Republic of the PhilippinesSUPREME COURTManilaEN BANCG.R. No. L-2662 March 26, 1949SHIGENORI KURODA,petitioner,vs.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,respondents.Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey for respondents.MORAN,C.J.: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 19433 and 19444 who is now 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" comes 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.In support of his case petitioner tenders the following principal arguments.First. "That 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." Hence petitioner argues "That in view off the fact that this commission has been empanelled by virtue of an unconstitutional law an illegal order this commission is without jurisdiction to try herein petitioner."Second. That 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 prosecutor are a violation of our Constitution for the reason that they are not qualified to practice law in the Philippines.Third. That Attorneys Hussey and Port have no personality as prosecution the United State not being a party in interest in the case.Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation governing the trial of accused war criminals, was issued by the President of the Philippines on the 29th days of July, 1947 This Court holds that this order is valid and constitutional. Article 2 of our Constitution provides in its section 3, that The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of international law as part of the of the nation.In accordance with the generally accepted principle of international law of the present day including the Hague Convention the Geneva Convention and significant precedents of international jurisprudence established by the United Nation all those person military or civilian who have been guilty of planning preparing or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto in violation of the laws and customs of war, of humanity and civilization are held accountable therefor. Consequently in the promulgation and enforcement of Execution Order No. 68 the President of the Philippines has acted in conformity with the generally accepted and policies of international law which are part of the our Constitution.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 Yamashitavs.Styer (L-129, 42 Off. Gaz., 664)1when we 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 parteQuirin 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. (CowlesTrial of WarCriminals by Military Tribunals, America Bar Association Journal June, 1944.)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 through the issuance and enforcement of Executive Order No. 68.Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts committed in violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and regulation of the Hague and Geneva conventions form, part of and are wholly based on the generally accepted principals of international law. In facts these rules and principles were accepted by the two belligerent nation the United State and Japan who were signatories to the two Convention, Such rule and principles therefore form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rule and principle of international law as continued inn treaties to which our government may have been or shall be a signatory.Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was under the sovereignty of United States and thus we were equally bound together with the United States and with Japan to the right and obligation contained in the treaties between the belligerent countries. These rights and obligation were not erased by our assumption of full sovereignty. If at all our emergency as a free state entitles us to enforce the right on our own of trying and punishing those who committed crimes against crimes against our people. In this connection it is well to remember what we have said in the case ofLaurel vs. Misa(76 Phil., 372):. . . 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. . . .By the same token war crimes committed against our people and our government while we were a Commonwealth are triable and punishable by our present Republic.Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert Port in the prosecution of his case on the ground that said attorney's are not qualified to practice law in Philippines in accordance with our Rules of court and the appointment of said attorneys as prosecutors is violative of our national sovereignty.In the first place respondent Military Commission is a special military tribunal governed by a special law and not by the Rules of court which govern ordinary civil court. It has already been shown that Executive Order No. 68 which provides for the organization of such military commission is a valid and constitutional law. There is nothing in said 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. In facts it is common in military tribunals that counsel for the parties are usually military personnel who are neither attorneys nor even possessed of legal training.Secondly 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.Alleging that the United State is not a party in interest in the case petitioner challenges the personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that the United State and its people have been equally if not more greatly aggrieved by the crimes with which petitioner stands charged before the Military Commission. It can be considered a privilege for our Republic that a leader nation should submit the vindication of the honor of its citizens and its government to a military tribunal of our country.The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes charged which fall under the provisions of Executive Order No. 68, and having said petitioner in its custody, this Court will not interfere with the due process of such Military commission.For all the foregoing the petition is denied with costsde oficio.Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ.,concur.

Separate OpinionsPERFECTO,J.,dissenting:A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda for Violation of the laws and customs of land warfare.Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court to practice law were appointed prosecutor representing the American CIC in the trial of the case.The commission was empanelled under the authority of Executive Order No. 68 of the President of the Philippines the validity of which is challenged by petitioner on constitutional grounds. Petitioner has also challenged the personality of Attorneys Hussey and Port to appear as prosecutors before the commission.The charges against petitioner has been filed since June 26, 1948 in the name of the people of the Philippines as accusers.We will consideration briefly the challenge against the appearance of Attorneys Hussey and Port. It appearing that they are aliens and have not been authorized by the Supreme Court to practice law there could not be any question that said person cannot appear as prosecutors in petitioner case as with such appearance they would be practicing law against the law.Said violation vanishes however into insignificance at the side of the momentous question involved in the challenge against the validity of Executive Order No. 68. Said order is challenged on several constitutional ground. To get a clear idea of the question raised it is necessary to read the whole context of said order which is reproduced as follows:EXECUTIVE ORDER NO. 68.ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES AND REGULATION GOVERNING THE TRIAL OF ACCUSED WAR CRIMINAL.I, Manuel Roxas president of the Philippines by virtue of the power vested in me by the Constitution and laws of the Philippines do hereby establish a National War Crimes Office charged with the responsibility of accomplishing the speedy trial of all Japanese accused of war crimes committed in the Philippines and prescribe the rules and regulation such trial.The National War crimes office is established within the office of the Judge Advocate General of the Army of the Philippines and shall function under the direction supervision and control of the Judge Advocate General. It shall proceed to collect from all available sources evidence of war crimes committed in the Philippines from the commencement of hostilities by Japan in December 1941, maintain a record thereof and bring about the prompt trial maintain a record thereof and bring about the prompt trial of the accused.The National War Crimes Office shall maintain direct liaison with the Legal Section General Headquarters, Supreme Commander for the Allied power and shall exchange with the said Office information and evidence of war crimes.The following rules and regulation shall govern the trial off person accused as war criminals:ESTABLISHMENT OF MILITARY COMMISSIONS(a)General. person accused as war criminal shall be tried by military commission to be convened by or under the authority of the Philippines.II. JURISDICTION(a)Over Person. Thee military commission appointed hereunder shall have jurisdiction over all persons charged with war crimes who are in the custody of the convening authority at the time of the trial.(b)Over Offenses. The military commission established hereunder shall have jurisdiction over all offenses including but not limited to the following:(1) The planning preparation initiation or waging of a war of aggression or a war in violation of international treaties agreement or assurance or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.(2) Violation of the laws or customs of war. Such violation shall include but not be limited to murder ill-treatment or deportation to slave labor or for other purpose of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or internees or person on the seas or elsewhere; improper treatment of hostage; plunder of public or private property wanton destruction of cities towns or village; or devastation not justified by military necessity.(3) Murder extermination enslavement deportation and other inhuman acts committed against civilian population before or during the war or persecution on political racial or religion ground in executive of or in connection with any crime defined herein whether or not in violation of the local laws.III. MEMBERSHIP OF COMMISSIONS(a)Appointment. The members of each military commission shall be appointed by the President of the Philippines or under authority delegated by him. Alternates may be appointed by the convening authority. Such shall attend all session of the commission, and in case of illness or other incapacity of any principal member, an alternate shall take the place of that member. Any vacancy among the members or alternates, occurring after a trial has begun, may be filled by the convening authority but the substance of all proceeding had evidence taken in that case shall be made known to the said new member or alternate. This facts shall be announced by the president of the commission in open court.(b)Number of Members. Each commission shall consist of not less than three (3) members.(c)Qualifications. The convening authority shall appoint to the commission persons whom he determines to be competent to perform the duties involved and not disqualified by personal interest or prejudice, provided that no person shall be appointed to hear a case in which he personally investigated or wherein his presence as a witness is required. One specially qualified member whose ruling is final in so far as concerns the commission on an objection to the admissibility of evidence offered during the trial.(d)Voting. Except as to the admissibility of evidence all rulings and finding of the Commission shall be by majority vote except that conviction and sentence shall be by the affirmative vote of not less than conviction and sentence shall be by the affirmative vote of not less than two-thirds (2\3) of the member present.(e)Presiding Member. In the event that the convening authority does not name one of the member as the presiding member, the senior officer among the member of the Commission present shall preside.IV. PROSECUTORS(a)Appointment. The convening authority shall designate one or more person to conduct the prosecution before each commission.(b)Duties. The duties of the prosecutor are:(1) To prepare and present charges and specifications for reference to a commission.(2) To prepare cases for trial and to conduct the prosecution before the commission of all cases referred for trial.V. POWER AND PROCEDURE OF COMMISSION(a)Conduct of the Trial. A Commission shall:(1) Confine each trial strictly to fair and expeditious hearing on the issues raised by the charges, excluding irrelevant issues or evidence and preventing any unnecessary delay or interference.(2) Deal summarily with any contumacy or contempt, imposing any appropriate punishment therefor.(3) Hold public session when otherwise decided by the commission.(4) Hold each session at such time and place as it shall determine, or as may be directed by the convening authority.(b)Rights of the Accused. The accused shall be entitled:(1) To have in advance of the trial a copy of the charges and specifications clearly worded so as to apprise the accused of each offense charged.(2) To be represented, prior to and during trial, by counsel appointed by the convening authority or counsel of his own choice, or to conduct his own defense.(3) To testify in his own behalf and have his counsel present relevant evidence at the trial in support of his defense, and cross-examine each adverse witness who personally appears before the commission.(4) To have the substance of the charges and specifications, the proceedings and any documentary evidence translated, when he is unable otherwise to understand them.(c)Witnesses. The Commission shall have power:(1) To summon witnesses and require their attendance and testimony; to administer oaths or affirmations to witnesses and other persons and to question witnesses.(2) To require the production of documents and other evidentiary material.(3) To delegate the Prosecutors appointed by the convening authority the powers and duties set forth in (1) and (2) above.(4) To have evidence taken by a special commissioner appointed by the commission.(d)Evidence.(1) The commission shall admit such evidence as in its opinion shall be of assistance in proving or disproving the charge, or such as in the commission's opinion would have probative value in the mind of a reasonable man. The commission shall apply the rules of evidence and pleading set forth herein with the greatest liberality to achieve expeditious procedure. In particular, and without limiting in any way the scope of the foregoing general rules, the following evidence may be admitted:(a) Any document, irrespective of its classification, which appears to the commission to have been signed or issued by any officer, department, agency or member of the armed forces of any Government without proof of the signature or of the issuance of the document.(b) Any report which appears to the commission to have been signed or issued by the International Red Cross or a member of any medical service personnel, or by any investigator or intelligence officer, or by any other person whom commission considers as possessing knowledge of the matters contained in the report.(c) Affidavits, depositions or other signed statements.(d) Any diary, letter to other document, including sworn statements, appearing to the commission to contain information relating to the charge.(e) A copy of any document or other secondary evidence of the contents, if the original is not immediately available.(2) The commission shall take judicial notice of facts of common knowledge, official government documents of any nation, and the proceedings, records and findings of military or other agencies of any of the United Nation.(3) A commission may require the prosecution and the defense to make a preliminary offer of proof whereupon the commission may rule in advance on the admissibility of such evidence.(4) The official position of the accused shall not absolve him from responsibility nor be considered in mitigation of punishment. Further action pursuant to an order of the accused's superior, or of his Government, shall not constitute a defense, but may be considered in mitigation of punishment if the commission determines that justice so requires.(5) All purposed confessions or statements of the accused shall bee admissible in evidence without any showing that they were voluntarily made. If it is shown that such confession or statement was procured by mean which the commission believe to have been of such a character that may have caused the accused to make a false statement the commission may strike out or disregard any such portion thereof as was so procured.(e)Trial Procedure. The proceedings of each trial shall be conducted substantially as follows unless modified by the commission to suit the particular circumstances:(1) Each charge and specification shall be read or its substance stated in open court.(2) The presiding member shall ask each accused whether he pleads "Guilty" or "Not guilty."(3) The prosecution shall make its opening statement."(4) The presiding member may at this or any other time require the prosecutor to state what evidence he proposes to submit to the commission and the commission thereupon may rule upon the admissibility of such evidence.(4) The witnesses and other evidence for the prosecution shall be heard or presented. At the close of the case for the prosecution, the commission may, on motion of the defense for a finding of not guilty, consider and rule whether he evidence before the commission may defer action on any such motion and permit or require the prosecution to reopen its case and produce any further available evidence.(5) The defense may make an opening statement prior to presenting its case. The presiding member may, at this any other time require the defense to state what evidence it proposes to submit to the commission where upon the commission may rule upon the admissibility of such evidence.(6) The witnesses and other evidence for the defense shall be heard or presented. Thereafter, the prosecution and defense may introduce such evidence in rebuttal as the commission may rule as being admissible.(7) The defense and thereafter the prosecution shall address the commission.(8) The commission thereafter shall consider the case in closed session and unless otherwise directed by the convening authority, announce in open court its judgment and sentence if any. The commission may state the reason on which judgment is based.(f)Record of Proceedings. Each commission shall make a separate record of its proceeding in the trial of each case brought before it. The record shall be prepared by the prosecutor under the direction of the commission and submitted to the defense counsel. The commission shall be responsible for its accuracy. Such record, certified by the presiding member of the commission or his successor, shall be delivered to the convening authority as soon as possible after the trial.(g)Sentence. The commission may sentence an accused, upon conviction to death by hanging or shooting, imprisonment for life or for any less term, fine or such other punishment as the commission shall determine to be proper.(h)Approval of Sentence. No. sentence of a military commission shall be carried into effect until approved by the chief off Staff: Provided, That no sentence of death or life imprisonment shall be carried into execution until confirmed by the President of the Philippines. For the purpose of his review the Chief of Staff shall create a Board of Review to be composed of not more than three officers none of whom shall be on duty with or assigned to the Judge Advocate General's Office. The Chief of Staff shall have authority to approve, mitigate remit in whole or in part, commute, suspend, reduce or otherwise alter the sentence imposed, or (without prejudice to the accused) remand the case for rehearing before a new military commission; but he shall not have authority to increase the severity of the sentence. Except as herein otherwise provided the judgment and sentence of a commission shall final and not subject to review by any other tribunal.VI. RULE-MAKING POWERSupplementary Rule and Forms. Each commission shall adopt rules and forms to govern its procedure, not inconsistent with the provision of this Order, or such rules and forms as may be prescribed by the convening authority]or by the President of the Philippines.VII. The amount of amount of seven hundred thousand pesos is hereby set aside out of the appropriations for the Army of the Philippines for use by the National War Crimes Office in the accomplishment of its mission as hereinabove set forth, and shall be expended in accordance with the recommendation of the Judge Advocate General as approved by the President. The buildings, fixtures, installations, messing, and billeting equipment and other property herefore used by then Legal Section, Manila Branch, of the General Headquarters, Supreme Commander for the Allied Power, which will be turned over by the United States Army to the Philippines Government through the Foreign Liquidation Commission and the Surplus Property Commission are hereby specification reserved for use off the National War Crimes Office.Executive Order No. 64, dated August 16, 1945, is hereby repealed.Done in the City of Manila, this 29th day of July in the year of Our Lord, nineteen hundred and forty-seven, and of the Independence of the Philippines, the second.MANUEL ROXASPresident of the Philippines

By the President:EMILIO ABELLOChief of the Executive OfficeEXECUTIVE LEGISLATIONExecutive Order No. 68 is a veritable piece of Legislative measure, without the benefit of congressional enactment.The first question that is trust at our face spearheading a group of other no less important question, is whether or not the President of the Philippines may exercise the legislative power expressly vested in Congress by the Constitution. .The Constitution provides:The Legislative powers shall be vested in a Congress of the Philippines which shall consist of a Senate and House of Representatives. (Section 1, Article VI.)While there is no express provision in the fundamental law prohibiting the exercise of legislative power by agencies other than Congress, a reading of the whole context of the Constitution would dispel any doubt as to the constitutional intent that the legislative power is to be exercised exclusively by Congress, subject only to the veto power of the President of the President of the Philippines, to the specific provision which allow the president of the Philippines to suspend the privileges of the writ of habeas corpus and to place any part of the Philippines under martial law, and to the rule-making power expressly vested by the Constitution in the Supreme Court.There cannot be any question that the member of the Constitutional Convention were believers in the tripartite system of government as originally enunciated by Aristotle, further elaborated by Montequieu and accepted and practiced by modern democracies, especially the United State of America, whose Constitution, after which ours has been patterned, has allocated the three power of government legislative, executive, judicial to distinct and separate department of government.Because the power vested by our Constitution to the several department of the government are in the nature of grants, not recognition of pre-existing power, no department of government may exercise any power or authority not expressly granted by the Constitution or by law by virtue express authority of the Constitution.Executive Order No. 68 establishes a National War Crimes Office and the power to establish government office is essentially legislative.The order provides that person accused as war criminals shall be tried by military commissions. Whether such a provision is substantive or adjective, it is clearly legislative in nature. It confers upon military commissions jurisdiction to try all persons charge with war crimes. The power to define and allocate jurisdiction for the prosecution of person accused of any crime is exclusively vested by the Constitution in Congress. .It provides rules of procedure for the conduct of trial of trial. This provision on procedural subject constitutes a usurpation of the rule-making power vested by Constitution in the Supreme Court.It authorized military commission to adopt additional rule of procedure. If the President of the Philippines cannot exercise the rule -making power vested by the Constitution in the Supreme Court, he cannot, with more reason, delegate that power to military commission.It appropriates the sum of P7000,000 for the expenses of the National War Crimes office established by the said Executive Order No. 68. This constitutes another usurpation of legislative power as the power to vote appropriations belongs to Congress.Executive Order No. 68., is, therefore, null and void, because, though it the President of the Philippines usurped power expressly vested by the Constitution in Congress and in the Supreme Court.Challenged to show the constitutional or legal authority under which the President issued Executive Order No. 68, respondent could not give any definite answer. They attempted, however, to suggest 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, both of which are transcribed below:

COMMONWEALTH ACT NO. 600.AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULES AND REGULATION TO SAFEGUARD THE INTEGRITY OF THE PHILIPPINES AND TO INSURE THE TRANQUILITY OF ITS INHABITANTS.Be it enacted by the National Assembly of the Philippines:SECTION 1. The existence of war in many parts of the world has created a national emergency which makes it necessary to invest the President of the Philippines with extraordinary power in order to safeguard the integrity of the Philippines and to insure the tranquility of its inhabitants, by suppressing espionage, lawlessness, and all subversive to the people adequate shelter and clothing and sufficient food supply, and by providing means for the speedy evacuation of the civilian population the establishment of an air protective service and the organization of volunteer guard units, and to adopt such other measures as he may deem necessary for the interest of the public. To carry out this policy the President is authorized to promulgate rules and regulations which shall have the force and effect off law until the date of adjournment of the next regulation which shall have the force and effect of law until the date of adjournment of the next regular session of the First Congress of the Philippines, unless sooner amended or repealed by the Congress of Philippines. Such rules and regulation may embrace the following objects: (1) to suppress espionage and other subversive activities; (2) to require all able-bodied citizens (a) when not engaged in any lawful occupation, to engage in farming or other productive activities or (b) to perform such services as may bee necessary in the public interest; (3) to take over farm lands in order to prevent or shortage of crops and hunger and destitution; (4) to take over industrial establishment in order to insure adequate production, controlling wages and profits therein; (5) to prohibit lockouts and strikes whenever necessary to prevent the unwarranted suspension of work in productive enterprises or in the interest of national security; (6) to regulate the normal hours of work for wage-earning and salaried employees in industrial or business undertakings of all kinds; (7) to insure an even distribution of labor among the productive enterprises; (8) to commandership and other means of transportation in order to maintain, as much as possible, adequate and continued transportation facilities; (9) to requisition and take over any public service or enterprise for use or operation by the Government;(10) to regulate rents and the prices of articles or commodities of prime necessity, both imported and locally produced or manufactured; and (11) to prevent, locally or generally, scarcity, monopolization, hoarding injurious speculations, and private control affecting the supply, distribution and movement of foods, clothing, fuel, fertilizer, chemical, building, material, implements, machinery, and equipment required in agriculture and industry, with power to requisition these commodities subject to the payment of just compensation. (As amended by Com. Act No. 620.)SEC. 2. For the purpose of administering this Act and carrying out its objective, the President may designate any officer, without additional compensation, or any department, bureau, office, or instrumentality of the National Government.SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of this Act or of this Act or any of the rules or regulations promulgated by the President under the authority of section one of this Act shall be punished by imprisonment of not more than ten years or by a fine of not more than ten thousand pesos, or by both. If such violation is committed by a firm or corporation, the manager, managing director, or person charge with the management of the business of such firm, or corporation shall be criminally responsible therefor.SEC. 4. The President shall report to the national Assembly within the first ten days from the date of the opening of its next regular session whatever action has been taken by him under the authority herein granted.SEC. 5. To carry out the purposed of this Act, the President is authorized to spend such amounts as may be necessary from the sum appropriated under section five Commonwealth Act Numbered four hundred and ninety-eight.SEC. 6. If any province of this Act shall be declared by any court of competent jurisdiction to be unconstitutional and void, such declaration shall not invalidate the remainder of this Act.SEC. 7. This Act shall take upon its approval.Approved, August 19, 1940.

COMMONWEALTH ACT NO. 671AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR INVOLVING THE PHILIPPINES AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULE AND REGULATIONS TO MEET SUCH EMERGENCY.Be it enacted the National Assembly of the Philippines;SECTION 1. The existed of war between the United State and other countries of Europe and Asia, which involves the Philippines, makes it necessary to invest the President with extraordinary powers in order to meet the resulting emergency.SEC. 2. Pursuant to the provision of Article VI, section 16, of the Constitution, the President is hereby authorized, during the existence of the emergency, to promulgate such rules and regulation as he may deem necessary to carry out the national policy declared in section 1 hereof. Accordingly, he is, among other things, empowered (a) to transfer the seat of the Government or any of its subdivisions, branches, department, offices, agencies or instrumentalities; (b) to reorganize the Government of the Commonwealth including the determination of the order of precedence of the heads of the Executive Department; (c) to create new subdivision, branches, departments, offices, agency or instrumentalities of government and to abolish any of those already existing; (d) to continue in force laws and appropriation which would lapse or otherwise became inoperative, and to modify or suspend the operation or application of those of an administrative character; (e) to imposed new taxes or to increase, reduce, suspend, or abolish those in existence; (f) to raise funds through the issuance of bonds or otherwise, and to authorize the expensive of the proceeds thereof; (g) to authorize the National, provincial, city or municipal governments to incur in overdrafts for purposes that he may approve; (h) to declare the suspension of the collection of credits or the payment of debts; and (i) to exercise such other power as he may deem necessary to enable the Government to fulfill its responsibilities and to maintain and enforce its authority.SEC. 3. The President of the Philippines report thereto all the rules and regulation promulgated by him under the power herein granted.SEC. 4. This Act shall take effect upon its approval and the rules and regulations. promulgated hereunder shall be in force and effect until the Congress of the Philippines shall otherwise provide.Approved December 16, 1941.The above Acts cannot validly be invoked, Executive Order No. 68 was issued on July 29, 1947. Said Acts had elapsed upon the liberation of the Philippines form the Japanese forces or, at the latest, when the surrender of Japan was signed in Tokyo on September 2, 1945.When both Acts were enacted by the Second National Assembly, we happened to have taken direct part in their consideration and passage, not only as one of the members of said legislative body as chairman of the Committee on Third Reading population Known as the "Little Senate." We are, therefore in a position to state that said measures were enacted by the second national Assembly for the purpose of facing the emergency of impending war and of the Pacific War that finally broke out with the attack of Pearl Harbor on December 7, 1941. We approved said extraordinary measures, by which under the exceptional circumstances then prevailing legislative power were delegated to the President of the Philippines, by virtue of the following provisions of the Constitution:In time of war or other national emergency, the Congress may by law authorize the President, for a limited period and subject to such restrictions as it may prescribe to promulgate rules and regulations to carry out declared national policy. (Article VI, section 26.)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. We are of the opinion that there is no doubt on this question.; but if there could still be any the same should be resolved in favor of the presumption that the National Assembly did not intend to violate the fundamental law.The absurdity of the contention that the emergency Acts continued in effect even after the surrender of Japan can not be gainsaid. Only a few months after liberation and even before the surrender of Japan, or since the middle of 1945, the Congress started to function normally. In the hypothesis that the contention can prevail, then, since 1945, that is, four years ago, even after the Commonwealth was already replaced by the Republic of the Philippines with the proclamation of our Independence, two district, separate and independence legislative organs, Congress and the President of the Philippines would have been and would continue enacting laws, the former to enact laws of every nature including those of emergency character, and the latter to enact laws, in the form of executive orders, under the so-called emergency powers. The situation would be pregnant with dangers to peace and order to the rights and liberties of the people and to Philippines democracy.Should there be any disagreement between Congress and the President of the Philippines, a possibility that no one can dispute the President of the Philippines may take advantage of he long recess of Congress (two-thirds of every year ) to repeal and overrule legislative enactments of Congress, and may set up a veritable system of dictatorship, absolutely repugnant to the letter and spirit of the Constitution.Executive Order No. 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 permit 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.The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulation governing the trial of twelve criminal, issued by General Douglas Mac Arthur, Commander in Chief of the United State Armed Forces in Western Pacific, for the purpose of trying among other, General Yamashita and Homma. What we said in our concurring and dissenting opinion to the decision promulgated on December 19, 1945, in the Yamashita case, L-129, and in our concurring and dissenting opinion to the resolution of January 23, 1946 in disposing the Homma case, L-244, are perfectly applicable to the offensive rules of evidence in Executive Order No. 68. Said rules of evidence are repugnant to conscience as under them no justice can expected.For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote to declare Executive Order No. 68 null and void and to grant petition.

Kuroda vs Jalandoni 83 Phil 171FactsShinegori Kuroda, a former Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in the Philippines was charged before the Philippine Military Commission for war crimes. As he was the commanding general during such period of war, he was tried for failure to discharge his duties and permitting the brutal atrocities and other high crimes committed by his men against noncombatant civilians and prisoners of the Japanese forces, in violation of of the laws and customs of war.Kuroda, in his petition, argues that the Military Commission is not a valid court because the law that created it, Executive Order No. 68, is unconstitutional. He further contends that using as basis the Hague Conventions Rules and Regulations covering Land Warfare for the war crime committed cannot stand ground as the Philippines was not a signatory of such rules in such convention. Furthermore, he alleges that the United States is not a party of interest in the case and that the two US prosecutors cannot practice law in the Philippines. Issue1.Whether or not Executive Order No. 68 is constitutional2.Whether or not the US is a party of interest to this caseRulingThe Supreme Court ruled that Executive Order No. 68, creating the National War Crimes Office and prescribing rules on the trial of accused war criminals, is constitutional as it is aligned with Sec 3,Article 2 of the Constitution which states that The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of international law as part of the law of the nation. The generally accepted principles of international law includes those formed during the Hague Convention, the Geneva Convention and other international jurisprudence established by United Nations. These include the principle that all persons, military or civilian, who have been guilty of planning, preparing or waging a war of aggression and of the commission of crimes and offenses in violation of laws and customs of war, are to be held accountable. In the doctrine of incorporation, the Philippines abides by these principles and therefore has a right to try persons that commit such crimes and most especially when it is committed against its citizens. It abides with it even if it was not a signatory to these conventions by the mere incorporation of such principles in the constitution.The United States is a party of interest because the country and its people have been equally, if not more greatly, aggrieved by the crimes with which the petitioner is charged for. By virtue of Executive Order No. 68, the Military Commission is a special military tribunal and that the rules as to parties and representation are not governed by the rules of court but by the very provisions of this special law.

Republic of the PhilippinesSUPREME COURTManilaTHIRD DIVISIONG.R. No. 91332 July 16, 1993PHILIP MORRIS, INC., BENSON & HEDGES (CANADA), INC., AND FABRIQUES OF TABAC REUNIES, S.A.,petitionersvs.THE COURT OF APPEALS AND FORTUNE TOBACCO CORPORATION,respondents.Quasha, Asperilla, Ancheta, Pea & Nolasco Law Office for petitioners.Teresita Gandionco-Oledan for private respondent.MELO,J.:In the petition before us, petitioners Philip Morris, Inc., Benson and Hedges (Canada), Inc., and Fabriques of Tabac Reunies, S.A., are ascribing whimsical exercise of the faculty conferred upon magistrates by Section 6, Rule 58 of the Revised Rules of Court when respondent Court of Appeals lifted the writ of preliminary injunction it earlier had issued against Fortune Tobacco Corporation, herein private respondent, from manufacturing and selling "MARK" cigarettes in the local market.Banking on the thesis that petitioners' respective symbols "MARK VII", "MARK TEN", and "LARK", also for cigarettes, must be protected against unauthorized appropriation, petitioners twice solicited the ancillary writ in the course the main suit for infringement but the court of origin was unpersuaded.Before we proceed to the generative facts of the case at bar, it must be emphasized that resolution of the issue on the propriety of lifting the writ of preliminary injunction should not be construed as a prejudgment of the suit below. Aware of the fact that the discussion we are about to enter into involves a mere interlocutory order, a discourse on the aspect infringement must thus be avoided. With thesecaveat, we shall now shift our attention to the events which spawned the controversy.As averred in the initial pleading, Philip Morris, Incorporated is a corporation organized under the laws of the State of Virginia, United States of America, and does business at 100 Park Avenue, New York, New York, United States of America. The two other plaintiff foreign corporations, which are wholly-owned subsidiaries of Philip Morris, Inc., are similarly not doing business in the Philippines but are suing on an isolated transaction. As registered owners "MARK VII", "MARK TEN", and "LARK" per certificates of registration issued by the Philippine Patent Office on April 26, 1973, May 28, 1964, and March 25, 1964, plaintiffs-petitioners asserted that defendant Fortune Tobacco Corporation has no right to manufacture and sell cigarettes bearing the allegedly identical or confusingly similar trademark "MARK" in contravention of Section 22 of the Trademark Law, and should, therefore, be precluded during the pendency of the case from performing the acts complained ofviaa preliminary injunction (p. 75, Court of AppealsRolloin AC-G.R. SP No. 13132).For its part, Fortune Tobacco Corporation admitted petitioners' certificates of registration with the Philippine Patent Office subject to the affirmative and special defense on misjoinder of party plaintiffs. Private respondent alleged further that it has been authorized by the Bureau of Internal Revenue to manufacture and sell cigarettes bearing the trademark "MARK", and that "MARK" is a common word which cannot be exclusively appropriated (p.158, Court of AppealsRolloin A.C.-G.R. SP No. 13132). On March 28, 1983, petitioners' prayer for preliminary injunction was denied by the Presiding Judge of Branch 166 of the Regional Trial Court of the National Capital Judicial Region stationed at Pasig, premised upon the following propositions:Plaintiffs admit in paragraph 2 of the complaint that ". . . they arenot doing business in the Philippines and are suing on an isolated transaction . . .". This simply means that they are not engaged in the sale, manufacture, importation, expor[t]ation and advertisement of their cigarette products in the Philippines. With this admission, defendant asks: ". . . how could defendant's "MARK" cigarettes cause the former "irreparable damage" within the territorial limits of the Philippines?" Plaintiffs maintain that since their trademarks are entitled to protection by treaty obligation under Article 2 of the Paris Convention of which the Philippines is a member and ratified by Resolution No. 69 of the Senate of the Philippines and as such, have the force and effect of law under Section 12, Article XVII of our Constitution and since this is an action for a violation or infringement of a trademark or trade name by defendant, such mere allegation is sufficient even in the absence of proof to support it. To the mind of the Court, precisely, this is the issue in the main case to determine whether or not there has been an invasion of plaintiffs' right of property to such trademark or trade name. This claim of plaintiffs is disputed by defendant in paragraphs 6 and 7 of the Answer; hence, this cannot be made a basis for the issuance of a writ of preliminary injunction.There is no dispute that the First Plaintiff is the registered owner of trademar[k] "MARK VII" with Certificate of Registration No. 18723, dated April 26,1973 while the Second Plaintiff is likewise the registered owner of trademark "MARK TEN" under Certificate of Registration No. 11147, dated May 28, 1963 and the Third Plaintiff is a registrant of trademark "LARK" as shown by Certificate of Registration No. 10953 dated March 23, 1964, in addition to a pending application for registration of trademark "MARK VII" filed on November 21, 1980 under Application Serial No. 43243, all in the Philippine Patent Office. In same the manner, defendant has a pending application for registration of the trademark "LARK" cigarettes with the Philippine Patent Office under Application Serial No. 44008. Defendant contends that since plaintiffs are "not doing business in the Philippines" coupled the fact that the Director of Patents has not denied their pending application for registration of its trademark "MARK", the grant of a writ of preliminary injunction is premature. Plaintiffs contend that this act(s) of defendant is but a subterfuge to give semblance of good faith intended to deceive the public and patronizers into buying the products and create the impression that defendant's goods are identical with or come from the same source as plaintiffs' products or that the defendant is a licensee of plaintiffs when in truth and in fact the former is not. But the fact remains that with its pending application, defendant has embarked in the manufacturing, selling, distributing and advertising of "MARK" cigarettes. The question of good faith or bad faith on the part of defendant are matters which are evidentiary in character which have to be proven during the hearing on the merits; hence, until and unless the Director of Patents has denied defendant's application, the Court is of the opinion and so holds that issuance a writ of preliminary injunction would not lie.There is no question that defendant has been authorized by the Bureau of Internal Revenue to manufacture cigarettes bearing the trademark "MARK" (Letter of Ruben B. Ancheta, Acting Commissioner addressed to Fortune Tobacco Corporation dated April 3, 1981, marked as Annex "A", defendant's "OPPOSITION, etc." dated September 24, 1982). However, this authority is qualified . . . that the said brands have been accepted and registered by the Patent Office not later than six (6) months after you have been manufacturing the cigarettes and placed the same in the market." However, this grant ". . . does not give you protection against any person or entity whose rights may be prejudiced by infringement or unfair competition in relation to your indicated trademarks/brands". As aforestated, the registration of defendant's application is still pending in the Philippine Patent Office.It has been repeatedly held in this jurisdiction as well as in the United States that the right or title of the applicant for injunction remedy must be clear and free from doubt. Because of the disastrous and painful effects of an injunction, Courts should be extremely careful, cautious and conscionable in the exercise of its discretion consistent with justice, equity and fair play.There is no power the exercise of which is more delicate which requires greater caution, deliberation, and sound discretion, or (which is) more dangerous in a doubtful case than the issuing of an injunction; it is the strong arm of equity that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction. (Bonaparte v. Camden, etc. N. Co., 3 F. Cas. No. 1, 617, Baldw. 205, 217.)Courts of equity constantly decline to lay down any rule which injunction shall be granted or withheld. There is wisdom in this course, for it is impossible to foresee all exigencies of society which may require their aid to protect rights and restrain wrongs. (Merced M. Go v. Freemont, 7 Gal. 317, 321; 68 Am. Dec. 262.)It is the strong arm of the court; and to render its operation begin and useful, it must be exercised with great discretion, and when necessary requires it. (Attorney-General v. Utica Inc. Co., P. John Ch. (N.Y.) 371.)Having taken a panoramic view of the position[s] of both parties as viewed from their pleadings, the picture reduced to its minimum size would be this: At the crossroads are the two (2) contending parties, plaintiffs vigorously asserting the rights granted by law, treaty and jurisprudence to restrain defendant in its activities of manufacturing, selling, distributing and advertising its "MARK" cigarettes and now comes defendant who countered and refused to be restrained claiming that it has been authorized temporarily by the Bureau of Internal Revenue under certain conditions to do so as aforestated coupled by its pending application for registration of trademark "MARK" in the Philippine Patent Office. This circumstance in itself has created a dispute between the parties which to the mind of the Court does not warrant the issuance of a writ of preliminary injunction.It is well-settled principle that courts of equity will refuse an application for the injunctive remedy where the principle of law on which the right to preliminary injunction rests is disputed and will admit of doubt, without a decision of the court of law establishing such principle although satisfied as to what is a correct conclusion of law upon the facts. The fact, however, that there is no such dispute or conflict does not in itself constitute a justifiable ground for the court to refuse an application for the injunctive relief. (Hackensack Impr. Commn. v. New Jersey Midland P. Co., 22 N.J. Eg. 94.)Hence, thestatus quoexisting between the parties prior to the filing of this case should be maintained. For after all, an injunction, without reference to the parties, should be violent, vicious nor even vindictive. (pp. 338-341,Rolloin G.R. No. 91332.)In the process of denying petitioners' subsequent motion for reconsideration of the order denying issuance of the requested writ, the court of origin took cognizance of the certification executed on January 30, 1984 by the Philippine Patent Office attesting to the fact that private respondent's application for registration is still pending appropriate action. Apart from this communication, what prompted the trial court judge to entertain the idea of prematurity and untimeliness of petitioners' application for a writ of preliminary injunction was the letter from the Bureau of Internal Revenue date February 2, 1984 which reads:MRS. TERESITA GANDIONGCO OLEDANLegal CounselFortune Tobacco CorporationMadam:In connection with your letter dated January 25, 1984, reiterating your query as to whether your label approval automatically expires or becomes null and void after six (6) months if the brand is not accepted and by the patent office, please be informed that no provision in the Tax Code or revenue regulation that requires an applicant to comply with the aforementioned condition order that his label approved will remain valid and existing.Based on the document you presented, it shows that registration of this particular label still pending resolution by the Patent Office. These being so , you may therefore continue with the production said brand of cigarette until this Office is officially notified that the question of ownership of "MARK" brand is finally resolved.Very truly yours,TEODORO D. PAREOChief, Manufactured TobaccoTax DivisionTAN-P6531-D2830-A-6

(p. 348,Rollo.)It appears from the testimony of Atty. Enrique Madarang, Chief of the Trademark Division of the then Philippine Patent Office that Fortune's application for its trademark is still pending before said office (p. 311,Rollo).Petitioners thereafter cited supervening events which supposedly transpired since March 28, 1983, when the trial court first declined issuing a writ of preliminary injunction, that could alter the results of the case in that Fortune's application had been rejected, nay, barred by the Philippine Patent Office, and that the application had been forfeited by abandonment, but the trial court nonetheless denied the second motion for issuance of the injunctive writ on April 22, 1987, thus:For all the prolixity of their pleadings and testimonial evidence, the plaintiffs-movants have fallen far short of the legal requisites that would justify the grant of the writ of preliminary injunction prayed for. For one, they did not even bother to establish by competent evidence that the products supposedly affected adversely by defendant's trademark now subject of an application for registration with the Philippine Patents Office, are in actual use in the Philippines. For another, they concentrated their fire on the alleged abandonment and forfeiture by defendant of said application for registration.The Court cannot help but take note of the fact that in their complaint plaintiffs included a prayer for issuance preliminary injunction. The petition was duly heard, and thereafter matter was assiduously discussed lengthily and resolved against plaintiffs in a 15-page Order issued by the undersigned's predecessor on March 28, 1983. Plaintiffs' motion for reconsideration was denied in another well-argued 8 page Order issued on April 5, 1984,, and the matter was made to rest.However, on the strength of supposed changes in the material facts of this case, plaintiffs came up with the present motion citing therein the said changes which are: that defendant's application had been rejected and barred by the Philippine Patents Office, and that said application has been deemed abandoned and forfeited. But defendant has refiled the same.Plaintiffs' arguments in support of the present motion appear to be a mere rehash of their stand in the first above-mentioned petition which has already been ruled upon adversely against them. Granting that the alleged changes in the material facts are sufficient grounds for a motion seeking a favorable grant of what has already been denied, this motion just the same cannot prosper.In the first place there is no proof whatsoever that any of plaintiffs' products which they seek to protect from any adverse effect of the trademark applied for by defendant, is in actual use and available for commercial purposes anywhere in the Philippines. Secondly as shown by plaintiffs' own evidence furnished by no less than the chief of Trademarks Division of the Philippine Patent Office, Atty. Enrique Madarang, the abandonment of an application is of no moment, for the same can always be refiled. He said there is no specific provision in the rules prohibiting such refiling (TSN, November 21, 1986, pp. 60 & 64, Raviera). In fact, according to Madarang, the refiled application of defendant is now pending before the Patents Office. Hence, it appears that the motion has no leg to stand on. (pp. 350-351,Rolloin G. R. No. 91332.)Confronted with this rebuff, petitioners filed a previous petition forcertioraribefore the Court, docketed as G.R. No. 78141, but the petition was referred to the Court of Appeals.The Court of Appeals initially issued a resolution which set aside the court of origin's order dated April 22, 1987, and granted the issuance of a writ of preliminary injunction enjoining Fortune, its agents, employees, and representatives, from manufacturing, selling, and advertising "MARK" cigarettes. The late Justice Cacdac, speaking for the First Division of the Court of Appeals in CA-G.R. SP No. 13132, remarked:There is no dispute that petitioners are the registered owners of the trademarks for cigarettes "MARK VII", "MARK TEN", and "LARK".(Annexes B, C and D, petition). As found and reiterated by the Philippine Patent Office in two (2) official communications dated April 6, 1983 and January 24, 1984, the trademark "MARK" is "confusingly similar" to the trademarks of petitioners, hence registration was barred under Sec. 4 (d) of Rep. Act. No. 166, as amended (pp. 106, 139, SCArollo). In a third official communication dated April 8, 1986, the trademark application of private respondent for the "MARK" under Serial No. 44008 filed on February 13, 1981 which was declared abandoned as of February 16, 1986, is now deemed forfeited, there being no revival made pursuant to Rule 98 of the Revised Rules of Practitioners in Trademark Cases." (p. 107, CArollo). The foregoing documents or communications mentioned by petitioners as "the changes in material facts which occurred after March 28, 1983", are not also questioned by respondents.Pitted against the petitioners' documentary evidence, respondents pointed to (1) the letter dated January 30, 1979 (p. 137, CArollo) of Conrado P. Diaz, then Acting Commissioner of Internal Revenue, temporarily granting the request of private respondent for a permit to manufacture two (2) new brands of cigarettes one of which is brand "MARK" filter-type blend, and (2) the certification dated September 26, 1986 of Cesar G. Sandico, Director of Patents (p. 138, CArollo) issued upon the written request of private respondents' counsel dated September 17, 1986 attesting that the records of his office would show that the "trademark MARK" for cigarettes is now the subject of a pending application under Serial No. 59872 filed on September 16, 1986.Private respondent's documentary evidence provides the reasons neutralizing or weakening their probative values. The penultimate paragraph of Commissioner Diaz' letter of authority reads:Please be informed further that the authority herein granted does not give you protection against any person or entity whose rights may be prejudiced by infringement or unfair competition in relation to your above-named brands/trademark.while Director Sandico's certification contained similar conditions as follows:This Certification, however, does not give protection as against any person or entity whose right may be prejudiced by infringement or unfair competition in relation to the aforesaid trademark nor the right to register if contrary to the provisions of the Trademark Law, Rep. Act No. 166 as amended and the Revised Rules of Practice in Trademark Cases.The temporary permit to manufacture under the trademark "MARK" for cigarettes and the acceptance of the second application filed by private respondent in the height of their dispute in the main case were evidently made subject to the outcome of the said main case or Civil Case No. 47374 of the respondent Court. Thus, the Court has not missed to note the absence of a mention in the Sandico letter of September 26, 1986 of any reference to the pendency of the instant action filed on August 18, 1982. We believe and hold that petitioners have shown aprima faciecase for the issuance of the writ of prohibitory injunction for the purposes stated in their complaint and subsequent motions for the issuance of the prohibitory writ. (Buayan Cattle Co. vs. Quintillan, 125 SCRA 276)The requisites for the granting of preliminary injunction are the existence of the right protected and the facts against which the injunction is to be directed as violative of said right. (Buayan Cattle Co. vs. Quintillan,supra; Ortigas & Co. vs. Ruiz, 148 SCRA 326). It is a writ framed according to the circumstances of the case commanding an act which the Court regards as essential to justice and restraining an act it deems contrary to equity and good conscience (Rosauro vs. Cuneta, 151 SCRA 570). If it is not issued, the defendant may, before final judgment, do or continue the doing of the act which the plaintiff asks the court to restrain, and thus make ineffectual the final judgment rendered afterwards granting the relief sought by the plaintiff (Calo vs. Roldan, 76 Phil. 445). Generally, its grant or denial rests upon the sound discretion of the Court except on a clear case of abuse (Belish Investment & Finance Co. vs. State House, 151 SCRA 636). Petitioners' right of exclusivity to their registered trademarks being clear and beyond question, the respondent court's denial of the prohibitive writ constituted excess of jurisdiction and grave abuse discretion. If the lower court does not grant preliminary injunction, the appellate court may grant the same. (Service Specialists, Inc. vs. Sheriff of Manila, 145 SCRA 139). (pp. 165-167,Rolloin G.R. No. 91332.)After private respondent Fortune's motion for reconsideration was rejected, a motion to dissolve the disputed writ of preliminary injunction with offer to post a counterbond was submitted which was favorably acted upon by the Court of Appeals, premised on the filing of a sufficient counterbond to answer for whateverperjuiciopetitioners may suffer as a result thereof, to wit:The private respondent seeks to dissolve the preliminary injunction previously granted by this Court with an offer to file a counterbond. It was pointed out in its supplemental motion that lots of workers employed will be laid off as a consequence of the injunction and that the government will stand to lose the amount of specific taxes being paid by theprivate respondent. The specific taxes being paid is the sum total of P120,120, 295.98 from January to July 1989.The petitioners argued in their comment that the damages caused by the infringement of their trademark as well as the goodwill it generates are incapable of pecuniary estimation and monetary evaluation and not even the counterbond could adequately compensate for the damages it will incur as a result of the dissolution of the bond. In addition, the petitioner further argued that doing business in the Philippines is not relevant as the injunction pertains to an infringement of a trademark right.After a thorough re-examination of the issues involved and the arguments advanced by both parties in the offer to file a counterbond and the opposition thereto, WE believe that there are sound and cogent reasons for US to grant the dissolution of the writ of preliminary injunction by the offer of the private respondent to put up a counterbond to answer for whatever damages the petitioner may suffer as a consequence of the dissolution of the preliminary injunction.The petitioner will not be prejudiced nor stand to suffer irreparably as a consequence of the lifting of the preliminary injunction considering that they are not actually engaged in the manufacture of the cigarettes with the trademark in question and the filing of the counterbond will amply answer for such damages.While the rule is that an offer of a counterbond does not operate to dissolve an injunction previously granted, nevertheless, it is equally true that an injunction could be dissolved only upon good and valid grounds subject to the sound discretion of the court. As WE have maintained the view that there are sound and good reasons to lift the preliminary injunction, the motion to file a counterbond is granted. (pp. 53-54,Rolloin G.R. No. 91332.)Petitioners, in turn, filed their own motion for re-examination geared towards reimposition of the writ of preliminary injunction but to no avail (p. 55,Rolloin G.R. No. 91332).Hence, the instant petition casting three aspersions that respondent court gravely abused its discretion tantamount to excess of jurisdiction when:I. . . . it required, contrary to law and jurisprudence, that in order that petitioners may suffer irreparable injury due to the lifting of the injunction, petitioners should be using actually their registered trademarks in commerce in the Philippines;II. . . . it lifted the injunction in violation of section 6 of Rule 58 of the Rules of Court; andIII. . . . after having found that the trial court had committed grave abuse of discretion and exceeded its jurisdiction for having refused to issue the writ of injunction to restrain private respondent's acts that are contrary to equity and good conscience, it made a complete about face for legally insufficient grounds and authorized the private respondent to continue performing the very same acts that it had considered contrary to equity and good conscience, thereby ignoring not only the mandates of the Trademark Law, the international commitments of the Philippines, the judicial admission of private respondent that it will have no more right to use the trademark "MARK" after the Director of Patents shall have rejected the application to register it, and the admonitions of the Supreme Court. (pp. 24-25, Petition; pp. 25-26,Rollo.)To sustain a successful prosecution of their suit for infringement, petitioners, as foreign corporations not engaged in local commerce, rely on section 21-A of the Trademark Law reading as follows:Sec. 21-A. Any foreign corporation or juristic person to which a mark or trade-name has been registered or assigned under this act may bring an action hereunder for infringement, for unfair competition, or false designation of origin and false description, whether or not it has been licensed to do business in the Philippines under Act Numbered Fourteen hundred and fifty-nine, as amended, otherwise known as the Corporation Law, at the time it brings complaint: Provided, That the country of which the said foreign corporation or juristic person is a citizen or in which it is domiciled, by treaty, convention or law, grants a similar privilege to corporate or juristic persons of the Philippines. (As inserted by Sec. 7 of Republic Act No. 638.)to drive home the point that they are not precluded from initiating a cause of action in the Philippines on account of the principal perception that another entity is pirating their symbol without any lawful authority to do so. Judging from a perusal of the aforequoted Section 21-A, the conclusion reached by petitioners is certainly correct for the proposition in support thereof is embedded in the Philippine legal jurisprudence.Indeed, it was stressed inGeneral Garments Corporation vs. Director of Patents(41 SCRA 50 [1971]) by then Justice (later Chief Justice) Makalintal that:Parenthetically, it may be stated that the ruling in the Mentholatum case was subsequently derogated when Congress, purposely to "counteract the effects" of said case, enacted Republic Act No. 638, inserting Section 21-A in the Trademark Law, which allows a foreign corporation or juristic person to bring an action in Philippine courts for infringement of a mark or tradename, for unfair competition, or false designation of origin and false description, "whether or not it has been licensed to do business in the Philippines under Act Numbered Fourteen hundred and fifty-nine, as amended, otherwise known as the Corporation Law, at the time it brings complaint."Petitioner argues that Section 21-A militates against respondent's capacity to maintain a suit for cancellation, since it requires, before a foreign corporation may bring an action, that its trademark or tradename has been registered under the Trademark Law. The argument misses the essential point in the said provision, which is that the foreign corporation is allowed thereunder to sue "whether or not it has been licensed to do business in the Philippines" pursuant to the Corporation Law (precisely to counteract the effects of the decision in the Mentholatum case). (at p. 57.)However, on May, 21, 1984, Section 21-A, the provision under consideration, was qualified by this Court inLa Chemise Lacoste S.A. vs. Fernandez(129 SCRA 373 [1984]), to the effect that a foreign corporation not doing business in the Philippines may have the right to sue before Philippine Courts, but existing adjective axioms require that qualifying circumstances necessary for the assertion of such right should first be affirmatively pleaded (2 Agbayani Commercial Laws of the Philippines, 1991 Ed., p. 598; 4Martin, Philippine Commercial Laws, Rev. Ed., 1986, p. 381). Indeed, it is not sufficient for a foreign corporation suing under Section 21-A to simply allege its alien origin. Rather, it must additionally allege its personality to sue. Relative to this condition precedent, it may be observed that petitioners were not remiss in averring their personality to lodge a complaint for infringement (p. 75,Rolloin AC-G.R. SP No. 13132) especially so when they asserted that the main action for infringement is anchored on an isolated transaction (p. 75,Rolloin AC-G.R. SP No. 13132; Atlantic Mutual Ins. Co. vs. Cebu Stevedoring Co., Inc., 17 SCRA 1037 (1966), 1 Regalado, Remedial Law Compendium, Fifth Rev. Ed., 1988, p. 103).Another point which petitioners considered to be of significant interest, and which they desire to impress upon us is the protection they enjoy under the Paris Convention of 1965 to which the Philippines is a signatory. Yet, insofar as this discourse is concerned, there is no necessity to treat the matter with an extensive response because adherence of the Philippines to the 1965 international covenant due topact sunt servandahad been acknowledged inLa Chemise(supraat page 390).Given these confluence of existing laws amidst the cases involving trademarks, there can be no disagreement to the guiding principle in commercial law that foreign corporations not engaged in business in the Philippines may maintain a cause of action for infringement primarily because of Section 21-A of the Trademark Law when the legal standing to sue is alleged, which petitioners have done in the case at hand.In assailing the justification arrived at by respondent court when it recalled the writ of preliminary injunction, petitioners are of the impression that actual use of their trademarks in Philippine commercial dealings is not an indispensable element under Article 2 of the Paris Convention in that:(2) . . . . no condition as to the possession of a domicile or establishment in the country where protection is claimed may be required of persons entitled to the benefits of the Union for the enjoyment of any industrial property of any industrial property rights. (p. 28, Petition; p. 29,Rolloin G.R. No. 91332.)Yet petitioners' perception along this line is nonetheless resolved by Sections 2 and 2-A of the Trademark Law which speak loudly, about necessity of actual commercial use of the trademark in the local forum:Sec. 2. What are registrable. Trademarks, tradenames and service marks owned by persons, corporations, partnerships or associations domiciled in the Philippines and by persons, corporations, partnerships or associations domiciled in any foreign country may be registered in accordance with the provisions of this Act;Provided, That said trademarks, tradenames, or service marks are actually in use in commerceand services not less than two monthsin the Philippinesbefore the time the applications for registration are filed; And provided, further, That the country of which the applicant for registration is a citizen grants by law substantially similar privileges to citizens of the Philippines, and such fact is officially certified, with a certified true copy of the foreign law translated into the English language, by the government of the foreign country to the Government of the Republic of the Philippines. (As amended by R.A. No. 865).Sec. 2-A. Ownership of trademarks, tradenames and service marks; how acquired. Anyone who lawfully produces or deals in merchandise of any kind or who engages in any lawful business, or who renders any lawful service in commerce,by actual use thereof in manufacture or trade, in business,and in the service rendered, may appropriate to his exclusive use a trademark, a tradename, or a service mark not so appropriated by another, to distinguish his merchandise, business or service from the merchandise, business or service of others. The ownership or possession of a trademark, tradename, service mark, heretofore or hereafter appropriated, as in this section provided, shall be recognized and protected in the same manner and to the same extent as are other property rights known to the law. (As amended by R.A. No. 638). (Kabushi Kaisha Isetan vs. Intermediate Appellate Court, 203 SCRA 583 [1991], at pp. 589-590; emphasis supplied.)Following universal acquiescence and comity, our municipal law on trademarks regarding the requirement of actual use in the Philippines must subordinate an international agreement inasmuch as the apparent clash is being decided by a municipal tribunal (Mortensen vs. Peters, Great Britain, High Court of Judiciary of Scotland, 1906, 8 Sessions 93; Paras, International Law and World Organization, 1971 Ed., p. 20). Withal, the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of international law are given a standing equal, not superior, to national legislative enactments (Salonga and Yap, Public International Law, Fourth ed., 1974, p. 16).The aforequoted basic provisions of our Trademark Law, according to Justice Gutierrez, Jr., inKabushi Kaisha Isetan vs. Intermediate Appellate Court(203 SCRA 583 [1991]), have been construed in this manner:A fundamental principle of Philippine Trademark Law is that actual use in commerce in the Philippines is a pre-requisite to the acquisition of ownership over a trademark or a tradename.xxx xxx xxxThese provisions have been interpreted inSterling Products International, Inc. v. Farbenfabriken Bayer Actiengesellschaft(27 SCRA 1214 [1969]) in this way:A rule widely accepted and firmly entrenched because it has come down through the years is that actual use in commerce or business is a prerequisite to the acquisition of the right of ownership over a trademark.xxx xxx xxx. . . Adoption alone of a trademark would not give exclusive right thereto. Such right grows out of their actual use. Adoption is not use. One may make advertisements, issue circulars, give out price lists on certain goods; but these alone would not give exclusive right of use. For trademark is a creation of use. The underlying reason for all these is that purchasers have come to understand the mark as indicating the origin of the wares. Flowing from this is the trader's right to protection in the trade he has built up and the goodwill he has accumulated from use of the trademark. . . .In fact, a prior registrant cannot claim exclusive use of the trademark unless it uses it in commerce.We rule[d] inPagasa Industrial Corporation v. Court of Appeals(118 SCRA 526 [1982]):3. The Trademark law is very clear.It requires actual commercial use of the mark prior to its registration. There is no dispute that respondent corporation was the first registrant, yet it failed to fully substantiate its claim that it used in trade or business in the Philippines the subject mark; it did not present proof to invest it with exclusive, continuous adoption of the trademark which should consist among others, of considerable sales since its first use. The invoices (Exhibits 7, 7-a, and 8-b) submitted by respondent which were dated way back in 1957 show that the zippers sent to the Philippines were to be used as "samples" and "of no commercial value". The evidence for respondent must be clear, definite and free from inconsistencies. (Sy Ching v. Gaw Lui, 44 SCRA 148-149) "Samples" are not for sale and therefore, the fact of exporting them to the Philippines cannot be considered to be equivalent to the "use" contemplated by the law. Respondent did not expect income from such "samples". There were no receipts to establish sale, and no proof were presented to show that they were subsequently sold in the Philippines. (Pagasa Industrial Corp. v. Court of Appeals, 118 SCRA 526 [1982]; Emphasis Supplied)The records show that the petitioner has never conducted any business in the Philippines. It has never promoted its tradename or trademark in the Philippines. It is unknown to Filipino except the very few who may have noticed it while travelling abroad. It has never paid a single centavo of tax to the Philippine government. Under the law, it has no right to the remedy it seeks. (at pp. 589-591.)In other words, petitioners may have the capacity to sue for infringement irrespective of lack of business activity in the Philippines on account of Section 21-A of the Trademark Law but the question whether they have an exclusive right over their symbol as to justify issuance of the controversial writ will depend on actual use of their trademarks in the Philippines in line with Sections 2 and 2-A of the same law. It is thus incongruous for petitioners to claim that when a foreign corporation not licensed to do business in Philippines files a complaint for infringement, the entity need not be actually using its trademark in commerce in the Philippines. Such a foreign corporation may have the personality to file a suit for infringement but it may not necessarily be entitled to protection due to absence of actual use of the emblem in the local market.Going back to the first assigned error, we can not help but notice the manner the ascription was framed which carries with it the implied but unwarranted assumption of the existence of petitioners' right to relief. It must be emphasized that this aspect of exclusive dominion to the trademarks, together with the corollary allegation of irreparable injury, has yet to be established by petitioners by the requisite quantum of evidence in civil cases. It cannot be denied that our reluctance to issue a writ of preliminary injunction is due to judicial deference to the lower courts, involved as there is mere interlocutory order (Villarosa vs. Teodoro, Sr., 100 Phil. 25 [1956]). In point of adjective law, the petition has its roots on a remedial measure which is but ancillary to the main action for infringement still pending factual determination before the court of origin. It is virtually needless to stress the obvious reality that critical facts in an infringement case are not before us more so when even Justice Feliciano's opinion observes that "the evidence is scanty" and that petitioners "have yet to submit copies or photographs of their registered marks as used in cigarettes" while private respondent has not, for its part, "submitted the actual labels or packaging materials used in selling its "Mark" cigarettes." Petitioners therefore, may not be permitted to presume a given state of facts on their so called right to the trademarks which could be subjected to irreparable injury and in the process, suggest the fact of infringement. Such a ploy would practically place the cart ahead of the horse. To our mind, what appears to be the insurmountable barrier to petitioners' portrayal of whimsical exercise of discretion by the Court of Appeals is the well-taken remark of said court that:The petitioner[s] will not be prejudiced nor stand to suffer irreparably as a consequence of the lifting of the preliminary injunction considering that they are not actually engaged in the manufacture of the cigarettes with the trademark in question and the filing of the counterbond will amply answer for such damages. (p. 54.Rolloin G.R. No. 91332.)More telling are the allegations of petitioners in their complaint (p. 319,RolloG.R. No. 91332) as well as in the very petition filed with this Court (p. 2,Rolloin G.R. No. 91332) indicating that they are not doing business in the Philippines, for these frank representations are inconsistent and incongruent with any pretense of a right which can breached (Article 1431, New Civil Code; Section 4, Rule 129; Section 3, Rule 58, Revised Rules of Court). Indeed, to be entitled to an injunctive writ, petitioner must show that there exists a right to be protected and that the facts against which injunction is directed are violative of said right (Searth Commodities Corporation vs. Court of Appeals, 207 SCRA 622 [1992]). It may be added in this connection that albeit petitioners are holders of certificate of registration in the Philippines of their symbols as admitted by private respondent, the fact of exclusive ownership cannot be made to rest solely on these documents since dominion over trademarks is not acquired by the mere fact of registration alone and does not perfect a trademark right (Unno Commercial Enterprises, Inc. vs. General Milling Corporation, 120 SCRA 804 [1983]).Even if we disregard the candid statements of petitioners anent the absence of business activity here and rely on the remaining statements of the complaint below, still, when these averments are juxtaposed with the denials and propositions of the answer submitted by private respondent, the supposed right of petitioners to the symbol have thereby been controverted. This is not to say, however, that the manner the complaint was traversed by the answer is sufficient to tilt the scales of justice in favor of private respondent. Far from it. What we are simply conveying is another basic tenet in remedial law that before injunctive relief may properly issue, complainant's right or title must be undisputed and demonstrated on the strength of one's own title to such a degree as to unquestionably exclude dark clouds of doubt, rather than on the weakness of the adversary's evidence, inasmuch as the possibility of irreparable damage, without prior proof of transgression of an actual existing right, is no ground for injunction being meredamnum absque injuria(Talisay-Silay Milling Co., Inc. vs. CFI of Negros Occidental, 42 SCRA 577 [1971]; Francisco, Rules of Court, Second ed., 1985, p. 225; 3 Martin, Rules of Court, 1986 ed., p. 82).On the economic repercussion of this case, we are extremely bothered by the thought of having to participate in throwing into the streets Filipino workers engaged in the manufacture and sale of private respondent's "MARK" cigarettes who might be retrenched and forced to join the ranks of the many unemployed and unproductive as a result of the issuance of a simple writ of preliminary injunction and this, during the pendency of the case before the trial court, not to mention the diminution of tax revenues represented to be close to a quarter million pesos annually. On the other hand, if the status quo is maintained, there will be no damage that would be suffered by petitioners inasmuch as they are not doing business in the Philippines.With reference to the second and third issues raised by petitioners on the lifting of the writ of preliminary injunction, it cannot be gainsaid that respondent court acted well within its prerogatives under Section 6, Rule 58 of the Revised Rules of Court:Sec. 6. Grounds for objection to, or for motion of dissolution of injunction. The injunction may be refused or, if grantedex parte, may be dissolved, upon the insufficiency of the complaint as shown by the complaint itself, with or without notice to the adverse party. It may also be refused or dissolved on other grounds upon affidavits on the part of the defendants which may be opposed by the plaintiff also by affidavits. It may further be refused or, if granted, may be dissolved, if it appears after hearing that although the plaintiff is entitled to the injunction, the issuance or continuance thereof, as the case may be, would cause great damage to the defendant while the plaintiff can be fully compensated for such damages as he may suffer, and the defendant files a bond in an amount fixed by the judge conditioned that he will pay all damages which the plaintiff may suffer by the refusal or the dissolution of the injunction. If it appears that the extent of the preliminary injunction granted is too great, it must be modified.Under the foregoing rule, injunction may be refused, or, if granted, may be dissolved, on the following instances:(1) If there is insufficiency of the complaint as shown by the allegations therein.Refusal or dissolution may be granted in this case with or without notice to the adverse party.(2) If it appears after hearing that although the plaintiff is entitled to the injunction, the issuance or continuance thereof would cause great damage to the defendant, while the plaintiff can be fully compensated for such damages as he may suffer. The defendant, in this case, must file a bond in an amount fixed by the judge conditioned that he will pay all damages which plaintiff may suffer by the refusal or the dissolution of the injunction.(3) On the other grounds upon affidavits on the part of the defendant which may be opposed by the plaintiff also affidavits.Modification of the injunction may also be ordered by the court if it appears that the extent of the preliminary injun