EN BANC

[G.R. No. L-5a 1(1) . November 16, 1945.]

CO KIM CHAM (alias CO CHAM), petitioner, vs. EUSEBIO

VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First
Instance of Manila, respondents.
Marcelino Lontok for petitioner.
Revilla & Palma for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.

SYLLABUS

1. INTERNATIONAL LAW; "DE FACTO" GOVERNMENT;

PRESENCE OF GUERRILLA BANDS. — The presence of guerrilla bands in
barrios and mountains, and even in towns of the Philippines whenever these towns
left by Japanese garrisons or by the detachments of troops sent on patrol to these
places, was not sufficient to make the military occupation ineffective, nor did it
cause that occupation to cease, or prevent the constitution or establishment of a de
facto government in the Islands. The belligerent occupation of the Philippines by
the Japanese invaders became an accomplished fact from the time General
Wainwright, Commander of the American and Filipino forces in Luzon, and
General Sharp, Commander of the forces in Visayas and Mindanao, surrendered
and ordered the surrender of their forces to the Japanese invaders, and the
Commonwealth Government had become incapable of publicity exercising its
authority, and the invader had substituted his own authority for that of the
legitimate government in Luzon, Visayas and Mindanao.

2. ID.; ID.; HAGUE CONVENTIONS; DUTY OF BELLIGERENT

OCCUPANT TO CONTINUE COURTS AND MUNICIPAL LAWS IN FORCE,
FOR BENEFIT OF INHABITANTS OF OCCUPIED TERRITORY. — The
provisions of the Hague Conventions which impose upon in belligerent occupant
the duty to continue the courts as well as the municipal laws in force in the country
unless absolutely prevented, in order to reestablish and insure :Pordre et al vie
publice," that is, the public order and safety, and the entire social and commercial
life of the country, were inserted, not for the benefit of the invader, but for the
protection and benefit of the people or inhabitants of the occupied territory and of
those not in the military service, in order that the ordinary pursuits and business
of society may not be unnecessarily deranged.

3. STATUTORY CONSTRUCTION; MEANING OF "PROCESSES"

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 USED IN PROCLAMATION OF GENERAL DOUGLAS MACARTHUR OF
OCTOBER 23, 1944; MAXIM OF "NOSCITUR A SOCIIS." — The word
"processes," as used in the proclamation of General Douglas MacArthur of
October 23, 1944, cannot be interpreted to mean judicial processes; that term
should be construed to mean legislative and constitutional processes, by virtue of
the maxim "noscitur a sociis." According to this maxim, where a particular word
or phrase is ambiguous in itself or is equally susceptible of various meanings, its
meaning may be made clear and specific by considering the company in which it is
found. (Black on Interpretation of Laws, 2d., pp. 194-196.) Since the proclamation
provides that "all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void," the word
"processes" must be interpreted or construed to refer to the Executive Orders of the
Chairman of the Philippine Executive Commission, ordinances promulgated by the
President of the so-called Republic of the Philippines, and the Constitution itself of
said Republic, and others that are of the same class as the laws and regulations
with which the word "processes" is a associated.

DECISION

FERIA, J : p

This is a motion for reconsideration of our decision rendered in this case

filed by the respondent. Two attorneys at law, who were allowed to appear as
amici curiae, have also presented memoranda to discuss certain points on which
the dissenting opinion rely.

(1) It is contended that the military occupation of the Philippine Islands by

the Japanese was not actual and effective because of the existence of guerrilla
bands in barrios and mountains and even towns and villages; and consequently, no
government de facto could have been validly established by the Japanese military
forces in the Philippines under the precepts of the Hague Conventions and the law
of nations.

The presence of guerrilla bands in barrios and mountains, and even in

towns of the Philippines whenever these towns were left by Japanese garrisons or
by the detachments of troops sent on patrol to these places, was not sufficient to
make the military occupation ineffective nor did it cause that occupation to cease,
or prevent the constitution or establishment of a de facto government in the
Islands. The belligerent occupation of the Philippines by the Japanese invaders
became as accomplished fact from the time General Wainwright, Commander of
the American and Filipino forces in Luzon, and General Sharp, Commander of the
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 forces in Visayas and Mindanao, surrendered and ordered the surrender of their
forces to the Japanese invaders, and the Commonwealth Government had become
incapable of publicly exercising its authority, and the invader had substituted his
own authority for that of the legitimate government in Luzon, Visayas and
Mindanao.

"According to the rules of Land Welfare of the United States Army,

belligerent or so-called military occupation is a question of fact. It presupposes a
hostile invasion as a result of which has rendered the invaded government
incapable of publicly exercising its authority, and that the invader is in position to
substitute and has substituted his own authority for that of the legitimate
government of the territory invaded." (International Law Chiefly as Interpreted
and Applied by the United States, by Hyde, Vol. II, pp. 361, 362.) "Belligerent
occupation must be both actual and effective. Organized resistance must be
overcome and the forces in possession must have taken measures to establish law
and order. It doubtless suffices if the occupying army can, within a reasonable
time, send detachments of troops to make its authority felt within the occupied
district." (Id., p. 364.) "Occupation once acquired must be maintained . . .. It does
not cease, however, . . .. Nor does the existence of a rebellion or the operations of
guerrilla bands cause it to cease, unless the legitimate government is reestablished
and the occupant fails promptly to suppress such rebellion or guerrilla operations."
(Id., p. 365.).

But supposing arguendo that there were provinces or district in these

Islands not actually and effectively occupied by the invader, or in which the latter,
consequently, had not substituted his own authority for that of the invaded
government, and the Commonwealth Government had continued publicly
exercising its authority, there is no question as to the validity of the judicial acts
and proceedings of the court functioning in said territory, under the municipal law,
just as there can be no question as to the validity of the judgments and proceedings
of the courts continued in the territory occupied by the belligerent occupant, under
the law of nations.

(2) It is submitted that the renunciation in our Constitution and in the

Kellog-Briand Pact of war as an instrument of national policy, rendered
inapplicable the rules of international law authorizing the belligerent Japanese
army of occupation to set up a provisional or de facto government in the
Philippines, because Japan started was treacherously and emphasized war as an
instrument of national policy; and that to give validity to the judicial acts of court
sponsored by the Japanese would be tantamount to giving validity to the acts of
these invaders, and would be nothing short of legalizing the Japanese invasion of
the Philippines.

In reply to this contention, suffice it to say that the provisions of the Hague
Conventions which imposes upon a belligerent occupant the duty to continue the
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 courts as well as the municipal laws in force in the country unless absolutely
prevented, in order to reestablish and insure "l'ordre et al vie publice," that is, the
public order and safety, and the entire social and commercial life of the country,
were inserted, not for the benefit of the invader, but for the protection and benefit
of the people or inhabitants of the occupied territory and of those not in the
military service, in order that the ordinary pursuits and business of society may
not be unnecessarily deranged.

This is the opinion of all writers on international law up to date, among

them Wheaton (Vol. II, p. 236) and Oppenheim (Vol. II, p. 338) in their recently
revised Treatises on International Law, edited in the year 1944, and the
interpretation of the Supreme Court of the United States in many cases, specially
in the case of Dow vs. Johnson (106 U. S., 158), in which that Court said: "As a
necessary consequence of such occupation and domination, the political relations
of its people to their former government are, for the time being, severed. But for
their protection and benefit, and the protection and benefit of others not in the
ordinary pursuits and business of society may not be unnecessarily deranged, the
municipal laws, that is, such as affect private rights of persons and property and
provide for the punishment of crime, are generally allowed to continue in force,
and to be administered by the ordinary tribunals as they were administered before
the occupation. They are considered as continuing, unless suspended or superseded
by the occupying belligerent." (Dow vs. Johnson, 100 U. S., 158; 25 U. S. [Law,
ed.], 632).

The fact that the belligerent occupant is a treacherous aggressor, as Japan

was, does not, therefore, exempt him from complying with said precepts of the
Hague Conventions, nor does it make null and void the judicial acts of the courts
continued by the occupant in the territory occupied. To deny validity to such
judicial acts would benefit the invader or aggressor, who is presumed to be intent
upon causing as much harm as possible to the inhabitants or nationals of the
enemy's territory, and prejudice the latter; it would cause more suffering to the
conquered and assist the conqueror or invader in realizing his nefarious design; in
fine, it would result in penalizing the nationals of the occupied territory, and
rewarding the invader or occupant for his acts of treachery and aggression.

(3) We held in our decision that the world "processes," as used in the
proclamation of General Douglas MacArthur of October 23, 1944, cannot be
interpreted to mean judicial processes; and because of the cogent reasons therein
set forth, we did not deem it necessary to specify the processes to which said
proclamation should be construed to refer. As some doubt still lingers in the minds
of person interested in sustaining a contrary interpretation or construction, we are
now constrained to say that the term as used in the proclamation should be
construed to mean legislative and constitutional processes, by virtue of the maxim
"noscitur a sociis." According to this maxim, where a particular word or phrase is
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 ambiguous in itself or is equally susceptible of various meaning, its meaning may
be made clear and specific by considering the company in which it is found.
(Black on Interpretation of Laws, 2d ed., pp. 194-196.) Since the proclamation
provides that "all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void," the word
"processes" must be interpreted or construed to refer to the Executive
Commission, Ordinances promulgated by the President of the so-called Republic
of the Philippines, and the Constitution itself of said Republic, and others that are
of the same class as the laws and regulations with which the world "processes" is
associated.

To illustrate, "an English act required licenses for 'houses, rooms, shops, or
buildings, kept open for public refreshment, resort, and entertainment.' It was
adjudged that the word 'entertainment,' in this connection, did not necessarily
mean a concert, dramatic performance, or other divertisement, nor did it
necessarily imply the furnishing of food or drink, but that, judged from its
associations, it meant the reception and accommodation of the public. So where a
policy of marine insurance is specified to protect the assured against 'arrests,
restraints, and detainments of all kinds, princes, and people,' the word 'people'
means the ruling or governing power of the country, this signification being
impressed upon it by its association with the words 'kings' and 'princes.' Again, in
a statute relating to imprisonment for debt, which speaks of debtors who shall be
charged with 'fraud, or undue preference to one creditor to the prejudice of
another,' the word 'undue' means fraudulent. A statute of bankruptcy, declaring
that any fraudulent 'gift, transfer or delivery' of property shall constitute an act of
bankruptcy, applies only to such deliveries as one in the nature of a gift — such as
change the ownership of the property, to the prejudice of creditors; it does not
include a delivery to a bailee for safekeeping." (Black on Interpretation of Laws,
supra.)

(4) The statement of Wheaton (International Law, 7th ed., p. 245) that
"when it is said that an occupier's acts are valid, it must be remembered that no
crucial instances exist to show that if his acts should all be reversed (by the
restored government or its representatives) no international wrong would be
committed," evidently does not mean that the restored government or its
representatives may reverse the judicial acts and proceedings of the courts during
the belligerent occupation without violation of the law of nations does not always
and necessarily cause an international wrong. As the said judicial acts which apply
the municipal laws, that is, such as affect private rights or persons and property
and provide for the punishment of crimes, are good and valid even after
occupation has ceased, although it is true that no crucial instances exist to show
that, were they reversed or invalidated by the restored or legitimate government,
international wrong would be committed, it is nonetheless true and evident that by
such abrogation national wrong would be caused to the inhabitants or citizens of
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 the legitimate government. According to the law of nations and Wheaton himself,
said judicial acts are legal and valid before and after the occupation has ceased and
the legitimate government has been restored. As there are vested rights which have
been acquired by the parties by virtue of such judgments, the restored government
or its representative cannot reverse or abrogate them without causing wrong or
injury to the interested parties, because such reversal would deprive them of their
properties without due process of law.

In this connection, it may not be amiss to refer to the decision of the

Supreme Court of the United States in the case of Raymond vs. Thomas (91 U. S.,
712), quoted in our decision as applicable by analogy. In said case, the
Commander in Chief of the United States forces in South Carolina, after the end of
the Civil War and while the territory was still under Military Government, issued a
special order annulling a decree rendered by a court of chancery in a case within
its jurisdiction, on the wrong assumption that he had authority to do so under the
acts of Congress approved March 2, and July 19, 1867, which defined his powers
and duties. That Supreme Court declared void the said special order on the ground
"that it was an arbitrary stretch of authority needful to no good end that can be
imagined. Whether Congress could have conferred power to do such an act is a
question we are not called upon to consider. It is an unbending rule of law that the
exercise of military power where the rights of the citizens are concerned, shall
never be pushed beyond what the exigency requires."

(5) It is argued with insistence that the courts of the Commonwealth

continued in the Philippines by the belligerent occupant became also courts of
Japan, and their judgments and proceedings being acts of foreign courts cannot
now be considered valid and continued by the courts of the Commonwealth
Government after the restoration of the latter. As we have already stated in our
decision the fundamental reasons why said courts, functioning during the Japanese
regime, could not be considered as courts of Japan, it is sufficient now to invite
attention to the decision of the Supreme Court of the United States in the case of
the Admittance, Jecker vs. Montgomery (13 How., 498; 14 Law. ed., 240), which
we did not deem necessary to quote in our decision, in which it was held that "the
courts, established or sanctioned in Mexico during the war by the commanders of
the American forces, were nothing more than the agents of the military power, to
assist it in preserving order in the conquered territory, and to protect the
inhabitants in their persons and property while it was occupied by the American
arms. They were subject to the military power, and their decision under its control,
whenever the commanding officer though proper to interfere. They were not courts
of the United States, and had no right to adjudicate upon a question of prize or no
prize." (The Admittance, Jecker vs. Montgomery, 13 How., 498; 14 Law. ed.,
240.)

(6) The petition for mandamus in the present case is the plain, speedy and
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 adequate remedy. The mandamus applied for is not to compel the respondent
judge to order the reconstitution of the record of the case, because the record had
already been reconstituted by order of the court. It is sought to compel the
respondent judge to continue the proceedings in said case. As the judge refused to
act on the ground that he had no power or jurisdiction to continue taking
cognizance of the case, mandamus and not appeal is the plain, speedy and
adequate remedy. For it is well established rule that "if a court has erroneously
decided some question of law or of practice, presented as a preliminary objection,
and upon such erroneous construction has refused to go into the merits of the case,
mandamus will lie to compel it to proceed." (High on Extraordinary Legal
Remedies, section 151; Castro Revilla vs. Garduño, 53 Phil., 934.)

In view of the foregoing, the motion for reconsideration filed by the

respondents is denied. The petition for oral argument on said motions for
reconsideration, based on the resolution of division of this Court dated July 3,
2945, amendatory of section 2, Rule 54, of the Rules of Court, is also denied,
since said resolution has not yet been adopted by this Court in banc, and the
respondents and amici curiae were allowed to file, and they filed, their arguments
in writing.

Moran, C.J., Ozaeta, Paras, Jaranilla, De Joya and Pablo, JJ., concur.

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 Endnotes

1 (Popup - Popup)
1. For principal decision, see page 113, ante.

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