Co Kim Cham v. Eusebio Valdez Tan Keh

TOPICS: Belligerent occupation; kinds of a de facto government; characteristics of a de facto government of paramount force; powers and duties of a de facto government or a belligerent occupant

FACTS: 

Respondent judge was ordered to continue the proceedings in a civil case initiated under the regime of the so-called Republic of the Philippines established under the Japanese Military Occupation.

However, the Respondent refused to take cognizance of the case on the ground that Gen. McArthur issued a proclamation invalidating and nullifying all “processes” under the Philippine Executive Commission and the Republic of the Philippines established during the Japanese Military Occupation.

ISSUES: 

I. WON the judicial acts and proceedings of the court existing in the Philippines under the Philippine Executive Commission and the Republic of the Philippines were good and valid.

II. WON the word “processes” in the proclamation of Gen. McArthur includes the nullification of the “judicial processes” during the Japanese Military Occupation.

III. WON the courts of the Commonwealth may continue with those proceedings pending at the time the Philippines was reoccupied  and liberated by the US and Filipino forces.  

RULING:

I.

Yes, judicial acts and proceedings of the court existing in the Philippines under the Japanese Military Occupation were good and valid.

The Philippine Executive Commission and Republic of the Philippines during the Japanese military occupation or regime were de facto governments. As de facto governments, the judicial acts and proceedings of courts of those governments remain good and valid even after the liberation or reoccupation of the Philippines by the American and Filipino forces (under the principle of postliminy in the International Law)

In line with the duties and functions of a de facto government under the Hague Convention of 1907, the belligerent occupant is enjoined to respect the municipal laws enforced in the country. The same was intended by the Commander in Chief of the Military Forces when he proclaimed that all public officials shall remain in their present posts and carry on faithfully their duties as before. 

II

No, the word "processes," as used in the proclamation of General Douglas MacArthur of October 23, 1944, cannot be interpreted to invalidate judicial processes or all judgments and proceedings of the courts during the Japanese regime; that term should be construed to mean legislative and constitutional processes. 

Where great inconvenience will result from a particular construction, or great public interests would be endangered or sacrificed, or great mischief done, such construction is to be avoided, or the court ought to presume that such construction was not intended by the makers of the law.

"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 associated.

III.

Yes, the courts of the Commonwealth may continue with those proceedings pending at the time the Philippines was reoccupied  and liberated by the US and Filipino forces.

By virtue of the principle of postliminy, the same courts, which had become reestablished and conceived of as having in continued existence may continue the proceedings in cases then pending in said courts, without necessity of enacting a law conferring jurisdiction upon them to continue said proceedings.

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DISCUSSION:

A belligerent or military occupation is essentially provisional and does not serve to transfer the sovereignty over the occupied territory to the occupant. A 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. A 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.

There are several kinds of de facto governments:

1) Government de facto in a proper legal sense, is that government that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal governments and maintains itself against the will of the latter, such as the government of England under the Commonwealth, first by Parliament and later by Cromwell as Protector.

2) That established and maintained by military forces who invade and occupy a territory of the enemy in the course of war, and which is denominated a government of paramount force, as the cases of Castine, in Maine, which was reduced to British possession in the war of 1812, and Tampico, Mexico, occupied during the war with Mexico, by the troops of the United States.

3) That established as an independent government by the inhabitants of a country who rise in insurrection against the parent state of such as the government of the Southern Confederacy in revolt against the Union during the war of secession in the US.

The Second Republic of the Philippines was that of a de facto government of paramount force. Its distinguishing characteristics are:

(1) that its existence is maintained by active military power with the territories, and against the rightful authority of an established and lawful government; and 

(2) that while it exists it necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, or wrongdoers, for those acts, though not warranted by the laws of the rightful government.

The powers and duties of a de facto government is provided under the Hague Conventions of 1907 which states that the authority of the legislative power having actually passed into the hands of the occupant, the latter shall take steps in his power to reestablish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

A belligerent occupant has the right and is burdened with the duty to insure public order and safety during his military occupation, he possesses all the powers of a de facto government, and he can suspended the old laws and promulgate new ones and make such changes in the old as he may see fit, but he is enjoined to respect, unless absolutely prevented by the circumstances prevailing in the occupied territory, the municipal laws in force in the country, that is, those laws which enforce public order and regulate social and commercial life of the country.

The municipal laws of the conquered territory, such as affect private rights of person and property and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent.

The Philippine Executive Commission which was organized by Order No. 1 of the Commander in Chief of the Japanese forces was a government imposed by laws of war. The Republic of the Philippines has also the same character as the Philippine Executive Commission.