Kuroda v.

Jalandoni
G.R. No. L-2662 26 March 1949 En Banc Ponente: Moran, C. J.:
Doctrines/Nature or Keywords: Doctrine of Incorporation; Adoption of International Law
Petitioner: Respondents:
Shigenori Kuroda Major General Rafael Jalandoni, Brigadier General
Calixto Duque,
Colonel Margarito Toralba, Colonel Ireneo Buenconsejo,
Colonel
Pedro Tabuena, Major Federico Aranas, Melville S.
Hussey And
Robert Port
Recit-ready Summary:
The Petitioner, the Commanding General of the Japanese Forces in the Philippines during the Japanese Occupation
was charged before the Philippine Military Commission of war crimes particularly, his failure to discharge his duties
upon the Japanese soldiers, permitting them to commit brutal atrocities and other high crimes against civilians and
prisoners of the Imperial Japanese Forces. In his defense, he questioned the constitutionality of Executive Order No.
68 that created the National War Crimes Office and the prescribed rules governing the trial of war criminals. He
argued that the Philippines is not a signatory of The Hague Convention and signed in Geneva Convention only in
1947. Hence, to try war crimes violating the said conventions pursuant to E.O. 68 was unconstitutional as the
charged crimes is not based on any law of the land or international. Because of this, he also contended that the
Philippine Military Commission has no jurisdiction to try the petitioner. The court found no bearing on such
contentment. The promulgation of E.O.68 issued by the President was an exercise of his power as the Commander
in chief of all our armed forces (as upheld by the court in the case of Yamashita vs. Styer). Consequently, the
President as Commander in Chief is fully empowered to consummate this unfinished aspect of war, namely the trial
and punishment of war criminal. The E. O. 58 was just an instrument in order to satisfy such aspect. Furthermore,
Article II, Section 3 of the (1935) constitution states that, the generally accepted principles of international law, even
of the present day, including of the rules and regulations of Land Warfare under The Hague and Geneva
Conventions, form part of the law of the land. Therefore, E.O. 68 is valid and constitutional. The court states that it
is undeniable that the rules and regulations of The Hague and Geneva Conventions form part and are wholly based
on the generally accepted principles of international law. Thus, such rules and principles form are incorporated to
the laws of our nation even if the Philippines was not a signatory to the conventions embodying them. The
Philippines Military Commission also has jurisdiction to try the petitioner for our Constitution has been deliberately
general and extensive in its scope. It is not confined to the recognition of the rules and principles of international law
contained in treaties which our government may have been or shall be a signatory. The court herein, denied the
petition with costs de oficio.
Facts of the case:
1. Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the
Japanese Imperial Forces in The Philippines during a period covering 1943 and 1944, is charged before a military
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 command, permitting them to commit brutal atrocities and
other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces in violation of the
laws and customs of war"
2. The petitioner filed a petition before this Court seeking 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
participating in the prosecution of petitioner's case before the Military Commission and to permanently prohibit
respondents from proceeding with the case of petitioners.
3. The following are the arguments of the petitioner:
- Executive Order No. 68 is illegal on the ground that it violates not only the provision of our constitutional
law but also our local laws to say nothing of the fact (that) the Philippines is not a signatory nor an
adherent to The Hague Convention on Rules and Regulations covering Land Warfare and therefore
petitioners is charged of 'crimes' not based on law, national and international.
- In view off the fact that the conception of the Military Commission was by virtue of an unconstitutional
law, this commission is without jurisdiction to try herein petitioner.
 - The participation in the prosecution of the case against petitioner before the Commission in behalf of the
United State of America of attorneys Melville Hussey 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 appointment as prosecutors are a violation of our Constitution for the reason that they are
not qualified to practice law in the Philippines
- Attorneys Hussey and Port (American lawyers) have no personality as prosecutors, the United State not
being a party in interest in the case
Issue: Ruling:
 WON E.O. 68 is unconstitutional NO
 WON the Commission has jurisdiction to try the petitioner YES
 WON the American lawyers can participate in the prosecution YES
 WON the U.S. has a legal standing/being a party in interest in the case YES
Rationale:
1.
a) The promulgation of said executive order is an exercise by the President of his power 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). The court said:
“War is not ended simply because hostilities have ceased. After cessation of armed hostilities incident of war
may remain pending which should be disposed of as in time of war. An importance incident to a conduct of war
is the adoption of measure by the military command not only to repel and defeat the enemies but to seize and
subject to disciplinary measure those enemies who in their attempt 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 technical state of war continues. This includes the
period of an armistice or military occupation up to the effective of a treaty of peace and may extend beyond by
treaty agreement.” (Cowles Trial of War Criminals by Military Tribunals, America Bar Association Journal June,
1944.)”

b) The issuance and enforcement of E.O. No. 68 is an instrument for the President as the Commander in
chief, to consummate this unfinished aspect of war, namely the trial and punishment of war criminal.

c) Article 2, Section 3 of the 1935 Constitution:

2. In relation to the provision of Article II, Section 3 of the 1935 Constitution, such rules and regulations on Land
Warfare form part of the law of the land even if there is no statute that specifically attends or prescribes
laws, penalties, rules and regulation on such cases. It is therefore, the Commission has jurisdiction to try the
petitioner and give a verdict. In this sense, the rules and regulations stipulated in The Hague and Geneva
Conventions, through the aforementioned provision, are placed in the same category of other municipal
laws of the country such as the Civil Code or the Local Government Code (From the book of Justice Isagani
Cruz, International Law, 2003 edition p.6)

3. YES. In understanding the court’s ruling, we have to understand the nature of the tribunal that is trying the
petitioner – that is, a Military Tribunal. The court argued that as a Military Tribunal, it is governed by special
laws and not by the Rules of court which govern ordinary civil courts. Despite the fact that the American
lawyers subject in this case are not allowed to practice law in the Philippines, the military tribunal allowed
them as there is nothing said in the executive order which requires that counsel appearing before said
commission must be attorneys qualified to practice law in the Philippines in accordance with the Rules of
Court. Furthermore, the court even pointed out that in proceedings of military tribunals, it is common that
 counsel for the parties are usually military personnel who are neither attorneys nor even possessed of legal
training.

4. YES. The court argued that when the crimes charged against petitioner were allegedly committed, the
Philippines was still under the sovereignty of the United States. 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. In the case of Laurel vs. Misa (76 Phil., 372), the court said,
“. . . The change of our form government from Commonwealth to Republic does not affect the prosecution of
those charged with the crime of treason committed during then Commonwealth because it is an offense against
the same sovereign people. . . .”
Furthermore, the court argued that the appointment of the two American attorneys is not violative of our
nation sovereignty. It is only fair and proper that 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 sovereignty it has not been by our
government but by the United State Government 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.

Dissenting Opinion:
Perfecto, J.,
- According to the dissenting opinion of Justice Perfecto, the E.O. 68 is a veritable piece of Legislative measure,
without the benefit of congressional enactment. Meaning to say, the executive order posits a strong statutory
characteristic. And by the virtue of Article VI, Section 1 of the constitution, the President cannot create statutes
or exercise legislative power as expressly vested in Congress by the Constitution.
- Article VI, Section 1 states that, “The Legislative powers shall be vested in a Congress of the Philippines which
shall consist of a Senate and House of Representatives.”
- Justice Perfecto therefore claimed that Executive Order is invalied as it is essentially legislative.
- However, the respondent suggested that the President of the Philippines issued Executive Order No. 68 under
the emergency power granted to him by Commonwealth Act No. 600, as amended by Commonwealth Act No.
620, and Commonwealth Act No. 671.
- Justice Perfecto contended that such as cannot be invoked as E.O. 68 was issued (July 29, 1947) after the
liberation of the Philippines from the Japanese forces or the surrender of Japan was signed in Tokyo on
September 2, 1945. 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 provision of the
Constitution, and the contention that the emergency Acts continued in effect even after the surrender of Japan
cannot be valid.
- He also claimed that E.O. 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 evidence by which no innocent person can afford to get acquittal and by which it is
impossible to determine whether an accused is guilty or not beyond all reasonable doubt.