[No. L-409.
January 30, 1947] permanent allegiance which the citizen residing in a foreign country
ANASTACIO LAUREL, petitioner, vs. ERIBERTO MISA, respondent.
1. 1.INTERNATIONAL AND CONSTITUTIONAL
LAW; ALLEGIANCE OF CITIZEN OR SUBJECT TO
SOVEREIGN; NATURE OF.—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.
1. 2.ID.; ID.; ID.; EFFECT OF ENEMY OCCUPATION.—The
absolute and permanent allegiance of the inhabitants of a territory
occupied by the enemy to 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.
1. 3.ID. ; ID. ; ID. ; SOVEREIGNTY, EFFECT ON, OF ENEMY
OCCUPATION.—The subsistence of the sovereignty of the
legitimate government in a territory occupied by the military forces
of the enemy during a 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."
1. 4. ID.; ID.; ID.; "TEMPORARY ALLEGIANCE" SIMILAR TO
ALLEGIANCE OF FOREIGNER TO GOVERNMENT OF HlS
RESIDENCE.—The words
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VOL. 77, JANUARY 30, 1947 857
Laurel vs. Misa
1. "temporary 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, 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 and does not do away with the absolute and
owes to his own government or sovereign.
1. 5.ID.; ID.; ID.; ID.; TREASON IN FOREIGN COUNTRY AND IN
TERRITORY UNDER MILITARY OCCUPATION.—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.
1. 6.ID.; ID.; ID.; ID.; ID.; ARTICLE 114 OF REVISED PENAL
CODE, APPLICABILITY OF.—Article 114 of the 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.
1. 7.ID.; ID.; ID.; ID.; POWER OF MILITARY OCCUPANT TO
CHANGE LAWS OR MAKE NEW ONES.—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 a 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.
1. 8.ID.; ID.; ID.; ID.; MILITARY OCCUPANT CANNOT REPEAL
OR SUSPEND OPERATION OF LAW OF TREASON.—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
1
858
858 PHILIPPINE REPORTS ANNOTATED
Laurel vs. Misa
1. preceding consideration, to repeal or suspend the operation of the
law of treason.
1. 9.ID.; ID.; ID.; ID.; SUSPENDED ALLEGIANCE, EFFECT OF
THEORY OF, ADOPTED,—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 to 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.
1. 10.ID., SOVEREIGNTY, IN WHOM DOES IT RESIDE.—
Sovereignty resides in the people of the Philippines.
1. 11.ID.; ID.; COMMONWEALTH OF THE PHILIPPINES A
SOVEREIGN GovERNMENT.—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.
1. 12. ID. ; ID. ; ID. ; QUESTIONS OF SOVEREIGNTY,
POLITICAL.—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 officer, citizens and subjects of the
country."
1. 13. ID. ; ID. ; ID. ; PHILIPPINE REPUBLIC, RIGHT OF, TO
PROSECUTE TREASON COMMITTED DURING JAPANESE
OCCUPATION.—Just as treason 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
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VOL. 77, JANUARY 30, 1947 859
Laurel vs. Misa
1. 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."
ORIGINAL ACTION in the Supreme Court. Habeas corpus.
The facts are stated in the opinion of the court.
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 corpusfiled by Anastacio Laurel and based
on the 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:
2
 "(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. United 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 to 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
860
860 PHILIPPINE REPORTS ANNOTATED
Laurel vs. Misa
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 011 which the whole
fabric of the petitioner's contention rests;
"Considering that the conclusion that the sovereignty of the United States
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, or on the old theory that such
occupation transfers 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;
861
VOL. 77, JANUARY 30, 1947 861
Laurel vs. Misa
"Considering that even adopting the words 'temporary 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 to obey, with certain exceptions, the laws of that country which enforce
3
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
862
862 PHILIPPINE REPORTS ANNOTATED
Laurel vs. Misa
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 a 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 f rom 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;
863
VOL. 77, JANUARY, 30, 1947 863
Laurel vs. Misa
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 to 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
4
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
864
864 PHILIPPINE REPORTS ANNOTATED
Laurel vs. Misa
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 do 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."
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
5
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 the 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 term 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,
866
866 PHILIPPINE REPORTS ANNOTATED
Laurel vs. Misa
under whose protection he is.' United States vs. Wong Kim Ark, 18 S. Ct.,
456, 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 renonunces it
and be. comes 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., pp. 226-227.)
867
VOL. 77, JANUARY 30, 1947 867
Laurel vs. Misa
"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 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.)
6
 "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 of 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
868
868 PHILIPPINE REPORTS ANNOTATED
Laurel vs. Misa
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 unqualified fealty. 18 L. Q. Rev., 47.
* * * * * * * In no time during enemy occupation have the Filipino people ceased to be
"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 domocracy has been known ever since old Greece, and modern
democracies function on the assumption that sovereignty resides in the
people, nowhere is such principle more imperative than in the
pronouncement embodied in the fundamental law of our people.
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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?
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
7
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
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independence had the effect of changing the name of our Government and
the withdrawal by the United States of her power to exercise f unctions of
sovereignty in the Phiilippines. 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
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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 a 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 is 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
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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
8
maintaining 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 governing it,
necessarily we have to conclude that the 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, under-
873
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standing, 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, spitef ulness.
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 psychology 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
874
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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 crimes 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.
9
 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
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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 policydetermining
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 more 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
876
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Laurel vs. Misa
the enemy- Everybody was then convinced that we did not have available the
necessary means of repelling effectively 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 indiscriminately 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 f orth:
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
877
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Laurel vs. Misa
10
respective citizens and inhabitants, in the armed forces or in 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 in circumstances. It grows, as did the common law, through
decisions reached from time to time in adopting settled principles to new
situations.
* * * * * * * crime. At the Sixth Pan-American Conference of 1928, the twenty-one
"After the shock to civilization of the war of 1914-1918, however, a
marked reversion to the earlier and sounder doctrines of interna
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Laurel vs. Misa
tional 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 BriandKellogg Treaty. This
means that it has become illegalthroughout 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 Eighth 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
American Republics unanimously adopted a resolution stating that 'war of
aggression constitutes an international crime against the human species.'
* * * * * * *
"We therefore propose to charge that a war of aggression is a crime, and
that modem 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."
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11
 Laurel vs. Misa
("U. S. A.—An American Review," published by the United States Office of
War Information, Vol. 2, No. 10; italics 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 distinc-tion 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 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. 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.
880
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Laurel vs. Misa
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 to 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 that modification, all the signatories to the pact
necessarily accepted and bound themselves to abide by all its implications,
among them the outlawing, proscription 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 saying 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
possess 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—
881
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and only in 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 lawf ulness in their occupation of territories they
have so barbarously and feloniously invaded. And let it not be f orgotten 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
12
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
in-
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Laurel vs. Misa
ternational 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
nation 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. 18981899.)
"* * * 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 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
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Laurel vs, Misa
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
f rom 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 one's country is unable to afford him 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 that loyalty. Love of country should be
something permanent and lasting, ending only in death; loyalty should be its
worthy 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.
884
13
884 PHILIPPINE REPORTS ANNOTATED
Laurel vs. Misa
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 thereaf ter—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 er to the Government and corresponding officials under
this Constitution"—of course, meaning the Commonwealth of the Philippines
before, and the Republic of the
885
VOL. 77, JANUARY 30, 1947 885
Laurel vs. Misa
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 this
respect.
If one committed treason against 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 (Articles 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.
PARÁS, J., dissenting:
During the long period of Japanese occupation, all the political laws of the
Philippines were suspended. * This is in full harmony with the generally
accepted principles of 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
886
886 PHILIPPINE REPORTS ANNOTATED
Laurel vs. Misa
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 suspend 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 Warfare,
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
14
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' 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 districts 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
_______________
1 necessary for the security of his forces, for the maintenance of law and order,
English case of De Jager vs. Attorney General of Naval; Belgian case of
Auditeur Militaires vs. Van Dieren; cases of Petain, Laval and Quisling.
887
VOL. 77, JANUARY 30, 1947 887
Laurel vs. Misa
the present circumstances under the Japanese Military Administration;" and,
thirdly, in the explanations to Order No. 3 reminding that "all laws and
regulations of the Philippines have been suspended since Japanese
occupation," and excepting the application of "laws and regulations which
are not proper to act under the present situation of the Japanese Military
Administration," especially those "provided with some political purposes."
The suspension of political laws 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 is 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
interests of humanity and the over progressive needs of civilization," and that
"in cases 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 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
888
888 PHILIPPINE REPORTS ANNOTATED
Laurel vs. Misa
power, whose interests 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
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
15
two mutually hostile governments, with their respective constitutional and
legislative
889
VOL. 77, JANUARY 30, 1947 889
Laurel vs. Misa
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 juregovernment 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 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 theref rom, can not compete with it on an even plane. Thus, if the
latter attempts 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
890
890 PHILIPPINE REPORTS ANNOTATED
Laurel vs. Misa
such command within the occupied territory would not safeguard the
individual f rom 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 folliwing 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 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 virtue of the principle 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."
891
VOL. 77, JANUARY 30, 1947 891
Laurel vs. Misa
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 case
of Peralta vs.Director of Prisons if, as alleged by the majority, the suspension
was good only as to the military occupant?
16
 The decision in 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
892
892 PHILIPPINE REPORTS ANNOTATED
Laurel vs. Misa,
duties to the United States. At the close of the war the place was by treaty
restored to the United States, and after that was done the 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 United States.' The court
then proceeded to say, that the case is the same
893
VOL. 77, JANUARY 30, 1947 893
Laurel vs. Misa
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
belligerent 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. Riceshould 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
right-
894
17
894 PHILIPPINE REPORTS ANNOTATED
Laurel vs. Misa
fully 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 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 the 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 the
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 of 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 gov-
895
VOL. 77, JANUARY 30, 1947 895
Laurel vs. Misa
ernment; 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 those States should provide system of law and of courts,
and in actual practice, so administer them, as to f urnish 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 f or 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 trea-
896
896 PHILIPPINE REPORTS ANNOTATED
Laurel vs. Misa
son. This argument is not correct, because the suspension does not exempt
the occupant from complying with the Hague Regulation (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 in 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 organization.
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 f eign cooperation, there would not be any Filipino nation
18
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 f
ormal surrender of our and the American regular fighting forces,—they
would have faced certain annihilation by the Japanese, considering the latter's
military strength at the time and the long period during which they were left
militarily 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 f eigned
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
897
VOL. 77, JANUARY 30, 1947 897
Laurel vs. Misa
occupant. The fundamental defect of this line of thought is that the Japanese
are 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 it 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 adhered 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
898
808 PHILIPPINE REPORTS ANNOTATED
Laurel vs. Misa
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 the 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.
899
VOL. 77, JANUARY 30, 1947 899
Laurel vs. Misa
19
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 coöperate 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
900
900 PHILIPPINE REPORTS ANNOTATED
Laurel vs. Misa
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 theHague 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 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 the judicial process for nonjudicial ends,
and attacked cynics who 'see no reason why courts, just like other agencies,
should not be policy weapons. If we want to shoot Ger mans as a matter of policy, let it be
done as such, said he,
901
VOL. 77, JANUARY 30, 1947 901
Laurel vs. Misa
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 world yields no respect
for courts that are merely organized to convict/ Mussolini 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.
20
 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 sov-
902
902 PHILIPPINE REPORTS ANNOTATED
Laurel vs. Misa
ereign, because said declaration of principle, prior to the independence of the
Philippines, was subservient 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 f or 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 delegated by the United States whose 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 delegation the agent State is authorized to express the will of the
delegating State, and the legal hypothesis is that this
903
VOL. 77, JANUARY 30, 1947 903
Laurel vs. Misa
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 occurrence; yet, so
Iong 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.
21
"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
904
904 PHILIPPINE REPORTS ANNOTATED
Laurel vs. Misa
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 Philippine 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
905
VOL. 77, JANUARY 30, 1947 905
Laurel vs. Misa
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 can -only be interpreted to
refer to the exercise of sovereignty by the Philipines 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 Ty-
906
906 PHILIPPINE REPORTS ANNOTATED
In re Gregorio, applicant for Ice Plant Service
dings-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
22
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 VicePresident 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.
Petition denied.
_______________
1. The mere fact of having joined a Makapili organization is evidence
of both adherence to the enemy and giving him aid and comfort.
Unless forced upon one against his will, membership in
the Makapili organization imports treasonable intent, considering
the purpose for which the organization was created, which,
according to the evidence, were "to accomplish the fulfillment of
the obligations assumed by the Philippines in the Pact of Alliance
with the Empire of Japan"; "to shed blood and sacrifice the lives of
our people in order to eradicate Anglo-Saxon influence in East
Asia"; "to collaborate unreservedly and unstintedly with the
Imperial Japanese Army and Navy in the Philippines"; and "to fight
the common enemies."
1. 2.ID.; ID.; ID.; ADHERENCE HOW PROVED.—Adherence, unlike
overt acts, need not be proved by the oaths of two witnesses.
Criminal intent and knowledge may be gathered f rom the
testimony of one witness, or from the nature of the act itself, or
from the circumstances surrounding the act. (Cramer vs. United
States, 65 Sup. Ct., 918.)

1. 3.ID.; ID.; ID.; MAKAPILI MEMBERSHIP AS AN OVERT ACT,

How PROVED.—At the same time, being a Makapili is in itself
constitutive of an overt act. It is not necessary, except for the
purpose of increasing the punishment, that the defendant actually
went to battle or committed nef arious acts against his country or
countrymen. But membership as a Makapili, as an overt act, must
be established by the deposition of two witnesses.

[No. L-477. June 30, 1947] 1. 4.ID. ; ID. ; ID. ; Two WITNESSES RULE, MEANING OF.—"Each
THE PEOPLE OF THE PHILIPPINES, plaintiff and of the witnesses must testify to the whole of the overt act; or, if it is
appellee, vs. APOLINAR ADRIANO, def endant and appellant. separable, there must be two witnesses to each part of the overt
act." (VII Wigmore on Evidence, 3d ed., section 2038, p. 271.) "It
1. 1.CRIMINAL LAW; TREASON; EVIDENCE; MAKAPILI is necessary to produce two direct witnesses to the whole overt act.
MEMBERSHIP EVI-DENCE OF ADHERENCE AND GIVING It may be possible to piece bits together of the overt act; but, if
AID AND COMFORT TO ENEMY.— so, each bit must have the support of two oaths; * * *." (United
States vs.Robinson, D. C. S. D., N. Y., 259 Fed., 685.) "The very
562 minimum function that an overt act must perform in a treason
prosecution is that it show sufficient action by the accused, in its
562 PHILIPPINE REPORTS ANNOTATED
setting, to sustain a finding that the accused actually gave aid and
People vs. Adriano comfort to the enemy. Every act, movement, deed, and word of the
defendant charged to constitute treason must be supported by the
23
 testimony of two witnesses." (Cramer vs. United States, 65 Sup. Ct.,
918.)
1. 5.ID. ; ID. ; ID. ; ID.—This provision is so exacting and so
uncompromising in regard to the amount of evidence that where
563
VOL. 78, JUNE 30, 1947 563
People vs. Adriano
1. two or more witnesses give oaths to an overt act and only one of
them is believed by the court or jury, the defendant is entitled to
discharge.
APPEAL from a judgment of the People's Court.
The facts are stated in the opinion of the court. Remedios P. Nufable for
appellant.
Assistant Solicitor General Kapunan, jr. and Solicitor Lacson for
appellee.
TUASON, J.:
This is an appeal from a judgment of conviction for treason by the
People's Court sentencing the accused to life imprisonment, P10,000 fine,
and the costs.
The information charged:
"That between January and April, 1945 or thereabout, during the occupation
of the Philippines by the Japanese Imperial Forces, in the Province of Nueva
Ecija and in the mountains in the Island of Luzon, Philippines, and within the
jurisdiction of this Court, the above-named accused, Apolinar Adriano, who
is not a foreigner, but a Filipino citizen owing allegiance to the United States
and the Commonwealth of the Philippines, in violation of said allegiance, did
then and there willfully, unlawfully, criminally and treasonably adhere to the
Military Forces of Japan in the Philippines, against which the Philippines and
the United States were then at war, giving the said enemy aid and comfort in
the manner as follows:
"That as a member of the Makapili, a military organization established
and designed to assist and aid militarily the Japanese Imperial Forces in the
Philippines in the said enemy's war efforts and operations against the United
States and the Philippines, the herein accused bore arm and joined and
assisted the Japanese Military Forces and the Makapili Army in armed
conflicts and engagements against the United States armed forces and the
Guerrillas of the Philippine Commonwealth in the Municipalities of San
Leonardo and Gapan, Province of Nueva Ecija, and in the mountains of
Luzon, Philippines, sometime between January and April, 1945. Contrary to
Law."
The prosecution did not introduce any evidence to substantiate any of the f
acts alleged except that of def endant's having joined the Makapili
organization. What the Peo-
564
564 PHILIPPINE REPORTS ANNOTATED
People vs. Adriano
ple's Court found is that the accused participated with Japanese soldiers in
certain raids and in confiscation of personal property. The court below,
however, said these acts had not been established by the testimony of two
witnesses, and so regarded them merely as evidence of adherence to the
enemy. But the court did find established under the two-witness rule, so we
infer, "that the accused and other Makapilis had their headquarters in the
enemy garrison at Gapan, Nueva Ecija; that the accused was in Makapili
military uniform; that he was armed with rifle; and that he drilled with other
Makapilis under a Japanese instructor; * * * that during the same period, the
accused in Makapili military uniform and with a rifle, performed duties as
sentry at the Japanese garrison and Makapili headquarters in Gapan, Nueva
Ecija;" "that upon the liberation of Gapan, Nueva Ecija, by the American
forces, the accused and other Makapilis retreated to the mountains with the
enemy;" and that "the accused, rifle in hand, later surrendered to the
Americans."
Even the findings of the court recited above in quotations are not borne
out by the proof of two witnesses. No two of the prosecution witnesses
testified to a single one of the various acts of treason imputed by them to the
appellant. Those who gave evidence that the accused took part in raids and
seizure of personal property, and performed sentry duties and military drills,
referred to acts allegedly committed on different dates without any two
witnesses coinciding in any one specific deed. There is only one item on
which the witnesses agree: it is that the defendant was a Makapili and was
seen by them in Makapili uniform carrying arms. Yet, again, on this point it
cannot be said that one witness is corroborated by another if corroboration
means that two witnesses have seen the accused doing at least one particular
thing, be it a routine military chore, or just walking or eating.
We take it that the mere fact of having joined a Makapili organization is
evidence of both adherence to the enemy
565
24
 VOL. 78, JUNE 30, 1947 565
People vs. Adriano
and giving him aid and comfort. Unless forced upon one against his will,
membership in the Makapili organization imports treasonable intent,
considering the purposes for which the organization was created, which,
according to the evidence, were "to accomplish. the fulfillment of the
obligations assumed by the Philippines in the Pact of Alliance with the
Empire of Japan;" "to shed blood and sacrifice the lives of our people in
order to eradicate Anglo-Saxon influence in East Asia;" "to collaborate
unreservedly and unstintedly with the Imperial Japanese Army and Navy in
the Philippines;" and "to fight the common enemies." Adherence, unlike
overt acts, need not be proved by the oaths of two witnesses. Criminal intent
and knowledge may be gathered from the testimony of one witness, or from
the nature of the act itself, or from the circumstances surrounding the act.
(Cramer vs. U. S., 65 Sup. Ct., 918.)
At the same time, being a Makapili is in itself constitutive of an overt act.
It is not necessary, except for the purpose of increasing the punishment, that
the defendant actually went to battle or committed nef arious acts against his
country or countrymen. The crime of treason was committed if he placed
himself at the enemy's call to fight side by side with him when the opportune
time came even though an opportunity never presented itself. Such
membership by its very nature gave the enemy aid and comfort. The enemy
derived psychological comfort in the knowledge that he had on his side
nationals of the country with which his was at war. It furnished the enemy
aid in that his cause was advanced, his forces augmented, and his courage
was enhanced by the knowledge that he could count on men such as the
accused and his kind who were ready to strike at their own people. The
practical effect of it was no different from that of enlisting in the invader's
army.
But membership as a Makapili, as an overt act, must be established by the
deposition of two witnesses. Does the evidence in the present case meet this
statutory test? Is
566
566 PHILIPPINE REPORTS ANNOTATED
People vs. Adriano
the two-witness requirement fulfilled by the testimony of one witness who
saw the appellant in Makapili uniform bearing a gun one day, another
witness another day, and so forth?
The Philippine law on treason is of Anglo-American origin and so we
have to look for guidance from American sources on its meaning and scope.
Judicial interpretation has been placed on the two-witness principle by
American courts, and authoritative text writers have commented on it. We
cull from American materials the following excerpts which appear to carry
the stamp of authority.
Wharton's Criminal Evidence, Vol. 3, section 1396, p. 2282, says:
"In England the original Statute of Edward, although requiring both
witnesses to be to the same overt act, was held to mean that there might be
one witness to an overt act and another witness to another overt act of the
same species of treason; and, in one case it has been intimated that the same
construction might apply in this country. But, as Mr. Wigmore so succinctly
observes: 'The opportunity of detecting the falsity of the testimony, by
sequestering the two witnesses and exposing their variance in details, is
wholly destroyed by permitting them to speak to different acts.' The rule as
adopted in this country by all the constitutional provisions, both state and
Federal, properly requires that two witnesses shall testify to the same overt
act. This also is now the rule in England."
More to the point is this statement from VII Wigmore on Evidence, 3d ed.,
section 2038, p. 271:
"Each of the witnesses must testify to the whole of the overt act; or, if it is
separable, there must be two witnesses to each part of the overt act."
Learned Hand, J., in United States vs. Robinson (D. C. S. D., N. Y., 259 Fed.,
685), expressed the same idea: "It is necessary to produce two direct
witnesses to the wholeovert act. It may be possible to piece bits together of
the overt act; but, if so, each bit must have the support of two oaths; * * *."
(Copied as footnote in Wigmore on Evidence, ante.) And in the recent case
of Cramer vs.
567
VOL. 78, JUNE 30, 1947 567
People vs. Adriano
United States (65 Sup. Ct., 918), decided during the recent World War, the
Federal Supreme Court lays down this doctrine: "The very minimum
function that an overt act must perform in a treason prosecution is that it
show sufficient action by the accused, in its setting, to sustain a finding that
the accused actually gave aid and comfort to the enemy. Every act,
movement, deed, and word of the defendant charged to constitute treason
must be supported by the testimony of two witnesses."
In the light of these decisions and opinions we have to set aside the
judgment of the trial court. To the possible objection that the reasoning by
which we have reached this conclusion savors of sophism, we have only to
say that the authors of the constitutional provision of which our treason law
is a copy purposely made conviction for treason difficult, the rule "severely
25
restrictive." This provision is so exacting and so uncompromising in regard
to the amount of evidence that where two or more witnesses give oaths to an
overt act and only one of them is believed by the court or jury, the defendant,
it has been said and held, is entitled to discharge, regardless of any moral
conviction of the culprit's guilt as gauged and tested by the ordinary and
natural methods, with which we are familiar, of finding the truth. Natural
inferences, however strong or conclusive, flowing from the testimony of a
most trustworthy witness or from other sources are unavailing as a substitute
for the needed corroboration in the form of direct testimony of another eye-
witness to the same overt act.
The United States Supreme Court saw the obstacles placed in the path of
the prosecution by a literal interpretation of the rule of two witnesses but said
that the founders of the American government fully realized the difficulties
and went ahead not merely in spite but because of the objections.
(Cramer vs. United States, ante.) More, the rule, it is said, attracted the
members of the Constitu-
568
568 PHILIPPINE REPORTS ANNOTATED
People vs. Adriano
tional Convention "as one of the few doctrines of Evidence entitled to be
guaranteed against legislative change." (Wigmore on Evidence, ante, section
2039, p. 272, citing Madison's Journal of the Federal Convention, Scott's ed.,
II, 564, 566.) Mr. Justice Jackson, who delivered the majority opinion in the
celebrated Cramer case, said: "It is not difficult to find grounds upon which
to quarrel with this Constitutional provision. Perhaps the framers placed
rather more reliance on direct testimony than modern researchers in
psychology warrant. Or it may be considered that such a quantitative measure
of proof, such a mechanical calibration of evidence is a crude device at best
or that its protection of innocence is too fortuitous to warrant so unselective
an obstacle to conviction. Certainly the treason rule, whether wisely or not, is
severely restrictive." It must be remembered, however, that the Constitutional
Convention was warned by James Wilson that " Treason may sometimes be
practiced in such a manner, as to render proof extremely difficult—as in a
traitorous correspondence with an enemy.' The provision was adopted not
merely in spite of the difficulties it put in the way of prosecution but because
of them. And it was not by whim or by accident, but because one of the most
venerated of that venerated group considered that 'prosecutions for treason
were generally virulent.' "
Such is the clear meaning of the two-witness provision of the American
Constitution. By extension, the lawmakers who introduced that provision into
the Philippine statute books must be understood to have intended that the law
should operate with the same inflexibility and rigidity as the American
forefathers meant.
The judgment is reversed and the appellant acquitted with costs
charged de oficio.
Moran, C.
J., Feria, Pablo, Perfecto, Bengzon, Briones,Hontiveros, and Padilla,
JJ., concur.
Parás, J., concurs in the result.
569
VOL. 78, JUNE 30, 1947 569
People vs. Adriano
HILADO, J., dissenting:
Being unable to bring myself to agree with the majority upon the
application of the two-witness rule herein, I am constrained to dissent.
As I see it, being a member of the Makapili during the Japanese
occupation of those areas of the Philippines referred to in the information,
was one single, continuous, and indivisible overt act of the present accused
whereby he gave aid and comfort to the Japanese invaders. That membership
was one and the some from the moment he entered the organization till he
was captured. The fact that he was seen on a certain day by one of the state
witnesses being a member of the Makapili, and was seen by another state
witness but on a different day being a member of the same organization, does
not mean that his membership on the first day was diff erent or independent
from his membership on the other day—it was the selfsame membership all
the way through. A contrary construction would entail the consequence that
the instant defendant, if we are to believe the allegations and proofs of the
prosecution, became or was a member of the Makapili as many times as there
were days from the first to the last.
T. E. Holland defined "acts" in jurisprudence as follows:
"Jurisprudence is concerned only with outward acts. An 'act' may therefore
be defined * * * as 'a determination of will, producing an effect in the
sensible world'. The effect may be negative, in which case the act is properly
described as a 'forbearance'. The essential elements of such an act are
three, viz., an exercise of the will, an accompanying state of consciousness, a
manifestation of the will". (Webster's New International Dictionary, 2d ed.,
unabridged, p. 25.)
There can, therefore, be no question that being a member of the Makapili was
an overt act of the accused. And the f act that no two witnesses saw him
being such a member on any single day or on the self-same occasion does
not, in my humble opinion, work against the singleness of the act, nor does
26
the f act that no two witnesses have testified to that same overt act being
done on the same day
570
570 PHILIPPINE REPORTS ANNOTATED
Contreras and Gingco vs. Felix and China Banking Corp.
or occasion argue against holding the two-witness rule having been complied
with.
My view is that, the act being single, continuous and indivisible, at least
two witnesses have testified thereto notwithstanding the f act that one saw it
on one day and the other on another day.
Judgment reversed; defendant acquitted.

_______________

[No. L-319. March 28, 1040]

Go TIAN SEK SANTOS, petitioner, vs. ERIBERTO MISA, Director of
Prisons, respondent.
HABEAS CORPUS; DETENTION UNDER COMMONWEALTH
ACT No. 682; ESPIONAGE; CITIZENSHIP, IMMATERIAL.—The
foreign status of a political detainee does not exclude him ipso facto from
the scope of the provisions of section 19 of Commonwealth Act No. 682,
because he may be prosecuted for espionage, a crime not conditioned by
the citizenship of the offender, and considered as an offense against
national security.
ORIGINAL ACTION in the Supreme Court. Habeas corpus.

27
The facts are stated in the opinion of the court.
416
416 PHILIPPINE REPORTS ANNOTATED
Go Tian Sek Santos vs. Misa
Mariano Trinidad for petitioner.
First Assistant Solicitor General Reyes and Solicitor De los Angeles for
respondent.
BENGZON, J.:
The petitioner avers he is a Chinese citizen apprehended in February, 1945,
by the Counter Intelligence Corps of the United States Army, turned over last
September, to the Commonwealth Government, and since then detained by
the respondent as a political prisoner. Such detention, he claims, is illegal,
because he has not been charged before, nor convicted by, the judge of a
competent court, and because he may not be confined under Act No. 682, as
he owes allegiance neither to the United States nor to the Commonwealth of
the Philippines.
The Solicitor-General, for the respondent, admits the detention, for active
collaboration with the Japanese, doubts the allegation of citizenship, and
maintains that, conceding arguendo petitioner's alienage, he may be charged
for espionage, a crime against national security wherein allegiance is
immaterial, and may, therefore, be held in custody under Commonwealth Act
No. 682.
As the record stands, the petitioner must be deemed a Chinese subject.
The commitment order No. 291 issued by the United States Army authorities
describes him as such. But it does not follow that he is entitled to liberty
now. He is included among those contemplated by section 19 of
Commonwealth Act No. 682, which reads partly:
"Upon delivery by the Commander-in-Chief of the Armed Forces of the
United States in the Philippines of the persons detained by him as political
prisoners, to the Commonwealth Government, the Office of Special
Prosecutors shall receive all records, documents, exhibits and such other
things as the Government of the United States may have turned over in
connection with and/or affecting said political prisoners, examine the
aforesaid records, documents, exhibits, etc., and take, as speedily as possible,
such action as may be proper: Provided, however, * * *. And, provided,
further, That, in the interest of public security, the provisions of article one
hundred twenty-five of the Revised Penal Code, as amended,
417
VOL. 76, MARCH 28, 1946 417
Go Tian Sek Santos vs. Misa
shall be deemed, as they are hereby, suspended, insofar as the aforesaid
political prisoners are concerned, until the filing of the corresponding
information with the People's Court, but the period of suspension shall not be
more than six (6) months f rom the formal delivery of said political prisoners
by the Commander-in-Chief of the Armed Forces of the United States in the
Philippines to the Commonwealth Government."
His foreign status does not exclude him ipso facto from the scope of the
above provisions. As stated by the Solicitor-General, he might be prosecuted
for espionage, (Commonwealth Act No. 616) a crime not conditioned by the
citizenship of the offender, and considered as, an offense against national
security.
The contentions advanced during the oral argument, challenging the
validity of said section 19, Commonwealth Act No. 682, upon constitutional
grounds must be overruled, in view of our decision in Laurel vs. Director of
Prisons (p. 372, ante), copy of which will be furnished to petitioner by the
clerk of this court. The petition is denied, with costs.
Moran, C. J., Ozaeta, Jaranilla, Feria, De
Joya, Pablo,Hilado, and Briones, JJ., concur.
Parás, J., concurs in the result.
PERFECTO, J., concurring and dissenting:
We concur with the majority's pronouncement to the effect that petitioner is
not excluded from the group of persons contemplated by section 19 of
Commonwealth Act No. 682, notwithstanding his foreign status as a Chinese
subject. We also agree that, if there are facts and evidence to justify it, he
might be prosecuted for espionage, or any other crime not conditioned by the
citizenship of the offender. But we disagree as to the denial of the petition, it
appearing that petitioner is being deprived of his personal liberty without any
due and legal process of law, and as to this question, we refer to the stand we
have taken in our dissenting opinion in case G. R. No.
418
418 PHILIPPINE REPORTS ANNOTATED
David vs. Sison
L-200, Laurel vs. Director of Prisons (p. 372, ante), the contentions therein
we reiterate here.
Petition denied.
_____________
28
G.R. No. 116488. May 31, 2001.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AARON
FLORES @ “RONITO,” SULPECIO SILPAO y ORTEGA @
“SULPING” and EDGAR VILLERAN y MAGBANUA, accused-
appellants.
Criminal Law; Kidnapping and Serious Illegal Detention; Accused-
appellants cannot be charged with or convicted of the crime of Kidnapping
and Serious Illegal Detention, since the first element of the crime is that the
offender must be a private individual.—Clearly, accused-appellants cannot
be charged with or convicted of the crime of Kidnapping and Serious Illegal
Detention, since the first element of the said crime is that the offender must
be a private individual. In the case at bar, accused-appellants were members
of the local CAFGU at the time the alleged crime was committed.
Same; Same; Under the facts alleged, accused-appellants can only be
liable for the crime of Arbitrary Detention, defined and penalized in Article
124 of the Revised Penal Code.—The Solicitor General recognizes the error
of charging and convicting accused-appellants of Kidnapping and Serious
Illegal Detention for the reason that the appellants are not private individuals,
but public officers. As such, the Solicitor General submits that, under the
facts alleged, accused-appellants can only be liable for the crime of Arbitrary
Detention, defined and penalized in Article 124 of the Revised Penal Code.
The prosecution maintains that inasmuch as all the other elements of
Arbitrary Detention were alleged in the criminal information
______________

29
 *
FIRST DIVISION.
320
320 SUPREME COURT REPORTS ANNOTATED
People vs. Flores
filed against the accused-appellants, they may still be convicted of said
crime.
Same; Same; In the crime of illegal or arbitrary detention, it is
essential that there is actual confinement or restriction of the person of the
offended party.—As far back as the case of U.S. v. Cabanag, it was held that
in the crime of illegal or arbitrary detention, it is essential that there is actual
confinement or restriction of the person of the offended party. The
deprivation of liberty must be proved, just as the intent of the accused to
deprive the victim of his liberty must also be established by indubitable
proof. In the more recent case of People v. Fajardo, this Court reiterated the
ruling in US. v. Cabanag, i.e., there must be uncontroverted proof of both
intent to deprive the victim of his liberty, as well as actual confinement or
restriction.
Same; Same; Evidence; Although the findings of fact made by trial
courts are generally not disturbed on appeal, if there are substantial facts
which were overlooked but which may alter the results of the case in favor of
the accused, such facts should be taken into account by the appellate court.
—It is basic and elemental that in criminal prosecutions, before the accused
may be convicted of a crime, his guilt must be proven beyond reasonable
doubt. Although the findings of fact made by trial courts are generally not
disturbed on appeal, if there are substantial facts which were overlooked but
which may alter the results of the case in favor of the accused, such facts
should be taken into account by the appellate court. And where it appears that
the trial court erred in the appreciation of the evidence on record or the lack
of it, the factual findings of the trial court may be reversed.
Same; Same; Same; For circumstantial evidence to be sufficient to
support a conviction, all the circumstances must be consistent with the
hypothesis that the accused-appellants are guilty, and inconsistent with the
possibility that they are innocent.—As already discussed, the above-
enumerated circumstances were not established by clear and convincing
evidence. And even if these acts were proven to be true, the combination of
all these circumstances would still not be able to produce a conviction
beyond reasonable doubt. To our mind, the totality of these circumstantial
evidence do not constitute an unbroken chain pointing to the fair and
reasonable conclusion that the accused-appellants are guilty of the crime
charged. For circumstantial evidence to be sufficient to support a conviction,
all the circumstances must be consistent with the hypothesis that the accused-
appellants are guilty, and inconsistent with the possibility that they are
innocent.
321
VOL. 358, MAY 31, 2001 321
People vs. Flores
Same; Same; Same; An uncorroborated circumstantial evidence is
certainly not sufficient for conviction when the evidence itself is in serious
doubt.—Moreover, mere suspicion that the disappearance of Samson Sayam
was a result of accused-appellants’ alleged criminal acts and intentions is
insufficient to convict them. Proof beyond reasonable doubt is the required
quantum of evidence. An uncorroborated circumstantial evidence is certainly
not sufficient for conviction when the evidence itself is in serious doubt. The
prosecution was not able to prove a possible motive why accused-appellants
would arbitrarily detain Samson Sayam. In sum, there is no unbroken chain
of circumstances leading to the conclusion that accused-appellants are guilty.
Since the pieces of circumstantial evidence do not fulfill the test of moral
certainty that is sufficient to support a judgment or conviction, the Court
must acquit the accused.
APPEAL from a decision of the Regional Trial Court of Kabankalan, Negros
Occidental, Br. 51.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Public Attorney’s Office for accused-appellants Aaron Flores and
Edgar Villeran.
Rolando Magbanua Antiquera for accused-appellant Sulpecio Silpao.
YNARES-SANTIAGO, J.:
Sgt. Wennie Tampioc, Detachment Commander of the 7th Infantry Brigade
detailed at Barangay Tabu, Ilog, Negros Occidental, and three (3) members
of the local Citizen Armed Force Geographical Unit (CAFGU) under his
supervision, namely, Aaron Flores alias "Ronito", Sulpecio Silpao y Ortega
alias "Sulping" and Edgar Villeran y Magbanua, were charged before the
Regional Trial Court of Kabankalan, Negros Occidental, Branch 61, with
Kidnapping and Serious Illegal Detention. The information charged as
follows:
30
 That on or about the 29th day of September, 1992, in the
Municipality of Ilog, Province of Negros Occidental, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused, armed with high powered firearms conspiring,
confederating and helping one another, by means of force, violence
and intimidation, did then and there, willfully, unlawfully and
feloniously take, kidnap, detain and keep under guard one SAMSON
SAYAM y GEPANAO from Km 117, Hda. Shangrella (sic), Brgy.
Tabu, of the above-named municipality, and bring the latter to their
detachment at Brgy. Tabu, under restraint and against his will,
without proper authority thereof, thereby depriving said victim of his
civil liberty since then up to the present.
CONTRARY TO LAW.1
All the four accused pleaded "Not Guilty" when arraigned. Trial ensued and,
based on the testimonial evidence presented, the trial court found the
following antecedent facts to be undisputed.
On the night of September 29, 1992, the victim, Samson Sayam, was
drinking beer at the store owned by Terry Cabrillos located at Barangay
Tabu, Ilog, Negros Occidental. Sgt. Wennie Tampioc, Aaron Flores,
Sulpecio Silpao and Edgar Villeran were at the same store drinking beer.
Sayam joined the four accused at their table. Sometime later, all the accused
and the victim left the store and walked towards the direction of the military
detachment headquarters. After the accused left the store with Samson
Sayam, witnesses heard a single gunshot followed by rapid firing coming
from the direction of the detachment headquarters.2 That was the last time
Samson Sayam was seen, and despite diligent efforts of Sayam's mother and
relatives, he has not been found.
It was the prosecution's contention that on that fateful evening, all four
accused hatched a conspiracy to kidnap the victim and thereafter detain him
at the detachment headquarters. They allegedly succeeded in their plot and,
the prosecution avers, to this day the accused have not released Samson
Sayam. All the accused, however, vehemently denied committing the acts
charged.
The trial court held that the testimonial evidence failed to prove beyond
reasonable doubt the existence of a conspiracy among the four accused. More
specifically, the prosecution failed to show an apparent common design by
and among the accused to kidnap and detain Samson Sayam against his will.
Thus, the trial court proceeded to determine the individual liabilities of the
four accused based on the degree of their participation in the commission of
the offense charged.
The trial court gave credence to the prosecution's evidence that Samson
Sayam was seen being forcibly dragged out of the store and pulled towards
the direction of the detachment headquarters by accused Aaron Flores,
Sulpecio Silpao and Edgar Villeran. Since Samson Sayam had not been seen
nor heard from since then, the trial court held that the three accused were
responsible for the former's disappearance.
As regards Wennie Tampioc, the trial court found that he left the store ahead
of the three (3) co-accused and, thus, had nothing to do with the
disappearance of Samson Sayam. Notably, none of the prosecution witnesses
specifically or categorically mentioned Tampioc as among those who
actively participated in bringing Samson Sayam by force to their
headquarters. Unlike his co-accused who are natives of the place of the
incident, Wennie Tampioc was newly assigned as Detachment Commander
and did not know Samson Sayam, such that no ill-motive was attributed to
him by the trial court. Likewise, the testimonies of prosecution witnesses
Nelson Golez, on the one hand, and that of Carlos Manlangit, on the other
hand, conflict as to the kind of firearm allegedly carried by Tampioc. While
Golez stated that he was armed with an Armalite rifle,3 Manlangit testified
that Tampioc was armed with a short firearm.4
More importantly, the trial court found that the identity of Sgt. Tampioc as
one of the perpetrators of the crime was doubtful, because notwithstanding
the fact that Nelson Golez knew Wennie Tampioc even before September 29,
1992,5 the original complaint filed before the Municipal Circuit Trial court of
Ilog Candoni, dated October 21, 1992, which was based on the affidavits of
Golez and Carlito Manlingit, did not mention Wennie Tampioc as one of the
respondents. The said affidavits merely mentioned an "unidentified member
of the 7th IB, Philippine Army, assigned at Brgy. Tabu, detachment." At the
time of the execution of the affidavits, the witnesses could have known that
Wennie Tampioc was a sergeant, and that he was a commander of the
detachment. Finally, the straightforward and emphatic manner in which
Wennie Tampioc testified inspired belief in the trial court's mind. 6
On December 8, 1993, the trial court rendered the assailed judgment, the
dispositive of which states:
31
 WHEREFORE, premises considered, this Court finds the accused
Aaron Flores, Edgar Villeran and Sulpecio Silpao GUILTY beyond
reasonable doubt of the crime of kidnapping and serious illegal
detention as defined and penalized in Article 267 of the Revised
Penal Code and are each sentenced to suffer the penalty of Reclusion
Perpetua; and there being no proof that Samson Sayam is dead, they
are ordered to pay him jointly and severally, or in the alternative, his
heirs the sum of Fifty Thousand (P50,000.00) Pesos as damages,
without subsidiary imprisonment in case of insolvency and to pay the
costs of this suit.
The accused Wennie Tampioc is ACQUITTED on grounds of
reasonable doubt.
The bail bonds of the said accused are ordered cancelled and the
convicted accused ordered confined pending appeal if they so file an
appeal, in accordance with Administrative Circular No. 2-92, dated
January 20, 1992 of the Supreme Court.
SO ORDERED.7
Two (2) separate appeals were brought before us. Accused-appellant
Sulpecio Silpao raised the following errors:
I. THE TRIAL COURT ERRED IN CONVICTING ACCUSED-
APPELLANT SULPECIO SILPAO OF THE CRIME OF
KIDNAPPING AND SERIOUS ILLEGAL DETENTION, UNDER
ARTICLE 267, REVISED PENAL CODE.
II. THE TRIAL COURT ERRED IN HOLDING THE ACCUSED-
APPELLANT CAFGU SULPECIO SILPAO, AS AMONG THOSE
WHO FORCIBLY BROUGHT SAMSON SAYAM TO THEIR
HEADQUARTERS IN THE EVENING OF 29 SEPTEMBER 1992
AND RESPONSIBLE FOR SAMSON SAYAM'S
DISAPPEARANCE.
III. THE TRIAL COURT ERRED IN FINDING ACCUSED-
APPELLANT CAFGU SULPECIO SILPAO GUILTY BEYOND
REASONABLE DOUBT OF THE OFFENSE CHARGED.
On the other hand, accused-appellants Aaron Flores and Edgar Villeran
interposed a joint appeal based on the sole error that:
THE TRIAL COURT ERRED IN FINDING ACCUSED-
APPELLANTS AARON FLORES AND EDGAR VILLERAN
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
KIDNAPPING AND SERIOUS ILLEGAL DETENTION BASED
ON CIRCUMSTANTIAL AND INSUFFICIENT EVIDENCE.
After a thorough review of the facts and evidence adduced before the trial
court, we find that accused-appellants should be acquitted of the offense
charged against them.
The crime of Kidnapping and Serious Illegal Detention is defined and
penalized under Article 267 of the Revised Penal Code, as amended by
Republic Act No. 7659. The elements of the offense are:
1. That the offender is a private individual.
2. That he kidnaps or detains another, or in any other manner
deprives the latter of his liberty.
3. That the act of detention or kidnapping must be illegal.
4. That in the commission of the offense, any of the following
circumstances are present:
(a) That the kidnapping or detention lasts for more than 3
days;
(b) That it is committed simulating public authority;
(c) That any serious physical injuries are inflicted upon the
person kidnapped or detained or threats to kill him are made;
or
(d) That the person kidnapped is a minor, female or public
officer.8
32
Clearly, accused-appellants cannot be charged with or convicted of the crime
of Kidnapping and Serious Illegal Detention, since the first element of the
said crime is that the offender must be a private individual. In the case at bar,
accused-appellants were members of the local CAFGU at the time the
alleged crime was committed.
The CAFGU was created pursuant to Executive Order No. 264 for the
purpose of complementing the operations of the regular force formations in a
locality.9 It was composed of civilian volunteers who were tasked to maintain
peace and order in their localities, as well as to respond to threats to national
security. As such, they were provided with weapons, and given the authority
to detain or order detention of individuals.10
The Solicitor General recognizes the error of charging and convicting
accused-appellants of Kidnapping and Serious Illegal Detention for the
reason that the appellants are not private individuals, but public officers. As
such, the Solicitor General submits that, under the facts alleged, accused-
appellants can only be liable for the crime of Arbitrary Detention, defined
and penalized in Article 124 of the Revised Penal Code. The prosecution
maintains that inasmuch as all the other elements of Arbitrary Detention were
alleged in the criminal information filed against the accused-appellants, they
may still be convicted of said crime.
Arbitrary detention is committed by any public officer or employee who,
without legal grounds, detains a person.11Since it is settled that accused-
appellants are public officers, the question that remains to be resolved is
whether or not the evidence adduced before the trial court proved that
Samson Sayam was arbitrarily detained by accused-appellants.
As far back as the case of U.S. v. Cabanag,12 it was held that in the crime of
illegal or arbitrary detention, it is essential that there is actual confinement or
restriction of the person of the offended party. The deprivation of liberty
must be proved,13 just as the intent of the accused to deprive the victim of his
liberty must also be established by indubitable proof.14 In the more recent
case of People v. Fajardo,15 this Court reiterated the ruling in U.S. v.
Cabanag, i.e., there must be uncontroverted proof of both intent to deprive
the victim of his liberty, as well as actual confinement or restriction.
Detention is defined as the actual confinement of a person in an enclosure, or
in any manner detaining and depriving him of his liberty.16 A careful review
of the records of the instant case shows no evidence sufficient to prove that
Samson Sayam was detained arbitrarily by accused-appellants. While the
prosecution witnesses testified that accused-appellants were seen walking
with Samson Sayam toward the direction of the detachment headquarters,
there is no shred of evidence that he was actually confined there or anywhere
else. The fact that Samson Sayam has not been seen or heard from since he
was last seen with accused-appellants does not prove that he was detained
and deprived of his liberty. The prosecution, however, argues that Samson
Sayam was deprived of his liberty when accused-appellants forced him to go
with them when they left the store of Jerry Cabrillos and brought him to the
detachment headquarters.
We assayed the testimonies of the prosecution's main witnesses, namely,
Carlito Manlangit and his son Jerry Manlangit. Carlito Manlangit's testimony
was offered to prove that Samson Sayam was forcibly taken from the store
and that the latter tried his best to free himself from his abductors. And yet,
all that Carlito testified to was that he saw Samson Sayam crossing the street
alone from the store of a certain Moleng; that the four accused, who were
armed, followed Sayam and asked for his residence certificate; that the four
accused apprehended Samson Sayam and brought him to the detachment
headquarters; and that he went home after he saw Samson Sayam talking to
the accused.17
It is readily apparent that Carlito Manlangit's testimony failed to prove the
stated purpose thereof, i.e., that Samson Sayam was taken forcibly to the
detachment headquarters. To be sure, the witness did not state that Samson
Sayam was pulled, dragged, or coerced to go with accused-appellants.
Neither did he say that Samson Sayam was taken at gunpoint. There is also
no relevant testimony to the effect that Samson Sayam tried his best to free
himself from the clutches of accused-appellants. For if that were the truth, the
reactions of Carlito Manlangit do not conform to human experience. If he
really witnessed Samson Sayam being apprehended, forcibly taken, and
trying to free himself, it cannot be logically explained why Carlito Manlangit
just went home,18 instead of doing anything to help Samson Sayam. He
admitted that he did not immediately report the incident to the
authorities.19 More telling is the absence of testimony to the effect that
Samson Sayam was being taken to the detachment headquarters against his
will, that he was protesting his apprehension, or that he was asking for help,
considering that there were other people within hearing and seeing distance.
Most damaging is Carlito Manlangit's statement that he did not see Samson
Sayam in the detachment headquarters with any or all of the accused. 20 In
33
fine, Carlito Manlangit's testimony failed to prove that Samson Sayam was
arbitrarily detained or deprived of his liberty.
Jerry Manlangit, son of Carlito, also testified for the prosecution. According
to him, he and Samson Sayam went to Barangay Tabu to have a sack of palay
milled on September 29, 1992. At around six in the evening, while on their
way home, they passed by the store of Terry Cabrillos to buy kerosene.
There, he saw the four accused drinking beer. Samson Sayam told him to go
home because he had to show his residence certificate and barangay
clearance to accused-appellant Aaron Flores. Jerry Manlangit then proceeded
to his residence in Hacienda Shangrila, located about half a kilometer away
from the center of Barangay Tabu. Later, he told his father that Samson
Sayam stayed behind and asked him to fetch Samson. He also testified that
he heard gunshots coming from the direction of the detachment
headquarters.21
The testimony of Jerry Manlangit does not prove any of the elements of the
crime of arbitrary detention. Neither does it support nor corroborate the
testimony of his father, Carlito, for they dealt on a different set of facts. Jerry
Manlangit did not see any of accused-appellant apprehend or detain Samson
Sayam. He did not even see if accused-appellant Flores really inspected the
residence certificate and barangay clearance of Samson Sayam. The rest of
his testimony comprised of hearsay evidence,22 which has no probative
value.23 In summary, Jerry Manlangit's testimony failed to establish that
accused-appellants were guilty of arbitrary detention.
The prosecution also presented the testimony of Nelson Golez, who
identified the four accused as the persons with Samson Sayam, drinking
inside the store of Terry Cabrillos. He also stated that following a heated
argument, the accused and Samson Sayam left the store and went towards the
direction of the detachment headquarters. He said that the accused were
"holding and pulling" Samson Sayam "towards the road." Ten minutes later,
Nelson Golez heard a single gunshot followed by rapid firing.24
On cross-examination, however, Nelson Golez did not affirm his earlier
statement that the accused and Samson Sayam were engaged in a heated
argument. Rather, he said he did not hear them arguing as they were leaving
the store. Although Nelson Golez attested that Samson Sayam was protesting
while the accused were dragging him, he did not do anything to help Samson
Sayam, who happened to be his cousin.25
Again, no conclusion of guilt can be inferred from Nelson Golez's testimony.
First of all, he was unsure of his assertion that there was an argument. The
mere fact that Samson Sayam was being dragged towards the road does not
constitute arbitrary detention. There is no showing that Samson Sayam was
completely deprived of his liberty such that he could not free himself from
the grip of the accused, if he was indeed being held against his will. The
incident transpired in a public place, where there were people milling about,
many of whom were his friends. It is puzzling that Samson Sayam did not
cry out for help. Nobody bothered to report the incident, if indeed it
happened, to the barangay authorities. No one else came forward to
corroborate the testimony of Nelson Golez.
The testimony of Nelson Golez, by itself, lacks credibility. He wavered on
material points, even as the prosecution failed to substantiate by direct or
corroborative evidence the bare testimony of Nelson Golez.
It is basic and elemental that in criminal prosecutions, before the accused
may be convicted of a crime, his guilt must be proven beyond reasonable
doubt. Although the findings of fact made by trial courts are generally not
disturbed on appeal, if there are substantial facts which were overlooked but
which may alter the results of the case in favor of the accused, such facts
should be taken into account by the appellate court.26 And where it appears
that the trial court erred in the appreciation of the evidence on record or the
lack of it, the factual findings of the trial court may be reversed. 27
After thoroughly reviewing the records of this case and weighing the
testimonial evidence on the scale of creditworthiness and materiality, this
Court finds the evidence of the prosecution grossly insufficient to sustain a
conviction. Again, the fact of detention, whether illegal or arbitrary, was not
clearly established by credible evidence. There was no showing that Samson
Sayam was locked up, restrained of his freedom, or prevented from
communicating with anyone. Likewise, there was no proof that there was
actual intent on the part of accused-appellants to arbitrarily deprive Samson
Sayam of his liberty. It is necessary that there must be a purposeful or
knowing action by accused-appellants to restrain the victim by or with force,
because taking coupled with intent completes the crime of illegal or arbitrary
detention.28
The prosecution, however, maintains that the evidence, even though
circumstantial, sufficiently establishes the guilt of the accused-appellants. It
cites the following circumstances:
34
 1. On September 29, 1992, at about 6:00 o'clock in the evening,
accused-appellants, together with their companions Sergeant
Tampioc and fellow CAFGU Sulpecio Silpao, were seen with
Samson at the store of Terry Cabrillos. Accused-appellants were
having a drinking spree. Later, they were seen engaged in a heated
argument.
2. Thereafter, Samson was forcibly brought out of the store by
accused-appellants by holding and pulling him towards the road.
From another angle, another prosecution witness saw accused-
appellants on the road arresting Samson.
3. Accused-appellants brought Samson towards the direction of the
detachment of Brgy. Tabu.
4. Ten (10) minutes later, a gunshot was heard coming from the
direction of the detachment followed by rapid firing.
5. After the incident, Samson was never seen again or heard from.29
As already discussed, the above-enumerated circumstances were not
established by clear and convincing evidence. And even if these acts were
proven to be true, the combination of all these circumstances would still not
be able to produce a conviction beyond reasonable doubt. To our mind, the
totality of these circumstantial evidence do not constitute an unbroken chain
pointing to the fair and reasonable conclusion that the accused-appellants are
guilty of the crime charged.
For circumstantial evidence to be sufficient to support a conviction, all the
circumstances must be consistent with the hypothesis that the accused-
appellants are guilty, and inconsistent with the possibility that they are
innocent.30Thus:
SECTION 4. Circumstantial evidence, when sufficient. —
Circumstantial evidence is sufficient for conviction if:
a) There is more than one circumstance;
b) The facts from which the inferences are derived are proven; and
c) The combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.31
The rule is clear that there must be at least two proven circumstances which
in complete sequence leads to no other logical conclusion than that of the
guilt of the accused.32 It is admitted that Samson Sayam was seen drinking
with accused-appellants on that fateful night. However, the circumstances
that there was a heated argument among them, and that the accused-
appellants held and pulled Samson Sayam to the road and brought him
towards the direction of the detachment headquarters was not sufficiently
proven by material or relevant testimony.
Moreover, the circumstance that gunshots were heard on that night have no
relevancy to the case. Even if it were, it cannot be concluded that the
gunshots came from the direction of the detachment headquarters. The
witnesses who testified that they heard the gunshots were at least half a
kilometer away from the center of the barangay, while the detachment
headquarters itself was also some distance from the barangay. At night,
especially in the rural areas when all is quiet, loud sounds such as gunshots
reverberate and would seem to come from every direction. An ordinary
person a kilometer away cannot, with certainty, point to the exact location
where the gunshots would be coming from. That would otherwise be
attributing expertise on such matters to the prosecution witnesses.
That Samson Sayam was never seen or heard from again cannot be the basis
for the trial court to render judgment convicting the accused-appellants. In
fact, it has no bearing in this case because it is not one of the elements of the
crime of arbitrary detention. Consequently, only one relevant circumstance
was proved, i.e., that accused-appellants were the last persons seen with
Samson Sayam. However, said circumstance does not necessarily prove that
they feloniously abducted him, then arbitrarily detained him.33
Moreover, mere suspicion that the disappearance of Samson Sayam was a
result of accused-appellants' alleged criminal acts and intentions is
insufficient to convict them. Proof beyond reasonable doubt is the required
quantum of evidence.34 An uncorroborated circumstantial evidence is
certainly not sufficient for conviction when the evidence itself is in serious
doubt.35 The prosecution was not able to prove a possible motive why
accused-appellants would arbitrarily detain Samson Sayam. In sum, there is
no unbroken chain of circumstances leading to the conclusion that accused-
appellants are guilty. Since the pieces of circumstantial evidence do not
35
fulfill the test of moral certainty that is sufficient to support a judgment or consistently ruled that it is better to acquit a guilty person than to convict an
conviction, the Court must acquit the accused.36 innocent one.40

In the recent case of People v. Comesario,37 we had occasion to rule that: WHEREFORE, the assailed decision is REVERSED and SET ASIDE.
Accused-appellants are ACQUITTED. Unless being held or detained for
Accused-appellant's conviction by the trial court hinged on some lawful reason, accused-appellants are ORDERED RELEASED
circumstantial evidence. To validly invoke circumstantial evidence, immediately. The Director of Prisons is DIRECTED to inform this Court,
it must be shown that there is more than one circumstance and the within five (5) days from notice, of the date and time when accused-
facts from which the inferences are derived are proven. The appellants are released pursuant to this Decision.
combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt. The circumstances must SO ORDERED.
constitute an unbroken chain of events that can lead reasonably to the
conclusion pointing to the accused to the exclusion of all others as Davide, Jr., C .J ., Puno and Pardo, JJ ., concur.
the author of the crime. Logically, it is where the evidence is purely Kapunan, J ., is on leave.
circumstantial that there should be an even greater need than usual
to apply with vigor the rule that the prosecution cannot depend on
the weakness of the defense and that any conviction must rest on
nothing less than a moral certainty of guilt of the accused. Like a
tapestry made of strands which create a pattern when interwoven, a
judgment of conviction based on circumstantial evidence can be
upheld only if the circumstances proved constitute an unbroken
chain which leads to one fair and reasonable conclusion pointing to
the accused, to the exclusion of all others, as the guilty person.

Accused-appellants enjoy the presumption of innocence until the contrary is

proved. In the case at bar, the pieces of testimonial evidence relied on by the
prosecution and the trial court to support a conviction have failed to
overcome the constitutional precept of the presumed innocence of accused-
appellants. Among other grounds, not only is there a lot of room for
reasonable doubt in regard to their guilt, there is a virtual dearth of
convincing evidence to prove that a crime had been committed.

There is no need even to assess the evidence of the defense, for the
prosecution bears the onus to distinctly and indubitably prove that a crime
had been committed by accused-appellants.38 It is incumbent upon the
prosecution to establish its case with that degree of proof which leads to no
other conclusion but conviction in an unprejudiced mind. The evidence for
the prosecution must stand or fall on its own merits for it cannot be allowed
to draw strength from the weakness of the evidence for the defense.39 Clearly,
the prosecution in this case has failed to prove the guilt of accused-appellants
beyond reasonable doubt. In similar cases, this Court has often and
36

G.R. No. 134503. July 2, 1999.*
JASPER AGBAY, petitioner, vs. THE HONORABLE DEPUTY
OMBUDSMAN FOR THE MILITARY, SPO4 NEMESIO NATIVIDAD,
JR. and SPO2 ELEAZAR M. SOLOMON, respondents.
Criminal Procedure; The issue as to whether the Deputy Ombudsman
for the Military has the authority to investigate civilian personnel of the
government was resolved in the affirmative in the case of Acop vs. Office of
the Ombudsman.—As opined by the Office of the Solicitor General in its
Comment dated 7 December 1998, the issue as to whether the Deputy
Ombudsman for the Military has the authority to investigate civilian
personnel of the government was resolved in the affirmative in the case
of Acop v. Office of the Ombudsman. In that case, the petitioners, who were
members of the Philippine National Police questioned the jurisdiction of the
Deputy Ombudsman to investigate the alleged shootout of certain suspected
members of the “Kuratong Baleleng” robbery gang.
Same; The continued detention of the accused becomes illegal upon the
expiration of the periods provided for by Article 125 without such detainee
having been delivered to the corresponding judicial authorities.—Article 125
of the Revised Penal Code is intended to prevent any abuse resulting from
confining a person without informing him of his offense and without
permitting him to go on bail. More specifically, it punishes public officials or
employees who shall detain any person for some legal ground and shall fail
to deliver such person to the proper judicial authorities within the periods
prescribed by law. The continued detention of the accused becomes illegal
upon the expiration of the periods provided for by Art. 125 without such
detainee having been delivered to the corresponding judicial authorities.
Same; Meaning of the words “judicial authority.”—The words
“judicial authority” as contemplated by Art. 125 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 other such inferior courts as
may be established by law.’ ”
____________________
*
THIRD DIVISION.
727
VOL. 309, JULY 2, 1999 727
Agbay vs. Deputy Ombudsman for the Military
Same; Same; Court agrees with the position of the Ombudsman that
such filing of the complaint with the MCTC interrupted the period prescribed
in Article 125.—The power to order the release or confinement of an accused
is determinative of the issue. In contrast with a city fiscal, it is undisputed
that a municipal court judge, even in the performance of his function to
conduct preliminary investigations, retains the power to issue an order of
release or commitment. Furthermore, upon the filing of the complaint with
37
the Municipal Trial Court, the intent behind Art. 125 is satisfied considering
that by such act, the detained person is informed of the crime imputed against
him and, upon his application with the court, he may be released on bail.
Petitioner himself acknowledged this power of the MCTC to order his release
when he applied for and was granted his release upon posting bail. Thus, the
very purpose underlying Article 125 has been duly served with the filing of
the complaint with the MCTC. We agree with the position of the
Ombudsman that such filing of the complaint with the MCTC interrupted the
period prescribed in said Article.
PETITION for certiorari to review a decision of the Deputy Ombudsman for
the Military.
The facts are stated in the opinion of the Court.
Richard W. Sison & Associates for petitioner.
The Solicitor General for respondent Deputy Ombudsman for the
Military.
GONZAGA-REYES, J.:
This petition for certiorari seeks to nullify the Resolution of the Deputy
Ombudsman for the Military dated 19 January 19981 which recommended
the dismissal of the criminal complaint filed by petitioner against herein
private respondents for violation of Article 125 of the Revised Penal Code
for delay in the delivery of detained persons, and the Order of April 13,
19982 which denied his motion for reconsideration.
The pertinent facts leading to the filing of the petition at bar are as follows:
On September 7, 1997, petitioner, together with a certain Sherwin Jugalbot,
was arrested and detained at the Liloan Police Station, Metro Cebu for an
alleged violation of R.A. 7610, the "Special Protection of Children Against
Child abuse, Exploitation and Discrimination Act."3 The following day, or on
September 8, 1997, a Complaint for violation of R.A. 7610 was filed against
petitioner and Jugalbot before the 7th Municipal Circuit Trial Court of
Liloan, Metro Cebu by one Joan Gicaraya for and in behalf of her daughter
Gayle4 . The complaint, insofar as pertinent, reads as follows:
That on the 7th day of September 1997 at Sitio Bonbon,
Brgy. Catarman, Liloan, Metro Cebu, Philippines and within
the Preliminary Jurisdiction of this Honorable Court, the
above-named accused, did then and there, willfully,
feloniously and unlawfully, conspiring, confederating,
helping with one another, while accused JASPER AGBAY
manipulating to finger the vagina of GAYLE FATIMA
AMIGABLE GICAYARA, his companion block the sight of
the Private Complainant, Mrs. JOAN A. GICAYARA, while
on board a tricycle going their destinations. Upon initial
investigation of the Bgy, Captain of Bgy. Catarman, accused
SHERWIN JUGALBOT was released and accused JASPER
AGBAY is presently detain Liloan Police Station Jail.
Medical Certificate issued from Don Vicente Sotto
Memorial Medical Center, Cebu City is hereto attached.
On September 10, 1997, counsel for petitioner wrote the Chief of Police of
Liloan demanding the immediate release of petitioner considering that the
latter had "failed to deliver the detained Jasper Agbay to the proper judicial
authority within thirty-six (36) hours from September 7, 1997."5 Private
respondents did not act on this letter and continued to detain petitioner. 6
On September 12; 1997, the 7th Municipal Circuit Trial Court of Liloan,
Metro Cebu issued an order, denominated as "Detention During the
Pendency of the Case", committing petitioner to the jail warden of Cebu
City.7 Five (5) days later, or on September 17, 1997, petitioner was ordered
released by the said court after he had posted bond.8
On September 26, 1997, petitioner filed a complaint for delay in the delivery
of detained persons against herein private respondents SPO4 Nemesio
Natividad, Jr., SPO2 Eleazar M. Salomon and other unidentified police
officers stationed at the Liloan Police Substation, before the Office of the
Deputy Ombudsman for the Visayas.9
Regarding the complaint for violation of R.A. 7610, it is alleged by petitioner
that on November 10, 1997, the 7th MCTC of Liloan, Metro Cebu issued a
resolution containing the following dispositive portion:
WHEREFORE, finding probable cause for the crime in
Violation of Republic Act 7610, it is hereby recommended
that an INFORMATION be filed against the two aforenamed
accused.
38
 Forward the record of this case to the Provincial Fiscal's
Office for appropriate action.10
By virtue of Memorandum Circular No. 14, Series of 1995, dated 10 October
1995 of the Office of the Ombudsman,11 the case for delay in delivery filed
by petitioner against herein private respondents before the Deputy
Ombudsman for the Visayas was transferred to the Deputy Ombudsman for
the Military for its proper disposition. Thus, it was this office which acted on
the complaint, now denominated as OMB-VIS-CRIM-97-0786, and which
issued the questioned Resolution dated January 19, 1998 recommending its
dismissal against herein private respondents. Petitioner moved for
reconsideration of this Resolution but this motion was denied in an Order
dated April 13, 1998.
Hence, this petition for certiorari.
The grounds relied upon in the present petition12 are as follows:
I.
THE PUBLIC RESPONDENT GRAVELY ABUSED ITS
DISCRETION IN RELYING ON MEMORANDUM
CIRCULAR NO. 14, SERIES OF 1995, DATED 10
OCTOBER 1995, OF THE OFFICE OF THE
OMBUDSMAN IN HOLDING THAT IT HAS
COMPETENCE TO ACT ON THE ABOVE-ENTITLED
CASE BEFORE IT, THE SAID CIRCULAR BEING
UNCONSTITUTIONAL AND ILLEGAL, HENCE, NULL
AND VOID.
II.
THE PUBLIC RESPONDENT GRAVELY ABUSED ITS
DISCRETION IN NOT HOLDING THAT IT IS BEYOND
ITS COMPENCE TO DETERMINE WHETHER OR NOT
THE MUNICIPAL CIRCUIT TRIAL COURT OF
LILOAN-COMPOSTELA HAS IN FACT NO
JURISDICTION TO TRY THE CASE FILED AGAINST
HEREIN PETITIONER.
III.
THE PUBLIC RESPONDENT GRAVELY ABUSED ITS
DISCRETION IN NOT HOLDING THAT THE MCTC,
WHILE HAVING AUTHORITY TO CONDUCT A
PRELIMINARY INVESTIGATION, IS NOT THE
"PROPER JUDICIAL AUTHORITY " CONTEMPLATED
IN ARTICLE 125 OF THE REVISED PENAL CODE
AND, HENCE, THE FILING OF THE COMPLAINT
BEFORE IT FOR THE PURPOSE OF CONDUCTING A
PRELIMINARY INVESTIGATION DID NOT
INTERRUPT THE PERIOD PRESCRIBED BY ART. 125.
IV.
THE PUBLIC RESPONDENT GRAVELY ABUSED ITS
DISCRETION IN HOLIDING THAT THE ISSUE OF THE
VALIDITY OF THE ORDER OF DETENTION IS
IRRELEVANT TO THE ISSUE OF CRIMINAL
LIABILITY OF PRIVATE RESPONDENTS FOR DELAY
IN THE DELIVERY OF DETAINED PERSONS.
V.
THE PUBLIC RESPONDENT GRAVELY ABUSED ITS
DISCRETION IN HOLDING THAT THE DUTY OF
PRIVATE RESPONDENTS TO FILE THE NECESSARY
COMPLAINT IN COURT WAS FULFILLED WHEN
THEY FILED A FORMAL COMPLAINT ON 8
SEPTEMBER 1997 WITH THE 7TH MCTC OF LILOAN-
COMPOSTELA.
On the first issue, petitioner argues that due to the civilian character of the
Philippine National Police, the Office of the Deputy Ombudsman for the
Military, by virtue of the description of the Office, has no competence or
jurisdiction to act on his complaint against private respondents who are
members of the PNP. Petitioner also questions the constitutionality of
Memorandum Circular No. 14 insofar as it purports to vest the Office of the
Deputy Ombudsman for Military Affairs with jurisdiction to investigate all
cases against personnel of the Philippine National Police.1âwphi1.nêt
39
There is no dispute as to the civilian character of our police force. The 1987
Constitution, in Section 6, Article XVI, has mandated the establishment of
"one police force, which shall be national in scope and civilian
character (emphasis supplied)." Likewise, R.A. 697513 is categorical in
describing the civilian character of the police force. 14The only question now
is whether Memorandum Circular No. 14, in vesting the Office of the Deputy
Ombudsman for the Military with jurisdiction to investigate complaints
against members of the PNP, violates the latter's civilian character.
As opined by the Office of the Solicitor General in its Comment dated 7
December 199815, the issue as to whether the Deputy Ombudsman for the
Military has the authority to investigate civilian personnel of the government
was resolved in the affirmative in the case of Acop v. Office of the
Ombudsman.16 In that case, the petitioners, who were members of the
Philippine National Police questioned the jurisdiction of the Deputy
Ombudsman to investigate the alleged shootout of certain suspected
members of the "Kuratong Baleleng" robbery gang; this Court held that:
The deliberations on the Deputy for the military
establishment do not yield conclusive evidence that such
deputy is prohibited from performing other functions or
duties affecting non-military personnel. On the contrary, a
review of the relevant Constitutional provisions reveal
otherwise.
As previously established, the Ombudsman "may exercise
such other powers or perform such functions or duties" as
Congress may prescribe through legisiation. Therefore,
nothing can prevent Congress from giving the Ombudsman
supervision and control over the Ombudsman's deputies, one
being the deputy for the military establishment. In this light,
Section 11 of R.A. No. 6770 provides:
Sec. 11. Structural Organization. — The
authority and responsibility for the exercise
of the mandate of the Office of the
Ombudsman and for the discharge of its
powers and functions shall be vested in the
Ombudsman, who shall have supervision
and control of the said Office.
While Section 31 thereof declares:
Sec. 31. Designation of Investigators and
Prosecutors. — The Ombudsman may
utilize the personnel of his office and/or
designate or deputize any fiscal, state
prosecutor to assist in the investigation and
prosecution of certain cases. Those
designated or deputized to assist him herein
shall be under his supervision and control.
Accordingly, the Ombudsman may refer cases involving
non-military personnel for investigation by the Deputy for
Military Affairs. In these cases at bench, therefore, no
irregularity attended the referral by the Acting Ombudsman
of the Kurutong Baleleng case to respondent Casaclang who,
in turn, created a panel of investigators.17
The cited case is determinative of the issue. However, petitioner, in his Reply
to Comment dated February 1, 1999, argues that the ruling in the Acop case
is not on all fours with the case at bar18. Petitioner states that the doctrine laid
down in the said case is simply that "the Ombudsman may refer cases
involving non-military personnel for investigation by the Deputy for Military
Affairs. This doctrine, petitioner argues, "applies only to isolated or
individual cases involving non-military personnel referred by the
Ombudsman to the Deputy for Military Affairs" and does not apply when, as
in this case, there is a wholesale or indiscriminate referral of such cases to the
Deputy Ombudsman for Military Affairs in the form of an Office
Memorandum Circular.
Petitioner's arguments do not convince as there is no basis for the distinction.
There is no basis in the above-cited decision to limit the referral of cases
involving non-military personnel to the Deputy Ombudsman for Military
Affairs to isolated or individual cases. The Office of the Ombudsman, in
issuing Memorandum Circular No. 15, is simply exercising the power vested
in the Ombudsman "to utilize the personnel of his office and/or designate or
deputize any fiscal, state prosecutor or the or lawyer in the government
service to act as special investigator or prosecutor to assist in the
investigation and prosecution of certain cases." This Court, absent any grave
40
abuse of discretion, may not enterfere with the exercise by the Ombudsman
of his power of supervision and control over the said Office.
Petitioner further argues that Memorandum Circular No. 14 violates the clear
intent and policy of the Constitution and of R.A. 6975 to maintain the
civilian character of the police force and "would render nugatory and
meaningless the distinction between cases involving civilian and military
personnel and the creation of separate divisions of the Ombudsman."19
Said contentions are misplaced.
The Deputy Ombudsman for the Military, despite his designation as such, is
by no means a member of the military establishment. The said Office was
established "to extend the Office of the Ombudsman to the military
establishment just as it champions the common people against bureaucratic
indifference". The Office was intended to help the "ordinary foot soldiers" to
obtain redress for their grievances against higher authorities and the drafters
of the Constitution were aware that the creation of the Office, which is
seemingly independent of the President, to perform functions which
constitutionally should be performed by the President, might be in derogation
of the powers of the President as Commander-In-Chief of the Armed
Forces20.
It must be borne in mind that the Office of the Ombudsman was envisioned
by the framers of the 1987 Constitution as the "eyes and ears of the
people"21 and "a champion of the citizen.22" Sec. 12, Art. XI of the 1987
Constitution describes the Ombudsman and his deputies as "protectors of the
people." Thus, first and foremost, the Ombudsman and his deputies,
including the Deputy Ombudsman for the Military owe their allegiance to the
people and ordinary citizens, it is clearly not a part of the military. We fail to
see how the assumption of jurisdiction by the said office over the
investigation of cases involving the PNP would detract from or violate the
civilian character of the police force when precisely the Office of the
Ombudsman is a civilian office.
The other issues raised by petitioner concerns the application of Art. 125 of
the Revised Penal Code which provides as follows:
Art. 125. Delay in the delivery of detained persons to the
proper judicial authorities. — The penalties provided in the
next preceding 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 for the
proper judicial authorities within the period of: twelve (12)
hours, for crimes or offenses punishable by light penalties, or
their equivalent; eighteen (18) hours, for crimes or offenses
punishable by correctional penalties, or their equivalent; and
thirty-six hours (36) hours, for crimes or offenses punishable
by afflictive or capital penalties, or their equivalent.
In every case, the person detained shall be informed of the
cause of his detention and shall be allowed, upon his request,
to communicate and confer at any time with his attorney or
counsel.
In the case at bar, petitioner was arrested and detained at the Liloan Police
Station on 7 September 1997 for an alleged violation of R.A. 7610,
specifically section 5 (b) thereof23. This crime carries a penalty of reclusion
temporalin its medium period to reclusion perpetua, an afflictive penalty.
Under these circumstances, a criminal complaint or information should be
filed with the proper judicial authorities within thirty six (36) hours of his
arrest.
As borne by the records before us the mother of private complainant, Joan
Gicaraya, filed a complaint on 8 September 1997 against petitioner for
violation of R.A. 7610 before the 7th Municipal Circuit Trial Court of
Liloan, Metro Cebu.
Petitioner contends that the act of private complainant in filing the complaint
before the MCTC was for purposes of preliminary investigation as the
MCTC has no jurisdiction to try the offense. This act of private complainant
petitioner argues, was unnecessary, a surplusage which did not interrupt the
period prescribed by Art. 12524 considering that under the Rules it is the
Regional Trial Court which has jurisdiction to try the case against him. As
such, upon the lapse of the thirty-six hours given to the arresting officers to
effect his delivery to the proper Regional Trial Court, private respondents
were already guilty of violating Art. 125. Thus, petitioner argues, when the
Judge-Designate of the 7th MCTC issued a Commitment Order on
September 12, 1997, he was acting contrary to law since by then there was no
basis for the continued detention of petitioner.25
41
In addressing the issue, the Office of the Deputy Ombudsman for the
Military in its 13 April 1998 Order, stated that the duty of filing the
corresponding complaint in court was "fulfille by respondent when the
formal complaint was filed on September 8, 1997 with the 7th MCTC of
Liloan-Compostela, barely 20 hours after the arrest of herein complainant of
September 7, 1997."26 The Solicitor General, for his part, argues that while a
municipal court judge may conduct preliminary investigations as an
exception to his normal judicial duties, he still retains the authority to issue
an order of release or commitment. As such, upon the filing of the complaint
with the MCTC, there was already compliance with the very purpose and
intent of Art. 12527.
The core issue is whether the filing of the complaint with the Municipal Trial
Court constitutes to a "proper judicial authority" as contemplated by Art. 125
of the Revised Penal Code.
Art. 125 of the Revised Penal Code is intended to prevent any abuse resulting
from confining a person without informing him of his offense and without
permitting him to go on bail28. More specifically, it punishes public officials
or employees who shall detain any person for some legal ground and shall
fail to deliver such person to the proper judicial authorities within the periods
prescribed by law. The continued detention of the accused becomes illegal
upon the expiration of the periods provided for by Art. 125 without such
detainee having been delivered to the corresponding judicial authorities 29.
The words "judicial authority" as contemplated by Art. 125 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 other such
inferior courts as may be established by law.30"
Petitioner takes great pains in arguing that when a municipal trial court
judge, as in the instant case, conducts a preliminary investigation, he is not
acting as a judge but as a fiscal. In support, petitioner cites the cases
of Sangguniang Bayan ng Batac, Ilocos Norte vs. Albano, 260 SCRA 561,
and Castillo vs. Villaluz, 171 SCRA 39, where it was held that "when a
preliminary investigation is conducted by a judge, he performs a non-judicial
function as an exception to his usual duties." Thus, petitioner opines, the
ruling in Sayo v. Chief of Police of Manila, 80 Phil. 862, that the city fiscal is
not the proper judicial authority referred to in Art. 125 is applicable.
Petitioner's reliance on the cited cases is misplaced. The cited cases of
Sangguniang Bayan and Castillo dealt with the issue of whether or not the
findings of the Municipal Court Judge in a preliminary investigation are
subject to review by provincial and city fiscals. There was no pronoucement
in these cases as to whether or not a municipal trial court, in the exercise of
its power to conduct preliminary investigations, is a proper judicial authority
as contemplated by Art. 125.
Neither can petitioner rely on the doctrine enunciated in Sayo vs. Chief of
Police, supra, since the facts of this case are different. In Sayo, the
complainant was filed with the city fiscal of Manila who could not issue an
order of release or commitment while in the instant case, the complaint was
filed with a judge who had the power to issue such an order. Furthermore, in
the Resolution denying the Motion for Reconsideration of the Sayo case31,
this Court even made a pronouncement that the delivery of a detained person
"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 warrants."
The power to order the release or confinement of an accused is determinative
of the issue. In contrast with a city fiscal, it is undisputed that a municipal
court judge, even in the performance of his function to conduct preliminary
investigations, retains the power to issue an order of release or commitment 32.
Furthermore, upon the filing of the complaint with the Municipal Trial Court,
the intent behind art. 125 is satisfied considering that by such act, the
detained person is informed of the crime imputed against him and, upon his
application with the court, he may be released on bail33. Petitioner himself
acknowledged this power of the MCTC to order his release when he applied
for and was granted his release upon posting bail34. Thus, the very purpose
underlying Article 125 has been duly served with the filing of the complaint
with the MCTC. We agree with the postion of the Ombudsman that such
filing of the complaint with the MCTC interrupted the period prescribed in
said Article.
Finally, we note that it was the mother of private complainant who filed the
complaint against petitioner with the 7th MCTC of Liloan, Metro Cebu. If
tere was any error in this procedure, private respondents should not be held
liable. In the same manner, petitioner's argument that the controversial orders
issued by the MCTC are contrary' to law does not give rise to criminal
42
liability on the part of the respondents. Respondent police officers may have
rendered themselves open to sanctions if they had released petitioners
without the order of the court, knowing fully well that a complainant was a
already filed with it.
WHEREFORE, finding no grave abuse of discretion in the issuance of the
assailed January 19, 1998 Resolution and the April 13, 1998 Order of the
Office of the Deputy Ombudsman for the Military, the Court resolves to
DISMISS the petition. No pronouncement as to costs.
SO ORDERED.
Vitug, Panganiban and Purisima, JJ., concur.
Romero, J., abroad on official business leave.
G.R. No. 117321. February 11, 1998.*
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERSON
TAN y VERZO, accused-appellant.
Constitutional Law; Custodial Investigations; Extrajudicial
Confessions; The Constitution abhors an uncounselled confession or
admission and whatever information is derived therefrom shall be regarded
as inadmissible in evidence against the confessant.—It is well-settled that the
Constitution abhors an uncounselled confession or admission and whatever
information is derived therefrom shall be regarded as inadmissible in
evidence against the confessant. Article III, Section 12, paragraphs (1) and
(3) of the Constitution provides: “x x x x x x x x x Sec. 12. (1) Any person
under investigation for the commission of an offense shall have the right to
be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford
the services of counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.
_______________
*
THIRD DIVISION.
208
208 SUPREME COURT REPORTS ANNOTATED
People vs. Tan
x x x x x x x x x (3) Any confession or admission obtained in violation
of this or the preceding section shall be inadmissible against him.”
Same; Same; Same; Republic Act No. 7438; Words and
Phrases;Under R.A. No. 7438, “custodial investigation” shall include the
practice of issuing an “invitation” to a person who is investigated in
connection with an offense he is suspected to have committed.—Republic Act
No. 7438 (R.A. No. 7438), approved on May 15, 1992, reenforced the
constitutional mandate protecting the rights of persons under custodial
investigation, a pertinent provision of which reads: “As used in this Act,
‘custodial investigation’ shall include the practice of issuing an ‘invitation’
to a person who is investigated in connection with an offense he is suspected
to have committed, without prejudice to the liability of the ‘inviting’ officer
for any violation of law.”
Same; Same; Same; The rules on custodial investigation begin to
operate as soon as the investigation ceases to be a general inquiry into an
unsolved crime and begins to focus on a particular suspect, the suspect is
taken into custody, and the police carries out a process of interrogations that
tends itself to eliciting incriminating statements.—Custodial investigation
involves any questioning initiated by law enforcement authorities after a
person is taken into custody or otherwise deprived of his freedom of action in
43
any significant manner. The rules on custodial investigation begin to operate
as soon as the investigation ceases to be a general inquiry into an unsolved
crime and begins to focus a particular suspect, the suspect is taken into
custody, and the police carries out a process of interrogations that tends itself
to eliciting incriminating statements that the rule begins to operate.
Same; Same; Same; Requirements for Admissibility of Extrajudicial
Confessions.—Under the Constitution and existing law and jurisprudence, a
confession to be admissible must satisfy the following requirements: (1) it
must be voluntary; (2) it must be made with the assistance of competent and
independent counsel; (3) it must be express; and (4) it must be in writing.
Same; Same; Same; Right to Counsel; Even if the confession contains
a grain of truth, if it was made without the assistance of counsel, it becomes
inadmissible in evidence, regardless of the absence
209
VOL. 286, FEBRUARY 11, 1998 209
People vs. Tan
of coercion or even if it had been voluntarily given.—While the
Constitution sanctions the waiver of the right to counsel, it must, however, be
“voluntary, knowing and intelligent, and must be made in the presence and
with the assistance of counsel.” To reiterate, in People v. Javar, it was ruled
therein that any statement obtained in violation of the constitution, whether
exculpatory or inculpatory, in whole or in part, shall be inadmissible in
evidence. Even if the confession contains a grain of truth, if it was made
without the assistance of counsel, it becomes inadmissible in evidence,
regardless of the absence of coercion or even if it had been voluntarily given.
Same; Same; Same; Same; Right Against Self-Incrimination;The
constitutional rights of the suspect, particularly the right to remain silent and
to counsel, are impregnable from the moment he is investigated in
connection with an offense he is suspected to have committed, even if the
same be initiated by mere invitation.—The evidence for the prosecution
shows that when appellant was invited for questioning at the police
headquarters, he allegedly admitted his participation in the crime. This will
not suffice to convict him, however, of said crime. The constitutional rights
of appellant, particularly the right to remain silent and to counsel, are
impregnable from the moment he is investigated in connection with an
offense he is suspected to have committed, even if the same be initiated by
mere invitation. “This Court values liberty and will always insist on the
observance of basic constitutional rights as a condition sine qua non against
the awesome investigative and prosecutory powers of government.”
APPEAL from a decision of the Regional Trial Court of Gumaca, Quezon,
Br. 62.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Public Attorney’s Office for accused-appellant.
ROMERO, J.:
May the confession of an accused, given before a police investigator upon
invitation and without the benefit of counsel, be admissible in evidence
against him?
Accused-appellant Herson Tan, along with Lito Amido, were charged with
the crime of highway robbery with murder before the Regional Trial Court,
Branch 62, of Gumaca, Quezon Province, under an information1 dated
February 8, 1989, which reads as follows:
That on or about the 5th day of December 1988, along the Maharlika
Highway at Barangay Tinandog, Municipality of Atimonan,
Province of Quezon, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping each other, armed with
bladed and pointed weapons, with intent to gain, by means of force,
violence, threats and intimidation, did then and there willfully,
unlawfully and feloniously take, steal and carry away from one
Freddie Saavedra, a Honda TMX motorcycle with a sidecar bearing
Plate No. DW 9961 valued at THIRTY THOUSAND PESOS
(P30,000.00) Philippine currency, belonging to the said Freddie
Saavedra, to the damage and prejudice of the latter in the aforesaid
amount; and that on the occasion of said robbery and by reason
thereof, the said accused, with intent to kill, with evident
premeditation and treachery, and taking advantage of their superior
strength and in pursuance of their conspiracy, did then and there
willfully, unlawfully and feloniously attack, assault and stab with the
said weapon said Freddie Saavedra, thereby inflicting upon the latter
multiple stab wounds on the different parts of his body, which
directly caused his death.
Contrary to law.
44
On arraignment, the accused pleaded not guilty to the charge.
The relevant facts established by the prosecution are as follows:
On December 5, 1988, at about 7:00 o'clock p.m., tricycle driver Freddie
Saavedra went to see his wife, Delfa, at Our Lady of Angeles Academy in
Atimonan, Quezon, where the latter is a third year high school student, to
inform her that he will drive both accused to Barangay Maligaya. It was the
last time, however, that Freddie was seen alive. When the latter failed to
return that evening, Delfa, as early as 4:30 o'clock a.m. of December 6, 1988
inquired on his whereabouts from relatives and friends. In the course of such
inquiry, a certain Arnel Villarama revealed that the lifeless body of her
husband was discovered on the diversion road at Barangay Malinao in
Atimonan. Forthwith, they proceeded to the said place and found him
sprawled on the ground with fourteen stab wounds in different parts of his
body.
Meanwhile, relying on the information that an abandoned sidecar of a
tricycle was sighted at Barangay Malinao, Lucena Philippine National Police
(PNP) led by Lt. Carlos Santos proceeded to the scene of the crime and
recovered a blue sidecar which they brought back with them to their
headquarters. Subsequently, Lt. Santos, Cpl. Numeriano Aguilar and Pat.
Rolando Alandy invited appellant in connection with the instant case and
with respect to two other robbery cases reported in Lucena City. During their
conversation, appellant allegedly gave an explicit account of what actually
transpired in the case at bar. He narrated that he and co-accused Amido were
responsible for the loss of the motorcycle and the consequent death of
Saavedra. Moreover, he averred that they sold the motorcycle to a certain
Danny Teves of Barrio Summit, Muntinlupa for a sum of P4,000.00. With
the help of appellant as a guide, the Lucena PNP immediately dispatched a
team to retrieve the same.
After admitting that it was purchased from both the accused and upon failure
to present any document evidencing the purported sale, Teves voluntarily
surrendered it to the police who turned it over, together with the sidecar, to
the Atimonan Police Station for safekeeping.
Lt. Carlos, on cross-examination, testified that when he invited appellant to
their headquarters, he had no warrant for his arrest. In the course thereof, he
informed the latter that he was a suspect, not only in the instant case, but also
in two other robbery cases allegedly committed in Lucena City. In the belief
that they were merely conversing inside the police station, he admitted that
he did not inform appellant of his constitutional rights to remain silent and to
the assistance of counsel; nor did he reduce the supposed confession to
writing.2
Appellant, on the other hand, alleged that he had no participation in the
offense charged and contended that his only involvement in the matter was
the referral of accused Amido to Teves. He recounted that sometime in
December 1988, Amido sought him at his house and told him that the
motorcycle he was riding on was being offered for sale. Upon proof shown
that it was indeed registered under Amido's name, he accompanied the latter
to Manila on board the said motorcycle and they approached Antonio
Carandang. The latter, thereafter, brought them to a certain Perlita Aguilar
and Danilo Teves with whom the sale was finally consummated. He
allegedly received P150.00 as his commission.
Amido presented alibi as his defense. He alleged that although a tricycle
driver by occupation, he was at Barangay Malusak, Atimonan on the day in
question, some seven kilometers from the town, busy assisting in the
renovation of his mother's house. He narrated that the victim was his friend
and, therefore, he could not have participated in the gruesome death of the
latter.
In a decision dated April 21, 1994, the trial court convicted appellant, the
dispositive portion of which reads:
WHEREFORE, premised in the foregoing considerations, this Court
finds Herson Tan GUILTY beyond reasonable doubt of the crime of
Highway Robbery with Murder and hereby sentences him to suffer
an imprisonment of RECLUSION PERPETUA. He is further ordered
to indemnify the family of the deceased in the amount of Thirty
Thousand Pesos (P30,000.00).
Due to insufficiency of evidence, Lito Amido is hereby
ACQUITTED of the charges against him and the Provincial Warden
of Quezon, Provincial Jail, Lucena City, is hereby ordered to release
from custody the person of said Lito Amido, unless he is being
detained thereat for some other lawful cause.
SO ORDERED.3
45
Appellant assails the finding of conviction despite failure of the prosecution
to positively identify him as the culprit of the crime and to present clear and
convincing circumstantial evidence that would overcome his innocence.
In light of the above facts and circumstances, the appealed decision is set
aside and appellant acquitted on the ground that his constitutional rights were
violated.
It is well-settled that the Constitution abhors an uncounselled confession or
admission and whatever information is derived therefrom shall be regarded
as inadmissible in evidence against the confessant. Article III, Section 12,
paragraphs (1) and (3) of the Constitution provides:
xxx xxx xxx
Sec. 12. (1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain
silent and to have competent and independent counsel preferably of
his own choice. If the person cannot afford the services of counsel,
he must be provided with one. These rights cannot be waived except
in writing and in the presence of counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or the
preceding section shall be inadmissible against him.
Republic Act No. 7438 (R.A. No. 7438),4 approved on May 15, 1992,
reenforced the constitutional mandate protecting the rights of persons under
custodial investigation, a pertinent provision5 of which reads:
As used in this Act, "custodial investigation" shall include the
practice of issuing an "invitation" to a person who is investigated in
connection with an offense he is suspected to have committed,
without prejudice to the liability of the "inviting" officer for any
violation of law.
Custodial investigation involves any questioning initiated by law
enforcement authorities after a person is taken into custody or otherwise
deprived of his freedom of action in any significant manner. The rules on
custodial investigation begin to operate as soon as the investigation ceases to
be a general inquiry into an unsolved crime and begins to focus a particular
suspect, the suspect is taken into custody, and the police carries out a process
of interrogations that tends itself to eliciting incriminating statements that the
rule begins to operate.6
Furthermore, not only does the fundamental law impose, as a requisite
function of the investigating officer, the duty to explain those rights to the
accused but also that there must correspondingly be a meaningful
communication to and understanding thereof by the accused. A mere
perfunctory reading by the constable of such rights to the accused would thus
not suffice.7
Under the Constitution and existing law and jurisprudence, a confession to be
admissible must satisfy the following requirements: (1) it must be voluntary;
(2) it must be made with the assistance of competent and independent
counsel; (3) it must be express; and (4) it must be in writing.8
While the Constitution sanctions the waiver of the right to counsel, it must,
however, be "voluntary, knowing and intelligent, and must be made in the
presence and with the assistance of counsel."9 To reiterate, in People
v. Javar,10 it was ruled therein that any statement obtained in violation of the
constitution, whether exculpatory or inculpatory, in whole or in part, shall be
inadmissible in evidence. Even if the confession contains a grain of truth, if it
was made without the assistance of counsel, it becomes inadmissible in
evidence, regardless of the absence of coercion or even if it had been
voluntarily given.
The records of this case do not indicate that appellant was assisted by counsel
when he made such waiver, a finding evident from the testimony of Lt.
Santos on cross-examination, thus:
Q Now, when you brought Herson Tan to the
Headquarters, did you tell him that he is one of the
suspects in the robbery slain (sic) that took place in
Atimonan on December 5, 1988?
A Yes, sir, and he was also suspect to the robbery
case which was investigated at Lucena Police
46
Station. There were two (2) cases which were
investigated on Herson Tan.
Q Now, so in addition to the Atimonan case, you
also took Herson Tan to your custody in connection
with another case that happened in Lucena?
A Yes, sir.
Q And you happened to have Herson Tan in your list
as suspect in both cases because Herson was
previously incarcerated at Lucena City Jail in
connection with a certain case, is it not?
A Yes, sir.
Q Just for curiosity sake, you invited him in your
headquarters, is that what happened in this case?
A Yes, sir.
Q And it just happened that without applying third
degree to him he gave you that information?
A Yes, sir.
Q Did you notify him of his constitutional right to
counsel before you propounded questions to him?
A No, sir, because we are asking question only to
him.
Q Before propounding question or information you
sought to elicit from him, did you inform him of his
constitutional right not to testify against himself
because he is a suspect in these two (2) cases?
A No, sir, because we were just
conversing.11 (Emphasis supplied)
The evidence for the prosecution shows that when appellant was invited for
questioning at the police headquarters, he allegedly admitted his participation
in the crime. This will not suffice to convict him, however, of said crime. The
constitutional rights of appellant, particularly the right to remain silent and to
counsel, are impregnable from the moment he is investigated in connection
with an offense he is suspected to have committed, even if the same be
initiated by mere invitation. "This Court values liberty and will always insist
on the observance of basic constitutional rights as a condition sine qua
non against the awesome investigative and prosecutory powers of
government."12
What remains of the evidence for the prosecution is inadequate to warrant a
conviction. Considering the circumstances attendant in the conduct of
appellant's investigation which fell short of compliance with constitutional
safeguards, we are constrained to acquit the appellant.
WHEREFORE, in view of the foregoing, the decision of the Regional Trial
Court of Gumaca, Quezon (Branch 62) is REVERSED and SET ASIDE.
Appellant HERSON TAN y VERZO is hereby ACQUITTED of the crime
charged and his immediate release from confinement is hereby ordered,
unless there is any other lawful cause for continued detention. Costs de
oficio.
SO ORDERED.
Narvasa, C.J., Kapunan, Francisco and Purisima, JJ., concur.
[No. 46000. May 25, 1939]
THE PEOPLE OF THE PHILIPPINES, appellee, vs. JOSE M. BAES,
appellant.
1. 1.CRIMINAL LAW AND PROCEDURE; CRIMES AGAINST
RELIGIOUS WORSHIP; ARTICLE 133 OF THE REVISED
PENAL CODE.—The facts alleged in the complaint constitute the
offense defined and penalized in article 133 of the Revised Penal
Code, and should the fiscal file an information alleging the said
facts and a trial be thereafter held at which the said facts should be
conclusively established, the court may find the accused guilty of
47
 the offense complained of, or that of coercion, or that of trespass
under article 281 of the Revised Penal Code, as may be proper,
pursuant to section 29 of General Orders, No. 68.
1. 2.ID.; ID.; ID.—In his motion to dismiss, the fiscal denies that the
unlawful act committed by the accused had offended the religious
feelings of the Catholics of the municipality in which the act
complained of took place. Such ground of the motion is
indefensible. As the fiscal was discussing the sufficiency of the
facts alleged in the complaint, he cannot deny any of them, but
must admit them, although hypothetically, as they are alleged. The
motion raises a question of law, not one of fact. In the second place,
whether or not the act complained of is offensive to the religious
feelings of the Catholics, is a question of fact which must be judged
only according to the feelings of the Catholics and not those of
other faithful ones, for it is possible that certain acts may offend the
feelings of those who profess a certain religion, while not otherwise
offensive to the feelings of those professing another faith.
APPEAL from an order of the Court of First Instance of Laguna. Castillo, J.
The facts are stated in the opinion of the court.
Crispin Oben for appellant.
Guillermo B. Guevara, for defendants-appellees.
No appearance for plaintiff-appellee.
CONCEPCION, J.:
This appeal was given due course by the Court of First Instance of Laguna by
virtue of a writ of mandamus issued by this court in G. R. No. 45780. The
facts are the following: In the justice of the peace court of the municipality
204
204 PHILIPPINE REPORTS ANNOTATED
People vs. Baes
of Lumban, Province of Laguna, a complaint was filed of the following
tenor:
"The undersigned Parish Priest of the Roman Catholic Church in the parish
and municipality of Lumban, Province of Laguna, upon being duly sworn,
charges Enrique Villaroca, Alejandro Lacbay and Bernardo del Rosario with'
an offense against religion committed as follows:
"That on April 14, 1937, at about 9 o'clock a. m., in this municipality of
Lumban, Province of Laguna, Philippines, and within the jurisdiction of this
court, the aforesaid accused, while holding the funeral of one who in life was
called Antonio Macabigtas, in accordance with the rites of religious sect
known as the 'Church of Christ', wilfully, unlawfully, and criminally caused
the f uneral to pass, as it in fact passed, through the churchyard fronting the
Roman Catholic Church, which churchyard belongs to the said Church and is
devoted to the religious worship thereof, against the opposition of the
undersigned complainant who, through force and threats of physical violence
by the accused, was compelled to allow the funeral to pass through the said
churchyard. An act committed in grave profanation of the place, in open
disregard of the religious feelings of the Catholics of this municipality, and in
violation of article 133 of the Revised Penal Code.
(Sgd.) "JOSE M. A. BAES
"Parish Priest
"Complainant"
(Here follow the affidavit and the list of witnesses.)
The accused pleaded not guilty and waived the preliminary investigation.
Before the case was remanded to the Court of First Instance of Laguna, the
complainant filed a sworn statement regarding other points so that the
provincial fiscal may have full knowledge of the facts and of the witnesses
who could testify thereon. Upon the remand of the case to the court, the
fiscal, instead of filing the corresponding information, put in the following
motion for dismissal:
"The complainant is the parish priest of the Roman
205
VOL. 68, MAY 25, 1939 205
People vs. Baes
Catholic Church of Lumban, Laguna. The said priest charges the accused
with having caused, through force, intimidation and threats, the funeral of
one belonging to the Church of Christ to pass through the churchyard of the
Church. Apparently, the offense consists in that the corpse was that of one
who belonged to the Church of Christ.
"The undersigned is of the opinion that the act imputed to the accused
does not constitute the offense complained of considering the spirit of article
133 of the Revised Penal Code. At most they might be chargeable with
having threatened the parish priest, or with having passed through a private
property without the consent of the owner. Justice Albert, commenting on the
article, has this to say: 'An act is said to be notoriously offensive to the
religious feelings of the faithful when a person ridicules or makes light of
anything constituting a religious dogma; works or scoffs at anything devoted
to religious ceremonies; plays with or damages or destroys any object of
veneration by the faithful.' The mere act of causing the passage through the
48
churchyard belonging to the Church, of the funeral of one who in life
belonged to the Church of Christ, neither offends nor ridicules the religious
feelings of those who belong to the Roman Catholic Church."
Sustaining the foregoing motion, the court by an order of August 31, 1937,
dismissed the case, reserving, however, to the fiscal the right to file another
information for the crime found to have been committed by the accused.
From this order, the plaintiff appealed, which appeal was denied but
thereafter given due course by the court by virtue of an order of this court.
The appealed order is based upon the motion to dismiss filed by the
fiscal. This officer questions the sufficiency of the f acts alleged in the
complaint, but omits an essential part .thereof, to wit, that the churchyard
belongs to the church. and is devoted to the religious services of said church,
and it is through this churchyard that 'the accused, over the objection of the
parish priest and through force
206
206 PHILIPPINE REPORTS ANNOTATED
People vs. Baes
and intimidation, caused to pass the funeral of one under the rites of the
religious sect known as the Church of Christ. Had the fiscal not omitted this
essential part, he would not have come to the conclusion that the acts
complained of do not constitute the crime defined and penalized by article
133 of the Revised Penal Code.
Moreover, the fiscal, in his aforesaid motion, denies that the unlawful act
committed by the accused had offended the religious feelings of the
Catholics of the municipality in which' the act complained of took place. We
believe that such ground of the motion is indefensible. As the fiscal was
discussing the sufficiency of the facts alleged in the complaint, he cannot
deny any of them, but must admit them, although hypothetically, as they are
alleged. The motion raises a question of law, not one of fact. In the second
place, whether or not the act complained of is offensive to the religious
feelings of the Catholics, is a question of fact which must be judged only
according to the feelings of the Catholics and not those of other faithful ones,
for it is possible that certain acts may offend the feelings of those who
profess a certain religion, while not otherwise offensive to the feelings of
those professing another faith. We, therefore, take the view that the facts
alleged in the complaint constitute the offense defined and penalized in
article 133 of the Revised Penal Code, and should the fiscal file an
information alleging the said facts and a trial be thereafter held at which the
said facts should be conclusively established, the court may find the accused
guilty of the offense complained of, or that of coercion, or that of trespass
under article 281 of the Revised Penal Code, as may be proper, pursuant to
section 29 of General Orders, No. 58.
The appealed order is reversed and the fiscal is ordered to comply with
his duty under the law, without pronouncement as to the costs. So ordered.
Avanceña, C. J., Villa-Real, and Diaz, JJ., concur.
MORAN, y., concurring:
I concur in the dispositive part on the ground that the
207
VOL. 68, MAY 25, 1939 207
People vs. Baes
lower court, without determining if the churchyard of the Catholic Church is
a place devoted to religious worship or not, held that the passage through the
said churchyard of a funeral conducted in accordance with the rites of
another religion is not offensive to the feelings of the Catholics. It' that
funeral with ceremonies of another religion had been made to pass inside the
church, it would without question be offensive to the feelings of the
Catholics. The lower court, through the provincial fiscal, is thus under a duty
to determine: (1) If the churchyard is a place devoted to the religious worship
of the Catholic Church, and (2) if the funeral held under the rites of another
religion was made to pass through the said churchyard.
If the churchyard of the Catholic Church is like some of those seen in
Manila churches where anyone can pass and where goods are even sold to
the public, then it is not a place devoted to religious worship, and the fact that
a funeral conducted under the rites of a different religion was made to pass
through it, does not constitute a violation of , article 133 of the Revised Penal
Code, but, at most, the offense of threats if it is true that the parish priest was
threatened when he prohibited the passage of the funeral.
LAUREL, J., dissenting:
I dissent.
It is an accepted doctrine of construction that criminal statutes must be
strictly interpreted. In fact, no person should be brought within the terms of
the penal law who is not clearly so within, and no acts should be pronounced
criminal unless so defined and penalized by law. The offense imputed to the
defendants herein is defined in article 133 which is as follows:
"ART, 133. Offending religious feelings.—The penalty of arresto mayor in
its maximum period to prisión correccional in its minimum period shall be
imposed upon anyone Who, in a place devoted to religious worship or during
49
the celebration of any religious ceremony, shall perform acts notoiously
offensive to the feelings of the faithful."
As defined, two essential elements must be present under
208
208 PHILIPPINE REPORTS ANNOTATED
People vs. Baes
this article, to wit: (1) That the acts complained of were performed in a place
devoted to religious worship or during the celebration of any religious
ceremony; and (2) that the said act or acts must be notoriously offensive to
the feelings of the faithful. It is admitted that the whole incident happened in
the "atrio" or "patio" of the Catholic church of Lumban, Laguna. There was
no celebration of any religious ceremony then. The "atrio" coming from the
Latin "atrium" means, an open space, generally closed, fronting a building or
a church. In this case it is a churchyard. While occasional religious
ceremonies may be performed in the "atrio", nevertheless this does not make
the "atrio" a place devoted to religious worship under article 133 of the
Revised Penal Code, any more than a public plaza, a street or any other place
occasionally used for religious purposes. But assuming that the churchyard in
this case is "a place devoted to religious worship".—contrary to what we see
and know (Justice Brown, in Hunter vs. New York O. & W. Ry. Co., 23 N.
E., 9, 10; 116 N. Y., 615)—is the act complained of "notoriously offensive to
the feelings of the faithful?" The imputed dereliction consists in that "los
acusados arriba nombrados, estando dirigiendo el entierro según el rito de
una secta religiosa llamada 'lglesia de Cristo', del cadáver de uno que en vida
se llamaba Antonio Macabigtás, voluntaria, ilegal y criminalmente hicieron
que dicho entierro pasase, como en efecto pasó, por el atrio de la Iglesia
Católica Romana frente a dicha Iglesia,, el cual atrio es propiedad de dicha
Iglesia y está dedicado a los cultos religiosos de esta Iglesia, contra la
oposición del infrascrito denunciante a quien los acusados mediante fuerza y
amenazas de maltrato obligaron a cederles el paso del entierro por dicho
atrio." (Underscoring is mine.) As I see it, the only act which is alleged to
have offended the religious "feelings of the faithful" here is that of passing
by the defendants through the "atrio" of the church under the circumstances
mentioned. I make no reference to the alleged trespass committed by the
defendants or the threats imputed to them because these acts constitute
different offenses (arts.
209
VOL. 68, MAY 25, 1939 209
People vs. Baes
280, 281 and 282-285) and do not fall within the purview of article 133 of the
Revised Penal Code. I believe that an act, in order to be considered as
notoriously offensive to the religious feelings, must be one directed against
religious practice or dogma or ritual for the purpose of ridicule; the offender,
for instance, mocks, scoffs at or attempts to damage an object of religious
veneration; it must be abusive, insulting and obnoxious (Viada, Comentarios
al Código Penal, 707, 708; vide also Pacheco, Código Penal, p. 359).
Why, may I ask, should the mere act of passing of the corpse or funeral
cortegé in or through a private property be characterized as notoriously
offensive to the feelings of any religion or of its adherents or followers?
"The Lord gave, and the Lord hath taken away; blessed be the name of the
Lord." (Job. I. 21.)
In this case, the Lord has recalled the life of one of His creatures: and it must
be His wish that the remains shall have the right of way that they may be
buried "somewhere, in desolate, wind-swept space, in twilight land, in no
man's 'land but in everybody's land."
Rather than too many religions that will make us hate one another
because of religious prejudices and intolerance, may I express the hope that
we may grasp and imbibe the one fundamental of all religions that should
make us love one another!
I must decline to accept the statement made in the majority opinion that
"whether or not the act complained of is offensive to the religious feelings of
the Catholics, is a question of fact which must be judged only according to
the feelings of the Catholics and not those of other faithful ones, for it is
possible that certain acts may offend the feelings of those who profess a
certain religion, while not otherwise offensive to the feelings of those
professing another faith."(Underscoring is mine.) I express the opinion that
offense to religious feelings should not be made to depend upon the more or
less broad or narrow conception of any given particular religion, but should
be gauged
210
210 PHILIPPINE REPORTS ANNOTATED
Aravejo vs. Doronila
having in view the nature of the acts committed and after scrutiny of all the
facts and circumstances which should be viewed through the mirror of an
unbiased judicial criterion. Otherwise, the gravity or leniency of the offense
would hinge on the subjective characterization of the act from the point of
view of a given religious denomination or sect, and in such a case, the
application of the law would be partial and arbitrary, withal, dangerous,
especially in a country said to be "once the scene of religious intolerance and
persecution." (Aglipay vs. Ruiz, 35 Off. Gaz., 2164.)
50
 I think that the ruling of the lower court in ordering the dismissal of the
case and in reserving to the provincial fiscal the presentation of another
complaint or complaints under other provisions of the Revised Penal Code, is
correct and should be upheld.

IMPERIAL, J.:

I concur in the preceding dissenting opinion of Justice Laurel.

Order reversed.

_____________

51