WAR CRIMES

March 26, 1949

Case Title:
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.

Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for

petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr.,
Ricardo A. Arcilla and S. Melville Hussey for respondents.

Case Nature: ORIGINAL ACTION in the Supreme Court.

Prohibition.
Syllabi Class: Constitutional Law| Due Process and Equal
Protection of Law

SYLLABUS
1.Constitutional Law; Validity of Executive Order No. 68 Estab-
lishing a National War Crimes Office. —Executive Order No. 68
which was issued by the President of the Philippines on the 29th
day of July, 1947, 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."

2.International Law; Violators of the Laws and Customs of War, of

Humanity and Civilization, Liability and Responsibility of.—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*

3.Id.; Power of the President of the Philippines.—In the promul-

gation 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.

4.Constitutional Law; Power of President as Commander in Chief

of Armed Forces of the Philippines.—The promulgation of said
executive order is an exercise by the President of his powers as
Commander in Chief of all our armed forces.

5.Id. ; Id.—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.

6.International Law;  Hague and Geneva Conventions Form Part

of the Law of the Philippines; Even if the Philippines was not
Signatory Thereof, Provisions of Philippine Constitution has been
Comprehensive to that Effect.—The rules and regulations of the
Hague and Geneva Conventions form part of and 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 a signatory.

7.Id.; Rights and Obligations of a Nation were not Erased by

Assumption of Full Sovereignty; Right to Try and Punish Crimes
Theretofore Committed.—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.

8.Id.; Id.; Id.—War crimes committed against our people and our
government while we were a Commonwealth, are triable and
punishable by our present Republic.

9.Military Commission Governed by Special Law.—Military Com-

mission is a special military tribunal governed by a special law
and not by the Rules of Court which govern ordinary civil courts.

10.Military Commission; Counsel Appearing Before it not Neces-

sarily a Member of the Philippine Bar.—There is nothing in
Executive Order No. 68 which requires that counsel appearing
before said commission 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.

11.Id.; Trial of War Crimes Before Philippine Courts; Allowance of

American Attorneys to Represent United States.—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.

12.Id.; Id.; Id.—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 that a leader nation should submit the
vindication of the honor of its citizens and its government to a
military tribunal of our country.

13.Id.; Jurisdiction; Supreme Court Will not Interfere with Due

Processes of Military Commission.—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. Per Perfecto, J., dissenting:

14.Attorneys at Law; Aliens Cannot Practice Law.—It appearing

that Attys. Hussey and Port are aliens and have not been
authorized by the Supreme Court to practice law, they cannot
appear as prosecutors in a case pending before the War Crimes
Commission.

15.Constitutional Law; Legislative Power Vested in Congress;

Exception.—While there is no express provision in the funda-
mental law prohibiting the exercise of legislative power by
agencies other than Congress, a reading of the whole context of
the Constitution would dispel any doubt as to the constitutional
intent that the legislative power is to be exercised exclusively by
Congress, subject only to, the veto power of the President, to his
power to suspend the writ of habeas corpus, to place any part of
the Philippines under martial law, and to the rule-making power
expressly vested by the Constitution in the Supreme Court.

16.Id.; Id.; Scope of Powers of Different Governmental Depart-

ments.—Because the powers vested by our Constitution to the
several departments of the government are in the nature of
grants, not a recognition of pre-existing powers, no department
of the government may exercise any power or authority not
expressly granted by the Constitution or by law by virtue of
express authority of the Constitution.

17.Id.; Id.; Power of President to Promulgate Executive Order

Defining and Allocating Jurisdiction for Prosecution of War Crimes
on Military Commissions.—The provision in Executive Order No.
68 (series of 1947) of the President of the Philippines, that
persons accused as war criminals shall be tried by military
commissions, is clearly legislative in nature and intends to confer
upon military commissions jurisdiction to try all persons charged
with war crimes. But, the power to define and allocate jurisdiction
for the prosecution of persons accused of crimes is exclusively
vested by the Constitution in Congress.

18.Id.; Id.; Power to Establish Government Office.—Executive

Order No. 68 establishes a National War Crimes Office; but, the
power to establish government offices is essentially legislative.

19.Id.; Rule-Making Power of Supreme Court; President Has no

Power, Much Less Delegate Such a Power, to Provide Rules of
Procedure for Conduct of Trials.—Executive Order No. 68 provides
rules of procedure for the conduct of trials before the War Crimes
Office. This provision on procedural subject constitutes a
usurpation of the rule-making power vested by the Constitution in
the Supreme Court. It further authorizes military commissions to
adopt additional rules of procedure. If the President of the
Philippines cannot exercise the rulemaking power vested by the
Constitution in the Supreme Court, he cannot, with more reason,
delegate that power to military commissions.

20.Id,; Legislative Power Vested in Congress; Usurpation of

Power to Appropriate Funds.—Executive Order No. 68 ap-
propriates funds for the expenses of the National War Crimes
Office. This constitutes another usurpation of legislative power, as
the power to vote appropriations belongs to Congress.

21.Id.; Emergency Powers of President Under Commonwealth

Acts Nos. 600, 620 and 671.—Commonwealth Acts Nos. 600, 620
and 671, granting the President of the Philippines emergency
powers to promulgate rules and regulations during national
emergency has ceased to have effect since the liberation of the
Philippines, or, at latest, upon the surrender of Japan on
September 2, 1945. The absurdity of the contention that these
emergency acts continued in effect even after the surrender of
Japan cannot be gainsaid. Only a few months after liberation, and
even before the surrender of Japan, the Congress started to
function normally. To let the hypothesis on continuance prevail
will result in the existence of two distinct, separate and
independent legislative organs—the Congress and the President
of the Philippines. Should there be any disagreement between
Congress and the President, a possibility that no one can dispute,
the President may take advantage of the long recess of Congress
(two-thirds of every year) to repeal and overrule legislative
enactments of Congress, and may set up a veritable system of
dictatorship, absolutely repugnant to the letter and spirit of the
Constitution.

22.Statutory Construction; Presumption that Legislative Body did

not Intend to Violate Constitution.—It has never been the
purpose of the National Assembly to extend the delegation
(embodied in Commonwealth Acts Nos. 600, 620 and 671)
beyond the emergency created by war, as to extend it farther
would be violative of the express provisions of the Constitution.
We are of the opinion that there is no doubt on this question; but,
if there could still be any, the same should be resolved in favor of
the presumption that the National Assembly did not intend to
violate the fundamental law.

23.Constitutional Law; Due Process and Equal Protection of Law.

—Executive Order No. 68 violates the fundamental guarantees of
due process and equal protection of the law, because it permits
the admission of many kinds of evidence by which no innocent
person can afford to get acquittal, and by which it is impossible to
determine whether an accused is guilt or not beyond all
reasonable doubt.

SUMMARY
On 26 March 1949, the Supreme Court of the Philippines
confirmed the constitutionality of Executive Order No. 68 (EO 68)
issued by the President of the Philippines establishing the
National War Crimes Office which prescribes rules and regulations
governing the trial of war criminals who committed war crimes
against the Filipino people.

In Kuroda v. Jalandoni, Shigenori Kuroda, a Lieutenant General of

the Japanese Imperial Forces in the Philippines between 1943 and
1944, was tried for war crimes under a complaint identical with
the charge filed against General Tomoyuki Yamashita. Kuroda
challenged the constitutionality of Executive Order no. 68 and
argued that the Philippines were not a signatory to the Hague
Convention on Rules and Regulations covering Land Warfare and
therefore he was charged of “crimes not based on law, national
and international.” The appellant also held that the Military
Commission created under EO 68 had no jurisdiction.
The Supreme Court rejected Kuroda’s argument, holding that “in
accordance with the generally accepted principles of international
law of the present day […] all those persons, military or civilians,
who have been guilty of planning, preparing, or waging a war of
aggression and of commission of crimes and offenses
consequential and incidental thereto in violations of laws and
customs of war, of humanity, and civilization, are held
accountable thereof.” The Supreme Court further argued that it
did not matter that the Philippines was not a signatory to the
conventions because the rules and principles embodied were
generally accepted and thus formed part of the law of the land by
virtue of the Incorporation Clause.
Finally, the Supreme Court concluded that the Military
Commission, having been convened by virtue of EO 68, has the
jurisdiction to try petitioner for acts committed against civilians
and prisoners of war during the period covering 1943 – 1944 in
violation of the Hague and Geneva Conventions. 

DECISION
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 19433 and 19444 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 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
petitioners.

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 provision 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 petitioners is charged of 'crimes' not based on law, national
and international." Hence petitioner argues — "That in view off the fact that
this commission has been empanelled by virtue of an unconstitutional law 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 State 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 appointment as prosecutor 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 prosecution

the United State not being a party in interest in the case.

Executive Order No. 68, establishing a National War Crimes Office

prescribing rule and regulation governing the trial of accused war criminals,
was issued by the President of the Philippines on the 29th days 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 of the nation.

In accordance with the generally accepted principle of international law of

the present day including the Hague Convention the Geneva Convention and
significant precedents of international jurisprudence established by the
United Nation all those person 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 Execution
Order No. 68 the President of the Philippines has acted in conformity with
the generally accepted and policies of international law which are part of the
our Constitution.

The promulgation of said executive order is an exercise by the President of

his power 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 incident of war may remain pending
which should be disposed of as in time of war. An importance incident
to a conduct of war is the adoption of measure by the military
command not only to repel and defeat the enemies but to seize and
subject to disciplinary measure 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 of a treaty of peace and may extend
beyond by treaty agreement. (Cowles Trial of War Criminals by
Military Tribunals, America 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 criminal 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
regulation of the Hague and Geneva conventions form, part of and are
wholly based on the generally accepted principals of international law. In
facts these rules and principles were accepted by the two belligerent nation
the United State and Japan who were signatories to the two Convention,
Such rule 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 rule and principle of international law as
continued inn treaties to which our government may have been or shall be a
signatory.

Furthermore when the crimes charged against petitioner were allegedly

committed the Philippines was under the sovereignty of United States and
thus we were equally bound together with the United States and with Japan
to the right and obligation contained in the treaties between the belligerent
countries. These rights and obligation were not erased by our assumption of
full sovereignty. If at all our emergency as a free state entitles us to enforce
the right on our own of trying and punishing those who committed crimes
against 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 government from Commonwealth to

Republic does not affect the prosecution of those charged with the
crime of treason committed during then Commonwealth because it is
an offense against 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 attorney's are not qualified to practice law in 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 court. It has already been shown that Executive Order
No. 68 which provides for the organization of such military commission is a
valid and constitutional law. There is nothing in said executive order which
requires that counsel appearing before said commission must be attorneys
qualified to practice law in the Philippines in accordance with the Rules of
Court. In facts 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 nation sovereignty. It is only fair and proper that 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 State
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 State 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 State 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 that 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 said petitioner in its custody, this Court
will not interfere with the due process of such Military commission.
For all the foregoing the petition is denied with costs de oficio.

Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions

PERFECTO, J.,  dissenting:

A military commission was empanelled on December 1, 1948 to try Lt. Gen.

Shigenori Kuroda for Violation of the laws and customs of land warfare.

Melville S. Hussey and Robert Port, American citizens and not authorized by
the Supreme Court to practice law were appointed prosecutor representing
the American CIC in the trial of the case.

The commission was empanelled under the authority of Executive Order No.
68 of the President of the Philippines the validity of which is challenged by
petitioner on constitutional grounds. Petitioner has also challenged the
personality of Attorneys Hussey and Port to appear as prosecutors before
the commission.

The charges against petitioner has been filed since June 26, 1948 in the
name of the people of the Philippines as accusers.

We will consideration briefly the challenge against the appearance of

Attorneys Hussey and Port. It appearing that they are aliens and have not
been authorized by the Supreme Court to practice law there could not be
any question that said person cannot appear as prosecutors in petitioner
case as with such appearance they would be practicing law against the law.

Said violation vanishes however into insignificance at the side of the

momentous question involved in the challenge against the validity of
Executive Order No. 68. Said order is challenged on several constitutional
ground. To get a clear idea of the question raised it is necessary to read the
whole context of said order which is reproduced as follows:

EXECUTIVE ORDER NO. 68.

ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND

PRESCRIBING RULES AND REGULATION GOVERNING THE TRIAL
OF ACCUSED WAR CRIMINAL.
I, Manuel Roxas president of the Philippines by virtue of the power
vested in me by the Constitution and laws of the Philippines do hereby
establish a National War Crimes Office charged with the responsibility
of accomplishing the speedy trial of all Japanese accused of war crimes
committed in the Philippines and prescribe the rules and regulation
such trial.

The National War crimes office is established within the office of the
Judge Advocate General of the Army of the Philippines and shall
function under the direction supervision and control of the Judge
Advocate General. It shall proceed to collect from all available sources
evidence of war crimes committed in the Philippines from the
commencement of hostilities by Japan in December 1941, maintain a
record thereof and bring about the prompt trial maintain a record
thereof and bring about the prompt trial of the accused.

The National War Crimes Office shall maintain direct liaison with the
Legal Section General Headquarters, Supreme Commander for the
Allied power and shall exchange with the said Office information and
evidence of war crimes.

The following rules and regulation shall govern the trial off person
accused as war criminals:

ESTABLISHMENT OF MILITARY COMMISSIONS

(a) General. — person accused as war criminal shall be tried by

military commission to be convened by or under the authority of the
Philippines.

II. JURISDICTION

(a) Over Person. — Thee military commission appointed hereunder

shall have jurisdiction over all persons charged with war crimes who
are in the custody of the convening authority at the time of the trial.

(b) Over Offenses. — The military commission established hereunder

shall have jurisdiction over all offenses including but not limited to the
following:

(1) The planning preparation initiation or waging of a war of

aggression or a war in violation of international treaties agreement or
assurance or participation in a common plan or conspiracy for the
accomplishment of any of the foregoing.
(2) Violation of the laws or customs of war. Such violation shall include
but not be limited to murder ill-treatment or deportation to slave labor
or for other purpose of civilian population of or in occupied territory;
murder or ill-treatment of prisoners of war or internees or person on
the seas or elsewhere; improper treatment of hostage; plunder of
public or private property wanton destruction of cities towns or village;
or devastation not justified by military necessity.

(3) Murder extermination enslavement deportation and other inhuman

acts committed against civilian population before or during the war or
persecution on political racial or religion ground in executive of or in
connection with any crime defined herein whether or not in violation of
the local laws.

III. MEMBERSHIP OF COMMISSIONS

(a) Appointment. — The members of each military commission shall be

appointed by the President of the Philippines or under authority
delegated by him. Alternates may be appointed by the convening
authority. Such shall attend all session of the commission, and in case
of illness or other incapacity of any principal member, an alternate
shall take the place of that member. Any vacancy among the members
or alternates, occurring after a trial has begun, may be filled by the
convening authority but the substance of all proceeding had evidence
taken in that case shall be made known to the said new member or
alternate. This facts shall be announced by the president of the
commission in open court.

(b) Number of Members. — Each commission shall consist of not less

than three (3) members.

(c) Qualifications. — The convening authority shall appoint to the

commission persons whom he determines to be competent to perform
the duties involved and not disqualified by personal interest or
prejudice, provided that no person shall be appointed to hear a case in
which he personally investigated or wherein his presence as a witness
is required. One specially qualified member whose ruling is final in so
far as concerns the commission on an objection to the admissibility of
evidence offered during the trial.

(d) Voting. — Except as to the admissibility of evidence all rulings and

finding of the Commission shall be by majority vote except that
conviction and sentence shall be by the affirmative vote of not less
than conviction and sentence shall be by the affirmative vote of not
less than two-thirds (2\3) of the member present.

(e) Presiding Member. — In the event that the convening authority

does not name one of the member as the presiding member, the
senior officer among the member of the Commission present shall
preside.

IV. PROSECUTORS

(a) Appointment. — The convening authority shall designate one or

more person to conduct the prosecution before each commission.

(b) Duties. — The duties of the prosecutor are:

(1) To prepare and present charges and specifications for reference to

a commission.

(2) To prepare cases for trial and to conduct the prosecution before
the commission of all cases referred for trial.

V. POWER AND PROCEDURE OF COMMISSION

(a) Conduct of the Trial. — A Commission shall:

(1) Confine each trial strictly to fair and expeditious hearing on the
issues raised by the charges, excluding irrelevant issues or evidence
and preventing any unnecessary delay or interference.

(2) Deal summarily with any contumacy or contempt, imposing any

appropriate punishment therefor.

(3) Hold public session when otherwise decided by the commission.

(4) Hold each session at such time and place as it shall determine, or
as may be directed by the convening authority.

(b) Rights of the Accused. — The accused shall be entitled:

(1) To have in advance of the trial a copy of the charges and

specifications clearly worded so as to apprise the accused of each
offense charged.
(2) To be represented, prior to and during trial, by counsel appointed
by the convening authority or counsel of his own choice, or to conduct
his own defense.

(3) To testify in his own behalf and have his counsel present relevant
evidence at the trial in support of his defense, and cross-examine each
adverse witness who personally appears before the commission.

(4) To have the substance of the charges and specifications, the

proceedings and any documentary evidence translated, when he is
unable otherwise to understand them.

(c) Witnesses. — The Commission shall have power:

(1) To summon witnesses and require their attendance and testimony;

to administer oaths or affirmations to witnesses and other persons and
to question witnesses.

(2) To require the production of documents and other evidentiary

material.

(3) To delegate the Prosecutors appointed by the convening authority

the powers and duties set forth in (1) and (2) above.

(4) To have evidence taken by a special commissioner appointed by

the commission.

(d) Evidence.

(1) The commission shall admit such evidence as in its opinion shall be
of assistance in proving or disproving the charge, or such as in the
commission's opinion would have probative value in the mind of a
reasonable man. The commission shall apply the rules of evidence and
pleading set forth herein with the greatest liberality to achieve
expeditious procedure. In particular, and without limiting in any way
the scope of the foregoing general rules, the following evidence may
be admitted:

(a) Any document, irrespective of its classification, which appears to

the commission to have been signed or issued by any officer,
department, agency or member of the armed forces of any
Government without proof of the signature or of the issuance of the
document.
(b) Any report which appears to the commission to have been signed
or issued by the International Red Cross or a member of any medical
service personnel, or by any investigator or intelligence officer, or by
any other person whom commission considers as possessing
knowledge of the matters contained in the report.

(c) Affidavits, depositions or other signed statements.

(d) Any diary, letter to other document, including sworn statements,

appearing to the commission to contain information relating to the
charge.

(e) A copy of any document or other secondary evidence of the

contents, if the original is not immediately available.

(2) The commission shall take judicial notice of facts of common

knowledge, official government documents of any nation, and the
proceedings, records and findings of military or other agencies of any
of the United Nation.

(3) A commission may require the prosecution and the defense to

make a preliminary offer of proof whereupon the commission may rule
in advance on the admissibility of such evidence.

(4) The official position of the accused shall not absolve him from
responsibility nor be considered in mitigation of punishment. Further
action pursuant to an order of the accused's superior, or of his
Government, shall not constitute a defense, but may be considered in
mitigation of punishment if the commission determines that justice so
requires.

(5) All purposed confessions or statements of the accused shall bee

admissible in evidence without any showing that they were voluntarily
made. If it is shown that such confession or statement was procured
by mean which the commission believe to have been of such a
character that may have caused the accused to make a false
statement the commission may strike out or disregard any such
portion thereof as was so procured.

(e) Trial Procedure. — The proceedings of each trial shall be conducted

substantially as follows unless modified by the commission to suit the
particular circumstances:
(1) Each charge and specification shall be read or its substance stated
in open court.

(2) The presiding member shall ask each accused whether he pleads
"Guilty" or "Not guilty."

(3) The prosecution shall make its opening statement."(4) The

presiding member may at this or any other time require the prosecutor
to state what evidence he proposes to submit to the commission and
the commission thereupon may rule upon the admissibility of such
evidence.

(4) The witnesses and other evidence for the prosecution shall be
heard or presented. At the close of the case for the prosecution, the
commission may, on motion of the defense for a finding of not guilty,
consider and rule whether he evidence before the commission may
defer action on any such motion and permit or require the prosecution
to reopen its case and produce any further available evidence.

(5) The defense may make an opening statement prior to presenting

its case. The presiding member may, at this any other time require the
defense to state what evidence it proposes to submit to the
commission where upon the commission may rule upon the
admissibility of such evidence.

(6) The witnesses and other evidence for the defense shall be heard or
presented. Thereafter, the prosecution and defense may introduce
such evidence in rebuttal as the commission may rule as being
admissible.

(7) The defense and thereafter the prosecution shall address the
commission.

(8) The commission thereafter shall consider the case in closed session
and unless otherwise directed by the convening authority, announce in
open court its judgment and sentence if any. The commission may
state the reason on which judgment is based.

( f ) Record of Proceedings. — Each commission shall make a separate

record of its proceeding in the trial of each case brought before it. The
record shall be prepared by the prosecutor under the direction of the
commission and submitted to the defense counsel. The commission
shall be responsible for its accuracy. Such record, certified by the
presiding member of the commission or his successor, shall be
delivered to the convening authority as soon as possible after the trial.

(g) Sentence. — The commission may sentence an accused, upon

conviction to death by hanging or shooting, imprisonment for life or for
any less term, fine or such other punishment as the commission shall
determine to be proper.

(h) Approval of Sentence. — No. sentence of a military commission

shall be carried into effect until approved by the chief off Staff:
Provided, That no sentence of death or life imprisonment shall be
carried into execution until confirmed by the President of the
Philippines. For the purpose of his review the Chief of Staff shall create
a Board of Review to be composed of not more than three officers
none of whom shall be on duty with or assigned to the Judge Advocate
General's Office. The Chief of Staff shall have authority to approve,
mitigate remit in whole or in part, commute, suspend, reduce or
otherwise alter the sentence imposed, or (without prejudice to the
accused) remand the case for rehearing before a new military
commission; but he shall not have authority to increase the severity of
the sentence. Except as herein otherwise provided the judgment and
sentence of a commission shall final and not subject to review by any
other tribunal.

VI. RULE-MAKING POWER

Supplementary Rule and Forms. — Each commission shall adopt rules

and forms to govern its procedure, not inconsistent with the provision
of this Order, or such rules and forms as may be prescribed by the
convening authority]or by the President of the Philippines.

VII. The amount of amount of seven hundred thousand pesos is

hereby set aside out of the appropriations for the Army of the
Philippines for use by the National War Crimes Office in the
accomplishment of its mission as hereinabove set forth, and shall be
expended in accordance with the recommendation of the Judge
Advocate General as approved by the President. The buildings,
fixtures, installations, messing, and billeting equipment and other
property herefore used by then Legal Section, Manila Branch, of the
General Headquarters, Supreme Commander for the Allied Power,
which will be turned over by the United States Army to the Philippines
Government through the Foreign Liquidation Commission and the
Surplus Property Commission are hereby specification reserved for use
off the National War Crimes Office.
 Executive Order No. 64, dated August 16, 1945, is hereby repealed.

Done in the City of Manila, this 29th day of July in the year of Our
Lord, nineteen hundred and forty-seven, and of the Independence of
the Philippines, the second.

MANUEL ROXAS
President of the Philippines

By the President:

EMILIO ABELLO
Chief of the Executive Office

EXECUTIVE LEGISLATION

Executive Order No. 68 is a veritable piece of Legislative measure, without

the benefit of congressional enactment.

The first question that is trust at our face spearheading a group of other no
less important question, is whether or not the President of the Philippines
may exercise the legislative power expressly vested in Congress by the
Constitution. .

The Constitution provides:

The Legislative powers shall be vested in a Congress of the Philippines

which shall consist of a Senate and House of Representatives. (Section
1, Article VI.)

While there is no express provision in the fundamental law prohibiting the

exercise of legislative power by agencies other than Congress, a reading of
the whole context of the Constitution would dispel any doubt as to the
constitutional intent that the legislative power is to be exercised exclusively
by Congress, subject only to the veto power of the President of the President
of the Philippines, to the specific provision which allow the president of the
Philippines to suspend the privileges of the writ of habeas corpus and to
place any part of the Philippines under martial law, and to the rule-making
power expressly vested by the Constitution in the Supreme Court.

There cannot be any question that the member of the Constitutional

Convention were believers in the tripartite system of government as
originally enunciated by Aristotle, further elaborated by Montequieu and
accepted and practiced by modern democracies, especially the United State
of America, whose Constitution, after which ours has been patterned, has
allocated the three power of government — legislative, executive, judicial —
to distinct and separate department of government.

Because the power vested by our Constitution to the several department of

the government are in the nature of grants, not recognition of pre-existing
power, no department of government may exercise any power or authority
not expressly granted by the Constitution or by law by virtue express
authority of the Constitution.

Executive Order No. 68 establishes a National War Crimes Office and the
power to establish government office is essentially legislative.

The order provides that person accused as war criminals shall be tried by
military commissions. Whether such a provision is substantive or adjective,
it is clearly legislative in nature. It confers upon military commissions
jurisdiction to try all persons charge with war crimes. The power to define
and allocate jurisdiction for the prosecution of person accused of any crime
is exclusively vested by the Constitution in Congress. .

It provides rules of procedure for the conduct of trial of trial. This provision
on procedural subject constitutes a usurpation of the rule-making power
vested by Constitution in the Supreme Court.

It authorized military commission to adopt additional rule of procedure. If

the President of the Philippines cannot exercise the rule -making power
vested by the Constitution in the Supreme Court, he cannot, with more
reason, delegate that power to military commission.

It appropriates the sum of P7000,000 for the expenses of the National War
Crimes office established by the said Executive Order No. 68. This
constitutes another usurpation of legislative power as the power to vote
appropriations belongs to Congress.

Executive Order No. 68., is, therefore, null and void, because, though it the
President of the Philippines usurped power expressly vested by the
Constitution in Congress and in the Supreme Court.

Challenged to show the constitutional or legal authority under which the

President issued Executive Order No. 68, respondent could not give any
definite answer. They attempted, however, to suggest that the President of
the Philippines issued Executive Order No. 68 under the emergency power
granted to him by Commonwealth Act No. 600, as amended by
Commonwealth Act No. 620, and Commonwealth Act No. 671, both of which
are transcribed below:

COMMONWEALTH ACT NO. 600.

AN ACT DECLARING A STATE OF EMERGENCY AND

AUTHORIZING THE PRESIDENT TO PROMULGATE RULES AND
REGULATION TO SAFEGUARD THE INTEGRITY OF THE
PHILIPPINES AND TO INSURE THE TRANQUILITY OF ITS
INHABITANTS.

Be it enacted by the National Assembly of the Philippines:

SECTION 1. The existence of war in many parts of the world has

created a national emergency which makes it necessary to invest the
President of the Philippines with extraordinary power in order to
safeguard the integrity of the Philippines and to insure the tranquility
of its inhabitants, by suppressing espionage, lawlessness, and all
subversive to the people adequate shelter and clothing and sufficient
food supply, and by providing means for the speedy evacuation of the
civilian population the establishment of an air protective service and
the organization of volunteer guard units, and to adopt such other
measures as he may deem necessary for the interest of the public. To
carry out this policy the President is authorized to promulgate rules
and regulations which shall have the force and effect off law until the
date of adjournment of the next regulation which shall have the force
and effect of law until the date of adjournment of the next regular
session of the First Congress of the Philippines, unless sooner
amended or repealed by the Congress of Philippines. Such rules and
regulation may embrace the following objects: (1) to suppress
espionage and other subversive activities; (2) to require all able-
bodied citizens (a) when not engaged in any lawful occupation, to
engage in farming or other productive activities or (b) to perform such
services as may bee necessary in the public interest; (3) to take over
farm lands in order to prevent or shortage of crops and hunger and
destitution; (4) to take over industrial establishment in order to insure
adequate production, controlling wages and profits therein; (5) to
prohibit lockouts and strikes whenever necessary to prevent the
unwarranted suspension of work in productive enterprises or in the
interest of national security; (6) to regulate the normal hours of work
for wage-earning and salaried employees in industrial or business
undertakings of all kinds; (7) to insure an even distribution of labor
among the productive enterprises; (8) to commandership and other
means of transportation in order to maintain, as much as possible,
adequate and continued transportation facilities; (9) to requisition and
take over any public service or enterprise for use or operation by the
Government;(10) to regulate rents and the prices of articles or
commodities of prime necessity, both imported and locally produced or
manufactured; and (11) to prevent, locally or generally, scarcity,
monopolization, hoarding injurious speculations, and private control
affecting the supply, distribution and movement of foods, clothing,
fuel, fertilizer, chemical, building, material, implements, machinery,
and equipment required in agriculture and industry, with power to
requisition these commodities subject to the payment of just
compensation. (As amended by Com. Act No. 620.)

SEC. 2. For the purpose of administering this Act and carrying out its
objective, the President may designate any officer, without additional
compensation, or any department, bureau, office, or instrumentality of
the National Government.

SEC. 3. Any person, firm, or corporation found guilty of the violation of

any provision of this Act or of this Act or any of the rules or regulations
promulgated by the President under the authority of section one of this
Act shall be punished by imprisonment of not more than ten years or
by a fine of not more than ten thousand pesos, or by both. If such
violation is committed by a firm or corporation, the manager,
managing director, or person charge with the management of the
business of such firm, or corporation shall be criminally responsible
therefor.

SEC. 4. The President shall report to the national Assembly within the
first ten days from the date of the opening of its next regular session
whatever action has been taken by him under the authority herein
granted.

SEC. 5. To carry out the purposed of this Act, the President is

authorized to spend such amounts as may be necessary from the sum
appropriated under section five Commonwealth Act Numbered four
hundred and ninety-eight.

SEC. 6. If any province of this Act shall be declared by any court of

competent jurisdiction to be unconstitutional and void, such
declaration shall not invalidate the remainder of this Act.

SEC. 7. This Act shall take upon its approval.

Approved, August 19, 1940.

COMMONWEALTH ACT NO. 671

AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A

RESULT OF WAR INVOLVING THE PHILIPPINES AND
AUTHORIZING THE PRESIDENT TO PROMULGATE RULE AND
REGULATIONS TO MEET SUCH EMERGENCY.

Be it enacted the National Assembly of the Philippines;

SECTION 1. The existed of war between the United State 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.

SEC. 2. Pursuant to the provision of Article VI, section 16, of the

Constitution, the President is hereby authorized, during the existence
of the emergency, to promulgate such rules and regulation as he may
deem necessary to carry out the national policy declared in section 1
hereof. Accordingly, he is, among other things, empowered (a) to
transfer the seat of the Government or any of its subdivisions,
branches, department, offices, agencies or instrumentalities; (b) to
reorganize the Government of the Commonwealth including the
determination of the order of precedence of the heads of the Executive
Department; (c) to create new subdivision, branches, departments,
offices, agency or instrumentalities of government and to abolish any
of those already existing; (d) to continue in force laws and
appropriation which would lapse or otherwise became inoperative, and
to modify or suspend the operation or application of those of an
administrative character; (e) to imposed new taxes or to increase,
reduce, suspend, or abolish those in existence; (f) to raise funds
through the issuance of bonds or otherwise, and to authorize the
expensive of the proceeds thereof; (g) to authorize the National,
provincial, city or municipal governments to incur in overdrafts for
purposes that he may approve; (h) to declare the suspension of the
collection of credits or the payment of debts; and (i) to exercise such
other power as he may deem necessary to enable the Government to
fulfill its responsibilities and to maintain and enforce its authority.

SEC. 3. The President of the Philippines report thereto all the rules and
regulation promulgated by him under the power herein granted.
 SEC. 4. This Act shall take effect upon its approval and the rules and
regulations. promulgated hereunder shall be in force and effect until
the Congress of the Philippines shall otherwise provide.

Approved December 16, 1941.

The above Acts cannot validly be invoked, Executive Order No. 68 was
issued on July 29, 1947. Said Acts had elapsed upon the liberation of the
Philippines form the Japanese forces or, at the latest, when the surrender of
Japan was signed in Tokyo on September 2, 1945.

When both Acts were enacted by the Second National Assembly, we

happened to have taken direct part in their consideration and passage, not
only as one of the members of said legislative body as chairman of the
Committee on Third Reading population Known as the "Little Senate." We
are, therefore in a position to state that said measures were enacted by the
second national Assembly for the purpose of facing the emergency of
impending war and of the Pacific War that finally broke out with the attack of
Pearl Harbor on December 7, 1941. We approved said extraordinary
measures, by which under the exceptional circumstances then prevailing
legislative power were delegated to the President of the Philippines, by
virtue of the following provisions of the Constitution:

In time of war or other national emergency, the Congress may by law

authorize the President, for a limited period and subject to such
restrictions as it may prescribe to promulgate rules and regulations to
carry out declared national policy. (Article VI, section 26.)

It has never been the purpose of the National Assembly to extend the
delegation beyond the emergency created by the war as to extend it farther
would be violative of the express provision of the Constitution. We are of the
opinion that there is no doubt on this question.; but if there could still be
any the same should be resolved in favor of the presumption that the
National Assembly did not intend to violate the fundamental law.

The absurdity of the contention that the emergency Acts continued in effect
even after the surrender of Japan can not be gainsaid. Only a few months
after liberation and even before the surrender of Japan, or since the middle
of 1945, the Congress started to function normally. In the hypothesis that
the contention can prevail, then, since 1945, that is, four years ago, even
after the Commonwealth was already replaced by the Republic of the
Philippines with the proclamation of our Independence, two district, separate
and independence legislative organs, — Congress and the President of the
Philippines — would have been and would continue enacting laws, the former
to enact laws of every nature including those of emergency character, and
the latter to enact laws, in the form of executive orders, under the so-called
emergency powers. The situation would be pregnant with dangers to peace
and order to the rights and liberties of the people and to Philippines
democracy.

Should there be any disagreement between Congress and the President of

the Philippines, a possibility that no one can dispute the President of the
Philippines may take advantage of he long recess of Congress (two-thirds of
every year ) to repeal and overrule legislative enactments of Congress, and
may set up a veritable system of dictatorship, absolutely repugnant to the
letter and spirit of the Constitution.

Executive Order No. 68 is equally offensive to the Constitution because it

violates the fundamental guarantees of the due process and equal protection
of the law. It is especially so, because it permit the admission of many kinds
evidence by which no innocent person can afford to get acquittal and by
which it is impossible to determine whether an accused is guilty or not
beyond all reasonable doubt.

The rules of evidence adopted in Executive Order No. 68 are a reproduction

of the regulation governing the trial of twelve criminal, issued by General
Douglas Mac Arthur, Commander in Chief of the United State Armed Forces
in Western Pacific, for the purpose of trying among other, General Yamashita
and Homma. What we said in our concurring and dissenting opinion to the
decision promulgated on December 19, 1945, in the Yamashita case, L-129,
and in our concurring and dissenting opinion to the resolution of January 23,
1946 in disposing the Homma case, L-244, are perfectly applicable to the
offensive rules of evidence in Executive Order No. 68. Said rules of evidence
are repugnant to conscience as under them no justice can expected.

For all the foregoing, conformably with our position in the Yamashita and
Homma cases, we vote to declare Executive Order No. 68 null and void and
to grant petition.

Petition denied.