upon
a grant and the continuing consent of the mother countries the sovereignty of those
mother countries over them is complete and they are to be considered as possessing
only administrative autonomy and not political independence. Again, as will be more fully
discussed in a later chapter, in the so-called Confederate or Composite State, the
cooperating States may yield to the central Government the exercise of almost all of their
powers of Government and yet retain their several sovereignties. Or, on the other hand, a
State may, without parting with its sovereignty of lessening its territorial application, yield
to the governing organs of particular areas such an amplitude of powers as to create of
them bodies-politic endowed with almost all of the characteristics of independent States.
In all States, indeed, when of any considerable size, efficiency of administration demands
that certain autonomous powers of local self-government be granted to particular
districts. (Willoughby, The Fundamental Concepts of Public Law [1931], pp. 74, 75.).

The majority have drawn an analogy between the Commonwealth Government and the
States of the American Union which, it is alleged, preserve their own sovereignty
although limited by the United States. This is not true for it has been authoritatively stated
that the Constituent States have no sovereignty of their own, that such autonomous
powers as they now possess are had and exercised by the express will or by the
constitutional forbearance of the national sovereignty, and that the sovereignty of the
United States and the non-sovereign status of the individual States is no longer
contested.

It is therefore plain that the constituent States have no sovereignty of their own, and that
such autonomous powers as they now possess are had and exercised by the express
will or by the constitutional forbearance of the national sovereignty. The Supreme Court
of the United States has held that, even when selecting members for the national
legislature, or electing the President, or ratifying proposed amendments to the federal
constitution, the States act, ad hoc, as agents of the National Government. (Willoughby,
the Fundamental Concepts of Public Law [1931], p.250.)

This is the situation at the present time. The sovereignty of the United States and the
non-sovereign status of the individual States is no longer contested. (Willoughby, The
Fundamental Concepts of Public Law [1931], pp. 251, 252.)
Article XVIII of the Constitution provides that "The government established by this
Constitution shall be known as the Commonwealth of the Philippines. Upon the final and
complete withdrawal of the sovereignty of the United States and the proclamation of
Philippine independence, the Commonwealth of the Philippines shall thenceforth be
known as the Republic of the Philippines." From this, the deduction is made that the
Government under the Republic of the Philippines and under the Commonwealth is the
same. We cannot agree. While the Commonwealth Government possessed
administrative autonomy and exercised the sovereignty delegated by the United States
and did not cease to be an instrumentality of the latter (Willoughby, The Fundamental
Concepts of Public Law [1931], pp. 74, 75), the Republic of the Philippines is an
independent State not receiving its power or sovereignty from the United States. Treason
committed against the United States or against its instrumentality, the Commonwealth
Government, which exercised, but did not possess, sovereignty (id., p. 49), is therefore
not treason against the sovereign and independent Republic of the Philippines. Article
XVIII was inserted in order, merely, to make the Constitution applicable to the Republic.

Reliance is also placed on section 2 of the Constitution which provides that all laws of the
Philippines Islands shall remain operative, unless inconsistent therewith, until amended,
altered, modified or repealed by the Congress of the Philippines, and on section 3 which
is to the effect that all cases pending in courts shall be heard, tried, and determined
under the laws then in force, thereby insinuating that these constitutional provisions
authorize the Republic of the Philippines to enforce article 114 of the Revised Penal
Code. The error is obvious. The latter article can remain operative under the present
regime if it is not inconsistent with the Constitution. The fact remains, however, that said
penal provision is fundamentally incompatible with the Constitution, in that those liable for
treason thereunder should owe allegiance to the United States or the government of the
Philippines, the latter being, as we have already pointed out, a mere instrumentality of
the former, whereas under the Constitution of the present Republic, the citizens of the
Philippines do not and are not required to owe allegiance to the United States. To
contend that article 114 must be deemed to have been modified in the sense that
allegiance to the United States is deleted, and, as thus modified, should be applied to
prior acts, would be to sanction the enactment and application of an ex post facto law.

In reply to the contention of the respondent that the Supreme Court of the United States
has held in the case of Bradford vs. Chase National Bank (24 Fed. Supp., 38), that the
Philippines had a sovereign status, though with restrictions, it is sufficient to state that
said case must be taken in the light of a subsequent decision of the same court in
Cincinnati Soap Co. vs. United States (301 U.S., 308), rendered in May, 1937, wherein it
was affirmed that the sovereignty of the United States over the Philippines had not been
withdrawn, with the result that the earlier case only be interpreted to refer to the exercise
of sovereignty by the Philippines as delegated by the mother country, the United States.

No conclusiveness may be conceded to the statement of President Roosevelt on August

12, 1943, that "the United States in practice regards the Philippines as having now the
status as a government of other independent nations--in fact all the attributes of complete
and respected nationhood," since said statement was not meant as having accelerated
the date, much less as a formal proclamation of, the Philippine Independence as
contemplated in the Tydings-McDuffie Law, it appearing that (1) no less also than the
President of the United States had to issue the proclamation of July 4, 1946, withdrawing
the sovereignty of the United States and recognizing Philippine Independence; (2) it was
General MacArthur, and not President Osmeña who was with him, that proclaimed on
October 23, 1944, the restoration of the Commonwealth Government; (3) the Philippines
was not given official participation in the signing of the Japanese surrender; (4) the
United States Congress, and not the Commonwealth Government, extended the tenure
of office of the President and Vice-President of the Philippines.
The suggestion that as treason may be committed against the Federal as well as against
the State Government, in the same way treason may have been committed against the
sovereignty of the United States as well as against the sovereignty of the Philippine
Commonwealth, is immaterial because, as we have already explained, treason against
either is not and cannot be treason against the new and different sovereignty of the
Republic of the Philippines.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-2128             May 12, 1948

MELENCIO SAYO and JOAQUIN MOSTERO, petitioners,

vs.
THE CHIEF OF POLICE and THE OFFICER IN CHARGE OF MUNICIPAL JAIL, BOTH
OF CITY OF MANILA, respondents.

Enrique Q. Jabile for petitioners.

Acting City Fiscal A. P. Montesa, Assistant City Fiscal Arsenio Nañawa and D. Guinto
Lazaro for respondents.

FERIA, J.:

Upon complaint of Bernardino Malinao, charging the petitioners with having committed
the crime of robbery, Benjamin Dumlao, a policeman of the City of Manila, arrested the
petitioners on April 2, 1948, and presented a complaint against them with the fiscal's
office of Manila. Until April 7, 1948, when the petition for habeas corpus filed with this
Court was heard, the petitioners were still detained or under arrest, and the city fiscal had
not yet released or filed against them an information with the proper courts justice.

This case has not been decided before this time because there was not a sufficient
number of Justices to form a quorum in Manila, And it had to be transferred to the
Supreme Court acting in division here in Baguio for deliberation and decision. We have
not until now an official information as to the action taken by the office of the city fiscal on
the complaint filed by the Dumlao against the petitioners. But whatever night have been
the action taken by said office, if there was any, we have to decide this case in order to
lay down a ruling on the question involved herein for the information and guidance in the
future of the officers concerned.

The principal question to be determined in the present case in order to decide whether or
not the petitioners are being illegally restrained of their liberty, is the following: Is the city
fiscal of manila a judicial authority within the meaning of the provisions of article 125 of
the Revised Penal Code?

Article 125 of the Revised Penal Code provides that "the penalties provided in the next
proceeding article shall be imposed upon the public officer or employee who shall detain
any person for some legal ground and shall fail to deliver such person to the
proper judicial authorities within the period of six hours."

Taking into consideration the history of the provisions of the above quoted article, the
precept of our Constitution guaranteeing individual liberty, and the provisions of Rules of
Court regarding arrest and habeas corpus, we are of the opinion that the words "judicial
authority", as used in said article, mean the courts of justices or judges of said courts
vested with judicial power to order the temporary detention or confinement of a person
charged with having committed a public offense, that is, "the Supreme Court and such
inferior courts as may be established by law". (Section 1, Article VIII of the Constitution.)

Article 125 of the Revised Penal Code was substantially taken from article 202 of the old
Penal Code formerly in force of these Islands, which penalized a public officer other than
a judicial officer who, without warrant, "shall arrest a person upon a charge of crime and
shall fail to deliver such person to the judicial authority within twenty four hours after his
arrest." There was no doubt that a judicial authority therein referred to was the judge of a
court of justice empowered by law, after a proper investigation, to order the temporary
commitment or detention of the person arrested; and not the city fiscals or any other
officers, who are not authorized by law to do so. Because article 204, which
complements said section 202, of the same Code provided that "the penalty of
suspension in its minimum and medium degrees shall be imposed upon the following
persons: 1. Any judicial officer who, within the period prescribed by the provisions of the
law of criminal procedure in force, shall fail to release any prisoner under arrest or to
commit such prisoner formally by written order containing a statement of the grounds
upon which the same is based."

Although the above quoted provision of article 204 of the old Penal Code has not been
incorporated in the Revised Penal Code the import of said words judicial authority or
officer can not be construed as having been modified by the mere omission of said
provision in the Revised Penal Code.

Besides, section 1 (3), Article III, of our Constitution provides that "the right of the people
to be secure in their persons...against unreasonable seizure shall not be violated, and no
warrant [of arrest, detention or confinement] shall issue but upon probable cause, to be
determined by the judge after the examination under oath or affirmation of the complaint
and the witness he may produce." Under this constitutional precept no person may be
deprived of his liberty, except by warrant of arrest or commitment issued upon probable
cause by a judge after examination of the complainant and his witness. And the judicial
authority to whom the person arrested by a public officers must be surrendered can not
be any other but court or judge who alone is authorized to issue a warrant of commitment
or provisional detention of the person arrested pending the trial of the case against the
latter. Without such warrant of commitment, the detention of the person arrested for than
six hours would be illegal and in violation of our Constitution.

Our conclusion is confirmed by section 17, Rule 109 of the Rules of court, which,
referring to the duty of an officer after arrest without warrant, provides that "a person
making arrest for legal ground shall, without unnecessary delay, and within the time
prescribed in the Revised Penal Code, take the person arrested to the
proper court or judge for such action for they may deem proper to take;" and by section
11 of Rule 108, which reads that "after the arrest by the defendant and his delivery to the
Court, he shall be informed of the complaint or information filed against him. He shall also
informed of the substance of the testimony and evidence presented against him, and, if
he desires to testify or to present witnesses or evidence in his favor, he may be allowed
to do so. The testimony of the witnesses need not be reduced to writing but that of the
defendant shall be taken in writing and subscribed by him.

And it is further corroborated by the provisions of section 1 and 4, Rule 102 of the Rules
of Court. According to the provision of said section, "a writ of habeas corpus shall extend
any person to all cases of illegal confinement or detention by which any person is illegally
deprived of his liberty"; and "if it appears that the person alleged to be restrained of his
liberty is in the custody of an officer under process issued by a court or judge, or by virtue
of a judgement or order of a court of record, and that the court or judge had jurisdiction to
issue the process, render judgment, or make the order, the writ shall not be allowed.
"Which a contrario sensu means that, otherwise, the writ shall be allowed and the person
detained shall be released.

The judicial authority mentioned in section 125 of the Revised Penal Code can not be
construed to include the fiscal of the City of Manila or any other city, because they cannot
issue a warrant of arrest or of commitment or temporary confinement of a person
surrendered to legalize the detention of a person arrested without warrant. (Section 7,
Rule 108; Hashim vs. Boncan, 40 Off. Gaz. 13th Supp., p.13; Lino vs. Fugoso, L-1159,
promulgated on January 30, 1947, 43 Off. Gaz., 1214). The investigation which the city of
fiscal of Manila makes is not the preliminary investigation proper provided for in section
11, Rule 108, above quoted, to which all person charged with offenses cognizable by the
Court of First Instance in provinces are entitled, but it is a mere investigation made by the
city fiscal for the purpose of filing the corresponding information against the defendant
with the proper municipal court or Court of First Instance of Manila if the result of the
investigation so warrants, in order to obtain or secure from the court a warrant of arrest of
the defendant. It is provided by a law as a substitute, in a certain sense, of the
preliminary investigation proper to avoid or prevent a hasty or malicious prosecution,
since defendant charged with offenses triable by the courts in the City of Manila are not
entitled to a proper preliminary investigation.

The only executive officers authorized by law to make a proper preliminary investigation
in case of temporary absence of both the justice of the peace and the auxiliary justice of
the peace from the municipality, town or place, are the municipal mayors who are
empowered in such case to issue a warrant of arrest of the caused. (Section 3, Rule 108,
in connection with section 6, Rule 108, and section 2 of Rule 109.) The preliminary
investigation which a city fiscal may conduct under section 2, Rule 108, is the
investigation referred to in the proceeding paragraph.

Under the law, a complaint charging a person with the commission of an offense
cognizable by the courts of Manila is not filed with municipal court or the Court of First
Instance of Manila, because as above stated, the latter do not make or conduct a
preliminary investigation proper. The complaint must be made or filed with the city fiscal
of Manila who, personally or through one of his assistants, makes the investigation, not
for the purpose of ordering the arrest of the accused, but of filing with the proper court the
necessary information against the accused if the result of the investigation so warrants,
and obtaining from the court a warrant of arrest or commitment of the accused.

When a person is arrested without warrant in cases permitted bylaw, the officer or person
making the arrest should, as abovestated, without unnecessary delay take or surrender
the person arrested, within the period of time prescribed in the Revised Penal Code, to
the court or judge having jurisdiction to try or make a preliminary investigation of the
offense (section 17, Rule 109); and the court or judge shall try and decide the case if the
court has original jurisdiction over the offense charged, or make the preliminary
investigation if it is a justice of the peace court having no original jurisdiction, and then
transfer the case to the proper Court of First Instance in accordance with the provisions
of section 13, Rule 108.

In the City of Manila, where complaints are not filed directly with the municipal court or
the Court of First Instance, the officer or person making the arrest without warrant shall
surrender or take the person arrested to the city fiscal, and the latter shall make the
investigation above mentioned and file, if proper, the corresponding information within the
time prescribed by section 125 of the Revised Penal Code, so that the court may issue a
warrant of commitment for the temporary detention of the accused. And the city fiscal or
his assistants shall make the investigation forthwith, unless it is materially impossible for
them to do so, because the testimony of the person or officer making the arrest without
warrant is in such cases ready and available, and shall, immediately after the
investigation, either release the person arrested or file the corresponding information. If
the city fiscal has any doubt as to the probability of the defendant having committed the
offense charged, or is not ready to file the information on the strength of the testimony or
evidence presented, he should release and not detain the person arrested for a longer
period than that prescribed in the Penal Code, without prejudice to making or continuing
the investigation and filing afterwards the proper information against him with the court, in
order to obtain or secure a warrant of his arrest. Of course, for the purpose of
determining the criminal liability of an officer detaining a person for more than six hours
prescribed by the Revised Penal Code, the means of communication as well as the hour
of arrested and other circumstances, such as the time of surrender and the material
possibility for the fiscal to make the investigation and file in time the necessary
information, must be taken into consideration.

To consider the city fiscal as the judicial authority referred to in article 125 of the Revised
Penal Code, would be to authorize the detention of a person arrested without warrant for
a period longer than that permitted by law without any process issued by a court of
competent jurisdiction. The city fiscal, may not, after due investigation, find sufficient
ground for filing an information or prosecuting the person arrested and release him, after
the latter had been illegally detained for days or weeks without any process issued by a
court or judge.

A peace officer has no power or authority to arrest a person without a warrant upon
complaint of the offended party or any other person, except in those cases expressly
authorized by law. What he or the complainant may do in such case is to file a complaint
with the city fiscal of Manila, or directly with the justice of the peace courts in
municipalities and other political subdivisions. If the City Fiscal has no authority, and he
has not, to order the arrest even if he finds, after due investigation, that there is a
probability that a crime has been committed and the accused is guilty thereof, a fortiori a
police officer has no authority to arrest and detain a person charged with an offense upon
complaint of the offended party or other persons even though, after investigation, he
becomes convinced that the accused is guilty of the offense charged.

In view of all the foregoing, without making any pronouncement as to the responsibility of
the officers who intervened in the detention of the petitioners, for the policeman Dumlao
may have acted in good faith, in the absence of a clear cut ruling on the matter in
believing that he had complied with the mandate of article 125 by delivering the
petitioners within six hours to the office of the city fiscal, and the latter might have ignored
the fact that the petitioners were being actually detained when the said policeman filed a
complaint against them with the city fiscal, we hold that the petitioners are being illegally
restrained of their liberty, and their release is hereby ordered unless they are now
detained by virtue of a process issued by a competent court of justice. So ordered.

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

Separate Opinions

PERFECTO, J.:, concurring:

Petitioners Melencio Sayo and Joaquin Mostero were apprehended at 11:30 in the
morning of April 2, 1948, upon complaint of Bernardino Malinao, for the crime of alleged
robbery.
The fact is alleged expressly in respondent's answer supported by the affidavit of
Benjamin Dumlao (Exhibit 1), the patrolman who made the arrest. Therein it is also
alleged that petitioners were "finally" placed under arrest at 4:30 p.m. and 5:00 p.m.
respectively, on the same day, April 2, l948.

The distinction between the two arrests, the apprehension made at 11:00 a.m. and the
"final arrest at 4:30 and 5:00 p.m., is purely academic or imaginary. There was but one
arrest, effected at 11:00 a.m., April 2, 1948, and continued without interruption until the
petition had been filed with us April 5, 1948, at the hearing on the next day. Until the
moment we are writing this opinion we have not heard that petitioners have been
released at any time.

Respondents allege also that on April 3, 1948, at about 8:30 a.m., a criminal complaint
was filed with the fiscal's office of Manila, and that by said filing their duty to deliver
arrested persons, within six hours from their arrest, to a proper judicial authority has been
duly complied with.

There is no dispute that no warrant of arrest has ever been issued for the apprehension
of petitioners.

Petitioners pray for their immediate release, alleging that, as the six-hour period provided
in article 125 of the Revised Penal Code had expired, their continued detention is illegal.

Article 125 of the Revised Penal Code provides for the penalty of arresto mayor or in its
maximum period to reclusion temporal, or from 4 months and 11 days to 20 years
imprisonment, for the crime of a public officer or employee who, after detaining a person,
"shall fail to deliver such person to the proper judicial authorities within the period of six
hours."

Both parties implying from the above provision that after six hours of said failure,
petitioners shall be entitled to be released, discussed the question whether there is such
failure or not.

Upon the very facts alleged by respondents and supported by documentary evidence
accompanying it, there should not be any dispute that there is such failure.

(a) Respondents have not delivered the persons of petitioners to any authority, and much
less to any judicial authority.

(b) Their filing of a complaint with the office of the fiscal of Manila is not a delivery of the
persons of petitioners. Said persons are not a complaint. A complaint, whether oral or
written, can never be elevated to the category of the person. No one is crazy enough to
confuse or identify a person with a complaint.

(c) Even in the false hypothesis that respondents, by filing the complaint, intended to
make a delivery of the persons of petitioners, if not actually, constructively, the fiscal's
office is not a judicial authority.

(d) Under our Constitution and laws, judicial authorities comprehend only courts of
justice, such as the Supreme Court and all other inferior Court, and justices and judges.
The authority possessed and exercised by judicial authorities is judicial, and the
Constitution(section 1, Article VIII) vests the judicial power exclusively "in one Supreme
Court and in such inferior courts as may be established by law."
Respondents' pretension in making the fiscal of Manila a judicial authority is absolutely
groundless, upon the clear letter of the fundamental law. Counsel for respondents himself
had to admit that said officer belongs to the administrative or executive department.
Under the tripartite system of the government established by the Constitution, it is
extreme absurdity to make an administrative or executive officer, or any officer of the
executive department or branch, a judicial authority. Such will make of separation of
powers a madman's illusion.

That a fiscal is not a judicial authority has been unmistakably declared in the decision
in Lino vs. Fugoso, L-1159, 43 Off. Gaz., 1214. The statement made therein that there
was yet no purpose of deciding whether a fiscal is a judicial authority or not, is just a
rhetorical figure that is a judicial authority or not, is just a rhetorical figure that should not
deceive any one. All those who can read, will that the decision has made the declaration.
It is there stated in plain language that the fiscal is "unlike" a judicial authority.

"Unlike" means, as an elementary school student knows, not like, dissimilar, diverse,
different.

No warrant of arrest having been issued by any competent tribunal for the apprehension
of petitioners, said apprehension appears to be illegal.

At any rate, even under the hypothesis that it was legal and continued to be so for six
hours, this time having expired seven days ago, the continued detention and confinement
of petitioners is clearly illegal, and not only illegal but criminal, involving an offense
committed by public officers and heavily punished by the Revised Penal Code.

Regarding the question as to legality of the arrest, counsel for respondents has advanced
the shocking theory that police officers may arrest any person just for questioning or
investigation, without any warrant of arrest.

The theory is absolutely unconstitutional and could have been entertained only under the
"Kempei" system implanted by the brutal Japanese army occupation. Such theory
represents an ideology incompatible with human dignity. Reason revolts against it.

Respondents are ordered, upon notice of the decision, to immediately release the two
petitioners and to report to this Court the time when the release shall have been effected.

TUASON, J., dissenting:

I dissent on the grounds stated in my dissent in Lino vs. Fugoso et al., Off. Gaz., 1214.

RESOLUTION

August 27, 1948

FERIA, J.:

This is a motion for reconsideration of our decision which holds that the phrase "judicial
authority" used in the article 125 of the Revised Penal Code, to whom a person arrested
without warrant shall be delivered by the officer making the arrest within the period of six
hours from the arrest, means a competent court or judge, and the City Fiscal is not such
a judicial authority.

We have already held, in the United States vs. Fortaleza, 12 Phil., 472,477-479, that the
provisions of the Provisional Law for the application of the provisions of the Spanish
Penal Code in the Philippines by Royal Decree of September 4, 1884, are in force of this
Islands insofar as they have not been repealed or amended by implication by the
enactment of the body of laws put in force in these Islands since the change from
Spanish to American sovereignty. According to the ruling of this court in said case, a
person may be arrested without warrant in the cases specified in Rules 27 and 28 of said
provisional law and section 37 of Act No. 183 (Charter of Manila). The provisions of said
Rules 27 and 28 are substantially the same of those contained in section 6 Rule 109 of
the Rules of Court which superseded them; and the provisions of section 37 of Act No.
183 above reffered to have been incorporated in section 2463 of the Revised
Administrative Code. Both section 6 of Rule 109, and the pertinent provisions of said
section 2463 of the Revised Administrative Code are now the laws in force on the
subject.

Article 30 of said Provisional Law for the application of the Penal Law in the Philippines
also provides:

The executive authorities or the agents detaining a person shall release the same or else
turn him over to the judicial authorities within twenty four hours after the arrest if made in
the head town of the district, or within as brief a period as the distance and transportation
facilities permit.

And the next article 31 of the same law reads as follows:

Within twenty four hours after the person arrested has been surrendered to the
competent judge of Court of First Instance, the latter shall order the commitment or
release of the prisoner by warrant containing the grounds on which it is based (auto
motivado).

If it is impossible to do so because of the complexity of the facts, the number of

defendants or any other serious cause, which must be made of record, the time of
detention may be extended to three days. Upon the expiration of that period of time the
judge shall order the commitment or the release of the defendant. The warrant of
commitment shall be ratified after the defendant has been heard within the period of sixty
two hours from the time the defendant has been committed to prison.

Said Rule 30 has been modified by section 17, Rule 109, which provides that "Any
person making arrest for legal ground shall, without unnecessary delay and within the
time prescribed in the Revised Peal Code, take the person arrested to the proper court or
judge for such action as they may deem proper to take," and by article 125 of the
Revised Penal Code already quoted.

But the provisions of Rule 31 above quoted are still in force because they may have not
been repealed, either expressly or by implication, by any law or the present Rules of
Court, except the last sentence, thereof which is no longer in force. The procedure of
hearing the accused after he has been committed to prison referred to in said last
sentence, is a sort preliminary investigation by the judge or justice of the peace according
to the present procedure. Persons arrested or accused in the City of Manila are not
entitled to such investigation. In provinces the justice of the peace or judge shall,
according to section 2 of Act No. 194, "make the preliminary investigation of the charge
as speedily as may be consistent with the right and justice, but in any event he must
make the investigation within three days of the time the accused was brought before him,
unless the accused or complainant shall ask for delay in order that witnesses may be
obtained, or for other good and sufficient reason, in which event a continuance for a
reasonable time may be allowed." This provision of section 2 of Act No. 194 is still in
force, because no law has been enacted amending or repealing it. (Marcos vs. Cruz [May
13, 1939] 1st Supp., 40 Off. Gaz., 174, 182.) The Rules of Court on Criminal Procedure
do not undertake to dispose of all subjects of preliminary investigation, and repeal all
laws on the subject not incorporated therein; especially those that, like the said
provisions of section 2, Act No. 194, confer substantive rights upon defendants which can
not be diminished, increased or modified by the Rules of Court (section 13, Article VIII, of
the Constitution).

In view of the provisions of section 17, Rule 109, Rule 31 of the Provisional Law, article
204 of the old Penal Code, from which article 125 of the Revised Penal Code was taken,
and section 1 (3) Article III of the Constitution, there can be no doubt that the judicial
authority within the meaning of article 125 of the Revised Penal Code must be a judge
who has authority to issue a written warrant of commitment or release containing the
ground on which it is based (auto motivado). Because said section 17 of Rule 109
expressly provides that the officer making the arrest without warrant shall, within the time
prescribed in the Revised Penal Code, take the person arrested to a court or judge for
such action as the latter may deem proper to take; Rule 31 expressly states that, within
twenty four hours or at most three days after the person arrested has been delivered
to the judge of Court of First Instance (and also the justice of the peace now), the latter
shall order the commitment or release of the prisoner by a warrant containing the ground
upon which the commitment or release is based (auto motivado); article 204 of the Penal
Code (not incorporated in the Revised Penal Code), penalize the judicial authority or
judge who fails to comply with the provisions of said Rule 31; and section 1(3) Article III
of the Constitution provides that no warrant shall issue but upon probable cause, to be
determined by the judge after examination under oath or affidavit of the complainant and
witnesses he may produce," in order to safeguard "the right of the people to be secured
in their person ... against unreasonable seizure" or detention for a longer period than that
fixed or considered by law as reasonable (six hours according to section 125 of the
Revised Penal Code).

It is obvious that the city fiscal is not a city judge, and has no power to issue order or
commitment or release by a written warrant containing the ground on which it is based.
As a matter of fact the city fiscal has never exercised such power since that office was
created. In justice to the city fiscal, we have to state that the latter did not and does not
contend in his motion for reconsideration that it has the power to issue such a warrant, as
contended in the dissenting opinion.

To consider a city fiscal as a judicial authority within the meaning of article 125 of the
Revised Penal Code, would be to place a person arrested in provinces without warrant in
a better position than those arrested in the City of Manila. Because, as there is no law
requiring the city fiscal to act or file an information against such person within a limited
period of time, after the arresting officer has taken the prisoner to the city fiscal within six
hours, the prisoner may be held under detention without any warrant for days and weeks
and possibly months until such time as the city fiscal may take action, either by releasing
the prisoner without filing any information, or filing an information with the proper city
court and obtain a warrant of commitment. While a person arrested outside of the City of
Manila has to be delivered by the arresting person or peace officer to the competent
judge within six hours after his arrest, and the latter shall have to investigate the charge
and issue a warrant of release or commitment of the prisoner within the period of twenty
four hours or at most three days prescribed in said article 31 of the Provisional Law.

It is obvious that the surrender or delivery to the judicial authority of a person arrested
without warrant by a peace officer, does not consist in a physical delivery, but in making
an accusation or charge or filing of an information against the person arrested with the
corresponding court or judge, whereby the latter acquires jurisdiction to issue an order of
release or of commitment of the prisoner, because the arresting officer can not transfer to
the judge and the latter does not assume the physical custody of the person arrested.
And in the City of Manila it does consist in delivering physically the body of the prisoner
to the city fiscal, for the latter will not assume the responsibility of being the custodian of
the prisoner; nor in making or lodging a complaint against him with the said fiscal,
because the latter has no power to order the commitment or release of the prisoner by a
warrant containing the ground on which it is based (auto motivado). Such delivery is a
legal one and consists in making a charge or filing a complaint against the prisoner with
the proper justice of the peace or judge of Court of First Instance in provinces, and in
filing by the city fiscal of an information with the corresponding city courts after an
investigation if the evidence against said person so warrants. Upon the filing of such
information will the prisoner be deemed deliver to a judicial authority in the City of Manila
within the meaning of article 125 of the Revised Penal Code?

The city court or judge need not make an investigation of the facts alleged in the
information, which the judge or justices of the peace in provinces have to make before
issuing the proper warrant, because the law vest the power in the city fiscal, but said city
judge shall determine only the legal question whether said facts constitute an offense or
violation of ordinances, and issue a warrant of commitment if they do, or of release if they
do not.

As a peace officer can not deliver directly the person arrested to the city courts, he shall
deliver him to said court through the city fiscal, and if the latter does not take the prisoner
in time to the latter so that the proper investigation may be made and information filed
within six hours, he has to release the prisoner in order to avoid criminal liabilty for
violation of article 125 of the Revised Penal Code. The city fiscal is not an agent of the
arresting officer, but as prosecuting officer, he will be recreant to his duty if he does not
do his best to make the investigation and file the corresponding information in time
against the person arrested without warrant, in order to effect the delivery of the prisoner
to the city courts within the period of six hours prescribed by law, and thus prevent his
being released by the officer making the arrest. If the city fiscal does not file the
information within said period of time and the arresting officer continues holding the
prisoner beyond the six-hour period, the fiscal will not be responsible for violation of said
article 125, because he is not the one who arrested and illegally detained the person
arrested, unless he has ordered or induced the arresting officer to hold and not release
the prisoner after the expiration of said period.

Section 2640 of the Revised Administrative Code which specifies the powers and duties
of chief of police of the City of Manila, authorizes the latter "to take good and sufficient
bail for the appearance before the city court of any person arrested for violation of any
city ordinance: Provided, however, That he shall not exercise this power in cases of
violation of any penal law except when the fiscal of the city shall so recommend and fix
the bail to be required of the person arrested." These provisions do not authorize, either
expressly or by implication, the city fiscal to order the detention of the prisoner if bond is
not given, not only because they refer to the powers of the chief of police of Manila and
not of the city fiscal, but because the only incidental authority granted to the latter is to
recommend the granting of the bail to be required of the person arrested for violation of
any penal law in order that the chief of police may release the latter on bail. If no bail is
given by the person arrested, neither the chief of police, who is only authorized to release
on bail, has power to detain the person arrested for more than six hours; nor the city
fiscal, who is only empowered to fix and recommend the bail to the chief of police, has
authority to order the detention of persons arrested for violation of a penal law.

The above-quoted provisions of section 2640 of the Revised Administrative Code refers
evidently to persons arrested without warrant, for accused arrested by virtue of a warrant
issued by the courts may be released on bail only by order of the court or judge that
issued the warrant and has exclusive jurisdiction or control over the person arrested. The
purpose of the law in empowering the chief of police of Manila to release the prisoner if
he sets up a bail, is to relieve the officer making the arrest from the necessity of taking
the prisoner to the city fiscal, and the latter from filing an information with the proper
courts within the period of time prescribed by law.

The dissenting opinion calls a general principle of law an excerpt of the Corpus Juris
Secundum quoted therein which says that "the officer however need not necessarily
have personal knowledge of the facts constituting the offense in the sense of having seen
or witnessed the offense himself, but he may if there are no circumstances known to him
by which materially impeach his information, acquire his knowledge from information
imparted to him by reliable and credible third persons or by the information together with
other suspicious circumstances" (6 C.J.S., 599, 600), and after the quotation adds: "This
is a common law rule implanted in the Philippines along with its present form of
government, a rule which has been cited and applied by this Court in a number of cases
(U. S. vs. Santos, 36 Phil., 853; U. S. vs. Batallones, 23 Phil., 46; U. S. vs. Samonte, 16
Phil., 516).

The above-quoted excerpt is not a general principle of law or a common law rule
implanted in the Philippines. It is a summary of the ruling of several State courts based
on statutory exceptions of the general rule. "It is the general rule, although there are
statutory exceptions and variations, that a peace officer has no right to make an arrest
without a warrant, upon a mere information of a third person" (5 C.J., p. 404), because
"statutes sometime authorize peace officer to make arrest upon information" (4 Am. Jur.,
p. 17). In none of the cases cited in the dissenting opinion has this Court quoted and
applied it. In U.S. vs. Fortaleza, 12 Phil., 472, this Court, after quoting Rules 27 and 28 of
the "Provisional Law for the Application of the Penal Law" and section 37, Act No. 183,
as the law in force in force in these Islands providing for cases in which a person may be
arrested without a warrant, said:

These provisions quite clearly set out the powers usually conferred by American and
English law upon "peace officers" including "constables," in making arrests without
warrants; and since similar powers are clearly included in the powers conferred upon
"agents of authority" in the above cited articles of the "Provisional Law," there can be no
doubt that the Commission, in imposing the duty of maintaining order and preserving and
protecting life and property within their respective barrios upon municipal councilors and
their lieutenants of barrios, conferred upon such officials authority to make arrests without
warrant not less extensive than that conferred upon peace officers in Manila in the
above-cited provisions of the Manila Charter. (United States vs. Vallejo, No. 4367,
decided by this court on September 3, 1908; also United States vs. Burgueta, 10 Phil.,
188.) (Emphasis ours.)

The case of U.S. vs. Samonte, 16 Phil., 516, one of the cases cited in the last paragraph
of the dissenting opinion, does not contain anything about the implantation in these
Islands of the so-called common law rule. In the case of U.S. vs. Battallones (not
Ballesteros) 23 Phil., 46, cited also therein, this Court, following the ruling in U.S. vs.
Fortaleza, said:

In a former case we held that officials in these Islands, who, "by direct provisions of law
or by appointment of competent authority are charged with the maintenance of public
order and the protection and security of life and property," have authority to make arrests
without warrant substantially similar to the authority generally conferred upon "peace
officers" in the United States, and more especially that class of `peace officers' known to
American and English law as constables; and that "the provisions of section 37 of Act No.
183" (the Charter of Manila) "quite clearly set forth the powers usually conferred by
American and English law upon "peace officers" including "constables" in making arrests
without warrants," and provide that they "may pursue and arrest without warrant, any
person found in suspicious places or under suspicious circumstances, reasonably
tending to show that such person has committed or is about to commit any crime or
breach of the peace; may arrest, or cause to be arrested without warrant, any offender,
when the offense is committed in the presence of a peace officer or within his view".
(U.S. vs. Fortaleza, 12, Phil., 472, 479.)

And in the case of U.S. vs. Santos, 36 Phil., 853, this Supreme Court has reiterated the
ruling in the previous cases and held:

The powers of peace officers in the Philippines, generally stated, are the same as those
conferred upon constables under the Anglo-American Common Law. The extent of their
authority to make arrests without warrant and the limitations thereon, as held by the
Supreme Court, are as stated in the language of the Legislature in the Charter of the City
of Manila. (U.S. vs. Fortaleza [1909], 12 Phil., 472). The Administrative Code (section
2204, edition of 1916; section 2258, edition of 1917) enjoins municipal policemen to
"exercise vigilance in the prevention of public offenses".

The provisions above quoted of section 37 of Act No. 183 have been incorporated in
section 2463 of the Revised Administrative Code and those of Rules 27 and 28 were
substantially incorporated in section 6, Rule 109 of the Rules of Court. Section 2463 of
the Revised Administrative Code reads as follows:

SEC. 2463. Police and other officers — Their powers and duties. — The mayor, the chief
and assistant chief of police, the chief of the secret service, and all officers and members
of the city police and detective force shall be peace officers. Such peace officers are
authorized ... to pursue and arrest, without warrant, any person found in suspicious
places or under suspicious circumstances reasonably tending to show that such person
has committed, or is about to commit, any crime or breach of the peace; to arrest or
cause to be arrested, without warrant, any offender when the offense is committed in the
presence of a peace officer or within his view;

And section 6 of Rule 109 provides:

SEC. 6. Arrest without warrant — When lawful. — A peace officer or a private person
may, without a warrant, arrest a person:

(a) When the person to be arrested has committed, is actually committing, or is about to
commit an offense in his presence;

(b) When an offense has in fact been committed, and he has reasonable ground to
believe that the person to be arrested has committed it;

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.

These are the only provisions of law in force these Islands which enumerate the cases in
which a peace officer may arrest a person without warrant, and the so called common
law relating to other cases of arrest without warrant cited in the dissenting opinion has no
application in this jurisdiction. Therefore, all the considerations set forth in the said
opinion about the disastrous consequences which this Court's interpretation of article 125
of the Revised Penal Code will bring to a law enforcement, because "the entire six hours
might be consumed by the police in their investigation alone," or that "even if the city
fiscal be given the chance to start his assigned task at the beginning of the six hours
period, this time can not insure proper and just investigation in complicated cases and in
cases where the persons arrested are numerous and witnesses are not at hand to
testify," since "the police is not authorized to round up the witnesses and take them along
with the prisoner to the city fiscal," are without any foundation. Because they are
premised on the wrong assumption that, under the laws in force in our jurisdiction, a
peace officer need not have personal knowledge but may arrest a person without a
warrant upon mere information from other person. "The right to make arrests without a
warrant is usually regulated by express statute, and except as authorized by such
statutes, an arrest without a warrant is illegal." (5 C.J., pp. 395, 396.) And statutory
construction extending the right to make arrest without a warrant beyond the cases
provided by law is derogatory of the right of the people to personal liberty (4 Am. Jur., p.
17).

The investigation which the city fiscal has to make before filing the corresponding
information in cases of persons arrested without a warrant, does not require so much
time as that made upon a complaint of the offended parties for the purpose of securing a
warrant of arrest of the accused. In all cases above enumerated in which the law
authorizes a peace officer to arrest without warrant, the officer making the arrest must
have personal knowledge that the person arrested has committed, is actually committing,
or is about to commit an offense in his presence or within his view, or of the time, place
or circumstances which reasonably tend to show that such person has committed or is
about to commit any crime or breach of the peace. And the testimony of such officer on
the commission of the offense in his presence or within his view by the person arrested,
or on the facts and circumstances that tend reasonably to show that said person has
committed or is about to commit an offense, would be sufficient evidence or basis for the
city fiscal to file an information without prejudice to his presenting of their evidence or
witness, if any, during the trial to insure the conviction of the defendant. If the city fiscal
does not believe the testimony of the officer making the arrest or consider it sufficient, or
has any doubt as to the probability of the prisoner having committed the offense charged,
and is not ready to file an information against him on the strength of the testimony or
evidence presented, there would be no legal reason or ground for him to wait until further
evidence may be secured before dismissing the case against the prisoner, or detaining
the person arrested without warrant without violating the precept of article 125 of the
Revised Penal Code.

After the release of the prisoner, the city fiscal may make or continue the investigation
and file afterwards the proper information against him with the corresponding court, if the
result of the investigation so warrants, in order to secure a warrant of arrest of the same.
Of course, as we have said in our decision for the purpose of determining the criminal
liability of a peace officer detaining a person for a longer period of time than the six hours
prescribed by article 125 of the Revised Penal Code, "the means of communication as
well as the hour of arrest and other circumstances such as the time of surrender and the
material possibility for the fiscal to make the investigation and file in time the necessary
information, must be taken into consideration." The period originally fixed by our Penal
Code was twenty four (24) hours, and if the city fiscal believes that the period now
prescribed by article 125 of the Revised Penal Code is short, and that the law must be
amended so as to extend it, it would be proper for the interested parties to take the case
to Congress, since it can not be done by judicial legislation.

Motion for reconsideration is denied.

Paras, Actg. C.J., Pablo, Bengzon, and Briones, JJ., concur.

PERFECTO, J.:
We agree with the above resolution except that which may be at variance with our
concurring opinion in this case and with our written opinion in the case of Lino vs.
Fugoso, L-1159, 43 Off. Gaz., 1214.

BRIONES, M., concurring:

Estoy enteramente conforme con la resolucion. En la opinion concurrente que dicte en el

asunto de Lino contra Fuguso y otros (43 off. Gaz., 1235, 1244) donde se discutio por
primera vea el importante punto legal debatido en el presente asunto, dije lo siguiente y
lo reafirmo en esta ocasion, saber:

Sin discutir la responsabilidad de la Fiscalia por la demora — si esta se puede o no

justificar administrativamente es cuestion que no nos compete considerar ni resolver —
vamos a limitarnos a comentar y discutir la fase juridica legal. Esta en orden
naturalmente el hacer la siguiente pregunta: es correcta, es acertada la asercionde que
el "Promotor Fiscal de Manila es un funcionario judicial (judicial officer)," que, por tanto,
la entrega al mismo de la persona de undetenido dentro del periodo de 6 horas equivale
a la entrega a las autoridades judiciales correspondentes (proper judicial authorities) de
que habla el ariticulo 125 del codigo penal revisado? Creemos que no: no por su letra ni
por su espiritu puede aplicarse por extension la fraseologia de ese articulo al Fiscal de la
Ciudad de Manila o a cualquier otro Fiscal; ese articulo no puede referirse mas que a un
tribunal, a u juzgado, se municipal, sea de primera instancia. Asi que story de perfecto
acuerdo con la ponencia cuando positivamente sienta la doctrina de que "si bien un
arresto puede hacerse sin orden cuando hay motivos razonalbes apra ello (regla 109,
articulo 6, reglamento de los tribunales), el detenido no puede ser recluido fuera del
periodo prescrito por la ley, a menos que una orden de arresto se obtenga antes de un
tribunal competente" (veanse las autoridades que se citan), y que "en el presente caso el
Fiscal de la Ciudad no tenia autoridad para expedir ordenes de arresto y carecia de
facultad para convalidar tal detencion ilegal con solo presentar las querellas, o con una
orden de su propia cuenta, ora tacita, ora expresa" (veanse asimismo las authoridades
que se citan).

De lo dicho se sigue que cuando la policia entrega a la Fiscalia de la ciudad despues del
periodo de 6 horas prescrito por la ley los papeles sobre un detenido arestado sin previa
orden al efecto, no por ello se cura la ilegalidad del arresto y detencion, sino que dicha
ilegalidad continua y persiste hasta que el Fiscal presenta la querella y obtiene una
orden de arresto del tribunal competente, o que, tratandose de delito, mediante la
prestacion de una fianza cuya cuantia se fijare y recommendare por dicho Fiscal, la
policia soltare al detenido, a tenor de lo previsto en el articulo 2460 del codigo
administrativo.

Puede ocurrir, sin embargo, que la policia entregue los papeles a la Fiscalia de la ciudad
dentro del periodo de 6 horas, pero que la Fiscalia no solo deja pasar dicho periodo, sin
que transcurren dias, hasta semanas sin actuar sobre el caso en uno u otro sentido. La
cuestion en orden naturalmente es la siguiente: ¿es legal o ilegal la detencion del
arrestado en tal caso? En otras palabras: ¿queda suspenidod el periodo de 6 horas
durante el tiempo que el Fiscal de la Ciudad tarda en actuar sobre el caso? La
contestacion tiene queser necesariamente negativa. La rigidez., la inflexibilidad del
periodo de 6 horas reza no solo para la policia, sinohast para cualquier otra agencia o
ramo oficial, sin excluir a la Fiscalia de la ciudad de Manila. Si por cualquier motivo la
Fiscalia dejare de actuar dentro de dicho periodo, el deber de la policia o del que tenga
la custodia del detenido es soltarle, quiera o no quiera el Fiscal, lo recomiende o no lo
recomiende. De otra manera, la restriccion que estatuye la ley a favor de los detenidos
sin previa orden de arresto — restriccion que implementa las garantias de la libertad
establecidas en la Constitucion — resultaria un mito. La filosofia de la ley es, a saber:
solamente se verifica un arresto sin previa orden cuando hay motivos razonalbes para
ello, v. gr., cuando un individuo es cogido in fraganti cometiendo un delito. La ley
presupone, por tanto, que el Estado tiene a mano todos los elementos necesarios para
decider que accion ha de tomar dentro del periodo de 6 horas, ya entregando la persona
del detenido a las autoridades judicales correspondientes mediante la querella
procedente, a tenor del articulo 125 del Codigo Penal Revisado: ya poniendole en
libertad provisional bajo una fianza razonable, de acuerdo con el citado articulo 2460 del
Codigo Administrativo; o ya poniendole compoletamente en la calle por falta de meritos
en el caso. Si ninguna de estas cosas puede hacer el Estado en 6 horas no puede ser
mas que por dos motivos: o poor que se quiere cometer una arbitrariedad, o la
maquinaria oficial se halla en un deplorable estado de confusion, indeptitud of
impotencia.

Se arguye con enfasis que bajo esta interpretacion la prosecucion del crimen sufriria un
serio quebranto, sobre todo en la Ciudad de Manila; que materialmente la Fiscalia no
puede actuar adecuadamente sobre algunos casos en el plazo percentorio de 6 horas.
Si esto es verdad el remedio no es infringer la ley como cosa inevitable, rutinaria; el
remedio seria — o recabar de la Legislatura que se reforme la ley en la forma que se
estime conveniente, o implementar ya perfeccionar la maquinaria de la prosecucion
criminal, colocandola a la altura de las circunstancias. No hay nada mas anarquico, mas
subversivo y fatal para el principio de la autoridad y del buen gobierno que el tener leyes
que no se cumplen, leyes que se infringen hasta por los llamados a ponerlas en vigor.
"To be or not to be, that is the question." O existe la ley y hay que cumplirla; o si la ley es
mala o impracticable, hay que reformarla o derogarla. Lo que no se debe permitir es el
disolvente espectaculo de la diaria inobservancia de la ley.

Se me ocurre ahora añadir otras observaciones en refuerzo de la arriba transcritas. Creo

que ni siquiera es necesario enmendar la ley en el sentido de alargar el periodo de 6
horas provisto en el articulo 125 del Codigo Penal Revisado. Creo que con un poco mas
de esfuerzo y buena voluntad la presente ley se podria cumplir en la Ciudad de Manila.
La Fiscalia de la Ciudad podria, por ejemplo, establecer turnos semanales o mensuales,
segun como se estime conveniente, destinando fiscales que se hagan cargo
exclusivamente de los casos de individuos detenidos sin previa orden de arresto, para
los efectos de presentar la correspondiente querella contra ellos, o de soltarlos si se
viere que no existen meritos suficientes para la prosecucion, sin perjuicio desde luego de
ulteriores procedi mientos. Si para realizar satisfactoriamente este trabajo fuese
necesario aumentar el personal de la Fiscalia, yo no creo que el gobierno escatimaria el
dinero para una atencion tan importante.

Esincreible que dentro de 6 horas — si hay voluntad de trabajar y sobre todo de hacer
buena y efectiva la ley — la Fiscalia no pueda hacr su composicion de lugar en tales
casos, bien para proseguir, bien para no proseguir, de finitivamente o en el entretanto.
Hay que tener en cuenta que se trata de casos en que el individuo es detenido, ora
porque ha sido sorprendido in fraganti cometiendo una infraccion o un delito, ora
poroque se le ha cogido " en lugares sospechosos o bajo cirunstancias sospechosas,
que tiendan razonablemente a demostrar que el mismo ha cometido o esta para cometer
cualquier crimen o atentado contra el orden y la paz" (E. U. contra fortaleza, 12 Jur. 486).
¿Que es lo que neceista entonces la Fiscalia en tales casos? ¿No esta alli el testimonio
del policia, constabulario o agente del orden aprehensor? De modo que la cuestion, en
ultimo resultado, es que la Fiscalia tenga o no fe en la integridd y verracidad del agente
de la ley. Si la tiene ¿que motivo hay para no formular inmediatamente la querella y
obtener asi del juzgado la correspondiente orden de arresto? Y si no la tiene ¿que razon
hay para pisotear la libertad individual reteniendo la causa sin accion mas alla de las 6
horas y causando asi una inecesaria vejacion al ciudadano?
La cuestion se puede simplificar mas todavia. Todo se reduce, en ultimo termino, a que
la Fiscalia pueda contar con la ayda de una policia eficiente, integra y honrada sobre
todo, que persiga el crimen si cuartel, pero que tenga el maximo respeto a los derechos
del ciudadano. Si la Fiscalia puede tener un modus vivendi con una policcia de
semejante tipo y de tales quilates, no hay miedo de que una rigida observancia del
requerimiento legal de 6 horas facilitie la inmunidad de los tulisanes,
bandidos, gangsters y criminales del bajo mundo, y se ponga en grave peligro la eficaz
prosecucion del crimen y la seguridad y sosiego del pueblo. Dentro de las 6 horas hay
tiempo mas que suficiente para meter en cintura a toda la canalla ... ¡pero por Dios que
no se violen ni pisoteen las garantias consitucionales por miedo a los gansters!

Desde luego que se debe dar cierto margen de viabilidad a la ley. Por ejemplo, si se
verifica una detencion sin previa orden de arresto a medianoche, creo que la ley estaria
cumplida si en las primeras horas de la mañana siguiente se tomara enseguida accion,
aungque ello rebassara un poquito el periodo de 6 horas.

Se deniega la mocion de reconsideracion.

TUASON, J., dissenting:

I vote to grant the motion for reconsideration.

In my dissent from the decision of this Court I contended myself with citing my dissenting
opinion in Lino vs. Fugoso, L-1197, 43 Off. Gaz., 1214, 1246, as grounds for my
disagreement. As the present decision has gone farther than that decision and contains
new statements and conclusions, I deem it convenient to enlarge on my dissent.

The term "judicial officers" has been defined to be, in its popular sense, officers of a court
(Hitt vs. State, Miss. 181, So. 331) and in its strict sense, "judges and justices of all
courts and all persons exercising judicial powers by virtue of their office." (Settle vs. Van
Evrea, 49 N.Y., 280.) The city fiscal is a judicial officer in both senses. In the popular or
larger sense, he is a judicial officer because he is a part of the legal machinery created
for the administration of justice. A prosecuting attorney, charged with the administration
of justice and invested with important discretionary power in a motion for a nolle
prosequi, is a judicial officer. (State ex rel. Freed vs. Circuit Court of Martin Country, Ind.,
14 N.E. 2d 910; State vs. Ellis, 112 N.E., 98, 100; 184 Ind., 307.)

In the strict legal sense, the city fiscal is a judicial officer when making preliminary
examination because he performs the function of a justice of the peace — assuming, as
the majority seem to assume, that the conduct of preliminary examination is a judicial
function. By express provision of section 2465 of the Revised Administrative Code, the
city fiscal "shall cause to be investigated all charges of crimes, misdemeanors, and
violations of ordinances, and have the necessary information or complaints prepared or
made against the persons accused." In addition, section 2, Rule 108, of the Rules of
Court states that "every justice of the peace, municipal judge or city fiscal shall have
jurisdiction to conduct preliminary investigation of all offenses alleged to have been
committed, within his municipality or city, cognizable by the Court of First Instance."

The city fiscal is not any the less a judicial officer simply because he can not issue
warrant of arrest. The power to issue warrant of arrest is not essential ingredient of a
judicial office. This is especially so when, as in cases like the present, the accused is
already under arrest when the city fiscal intervenes and there is no need of issuing an
order of arrest. As to power to commit a detained person to prison, if that be necessary,
the majority are not exactly right when they affirm that the city fiscal is not clothed with it.
I shall come to this later.

However that may be, the city fiscal is a "judicial authority" within the contemplation of
article 125 of the Revised Penal Code. This is the inevitable result from the fact that in
the City of Manila, the city fiscal under the existing scheme of the government is the only
officer to whom the person arrested without warrant may be presented. The majority
opinion admits that the municipal court and the Court of First Instance of Manila "do not
make or conduct a preliminary investigation proper," and criminal complaints are not filed
with them but with the city fiscal. Reasoning from another angle, we reach the same
conclusion. We are to presume that in using the generic term "judicial authorities" — and
in plural — instead of more specific word "justice," "judge," or "court", the lawmaker
intended to include in the operation of the article under consideration all officers who are
named to receive the prisoner from the arresting officer. We have to adopt this
construction if we are to give effect to the law and the rule of court I have cited, and if we
are to avoid what I might call, without meaning offense, an absurdity.

Under no canon of statutory construction is there justification for this Court's opinion that
the police and the city fiscal have to share the six hours fixed in article 125 of the Revised
Penal Code. The language, the nature and the object of this provision unerringly point to
the theory that the six hours mentioned in the Revised Penal Code are meant exclusively
for the police officer who made the arrest. I can discern absolutely no indication of any
intention to have the city fiscal squeeze in his action within this brief period, a period
which, in many cases, is not even sufficient for the police. Read separately or in
conjunction with the entire criminal procedure, article 125 does not furnish the slightest
indication of legislative intent to place the city fiscal and the police under the same
category. Article 125 of the Revised Penal Code was devised for one purpose; section
2465 of the Revised Administrative Code and section 2, Rule 108, of the Rules of Court
for another. Article 125 is a penal provision designed to prevent and punish police
abuses for which the police are noted. The investigation by the city fiscal is strictly and
essentially procedural. It is an integral part of the procedure for bringing the case to trial.

Little reflection will disclose the disastrous consequences which this Court's interpretation
of article 125 of the Revised Penal Code will bring to law enforcement. It nullifies the role
of the fiscal in the administration of criminal law. For sheer lack of time, the release of the
prisoner arrested without warrant will, in a great number of cases, be inevitable, unless
the city fiscal files charges without sufficient and adequate investigation. The alternative
will be for the city fiscal to be on a 24-hour watch lest in his sleep the time for him to act
might slip by.

But this is only a poor alternative. Regardless of any vigilance on his part the opportunity
for the city fiscal to make the required investigation cannot always be assured. The law
gives the police absolute power to detain a prisoner for six hours without incurring penal
liability. There is no law which obliges the police to take the prisoner to the city fiscal
before the expiration of six hours from the time of arrest. There can be cases where the
entire six hours might be consumed by the police in their investigation alone, or just in the
chasing, collection and transportation to the police station of the law breakers. This can
happen in tumultuous and other mob offenses in which many people are involved and
there is necessity of screening the guilty ones.

Supposing then that the police should deliver the prisoner or prisoners to the city fiscal at
the last minute of the six hours through the negligence or by force of circumstances, what
time is there for this functionary to comply with his duty? And even if the city fiscal be
given the chance to start his assigned task at the beginning of the six hour period, can
this time insure proper and just investigation in complicated cases and in cases where
the persons arrested are numerous and witnesses are not on hand to testify? It is well to
remember that the police are not authorized to round up witnesses and take them along
with the prisoners to the city fiscal.

In the light of these consequences I can not imagine that the meaning which this Court
attaches to article 125 of the Revised Penal Code so much as entered the thought of the
legislature. No sound-minded legislature could have intended to create such situation,
which is easy to perceive unless we assume that the legislative purpose was to tie up the
hands of the law and give lawlessness full sway; unless the legislature wanted to coddle
and pamper lawless elements to a calamitous extreme. When the Court says that the
prisoner, after being released at the end of six hours from the time of his arrest may be
rearrested should the city fiscal find sufficient evidence and prefer charges against him, it
takes for granted that underworld characters and hardened criminals are honorable men
who would keep themselves ready and handy for a second arrest.

The Court says:

To consider the city fiscal as the judicial authority referred to in article 125 of the Revised
Penal Code, would be to authorize the detention of a person arrested without warrant for
a period longer than that permitted by law without any process issued by a court of
competent jurisdiction. The city fiscal may not, after due investigation, find sufficient
ground for filing an information or prosecuting the person arrested and release him, after
the latter had been illegally detained for days or weeks without any process issued by a
court or judge.

What is that "proper process" referred to in the above quoted portion of the decision?
Whatever is meant by "proper process," we should note that there is no fundamental
difference between the proceeding before a justice of the peace and the procedure
followed by the city fiscal. There is nothing important the justice of the peace may do in
the interest of the accused in the cases triable before the Court of First Instance which
the city fiscal may not do. If the city fiscal can not issue an order of arrest, the justice of
the peace himself does not do so to give the detention the stamp of legality. At least, I am
aware of no law which tells him to take this step, and I can see no material advantage
which an accused could derive from this ceremony. All the justice of the peace does
which matters to the accused is admit him to bail, if the crime be bailable, and proceed to
an investigation.

But the city fiscal does just that; and if the necessary to order the commitment of the
prisoner pending ascertainment of his guilt, the city fiscal no less than the justice of the
peace or judge of first instance has the authority also, as I propose to show later. In
actual practice, a person arrested without warrant in a regular municipality frequently
suffers greater injustice and is subject to, and frequently goes through, greater hardships
than his counterpart in the City of Manila. We are witness to the common spectacle of
cases being dismissed on motion of the provincial fiscal for want of sufficient evidence
after the prisoner had been bound by the justice of the peace over to the Court of First
Instance for trial and after he had languished in jail for months or years. Prisoner's
detention in that case is not considered illegal.

This anomaly seldom takes place in cities where the preliminary investigation is entrusted
to the city fiscal. Rarely in the City of Manila is a case dropped for insufficiency of
evidence after it has been determined in a preliminary investigation that the prisoner
should be held for trial. On the whole, the method by which the preliminary investigation
is conducted by the prosecuting attorney is more conducive to efficiency, minimizes or
eliminates conflicts of opinion in the existence of probable cause, and better insures
prompt dispatch of criminal cases to the lasting benefit of the prisoner. Only physical
impossibility, as I understand it, is in the way for the adoption of this method throughout
the country.
It is a mistake, in my humble judgment, to confuse a prisoner's detention during the six-
hour period fixed in article 125 of the Revised Penal Code and his continued detention
after he is turned over to the city fiscal. As I have said, article 125 regulates the time
within which a police officer may hold the prisoner under his responsibilty, and it applies
to the police alone. It will hardly be contended that this article, or any other law, or the
constitution limits the period within which a prisoner may be detained after he is delivered
to the justice of the peace. If that is so, and since the city fiscal acts in lieu of a justice of
the peace, there is no sound basis, legal or practical, for denying to the former the same
time and the same freedom of action that is enjoyed by the latter.

By the same token, there is no sound reason for denying to the proceeding by the city
fiscal the same attributes which adhere to the proceeding before the justice of the peace.
After the arresting officer produced the prisoner before the city fiscal, the law takes its
course in the same manner that it does when the examining officer is the justice of the
peace or judge of first instance. From that time the arresting officer ceases to have any
control over the prisoner save to keep him in custody subject to the orders of the city
fiscal. The police step out and the law steps in and extends to the prisoner the mantle of
protection against inquisitory examination by the police. From that time on he enjoys the
rights granted by law to all accused persons — the right to give bail and the right to testify
freely uninfluenced by any fear of violence or other forms of maltreatment. The danger
envisioned by article 125 of the Revised Penal Code is past.

The proceeding before the city fiscal does not lose its character of due process of law by
its being conducted by the city fiscal instead of a judge. For one thing, preliminary
investigation is not a trial. It is a constitutional right. It is purely a matter of statutory
regulation. (Potenciana Dequito vs. Hugo O. Arellano et al., G.R. No. L-1336; 32 C.J.S.,
456.) A judicial proceeding which lies within the power of the legislature to provide or
withhold without infringing the fundamental law may be placed in the hands of any officer
other than a judge.

The jurisdiction to make a preliminary examination or investigation is not even considered

judicial. Judges who perform this function do not do so as judicial officers. Municipal
executives here and in the United States are conferred this power. "The power to
examine and to commit persons charged with crime is not judicial, but is one of the duties
of the conservators of the peace, and it may be, and usually is, vested in persons other
than courts, as, for instance, justices of the peace or police magistrates, or persons
exercising jurisdiction analogous to that exercised by justices of the peace, or who are ex
officio justices of the peace, such as mayors, notaries public, or court commissioners.
Power to hold preliminary examinations may be exercised by the United States
commissioners, and United States district judges who, while making the preliminary
examination, exercise the powers of commissioners only." (16 C.J., 319-320.)

There is no basis for the fear that "the city fiscal may not, after due investigation, find
sufficient ground for filing an information or prosecuting the person arrested and release
him, after the latter had been illegally detained for days or weeks without any process
issued by a court or judge." This statement overlooks the consistent and general practice
heretofore followed with clear, express statutory sanction. Section 2640 of the Revised
Administrative Code authorizes the chief of police of the City of Manila "to take good and
sufficient bail for the appearance before the city court of any person arrested for violation
of any city ordinance," while in cases of violation of any penal law, according to the same
article, the fiscal of the city may, and does, recommend and fix the bail to be required of
the person arrested. Power to fix bail necessarily implies power to recommend or order
the detention of the prisoner if bond is not given. This in its working is no more nor less
than the power to commit an accused to prison pending investigation of this case, power
which the majority erroneously say is not possessed by the city fiscal.
The constitutional and statutory provisions and rules cited by the majority are of general
application which are good only in the absence of specific enactments. The controlling
provisions in the case at bar are sections 2460 and 2465 of the Revised Administrative
Code and section 2, Rule 108, of the Rules of Court.

The decision further says:

A peace officer has no power or authority to arrest a person without a warrant upon
complaint of the offended party or any other person, except in those cases expressly
authorized by law. What he or the complainant may do in such case is to file a complaint
with the city fiscal of Manila, or directly with the justice of the peace courts in
municipalities and other political subdivisions. If the city fiscal has no authority, and he
has not, to order the arrest of a person charged with having committed a public offense
even if he finds, after due investigation, that there is a probability that a crime has been
committed and the accused is guilty thereof, a fortiori a police officer has no authority to
arrest and detain a person charged with an offense upon complaint of the offended party
or other persons even though, after investigation, he becomes convinced that the
accused is guilty of the offense charged.

I do not think the foregoing paragraph is relevant to the instant case. We are not dealing
with the authority of a police officer to make arrest without warrant. There is no question
raised against the legality of the petitioners' arrest. Our problem concerns the time in
which the city fiscal may make his investigation and the scope of his power.

Assuming the above-quoted statement to be pertinent to the issues, the same can not, in
my humble view, pass unchallenged. Under certain, well-defined circumstances, an
officer may and constantly does make arrests without a court order, with or without
complaint. An officer in good faith may arrest without warrant when he believes that a
person is guilty of a crime, and his belief rests on such grounds as would induce an
ordinarily prudent and cautious man, under the circumstances, to believe likewise. (6
C.J.S., 596.) This practice is not derived from any express authority but on the necessity
of catching law violators before they disappear and hide. I have not come across any law
naming specific offenses for committing which the offenders shall be arrested without
court orders.

It is also a general principle of law that an officer need not necessarily have personal
knowledge of the facts constituting the offense himself, in the sense of having seen or
witness the offense himself, but he may, if there are no circumstances known to him
which materially impeach his information, acquire his knowledge from information
imparted to him reliable and credible third persons, or by information together with other
suspicious circumstances. (Id., pp. 599, 600.) This principle ought to serve as a
qualification to the ruling laid down by this Court, that "a peace officer has no power to
arrest a person without a warrant upon complaint of the offended party or any other
person." Under the rule I have quoted, a police officer certainly may arrest a person
pointed to him as having committed a crime provided that the information or complaint
comes from a reliable source and under circumstances as to make an ordinary
reasonable man to believe it to be well-founded. When the victim of a robbery or
aggression, for example, should subsequently spot the criminal and request an officer to
arrest him, the officer would not have to seek or wait for a warrant of arrest before
detaining the man, provided again that there was good ground to believe the truth of the
accusation.

This is a common law rule implanted in the Philippines along with its present form of
government, a rule which has been cited and applied by this Court in a number of cases.
(U.S. vs. Santos, 35 Phil., 853; U.S. vs. Batallones, 23 Phil., 46; U.S. vs. Samonte, 16
Phil., 516.)
Padilla, J., concurs.

SUPPLEMENTARY

TUASON, J., dissenting:

When I filed my dissent from the decision of the Court on the occasion of the denial of the
motion for reconsideration, it was my understanding that there was going to be only a
minute resolution. I make this remark not as a complaint but as my explanation for writing
my dissent in advance of the reasoned resolution. Even then I would contend myself with
resting my dissent on what I have already stated did the resolution contain new
propositions to be answered and disclose misunderstanding of some of many statements
to be cleared. As this is in the nature and reply, topics will be treated without regard to
continuity of thought.

The resolution says that article 30 of the Provisional Law for the Application of the Penal
Code in the Philippines has been repealed by section 17 of Rule 109, but that section 31
is still in force except the last sentence. And so, according to the resolution, is section 2
of Act No. 194.

Without discussing the materiality of those laws, I disagree that they are still in effect.
Like article 30, article 31 of the Provisional Law and section 2 of Act No. 194 deal with
procedure in justice of the peace courts in general covered by the new Rules of Court.
The Rules of Court, in the words of their introductory section, concern "pleading, practice
and procedure in all courts of the Philippines, and the admission to practice law therein."
These Rules are complete revision and a complete re-enactment of the entire field of
procedure, and there is every reason to believe that they were intended to replace, with
some exceptions, all previous laws on the subject, especially Spanish laws which had
long been out of harmony with the new mode of pleading and practice. If the last
sentence of article 31 is repealed, as the resolution says, I see no valid ground for not
holding the other parts of that article repealed so. "Where a later act covers the whole
subject of earlier acts, embraces new provisions, and plainly shows that it was intended,
not only a substitute for the earlier acts, but to cover the whole subject then considered
by the legislature, and to prescribe the only rules in respect thereto, it operates as a
repeal of all former statutes relating to subject matter. The rule applies not only where the
former acts are inconsistent or in conflict with the new act, but also even where the
former acts are not necessarily repugnant in express terms, or in all respects, to the new
act." (59 C.J., 919-920.) "While, as a general rule, implied repeal of a former statute by a
later act is not favored, yet `if the later act covers the whole subject of the earlier act and
is clearly intended as a substitute, it will operate similarly as a repeal of the earlier'."
Posadas vs. National City Bank of New York, 296 U.S., 497; 80 Law ed., 351.)

As the Rules of Court took effect on July 1, 1940, the case of Marcos vs. Cruz, decided
on May 30, 1939, and cited in the resolution, is no authority for the opinion that no law
has been enacted amending or repealing section 2 of Act No. 192.

But this rule of implied repeal holds good only as regards laws of general application.
Another well known rule of the statutory construction tells us that preliminary
investigations in Manila and other chartered cities are to be excluded from the operation
of the Rules of Court. Such investigations are provided for the special enactments which,
because of their special nature and limited application, must be excepted from and
prevail over the general provisions. "When the provisions of a general law, applicable to
the entire state, are repugnant to the provisions of a previously enacted special law,
applicable in a particular locality only, the passage of such general law does dot operate
to repeal the special law, either in whole or in part, unless such appeal is provided for by
express words, or arises by necessary implication. An intention to repeal local acts
generally is not intolerable from the fact that the general acts specifically excludes one
locality from its operation." (59 C. J. . 934.) There is no apparent intention in the Rules of
Court to repeal the laws under which preliminary investigations in Manila have to be
conducted by the city fiscal. The contrary contention is evidenced by section 2 of the rule
108, which provides that "Every justice of the peace, municipal judge or city fiscal shall
have jurisdiction to conduct preliminary investigation of all offenses alleged to have been
committed within his municipality or city, cognizable y the Court of First Instance,"
(Espiritu vs. De La Rosa [July 31, 1947], L-1156, 45 Off. Gaz., 196; Hashim vs. Boncan
[Nov. 22, 1941], 40 Off. Gaz., 13th Supp., p. 13.) In the first of these cases, Mr. Justice
Padilla, speaking for the court, categorically held that the Rules of Court had not repealed
and supplanted the provisions of the Revised Administrative Code regarding the power
and authority of the City Fiscal to conduct preliminary investigation." And in Hashim vs.
Boncan, the Court, through Mr. Justice Laurel, said:

The framers of the Rules could not have intended to brush aside these lessons of
experience and to tear down an institution recognized by law and decision and
sanctioned by years of settled practice. They could not have failed to keep intact in
effective machinery in the administration of criminal justice, as expeditious and simple as
any reform they have infused into the new Rules.

The term "proper court or judge" in section 17, Rule 109, of the Rules of Court 1 should be
interpreted to mean, in the case of Manila, city fiscal, under the last mentioned canon of
interpretation. In Manila, the city fiscal performs the duties devolving on justices of the
peace in regular municipalities in the conduct of preliminary investigations, and all
criminal charges by the police and offended parties are filed with him. And it is admitted
that prisoners arrested without warrant in Manila may be taken only to the city fiscal by
the arresting officer. Let it be noted also in this connection that section 17 of Rule 109
regulates the taking of persons arrested to the court or judge, not the filing of complaint.

In view of this circumstances; in view of the fact that neither the judges of first instance
nor the municipal judges of Manila are authorized to conduct preliminary hearings other
than the purpose of determining the amount of bail (section 2474 of the Revised
Administrative Code), the result of applying section 17 of Rule 109 to Manila would be
virtually to eliminate preliminary investigation in this city of persons arrested without a
warrant. The decision creates a vacuum, a situation which this Court on another occasion
refused to countenance in the forceful language above quoted in Hashim vs. Boncan et.
al. There, the Court continued:

To sustain the theory of repeal is to wipe out these advantages. Not only this. If neither
section 11 nor section 13 of Rule 108 is applicable to the preliminary investigation
conducted by the City Fiscal, as we have above shown, and if existing legislation thereon
is to be deemed repealed, then the matter would be left uncovered by rule or law. There
would thus be a void crying for urgent reform. There would be no such void if the old and
tried procedure is kept in being, untouched by the new Rules. Withal, our own knowledge
of the history of this portion of the Rules here involved does not warrant an interpretation
not contemplated when we drafted and deliberated upon these Rules. And while,
perhaps, the language could have been clearer and the arrangement made more logical,
consideration to expediency and the avowed purpose of preliminary investigation point to
the already trodden path hereinabove indicated.

The resolution has interpreted article 125 of the Revised Penal Code with meticulous
adherence, at best, to its latter, and open disregarded, at worst, of its spirit and of the
pernicious results that follow from such interpretation. The construction which the
majority give to the term "judicial authority" makes it impossible for the city fiscal to
perform his assigned duties with the consequence that for lack of time, malefactors will
have to be turned loose before proper investigation in conducted, or prosecution filed on
insufficient evidence, in many cases.

Nevertheless, I am not pleading, in the case, for a departure from the letter of the law. I
merely submit that the city fiscal, as was emphasized in my dissent from the decision, is
a judicial officer or judicial authority both in the popular and the legal sense of the term,
and that it is unjust, unwarranted by any rule of interpretation, absolutely disastrous to the
administration of criminal law to identify the city fiscal with the police, forcing him to file an
information or release the prisoner within the six hours intended for the arresting officer
alone. I do not contend that the term "judicial authority" be expanded beyond its literal
and legal meaning, although if necessary this might be done to carry out the obvious
purpose of the law, but I take exception to the unjustified restriction and limitation placed
on the meaning of "judicial authority" which not only does violence to the letter and spirit
of article 125 of the Revised Penal Code but leads to an extremely anomalous, not to say
impossible, situation. We do not have to look outside for the meaning of "judicial
authority," as a simple reading of article 125 of the Revised Pena Code and section 2474
of the Revised Administrative Code yields the clear intent of the legislature. This intent,
as manifested in laws that have been amended by section 2465 and section 2474 of the
Revised Administrative Code, crystalized in a system of practice that have received "the
imprint of judicial approval" in various decisions of this Court. (U. S. vs. McGoven, 6 Phil.
261; U. S. vs. Ocampo, 18 Phil. 122;U. S. Carlos, 21 Phil. 553; Hashim vs. Boncan, ante;
Espiritu vs. De la Rosa, ante.)

The resolution, as a solution to the quandary in which it places the city fiscal, would have
him go to Congress. But, as I trust I have shown, the laws on the subject need no
supplementation and implementation. They have no gaps to be filled or ambiguities to be
cleared. The loopholes exist only as a direct result of this Court's new ruling. Section
2474 of the revised Administrative Code and its predecessors have operated smoothly,
without a hitch for nearly half a century. Not even when the arresting officer had 24 hours
to take arrested persons to a judicial authority was it ever imagined, much less asserted,
that the city fiscal had to borrow his time from the police.

The resolution in laying down the rule that the city fiscal has no power to issue warrant of
arrest or "an order or commitment of release by a written warrant containing the ground
on which it is based," thinks it is necessary to advert, "in justice to the city fiscal," that this
official does not pretend to possess such authority, since it is only in the dissenting
opinion, it says, where the claim is made.

At the outset I deny that I attributed to the city fiscal power to issue warrant of arrest; and
did not say in an unqualified manner that he has power to issue commitment. On the first
point, what I said was an implicit aknowledgment of the opposite. Let me quote from the
second paragraph of page 2 of my dissenting opinion what I did say:

The city fiscal is not any the less a judicial officer simply because he can not issue
warrant of arrest. The power to issue warrant of arrest is not essential ingredient of a
judicial office.

On the power to commit prisoners, the same paragraph of my opinion shows what I said.

As to the power to commit a detained person to prison, if that be necessary, the majority
are not exactly right when they affirm that the city fiscal is not clothed with it. It shall come
to this later.

And taking the matter up again on page 11, I said:

Section 2460 of the Revised Administrative Code authorizes the chief of police of the City
of Manila "to take good and sufficient bail for the appearance before the city court of any
person arrested for violation of any city ordinance," while in cases of violation of any
penal law, according to the same article, the fiscal of the city may, and does,
recommended and fix the bail necessarily implies power to recommend or order the
detention of the prisoner if bond is not given. This i its working is no more nor less than
the power to commit an accused to prison pending investigation of his case, power which
the majority erroneously say is not possessed by the city fiscal.

There is nothing in this statement any outright affirmation that the city fiscal has power to
issue commitment papers. There is, on the contrary, an implied admission that the
power, as it is ordinarily exercised by a judge or court, does not exist. I merely submitted
as my personal opinion and interpretation of section 2460 of the Revised Administrative
Code, regardless of what the city fiscal thinks, that it confers upon the latter official a
power which, performed in conjunction with the power of the chief of police, amounts in
its practical operation to a power to commit a man to prison. And I said this in answer to
the sweeping assertion (which apparently was made in the decision in complete oblivion
of section 2460, supra), that to give the city fiscal unlimited time might result in injustice,
since, the decision says,

The city fiscal may not, after due investigation, find sufficient ground for filing an
information or prosecuting the person arrested and release him, after the latter had been
illegal detained for days or weeks without any process issued by a court or judge.

I intended to emphasize by citing section 2460 of the Revised Administrative Code, that a
prisoner could secure his released, pending investigation of his case, in the same
manner and with the same facilities that he could if the complaint or information had been
filed with a court. In citing and stating my interpretation of section 2460 of the Revised
Administrative Code, I wished to show what I considered an erroneous ruling that

If the city fiscal has any doubt as to the probability of the defendant having committed the
offense charged, or is not ready to filed the information on the strength of the testimony
or evidence presented, he should release and not detain the person arrested for a longer
period than that prescribed in the Penal Code.

The majority come back with the assertion that the provisions of section 2460 of the
Revised Penal Administrative Code2

do not authorize, either expressly or by implication, the city fiscal to order the detention of
the prisoner if the bond is not given, not only because they refer to the power of the chief
of police of Manila and not of the city fiscal, but because the only incidental authority
granted to the latter is to recommend the granting of the bail by the chief of police may
release the latter on bail.

I disagree again. I do not believe that a provision is rendered nugatory by the mere fact
that it is foreign to the subject of the main provision or to the title or caption of the section,
if otherwise the language is clear. The title or caption is important only in determining the
meaning of laws which are ambiguous and uncertain. The provision of section 2460 of
the Revised Administrative Code quoted in the resolution does not suffer from such
infirmity.

In truth, the proviso in section 2460 is not alien to the enacting clause. The proviso
relates to the chief of police, conferring on him power of the same nature as does the
enacting clause, with the only difference that, in cases of violations of a municipal
ordinance the chief of police acts independently, on his own responsibility, while in cases
of violations of a penal law, he acts with the advice of the city fiscal and the latter fixes
the amount of bail. The intervention of the city fiscal was only inserted, in my opinion, in
view of the gravity of the latter class of cases.

As to the other reason given in the resolution why, it says, continued detention of a
prisoner beyond six hours is not authorized — namely, that the authority granted to the
city fiscal to recommend the granting of bail by the chief of police and to fix the amount of
bail to be required of the person arrested, is only incidental — my comment is that,
whether the power to take bail or release prisoners belongs to the city fiscal or the chief
of police, is inconsequential. To my mind, the important point is that the accused, as the
resolution admits, may be released on bond. From this power, irrespective of who
possess it, is implied the power to keep the prisoner under detention if he does not file a
bond.

When the resolution concludes that if no bond is given by the person arrested, "neither
the chief of police, who is only authorized to release on bail, has power to detain the
person arrested for more than six hours; not the city fiscal, who is empowered to fix and
recommend the bail to the chief of police has authority to release person arrested in
violation of penal law," I can not follow. In a nutshell, the majority's reasoning, as I
understand it, is that the law authorizes the city fiscal to recommend and fix the bail "in
order that the chief of police may release the latter (prisoner) on bail," but that if the
prisoner does not put up a bond to be set at large just the same. The filing of bail is not a
meaningless gesture which may be taken advantage of by an accused at pleasure with
the same effect. The privilege to put a bond extended to an accused must be the price or
condition of his temporary release. The law does not have to say in so many words that if
he does not put a bond he would be kept in confinement in order that we may be
warranted in reaching this result.

The resolution says that "the purpose of the law in empowering the chief of police of
Manila to release the prisoner if he puts up a bail, is to relieve the officer making the
arrest the necessity of taking the prisoner to the city fiscal, and the latter from filing an
information with the proper courts within the period of time prescribed by law."

I have reflected closely on the meaning of this statement to be sure that I did not
misunderstand it. Unless I still fail to grasp the idea, I think the statement is self-annulling
and self contradictory. The filing of bail cannot relive the arresting officer from the
necessity of taking the prisoner to the city fiscal for the simple reason that such bail, in
cases of violations of penal laws, can be filed only on recommendation of, and its amount
can be fixed by, the city fiscal. In other words, the prisoners necessarily has to be taken
to the city fiscal before any bond can be executed. And it would be underestimating the
intelligence of an accused to expect him to file a bond within six hours from the time of
his arrest if he is aware that, if at the end of those hours the city fiscal had not preferred
any charges against him and no order of commitment had been issued by the proper
judge, he (accused) had to be released. In the face of the latter theory, no prisoner
would, even if he could, perfect a bond within six hours knowing that if he did not, he
would be a free man, at leased temporarily, within what remains of six hours, while if he
did, the bond would enable the city fiscal to take his time to file case against him in court.

The gravamen of the court's argument seems to be that a commitment by a court or

judge is essential to validate the detention beyond the time specified in the Revised
Penal Code. I do not share this opinion. Neither such commitment by a judge nor a
formal complaint is required by the constitution in order that a person may lawfully be
kept in jail pending investigation of his case. An opportunity to file a bond in reasonable
amount satisfies the constitutional demands. Nor does the bail have to be fixed or
granted by a court. Sheriffs and police officers have been authorize by statutory
enactments in other jurisdiction to take bail. At least one court has gone so far as to
uphold, "independently of statue, a practice of long standing on the part of the sheriff to
take bail in criminal cases of prisoners committed for not filing bail, and release them
from confinement." (Dickinson vs. Kingsbury, 2 Day [Com., 1.] Now then, under section
2460 of the Revised Administrative Code, the chief of police of Manila, as already shown,
is allowed to take bail by himself in cases violation of a municipal ordinance and with the
intervention of the city fiscal in other cases. Under this provision and this practice, a
detention prisoner arrested without warrant is not deprived of any privilege of benefit
guaranteed by the constitution. The lack of formal complaint does not in the least
prejudice him or deprive him of any benefit enjoined by his counterparts in the provinces.
On its legal aspect, let it be observed that all the proceedings conducted by the city fiscal
is a preliminary and summary inquiry which is purely a matter of statutory regulation.
Preliminary investigation by the prosecuting attorney when authorized by law is due
process no less than one conducted by a judge. It may be suppressed entirely, and if it
may be suppressed, it may be entrusted to any officer, provided only the constitutional
right to give bail is carefully safeguarded. As this Court has said in Hashim vs.
Boncan, supra, and U.S. vs. Ocampo, supra:

The prosecuting attorney of the city of Manila is presumed to be as competent to conduct

a preliminary investigation as the average person designated by law to conduct a
"preliminary examination" under the provisions of General Orders No. 58. He is a sworn
officer of the court, and the law imposes upon him the duty of making such
investigations. For such purpose the legislature may designate whom it pleases within
the judicial department.

The resolution has taken pain to cite and explain in detail what it says are the laws on
arrests in the Philippines, and takes me to task for quoting from 6 Corpus Juris
Secundum, 599-600 and citing the decisions of this Court. We are told the effect that the
excerpts from my dissenting opinion, quoted on page 16 of the resolution are without any
foundation because, it is said,

they are premised on the wrong assumption that, under the laws in force in our
jurisdiction, a place officer need not have personal knowledge but may arrest a person
without a warrant mere information from other person.

The resolution assumes that those excerpts are predicated on what I call the common
law rule, on Corpus Juris Secundum, and on decisions of the Supreme Court.

I commend a reading to my dissenting opinion. It will be seen that I did not base on those
laws, rules or decisions my statements, "The entire six hours might be consumed by the
police in their investigation alone;" "Even if the city fiscal be given the chance to start his
assigned task at the beginning of the six hour period, this time can not insure proper and
just investigation in complicated cases and in cases where the persons arrested are
numerous and witnesses are not on hand to testify," and "The police is not authorized to
round up witnesses and take them along with the prisoner to the city fiscal." It will be
seen that far from using as my premise those laws, rules and decisions, which I said
contain in brief outlines the powers of police officers to make arrests, I said clearly on
page 12 of my dissenting opinion:

I do not think the foregoing paragraph is relevant to the instant case. We are not dealing
with the authority of the police officer to make arrest without warrant. There is no
question raised against the legality of the prisoner's arrest. Our problem concerns the
time period within which the city fiscal may make his investigation, and the scope of his
power.

It was the majority decision which brought the question of the authority of the police to
make arrests into the discussion. I only met the decision on its own territory though I
regarded that territory as outside the legitimate circle of the present dispute. I cited
Corpus Juris Secundum and decisions of this Court, which I said are derived from
common law, to refute the statement,

a fortiori, a police officer has no authority to arrest and detain a person charged with an
offense upon complaint of the offended party or other person seven though after
investigation, he becomes convinced that the accused is guilty of the offense charged.

I especially wanted to express my disagreement with the thesis in the decision that

A peace officer has no power or authority to arrest a person without a warrant upon
complaint of the offended party or any other person, except in those cases expressly
authorized by law.

It was my humble opinion that the rules I cited and the rules on which the decisions of
this Court are predicated, were general provisions of law applicable to varying and
changed circumstances, and I wanted to deny the insinuation that there were, or there
might be, arrests without warrant "expressly authorized by law"; so I countered that "I
have not come across any law naming specific offenses for committing which the
offenders shall be arrested without court orders." This is my concept of express
provisions authorizing arrests without a warrant.

Section 6 of Rule 109, section 2463 of the Revised Administrative code, and the
provisional Law on the subject of arrest, cited in the resolution in an attempt to show the
error of my citations, can not be a source of comfort to the majority. Rather, I should
think, they reinforce my position, for I believe that the rules and decisions I cited the rules
and laws called to our attentions as the real thing, are in substantial agreement. My
mistake was in not citing, myself, Rule 109, section 6, of the Rules of Court, section 2463
of the Revised Administrative Code, and the Provisional Law. I might have found and
cited them had I thought the matter worthy of more than a passing notice.

Now that the resolution has gone into this subject at length, I shall devote a few more
lines to it at the peril of tiring the reader on what I believe an impertinent topic.

My citation from Corpus Juris and my comment that "this is a common law rule implanted
in the Philippines along with its present form of government, a rule which have been cited
or applied by this Court in a number of case," has met with decision. I am informed that
my quotation is "not a general principle of law or common law rule implanted in the
Philippines"; that "it is the summary of the ruling of several states courts based on
statutory exceptions of the general rule."

I do not think I wise wide off the mark when I said that the common law rule has been
transplanted to this country along with the present form of government and that the rules
and decisions I have quoted spring from the common law. And the majority are not closer
to the marked when they affirmed that my quotation from Corpus Juris Secundum, and
section 2463 of the Revised Administrative Code are purely statutory creation.

There was common law before there were statutes. Common law in England and in the
U. S. preceded statement statutes and constitutions. Statutes and constitutions in
matters of arrest came afterwards, restating, affirming, clarifying, restricting or modifying
the common law.

The English common law has been adopted as the basis of jurisprudence in all the states
of the Union with the exception of Louisiana "where the civil law prevails in civil matters."
(11 Am. Jur., 157.) And
in England, under the common law, sheriffs, justices of the peace, coroners, constables
and watchmen were entrusted with special powers as conservators of the peace, with
authority to arrest felons and persons reasonably suspected of being felons. Whenever a
charge a felony was brought to their notice, supported by reasonable grounds of
suspicion, they were required to apprehend the offenders, or at the least to raise hue and
cry, under the penalty of being indicted for neglect of duty.

See the footnote on pp. 2512-2513, Vol. 2, of Jones Blackstone and the numerous cases
therein cited. It is a footnote appended o the statement of a common law principle which
of the same tenor as that just noted. Treatises on arrest not infrequently start with a
statement of the common law rule and speak of statute and constitutions in the sense I
have mentioned. Moran's Commentaries on the Rules of Court mention of the common
law. (Vol. 2, p. 577) in connection with the power to make arrest without a warrant.

The doctrine taken from 5 C. J., 395-396-that "the right to make arrest without a warrant
is usually regulated by express statute, and, except as authorize by such statutes, an
arrest without a warrant is illegal" — is not at war with the proposition that the authority of
peace officers to make arrest originated at common law and that constitutions and
statutes merely re-stated and defined that the authority with greater precision, naming the
officers who may make arrest, the grades of offenses for, and the circumstances under,
which arrest may be effected, etc. Arrests made by officers not designated or under
circumstances not coming within the terms of the statute or constitution are illegal.

Even then, broad constitutional or statutory inhibition against search and seizure of
property or persons without a warrant has exceptions, as can be inferred from the two
sentences preceding the above sentence quoted in the resolution. This exceptions are
cases where the public security has demanded the search and seizure.

Well established exceptions to this rule have been long recognized in cases of felony,
and of breaches of the peace committed in the presence of the party making the arrest.
(5 C. J., 395.)

Arrests under such circumstances are authorized in spite of statutes and constitutions.
The power to make such arrest is deeply rooted in the unwritten or common law, which
"includes those principles, usage and rules of action applicable to the government and
security of person and property which do not rest for their authority an any express or
positive declaration of the will of the legislature." Although acting at his peril, the powers
to arrest on" probable cause of suspicion" even by a private person are "principles of the
common law, essential to the welfare of society, and not intended to be altered or
impaired by the Constitution." (Wakely vs. Hart, 6 Binn. [Pa.,], 316.)

I have remarked that there is no fundamental difference between my citations, on the

other hand, and section 6 of Rule 109 and section 2463 of the Revised Administrative
Code, Cited by the majority of the Court, on the other hand. There is only a difference in
phraseology. The very case of U. S. vs. Fortaleza relied upon in the resolution speaks of
barrio lieutenant's power to make arrest as not inferior to that usually conferred on peace
officers known to American and English law as constables.

The resolution quotes this from 5 C. J., 404:

It is a general rule, although there are statutory exceptions and variations that a peace
officer has no right to make an arrest without a warrant upon mere information of a third
person.
This is only a part of the sentence. The omitted portion is more important from my point
of view and contradicts the point of view and contradicts the point stressed by the
majority. The complete sentence in.

It is a general rule, although there are exceptions and variations, that a peace officer has
no right to make an arrest without a warrant, upon mere information of a third person or
mere information of committed, that right being limited to arrests for offenses of the grade
of felony, as elsewhere shown.

It will be noticed that the quoted portion relates to arrest for misdemeanor. For further
proof, I invite attention to the title of the Section on page 401, paragraph (a), which reads:
"For Misdemeanor — aa. In General." Let it be noted that the power to arrest for
misdemeanor is different from, and more restricted than, the power to arrest for felony, as
is further demonstrated by the last clause of the full sentence above quoted. This clause
refers us back to section 30, p. 399, which says:

"At common law, (here again common law mentioned), and subject to the provisions of
any applicatory statute, and subject officer may arrest, without a warrant, one whom he
has reasonable or probable grounds to suspect of having committed of felony, even
though the person suspected is innocent, and generally, although no felony has in fact
been committed by any one, although, under some statutes a felony must have been
actually committed, in which case an may arrest, without a warrant, any person he has
reasonable cause for believing to be the person who committed it."

As is elsewhere stated, section 6 of Rule 109 and section 2463 of the Revised
Administrative Code, like the authorities I have cited, do not limit the power of a police
officer to make arrest tho those cases where he saw with his own eyes or heard with his
own ears the commission of an offense. Section 6 of a Rule 109 and section 2463 of the
Revised Administrative Code empowers police officers.

to pursue and arrest, without warrant, any person found in suspicious places or under
suspicious circumstances reasonably tending to show that such person has committed,
or is about to commit, any crime or breach of the peace,

and section 6 of Rule 109 authorizes a peace officer or a private person to make arrest
when

an offense has in fact been committed, and he has reasonable ground to believe that the
person to be arrested has committed it

Rule 28 of the Provincial Law itself empowers judicial and administrative authorities "to
detain, or cause to be detained person whom there is reasonable ground to believe guilty
of some offense" or "when the authority or agent has reason to believe that unlawful act,
amounting to a crime had been committed."

To make arrest on suspicion or on information is not new; it is an everyday practice

absolutely necessary in the of public security and firmly enshrined in the jurisprudence of
all civilized societies. The power to arrest on suspicion or on reasonable ground to
believe that a crime has been committed is authority to arrest on information. Information
coming from reliable sources maybe, and it often is, the basis reasonable ground to
believe that a crime has been committed or of reasonable ground of suspicion that a
person is guilty thereof. Suspicion reasonable ground and information are interviewed
within the same concept.

The necessary elements of the ground of suspicion are that the officer acts upon the
belief of the person's guilt, based either upon facts or circumtances within the officers
own knowledge, or information imparted by a reliable and credible third person provided
there are no circumstances known to the officer sufficient to materially impeach the
information received, It is not every idle and unreasonable charge which will justify an
arrest. An arrest without a warrant is illegal when it is made upon mere suspicion or
belief, unsupported by facts, circumstances, or credible information calculated to produce
such suspicion or belief.

Failure to take these principles into account has led to the belief that:

The investigation which the city fiscal has to make before filing the corresponding
information in cases of persons arrested without a warrant, does not require so much
time as that made upon a complaint of the offended parties for the purpose of securing a
warrant of arrest of the accused. In all cases above enumerated in which the law
authorizes a peace officer to arrest without warrant, the officer making the arrest must
have personal knowledge that the person arrested has committed, is actually committing,
or is about to commit an offense in his presence or within his view, or of the time, place
or circumstances which reasonably tend to show that such person has committed or is
about to commit any crime or breach of the peace. And the testimony of such officer on
the commission on the offense in his presence or within his view by the person arrested,
or on the facts and circumstances that tend reasonably to show that said person has
committed or is about to commit an offense, would be sufficient evidence or basis for the
city fiscal to file an information without prejudice to his presenting of other evidence of the
defendant. (Pp. 16-17 of the Resolution.).

Section 6 of Rule 109 of the Rules of Court and section 2463 of the Revised
Administrative Code, as well as the authorities I have quoted, show the fallacy of the idea
that the arresting officer knows, or should know, all the facts about the offense for the
perpetration, or supposed perpetration, of which he has made the arrest. The resolution
fails to realize that in the great majority of cases an officer makes arrest on information or
suspicion; that "suspicion implies a belief or opinion as to the guilt based upon facts or
circumstances which DO NOT AMOUNT TO PROOF," and that information and
suspicion by their nature require verification and examination of the informers and other
persons and circumstances. While an officer may not act on unsubstantial appearances
and unreasonable stories to justify an arrest without a warrant, obviously in the interest of
security, an officer who has to act on the spot and cannot afford to lose time, has to make
arrest without satisfying himself beyond question that a crime has been committed or that
the person suspected is guilty of such crime. A police officer can seldom make arrest with
personal knowledge of the offense and of the identity of the person arrested sufficient in
itself to convict. To require him to make an arrest only when the evidence he himself can
furnish proves beyond reasonable doubt the guilt of the accused, would "endanger the
safety of society." It would cripple the forces of the law to the point of enabling criminals,
against whom there is only moral conviction or prima facie proof of guilt, to escape. Yet
persons arrested on necessarily innocent so that the prosecuting attorney should release
them. Further and closer investigation not infrequently confirm the suspicion or
information.

The majority of arrests are not as simple as a police officer catching a thief slipping his
hand into another's pocket or snatching someone else's bag, or suprising a merchant
selling above the ceiling price, or seizing a person carrying concealed weapons. Cases of
frequent occurrence which confront the police and the prosecution in a populous and
crime-redden city are a great deal more complicated. They are cases in which the
needed evidence can only be supplied by witnesses, whom the arresting officer or private
persons has not the authority or the time to round up and take to the city fiscal for
examination with in what remains, if any, of six hours.

Let me give two examples.

1. A murder with robbery is reported to the police. An alarm is broadcasted giving a
description of the murderer. Later a police officer is told that the wanted man is in a store.
He proceeds to the store and. besides believing in good faith of his informant, detects in
the man's physical appearance some resemblance to the description given in the alarm.
All this occurs at the holy hours of night.

Should the officer refrain from making an arrest because he is not certain beyond
reasonable doubt of the identity of the suspected murderer? Should the city fiscal order
the release of the prisoner because of insufficiency of evidence and because the six
hours are expiring, or should he prefer formal charges (if that can be done at midnight)
on the strength of evidence which, as likely as not, may be due to a mistaken identify?
Should not the prosecuting attorney be given, as the law clearly intends, adequate time
to summon those who witnessed the crime and who can tell whether the prisoner was the
fugitive?, allowing the prisoner to give bail, if he can.

2. A police officer is attracted by screams from a house where a robbery has been
committed. The officer rushed to the place, finds a man slain, is told that the murderers
have filed. The officer runs in the direction indicated and finds men with arms who, from
appearances, seem to be the perpetrators of the crime. The people who saw the
criminals run off are not sure those are the men they saw. The night was dark, for
criminals like to ply their trade under cover of darkness.

The officer does not, under these circumstances, have to seek an arrest warrant or wait
for one before detaining the suspected persons. To prevent their escape he brings them
to the police station. On the other hand, would the fiscal be justified in filing an
information against such persons on the sole testimony of the police officer? It is not his
duty to wait for more proofs on their probable connection with the crime? Should the city
fiscal file an information on sufficient evidence, or should he as the only alternative, order
the release of the prisoners? Does either course subserve the interest of justice and the
interest of the public? If the arrested persons are innocent, as they may be, is either
interest be served by hasty filing of information against them, or would they rather have a
more thorough investigation of the case?

Cases like these with varying details can be multiplied ad infinitum. They form the bulk of
underworld activities with which the forces of law have to cope and with which the
general public is vitally concerned. The public would not be secure in their homes and in
the pursuit of their occupations if his Court, through unreasoning worship of formalism,
throws down a method, practice and procedure that have been used here and elsewhere
from time immemorial to the end of service and in the interest of public security. The
public security. The public is not much interested in such minor offenses as pick-
pocketing, fist fights and misdemeanors or violations of municipal ordinances for which
arrests can be made by police officers only when committed in their presence or within
their hearing.

The decision of this Court leaves the city fiscal no alternative between releasing
prisoners for insufficiency of evidence due to lack of time to secure more, and filing
information against persons who may be innocent of the crimed charge. The latter
course, defeats directly the very aims of preliminary investigation is to secure the
innocent against hasty, malicious and oppresive prosecution and to protect him from
open and public accusation of crime, and from the trouble, expense, anxiety of a public
trial, and also to protect the State from useless and expensive prosecutions. (Hashim vs.
Boncan, No. 47777, January 13, 1941; 40 Off. Gaz., 13th Supp. p. 13; U.S. vs. Mendez,
4 Phil.; 124; U.S. vs. Grant and Kennedy, 11 Phil. 122; U. S. vs. Marfori, 35 Phil. 666;
People vs. Colon, 47 Phil. 443.) Even more deplorable would be the acquittal of guilty
accused due to lack of proofs which the prosecution, if it had been afforded sufficient
time, could have gathered.
The foregoing goes, too, for the concurring opinion. There is only one more point to
which we wish to address ourselves briefly. The concurring opinion contains this
passage:

Dentro de las 6 horas hay tiempo mas que suficiente para meter en cuenta atoda la
canalla ... Pero; por Dios que no se violen ni pisoteen lasgarantias constitucionales por
miedo a los gangsters!

No one can disagree with this though — as an abstract proposition. The only trouble is
that the opinion does not cite any concrete constitutional provision or guaranty that is
infringed by our dissent. I take the suggestion in the resolution — that "it would be proper
for the interested parties to take the case to Congress, since it can not be done by
judicial legislation" — to be a tacit recognition that the matter is purely one of statute and
that no constitutional impediment is in the way of changing the law and enlarging the
power of the city fiscal in the premises. And let it be said that the objection in the
concurring opinion to this suggestion is rested, not on constitutional grounds but on the
supposition that the law is good enough to be left alone. All which tempts us to
paraphrase the famous apostrophe of that equally famous woman in French history, and
exclaim, "Oh Constitution! what grievous mistakes are committed in thy name!"

The concurring opinion is in error when it sees shadows of fear gangster in our dissent.
Society no less than a natural person has the right to protect itself, and the arrest and
punishment of transgressors of its laws is one of its legitimate means of self-protection
and self-preservation. As far as the insinuation of fear may reflect on those who are duty
bound to have part in such arrest and punishment, the application of criminal laws
without quarters to the end which they are intended to serve, is not in strict logic a sign of
apprehension. Such course, rather than tolerance, leniency or indifference towards
crimes and appeasement of lawless and other elements and groups who wield the power
of physical and verbal relations, calls for exactly the opposite quality of fright.

Padilla, J., concurs.
 Republic of the Philippines
SUPREME COURT
Manila

IN BANK

GR No. L-268 March 28, 1946

NICASIO SALONGA Y RODRIGUEZ, appellant,

v.
JP HOLLAND, in his capacity as Chief of Police and ERIBERTO MISA, in his
capacity as Director of Prisons, appealed.

Messrs. Yatco and Yatco on behalf of the appellant.

Assistant Prosecutor Mr. Edilberto Barot on behalf of the defendant Holland.
No one appeared on behalf of the appealed Director of Prisons.

PAUL, J .:

On January 12, 1946, Fidela Fernandez de Salonga filed a petition for habeas corpus on
behalf of her husband Nicasio Salonga y Rodriguez, alleging that he had been arrested
on January 10, without an arrest warrant and without having been charged with any
crime, and requested the issuance of a writ of habeas corpus ordering the respondent,
Colonel Holland, Chief of Police of Manila, to produce the person of the detainee before
the Court of First Instance of Manila.

On January 14, Judge Ocampo issued the requested order. On the appointed day,
January 15, Colonel Holland presented his answer alleging, among other things, that
Nicasio Salonga was arrested on January 10 at 9:30 in the morning and the next day at
2:58 he was handed over to the Director of Prisons in Muntinglupa, Rizal; that the
detainee is no longer in his power and he requested the denial of the request. In view of
this response, the appellant's attorneys filed an amended application including the
Director of Prisons as one of the respondents.
On January 16, the court ordered the appearance of the Director of Prisons with the
person of the detainee on January 18, at 9 in the morning.

On January 19, the Court of First Instance of Manila dismissed the petition in four of the
appealed Director of Prisons and on January 21, dismissed it regarding the other
appealed, Colonel Holland, as Chief of Police of the City of Manila. The appellant
appealed.

The following facts appear from the file:

Nicaso Salonga y Rodríguez was sent to the Director of Prisons on May 11, 1944, for
having been sentenced by the Court of First Instance of Manila in criminal case No.
94947 for the crime of firing firearms to six months and one day in prison . correctional,
with the costs (Annex A). From that day on, he was confined in the Bilibid jail in
Muntinglupa; he was transferred on June 3, 1944, to Camp Nichols, Rizal, under the
custody of the guards of the same institution; at 3:50 in the afternoon of the same day he
ran away; On January 10, 1946, at 9:30 in the morning, he was arrested on Juan Luna
Street, Manila, by a Manila City policeman and was handed over the next day, January
11, at 2:58 in the morning. late to the Director of Prisons in the Bilibid jail in Muntinglupa,
Rizal, to serve the rest of the sentence not yet suffered.

From May 11, 1944, when he began to suffer his sentence until June 3 of the same year
in which he escaped, 23 days have elapsed. To serve his sentence, he must remain in
the Bilibid prison in Muntingpula, well, about five more months.

The appellant's release is requested because he was arrested without a warrant. The

request is unfounded.

The appellant is nothing more than a simple fugitive from the law and has no right to
demand that the arrester be armed with an arrest warrant: a prisoner who evades the
fulfillment of his sentence, escaping from the surveillance of a police officer or a penal
institution can be arrested, without an arrest warrant, not only by an agent of authority but
also by an individual (article 6, Rule 109, Regulations of the Courts).

This provision is upheld by Anglo-American jurisprudence:

An officer may arrest without a warrant a prisoner who has escaped from custody after
trial and commitment, (McQueen v. Estate, 130 Ala., 136; 30 S., 414; In re Collins, 8 Cal.
A., 367; 97 P., 188 Harper v. Estate, 129 Ga., 770; 59 SE, 792; Ex parte Eldridge, 3 Okl.
Cr., 499; 106 P., 980; 139 Am. SR, 967; 27 LRA, NS, 625; Com.  v . Sheriff, 1 Grant.,
187; Ex parte Sherwood, 29 Tex. A., 334; 15 SW, 812) and it has been held that even a
privateperson may without a warrant arrest a convicted felon who has escaped and is at
large; . . .. (55 CJ, 437.)

An officer may arrest without a warrant a prisoner who has escaped from custody after
trial and commitment, (State v. Finch, 99 SE, 409; 177 NC, 599) and it has been held that
even a private person may, without a warrant, arrest a convicted felon who has escaped
and is at large, since he might also, before conviction, have arrested the felon. (6 CJS,
626.)

As for the appellant's detention in the Muntinglupa prison, the habeas corpus

petition cannot succeed. He is legally confined by virtue of the six-month and one-
day correctional prison sentence imposed on him by the Court of First Instance of Manila
in May. 11,1944, for shooting firearms, violation of the Revised Penal Code. This
sentence handed down during the Japanese occupation is valid and must be fulfilled. (Co
KimCham v. Valdez Tan Keh and Dizon, 75 Phil., 113.)
It is only appropriate to decree the release of the appellant in the action of habeas
corpus if he is illegally detained, and not if "he is legally detained by virtue of a valid
sentence" (32 Jur. Fil., 38).

In this jurisdiction it has been repeatedly declared "that a proper confinement, based on a
final judgment, in which the defendant is convicted and sentenced in a criminal case, is
conclusive proof of the legality of his detention." (Throne Felipe against Director of
Prisons, 24 Jur. Fil., 125 and Quintos against Director of Prisons, 55 Jur. Fil., 324.)

The dismissal of the application without ruling on costs is confirmed.

Moran, Pres., Paras, Jaranilla, Feria and Briones, MM., agree.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-28519             February 17, 1968

RICARDO PARULAN, petitioner,
vs.
DIRECTOR OF PRISONS, respondent.

Ricardo Parulan for and in his own behalf as petitioner.

Office of the Solicitor General for respondent.

RESOLUTION

ANGELES, J.:

          On petition for a writ of habeas corpus, filed by Ricardo Parulan, directed to the
Director of the Bureau of Prisons, praying that the latter be ordered "to release
immediately and without delay the body of the petitioner from unlawful and illegal
confinement", anchoring the relief prayed for on certain allegations in the petition, to the
effect that petitioner's confinement in the state penitentiary at Muntinglupa, Rizal, under
the administrative and supervisory control of the respondent Director of Prisons, is illegal,
for the reason that the sentence of conviction imposed upon said petitioner for the crime
of evasion of service of sentence, penalized under Article 157 of the Revised Penal
Code, was rendered by a court without jurisdiction over his person and of the offense
with which he was charged.

          It appears that the petitioner, as alleged in the petition, was confined in the state
penitentiary at Muntinglupa, Rizal, serving a sentence of life imprisonment which,
however, was commuted to twenty (20) years by the President of the Philippines. In
October, 1964, he was transferred to the military barracks of Fort Bonifacio (formerly Fort
Wm. McKinley) situated at Makati, Rizal, under the custody of the Stockade Officer of the
said military barracks. In that month of October, 1964, while still serving his prison term
as aforesaid, he effected his escape from his confinement. Petitioner was recaptured in
the City of Manila. Prosecuted for the crime of evasion of service of sentence, penalized
under Article 157 of the Revised Penal Code, before the Court of First Instance of Manila,
after due trial, petitioner was found guilty of the offense charged and sentenced
accordingly with the imposable penalty prescribed by law, on August 3, 1966.

          Assuming the correctness of the facts as alleged in the petition, and on the basis
thereof, we shall proceed to discuss the merits of the case regarding the validity and
legality of the decision sentencing the petitioner to a prison term for the crime of evasion
of sentence.

          Settled is the rule that for deprivation of any fundamental or constitutional rights,
lack of jurisdiction of the court to impose the sentence, or excessive penalty affords
grounds for relief by habeas corpus.

          The issue, therefore, as posed in the petition is: Was the Court of First Instance of
Manila with jurisdiction to try and decide the case and to impose the sentence upon the
petitioner, for the offense with which he was charged — evasion of service of sentence?

          Section 14, Rule 110 of the Revised Rules of Court provides:

          Place where action is to be instituted. — (a) In all criminal prosecutions the action
shall be instituted and tried in the court of the municipality of province where the offense
was committed or any of the essential ingredients thereof took place.

          There are crimes which are called transitory or continuing offenses because some
acts material and essential to the crime occur in one province and some in another, in
which case, the rule is settled that the court of either province where any of the essential
ingredients of the crime took place has — jurisdiction to try the case. 1 As Gomez
Orbaneja opines —

          Que habiendo en el delito continuado tantos resultados como hechos

independientes en sentido natural, el principio del resultado no basta para fijar el forum
delicti commisi, y ha de aceptarse que el delito se comete en cualquiera de los lugares
donde se produzca uno de pesos plurales resultados. 2

          There are, however, crimes which although all the elements thereof for its
consummation may have occurred in a single place, yet by reason of the very nature of
the offense committed, the violation of the law is deemed to be continuing. Of the first
class, the crime of estafa or malversation 3 and abduction 4 may be mentioned; and as
belonging to the second class are the crimes of kidnapping and illegal detention where
the deprivation of liberty is persistent and continuing from one place to another 5 and libel
where the libelous matter is published or circulated from one province to another.  6 To this
latter class may also be included the crime of evasion of service of sentence, when the
prisoner in his attempt to evade the service of the sentence imposed upon him by the
courts and thus defeat the purpose of the law, moves from one place to another; for, in
this case, the act of the escaped prisoner is a continuous or series of acts, set on foot by
a single impulse and operated by an unintermittent force, however long it may be. It may
not be validly said that after the convict shall have escaped from the place of his
confinement the crime is fully consummated, for, as long as he continues to evade the
service of his sentence, he is deemed to continue committing the crime, and may be
arrested without warrant, at any place where he may be found. Rule 113 of the Revised
Rules of Court may be invoked in support of this conclusion, for, under section 6[c]
thereof, one of the instances when a person may be arrested without warrant is where he
has escaped from confinement. 7 Undoubtedly, this right of arrest without a warrant is
founded on the principle that at the time of the arrest, the escapee is in the continuous
act of committing a crime — evading the service of his sentence.

          WHEREFORE, the writ is denied. Without costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
Castro and Fernando, JJ., concur.  1äwphï1.ñët

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-14639            March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,

vs.
JUSTO LUKBAN, ET AL., respondents.

Alfonso Mendoza for petitioners.

City Fiscal Diaz for respondents.

MALCOLM, J.:

The annals of juridical history fail to reveal a case quite as remarkable as the one which
this application for habeas corpus submits for decision. While hardly to be expected to be
met with in this modern epoch of triumphant democracy, yet, after all, the cause presents
no great difficulty if there is kept in the forefront of our minds the basic principles of
popular government, and if we give expression to the paramount purpose for which the
courts, as an independent power of such a government, were constituted. The primary
question is — Shall the judiciary permit a government of the men instead of a
government of laws to be set up in the Philippine Islands?

Omitting much extraneous matter, of no moment to these proceedings, but which might
prove profitable reading for other departments of the government, the facts are these:
The Mayor of the city of Manila, Justo Lukban, for the best of all reasons, to exterminate
vice, ordered the segregated district for women of ill repute, which had been permitted for
a number of years in the city of Manila, closed. Between October 16 and October 25,
1918, the women were kept confined to their houses in the district by the police.
Presumably, during this period, the city authorities quietly perfected arrangements with
the Bureau of Labor for sending the women to Davao, Mindanao, as laborers; with some
government office for the use of the coastguard cutters Corregidor and Negros, and with
the Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the
police, acting pursuant to orders from the chief of police, Anton Hohmann and the Mayor
of the city of Manila, Justo Lukban, descended upon the houses, hustled some 170
inmates into patrol wagons, and placed them aboard the steamers that awaited their
arrival. The women were given no opportunity to collect their belongings, and apparently
were under the impression that they were being taken to a police station for an
investigation. They had no knowledge that they were destined for a life in Mindanao.
They had not been asked if they wished to depart from that region and had neither
directly nor indirectly given their consent to the deportation. The involuntary guests were
received on board the steamers by a representative of the Bureau of Labor and a
detachment of Constabulary soldiers. The two steamers with their unwilling passengers
sailed for Davao during the night of October 25.

The vessels reached their destination at Davao on October 29. The women were landed
and receipted for as laborers by Francisco Sales, provincial governor of Davao, and by
Feliciano Yñigo and Rafael Castillo. The governor and the hacendero Yñigo, who appear
as parties in the case, had no previous notification that the women were prostitutes who
had been expelled from the city of Manila. The further happenings to these women and
the serious charges growing out of alleged ill-treatment are of public interest, but are not
essential to the disposition of this case. Suffice it to say, generally, that some of the
women married, others assumed more or less clandestine relations with men, others
went to work in different capacities, others assumed a life unknown and disappeared,
and a goodly portion found means to return to Manila.

To turn back in our narrative, just about the time the Corregidor and the Negros were
putting in to Davao, the attorney for the relatives and friends of a considerable number of
the deportees presented an application for habeas corpus to a member of the Supreme
Court. Subsequently, the application, through stipulation of the parties, was made to
include all of the women who were sent away from Manila to Davao and, as the same
questions concerned them all, the application will be considered as including them. The
application set forth the salient facts, which need not be repeated, and alleged that the
women were illegally restrained of their liberty by Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of Manila, and by certain unknown
parties. The writ was made returnable before the full court. The city fiscal appeared for
the respondents, Lukban and Hohmann, admitted certain facts relative to sequestration
and deportation, and prayed that the writ should not be granted because the petitioners
were not proper parties, because the action should have been begun in the Court of First
Instance for Davao, Department of Mindanao and Sulu, because the respondents did not
have any of the women under their custody or control, and because their jurisdiction did
not extend beyond the boundaries of the city of Manila. According to an exhibit attached
to the answer of the fiscal, the 170 women were destined to be laborers, at good salaries,
on the haciendas of Yñigo and Governor Sales. In open court, the fiscal admitted, in
answer to question of a member of the court, that these women had been sent out of
Manila without their consent. The court awarded the writ, in an order of November 4, that
directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the
city of Manila, Francisco Sales, governor of the province of Davao, and Feliciano Yñigo,
an hacendero of Davao, to bring before the court the persons therein named, alleged to
be deprived of their liberty, on December 2, 1918.

Before the date mentioned, seven of the women had returned to Manila at their own
expense. On motion of counsel for petitioners, their testimony was taken before the clerk
of the Supreme Court sitting as commissioners. On the day named in the order,
December 2nd, 1918, none of the persons in whose behalf the writ was issued were
produced in court by the respondents. It has been shown that three of those who had
been able to come back to Manila through their own efforts, were notified by the police
and the secret service to appear before the court. The fiscal appeared, repeated the facts
more comprehensively, reiterated the stand taken by him when pleading to the original
petition copied a telegram from the Mayor of the city of Manila to the provincial governor
of Davao and the answer thereto, and telegrams that had passed between the Director of
Labor and the attorney for that Bureau then in Davao, and offered certain affidavits
showing that the women were contained with their life in Mindanao and did not wish to
return to Manila. Respondents Sales answered alleging that it was not possible to fulfill
the order of the Supreme Court because the women had never been under his control,
because they were at liberty in the Province of Davao, and because they had married or
signed contracts as laborers. Respondent Yñigo answered alleging that he did not have
any of the women under his control and that therefore it was impossible for him to obey
the mandate. The court, after due deliberation, on December 10, 1918, promulgated a
second order, which related that the respondents had not complied with the original order
to the satisfaction of the court nor explained their failure to do so, and therefore directed
that those of the women not in Manila be brought before the court by respondents
Lukban, Hohmann, Sales, and Yñigo on January 13, 1919, unless the women should, in
written statements voluntarily made before the judge of first instance of Davao or the
clerk of that court, renounce the right, or unless the respondents should demonstrate
some other legal motives that made compliance impossible. It was further stated that the
question of whether the respondents were in contempt of court would later be decided
and the reasons for the order announced in the final decision.

Before January 13, 1919, further testimony including that of a number of the women, of
certain detectives and policemen, and of the provincial governor of Davao, was taken
before the clerk of the Supreme Court sitting as commissioner and the clerk of the Court
of First Instance of Davao acting in the same capacity. On January 13, 1919, the
respondents technically presented before the Court the women who had returned to the
city through their own efforts and eight others who had been brought to Manila by the
respondents. Attorneys for the respondents, by their returns, once again recounted the
facts and further endeavored to account for all of the persons involved in the habeas
corpus. In substance, it was stated that the respondents, through their representatives
and agents, had succeeded in bringing from Davao with their consent eight women; that
eighty-one women were found in Davao who, on notice that if they desired they could
return to Manila, transportation fee, renounced the right through sworn statements; that
fifty-nine had already returned to Manila by other means, and that despite all efforts to
find them twenty-six could not be located. Both counsel for petitioners and the city fiscal
were permitted to submit memoranda. The first formally asked the court to find Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila,
Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila,
Feliciano Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of
Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal
requested that the replica al memorandum de los recurridos, (reply to respondents'
memorandum) dated January 25, 1919, be struck from the record.

In the second order, the court promised to give the reasons for granting the writ
of habeas corpus in the final decision. We will now proceed to do so.

One fact, and one fact only, need be recalled — these one hundred and seventy women
were isolated from society, and then at night, without their consent and without any
opportunity to consult with friends or to defend their rights, were forcibly hustled on board
steamers for transportation to regions unknown. Despite the feeble attempt to prove that
the women left voluntarily and gladly, that such was not the case is shown by the mere
fact that the presence of the police and the constabulary was deemed necessary and that
these officers of the law chose the shades of night to cloak their secret and stealthy acts.
Indeed, this is a fact impossible to refute and practically admitted by the respondents.

With this situation, a court would next expect to resolve the question — By authority of
what law did the Mayor and the Chief of Police presume to act in deporting by duress
these persons from Manila to another distant locality within the Philippine Islands? We
turn to the statutes and we find —

Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of
congress. The Governor-General can order the eviction of undesirable aliens after a
hearing from the Islands. Act No. 519 of the Philippine Commission and section 733 of
the Revised Ordinances of the city of Manila provide for the conviction and punishment
by a court of justice of any person who is a common prostitute. Act No. 899 authorizes
the return of any citizen of the United States, who may have been convicted of vagrancy,
to the homeland. New York and other States have statutes providing for the commitment
to the House of Refuge of women convicted of being common prostitutes. Always a law!
Even when the health authorities compel vaccination, or establish a quarantine, or place
a leprous person in the Culion leper colony, it is done pursuant to some law or order. But
one can search in vain for any law, order, or regulation, which even hints at the right of
the Mayor of the city of Manila or the chief of police of that city to force citizens of the
Philippine Islands — and these women despite their being in a sense lepers of society
are nevertheless not chattels but Philippine citizens protected by the same constitutional
guaranties as are other citizens — to change their domicile from Manila to another
locality. On the contrary, Philippine penal law specifically punishes any public officer who,
not being expressly authorized by law or regulation, compels any person to change his
residence.

In other countries, as in Spain and Japan, the privilege of domicile is deemed so

important as to be found in the Bill of Rights of the Constitution. Under the American
constitutional system, liberty of abode is a principle so deeply imbedded in jurisprudence
and considered so elementary in nature as not even to require a constitutional sanction.
Even the Governor-General of the Philippine Islands, even the President of the United
States, who has often been said to exercise more power than any king or potentate, has
no such arbitrary prerogative, either inherent or express. Much less, therefore, has the
executive of a municipality, who acts within a sphere of delegated powers. If the mayor
and the chief of police could, at their mere behest or even for the most praiseworthy of
motives, render the liberty of the citizen so insecure, then the presidents and chiefs of
police of one thousand other municipalities of the Philippines have the same privilege. If
these officials can take to themselves such power, then any other official can do the
same. And if any official can exercise the power, then all persons would have just as
much right to do so. And if a prostitute could be sent against her wishes and under no
law from one locality to another within the country, then officialdom can hold the same
club over the head of any citizen.

Law defines power. Centuries ago Magna Charta decreed that — "No freeman shall be
taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be
outlawed, or exiled, or any other wise destroyed; nor will we pass upon him nor condemn
him, but by lawful judgment of his peers or by the law of the land. We will sell to no man,
we will not deny or defer to any man either justice or right." (Magna Charta, 9 Hen., 111,
1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high, is above the law.
The courts are the forum which functionate to safeguard individual liberty and to punish
official transgressors. "The law," said Justice Miller, delivering the opinion of the Supreme
Court of the United States, "is the only supreme power in our system of government, and
every man who by accepting office participates in its functions is only the more strongly
bound to submit to that supremacy, and to observe the limitations which it imposes upon
the exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.)
"The very idea," said Justice Matthews of the same high tribunal in another case, "that
one man may be compelled to hold his life, or the means of living, or any material right
essential to the enjoyment of life, at the mere will of another, seems to be intolerable in
any country where freedom prevails, as being the essence of slavery itself." (Yick
Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in issuing the writ
of habeas corpus, and makes clear why we said in the very beginning that the primary
question was whether the courts should permit a government of men or a government of
laws to be established in the Philippine Islands.

What are the remedies of the unhappy victims of official oppression? The remedies of the
citizen are three: (1) Civil action; (2) criminal action, and (3) habeas corpus.

The first is an optional but rather slow process by which the aggrieved party may recoup
money damages. It may still rest with the parties in interest to pursue such an action, but
it was never intended effectively and promptly to meet any such situation as that now
before us.

As to criminal responsibility, it is true that the Penal Code in force in these Islands
provides:

Any public officer not thereunto authorized by law or by regulations of a general character
in force in the Philippines who shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of the judgment of a court, shall
be punished by a fine of not less than three hundred and twenty-five and not more than
three thousand two hundred and fifty pesetas.

Any public officer not thereunto expressly authorized by law or by regulation of a general
character in force in the Philippines who shall compel any person to change his domicile
or residence shall suffer the penalty of destierro and a fine of not less than six hundred
and twenty-five and not more than six thousand two hundred and fifty pesetas. (Art. 211.)

We entertain no doubt but that, if, after due investigation, the proper prosecuting officers
find that any public officer has violated this provision of law, these prosecutors will
institute and press a criminal prosecution just as vigorously as they have defended the
same official in this action. Nevertheless, that the act may be a crime and that the
persons guilty thereof can be proceeded against, is no bar to the instant proceedings. To
quote the words of Judge Cooley in a case which will later be referred to — "It would be a
monstrous anomaly in the law if to an application by one unlawfully confined, ta be
restored to his liberty, it could be a sufficient answer that the confinement was a crime,
and therefore might be continued indefinitely until the guilty party was tried and punished
therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15
Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and
effectual remedy to relieve persons from unlawful restraint, and as the best and only
sufficient defense of personal freedom. Any further rights of the parties are left untouched
by decision on the writ, whose principal purpose is to set the individual at liberty.

Granted that habeas corpus is the proper remedy, respondents have raised three specific
objections to its issuance in this instance. The fiscal has argued (l) that there is a defect
in parties petitioners, (2) that the Supreme Court should not a assume jurisdiction, and
(3) that the person in question are not restrained of their liberty by respondents. It was
finally suggested that the jurisdiction of the Mayor and the chief of police of the city of
Manila only extends to the city limits and that perforce they could not bring the women
from Davao.

The first defense was not presented with any vigor by counsel. The petitioners were
relatives and friends of the deportees. The way the expulsion was conducted by the city
officials made it impossible for the women to sign a petition for habeas corpus. It was
consequently proper for the writ to be submitted by persons in their behalf. (Code of
Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous
regard for personal liberty, even makes it the duty of a court or judge to grant a writ
of habeas corpus if there is evidence that within the court's jurisdiction a person is
unjustly imprisoned or restrained of his liberty, though no application be made therefor.
(Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.

The fiscal next contended that the writ should have been asked for in the Court of First
Instance of Davao or should have been made returnable before that court. It is a general
rule of good practice that, to avoid unnecessary expense and inconvenience, petitions
for habeas corpus should be presented to the nearest judge of the court of first instance.
But this is not a hard and fast rule. The writ of habeas corpus may be granted by the
Supreme Court or any judge thereof enforcible anywhere in the Philippine Islands. (Code
of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall
be made returnable before the Supreme Court or before an inferior court rests in the
discretion of the Supreme Court and is dependent on the particular circumstances. In this
instance it was not shown that the Court of First Instance of Davao was in session, or
that the women had any means by which to advance their plea before that court. On the
other hand, it was shown that the petitioners with their attorneys, and the two original
respondents with their attorney, were in Manila; it was shown that the case involved
parties situated in different parts of the Islands; it was shown that the women might still
be imprisoned or restrained of their liberty; and it was shown that if the writ was to
accomplish its purpose, it must be taken cognizance of and decided immediately by the
appellate court. The failure of the superior court to consider the application and then to
grant the writ would have amounted to a denial of the benefits of the writ.

The last argument of the fiscal is more plausible and more difficult to meet. When the writ
was prayed for, says counsel, the parties in whose behalf it was asked were under no
restraint; the women, it is claimed, were free in Davao, and the jurisdiction of the mayor
and the chief of police did not extend beyond the city limits. At first blush, this is a tenable
position. On closer examination, acceptance of such dictum is found to be perversive of
the first principles of the writ of habeas corpus.

A prime specification of an application for a writ of habeas corpus is restraint of liberty.

The essential object and purpose of the writ of habeas corpus is to inquire into all manner
of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom
if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient.
The forcible taking of these women from Manila by officials of that city, who handed them
over to other parties, who deposited them in a distant region, deprived these women of
freedom of locomotion just as effectively as if they had been imprisoned. Placed in Davao
without either money or personal belongings, they were prevented from exercising the
liberty of going when and where they pleased. The restraint of liberty which began in
Manila continued until the aggrieved parties were returned to Manila and released or until
they freely and truly waived his right.

Consider for a moment what an agreement with such a defense would mean. The chief
executive of any municipality in the Philippines could forcibly and illegally take a private
citizen and place him beyond the boundaries of the municipality, and then, when called
upon to defend his official action, could calmly fold his hands and claim that the person
was under no restraint and that he, the official, had no jurisdiction over this other
municipality. We believe the true principle should be that, if the respondent is within the
jurisdiction of the court and has it in his power to obey the order of the court and thus to
undo the wrong that he has inflicted, he should be compelled to do so. Even if the party
to whom the writ is addressed has illegally parted with the custody of a person before the
application for the writ is no reason why the writ should not issue. If the mayor and the
chief of police, acting under no authority of law, could deport these women from the city
of Manila to Davao, the same officials must necessarily have the same means to return
them from Davao to Manila. The respondents, within the reach of process, may not be
permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile
and to avow the act with impunity in the courts, while the person who has lost her
birthright of liberty has no effective recourse. The great writ of liberty may not thus be
easily evaded.

It must be that some such question has heretofore been presented to the courts for
decision. Nevertheless, strange as it may seem, a close examination of the authorities
fails to reveal any analogous case. Certain decisions of respectable courts are however
very persuasive in nature.

A question came before the Supreme Court of the State of Michigan at an early date as
to whether or not a writ of habeas corpus would issue from the Supreme Court to a
person within the jurisdiction of the State to bring into the State a minor child under
guardianship in the State, who has been and continues to be detained in another State.
The membership of the Michigan Supreme Court at this time was notable. It was
composed of Martin, chief justice, and Cooley, Campbell, and Christiancy, justices. On
the question presented the court was equally divided. Campbell, J., with whom concurred
Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most
distinguished American judges and law-writers, with whom concurred Christiancy, J.,
held that the writ should issue. Since the opinion of Justice Campbell was predicated to a
large extent on his conception of the English decisions, and since, as will hereafter
appear, the English courts have taken a contrary view, only the following eloquent
passages from the opinion of Justice Cooley are quoted:

I have not yet seen sufficient reason to doubt the power of this court to issue the present
writ on the petition which was laid before us. . . .

It would be strange indeed if, at this late day, after the eulogiums of six centuries and a
half have been expended upon the Magna Charta, and rivers of blood shed for its
establishment; after its many confirmations, until Coke could declare in his speech on the
petition of right that "Magna Charta was such a fellow that he will have no sovereign,"
and after the extension of its benefits and securities by the petition of right, bill of rights
and habeas corpus acts, it should now be discovered that evasion of that great clause for
the protection of personal liberty, which is the life and soul of the whole instrument, is so
easy as is claimed here. If it is so, it is important that it be determined without delay, that
the legislature may apply the proper remedy, as I can not doubt they would, on the
subject being brought to their notice. . . .

The second proposition — that the statutory provisions are confined to the case of
imprisonment within the state — seems to me to be based upon a misconception as to
the source of our jurisdiction. It was never the case in England that the court of king's
bench derived its jurisdiction to issue and enforce this writ from the statute. Statutes were
not passed to give the right, but to compel the observance of rights which existed. . . .

The important fact to be observed in regard to the mode of procedure upon this writ is,
that it is directed to and served upon, not the person confined, but his jailor. It does not
reach the former except through the latter. The officer or person who serves it does not
unbar the prison doors, and set the prisoner free, but the court relieves him by compelling
the oppressor to release his constraint. The whole force of the writ is spent upon the
respondent, and if he fails to obey it, the means to be resorted to for the purposes of
compulsion are fine and imprisonment. This is the ordinary mode of affording relief, and if
any other means are resorted to, they are only auxiliary to those which are usual. The
place of confinement is, therefore, not important to the relief, if the guilty party is within
reach of process, so that by the power of the court he can be compelled to release his
grasp. The difficulty of affording redress is not increased by the confinement being
beyond the limits of the state, except as greater distance may affect it. The important
question is, where the power of control exercised? And I am aware of no other remedy.
(In the matter of Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted as authoritative by other courts.
(Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac.
Rep., 1000; Ex parte Young [1892], 50 Fed., 526.)

The English courts have given careful consideration to the subject. Thus, a child had
been taken out of English by the respondent. A writ of habeas corpus was issued by the
Queen's Bench Division upon the application of the mother and her husband directing the
defendant to produce the child. The judge at chambers gave defendant until a certain
date to produce the child, but he did not do so. His return stated that the child before the
issuance of the writ had been handed over by him to another; that it was no longer in his
custody or control, and that it was impossible for him to obey the writ. He was found in
contempt of court. On appeal, the court, through Lord Esher, M. R., said:

A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ
commanded the defendant to have the body of the child before a judge in chambers at
the Royal Courts of Justice immediately after the receipt of the writ, together with the
cause of her being taken and detained. That is a command to bring the child before the
judge and must be obeyed, unless some lawful reason can be shown to excuse the
nonproduction of the child. If it could be shown that by reason of his having lawfully
parted with the possession of the child before the issuing of the writ, the defendant had
no longer power to produce the child, that might be an answer; but in the absence of any
lawful reason he is bound to produce the child, and, if he does not, he is in contempt of
the Court for not obeying the writ without lawful excuse. Many efforts have been made in
argument to shift the question of contempt to some anterior period for the purpose of
showing that what was done at some time prior to the writ cannot be a contempt. But the
question is not as to what was done before the issue of the writ. The question is whether
there has been a contempt in disobeying the writ it was issued by not producing the child
in obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See
also to the same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.],
233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)

A decision coming from the Federal Courts is also of interest. A habeas corpus was
directed to the defendant to have before the circuit court of the District of Columbia three
colored persons, with the cause of their detention. Davis, in his return to the writ, stated
on oath that he had purchased the negroes as slaves in the city of Washington; that, as
he believed, they were removed beyond the District of Columbia before the service of the
writ of habeas corpus, and that they were then beyond his control and out of his custody.
The evidence tended to show that Davis had removed the negroes because he
suspected they would apply for a writ of habeas corpus. The court held the return to be
evasive and insufficient, and that Davis was bound to produce the negroes, and Davis
being present in court, and refusing to produce them, ordered that he be committed to
the custody of the marshall until he should produce the negroes, or be otherwise
discharged in due course of law. The court afterwards ordered that Davis be released
upon the production of two of the negroes, for one of the negroes had run away and been
lodged in jail in Maryland. Davis produced the two negroes on the last day of the term.
(United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also
Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)

We find, therefore, both on reason and authority, that no one of the defense offered by
the respondents constituted a legitimate bar to the granting of the writ of habeas corpus.

There remains to be considered whether the respondent complied with the two orders of
the Supreme Court awarding the writ of habeas corpus, and if it be found that they did
not, whether the contempt should be punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco
Sales, and Feliciano Yñigo to present the persons named in the writ before the court on
December 2, 1918. The order was dated November 4, 1918. The respondents were thus
given ample time, practically one month, to comply with the writ. As far as the record
discloses, the Mayor of the city of Manila waited until the 21st of November before
sending a telegram to the provincial governor of Davao. According to the response of the
attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao
women who desired to return to Manila, but who should not be permitted to do so
because of having contracted debts. The half-hearted effort naturally resulted in none of
the parties in question being brought before the court on the day named.

For the respondents to have fulfilled the court's order, three optional courses were open:
(1) They could have produced the bodies of the persons according to the command of
the writ; or (2) they could have shown by affidavit that on account of sickness or infirmity
those persons could not safely be brought before the court; or (3) they could have
presented affidavits to show that the parties in question or their attorney waived the right
to be present. (Code of Criminal Procedure, sec. 87.) They did not produce the bodies of
the persons in whose behalf the writ was granted; they did not show impossibility of
performance; and they did not present writings that waived the right to be present by
those interested. Instead a few stereotyped affidavits purporting to show that the women
were contended with their life in Davao, some of which have since been repudiated by
the signers, were appended to the return. That through ordinary diligence a considerable
number of the women, at least sixty, could have been brought back to Manila is
demonstrated to be found in the municipality of Davao, and that about this number either
returned at their own expense or were produced at the second hearing by the
respondents.

The court, at the time the return to its first order was made, would have been warranted
summarily in finding the respondents guilty of contempt of court, and in sending them to
jail until they obeyed the order. Their excuses for the non-production of the persons were
far from sufficient. The, authorities cited herein pertaining to somewhat similar facts all
tend to indicate with what exactitude a habeas corpus writ must be fulfilled. For example,
in Gossage's case, supra, the Magistrate in referring to an earlier decision of the Court,
said: "We thought that, having brought about that state of things by his own illegal act, he
must take the consequences; and we said that he was bound to use every effort to get
the child back; that he must do much more than write letters for the purpose; that he must
advertise in America, and even if necessary himself go after the child, and do everything
that mortal man could do in the matter; and that the court would only accept clear proof of
an absolute impossibility by way of excuse." In other words, the return did not show that
every possible effort to produce the women was made by the respondents. That the court
forebore at this time to take drastic action was because it did not wish to see presented
to the public gaze the spectacle of a clash between executive officials and the judiciary,
and because it desired to give the respondents another chance to demonstrate their
good faith and to mitigate their wrong.

In response to the second order of the court, the respondents appear to have become
more zealous and to have shown a better spirit. Agents were dispatched to Mindanao,
placards were posted, the constabulary and the municipal police joined in rounding up
the women, and a steamer with free transportation to Manila was provided. While
charges and counter-charges in such a bitterly contested case are to be expected, and
while a critical reading of the record might reveal a failure of literal fulfillment with our
mandate, we come to conclude that there is a substantial compliance with it. Our finding
to this effect may be influenced somewhat by our sincere desire to see this unhappy
incident finally closed. If any wrong is now being perpetrated in Davao, it should receive
an executive investigation. If any particular individual is still restrained of her liberty, it can
be made the object of separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial compliance with
it, nothing further in this connection remains to be done.

The attorney for the petitioners asks that we find in contempt of court Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose
Rodriguez, and Fernando Ordax, members of the police force of the city of Manila,
Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yñigo, an hacendero of
Davao, and Anacleto Diaz, Fiscal of the city of Manila.

The power to punish for contempt of court should be exercised on the preservative and
not on the vindictive principle. Only occasionally should the court invoke its inherent
power in order to retain that respect without which the administration of justice must falter
or fail. Nevertheless when one is commanded to produce a certain person and does not
do so, and does not offer a valid excuse, a court must, to vindicate its authority, adjudge
the respondent to be guilty of contempt, and must order him either imprisoned or fined.
An officer's failure to produce the body of a person in obedience to a writ of  habeas
corpus when he has power to do so, is a contempt committed in the face of the court. (Ex
parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)

With all the facts and circumstances in mind, and with judicial regard for human
imperfections, we cannot say that any of the respondents, with the possible exception of
the first named, has flatly disobeyed the court by acting in opposition to its authority.
Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of their
chiefs, and while, under the law of public officers, this does not exonerate them entirely, it
is nevertheless a powerful mitigating circumstance. The hacendero Yñigo appears to
have been drawn into the case through a misconstruction by counsel of telegraphic
communications. The city fiscal, Anacleto Diaz, would seem to have done no more than
to fulfill his duty as the legal representative of the city government. Finding him innocent
of any disrespect to the court, his counter-motion to strike from the record the
memorandum of attorney for the petitioners, which brings him into this undesirable
position, must be granted. When all is said and done, as far as this record discloses, the
official who was primarily responsible for the unlawful deportation, who ordered the police
to accomplish the same, who made arrangements for the steamers and the constabulary,
who conducted the negotiations with the Bureau of Labor, and who later, as the head of
the city government, had it within his power to facilitate the return of the unfortunate
women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to
suppress the social evil was commendable. His methods were unlawful. His regard for
the writ of habeas corpus issued by the court was only tardily and reluctantly
acknowledged.

It would be possible to turn to the provisions of section 546 of the Code of Civil
Procedure, which relates to the penalty for disobeying the writ, and in pursuance thereof
to require respondent Lukban to forfeit to the parties aggrieved as much as P400 each,
which would reach to many thousands of pesos, and in addition to deal with him as for a
contempt. Some members of the court are inclined to this stern view. It would also be
possible to find that since respondent Lukban did comply substantially with the second
order of the court, he has purged his contempt of the first order. Some members of the
court are inclined to this merciful view. Between the two extremes appears to lie the
correct finding. The failure of respondent Lukban to obey the first mandate of the court
tended to belittle and embarrass the administration of justice to such an extent that his
later activity may be considered only as extenuating his conduct. A nominal fine will at
once command such respect without being unduly oppressive — such an amount is
P100.

In resume — as before stated, no further action on the writ of habeas corpus is

necessary. The respondents Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are
found not to be in contempt of court. Respondent Lukban is found in contempt of court
and shall pay into the office of the clerk of the Supreme Court within five days the sum of
one hundred pesos (P100). The motion of the fiscal of the city of Manila to strike from the
record the Replica al Memorandum de los Recurridos of January 25, 1919, is granted.
Costs shall be taxed against respondents. So ordered.

In concluding this tedious and disagreeable task, may we not be permitted to express the
hope that this decision may serve to bulwark the fortifications of an orderly government of
laws and to protect individual liberty from illegal encroachment.

Arellano, C.J., Avanceña and Moir, JJ., concur.

Johnson, and Street, JJ., concur in the result.

Separate Opinions

TORRES, J., dissenting:

The undersigned does not entirely agree to the opinion of the majority in the decision of
the habeas corpus proceeding against Justo Lukban, the mayor of this city.

There is nothing in the record that shows the motive which impelled Mayor Lukban to
oblige a great number of women of various ages, inmates of the houses of prostitution
situated in Gardenia Street, district of Sampaloc, to change their residence.

We know no express law, regulation, or ordinance which clearly prohibits the opening of
public houses of prostitution, as those in the said Gardenia Street, Sampaloc. For this
reason, when more than one hundred and fifty women were assembled and placed
aboard a steamer and transported to Davao, considering that the existence of the said
houses of prostitution has been tolerated for so long a time, it is undeniable that the
mayor of the city, in proceeding in the manner shown, acted without authority of any legal
provision which constitutes an exception to the laws guaranteeing the liberty and the
individual rights of the residents of the city of Manila.

We do not believe in the pomp and obstentation of force displayed by the police in
complying with the order of the mayor of the city; neither do we believe in the necessity of
taking them to the distant district of Davao. The said governmental authority, in carrying
out his intention to suppress the segregated district or the community formed by those
women in Gardenia Street, could have obliged the said women to return to their former
residences in this city or in the provinces, without the necessity of transporting them to
Mindanao; hence the said official is obliged to bring back the women who are still in
Davao so that they may return to the places in which they lived prior to their becoming
inmates of certain houses in Gardenia Street.

As regards the manner whereby the mayor complied with the orders of this court, we do
not find any apparent disobedience and marked absence of respect in the steps taken by
the mayor of the city and his subordinates, if we take into account the difficulties
encountered in bringing the said women who were free at Davao and presenting them
before this court within the time fixed, inasmuch as it does not appear that the said
women were living together in a given place. It was not because they were really
detained, but because on the first days there were no houses in which they could live
with a relative independent from one another, and as a proof that they were free a
number of them returned to Manila and the others succeeded in living separate from their
companions who continued living together.
To determine whether or not the mayor acted with a good purpose and legal object and
whether he has acted in good or bad faith in proceeding to dissolve the said community
of prostitutes and to oblige them to change their domicile, it is necessary to consider not
only the rights and interests of the said women and especially of the patrons who have
been directing and conducting such a reproachable enterprise and shameful business in
one of the suburbs of this city, but also the rights and interests of the very numerous
people of Manila where relatively a few transients accidentally and for some days reside,
the inhabitants thereof being more than three hundred thousand (300,000) who can not,
with indifference and without repugnance, live in the same place with so many
unfortunate women dedicated to prostitution.

If the material and moral interests of the community as well as the demands of social
morality are to be taken into account, it is not possible to sustain that it is legal and
permissible to establish a house of pandering or prostitution in the midst of an
enlightened population, for, although there were no positive laws prohibiting the
existence of such houses within a district of Manila, the dictates of common sense and
dictates of conscience of its inhabitants are sufficient to warrant the public administration,
acting correctly, in exercising the inevitable duty of ordering the closing and
abandonment of a house of prostitution ostensibly open to the public, and of obliging the
inmates thereof to leave it, although such a house is inhabited by its true owner who
invokes in his behalf the protection of the constitutional law guaranteeing his liberty, his
individual rights, and his right to property.

A cholera patient, a leper, or any other person affected by a known contagious disease
cannot invoke in his favor the constitutional law which guarantees his liberty and
individual rights, should the administrative authority order his hospitalization, reclusion, or
concentration in a certain island or distant point in order to free from contagious the great
majority of the inhabitants of the country who fortunately do not have such diseases. The
same reasons exist or stand good with respect to the unfortunate women dedicated to
prostitution, and such reasons become stronger because the first persons named have
contracted their diseases without their knowledge and even against their will, whereas
the unfortunate prostitutes voluntarily adopted such manner of living and spontaneously
accepted all its consequences, knowing positively that their constant intercourse with
men of all classes, notwithstanding the cleanliness and precaution which they are wont to
adopt, gives way to the spread or multiplication of the disease known as syphilis, a
venereal disease, which, although it constitutes a secret disease among men and
women, is still prejudicial to the human species in the same degree, scope, and
seriousness as cholera, tuberculosis, leprosy, pest, typhoid, and other contagious
diseases which produce great mortality and very serious prejudice to poor humanity.

If a young woman, instead of engaging in an occupation or works suitable to her sex,

which can give her sufficient remuneration for her subsistence, prefers to put herself
under the will of another woman who is usually older than she is and who is the manager
or owner of a house of prostitution, or spontaneously dedicates herself to this shameful
profession, it is undeniable that she voluntarily and with her own knowledge renounces
her liberty and individual rights guaranteed by the Constitution, because it is evident that
she can not join the society of decent women nor can she expect to get the same respect
that is due to the latter, nor is it possible for her to live within the community or society
with the same liberty and rights enjoyed by every citizen. Considering her dishonorable
conduct and life, she should therefore be comprised within that class which is always
subject to the police and sanitary regulations conducive to the maintenance of public
decency and morality and to the conservation of public health, and for this reason it
should not permitted that the unfortunate women dedicated to prostitution evade the just
orders and resolutions adopted by the administrative authorities.

It is regrettable that unnecessary rigor was employed against the said poor women, but
those who have been worrying so much about the prejudice resulting from a
governmental measure, which being a very drastic remedy may be considered arbitrary,
have failed to consider with due reflection the interests of the inhabitants of this city in
general and particularly the duties and responsibilities weighing upon the authorities
which administer and govern it; they have forgotten that many of those who criticize and
censure the mayor are fathers of families and are in duty bound to take care of their
children.

For the foregoing reasons, we reach the conclusion that when the petitioners, because of
the abnormal life they assumed, were obliged to change their residence not by a private
citizen but by the mayor of the city who is directly responsible for the conservation of
public health and social morality, the latter could take the step he had taken, availing
himself of the services of the police in good faith and only with the purpose of protecting
the immense majority of the population from the social evils and diseases which the
houses of prostitution situated in Gardenia Street have been producing, which houses
have been constituting for years a true center for the propagation of general diseases
and other evils derived therefrom. Hence, in ordering the dissolution and abandonment of
the said houses of prostitution and the change of the domicile of the inmates thereof, the
mayor did not in bad faith violate the constitutional laws which guarantees the liberty and
the individual rights of every Filipino, inasmuch as the women petitioners do not
absolutely enjoy the said liberty and rights, the exercise of which they have voluntarily
renounced in exchange for the free practice of their shameful profession.

In very highly advanced and civilized countries, there have been adopted by the
administrative authorities similar measures, more or less rigorous, respecting prostitutes,
considering them prejudicial to the people, although it is true that in the execution of such
measures more humane and less drastic procedures, fortiter in re et suaviter in forma,
have been adopted, but such procedures have always had in view the ultimate object of
the Government for the sake of the community, that is, putting an end to the living
together in a certain place of women dedicated to prostitution and changing their
domicile, with the problematical hope that they adopt another manner of living which is
better and more useful to themselves and to society.

In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo
Lukban is obliged to take back and restore the said women who are at present found in
Davao, and who desire to return to their former respective residences, not in Gardenia
Street, Sampaloc District, with the exception of the prostitutes who should expressly
make known to the clerk of court their preference to reside in Davao, which manifestation
must be made under oath. This resolution must be transmitted to the mayor within the
shortest time possible for its due compliance. The costs shall be charged de officio.

ARAULLO, J., dissenting in part:

I regret to dissent from the respectable opinion of the majority in the decision rendered in
these proceedings, with respect to the finding as to the importance of the contempt
committed, according to the same decision, by Justo Lukban, Mayor of the city of Manila,
and the consequent imposition upon him of a nominal fine of P100.

In the said decision, it is said:

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco
Sales, and Feliciano Yñigo to present the persons named in the writ before the court on
December 2, 1918. The order was dated November 4, 1918. The respondents were thus
given ample time, practically one month, to comply with the writ. As far as the record
disclosed, the mayor of the city of Manila waited until the 21st of November before
sending a telegram to the provincial governor of Davao. According to the response of the
Attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao
women who desired to return to Manila, but who should not be permitted to do so
because of having contracted debts. The half-hearted effort naturally resulted in none of
the parties in question being brought before the court on the day named.

In accordance with section 87 of General Orders No. 58, as said in the same decision,
the respondents, for the purpose of complying with the order of the court, could have, (1)
produced the bodies of the persons according to the command of the writ; (2) shown by
affidavits that on account of sickness or infirmity the said women could not safely be
brought before this court; and (3) presented affidavits to show that the parties in question
or their lawyers waived their right to be present. According to the same decision, the said
respondents ". . . did not produce the bodies of the persons in whose behalf the writ was
granted; did not show impossibility of performance; and did not present writings, that
waived the right to be present by those interested. Instead, a few stereotyped affidavits
purporting to show that the women were contented with their life in Davao, some of which
have since been repudiated by the signers, were appended to the return. That through
ordinary diligence a considerable number of the women, at least sixty, could have been
brought back to Manila is demonstrated by the fact that during this time they were easily
to be found in the municipality of Davao, and that about this number either returned at
their own expense or were produced at the second hearing by the respondents."

The majority opinion also recognized that, "That court, at the time the return to its first
order was made, would have been warranted summarily in finding the respondent guilty
of contempt of court, and in sending them to jail until they obeyed the order. Their
excuses for the non production of the persons were far from sufficient." To corroborate
this, the majority decision cites the case of the Queen vs. Barnardo, Gossage's Case
([1890], 24 Q. B. D., 283) and added "that the return did not show that every possible
effort to produce the women was made by the respondents."

When the said return by the respondents was made to this court in banc and the case
discussed, my opinion was that Mayor Lukban should have been immediately punished
for contempt. Nevertheless, a second order referred to in the decision was issued on
December 10, 1918, requiring the respondents to produce before the court, on January
13, 1919, the women who were not in Manila, unless they could show that it was
impossible to comply with the said order on the two grounds previously mentioned. With
respect to this second order, the same decision has the following to say:

In response to the second order of the court, the respondents appear to have become
more zealous and to have shown a better spirit. Agents were dispatched to Mindanao,
placards were posted, the constabulary and the municipal police joined in rounding up
the women, and a steamer with free transportation to Manila was provided. While
charges and countercharges in such a bitterly contested case are to be expected, and
while a critical reading of the record might reveal a failure of literal fulfillment with our
mandate, we come to conclude that there is a substantial compliance with it.

I do not agree to this conclusion.

The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the
date of the issuance of the first order on November 4th till the 21st of the same month
before taking the first step for compliance with the mandate of the said order; he waited
till the 21st of November, as the decision says, before he sent a telegram to the
provincial governor o f Davao and naturally this half-hearted effort, as is so qualified in
the decision, resulted in that none of the women appeared before this court on December
2nd. Thus, the said order was not complied with, and in addition to this noncompliance
there was the circumstances that seven of the said women having returned to Manila at
their own expense before the said second day of December and being in the
antechamber of the court room, which fact was known to Chief of Police Hohmann, who
was then present at the trial and to the attorney for the respondents, were not produced
before the court by the respondents nor did the latter show any effort to present them, in
spite of the fact that their attention was called to this particular by the undersigned.

The result of the said second order was, as is said in the same decision, that the
respondents, on January 13th, the day fixed for the protection of the women before this
court, presented technically the seven (7) women above-mentioned who had returned to
the city at their own expense and the other eight (8) women whom the respondents
themselves brought to Manila, alleging moreover that their agents and subordinates
succeeded in bringing them from Davao with their consent; that in Davao they found
eighty-one (81) women who, when asked if they desired to return to Manila with free
transportation, renounced such a right, as is shown in the affidavits presented by the
respondents to this effect; that, through other means, fifty-nine (59) women have already
returned to Manila, but notwithstanding the efforts made to find them it was not possible
to locate the whereabouts of twenty-six (26) of them. Thus, in short, out of the one
hundred and eighty-one (181) women who, as has been previously said, have been
illegally detained by Mayor Lukban and Chief of Police Hohmann and transported to
Davao against their will, only eight (8) have been brought to Manila and presented before
this court by the respondents in compliance with the said two orders. Fifty-nine (59) of
them have returned to Manila through other means not furnished by the respondents,
twenty-six of whom were brought by the attorney for the petitioners, Mendoza, on his
return from Davao. The said attorney paid out of his own pocket the transportation of the
said twenty-six women. Adding to these numbers the other seven (7) women who
returned to this city at their own expense before January 13 we have a total of sixty-six
(66), which evidently proves, on the one hand, the falsity of the allegation by the
respondents in their first answer at the trial of December 2, 1918, giving as one of the
reasons for their inability to present any of the said women that the latter were content
with their life in Mindanao and did not desire to return to Manila; and, on the other hand,
that the respondents, especially the first named, that is Mayor Justo Lukban, who acted
as chief and principal in all that refers to the compliance with the orders issued by this
court, could bring before December 2nd, the date of the first hearing of the case, as well
as before January 13th, the date fixed for the compliance with the second order, if not the
seventy-four (74) women already indicated, at least a great number of them, or at least
sixty (60) of them, as is said in the majority decision, inasmuch as the said respondent
could count upon the aid of the Constabulary forces and the municipal police, and had
transportation facilities for the purpose. But the said respondent mayor brought only eight
(8) of the women before this court on January 13th. This fact can not, in my judgment,
with due respect to the majority opinion, justify the conclusion that the said respondent
has substantially complied with the second order of this court, but on the other hand
demonstrates that he had not complied with the mandate of this court in its first and
second orders; that neither of the said orders has been complied with by the respondent
Justo Lukban, Mayor of the city of Manila, who is, according to the majority decision,
principally responsible for the contempt, to which conclusion I agree. The conduct of the
said respondent with respect to the second order confirms the contempt committed by
non-compliance with the first order and constitutes a new contempt because of non-
compliance with the second, because of the production of only eight (8) of the one
hundred and eighty-one (181) women who have been illegally detained by virtue of his
order and transported to Davao against their will, committing the twenty-six (26) women
who could not be found in Davao, demonstrates in my opinion that, notwithstanding the
nature of the case which deals with the remedy of habeas corpus, presented by the
petitioners and involving the question whether they should or not be granted their liberty,
the respondent has not given due attention to the same nor has he made any effort to
comply with the second order. In other words, he has disobeyed the said two orders; has
despised the authority of this court; has failed to give the respect due to justice; and
lastly, he has created and placed obstacles to the administration of justice in the
said habeas corpus proceeding, thus preventing, because of his notorious disobedience,
the resolution of the said proceeding with the promptness which the nature of the same
required.

Contempt of court has been defined as a despising of the authority, justice, or dignity of
the court; and he is guilty of contempt whose conduct is such as tends to bring the
authority and administration of the law into disrespect or disregard. . . ." (Ruling Case
Law, vol. 6, p. 488.)

It is a general principle that a disobedience of any valid order of the court constitutes
contempt, unless the defendant is unable to comply therewith. (Ruling Case Law, vol. 6,
p. 502.)

It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or

attempt to obstruct the service of legal process. If a person hinders or prevents the
service of process by deceiving the officer or circumventing him by any means, the result
is the same as though he had obstructed by some direct means. (Ruling Case Law, vol.
6, p. 503.)

While it may seem somewhat incongruous to speak, as the courts often do, of enforcing
respect for the law and for the means it has provided in civilized communities for
establishing justice, since true respect never comes in that way, it is apparent
nevertheless that the power to enforce decorum in the courts and obedience to their
orders and just measures is so essentially a part of the life of the courts that it would be
difficult to conceive of their usefulness or efficiency as existing without it. Therefore it may
be said generally that where due respect for the courts as ministers of the law is wanting,
a necessity arises for the use of compulsion, not, however, so much to excite individual
respect as to compel obedience or to remove an unlawful or unwarranted interference
with the administration of justice. (Ruling Case Law, vol. 6, p. 487.)

The power to punish for contempt is as old as the law itself, and has been exercised from
the earliest times. In England it has been exerted when the contempt consisted of
scandalizing the sovereign or his ministers, the law-making power, or the courts. In the
American states the power to punish for contempt, so far as the executive department
and the ministers of state are concerned, and in some degree so far as the legislative
department is concerned, is obsolete, but it has been almost universally preserved so far
as regards the judicial department. The power which the courts have of vindicating their
own authority is a necessary incident to every court of justice, whether of record or not;
and the authority for issuing attachments in a proper case for contempts out of court, it
has been declared, stands upon the same immemorial usage as supports the whole
fabric of the common law. . . . (Ruling Case Law, vol. 6, p. 489.)

The undisputed importance of the orders of this court which have been disobeyed; the
loss of the prestige of the authority of the court which issued the said orders, which loss
might have been caused by noncompliance with the same orders on the part of the
respondent Justo Lukban; the damages which might have been suffered by some of the
women illegally detained, in view of the fact that they were not brought to Manila by the
respondents to be presented before the court and of the further fact that some of them
were obliged to come to this city at their own expense while still others were brought to
Manila by the attorney for the petitioners, who paid out of his own pocket the
transportation of the said women; and the delay which was necessarily incurred in the
resolution of the petition interposed by the said petitioners and which was due to the fact
that the said orders were not opportunately and duly obeyed and complied with, are
circumstances which should be taken into account in imposing upon the respondent
Justo Lukban the penalty corresponding to the contempt committed by him, a penalty
which, according to section 236 of the Code of Civil Procedure, should consist of a fine
not exceeding P1,000 or imprisonment not exceeding months, or both such fine and
imprisonment. In the imposition of the penalty, there should also be taken into
consideration the special circumstance that the contempt was committed by a public
authority, the mayor of the city of Manila, the first executive authority of the city, and
consequently, the person obliged to be the first in giving an example of obedience and
respect for the laws and the valid and just orders of the duly constituted authorities as
well as for the orders emanating from the courts of justice, and in giving help and aid to
the said courts in order that justice may be administered with promptness and rectitude.

I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be
imposed upon the respondent Justo Lukban a fine of five hundred pesos (P500), and all
the costs should be charged against him. Lastly, I believe it to be my duty to state here
that the records of this proceeding should be transmitted to the Attorney-General in order
that, after a study of the same and deduction from the testimony which he may deem
necessary, and the proper transmittal of the same to the fiscal of the city of Manila and to
the provincial fiscal of Davao, both the latter shall present the corresponding informations
for the prosecution and punishment of the crimes which have been committed on the
occasion when the illegal detention of the women was carried into effect by Mayor Justo
Lukban of the city of Manila and Chief of Police Anton Hohmann, and also of those
crimes committed by reason of the same detention and while the women were in Davao.
This will be one of the means whereby the just hope expressed in the majority decision
will be realized, that is, that in the Philippine Islands there should exist a government of
laws and not a government of men and that this decision may serve to bulwark the
fortifications of an orderly Government of laws and to protect individual liberty from illegal
encroachments.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-19550             June 19, 1967

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL

BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE
LUKBAN, in his capacity as Acting Director, National Bureau of Investigation;
SPECIAL PROSECUTORS PEDRO D. CENZON, EFREN I. PLANA and MANUEL
VILLAREAL, JR. and ASST. FISCAL MANASES G. REYES; JUDGE AMADO ROAN,
Municipal Court of Manila; JUDGE ROMAN CANSINO, Municipal Court of Manila;
JUDGE HERMOGENES CALUAG, Court of First Instance of Rizal-Quezon City
Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of Quezon
City, respondents.

Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for
petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de
Castro, Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason and
Solicitor C. Padua for respondents.

CONCEPCION, C.J.:

Upon application of the officers of the government named on the margin 1 — hereinafter
referred to as Respondents-Prosecutors — several judges 2 — hereinafter referred to as
Respondents-Judges — issued, on different dates, 3 a total of 42 search warrants against
petitioners herein4 and/or the corporations of which they were officers,5 directed to the
any peace officer, to search the persons above-named and/or the premises of their
offices, warehouses and/or residences, and to seize and take possession of the following
personal property to wit:

Books of accounts, financial records, vouchers, correspondence, receipts, ledgers,

journals, portfolios, credit journals, typewriters, and other documents and/or papers
showing all business transactions including disbursements receipts, balance sheets and
profit and loss statements and Bobbins (cigarette wrappers).

as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense,"
or "used or intended to be used as the means of committing the offense," which is
described in the applications adverted to above as "violation of Central Bank Laws, Tariff
and Customs Laws, Internal Revenue (Code) and the Revised Penal Code."

Alleging that the aforementioned search warrants are null and void, as contravening the
Constitution and the Rules of Court — because, inter alia: (1) they do not describe with
particularity the documents, books and things to be seized; (2) cash money, not
mentioned in the warrants, were actually seized; (3) the warrants were issued to fish
evidence against the aforementioned petitioners in deportation cases filed against them;
(4) the searches and seizures were made in an illegal manner; and (5) the documents,
papers and cash money seized were not delivered to the courts that issued the warrants,
to be disposed of in accordance with law — on March 20, 1962, said petitioners filed with
the Supreme Court this original action for certiorari, prohibition, mandamus and
injunction, and prayed that, pending final disposition of the present case, a writ of
preliminary injunction be issued restraining Respondents-Prosecutors, their agents
and /or representatives from using the effects seized as aforementioned or any copies
thereof, in the deportation cases already adverted to, and that, in due course, thereafter,
decision be rendered quashing the contested search warrants and declaring the same
null and void, and commanding the respondents, their agents or representatives to return
to petitioners herein, in accordance with Section 3, Rule 67, of the Rules of Court, the
documents, papers, things and cash moneys seized or confiscated under the search
warrants in question.

In their answer, respondents-prosecutors alleged, 6 (1) that the contested search

warrants are valid and have been issued in accordance with law; (2) that the defects of
said warrants, if any, were cured by petitioners' consent; and (3) that, in any event, the
effects seized are admissible in evidence against herein petitioners, regardless of the
alleged illegality of the aforementioned searches and seizures.

On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the
petition. However, by resolution dated June 29, 1962, the writ was partially lifted or
dissolved, insofar as the papers, documents and things seized from the offices of the
corporations above mentioned are concerned; but, the injunction was maintained as
regards the papers, documents and things found and seized in the residences of
petitioners herein.7

Thus, the documents, papers, and things seized under the alleged authority of the
warrants in question may be split into two (2) major groups, namely: (a) those found and
seized in the offices of the aforementioned corporations, and (b) those found and seized
in the residences of petitioners herein.

As regards the first group, we hold that petitioners herein have no cause of action to
assail the legality of the contested warrants and of the seizures made in pursuance
thereof, for the simple reason that said corporations have their respective personalities,
separate and distinct from the personality of herein petitioners, regardless of the amount
of shares of stock or of the interest of each of them in said corporations, and whatever
the offices they hold therein may be. 8 Indeed, it is well settled that the legality of a seizure
can be contested only by the party whose rights have been impaired thereby, 9 and that
the objection to an unlawful search and seizure is purely personal and cannot be availed
of by third parties. 10 Consequently, petitioners herein may not validly object to the use in
evidence against them of the documents, papers and things seized from the offices and
premises of the corporations adverted to above, since the right to object to the admission
of said papers in evidence belongs exclusively to the corporations, to whom the seized
effects belong, and may not be invoked by the corporate officers in proceedings against
them in their individual capacity. 11 Indeed, it has been held:

. . . that the Government's action in gaining possession of papers belonging to

the corporation did not relate to nor did it affect the personal defendants. If these papers
were unlawfully seized and thereby the constitutional rights of or any one were invaded,
they were the rights of the corporation and not the rights of the other defendants. Next, it
is clear that a question of the lawfulness of a seizure can be raised only by one whose
rights have been invaded. Certainly, such a seizure, if unlawful, could not affect the
constitutional rights of defendants whose property had not been seized or the privacy of
whose homes had not been disturbed; nor could they claim for themselves the benefits of
the Fourth Amendment, when its violation, if any, was with reference to the rights
of another. Remus vs. United States (C.C.A.)291 F. 501, 511. It follows, therefore, that
the question of the admissibility of the evidence based on an alleged unlawful search and
seizure does not extend to the personal defendants but
embraces only the corporation whose property was taken. . . . (A Guckenheimer & Bros.
Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.)

With respect to the documents, papers and things seized in the residences of petitioners
herein, the aforementioned resolution of June 29, 1962, lifted the writ of preliminary
injunction previously issued by this Court, 12 thereby, in effect, restraining herein
Respondents-Prosecutors from using them in evidence against petitioners herein.

In connection with said documents, papers and things, two (2) important questions need
be settled, namely: (1) whether the search warrants in question, and the searches and
seizures made under the authority thereof, are valid or not, and (2) if the answer to the
preceding question is in the negative, whether said documents, papers and things may
be used in evidence against petitioners herein. 1äwphï1.ñët

Petitioners maintain that the aforementioned search warrants are in the nature of general
warrants and that accordingly, the seizures effected upon the authority there of are null
and void. In this connection, the Constitution 13 provides:

The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue
but upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be seized.

Two points must be stressed in connection with this constitutional mandate, namely: (1)
that no warrant shall issue but upon probable cause, to be determined by the judge in the
manner set forth in said provision; and (2) that the warrant shall particularly describe the
things to be seized.

None of these requirements has been complied with in the contested warrants. Indeed,
the same were issued upon applications stating that the natural and juridical person
therein named had committed a "violation of Central Ban Laws, Tariff and Customs Laws,
Internal Revenue (Code) and Revised Penal Code." In other words, no specific offense
had been alleged in said applications. The averments thereof with respect to the offense
committed were abstract. As a consequence, it was impossible for the judges who issued
the warrants to have found the existence of probable cause, for the same presupposes
the introduction of competent proof that the party against whom it is sought has
performed particular acts, or committed specific omissions, violating a given provision of
our criminal laws. As a matter of fact, the applications involved in this case do not allege
any specific acts performed by herein petitioners. It would be the legal heresy, of the
highest order, to convict anybody of a "violation of Central Bank Laws, Tariff and
Customs Laws, Internal Revenue (Code) and Revised Penal Code," — as alleged in the
aforementioned applications — without reference to any determinate provision of said
laws or

To uphold the validity of the warrants in question would be to wipe out completely one of
the most fundamental rights guaranteed in our Constitution, for it would place the sanctity
of the domicile and the privacy of communication and correspondence at the mercy of
the whims caprice or passion of peace officers. This is precisely the evil sought to be
remedied by the constitutional provision above quoted — to outlaw the so-called general
warrants. It is not difficult to imagine what would happen, in times of keen political strife,
when the party in power feels that the minority is likely to wrest it, even though by legal
means.

Such is the seriousness of the irregularities committed in connection with the disputed
search warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the
former Rules of Court 14 by providing in its counterpart, under the Revised Rules of
Court 15 that "a search warrant shall not issue but upon probable cause in connection with
one specific offense." Not satisfied with this qualification, the Court added thereto a
paragraph, directing that "no search warrant shall issue for more than one specific
offense."

The grave violation of the Constitution made in the application for the contested search
warrants was compounded by the description therein made of the effects to be searched
for and seized, to wit:

Books of accounts, financial records, vouchers, journals, correspondence, receipts,

ledgers, portfolios, credit journals, typewriters, and other documents and/or papers
showing all business transactions including disbursement receipts, balance sheets and
related profit and loss statements.

Thus, the warrants authorized the search for and seizure of records pertaining to all
business transactions of petitioners herein, regardless of whether the transactions
were legal or illegal. The warrants sanctioned the seizure of all records of the petitioners
and the aforementioned corporations, whatever their nature, thus openly contravening
the explicit command of our Bill of Rights — that the things to be seized
be particularly described — as well as tending to defeat its major objective: the
elimination of general warrants.

Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors

maintain that, even if the searches and seizures under consideration were
unconstitutional, the documents, papers and things thus seized are admissible in
evidence against petitioners herein. Upon mature deliberation, however, we are
unanimously of the opinion that the position taken in the Moncado case must be
abandoned. Said position was in line with the American common law rule, that the
criminal should not be allowed to go free merely "because the constable has
blundered," 16 upon the theory that the constitutional prohibition against unreasonable
searches and seizures is protected by means other than the exclusion of evidence
unlawfully obtained, 17 such as the common-law action for damages against the searching
officer, against the party who procured the issuance of the search warrant and against
those assisting in the execution of an illegal search, their criminal punishment,
resistance, without liability to an unlawful seizure, and such other legal remedies as may
be provided by other laws.

However, most common law jurisdictions have already given up this approach and
eventually adopted the exclusionary rule, realizing that this is the only practical means of
enforcing the constitutional injunction against unreasonable searches and seizures. In
the language of Judge Learned Hand:

As we understand it, the reason for the exclusion of evidence competent as such, which
has been unlawfully acquired, is that exclusion is the only practical way of enforcing the
constitutional privilege. In earlier times the action of trespass against the offending official
may have been protection enough; but that is true no longer. Only in case the
prosecution which itself controls the seizing officials, knows that it cannot profit by their
wrong will that wrong be repressed.18

In fact, over thirty (30) years before, the Federal Supreme Court had already declared:

If letters and private documents can thus be seized and held and used in evidence
against a citizen accused of an offense, the protection of the 4th Amendment, declaring
his rights to be secure against such searches and seizures, is of no value, and, so far as
those thus placed are concerned, might as well be stricken from the Constitution. The
efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as
they are, are not to be aided by the sacrifice of those great principles established by
years of endeavor and suffering which have resulted in their embodiment in the
fundamental law of the land.19

This view was, not only reiterated, but, also, broadened in subsequent decisions on the
same Federal Court. 20 After reviewing previous decisions thereon, said Court held,
in Mapp vs. Ohio (supra.):

. . . Today we once again examine the Wolf's constitutional documentation of the right of
privacy free from unreasonable state intrusion, and after its dozen years on our books,
are led by it to close the only courtroom door remaining open to evidence secured by
official lawlessness in flagrant abuse of that basic right, reserved to all persons as a
specific guarantee against that very same unlawful conduct. We hold that all evidence
obtained by searches and seizures in violation of the Constitution is, by that same
authority, inadmissible in a State.

Since the Fourth Amendment's right of privacy has been declared enforceable against
the States through the Due Process Clause of the Fourteenth, it is enforceable against
them by the same sanction of exclusion as it used against the Federal Government.
Were it otherwise, then just as without the Weeks rule the assurance against
unreasonable federal searches and seizures would be "a form of words," valueless and
underserving of mention in a perpetual charter of inestimable human liberties, so
too, without that rule the freedom from state invasions of privacy would be so ephemeral
and so neatly severed from its conceptual nexus with the freedom from all brutish means
of coercing evidence as not to permit this Court's high regard as a freedom "implicit in the
concept of ordered liberty." At the time that the Court held in Wolf that the amendment
was applicable to the States through the Due Process Clause, the cases of this Court as
we have seen, had steadfastly held that as to federal officers the Fourth Amendment
included the exclusion of the evidence seized in violation of its provisions. Even Wolf
"stoutly adhered" to that proposition. The right to when conceded operatively enforceable
against the States, was not susceptible of destruction by avulsion of the sanction upon
which its protection and enjoyment had always been deemed dependent under the Boyd,
Weeks and Silverthorne Cases. Therefore, in extending the substantive protections of
due process to all constitutionally unreasonable searches — state or federal — it was
logically and constitutionally necessarily that the exclusion doctrine — an essential part of
the right to privacy — be also insisted upon as an essential ingredient of the right newly
recognized by the Wolf Case. In short, the admission of the new constitutional Right by
Wolf could not tolerate denial of its most important constitutional privilege, namely, the
exclusion of the evidence which an accused had been forced to give by reason of the
unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its
privilege and enjoyment. Only last year the Court itself recognized that the purpose of the
exclusionary rule to "is to deter — to compel respect for the constitutional guaranty in the
only effectively available way — by removing the incentive to disregard it" . . . .

The ignoble shortcut to conviction left open to the State tends to destroy the entire
system of constitutional restraints on which the liberties of the people rest. Having once
recognized that the right to privacy embodied in the Fourth Amendment is enforceable
against the States, and that the right to be secure against rude invasions of privacy by
state officers is, therefore constitutional in origin, we can no longer permit that right to
remain an empty promise. Because it is enforceable in the same manner and to like
effect as other basic rights secured by its Due Process Clause, we can no longer permit it
to be revocable at the whim of any police officer who, in the name of law enforcement
itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth,
gives to the individual no more than that which the Constitution guarantees him to the
police officer no less than that to which honest law enforcement is entitled, and, to the
courts, that judicial integrity so necessary in the true administration of justice. (emphasis
ours.)

Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit
of the constitutional injunction against unreasonable searches and seizures. To be sure,
if the applicant for a search warrant has competent evidence to establish probable cause
of the commission of a given crime by the party against whom the warrant is intended,
then there is no reason why the applicant should not comply with the requirements of the
fundamental law. Upon the other hand, if he has no such competent evidence, then it
is not possible for the Judge to find that there is probable cause, and, hence, no
justification for the issuance of the warrant. The only possible explanation (not
justification) for its issuance is the necessity of fishing evidence of the commission of a
crime. But, then, this fishing expedition is indicative of the absence of evidence to
establish a probable cause.

Moreover, the theory that the criminal prosecution of those who secure an illegal search
warrant and/or make unreasonable searches or seizures would suffice to protect the
constitutional guarantee under consideration, overlooks the fact that violations thereof
are, in general, committed By agents of the party in power, for, certainly, those belonging
to the minority could not possibly abuse a power they do not have. Regardless of the
handicap under which the minority usually — but, understandably — finds itself in
prosecuting agents of the majority, one must not lose sight of the fact that the
psychological and moral effect of the possibility 21 of securing their conviction, is watered
down by the pardoning power of the party for whose benefit the illegality had been
committed.

In their Motion for Reconsideration and Amendment of the Resolution of this Court dated
June 29, 1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments,
House No. 2008, Dewey Boulevard, House No. 1436, Colorado Street, and Room No.
304 of the Army-Navy Club, should be included among the premises considered in said
Resolution as residences of herein petitioners, Harry S. Stonehill, Robert P. Brook, John
J. Brooks and Karl Beck, respectively, and that, furthermore, the records, papers and
other effects seized in the offices of the corporations above referred to include personal
belongings of said petitioners and other effects under their exclusive possession and
control, for the exclusion of which they have a standing under the latest rulings of the
federal courts of federal courts of the United States. 22

We note, however, that petitioners' theory, regarding their alleged possession of and
control over the aforementioned records, papers and effects, and the alleged "personal"
nature thereof, has Been Advanced, not in their petition or amended petition herein, but
in the Motion for Reconsideration and Amendment of the Resolution of June 29, 1962. In
other words, said theory would appear to be readjustment of that followed in said
petitions, to suit the approach intimated in the Resolution sought to be reconsidered and
amended. Then, too, some of the affidavits or copies of alleged affidavits attached to said
motion for reconsideration, or submitted in support thereof, contain either inconsistent
allegations, or allegations inconsistent with the theory now advanced by petitioners
herein.

Upon the other hand, we are not satisfied that the allegations of said petitions said
motion for reconsideration, and the contents of the aforementioned affidavits and other
papers submitted in support of said motion, have sufficiently established the facts or
conditions contemplated in the cases relied upon by the petitioners; to warrant
application of the views therein expressed, should we agree thereto. At any rate, we do
not deem it necessary to express our opinion thereon, it being best to leave the matter
open for determination in appropriate cases in the future.

We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is
hereby, abandoned; that the warrants for the search of three (3) residences of herein
petitioners, as specified in the Resolution of June 29, 1962, are null and void; that the
searches and seizures therein made are illegal; that the writ of preliminary injunction
heretofore issued, in connection with the documents, papers and other effects thus
seized in said residences of herein petitioners is hereby made permanent; that the writs
prayed for are granted, insofar as the documents, papers and other effects so seized in
the aforementioned residences are concerned; that the aforementioned motion for
Reconsideration and Amendment should be, as it is hereby, denied; and that the petition
herein is dismissed and the writs prayed for denied, as regards the documents, papers
and other effects seized in the twenty-nine (29) places, offices and other premises
enumerated in the same Resolution, without special pronouncement as to costs.

It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.

CASTRO, J., concurring and dissenting:

From my analysis of the opinion written by Chief Justice Roberto Concepcion and from
the import of the deliberations of the Court on this case, I gather the following distinct
conclusions:

1. All the search warrants served by the National Bureau of Investigation in this case are
general warrants and are therefore proscribed by, and in violation of, paragraph 3 of
section 1 of Article III (Bill of Rights) of the Constitution;

2. All the searches and seizures conducted under the authority of the said search
warrants were consequently illegal;

3. The non-exclusionary rule enunciated in Moncado vs. People, 80 Phil. 1, should be,
and is declared, abandoned;
4. The search warrants served at the three residences of the petitioners
are expressly declared null and void the searches and seizures therein made
are expressly declared illegal; and the writ of preliminary injunction heretofore issued
against the use of the documents, papers and effect seized in the said residences is
made permanent; and

5. Reasoning that the petitioners have not in their pleadings satisfactorily demonstrated
that they have legal standing to move for the suppression of the documents, papers and
effects seized in the places other than the three residences adverted to above, the
opinion written by the Chief Justice refrains from expressly declaring as null and void the
such warrants served at such other places and as illegal the searches and seizures
made therein, and leaves "the matter open for determination in appropriate cases in the
future."

It is precisely the position taken by the Chief Justice summarized in the immediately
preceding paragraph (numbered 5) with which I am not in accord.

I do not share his reluctance or unwillingness to expressly declare, at this time, the nullity
of the search warrants served at places other than the three residences, and the
illegibility of the searches and seizures conducted under the authority thereof. In my view
even the exacerbating passions and prejudices inordinately generated by the
environmental political and moral developments of this case should not deter this Court
from forthrightly laying down the law not only for this case but as well for future cases and
future generations. All the search warrants, without exception, in this case are admittedly
general, blanket and roving warrants and are therefore admittedly and indisputably
outlawed by the Constitution; and the searches and seizures made were therefore
unlawful. That the petitioners, let us assume in gratia argumente, have no legal standing
to ask for the suppression of the papers, things and effects seized from places other than
their residences, to my mind, cannot in any manner affect, alter or otherwise modify the
intrinsic nullity of the search warrants and the intrinsic illegality of the searches and
seizures made thereunder. Whether or not the petitioners possess legal standing the said
warrants are void and remain void, and the searches and seizures were illegal and
remain illegal. No inference can be drawn from the words of the Constitution that "legal
standing" or the lack of it is a determinant of the nullity or validity of a search warrant or of
the lawfulness or illegality of a search or seizure.

On the question of legal standing, I am of the conviction that, upon the pleadings
submitted to this Court the petitioners have the requisite legal standing to move for the
suppression and return of the documents, papers and effects that were seized from
places other than their family residences.

Our constitutional provision on searches and seizures was derived almost verbatim from

the Fourth Amendment to the United States Constitution. In the many years of judicial
construction and interpretation of the said constitutional provision, our courts have
invariably regarded as doctrinal the pronouncement made on the Fourth Amendment by
federal courts, especially the Federal Supreme Court and the Federal Circuit Courts of
Appeals.

The U.S. doctrines and pertinent cases on standing to move for the suppression or return
of documents, papers and effects which are the fruits of an unlawful search and seizure,
may be summarized as follows; (a) ownership of documents, papers and effects gives
"standing;" (b) ownership and/or control or possession — actual or constructive — of
premises searched gives "standing"; and (c) the "aggrieved person" doctrine where the
search warrant and the sworn application for search warrant are "primarily" directed
solely and exclusively against the "aggrieved person," gives "standing."
An examination of the search warrants in this case will readily show that, excepting three,
all were directed against the petitioners personally. In some of them, the petitioners were
named personally, followed by the designation, "the President and/or General Manager"
of the particular corporation. The three warrants excepted named three corporate
defendants. But the "office/house/warehouse/premises" mentioned in the said three
warrants were also the same "office/house/warehouse/premises" declared to be owned
by or under the control of the petitioners in all the other search warrants directed against
the petitioners and/or "the President and/or General Manager" of the particular
corporation. (see pages 5-24 of Petitioners' Reply of April 2, 1962). The searches and
seizures were to be made, and were actually made, in the
"office/house/warehouse/premises" owned by or under the control of the petitioners.

Ownership of matters seized gives "standing."

Ownership of the properties seized alone entitles the petitioners to bring a motion to
return and suppress, and gives them standing as persons aggrieved by an unlawful
search and seizure regardless of their location at the time of seizure. Jones vs. United
States, 362 U.S. 257, 261 (1960) (narcotics stored in the apartment of a friend of the
defendant); Henzel vs. United States, 296 F. 2d. 650, 652-53 (5th Cir. 1961), (personal
and corporate papers of corporation of which the defendant was president), United
States vs. Jeffers, 342 U.S. 48 (1951) (narcotics seized in an apartment not belonging to
the defendant); Pielow vs. United States, 8 F. 2d 492, 493 (9th Cir. 1925) (books seized
from the defendant's sister but belonging to the defendant); Cf. Villano vs. United States,
310 F. 2d 680, 683 (10th Cir. 1962) (papers seized in desk neither owned by nor in
exclusive possession of the defendant).

In a very recent case (decided by the U.S. Supreme Court on December 12, 1966), it
was held that under the constitutional provision against unlawful searches and seizures,
a person places himself or his property within a constitutionally protected area, be it his
home or his office, his hotel room or his automobile:

Where the argument falls is in its misapprehension of the fundamental nature and scope
of Fourth Amendment protection. What the Fourth Amendment protects is the security a
man relies upon when he places himself or his property within a constitutionally protected
area, be it his home or his office, his hotel room or his automobile . There he is protected
from unwarranted governmental intrusion. And when he puts some thing in his filing
cabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure
from an unreasonable search or an unreasonable seizure. So it was that the Fourth
Amendment could not tolerate the warrantless search of the hotel room in Jeffers, the
purloining of the petitioner's private papers in Gouled, or the surreptitious electronic
surveilance in Silverman. Countless other cases which have come to this Court over the
years have involved a myriad of differing factual contexts in which the protections of the
Fourth Amendment have been appropriately invoked. No doubt, the future will bring
countless others. By nothing we say here do we either foresee or foreclose factual
situations to which the Fourth Amendment may be applicable. (Hoffa vs. U.S., 87 S. Ct.
408 (December 12, 1966). See also U.S. vs. Jeffers, 342 U.S. 48, 72 S. Ct. 93
(November 13, 1951). (Emphasis supplied).

Control of premises searched gives "standing."

Independent of ownership or other personal interest in the records and documents

seized, the petitioners have standing to move for return and suppression by virtue of their
proprietary or leasehold interest in many of the premises searched. These proprietary
and leasehold interests have been sufficiently set forth in their motion for reconsideration
and need not be recounted here, except to emphasize that the petitioners paid rent,
directly or indirectly, for practically all the premises searched (Room 91, 84 Carmen Apts;
Room 304, Army & Navy Club; Premises 2008, Dewey Boulevard; 1436 Colorado
Street); maintained personal offices within the corporate offices (IBMC, USTC); had
made improvements or furnished such offices; or had paid for the filing cabinets in which
the papers were stored (Room 204, Army & Navy Club); and individually, or through their
respective spouses, owned the controlling stock of the corporations involved. The
petitioners' proprietary interest in most, if not all, of the premises searched therefore
independently gives them standing to move for the return and suppression of the books,
papers and affects seized therefrom.

In Jones vs. United States, supra, the U.S. Supreme Court delineated the nature and
extent of the interest in the searched premises necessary to maintain a motion to
suppress. After reviewing what it considered to be the unduly technical standard of the
then prevailing circuit court decisions, the Supreme Court said (362 U.S. 266):

We do not lightly depart from this course of decisions by the lower courts. We are
persuaded, however, that it is unnecessarily and ill-advised to import into the law
surrounding the constitutional right to be free from unreasonable searches and seizures
subtle distinctions, developed and refined by the common law in evolving the body of
private property law which, more than almost any other branch of law, has been shaped
by distinctions whose validity is largely historical. Even in the area from which they
derive, due consideration has led to the discarding of those distinctions in the homeland
of the common law. See Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out
Law Reform Committee, Third Report, Cmd. 9305. Distinctions such as those between
"lessee", "licensee," "invitee," "guest," often only of gossamer strength, ought not be
determinative in fashioning procedures ultimately referable to constitutional safeguards.
See also Chapman vs. United States, 354 U.S. 610, 616-17 (1961).

It has never been held that a person with requisite interest in the premises searched
must own the property seized in order to have standing in a motion to return and
suppress. In Alioto vs. United States, 216 F. Supp. 48 (1963), a Bookkeeper for several
corporations from whose apartment the corporate records were seized successfully
moved for their return. In United States vs. Antonelli, Fireworks Co., 53 F. Supp. 870, 873
(W D. N. Y. 1943), the corporation's president successfully moved for the return and
suppression is to him of both personal and corporate documents seized from his home
during the course of an illegal search:

The lawful possession by Antonelli of documents and property, "either his own or the
corporation's was entitled to protection against unreasonable search and seizure. Under
the circumstances in the case at bar, the search and seizure were unreasonable and
unlawful. The motion for the return of seized article and the suppression of the evidence
so obtained should be granted. (Emphasis supplied).

Time was when only a person who had property in interest in either the place searched
or the articles seize had the necessary standing to invoke the protection of the
exclusionary rule. But in MacDonald vs. Unite States, 335 U.S. 461 (1948), Justice
Robert Jackson joined by Justice Felix Frankfurter, advanced the view that "even a guest
may expect the shelter of the rooftree he is under against criminal intrusion." This view
finally became the official view of the U.S. Supreme Court and was articulated in  United
States vs. Jeffers, 432 U.S 48 (1951). Nine years later, in 1960, in Jones vs. Unite
States, 362 U.S. 257, 267, the U.S. Supreme Court went a step further. Jones was a
mere guest in the apartment unlawfully searched but the Court nonetheless declared that
the exclusionary rule protected him as well. The concept of "person aggrieved by an
unlawful search and seizure" was enlarged to include "anyone legitimately on premise
where the search occurs."
Shortly after the U.S. Supreme Court's Jones decision the U.S. Court of Appeals for the
Fifth Circuit held that the defendant organizer, sole stockholder and president of a
corporation had standing in a mail fraud prosecution against him to demand the return
and suppression of corporate property. Henzel vs. United States, 296 F 2d 650, 652 (5th
Cir. 1961), supra. The court conclude that the defendant had standing on two
independent grounds: First — he had a sufficient interest in the property seized,
and second — he had an adequate interest in the premises searched (just like in the
case at bar). A postal inspector had unlawfully searched the corporation' premises and
had seized most of the corporation's book and records. Looking to Jones, the court
observed:

Jones clearly tells us, therefore, what is not required qualify one as a "person aggrieved
by an unlawful search and seizure." It tells us that appellant should not have been
precluded from objecting to the Postal Inspector's search and seizure of the corporation's
books and records merely because the appellant did not show ownership or possession
of the books and records or a substantial possessory interest in the invade premises . . .
(Henzel vs. United States, 296 F. 2d at 651). .

Henzel was soon followed by Villano vs. United States, 310 F. 2d 680, 683, (10th Cir.
1962). In Villano, police officers seized two notebooks from a desk in the defendant's
place of employment; the defendant did not claim ownership of either; he asserted that
several employees (including himself) used the notebooks. The Court held that the
employee had a protected interest and that there also was an invasion of privacy.
Both Henzel and Villano considered also the fact that the search and seizure were
"directed at" the moving defendant. Henzel vs. United States, 296 F. 2d at 682; Villano
vs. United States, 310 F. 2d at 683.

In a case in which an attorney closed his law office, placed his files in storage and went
to Puerto Rico, the Court of Appeals for the Eighth Circuit recognized his standing to
move to quash as unreasonable search and seizure under the Fourth Amendment of the
U.S. Constitution a grand jury subpoena duces tecum directed to the custodian of his
files. The Government contended that the petitioner had no standing because the books
and papers were physically in the possession of the custodian, and because the
subpoena was directed against the custodian. The court rejected the contention, holding
that

Schwimmer legally had such possession, control and unrelinquished personal rights in
the books and papers as not to enable the question of unreasonable search and seizure
to be escaped through the mere procedural device of compelling a third-party naked
possessor to produce and deliver them. Schwimmer vs. United States, 232 F. 2d 855,
861 (8th Cir. 1956).

Aggrieved person doctrine where the search warrant s primarily directed against said
person gives "standing."

The latest United States decision squarely in point is United States vs. Birrell, 242 F.
Supp. 191 (1965, U.S.D.C. S.D.N.Y.). The defendant had stored with an attorney certain
files and papers, which attorney, by the name of Dunn, was not, at the time of the seizing
of the records, Birrell's attorney. * Dunn, in turn, had stored most of the records at his
home in the country and on a farm which, according to Dunn's affidavit, was under his
(Dunn's) "control and management." The papers turned out to be private, personal and
business papers together with corporate books and records of certain unnamed
corporations in which Birrell did not even claim ownership. (All of these type records were
seized in the case at bar). Nevertheless, the search in Birrell was held invalid by the court
which held that even though Birrell did not own the premises where the records were
stored, he had "standing" to move for the return of all the papers and properties seized.
The court, relying on Jones vs. U.S., supra; U.S. vs. Antonelli Fireworks Co., 53 F. Supp.
870, Aff'd 155 F. 2d 631: Henzel vs. U.S., supra; and Schwimmer vs. U.S., supra, pointed
out that

It is overwhelmingly established that the searches here in question were directed solely
and exclusively against Birrell. The only person suggested in the papers as having
violated the law was Birrell. The first search warrant described the records as having
been used "in committing a violation of Title 18, United States Code, Section 1341, by the
use of the mails by one Lowell M. Birrell, . . ." The second search warrant was captioned:
"United States of America vs. Lowell M. Birrell. (p. 198)

Possession (actual or constructive), no less than ownership, gives standing to move to

suppress. Such was the rule even before Jones. (p. 199)

If, as thus indicated Birrell had at least constructive possession of the records stored with
Dunn, it matters not whether he had any interest in the premises searched. See
also Jeffers v. United States, 88 U.S. Appl. D.C. 58, 187 F. 2d 498 (1950), affirmed 432
U.S. 48, 72 S. Ct. 93, 96 L. Ed. 459 (1951).

The ruling in the Birrell case was reaffirmed on motion for reargument; the United States
did not appeal from this decision. The factual situation in Birrell is strikingly similar to the
case of the present petitioners; as in Birrell, many personal and corporate papers were
seized from premises not petitioners' family residences; as in Birrell, the searches were
"PRIMARILY DIRECTED SOLETY AND EXCLUSIVELY" against the petitioners. Still
both types of documents were suppressed in Birrell because of the illegal search. In the
case at bar, the petitioners connection with the premises raided is much closer than
in Birrell.

Thus, the petitioners have full standing to move for the quashing of all the warrants
regardless whether these were directed against residences in the narrow sense of the
word, as long as the documents were personal papers of the petitioners or (to the extent
that they were corporate papers) were held by them in a personal capacity or under their
personal control.

Prescinding a from the foregoing, this Court, at all events, should order the return to the
petitioners all personal and private papers and effects seized, no matter where these
were seized, whether from their residences or corporate offices or any other place or
places. The uncontradicted sworn statements of the petitioners in their, various pleadings
submitted to this Court indisputably show that amongst the things seized from the
corporate offices and other places were personal and private papers and effects
belonging to the petitioners.

If there should be any categorization of the documents, papers and things which where
the objects of the unlawful searches and seizures, I submit that the grouping should be:
(a) personal or private papers of the petitioners were they were unlawfully seized, be it
their family residences offices, warehouses and/or premises owned and/or possessed
(actually or constructively) by them as shown in all the search and in the sworn
applications filed in securing the void search warrants and (b) purely corporate papers
belonging to corporations. Under such categorization or grouping, the determination of
which unlawfully seized papers, documents and things are personal/private of the
petitioners or purely corporate papers will have to be left to the lower courts which issued
the void search warrants in ultimately effecting the suppression and/or return of the said
documents.

And as unequivocally indicated by the authorities above cited, the petitioners likewise
have clear legal standing to move for the suppression of purely corporate papers as
"President and/or General Manager" of the corporations involved as specifically
mentioned in the void search warrants.

Finally, I must articulate my persuasion that although the cases cited in my disquisition
were criminal prosecutions, the great clauses of the constitutional proscription on illegal
searches and seizures do not withhold the mantle of their protection from cases not
criminal in origin or nature.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-25434 July 25, 1975

HONORABLE ARSENIO N. ROLDAN, JR., in his capacity as Acting Commissioner,

Philippine Fisheries Commission, and THE PHILIPPINE NAVY, petitioners,
vs.
HONORABLE FRANCISCO ARCA, as Presiding Judge of the Court of First Instance
of Manila (Branch 1) and MORABE, DE GUZMAN & COMPANY, respondents.

Office of the Solicitor General Arturo A. Alafriz and Solicitor Augusto M. Amores for
petitioners.

J. C. Yuseco and A.R. Narvasa for private respondent.

MAKASIAR, J.:
A petition for certiorari and prohibition with preliminary injunction to restrain respondent
Judge from enforcing his order dated October 18, 1965, and the writ of preliminary
mandatory injunction thereunder issued.

On April 3, 1964, respondent company filed with the Court of First Instance of Manila a
civil case docketed as No. 56701 against petitioner Fisheries Commissioner Arsenio N.
Roldan, Jr., for the recovery of fishing vessel Tony Lex VI (one of two fishing boats in
question) which had been seized and impounded by petitioner Fisheries Commissioner
through the Philippine Navy.

On April 10, 1964, respondent company prayed for a writ of preliminary mandatory
injunction with respondent court, but said prayer was, however, denied.

On April 28, 1964, the Court of First Instance of Manila set aside its order of April 10,
1964 and granted respondent company's motion for reconsideration praying for
preliminary mandatory injunction. Thus, respondent company took Possession of the
vessel Tony Lex VI from herein petitioners by virtue of the abovesaid writ.

On December 10, 1964, the Court of First Instance of Manila dismissed Civil Case No.
56701 for failure of therein petitioner (respondent company herein) to prosecute as well
as for failure of therein defendants (petitioners herein)to appear on the scheduled date of
hearing. The vessel, Tony Lex VI or Srta. Winnie however, remained in the possession of
respondent company.

On July 20, 1965, petitioner Fisheries Commissioner requested the Philippine Navy to
apprehend vessels Tony Lex VI and Tony Lex III, also respectively called Srta. Winnie
and Srta. Agnes, for alleged violations of some provisions of the Fisheries Act and the
rules and regulations promulgated thereunder.

On August 5 or 6, 1965, the two fishing boats were actually seized for illegal fishing with
dynamite. Fish caught with dynamite and sticks of dynamite were then found aboard the
two vessels.

On August 18, 1965, the Fisheries Commissioner requested the Palawan Provincial
Fiscal to file criminal charges against the crew members of the fishing vessels.

On September 30, 1965, there were filed in the court of First Instance of Palawan a
couple of informations, one against the crew members of Tony Lex III, and another
against the crew members of Tony Lex VI — both for violations of Act No. 4003, as
amended by Commonwealth Acts Nos. 462, 659 and 1088, i.e., for illegal fishing with the
use of dynamite. On the same day, the Fiscal filed an ex parte motion to hold the boats in
custody as instruments and therefore evidence of the crime (p. 54, rec.), and cabled the
Fisheries Commissioner to detain the vessels (p. 56, rec.).

On October 2 and 4, likewise, the Court of First Instance of Palawan ordered the
Philippine Navy to take the boats in custody.

On October 2, 1965, respondent company filed a complaint with application for

preliminary mandatory injunction, docketed as Civil Case No. 62799 with the Court of
First Instance of Manila against herein petitioners. Among others, it was alleged that at
the time of the seizure of the fishing boats in issue, the same were engaged in legitimate
fishing operations off the coast of Palawan; that by virtue of the offer of compromise
dated September 13, 1965 by respondent company to the Secretary of Agriculture and
Natural Resources, the numerous violations of the Fishery Laws, if any, by the crew
members of the vessels were settled.
On October 9, 1965, petitioners, represented by the Solicitor General, opposed the
above-mentioned complaint, alleging among others, that: (1) the issuance of the writ
would disrupt the status quo of the parties and would render nugatory any decision of the
respondent court favorable to the defendant; (2) that the vessels, being instruments of a
crime in criminal cases Nos. 3416 and 3417 filed with the Court of First Instance of
Palawan, the release of the vessels sans the corresponding order from the above-
mentioned court would deprive the same of its authority to dispose of the vessels in the
criminal cases and the Provincial Fiscal would not be able to utilize said vessels as
evidence in the prosecution of said cases; (3) that as petitioners herein were in
possession of one of the vessels in point, they cannot now be deprived of the legal
custody thereof by reason of the dismissal of Civil Case No. 56701; (4) that petitioner
Fisheries Commissioner has the power to seize and detain the vessels pursuant to
Section 5 of Republic Act No. 3215 in relation to Sections 903 and 2210 of the Revised
Tariff and Customs Code; (5) that respondents herein have not exhausted administrative
remedies before coming to court; (6) that the compromise agreement approved by the
Secretary of Agriculture and Natural Resources and indorsed to the Fisheries
Commissioner is never a bar to the prosecution of the crime perpetrated by the crew
members of the vessels belonging to respondent company.

And again, on October 15, 1965, herein petitioners filed their memorandum praying for
the denial of the application for preliminary mandatory injunction. On the same day,
October 15, 1965, herein petitioners filed an urgent motion to submit additional
documentary evidence.

On October 18, 1965, herein petitioners, as defendants in said Civil Case No. 62799,
filed their answer to the complaint with affirmative defenses, reiterating the grounds in
their opposition to the issuance of a writ of preliminary mandatory injunction and adding
that herein private respondent admitted committing the last violation when it offered in its
letter dated September 21, 1965 to the Acting Commissioner of Fisheries, to compromise
said last violation (Exh. 12, pp. 60-61, rec.).

On said day, October 18, 1965, the respondent Judge issued the challenged order
granting the issuance of the writ of preliminary mandatory injunction and issued the
preliminary writ upon the filing by private respondent of a bond of P5,000.00 for the
release of the two vessels(pp. 95-102, rec.).

On October 19, 1965, herein petitioners filed a motion for reconsideration of the order
issuing the preliminary writ on October 18, 1965 on the ground, among others, that on
October 18, 1965 the Philippine Navy received from the Palawan Court of First Instance
two orders dated October 2 and 4, 1965 requiring the Philippine Navy to hold the fishing
boats in custody and directing that the said vessels should not be released until further
orders from the Court, and that the bond of P5,000.00 is grossly insufficient to cover the
Government's losses in case the two vessels, which are worth P495,000.00, are placed
beyond the reach of the Government, thus frustrating their forfeiture as instruments of the
crime (pp. 103-109, rec.).1äwphï1.ñët

On November 23, 1965, respondent Judge denied the said motion for reconsideration (p.
110, rec.).

WE rule that the respondent Judge of the Manila Court of First Instance acted without
jurisdiction and with grave abuse of discretion when he issued on October 18, 1965 the
order directing the issuance of a writ of preliminary mandatory injunction and when he
refused to reconsider the same.

I
When the respondent Judge issued the challenged order on October 18, 1965 and the
writ of preliminary mandatory injunction pursuant thereto, the fishing vessels were
already under the jurisdiction of the Court of First Instance of Palawan by virtue of its
orders of October 2 and 4, 1965, upon motion of the Provincial Fiscal (pp. 54, 55, rec.),
directing the Philippine Navy to detain (pp. 108, 109, rec.) said vessels, which are subject
to forfeiture as instruments of the crime, to be utilized as evidence in Criminal Cases
Nos. 3416 and 3417 for illegal fishing pending in said court (pp. 54-55, rec.). The said
vessels were seized while engaging in prohibited fishing within the territorial waters of
Palawan (pp. 45, 48,-53, rec.) and hence within the jurisdiction of the Court of First
Instance of Palawan, in obedience to the rule that "the place where a criminal offense
was committed not only determines the venue of the action but is an essential element of
jurisdiction"(Lopez vs. Paras, L-25795, Oct. 29, 1966, 18 SCRA 616, 619). The
jurisdiction over the vessels acquired by the Palawan Court of First Instance cannot be
interfered with by another Court of First Instance. The orders of October 2 and 4, 1965 by
the Palawan Court of First Instance expressly direct the Philippine Navy "to hold in
custody" the two vessels and that "same should not be released without prior order or
authority from this Court" (pp. 108, 109, rec.). Only the Palawan court can order the
release of the two vessels. Not even the Secretary of Agriculture and Natural Resources
nor the Fisheries Commissioner can direct that the fishing boats be turned over to private
respondent without risking contempt of court.

The grave abuse of discretion committed by the respondent Judge was heightened by
the fact that he did not reconsider his order of October 18, 1965 after he was informed by
petitioners in their motion for reconsideration filed on October 19, 1965 that the Palawan
Court of First Instance had already issued the two orders dated October 2 and 4, 1965
directing the Philippine Navy to hold in custody the fishing boats until further orders.

It is basic that one court cannot interfere with the judgments, orders or decrees of
another court of concurrent or coordinate jurisdiction having equal power to grant the
relief sought by injunction; because if coordinate courts were allowed to interfere with
each other's judgments, decrees or injunctions, the same would obviously lead to
confusion and might seriously hinder the administration of justice (Ongsinco, etc. vs. Tan,
et al., 97 Phil. 330; PNB vs. Javellana, 92 Phil. 525; Montesa vs. Manila Cordage
Company, 92 Phil. 25; Hubahib vs. Insular Drug Company, 64 Phil. 119; Hacbang, et al.
vs. The Leyte Auto Bus Company, et al., G.R. No. L-17907, May 30, 1963, 8 SCRA, 103,
107-109; NPC vs. Hon. Jesus de Vera, G.R. No. L-15763, Dec. 22, 1961, 3 SCRA, 646,
648; Cabigao vs. del Rosario, 44 Phil. 182; Araneta & Uy vs. Commonwealth Insurance
Company, 55 OG 431; Moran, Comments on the Rules of Court, Vol. III, 1970 ed., p. 64).

As early as October 2 and 4, 1965, the two boats were already in custodia legis under
the sole control of the Palawan Court of First Instance. The Manila Court of First Instance
cannot interfere with and change that possession (Hacbang vs. Leyte Bus Co.,
Inc., supra; NPC vs. Hon. Jesus de Vera, supra).

It is immaterial that the vessels were then in the Philippine Navy basin in Manila; for the
same in no way impugns the jurisdiction already vested in the Palawan court, which has
custody thereof through the Philippine Navy. This is analogous to the situation in
Colmenares versus Villar (L-27124, May 29, 1970, 33 SCRA 186, 188-9), wherein We
ruled "where the illegal possession of firearms was committed in the town where the
Court sits, the fact that the firearms were confiscated from the accused in another town
does not affect the jurisdiction of the Court" (pp. 186, 189).

It is likewise of no moment that the herein respondents were not notified by the herein
petitioners of the seizure of the questioned vessels by the Philippine Navy, because such
previous notice is not required by law.
II

The dismissal on December 10, 1964 of the first Civil Case No. 56701 by the Court of
First Instance of Manila had the necessary effect of automatically dissolving the writ of
preliminary mandatory injunction issued therein on April 28, 1964, directing the return of
fishing vessel Tony Lex VI (pp. 156-157, rec.). Such a preliminary writ, like any other
interlocutory order, cannot survive the main case of which it was but an incident; because
"an ancillary writ of preliminary injunction loses its force and effect after the dismissal of
the main petition" (National Sugar Workers' Union, etc., vs. La Carlota Sugar Central, et
al., L-23569, May 25, 1972, 45 SCRA 104, 109; Lazaro vs. Mariano, 59 Phil. 6Z7, 631;
Saavedra vs. Ibañez, 56 Phil. 33, 37; Hi Caiji vs. Phil. Sugar Estate and Development
Company, 50 Phil. 592, 594). 1äwphï1.ñët

Moreover, the writ of preliminary injunction issued on April 28, 1964 in Civil Case No.
56701 was directed against the detention of the vessel Tony Lex VI for violations
committed prior to August 5, 1965, and therefore cannot and does not extend to the
seizure and detention of said vessel for violations on August 5 or 6, 1965, which
violations were not and could not possibly be the subject-matter of said Civil Case No.
56701 which was filed on April 3, 1964 (p. 12, rec.).

III

Herein petitioners can validly direct and/or effect the seizure of the vessels of private
respondent for illegal fishing by the use of dynamite and without the requisite licenses.

Section 4 of Republic Act No. 3512 approved on March 20, 1963 empowers the Fisheries
Commissioner to carry out the provisions of the Fisheries Act, as amended, and all rules
and regulations promulgated thereunder, to make searches and seizures personally or
through his duly authorized representatives in accordance with the Rules of Court, of
"explosives such as ... dynamites and the like ...; including fishery products, fishing
equipment, tackle and other things that are subject to seizure under existing fishery
laws"; and "to effectively implement the enforcement of existing fishery laws on illegal
fishing."

Paragraph 5 of Section 4 of the same Republic Act 3512 likewise transferred to and
vested in the Philippine Fisheries Commission "all the powers, functions and duties
heretofore exercised by the Bureau of Customs, Philippine Navy and Philippine
Constabulary over fishing vessels and fishery matters ..."

Section 12 of the Fisheries Act, otherwise known as Republic Act No. 4003, as amended,
prohibits fishing with dynamites or other explosives which is penalized by Section 76
thereof "by a fine of not less than P1,500.00 nor more than P5,000.00, and by
imprisonment for not less than one (1) year and six (6) months nor more than five (5)
years, aside from the confiscation and forfeiture of all explosives, boats, tackles, apparel,
furniture, and other apparatus used in fishing in violation of said Section 12 of this Act."
Section 78 of the same Fisheries Law provides that "in case of a second offense, the
vessel, together with its tackle, apparel, furniture and stores shall be forfeited to the
Government."

The second paragraph of Section 12 also provides that "the possession and/or finding, of
dynamite, blasting caps and other explosives in any fishing boat shall constitute a
presumption that the said dynamite and/or blasting caps and explosives are being used
for fishing purposes in violation of this Section, and that the possession or discovery in
any fishing boat or fish caught or killed by the use of dynamite or other explosives, under
expert testimony, shall constitute a presumption that the owner, if present in the fishing
boat, or the fishing crew have been fishing with dynamite or other explosives." (Emphasis
supplied).

Under Section 78 of the Fisheries Act, as amended, any person, association or

corporation fishing in deep sea fishery without the corresponding license prescribed in
Sections 17 to 22 Article V of the Fisheries Act or any other order or regulation deriving
force from its provisions, "shall be punished for each offense by a fine of not more than
P5,000.00, or imprisonment, for not more than one year, or both, in the discretion of the
Court; Provided, That in case of an association or corporation, the President or manager
shall be directly responsible for the acts of his employees or laborers if it is proven that
the latter acted with his knowledge; otherwise the responsibility shall extend only as far
as fine is concerned: Provided, further, That in the absence of a known owner of the
vessel, the master, patron or person in charge of such vessel shall be responsible for any
violation of this Act: and Provided, finally, That in case of a second offense,
the vessel together with its tackle, apparel, furniture and stores shall be forfeited to the
Government" (Emphasis supplied).

Under Section 13 of Executive Order No. 389 of December 23, 1950, reorganizing the
Armed Forces of the Philippines, the Philippine Navy has the function, among others, "to
assist the proper governmental agencies in the enforcement of laws and regulations
pertaining to ... fishing ..." (46 OG 5905, 5911).

Section 2210 of the Tariff and Customs Code, as amended by PD No. 34 of October 27,
1972, authorized any official or person exercising police authority under the provisions of
the Code, to search and seize any vessel or air craft as well as any trunk, package, bag
or envelope on board and to search any person on board for any breach or violation of
the customs and tariff laws.

When the Philippine Navy, upon request of the Fisheries Commissioner, apprehended on
August 5 or 6, 1965 the fishing boats Tony Lex III and Tony Lex VI, otherwise known
respectively as Srta. Agnes and Srta. Winnie, these vessels were found to be without the
necessary license in violation of Section 903 of the Tariff and Customs Code and
therefore subject to seizure under Section 2210 of the same Code, and illegally fishing
with explosives and without fishing license required by Sections 17 and 18 of the
Fisheries Law (pp. 46-47, rec.).1äwphï1.ñët

The operation of the fishing boat Tony Lex III was suspended pursuant to the order dated
January 28, 1964 issued by the Commissioner of Fisheries pending the final
determination of the case against it for illegal fishing with explosives on January 21, 1964
(p. 34, rec.) and remained suspended until its apprehension on August 5 or 6, 1965 (p.
46, rec.).

For illegal fishing with explosives on March 23, 1963, the renewal of the fishing boat
license of Tony Lex VI was suspended for one year from the time said boat was moored
at Pier 14 at North Harbor, Manila, without prejudice to the institution of a criminal case
against its owner and/or operator, pursuant to the order dated May 19, 1964 issued by
the Commissioner of Fisheries (pp. 35-36, rec.), the motion for reconsideration of which
order was denied by the Commissioner of Fisheries in an order dated August 17, 1964
(pp. 41-42, rec.).

For illegal fishing with dynamite on March 28, 1963, the operation of Tony Lex VI was
suspended by the Commissioner of Fisheries in an order dated April 1, 1963 (p. 62, rec.).

For illegal fishing again with explosives on April 25, 1963, the fishing boat Tony Lex VI
together with its tackle, apparel, furniture and all other apparatus used in fishing was
ordered confiscated and forfeited in favor of the Government and a fine in the amount of
P5,000.00 was imposed on its owners-operators, without prejudice to the filing of the
necessary criminal action, pursuant to the order of June 2, 1964 of the Commissioner of
Fisheries(pp. 37-38, rec.).

Again, for comitting the same violation on June 19, 1963, a fine in the amount of
P5,000.00 was imposed on the owners-operators of fishing boat Tony Lex VI pursuant to
the order of June 4, 1964 issued by the Commissioner of Fisheries (pp. 39-40, rec.)..

It appears, therefore, that since January 28, 1964, the fishing boat Tony Lex III was
suspended from operating and was ordered moored at Pier 14, North Harbor, Manila (pp.
34, 46-47, rec.); and that the fishing vessel Tony Lex VI was suspended for one year
from May 24, 1964 and was actually ordered forfeited to the Government pursuant to the
order of June 2, 1964 for repeated violations of Section 12 of the Fisheries Act (pp. 37-
38. rec.). As a matter of fact, when apprehended on August 5 or 6, 1965, both vessels
1äwphï1.ñët  

were found to be without any license or permit for coastwise trade or for fishing and
unlawfully fishing with explosives, for which reason their owners and crew were
accordingly indicted by the Provincial Fiscal of Palawan for illegal fishing with dynamite
and without the requisite license (pp. 48-53, rec.).

As heretofore intimated, the two fishing boats were apprehended on numerous occasions
for fishing with dynamite from March 28, 1963 to March 11, 1964, which violations private
respondent, as owner-operator, sought to compromise by offering to pay a fine of
P21,000.00 for all said prior violations.

Such previous violations of Sections 12, 17 and 18 of the Fisheries Act committed by the
two fishing boats, Tony Lex III and Tony Lex VI, from March 28, 1963 until August 5 or 6,
1965, rendered the said vessels subject to forfeiture under Sections 76 and 78 of the
Fisheries Act, as amended.

Search and seizure without search warrant of vessels and air crafts for violations of the
customs laws have been the traditional exception to the constitutional requirement of a
search warrant, because the vessel can be quickly moved out of the locality or
jurisdiction in which the search warrant must be sought before such warrant could be
secured; hence it is not practicable to require a search warrant before such search or
seizure can be constitutionally effected (Papa vs. Mago, L-27360, Feb. 28, 1968, 22
SCRA 857, 871-74; Magoncia vs. Palacio, 80 Phil. 770, 774; Caroll vs. U.S. 267, pp. 132,
149, 158; Justice Fernando, The Bill of Rights, 1972 ed., p. 225; Gonzales, Philippine
Constitutional Law, 1966 ed., p. 300).

The same exception should apply to seizures of fishing vessels breaching our fishery
laws. They are usually equipped with powerful motors that enable them to elude pursuing
ships of the Philippine Navy or Coast Guard.

Another exception to the constitutional requirement of a search warrant for a valid search
and seizure, is a search or seizure as an incident to a lawful arrest (Alvero vs. Dizon, 76
Phil. 637; Justice Fernando, The Bill of Rights, 1972 ed., p. 224). Under our Rules of
Court, a police officer or a private individual may, without a warrant, arrest a person (a)
who has committed, is actually committing or is about to commit an offense in his
presence; (b) who is reasonably believed to have committed an offense which has been
actually committed; or (c) who is a prisoner who has escaped from confinement while
serving a final judgment or from temporary detention during the pendency of his case or
while being transferred from one confinement to another (Sec. 6, Rule 113, Revised
Rules of Court). In the case at bar, the members of the crew of the two vessels were
caught in flagrante illegally fishing with dynamite and without the requisite license. Thus
their apprehension without a warrant of arrest while committing a crime is lawful.
Consequently, the seizure of the vessel, its equipment and dynamites therein was
equally valid as an incident to a lawful arrest.

The alleged compromise approved by the Secretary of Agriculture and Natural

Resources on September 13, 1965 (pp. 63-64, 158-159, rec.) cannot be invoked by the
respondents because the said compromise referred to about thirty violations of the
fisheries law committed by the private respondent from March 28, 1963 to March 11,
1964. The violations by the two vessels of private respondent by reason of which these
vessels were apprehended and detained by the Philippine Navy upon request of the
Commissioner of Fisheries, were committed on August 5 or 6, 1965.

Moreover, the power to compromise would exist only before a criminal prosecution is
instituted; otherwise the Department Secretary or any of his sub-alterns can render
criminal prosecutions for violations of the fisheries law a mere mockery. It is not in the
public interest nor is it good policy to sustain the viewpoint that the Department Secretary
can compromise criminal cases involving public, not private, offenses after the indictment
had been instituted in court. The fishing vessels together with all their equipment and the
dynamites found therein are not only evidence of the crime of illegal fishing but also
subject to forfeiture in favor of the Government as instruments of the crime (Art. 45,
Revised Penal Code, Sec. 78, Act No. 4003, as amended). Section 80(j) of Act No. 4003,
as amended, precludes such a compromise the moment the Fisheries Commissioner
decides to prosecute the criminal action in accordance with Sections 76 and 78 of the
other penal provisions of the fisheries law. Furthermore, any compromise shall be upon
the recommendation of the Fisheries Commission (Section 80[i], Act No. 4003), which did
not recommend such a compromise for the violation on August 5 or 6, 1965 of Section 12
in relation to Sections 76 and 78 of Act No. 4003, as amended. On the contrary, the
Fisheries Commissioner requested the Provincial Fiscal to institute the criminal cases
(pp. 43-45, rec.) and the Provincial Fiscal filed the corresponding informations docketed
as Criminal Cases Nos. 3416 and 3417 on September 30, 1965 against the owners and
the members of the crew of the vessels (pp. 48-53, rec.).

It should be noted that in the first indorsement dated September 13, 1965 of the
Secretary of Agriculture and Natural Resources approving the compromise fine of
P21,000.00 for the various violations committed previous to August 5 or 6, 1965 (pp. 34-
42, 47, 58-64, 149-155, 158-159, rec.), the Department Secretary "believes that the offer
made by the company was an implied admission of violations of said provisions of the
Fisheries Law and regulations, ..." (pp. 63, 158, rec.). The said approval was granted
after the private respondent filed a motion for reconsideration of the indorsement dated
March 5, 1965 of the Secretary of Agriculture and Natural Resources disapproving the
offer by private respondent to pay the fine by way of compromise.

There can be no dispute that the term fishing boat (employed in the second paragraph of
Section 12 of the Fisheries Act applies to the vessels Tony Lex III and Tony Lex VI. Even
private respondent refers to said fishing boats as fishing vessels "engaged in fishing
operations" or "in commercial fishing" in paragraph IV of its complaint in Civil Case No.
62799 (p. 18, rec.), as well as in its various communications to the Fisheries
Commissioner (pp. 60-61, 65, 82, rec.). The two fishing vessels Tony Lex III and Tony
1äwphï1.ñët 

Lex VI likewise fall under the term vessel used in Sections 17, 76 and 78, as well as
the term boats utilized in the second paragraph of Section 76 of the Fisheries Act. They
can also fall under the term fishing equipment employed in Section 4 of Republic Act No.
3512; because a fishing equipment is never complete and cannot be effectively used in
off-shore or deep-sea fishing without the fishing boat or fishing vessel itself. And these
two vessels of private respondent certainly come under the term fishing
vessels employed in paragraph 5 of Section 4 of the same Republic Act 3512 creating
the Fisheries Commission.
Hence, no useful purpose can be served in trying to distinguish
between boat and vessel with reference to Tony Lex III and Tony Lex VI. As a matter of
fact, the accepted definition of vessel includes "every description of water craft, large or
small, used or capable of being used as a means of transportation on water" (Cope
versus Vallete, etc., 199 U.S. 625; U.S. vs. Holmes, 104 Fed. 884; Charles Barnes Co.
vs. One Dredge Boat, 169 Fed. 895; and Yu Con vs. Ipil, 41 Phil. 780).

The word boat in its ordinary sense, means any water craft (Monongahela River
Construction, etc. vs. Hardsaw, 77 NE 363, 365). The fishing boats Tony Lex III and Tony
Lex VI are likewise vessels within the meaning of the term vessel used in Sections 903
and 2210 of the Tariff and Customs Code.

WHEREFORE, THE PETITION IS HEREBY GRANTED AND THE ORDER OF

RESPONDENT JUDGE DATED OCTOBER 18, 1965, THE WRIT OF PRELIMINARY
MANDATORY INJUNCTION ISSUED THEREUNDER AND THE ORDER DATED
NOVEMBER 23, 1965, ARE HEREBY SET ASIDE AS NULL AND VOID, WITH COSTS
AGAINST PRIVATE RESPONDENT.

Castro (Chairman,), Esguerra, Muñoz Palma and Martin, JJ., concur.

Teehankee, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-27360             February 28, 1968

HON. RICARDO G. PAPA, as Chief of Police of Manila; HON. JUAN PONCE ENRILE,
as Commissioner of Customs; PEDRO PACIS, as Collector of Customs of the Port
of Manila; and MARTIN ALAGAO, as Patrolman of the Manila Police
Department, petitioners,
vs.
REMEDIOS MAGO and HILARION U. JARENCIO, as Presiding Judge of Branch 23,
Court of First Instance of Manila, respondents.

Office of the Solicitor General for petitioners.

Juan T. David for respondents.

ZALDIVAR, J.:

          This is an original action for prohibition and certiorari, with preliminary injunction

filed by Ricardo Papa, Chief of Police of Manila; Juan once Enrile, Commissioner of
Customs; Pedro Pacis, Collector of Customs of the Port of Manila; and Martin Alagao, a
patrolman of the Manila Police Department, against Remedios Mago and Hon. Hilarion
Jarencio, Presiding Judge of Branch 23 of the Court of First Instance of Manila, praying
for the annulment of the order issued by respondent Judge in Civil Case No. 67496 of the
Court of First Instance of Manila under date of March 7, 1967, which authorized the
release under bond of certain goods which were seized and held by petitioners in
connection with the enforcement of the Tariff and Customs Code, but which were claimed
by respondent Remedios Mago, and to prohibit respondent Judge from further
proceeding in any manner whatsoever in said Civil Case No. 67496. Pending the
determination of this case this Court issued a writ of preliminary injunction restraining the
respondent Judge from executing, enforcing and/or implementing the questioned order in
Civil Case No. 67496 and from proceeding with said case.

          Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila Police
Department, acting upon a reliable information received on November 3, 1966 to the
effect that a certain shipment of personal effects, allegedly misdeclared and undervalued,
would be released the following day from the customs zone of the port of Manila and
loaded on two trucks, and upon orders of petitioner Ricardo Papa, Chief of Police of
Manila and a duly deputized agent of the Bureau of Customs, conducted surveillance at
gate No. 1 of the customs zone. When the trucks left gate No. 1 at about 4:30 in the
afternoon of November 4, 1966, elements of the counter-intelligence unit went after the
trucks and intercepted them at the Agrifina Circle, Ermita, Manila. The load of the two
trucks consisting of nine bales of goods, and the two trucks, were seized on instructions
of the Chief of Police. Upon investigation, a person claimed ownership of the goods and
showed to the policemen a "Statement and Receipts of Duties Collected in Informal Entry
No. 147-5501", issued by the Bureau of Customs in the name of a certain Bienvenido
Naguit.

          Claiming to have been prejudiced by the seizure and detention of the two trucks
and their cargo, Remedios Mago and Valentin B. Lanopa filed with the Court of First
Instance of Manila a petition "for mandamus with restraining order or preliminary
injunction, docketed as Civil Case No. 67496, alleging, among others, that Remedios
Mago was the owner of the goods seized, having purchased them from the Sta. Monica
Grocery in San Fernando, Pampanga; that she hired the trucks owned by Valentin
Lanopa to transport, the goods from said place to her residence at 1657 Laon Laan St.,
Sampaloc, Manila; that the goods were seized by members of the Manila Police
Department without search warrant issued by a competent court; that anila Chief of
Police Ricardo Papa denied the request of counsel for Remedios Mago that the bales be
not opened and the goods contained therein be not examined; that then Customs
Commissioner Jacinto Gavino had illegally assigned appraisers to examine the goods
because the goods were no longer under the control and supervision of the
Commissioner of Customs; that the goods, even assuming them to have been
misdeclared and, undervalued, were not subject to seizure under Section 2531 of the
Tariff and Customs Code because Remedios Mago had bought them from another
person without knowledge that they were imported illegally; that the bales had not yet
been opened, although Chief of Police Papa had arranged with the Commissioner of
Customs regarding the disposition of the goods, and that unless restrained their
constitutional rights would be violated and they would truly suffer irreparable injury.
Hence, Remedios Mago and Valentin Lanopa prayed for the issuance of a restraining
order, ex parte, enjoining the above-named police and customs authorities, or their
agents, from opening the bales and examining the goods, and a writ of mandamus for the
return of the goods and the trucks, as well as a judgment for actual, moral and exemplary
damages in their favor.

          On November 10, 1966, respondent Judge Hilarion Jarencio issued an order ex

parte restraining the respondents in Civil Case No. 67496 — now petitioners in the
instant case before this Court — from opening the nine bales in question, and at the
same time set the hearing of the petition for preliminary injunction on November 16,
1966. However, when the restraining order was received by herein petitioners, some
bales had already been opened by the examiners of the Bureau of Customs in the
presence of officials of the Manila Police Department, an assistant city fiscal and a
representative of herein respondent Remedios Mago.

          Under date of November 15, 1966, Remedios Mago filed an amended petition in
Civil Case No. 67496, including as party defendants Collector of Customs Pedro Pacis of
the Port of Manila and Lt. Martin Alagao of the Manila Police Department. Herein
petitioners (defendants below) filed, on November 24, 1966, their "Answer with
Opposition to the Issuance of a Writ of Preliminary Injunction", denying the alleged
illegality of the seizure and detention of the goods and the trucks and of their other
actuations, and alleging special and affirmative defenses, to wit: that the Court of First
Instance of Manila had no jurisdiction to try the case; that the case fell within the
exclusive jurisdiction of the Court of Tax Appeals; that, assuming that the court had
jurisdiction over the case, the petition stated no cause of action in view of the failure of
Remedios Mago to exhaust the administrative remedies provided for in the Tariff and
Customs Code; that the Bureau of Customs had not lost jurisdiction over the goods
because the full duties and charges thereon had not been paid; that the members of the
Manila Police Department had the power to make the seizure; that the seizure was not
unreasonable; and the persons deputized under Section 2203 (c) of the Tariff and
Customs Code could effect search, seizures and arrests in inland places in connection
with the enforcement of the said Code. In opposing the issuance of the writ of preliminary
injunction, herein petitioners averred in the court below that the writ could not be granted
for the reason that Remedios Mago was not entitled to the main reliefs she prayed for;
that the release of the goods, which were subject to seizure proceedings under the Tariff
and Customs Code, would deprive the Bureau of Customs of the authority to forfeit them;
and that Remedios Mago and Valentin Lanopa would not suffer irreparable injury. Herein
petitioners prayed the court below for the lifting of the restraining order, for the denial of
the issuance of the writ of preliminary injunction, and for the dismissal of the case.

          At the hearing on December 9, 1966, the lower Court, with the conformity of the
parties, ordered that an inventory of the goods be made by its clerk of court in the
presence of the representatives of the claimant of the goods, the Bureau of Customs,
and the Anti-Smuggling Center of the Manila Police Department. On December 13, 1966,
the above-named persons filed a "Compliance" itemizing the contents of the nine bales.

          Herein respondent Remedios Mago, on December 23, 1966, filed an ex

parte motion to release the goods, alleging that since the inventory of the goods seized
did not show any article of prohibited importation, the same should be released as per
agreement of the patties upon her posting of the appropriate bond that may be
determined by the court. Herein petitioners filed their opposition to the motion, alleging
that the court had no jurisdiction to order the release of the goods in view of the fact that
the court had no jurisdiction over the case, and that most of the goods, as shown in the
inventory, were not declared and were, therefore, subject to forfeiture. A supplemental
opposition was filed by herein petitioners on January 19, 1967, alleging that on January
12, 1967 seizure proceedings against the goods had been instituted by the Collector of
Customs of the Port of Manila, and the determination of all questions affecting the
disposal of property proceeded against in seizure and forfeiture proceedings should
thereby be left to the Collector of Customs. On January 30, 1967, herein petitioners filed
a manifestation that the estimated duties, taxes and other charges due on the goods
amounted to P95,772.00. On February 2, 1967, herein respondent Remedios Mago filed
an urgent manifestation and reiteration of the motion for the release under bond of the
goods.
          On March 7, 1967, the respondent Judge issued an order releasing the goods to
herein respondent Remedios Mago upon her filing of a bond in the amount of
P40,000.00, and on March 13, 1967, said respondent filed the corresponding bond.

          On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf, filed a
motion for reconsideration of the order of the court releasing the goods under bond, upon
the ground that the Manila Police Department had been directed by the Collector of
Customs of the Port of Manila to hold the goods pending termination of the seizure
proceedings.

          Without waiting for the court's action on the motion for reconsideration, and
alleging that they had no plain, speedy and adequate remedy in the ordinary course of
law, herein petitioners filed the present action for prohibition and certiorari with
preliminary injunction before this Court. In their petition petitioners alleged, among others,
that the respondent Judge acted without jurisdiction in ordering the release to respondent
Remedios Mago of the disputed goods, for the following reasons: (1) the Court of First
Instance of Manila, presided by respondent Judge, had no jurisdiction over the case; (2)
respondent Remedios Mago had no cause of action in Civil Case No. 67496 of the Court
of First Instance of Manila due to her failure to exhaust all administrative remedies before
invoking judicial intervention; (3) the Government was not estopped by the negligent
and/or illegal acts of its agent in not collecting the correct taxes; and (4) the bond fixed by
respondent Judge for the release of the goods was grossly insufficient.

          In due time, the respondents filed their answer to the petition for prohibition
and certiorari in this case. In their answer, respondents alleged, among others: (1) that it
was within the jurisdiction of the lower court presided by respondent Judge to hear and
decide Civil Case No. 67496 and to issue the questioned order of March 7, 1967,
because said Civil Case No. 67496 was instituted long before seizure, and identification
proceedings against the nine bales of goods in question were instituted by the Collector
of Customs; (2) that petitioners could no longer go after the goods in question after the
corresponding duties and taxes had been paid and said goods had left the customs
premises and were no longer within the control of the Bureau of Customs; (3) that
respondent Remedios Mago was purchaser in good faith of the goods in question so that
those goods can not be the subject of seizure and forfeiture proceedings; (4) that the
seizure of the goods was affected by members of the Manila Police Department at a
place outside control of jurisdiction of the Bureau of Customs and affected without any
search warrant or a warrant of seizure and detention; (5) that the warrant of seizure and
detention subsequently issued by the Collector of Customs is illegal and unconstitutional,
it not being issued by a judge; (6) that the seizing officers have no authority to seize the
goods in question because they are not articles of prohibited importation; (7) that
petitioners are estopped to institute the present action because they had agreed before
the respondent Judge that they would not interpose any objection to the release of the
goods under bond to answer for whatever duties and taxes the said goods may still be
liable; and (8) that the bond for the release of the goods was sufficient.

          The principal issue in the instant case is whether or not, the respondent Judge had
acted with jurisdiction in issuing the order of March 7, 1967 releasing the goods in
question.

          The Bureau of Customs has the duties, powers and jurisdiction, among others, (1)
to assess and collect all lawful revenues from imported articles, and all other dues, fees,
charges, fines and penalties, accruing under the tariff and customs laws; (2) to prevent
and suppress smuggling and other frauds upon the customs; and (3) to enforce tariff and
customs laws. 1 The goods in question were imported from Hongkong, as shown in the
"Statement and Receipts of Duties Collected on Informal Entry".  2 As long as the
importation has not been terminated the imported goods remain under the jurisdiction of
the Bureau of customs. Importation is deemed terminated only upon the payment of the
duties, taxes and other charges upon the articles, or secured to be paid, at the port of
entry and the legal permit for withdrawal shall have been granted. 3 The payment of the
duties, taxes, fees and other charges must be in full. 4

          The record shows, by comparing the articles and duties stated in the aforesaid
"Statement and Receipts of Duties Collected on Informal Entry" with the manifestation of
the Office of the Solicitor General 5 wherein it is stated that the estimated duties, taxes
and other charges on the goods subject of this case amounted to P95,772.00 as
evidenced by the report of the appraiser of the Bureau of Customs, that the duties, taxes
and other charges had not been paid in full. Furthermore, a comparison of the goods on
which duties had been assessed, as shown in the "Statement and Receipts of Duties
Collected on Informal Entry" and the "compliance" itemizing the articles found in the
bales upon examination and inventory, 6 shows that the quantity of the goods was
underdeclared, presumably to avoid the payment of duties thereon. For example, Annex
B (the statement and receipts of duties collected) states that there were 40 pieces of
ladies' sweaters, whereas Annex H (the inventory contained in the "compliance") states
that in bale No. 1 alone there were 42 dozens and 1 piece of ladies' sweaters of assorted
colors; in Annex B, only 100 pieces of watch bands were assessed, but in Annex H, there
were in bale No. 2, 209 dozens and 5 pieces of men's metal watch bands (white) and
120 dozens of men's metal watch band (gold color), and in bale No. 7, 320 dozens of
men's metal watch bands (gold color); in Annex B, 20 dozens only of men's handkerchief
were declared, but in Annex H it appears that there were 224 dozens of said goods in
bale No. 2, 120 dozens in bale No. 6, 380 dozens in bale No. 7, 220 dozens in bale No.
8, and another 200 dozens in bale No. 9. The articles contained in the nine bales in
question, were, therefore, subject to forfeiture under Section 2530, pars. e and m, (1),
(3), (4), and (5) of the Tariff and Customs Code. And this Court has held that
merchandise, the importation of which is effected contrary to law, is subject to
forfeiture, 7 and that goods released contrary to law are subject to seizure and forfeiture.  8

          Even if it be granted, arguendo, that after the goods in question had been brought
out of the customs area the Bureau of Customs had lost jurisdiction over the same,
nevertheless, when said goods were intercepted at the Agrifina Circle on November 4,
1966 by members of the Manila Police Department, acting under directions and orders of
their Chief, Ricardo C. Papa, who had been formally deputized by the Commissioner of
Customs, 9 the Bureau of Customs had regained jurisdiction and custody of the goods.
Section 1206 of the Tariff and Customs Code imposes upon the Collector of Customs the
duty to hold possession of all imported articles upon which duties, taxes, and other
charges have not been paid or secured to be paid, and to dispose of the same according
to law. The goods in question, therefore, were under the custody and at the disposal of
the Bureau of Customs at the time the petition for mandamus, docketed as Civil Case
No. 67496, was filed in the Court of First Instance of Manila on November 9, 1966. The
Court of First Instance of Manila, therefore, could not exercise jurisdiction over said
goods even if the warrant of seizure and detention of the goods for the purposes of the
seizure and forfeiture proceedings had not yet been issued by the Collector of Customs.

          The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et al.,"
G.R. No. L-24037, decided by this Court on April 27, 1967, is squarely applicable to the
instant case. In the De Joya case, it appears that Francindy Commercial of Manila
bought from Ernerose Commercial of Cebu City 90 bales of assorted textiles and rags,
valued at P117,731.00, which had been imported and entered thru the port of Cebu.
Ernerose Commercial shipped the goods to Manila on board an inter-island vessel. When
the goods where about to leave the customs premises in Manila, on October 6, 1964, the
customs authorities held them for further verification, and upon examination the goods
were found to be different from the declaration in the cargo manifest of the carrying
vessel. Francindy Commercial subsequently demanded from the customs authorities the
release of the goods, asserting that it is a purchaser in good faith of those goods; that a
local purchaser was involved so the Bureau of Customs had no right to examine the
goods; and that the goods came from a coastwise port. On October 26, 1964, Francindy
Commercial filed in the Court of First Instance of Manila a petition for mandamus against
the Commissioner of Customs and the Collector of Customs of the port of Manila to
compel said customs authorities to release the goods.

          Francindy Commercial alleged in its petition for mandamus that the Bureau of

Customs had no jurisdiction over the goods because the same were not imported to the
port of Manila; that it was not liable for duties and taxes because the transaction was not
an original importation; that the goods were not in the hands of the importer nor subject
to importer's control, nor were the goods imported contrary to law with its (Francindy
Commercial's) knowledge; and that the importation had been terminated. On November
12, 1964, the Collector of Customs of Manila issued a warrant of seizure and
identification against the goods. On December 3, 1964, the Commissioner of Customs
and the Collector of Customs, as respondents in the mandamus case, filed a motion to
dismiss the petition on the grounds of lack of jurisdiction, lack of cause of action, and in
view of the pending seizure and forfeiture proceedings. The Court of First Instance held
resolution on the motion to dismiss in abeyance pending decision on the merits. On
December 14, 1964, the Court of First Instance of Manila issued a preventive and
mandatory injunction, on prayer by Francindy Commercial, upon a bond of P20,000.00.
The Commissioner of Customs and the Collector of Customs sought the lifting of the
preliminary and mandatory injunction, and the resolution of their motion to dismiss. The
Court of First Instance of Manila, however, on January 12, 1965, ordered them to comply
with the preliminary and mandatory injunction, upon the filing by Francindy Commercial
of an additional bond of P50,000.00. Said customs authorities thereupon filed with this
Court, on January 14, 1965, a petition for certiorari and prohibition with preliminary
injunction. In resolving the question raised in that case, this Court held:

          This petition raises two related issues: first, has the Customs bureau jurisdiction to
seize the goods and institute forfeiture proceedings against them? and (2) has the Court
of First Instance jurisdiction to entertain the petition for mandamus to compel the
Customs authorities to release the goods?

          Francindy Commercial contends that since the petition in the Court of first Instance
was filed (on October 26, 1964) ahead of the issuance of the Customs warrant of seizure
and forfeiture (on November 12, 1964),the Customs bureau should yield the jurisdiction
of the said court.

          The record shows, however, that the goods in question were actually seized on
October 6, 1964, i.e., before Francindy Commercial sued in court. The purpose of the
seizure by the Customs bureau was to verify whether or not Custom duties and taxes
were paid for their importation. Hence, on December 23, 1964, Customs released 22
bales thereof, for the same were found to have been released regularly from the Cebu
Port (Petition Annex "L"). As to goods imported illegally or released irregularly from
Customs custody, these are subject to seizure under Section 2530 m. of the Tariff and
Customs Code (RA 1957).

          The Bureau of Customs has jurisdiction and power, among others to collect
revenues from imported articles, fines and penalties and suppress smuggling and other
frauds on customs; and to enforce tariff and customs laws (Sec. 602, Republic Act 1957).

          The goods in question are imported articles entered at the Port of Cebu. Should
they be found to have been released irregularly from Customs custody in Cebu City, they
are subject to seizure and forfeiture, the proceedings for which comes within the
jurisdiction of the Bureau of Customs pursuant to Republic Act 1937.
          Said proceeding should be followed; the owner of the goods may set up defenses
therein (Pacis v. Averia, L-22526, Nov. 20, 1966.) From the decision of the
Commissioner of Customs appeal lies to the Court of Tax Appeals, as provided in Sec.
2402 of Republic Act 1937 and Sec. 11 of Republic Act, 1125. To permit recourse to the
Court of First Instance in cases of seizure of imported goods would in effect render
ineffective the power of the Customs authorities under the Tariff and Customs Code and
deprive the Court of Tax Appeals of one of its exclusive appellate jurisdictions. As this
Court has ruled in Pacis v. Averia, supra, Republic Acts 1937 and 1125 vest jurisdiction
over seizure and forfeiture proceedings exclusively upon the Bureau of Customs and the
Court of Tax Appeals. Such law being special in nature, while the Judiciary Act defining
the jurisdiction of Courts of First Instance is a general legislation, not to mention that the
former are later enactments, the Court of First Instance should yield to the jurisdiction of
the Customs authorities.

          It is the settled rule, therefore, that the Bureau of Customs acquires exclusive
jurisdiction over imported goods, for the purposes of enforcement of the customs laws,
from the moment the goods are actually in its possession or control, even if no warrant of
seizure or detention had previously been issued by the Collector of Customs in
connection with seizure and forfeiture proceedings. In the present case, the Bureau of
Customs actually seized the goods in question on November 4, 1966, and so from that
date the Bureau of Customs acquired jurisdiction over the goods for the purposes of the
enforcement of the tariff and customs laws, to the exclusion of the regular courts. Much
less then would the Court of First Instance of Manila have jurisdiction over the goods in
question after the Collector of Customs had issued the warrant of seizure and detention
on January 12, 1967. 10 And so, it cannot be said, as respondents contend, that the
issuance of said warrant was only an attempt to divest the respondent Judge of
jurisdiction over the subject matter of the case. The court presided by respondent Judge
did not acquire jurisdiction over the goods in question when the petition
for mandamus was filed before it, and so there was no need of divesting it of jurisdiction.
Not having acquired jurisdiction over the goods, it follows that the Court of First Instance
of Manila had no jurisdiction to issue the questioned order of March 7, 1967 releasing
said goods.

          Respondents also aver that petitioner Martin Alagao, an officer of the Manila Police
Department, could not seize the goods in question without a search warrant. This
contention cannot be sustained. The Chief of the Manila Police Department, Ricardo G.
Papa, having been deputized in writing by the Commissioner of Customs, could, for the
purposes of the enforcement of the customs and tariff laws, effect searches, seizures,
and arrests, 11 and it was his duty to make seizure, among others, of any cargo, articles or
other movable property when the same may be subject to forfeiture or liable for any fine
imposed under customs and tariff laws. 12 He could lawfully open and examine any box,
trunk, envelope or other container wherever found when he had reasonable cause to
suspect the presence therein of dutiable articles introduced into the Philippines contrary
to law; and likewise to stop, search and examine any vehicle, beast or person reasonably
suspected of holding or conveying such article as aforesaid. 13 It cannot be doubted,
therefore, that petitioner Ricardo G. Papa, Chief of Police of Manila, could lawfully effect
the search and seizure of the goods in question. The Tariff and Customs Code
authorizes him to demand assistance of any police officer to effect said search and
seizure, and the latter has the legal duty to render said assistance. 14 This was what
happened precisely in the case of Lt. Martin Alagao who, with his unit, made the search
and seizure of the two trucks loaded with the nine bales of goods in question at the
Agrifina Circle. He was given authority by the Chief of Police to make the interception of
the cargo. 15

          Petitioner Martin Alagao and his companion policemen had authority to effect the
seizure without any search warrant issued by a competent court. The Tariff and Customs
Code does not require said warrant in the instant case. The Code authorizes persons
having police authority under Section 2203 of the Tariff and Customs Code to enter, pass
through or search any land, inclosure, warehouse, store or building, not being a dwelling
house; and also to inspect, search and examine any vessel or aircraft and any trunk,
package, or envelope or any person on board, or to stop and search and examine any
vehicle, beast or person suspected of holding or conveying any dutiable or prohibited
article introduced into the Philippines contrary to law, without mentioning the need of a
search warrant in said cases. 16 But in the search of a dwelling house, the Code provides
that said "dwelling house may be entered and searched only upon warrant issued by a
judge or justice of the peace. . . ." 17 It is our considered view, therefor, that except in the
case of the search of a dwelling house, persons exercising police authority under the
customs law may effect search and seizure without a search warrant in the enforcement
of customs laws.

          Our conclusion finds support in the case of Carroll v. United States, 39 A.L.R., 790,
799, wherein the court, considering a legal provision similar to Section 2211 of the
Philippine Tariff and Customs Code, said as follows:

          Thus contemporaneously with the adoption of the 4th Amendment, we find in the
first Congress, and in the following second and fourth Congresses, a difference made as
to the necessity for a search warrant between goods subject to forfeiture, when
concealed in a dwelling house of similar place, and like goods in course of transportation
and concealed in a movable vessel, where readily they could be put out of reach of a
search warrant. . . .

          Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at L.231, 232, chap.
94), it was made lawful for customs officers not only to board and search vessels within
their own and adjoining districts, but also to stop, search and examine any vehicle, beast
or person on which or whom they should suspect there was merchandise which was
subject to duty, or had been introduced into the United States in any manner contrary to
law, whether by the person in charge of the vehicle or beast or otherwise, and if they
should find any goods, wares, or merchandise thereon, which they had probably cause to
believe had been so unlawfully brought into the country, to seize and secure the same,
and the vehicle or beast as well, for trial and forfeiture. This Act was renewed April 27,
1816 (3 Sta. at L. 315, chap. 100), for a year and expired. The Act of February 28, 1865,
revived § 2 of the Act of 1815, above described, chap. 67, 13 Stat. at L. 441. The
substance of this section was re-enacted in the 3d section of the Act of July 18, 1866,
chap. 201, 14 Stat. at L. 178, and was thereafter embodied in the Revised Statutes as §
3061, Comp. Stat. § 5763, 2 Fed. Stat. Anno. 2d ed. p. 1161. Neither § 3061 nor any of
its earlier counterparts has ever been attacked as unconstitutional. Indeed, that section
was referred to and treated as operative by this court in Von Cotzhausen v. Nazro, 107
U.S. 215, 219, 27 L. ed. 540, 541, 2 Sup. Ct. Rep. 503. . . .

          In the instant case, we note that petitioner Martin Alagao and his companion
policemen did not have to make any search before they seized the two trucks and their
cargo. In their original petition, and amended petition, in the court below Remedios Mago
and Valentin Lanopa did not even allege that there was a search. 18 All that they
complained of was,

          That while the trucks were on their way, they were intercepted without any search
warrant near the Agrifina Circle and taken to the Manila Police Department, where they
were detained.

          But even if there was a search, there is still authority to the effect that no search
warrant would be needed under the circumstances obtaining in the instant case. Thus, it
has been held that:
          The guaranty of freedom from unreasonable searches and seizures is construed
as recognizing a necessary difference between a search of a dwelling house or other
structure in respect of which a search warrant may readily be obtained and a search of a
ship, motorboat, wagon, or automobile for contraband goods, where it is not practicable
to secure a warrant because the vehicle can be quickly moved out of the locality or
jurisdiction in which the warrant must be sought. (47 Am. Jur., pp. 513-514, citing Carroll
v. United States, 267 U.S. 132, 69 L. ed., 543, 45 S. Ct., 280, 39 A.L.R., 790; People v.
Case, 320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686.)

          In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686), the
question raised by defendant's counsel was whether an automobile truck or an
automobile could be searched without search warrant or other process and the goods
therein seized used afterwards as evidence in a trial for violation of the prohibition laws of
the State. Same counsel contended the negative, urging the constitutional provision
forbidding unreasonable searches and seizures. The Court said:

          . . . Neither our state nor the Federal Constitution directly prohibits search and
seizure without a warrant, as is sometimes asserted. Only "unreasonable" search and
seizure is forbidden. . . .

          . . . The question whether a seizure or a search is unreasonable in the language of

the Constitution is a judicial and not a legislative question; but in determining whether a
seizure is or is not unreasonable, all of the circumstances under which it is made must be
looked to.

          The automobile is a swift and powerful vehicle of recent development, which has
multiplied by quantity production and taken possession of our highways in battalions until
the slower, animal-drawn vehicles, with their easily noted individuality, are rare.
Constructed as covered vehicles to standard form in immense quantities, and with a
capacity for speed rivaling express trains, they furnish for successful commission of
crime a disguising means of silent approach and swift escape unknown in the history of
the world before their advent. The question of their police control and reasonable search
on highways or other public places is a serious question far deeper and broader than
their use in so-called "bootleging" or "rum running," which is itself is no small matter.
While a possession in the sense of private ownership, they are but a vehicle constructed
for travel and transportation on highways. Their active use is not in homes or on private
premises, the privacy of which the law especially guards from search and seizure without
process. The baffling extent to which they are successfully utilized to facilitate
commission of crime of all degrees, from those against morality, chastity, and decency, to
robbery, rape, burglary, and murder, is a matter of common knowledge. Upon that
problem a condition, and not a theory, confronts proper administration of our criminal
laws. Whether search of and seizure from an automobile upon a highway or other public
place without a search warrant is unreasonable is in its final analysis to be determined as
a judicial question in view of all the circumstances under which it is made.

          Having declared that the seizure by the members of the Manila Police Department
of the goods in question was in accordance with law and by that seizure the Bureau of
Customs had acquired jurisdiction over the goods for the purpose of the enforcement of
the customs and tariff laws, to the exclusion of the Court of First Instance of Manila, We
have thus resolved the principal and decisive issue in the present case. We do not
consider it necessary, for the purposes of this decision, to discuss the incidental issues
raised by the parties in their pleadings.

          WHEREFORE, judgment is hereby rendered, as follows:

          (a) Granting the writ of certiorari and prohibition prayed for by petitioners;

          (b) Declaring null and void, for having been issued without jurisdiction, the order of
respondent Judge Hilarion U. Jarencio, dated March 7, 1967, in Civil Code No. 67496 of
the Court of First Instance of Manila;

          (c) Declaring permanent the preliminary injunction issued by this Court on March
31, 1967 restraining respondent Judge from executing, enforcing and/or implementing his
order of March 7, 1967 in Civil Case No. 67496 of the Court of First Instance of Manila,
and from proceeding in any manner in said case;

          (d) Ordering the dismissal of Civil Case No. 67496 of the Court of First Instance of
Manila; and 1äwphï1.ñët

          (e) Ordering the private respondent, Remedios Mago, to pay the costs.

          It is so ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Sanchez, Castro,
Angeles and Fernando, JJ., concur. 1äwphï1.ñët

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-31687 February 26, 1970

NAVARRO, petitioner,
vs.
CITY MAYOR ANTONIO J. VILLEGAS, respondent.

RESOLUTION

GENTLEMEN:
Quoted hereunder, for your information, is a resolution of this Court of even date:

"In Case G.R. No. L-31687 (Navarro vs. Villegas), the Court, after considering the
pleadings and arguments of the parties, issued the following Resolution:

Without prejudice to a more extended opinion and taking into account the following
considerations:

That respondent Mayor has not denied nor absolutely refused the permit sought by
petitioner;

That as stated in Primicias v. Fugoso, 80 Phil. 75, respondent Mayor possesses

reasonable discretion to determine or specify the streets or public places to be used for
the assembly in order to secure convenient use thereof by others and provide adequate
and proper policing to minimize the risks of disorder and maintain public safety and order;

That respondent Mayor has expressly stated his willingness to grant permits for peaceful
assemblies at Plaza Miranda during Saturdays, Sundays and holidays when they would
not cause unnecessarily great disruption of the normal activities of the community and
has further offered Sunken Gardens as an alternative to Plaza Miranda as the site of the
demonstration sought to be held this afternoon;

That experiences in connection with present assemblies and demonstrations do not

warrant the Court's disbelieving respondent Mayor's appraisal that a public rally at Plaza
Miranda, as compared to one at the Sunken Gardens as he suggested, poses a clearer
and more imminent danger of public disorders, breaches of the peace, criminal acts, and
even bloodshed as an aftermath of such assemblies, and petitioner has manifested that it
has no means of preventing such disorders;

That, consequently, every time that such assemblies are announced, the community is
placed in such a state of fear and tension that offices are closed early and employees
dismissed, storefronts boarded up, classes suspended, and transportation disrupted, to
the general detriment of the public:

That civil rights and liberties can exist and be preserved only in an order society;

The petitioner has failed to show a clear specific legal duty on the part of respondent
Mayor to grant their application for permit unconditionally;

The Court resolved to DENY the writ prayed for and to dismiss the petition.

Separate Opinions

VILLAMOR, J., concurring:

The right to freedom of assembly is not denied; but this right is neither unlimited nor
absolute. It is not correct to say that the Mayor has refused to grant the permit applied
for; he offered an alternative which, in my opinion, is not unreasonable. There being no
arbitrary refusal to grant permit, petitioner is not entitled to the writ.

CASTRO and FERNANDO, JJ., dissenting:

Two members of the Court, Castro and Fernando, find themselves unable to concur with
their brethren and would vote to grant the petition. The right to freedom of assembly while
not unlimited is entitled to be accorded the utmost deference and respect. If respondent
Mayor premised his refusal to grant the permit as sought by petitioner on a clear showing
that he was so empowered under the criteria supplied by Primicias W. Fugoso, then this
petition should not prosper as petitioner himself did invoke such authority. The grounds
for his refusal are however, set forth thus in his letter of February 24, 1970 addressed to
petitioner: "In the greater interest of the general public, and in order not to unduly disturb
the life of the community, this Office, guided by a lesson gained from the events of the
past few weeks, has temporarily adopted the policy of not issuing any permit for the use
of Plaza Miranda for rallies or demonstrations during week days." 1 They do not, in the
opinion of the above two justices, meet the standard of the Primicias ruling. Under the
circumstances, the effect is one of prior restraint of a constitutional right. This is not allowable.
An excerpt from a 1969 American Supreme Court decision is persuasive. Thus: "For in
deciding whether or not to withhold a permit, the members of the Commission were to be
guided only by their own ideas of 'public welfare, peace, safety, health, decency, good order,
morals or convenience.' This ordinance as it was written, therefore, fell squarely within the
ambit of the many decisions of this Court over the last 30 years, holding that a law subjecting
the exercise of First Amendment freedoms to the prior restraint of a license, without narrow,
objective, and definite standards to guide the licensing authority, is unconstitutional." 2 This is
without prejudice to a more extended opinion being written later.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-18247             August 31, 1963

FLORENTINO GALLEGO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and THE COURT OF APPEALS, respondents.

K. V. Faylona for petitioner.

Office of the Solicitor General for respondents.

REGALA, J.:
Petitioner was sentenced by the Court of First Instance of Iloilo to pay a fine of P10 and
the costs and, in case of insolvency, to suffer subsidiary imprisonment, following his
conviction of slight disobedience of an agent of a person in authority. He appealed to the
Court of Appeals which affirmed his sentence. He now appeals to this Court.

The Court of Appeals found the facts as follows:

. . . That in the morning of March 10, 1957, appellant and his companions were about to
hold a meeting of the Jehovah's Witnesses in front of the public market of Lambunao,
Iloilo. The chief of police, Avelino Larrosa, approached appellant and inquired of him
whether he had a permit to hold said meeting. As appellant could not produce any, the
chief of police enjoined him from so proceeding with the meeting but instead of desisting
in obedience to the chief of police's intimation, appellant, in a challenging vein,
addressed his followers, "You must continue that, we will see what they (referring to the
chief of police and his policemen) can do for us."

Whereupon, the chief of police warned appellant if he continued with the meeting, he was
to place him under arrest. However, appellant, disregarding the warning, continued the
meeting for at least 30 minutes more — whereupon, he was arrested and charged
accordingly.

In holding petitioner guilty of slight disobedience, the Court of Appeals stated:

That there was disobedience on appellant's part is self-evident from his immediate
reaction to the chief of police' warning for him to discontinue the
meeting — his exhorting his followers "to continue the meeting as they were prepared to
see what can the police do for them." And these words were followed by the overt act of
continuing the meeting for at least 30 minutes as sufficiently established by the evidence.
And it appears that, contrary to appellant's contention, there was an existing municipal
ordinance at the time (Ordinance No. 2, Series of 1957) providing for a previous permit
for the holding on religious meeting in public places.

Article 151 of the Revised Penal Code provides:

The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon
any person who not being included in the provisions of the preceding articles shall resist
or seriously disobey any person in authority or the agents of such person, while engaged
in the performance of official duties.

When the disobedience to an agent of a person in authority is not of serious nature the
penalty of arresto menor or a fine ranging from 10 to 100 pesos shall be imposed.

There is no question here that petitioner, in defiance of the order of the chief of police,
held a meeting of his religious sect. He contends, however, that he cannot be convicted
of light disobedience because, according to him, there is no proof of the existence of an
ordinance in force on March 10, 1957, requiring a permit for the holding of a meeting. For
this purpose, petitioner assails the Court of Appeals for taking judicial notice of Ordinance
No. 2, series of 1957 of Lambunao, Iloilo, when the trial court itself allegedly did not take
cognizance of the ordinance.

There is no merit in the defense. There is nothing in the law that prohibits a court, like the
Court of Appeals, from taking cognizance of a municipal ordinance. On the contrary,
Section 5 of Rule 123 of the Rules of Court enjoins courts to take judicial notice of
matters which are capable of unquestionable demonstration. This is exactly what the
Court of Appeals did in this case in holding that "contrary to appellant's (petitioner's)
contention, there was an existing municipal ordinance at the time (Ordinance No. 2,
Series of 1957) providing for a previous permit for the holding of religious meeting in
public places."

Besides, it is not true, as claimed by petitioner, that the trial court did not take notice of
the ordinance in question. For the lower court mentioned petitioner's "failure to secure the
necessary permit" with obvious reference to Ordinance No. 2, Series of 1957. In People
vs. Gebune, 87 Phil. 727, We held that courts of first instance should take judicial notice
of municipal ordinances within their respective jurisdictions. It must be in compliance with
this ruling that the trial court took notice of Ordinance No. 2, Series of 1957 of the
Municipality of Lambunao.

It is also contended that the order of the chief of police was illegal and, therefore, not
entitled to obedience because the ordinance applies only to meetings held in places
where the traffic is heavy. Here, it is claimed, there is no proof that the traffic where the
meeting was held was heavy. Petitioner adds that he was given a permit by the mayor
although at the time he could not produce it because it was given orally. 1äwphï1.ñët

It should not be lost sight of that this is a prosecution for slight disobedience, not for
violation of the ordinance. Although petitioner may have legitimate reason to protest the
order of the chief of police, he was not justified in disobeying him and in assuming a
bellicose attitude by exhorting his followers to proceed with their meeting, as in fact the
latter did. As justice Malcolm once said, "To authorize resistance (also disobedience) to
the agents of the authority, the illegality of the invasion must be clearly manifest. Here,
there was possibly a proper case for protest. (But,) there was no case of excessive
violence to enforce defendant's idea of a debatable legal question." (People v. Veloso, 48
Phil. 169).

Lastly, petitioner invokes the constitutional guaranty office assembly to justify his act. The
rights to freedom of speech and to peaceably assemble and petition the government for
redress of grievances are fundamental personal rights of the people recognized and
guaranteed by the constitutions of democratic countries. But it is a settled principle
growing out of the nature of well-ordered civil societies that the exercise of these rights is
not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment
of others having equal rights, nor injurious to the rights of the community or society. The
power to regulate the exercise of such other constitutional rights is termed the sovereign
"police power," which is the power to prescribe regulations to promote the health, morals,
peace, education, good order of safety and the general welfare of the people. This power
is exercised by the government through its legislative branch by the enactment of laws
regulating those and other constitutional and civil rights and it may be delegated to
political subdivisions, such as municipalities and cities, by authorizing their legislative
bodies called municipal and city councils to enact ordinances for the purpose. (Primicias
v. Fugoso, 80 Phil. 71).

The ordinance in this case is reasonable regulation of the use of public streets. There is
no claim that it gives the authorities arbitrary power to grant or deny permit; in fact there
is no claim that petitioner was arbitrarily denied a permit.

WHEREFORE, the decision of the Court of Appeals is affirmed, costs against petitioner.

Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L., Paredes, Dizon and
Makalintal, JJ., concur.
Bautista Angelo J., took no part.