[ G.R. No. L-5 [1]. November 16, 1945 ] 75 Phil. 371
[ G.R. No. L-5 [1]. November 16, 1945 ]
CO KIM CHAM (ALIAS CO CHAM), PETITIONER, VS. EUSEBIO VALDEZ TAN KEH AND ARSENIO P. DIZON, JUDGE OF FIRST INSTANCE OF MANILA, RESPONDENTS.
FERIA, J.:
RESOLUTION ON MOTION FOR RECONSIDERATION
This is a motion for reconsideration of our decision rendered in this case filed by the respondent. Two attorneys at law, who were allowed to appear as amici curiæ, have also presented memoranda to discuss certain points on which the dissenting opinions rely. (1) It is contended that the military occupation of the Philippine Islands by the Japanese was not actual and effective because of the existence of guerrilla bands in barrios and mountains and even towns and villages; and consequently, no government de facto could have been validly established by the Japanese military forces in the Philippines under the precepts of the Hague Conventions and the law of nations. 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 these places, was not sufficient to make the military occupation ineffective, nor did it cause that occupation to cease, or prevent the constitution or establishment of a de facto government in the Islands. The belligerent occupation of the Philippines by the Japanese invaders became an accomplished fact from the time General Wainwright, Commander of the American and Filipino forces in Luzon, and General Sharp, Commander of the forces in Visayas and Mindanao, surrendered and ordered the surrender of their forces to the Japanese invaders, and the Commonwealth Government had become incapable of publicly exercising its authority, and the invader had substituted his own authority for that of the legitimate government in Luzon, Visayas and Mindanao. “According to the rules of Land Warfare of the United States Army, belligerent or so-called military occupation is a question of fact. It presupposes a hostile invasion as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader is in position to substitute and has substituted his own authority for that of the legitimate government of the territory invaded.” (International Law Chiefly as Interpreted and Applied by the United States, by Hyde, Vol. II, pp. 361, 362.) “Belligerent occupation must be both actual and effective. Organized resistance must be overcome and the forces in possession must have taken measures to establish law and order. It doubtless suffices if the occupying army can, within a reasonable time, send detachments of troops to make its authority felt within the occupied district.” (Id., p. 364.) “Occupation once acquired must be maintained * * *. It does not cease, however, * * * Nor does the existence of a rebellion or the operations of guerrilla bands cause it to cease, unless the legitimate government is re-established and the occupant fails promptly to suppress such rebellion or guerrilla operations.” (Id., p. 365.) But supposing arguendo that there were provinces or districts in these Islands not actually and effectively occupied by the invader, or in which the latter, consequently, had not substituted his own authority for that of the invaded government, and the Commonwealth Government had continued publicly exercising its authority, there is no question as to the validity of the judicial acts and proceedings of the courts functioning in said territory, under the municipal law, just as there can be no question as to the validity of the judgments and proceedings of the courts continued in the territory occupied by the belligerent occupant, under the law of nations. (2) It is submitted that the renunciation in our Constitution and in the Kellog-Briand Pact of war as an instrument of national policy, rendered inapplicable the rules of international law authorizing the belligerent Japanese army of occupation to set up a provisional or de facto government in the Philippines, because Japan started war treacherously and emphasized war as an instrument of national policy; and that to give validity to the judicial acts of courts sponsored by the Japanese would be tantamount to giving validity to the acts of these invaders, and would be nothing short of legalizing the Japanese invasion of the Philippines. In reply to this contention, suffice it to say that the provisions of the Hague Conventions which impose upon a belligerent occupant the duty to continue the courts as well as the municipal laws in force in the country unless absolutely prevented, in order to reestablish and insure “I” ordre et al vie publice," that is, the public order and safety, and the entire social and commercial life of the country, were inserted, not for the benefit of the invader, but for the protection and benefit of the people or inhabitants of the occupied territory and of those not in the military service, in order that the ordinary pursuits and business of society may not be unnecessarily deranged. This is the opinion of all writers on international law up to date, among them Wheaton (Vol. II, p. 236) and Oppenheim (Vol. II, p. 338) in their recently revised Treatises on International Law, edited in the year 1944, and the Interpretation of the Supreme Court of the United States in many cases, specially in the case of Dow vs. Johnson (106 U. S., 158), in which that Court said: “As a necessary consequence of such occupation and domination, the political relations of its people to their former government are, for the time being, severed. But for their protection and benefit, and the protection and benefit of others not in the military service, or, in other words, in order that the ordinary pursuits and business of society may not be unnecessarily deranged, the municipal laws, that is, such as affect private rights of persons and property and provide for the punishment of crime, are generally allowed to continue in force, and to be administered by the ordinary tribunals as they were administered before the occupation. They are considered as continuing, unless suspended or superseded by the occupying belligerent.” (Dow vs. Johnson, 100 U. S., 158; 25 U. S. [Law, ed.], 632). The fact that the belligerent occupant is a treacherous aggressor, as Japan was, does not, therefore, exempt him from complying with the said precepts of the Hague Conventions, nor does it make null and void the judicial acts of the courts continued by the occupant in the territory occupied. To deny validity to such judicial acts would benefit the invader or aggressor, who is presumed to be intent upon causing as much harm as possible to the inhabitants or nationals of the enemy’s territory, and prejudice the latter; it would cause more suffering to the conquered and assist the conqueror or invader in realizing his nefarious design; in fine, it would result in penalizing the nationals of the occupied territory, and rewarding the invader or occupant for his acts of treachery and aggression. (3) We held in our decision that the word “processes” as used in the proclamation of General Douglas MacArthur of October 23, 1944, cannot be interpreted to mean judicial processes; and because of the cogent reasons therein set forth, we did not deem it necessary to specify the processes to which said proclamation should be construed to refer. As some doubt still lingers in the minds of persons interested is sustaining a contrary interpretation or construction, we are now constrained to say that that term as used in the proclamation should be construed to mean legislative and constitutional processes, by virtue of the maxim “noscitur a sociis.” According to this maxim, where a particular word or phrase is ambiguous in itself or is equally susceptible of various meanings, its meaning may be made clear and specific by considering the company in which it is found. (Black on Interpretation of Laws, 2d ed., pp. 194-196.) Since the proclamation provides that “all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void,” the word “processes” must be interpreted or construed to refer to the Executive Orders of the Chairman of the Philippine Executive Commission, Ordinances promulgated by the President of the so-called Republic of the Philippines, and the Constitution itself of said Republic, and others that are of the same class as the laws and regulations with which the word “processes” is associated. To illustrate, “an English act required licenses for ‘houses, rooms, shops, or buildings, kept open for public refreshment, resort, and entertainment.’ It was adjudged that the word ’entertainment’ in this connection, did not necessarily mean a concert, dramatic performance, or other divertisement, nor did it necessarily imply the furnishing of food or drink, but that, judged from its associations, it meant the reception and accommodation of the public. So where a policy of marine insurance is specified to protect the assured against ‘arrests, restraints, and detainments of all kings, princes, and people,’ the word ‘people’ means the ruling or governing power of the country, this signification being impressed upon it by its association with the words ‘kings’ and ‘princes.’ Again, in a statute relating to imprisonment for debt, which speaks of debtors who shall be charged with ‘fraud’ or undue preference to one creditor to the prejudice of another,’ the word ‘undue’ means fraudulent. A statute of bankruptcy, declaring that any fraudulent ‘gift, transfer or delivery’ of property shall constitute an act of bankruptcy, applies only to such deliveries as are in the nature of a gift—such as change the ownership of the property, to the prejudice of creditors; it does not include a delivery to a bailee for safekeeping.” (Black on Interpretation of Laws, supra.) (4) The statement of Wheaton (International Law, 7th ed., p. 245) that “when it is said that an occupier’s acts are valid, it must be remembered that no crucial instances exist to show that if his acts should all be reversed (by the restored government or its representatives) no international wrong would be committed,” evidently does not mean that the restored government or its representatives may reverse the judicial acts and proceedings of the courts during the belligerent occupation without violating the law of nations and doing any wrong at all. A violation of the law of nations does not always and necessarily cause an international wrong. As the said judicial acts which apply the municipal laws, that is, such as affect private rights of persons and property and provide for the punishment of crimes, are good and valid even after occupation has ceased, although it is true that no crucial instances exist to show that, were they reversed or invalidated by the restored or legitimate government, international wrong would be committed, it is nonetheless true and evident that by such abrogation national wrong would be caused to the inhabitants or citizens of the legitimate government. According to the law of nations and Wheaton himself, said judicial acts are legal and valid before and after the occupation has ceased and the legitimate government has been restored. As there are vested rights which have been acquired by the parties by virtue of such judgments, the restored government or its representative cannot reverse or abrogate them without causing wrong or injury to the interested parties, because such reversal would deprive them of their properties without due process of law. In this connection, it may not be amiss to refer to the decision of the Supreme Court of the United States’ in the case of Raymond vs. Thomas (91 U. S., 712), quoted in our decision as applicable by analogy. In said case, the Commander in Chief of the United States forces in South Carolina, after the end of the Civil War and while the territory was still under Military Government, issued a special order annulling a decree rendered by a court of chancery in a case within its jurisdiction, on the wrong assumption that he had authority to do so under the acts of Congress approved March 2, and July 19, 1867, which defined his powers and duties. That Supreme Court declared void the said special order on the ground “that it was an arbitrary stretch of authority needful to no good end that can be imagined. Whether Congress could have conferred power to do such an act is a question we are not called upon to consider. It is an unbending rule of law that the exercise of military power where the rights of the citizen are concerned, shall never be pushed beyond what the exigency requires.” (5) It is argued with insistence that the courts of the Commonwealth continued in the Philippines by the belligerent occupant became also courts of Japan, and their judgments and proceedings being acts of foreign courts cannot now be considered valid and continued by the courts of the Commonwealth Government after the restoration of the latter. As we have already stated in our decision the fundamental reasons why said courts, while functioning during the Japanese regime, could not be considered as courts of Japan, it is sufficient now to invite attention to the decision of the Supreme Court of the United States in the case of The Admittance, Jecker vs. Montgomery (13 How., 498; 14 Law. ed., 240), which we did not deem necessary to quote in our decision, in which it was held that “the courts, established or sanctioned in Mexico during the war by the commanders of the American forces, were nothing more than the agents of the military power, to assist it in preserving order in the conquered territory, and to protect the inhabitants in their persons and properly while it was occupied by the American arms. They were subject to the military power, and their decisions under its control, whenever the commanding officer thought proper to interfere. They were not courts of the United States, and had no right to adjudicate upon a question of prize or no prize.” (The Admittance, Jecker vs. Montgomery, 13 How., 498; 14 Law. ed., 240.) (6) The petition for mandamus in the present case is the plain, speedy and adequate remedy. The mandamus applied for is not to compel the respondent judge to order the reconstitution of the record of the case, because the record had already been reconstituted by order of the court. It is sought to compel the respondent judge to continue the proceedings in said case. As the judge refused to act on the ground that he had no power or jurisdiction to continue taking cognizance of the case, mandamus and not appeal is the plain, speedy and adequate remedy. For it is a well established rule that “if a court has erroneously decided some question of law or of practice, presented as a preliminary objection, and upon such erroneous construction has refused to go into the merits of the case, mandamus will lie to compel it to proceed.” (High on Extraordinary Legal Remedies, section 151; Castro Revilla vs. Garduno, 53 Phil., 934.) In view of the foregoing, the motion for reconsideration filed by the respondents is denied. The petition for oral argument on said motion for reconsideration, based on the resolution of division of this Court dated July 3, 1945, amendatory of section 2, Rule 54, of the Rules of Court, is also denied, since said resolution has not yet been adopted by this Court in banc, and the respondents and amici curias were allowed to file, and they filed, their arguments in writing. Moran, C. J., Ozaata, Paras, Jaranilla, De Joya, and Pablo, JJ., concur.