[ G.R. No. L-2662. March 26, 1949 ] 83 Phil. 171
[ G.R. No. L-2662. March 26, 1949 ]
SHIGENORI KURODA, PETITIONER, VS. MAJOR GENERAL RAFAEL JALANDONI, BRIGADIER GENERAL CALIXTO DUQUE, COLONEL MARGARITO TORALBA, COLONEL IRENEO BUENCONSEJO, COLONEL PEDRO TABUENA, MAJOR FEDERICO ARANAS, MELVILLE S. HUSSEY AND ROBERT PORT, RESPONDENTS. D E C I S I O N
MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in the Philippines during a period covering 1943 and 1944, who is now charged before a Military Commission convened by the Chief of Staff of the Armed Forces of the Philippines, with having unlawfully disregarded and failed “to discharge his duties as such commander to control the operations of members of his command, permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces, in violation of the laws and customs of war”—comes before this Court seeking to establish the illegality of Executive Order No. 68 of the President of the Philippines; to enjoin and prohibit respondents Melville S. Hussey and Robert Port from participating in the prosecution of petitioner’s case before the Military Commission; and to permanently prohibit respondents from proceeding with the case of petitioner. In support of his case, petitioner tenders the following principal arguments: First.—“That Executive Order No. 68 is illegal on the ground that it violates not only the provisions of our constitutional law but also our local laws, to say nothing of the fact (that) the Philippines is not a signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and, therefore, petitioner is charged of ‘crimes’ not based on law, national and international.” Hence, petitioner argues—“That in view of the fact that this commission has been empanelled by virtue of an unconstitutional law and an illegal order, this commission is without jurisdiction to try herein petitioner.” Second.—That the participation in the prosecution of the case against petitioner before the Commission in behalf of the United States of America, of attorneys Melville Hussey and Robert Port, who are not attorneys authorized by the Supreme Court to practice law in the Philippines, is a diminution of our personality as an independent state, and their appointments as prosecutors are a violation of our Constitution for the reason that they are not qualified to practice law in the Philippines. Third.—That Attorneys Hussey and Port have no personality as prosecutors, the United States not being a party in interest in the case. Executive Order No. 68, establishing a National War Crimes Office and prescribing rules and regulations governing the trial of accused war criminals, was issued by the President of the Philippines on the 29th day of July, 1947. This Court holds that this order is valid and constitutional. Article 2 of our Constitution provides in its section 3, that—
“The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the nation.”
In accordance with the generally accepted principles of international law of the present day, including the Hague Convention, the Geneva Convention and significant precedents of international jurisprudence established by the United Nations, all those persons, military or civilian, who have been guilty of planning, preparing or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto, in violation of the laws and customs of war, of humanity and civilization, are held accountable therefor. Consequently, in the promulgation and enforcement of Executive Order No. 68, the President of the Philippines has acted in conformity with the generally accepted principles and policies of international law which are part of our Constitution. The promulgation of said executive order is an exercise by the President of his powers as Commander in Chief of all our armed forces, as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off. Gaz., 664)[1] when we said—
“War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incidents of war may remain pending which should be disposed of as in time of war. ‘An important incident to a conduct of war is the adoption of measures by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war.’ (Ex parte Quirin, 317 U. S., 1; 63 Sup. Ct., 2.) Indeed, the power to create a military commission for the trial and punishment of war criminals is an aspect of waging war. And, in the language of a writer, a military commission ‘has jurisdiction so long as a technical state of war continues. This includes the period of an armistice, or military occupation, up to the effective date of a treaty of peace, and may extend beyond, by treaty agreement.’ (Cowles, Trial of War Criminals by Military Tribunals, American Bar Association Journal, June, 1944.)”
Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished aspect of war, namely, the trial and punishment of war criminals, through the issuance and enforcement of Executive Order No. 68. Petitioner argues that respondent Military Commission has no jurisdiction to try petitioner for acts committed in violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and regulations of the Hague and Geneva conventions form part of an are wholly based on the generally accepted principles of international law. In fact, these rules and principles were accepted by the two belligerent nations, the United States and Japan, who were signatories to the two Conventions. Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be signatory. Furthermore, when the crimes charged against petitioner were allegedly committed, the Philippines was under the sovereignty of the United States, and thus we were equally bound together with the United States and with Japan, to the rights and obligations contained in the treaties between the belligerent countries. These rights and obligations were not erased by our assumption of full sovereignty. If at all, our emergence as a free state entitles us to enforce the right, on our own, of trying and punishing those who committed crimes against our people. In this connection, it is well to remember what we have said in the case of Laurel vs. Misa (76 Phil., 372):
“* * * 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 * * *.”
By the same token, war crimes committed against our people and our government while we were a Commonwealth, are triable and punishable by our present Republic. Petitioner challenges the participation of two American attorneys, namely, Melville S. Hussey and Robert Port, in the prosecution of his case, on the ground that said attorneys are not qualified to practice law in the Philippines in accordance with our Rules of Court and the appointment of said attorneys as prosecutors is violative of our national sovereignty. In the first place, respondent Military Commission is a special military tribunal governed by a special law and not by the Rules of Court which govern ordinary civil courts. It has already been shown that Executive Order No. 68 which provides for the organization of such military commissions is a valid and constitutional law. There is nothing in said executive order which requires that counsel appearing before said commissions must be attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. In fact, it is common in military tribunals that counsel for the parties are usually military personnel who are neither attorneys nor even possessed of legal training. Secondly, the appointment of the two American attorneys is not violative of our national sovereignty. It is only fair and proper that the United States, which has submitted the vindication of crimes against her government and her people to a tribunal of our nation, should be allowed representation in the trial of those very crimes. If there has been any relinquishment of sovereignty, it has not been by our government but by the United States Government which has yielded to us the trial and punishment of her enemies. The least that we could do in the spirit of comity is to allow them representation in said trials. Alleging that the United States is not a party in interest in the case, petitioner challenges the personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that the United States and its people have been equally, if not more greatly, aggrieved by the crimes with which petitioner stands charged before the Military Commission. It can be considered a privilege for our Republic thft a leader nation should submit the vindication of the honor of its citizens and its government to a military tribunal of our country. The Military Commission having been convened by virtue of a valid law, with jurisdiction over the crimes charged which fall under the provisions of Executive Order No. 68, and having jurisdiction over the person of the petitioner by having said petitioner in its custody, this Court will not interfere with the due processes of such Military Commission. For all the foregoing, the petition is denied with costs de oficio. Paras, Feria, Pablo, Bengzon, Briones, Tuason, Montemayor, and Reyes, JJ., concur.