Documents

Digest Cons Tipu No Co Kim Cham

Description
Description:
Categories
Published
of 5
All materials on our website are shared by users. If you have any questions about copyright issues, please report us to resolve them. We are always happy to assist you.
Share
Transcript
  In Re: Letter Of Associate Justice Reynato S. Puno Facts:  - The petitioner, Reynato S. Puno, was first appointed as Associate Justice of the Court of Appeals on 1980. - On 1983, the Court of Appeals was reorganized and became the Intermediate Appellate Court pursuant to BP Blg. 129. - On 1984, petitioner was appointed to be Deputy Minister of Justice in the Ministry of Justice. Thus, he ceased to be a member of the Judiciary. - After February 1986 EDSA Revolution, there was a reorganization of the entire government, including the Judiciary. - A Screening Committee for the reorganization of the Intermediate Appelate Court and lower courts recommended the return of petitioner as Associate Justice of the new court of Appeals and assigned him the rank of number 11 in the roster of appellate court justices. - When the appointments were signed by Pres. Aquino, petitioner's seniority ranking changes from number 11 to 26. - Then, petitioner alleged that the change in seniority ranking was due to inadvertence of the President, otherwise, it would run counter to the provisions of Section 2 of E.O. No. 33. - Petitioner Justice Reynato S. Puno wrote a letter to the Court seeking the correction of his seniority ranking in the Court of Appeals. - The Court en banc granted Justice Puno's request. - A motion for reconsideration was later filed by Associate Justices Campos Jr. and Javellana who are affected by the ordered correction. - They alleged that petitioner could not claim reappointment because the courts where he had previously been appointed ceased to exist at the date of his last appointment. Issue: WON the present Court of Appeals is merely a continuation of the old Court of Appeals and Intermediate Appellate Court existing before the promulgation of E.O. No. 33. Held:  The Court held that the Court of Appeals and Intermediate Appellate Court existing prior to E.O. No. 33 phased out as part of the legal system abolished by the 1987 Revolution. The Court of Appeals that was established under E.O. No. 33 is considered as an entirely new court. The present Court of Appeals is a new entity, different and distinct from the courts existing before E.O. No. 33. It was created in the wake of the massive reorganization launched by the revolutionary government of Corazon Aquino in the aftermath of the people power in 1986. Revolution is defined as the complete overthrow of the established government in any country or state by those who were previously subject to it. or as sudden. radical and fundamental change in the government or political system, usually effected with violence or at least some acts of violence. CO KIM CHAM (alias CO KIM CHAM) v. EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of Manila,   Facts: This is a petition for mandamus praying for the respondent judge to continue the proceedings in a civil case which was initiated under the regime of the so called Republic of the Philippines establishd uring the Japanese military occupation in the country. The respondent judge refused to takec ognizance of the proceedings on the ground that the proclamation issued by Gen. Douglas MacArthur when the American forces took over the occupation of the island from the Japanese government, hadthe effect of invalidating and nullifying all the judicial proceedings and judgments of the court under the Philippine executive Committee and the Republic of the Philippines established during the Japanese military occupation. Respondent further claim that lower courts have no more jurisdiction to take cognizance and continue the case in courts under a defunct government in the absence of enabling law granting authority of such courts. Respondent contends that the government established during the Japanese occupation were no de facto government. The principal issues  to be resolved now for the court are the following: 1.   Whether judicial acts and proceedings of the courts existing in the Philippines under the first government were good and valid and remained so even after the liberation oroccupation by the United States , 2.   Whether the proclamation by Gen. MacArthur declaring that all laws, regulations andprocesses of any of the government in the Philippines are null and void and without legaleffect in areas of the Philippines free of enemy occupation and control, has invalidated alljudgments and judicial acts and proceedings of the said court 3.   If the said judicial acts and proceedings were not been invalidated, will the present courtsunder Japanese occupation continue those proceedings pending in court The court in resolving the issue one by one shed light to the given questions. In the first issue, the court said that under international and political law, it is a legal truism that all acts and proceedings of the legislative, executive  and judicial departments of a de facto government are good and valid. Another question now then needs an answer that is whether or not the government under the Japanese occupation was a de facto government. And if they were, then all those judicial proceedings remain good and valid even if there is a change of government. Several kinds of de facto government were elucidated by the court to find out what is applicable to the present case at bar. A Government de facto in a proper legal sense 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 Government de facto established and maintained by military forces this is by way of invasion and occupation of a territory of the enemy in the course of war and which is denominated a government of paramount force. A Government de facto established as an independent government by inhabitants of a country who rise in insurrection against the parent state The powers and duties of de facto government of the second kind are regulated in Section III of the Hague conventions of 1907, which provides the authority of the legislative power having actually passed into the hands of the occupant, the latter shall take steps in his power to re-establish and insure as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. According to the precepts of the Hague Conventions, as the belligerent occupant has the right and is burdened with the duty to insure public order and safety during his military occupation, he possess all the powers of a de facto government and he can suspend the old laws and promulgate new ones and make such changes in the old as he may see fit, but is enjoined to respect municipal laws in force in the country, those laws which enforce public order, and regulate social and commercial life in the country. Laws of political in nature and affecting political relations such as the right of assembly, right to bear arms, right to travel freely are considered as suspended and in abeyance during military occupation. Although the local and civil administration of justice is suspended it is not unusual for the invader to take the whole administration into his hands. Local courts are authorized to continue administering justice, and judges and other judicial officers are kept in their posts. The municipal laws of a conquered territory or the laws which regulate private rights continue in force during military occupation except so far as they are suspended or changed by the acts of conqueror, he nevertheless has all the powers of a de facto government and can at his pleasure either the existing laws or make new ones. The Philippines during the Japanese occupation falls under the second kind of de facto government a civil government established by military forces of occupation. According to Halleck who wrote a book on international law, the government established over an enemy’s territory during the military occupation may exercise all the powers given by the laws of war to the conqueror over theconquered and is subject to all restrictions which the code imposes. The governments by the Philippine Executive commission and the Republic of the Philippines under the Japanese military occupation being a de facto government, it necessarily follows that the judicial acts and proceedings of the courts of justice of those government which are not political complexion were good and valid and by virtue of the well-known principle of postliminy (postliminium)in international law, remained good and valid after the liberation or reoccupation of the Philippines by American and Filipino forces. According to that principle in international law, the fact that a territory which has been occupied by an enemy comes again into the power of its legitimate government of sovereignty, does not wipe out the effects done by an invader, which for one reason or another it is within his competence to do. In the book of Isagani Cruz, the right of postliminy says Vatel is that in which persons or things taken by the enemy are restored to the former state on coming actually into the power of the nation to which they belong. In the present concept jus postliminium now also imports the reinstatement of the authority of the displaced government once control of the enemy is lost over the territory affected. In short non-political acts performed during the occupation (civil rights) remain valid even after the occupation but acts of political automatically lose  their validity upon the end of the occupation. In Nachuras book, postliminium is explained as the revival or reversion to the old laws and sovereignty of territory in the belligerent occupation once control of the belligerent occupant is lost over the territory affected. Side discussion:- On the phrase processes of any other government which is the second issue of the case, still the well-known principles of international law is upheld that is all judgments and judicial proceedings, which are not of political complexion, of the de facto government during the Japanese military occupation were good and valid before and remained so after the occupied territory had come again into the power of the titular sovereign- Legal maxim, excepting that of a political nature, Law once established continues until changed by the some competent legislative power. It is not change merely by change of sovereignty. There can no break or interregnum in law. From the time the law comes into existence with the first-felt corporateness of a primitive people it must last until the final disappearance of human society. Once created, it persists until a change take place and when changed it continues in such condition until the next change and so forever. Conquest or colonization is impotent to bring law to an end; in spite of change of constitution, the law continues unchanged until the new sovereign by legislative acts creates a change. (Joseph H. Beale, author cases on conflict of laws and treatise on conflict of laws.- Respondent judge is ordered therefore to take cognizance of and continue to the final judgment of the proceedings. Co Kim Chan v Valdez Tan Keh Facts of the case: Co Kim Chan had a pending civil case, initiated during the Japanese occupation, with the Court of First Instance of Manila. After the Liberation of the Manila and the American occupation, Judge Arsenio Dizon refused to continue hearings on the case, saying that a proclamation issued by General Douglas MacArthur had invalidated and nullified all judicial proceedings and judgments of the courts of the Philippines and, without an enabling law, lower courts have no jurisdiction to take cognizance of and continue judicial proceedings pending in the courts of the defunct Republic of the Philippines (the Philippine government under the Japanese). The court resolved three issues:   1.  Whether or not judicial proceedings and decisions made during the Japanese occupation were valid and remained valid even after the American occupation; 2.   Whether or not the October 23, 1944 proclamation MacArthur issued in which he declared that “all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control” invalidated all  judgments and judicial acts and proceedings of the courts; 3.  And whether or not if they were not invalidate d by MacArthur’s proclamation, those courts could continue hearing the cases pending before them. Ratio:  Political and international law recognizes that all acts and proceedings of a de facto government are good and valid. The Philippine Executive Commission and the Republic of the Philippines under the Japanese occupation may be considered de facto governments, supported by the military force and deriving their authority from the laws of war. Municipal laws and private laws, however, usually remain in force unless suspended or changed by the conqueror. Civil obedience is expected even during war, for “the existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government or the regular administration of the laws. And if they were not valid, then it would not have been necessary for MacArthur to come out with a proclamation abrogating them.

Ol Cajun

Sep 22, 2019
We Need Your Support
Thank you for visiting our website and your interest in our free products and services. We are nonprofit website to share and download documents. To the running of this website, we need your help to support us.

Thanks to everyone for your continued support.

No, Thanks
SAVE OUR EARTH

We need your sign to support Project to invent "SMART AND CONTROLLABLE REFLECTIVE BALLOONS" to cover the Sun and Save Our Earth.

More details...

Sign Now!

We are very appreciated for your Prompt Action!

x