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PHILIPPINE REPORTS ANNOTATED VOLUME 083

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Case Title:
Shigenori Kuroda, petitioner, vs.
Major General Rafael Jalandoni,
Brigadier General Calixto Duque, [No. L-2662. March 26, 1949]
Colonel Margarito Toralba, Colonel SHIGENORI KURODA, petitioner, vs. MAJOR GENERAL RAFAEL
Ireneo Buenconsejo, Colonel Pedro JALANDONI, BRIGADIER GENERAL CALIXTO DUQUE, COLONEL
Tabuena, Major Federico Aranas, MARGARITO TORALBA, COLONEL IRENEO BUENCONSEJO,
Melville S. Hussey and Robert Port, COLONEL PEDRO TABUENA, MAJOR FEDERICO ARANAS,
respondents. MELVILLE S. HUSSEY and ROBERT PORT, respondents.
Citation: 83 Phil., 171
1.CONSTITUTIONAL LAW; VALIDITY OF EXECUTIVE
Less...
ORDER NO. 68 ESTABLISHING A NATIONAL WAR
Docket Number: No. L-2662
CRIMES OFFICE.—Executive Order No. 68 which
Counsel: Pedro Serran, Jose G. was issued by the President of the Philippines
Lukban, and Liberato B. Cinco on the 29th day of July, 1947, is valid and
Ponente/Other Opinion: Moran constitutional. Ar​ticle 2 of our Constitution
Dispositive Portion: For all the provides in its section 3 that "The Philippines
foregoing, conformably with our renounces war as an instrument of national
position in the Yamasita and Homma policy, and adopts the generally accepted
cases, we vote to declare Executive principles of international law as part of the
Order No. 68 null and void and to law of the nation."
grant the petition. 2.INTERNATIONAL LAW; VIOLATORS OF THE LAWS AND
CUSTOMS OF WAR, OF HUMANITY AND CIVILIZATION,
LIABILITY AND RESPONSIBILITY OF.—In accordance
Search Result with the generally accepted prin​ciples of
international law of the present day, including
the Hague Convention, the Geneva Convention
and significant pre​cedents 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 inci​dental 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 Pres​ident of the
Philippines has acted in conformity with the
gen​erally 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.
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 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 Conven​tions form part of
and are wholly based on the generally accepted
principles of international law. In fact, these
rules and princi​ples 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 con​ventions embodying them, for our
Constitution has been delib​erately 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 NECESSARILY 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

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 Court. In fact, it is common in military
tribunals that counsel for the
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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 sover​eignty, it has not been
by our government but by the United States
Government Which has yielded to us the trial
and punish​ment 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 Com​mission having
been convened by virtue of a valid law, with
jurisdiction over the crimes charged which fall
under the pro​visions 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 au​thorized 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 constitu​tional intent that

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 the legislative power is to be exercised ex​-
clusively 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
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the rule-making power expressly vested by the

Constitution in the Supreme Court.
16.ID.; ID.; SCOPE OF POWERS OF DIFFERENT
GOVERNMENTAL DEPARTMENTS.·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 Ex​-
ecutive 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
legis​lative.
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 author​izes military commissions to
adopt additional rules 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
commissions.
20.ID,; LEGISLATIVE POWER VESTED IN CONGRESS;

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 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 emer​-
gency powers to promulgate rules and
regulations during na​tional emergency has
ceased to have effect since the liberation
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kurada vs. Jalandoni

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 sur​render of Japan cannot be gainsaid.
Only a few months after liberation, and even
before the surrender of Japan, the Con​gress
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 disagree​ment 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 guar​antees 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

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 impossible to determine whether an accused is
guilt or not beyond all reasonable doubt.
ORIGINAL ACTION in the Supreme Court. Prohibition.
The facts are stated in the opinion of the court.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for
petitioner.
Fred Ruiz Castro, Federico Arenas, Mariano Yengco, Jr.,
Ricardo A. Arcilla, and S. Meville Hussey for respondents.

MORAN, C. J.:
Shigenori Kuroda, formerly a Lieutenant-General of the
Japanese Imperial Army and Commanding General of the
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kurada vs. Jalandoni

Japanese Imperial Forces in the Philippines during a

period covering 1943 and 1944, who is now charged before
a Mili​tary 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
pris​oners of the Imperial Japanese Forces, in violation of
the laws and customs of war"·comes before this Court
seek​ing 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 par​ticipating in the prosecution of petitioner's case
before the Military Commission; and to permanently
prohibit respond​ents 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 con​-
stitutional law but also our local laws, to say nothing of the
fact (that) the Philippines is not a signatory nor an ad​-
herent 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 uncon​stitutional law and an illegal order, this
commission is without jurisdiction to try hereing
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 Hus​-
sey 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.

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 177

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kurada vs. Jalandoni

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
govern​ing 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 in​-

ternational 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 promulga​tion and enforcement of Executive Order No.
68, the Pres​ident 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 in​cident 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

_______________

¹75 Phil., 563.

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 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 tech​nical state of war
continues. This includes the period of an armis*
tice, or military occupation, up to the effective
date of a treaty of peace, and may extend beyond,
by treaty agreement.Ê (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 Con​-
vention 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 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
prin​ciples, 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.
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 be​tween the belligerent countries. These rights
and obliga-

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kurada vs. Jalandoni

tions 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 Common​wealth to Republic does not affect
the prosecution of those charged with the crime of
treason committed during the Commonwealth,

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 be​cause it is an offense against the same
government and the same sovereign people * *
*."
By the same token, war crimes committed against our peo​-
ple 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 attor​-
neys 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 jnilitary 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 com​missions
is a valid and constitutional law. There is noth​ing in said
executive order which requires that counsel appearing
before said commissions must be attorneys qual​ified to
practice law in the Philippines in accordance with the
Rules of Court. In fact, it is common in military tri​bunals
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
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kurada vs. Jalandoni

the vindication of crimes against her government and her

people to a tribunal of our nation, should be allowed rep​-
resentation 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 Govern​ment
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 attor​-
neys 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 Com​-
mission. 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 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

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 Military Commission.
For all the foregoing, the petition is denied with costs de
oficio.

Paras, Feria, Pablo, Bengzon, Briones, Tuason,

Montemayor, and Reyes, J J., concur.

PERFECTO. J., dissenting:
A military commission was empaneled 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 prosecutors representing the American
CIC in the trial of the case.
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The commission was empaneled under the authority of

Executive Order No. 68 of the President of the Philippines,
the validity of which is challenged by petitioner on con​-
stitutional 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 consider 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 persons cannot appear as prosecutors in
petitioner's 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 questions involved in the
challenge against the validity of Executive Order No. 68.
Said order is challenged on several constitutional grounds.
To get a clear idea of the questions 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 REGULATIONS
GOVERNING THE TRIAL OF ACCUSED WAR
CRIMINALS.

"I, Manuel Roxas, President of the Philippines,

by virtue of the powers 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 regulations governing
such trial.
"The National War Crimes Office is established
within the Office of the Judge Advocate General

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 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 avail​able sources evidence of war
crimes committed in the Philippines from the
commencement of hostilities by Japan in
December, 1941,
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182 PHILIPPINE REPORTS ANNOTATED

kurada vs. Jalandoni

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 Powers, and shall exchange with the
said Office information and evidence of war
crimes.
"The following rules and regulations shall
govern the trial of persons accused as war
criminals:
"I. ESTABLISHMENT OF MILITARY
COMMISSIONS
"(a) General.·Persons accused as war
criminals shall be tried by military commissions
to be convened by, or under the authority of, the
President of the Philippines.
"II. JURISDICTION
"(a) Over Persons.·The military commissions
appointed here​under 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 commissions
established here​under 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, agreements or
assurances, or participation in a common plan or
conspiracy for the accomplishment of any of the
foregoing.
"(2) Violations of the laws or customs of war.
Such violations shall include, but not be limited
to, murder, ill-treatment or deporta​tion to slave
labor or for any other purpose of civilian
population of or in occupied territory; murder or
ill-treatment of prisoners of war or internees or
persons on the seas or elsewhere; improper treat​-
ment of hostages; plunder of public or private
property; wanton destruction of cities, towns or
villages; or devastation not justified by military
necessity.
"(3) Murder, extermination, enslavement,
deportation and other inhuman acts committed
against civilian populations before or during the
war, or persecutions on political, racial or
religious grounds in execution of, or in connection

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 with, any crime denned 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 alternates shall
attend all sessions 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 va​cancy
among the members or alternates, occurring after
a trial has begun, may be filled by the convening
authority, but the substance of all proceedings
had and evidence taken in that case shall be
made known to the said new member or
alternate. This fact 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 prej​udice, 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 shall
be designated as the law member whose ruling is
final in so far as concerns the com​mission on an
objection to the admissibility of evidence offered
during the trial.
"(d) Voting.·Except as to the admissibility of
evidence, all rul​ings and findings of the
Commission shall be by majority vote, except that
conviction and sentence shall be by the
affirmative vote of not less than two-thirds (2/3)
of the members present.
"(e) Presiding Member.·In the event that the
convening author​ity does not name one of the
members as the presiding member, the senior
officer among the members of the Commission
present shall preside.
"IV. PROSECUTORS
"(a) Appointment.·The convening authority
shall designate one or more persons to conduct
the prosecution before each commission.
"(b) Duties.·The duties of the prosecutors are:
"(1) To prepare and present charges and
specifications for refer​ence to a commission.
"(2) To prepare cases for trial and to conduct
the prosecution before the commission of all cases
referred for trial.
"V. POWERS AND PROCEDURE OF
COMMISSIONS
"(a) Conduct of the Trial.·A Commission shall:
"(1) Confine each trial strictly to a fair and
expeditious hearing on the issues raised by the
charges, excluding irrelevant issues or evidence
and preventing any unnecessary delay or
interference.

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 "(2) Deal summarily with any contumacy or
contempt, imposing any appropriate punishment
therefor.
"(3) Hold public sessions except when otherwise
decided by the commission.
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kurada vs. Jalandoni

"(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 ap​pointed 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 com​mission.
"(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 tes​timony; 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 to 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, depart​-
ment, agency or member of the armed forces of

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 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 thereof, or
by a doctor of medicine or a member of any
medical service per​sonnel, or by any investigator
or intelligence officer, or by any other person
whom the commission considers as possessing
knowledge of the matters contained in the report.
"(c). Affidavits, depositions or other signed
statements.
"(d) Any diary, letter or other document,
including sworn or un​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 pro​ceedings,
records and findings of military or other agencies
of any of the United Nations.
"(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. Fur​ther, 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 purported confessions or statements of
the accused shall be admissible in evidence
without any showing that they were volun​tarily
made. If it is shown that such confession or
statement was procured by means which the
commission believes to have been of such a
character that they 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
ad​missibility of such evidence.
"(5) The witnesses and other evidence for the

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 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
the evidence before the commission supports the
charges against the accused. The commission may
defer action on any such motion and permit or
require the prosecu​tion to reopen its case and
produce any further available evidence.
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"(6) The defense may make an opening

statement prior to pre​senting its case. The
presiding member may, at this or any other time,
require the defense to state what evidence it
proposes to sub​mit to the commission, where
upon the commission may rule upon the
admissibility of such evidence.
"(7) 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.
"(8) The defense, and thereafter the
prosecution, shall address the commission.
"(9) 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 reasons on which
judgment is based.
"(f) Record of Proceedings.—Each commission
shall make a separate record of its proceedings 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 of Staff: Provided,
That no sentence of death or life imprisonment
shall be carried into execution until confirmed by
the President of the Philip​pines. 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 the authority

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 to ap​prove, 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 com​mission; 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 be
final and not subject to review by any other
tribunal.
"VI. RULE-MAKING POWER
"Supplementary Rules and Forms.—Each
commission shall adopt rules and forms to govern
its procedure, not inconsistent with the

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kurada vs. Jalandoni

provisions 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 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 recommendations of the Judge Advocate
General as approved by the President. The
buildings, fixtures, installations, messing, and
billeting equipment and other property heretofore
used by the Legal Section, Manila Branch, of the
General Headquarters, Supreme Com​mander for
the Allied Powers, which will be turned over by
the United States Army to the Philippine
Government through the For​eign Liquidation
Commission and the Surplus Property
Commission are hereby specifically reserved for
use of 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 thrust at our face, spearhead​-
ing a group of other no less important questions, is
whether or not the President of the Philippines may
exercise the legislative power expressly vested in Congress

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 by the Constitution.
The Constitution provides:

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

Phil​ippines, which shall consist of a Senate and a House of
Represent​atives." (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 con-
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188 PHILIPPINE REPORTS ANNOTATED

kurada vs. Jalandoni

stitutional intent that the legislative power is to be exer​-

cised exclusively by Congress, subject only to the veto
power of the President of the Philippines, to the specific
provisions which allow the President of the Philippines to
suspend the privileges of the writ of habeas curpus and to
place any part of the Philippines under martial law, and to
the rule-making power expressly vested by the Constitu​-
tion in the Supreme Court.
There cannot be any question that the members of the
Constitutional Convention were believers in the tripartite
system of government as originally enunciated by
Aristotle, further elaborated by Montesquieu and accepted
and practiced by modern democracies, especially the
United States of America, whose Constitution, after which
ours has been patterned, has allocated the three powers of
gov​ernment—legislative, executive, judicial—to distinct
and separate departments of government.
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 depart​-
ment of government may exercise any power or authority
not expressly granted by the Constitution or by law by
virtue of 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 persons accused as war crim​-
inals shall be tried by military commissions. Whether such
a provision is substantive or adjective, it is clearly legis​-
lative in nature. It confers upon military commissions
jurisdiction to try all persons charged with war crimes. The
power to define and allocate jurisdiction for the prose​-
cution of persons accused of any crime is exclusively vested
by the Constitution in Congress.
It provides rules of procedure for the conduct of trials.
This provision on procedural subject constitutes a usurpa​-
tion of the rule-making power vested by the Constitution in
the Supreme Court.
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 kurada vs. Jalandoni

It authorizes military commissions to adopt additional

rules of procedure. If the President of the Philippines
cannot exercise the rule-making power vested by the Con​-
stitution in the Supreme Court, he cannot, with more
reason, delegate that power to military commissions.
It appropriates the sum of P700,000 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
appropria​tions belongs to Congress.
Executive Order No. 68, is, therefore, null and void, be​-
cause, through it, the President of the Philippines usurped
powers expressly vested by the Constitution in Congress
and in the Supreme Court.
Challenged to show the constitutional or legal authority
under which the President of the Philippines issued Execu​-
tive Order No. 68, respondents 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 powers granted to him by Common​-
wealth 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 AU​THORIZING THE
PRESIDENT TO PROMULGATE RULES AND
REGULATIONS TO SAFEGUARD THE
INTEGRITY OF THE PHILIPPINES AND TO
INSURE THE TRANQUIL​ITY OF ITS
INHABITANTS.
uBe 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 powers in
order to safeguard the integrity of the Philippines
and to insure the tran​quility of its inhabitants, by
suppressing espionage, lawlessness, and all
subversive activities, by preventing or relieving
unemployment, by insuring 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,
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190 PHILIPPINE REPORTS ANNOTATED

kurada vs. Jalandoni

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

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 pro​mulgate rules and regulations 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 the
Philippines. Such rules and regula​tions 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 be necessary in the
public interest; (3) to take over farm lands in
order to prevent failure or shortage of crops and
avert hunger and destitution; (4) to take over
industrial establishments 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
distribu​tion of labor among the productive
enterprises; (8) to commandeer ships 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 specula​tions, and private
controls affecting the supply, distribution, and
movement of foods, clothing, fuel, fertilizers,
chemicals, building ma​terials, implements,
machinery, and equipment required in agricul​ture
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 objectives, the President
may designate any officer, without additional
compensation, or any department, bureau, office,
or instru​mentality of the National Government.
"Sec. 3. Any person, firm, or corporation found
guilty of the violation of any provision of this Act
or of any of the rules or regula​tions 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
charged with the manage-
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 kurada vs. Jalandoni

ment 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 purposes of this Act,
the President is authorized to spend such
amounts as may be necessary from the sum
appropriated under section five of Commonwealth
Act Numbered Four hundred and ninety-eight.
"Sec. 6. If any provision of this Act shall be
declared by any court of competent jurisdiction to
be unconstitutional and void, such decla​ration
shall not invalidate the remainder of this Act.
"Sec. 7. This Act shall take effect 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 RULES AND REGULATIONS
TO MEET SUCH EMER​GENCY.
"Be it enacted by the National Assembly of the
Philippines:
"Section 1. 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.
"Sec. 2. Pursuant to the provisions of Article VI,
section 16, of the Constitution, the President is
hereby authorized, during the existence of the
emergency, to promulgate such rules and
regulations 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,
departments, offices, agencies or
instrumentalities; (b) to reorganize the
Government of the Commonwealth including the
de​termination of the order of precedence of the
heads of the Executive Departments; (c) to create
new subdivisions, branches, departments, offices,
agencies or instrumentalities of government and
to abolish any of those already existing; (d) to
continue in force laws and appropriations which
would lapse or otherwise become inoperative, and
to modify or suspend the operation or application
of those of an administrative character; (e) to
impose 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

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 192

192 PHILIPPINE REPORTS ANNOTATED

kurada vs. Jalandoni

expenditure 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
powers as he may deem necessary to enable the
Govern​ment to fulfill its responsibilities and to
maintain and enforce its authority.
"Sec. 3. The President of the Philippines shall
as soon as prac​ticable upon the convening of the
Congress of the Philippines report thereto all the
rules and regulations promulgated by him under
the powers 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, because they
ceased to have any effect much before Executive Order No.
68 was issued on July 29, 1947. Said Acts had elapsed
upon the liberation of the Philippines from 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 but as chairman of the Committee
on Third Reading, popularly 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 an 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 powers were
dele​gated to the President of the Philippines, by virtue of
the following provisions of the Constitution:
"In times 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 regula​tions to carry out a declared
national policy." (Article VI, section 26.)

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 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 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.
The absurdity of the contention that the 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, 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 Phil​ippines
with the proclamation of our Independence, two distinct,
separate and independent legislative organs,·Con​gress
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 emergent 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 Philippine 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 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 dictator​-
ship, 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 permits the admission of
many kinds of evidence by which no innocent person can
afford
28660—13
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194 PHILIPPINE REPORTS ANNOTATED

kurada vs. Jalandoni

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 regulations governing the trial of
twelve criminals, issued by General Douglas MacArthur,
Commander in Chief of the United States Armed Forces in
Western Pacific, for the purpose of trying, among others,
Generals 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-129,1 and in our concurring and dissenting opinion to the
resolution of January 23, 1946, in disposing the Homma
case, L-244,2 are perfectly applicable to the offen​sive rules
of evidence embodied in Executive Order No. 68. Said rules

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 of evidence are repugnant to conscience as under them no
justice can be expected.
For all the foregoing, conformably with our position in
the Yamasita and Homma cases, we vote to declare
Executive Order No. 68 null and void and to grant the
petition.

Petition denied.

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