Laurel vs. Misa, 77 Phil. 856

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  Today is Monday, September 04, 2017 Custom SearchRepublic of the Philippines  SUPREME COURT  ManilaEN BANC G.R. No. L-409 January 30, 1947ANASTACIO LAUREL,  petitioner, vs.  ERIBERTO MISA,  respondent. Claro M. Recto and Querube C. Makalintal for petitioner. First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for respondent. R E S O L U T I O NIn G.R. No. L-409,  Anastacio Laurel vs. Eriberto Misa, etc., the Court, acting on the petition for habeas corpus filed by Anastacio Laurel and based on a theory that a Filipino citizen who adhered to the enemy giving thelatter aid and comfort during the Japanese occupation cannot be prosecuted for the crime of treason definedand penalized by article 114 of the Revised Penal Code, for the reason (1) that the sovereignty of thelegitimate government in the Philippines and, consequently, the correlative allegiance of Filipino citizensthereto was then suspended; and (2) that there was a change of sovereignty over these Islands upon theproclamation of the Philippine Republic:(1) Considering that a citizen or subject owes, not a qualified and temporary, but an absolute and permanentallegiance, which consists in the obligation of fidelity and obedience to his government or sovereign; and thatthis absolute and permanent allegiance should not be confused with the qualified and temporary allegiancewhich a foreigner owes to the government or sovereign of the territory wherein he resides, so long as heremains there, in return for the protection he receives, and which consists in the obedience to the laws of thegovernment or sovereign. (Carlisle vs.  Unite States, 21 Law. ed., 429; Secretary of State Webster Report tothe President of the United States in the case of Thraser, 6 Web. Works, 526);Considering that the absolute and permanent allegiance of the inhabitants of a territory occupied by theenemy of their legitimate government or sovereign is not abrogated or severed by the enemy occupation,because the sovereignty of the government or sovereign de jure is not transferred thereby to the occupier, aswe have held in the cases of Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113) and of Peralta vs.Director of Prisons (75 Phil., 285), and if it is not transferred to the occupant it must necessarily remain vestedin the legitimate government; that the sovereignty vested in the titular government (which is the supremepower which governs a body politic or society which constitute the state) must be distinguished from theexercise of the rights inherent thereto, and may be destroyed, or severed and transferred to another, but itcannot be suspended because the existence of sovereignty cannot be suspended without putting it out of existence or divesting the possessor thereof at least during the so-called period of suspension; that what maybe suspended is the exercise of the rights of sovereignty with the control and government of the territoryoccupied by the enemy passes temporarily to the occupant; that the subsistence of the sovereignty of thelegitimate government in a territory occupied by the military forces of the enemy during the war, although theformer is in fact prevented from exercising the supremacy over them is one of the rules of international lawof our times ; (II Oppenheim, 6th Lauterpacht ed., 1944, p. 482), recognized, by necessary implication, inarticles 23, 44, 45, and 52 of Hague Regulation; and that, as a corollary of the conclusion that the sovereigntyitself is not suspended and subsists during the enemy occupation, the allegiance of the inhabitants to their legitimate government or sovereign subsists, and therefore there is no such thing as suspended allegiance,the basic theory on which the whole fabric of the petitioner's contention rests;Considering that the conclusion that the sovereignty of the United State was suspended in Castine, set forthin the decision in the case of United States vs.  Rice, 4 Wheaton, 246, 253, decided in 1819, and quoted in our decision in the cases of Co Kim Cham vs. Valdez Tan Keh and Dizon and Peralta vs. Director of Prisons,supra, in connection with the question, not of sovereignty, but of the existence of a government de facto therein and its power to promulgate rules and laws in the occupied territory, must have been based, either onthe theory adopted subsequently in the Hague Convention of 1907, that the military occupation of an enemy  territory does not transfer the sovereignty to the occupant; that, in the first case, the word sovereignty usedtherein should be construed to mean the exercise of the rights of sovereignty, because as this remains vestedin the legitimate government and is not transferred to the occupier, it cannot be suspended without putting itout of existence or divesting said government thereof; and that in the second case, that is, if the saidconclusion or doctrine refers to the suspension of the sovereignty itself, it has become obsolete after theadoption of the Hague Regulations in 1907, and therefore it can not be applied to the present case;Considering that even adopting the words temporarily allegiance, repudiated by Oppenheim and other publicists, as descriptive of the relations borne by the inhabitants of the territory occupied by the enemytoward the military government established over them, such allegiance may, at most, be considered similar tothe temporary allegiance which a foreigner owes to the government or sovereign of the territory wherein heresides in return for the protection he receives as above described, and does not do away with the absoluteand permanent allegiance which the citizen residing in a foreign country owes to his own government or sovereign; that just as a citizen or subject of a government or sovereign may be prosecuted for and convictedof treason committed in a foreign country, in the same way an inhabitant of a territory occupied by the militaryforces of the enemy may commit treason against his own legitimate government or sovereign if he adheres tothe enemies of the latter by giving them aid and comfort; and that if the allegiance of a citizen or subject to hisgovernment or sovereign is nothing more than obedience to its laws in return for the protection he receives, itwould necessarily follow that a citizen who resides in a foreign country or state would, on one hand, ipso facto acquire the citizenship thereof since he has enforce public order and regulate the social and commercial life,in return for the protection he receives, and would, on the other hand, lose his srcinal citizenship, because hewould not be bound to obey most of the laws of his own government or sovereign, and would not receive,while in a foreign country, the protection he is entitled to in his own;Considering that, as a corollary of the suspension of the exercise of the rights of sovereignty by the legitimategovernment in the territory occupied by the enemy military forces, because the authority of the legitimatepower to govern has passed into the hands of the occupant (Article 43, Hague Regulations), the political lawswhich prescribe the reciprocal rights, duties and obligation of government and citizens, are suspended or inabeyance during military occupation (Co Kim cham vs.  Valdez Tan Keh and dizon, supra ), for the only reasonthat as they exclusively bear relation to the ousted legitimate government, they are inoperative or notapplicable to the government established by the occupant; that the crimes against national security, such astreason and espionage; inciting to war, correspondence with hostile country, flight to enemy's country, as wellas those against public order, such as rebellion, sedition, and disloyalty, illegal possession of firearms, whichare of political complexion because they bear relation to, and are penalized by our Revised Penal Code ascrimes against the legitimate government, are also suspended or become inapplicable as against theoccupant, because they can not be committed against the latter (Peralta vs.  Director of Prisons, supra ); andthat, while the offenses against public order to be preserved by the legitimate government were inapplicableas offenses against the invader for the reason above stated, unless adopted by him, were also inoperative asagainst the ousted government for the latter was not responsible for the preservation of the public order in theoccupied territory, yet article 114 of the said Revised Penal Code, was applicable to treason committedagainst the national security of the legitimate government, because the inhabitants of the occupied territorywere still bound by their allegiance to the latter during the enemy occupation;Considering that, although the military occupant is enjoined to respect or continue in force, unless absolutelyprevented by the circumstances, those laws that enforce public order and regulate the social and commerciallife of the country, he has, nevertheless, all the powers of de facto  government and may, at his pleasure,either change the existing laws or make new ones when the exigencies of the military service demand suchaction, that is, when it is necessary for the occupier to do so for the control of the country and the protectionof his army, subject to the restrictions or limitations imposed by the Hague Regulations, the usagesestablished by civilized nations, the laws of humanity and the requirements of public conscience (Peralta vs. Director of Prisons, supra ; 1940 United States Rules of Land Warfare 76, 77); and that, consequently, all actsof the military occupant dictated within these limitations are obligatory upon the inhabitants of the territory,who are bound to obey them, and the laws of the legitimate government which have not been adopted, aswell and those which, though continued in force, are in conflict with such laws and orders of the occupier,shall be considered as suspended or not in force and binding upon said inhabitants;Considering that, since the preservation of the allegiance or the obligation of fidelity and obedience of acitizen or subject to his government or sovereign does not demand from him a positive action, but onlypassive attitude or forbearance from adhering to the enemy by giving the latter aid and comfort, the occupanthas no power, as a corollary of the preceding consideration, to repeal or suspend the operation of the law of treason, essential for the preservation of the allegiance owed by the inhabitants to their legitimategovernment, or compel them to adhere and give aid and comfort to him; because it is evident that such actionis not demanded by the exigencies of the military service or not necessary for the control of the inhabitantsand the safety and protection of his army, and because it is tantamount to practically transfer temporarily tothe occupant their allegiance to the titular government or sovereign; and that, therefore, if an inhabitant of theoccupied territory were compelled illegally by the military occupant, through force, threat or intimidation, to  give him aid and comfort, the former may lawfully resist and die if necessary as a hero, or submit theretowithout becoming a traitor;Considering that adoption of the petitioner's theory of suspended allegiance would lead to disastrousconsequences for small and weak nations or states, and would be repugnant to the laws of humanity andrequirements of public conscience, for it would allow invaders to legally recruit or enlist the Quislinginhabitants of the occupied territory to fight against their own government without the latter incurring the riskof being prosecuted for treason, and even compel those who are not aid them in their military operationagainst the resisting enemy forces in order to completely subdue and conquer the whole nation, and thusdeprive them all of their own independence or sovereignty — such theory would sanction the action of invaders in forcing the people of a free and sovereign country to be a party in the nefarious task of deprivingthemselves of their own freedom and independence and repressing the exercise by them of their ownsovereignty; in other words, to commit a political suicide;(2) Considering that the crime of treason against the government of the Philippines defined and penalized inarticle 114 of the Penal Code, though srcinally intended to be a crime against said government as thenorganized by authority of the sovereign people of the United States, exercised through their authorizedrepresentative, the Congress and the President of the United States, was made, upon the establishment of the Commonwealth Government in 1935, a crime against the Government of the Philippines established byauthority of the people of the Philippines, in whom the sovereignty resides according to section 1, Article II, of the Constitution of the Philippines, by virtue of the provision of section 2, Article XVI thereof, which providesthat All laws of the Philippine Islands . . . shall remain operative, unless inconsistent with this Constitution . . .and all references in such laws to the Government or officials of the Philippine Islands, shall be construed, inso far as applicable, to refer to the Government and corresponding officials under this constitution;Considering that the Commonwealth of the Philippines was a sovereign government, though not absolute butsubject to certain limitations imposed in the Independence Act and incorporated as Ordinance appended toour Constitution, was recognized not only by the Legislative Department or Congress of the United States inapproving the Independence Law above quoted and the Constitution of the Philippines, which contains thedeclaration that Sovereignty resides in the people and all government authority emanates from them (section 1, Article II), but also by the Executive Department of the United States; that the late PresidentRoosevelt in one of his messages to Congress said, among others, As I stated on August 12, 1943, theUnited States in practice regards the Philippines as having now the status as a government of other independent nations — in fact all the attributes of complete and respected nationhood (CongressionalRecord, Vol. 29, part 6, page 8173); and that it is a principle upheld by the Supreme Court of the UnitedStates in many cases, among them in the case of Jones vs.  United States (137 U.S., 202; 34 Law. ed., 691,696) that the question of sovereignty is a purely political question, the determination of which by thelegislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens and subjects of the country.Considering that section I (1) of the Ordinance appended to the Constitution which provides that pending thefinal and complete withdrawal of the sovereignty of the United States All citizens of the Philippines shall oweallegiance to the United States , was one of the few limitations of the sovereignty of the Filipino peopleretained by the United States, but these limitations do not away or are not inconsistent with said sovereignty,in the same way that the people of each State of the Union preserves its own sovereignty although limited bythat of the United States conferred upon the latter by the States; that just as to reason may be committedagainst the Federal as well as against the State Government, in the same way treason may have beencommitted during the Japanese occupation against the sovereignty of the United States as well as against thesovereignty of the Philippine Commonwealth; and that the change of our form of government fromCommonwealth to Republic does not affect the prosecution of those charged with the crime of treasoncommitted during the Commonwealth, because it is an offense against the same government and the samesovereign people, for Article XVIII of our Constitution provides that The government established by thisconstitution shall be known as the Commonwealth of the Philippines. Upon the final and complete withdrawalof the sovereignty of the United States and the proclamation of Philippine independence, the Commonwealthof the Philippines shall thenceforth be known as the Republic of the Philippines ;This Court resolves, without prejudice to write later on a more extended opinion, to deny the petitioner'spetition, as it is hereby denied, for the reasons above set forth and for others to be stated in the said opinion,without prejudice to concurring opinion therein, if any. Messrs. Justices Paras and Hontiveros dissent in aseparate opinion. Mr. justice Perfecto concurs in a separate opinion. Separate OpinionsPERFECTO, J., concurring:  Treason is a war crime. It is not an all-time offense. It cannot be committed in peace time. While there is peace,there are no traitors. Treason may be incubated when peace reigns. Treasonable acts may actually be perpetratedduring peace, but there are no traitors until war has started. As treason is basically a war crime, it is punished by the state as a measure of self-defense and self-preservation.The law of treason is an emergency measure. It remains dormant until the emergency arises. But as soon as war starts, it is relentlessly put into effect. Any lukewarm attitude in its enforcement will only be consistent with national harakiri  . All war efforts would be of no avail if they should be allowed to be sabotaged by fifth columnists, by citizenswho have sold their country out to the enemy, or any other kind of traitors, and this would certainly be the case if helaw cannot be enforced under the theory of suspension.Petitioner's thesis that allegiance to our government was suspended during enemy occupation is advanced insupport of the proposition that, since allegiance is identical with obedience to law, during the enemy occupation, thelaws of the Commonwealth were suspended. Article 114 of the Revised Penal Code, the law punishing treason,under the theory, was one of the laws obedience to which was also suspended. Allegiance has been defined as the obligation for fidelity and obedience which the individual owes to his governmentor his sovereign in return for the protection which he receives. Allegiance , as the return is generally used, means fealty or fidelity to the government of which the person iseither a citizen or subject. Murray vs.  The Charming Betsy, 6 U.S. (2 Cranch), 64, 120; 2 Law. ed., 208. Allegiance was said by Mr. Justice Story to be nothing more than the tie or duty of obedience of a subject tothe sovereign, under whose protection he is. United States vs.  Wong Kim Ark, 18 S. Ct., 461; 169 U.S., 649;42 Law. ed., 890. Allegiance is that duty which is due from every citizen to the state, a political duty binding on him who enjoysthe protection of the Commonwealth, to render service and fealty to the federal government. It is that dutywhich is reciprocal to the right of protection, arising from the political relations between the government andthe citizen. Wallace vs.  Harmstad, 44 Pa. (8 Wright), 492, 501.By allegiance is meant the obligation to fidelity and obedience which the individual owes to the governmentunder which he lives, or to his sovereign, in return for the protection which he receives. It may be an absoluteand permanent obligation, or it may be a qualified and temporary one. A citizen or subject owes an absoluteand permanent allegiance to his government or sovereign, or at least until, by some open and distinct act, herenounces it and becomes a citizen or subject of another government or sovereign, and an alien whiledomiciled in a country owes it a temporary allegiance, which is continuous during his residence. Carlisle vs. United States, 83 U.S. (16 Wall.), 147, 154; 21 Law ed., 426. Allegiance, as defined by Blackstone, is the tie or ligament which binds the subject to the King, in return for that protection which the King affords the subject. Allegiance, both expressed and implied, is of two sorts, theone natural, the other local, the former being perpetual, the latter temporary. Natural allegiance is such as isdue from all men born within the King's dominions immediately upon their birth, for immediately upon their birth they are under the King's protection. Natural allegiance is perpetual, and for this reason, evidentlyfounded on the nature of government. Allegiance is a debt due from the subject upon an implied contract withthe prince that so long as the one affords protection the other will demean himself faithfully. Natural-bornsubjects have a great variety of rights which they acquire by being born within the King's liegance, which cannever be forfeited but by their own misbehaviour; but the rights of aliens are much more circumscribed, beingacquired only by residence, and lost whenever they remove. If an alien could acquire a permanent property inlands, he must owe an allegiance equally permanent to the King, which would probably be inconsistent withthat which he owes his natural liege lord; besides, that thereby the nation might, in time, be subject to foreigninfluence and feel many other inconveniences. Indians within the state are not aliens, but citizens owingallegiance to the government of a state, for they receive protection from the government and are subject to itslaws. They are born in allegiance to the government of the state. Jackson vs.  Goodell, 20 Johns., 188, 911. (3Words and Phrases, Permanent ed., 226-227.)  Allegiance . — Fealty or fidelity to the government of which the person is either a citizen or subject; the dutywhich is due from every citizen to the state; a political duty, binding on him who enjoys the protection of thecommonwealth, to render service and fealty to the federal government; the obligation of fidelity andobedience which the individual owes to the government or to the sovereign under which he lives in return for the protection he receives; that duty is reciprocal to the right of protection he receives; that duty which isreciprocal to the right of protection, arising from the political relations between the government and the citizen. Classification . — Allegiance is of four kinds, namely: (1) Natural allegiance — that which arises by nature andbirth; (2) acquired allegiance — that arising through some circumstance or act other than birth, namely, bydenization or naturalization; (3) local allegiance-- that arising from residence simply within the country, for however short a time; and (4) legal allegiance — that arising from oath, taken usually at the town or leet, for,
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