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Co Kim Chan v. Valdez Tan Keh

Summary Cases:

Co Kim Chan vs. Valdez Tan Keh 75 Phil 113●

Subject: De Facto Government; Postliminy in International Law; Belligerent Occupation

Facts:

This involves a petition for mandamus praying that the respondent judge of the lower court be orderedto continue the proceedings in a civil case before said court. The proceedings were initiated under theregime of the government (called Republic of the Philippines) established during the Japanese militaryoccupation.

The respondent judge refused to take cognizance of and continue the proceedings in the said case onthe ground that the proclamation issued by General Douglas MacArthur, upon American re-occupation,had the effect of invalidating all judicial proceedings and judgements of the court of the Philippinesunder the Japanese military occupation, and that, the lower courts have no jurisdiction to takecognizance of and continue judicial proceedings pending in the courts of the defunct Republic of thePhilippines in the absence of an enabling law granting such authority.

The respondent judge likewise contends that the government established in the Philippines during theJapanese occupation were not de facto governments.

Held:

De Facto Government

All acts and proceedings of the legislative, executive, and judicial departments of a de factogovernment are good and valid.There are three kinds of de facto governments.(a) Government defacto in the proper legal sense-- that government that gets possession and control of, or usurps, byforce or by the voice of the majority, the rightful legal governments and maintains itself against the willof the latter.

(b) Government of paramount force-- that which is established and maintained by military forces whoinvade and occupy a territory of the enemy in the course of war.

(c) That established as an independent government by the inhabitants of a country who rise ininsurrection against the parent state

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The Philippine Executive Commission and the Republic of the Philippines, both governmentsestablished during the Japanese military occupation, are de facto governments of the second kind.The fact that they were a civil and not a military government and was run by Filipinos and not byJapanese nationals, is of no consequence. The ultimate source of its authority was the same ? theJapanese military authority and government.

Being de facto governments, it necessarily follows that the judicial acts and proceedings of the courtsof justice of those governments, which are not of a political complexion, were good and valid, and, byvirtue of the well-known principle of postliminy (postliminium) in international law, remained good andvalid after the liberation or reoccupation of the Philippines under the leadership of General DouglasMacArthur.

Courts are creatures of statutes and such laws, not being a political nature, are not abrogated by achange of sovereignty, and continue in force "ex proprio vigore" unless and until repealed bylegislative acts. A proclamation that said laws and courts are expressly continued is not necessary.Principle of Postliminy

According to that principle in international law, the fact that a territory which has been occupied by anenemy comes again into the power of its legitimate government of sovereignty, does not, except in avery few cases, wipe out the effects of acts done by an invader, which for one reason or another it iswithin his competence to do. Thus judicial acts done under his control, when they are not of a politicalcomplexion, administrative acts so done, to the extent that they take effect during the continuance ofhis control, and the various acts done during the same time by private persons under the sanction ofmunicipal law, remain good.

Effects of a belligerent occupation

According to the precepts of the Hague Conventions, the belligerent occupant:(i) possesses all thepowers of a de facto government;

(ii) can suspend the old laws and promulgate new ones and make such changes in the old as he maysee fit;

(iii) the municipal laws in force in the country must be respected, unless absolutely prevented by thecircumstances prevailing in the occupied territory.

(i.e. affect private rights of person and property and provide for the punishment of crime);

(iv) laws of a political nature or affecting political relations are considered as suspended during themilitary occupation

(i.e. right of assembly, the right to bear arms, the freedom of the press, and the right to travel freely inthe territory occupied);

(v) local ordinary tribunals are authorized to continue administering justice; judges and other judicialofficers are kept in their posts if they accept the authority of the belligerent occupant or are required tocontinue in their positions under the supervision of the military or civil authorities appointed.

(vi) There is no transfer of sovereignty during a belligerent occupation. The occupation, beingessentially provisional, does not serve to transfer sovereignty over the territory controlled. The de juregovernment, during the period of occupancy, is deprived of the power to exercise its rights as such.

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(Note: There is no suspension of sovereignty during a belligerent occupation, but merely thesuspension of the exercise of sovereignty by the de jure government)