1

G.R. No. L-35131 November 29, 1972

THE WORLD HEALTH ORGANIZATION and DR. LEONCE VERSTUYFT, petitioners,
vs.
HON. BENJAMIN H. AQUINO, as Presiding Judge of Branch VIII, Court of First Instance of Rizal, MAJOR
WILFREDO CRUZ, MAJOR ANTONIO G. RELLEVE, and CAPTAIN PEDRO S. NAVARRO of the Constabulary
Offshore Action Center (COSAC), respondents.
An original action for certiorari and prohibition to set aside respondent judge's refusal to quash a search warrant
issued by him at the instance of respondents COSAC (Constabulary Offshore Action Center) officers for the
search and seizure of the personal effects of petitioner official of the WHO (World Health Organization)
notwithstanding his being entitled to diplomatic immunity, as duly recognized by the executive branch of the
Philippine Government and to prohibit respondent judge from further proceedings in the matter.
Upon filing of the petition, the Court issued on June 6, 1972 a restraining order enjoining respondents from
executing the search warrant in question.
Respondents COSAC officers filed their answer joining issue against petitioners and seeking to justify their act of
applying for and securing from respondent judge the warrant for the search and seizure of ten crates consigned
to petitioner Verstuyft and stored at the Eternit Corporation warehouse on the ground that they "contain large
quantities of highly dutiable goods" beyond the official needs of said petitioner "and the only lawful way to
reach these articles and effects for purposes of taxation is through a search warrant."
The Court thereafter called for the parties' memoranda in lieu of oral argument, which were filed on August 3,
1972 by respondents and on August 21, 1972 by petitioners, and the case was thereafter deemed submitted for
decision.
It is undisputed in the record that petitioner Dr. Leonce Verstuyft, who was assigned on December 6, 1971 by
the WHO from his last station in Taipei to the Regional Office in Manila as Acting Assistant Director of Health
Services, is entitled to diplomatic immunity, pursuant to the Host Agreement executed on July 22, 1951 between
the Philippine Government and the World Health Organization.
Such diplomatic immunity carries with it, among other diplomatic privileges and immunities, personal
inviolability, inviolability of the official's properties, exemption from local jurisdiction, and exemption from
taxation and customs duties.
When petitioner Verstuyft's personal effects contained in twelve (12) crates entered the Philippines as
unaccompanied baggage on January 10, 1972, they were accordingly allowed free entry from duties and taxes.
The crates were directly stored at the Eternit Corporation's warehouse at Mandaluyong, Rizal, "pending his
relocation into permanent quarters upon the offer of Mr. Berg, Vice President of Eternit who was once a patient
of Dr. Verstuyft in the Congo."
Nevertheless, as above stated, respondent judge issued on March 3, 1972 upon application on the same date of
respondents COSAC officers search warrant No. 72-138 for alleged violation of Republic Act 4712 amending
section 3601 of the Tariff and Customs Code
3
directing the search and seizure of the dutiable items in said
crates.
Upon protest of March 6, 1972 of Dr. Francisco Dy, WHO Regional Director for the Western Pacific with station
in Manila, Secretary of Foreign Affairs Carlos P. Romulo, personally wired on the same date respondent Judge
advising that "Dr. Verstuyft is entitled to immunity from search in respect of his personal baggage as accorded to
members of diplomatic missions" pursuant to the Host Agreement and requesting suspension of the search
warrant order "pending clarification of the matter from the ASAC."
2

Respondent judge set the Foreign Secretary's request for hearing and heard the same on March 16, 1972, but
notwithstanding the official plea of diplomatic immunity interposed by a duly authorized representative of the
Department of Foreign Affairs who furnished the respondent judge with a list of the articles brought in by
petitioner Verstuyft, respondent judge issued his order of the same date maintaining the effectivity of the
search warrant issued by him, unless restrained by a higher court.
Petitioner Verstuyft's special appearance on March 24, 1972 for the limited purpose of pleading his diplomatic
immunity and motion to quash search warrant of April 12, 1972 failed to move respondent judge.
At the hearing thereof held on May 8, 1972, the Office of the Solicitor General appeared and filed an extended
comment stating the official position of the executive branch of the Philippine Government that petitioner
Verstuyft is entitled to diplomatic immunity, he did not abuse his diplomatic immunity, and that court
proceedings in the receiving or host State are not the proper remedy in the case of abuse of diplomatic
immunity.
The Solicitor General accordingly joined petitioner Verstuyft's prayer for the quashal of the search warrant.
Respondent judge nevertheless summarily denied quashal of the search warrant per his order of May 9, 1972
"for the same reasons already stated in (his) aforesaid order of March 16, 1972" disregarding Foreign Secretary
Romulo's plea of diplomatic immunity on behalf of Dr. Verstuyft.
Hence, the petition at bar. Petitioner Verstuyft has in this Court been joined by the World Health Organization
(WHO) itself in full assertion of petitioner Verstuyft's being entitled "to all privileges and immunities, exemptions
and facilities accorded to diplomatic envoys in accordance with international law" under section 24 of the Host
Agreement.
The writs of certiorari and prohibition should issue as prayed for.
1. The executive branch of the Philippine Government has expressly recognized that petitioner Verstuyft is
entitled to diplomatic immunity, pursuant to the provisions of the Host Agreement. The Department of Foreign
Affairs formally advised respondent judge of the Philippine Government's official position that accordingly "Dr.
Verstuyft cannot be the subject of a Philippine court summons without violating an obligation in international
law of the Philippine Government" and asked for the quashal of the search warrant, since his personal effects
and baggages after having been allowed free entry from all customs duties and taxes, may not be baselessly
claimed to have been "unlawfully imported" in violation of the tariff and customs code as claimed by
respondents COSAC officers. The Solicitor-General, as principal law officer of the Government, likewise expressly
affirmed said petitioner's right to diplomatic immunity and asked for the quashal of the search warrant.
It is a recognized principle of international law and under our system of separation of powers that diplomatic
immunity is essentially a political question and courts should refuse to look beyond a determination by the
executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by
the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim
of immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General in
this case, or other officer acting under his direction. Hence, in adherence to the settled principle that courts may
not so exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the
government in conducting foreign relations, it is accepted doctrine that "in such cases the judicial department of
(this) government follows the action of the political branch and will not embarrass the latter by assuming an
antagonistic jurisdiction."
2. The unfortunate fact that respondent judge chose to rely on the suspicion of respondents COSAC officers
"that the other remaining crates unopened contain contraband items"

rather than on the categorical assurance
of the Solicitor-General that petitioner Verstuyft did not abuse his diplomatic immunity,
12
which was based in
turn on the official positions taken by the highest executive officials with competence and authority to act on
3

the matter, namely, the Secretaries of Foreign Affairs and of Finance, could not justify respondent judge's denial
of the quashal of the search warrant.
As already stated above, and brought to respondent court's attention, the Philippine Government is bound by
the procedure laid down in Article VII of the Convention on the Privileges and Immunities of the Specialized
Agencies of the United Nations for consultations between the Host State and the United Nations agency
concerned to determine, in the first instance the fact of occurrence of the abuse alleged, and if so, to ensure
that no repetition occurs and for other recourses. This is a treaty commitment voluntarily assumed by the
Philippine Government and as such, has the force and effect of law.
Hence, even assuming arguendo as against the categorical assurance of the executive branch of government
that respondent judge had some ground to prefer respondents COSAC officers' suspicion that there had been an
abuse of diplomatic immunity, the continuation of the search warrant proceedings before him was not the
proper remedy. He should, nevertheless, in deference to the exclusive competence and jurisdiction of the
executive branch of government to act on the matter, have acceded to the quashal of the search warrant, and
forwarded his findings or grounds to believe that there had been such abuse of diplomatic immunity to the
Department of Foreign Affairs for it to deal with, in accordance with the aforementioned Convention, if so
warranted.
3. Finally, the Court has noted with concern the apparent lack of coordination between the various departments
involved in the subject-matter of the case at bar, which made it possible for a small unit, the COSAC, to which
respondents officers belong, seemingly to disregard and go against the authoritative determination and
pronouncements of both the Secretaries of Foreign Affairs and of Finance that petitioner Verstuyft is entitled to
diplomatic immunity, as confirmed by the Solicitor-General as the principal law officer of the Government. Such
executive determination properly implemented should have normally constrained respondents officers
themselves to obtain the quashal of the search warrant secured by them rather than oppose such quashal up to
this Court, to the embarrassment of said department heads, if not of the Philippine Government itself vis a vis
the petitioners.
The seriousness of the matter is underscored when the provisions of Republic Act 75 enacted since October 21,
1946 to safeguard the jurisdictional immunity of diplomatic officials in the Philippines are taken into account.
Said Act declares as null and void writs or processes sued out or prosecuted whereby inter alia the person of an
ambassador or public minister is arrested or imprisoned or his goods or chattels are seized or attached and
makes it a penal offense for "every person by whom the same is obtained or prosecuted, whether as party or as
attorney, and every officer concerned in executing it" to obtain or enforce such writ or process.
The Court, therefore, holds that respondent judge acted without jurisdiction and with grave abuse of discretion
in not ordering the quashal of the search warrant issued by him in disregard of the diplomatic immunity of
petitioner Verstuyft.
ACCORDINGLY, the writs of certiorari and prohibition prayed for are hereby granted, and the temporary
restraining order heretofore issued against execution or enforcement of the questioned search warrant, which is
hereby declared null and void, is hereby made permanent. The respondent court is hereby commanded to desist
from further proceedings in the matter. No costs, none having been prayed for.
The clerk of court is hereby directed to furnish a copy of this decision to the Secretary of Justice for such action
as he may find appropriate with regard to the matters mentioned in paragraph 3 hereof. So ordered.



4

G.R. No. 113191 September 18, 1996
DEPARTMENT OF FOREIGN AFFAIRS, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION, HON. LABOR ARBITER NIEVES V. DE CASTRO and JOSE C.
MAGNAYI, respondents.
The questions raised in the petition for certiorari are a few coincidental matters relative to the diplomatic
immunity extended to the Asian Development Bank ("ADB").
On 27 January 1993, private respondent initiated NLRC-NCR Case No. 00-01-0690-93 for his alleged illegal
dismissal by ADB and the latter's violation of the "labor-only" contracting law. Two summonses were served,
one sent directly to the ADB and the other through the Department of Foreign Affairs ("DFA"), both with a copy
of the complaint. Forthwith, the ADB and the DFA notified respondent Labor Arbiter that the ADB, as well as its
President and Office, were covered by an immunity from legal process except for borrowings, guaranties or the
sale of securities pursuant to Article 50(1) and Article 55 of the Agreement Establishing the Asian Development
Bank (the "Charter") in relation to Section 5 and Section 44 of the Agreement Between The Bank And The
Government Of The Philippines Regarding The Bank's Headquarters (the "Headquarters Agreement").
The Labor Arbiter took cognizance of the complaint on the impression that the ADB had waived its diplomatic
immunity from suit. In time, the Labor Arbiter rendered his decision, dated 31 August 1993, that concluded:
WHEREFORE, above premises considered, judgment is hereby rendered declaring the
complainant as a regular employee of respondent ADB, and the termination of his services as
illegal. Accordingly, respondent Bank is hereby ordered:
1. To immediately reinstate the complainant to his former position effective September 16,
1993;
2. To pay complainant full backwages from December 1, 1992 to September 15, 1993 in the
amount of P42,750.00 (P4,500.00 x 9 months);
3. And to pay complainants other benefits and without loss of seniority rights and other
privileges and benefits due a regular employee of Asian Development Bank from the time he
was terminated on December 31, 1992;
4. To pay 10% attorney's fees of the total entitlements.


The ADB did not appeal the decision. Instead, on 03 November 1993, the DFA referred the matter to the
National Labor Relations Commission ("NLRC"); in its referral, the DFA sought a "formal vacation of the void
judgment." Replying to the letter, the NLRC Chairman. wrote:
The undersigned submits that the request for the "investigation" of Labor Arbiter Nieves de
Castro, by the National Labor Relations Commission, has been erroneously premised on Art.
218(c) of the Labor Code, as cited in the letter of Secretary Padilla, considering that the
provision deals with "a question, matter or controversy within its (the Commission) jurisdiction"
obviously referring to a labor dispute within the ambit of Art. 217 (on jurisdiction of Labor
Arbiters and the Commission over labor cases).
The procedure, in the adjudication of labor cases, including raising of defenses, is prescribed by
law. The defense of immunity could have been raised before the Labor Arbiter by a special
appearance which, naturally, may not be considered as a waiver of the very defense being
raised. Any decision thereafter is subject to legal remedies, including appeals to the appropriate
5

division of the Commission and/or a petition for certiorari with the Supreme Court, under Rule
65 of the Rules of Court. Except where an appeal is seasonably and properly made, neither the
Commission nor the undersigned may review, or even question, the property of any decision by
a Labor Arbiter. Incidentally, the Commission sits en banc (all fifteen Commissioners) only to
promulgate rules of procedure, or to formulate policies (Art. 213, Labor Code).
On the other hand, while the undersigned exercises "administrative supervision over the
Commission and its regional branches and all its personnel, including the Executive Labor
Arbiters and Labor Arbiters" (penultimate paragraph, Art. 213, Labor Code), he does not have
the competence to investigate or review any decision of a Labor Arbiter. However, on the purely
administrative aspect of the decision-making process, he may cause that an misconduct,
malfeasance or misfeasance, upon complaint properly made.
If the Department of Foreign Affairs feels that the action of Labor Arbiter Nieves de Castro
constitutes misconduct, malfeasance or misfeasance, it is suggested that an appropriate
complaint be lodged with the Office of the Ombudsman.
Thank you for kind attention.
Dissatisfied, the DFA lodged the instant petition for certiorari. In this Court's resolution of 31 January 1994,
respondents were required to comment. Petitioner was later constrained to make an application for a
restraining order and/or writ of preliminary injunction following the issuance, on 16 March 199, by the Labor
Arbiter of a writ of execution. In a resolution, dated 07 April 1994, the Court issued the temporary restraining
order prayed for.
The Office of the Solicitor General ("OSG"), in its comment of 26 May 1994, initially assailed the claim of
immunity by the ADB. Subsequently, however, it submitted a Manifestation (dated 20 June 1994) stating, among
other things, that "after a thorough review of the case and the records," it became convinced that ADB, indeed,
was correct in invoking its immunity from suit under the Charter and the Headquarters Agreement.
The Court is of the same view.
Article 50(1) of the Charter provides:
The Bank shall enjoy immunity from every form of legal process, except in cases arising out of or
in connection with the exercise of its powers to borrow money, to guarantee obligations, or to
buy and sell or underwrite the sale of securities.
Under Article 55 thereof
All Governors, Directors, alternates, officers and employees of the Bank, including experts
performing missions for the Bank:
(1) shall be immune from legal process with respect of acts performed by them in their official
capacity, except when the Bank waives the immunity.
Like provisions are found in the Headquarters Agreement. Thus, its Section 5 reads:
The Bank shall enjoy immunity from every form of legal process, except in cases arising out of,
or in connection with, the exercise of its powers to borrow money, to guarantee obligations, or
to buy and sell or underwrite the sale of securities.
And, with respect to certain officials of the bank, Section 44 of the agreement states:
6

Governors, other representatives of Members, Directors, the president, Vice-President and
executive officers as may be agreed upon between the Government and the Bank shall enjoy,
during their stay in the Republic of the Philippines in connection with their official duties with
the Bank:
xxx xxx xxx
(b) Immunity from legal process of every kind in respect of words spoken or written and all acts
done by them in their official
capacity.
The above stipulations of both the Charter and Headquarters Agreement should be able, may well
enough, to establish that, except in the specified cases of borrowing and guarantee operations, as well
as the purchase, sale and underwriting of securities, the ADB enjoys immunity from legal process of
every form. The Bank's officers, on their part, enjoy immunity in respect of all acts performed by them in
their official capacity. The Charter and the Headquarters Agreement granting these immunities and
privileges are treaty covenants and commitments voluntarily assumed by the Philippines government
which must be respected.
In World Health Organization vs. Aquino. we have declared:
It is a recognized principle of international law and under our system of separation of powers
that diplomatic immunity is essentially a political question and courts should refuse to look
beyond a determination by the executive branch of the government, and where the plea of
diplomatic immunity is recognized and affirmed by the executive branch of the government . . .
it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by
the principal law officer of the government, . . . or other officer acting under his direction.
Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction . . .
as to embarrass the executive arm of the government in conducting foreign relations, it is
accepted doctrine that in "such cases the judicial department of government follows the action
of the political branch and will not embarrass the latter by assuming an antagonistic
jurisdiction."
To the same effect is the decision in International Catholic Migration Commission vs. Calleja,
9
which has
similarly deemed the Memoranda of the Legal Adviser of the Department of Foreign Affairs to be "a categorical
recognition by the Executive Branch of Government that ICMC . . . enjoy(s) immunities accorded to international
organizations" and which determination must be held "conclusive upon the Courts in order not to embarrass a
political department of Government." In the instant case, the filing of the petition by the DFA, in behalf of ADB,
is itself an affirmance of the government's own recognition of ADB's immunity.
Being an international organization that has been extended diplomatic status, the ADB is independent of the
municipal law. In Southeast Asian Fisheries Development Center vs. Acosta.
11
The Court has cited with approval
the opinion of the Minister of justice; thus
One of the basic immunities of an international organization is immunity from local jurisdiction,
i.e., that it is immune from the legal writs and processes issued by the tribunals of the country
where it is found. (See Jenks, Id., pp. 37-44). The obvious reason for this is that the subjection of
such an organization to the authority of the local courts would afford a convenient medium thru
which the host government may interfere in their operations or even influence or control its
policies and decisions of the organization; besides, such subjection to local jurisdiction would
impair the capacity of such body to discharge its responsibilities impartially behalf of its
member-states.
7

Contrary to private respondent's assertion, the claim of immunity is not here being raised for the first time, it
has been invoked before the forum of origin through communications sent by petitioner and the ADB to the
Labor Arbiter, as well as before the NLRC following the rendition of the questioned judgment by the Labor
Arbiter, but evidently to no avail.
In its communication of 27 May 1993, the DFA, through the Office of legal Affairs, has advised the NLRC:
Respectfully returned to the Honorable Domingo B. Mabazza, Labor Arbitration Associate
Commission, National Labor Relations Commission, National Capital Judicial Region, Arbitration
Branch, Associated Bank Bldg., T.M. Kalaw St., Ermita, Manila, the attached Notice of Hearing
addressed to the Asian Development Bank, in connection with the aforestated case, for the
reason stated in the Department's 1st Indoresment dated 23 March 1993, copy attached, which
is self-explanatory.
In view of the fact that the Asian Development Bank (ADB) invokes its immunity which is
sustained by the Department of Foreign Affairs, a continuos hearing of this case erodes the
credibility of the Philippine government before the international community, let alone the
negative implication of such a suit on the official relationship of the Philippine government with
the ADB.
For the Secretary of Foreign Affairs
(Sgd.) SIME D. HIDALGO
Assistant Secretary
The Office of the President, likewise, has issued on 18 May 1993 a letter to the Secretary of Labor, viz
Dear Secretary Confesor,
I am writing to draw your attention to a case filed by a certain Jose C. Magnayi against the Asian
Development Bank and its President, Kimmasa Tarumizu, before the National Labor Relations
Commission, National Capital Region Arbitration Board (NLRC NCR Case No. 00-01690-93).
Last March 8, the Labor Arbiter charged with the case, Ms. Nieves V. de Castro, addressed a
Notice of Resolution/Order to the Bank which brought it to the attention of the Department of
Foreign Affairs on the ground that the service of such notice was in violation of the RP-ADB
Headquarters Agreement which provided, inter alia, for the immunity of the Bank, its President
and officers from every form of legal process, except only, in cases of borrowings, guarantees or
the sale of securities.
The Department of Foreign Affairs, in turn, informed Labor Arbiter Nieves V. de Castro of this
fact by letter dated March 22, copied to you.
Despite this, the labor arbiter in question persited to send summons, the latest dated May 4,
herewith attached, regarding the Magnayi case.
The Supreme Court has long settled the matter of diplomatic immunities. In WHO vs. Aquino,
SCRA 48, it ruled that courts should respect diplomatic immunities of foreign officials recognized
by the Supreme Court forms part of the law of the land.
Perhaps you should point out to Labor Arbiter Nieves V. de Castro that ignorance of the law is a
ground for dismissal.
8

Very truly yours,
(Sgd.) JOSE B. ALEJANDRINO
Chairman, PCC-ADB
Private respondent argues that, by centering into service contracts with different private companies, ADB has
descended to the level of an ordinary party to a commercial transaction giving rise to a waiver of its immunity
from suit. In the case of Holy See vs. Hon. Rosario, Jr.,
16
the Court has held:
There are two conflicting concept of sovereign immunity, each widely held and firmly
established. According to the classical or absolute theory, a sovereign cannot, without its
consent, be made a respondent in the Courts of another sovereign. According to the newer or
restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or
acts jure imperii of a state, but not with regard to private act or acts jure gestionis.
xxx xxx xxx
Certainly, the mere entering into a contract by a foreign state with a private party cannot be the
ultimate test. Such an act can only be the start of the inquiry. The logical question is whether
the foreign state is engaged in the activity in regular course of business. If the foreign state is
not engaged regularly in a business or trade, the particular act or transaction must then be
tested by its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it
is an act jure imperit, especially when it is not undertaken for gain or profit.
The service contracts referred to by private respondent have not been intended by the ADB for profit or
gain but are official acts over which a waiver of immunity would not attack.
With regard to the issue of whether or not the DFA has the legal standing to file the present petition, and
whether or not petitioner has regarded the basic rule that certiorari can be availed of only when there is no
appeal nor plain, speedy and adequate remedy in the ordinary course of law, we hold both in the affirmative.
The DFA's function includes, among its other mandates, the determination of persons and institutions covered
by diplomatic immunities, a determination which, when challenge, entitles it to seek relief from the court so ass
not to seriously impair the conduct of the country's foreign relations. The DFA must be allowed to plead its case
whenever necessary or advisable to enable it to help keep the credibility of the Philippine government before
the international community. When international agreements are concluded, the parties therto are deemed to
have likewise accepted the responsibility of seeing to it that their agreements are duly regarded. In our country,
this task falls principally of the DFA as being the highest executive department with the competence and
authority to so act in this aspect of the international arena. In Holy See vs. Hon. Rosario, Jr.,
19
this Court has
explained the matter in good datail; viz:
In Public International Law, when a state or international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is
sued to convey to the court that said defendant is entitled to immunity.
In the United States, the procedure followed is the process of "suggestion," where the foreign
state or the international organization sued in an American court requests the Secretary of State
to make a determination as to whether it is entitled to immunity. If the Secretary of State finds
that the defendant is immune from suit, he, in turn, asks the attorney General to submit to the
court a "suggestion" that the defendant is entitled to immunity. In England, a similar procedure
is followed, only the Foreign Office issues a certification to the effect instead of submitting a
"suggestion" (O'Connell, In International Law 130 [1965]; Note: Immunity from Suit of Foreign
Sovereign Instrumentalities and Obligations 50 Yale Law Journal 1088 [1941]).
9

In the Philippines, the practice is for the foreign government or the international organization to
first secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how
the Philippine Foreign Office conveys its endorsement to the courts varies. In International
Catholic Migration Commission vs. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs
just sent a letter directly to the Secretary of Labor and Employment, informing the latter that
the respondent-employer could not be sued because it enjoyed diplomatic immunity. In World
Health Organization vs. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the
trial court a telegram to that effect. In Baer vs. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked
the Secretary of Foreign Affairs to request the Solicitor General to make, in behalf of the
Commander of the United States Naval Base at Olongapo City, Zambales, a "suggestion" to
respondent Judge. The Solicitor General embodied the "suggestion" in a manifestation and
memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs
moved with this Court to be allowed to intervene on the side of petitioner. The Court allowed
the said Department to file its memorandum in support of petitioner's claim of sovereign
immunity.
In some cases, the defense of sovereign immunity was submitted directly to the local courts by
the respondents through their private counsels (Raquiza vs. Bradford, 75 Phil. 50 [1945];
Miquiabas vs. Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America vs.
Guinto, 182 SCRA 644 [1990] and companion cases). In cases where the foreign states bypass
the Foreign Office, the courts can in quire into the facts and make their own determination as to
the nature of the acts and transactions involved.
Relative to the property of the extraordinary remedy of certiorari, the Court has, under special circumstances, so
allowed and entertained such a petition when (a) the questioned order or decision is issued in excess of or
without jurisdiction,
21
or (b) where the order or decision is a patent nullity,
22
which, verily, are the
circumstances that can be said to obtain in the present case. When an adjudicator is devoid of jurisdiction on a
matter before him, his action that assumes otherwise would be a clear nullity.
WHEREFORE, the petition for certiorari is GRANTED, and the decision of the Labor Arbiter, dated 31 August 1993
is VACATED, for being NULL AND VOID. The temporary restraining order issued by this Court on 07 April 1994 is
hereby made permanent. No costs.
SO ORDERED.








10

G.R. No. 125865 January 28, 2000
JEFFREY LIANG (HUEFENG), petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for allegedly
uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before the Metropolitan Trial
Court (MeTC) of Mandaluyong City with two counts of grave oral defamation docketed as Criminal Cases Nos.
53170 and 53171. Petitioner was arrested by virtue of a warrant issued by the MeTC. After fixing petitioner's bail
at P2,400.00 per criminal charge, the MeTC released him to the custody of the Security Officer of ADB. The next
day, the MeTC judge received an "office of protocol" from the Department of Foreign Affairs (DFA) stating that
petitioner is covered by immunity from legal process under Section 45 of the Agreement between the ADB and
the Philippine Government regarding the Headquarters of the ADB (hereinafter Agreement) in the country.
Based on the said protocol communication that petitioner is immune from suit, the MeTC judge without notice
to the prosecution dismissed the two criminal cases. The latter filed a motion for reconsideration which was
opposed by the DFA. When its motion was denied, the prosecution filed a petition for certiorari and mandamus
with the Regional Trial Court (RTC) of Pasig City which set aside the MeTC rulings and ordered the latter court to
enforce the warrant of arrest it earlier issued. After the motion for reconsideration was denied, petitioner
elevated the case to this Court via a petition for review arguing that he is covered by immunity under the
Agreement and that no preliminary investigation was held before the criminal cases were filed in court.
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is
covered by any immunity. The DFA's determination that a certain person is covered by immunity is only
preliminary which has no binding effect in courts. In receiving ex-parte the DFA's advice and in motu propio
dismissing the two criminal cases without notice to the prosecution, the latter's right to due process was
violated. It should be noted that due process is a right of the accused as much as it is of the prosecution. The
needed inquiry in what capacity petitioner was acting at the time of the alleged utterances requires for its
resolution evidentiary basis that has yet to be presented at the proper time.
1
At any rate, it has been ruled that
the mere invocation of the immunity clause does not ipso facto result in the dropping of the charges.
Second, under Section 45 of the Agreement which provides:
Officers and staff of the Bank including for the purpose of this Article experts and consultants
performing missions for the Bank shall enjoy the following privileges and immunities:
a.) immunity from legal process with respect to acts performed by them in their official capacity
except when the Bank waives the immunity.
the immunity mentioned therein is not absolute, but subject to the exception that the acts was done in "official
capacity." It is therefore necessary to determine if petitioner's case falls within the ambit of Section 45(a). Thus,
the prosecution should have been given the chance to rebut the DFA protocol and it must be accorded the
opportunity to present its controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by the immunity agreement because our laws do not
allow the commission of a crime, such as defamation, in the name of official duty. The imputation of theft is
ultra vires and cannot be part of official functions. It is well-settled principle of law that a public official may be
liable in his personal private capacity for whatever damage he may have caused by his act done with malice or in
bad faith or beyond the scope of his authority or jurisdiction.
4
It appears that even the government's chief legal
counsel, the Solicitor General, does not support the stand taken by petitioner and that of the DFA.
11

Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner is such,
enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action relating to any
professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official
functions. As already mentioned above, the commission of a crime is not part of official duty.
Finally, on the contention that there was no preliminary investigation conducted, suffice it to say that
preliminary investigation is not a matter of right in cases cognizable by the MeTC such as the one at bar.
6
Being
purely a statutory right, preliminary investigation may be invoked only when specifically granted by law.
7
The
rule on the criminal procedure is clear that no preliminary investigation is required in cases falling within the
jurisdiction of the MeTC.
8
Besides the absence of preliminary investigation does not affect the court's
jurisdiction nor does it impair the validity of the information or otherwise render it defective.
WHEREFORE, the petition is DENIED.
SO ORDERED.



















12

G.R No. 187167 August 16, 2011
PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF. HARRY C. ROQUE, JR.,
AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW STUDENTS, ALITHEA BARBARA ACAS, VOLTAIRE
ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR BARRACA, JOSE JAVIER
BAUTISTA, ROMINA BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN MARRI CAETE, VANN ALLEN DELA
CRUZ, RENE DELORINO, PAULYN MAY DUMAN, SHARON ESCOTO, RODRIGO FAJARDO III, GIRLIE FERRER,
RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA MARIE CECILIA GO, IRISH KAY KALAW, MARY ANN JOY
LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA PINEDA,
WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK FORT REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ
RIVERA IV, CHRISTIAN RIVERO, DIANNE MARIE ROA, NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS,
CRISTINE MAE TABING, VANESSA ANNE TORNO, MARIA ESTER VANGUARDIA, and MARCELINO VELOSO III,
Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, HON. DIONY VENTURA, IN
HIS CAPACITY AS ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE INFORMATION AUTHORITY, and
HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF THE PERMANENT MISSION OF THE
REPUBLIC OF THE PHILIPPINES TO THE UNITED NATIONS, Respondents.
The Case
This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No.
9522
1
(RA 9522) adjusting the countrys archipelagic baselines and classifying the baseline regime of nearby
territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)
2
demarcating the maritime baselines of the
Philippines as an archipelagic State.
3
This law followed the framing of the Convention on the Territorial Sea and
the Contiguous Zone in 1958 (UNCLOS I),
4
codifying, among others, the sovereign right of States parties over
their "territorial sea," the breadth of which, however, was left undetermined. Attempts to fill this void during
the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046
remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA
5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The change
was prompted by the need to make RA 3046 compliant with the terms of the United Nations Convention on the
Law of the Sea (UNCLOS III),
5
which the Philippines ratified on 27 February 1984.
6
Among others, UNCLOS III
prescribes the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines
7
and
sets the deadline for the filing of application for the extended continental shelf.
8
Complying with these
requirements, RA 9522 shortened one baseline, optimized the location of some basepoints around the
Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the
Scarborough Shoal, as "regimes of islands" whose islands generate their own applicable maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective capacities as "citizens, taxpayers
or x x x legislators,"
9
as the case may be, assail the constitutionality of RA 9522 on two principal grounds,
namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine states
sovereign power, in violation of Article 1 of the 1987 Constitution,
10
embodying the terms of the Treaty of Paris
11

and ancillary treaties,
12
and (2) RA 9522 opens the countrys waters landward of the baselines to maritime
passage by all vessels and aircrafts, undermining Philippine sovereignty and national security, contravening the
13

countrys nuclear-free policy, and damaging marine resources, in violation of relevant constitutional
provisions.
13

In addition, petitioners contend that RA 9522s treatment of the KIG as "regime of islands" not only results in the
loss of a large maritime area but also prejudices the livelihood of subsistence fishermen.
14
To buttress their
argument of territorial diminution, petitioners facially attack RA 9522 for what it excluded and included its
failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS IIIs framework of regime of islands
to determine the maritime zones of the KIG and the Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues questioning (1) the petitions
compliance with the case or controversy requirement for judicial review grounded on petitioners alleged lack of
locus standi and (2) the propriety of the writs of certiorari and prohibition to assail the constitutionality of RA
9522. On the merits, respondents defended RA 9522 as the countrys compliance with the terms of UNCLOS III,
preserving Philippine territory over the KIG or Scarborough Shoal. Respondents add that RA 9522 does not
undermine the countrys security, environment and economic interests or relinquish the Philippines claim over
Sabah.
Respondents also question the normative force, under international law, of petitioners assertion that what
Spain ceded to the United States under the Treaty of Paris were the islands and all the waters found within the
boundaries of the rectangular area drawn under the Treaty of Paris.
We left unacted petitioners prayer for an injunctive writ.
The Issues
The petition raises the following issues:
1. Preliminarily
1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies to assail the
constitutionality of RA 9522.
2. On the merits, whether RA 9522 is unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and (2) the
writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On the merits,
we find no basis to declare RA 9522 unconstitutional.
On the Threshold Issues Petitioners Possess Locus Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the
petition alleges neither infringement of legislative prerogative
15
nor misuse of public funds,
16
occasioned by the
passage and implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as citizens with
constitutionally sufficient interest in the resolution of the merits of the case which undoubtedly raises issues of
national significance necessitating urgent resolution. Indeed, owing to the peculiar nature of RA 9522, it is
understandably difficult to find other litigants possessing "a more direct and specific interest" to bring the suit,
thus satisfying one of the requirements for granting citizenship standing.

14

The Writs of Certiorari and Prohibition Are Proper Remedies to Test the Constitutionality of Statutes
In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance of the
offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any showing of grave
abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the part of respondents and
resulting prejudice on the part of petitioners.
Respondents submission holds true in ordinary civil proceedings. When this Court exercises its constitutional
power of judicial review, however, we have, by tradition, viewed the writs of certiorari and prohibition as proper
remedial vehicles to test the constitutionality of statutes, and indeed, of acts of other branches of government.
20

Issues of constitutional import are sometimes crafted out of statutes which, while having no bearing on the
personal interests of the petitioners, carry such relevance in the life of this nation that the Court inevitably finds
itself constrained to take cognizance of the case and pass upon the issues raised, non-compliance with the letter
of procedural rules notwithstanding. The statute sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional RA 9522 is a Statutory Tool to Demarcate the Countrys Maritime Zones and
Continental Shelf Under UNCLOS III, not to Delineate Philippine Territory
Petitioners submit that RA 9522 "dismembers a large portion of the national territory"
21
because it discards the
pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties, successively
encoded in the definition of national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize
that this constitutional definition trumps any treaty or statutory provision denying the Philippines sovereign
control over waters, beyond the territorial sea recognized at the time of the Treaty of Paris, that Spain
supposedly ceded to the United States. Petitioners argue that from the Treaty of Paris technical description,
Philippine sovereignty over territorial waters extends hundreds of nautical miles around the Philippine
archipelago, embracing the rectangular area delineated in the Treaty of Paris.
Petitioners theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating,
among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the
baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical miles
from the baselines]), and continental shelves that UNCLOS III delimits.
23
UNCLOS III was the culmination of
decades-long negotiations among United Nations members to codify norms regulating the conduct of States in
the worlds oceans and submarine areas, recognizing coastal and archipelagic States graduated authority over a
limited span of waters and submarine lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific
basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as
geographic starting points to measure the breadth of the maritime zones and continental shelf. Article 48 of
UNCLOS III on archipelagic States like ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic zone
and the continental shelf. The breadth of the territorial sea, the contiguous zone, the exclusive economic zone
and the continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47.
(Emphasis supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with
precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the
international community of the scope of the maritime space and submarine areas within which States parties
exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the
jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and
15

the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and
continental shelf (Article 77).
Even under petitioners theory that the Philippine territory embraces the islands and all the waters within the
rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be drawn in
accordance with RA 9522 because this is the only way to draw the baselines in conformity with UNCLOS III. The
baselines cannot be drawn from the boundaries or other portions of the rectangular area delineated in the
Treaty of Paris, but from the "outermost islands and drying reefs of the archipelago."
UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim,
diminution of territory. Under traditional international law typology, States acquire (or conversely, lose) territory
through occupation, accretion, cession and prescription, not by executing multilateral treaties on the regulations
of sea-use rights or enacting statutes to comply with the treatys terms to delimit maritime zones and
continental shelves. Territorial claims to land features are outside UNCLOS III, and are instead governed by the
rules on general international law.
RA 9522s Use of the Framework of Regime of Islands to Determine the Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent with the Philippines Claim of Sovereignty Over these Areas
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to draw the baselines,
and to measure the breadth of the applicable maritime zones of the KIG, "weakens our territorial claim" over
that area.
27
Petitioners add that the KIGs (and Scarborough Shoals) exclusion from the Philippine archipelagic
baselines results in the loss of "about 15,000 square nautical miles of territorial waters," prejudicing the
livelihood of subsistence fishermen.
28
A comparison of the configuration of the baselines drawn under RA 3046
and RA 9522 and the extent of maritime space encompassed by each law, coupled with a reading of the text of
RA 9522 and its congressional deliberations, vis--vis the Philippines obligations under UNCLOS III, belie this
view.1avvphi1
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the
basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the location
of basepoints and adjust the length of one baseline (and thus comply with UNCLOS IIIs limitation on the
maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside
of the baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes the wind out
of petitioners argument branding RA 9522 as a statutory renunciation of the Philippines claim over the KIG,
assuming that baselines are relevant for this purpose.
Petitioners assertion of loss of "about 15,000 square nautical miles of territorial waters" under RA 9522 is
similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of basepoints,
increased the Philippines total maritime space (covering its internal waters, territorial sea and exclusive
economic zone) by 145,216 square nautical miles, as shown in the table below:

Extent of
maritime area
using RA 3046, as
amended, taking
into account the
Treaty of Paris
delimitation (in
square nautical
miles)
Extent of
maritime area
using RA 9522,
taking into
account UNCLOS
III (in square
nautical miles)
Internal or
archipelagic 166,858 171,435
16

waters
Territorial Sea 274,136 32,106
Exclusive
Economic
Zone 382,669
TOTAL 440,994 586,210
Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even extends
way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of course, where
there are overlapping exclusive economic zones of opposite or adjacent States, there will have to be a
delineation of maritime boundaries in accordance with UNCLOS III.

Further, petitioners argument that the KIG now lies outside Philippine territory because the baselines that RA
9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the
Philippines continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty and
jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines consistent with
Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago,
adverse legal effects would have ensued. The Philippines would have committed a breach of two provisions of
UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such baselines shall not depart to
any appreciable extent from the general configuration of the archipelago." Second, Article 47 (2) of UNCLOS III
requires that "the length of the baselines shall not exceed 100 nautical miles," save for three per cent (3%) of
the total number of baselines which can reach up to 125 nautical miles.
17

Although the Philippines has consistently claimed sovereignty over the KIG
32
and the Scarborough Shoal for
several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the
Philippine archipelago,
33
such that any straight baseline loped around them from the nearest basepoint will
inevitably "depart to an appreciable extent from the general configuration of the archipelago."
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to emphasize the
foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the Scarborough
Shoal are outside our archipelagic baseline because if we put them inside our baselines we might be accused of
violating the provision of international law which states: "The drawing of such baseline shall not depart to any
appreciable extent from the general configuration of the archipelago." So sa loob ng ating baseline, dapat
magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa atin
although we are still allowed by international law to claim them as our own.
This is called contested islands outside our configuration. We see that our archipelago is defined by the orange
line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is
Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa ating
archipelago kaya kung ilihis pa natin ang dating archipelagic baselines para lamang masama itong dalawang
circles, hindi na sila magkalapit at baka hindi na tatanggapin ng United Nations because of the rule that it should
follow the natural configuration of the archipelago. (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits.1avvphi1 The need to
shorten this baseline, and in addition, to optimize the location of basepoints using current maps, became
imperative as discussed by respondents:
[T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of its
maritime zones including the extended continental shelf in the manner provided by Article 47 of [UNCLOS III]. As
defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point) is
140.06 nautical miles x x x. This exceeds the maximum length allowed under Article 47(2) of the
[UNCLOS III], which states that "The length of such baselines shall not exceed 100 nautical miles, except
that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length,
up to a maximum length of 125 nautical miles."
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted from the
baselines system. This will enclose an additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not established by geodetic
survey methods. Accordingly, some of the points, particularly along the west coasts of Luzon down to
Palawan were later found to be located either inland or on water, not on low-water line and drying reefs
as prescribed by Article 47.
Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal, Congress decision
to classify the KIG and the Scarborough Shoal as "Regime*s+ of Islands under the Republic of the Philippines
consistent with Article 121"
36
of UNCLOS III manifests the Philippine States responsible observance of its pacta
sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any "naturally formed area of land,
surrounded by water, which is above water at high tide," such as portions of the KIG, qualifies under the
category of "regime of islands," whose islands generate their own applicable maritime zones.
Statutory Claim Over Sabah under RA 5446 Retained
18

Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines claim over Sabah in
North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for
drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this
Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah,
situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty.
(Emphasis supplied)
UNCLOS III and RA 9522 not Incompatible with the Constitutions Delineation of Internal Waters
As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally
"converts" internal waters into archipelagic waters, hence subjecting these waters to the right of innocent and
sea lanes passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage rights
indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in violation of the
Constitution.
38

Whether referred to as Philippine "internal waters" under Article I of the Constitution
39
or as "archipelagic
waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying
landward of the baselines, including the air space over it and the submarine areas underneath. UNCLOS III
affirms this:
Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and
subsoil.
1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic
baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their
depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and
subsoil, and the resources contained therein.
x x x x
4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect
the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State
of its sovereignty over such waters and their air space, bed and subsoil, and the resources contained
therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal and international law norms
subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of
maintaining unimpeded, expeditious international navigation, consistent with the international law principle of
freedom of navigation. Thus, domestically, the political branches of the Philippine government, in the
competent discharge of their constitutional powers, may pass legislation designating routes within the
archipelagic waters to regulate innocent and sea lanes passage.
40
Indeed, bills drawing nautical highways for sea
lanes passage are now pending in Congress.
In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant
innocent passage rights over the territorial sea or archipelagic waters, subject to the treatys limitations and
conditions for their exercise.
42
Significantly, the right of innocent passage is a customary international law,
43
thus
automatically incorporated in the corpus of Philippine law. No modern State can validly invoke its sovereignty to
absolutely forbid innocent passage that is exercised in accordance with customary international law without
risking retaliatory measures from the international community.
19

The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage
and sea lanes passage
45
does not place them in lesser footing vis--vis continental coastal States which are
subject, in their territorial sea, to the right of innocent passage and the right of transit passage through
international straits. The imposition of these passage rights through archipelagic waters under UNCLOS III was a
concession by archipelagic States, in exchange for their right to claim all the waters landward of their baselines,
regardless of their depth or distance from the coast, as archipelagic waters subject to their territorial
sovereignty. More importantly, the recognition of archipelagic States archipelago and the waters enclosed by
their baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS
III.
46
Separate islands generate their own maritime zones, placing the waters between islands separated by more
than 24 nautical miles beyond the States territorial sovereignty, subjecting these waters to the rights of other
States under UNCLOS III.
Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of Principles and State
Policies)
48
must also fail. Our present state of jurisprudence considers the provisions in Article II as mere
legislative guides, which, absent enabling legislation, "do not embody judicially enforceable constitutional rights
x x x."
49
Article II provisions serve as guides in formulating and interpreting implementing legislation, as well as in
interpreting executory provisions of the Constitution. Although Oposa v. Factoran treated the right to a healthful
and balanced ecology under Section 16 of Article II as an exception, the present petition lacks factual basis to
substantiate the claimed constitutional violation. The other provisions petitioners cite, relating to the protection
of marine wealth (Article XII, Section 2, paragraph 2) and subsistence fishermen (Article XIII, Section 7 ), are not
violated by RA 9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone,
reserving solely to the Philippines the exploitation of all living and non-living resources within such zone. Such a
maritime delineation binds the international community since the delineation is in strict observance of UNCLOS
III. If the maritime delineation is contrary to UNCLOS III, the international community will of course reject it and
will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui generis maritime
space the exclusive economic zone in waters previously part of the high seas. UNCLOS III grants new rights to
coastal States to exclusively exploit the resources found within this zone up to 200 nautical miles.
53
UNCLOS III,
however, preserves the traditional freedom of navigation of other States that attached to this zone beyond the
territorial sea before UNCLOS III.
RA 9522 and the Philippines Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound to pass RA
9522.
54
We have looked at the relevant provision of UNCLOS III
55
and we find petitioners reading plausible.
Nevertheless, the prerogative of choosing this option belongs to Congress, not to this Court. Moreover, the
luxury of choosing this option comes at a very steep price. Absent an UNCLOS III compliant baselines law, an
archipelagic State like the Philippines will find itself devoid of internationally acceptable baselines from where
the breadth of its maritime zones and continental shelf is measured. This is recipe for a two-fronted disaster:
first, it sends an open invitation to the seafaring powers to freely enter and exploit the resources in the waters
and submarine areas around our archipelago; and second, it weakens the countrys case in any international
dispute over Philippine maritime space. These are consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas, as
embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the Philippines
maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines in
safeguarding its maritime zones, consistent with the Constitution and our national interest.
WHEREFORE, we DISMISS the petition. SO ORDERED.
20

G.R. No. 85750 September 28, 1990
INTERNATIONAL CATHOLIC IMMIGRATION COMMISSION, petitioner
vs
HON. PURA CALLEJA IN HER CAPACITY AS DIRECTOR OF THE BUREAU OF LABOR RELATIONS AND TRADE
UNIONS OF THE PHILIPPINES AND ALLIED SERVICES (TUPAS) WFTU respondents.
G.R. No. 89331 September 28, 1990
KAPISANAN NG MANGGAGAWA AT TAC SA IRRI-ORGANIZED LABOR ASSOCIATION IN LINE INDUSTRIES AND
AGRICULTURE, petitioner,
vs
SECRETARY OF LABOR AND EMPLOYMENT AND INTERNATIONAL RICE RESEARCH INSTITUTE, INC.,
respondents.
Consolidated on 11 December 1989, these two cases involve the validity of the claim of immunity by the
International Catholic Migration Commission (ICMC) and the International Rice Research Institute, Inc. (IRRI)
from the application of Philippine labor laws.
I. Facts and Issues
A. G.R. No. 85750 the International Catholic Migration Commission (ICMC) Case.
As an aftermath of the Vietnam War, the plight of Vietnamese refugees fleeing from South Vietnam's
communist rule confronted the international community.
In response to this crisis, on 23 February 1981, an Agreement was forged between the Philippine Government
and the United Nations High Commissioner for Refugees whereby an operating center for processing Indo-
Chinese refugees for eventual resettlement to other countries was to be established in Bataan (Annex "A", Rollo,
pp. 22-32).
ICMC was one of those accredited by the Philippine Government to operate the refugee processing center in
Morong, Bataan. It was incorporated in New York, USA, at the request of the Holy See, as a non-profit agency
involved in international humanitarian and voluntary work. It is duly registered with the United Nations
Economic and Social Council (ECOSOC) and enjoys Consultative Status, Category II. As an international
organization rendering voluntary and humanitarian services in the Philippines, its activities are parallel to those
of the International Committee for Migration (ICM) and the International Committee of the Red Cross (ICRC)
[DOLE Records of BLR Case No. A-2-62-87, ICMC v. Calleja, Vol. 1].
On 14 July 1986, Trade Unions of the Philippines and Allied Services (TUPAS) filed with the then Ministry of
Labor and Employment a Petition for Certification Election among the rank and file members employed by ICMC
The latter opposed the petition on the ground that it is an international organization registered with the United
Nations and, hence, enjoys diplomatic immunity.
On 5 February 1987, Med-Arbiter Anastacio L. Bactin sustained ICMC and dismissed the petition for lack of
jurisdiction.
On appeal by TUPAS, Director Pura Calleja of the Bureau of Labor Relations (BLR), reversed the Med-Arbiter's
Decision and ordered the immediate conduct of a certification election. At that time, ICMC's request for
recognition as a specialized agency was still pending with the Department of Foreign Affairs (DEFORAF).
21

Subsequently, however, on 15 July 1988, the Philippine Government, through the DEFORAF, granted ICMC the
status of a specialized agency with corresponding diplomatic privileges and immunities, as evidenced by a
Memorandum of Agreement between the Government and ICMC (Annex "E", Petition, Rollo, pp. 41-43), infra.
ICMC then sought the immediate dismissal of the TUPAS Petition for Certification Election invoking the immunity
expressly granted but the same was denied by respondent BLR Director who, again, ordered the immediate
conduct of a pre-election conference. ICMC's two Motions for Reconsideration were denied despite an opinion
rendered by DEFORAF on 17 October 1988 that said BLR Order violated ICMC's diplomatic immunity.
Thus, on 24 November 1988, ICMC filed the present Petition for Certiorari with Preliminary Injunction assailing
the BLR Order.
On 28 November 1988, the Court issued a Temporary Restraining Order enjoining the holding of the certification
election.
On 10 January 1989, the DEFORAF, through its Legal Adviser, retired Justice Jorge C. Coquia of the Court of
Appeals, filed a Motion for Intervention alleging that, as the highest executive department with the competence
and authority to act on matters involving diplomatic immunity and privileges, and tasked with the conduct of
Philippine diplomatic and consular relations with foreign governments and UN organizations, it has a legal
interest in the outcome of this case.
Over the opposition of the Solicitor General, the Court allowed DEFORAF intervention.
On 12 July 1989, the Second Division gave due course to the ICMC Petition and required the submittal of
memoranda by the parties, which has been complied with.
As initially stated, the issue is whether or not the grant of diplomatic privileges and immunites to ICMC extends
to immunity from the application of Philippine labor laws.
ICMC sustains the affirmative of the proposition citing (1) its Memorandum of Agreement with the Philippine
Government giving it the status of a specialized agency, (infra); (2) the Convention on the Privileges and
Immunities of Specialized Agencies, adopted by the UN General Assembly on 21 November 1947 and concurred
in by the Philippine Senate through Resolution No. 91 on 17 May 1949 (the Philippine Instrument of Ratification
was signed by the President on 30 August 1949 and deposited with the UN on 20 March 1950) infra; and (3)
Article II, Section 2 of the 1987 Constitution, which declares that the Philippines adopts the generally accepted
principles of international law as part of the law of the land.
Intervenor DEFORAF upholds ICMC'S claim of diplomatic immunity and seeks an affirmance of the DEFORAF
determination that the BLR Order for a certification election among the ICMC employees is violative of the
diplomatic immunity of said organization.
Respondent BLR Director, on the other hand, with whom the Solicitor General agrees, cites State policy and
Philippine labor laws to justify its assailed Order, particularly, Article II, Section 18 and Article III, Section 8 of the
1987 Constitution, infra; and Articles 243 and 246 of the Labor Code, as amended, ibid. In addition, she contends
that a certification election is not a litigation but a mere investigation of a non-adversary, fact-finding character.
It is not a suit against ICMC its property, funds or assets, but is the sole concern of the workers themselves.
B. G.R. No. 89331 (The International Rice Research Institute [IRRI] Case).
Before a Decision could be rendered in the ICMC Case, the Third Division, on 11 December 1989, resolved to
consolidate G.R. No. 89331 pending before it with G.R. No. 85750, the lower-numbered case pending with the
Second Division, upon manifestation by the Solicitor General that both cases involve similar issues.
22

The facts disclose that on 9 December 1959, the Philippine Government and the Ford and Rockefeller
Foundations signed a Memorandum of Understanding establishing the International Rice Research Institute
(IRRI) at Los Baos, Laguna. It was intended to be an autonomous, philanthropic, tax-free, non-profit, non-stock
organization designed to carry out the principal objective of conducting "basic research on the rice plant, on all
phases of rice production, management, distribution and utilization with a view to attaining nutritive and
economic advantage or benefit for the people of Asia and other major rice-growing areas through improvement
in quality and quantity of rice."
Initially, IRRI was organized and registered with the Securities and Exchange Commission as a private
corporation subject to all laws and regulations. However, by virtue of Pres. Decree No. 1620, promulgated on 19
April 1979, IRRI was granted the status, prerogatives, privileges and immunities of an international organization.
The Organized Labor Association in Line Industries and Agriculture (OLALIA), is a legitimate labor organization
with an existing local union, the Kapisanan ng Manggagawa at TAC sa IRRI (Kapisanan, for short) in respondent
IRRI.
On 20 April 1987, the Kapisanan filed a Petition for Direct Certification Election with Region IV, Regional Office of
the Department of Labor and Employment (DOLE).
IRRI opposed the petition invoking Pres. Decree No. 1620 conferring upon it the status of an international
organization and granting it immunity from all civil, criminal and administrative proceedings under Philippine
laws.
On 7 July 1987, Med-Arbiter Leonardo M. Garcia, upheld the opposition on the basis of Pres. Decree No. 1620
and dismissed the Petition for Direct Certification.
On appeal, the BLR Director, who is the public respondent in the ICMC Case, set aside the Med-Arbiter's Order
and authorized the calling of a certification election among the rank-and-file employees of IRRI. Said Director
relied on Article 243 of the Labor Code, as amended, infra and Article XIII, Section 3 of the 1987 Constitution,
1

and held that "the immunities and privileges granted to IRRI do not include exemption from coverage of our
Labor Laws." Reconsideration sought by IRRI was denied.
On appeal, the Secretary of Labor, in a Resolution of 5 July 1989, set aside the BLR Director's Order, dismissed
the Petition for Certification Election, and held that the grant of specialized agency status by the Philippine
Government to the IRRI bars DOLE from assuming and exercising jurisdiction over IRRI Said Resolution reads in
part as follows:
Presidential Decree No. 1620 which grants to the IRRI the status, prerogatives, privileges and
immunities of an international organization is clear and explicit. It provides in categorical terms
that:
Art. 3 The Institute shall enjoy immunity from any penal, civil and administrative proceedings,
except insofar as immunity has been expressly waived by the Director-General of the Institution
or his authorized representative.
Verily, unless and until the Institute expressly waives its immunity, no summons, subpoena,
orders, decisions or proceedings ordered by any court or administrative or quasi-judicial agency
are enforceable as against the Institute. In the case at bar there was no such waiver made by the
Director-General of the Institute. Indeed, the Institute, at the very first opportunity already
vehemently questioned the jurisdiction of this Department by filing an ex-parte motion to
dismiss the case.
23

Hence, the present Petition for Certiorari filed by Kapisanan alleging grave abuse of discretion by respondent
Secretary of Labor in upholding IRRI's diplomatic immunity.
The Third Division, to which the case was originally assigned, required the respondents to comment on the
petition. In a Manifestation filed on 4 August 1990, the Secretary of Labor declared that it was "not adopting as
his own" the decision of the BLR Director in the ICMC Case as well as the Comment of the Solicitor General
sustaining said Director. The last pleading was filed by IRRI on 14 August 1990.
Instead of a Comment, the Solicitor General filed a Manifestation and Motion praying that he be excused from
filing a comment "it appearing that in the earlier case of International Catholic Migration Commission v. Hon.
Pura Calleja, G.R. No. 85750. the Office of the Solicitor General had sustained the stand of Director Calleja on
the very same issue now before it, which position has been superseded by respondent Secretary of Labor in G.R.
No. 89331," the present case. The Court acceded to the Solicitor General's prayer.
The Court is now asked to rule upon whether or not the Secretary of Labor committed grave abuse of discretion
in dismissing the Petition for Certification Election filed by Kapisanan.
Kapisanan contends that Article 3 of Pres. Decree No. 1620 granting IRRI the status, privileges, prerogatives and
immunities of an international organization, invoked by the Secretary of Labor, is unconstitutional in so far as it
deprives the Filipino workers of their fundamental and constitutional right to form trade unions for the purpose
of collective bargaining as enshrined in the 1987 Constitution.
A procedural issue is also raised. Kapisanan faults respondent Secretary of Labor for entertaining IRRI'S appeal
from the Order of the Director of the Bureau of Labor Relations directing the holding of a certification election.
Kapisanan contends that pursuant to Sections 7, 8, 9 and 10 of Rule V
2
of the Omnibus Rules Implementing the
Labor Code, the Order of the BLR Director had become final and unappeable and that, therefore, the Secretary
of Labor had no more jurisdiction over the said appeal.
On the other hand, in entertaining the appeal, the Secretary of Labor relied on Section 25 of Rep. Act. No. 6715,
which took effect on 21 March 1989, providing for the direct filing of appeal from the Med-Arbiter to the Office
of the Secretary of Labor and Employment instead of to the Director of the Bureau of Labor Relations in cases
involving certification election orders.
III. Findings in Both Cases.
There can be no question that diplomatic immunity has, in fact, been granted ICMC and IRRI.
Article II of the Memorandum of Agreement between the Philippine Government and ICMC provides that ICMC
shall have a status "similar to that of a specialized agency." Article III, Sections 4 and 5 of the Convention on the
Privileges and Immunities of Specialized Agencies, adopted by the UN General Assembly on 21 November 1947
and concurred in by the Philippine Senate through Resolution No. 19 on 17 May 1949, explicitly provides:
Art. III, Section 4. The specialized agencies, their property and assets, wherever located and by
whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any
particular case they have expressly waived their immunity. It is, however, understood that no
waiver of immunity shall extend to any measure of execution.
Sec. 5. The premises of the specialized agencies shall be inviolable. The property and assets of
the specialized agencies, wherever located and by whomsoever held shall be immune from
search, requisition, confiscation, expropriation and any other form of interference, whether by
executive, administrative, judicial or legislative action. (Emphasis supplied).
IRRI is similarly situated, Pres. Decree No. 1620, Article 3, is explicit in its grant of immunity, thus:
24

Art. 3. Immunity from Legal Process. The Institute shall enjoy immunity from any penal, civil
and administrative proceedings, except insofar as that immunity has been expressly waived by
the Director-General of the Institute or his authorized representatives.
Thus it is that the DEFORAF, through its Legal Adviser, sustained ICMC'S invocation of immunity when in a
Memorandum, dated 17 October 1988, it expressed the view that "the Order of the Director of the Bureau of
Labor Relations dated 21 September 1988 for the conduct of Certification Election within ICMC violates the
diplomatic immunity of the organization." Similarly, in respect of IRRI, the DEFORAF speaking through The Acting
Secretary of Foreign Affairs, Jose D. Ingles, in a letter, dated 17 June 1987, to the Secretary of Labor, maintained
that "IRRI enjoys immunity from the jurisdiction of DOLE in this particular instance."
The foregoing opinions constitute a categorical recognition by the Executive Branch of the Government that
ICMC and IRRI enjoy immunities accorded to international organizations, which determination has been held to
be a political question conclusive upon the Courts in order not to embarrass a political department of
Government.
It is a recognized principle of international law and under our system of separation of powers
that diplomatic immunity is essentially a political question and courts should refuse to look
beyond a determination by the executive branch of the government, and where the plea of
diplomatic immunity is recognized and affirmed by the executive branch of the government as
in the case at bar, it is then the duty of the courts to accept the claim of immunity upon
appropriate suggestion by the principal law officer of the government . . . or other officer acting
under his direction. Hence, in adherence to the settled principle that courts may not so exercise
their jurisdiction . . . as to embarrass the executive arm of the government in conducting foreign
relations, it is accepted doctrine that in such cases the judicial department of (this) government
follows the action of the political branch and will not embarrass the latter by assuming an
antagonistic jurisdiction.
A brief look into the nature of international organizations and specialized agencies is in order. The term
"international organization" is generally used to describe an organization set up by agreement between two or
more states. Under contemporary international law, such organizations are endowed with some degree of
international legal personality

such that they are capable of exercising specific rights, duties and powers. They
are organized mainly as a means for conducting general international business in which the member states have
an interest. The United Nations, for instance, is an international organization dedicated to the propagation of
world peace.
"Specialized agencies" are international organizations having functions in particular fields. The term appears in
Articles 57 and 63 of the Charter of the United Nations:
The Charter, while it invests the United Nations with the general task of promoting progress and
international cooperation in economic, social, health, cultural, educational and related matters,
contemplates that these tasks will be mainly fulfilled not by organs of the United Nations itself
but by autonomous international organizations established by inter-governmental agreements
outside the United Nations. There are now many such international agencies having functions in
many different fields, e.g. in posts, telecommunications, railways, canals, rivers, sea transport,
civil aviation, meteorology, atomic energy, finance, trade, education and culture, health and
refugees. Some are virtually world-wide in their membership, some are regional or otherwise
limited in their membership. The Charter provides that those agencies which have "wide
international responsibilities" are to be brought into relationship with the United Nations by
agreements entered into between them and the Economic and Social Council, are then to be
known as "specialized agencies."
25

The rapid growth of international organizations under contemporary international law has paved the way for the
development of the concept of international immunities.
It is now usual for the constitutions of international organizations to contain provisions
conferring certain immunities on the organizations themselves, representatives of their member
states and persons acting on behalf of the organizations. A series of conventions, agreements
and protocols defining the immunities of various international organizations in relation to their
members generally are now widely in force; . . .
There are basically three propositions underlying the grant of international immunities to international
organizations. These principles, contained in the ILO Memorandum are stated thus: 1) international institutions
should have a status which protects them against control or interference by any one government in the
performance of functions for the effective discharge of which they are responsible to democratically constituted
international bodies in which all the nations concerned are represented; 2) no country should derive any
national financial advantage by levying fiscal charges on common international funds; and 3) the international
organization should, as a collectivity of States members, be accorded the facilities for the conduct of its official
business customarily extended to each other by its individual member States. The theory behind all three
propositions is said to be essentially institutional in character. "It is not concerned with the status, dignity or
privileges of individuals, but with the elements of functional independence necessary to free international
institutions from national control and to enable them to discharge their responsibilities impartially on behalf of
all their members. The raison d'etre for these immunities is the assurance of unimpeded performance of their
functions by the agencies concerned.
The grant of immunity from local jurisdiction to ICMC and IRRI is clearly necessitated by their international
character and respective purposes. The objective is to avoid the danger of partiality and interference by the host
country in their internal workings. The exercise of jurisdiction by the Department of Labor in these instances
would defeat the very purpose of immunity, which is to shield the affairs of international organizations, in
accordance with international practice, from political pressure or control by the host country to the prejudice of
member States of the organization, and to ensure the unhampered performance of their functions.
ICMC's and IRRI's immunity from local jurisdiction by no means deprives labor of its basic rights, which are
guaranteed by Article II, Section 18, Article III, Section 8, and Article XIII, Section 3 (supra), of the 1987
Constitution; and implemented by Articles 243 and 246 of the Labor Code,
16
relied on by the BLR Director and
by Kapisanan.
For, ICMC employees are not without recourse whenever there are disputes to be settled. Section 31 of the
Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations provides that
"each specialized agency shall make provision for appropriate modes of settlement of: (a) disputes arising out of
contracts or other disputes of private character to which the specialized agency is a party." Moreover, pursuant
to Article IV of the Memorandum of Agreement between ICMC the the Philippine Government, whenever there
is any abuse of privilege by ICMC, the Government is free to withdraw the privileges and immunities accorded.
Thus:
Art. IV. Cooperation with Government Authorities. 1. The Commission shall cooperate at all
times with the appropriate authorities of the Government to ensure the observance of
Philippine laws, rules and regulations, facilitate the proper administration of justice and prevent
the occurrences of any abuse of the privileges and immunities granted its officials and alien
employees in Article III of this Agreement to the Commission.
2. In the event that the Government determines that there has been an abuse of the privileges
and immunities granted under this Agreement, consultations shall be held between the
Government and the Commission to determine whether any such abuse has occurred and, if so,
26

the Government shall withdraw the privileges and immunities granted the Commission and its
officials.
Neither are the employees of IRRI without remedy in case of dispute with management as, in fact, there had
been organized a forum for better management-employee relationship as evidenced by the formation of the
Council of IRRI Employees and Management (CIEM) wherein "both management and employees were and still
are represented for purposes of maintaining mutual and beneficial cooperation between IRRI and its
employees." The existence of this Union factually and tellingly belies the argument that Pres. Decree No. 1620,
which grants to IRRI the status, privileges and immunities of an international organization, deprives its
employees of the right to self-organization.
The immunity granted being "from every form of legal process except in so far as in any particular case they
have expressly waived their immunity," it is inaccurate to state that a certification election is beyond the scope
of that immunity for the reason that it is not a suit against ICMC. A certification election cannot be viewed as an
independent or isolated process. It could tugger off a series of events in the collective bargaining process
together with related incidents and/or concerted activities, which could inevitably involve ICMC in the "legal
process," which includes "any penal, civil and administrative proceedings." The eventuality of Court litigation is
neither remote and from which international organizations are precisely shielded to safeguard them from the
disruption of their functions. Clauses on jurisdictional immunity are said to be standard provisions in the
constitutions of international Organizations. "The immunity covers the organization concerned, its property and
its assets. It is equally applicable to proceedings in personam and proceedings in rem."
We take note of a Manifestation, dated 28 September 1989, in the ICMC Case (p. 161, Rollo), wherein TUPAS
calls attention to the case entitled "International Catholic Migration Commission v. NLRC, et als., (G.R. No.
72222, 30 January 1989, 169 SCRA 606), and claims that, having taken cognizance of that dispute (on the issue of
payment of salary for the unexpired portion of a six-month probationary employment), the Court is now
estopped from passing upon the question of DOLE jurisdiction petition over ICMC.
We find no merit to said submission. Not only did the facts of said controversy occur between 1983-1985, or
before the grant to ICMC on 15 July 1988 of the status of a specialized agency with corresponding immunities,
but also because ICMC in that case did not invoke its immunity and, therefore, may be deemed to have waived
it, assuming that during that period (1983-1985) it was tacitly recognized as enjoying such immunity.
Anent the procedural issue raised in the IRRI Case, suffice it to state that the Decision of the BLR Director, dated
15 February 1989, had not become final because of a Motion for Reconsideration filed by IRRI Said Motion was
acted upon only on 30 March 1989 when Rep. Act No. 6715, which provides for direct appeals from the Orders
of the Med-Arbiter to the Secretary of Labor in certification election cases either from the order or the results of
the election itself, was already in effect, specifically since 21 March 1989. Hence, no grave abuse of discretion
may be imputed to respondent Secretary of Labor in his assumption of appellate jurisdiction, contrary to
Kapisanan's allegations. The pertinent portion of that law provides:
Art. 259. Any party to an election may appeal the order or results of the election as
determined by the Med-Arbiter directly to the Secretary of Labor and Employment on the
ground that the rules and regulations or parts thereof established by the Secretary of Labor and
Employment for the conduct of the election have been violated. Such appeal shall be decided
within 15 calendar days (Emphasis supplied).
En passant, the Court is gratified to note that the heretofore antagonistic positions assumed by two
departments of the executive branch of government have been rectified and the resultant embarrassment to
the Philippine Government in the eyes of the international community now, hopefully, effaced.
27

WHEREFORE, in G.R. No. 85750 (the ICMC Case), the Petition is GRANTED, the Order of the Bureau of Labor
Relations for certification election is SET ASIDE, and the Temporary Restraining Order earlier issued is made
PERMANENT.
In G.R. No. 89331 (the IRRI Case), the Petition is Dismissed, no grave abuse of discretion having been committed
by the Secretary of Labor and Employment in dismissing the Petition for Certification Election.
No pronouncement as to costs.
SO ORDERED.






















28

G.R. Nos. 97468-70 September 2, 1993
SOUTHEAST ASIAN FISHERIES DEVELOPMENT CENTER represented by its Chief, DR. FLOR J. LACANILAO,
petitioner,
vs.
DANILO ACOSTA in his capacity as Labor Arbiter of the National Labor Relations Commission, Regional
Arbitration, Branch VI, CORAZON CANTO, DAN BALIAO, ELIZABETH SUPETRAN, CARMELITA FERRER, CATHRYN
CONTRADOR, and DORIC VELOSO, respondents.
This is an original petition for certiorari and prohibition, with a prayer for the issuance of a restraining order, to
set aside the order of respondent labor arbiter, dated 20 September 1990, denying herein petitioner's motion to
dismiss the cases subject matter of the petition for lack of jurisdiction.
Two labor cases, docketed as RAB Case No. VI- 0156-86 and RAB case No. VI - 0214-86, were filed by the herein
private respondents against the petitioner, Southeast Asian Fisheries Development Center (SEAFDEC), before
the National Labor Relations Commission (NLRC), Regional Arbitration Branch, Iloilo City. In these cases, the
private respondents claim having been wrongfully terminated from their employment by the petitioner.
On 22 August 1990, the petitioner, contending to be an international inter-government organization, composed
of various Southeast Asian countries, filed a Motion to Dismiss, challenging the jurisdiction of the public
respondent in taking cognizance of the above cases.
On 20 September 1990, the public respondent issued the assailed order denying the Motion to Dismiss. In due
course, a Motion for Reconsideration was interposed but the same, in an order, dated 07 January 1991, was
likewise denied.
Hence, the instant petition. This Court, on 20 March 1991, issued the temporary restraining order prayed for.
The private respondents, as well as respondent labor arbiter, allege that the petitioner is not immune from suit
and assuming that if, indeed, it is an international organization, it has, however, impliedly, if not expressly,
waived its immunity by belatedly raising the issue of jurisdiction.
The Solicitor General, on his part, filed a Manifestation and Motion, which the Court granted, praying that he be
excused from filing his comment for respondent Labor Arbiter, he not being in agreement with the latter's
position on this matter.
On 30 March 1992, this Court dismissed the instant petition in a resolution which reads:
. . . Considering the allegations, issues and arguments adduced in the petition for certiorari as
well as the separate comments thereon of the public and private respondents, and the
consolidated reply thereto of the petitioner, the Court RESOLVED to dismiss the petition for
failure to sufficiently show that the questioned judgment is tainted with grave abuse of
discretion. The temporary restraining order issued on March 20, 1991 is hereby LIFTED effective
immediately.
In time, the petitioner moved for a reconsideration, arguing that the ground for its seeking the allowance of the
petition is the labor arbiter's lack of jurisdiction over the dispute.
The court is now asked to rule upon the motion for reconsideration.
We rule for the petitioner.
29

It is beyond question that petitioner SEAFDEC is an international agency enjoying diplomatic immunity. This, we
have already held in Southeast Asian Fisheries Development Center-Aquaculture Department vs. National Labor
Relations Commission, G.R. No. 86773, 206 SCRA 283/1992; see also Lacanilao v. de Leon, G.R. No. 76532, 147
SCRA, 286/1987/, where we
said
Petitioner Southeast Asian Fisheries Development Center-Aquaculture Department (SEAFDEC-
AQD) is an international agency beyond the jurisdiction of public respondent NLRC.
It was established by the Governments of Burma, Kingdom of Cambodia, Republic of Indonesia,
Japan, Kingdom of Laos, Malaysia, Republic of the Philippines, Republic of Singapore, Kingdom
of Thailand and Republic of Vietnam . . . .
The Republic of the Philippines became a signatory to the Agreement establishing SEAFDEC on
January 16, 1968. Its purpose is as follows:
The purpose of the Center is to contribute to the promotion of the fisheries
development in Southeast Asia by mutual co-operation among the member
governments of the Center, hereinafter called the 'Members', and through
collaboration with international organizations and governments external to the
Center.
(Agreement Establishing the SEAFDEC, Art. 1; . . .).
SEAFDEC-AQD was organized during the Sixth Council Meeting of SEAFDEC on July 3-7, 1973 in
Kuala Lumpur, Malaysia as one of the principal departments of SEAFDEC. . . . to be established in
Iloilo for the promotion of research in aquaculture. Paragraph 1, Article 6 of the Agreement
establishing mandates:
1. The Council shall be the supreme organ of the Center and all powers of the
Center shall be vested in the Council.
Being an intergovernmental organization, SEAFDEC including its Departments (AQD), enjoys
functional independence and freedom from control of the state in whose territory its office is
located.
As Senator Jovito R. Salonga and Former Chief Justice Pedro L. Yap stated in their book, Public
International Law (p. 83,1956 ed.):
Permanent international commissions and administrative bodies have been
created by the agreement of a considerable number of States for a variety of
international purposes, economic or social and mainly non-political. Among the
notable instances are the International Labor Organization, the International
Institute of Agriculture, the International Danube Commission. In so far as they
are autonomous and beyond the control of any one State, they have a distinct
juridical personality independent of the municipal law of the State where they
are situated. As such, according to one leading authority they must be deemed
to possess a species of international personality of their own. (Salonga and Yap,
Public International Law, 83 [1956 ed.]
Pursuant to its being a signatory to the Agreement, the Republic of the Philippines agreed to be
represented by one Director in governing SEAFDEC Council (Agreement Establishing SEAFDEC,
Art. 5, Par. 1,. . .), and that its national laws and regulations shall apply only insofar as its
30

contributions to SEAFDEC of "an agreed amount of money, movable and immovable property
and services necessary for the establishment and operation of the Center" are concerned (Art.
11, ibid). It expressly waived the application of the Philippine laws on the disbursement of funds
of petitioner SEAFDEC-AQD (Section 2, P.D. No. 292).
The then Minister of Justice likewise opined that Philippine Courts have no jurisdiction over
SEAFDEC-AQD in Opinion No. 139, Series of 1984
4. One of the basic immunities of an international organization is immunity from local
jurisdiction, i.e., that it is immune from the legal writs and processes issued by the tribunals of
the country where it is found. (See Jenks, Id., pp. 37-44). The obvious reason for this is that the
subjection of such an organization to the authority of the local courts would afford a convenient
medium thru which the host government may interfere in their operations or even influence or
control its policies and decisions of the organization; besides, such objection to local jurisdiction
would impair the capacity of such body to discharge its responsibilities impartially on behalf of
its member-states. In the case at bar, for instance, the entertainment by the National Labor
Relations Commission of Mr. Madamba's reinstatement cases would amount to interference by
the Philippine Government in the management decisions of the SEARCA governing board; even
worse, it could compromise the desired impartiality of the organization since it will have to suit
its actuations to the requirements of Philippine law, which may not necessarily coincide with the
interests of the other member-states. It is precisely to forestall these possibilities that in cases
where the extent of the immunity is specified in the enabling instruments of international
organizations (jurisdictional immunity, is specified in the enabling instruments of international
organizations), jurisdictional immunity from the host country is invariably among the first
accorded. (See Jenks, Id.; See Bowett. The Law of International Institutions. pp. 284-285).
At its Sixth Meeting held at Kuala Lumpur, Malaysia, on 3 to 7 July 1973, the SEAFDEC Council approved the
formal establishment of its Aquaculture Department in the province of Iloilo, Philippines, to promote research in
Aquaculture as so expressed in the "Whereas" Clauses of Presidential Decree No. 292 issued on 13 September
1973
1
. Furthermore, Section 2 of the same decree had provided for the autonomous character of SEAFDEC,
thus:
. . . .All funds received by the Department shall be receipted and disbursed in accordance with
the Agreement establishing the Southeast Asian Fisheries Development Center and pertinent
resolutions duly approved by the SEAFDEC Council.
As aptly pointed out by Associate Justice Isagani Cruz of this Court
Certain administrative bodies created by agreement among states may be vested with
international personality when two conditions concur, to wit:, that their purposes are mainly
non-political and that they are autonomous, i.e., not subject to the control of any state.
2

Anent the issue of waiver of immunity, suffice it to say at the moment that the petitioner has timely raised the
issue of jurisdiction. While the petitioner did not question the public respondent's lack of jurisdiction at the early
stages of the proceedings, it, nevertheless, did so before it rested its case and certainly well before the
proceedings thereat had terminated.
WHEREFORE, our resolution, dated 30 March 1992, dismissing the petition for certiorari, is hereby reconsidered,
and another is entered (a) granting due course to the petition; (b) setting aside the order, dated 20 September
1990, of the public respondent; and (c) enjoining the public respondent from further proceeding with RAB Case
No. VI-0156-86 and RAB Case No. VI-0214-86. No costs.
SO ORDERED.
31

G.R. No. 153675 April 19, 2007
GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the Philippine Department
of Justice, Petitioner,
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUOZ, Respondents.
For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as
amended, seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch 8, Manila (presided by
respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1) the Order dated
December 20, 2001 allowing Juan Antonio Muoz, private respondent, to post bail; and (2) the Order dated April
10, 2002 denying the motion to vacate the said Order of December 20, 2001 filed by the Government of Hong
Kong Special Administrative Region, represented by the Philippine Department of Justice (DOJ), petitioner. The
petition alleges that both Orders were issued by respondent judge with grave abuse of discretion amounting to
lack or excess of jurisdiction as there is no provision in the Constitution granting bail to a potential extraditee.
The facts are:
On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong signed an
"Agreement for the Surrender of Accused and Convicted Persons." It took effect on June 20, 1997.
On July 1, 1997, Hong Kong reverted back to the Peoples Republic of China and became the Hong Kong Special
Administrative Region.
Private respondent Muoz was charged before the Hong Kong Court with three (3) counts of the offense of
"accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap.
201 of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to defraud, penalized by the
common law of Hong Kong. On August 23, 1997 and October 25, 1999, warrants of arrest were issued against
him. If convicted, he faces a jail term of seven (7) to fourteen (14) years for each charge.
On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the
provisional arrest of private respondent. The DOJ then forwarded the request to the National Bureau of
Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application for the provisional
arrest of private respondent.
On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private respondent. That
same day, the NBI agents arrested and detained him.
On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari, prohibition and
mandamus with application for preliminary mandatory injunction and/or writ of habeas corpus questioning the
validity of the Order of Arrest.
On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void.
On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as G.R. No.
140520, praying that the Decision of the Court of Appeals be reversed.
On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining the
validity of the Order of Arrest against private respondent. The Decision became final and executory on April 10,
2001.
Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region filed with the
RTC of Manila a petition for the extradition of private respondent, docketed as Civil Case No. 99-95733, raffled
32

off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed, in the same
case,- a petition for bail which was opposed by petitioner.
After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding
that there is no Philippine law granting bail in extradition cases and that private respondent is a high "flight risk."
On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-95733. It was
then raffled off to Branch 8 presided by respondent judge.
On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his application
for bail. This was granted by respondent judge in an Order dated December 20, 2001 allowing private
respondent to post bail, thus:
In conclusion, this Court will not contribute to accuseds further erosion of civil liberties. The petition for bail is
granted subject to the following conditions:
1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he will
appear and answer the issues raised in these proceedings and will at all times hold himself amenable to
orders and processes of this Court, will further appear for judgment. If accused fails in this undertaking,
the cash bond will be forfeited in favor of the government;
2. Accused must surrender his valid passport to this Court;
3. The Department of Justice is given immediate notice and discretion of filing its own motion for hold
departure order before this Court even in extradition proceeding; and
4. Accused is required to report to the government prosecutors handling this case or if they so desire to
the nearest office, at any time and day of the week; and if they further desire, manifest before this Court
to require that all the assets of accused, real and personal, be filed with this Court soonest, with the
condition that if the accused flees from his undertaking, said assets be forfeited in favor of the
government and that the corresponding lien/annotation be noted therein accordingly.
SO ORDERED.
On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was denied by
respondent judge in his Order dated April 10, 2002.
Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion
amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is nothing in the
Constitution or statutory law providing that a potential extraditee has a right to bail, the right being limited
solely to criminal proceedings.
In his comment on the petition, private respondent maintained that the right to bail guaranteed under the Bill of
Rights extends to a prospective extraditee; and that extradition is a harsh process resulting in a prolonged
deprivation of ones liberty.
Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus:
Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt
is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.
33

Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first time that
this Court has an occasion to resolve the question of whether a prospective extraditee may be granted bail.
In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila,
Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,
1
this Court, speaking through then Associate
Justice Artemio V. Panganiban, later Chief Justice, held that the constitutional provision on bail does not apply to
extradition proceedings. It is "available only in criminal proceedings," thus:
x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as
well as Section 4, Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for
violation of Philippine criminal laws. It does not apply to extradition proceedings because extradition courts do
not render judgments of conviction or acquittal.
Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused
who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his
guilt be proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per
Fernando, J., later CJ). It follows that the constitutional provision on bail will not apply to a case like extradition,
where the presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of
the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is
available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas
corpus finds application "only to persons judicially charged for rebellion or offenses inherent in or directly
connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the constitutional
provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It
cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in
nature.
At first glance, the above ruling applies squarely to private respondents case. However, this Court cannot ignore
the following trends in international law: (1) the growing importance of the individual person in public
international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now
being given to human rights in the international sphere; (3) the corresponding duty of countries to observe
these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to balance the
rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other.
The modern trend in public international law is the primacy placed on the worth of the individual person and
the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of
international law is now taking root. The vulnerable doctrine that the subjects of international law are limited
only to states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and
Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants for acts
characterized as violations of the laws of war, crimes against peace, and crimes against humanity. Recently,
under the Nuremberg principle, Serbian leaders have been persecuted for war crimes and crimes against
humanity committed in the former Yugoslavia. These significant events show that the individual person is now a
valid subject of international law.
On a more positive note, also after World War II, both international organizations and states gave recognition
and importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted
the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights
of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now
recognized as customarily binding upon the members of the international community. Thus, in Mejoff v.
Director of Prisons,
2
this Court, in granting bail to a prospective deportee, held that under the Constitution,
3

the principles set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also
34

adopted the International Covenant on Civil and Political Rights which the Philippines signed and ratified.
Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process.
The Philippines, along with the other members of the family of nations, committed to uphold the fundamental
human rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II,
Article II of our Constitution which provides: "The State values the dignity of every human person and
guarantees full respect for human rights." The Philippines, therefore, has the responsibility of protecting and
promoting the right of every person to liberty and due process, ensuring that those detained or arrested can
participate in the proceedings before a court, to enable it to decide without delay on the legality of the
detention and order their release if justified. In other words, the Philippine authorities are under obligation to
make available to every person under detention such remedies which safeguard their fundamental right to
liberty. These remedies include the right to be admitted to bail. While this Court in Purganan limited the
exercise of the right to bail to criminal proceedings, however, in light of the various international treaties giving
recognition and protection to human rights, particularly the right to life and liberty, a reexamination of this
Courts ruling in Purganan is in order.
First, we note that the exercise of the States power to deprive an individual of his liberty is not
necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as
deportation and quarantine,
4
have likewise been detained.
Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history.
Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only.
This Court has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has
been allowed in this jurisdiction to persons in detention during the pendency of administrative
proceedings, taking into cognizance the obligation of the Philippines under international conventions to
uphold human rights.
The 1909 case of US v. Go-Sioco
5
is illustrative. In this case, a Chinese facing deportation for failure to secure the
necessary certificate of registration was granted bail pending his appeal. After noting that the prospective
deportee had committed no crime, the Court opined that "To refuse him bail is to treat him as a person who has
committed the most serious crime known to law;" and that while deportation is not a criminal proceeding, some
of the machinery used "is the machinery of criminal law." Thus, the provisions relating to bail was applied to
deportation proceedings.
In Mejoff v. Director of Prisons
6
and Chirskoff v. Commission of Immigration,
7
this Court ruled that foreign
nationals against whom no formal criminal charges have been filed may be released on bail pending the finality
of an order of deportation. As previously stated, the Court in Mejoff relied upon the Universal declaration of
Human Rights in sustaining the detainees right to bail.
If bail can be granted in deportation cases, we see no justification why it should not also be allowed in
extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation
cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative
proceedings where the innocence or guilt of the person detained is not in issue.
Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of
the various treaty obligations of the Philippines concerning respect for the promotion and protection of human
rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it
that the right to liberty of every individual is not impaired.
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition" as "the
removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities
to enable the requesting state or government to hold him in connection with any criminal investigation directed
35

against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting
state or government."
Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the
surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the
other state to surrender him to the demanding state. It is not a criminal proceeding.
9
Even if the potential
extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not punishment for a
crime, even though such punishment may follow extradition. It is sui generis, tracing its existence wholly to
treaty obligations between different nations. It is not a trial to determine the guilt or innocence of the
potential extraditee. Nor is it a full-blown civil action, but one that is merely administrative in character.
13
Its
object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state
from which he fled, for the purpose of trial or punishment.
But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation
of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of
extradition is also "the machinery of criminal law." This is shown by Section 6 of P.D. No. 1069 (The Philippine
Extradition Law) which mandates the "immediate arrest and temporary detention of the accused" if such "will
best serve the interest of justice." We further note that Section 20 allows the requesting state "in case of
urgency" to ask for the "provisional arrest of the accused, pending receipt of the request for extradition;" and
that release from provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for
extradition is received subsequently."
Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A
potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to
the demanding state following the proceedings. "Temporary detention" may be a necessary step in the process
of extradition, but the length of time of the detention should be reasonable.
Records show that private respondent was arrested on September 23, 1999, and remained incarcerated until
December 20, 2001, when the trial court ordered his admission to bail. In other words, he had been detained
for over two (2) years without having been convicted of any crime. By any standard, such an extended period
of detention is a serious deprivation of his fundamental right to liberty. In fact, it was this prolonged deprivation
of liberty which prompted the extradition court to grant him bail.
While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision
prohibiting him or her from filing a motion for bail, a right to due process under the Constitution.
The applicable standard of due process, however, should not be the same as that in criminal proceedings. In the
latter, the standard of due process is premised on the presumption of innocence of the accused. As Purganan
correctly points out, it is from this major premise that the ancillary presumption in favor of admitting to bail
arises. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest
warrant and the "temporary detention" is the possibility of flight of the potential extraditee. This is based on the
assumption that such extraditee is a fugitive from justice. Given the foregoing, the prospective extraditee thus
bears the onus probandi of showing that he or she is not a flight risk and should be granted bail.
The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the
Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to comply with
these obligations is a setback in our foreign relations and defeats the purpose of extradition. However, it does
not necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential
extraditees rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by our
Constitution, but also by international conventions, to which the Philippines is a party. We should not, therefore,
deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily
met.
36

An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can
neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of
evidence in civil cases. While administrative in character, the standard of substantial evidence used in
administrative cases cannot likewise apply given the object of extradition law which is to prevent the
prospective extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice,
now Chief Justice Reynato S. Puno, proposed that a new standard which he termed "clear and convincing
evidence" should be used in granting bail in extradition cases. According to him, this standard should be lower
than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must
prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and
processes of the extradition court.
In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk.
Consequently, this case should be remanded to the trial court to determine whether private respondent may be
granted bail on the basis of "clear and convincing evidence."
WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private
respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial court should order
the cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition
proceedings with dispatch.
SO ORDERED.

















37

G.R. No. 157977 February 27, 2006
EDUARDO TOLENTINO RODRIGUEZ and IMELDA GENER RODRIGUEZ, Petitioners,
vs.
THE HONORABLE PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF MANILA BRANCH 17, GOVERNMENT
OF THE UNITED STATES OF AMERICA, represented by the Philippine Department of Justice, and DIRECTOR OF
NATIONAL BUREAU OF INVESTIGATION, Respondents.
Before us is a special civil action for certiorari and prohibition directed against the Orders dated May 7, 2003
1

and May 9, 2003
2
of the Regional Trial Court of Manila, Branch 17 in Case No. 01-190375, which cancelled the
bail of petitioners and denied their motion for reconsideration, respectively.
The case stemmed from the petition for extradition filed on March 12, 2001 by the Government of the United
States of America (US government) through the Department of Justice (DOJ) against the petitioners.
After their arrest, petitioners applied for bail which the trial court granted on September 25, 2001. The bail was
set for one million pesos for each. Petitioners then posted cash bonds. The US government moved for
reconsideration of the grant of bail, but the motion was denied by the trial court. Unsatisfied, the US
government filed a petition for certiorari with this Court, entitled Government of the United States of America,
represented by the Philippine Department of Justice v. Hon. Rodolfo A. Ponferrada, etc., et al., and docketed as
G.R. No. 151456.
Thereafter, we directed the trial court to resolve the matter of bail which, according to its November 28, 2001
Order, shall be subject to whatever ruling that this Court may have in the similar case of Mark Jimenez entitled
Government of the United States of America v. Purganan,
4
docketed as G.R No. 148571. In compliance with our
directive, the trial court, without prior notice and hearing, cancelled the cash bond of the petitioners and
ordered the issuance of a warrant of arrest,
5
to wit:
Accordingly, following the En Banc Decision of the Supreme Court in G.R. No. 148571 dated September 24, 2002
to the effect that extraditees are not entitled to bail while the extradition proceedings are pending (page 1,
En Banc Decision in G.R. No. 148571), let a warrant of arrest issue against the herein respondents sans any bail,
for implementation by the Sheriff or any member of any law enforcement agency in line with Section 19 of
Presidential Decree No. 1069.
IT IS SO ORDERED.
Petitioners filed a very urgent motion for the reconsideration of the cancellation of their bail. The motion was
heard and denied on May 9, 2003.
6

Having no alternative remedy, petitioners filed the present petition on the following grounds:
I
THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND GRAVE ABUSE OF DISCRETION
TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION IN CANCELLING THE BAIL OF HEREIN PETITIONERS
WITHOUT PRIOR NOTICE AND HEARING OF ITS CANCELLATION.
II
THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT CONSIDERING CERTAIN SPECIAL
CIRCUMSTANCES ATTENDANT TO THE PRESENT CASE, AS AN EXCEPTION TO THE GENERAL RULE OF "NO-
BAIL" IN EXTRADITION CASES WHEN PETITIONERS CASH BAIL WAS UNILATERALLY CANCELLED.
38

III
THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND GRAVE ABUSE OF DISCRETION
TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE WARRANT OF ARREST WITHOUT
CONSIDERING THE HEREIN PETITIONERS SPECIAL CIRCUMSTANCE OF VOLUNTARY EXTRADITION PRIOR
TO CANCELLING THEIR CASH BAIL.
7

Once again we face the controversial matter of bail in extradition cases. We are asked to resolve twin issues:
First, in an extradition case, is prior notice and hearing required before bail is cancelled? Second, what
constitutes a "special circumstance" to be exempt from the no-bail rule in extradition cases?
Petitioners assert that their bail cannot be cancelled without due process of law. By way of analogy, they point
to Rule 114, Section 21
8
of the Rules of Court where the surety or bonding company is required to be notified
and allowed to show cause why the bail bond should not be cancelled. They say that if the rules grant this
opportunity to surety and bonding companies, the more reason then that in an extradition case the same should
be afforded.
Petitioners also contend that this Courts directive in G.R. No. 151456 did not in any way authorize the
respondent court to cancel their bail. Petitioners aver that respondent court should have first determined the
facts to evaluate if petitioners were entitled to continuance of their bail, e.g. their willingness to go on voluntary
extradition, which respondent court should have considered a special circumstance.
Respondents, for their part, argue that prior notice and hearing are not required to cancel petitioners bail, and
the issuance of a warrant of arrest ex parte against an extraditee is not a violation of the due process clause.
Further, respondents maintain that prior notice and hearing would defeat the purpose of the arrest warrant
since it could give warning that respondents would be arrested and even encourage them to flee.
Besides, even granting that prior notice and hearing are indeed required, respondents contend that petitioners
had been effectively given prior notice and opportunity to be heard, because the trial courts order clearly
stated that the matter of bail shall be subject to whatever ruling the Supreme Court may render in the similar
extradition case of Government of the United States of America v. Purganan.
9
Petitioners did not contest the
aforementioned order. Respondents declare that petitioners were likewise notified of this Courts directives to
the trial court to resolve the matter of their bail.
More significantly, petitioners claim that their bail should not have been cancelled since their situation falls
within the exception to the general rule of no-bail. They allege that their continuous offer for voluntary
extradition is a special circumstance that should be considered in determining that their temporary liberty while
on bail be allowed to continue. They cite that petitioner Eduardo is in fact already in the United States attending
the trial. They also have not taken flight as fugitives. Besides, according to petitioners, the State is more than
assured they would not flee because their passports were already confiscated and there is an existing hold-
departure order against them. Moreover, petitioners assert, they are not a danger to the community.
Respondents counter that petitioner Imelda Gener Rodriguez did not show her good faith by her continued
refusal to appear before the respondent court. Further, the reasons of petitioners do not qualify as compelling
or special circumstances. Moreover, the special circumstance of voluntary surrender of petitioner Eduardo is
separate and distinct from petitioner Imeldas.
Additionally, respondents maintain that the ruling in the case of Atong Ang
10
has no applicability in the instant
case. Angs bail was allowed because the English translation of a testimony needed to determine probable cause
in Angs case would take time. This special circumstance is not attendant in this case.
The issue of prior notice and hearing in extradition cases is not new. In Secretary of Justice v. Lantion,
11
by a vote
of nine to six, we initially ruled that notice and hearing should be afforded the extraditee even when a possible
39

extradition is still being evaluated.
12
The Court, deliberating on a motion for reconsideration also by a vote of
nine to six, qualified and declared that prospective extraditees are entitled to notice and hearing only when the
case is filed in court and not during the process of evaluation.
13

In the later case of Purganan, eight justices concurred that a possible extraditee is not entitled to notice and
hearing before the issuance of a warrant of arrest while six others dissented.
Now, we are confronted with the question of whether a prospective extraditee is entitled to notice and hearing
before the cancellation of his or her bail.
The issue has become moot and academic insofar as petitioner Eduardo Rodriguez is concerned. He is now in
the USA facing the charges against him. But co-petitioner Imelda Gener Rodriguez is here and stands on a
different footing. We agree that her bail should be restored.
In Purganan, we said that a prospective extraditee is not entitled to notice and hearing before the issuance of a
warrant of arrest,
14
because notifying him before his arrest only tips him of his pending arrest. But this is for
cases pending the issuance of a warrant of arrest, not in a cancellation of a bail that had been issued after
determination that the extraditee is a no-flight risk. The policy is that a prospective extraditee is arrested and
detained to avoid his flight from justice.
15
On the extraditee lies the burden of showing that he will not flee once
bail is granted.
16
If after his arrest and if the trial court finds that he is no flight risk, it grants him bail. The grant
of the bail, presupposes that the co-petitioner has already presented evidence to prove her right to be on bail,
that she is no flight risk, and the trial court had already exercised its sound discretion and had already
determined that under the Constitution and laws in force, co-petitioner is entitled to provisional release.
Under these premises, and with the trial courts knowledge that in this case, co-petitioner has offered to go on
voluntary extradition; that she and her husband had posted a cash bond of P1 million each; that her husband
had already gone on voluntary extradition and is presently in the USA undergoing trial; that the passport of co-
petitioner is already in the possession of the authorities; that she never attempted to flee; that there is an
existing hold-departure order against her; and that she is now in her sixties, sickly and under medical treatment,
we believe that the benefits of continued temporary liberty on bail should not be revoked and their grant of bail
should not be cancelled, without the co-petitioner being given notice and without her being heard why her
temporary liberty should not be discontinued.
We emphasize that bail may be granted to a possible extraditee only upon a clear and convincing showing (1)
that he will not be a flight risk or a danger to the community, and (2) that there exist special, humanitarian and
compelling circumstances.
The trial courts immediate cancellation of the bail of petitioners is contrary to our ruling in Purganan, and it had
misread and misapplied our directive therein.
Now, was the order to issue warrant of arrest against petitioners and to cancel the bail of extraditees a grave
abuse of discretion of the trial court?
Grave abuse of discretion is capricious or whimsical exercise of judgment that is patent and gross as to amount
to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law.
18
In our view, the
cancellation of co-petitioners bail, without prior notice and hearing, could be considered a violation of co-
petitioners right to due process tantamount to grave abuse of discretion.
Finally, considering that remanding the case to the court a quo will only delay the final resolution of the case as
in all probability it would only end up with us again, we will decide if Imeldas bail was validly cancelled.
In Purganan, we held also that the grounds used by the highest court in the requesting state for the grant of bail
may be considered, under the principle of reciprocity.
40

Considering that she has not been shown to be a flight risk nor a danger to the community, she is entitled to
notice and hearing before her bail could be cancelled. Based on the record, we find that, absent prior notice and
hearing, the bails cancellation was in violation of her right to due process.
WHEREFORE, the instant petition is GRANTED IN PART. The Orders dated May 7, 2003 and May 9, 2003 of the
Regional Trial Court of Manila, Branch 17 in Case No. 01-190375 are REVERSED and SET ASIDE, as far as
petitioner IMELDA GENER RODRIGUEZ is concerned. We hereby (1) declare IMELDA GENER RODRIGUEZ entitled
to bail, (2) order her cancelled bail restored, and (3) order the warrant for her arrest revoked.
SO ORDERED.





















41

G.R. No. 148571 September 24, 2002
GOVERNMENT OF THE UNITED STATES OF AMERICA,
Represented by the Philippine Department of Justice, petitioner,
vs.
HON. GUILLERMO PURGANAN, Presiding Judge Regional Trial Court of Manila and
MARC JIMENEZ a.k.a. MARCIO BATACAN CRESPO, respondent
In extradition proceedings, are prospective extraditees entitled to notice and hearing before warrants for their
arrest can be issued? Equally important, are they entitled to the right to bail and provisional liberty while the
extradition proceedings are pending? In general, the answer to these two novel questions is "No." The
explanation of and the reasons for, as well as the exceptions to, this rule are laid out in this Decision.
The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to void and set aside the Orders
dated May 23, 2001
1
and July 3, 2001

issued by the Regional Trial Court (RTC) of Manila, Branch 42.
3
The first
assailed Order set for hearing petitioners application for the issuance of a warrant for the arrest of Respondent
Mark B. Jimenez.
The second challenged Order, on the other hand, directed the issuance of a warrant, but at the same time
granted bail to Jimenez. The dispositive portion of the Order reads as follows:
WHEREFORE, in the light of the foregoing, the [Court] finds probable cause against respondent Mark
Jimenez. Accordingly let a Warrant for the arrest of the respondent be issued. Consequently and taking
into consideration Section 9, Rule 114 of the Revised Rules of Criminal Procedure, this Court fixes the
reasonable amount of bail for respondents temporary liberty at ONE MILLION PESOS (Php
1,000,000.00), the same to be paid in cash.
Furthermore respondent is directed to immediately surrender to this Court his passport and the Bureau
of Immigration and Deportation is likewise directed to include the name of the respondent in its Hold
Departure List."


Essentially, the Petition prays for the lifting of the bail Order, the cancellation of the bond, and the taking of
Jimenez into legal custody.
The Facts
This Petition is really a sequel to GR No. 139465 entitled Secretary of Justice v. Ralph C. Lantion.


Pursuant to the existing RP-US Extradition Treaty,
6
the United States Government, through diplomatic channels,
sent to the Philippine Government Note Verbale No. 0522 dated June 16, 1999, supplemented by Note Nos.
0597, 0720 and 0809 and accompanied by duly authenticated documents requesting the extradition of Mark B.
Jimenez, also known as Mario Batacan Crespo. Upon receipt of the Notes and documents, the secretary of
foreign affairs (SFA) transmitted them to the secretary of justice (SOJ) for appropriate action, pursuant to
Section 5 of Presidential Decree (PD) No. 1069, also known as the Extradition Law.
Upon learning of the request for his extradition, Jimenez sought and was granted a Temporary Restraining Order
(TRO) by the RTC of Manila, Branch 25.
7
The TRO prohibited the Department of Justice (DOJ) from filing with the
RTC a petition for his extradition. The validity of the TRO was, however, assailed by the SOJ in a Petition before
this Court in the said GR No. 139465. Initially, the Court -- by a vote of 9-6 -- dismissed the Petition. The SOJ was
ordered to furnish private respondent copies of the extradition request and its supporting papers and to grant
the latter a reasonable period within which to file a comment and supporting evidence.


42

Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its October 17, 2000 Resolution.
9
By
an identical vote of 9-6 -- after three justices changed their votes -- it reconsidered and reversed its earlier
Decision. It held that private respondent was bereft of the right to notice and hearing during the evaluation
stage of the extradition process. This Resolution has become final and executory.
Finding no more legal obstacle, the Government of the United States of America, represented by the Philippine
DOJ, filed with the RTC on May 18, 2001, the appropriate Petition for Extradition which was docketed as
Extradition Case No. 01192061. The Petition alleged, inter alia, that Jimenez was the subject of an arrest warrant
issued by the United States District Court for the Southern District of Florida on April 15, 1999. The warrant had
been issued in connection with the following charges in Indictment No. 99-00281 CR-SEITZ: (1) conspiracy to
defraud the United States and to commit certain offenses in violation of Title 18 US Code Section 371; (2) tax
evasion, in violation of Title 26 US Code Section 7201; (3) wire fraud, in violation of Title 18 US Code Sections
1343 and 2; (4) false statements, in violation of Title 18 US Code Sections 1001 and 2; and (5) illegal campaign
contributions, in violation of Title 2 US Code Sections 441b, 441f and 437g(d) and Title 18 US Code Section 2. In
order to prevent the flight of Jimenez, the Petition prayed for the issuance of an order for his "immediate arrest"
pursuant to Section 6 of PD No. 1069.
Before the RTC could act on the Petition, Respondent Jimenez filed before it an "Urgent Manifestation/Ex-Parte
Motion,"
10
which prayed that petitioners application for an arrest warrant be set for hearing.
In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set the case for hearing on June
5, 2001. In that hearing, petitioner manifested its reservations on the procedure adopted by the trial court
allowing the accused in an extradition case to be heard prior to the issuance of a warrant of arrest.
After the hearing, the court a quo required the parties to submit their respective memoranda. In his
Memorandum, Jimenez sought an alternative prayer: that in case a warrant should issue, he be allowed to post
bail in the amount of P100,000.
The alternative prayer of Jimenez was also set for hearing on June 15, 2001. Thereafter, the court below issued
its questioned July 3, 2001 Order, directing the issuance of a warrant for his arrest and fixing bail for his
temporary liberty at one million pesos in cash.
11
After he had surrendered his passport and posted the required
cash bond, Jimenez was granted provisional liberty via the challenged Order dated July 4, 2001.


Hence, this Petition.


Issues
Petitioner presents the following issues for the consideration of this Court:
I.
The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction in adopting a procedure of first hearing a potential extraditee
before issuing an arrest warrant under Section 6 of PD No. 1069.
II.
The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction in granting the prayer for bail and in allowing Jimenez to go
on provisional liberty because:
1. An extradition court has no power to authorize bail, in the absence of any law that provides
for such power.
43

2. Section 13, Article III (right to bail clause) of the 1987 Philippine Constitution and Section 4,
Rule 114 (Bail) of the Rules of Court, as amended, which [were] relied upon, cannot be used as
bases for allowing bail in extradition proceedings.
3. The presumption is against bail in extradition proceedings or proceedings leading to
extradition.
4. On the assumption that bail is available in extradition proceedings or proceedings leading to
extradition, bail is not a matter of right but only of discretion upon clear showing by the
applicant of the existence of special circumstances.
5. Assuming that bail is a matter of discretion in extradition proceedings, the public respondent
received no evidence of special circumstances which may justify release on bail.
6. The risk that Jimenez will flee is high, and no special circumstance exists that will engender a
well-founded belief that he will not flee.
7. The conditions attached to the grant of bail are ineffectual and do not ensure compliance by
the Philippines with its obligations under the RP-US Extradition Treaty.
8. The Court of Appeals Resolution promulgated on May 10, 2001 in the case entitled Eduardo
T. Rodriguez et al. vs. The Hon. Presiding Judge, RTC, Branch 17, Manila, CA-G.R. SP No. 64589,
relied upon by the public respondent in granting bail, had been recalled before the issuance of
the subject bail orders."
14

In sum, the substantive questions that this Court will address are: (1) whether Jimenez is entitled to notice and
hearing before a warrant for his arrest can be issued, and (2) whether he is entitled to bail and to provisional
liberty while the extradition proceedings are pending. Preliminarily, we shall take up the alleged prematurity of
the Petition for Certiorari arising from petitioners failure to file a Motion for Reconsideration in the RTC and to
seek relief in the Court of Appeals (CA), instead of in this Court.
15
We shall also preliminarily discuss five
extradition postulates that will guide us in disposing of the substantive issues.
The Courts Ruling
The Petition is meritorious.
Preliminary Matters
Alleged Prematurity of Present Petition
Petitioner submits the following justifications for not filing a Motion for Reconsideration in the Extradition
Court: "(1) the issues were fully considered by such court after requiring the parties to submit their respective
memoranda and position papers on the matter and thus, the filing of a reconsideration motion would serve no
useful purpose; (2) the assailed orders are a patent nullity, absent factual and legal basis therefor; and (3) the
need for relief is extremely urgent, as the passage of sufficient time would give Jimenez ample opportunity to
escape and avoid extradition; and (4) the issues raised are purely of law."
16

For resorting directly to this Court instead of the CA, petitioner submits the following reasons: "(1) even if the
petition is lodged with the Court of Appeals and such appellate court takes cognizance of the issues and decides
them, the parties would still bring the matter to this Honorable Court to have the issues resolved once and for
all [and] to have a binding precedent that all lower courts ought to follow; (2) the Honorable Court of Appeals
had in one case

ruled on the issue by disallowing bail but the court below refused to recognize the decision as a
judicial guide and all other courts might likewise adopt the same attitude of refusal; and (3) there are pending
44

issues on bail both in the extradition courts and the Court of Appeals, which, unless guided by the decision that
this Honorable Court will render in this case, would resolve to grant bail in favor of the potential extraditees and
would give them opportunity to flee and thus, cause adverse effect on the ability of the Philippines to comply
with its obligations under existing extradition treaties."
18

As a general rule, a petition for certiorari before a higher court will not prosper unless the inferior court has
been given, through a motion for reconsideration, a chance to correct the errors imputed to it. This rule, though,
has certain exceptions: (1) when the issue raised is purely of law, (2) when public interest is involved, or (3) in
case of urgency.
19
As a fourth exception, the Court has also ruled that the filing of a motion for reconsideration
before availment of the remedy of certiorari is not a sine qua non, when the questions raised are the same as
those that have already been squarely argued and exhaustively passed upon by the lower court.
20
Aside from
being of this nature, the issues in the present case also involve pure questions of law that are of public interest.
Hence, a motion for reconsideration may be dispensed with.
Likewise, this Court has allowed a direct invocation of its original jurisdiction to issue writs of certiorari when
there are special and important reasons therefor.
21
In Fortich v. Corona

we stated:
[T]he Supreme Court has the full discretionary power to take cognizance of the petition filed directly
[before] it if compelling reasons, or the nature and importance of the issues raised, warrant. This has
been the judicial policy to be observed and which has been reiterated in subsequent cases, namely: Uy
vs. Contreras, et. al., Torres vs. Arranz, Bercero vs. De Guzman, and, Advincula vs. Legaspi, et. al. As we
have further stated in Cuaresma:
x x x. A direct invocation of the Supreme Courts original jurisdiction to issue these writs should
be allowed only when there are special and important reasons therefor, clearly and specifically
set out in the petition. This is established policy. x x x.
Pursuant to said judicial policy, we resolve to take primary jurisdiction over the present petition in the
interest of speedy justice and to avoid future litigations so as to promptly put an end to the present
controversy which, as correctly observed by petitioners, has sparked national interest because of the
magnitude of the problem created by the issuance of the assailed resolution. Moreover, x x x requiring
the petitioners to file their petition first with the Court of Appeals would only result in a waste of time
and money.
That the Court has the power to set aside its own rules in the higher interests of justice is well-entrenched in our
jurisprudence. We reiterate what we said in Piczon vs. Court of Appeals:
23

Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of
justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather
than promote substantial justice, must always be avoided. Time and again, this Court has suspended its
own rules and excepted a particular case from their operation whenever the higher interests of justice
so require. In the instant petition, we forego a lengthy disquisition of the proper procedure that should
have been taken by the parties involved and proceed directly to the merits of the case.
In a number of other exceptional cases,
24
we held as follows:
This Court has original jurisdiction, concurrent with that of Regional Trial Courts and the Court of
Appeals, over petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus, and we
entertain direct resort to us in cases where special and important reasons or exceptional and compelling
circumstances justify the same."
45

In the interest of justice and to settle once and for all the important issue of bail in extradition proceedings, we
deem it best to take cognizance of the present case. Such proceedings constitute a matter of first impression
over which there is, as yet, no local jurisprudence to guide lower courts.
Five Postulates of Extradition
The substantive issues raised in this case require an interpretation or construction of the treaty and the law on
extradition. A cardinal rule in the interpretation of a treaty or a law is to ascertain and give effect to its intent.
25
Since PD 1069 is intended as a guide for the implementation of extradition treaties to which the Philippines is a
signatory,
26
understanding certain postulates of extradition will aid us in properly deciding the issues raised
here.
1. Extradition Is a Major Instrument for the Suppression of Crime.
First, extradition treaties are entered into for the purpose of suppressing crime

by facilitating the arrest
and the custodial transfer

of a fugitive
29
from one state to the other.
With the advent of easier and faster means of international travel, the flight of affluent criminals from
one country to another for the purpose of committing crime and evading prosecution has become more
frequent. Accordingly, governments are adjusting their methods of dealing with criminals and crimes
that transcend international boundaries.
Today, "a majority of nations in the world community have come to look upon extradition as the major
effective instrument of international co-operation in the suppression of crime."

It is the only regular
system that has been devised to return fugitives to the jurisdiction of a court competent to try them in
accordance with municipal and international law.


An important practical effect x x x of the recognition of the principle that criminals should be
restored to a jurisdiction competent to try and punish them is that the number of criminals
seeking refuge abroad will be reduced. For to the extent that efficient means of detection and
the threat of punishment play a significant role in the deterrence of crime within the territorial
limits of a State, so the existence of effective extradition arrangements and the consequent
certainty of return to the locus delicti commissi play a corresponding role in the deterrence of
flight abroad in order to escape the consequence of crime. x x x. From an absence of extradition
arrangements flight abroad by the ingenious criminal receives direct encouragement and thus
indirectly does the commission of crime itself."


In Secretary v. Lantion

we explained:
The Philippines also has a national interest to help in suppressing crimes and one way to do it is to
facilitate the extradition of persons covered by treaties duly entered [into] by our government. More
and more, crimes are becoming the concern of one world. Laws involving crimes and crime prevention
are undergoing universalization. One manifest purpose of this trend towards globalization is to deny
easy refuge to a criminal whose activities threaten the peace and progress of civilized countries. It is to
the great interest of the Philippines to be part of this irreversible movement in light of its vulnerability to
crimes, especially transnational crimes."
Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of international
crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate with other states in
order to improve our chances of suppressing crime in our own country.
2. The Requesting State Will Accord Due Process to the Accused
46

Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and
trust, each others legal system and judicial process.
34
More pointedly, our duly authorized representatives
signature on an extradition treaty signifies our confidence in the capacity and the willingness of the other state
to protect the basic rights of the person sought to be extradited.
35
That signature signifies our full faith that the
accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal
proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been
directly attacked for its unconstitutionality.
3. The Proceedings Are Sui Generis
Third, as pointed out in Secretary of Justice v. Lantion,

extradition proceedings are not criminal in nature. In
criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui generis -- in a
class by itself -- they are not.
An extradition [proceeding] is sui generis. It is not a criminal proceeding which will call into operation all
the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition
does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be
adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that
are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee
x x x.
x x x x x x x x x
There are other differences between an extradition proceeding and a criminal proceeding. An
extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial. In
contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow
admission of evidence under less stringent standards. In terms of the quantum of evidence to be
satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be
ordered extradited upon showing of the existence of a prima facie case. Finally, unlike in a criminal
case where judgment becomes executory upon being rendered final, in an extradition proceeding, our
courts may adjudge an individual extraditable but the President has the final discretion to extradite him.
The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion
in balancing the equities of the case and the demands of the nations foreign relations before making
the ultimate decision to extradite."
Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the
innocence of the person sought to be extradited.
37
Such determination during the extradition proceedings will
only result in needless duplication and delay. Extradition is merely a measure of international judicial assistance
through which a person charged with or convicted of a crime is restored to a jurisdiction with the best claim to
try that person. It is not part of the function of the assisting authorities to enter into questions that are the
prerogative of that jurisdiction.

The ultimate purpose of extradition proceedings in court is only to determine
whether the extradition request complies with the Extradition Treaty, and whether the person sought is
extraditable.


4. Compliance Shall Be in Good Faith.
Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our legislative
branch ratified it. Hence, the Treaty carries the presumption that its implementation will serve the national
interest.
Fulfilling our obligations under the Extradition Treaty promotes comity

with the requesting state. On the other
hand, failure to fulfill our obligations thereunder paints a bad image of our country before the world community.
47

Such failure would discourage other states from entering into treaties with us, particularly an extradition treaty
that hinges on reciprocity.


Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty.
42
This principle requires that we deliver the accused to the requesting country if the conditions precedent to
extradition, as set forth in the Treaty, are satisfied. In other words, "[t]he demanding government, when it has
done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the
proper warrant, and the other government is under obligation to make the surrender."
43
Accordingly, the
Philippines must be ready and in a position to deliver the accused, should it be found proper.
5. There Is an Underlying Risk of Flight
Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption finds reinforcement
in the experience
44
of the executive branch: nothing short of confinement can ensure that the accused will not
flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state.
The present extradition case further validates the premise that persons sought to be extradited have a
propensity to flee. Indeed,
extradition hearings would not even begin, if only the accused were willing to submit to trial in the requesting
country.
45
Prior acts of herein respondent -- (1) leaving the requesting state right before the conclusion of his
indictment proceedings there; and (2) remaining in the requested state despite learning that the requesting
state is seeking his return and that the crimes he is charged with are bailable -- eloquently speak of his aversion
to the processes in the requesting state, as well as his predisposition to avoid them at all cost. These
circumstances point to an ever-present, underlying high risk of flight. He has demonstrated that he has the
capacity and the will to flee. Having fled once, what is there to stop him, given sufficient opportunity, from
fleeing a second time?
First Substantive Issue:
Is Respondent Entitled to Notice and Hearing
Before the Issuance of a Warrant of Arrest?
Petitioner contends that the procedure adopted by the RTC --informing the accused, a fugitive from justice, that
an Extradition Petition has been filed against him, and that petitioner is seeking his arrest -- gives him notice to
escape and to avoid extradition. Moreover, petitioner pleads that such procedure may set a dangerous
precedent, in that those sought to be extradited -- including terrorists, mass murderers and war criminals -- may
invoke it in future extradition cases.
On the other hand, Respondent Jimenez argues that he should not be hurriedly and arbitrarily deprived of his
constitutional right to liberty without due process. He further asserts that there is as yet no specific law or rule
setting forth the procedure prior to the issuance of a warrant of arrest, after the petition for extradition has
been filed in court; ergo, the formulation of that procedure is within the discretion of the presiding judge.
Both parties cite Section 6 of PD 1069 in support of their arguments. It states:
SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately upon
receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the
accused to appear and to answer the petition on the day and hour fixed in the order. [H]e may issue a
warrant for the immediate arrest of the accused which may be served any where within the Philippines
if it appears to the presiding judge that the immediate arrest and temporary detention of the accused
will best serve the ends of justice. Upon receipt of the answer, or should the accused after having
48

received the summons fail to answer within the time fixed, the presiding judge shall hear the case or set
another date for the hearing thereof.
(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served
each upon the accused and the attorney having charge of the case." (Emphasis ours)
Does this provision sanction RTC Judge Purganans act of immediately setting for hearing the issuance of a
warrant of arrest? We rule in the negative.
1. On the Basis of the Extradition Law
It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word "immediate" to qualify the
arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the
arrest warrant. Hearing entails sending notices to the opposing parties,

receiving facts and arguments
47
from
them,
48
and giving them time to prepare and present such facts and arguments. Arrest subsequent to a hearing
can no longer be considered "immediate." The law could not have intended the word as a mere superfluity but,
on the whole, as a means of imparting a sense of urgency and swiftness in the determination of whether a
warrant of arrest should be issued.
By using the phrase "if it appears," the law further conveys that accuracy is not as important as speed at such
early stage. The trial court is not expected to make an exhaustive determination to ferret out the true and actual
situation, immediately upon the filing of the petition. From the knowledge and the material then available to it,
the court is expected merely to get a good first impression -- a prima facie finding -- sufficient to make a speedy
initial determination as regards the arrest and detention of the accused.
Attached to the Petition for Extradition, with a Certificate of Authentication among others, were the following:
(1) Annex H, the Affidavit executed on May 26, 1999 by Mr. Michael E. Savage -- trial attorney in the Campaign
Financing Task Force of the Criminal Division of the US Department of Justice; (2) Annexes H to G, evidentiary
Appendices of various exhibits that constituted evidence of the crimes charged in the Indictment, with Exhibits 1
to 120 (duly authenticated exhibits that constituted evidence of the crimes charged in the Indictment); (3)
Annex BB, the Exhibit I "Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Angela Byers"
and enclosed Statements in two volumes; (4) Annex GG, the Exhibit J "Table of Contents for Supplemental
Evidentiary Appendix" with enclosed Exhibits 121 to 132; and (5) Annex MM, the Exhibit L "Appendix of Witness
[excerpts] Statements Referenced in the Affidavit of Betty Steward" and enclosed Statements in two volumes.
49

It is evident that respondent judge could have already gotten an impression from these records adequate for
him to make an initial determination of whether the accused was someone who should immediately be arrested
in order to "best serve the ends of justice." He could have determined whether such facts and circumstances
existed as would lead a reasonably discreet and prudent person to believe that the extradition request was
prima facie meritorious. In point of fact, he actually concluded from these supporting documents that "probable
cause" did exist. In the second questioned Order, he stated:
In the instant petition, the documents sent by the US Government in support of [its] request for
extradition of herein respondent are enough to convince the Court of the existence of probable cause to
proceed with the hearing against the extraditee."



We stress that the prima facie existence of probable cause for hearing the petition and, a priori, for issuing an
arrest warrant was already evident from the Petition itself and its supporting documents. Hence, after having
already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his
discretion when he set the matter for hearing upon motion of Jimenez.


49

Moreover, the law specifies that the court sets a hearing upon receipt of the answer or upon failure of the
accused to answer after receiving the summons. In connection with the matter of immediate arrest, however,
the word "hearing" is notably absent from the provision. Evidently, had the holding of a hearing at that stage
been intended, the law could have easily so provided. It also bears emphasizing at this point that extradition
proceedings are summary

in nature. Hence, the silence of the Law and the Treaty leans to the more reasonable
interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings.
It is taken for granted that the contracting parties intend something reasonable and something not
inconsistent with generally recognized principles of International Law, nor with previous treaty
obligations towards third States. If, therefore, the meaning of a treaty is ambiguous, the reasonable
meaning is to be preferred to the unreasonable, the more reasonable to the less reasonable x x x ."


Verily, as argued by petitioner, sending to persons sought to be extradited a notice of the request for their arrest
and setting it for hearing at some future date would give them ample opportunity to prepare and execute an
escape. Neither the Treaty nor the Law could have
intended that consequence, for the very purpose of both would have been defeated by the escape of the
accused from the requested state.
2. On the Basis of the Constitution
Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a
hearing before the issuance of a warrant of arrest. It provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized."
To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the
examination -- under oath or affirmation -- of complainants and the witnesses they may produce. There is no
requirement to notify and hear the accused before the issuance of warrants of arrest.
In Ho v. People
54
and in all the cases cited therein, never was a judge required to go to the extent of conducting
a hearing just for the purpose of personally determining probable cause for the issuance of a warrant of arrest.
All we required was that the "judge must have sufficient supporting documents upon which to make his
independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the
existence of probable cause."


In Webb v. De Leon,

the Court categorically stated that a judge was not supposed to conduct a hearing before
issuing a warrant of arrest:
Again, we stress that before issuing warrants of arrest, judges merely determine personally the
probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing
to determine the existence of probable cause. They just personally review the initial determination of
the prosecutor finding a probable cause to see if it is supported by substantial evidence."
At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and
their witnesses.

In the present case, validating the act of respondent judge and instituting the practice of hearing
the accused and his witnesses at this early stage would be discordant with the rationale for the entire system. If
the accused were allowed to be heard and necessarily to present evidence during the prima facie determination
for the issuance of a warrant of arrest,
50

what would stop him from presenting his entire plethora of defenses at this stage -- if he so desires -- in his
effort to negate a prima facie finding? Such a procedure could convert the determination of a prima facie case
into a full-blown trial of the entire proceedings and possibly make trial of the main case superfluous. This
scenario is also anathema to the summary nature of extraditions.
That the case under consideration is an extradition and not a criminal action is not sufficient to justify the
adoption of a set of procedures more protective of the accused. If a different procedure were called for at all, a
more restrictive one -- not the opposite -- would be justified in view of respondents demonstrated
predisposition to flee.
Since this is a matter of first impression, we deem it wise to restate the proper procedure:
Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make,
as soon as possible, a prima facie finding whether (a) they are sufficient in form and substance, (b) they show
compliance with the Extradition Treaty and Law, and (c) the person sought is extraditable. At his discretion, the
judge may
require the submission of further documentation or may personally examine the affiants and witnesses of the
petitioner. If, in spite of this study and examination, no prima facie finding

is possible, the petition may be
dismissed at the discretion of the judge.
On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately
issue a warrant for the arrest of the extraditee, who is at the same time summoned to answer the petition and
to appear at scheduled summary hearings. Prior to the issuance of the warrant, the judge must not inform or
notify the potential extraditee of the pendency of the petition, lest the latter be given the opportunity to escape
and frustrate the proceedings. In our opinion, the foregoing procedure will "best serve the ends of justice" in
extradition cases.
Second Substantive Issue:
Is Respondent Entitled to Bail?
Article III, Section 13 of the Constitution, is worded as follows:
Art. III, Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege
of the writ of habeas corpus is suspended. Excessive bail shall not be required."
Respondent Mark B. Jimenez maintains that this constitutional provision secures the right to bail of all persons,
including those sought to be extradited. Supposedly, the only exceptions are the ones charged with offenses
punishable with reclusion perpetua, when evidence of guilt is strong. He also alleges the relevance to the
present case of Section 4

of Rule 114 of the Rules of Court which, insofar as practicable and consistent with the
summary nature of extradition proceedings, shall also apply according to Section 9 of PD 1069.
On the other hand, petitioner claims that there is no provision in the Philippine Constitution granting the right to
bail to a person who is the subject of an extradition request and arrest warrant.
Extradition Different from Ordinary Criminal Proceedings
We agree with petitioner. As suggested by the use of the word "conviction," the constitutional provision on bail
quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been
51

arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings,
because extradition courts do not render judgments of conviction or acquittal.
Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused
who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his
guilt be proved beyond reasonable doubt."
60
It follows that the constitutional provision on bail will not apply to
a case like extradition, where the presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of
the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is
available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas
corpus finds application "only to persons judicially charged for rebellion or offenses inherent in or directly
connected with invasion."
61
Hence, the second sentence in the constitutional provision on bail merely
emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to
mean that the right is available even in extradition proceedings that are not criminal in nature.
That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an
argument to grant him one in the present case. To stress, extradition proceedings are separate and distinct from
the trial for the offenses for which he is charged. He should apply for bail before the courts trying the criminal
cases against him, not before the extradition court.
No Violation of Due Process
Respondent Jimenez cites the foreign case Paretti
62
in arguing that, constitutionally, "[n]o one shall be deprived
of x x x liberty x x x without due process of law."
Contrary to his contention, his detention prior to the conclusion of the extradition proceedings does not amount
to a violation of his right to due process. We iterate the familiar doctrine that the essence of due process is the
opportunity to be heard
63
but, at the same time, point out that the doctrine does not always call for a prior
opportunity to be heard.
64
Where the circumstances -- such as those present in an extradition case -- call for it, a
subsequent opportunity to be heard is enough.
65
In the present case, respondent will be given full opportunity
to be heard subsequently, when the extradition court hears the Petition for Extradition. Hence, there is no
violation of his right to due process and fundamental fairness.
Contrary to the contention of Jimenez, we find no arbitrariness, either, in the immediate deprivation of his
liberty prior to his being heard. That his arrest and detention will not be arbitrary is sufficiently ensured by (1)
the DOJs filing in court the Petition with its supporting documents after a determination that the extradition
request meets the requirements of the law and the relevant treaty; (2) the extradition judges independent
prima facie determination that his arrest will best serve the ends of justice before the issuance of a warrant for
his arrest; and (3) his opportunity, once he is under the courts custody, to apply for bail as an exception to the
no-initial-bail rule.
It is also worth noting that before the US government requested the extradition of respondent, proceedings had
already been conducted in that country. But because he left the jurisdiction of the requesting state before those
proceedings could be completed, it was hindered from continuing with the due processes prescribed under its
laws. His invocation of due process now has thus become hollow. He already had that opportunity in the
requesting state; yet, instead of taking it, he ran away.
In this light, would it be proper and just for the government to increase the risk of violating its treaty obligations
in order to accord Respondent Jimenez his personal liberty in the span of time that it takes to resolve the
Petition for Extradition? His supposed immediate deprivation of liberty without the due process that he had
previously shunned pales against the governments interest in fulfilling its Extradition Treaty obligations and in
cooperating with the world community in the suppression of crime. Indeed, "[c]onstitutional liberties do not
52

exist in a vacuum; the due process rights accorded to individuals must be carefully balanced against exigent and
palpable government interests."


Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings who, instead of facing the
consequences of their actions, choose to run and hide. Hence, it would not be good policy to increase the risk of
violating our treaty obligations if, through overprotection or excessively liberal treatment, persons sought to be
extradited are able to evade arrest or escape from our custody. In the absence of any provision -- in the
Constitution, the law or the treaty -- expressly guaranteeing the right to bail in extradition proceedings, adopting
the practice of not granting them bail, as a general rule, would be a step towards deterring fugitives from
coming to the Philippines to hide from or evade their prosecutors.1wphi1.nt
The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article 14
67
of
the Treaty, since this practice would encourage the accused to voluntarily surrender to the requesting state to
cut short their detention here. Likewise, their detention pending the resolution of extradition proceedings
would fall into place with the emphasis of the Extradition Law on the summary nature of extradition cases and
the need for their speedy disposition.
Exceptions to the No Bail Rule
The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the judiciary has the
constitutional duty to curb grave abuse of discretion
68
and tyranny, as well as the power to promulgate rules to
protect and enforce constitutional rights.
69
Furthermore, we believe that the right to due process is broad
enough to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the "life,
liberty or property" of every person. It is "dynamic and resilient, adaptable to every situation calling for its
application."
70

Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has
been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only
upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger
to the community; and (2) that there exist special, humanitarian and compelling circumstances
71
including, as a
matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in
extradition cases therein.
Since this exception has no express or specific statutory basis, and since it is derived essentially from general
principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement
with clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an executive, not
a judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it
partakes of the nature of police assistance amongst states, which is not normally a judicial prerogative. Hence,
any intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital
international and bilateral interests of our country will not be unreasonably impeded or compromised. In short,
while this Court is ever protective of "the sporting idea of fair play," it also recognizes the limits of its own
prerogatives and the need to fulfill international obligations.
Along this line, Jimenez contends that there are special circumstances that are compelling enough for the Court
to grant his request for provisional release on bail. We have carefully examined these circumstances and shall
now discuss them.
1. Alleged Disenfranchisement
While his extradition was pending, Respondent Jimenez was elected as a member of the House of
Representatives. On that basis, he claims that his detention will disenfranchise his Manila district of 600,000
residents. We are not persuaded. In People v. Jalosjos,

the Court has already debunked the disenfranchisement
argument when it ruled thus:
53

When the voters of his district elected the accused-appellant to Congress, they did so with full
awareness of the limitations on his freedom of action. They did so with the knowledge that he could
achieve only such legislative results which he could accomplish within the confines of prison. To give a
more drastic illustration, if voters elect a person with full knowledge that he is suffering from a terminal
illness, they do so knowing that at any time, he may no longer serve his full term in office.
In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection.
The Constitution guarantees: x x x nor shall any person be denied the equal protection of laws. This
simply means that all persons similarly situated shall be treated alike both in rights enjoyed and
responsibilities imposed. The organs of government may not show any undue favoritism or hostility to
any person. Neither partiality nor prejudice shall be displayed.
Does being an elective official result in a substantial distinction that allows different treatment? Is being
a Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the
same class as all persons validly confined under law?
The performance of legitimate and even essential duties by public officers has never been an excuse to
free a person validly [from+ prison. The duties imposed by the mandate of the people are multifarious.
The accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government.
The accused-appellant is only one of 250 members of the House of Representatives, not to mention the
24 members of the Senate, charged with the duties of legislation. Congress continues to function well in
the physical absence of one or a few of its members. Depending on the exigency of Government that
has to be addressed, the President or the Supreme Court can also be deemed the highest for that
particular duty. The importance of a function depends on the need for its exercise. The duty of a mother
to nurse her infant is most compelling under the law of nature. A doctor with unique skills has the duty
to save the lives of those with a particular affliction. An elective governor has to serve provincial
constituents. A police officer must maintain peace and order. Never has the call of a particular duty
lifted a prisoner into a different classification from those others who are validly restrained by law.
A strict scrutiny of classifications is essential lest[,] wittingly or otherwise, insidious discriminations are
made in favor of or against groups or types of individuals.
The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify
exercise of government authority to regulate even if thereby certain groups may plausibly assert that
their interests are disregarded.
We, therefore, find that election to the position of Congressman is not a reasonable classification in
criminal law enforcement. The functions and duties of the office are not substantial distinctions which
lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement.
Lawful arrest and confinement are germane to the purposes of the law and apply to all those belonging
to the same class."
73

It must be noted that even before private respondent ran for and won a congressional seat in Manila, it was
already of public knowledge that the United States was requesting his extradition. Hence, his constituents were
or should have been prepared for the consequences of the extradition case against their representative,
including his detention pending the final resolution of the case. Premises considered and in line with Jalosjos, we
are constrained to rule against his claim that his election to public office is by itself a compelling reason to grant
him bail.
2. Anticipated Delay
54

Respondent Jimenez further contends that because the extradition proceedings are lengthy, it would be unfair
to confine him during the pendency of the case. Again we are not convinced. We must emphasize that
extradition cases are summary in nature. They are resorted to merely to determine whether the extradition
petition and its annexes conform to the Extradition Treaty, not to determine guilt or innocence. Neither is it, as a
rule, intended to address issues relevant to the constitutional rights available to the accused in a criminal action.
We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings. This is quite
another matter that is not at issue here. Thus, any further discussion of this point would be merely anticipatory
and academic.
However, if the delay is due to maneuverings of respondent, with all the more reason would the grant of bail
not be justified. Giving premium to delay by considering it as a special circumstance for the grant of bail would
be tantamount to giving him the power to grant bail to himself. It would also encourage him to stretch out and
unreasonably delay the extradition proceedings even more. This we cannot allow.
3. Not a Flight Risk?
Jimenez further claims that he is not a flight risk. To support this claim, he stresses that he learned of the
extradition request in June 1999; yet, he has not fled the country. True, he has not actually fled during the
preliminary stages of the request for his extradition. Yet, this fact cannot be taken to mean that he will not flee
as the process moves forward to its conclusion, as he hears the footsteps of the requesting government inching
closer and closer. That he has not yet fled from the Philippines cannot be taken to mean that he will stand his
ground and still be within reach of our government if and when it matters; that is, upon the resolution of the
Petition for Extradition.
In any event, it is settled that bail may be applied for and granted by the trial court at anytime after the
applicant has been taken into custody and prior to judgment, even after bail has been previously denied. In the
present case, the extradition court may continue hearing evidence on the application for bail, which may be
granted in accordance with the guidelines in this Decision.
Brief Refutation of Dissents
The proposal to remand this case to the extradition court, we believe, is totally unnecessary; in fact, it is a cop-
out. The parties -- in particular, Respondent Jimenez -- have been given more than sufficient opportunity both
by the trial court and this Court to discuss fully and exhaustively private respondents claim to bail. As already
stated, the RTC set for hearing not only petitioners application for an arrest warrant, but also private
respondents prayer for temporary liberty. Thereafter required by the RTC were memoranda on the arrest, then
position papers on the application for bail, both of which were separately filed by the parties.
This Court has meticulously pored over the Petition, the Comment, the Reply, the lengthy Memoranda and the
Position Papers of both parties. Additionally, it has patiently heard them in Oral Arguments, a procedure not
normally observed in the great majority of cases in this Tribunal. Moreover, after the Memos had been
submitted, the parties -- particularly the potential extraditee -- have bombarded this Court with additional
pleadings -- entitled "Manifestations" by both parties and "Counter-Manifestation" by private respondent -- in
which the main topic was Mr. Jimenezs plea for bail.
A remand would mean that this long, tedious process would be repeated in its entirety. The trial court would
again hear factual and evidentiary matters. Be it noted, however, that, in all his voluminous pleadings and verbal
propositions, private respondent has not asked for a remand. Evidently, even he realizes that there is absolutely
no need to rehear factual matters. Indeed, the inadequacy lies not in the factual presentation of Mr. Jimenez.
Rather, it lies in his legal arguments. Remanding the case will not solve this utter lack of persuasion and strength
in his legal reasoning.
55

In short, this Court -- as shown by this Decision and the spirited Concurring, Separate and Dissenting Opinions
written by the learned justices themselves -- has exhaustively deliberated and carefully passed upon all relevant
questions in this case. Thus, a remand will not serve any useful purpose; it will only further delay these already
very delayed proceedings,
74
which our Extradition Law requires to be summary in character. What we need now
is prudent and deliberate speed, not unnecessary and convoluted delay. What is needed is a firm decision on the
merits, not a circuitous cop-out.
Then, there is also the suggestion that this Court is allegedly "disregarding basic freedoms when a case is one of
extradition." We believe that this charge is not only baseless, but also unfair. Suffice it to say that, in its length
and breath, this Decision has taken special cognizance of the rights to due process and fundamental fairness of
potential extraditees.
Summation
As we draw to a close, it is now time to summarize and stress these ten points:
1. The ultimate purpose of extradition proceedings is to determine whether the request expressed in
the petition, supported by its annexes and the evidence that may be adduced during the hearing of the
petition, complies with the Extradition Treaty and Law; and whether the person sought is extraditable.
The proceedings are intended merely to assist the requesting state in bringing the accused -- or the
fugitive who has illegally escaped -- back to its territory, so that the criminal process may proceed
therein.
2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the
reliability or soundness of the legal and judicial system of its treaty partner, as well as in the ability and
the willingness of the latter to grant basic rights to the accused in the pending criminal case therein.
3. By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or
innocence is determined. Consequently, an extradition case is not one in which the constitutional rights
of the accused are necessarily available. It is more akin, if at all, to a courts request to police authorities
for the arrest of the accused who is at large or has escaped detention or jumped bail. Having once
escaped the jurisdiction of the requesting state, the reasonable prima facie presumption is that the
person would escape again if given the opportunity.
4. Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall
make a prima facie finding whether the petition is sufficient in form and substance, whether it complies
with the Extradition Treaty and Law, and whether the person sought is extraditable. The magistrate has
discretion to require the petitioner to submit further documentation, or to personally examine the
affiants or witnesses. If convinced that a prima facie case exists, the judge immediately issues a warrant
for the arrest of the potential extraditee and summons him or her to answer and to appear at scheduled
hearings on the petition.
5. After being taken into custody, potential extraditees may apply for bail. Since the applicants have a
history of absconding, they have the burden of showing that (a) there is no flight risk and no danger to
the community; and (b) there exist special, humanitarian or compelling circumstances. The grounds
used by the highest court in the requesting state for the grant of bail therein may be considered, under
the principle of reciprocity as a special circumstance. In extradition cases, bail is not a matter of right; it
is subject to judicial discretion in the context of the peculiar facts of each case.
6. Potential extraditees are entitled to the rights to due process and to fundamental fairness. Due
process does not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient
due to the flight risk involved. Indeed, available during the hearings on the petition and the answer is
56

the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary
nature of extradition.
7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of
democracy and the conscience of society. But it is also well aware of the limitations of its authority and
of the need for respect for the prerogatives of the other co-equal and co-independent organs of
government.
8. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the
presidential power to conduct foreign relations and to implement treaties. Thus, the Executive
Department of government has broad discretion in its duty and power of implementation.
9. On the other hand, courts merely perform oversight functions and exercise review authority to
prevent or excise grave abuse and tyranny. They should not allow contortions, delays and "over-due
process" every little step of the way, lest these summary extradition proceedings become not only
inutile but also sources of international embarrassment due to our inability to comply in good faith with
a treaty partners simple request to return a fugitive. Worse, our country should not be converted into a
dubious haven where fugitives and escapees can unreasonably delay, mummify, mock, frustrate,
checkmate and defeat the quest for bilateral justice and international cooperation.
10. At bottom, extradition proceedings should be conducted with all deliberate speed to determine
compliance with the Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid
the legalistic contortions, delays and technicalities that may negate that purpose.
WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23, 2001 is hereby declared NULL and
VOID, while the challenged Order dated July 3, 2001 is SET ASIDE insofar as it granted bail to Respondent Mark
Jimenez. The bail bond posted by private respondent is CANCELLED. The Regional Trial Court of Manila is
directed to conduct the extradition proceedings before it, with all deliberate speed pursuant to the spirit and
the letter of our Extradition Treaty with the United States as well as our Extradition Law. No costs.

SO ORDERED.










57

G.R. No. 154705 June 26, 2003
THE REPUBLIC OF INDONESIA, HIS EXCELLENCY AMBASSADOR SOERATMIN, and MINISTER COUNSELLOR
AZHARI KASIM, Petitioners,
vs.
JAMES VINZON, doing business under the name and style of VINZON TRADE AND SERVICES, Respondent.
This is a petition for review on certiorari to set aside the Decision of the Court of Appeals dated May 30, 2002
and its Resolution dated August 16, 2002, in CA-G.R. SP No. 66894 entitled "The Republic of Indonesia, His
Excellency Ambassador Soeratmin and Minister Counselor Azhari Kasim v. Hon. Cesar Santamaria, Presiding
Judge, RTC Branch 145, Makati City, and James Vinzon, doing business under the name and style of Vinzon Trade
and Services."
Petitioner, Republic of Indonesia, represented by its Counsellor, Siti Partinah, entered into a Maintenance
Agreement in August 1995 with respondent James Vinzon, sole proprietor of Vinzon Trade and Services. The
Maintenance Agreement stated that respondent shall, for a consideration, maintain specified equipment at the
Embassy Main Building, Embassy Annex Building and the Wisma Duta, the official residence of petitioner
Ambassador Soeratmin. The equipment covered by the Maintenance Agreement are air conditioning units,
generator sets, electrical facilities, water heaters, and water motor pumps. It is likewise stated therein that the
agreement shall be effective for a period of four years and will renew itself automatically unless cancelled by
either party by giving thirty days prior written notice from the date of expiry.
1

Petitioners claim that sometime prior to the date of expiration of the said agreement, or before August 1999,
they informed respondent that the renewal of the agreement shall be at the discretion of the incoming Chief of
Administration, Minister Counsellor Azhari Kasim, who was expected to arrive in February 2000. When Minister
Counsellor Kasim assumed the position of Chief of Administration in March 2000, he allegedly found
respondents work and services unsatisfactory and not in compliance with the standards set in the Maintenance
Agreement. Hence, the Indonesian Embassy terminated the agreement in a letter dated August 31, 2000.
2

Petitioners claim, moreover, that they had earlier verbally informed respondent of their decision to terminate
the agreement.
On the other hand, respondent claims that the aforesaid termination was arbitrary and unlawful. Respondent
cites various circumstances which purportedly negated petitioners alleged dissatisfaction over respondents
services: (a) in July 2000, Minister Counsellor Kasim still requested respondent to assign to the embassy an
additional full-time worker to assist one of his other workers; (b) in August 2000, Minister Counsellor Kasim
asked respondent to donate a prize, which the latter did, on the occasion of the Indonesian Independence Day
golf tournament; and (c) in a letter dated August 22, 2000, petitioner Ambassador Soeratmin thanked
respondent for sponsoring a prize and expressed his hope that the cordial relations happily existing between
them will continue to prosper and be strengthened in the coming years.
Hence, on December 15, 2000, respondent filed a complaint
3
against petitioners docketed as Civil Case No.
18203 in the Regional Trial Court (RTC) of Makati, Branch 145. On February 20, 2001, petitioners filed a Motion
to Dismiss, alleging that the Republic of Indonesia, as a foreign sovereign State, has sovereign immunity from
suit and cannot be sued as a party-defendant in the Philippines. The said motion further alleged that
Ambassador Soeratmin and Minister Counsellor Kasim are diplomatic agents as defined under the Vienna
Convention on Diplomatic Relations and therefore enjoy diplomatic immunity.
4
In turn, respondent filed on
March 20, 2001, an Opposition to the said motion alleging that the Republic of Indonesia has expressly waived
its immunity from suit. He based this claim upon the following provision in the Maintenance Agreement:
"Any legal action arising out of this Maintenance Agreement shall be settled according to the laws of the
Philippines and by the proper court of Makati City, Philippines."
58

Respondents Opposition likewise alleged that Ambassador Soeratmin and Minister Counsellor Kasim can be
sued and held liable in their private capacities for tortious acts done with malice and bad faith.
5

On May 17, 2001, the trial court denied herein petitioners Motion to Dismiss. It likewise denied the Motion for
Reconsideration subsequently filed.
The trial courts denial of the Motion to Dismiss was brought up to the Court of Appeals by herein petitioners in
a petition for certiorari and prohibition. Said petition, docketed as CA-G.R. SP No. 66894, alleged that the trial
court gravely abused its discretion in ruling that the Republic of Indonesia gave its consent to be sued and
voluntarily submitted itself to the laws and jurisdiction of Philippine courts and that petitioners Ambassador
Soeratmin and Minister Counsellor Kasim waived their immunity from suit.
On May 30, 2002, the Court of Appeals rendered its assailed decision denying the petition for lack of merit.
6
On
August 16, 2002, it denied herein petitioners motion for reconsideration.
7

Hence, this petition.
In the case at bar, petitioners raise the sole issue of whether or not the Court of Appeals erred in sustaining the
trial courts decision that petitioners have waived their immunity from suit by using as its basis the
abovementioned provision in the Maintenance Agreement.
The petition is impressed with merit.
International law is founded largely upon the principles of reciprocity, comity, independence, and equality of
States which were adopted as part of the law of our land under Article II, Section 2 of the 1987 Constitution.
8

The rule that a State may not be sued without its consent is a necessary consequence of the principles of
independence and equality of States.
9
As enunciated in Sanders v. Veridiano II,
10
the practical justification for the
doctrine of sovereign immunity is that there can be no legal right against the authority that makes the law on
which the right depends. In the case of foreign States, the rule is derived from the principle of the sovereign
equality of States, as expressed in the maxim par in parem non habet imperium. All states are sovereign equals
and cannot assert jurisdiction over one another.
11
A contrary attitude would "unduly vex the peace of nations."
12

The rules of International Law, however, are neither unyielding nor impervious to change. The increasing need
of sovereign States to enter into purely commercial activities remotely connected with the discharge of their
governmental functions brought about a new concept of sovereign immunity. This concept, the restrictive
theory, holds that the immunity of the sovereign is recognized only with regard to public acts or acts jure
imperii, but not with regard to private acts or acts jure gestionis.
13

In United States v. Ruiz,
14
for instance, we held that the conduct of public bidding for the repair of a wharf at a
United States Naval Station is an act jure imperii. On the other hand, we considered as an act jure gestionis the
hiring of a cook in the recreation center catering to American servicemen and the general public at the John Hay
Air Station in Baguio City,
15
as well as the bidding for the operation of barber shops in Clark Air Base in Angeles
City.
16

Apropos the present case, the mere entering into a contract by a foreign State with a private party cannot be
construed as the ultimate test of whether or not it is an act jure imperii or jure gestionis. Such act is only the
start of the inquiry. Is the foreign State engaged in the regular conduct of a business? If the foreign State is not
engaged regularly in a business or commercial activity, and in this case it has not been shown to be so engaged,
the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity,
or an incident thereof, then it is an act jure imperii.
Hence, the existence alone of a paragraph in a contract stating that any legal action arising out of the agreement
shall be settled according to the laws of the Philippines and by a specified court of the Philippines is not
59

necessarily a waiver of sovereign immunity from suit. The aforesaid provision contains language not necessarily
inconsistent with sovereign immunity. On the other hand, such provision may also be meant to apply where the
sovereign party elects to sue in the local courts, or otherwise waives its immunity by any subsequent act. The
applicability of Philippine laws must be deemed to include Philippine laws in its totality, including the principle
recognizing sovereign immunity. Hence, the proper court may have no proper action, by way of settling the
case, except to dismiss it.
Submission by a foreign state to local jurisdiction must be clear and unequivocal. It must be given explicitly or by
necessary implication. We find no such waiver in this case.
Respondent concedes that the establishment of a diplomatic mission is a sovereign function.1wphi1 On the
other hand, he argues that the actual physical maintenance of the premises of the diplomatic mission, such as
the upkeep of its furnishings and equipment, is no longer a sovereign function of the State.
18

We disagree. There is no dispute that the establishment of a diplomatic mission is an act jure imperii. A
sovereign State does not merely establish a diplomatic mission and leave it at that; the establishment of a
diplomatic mission encompasses its maintenance and upkeep. Hence, the State may enter into contracts with
private entities to maintain the premises, furnishings and equipment of the embassy and the living quarters of
its agents and officials. It is therefore clear that petitioner Republic of Indonesia was acting in pursuit of a
sovereign activity when it entered into a contract with respondent for the upkeep or maintenance of the air
conditioning units, generator sets, electrical facilities, water heaters, and water motor pumps of the Indonesian
Embassy and the official residence of the Indonesian ambassador.
The Solicitor General, in his Comment, submits the view that, "the Maintenance Agreement was entered into by
the Republic of Indonesia in the discharge of its governmental functions. In such a case, it cannot be deemed to
have waived its immunity from suit." As to the paragraph in the agreement relied upon by respondent, the
Solicitor General states that it "was not a waiver of their immunity from suit but a mere stipulation that in the
event they do waive their immunity, Philippine laws shall govern the resolution of any legal action arising out of
the agreement and the proper court in Makati City shall be the agreed venue thereof.
19

On the matter of whether or not petitioners Ambassador Soeratmin and Minister Counsellor Kasim may be sued
herein in their private capacities, Article 31 of the Vienna Convention on Diplomatic Relations provides:
x x x
1. A diplomatic agent shall enjoy immunity from the criminal jurisidiction of the receiving State. He shall also
enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) a real action relating to private immovable property situated in the territory of the receiving State,
unless he holds it on behalf of the sending State for the purposes of the mission;
(b) an action relating to succession in which the diplomatic agent is involved as executor, administrator,
heir or legatee as a private person and not on behalf of the sending State;
(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the
receiving State outside his official functions.
x x x
The act of petitioners Ambassador Soeratmin and Minister Counsellor Kasim in terminating the Maintenance
Agreement is not covered by the exceptions provided in the abovementioned provision.
60

The Solicitor General believes that said act may fall under subparagraph (c) thereof,
20
but said provision clearly
applies only to a situation where the diplomatic agent engages in any professional or commercial activity outside
official functions, which is not the case herein.
WHEREFORE, the petition is hereby GRANTED. The decision and resolution of the Court of Appeals in CA G.R. SP
No. 66894 are REVERSED and SET ASIDE and the complaint in Civil Case No. 18203 against petitioners is
DISMISSED.
No costs.
SO ORDERED.





















61

G.R. No. 152318 April 16, 2009
DEUTSCHE GESELLSCHAFT FR TECHNISCHE ZUSAMMENARBEIT, also known as GERMAN AGENCY FOR
TECHNICAL COOPERATION, (GTZ) HANS PETER PAULENZ and ANNE NICOLAY, Petitioners,
vs.
HON. COURT OF APPEALS, HON. ARIEL CADIENTE SANTOS, Labor Arbiter of the Arbitration Branch, National
Labor Relations Commission, and BERNADETTE CARMELLA MAGTAAS, CAROLINA DIONCO, CHRISTOPHER
RAMOS, MELVIN DELA PAZ, RANDY TAMAYO and EDGARDO RAMILLO, Respondents.
On 7 September 1971, the governments of the Federal Republic of Germany and the Republic of the Philippines
ratified an Agreement concerning Technical Co-operation (Agreement) in Bonn, capital of what was then West
Germany. The Agreement affirmed the countries "common interest in promoting the technical and economic
development of their States, and recogni[zed] the benefits to be derived by both States from closer technical co-
operation," and allowed for the conclusion of "arrangements concerning individual projects of technical co-
operation."
1
While the Agreement provided for a limited term of effectivity of five (5) years, it nonetheless was
stated that "[t]he Agreement shall be tacitly extended for successive periods of one year unless either of the two
Contracting Parties denounces it in writing three months prior to its expiry," and that even upon the
Agreements expiry, its provisions would "continue to apply to any projects agreed upon x x x until their
completion."
2

On 10 December 1999, the Philippine government, through then Foreign Affairs Secretary Domingo Siazon, and
the German government, agreed to an Arrangement in furtherance of the 1971 Agreement. This Arrangement
affirmed the common commitment of both governments to promote jointly a project called, Social Health
InsuranceNetworking and Empowerment (SHINE), which was designed to "enable Philippine families
especially poor onesto maintain their health and secure health care of sustainable quality."
3
It appears that
SHINE had already been in existence even prior to the effectivity of the Arrangement, though the record does
not indicate when exactly SHINE was constituted. Nonetheless, the Arrangement stated the various obligations
of the Filipino and German governments. The relevant provisions of the Arrangement are reproduced as follows:
3. The Government of the Federal Republic of Germany shall make the following contributions to the project.
It shall
(a) second
- one expert in health economy, insurance and health systems for up to 48 expert/months,
- one expert in system development for up to 10 expert/months
- short-term experts to deal with special tasks for a total of up to 18 expert/months,
- project assistants/guest students as required, who shall work on the project as part of their
basic and further training and assume specific project tasks under the separately financed junior
staff promotion programme of the Deutsche Gesellschaft fr Technische Zusammenarbeit (GTZ);
(b) provide in situ
- short-term experts to deal with diverse special tasks for a total of up to 27 expert/months,
- five local experts in health economy, health insurance, community health systems, information
technology, information systems, training and community mobilization for a total of up to 240
expert/months,
62

- local and auxiliary personnel for a total of up to 120 months;
(c) supply inputs, in particular
- two cross-country vehicles,
- ten computers with accessories,
- office furnishings and equipment
up to a total value of DM 310,000 (three hundred and ten thousand Deutsche Mark);
(c) meet
- the cost of accommodation for the seconded experts and their families in so far as this cost is
not met by the seconded experts themselves,
- the cost of official travel by the experts referred to in sub-paragraph (a) above within and
outside the Republic of the Philippines,
- the cost of seminars and courses,
- the cost of transport and insurance to the project site of inputs to be supplied pursuant to sub-
paragraph (c) above, excluding the charges and storage fees referred to in paragraph 4(d)
below,
- a proportion of the operating and administrative costs;
x x x
4. The Government of the Republic of the Philippines shall make the following contributions to the project:
It shall
(a) provide the necessary Philippine experts for the project, in particular one project coordinator in the
Philippine Health Insurance Corporation (Philhealth), at least three further experts and a sufficient
number of administrative and auxiliary personnel, as well as health personnel in the pilot provinces and
in the other project partners, in particular one responsible expert for each pilot province and for each
association representing the various target groups,
- release suitably qualified experts from their duties for attendance at the envisaged basic and
further training activities; it shall only nominate such candidates as have given an undertaking to
work on the project for at least five years after completing their training and shall ensure that
these Philippine experts receive appropriate remuneration,
- ensure that the project field offices have sufficient expendables,
- make available the land and buildings required for the project;
(b) assume an increasing proportion of the running and operating costs of the project;
(c) afford the seconded experts any assistance they may require in carrying out the tasks assigned to
them and place at their disposal all necessary records and documents;
63

(d) guarantee that
- the project is provided with an itemized budget of its own in order to ensure smooth
continuation of the project.
- the necessary legal and administrative framework is created for the project,
- the project is coordinated in close cooperation with other national and international agencies
relevant to implementation,
- the inputs supplied for the project on behalf of the Government of the Federal Republic of
Germany are exempted from the cost of licenses, harbour dues, import and export duties and
other public charges and fees, as well as storage fees, or that any costs thereof are met, and
that they are cleared by customs without delay. The aforementioned exemptions shall, at the
request of the implementing agencies also apply to inputs procured in the Republic of the
Philippines,
- the tasks of the seconded experts are taken over as soon as possible by Philippine experts,
- examinations passed by Philippine nationals pursuant to this Arrangement are recognized in
accordance with their respective standards and that the persons concerned are afforded such
opportunities with regard to careers, appointments and advancement as are commensurate
with their training.
4

In the arraignment, both governments likewise named their respective implementing organizations for SHINE.
The Philippines designated the Department of Health (DOH) and the Philippine Health Insurance Corporation
(Philhealth) with the implementation of SHINE. For their part, the German government "charge[d] the Deustche
Gesellschaft fr Technische Zusammenarbeit (GTZ) GmbH, Eschborn, with the implementation of its
contributions."
7

Private respondents were engaged as contract employees hired by GTZ to work for SHINE on various dates
between December of 1998 to September of 1999. Bernadette Carmela Magtaas was hired as an "information
systems manager and project officer of SHINE;" Carolina Dionco as a "Project Assistant of SHINE;"
9
Christopher
Ramos as "a project assistant and liason personnel of NHI related SHINE activities by GTZ;"
10
Melvin Dela Paz and
Randy Tamayo as programmers;
11
and Edgardo Ramilo as "driver, messenger and multipurpose service man."
12

The employment contracts of all six private respondents all specified Dr. Rainer Tollkotter, identified as an
adviser of GTZ, as the "employer." At the same time, all the contracts commonly provided that "[i]t is mutually
agreed and understood that [Dr. Tollkotter, as employer] is a seconded GTZ expert who is hiring the Employee
on behalf of GTZ and for a Philippine-German bilateral project named Social Health InsuranceNetworking and
Empowerment (SHINE) which will end at a given time."
13

In September of 1999, Anne Nicolay (Nicolay), a Belgian national, assumed the post of SHINE Project Manager.
Disagreements eventually arose between Nicolay and private respondents in matters such as proposed salary
adjustments, and the course Nicolay was taking in the implementation of SHINE different from her
predecessors. The dispute culminated in a letter
14
dated 8 June 2000, signed by the private respondents,
addressed to Nicolay, and copies furnished officials of the DOH, Philheath, and the director of the Manila office
of GTZ. The letter raised several issues which private respondents claim had been brought up several times in
the past, but have not been given appropriate response. It was claimed that SHINE under Nicolay had veered
away from its original purpose to facilitate the development of social health insurance by shoring up the
national health insurance program and strengthening local initiatives, as Nicolay had refused to support local
partners and new initiatives on the premise that community and local government unit schemes were not
sustainablea philosophy that supposedly betrayed Nicolays lack of understanding of the purpose of the
project. Private respondents further alleged that as a result of Nicolays "new thrust, resources have been used
64

inappropriately;" that the new management style was "not congruent with the original goals of the project;"
that Nicolay herself suffered from "cultural insensitivity" that consequently failed to sustain healthy relations
with SHINEs partners and staff.
The letter ended with these ominous words:
The issues that we [the private respondents] have stated here are very crucial to us in working for the project.
We could no longer find any reason to stay with the project unless ALL of these issues be addressed immediately
and appropriately.
15

In response, Nicolay wrote each of the private respondents a letter dated 21 June 2000, all similarly worded
except for their respective addressees. She informed private respondents that the "projects orientations and
evolution" were decided in consensus with partner institutions, Philhealth and the DOH, and thus no longer
subject to modifications. More pertinently, she stated:
You have firmly and unequivocally stated in the last paragraph of your 8th June 2000 letter that you and the five
other staff "could no longer find any reason to stay with the project unless ALL of these issues be addressed
immediately and appropriately." Under the foregoing premises and circumstances, it is now imperative that I am
to accept your resignation, which I expect to receive as soon as possible.
16

Taken aback, private respondents replied with a common letter, clarifying that their earlier letter was not
intended as a resignation letter, but one that merely intended to raise attention to what they perceived as vital
issues.
17
Negotiations ensued between private respondents and Nicolay, but for naught. Each of the private
respondents received a letter from Nicolay dated 11 July 2000, informing them of the pre-termination of their
contracts of employment on the grounds of "serious and gross insubordination, among others, resulting to loss
of confidence and trust."
18

On 21 August 2000, the private respondents filed a complaint for illegal dismissal with the NLRC. Named as
respondents therein where GTZ, the Director of its Manila office Hans Peter Paulenz, its Assistant Project
Manager Christian Jahn, and Nicolay.
On 25 October 2005, GTZ, through counsel, filed a Motion to Dismiss, on the ground that the Labor Arbiter had
no jurisdiction over the case, as its acts were undertaken in the discharge of the governmental functions and
sovereign acts of the Government of the Federal Republic of Germany. This was opposed by private respondents
with the arguments that GTZ had failed to secure a certification that it was immune from suit from the
Department of Foreign Affairs, and that it was GTZ and not the German government which had implemented
the SHINE Project and entered into the contracts of employment.
On 27 November 2000, the Labor Arbiter issued an Order
19
denying the Motion to Dismiss. The Order cited,
among others, that GTZ was a private corporation which entered into an employment contract; and that GTZ
had failed to secure from the DFA a certification as to its diplomatic status.
On 7 February 2001, GTZ filed with the Labor Arbiter a "Reiterating Motion to Dismiss," again praying that the
Motion to Dismiss be granted on the jurisdictional ground, and reprising the arguments for dismissal it had
earlier raised.
20
No action was taken by the Labor Arbiter on this new motion. Instead, on 15 October 2001, the
Labor Arbiter rendered a Decision
21
granting the complaint for illegal dismissal. The Decision concluded that
respondents were dismissed without lawful cause, there being "a total lack of due process both substantive and
procedural [sic]."
22
GTZ was faulted for failing to observe the notice requirements in the labor law. The Decision
likewise proceeded from the premise that GTZ had treated the letter dated 8 June 2000 as a resignation letter,
and devoted some focus in debunking this theory.
65

The Decision initially offered that it "need not discuss the jurisdictional aspect considering that the same had
already been lengthily discussed in the Order de*n+ying respondents Motion to Dismiss."
23
Nonetheless, it
proceeded to discuss the jurisdictional aspect, in this wise:
Under pain of being repetitious, the undersigned Labor Arbiter has jurisdiction to entertain the complaint on the
following grounds:
Firstly, under the employment contract entered into between complainants and respondents,
specifically Section 10 thereof, it provides that "contract partners agree that his contract shall be subject
to the LAWS of the jurisdiction of the locality in which the service is performed."
Secondly, respondent having entered into contract, they can no longer invoke the sovereignty of the
Federal Republic of Germany.
Lastly, it is imperative to be immune from suit, respondents should have secured from the Department
of Foreign Affairs a certification of respondents diplomatic status and entitlement to diplomatic
privileges including immunity from suits. Having failed in this regard, respondents cannot escape liability
from the shelter of sovereign immunity.[sic]
24

Notably, GTZ did not file a motion for reconsideration to the Labor Arbiters Decision or elevate said
decision for appeal to the NLRC. Instead, GTZ opted to assail the decision by way of a special civil action
for certiorari filed with the Court of Appeals.
25
On 10 December 2001, the Court of Appeals promulgated
a Resolution
26
dismissing GTZs petition, finding that "judicial recourse at this stage of the case is
uncalled for[,] [t]he appropriate remedy of the petitioners [being] an appeal to the NLRC x x x."
27
A
motion for reconsideration to this Resolution proved fruitless for GTZ.
28

Thus, the present petition for review under Rule 45, assailing the decision and resolutions of the Court of
Appeals and of the Labor Arbiter. GTZs arguments center on whether the Court of Appeals could have
entertained its petition for certiorari despite its not having undertaken an appeal before the NLRC; and whether
the complaint for illegal dismissal should have been dismissed for lack of jurisdiction on account of GTZs
insistence that it enjoys immunity from suit. No special arguments are directed with respect to petitioners Hans
Peter Paulenz and Anne Nicolay, respectively the then Director and the then Project Manager of GTZ in the
Philippines; so we have to presume that the arguments raised in behalf of GTZs alleged immunity from suit
extend to them as well.
The Court required the Office of the Solicitor General (OSG) to file a Comment on the petition. In its Comment
dated 7 November 2005, the OSG took the side of GTZ, with the prayer that the petition be granted on the
ground that GTZ was immune from suit, citing in particular its assigned functions in implementing the SHINE
programa joint undertaking of the Philippine and German governments which was neither proprietary nor
commercial in nature.
The Court of Appeals had premised the dismissal of GTZs petition on its procedural misstep in bypassing an
appeal to NLRC and challenging the Labor Arbiters Decision directly with the appellate court by way of a Rule 65
petition. In dismissing the petition, the
Court of Appeals relied on our ruling in Air Service Cooperative v. Court of Appeals.
29
The central issue in that
case was whether a decision of a Labor Arbiter rendered without jurisdiction over the subject matter may be
annulled in a petition before a Regional Trial Court. That case may be differentiated from the present case, since
the Regional Trial Court does not have original or appellate jurisdiction to review a decision rendered by a Labor
Arbiter. In contrast, there is no doubt, as affirmed by jurisprudence, that the Court of Appeals has jurisdiction to
review, by way of its original certiorari jurisdiction, decisions ruling on complaints for illegal dismissal.
66

Nonetheless, the Court of Appeals is correct in pronouncing the general rule that the proper recourse from the
decision of the Labor Arbiter is to first appeal the same to the NLRC. Air Services is in fact clearly detrimental to
petitioners position in one regard. The Court therein noted that on account of the failure to correctly appeal the
decision of the Labor Arbiter to the NLRC, such judgment consequently became final and executory.
30
GTZ goes
as far as to "request" that the Court re-examine Air Services, a suggestion that is needlessly improvident under
the circumstances. Air Services affirms doctrines grounded in sound procedural rules that have allowed for the
considered and orderly disposition of labor cases.
The OSG points out, citing Heirs of Mayor Nemencio Galvez v. Court of Appeals,
31
that even when appeal is
available, the Court has nonetheless allowed a writ of certiorari when the orders of the lower court were issued
either in excess of or without jurisdiction. Indeed, the Court has ruled before that the failure to employ available
intermediate recourses, such as a motion for reconsideration, is not a fatal infirmity if the ruling assailed is a
patent nullity. This approach suggested by the OSG allows the Court to inquire directly into what is the main
issuewhether GTZ enjoys immunity from suit.
The arguments raised by GTZ and the OSG are rooted in several indisputable facts. The SHINE project was
implemented pursuant to the bilateral agreements between the Philippine and German governments. GTZ was
tasked, under the 1991 agreement, with the implementation of the contributions of the German government.
The activities performed by GTZ pertaining to the SHINE project are governmental in nature, related as they are
to the promotion of health insurance in the Philippines. The fact that GTZ entered into employment contracts
with the private respondents did not disqualify it from invoking immunity from suit, as held in cases such as Holy
See v. Rosario, Jr.,
32
which set forth what remains valid doctrine:
Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test.
Such an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in
the activity in the regular course of business. If the foreign state is not engaged regularly in a business or trade,
the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity,
or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit.
33

Beyond dispute is the tenability of the comment points raised by GTZ and the OSG that GTZ was not performing
proprietary functions notwithstanding its entry into the particular employment contracts. Yet there is an equally
fundamental premise which GTZ and the OSG fail to address, namely: Is GTZ, by conception, able to enjoy the
Federal Republics immunity from suit?
The principle of state immunity from suit, whether a local state or a foreign state, is reflected in Section 9,
Article XVI of the Constitution, which states that "the State may not be sued without its consent." Who or what
consists of "the State"? For one, the doctrine is available to foreign States insofar as they are sought to be sued
in the courts of the local State,
34
necessary as it is to avoid "unduly vexing the peace of nations."
If the instant suit had been brought directly against the Federal Republic of Germany, there would be no doubt
that it is a suit brought against a State, and the only necessary inquiry is whether said State had consented to be
sued. However, the present suit was brought against GTZ. It is necessary for us to understand what precisely are
the parameters of the legal personality of GTZ.
Counsel for GTZ characterizes GTZ as "the implementing agency of the Government of the Federal Republic of
Germany," a depiction similarly adopted by the OSG. Assuming that characterization is correct, it does not
automatically invest GTZ with the ability to invoke State immunity from suit. The distinction lies in whether the
agency is incorporated or unincorporated. The following lucid discussion from Justice Isagani Cruz is pertinent:
Where suit is filed not against the government itself or its officials but against one of its entities, it must be
ascertained whether or not the State, as the principal that may ultimately be held liable, has given its consent to
be sued. This ascertainment will depend in the first instance on whether the government agency impleaded is
incorporated or unincorporated.
67

An incorporated agency has a charter of its own that invests it with a separate juridical personality, like the
Social Security System, the University of the Philippines, and the City of Manila. By contrast, the unincorporated
agency is so called because it has no separate juridical personality but is merged in the general machinery of the
government, like the Department of Justice, the Bureau of Mines and the Government Printing Office.
If the agency is incorporated, the test of its suability is found in its charter. The simple rule is that it is suable if its
charter says so, and this is true regardless of the functions it is performing. Municipal corporations, for example,
like provinces and cities, are agencies of the State when they are engaged in governmental functions and
therefore should enjoy the sovereign immunity from suit. Nevertheless, they are subject to suit even in the
performance of such functions because their charter provides that they can sue and be sued.
35

State immunity from suit may be waived by general or special law.
36
The special law can take the form of the
original charter of the incorporated government agency. Jurisprudence is replete with examples of incorporated
government agencies which were ruled not entitled to invoke immunity from suit, owing to provisions in their
charters manifesting their consent to be sued. These include the National Irrigation Administration,
37
the former
Central Bank,
38
and the National Power Corporation.
39
In SSS v. Court of Appeals,
40
the Court through Justice
Melencio-Herrera explained that by virtue of an express provision in its charter allowing it to sue and be sued,
the Social Security System did not enjoy immunity from suit:
We come now to the amendability of the SSS to judicial action and legal responsibility for its acts. To our minds,
there should be no question on this score considering that the SSS is a juridical entity with a personality of its
own. It has corporate powers separate and distinct from the Government. SSS' own organic act specifically
provides that it can sue and be sued in Court. These words "sue and be sued" embrace all civil process incident
to a legal action. So that, even assuming that the SSS, as it claims, enjoys immunity from suit as an entity
performing governmental functions, by virtue of the explicit provision of the aforecited enabling law, the
Government must be deemed to have waived immunity in respect of the SSS, although it does not thereby
concede its liability. That statutory law has given to the private citizen a remedy for the enforcement and
protection of his rights. The SSS thereby has been required to submit to the jurisdiction of the Courts, subject to
its right to interpose any lawful defense. Whether the SSS performs governmental or proprietary functions thus
becomes unnecessary to belabor. For by that waiver, a private citizen may bring a suit against it for varied
objectives, such as, in this case, to obtain compensation in damages arising from contract, and even for tort.
A recent case squarely in point anent the principle, involving the National Power Corporation, is that of Rayo v.
Court of First Instance of Bulacan, 110 SCRA 457 (1981), wherein this Court, speaking through Mr. Justice
Vicente Abad Santos, ruled:
"It is not necessary to write an extended dissertation on whether or not the NPC performs a governmental
function with respect to the management and operation of the Angat Dam. It is sufficient to say that the
government has organized a private corporation, put money in it and has allowed it to sue and be sued in any
court under its charter. (R.A. No. 6395, Sec. 3[d]). As a government, owned and controlled corporation, it has a
personality of its own, distinct and separate from that of the Government. Moreover, the charter provision that
the NPC can 'sue and be sued in any court' is without qualification on the cause of action and accordingly it can
include a tort claim such as the one instituted by the petitioners."
41

It is useful to note that on the part of the Philippine government, it had designated two entities, the Department
of Health and the Philippine Health Insurance Corporation (PHIC), as the implementing agencies in behalf of the
Philippines. The PHIC was established under Republic Act No. 7875, Section 16(g) of which grants the
corporation the power "to sue and be sued in court." Applying the previously cited jurisprudence, PHIC would
not enjoy immunity from suit even in the performance of its functions connected with SHINE, however,
governmental in nature as they may be.
68

Is GTZ an incorporated agency of the German government? There is some mystery surrounding that question.
Neither GTZ nor the OSG go beyond the claim that petitioner is "the implementing agency of the Government of
the Federal Republic of Germany." On the other hand, private respondents asserted before the Labor Arbiter
that GTZ was "a private corporation engaged in the implementation of development projects."
42
The Labor
Arbiter accepted that claim in his Order denying the Motion to Dismiss,
43
though he was silent on that point in
his Decision. Nevertheless, private respondents argue in their Comment that the finding that GTZ was a private
corporation "was never controverted, and is therefore deemed admitted."
44
In its Reply, GTZ controverts that
finding, saying that it is a matter of public knowledge that the status of petitioner GTZ is that of the
"implementing agency," and not that of a private corporation.
45

In truth, private respondents were unable to adduce any evidence to substantiate their claim that GTZ was a
"private corporation," and the Labor Arbiter acted rashly in accepting such claim without explanation. But
neither has GTZ supplied any evidence defining its legal nature beyond that of the bare descriptive
"implementing agency." There is no doubt that the 1991 Agreement designated GTZ as the "implementing
agency" in behalf of the German government. Yet the catch is that such term has no precise definition that is
responsive to our concerns. Inherently, an agent acts in behalf of a principal, and the GTZ can be said to act in
behalf of the German state. But that is as far as "implementing agency" could take us. The term by itself does
not supply whether GTZ is incorporated or unincorporated, whether it is owned by the German state or by
private interests, whether it has juridical personality independent of the German government or none at all.
GTZ itself provides a more helpful clue, inadvertently, through its own official Internet website.
46
In the
"Corporate Profile" section of the English language version of its site, GTZ describes itself as follows:
As an international cooperation enterprise for sustainable development with worldwide operations, the
federally owned Deutsche Gesellschaft fr Technische Zusammenarbeit (GTZ) GmbH supports the German
Government in achieving its development-policy objectives. It provides viable, forward-looking solutions for
political, economic, ecological and social development in a globalised world. Working under difficult conditions,
GTZ promotes complex reforms and change processes. Its corporate objective is to improve peoples living
conditions on a sustainable basis.
GTZ is a federal enterprise based in Eschborn near Frankfurt am Main. It was founded in 1975 as a company
under private law. The German Federal Ministry for Economic Cooperation and Development (BMZ) is its major
client. The company also operates on behalf of other German ministries, the governments of other countries
and international clients, such as the European Commission, the United Nations and the World Bank, as well as
on behalf of private enterprises. GTZ works on a public-benefit basis. All surpluses generated are channeled [sic]
back into its own international cooperation projects for sustainable development.
47

GTZs own website elicits that petitioner is "federally owned," a "federal enterprise," and "founded in 1975 as a
company under private law." GTZ clearly has a very meaningful relationship with the Federal Republic of
Germany, which apparently owns it. At the same time, it appears that GTZ was actually organized not through a
legislative public charter, but under private law, in the same way that Philippine corporations can be organized
under the Corporation Code even if fully owned by the Philippine government.
This self-description of GTZ in its own official website gives further cause for pause in adopting petitioners
argument that GTZ is entitled to immunity from suit because it is "an implementing agency." The above-quoted
statement does not dispute the characterization of GTZ as an "implementing agency of the Federal Republic of
Germany," yet it bolsters the notion that as a company organized under private law, it has a legal personality
independent of that of the Federal Republic of Germany.
The Federal Republic of Germany, in its own official website,
48
also makes reference to GTZ and describes it in
this manner:
69

x x x Going by the principle of "sustainable development," the German Technical Cooperation (Deutsche
Gesellschaft fr Technische Zusammenarbeit GmbH, GTZ) takes on non-profit projects in international "technical
cooperation." The GTZ is a private company owned by the Federal Republic of Germany.
49

Again, we are uncertain of the corresponding legal implications under German law surrounding "a private
company owned by the Federal Republic of Germany." Yet taking the description on face value, the apparent
equivalent under Philippine law is that of a corporation organized under the Corporation Code but owned by the
Philippine government, or a government-owned or controlled corporation without original charter. And it bears
notice that Section 36 of the Corporate Code states that "[e]very corporation incorporated under this Code has
the power and capacity x x x to sue and be sued in its corporate name."
50

It is entirely possible that under German law, an entity such as GTZ or particularly GTZ itself has not been vested
or has been specifically deprived the power and capacity to sue and/or be sued. Yet in the proceedings below
and before this Court, GTZ has failed to establish that under German law, it has not consented to be sued
despite it being owned by the Federal Republic of Germany. We adhere to the rule that in the absence of
evidence to the contrary,
foreign laws on a particular subject are presumed to be the same as those of the Philippines,
51
and following the
most intelligent assumption we can gather, GTZ is akin to a governmental owned or controlled corporation
without original charter which, by virtue of the Corporation Code, has expressly consented to be sued. At the
very least, like the Labor Arbiter and the Court of Appeals, this Court has no basis in fact to conclude or presume
that GTZ enjoys immunity from suit.
This absence of basis in fact leads to another important point, alluded to by the Labor Arbiter in his rulings. Our
ruling in Holy See v. Del Rosario
52
provided a template on how a foreign entity desiring to invoke State immunity
from suit could duly prove such immunity before our local courts. The principles enunciated in that case were
derived from public international law. We stated then:
In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic
immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court
that said defendant is entitled to immunity.
In the United States, the procedure followed is the process of "suggestion," where the foreign state or the
international organization sued in an American court requests the Secretary of State to make a determination as
to whether it is entitled to immunity. If the Secretary of State finds that the defendant is immune from suit, he,
in turn, asks the Attorney General to submit to the court a "suggestion" that the defendant is entitled to
immunity. In England, a similar procedure is followed, only the Foreign Office issues a certification to that effect
instead of submitting a "suggestion" (O'Connell, I International Law 130 [1965]; Note: Immunity from Suit of
Foreign Sovereign Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]).
In the Philippines, the practice is for the foreign government or the international organization to first secure an
executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office
conveys its endorsement to the courts varies. In International Catholic Migration Commission v. Calleja, 190
SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and
Employment, informing the latter that the respondent-employer could not be sued because it enjoyed
diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign
Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked
the Secretary of Foreign Affairs to request the Solicitor General to make, in behalf of the Commander of the
United States Naval Base at Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor General
embodied the "suggestion" in a Manifestation and Memorandum as amicus curiae.
53

It is to be recalled that the Labor Arbiter, in both of his rulings, noted that it was imperative for petitioners to
secure from the Department of Foreign Affairs "a certification of respondents diplomatic status and entitlement
70

to diplomatic privileges including immunity from suits."
54
The requirement might not necessarily be imperative.
However, had GTZ obtained such certification from the DFA, it would have provided factual basis for its claim of
immunity that would, at the very least, establish a disputable evidentiary presumption that the foreign party is
indeed immune which the opposing party will have to overcome with its own factual evidence. We do not see
why GTZ could not have secured such certification or endorsement from the DFA for purposes of this case.
Certainly, it would have been highly prudential for GTZ to obtain the same after the Labor Arbiter had denied
the motion to dismiss. Still, even at this juncture, we do not see any evidence that the DFA, the office of the
executive branch in charge of our diplomatic relations, has indeed endorsed GTZs claim of immunity. It may be
possible that GTZ tried, but failed to secure such certification, due to the same concerns that we have discussed
herein.
Would the fact that the Solicitor General has endorsed GTZs claim of States immunity from suit before this
Court sufficiently substitute for the DFA certification? Note that the rule in public international law quoted in
Holy See referred to endorsement by the Foreign Office of the State where the suit is filed, such foreign office in
the Philippines being the Department of Foreign Affairs. Nowhere in the Comment of the OSG is it manifested
that the DFA has endorsed GTZs claim, or that the OSG had solicited the DFAs views on the issue. The
arguments raised by the OSG are virtually the same as the arguments raised by GTZ without any indication of
any special and distinct perspective maintained by the Philippine government on the issue. The Comment filed
by the OSG does not inspire the same degree of confidence as a certification from the DFA would have
elicited.1avvphi1
Holy See made reference to Baer v. Tizon,
55
and that in the said case, the United States Embassy asked the
Secretary of Foreign Affairs to request the Solicitor General to make a "suggestion" to the trial court,
accomplished by way of a Manifestation and Memorandum, that the petitioner therein enjoyed immunity as the
Commander of the Subic Bay Naval Base. Such circumstance is actually not narrated in the text of Baer itself and
was likely supplied in Holy See because its author, Justice Camilio Quiason, had appeared as the Solicitor in
behalf of the OSG in Baer. Nonetheless, as narrated in Holy See, it was the Secretary of Foreign Affairs which
directed the OSG to intervene in behalf of the United States government in the Baer case, and such fact is
manifest enough of the endorsement by the Foreign Office. We do not find a similar circumstance that bears
here.
The Court is thus holds and so rules that GTZ consistently has been unable to establish with satisfaction that it
enjoys the immunity from suit generally enjoyed by its parent country, the Federal Republic of Germany.
Consequently, both the Labor Arbiter and the Court of Appeals acted within proper bounds when they refused
to acknowledge that GTZ is so immune by dismissing the complaint against it. Our finding has additional
ramifications on the failure of GTZ to properly appeal the Labor Arbiters decision to the NLRC. As pointed out by
the OSG, the direct recourse to the Court of Appeals while bypassing the NLRC could have been sanctioned had
the Labor Arbiters decision been a "patent nullity." Since the Labor Arbiter acted properly in deciding the
complaint, notwithstanding GTZs claim of immunity, we cannot see how the decision could have translated into
a "patent nullity."
As a result, there was no basis for petitioners in foregoing the appeal to the NLRC by filing directly with the Court
of Appeals the petition for certiorari. It then follows that the Court of Appeals acted correctly in dismissing the
petition on that ground. As a further consequence, since petitioners failed to perfect an appeal from the Labor
Arbiters Decision, the same has long become final and executory. All other questions related to this case, such
as whether or not private respondents were illegally dismissed, are no longer susceptible to review, respecting
as we do the finality of the Labor Arbiters Decision.
A final note. This decision should not be seen as deviation from the more common methodology employed in
ascertaining whether a party enjoys State immunity from suit, one which focuses on the particular functions
exercised by the party and determines whether these are proprietary or sovereign in nature. The nature of the
acts performed by the entity invoking immunity remains the most important barometer for testing whether the
privilege of State immunity from suit should apply. At the same time, our Constitution stipulates that a State
71

immunity from suit is conditional on its withholding of consent; hence, the laws and circumstances pertaining to
the creation and legal personality of an instrumentality or agency invoking immunity remain relevant. Consent
to be sued, as exhibited in this decision, is often conferred by the very same statute or general law creating the
instrumentality or agency.
WHEREFORE, the petition is DENIED. No pronouncement as to costs. SO ORDERED.























72

G.R. No. 142396 February 11, 2003
KHOSROW MINUCHER, petitioner,
vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.
Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425, otherwise also known
as the "Dangerous Drugs Act of 1972," was filed against petitioner Khosrow Minucher and one Abbas Torabian
with the Regional Trial Court, Branch 151, of Pasig City. The criminal charge followed a "buy-bust operation"
conducted by the Philippine police narcotic agents in the house of Minucher, an Iranian national, where a
quantity of heroin, a prohibited drug, was said to have been seized. The narcotic agents were accompanied by
private respondent Arthur Scalzo who would, in due time, become one of the principal witnesses for the
prosecution. On 08 January 1988, Presiding Judge Eutropio Migrino rendered a decision acquitting the two
accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court (RTC), Branch 19, of
Manila for damages on account of what he claimed to have been trumped-up charges of drug trafficking made
by Arthur Scalzo. The Manila RTC detailed what it had found to be the facts and circumstances surrounding the
case.
"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines to study in the
University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran, he was appointed Labor
Attach for the Iranian Embassies in Tokyo, Japan and Manila, Philippines. When the Shah of Iran was deposed
by Ayatollah Khomeini, plaintiff became a refugee of the United Nations and continued to stay in the Philippines.
He headed the Iranian National Resistance Movement in the Philippines.
"He came to know the defendant on May 13, 1986, when the latter was brought to his house and introduced to
him by a certain Jose Iigo, an informer of the Intelligence Unit of the military. Jose Iigo, on the other hand,
was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer for several Iranians whom plaintiff assisted as
head of the anti-Khomeini movement in the Philippines.
"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iigo, the
defendant expressed his interest in buying caviar. As a matter of fact, he bought two kilos of caviar from plaintiff
and paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets, pistachio nuts and other Iranian
products was his business after the Khomeini government cut his pension of over $3,000.00 per month. During
their introduction in that meeting, the defendant gave the plaintiff his calling card, which showed that he is
working at the US Embassy in the Philippines, as a special agent of the Drug Enforcement Administration,
Department of Justice, of the United States, and gave his address as US Embassy, Manila. At the back of the card
appears a telephone number in defendants own handwriting, the number of which he can also be contacted.
"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his wife and the
wife of a countryman named Abbas Torabian. The defendant told him that he [could] help plaintiff for a fee of
$2,000.00 per visa. Their conversation, however, was more concentrated on politics, carpets and caviar.
Thereafter, the defendant promised to see plaintiff again.
"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's Restaurant at
Makati. He wanted to buy 200 grams of caviar. Plaintiff brought the merchandize but for the reason that the
defendant was not yet there, he requested the restaurant people to x x x place the same in the refrigerator.
Defendant, however, came and plaintiff gave him the caviar for which he was paid. Then their conversation was
again focused on politics and business.
"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo, Pasig. The
defendant wanted to buy a pair of carpets which plaintiff valued at $27,900.00. After some haggling, they
73

agreed at $24,000.00. For the reason that defendant did not yet have the money, they agreed that defendant
would come back the next day. The following day, at 1:00 p.m., he came back with his $24,000.00, which he
gave to the plaintiff, and the latter, in turn, gave him the pair of carpets.1awphi1.nt
"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house and directly
proceeded to the latter's bedroom, where the latter and his countryman, Abbas Torabian, were playing chess.
Plaintiff opened his safe in the bedroom and obtained $2,000.00 from it, gave it to the defendant for the latter's
fee in obtaining a visa for plaintiff's wife. The defendant told him that he would be leaving the Philippines very
soon and requested him to come out of the house for a while so that he can introduce him to his cousin waiting
in a cab. Without much ado, and without putting on his shirt as he was only in his pajama pants, he followed the
defendant where he saw a parked cab opposite the street. To his complete surprise, an American jumped out of
the cab with a drawn high-powered gun. He was in the company of about 30 to 40 Filipino soldiers with 6
Americans, all armed. He was handcuffed and after about 20 minutes in the street, he was brought inside the
house by the defendant. He was made to sit down while in handcuffs while the defendant was inside his
bedroom. The defendant came out of the bedroom and out from defendant's attach case, he took something
and placed it on the table in front of the plaintiff. They also took plaintiff's wife who was at that time at the
boutique near his house and likewise arrested Torabian, who was playing chess with him in the bedroom and
both were handcuffed together. Plaintiff was not told why he was being handcuffed and why the privacy of his
house, especially his bedroom was invaded by defendant. He was not allowed to use the telephone. In fact, his
telephone was unplugged. He asked for any warrant, but the defendant told him to `shut up. He was
nevertheless told that he would be able to call for his lawyer who can defend him.
"The plaintiff took note of the fact that when the defendant invited him to come out to meet his cousin, his safe
was opened where he kept the $24,000.00 the defendant paid for the carpets and another $8,000.00 which he
also placed in the safe together with a bracelet worth $15,000.00 and a pair of earrings worth $10,000.00. He
also discovered missing upon his release his 8 pieces hand-made Persian carpets, valued at $65,000.00, a
painting he bought for P30,000.00 together with his TV and betamax sets. He claimed that when he was
handcuffed, the defendant took his keys from his wallet. There was, therefore, nothing left in his house.
"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various
newspapers, particularly in Australia, America, Central Asia and in the Philippines. He was identified in the
papers as an international drug trafficker. x x x
In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines, but also in
America and in Germany. His friends in said places informed him that they saw him on TV with said news.
"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed together, where
they were detained for three days without food and water."
1

During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and moved for
extension of time to file an answer pending a supposed advice from the United States Department of State and
Department of Justice on the defenses to be raised. The trial court granted the motion. On 27 October 1988,
Scalzo filed another special appearance to quash the summons on the ground that he, not being a resident of
the Philippines and the action being one in personam, was beyond the processes of the court. The motion was
denied by the court, in its order of 13 December 1988, holding that the filing by Scalzo of a motion for extension
of time to file an answer to the complaint was a voluntary appearance equivalent to service of summons which
could likewise be construed a waiver of the requirement of formal notice. Scalzo filed a motion for
reconsideration of the court order, contending that a motion for an extension of time to file an answer was not
a voluntary appearance equivalent to service of summons since it did not seek an affirmative relief. Scalzo
argued that in cases involving the United States government, as well as its agencies and officials, a motion for
extension was peculiarly unavoidable due to the need (1) for both the Department of State and the Department
of Justice to agree on the defenses to be raised and (2) to refer the case to a Philippine lawyer who would be
74

expected to first review the case. The court a quo denied the motion for reconsideration in its order of 15
October 1989.
Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023, assailing the
denial. In a decision, dated 06 October 1989, the appellate court denied the petition and affirmed the ruling of
the trial court. Scalzo then elevated the incident in a petition for review on certiorari, docketed G.R. No. 91173,
to this Court. The petition, however, was denied for its failure to comply with SC Circular No. 1-88; in any event,
the Court added, Scalzo had failed to show that the appellate court was in error in its questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in default for
his failure to file a responsive pleading (answer) and (b) setting the case for the reception of evidence. On 12
March 1990, Scalzo filed a motion to set aside the order of default and to admit his answer to the complaint.
Granting the motion, the trial court set the case for pre-trial. In his answer, Scalzo denied the material
allegations of the complaint and raised the affirmative defenses (a) of Minuchers failure to state a cause of
action in his complaint and (b) that Scalzo had acted in the discharge of his official duties as being merely an
agent of the Drug Enforcement Administration of the United States Department of Justice. Scalzo interposed a
counterclaim of P100,000.00 to answer for attorneys' fees and expenses of litigation.
Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a motion to
dismiss the complaint on the ground that, being a special agent of the United States Drug Enforcement
Administration, he was entitled to diplomatic immunity. He attached to his motion Diplomatic Note No. 414 of
the United States Embassy, dated 29 May 1990, addressed to the Department of Foreign Affairs of the
Philippines and a Certification, dated 11 June 1990, of Vice Consul Donna Woodward, certifying that the note is
a true and faithful copy of its original. In an order of 25 June 1990, the trial court denied the motion to dismiss.
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R. No. 94257
and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the complaint in Civil Case No.
88-45691 be ordered dismissed. The case was referred to the Court of Appeals, there docketed CA-G.R. SP No.
22505, per this Courts resolution of 07 August 1990. On 31 October 1990, the Court of Appeals promulgated its
decision sustaining the diplomatic immunity of Scalzo and ordering the dismissal of the complaint against him.
Minucher filed a petition for review with this Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher
vs. the Honorable Court of Appeals, et. al." (cited in 214 SCRA 242), appealing the judgment of the Court of
Appeals. In a decision, dated 24 September 1992, penned by Justice (now Chief Justice) Hilario Davide, Jr., this
Court reversed the decision of the appellate court and remanded the case to the lower court for trial. The
remand was ordered on the theses (a) that the Court of Appeals erred in granting the motion to dismiss of
Scalzo for lack of jurisdiction over his person without even considering the issue of the authenticity of
Diplomatic Note No. 414 and (b) that the complaint contained sufficient allegations to the effect that Scalzo
committed the imputed acts in his personal capacity and outside the scope of his official duties and, absent any
evidence to the contrary, the issue on Scalzos diplomatic immunity could not be taken up.
The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court reached a
decision; it adjudged:
"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the plaintiff, who
successfully established his claim by sufficient evidence, against the defendant in the manner following:
"`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral damages in
the sum of P10 million; exemplary damages in the sum of P100,000.00; attorney's fees in the sum of
P200,000.00 plus costs.
`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on this judgment to
answer for the unpaid docket fees considering that the plaintiff in this case instituted this action as a pauper
litigant."
2

75

While the trial court gave credence to the claim of Scalzo and the evidence presented by him that he was a
diplomatic agent entitled to immunity as such, it ruled that he, nevertheless, should be held accountable for the
acts complained of committed outside his official duties. On appeal, the Court of Appeals reversed the decision
of the trial court and sustained the defense of Scalzo that he was sufficiently clothed with diplomatic immunity
during his term of duty and thereby immune from the criminal and civil jurisdiction of the "Receiving State"
pursuant to the terms of the Vienna Convention.
Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1) whether or not the
doctrine of conclusiveness of judgment, following the decision rendered by this Court in G.R. No. 97765, should
have precluded the Court of Appeals from resolving the appeal to it in an entirely different manner, and (2)
whether or not Arthur Scalzo is indeed entitled to diplomatic immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the finality of the
prior judgment, 2) a valid jurisdiction over the subject matter and the parties on the part of the court that
renders it, 3) a judgment on the merits, and 4) an identity of the parties, subject matter and causes of action.
3

Even while one of the issues submitted in G.R. No. 97765 - "whether or not public respondent Court of Appeals
erred in ruling that private respondent Scalzo is a diplomat immune from civil suit conformably with the Vienna
Convention on Diplomatic Relations" - is also a pivotal question raised in the instant petition, the ruling in G.R.
No. 97765, however, has not resolved that point with finality. Indeed, the Court there has made this observation
-
"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13 June 1990,
unequivocally states that he would present documentary evidence consisting of DEA records on his investigation
and surveillance of plaintiff and on his position and duties as DEA special agent in Manila. Having thus reserved
his right to present evidence in support of his position, which is the basis for the alleged diplomatic immunity,
the barren self-serving claim in the belated motion to dismiss cannot be relied upon for a reasonable, intelligent
and fair resolution of the issue of diplomatic immunity."
4

Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a signatory,
grants him absolute immunity from suit, describing his functions as an agent of the United States Drugs
Enforcement Agency as "conducting surveillance operations on suspected drug dealers in the Philippines
believed to be the source of prohibited drugs being shipped to the U.S., (and) having ascertained the target, (he
then) would inform the Philippine narcotic agents (to) make the actual arrest." Scalzo has submitted to the trial
court a number of documents -
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;
2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;
3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;
4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of Foreign Affairs,
dated 27 June 1990 forwarding Embassy Note No. 414 to the Clerk of Court of RTC Manila, Branch 19
(the trial court);
7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and
8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department of Foreign
Affairs, through Asst. Sec. Emmanuel Fernandez, addressed to the Chief Justice of this Court.
5

76

The documents, according to Scalzo, would show that: (1) the United States Embassy accordingly advised the
Executive Department of the Philippine Government that Scalzo was a member of the diplomatic staff of the
United States diplomatic mission from his arrival in the Philippines on 14 October 1985 until his departure on 10
August 1988; (2) that the United States Government was firm from the very beginning in asserting the
diplomatic immunity of Scalzo with respect to the case pursuant to the provisions of the Vienna Convention on
Diplomatic Relations; and (3) that the United States Embassy repeatedly urged the Department of Foreign
Affairs to take appropriate action to inform the trial court of Scalzos diplomatic immunity. The other
documentary exhibits were presented to indicate that: (1) the Philippine government itself, through its
Executive Department, recognizing and respecting the diplomatic status of Scalzo, formally advised the "Judicial
Department" of his diplomatic status and his entitlement to all diplomatic privileges and immunities under the
Vienna Convention; and (2) the Department of Foreign Affairs itself authenticated Diplomatic Note No. 414.
Scalzo additionally presented Exhibits "9" to "13" consisting of his reports of investigation on the surveillance
and subsequent arrest of Minucher, the certification of the Drug Enforcement Administration of the United
States Department of Justice that Scalzo was a special agent assigned to the Philippines at all times relevant to
the complaint, and the special power of attorney executed by him in favor of his previous counsel
6
to show (a)
that the United States Embassy, affirmed by its Vice Consul, acknowledged Scalzo to be a member of the
diplomatic staff of the United States diplomatic mission from his arrival in the Philippines on 14 October 1985
until his departure on 10 August 1988, (b) that, on May 1986, with the cooperation of the Philippine law
enforcement officials and in the exercise of his functions as member of the mission, he investigated Minucher
for alleged trafficking in a prohibited drug, and (c) that the Philippine Department of Foreign Affairs itself
recognized that Scalzo during his tour of duty in the Philippines (14 October 1985 up to 10 August 1988) was
listed as being an Assistant Attach of the United States diplomatic mission and accredited with diplomatic
status by the Government of the Philippines. In his Exhibit 12, Scalzo described the functions of the overseas
office of the United States Drugs Enforcement Agency, i.e., (1) to provide criminal investigative expertise and
assistance to foreign law enforcement agencies on narcotic and drug control programs upon the request of the
host country, 2) to establish and maintain liaison with the host country and counterpart foreign law
enforcement officials, and 3) to conduct complex criminal investigations involving international criminal
conspiracies which affect the interests of the United States.
The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law and, by the
time of its ratification on 18 April 1961, its rules of law had long become stable. Among the city states of ancient
Greece, among the peoples of the Mediterranean before the establishment of the Roman Empire, and among
the states of India, the person of the herald in time of war and the person of the diplomatic envoy in time of
peace were universally held sacrosanct.
7
By the end of the 16th century, when the earliest treatises on
diplomatic law were published, the inviolability of ambassadors was firmly established as a rule of customary
international law.
8
Traditionally, the exercise of diplomatic intercourse among states was undertaken by the
head of state himself, as being the preeminent embodiment of the state he represented, and the foreign
secretary, the official usually entrusted with the external affairs of the state. Where a state would wish to have a
more prominent diplomatic presence in the receiving state, it would then send to the latter a diplomatic
mission. Conformably with the Vienna Convention, the functions of the diplomatic mission involve, by and large,
the representation of the interests of the sending state and promoting friendly relations with the receiving
state.
9

The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or nuncios
accredited to the heads of state,
10
(b) envoys,
11
ministers or internuncios accredited to the heads of states; and
(c) charges d' affairs
12
accredited to the ministers of foreign affairs.
13
Comprising the "staff of the (diplomatic)
mission" are the diplomatic staff, the administrative staff and the technical and service staff. Only the heads of
missions, as well as members of the diplomatic staff, excluding the members of the administrative, technical and
service staff of the mission, are accorded diplomatic rank. Even while the Vienna Convention on Diplomatic
Relations provides for immunity to the members of diplomatic missions, it does so, nevertheless, with an
understanding that the same be restrictively applied. Only "diplomatic agents," under the terms of the
Convention, are vested with blanket diplomatic immunity from civil and criminal suits. The Convention defines
"diplomatic agents" as the heads of missions or members of the diplomatic staff, thus impliedly withholding the
77

same privileges from all others. It might bear stressing that even consuls, who represent their respective states
in concerns of commerce and navigation and perform certain administrative and notarial duties, such as the
issuance of passports and visas, authentication of documents, and administration of oaths, do not ordinarily
enjoy the traditional diplomatic immunities and privileges accorded diplomats, mainly for the reason that they
are not charged with the duty of representing their states in political matters. Indeed, the main yardstick in
ascertaining whether a person is a diplomat entitled to immunity is the determination of whether or not he
performs duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attach of the United States
diplomatic mission and was accredited as such by the Philippine Government. An attach belongs to a category
of officers in the diplomatic establishment who may be in charge of its cultural, press, administrative or financial
affairs. There could also be a class of attaches belonging to certain ministries or departments of the government,
other than the foreign ministry or department, who are detailed by their respective ministries or departments
with the embassies such as the military, naval, air, commercial, agricultural, labor, science, and customs
attaches, or the like. Attaches assist a chief of mission in his duties and are administratively under him, but their
main function is to observe, analyze and interpret trends and developments in their respective fields in the host
country and submit reports to their own ministries or departments in the home government.
14
These officials
are not generally regarded as members of the diplomatic mission, nor are they normally designated as having
diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and 791, all
issued post litem motam, respectively, on 29 May 1990, 25 October 1991 and 17 November 1992. The
presentation did nothing much to alleviate the Court's initial reservations in G.R. No. 97765, viz:
"While the trial court denied the motion to dismiss, the public respondent gravely abused its discretion in
dismissing Civil Case No. 88-45691 on the basis of an erroneous assumption that simply because of the
diplomatic note, the private respondent is clothed with diplomatic immunity, thereby divesting the trial court of
jurisdiction over his person.
"x x x x x x x x x
"And now, to the core issue - the alleged diplomatic immunity of the private respondent. Setting aside for the
moment the issue of authenticity raised by the petitioner and the doubts that surround such claim, in view of
the fact that it took private respondent one (1) year, eight (8) months and seventeen (17) days from the time his
counsel filed on 12 September 1988 a Special Appearance and Motion asking for a first extension of time to file
the Answer because the Departments of State and Justice of the United States of America were studying the
case for the purpose of determining his defenses, before he could secure the Diplomatic Note from the US
Embassy in Manila, and even granting for the sake of argument that such note is authentic, the complaint for
damages filed by petitioner cannot be peremptorily dismissed.
"x x x x x x x x x
"There is of course the claim of private respondent that the acts imputed to him were done in his official
capacity. Nothing supports this self-serving claim other than the so-called Diplomatic Note. x x x. The public
respondent then should have sustained the trial court's denial of the motion to dismiss. Verily, it should have
been the most proper and appropriate recourse. It should not have been overwhelmed by the self-serving
Diplomatic Note whose belated issuance is even suspect and whose authenticity has not yet been proved. The
undue haste with which respondent Court yielded to the private respondent's claim is arbitrary."
A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the Office of
Protocol of the Department of Foreign Affairs and signed by Emmanuel C. Fernandez, Assistant Secretary,
certifying that "the records of the Department (would) show that Mr. Arthur W. Scalzo, Jr., during his term of
office in the Philippines (from 14 October 1985 up to 10 August 1988) was listed as an Assistant Attach of the
78

United States diplomatic mission and was, therefore, accredited diplomatic status by the Government of the
Philippines." No certified true copy of such "records," the supposed bases for the belated issuance, was
presented in evidence.
Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of the
government. In World Health Organization vs. Aquino,
15
the Court has recognized that, in such matters, the
hands of the courts are virtually tied. Amidst apprehensions of indiscriminate and incautious grant of immunity,
designed to gain exemption from the jurisdiction of courts, it should behoove the Philippine government,
specifically its Department of Foreign Affairs, to be most circumspect, that should particularly be no less than
compelling, in its post litem motam issuances. It might be recalled that the privilege is not an immunity from the
observance of the law of the territorial sovereign or from ensuing legal liability; it is, rather, an immunity from
the exercise of territorial jurisdiction.
16
The government of the United States itself, which Scalzo claims to be
acting for, has formulated its standards for recognition of a diplomatic agent. The State Department policy is to
only concede diplomatic status to a person who possesses an acknowledged diplomatic title and "performs
duties of diplomatic nature."
17
Supplementary criteria for accreditation are the possession of a valid diplomatic
passport or, from States which do not issue such passports, a diplomatic note formally representing the
intention to assign the person to diplomatic duties, the holding of a non-immigrant visa, being over twenty-one
years of age, and performing diplomatic functions on an essentially full-time basis.
18
Diplomatic missions are
requested to provide the most accurate and descriptive job title to that which currently applies to the duties
performed. The Office of the Protocol would then assign each individual to the appropriate functional
category.
19

But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently established that,
indeed, he worked for the United States Drug Enforcement Agency and was tasked to conduct surveillance of
suspected drug activities within the country on the dates pertinent to this case. If it should be ascertained that
Arthur Scalzo was acting well within his assigned functions when he committed the acts alleged in the
complaint, the present controversy could then be resolved under the related doctrine of State Immunity from
Suit.
The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary
international law then closely identified with the personal immunity of a foreign sovereign from suit
20
and, with
the emergence of democratic states, made to attach not just to the person of the head of state, or his
representative, but also distinctly to the state itself in its sovereign capacity.
21
If the acts giving rise to a suit are
those of a foreign government done by its foreign agent, although not necessarily a diplomatic personage, but
acting in his official capacity, the complaint could be barred by the immunity of the foreign sovereign from suit
without its consent. Suing a representative of a state is believed to be, in effect, suing the state itself. The
proscription is not accorded for the benefit of an individual but for the State, in whose service he is, under the
maxim - par in parem, non habet imperium - that all states are sovereign equals and cannot assert jurisdiction
over one another.
22
The implication, in broad terms, is that if the judgment against an official would require the
state itself to perform an affirmative act to satisfy the award, such as the appropriation of the amount needed
to pay the damages decreed against him, the suit must be regarded as being against the state itself, although it
has not been formally impleaded.
23

In United States of America vs. Guinto,
24
involving officers of the United States Air Force and special officers of
the Air Force Office of Special Investigators charged with the duty of preventing the distribution, possession and
use of prohibited drugs, this Court has ruled -
"While the doctrine (of state immunity) appears to prohibit only suits against the state without its consent, it is
also applicable to complaints filed against officials of the state for acts allegedly performed by them in the
discharge of their duties. x x x. It cannot for a moment be imagined that they were acting in their private or
unofficial capacity when they apprehended and later testified against the complainant. It follows that for
discharging their duties as agents of the United States, they cannot be directly impleaded for acts imputable to
their principal, which has not given its consent to be sued. x x x As they have acted on behalf of the government,
79

and within the scope of their authority, it is that government, and not the petitioners personally, [who were]
responsible for their acts."
25

This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals
26
elaborates:
"It is a different matter where the public official is made to account in his capacity as such for acts contrary to
law and injurious to the rights of the plaintiff. As was clearly set forth by Justice Zaldivar in Director of the
Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368): `Inasmuch as the State authorizes only
legal acts by its officers, unauthorized acts of government officials or officers are not acts of the State, and an
action against the officials or officers by one whose rights have been invaded or violated by such acts, for the
protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. In the
same tenor, it has been said that an action at law or suit in equity against a State officer or the director of a
State department on the ground that, while claiming to act for the State, he violates or invades the personal and
property rights of the plaintiff, under an unconstitutional act or under an assumption of authority which he does
not have, is not a suit against the State within the constitutional provision that the State may not be sued
without its consent. The rationale for this ruling is that the doctrine of state immunity cannot be used as an
instrument for perpetrating an injustice.
"x x x x x x x x x
"(T)he doctrine of immunity from suit will not apply and may not be invoked where the public official is being
sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and
agents of the government is removed the moment they are sued in their individual capacity. This situation
usually arises where the public official acts without authority or in excess of the powers vested in him. It is a
well-settled principle of law that a public official may be liable in his personal private capacity for whatever
damage he may have caused by his act done with malice and in bad faith or beyond the scope of his authority
and jurisdiction."
27

A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can be
established that he is acting within the directives of the sending state. The consent of the host state is an
indispensable requirement of basic courtesy between the two sovereigns. Guinto and Shauf both involve officers
and personnel of the United States, stationed within Philippine territory, under the RP-US Military Bases
Agreement. While evidence is wanting to show any similar agreement between the governments of the
Philippines and of the United States (for the latter to send its agents and to conduct surveillance and related
activities of suspected drug dealers in the Philippines), the consent or imprimatur of the Philippine government
to the activities of the United States Drug Enforcement Agency, however, can be gleaned from the facts
heretofore elsewhere mentioned. The official exchanges of communication between agencies of the
government of the two countries, certifications from officials of both the Philippine Department of Foreign
Affairs and the United States Embassy, as well as the participation of members of the Philippine Narcotics
Command in the "buy-bust operation" conducted at the residence of Minucher at the behest of Scalzo, may be
inadequate to support the "diplomatic status" of the latter but they give enough indication that the Philippine
government has given its imprimatur, if not consent, to the activities within Philippine territory of agent Scalzo
of the United States Drug Enforcement Agency. The job description of Scalzo has tasked him to conduct
surveillance on suspected drug suppliers and, after having ascertained the target, to inform local law enforcers
who would then be expected to make the arrest. In conducting surveillance activities on Minucher, later acting
as the poseur-buyer during the buy-bust operation, and then becoming a principal witness in the criminal case
against Minucher, Scalzo hardly can be said to have acted beyond the scope of his official function or duties.
All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States Drug
Enforcement Agency allowed by the Philippine government to conduct activities in the country to help contain
the problem on the drug traffic, is entitled to the defense of state immunity from suit.
WHEREFORE, on the foregoing premises, the petition is DENIED. No costs. SO ORDERED.
80

G.R. No. 108461 October 21, 1996
PHILIPPINE INTERNATIONAL TRADING CORPORATION, petitioner,
vs.
HON. PRESIDING JUDGE ZOSIMO Z. ANGELES, BRANCH 58, RTC, MAKATI; REMINGTON INDUSTRIAL SALES
CORPORATION; AND FIRESTONE CERAMIC, INC., respondents.
The PHILIPPINE INTERNATIONAL TRADING CORPORATION (PITC, for brevity) filed this Petition for Review on
Certiorari, seeking the reversal of the Decision dated January 4, 1993 of public respondent Hon. Zosimo Z.
Angeles, Presiding Judge of the Regional Trial Court of Makati, Branch 58, in Civil Case No. 92-158 entitled
Remington Industrial Sales Corporation, et. al. vs. Philippine Industrial Trading Corporation.
The said decision upheld the Petition for Prohibition and Mandamus of REMINGTON INDUSTRIAL SALES
CORPORATION (Remington, for brevity) and FIRESTONE CERAMICS, INC. (Firestone, for brevity), and, in
the process, declared as null and void and unconstitutional, PITC's Administrative Order No. SOCPEC 89-
08-01 and its appurtenant regulations. The dispositive portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor of Petitioner and
Intervenor and against the Respondent, as follows:
1) Enjoining the further implementation by the respondent of the following issuances relative to
the applications for importation of products from the People's Republic of China, to wit:
a) Administrative Order No. SOCPEC 89-08-01 dated August 30, 1989 (Annex A, Amended
Petition);
b) Prescribed Export Undertaking Form (Annex B, Id.);
c) Prescribed Importer-Exporter Agreement Form for non-exporter-importer (Annex C, Id.);
d) Memorandum dated April 16, 1990 relative to amendments of Administrative Order No.
SOCPEC 89-08-01 (Annex D, Id.);
e) Memorandum dated May 6, 1991 relative to Revised Schedule of Fees for the processing of
import applications (Annexes E, E-1., Ind.);
f) Rules and Regulations relative to liquidation of unfulfilled Undertakings and expired export
credits (Annex Z, Supplemental Petition),
the foregoing being all null and void and unconstitutional; and,
2) Commanding respondent to approve forthwith all the pending applications of, and all those
that may hereafter be filed by, the petitioner and the Intervenor, free from and without the
requirements prescribed in the above-mentioned issuances.
IT IS SO ORDERED.
The controversy springs from the issuance by the PITC of Administrative Order No. SOCPEC 89-08-01,
1

under which, applications to the PITC for importation from the People's Republic of China (PROC, for
brevity) must be accompanied by a viable and confirmed Export Program of Philippine Products to PROC
carried out by the improper himself or through a tie-up with a legitimate importer in an amount
equivalent to the value of the importation from PROC being applied for, or, simply, at one is to one ratio.
81

Pertinent provisions of the questioned administrative order read:
3. COUNTERPART EXPORTS TO PROC
In addition to existing requirements for the processing of import application for goods and
commodities originating from PROC, it is declared that:
3.1 All applications covered by these rules must be accompanied by a viable and
confirmed EXPORT PROGRAM of Philippine products to PROC in an amount
equivalent to the value of the importation from PROC being applied for. Such
export program must be carried out and completed within six (6) months from
date of approval of the Import Application by PITC. PITC shall reject/deny any
application for importation from PROC without the accompanying export
program mentioned above.
3.2 The EXPORT PROGRAM may be carried out by any of the following:
a. By the IMPORTER himself if he has the capabilities and
facilities to carry out the export of Philippine products to PROC
in his own name; or
b. Through a tie-up between the IMPORTER and a legitimate
exporter (of Philippine products) who is willing to carry out the
export commitments of the IMPORTER under these rules. The
tie-up shall not make the IMPORTER the exporter of the goods
but shall merely ensure that the importation sought to be
approved is matched one-to-one (1:1) in value with a
corresponding export of Philippine products to PROC.
2

3.3 EXPORT PROGRAM DOCUMENTS which are to be submitted by the improper
together with his Import Application are as follows:
a) Firm Contract, Sales Invoice or Letter of Credit.
b) Export Performance Guarantee (See Article 4 hereof).
c) IMPORTER-EXPORTER AGREEMENT for non-exporter
IMPORTER (PITC Form No. M-1006). This form should be used if
IMPORTER has tie-up with an exporter for the export of
Philippine Products to PROC.
4. EXPORT GUARANTEE
To ensure that the export commitments of the IMPORTER are carried out in accordance with
these rules, all IMPORTERS concerned are required to submit an EXPORT PERFORMANCE
GUARANTEE (the "Guarantee") at the time of filing of the Import Application. The amount of the
guarantee shall be as follows:
For essential commodities: 15% of the value of the imports applied for.
For other commodities: 50% of the value of the imports applied for.
82

4.1 The guarantee may be in the form of (i) a non-interest bearing cash deposit;
(ii) Bank hold-out in favor of PITC (PITC Form No. M-1007) or (iii) a Domestic
Letter of Credit (with all bank opening charges for account of Importer) opened
in favor of PITC as beneficiary.
4.2 The guarantee shall be made in favor of PITC and will be automatically
forfeited in favor of PITC, fully or partially, if the required export program is not
completed by the importer within six (6) months from date of approval of the
Import Application.
4.3 Within the six (6) months period above stated, the IMPORTER is entitled to a
(i) refund of the cash deposited without interest; (ii) cancellation of the Bank
holdout or (iii) Cancellation of the Domestic Letter of Credit upon showing that
he has completed the export commitment pertaining to his importation and
provided further that the following documents are submitted to PITC:
a) Final Sales Invoice
b) Bill of lading or Airway bill
c) Bank Certificate of Inward Remittance
d) PITC EXPORT APPLICATION FOR NO. M-1005
5. MISCELLANEOUS
5.1 All other requirements for importations of goods and commodities from
PROC must be complied with in addition to the above.
5.2 PITC shall have the right to disapprove any and all import applications not in
accordance with the rules and regulations herein prescribed.
5.3 Should the IMPORTER or any of his duly authorized representatives make
any false statements or fraudulent misrepresentations in the Import/Export
Application, or falsify, forge or simulate any document required under these
rules and regulations, PITC is authorized to reject all pending and future
import/export applications of said IMPORTER and/or disqualify said IMPORTER
from doing any business with SOCPEC through PITC.
Desiring to make importations from PROC, private respondents Remington and Firestone, both domestic
corporations, organized and existing under Philippine laws, individually applied for authority to import
from PROC with the petitioner. They were granted such authority after satisfying the requirements for
importers, and after they executed respective undertakings to balance their importations from PROC
with corresponding export of Philippine products to PROC.
Private respondent Remington was allowed to import tools, machineries and other similar goods.
Firestone, on the other hand, imported Calcine Vauxite, which it used for the manufacture of fire bricks,
one of its products.
Subsequently, for failing to comply with their undertakings to submit export credits equivalent to the
value of their importations, further import applications were withheld by petitioner PITC from private
respondents, such that the latter were both barred from importing goods from PROC.
3

Consequently, Remington filed a Petition for Prohibition and Mandamus, with prayer for issuance of
Temporary Restraining Order and/or Writ of Preliminary Injunction on January 20, 1992, against PITC in
the RTC Makati Branch 58.
4
The court issued a Temporary Restraining Order on January 21, 1992,
83

ordering PITC to cease from exercising any power to process applications of goods from PROC.
5
Hearing
on the application for writ of preliminary injunction ensued.
Private respondent Firstone was allowed to intervene in the petition on July 2, 1992,
6
thus joining
Remington in the latter's charges against PITC. It specifically asserts that the questioned Administrative
Order is an undue restriction of trade, and hence, unconstitutional.
Upon trial, it was agreed that the evidence adduced upon the hearing on the Preliminary Injunction was
sufficient to completely adjudicate the case, thus, the parties deemed it proper that the entire case be
submitted for decision upon the evidence so far presented.
The court rendered its Decision
7
on January 4, 1992. The court ruled that PITC's authority to process and
approve applications for imports from SOCPEC and to issue rules and regulations pursuant to LOI 444
and P.D. No. 1071, has already been repealed by EO No. 133, issued on February 27, 1987 by President
Aquino.
The court observed:
Given such obliteration and/or withdrawal of what used to be PITC's regulatory authority under
the Special provisions embodied in LOI 444 from the enumeration of power that it could
exercise effective February 27, 1987 in virtue of Section 16 (d), EO No. 133, it may now be
successfully argued that the PITC can no longer exercise such specific regulatory power in
question conformably with the legal precept "expresio unius est exclusio alterius."
Moreover, the court continued, none of the Trade protocols of 1989, 1990 or 1991, has empowered the
PITC, expressly or impliedly to formulate or promulgate the assailed Administrative Order. This fact,
makes the continued exercise by PITC of the regulatory powers in question unworthy of judicial
approval. Otherwise, it would be sanctioning an undue exercise of legislative power vested solely in the
Congress of the Philippines by Section, 1, Article VII of the 1987 Philippine Constitution.
The lower court stated that the subject Administrative Order and other similar issuances by PITC suffer
from serious constitutional infirmity, having been promulgated in pursuance of an international
agreement (the Memorandum of Agreement between the Philippines and PROC), which has not been
concurred in by at least 2/3 of all the members of the Philippine Senate as required by Article VII,
Section 21, of the 1987 Constitution, and therefore, null and void.
Sec. 21. No treaty or international agreement shall be valid and effective unless concurred in by
at least two-thirds of all the Members of the Senate.
Furthermore, the subject Administrative Order was issued in restraint of trade, in violation of Sections 1
and 19, Article XII of the 1987 Constitution, which reads:
Sec. 1. The goals of the national economy are a more equitable distribution of opportunities,
income and wealth; a sustained increase in the amount of goods and services produced by the
nation for the benefit of the people; and, an expanding productivity as the key to raising the
equality of life for all, especially the underprivileged.
Sec. 19. The State shall regulate or prohibit monopolies when the public interest so requires. No
combination in restraint of trade or unfair competition shall be allowed.
Lastly, the court declared the Administrative Order to be null and void, since the same was not
published, contrary to Article 2 of the New Civil Code which provides, that:
84

Art. 2. Laws shall take effect fifteen (15) days following the completion of their publication in the
Official Gazette, unless the law otherwise provides. . . .
Petitioner now comes to use on a Petition for Review on Certiorari,
8
questioning the court's decision
particularly on the propriety of the lower court's declarations on the validity of Administrative Order No.
89-08-01. The Court directed the respondents to file their respective Comments.
Subsequent events transpired, however, which affect to some extent, the submissions of the parties to
the present petition.
Following President Fidel V. Ramos' trip to Beijing, People's Republic of China (PROC), from April 25 to
30, 1993, a new trade agreement was entered into between the Philippines and PROC, encouraging
liberalization of trade between the two countries. In line therewith, on April 20, 1993, the President,
through Chief Presidential Legal Counsel Antonio T. Carpio, directed the Department of Trade and
Industry and the PITC to cease implementing Administrative Order No. SOCPEC 89-08-01, as amended
by PITC Board Resolution Nos. 92-01-05 and 92-03-08.
9

In the implementation of such order, PITC President Jose Luis U. Yulo, Jr. issued a corporate
Memorandum
10
instructing that all import applications for the PROC filed with the PITC as of April 20,
1993 shall no longer be covered by the trade balancing program outlined in the Administrative Order.
Forthwith, the PITC allowed the private respondents to import anew from the PROC, without being
required to comply anymore with the lifted requirement of balancing its imports with exports of
Philippine products to PROC.
11
In its Constancia
12
filed with the Court on November 22, 1993,
Remington expressed its desire to have the present action declared moot and academic considering the
new supervening developments. For its part, respondent Firestone made a Manifestation
13
in lieu of its
Memorandum, informing the court of the aforesaid developments of the new trade program of the
Philippines with China, and prayed for the court's early resolution of the action.
To support its submission that the present action is now moot and academic, respondent Remington
cites Executive Order No. 244,
14
issued by President Ramos on May 12, 1995. The Executive Order
states:
WHEREAS, continued coverage of the People's Republic of China by Letter of Instructions No.
444 is no longer consistent with the country's national interest, as coursing Republic of the
Philippines-People's Republic China Trade through the Philippine International Trading
Corporations as provided for under Letter of Instructions No. 444 is becoming an unnecessary
barrier to trade;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of
the powers vested in me by law, do hereby order;
The Committee on Scientific and Technical Cooperation with Socialist Countries to delete the
People's Republic of China from the list of countries covered by Letter of Instructions No. 444.
Done in the City of Manila, this 12th day of May in the year of Our Lord, Nineteen Hundred and
Ninety-Five.
PITC filed its own Manifestation
15
on December 15, 1993, wherein it adopted the arguments raised in its
Petition as its Memorandum. PITC disagrees with Remington on the latter's submission that the case has
become moot and academic as a result of the abrogation of Administrative Order SOCPEC No. 89-08-01,
since respondent Remington had incurred obligations to the petitioner consisting of charges for the
0.5% Counter Export Development Service provided by PITC to Remington, which obligations remain
85

outstanding.
16
The propriety of such charges must still be resolved, petitioner argues, thereby
maintaining the issue of the validity of SOCPEC Order No. 89-08-01, before it was abrogated by
Executive fiat.
There is no question that from April 20, 1993, when trading balancing measures with PROC were lifted
by the President, Administrative Order SOCPEC No. 89-08-01 no longer has force and effect, and
respondents are thus entitled anew to apply for authority to import from the PROC, without the trade
balancing requirements previously imposed on proposed importers. Indeed, it appears that since the
lifting of the trade balancing measures, Remington had been allowed to import anew from PROC.
There remains, however, the matter of the outstanding obligations of the respondent for the charges
relating to the 0.5% Counter Export Development Service in favor of PITC, for the period when the
questioned Administrative Order remained in effect. Is the obligation still subsisting, or are the
respondents freed from it?
To resolve this issue, we are tasked to consider the constitutionality of Administrative Order No. SOCPEC
89-08-01, based on the arguments set up by the parties in their Petition and Comment. In so doing, we
must inquire into the nature of the functions of the PITC, in the light of present realities.
The PITC is a government owned or controlled corporation created under P.D. No. 252
1
7 dated August
6, 1973. P.D. No. 1071,
18
issued on May 9, 1977 which revised the provisions of P.D. 252. The purposes
and powers of the said governmental entity were enumerated under Section 5 and 6 thereof.
19

On August 9, 1976, the late President Ferdinand Marcos issued Letter of Instruction (LOI) No. 444,
20

directing, inter alia, that trade (export or import of all commodities), whether direct or indirect,
between the Philippines and any of the Socialist and other Centrally Planned Economy Countries
(SOCPEC), including the People's Republic of China (PROC) shall be undertaken or coursed through the
PITC. Under the LOI, PITC was mandated to: 1) participate in all official trade and economic discussions
between the Philippines and SOCPEC; 2) adopt such measures and issue such rules and regulations as
may be necessary for the effective discharge of its functions under its instructions; and, 3) undertake the
processing and approval of all applications for export to or import from the SOCPEC.
Pertinent provisions of the Letter of Instruction are herein reproduced:
LETTER OF INSTRUCTION 444
xxx xxx xxx
II. CHANNELS OF TRADE
1. The trade, direct or indirect, between the Philippines and any of the Socialist and other
centrally-planned economy countries shall upon issuance hereof, be undertaken by or coursed
through the Philippine International Trading Corporation. This shall apply to the export and
import of all commodities of products including those specified for export or import by expressly
authorized government agencies.
xxx xxx xxx
4. The Philippine International Trading Corporation shall participate in all official trade and
economic discussions between the Philippines and other centrally-planned economy countries.
xxx xxx xxx
86

V. SPECIAL PROVISIONS
The Philippine International Trading Corporation shall adopt such measures and issue such rules
and regulations as may be necessary for the effective discharge of its functions under these
instructions. In this connection, the processing and approval of applications for export to or
import from the Socialist and other centrally-planned economy countries shall, henceforth, be
performed by the said Corporation. (Emphasis ours)
After the EDSA Revolution, or more specifically on February 27, 1987, then President Corazon C. Aquino
promulgated Executive Order (EO) No.
133
21
reorganizing the Department of Trade and Industry (DTI) empowering the said department to be
the "primary coordinative, promotive, facilitative and regulatory arm of the government for the
country's trade, industry and investment activities" (Sec. 2, EO 133). The PITC was made one of DTI's line
agencies.
22

The Executive Order reads in part:
EXECUTIVE ORDER NO. 133
xxx xxx xxx
Sec. 16. Line Corporate Agencies and Government Entities.
The following line corporate agencies and government entities defined in Section 9 (c) of this
Executive Order that will perform their specific regulatory functions, particularly developmental
responsibilities and specialized business activities in a manner consonant with the Department
mandate, objectives, policies, plans and programs:
xxx xxx xxx
d) Philippine International Trading Corporation. This corporation, which shall be supervised
by the Undersecretary for International Trade, shall only engage in both export and trading on
new or non-traditional products and markets not normally pursued by the private business
sector; provide a wide range of export oriented auxiliary services to the private sector; arrange
for or establish comprehensive system and physical facilities for handling the collection,
processing, and distribution of cargoes and other commodities; monitor or coordinate risk
insurance services for existing institutions; promote and organize, whenever warranted,
production enterprises and industrial establishments and collaborate or associate in joint
venture with any person, association, company or entity, whether domestic or foreign, in the
fields of production, marketing, procurement, and other relate businesses; and provide
technical advisory, investigatory, consultancy and management services with respect to any and
all of the functions, activities, and operations of the corporation.
Sometime in April, 1988, following the State visit of President Aquino to the PROC, the Philippines and
PROC entered into a Memorandum of Understanding
23
(MOU) wherein the two countries agreed to
make joint efforts within the next five years to expand bilateral trade to US $600 US $800 Million by
1992, and to strive for a steady progress towards achieving a balance between the value of their imports
and exports during the period, agreeing for the purpose that upon the signing of the Memorandum,
both sides shall undertake to establish the necessary steps and procedures to be adopted within the
framework of the annual midyear review meeting under the Trade Protocol, in order to monitor and
ensure the implementation of the MOU.
87

Conformably with the MOU, the Philippines and PROC entered into a Trade Protocol for the years 1989,
1990 and 1991,
24
under which was specified the commodities to be traded between them. The
protocols affirmed their agreement to jointly endeavor between them. The protocols affirmed their
agreement to jointly endeavor to achieve more or less a balance between the values of their imports
and exports in their bilateral trade.
It is allegedly in line with its powers under LOI 444 and in keeping with the MOU and Trade Protocols
with PROC that PITC issued its now assailed Administrative Order No. SOCPEC 89-08-01
25
on August 30,
1989 (amended in March, 1992).
Undoubtedly, President Aquino, in issuing EO 133, is empowered to modify and amend the provisions of
LOI 444, which was issued by then President Marcos, both issuances being executive directives. As
observed by us in Philippine Association of Services Exporters, Inc. vs. Torres,
26

there is no need for legislative delegation of power to the President to revoke the Letter of
Instruction by way of an Executive Order. This is notwithstanding the fact that the subject LOI
1190 was issued by President Marcos, when he was extraordinarily empowered to exercise
legislative powers, whereas EO 450 was issued by Pres. Aquino when her transitional legislative
powers have already ceased, since it was found that LOI 1190 was a mere administrative
directive, hence, may be repealed, altered, or modified by EO 450.
We do not agree, however, with the trial court's ruling PITC's authority to issue rules and regulations
pursuant to the Special Provision of LOI 444 and P.D. No. 1071, have already been repealed by EO 133.
While PITC's power to engage in commercial import and export activities is expressly recognized and
allowed under Section 16 (d) of EO 133, the same is not limited only to new or non-traditional products
and markets not normally pursued by the private business sector. There is not indication in the law of
the removal of the powers of the PITC to exercise its regulatory functions in the area of importations
from SOCPEC countries. Though it does not mention the grant of regulatory power, EO 133, as worded,
is silent as to the abolition or limitation of such powers, previously granted under P.D. 1071, from the
PITC.
Likewise, the general repealing clause in EO 133 stating that "all laws, ordinances, rules, and regulations,
or other parts thereof, which are inconsistent with the Executive Order are hereby repealed or modified
accordingly, cannot operate to abolish the grant of regulatory powers to the PITC. There can be no
repeal of the said powers, absent any cogency of irreconcilable inconsistency or repugnancy between
the issuances, relating to the regulatory power of the PITC.
The President, in promulgating EO 133, had not intended to overhaul the functions of the PITC. The DTI
was established, and was given powers and duties including those previously held by the PITC as an
independent government entity, under P.D. 1071 and LOI 444. The PITC was thereby attached to the DTI
as an implementing arm of the said department.
EO 133 established the DTI as the primary coordinative, promotive, facilitative and regulatory arm of
government for the country's trade, industry and investment activities, which shall act as a catalyst for
intensified private sector activity in order to accelerate and sustain economic growth.
2
7 In furtherance
of this mandate, the DTI was empowered, among others, to plan, implement, and coordinate activities
of the government related to trade industry and investments; to formulate and administer policies and
guidelines for the investment priorities plan and the delivery of investment incentives; to formulate
country and product export strategies which will guide the export promotion and development thrusts
of the government.
28
Corollarily, the Secretary of Trade and Industry is given the power to promulgate
rules and regulations necessary to carry out the department's objectives, policies, plans, programs and
projects.
88

The PITC, on the other hand, was attached as an integral part to the said department as one of its line
agencies,
29
and given the focal task of implementing the department's programs.
30
The absence of the
regulatory power formerly enshrined in the Special Provision of LOI 444, from Section 16 of EO 133, and
the limitation of its previously wide range of functions, is noted. This does not mean, however, that PITC
has lost the authority to issue the questioned Administrative Order. It is our view that PITC still holds
such authority, and may legally exercise it, as an implementing arm, and under the supervision of, the
Department of Trade and Industry.
Furthermore, the lower court's ruling to the effect that the PITC's authority to process and approve
applications for imports from SOCPEC and to issue rules and regulations pursuant to LOI 444 and P.D.
1071 has been repealed by EO 133, is misplaced, and did not consider the import behind the issuance of
the later presidential edict.
The President could not have intended to deprive herself of the power to regulate the flow of trade
between the Philippines and PROC under the two countries' Memorandum of Understanding, a power
which necessarily flows from her office as Chief Executive. In issuing Executive Order 133, the President
intended merely to reorganize the Department of Trade and Industry to cope with the need of a
streamlined bureaucracy.
31

Thus, there is not real inconsistency between LOI 444 and EO 133. There is, admittedly, a rearranging of
the administrative functions among the administrative bodies affective by the edict, but not an abolition
of executive power. Consistency in statutes as in executive issuances, is of prime importance, and, in the
absence of a showing to the contrary, all laws are presumed to be consistent with each other. Where it
is possible to do so, it is the duty of courts, in the construction of statutes, to harmonize and reconcile
them, and to adopt a construction of a statutory provision which harmonizes and reconciles it with
other statutory provisions.
32
The fact that a later enactment may relate to the same subject matter as
that of an earlier statute is not of itself sufficient to cause an implied repeal of the latter, since the law
may be cumulative or a continuation of the old one.
33

Similarly, the grant of quasi-legislative powers in administrative bodies is not unconstitutional. Thus, as a
result of the growing complexity of the modern society, it has become necessary to create more and
more administrative bodies to help in the regulation of its ramified activities. Specialized in the
particular field assigned to them, they can deal within the problems thereof with more expertise and
dispatch than can be expected from the legislature or the courts of justice. This is the reason for the
increasing vesture of quasi-legislative and quasi-judicial powers in what is now not unreasonably called
the fourth department of the government.
34
Evidently, in the exercise of such powers, the agency
concerned must commonly interpret and apply contracts and determine the rights of private parties
under such contracts. One thrust of the multiplication of administrative agencies is that the
interpretation of contracts and the determination of private rights thereunder is no longer uniquely
judicial function, exercisable only by our regular courts. (Antipolo Realty Corporation vs. National
Housing Authority, G.R. No.
L-50444, August 31, 1987, 153 SCRA 399).
With global trade and business becoming more intricate may even with new discoveries in technology
and electronics notwithstanding, the time has come to grapple with legislations and even judicial
decisions aimed at resolving issues affecting not only individual rights but also activities of which foreign
governments or entities may have interests. Thus, administrative policies and regulations must be
devised to suit these changing business needs in a faster rate than to resort to traditional acts of the
legislature.
This tendency finds support in a well-stated work on the subject, viz.:
89

Since legislatures had neither the time nor the knowledge to create detailed rules, however, it
was soon clear that new governmental arrangements would be needed to handle the job of
rule-making. The courts, moreover, many of them already congested, would have been
swamped if they had to adjudicate all the controversies that the new legislation was bound to
create; and the judges, already obliged to handle a great diversity of cases, would have been
hard pressed to acquire the knowledge they needed to deal intelligently with all the new types
of controversy.
So the need to "create a large number of specialized administrative agencies and to give them
broader powers than administrators had traditionally exercised. These included the power to
issue regulations having the force of law, and the power to hear and decide cases powers
that had previously been reserved to the legislatures and the courts. (Houghteling/Pierce,
Lawmaking by Administrative Agencies, p. 166)
The respondents likewise argue that PITC is not empowered to issue the Administrative Order because
no grant of such power was made under the Trade Protocols of 1989, 1990 or 1991. We do not agree.
The Trade Protocols aforesaid, are only the enumeration of the products and goods which signatory
countries have agreed to trade. They do not bestow any regulatory power, for executive power is vested
in the Executive Department,
35
and it is for the latter to delegate the exercise of such power among its
designated agencies.
In sum, the PITC was legally empowered to issue Administrative Orders, as a valid exercise of a power
ancillary to legislation.
This does not imply however, that the subject Administrative Order is a valid exercise of such quasi-
legislative power. The original Administrative Order issued on August 30, 1989, under which the
respondents filed their applications for importation, was not published in the Official Gazette or in a
newspaper of general circulation. The questioned Administrative Order, legally, until it is published, is
invalid within the context of Article 2 of Civil Code, which reads:
Art. 2. Laws shall take effect fifteen days following the completion of their publication in the
Official Gazette (or in a newspaper of general circulation in the Philippines), unless it is
otherwise provided. . . .
The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed with, and
published by the UP Law Center in the National Administrative Register, does not cure the defect related
to the effectivity of the Administrative Order.
This court, in Tanada vs. Tuvera stated, thus:
We hold therefore that all statutes, including those of local application and private laws, shall be
published as a condition for their effectivity, which shall begin fifteen days after publication
unless a different effectivity is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the President
in the exercise of legislative powers or, at present, directly conferred by the Constitution.
Administrative Rules and Regulations must also be published if their purpose is to enforce or
implement existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and not the public, need not be published. Neither is
publication required of the so-called letters of instructions issued by administrative superiors
90

concerning the rules or guidelines to be followed by their subordinates in the performance of
their duties
xxx xxx xxx
We agree that the publication must be in full or it is no publication at all since its purpose is to
inform the public of the contents of the laws.
The Administrative Order under consideration is one of those issuances which should be published for
its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid
delegation, i.e., P.D. 1071, in relation to LOI 444 and EO 133.
Thus, even before the trade balancing measures issued by the petitioner were lifted by President Fidel
V. Ramos, the same were never legally effective, and private respondents, therefore, cannot be made
subject to them, because Administrative Order 89-08-01 embodying the same was never published, as
mandated by law, for its effectivity. It was only on March 30, 1992 when the amendments to the said
Administrative Order were filed in the UP Law Center, and published in the National Administrative
Register as required by the Administrative Code of 1987.
Finally, it is the declared Policy of the Government to develop and strengthen trade relations with the
People's Republic of China. As declared by the President in EO 244 issued on May 12, 1995, continued
coverage of the People's Republic of China by Letter of Instructions No. 444 is no longer consistent with
the country's national interest, as coursing RP-PROC trade through the PITC as provided for under Letter
of Instructions No. 444 is becoming an unnecessary barrier to trade.


Conformably with such avowed policy, any remnant of the restrained atmosphere of trading between
the Philippines and PROC should be done away with, so as to allow economic growth and renewed trade
relations with our neighbors to flourish and may be encouraged.
ACCORDINGLY, the assailed decision of the lower court is hereby AFFIRMED, to the effect that judgment
is hereby rendered in favor of the private respondents, subject to the following MODIFICATIONS:
1) Enjoining the petitioner:
a) From further charging the petitioners the Counter Export Development Service fee of 0.5% of the
total value of the unliquidated or unfulfilled Undertakings of the private respondents;
b) From further implementing the provisions of Administrative Order No. SOCPEC 89-08-01 and its
appurtenant rules; and,
2) Requiring petitioner to approve forthwith all the pending applications of, and all those that may
hereafter be filed by, the petitioner and the Intervenor, free from and without complying with the
requirements prescribed in the above-stated issuances.
SO ORDERED.




91

G.R. No. 108461 October 21, 1996
PHILIPPINE INTERNATIONAL TRADING CORPORATION, petitioner,
vs.
HON. PRESIDING JUDGE ZOSIMO Z. ANGELES, BRANCH 58, RTC, MAKATI; REMINGTON INDUSTRIAL SALES
CORPORATION; AND FIRESTONE CERAMIC, INC., respondents.
The PHILIPPINE INTERNATIONAL TRADING CORPORATION (PITC, for brevity) filed this Petition for Review
on Certiorari, seeking the reversal of the Decision dated January 4, 1993 of public respondent Hon.
Zosimo Z. Angeles, Presiding Judge of the Regional Trial Court of Makati, Branch 58, in Civil Case No. 92-
158 entitled Remington Industrial Sales Corporation, et. al. vs. Philippine Industrial Trading Corporation.
The said decision upheld the Petition for Prohibition and Mandamus of REMINGTON INDUSTRIAL SALES
CORPORATION (Remington, for brevity) and FIRESTONE CERAMICS, INC. (Firestone, for brevity), and, in
the process, declared as null and void and unconstitutional, PITC's Administrative Order No. SOCPEC 89-
08-01 and its appurtenant regulations. The dispositive portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor of Petitioner and
Intervenor and against the Respondent, as follows:
1) Enjoining the further implementation by the respondent of the following issuances relative to
the applications for importation of products from the People's Republic of China, to wit:
a) Administrative Order No. SOCPEC 89-08-01 dated August 30, 1989 (Annex A, Amended
Petition);
b) Prescribed Export Undertaking Form (Annex B, Id.);
c) Prescribed Importer-Exporter Agreement Form for non-exporter-importer (Annex C, Id.);
d) Memorandum dated April 16, 1990 relative to amendments of Administrative Order No.
SOCPEC 89-08-01 (Annex D, Id.);
e) Memorandum dated May 6, 1991 relative to Revised Schedule of Fees for the processing of
import applications (Annexes E, E-1., Ind.);
f) Rules and Regulations relative to liquidation of unfulfilled Undertakings and expired export
credits (Annex Z, Supplemental Petition),
the foregoing being all null and void and unconstitutional; and,
2) Commanding respondent to approve forthwith all the pending applications of, and all those
that may hereafter be filed by, the petitioner and the Intervenor, free from and without the
requirements prescribed in the above-mentioned issuances.
IT IS SO ORDERED.
The controversy springs from the issuance by the PITC of Administrative Order No. SOCPEC 89-08-01,
1

under which, applications to the PITC for importation from the People's Republic of China (PROC, for
brevity) must be accompanied by a viable and confirmed Export Program of Philippine Products to PROC
carried out by the improper himself or through a tie-up with a legitimate importer in an amount
equivalent to the value of the importation from PROC being applied for, or, simply, at one is to one ratio.
92

Pertinent provisions of the questioned administrative order read:
3. COUNTERPART EXPORTS TO PROC
In addition to existing requirements for the processing of import application for goods and
commodities originating from PROC, it is declared that:
3.1 All applications covered by these rules must be accompanied by a viable and
confirmed EXPORT PROGRAM of Philippine products to PROC in an amount
equivalent to the value of the importation from PROC being applied for. Such
export program must be carried out and completed within six (6) months from
date of approval of the Import Application by PITC. PITC shall reject/deny any
application for importation from PROC without the accompanying export
program mentioned above.
3.2 The EXPORT PROGRAM may be carried out by any of the following:
a. By the IMPORTER himself if he has the capabilities and
facilities to carry out the export of Philippine products to PROC
in his own name; or
b. Through a tie-up between the IMPORTER and a legitimate
exporter (of Philippine products) who is willing to carry out the
export commitments of the IMPORTER under these rules. The
tie-up shall not make the IMPORTER the exporter of the goods
but shall merely ensure that the importation sought to be
approved is matched one-to-one (1:1) in value with a
corresponding export of Philippine products to PROC.
2

3.3 EXPORT PROGRAM DOCUMENTS which are to be submitted by the improper
together with his Import Application are as follows:
a) Firm Contract, Sales Invoice or Letter of Credit.
b) Export Performance Guarantee (See Article 4 hereof).
c) IMPORTER-EXPORTER AGREEMENT for non-exporter
IMPORTER (PITC Form No. M-1006). This form should be used if
IMPORTER has tie-up with an exporter for the export of
Philippine Products to PROC.
4. EXPORT GUARANTEE
To ensure that the export commitments of the IMPORTER are carried out in accordance with
these rules, all IMPORTERS concerned are required to submit an EXPORT PERFORMANCE
GUARANTEE (the "Guarantee") at the time of filing of the Import Application. The amount of the
guarantee shall be as follows:
For essential commodities: 15% of the value of the imports applied for.
For other commodities: 50% of the value of the imports applied for.
93

4.1 The guarantee may be in the form of (i) a non-interest bearing cash deposit;
(ii) Bank hold-out in favor of PITC (PITC Form No. M-1007) or (iii) a Domestic
Letter of Credit (with all bank opening charges for account of Importer) opened
in favor of PITC as beneficiary.
4.2 The guarantee shall be made in favor of PITC and will be automatically
forfeited in favor of PITC, fully or partially, if the required export program is not
completed by the importer within six (6) months from date of approval of the
Import Application.
4.3 Within the six (6) months period above stated, the IMPORTER is entitled to a
(i) refund of the cash deposited without interest; (ii) cancellation of the Bank
holdout or (iii) Cancellation of the Domestic Letter of Credit upon showing that
he has completed the export commitment pertaining to his importation and
provided further that the following documents are submitted to PITC:
a) Final Sales Invoice
b) Bill of lading or Airway bill
c) Bank Certificate of Inward Remittance
d) PITC EXPORT APPLICATION FOR NO. M-1005
5. MISCELLANEOUS
5.1 All other requirements for importations of goods and commodities from
PROC must be complied with in addition to the above.
5.2 PITC shall have the right to disapprove any and all import applications not in
accordance with the rules and regulations herein prescribed.
5.3 Should the IMPORTER or any of his duly authorized representatives make
any false statements or fraudulent misrepresentations in the Import/Export
Application, or falsify, forge or simulate any document required under these
rules and regulations, PITC is authorized to reject all pending and future
import/export applications of said IMPORTER and/or disqualify said IMPORTER
from doing any business with SOCPEC through PITC.
Desiring to make importations from PROC, private respondents Remington and Firestone, both domestic
corporations, organized and existing under Philippine laws, individually applied for authority to import
from PROC with the petitioner. They were granted such authority after satisfying the requirements for
importers, and after they executed respective undertakings to balance their importations from PROC
with corresponding export of Philippine products to PROC.
Private respondent Remington was allowed to import tools, machineries and other similar goods.
Firestone, on the other hand, imported Calcine Vauxite, which it used for the manufacture of fire bricks,
one of its products.
Subsequently, for failing to comply with their undertakings to submit export credits equivalent to the
value of their importations, further import applications were withheld by petitioner PITC from private
respondents, such that the latter were both barred from importing goods from PROC.
3

Consequently, Remington filed a Petition for Prohibition and Mandamus, with prayer for issuance of
Temporary Restraining Order and/or Writ of Preliminary Injunction on January 20, 1992, against PITC in
the RTC Makati Branch 58.
4
The court issued a Temporary Restraining Order on January 21, 1992,
94

ordering PITC to cease from exercising any power to process applications of goods from PROC.
5
Hearing
on the application for writ of preliminary injunction ensued.
Private respondent Firstone was allowed to intervene in the petition on July 2, 1992,
6
thus joining
Remington in the latter's charges against PITC. It specifically asserts that the questioned Administrative
Order is an undue restriction of trade, and hence, unconstitutional.
Upon trial, it was agreed that the evidence adduced upon the hearing on the Preliminary Injunction was
sufficient to completely adjudicate the case, thus, the parties deemed it proper that the entire case be
submitted for decision upon the evidence so far presented.
The court rendered its Decision
7
on January 4, 1992. The court ruled that PITC's authority to process and
approve applications for imports from SOCPEC and to issue rules and regulations pursuant to LOI 444
and P.D. No. 1071, has already been repealed by EO No. 133, issued on February 27, 1987 by President
Aquino.
The court observed:
Given such obliteration and/or withdrawal of what used to be PITC's regulatory authority under
the Special provisions embodied in LOI 444 from the enumeration of power that it could
exercise effective February 27, 1987 in virtue of Section 16 (d), EO No. 133, it may now be
successfully argued that the PITC can no longer exercise such specific regulatory power in
question conformably with the legal precept "expresio unius est exclusio alterius."
Moreover, the court continued, none of the Trade protocols of 1989, 1990 or 1991, has empowered the
PITC, expressly or impliedly to formulate or promulgate the assailed Administrative Order. This fact,
makes the continued exercise by PITC of the regulatory powers in question unworthy of judicial
approval. Otherwise, it would be sanctioning an undue exercise of legislative power vested solely in the
Congress of the Philippines by Section, 1, Article VII of the 1987 Philippine Constitution.
The lower court stated that the subject Administrative Order and other similar issuances by PITC suffer
from serious constitutional infirmity, having been promulgated in pursuance of an international
agreement (the Memorandum of Agreement between the Philippines and PROC), which has not been
concurred in by at least 2/3 of all the members of the Philippine Senate as required by Article VII,
Section 21, of the 1987 Constitution, and therefore, null and void.
Sec. 21. No treaty or international agreement shall be valid and effective unless concurred in by
at least two-thirds of all the Members of the Senate.
Furthermore, the subject Administrative Order was issued in restraint of trade, in violation of Sections 1
and 19, Article XII of the 1987 Constitution, which reads:
Sec. 1. The goals of the national economy are a more equitable distribution of opportunities,
income and wealth; a sustained increase in the amount of goods and services produced by the
nation for the benefit of the people; and, an expanding productivity as the key to raising the
equality of life for all, especially the underprivileged.
Sec. 19. The State shall regulate or prohibit monopolies when the public interest so requires. No
combination in restraint of trade or unfair competition shall be allowed.
Lastly, the court declared the Administrative Order to be null and void, since the same was not
published, contrary to Article 2 of the New Civil Code which provides, that:
95

Art. 2. Laws shall take effect fifteen (15) days following the completion of their publication in the
Official Gazette, unless the law otherwise provides. . . .
Petitioner now comes to use on a Petition for Review on Certiorari,
8
questioning the court's decision
particularly on the propriety of the lower court's declarations on the validity of Administrative Order No.
89-08-01. The Court directed the respondents to file their respective Comments.
Subsequent events transpired, however, which affect to some extent, the submissions of the parties to
the present petition.
Following President Fidel V. Ramos' trip to Beijing, People's Republic of China (PROC), from April 25 to
30, 1993, a new trade agreement was entered into between the Philippines and PROC, encouraging
liberalization of trade between the two countries. In line therewith, on April 20, 1993, the President,
through Chief Presidential Legal Counsel Antonio T. Carpio, directed the Department of Trade and
Industry and the PITC to cease implementing Administrative Order No. SOCPEC 89-08-01, as amended
by PITC Board Resolution Nos. 92-01-05 and 92-03-08.
9

In the implementation of such order, PITC President Jose Luis U. Yulo, Jr. issued a corporate
Memorandum
10
instructing that all import applications for the PROC filed with the PITC as of April 20,
1993 shall no longer be covered by the trade balancing program outlined in the Administrative Order.
Forthwith, the PITC allowed the private respondents to import anew from the PROC, without being
required to comply anymore with the lifted requirement of balancing its imports with exports of
Philippine products to PROC.
11
In its Constancia
12
filed with the Court on November 22, 1993,
Remington expressed its desire to have the present action declared moot and academic considering the
new supervening developments. For its part, respondent Firestone made a Manifestation
13
in lieu of its
Memorandum, informing the court of the aforesaid developments of the new trade program of the
Philippines with China, and prayed for the court's early resolution of the action.
To support its submission that the present action is now moot and academic, respondent Remington
cites Executive Order No. 244,
14
issued by President Ramos on May 12, 1995. The Executive Order
states:
WHEREAS, continued coverage of the People's Republic of China by Letter of Instructions No.
444 is no longer consistent with the country's national interest, as coursing Republic of the
Philippines-People's Republic China Trade through the Philippine International Trading
Corporations as provided for under Letter of Instructions No. 444 is becoming an unnecessary
barrier to trade;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of
the powers vested in me by law, do hereby order;
The Committee on Scientific and Technical Cooperation with Socialist Countries to delete the
People's Republic of China from the list of countries covered by Letter of Instructions No. 444.
Done in the City of Manila, this 12th day of May in the year of Our Lord, Nineteen Hundred and
Ninety-Five.
PITC filed its own Manifestation
15
on December 15, 1993, wherein it adopted the arguments raised in its
Petition as its Memorandum. PITC disagrees with Remington on the latter's submission that the case has
become moot and academic as a result of the abrogation of Administrative Order SOCPEC No. 89-08-01,
since respondent Remington had incurred obligations to the petitioner consisting of charges for the
0.5% Counter Export Development Service provided by PITC to Remington, which obligations remain
96

outstanding.
16
The propriety of such charges must still be resolved, petitioner argues, thereby
maintaining the issue of the validity of SOCPEC Order No. 89-08-01, before it was abrogated by
Executive fiat.
There is no question that from April 20, 1993, when trading balancing measures with PROC were lifted
by the President, Administrative Order SOCPEC No. 89-08-01 no longer has force and effect, and
respondents are thus entitled anew to apply for authority to import from the PROC, without the trade
balancing requirements previously imposed on proposed importers. Indeed, it appears that since the
lifting of the trade balancing measures, Remington had been allowed to import anew from PROC.
There remains, however, the matter of the outstanding obligations of the respondent for the charges
relating to the 0.5% Counter Export Development Service in favor of PITC, for the period when the
questioned Administrative Order remained in effect. Is the obligation still subsisting, or are the
respondents freed from it?
To resolve this issue, we are tasked to consider the constitutionality of Administrative Order No. SOCPEC
89-08-01, based on the arguments set up by the parties in their Petition and Comment. In so doing, we
must inquire into the nature of the functions of the PITC, in the light of present realities.
The PITC is a government owned or controlled corporation created under P.D. No. 252
1
7 dated August
6, 1973. P.D. No. 1071,
18
issued on May 9, 1977 which revised the provisions of P.D. 252. The purposes
and powers of the said governmental entity were enumerated under Section 5 and 6 thereof.
19

On August 9, 1976, the late President Ferdinand Marcos issued Letter of Instruction (LOI) No. 444,
20

directing, inter alia, that trade (export or import of all commodities), whether direct or indirect,
between the Philippines and any of the Socialist and other Centrally Planned Economy Countries
(SOCPEC), including the People's Republic of China (PROC) shall be undertaken or coursed through the
PITC. Under the LOI, PITC was mandated to: 1) participate in all official trade and economic discussions
between the Philippines and SOCPEC; 2) adopt such measures and issue such rules and regulations as
may be necessary for the effective discharge of its functions under its instructions; and, 3) undertake the
processing and approval of all applications for export to or import from the SOCPEC.
Pertinent provisions of the Letter of Instruction are herein reproduced:
LETTER OF INSTRUCTION 444
xxx xxx xxx
II. CHANNELS OF TRADE
1. The trade, direct or indirect, between the Philippines and any of the Socialist and other
centrally-planned economy countries shall upon issuance hereof, be undertaken by or coursed
through the Philippine International Trading Corporation. This shall apply to the export and
import of all commodities of products including those specified for export or import by expressly
authorized government agencies.
xxx xxx xxx
4. The Philippine International Trading Corporation shall participate in all official trade and
economic discussions between the Philippines and other centrally-planned economy countries.
xxx xxx xxx
97

V. SPECIAL PROVISIONS
The Philippine International Trading Corporation shall adopt such measures and issue such rules
and regulations as may be necessary for the effective discharge of its functions under these
instructions. In this connection, the processing and approval of applications for export to or
import from the Socialist and other centrally-planned economy countries shall, henceforth, be
performed by the said Corporation. (Emphasis ours)
After the EDSA Revolution, or more specifically on February 27, 1987, then President Corazon C. Aquino
promulgated Executive Order (EO) No.
133
21
reorganizing the Department of Trade and Industry (DTI) empowering the said department to be
the "primary coordinative, promotive, facilitative and regulatory arm of the government for the
country's trade, industry and investment activities" (Sec. 2, EO 133). The PITC was made one of DTI's line
agencies.
22

The Executive Order reads in part:
EXECUTIVE ORDER NO. 133
xxx xxx xxx
Sec. 16. Line Corporate Agencies and Government Entities.
The following line corporate agencies and government entities defined in Section 9 (c) of this
Executive Order that will perform their specific regulatory functions, particularly developmental
responsibilities and specialized business activities in a manner consonant with the Department
mandate, objectives, policies, plans and programs:
xxx xxx xxx
d) Philippine International Trading Corporation. This corporation, which shall be supervised
by the Undersecretary for International Trade, shall only engage in both export and trading on
new or non-traditional products and markets not normally pursued by the private business
sector; provide a wide range of export oriented auxiliary services to the private sector; arrange
for or establish comprehensive system and physical facilities for handling the collection,
processing, and distribution of cargoes and other commodities; monitor or coordinate risk
insurance services for existing institutions; promote and organize, whenever warranted,
production enterprises and industrial establishments and collaborate or associate in joint
venture with any person, association, company or entity, whether domestic or foreign, in the
fields of production, marketing, procurement, and other relate businesses; and provide
technical advisory, investigatory, consultancy and management services with respect to any and
all of the functions, activities, and operations of the corporation.
Sometime in April, 1988, following the State visit of President Aquino to the PROC, the Philippines and
PROC entered into a Memorandum of Understanding
23
(MOU) wherein the two countries agreed to
make joint efforts within the next five years to expand bilateral trade to US $600 US $800 Million by
1992, and to strive for a steady progress towards achieving a balance between the value of their imports
and exports during the period, agreeing for the purpose that upon the signing of the Memorandum,
both sides shall undertake to establish the necessary steps and procedures to be adopted within the
framework of the annual midyear review meeting under the Trade Protocol, in order to monitor and
ensure the implementation of the MOU.
98

Conformably with the MOU, the Philippines and PROC entered into a Trade Protocol for the years 1989,
1990 and 1991,
24
under which was specified the commodities to be traded between them. The
protocols affirmed their agreement to jointly endeavor between them. The protocols affirmed their
agreement to jointly endeavor to achieve more or less a balance between the values of their imports
and exports in their bilateral trade.
It is allegedly in line with its powers under LOI 444 and in keeping with the MOU and Trade Protocols
with PROC that PITC issued its now assailed Administrative Order No. SOCPEC 89-08-01
25
on August 30,
1989 (amended in March, 1992).
Undoubtedly, President Aquino, in issuing EO 133, is empowered to modify and amend the provisions of
LOI 444, which was issued by then President Marcos, both issuances being executive directives. As
observed by us in Philippine Association of Services Exporters, Inc. vs. Torres,
26

there is no need for legislative delegation of power to the President to revoke the Letter of
Instruction by way of an Executive Order. This is notwithstanding the fact that the subject LOI
1190 was issued by President Marcos, when he was extraordinarily empowered to exercise
legislative powers, whereas EO 450 was issued by Pres. Aquino when her transitional legislative
powers have already ceased, since it was found that LOI 1190 was a mere administrative
directive, hence, may be repealed, altered, or modified by EO 450.
We do not agree, however, with the trial court's ruling PITC's authority to issue rules and regulations
pursuant to the Special Provision of LOI 444 and P.D. No. 1071, have already been repealed by EO 133.
While PITC's power to engage in commercial import and export activities is expressly recognized and
allowed under Section 16 (d) of EO 133, the same is not limited only to new or non-traditional products
and markets not normally pursued by the private business sector. There is not indication in the law of
the removal of the powers of the PITC to exercise its regulatory functions in the area of importations
from SOCPEC countries. Though it does not mention the grant of regulatory power, EO 133, as worded,
is silent as to the abolition or limitation of such powers, previously granted under P.D. 1071, from the
PITC.
Likewise, the general repealing clause in EO 133 stating that "all laws, ordinances, rules, and regulations,
or other parts thereof, which are inconsistent with the Executive Order are hereby repealed or modified
accordingly, cannot operate to abolish the grant of regulatory powers to the PITC. There can be no
repeal of the said powers, absent any cogency of irreconcilable inconsistency or repugnancy between
the issuances, relating to the regulatory power of the PITC.
The President, in promulgating EO 133, had not intended to overhaul the functions of the PITC. The DTI
was established, and was given powers and duties including those previously held by the PITC as an
independent government entity, under P.D. 1071 and LOI 444. The PITC was thereby attached to the DTI
as an implementing arm of the said department.
EO 133 established the DTI as the primary coordinative, promotive, facilitative and regulatory arm of
government for the country's trade, industry and investment activities, which shall act as a catalyst for
intensified private sector activity in order to accelerate and sustain economic growth.
2
7 In furtherance
of this mandate, the DTI was empowered, among others, to plan, implement, and coordinate activities
of the government related to trade industry and investments; to formulate and administer policies and
guidelines for the investment priorities plan and the delivery of investment incentives; to formulate
country and product export strategies which will guide the export promotion and development thrusts
of the government.
28
Corollarily, the Secretary of Trade and Industry is given the power to promulgate
rules and regulations necessary to carry out the department's objectives, policies, plans, programs and
projects.
99

The PITC, on the other hand, was attached as an integral part to the said department as one of its line
agencies,
29
and given the focal task of implementing the department's programs.
30
The absence of the
regulatory power formerly enshrined in the Special Provision of LOI 444, from Section 16 of EO 133, and
the limitation of its previously wide range of functions, is noted. This does not mean, however, that PITC
has lost the authority to issue the questioned Administrative Order. It is our view that PITC still holds
such authority, and may legally exercise it, as an implementing arm, and under the supervision of, the
Department of Trade and Industry.
Furthermore, the lower court's ruling to the effect that the PITC's authority to process and approve
applications for imports from SOCPEC and to issue rules and regulations pursuant to LOI 444 and P.D.
1071 has been repealed by EO 133, is misplaced, and did not consider the import behind the issuance of
the later presidential edict.
The President could not have intended to deprive herself of the power to regulate the flow of trade
between the Philippines and PROC under the two countries' Memorandum of Understanding, a power
which necessarily flows from her office as Chief Executive. In issuing Executive Order 133, the President
intended merely to reorganize the Department of Trade and Industry to cope with the need of a
streamlined bureaucracy.
31

Thus, there is not real inconsistency between LOI 444 and EO 133. There is, admittedly, a rearranging of
the administrative functions among the administrative bodies affective by the edict, but not an abolition
of executive power. Consistency in statutes as in executive issuances, is of prime importance, and, in the
absence of a showing to the contrary, all laws are presumed to be consistent with each other. Where it
is possible to do so, it is the duty of courts, in the construction of statutes, to harmonize and reconcile
them, and to adopt a construction of a statutory provision which harmonizes and reconciles it with
other statutory provisions.
32
The fact that a later enactment may relate to the same subject matter as
that of an earlier statute is not of itself sufficient to cause an implied repeal of the latter, since the law
may be cumulative or a continuation of the old one.
33

Similarly, the grant of quasi-legislative powers in administrative bodies is not unconstitutional. Thus, as a
result of the growing complexity of the modern society, it has become necessary to create more and
more administrative bodies to help in the regulation of its ramified activities. Specialized in the
particular field assigned to them, they can deal within the problems thereof with more expertise and
dispatch than can be expected from the legislature or the courts of justice. This is the reason for the
increasing vesture of quasi-legislative and quasi-judicial powers in what is now not unreasonably called
the fourth department of the government.
34
Evidently, in the exercise of such powers, the agency
concerned must commonly interpret and apply contracts and determine the rights of private parties
under such contracts. One thrust of the multiplication of administrative agencies is that the
interpretation of contracts and the determination of private rights thereunder is no longer uniquely
judicial function, exercisable only by our regular courts. (Antipolo Realty Corporation vs. National
Housing Authority, G.R. No.
L-50444, August 31, 1987, 153 SCRA 399).
With global trade and business becoming more intricate may even with new discoveries in technology
and electronics notwithstanding, the time has come to grapple with legislations and even judicial
decisions aimed at resolving issues affecting not only individual rights but also activities of which foreign
governments or entities may have interests. Thus, administrative policies and regulations must be
devised to suit these changing business needs in a faster rate than to resort to traditional acts of the
legislature.
This tendency finds support in a well-stated work on the subject, viz.:
100

Since legislatures had neither the time nor the knowledge to create detailed rules, however, it
was soon clear that new governmental arrangements would be needed to handle the job of
rule-making. The courts, moreover, many of them already congested, would have been
swamped if they had to adjudicate all the controversies that the new legislation was bound to
create; and the judges, already obliged to handle a great diversity of cases, would have been
hard pressed to acquire the knowledge they needed to deal intelligently with all the new types
of controversy.
So the need to "create a large number of specialized administrative agencies and to give them
broader powers than administrators had traditionally exercised. These included the power to
issue regulations having the force of law, and the power to hear and decide cases powers
that had previously been reserved to the legislatures and the courts. (Houghteling/Pierce,
Lawmaking by Administrative Agencies, p. 166)
The respondents likewise argue that PITC is not empowered to issue the Administrative Order because
no grant of such power was made under the Trade Protocols of 1989, 1990 or 1991. We do not agree.
The Trade Protocols aforesaid, are only the enumeration of the products and goods which signatory
countries have agreed to trade. They do not bestow any regulatory power, for executive power is vested
in the Executive Department,
35
and it is for the latter to delegate the exercise of such power among its
designated agencies.
In sum, the PITC was legally empowered to issue Administrative Orders, as a valid exercise of a power
ancillary to legislation.
This does not imply however, that the subject Administrative Order is a valid exercise of such quasi-
legislative power. The original Administrative Order issued on August 30, 1989, under which the
respondents filed their applications for importation, was not published in the Official Gazette or in a
newspaper of general circulation. The questioned Administrative Order, legally, until it is published, is
invalid within the context of Article 2 of Civil Code, which reads:
Art. 2. Laws shall take effect fifteen days following the completion of their publication in the
Official Gazette (or in a newspaper of general circulation in the Philippines), unless it is
otherwise provided. . . .
The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed with, and
published by the UP Law Center in the National Administrative Register, does not cure the defect related
to the effectivity of the Administrative Order.
This court, in Tanada vs. Tuvera 36 stated, thus:
We hold therefore that all statutes, including those of local application and private laws, shall be
published as a condition for their effectivity, which shall begin fifteen days after publication
unless a different effectivity is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the President
in the exercise of legislative powers or, at present, directly conferred by the Constitution.
Administrative Rules and Regulations must also be published if their purpose is to enforce or
implement existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and not the public, need not be published. Neither is
publication required of the so-called letters of instructions issued by administrative superiors
101

concerning the rules or guidelines to be followed by their subordinates in the performance of
their duties
xxx xxx xxx
We agree that the publication must be in full or it is no publication at all since its purpose is to
inform the public of the contents of the laws.
The Administrative Order under consideration is one of those issuances which should be published for
its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid
delegation, i.e., P.D. 1071, in relation to LOI 444 and EO 133.
Thus, even before the trade balancing measures issued by the petitioner were lifted by President Fidel
V. Ramos, the same were never legally effective, and private respondents, therefore, cannot be made
subject to them, because Administrative Order 89-08-01 embodying the same was never published, as
mandated by law, for its effectivity. It was only on March 30, 1992 when the amendments to the said
Administrative Order were filed in the UP Law Center, and published in the National Administrative
Register as required by the Administrative Code of 1987.
Finally, it is the declared Policy of the Government to develop and strengthen trade relations with the
People's Republic of China. As declared by the President in EO 244 issued on May 12, 1995, continued
coverage of the People's Republic of China by Letter of Instructions No. 444 is no longer consistent with
the country's national interest, as coursing RP-PROC trade through the PITC as provided for under Letter
of Instructions No. 444 is becoming an unnecessary barrier to trade.
3
7
Conformably with such avowed policy, any remnant of the restrained atmosphere of trading between
the Philippines and PROC should be done away with, so as to allow economic growth and renewed trade
relations with our neighbors to flourish and may be encouraged.
ACCORDINGLY, the assailed decision of the lower court is hereby AFFIRMED, to the effect that judgment
is hereby rendered in favor of the private respondents, subject to the following MODIFICATIONS:
1) Enjoining the petitioner:
a) From further charging the petitioners the Counter Export Development Service fee of 0.5% of the
total value of the unliquidated or unfulfilled Undertakings of the private respondents;
b) From further implementing the provisions of Administrative Order No. SOCPEC 89-08-01 and its
appurtenant rules; and,
2) Requiring petitioner to approve forthwith all the pending applications of, and all those that may
hereafter be filed by, the petitioner and the Intervenor, free from and without complying with the
requirements prescribed in the above-stated issuances.
SO ORDERED.




102

G.R. No. 124772 August 14, 2007
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT and MAGTANGGOL C. GUNIGUNDO, in his capacity as
CHAIRMAN thereof, petitioners,
vs.
SANDIGANBAYAN and OFFICECO HOLDINGS, N.V., respondents.
Before this Court is a Petition for Certiorari and Prohibition with Prayer for Issuance of a Temporary Restraining
Order filed by the Presidential Commission on Good Government (PCGG) to restrain and enjoin respondent
Sandiganbayan from further proceeding with Civil Case No. 0164, and to declare null and void the Resolutions of
the Sandiganbayan (Second Division) dated 11 January 1996 and 29 March 1996, which denied PCGGs motion
to dismiss and motion for reconsideration, respectively, in Civil Case No. 0164.
The antecedent facts follow.
On 7 April 1986, in connection with criminal proceedings initiated in the Philippines to locate, sequester and
seek restitution of alleged ill-gotten wealth amassed by the Marcoses and other accused from the Philippine
Government,
1
the Office of the Solicitor General (OSG) wrote the Federal Office for Police Matters in Berne,
Switzerland, requesting assistance for the latter office to: (a) ascertain and provide the OSG with information as
to where and in which cantons the ill-gotten fortune of the Marcoses and other accused are located, the names
of the depositors and the banks and the amounts involved; and (b) take necessary precautionary measures, such
as sequestration, to freeze the assets in order to preserve their existing value and prevent any further transfer
thereof (herein referred to as the IMAC request).
2

On 29 May 1986, the Office of the District Attorney in Zurich, pursuant to the OSGs request, issued an Order
directing the Swiss Banks in Zurich to freeze the accounts of the accused in PCGG I.S. No. 1 and in the "List of
Companies and Foundations."
3
In compliance with said Order, Bankers Trust A.G. (BTAG) of Zurich froze the
accounts of Officeco Holdings, N.V. (Officeco).
4

Officeco appealed the Order of the District Attorney to the Attorney General of the Canton of Zurich. The
Attorney General affirmed the Order of the District Attorney.
5
Officeco further appealed to the Swiss Federal
Court which likewise dismissed the appeal on 31 May 1989.
6

Thereafter, in late 1992, Officeco made representations with the OSG and the PCGG for them to officially advise
the Swiss Federal Office for Police Matters to unfreeze Officecos assets.
7
The PCGG required Officeco to present
countervailing evidence to support its request.
Instead of complying with the PCGG requirement for it to submit countervailing evidence, on 12 September
1994, Officeco filed the complaint
8
which was docketed as Civil Case No. 0164 of the Sandiganbayan. The
complaint prayed for the PCGG and the OSG to officially advise the Swiss government to exclude from the freeze
or sequestration order the account of Officeco with BTAG and to unconditionally release the said account to
Officeco.
The OSG filed a joint answer
9
on 24 November 1994 in behalf of all the defendants in Civil Case No. 0164.
10
On
12 May 1995, the PCGG itself filed a motion to dismiss
11
which was denied by the Sandiganbayan (Third Division)
in its Resolution promulgated on 11 January 1996.
12
PCGGs motion for reconsideration was likewise denied in
another Resolution dated 29 March 1996.
13
Hence, this petition.
On 20 May 1996, the Sandiganbayan issued an order in Civil Case No. 0164 canceling the pre-trial scheduled on
said date in deference to whatever action the Court may take on this petition.
14

The issues raised by the PCGG in its Memorandum
15
may be summarized as follows: whether the Sandiganbayan
erred in not dismissing Civil Case No. 0164 on the grounds of (1) res judicata; (2) lack of jurisdiction on account
103

of the "act of state doctrine"; (3) lack of cause of action for being premature for failure to exhaust administrative
remedies; and (4) lack of cause of action for the reason that mandamus does not lie to compel performance of a
discretionary act, there being no showing of grave abuse of discretion on the part of petitioners.
According to petitioners, the 31 May 1989 Decision of the Swiss Federal Court denying Officecos appeal from
the 29 May 1986 and 16 August 1988 freeze orders of the Zurich District Attorney and the Attorney General of
the Canton of Zurich, respectively, is conclusive upon Officecos claims or demands for the release of the subject
deposit accounts with BTAG. Thus, a relitigation of the same claims or demands cannot be done without
violating the doctrine of res judicata or conclusiveness of judgment.
16

Next, petitioners claim that Civil Case No. 0164 in effect seeks a judicial review of the legality or illegality of the
acts of the Swiss government since the Sandiganbayan would inevitably examine and review the freeze orders of
Swiss officials in resolving the case. This would be in violation of the "act of state" doctrine which states that
courts of one country will not sit in judgment on the acts of the government of another in due deference to the
independence of sovereignty of every sovereign state.
17

Furthermore, if the Sandiganbayan allowed the complaint in Civil Case No. 0164 to prosper, this would place the
Philippine government in an uncompromising position as it would be constrained to take a position contrary to
that contained in the IMAC request.
Petitioners allege that Officeco failed to exhaust the administrative remedies available under Secs. 5 and 6 of
the PCGG Rules and Regulations Implementing Executive Orders No. 1 and No. 2. This failure, according to
petitioners, stripped Officeco of a cause of action thereby warranting the dismissal of the complaint before the
Sandiganbayan.
Petitioners further contend that the complaint before the Sandiganbayan is actually one for mandamus but the
act sought by Officeco is discretionary in nature. Petitioners add that they did not commit grave abuse of
discretion in denying Officecos request to unfreeze its account with BTAG since the denial was based on
Officecos failure to present countervailing evidence to support its claim. The action for mandamus does not lie,
petitioners conclude.
In its comment,
18
Officeco questions the competence of the PCGG lawyers to appear in the case since they are
not properly authorized by the OSG to represent the Philippine government and/or the PCGG in ill-gotten
wealth cases such as the one in the case at bar. However, this issue has been rendered moot by an agreement
by and among the PCGG Chairman, the Solicitor General, the Chief Presidential Legal Counsel, and the Secretary
of Justice that the PCGG lawyers would enter their appearance as counsel of PCGG or the Republic and shall
directly attend to the various cases of the PCGG, by virtue of their deputization as active counsel.
19
Furthermore,
the Memorandum in this case which was prepared by the OSG reiterated the arguments in support of the
petition which was initially filed by PCGG.
Nevertheless, the petition is bereft of merit. We find that the Sandiganbayan did not act with grave abuse of
discretion in denying petitioners motion to dismiss.
Res judicata
<="" i=""> means a matter adjudged, a thing judicially acted upon or decided; a thing or matter settled by
judgment.
20
The doctrine of res judicata provides that a final judgment on the merits rendered by a court of
competent jurisdiction is conclusive as to the rights of the parties and their privies and constitutes an absolute
bar to subsequent actions involving the same claim, demand, or cause of action.
21

For the preclusive effect of res judicata to be enforced, the following requisites must obtain: (1) The former
judgment or order must be final; (2) It must be a judgment or order on the merits, that is, it was rendered after a
consideration of the evidence or stipulations submitted by the parties at the trial of the case; (3) It must have
104

been rendered by a court having jurisdiction over the subject matter and the parties; and (4) There must be,
between the first and second actions, identity of parties, of subject matter and of cause of action. This requisite
is satisfied if the two actions are substantially between the same parties.
22

While the first three elements above are present in this case, we rule that the fourth element is absent. Hence,
res judicata does not apply to prevent the Sandiganbayan from proceeding with Civil Case No. 0164.
Absolute identity of parties is not a condition sine qua non for res judicata to apply, a shared identity of interest
being sufficient to invoke the coverage of the principle.
23
In this regard, petitioners claim that while "the
Philippine government was not an impleaded party respondent in Switzerland," it is undisputed that "the
interest of the Philippine government is identical to the interest of the Swiss officials," harping on the fact that
the Swiss officials issued the freeze order on the basis of the IMAC request.
24
However, we fail to see how
petitioners can even claim an interest identical to that of the courts of Switzerland. Petitioners interest, as
reflected in their legal mandate, is to recover ill-gotten wealth, wherever the same may be located.
25
The
interest of the Swiss court, on the other hand, is only to settle the issues raised before it, which include the
propriety of the legal assistance extended by the Swiss authorities to the Philippine government.
Secondly, a subject matter is the item with respect to which the controversy has arisen, or concerning which the
wrong has been done, and it is ordinarily the right, the thing, or the contract under dispute.
26
In the case at bar,
the subject matter in the Swiss Federal Court was described in the 31 May 1989 decision itself as "ruling on
temporary measures (freezing of accounts) and of taking of evidence (gathering bank information)."
27
It was
thus concerned with determining (1) whether "there is a reason of exclusion as defined in Art. 2 lit. b and [Art. ]
3 par. 1 IRSG
28
or an applicable case of Art. 10 Par. 2 IRSG;"
29
(2) whether legal assistance should be refused on
the basis of Art. 2 lit. a IRSG;
30
(3) whether Officeco should be regarded as a disinterested party owing to the fact
that its name was not included in the list accompanying the IMAC request as well as in the order of the District
Attorney of Zurich; and (4) whether the grant of legal assistance is proper considering the actions of Gapud.
31
In
short, the subject matter before the Swiss courts was the propriety of the legal assistance extended to the
Philippine government. On the other hand, the issue in Civil Case No. 0164 is whether the PCGG may be
compelled to officially advise the Swiss government to exclude or drop from the freeze or sequestration order
the account of Officeco with BTAG and to release the said account to Officeco. In short, the subject matter in
Civil Case No. 0164 is the propriety of PCGGs stance regarding Officecos account with BTAG.
In arguing that there is identity of causes of action, petitioners claim that "the proofs required to sustain a
judgment for [Officeco] in Switzerland is no different from the proofs that it would offer in the Philippines." We
disagree.
A cause of action is an act or omission of one party in violation of the legal right of the other.
32
Causes of action
are identical when there is an identity in the facts essential to the maintenance of the two actions, or where the
same evidence will sustain both actions.
33
The test often used in determining whether causes of action are
identical is to ascertain whether the same facts or evidence would support and establish the former and present
causes of action.
34
More significantly, there is identity of causes of action when the judgment sought will be
inconsistent with the prior judgment.
35
In the case at bar, allowing Civil Case No. 0164 to proceed to its logical
conclusion will not result in any inconsistency with the 31 May 1989 decision of the Swiss Federal Court. Even if
the Sandiganbayan finds for Officeco, the same will not automatically result in the lifting of the questioned
freeze orders. It will merely serve as a basis for requiring the PCGG (through the OSG) to make the appropriate
representations with the Swiss government agencies concerned.
Act of State Doctrine
The classic American statement of the act of state doctrine, which appears to have taken root in England as early
as 1674,
36
and began to emerge in American jurisprudence in the late eighteenth and early nineteenth centuries,
is found in Underhill v. Hernandez,
37
where Chief Justice Fuller said for a unanimous Court:
105

Every sovereign state is bound to respect the independence of every other state, and the courts of one
country will not sit in judgment on the acts of the government of another, done within its territory.
Redress of grievances by reason of such acts must be obtained through the means open to be availed of
by sovereign powers as between themselves.
38

The act of state doctrine is one of the methods by which States prevent their national courts from deciding
disputes which relate to the internal affairs of another State, the other two being immunity and non-
justiciability.
39
It is an avoidance technique that is directly related to a States obligation to respect the
independence and equality of other States by not requiring them to submit to adjudication in a national court or
to settlement of their disputes without their consent.
40
It requires the forum court to exercise restraint in the
adjudication of disputes relating to legislative or other governmental acts which a foreign State has performed
within its territorial limits.
41

It is petitioners contention that the Sandiganbayan "could not grant or deny the prayers in *Officecos+
complaint without first examining and scrutinizing the freeze order of the Swiss officials in the light of the
evidence, which however is in the possession of said officials" and that it would therefore "sit in judgment on
the acts of the government of another country."
42
We disagree.
The parameters of the use of the act of state doctrine were clarified in Banco Nacional de Cuba v. Sabbatino.
43

There, the U.S. Supreme Court held that international law does not require the application of this doctrine nor
does it forbid the application of the rule even if it is claimed that the act of state in question violated
international law. Moreover, due to the doctrines peculiar nation-to-nation character, in practice the usual
method for an individual to seek relief is to exhaust local remedies and then repair to the executive authorities
of his own state to persuade them to champion his claim in diplomacy or before an international tribunal.
44

Even assuming that international law requires the application of the act of state doctrine, it bears stressing that
the Sandiganbayan will not examine and review the freeze orders of the concerned Swiss officials in Civil Case
No. 0164. The Sandiganbayan will not require the Swiss officials to submit to its adjudication nor will it settle a
dispute involving said officials. In fact, as prayed for in the complaint, the Sandiganbayan will only review and
examine the propriety of maintaining PCGGs position with respect to Officecos accounts with BTAG for the
purpose of further determining the propriety of issuing a writ against the PCGG and the OSG. Everything
considered, the act of state doctrine finds no application in this case and petitioners resort to it is utterly
mislaid.
Exhaustion of Administrative Remedies
Petitioners advert to Officecos failure to exhaust the administrative remedies provided in Secs. 5 and 6 of the
PCGG Rules and Regulations Implementing Executive Orders No. 1 and No. 2.
45
However, a reading of said
provisions shows that they refer only to sequestration orders, freeze orders and hold orders issued by the PCGG
in the Philippines. They cannot be made to apply to the freeze orders involved in this case which were issued by
the government of another country.
It was thus error for petitioners to treat Officecos request for the lifting of the freeze orders as a request under
Secs. 5 and 6 of its rules. First, the PCGG cannot even grant the remedy embodied in the said rules, i.e., lifting of
the freeze orders. Second, any argument towards a conclusion that PCGG can grant the remedy of lifting the
freeze order is totally inconsistent with its earlier argument using the act of state doctrine. PCGGs cognizance of
such a request and treating it as a request under Secs. 5 and 6 of its rules would require a re-examination or
review of the decision of the Swiss court, a procedure that is prohibited by the act of state doctrine.
Complaint States a Cause of Action
While the stated issue is whether mandamus lies, the real crux of the matter is whether Officecos complaint
before the Sandiganbayan states a cause of action. We uphold the sufficiency of the complaint.
106

It may be recalled that Officeco had alleged that it had sent several letters to the PCGG and the OSG for these
bodies to advise the Swiss authorities to drop or exclude Officecos account with BTAG from the freeze or
sequestration, but no formal response was received by petitioners on these letters. Copies of at least four (4) of
these letters were in fact attached as annexes to the complaint.
46

Section 5(a) of Republic Act No. 6713, or the Code of Conduct and Ethical Standards for Public Officials and
Employees, states:
Section 5. Duties of Public Officials and Employees. In the performance of their duties, all public
officials and employees are under obligation to:
(a) Act promptly on letters and requests. All public officials and employees shall, within fifteen (15)
working days from receipt thereof, respond to letters, telegrams or other means of communications
sent by the public. The reply must contain the action taken on the request. [Emphasis supplied.]
Since neither the PCGG nor the OSG replied to the requests of Officeco within fifteen (15) days as required by
law, such inaction is equivalent to a denial of these requests. As such, no other recourse was left except for
judicial relief. The appreciation of the allegations in the complaint from this standpoint allows us to see how the
cause of action precisely materialized. Even if these allegations were not cast in the framework of a mandamus
action, they still would give rise to a viable cause of action, subject to the proof of the allegations during trial.
A motion to dismiss on the ground of failure to state a cause of action in the complaint hypothetically admits the
truth of the facts alleged therein. The hypothetical admission extends to the relevant and material facts well
pleaded in the complaint and inferences fairly deducible therefrom. Hence, if the allegations in the complaint
furnish sufficient basis by which the complaint can be maintained, the same should not be dismissed regardless
of the defense that may be assessed by the defendants.
47

The following allegations culled from Officecos complaint in the Sandiganbayan would, if proven, entitle
Officeco to the main reliefs sought in its complaint in view of petitioners refusal to exclude Officecos account
with BTAG in the list of ill-gotten wealth, to wit: (1) The freeze order has been in effect for eleven (11) years,
since 1986, without any judicial action instituted by the PCGG and the OSG against Officeco; (2) The PCGG and
the OSG have no document or proof that the account of Officeco with BTAG belongs to the Marcoses nor their
cronies. Information on this matter was even requested by the OSG from the PCGG and the latter from Swiss
authorities who, up to the present, have not responded positively on the request;
48
and (3) Requests
49
by
Officeco to the PCGG and OSG to make representations with the Swiss authorities for the latter to release
Officecos account with the BTAG from the freeze order remain unacted upon despite the mandate in Section
5(a) of Republic Act No. 6713.
The truth of the above allegations, which must be deemed hypothetically admitted for the purpose of
considering the motion to dismiss, may properly be determined only if Civil Case No. 0164 is allowed to proceed,
such that if they are found to be supported by preponderance of evidence, adverse findings may properly be
made against PCGG and the corresponding reliefs granted in favor of Officeco.
Furthermore, Officeco claims that on two separate occasions, upon request of counsel for Security Bank and
Trust Company (SBTC), the PCGG and the OSG formally advised the Swiss authorities to release from the freeze
orders two other securities accounts with BTAG. Because of these representations, the release of the two
accounts from the freeze order was effected. Gapud also assisted in the establishment and administration of
these accounts with BTAG.
50
According to Officeco, the continuous refusal of the PCGG and the OSG to act
favorably on its request while acting favorably on the above two requests of SBTC is a clear violation of its right
to equal protection under the 1987 Constitution.
51

The guarantee of equal protection, according to Tolentino v. Board of Accountancy, et al.,
52
simply means "that
no person or class of persons shall be deprived of the said protection of the laws which is enjoyed by other
107

persons or other classes in the same place and in like circumstances."
53
Indeed, if it were true that the PCGG and
the OSG facilitated the release of two deposit accounts upon the request of SBTC and these accounts are
similarly situated to Officecos frozen account with BTAG, the operation of the equal protection clause of the
Constitution dictates that Officecos account should likewise be ordered released. Again, this matter can
properly be resolved if Civil Case No. 0164 is allowed to proceed.
WHEREFORE, premises considered, the instant petition is DISMISSED.
No pronouncement as to costs.
SO ORDERED.




















G.R. No. 178552 October 5, 2010
108

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South Network (SSN) for
Non-State Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS, JR., Petitioners,
vs.
ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF
FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL SECURITY ADVISER, THE CHIEF OF STAFF OF THE
ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178554
KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL FEDERATION OF LABOR
UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President Joselito V. Ustarez and
Secretary General Antonio C. Pascual, and CENTER FOR TRADE UNION AND HUMAN RIGHTS, represented by
its Executive Director Daisy Arago, Petitioners,
vs.
HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in his capacity as
Acting Secretary of National Defense, HON. RAUL GONZALES, in his capacity as Secretary of Justice, HON.
RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government, GEN. HERMOGENES
ESPERON, in his capacity as AFP Chief of Staff, and DIRECTOR GENERAL OSCAR CALDERON, in his capacity as
PNP Chief of Staff, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178581
BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR REFORMS,
INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS (KMP),
MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN NG DAMAYANG
MAHIHIRAP (KADAMAY), SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO STUDENTS (LFS),
ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA (PAMALAKAYA), ALLIANCE OF
CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY (HEAD), AGHAM, TEOFISTO
GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR., SISTER MARY JOHN MANANSAN
OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO, COL. GERRY CUNANAN (ret.), CARLITOS SIGUION-
REYNA, DR. CAROLINA PAGADUAN-ARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA DE LESUS,
RITA BAUA, REY CLARO CASAMBRE, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARY
EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES, DEPARTMENT OF FOREIGN
AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY
NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO.
DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO
GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF
INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE
SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL
(AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF
GEN. HERMOGENES ESPERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
109

G.R. No. 178890
KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented herein by Dr. Edelina de la
Paz, and representing the following organizations: HUSTISYA, represented by Evangeline Hernandez and also
on her own behalf; DESAPARECIDOS, represented by Mary Guy Portajada and also on her own behalf,
SAMAHAN NG MGA EX-DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA (SELDA), represented by
Donato Continente and also on his own behalf, ECUMENICAL MOVEMENT FOR JUSTICE AND PEACE (EMJP),
represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF CHURCH PEOPLE'S RESPONSE,
represented by Fr. Gilbert Sabado, OCARM, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARTY
EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN
AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY
NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO,
DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO
GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF
INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE
SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL
(AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF
GEN. HERMOGENES ESPERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179157
THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M. Bautista, COUNSELS FOR
THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL and FORMER SENATORS SERGIO
OSMEA III and WIGBERTO E. TAADA, Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL (ATC),
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179461
BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST, KATIPUNAN NG MGA
SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT OF CONCERNED CITIZENS FOR
CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST, CONFEDERATION FOR
UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE-ST), PAGKAKAISA'T
UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN NG MGA MAMAMAYAN SA TABING
RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN MUNA-ST, KONGRESO NG MGA MAGBUBUKID
PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN
(BALATIK), SAMAHAN AT UGNAYAN NG MGA MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN
(SUMAMAKA-TK), STARTER, LOSOS RURAL POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN
NIO LAJARA, TEODORO REYES, FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR.,
DELFIN DE CLARO, SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARY
EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN
AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY
NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMEN T SECRETARY RONALDO PUNO,
110

DEPARTMENT OF FINCANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO
GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF
INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE
SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL
(AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF
GEN. HERMOGENES ESPERON, Respondents.
Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA 9372), "An Act to
Secure the State and Protect our People from Terrorism," otherwise known as the Human Security Act of 2007,
1

signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,
2
petitioner Southern Hemisphere Engagement Network,
Inc., a non-government organization, and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer,
filed a petition for certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even date,
petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU),
and Center for Trade Union and Human Rights (CTUHR), represented by their respective officers
3
who are also
bringing the action in their capacity as citizens, filed a petition for certiorari and prohibition docketed as G.R. No.
178554.
The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General Alliance Binding
Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas
(KMP), Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for Unity, Recognition and
Advancement of Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity
of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang
Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for Democracy
(HEAD), and Agham, represented by their respective officers,
4
and joined by concerned citizens and taxpayers
Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean
Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina
Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a
petition for certiorari and prohibition docketed as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos, Samahan ng mga
Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for Justice and Peace
(EMJP), and Promotion of Church Peoples Response (PCPR), which were represented by their respective
officers
5
who are also bringing action on their own behalf, filed a petition for certiorari and prohibition docketed
as G.R. No. 178890.
On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of Liberty (CODAL),
6

Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmea III, and Wigberto E. Taada filed a petition for certiorari
and prohibition docketed as G.R. No. 179157.
Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and organizations mostly
based in the Southern Tagalog Region,
7
and individuals
8
followed suit by filing on September 19, 2007 a petition
for certiorari and prohibition docketed as G.R. No. 179461 that replicates the allegations raised in the BAYAN
petition in G.R. No. 178581.
Impleaded as respondents in the various petitions are the Anti-Terrorism Council
9
composed of, at the time of
the filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as
Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National Security
Adviser Norberto Gonzales, Interior and Local Government Secretary Ronaldo Puno, and Finance Secretary
Margarito Teves as members. All the petitions, except that of the IBP, also impleaded Armed Forces of the
111

Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar
Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-Arroyo and the
support agencies for the Anti-Terrorism Council like the National Intelligence Coordinating Agency, National
Bureau of Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-
Money Laundering Center, Philippine Center on Transnational Crime, and the PNP intelligence and investigative
elements.
The petitions fail.
Petitioners resort to certiorari is improper
Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-judicial functions.
Section 1, Rule 65 of the Rules of Court is clear:
Section 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board
or officer, and granting such incidental reliefs as law and justice may require. (Emphasis and underscoring
supplied)
Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted
without or in excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack or
excess of jurisdiction.
The impropriety of certiorari as a remedy aside, the petitions fail just the same.
In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a) there must
be an actual case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality
must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the
case.
10

In the present case, the dismal absence of the first two requisites, which are the most essential, renders the
discussion of the last two superfluous.
Petitioners lack locus standi
Locus standi or legal standing requires a personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.
11

Anak Mindanao Party-List Group v. The Executive Secretary
12
summarized the rule on locus standi, thus:
Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the
party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The
gist of the question on standing is whether a party alleges such personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends
for illumination of difficult constitutional questions.
112

[A] party who assails the constitutionality of a statute must have a direct and personal interest. It must show not
only that the law or any governmental act is invalid, but also that it sustained or is in immediate danger of
sustaining some direct injury as a result of its enforcement, and not merely that it suffers thereby in some
indefinite way. It must show that it has been or is about to be denied some right or privilege to which it is
lawfully entitled or that it is about to be subjected to some burdens or penalties by reason of the statute or act
complained of.
For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally
suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the
injury is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable action.
(emphasis and underscoring supplied.)
Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts" by the
government, especially the military; whereas individual petitioners invariably invoke the "transcendental
importance" doctrine and their status as citizens and taxpayers.
While Chavez v. PCGG
13
holds that transcendental public importance dispenses with the requirement that
petitioner has experienced or is in actual danger of suffering direct and personal injury, cases involving the
constitutionality of penal legislation belong to an altogether different genus of constitutional litigation.
Compelling State and societal interests in the proscription of harmful conduct, as will later be elucidated,
necessitate a closer judicial scrutiny of locus standi.
Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces any
charge under RA 9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890, allege that they
have been subjected to "close security surveillance by state security forces," their members followed by
"suspicious persons" and "vehicles with dark windshields," and their offices monitored by "men with military
build." They likewise claim that they have been branded as "enemies of the [S]tate."
14

Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly points out that
petitioners have yet to show any connection between the purported "surveillance" and the implementation of
RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante,
HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the Court to take judicial notice of
respondents alleged action of tagging them as militant organizations fronting for the Communist Party of the
Philippines (CPP) and its armed wing, the National Peoples Army (NPA). The tagging, according to petitioners, is
tantamount to the effects of proscription without following the procedure under the law.
15
The petition of
BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations.
The Court cannot take judicial notice of the alleged "tagging" of petitioners.
Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of
common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain;
and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in
determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that
judicial notice is limited to facts evidenced by public records and facts of general notoriety. Moreover, a
judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally known
within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by
resorting to sources whose accuracy cannot reasonably be questionable.
113

Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men
generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted
by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally
known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed,
provided, they are of such universal notoriety and so generally understood that they may be regarded as
forming part of the common knowledge of every person. As the common knowledge of man ranges far and
wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But
a court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a
fact of which the court has no constructive knowledge.
16
(emphasis and underscoring supplied.)
No ground was properly established by petitioners for the taking of judicial notice. Petitioners apprehension is
insufficient to substantiate their plea. That no specific charge or proscription under RA 9372 has been filed
against them, three years after its effectivity, belies any claim of imminence of their perceived threat emanating
from the so-called tagging.
The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as well on their
supposed "link" to the CPP and NPA. They fail to particularize how the implementation of specific provisions of
RA 9372 would result in direct injury to their organization and members.
While in our jurisdiction there is still no judicially declared terrorist organization, the United States of America
17

(US) and the European Union
18
(EU) have both classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist
organizations. The Court takes note of the joint statement of Executive Secretary Eduardo Ermita and Justice
Secretary Raul Gonzales that the Arroyo Administration would adopt the US and EU classification of the CPP and
NPA as terrorist organizations.
19
Such statement notwithstanding, there is yet to be filed before the courts an
application to declare the CPP and NPA organizations as domestic terrorist or outlawed organizations under RA
9372. Again, RA 9372 has been in effect for three years now. From July 2007 up to the present, petitioner-
organizations have conducted their activities fully and freely without any threat of, much less an actual,
prosecution or proscription under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives Saturnino
Ocampo, Teodoro Casio, Rafael Mariano and Luzviminda Ilagan,
20
urged the government to resume peace
negotiations with the NDF by removing the impediments thereto, one of which is the adoption of designation of
the CPP and NPA by the US and EU as foreign terrorist organizations. Considering the policy statement of the
Aquino Administration
21
of resuming peace talks with the NDF, the government is not imminently disposed to
ask for the judicial proscription of the CPP-NPA consortium and its allied organizations.
More important, there are other parties not before the Court with direct and specific interests in the questions
being raised.
22
Of recent development is the filing of the first case for proscription under Section 17
23
of RA 9372
by the Department of Justice before the Basilan Regional Trial Court against the Abu Sayyaf Group.
24
Petitioner-
organizations do not in the least allege any link to the Abu Sayyaf Group.
Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by alluding to
past rebellion charges against them.
In Ladlad v. Velasco,
25
the Court ordered the dismissal of rebellion charges filed in 2006 against then Party-List
Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador,
Teodoro Casio and Saturnino Ocampo of Bayan Muna. Also named in the dismissed rebellion charges were
petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and
Danilo Ramos; and accused of being front organizations for the Communist movement were petitioner-
organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE.
26

The dismissed rebellion charges, however, do not save the day for petitioners. For one, those charges were filed
in 2006, prior to the enactment of RA 9372, and dismissed by this Court. For another, rebellion is defined and
114

punished under the Revised Penal Code. Prosecution for rebellion is not made more imminent by the enactment
of RA 9372, nor does the enactment thereof make it easier to charge a person with rebellion, its elements not
having been altered.
Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges under RA
9372. It cannot be overemphasized that three years after the enactment of RA 9372, none of petitioners has
been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty to uphold the
Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render assistance to those arrested or
detained under the law.
The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP or any
of its members with standing.
27
The IBP failed to sufficiently demonstrate how its mandate under the assailed
statute revolts against its constitutional rights and duties. Moreover, both the IBP and CODAL have not pointed
to even a single arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of "political surveillance," also
lacks locus standi. Prescinding from the veracity, let alone legal basis, of the claim of "political surveillance," the
Court finds that she has not shown even the slightest threat of being charged under RA 9372. Similarly lacking in
locus standi are former Senator Wigberto Taada and Senator Sergio Osmea III, who cite their being
respectively a human rights advocate and an oppositor to the passage of RA 9372. Outside these gratuitous
statements, no concrete injury to them has been pinpointed.
Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No. 178552 also
conveniently state that the issues they raise are of transcendental importance, "which must be settled early"
and are of "far-reaching implications," without mention of any specific provision of RA 9372 under which they
have been charged, or may be charged. Mere invocation of human rights advocacy has nowhere been held
sufficient to clothe litigants with locus standi. Petitioners must show an actual, or immediate danger of
sustaining, direct injury as a result of the laws enforcement. To rule otherwise would be to corrupt the settled
doctrine of locus standi, as every worthy cause is an interest shared by the general public.
Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer suit is
proper only when there is an exercise of the spending or taxing power of Congress,
28
whereas citizen standing
must rest on direct and personal interest in the proceeding.
29

RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its
implementation, while none of the individual petitioner-citizens has alleged any direct and personal interest in
the implementation of the law.
It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not
establish locus standi. Evidence of a direct and personal interest is key.
Petitioners fail to present an actual case or controversy
By constitutional fiat, judicial power operates only when there is an actual case or controversy.
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of
115

discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
30
(emphasis and underscoring supplied.)
As early as Angara v. Electoral Commission,
31
the Court ruled that the power of judicial review is limited to actual
cases or controversies to be exercised after full opportunity of argument by the parties. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities.
An actual case or controversy means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory
opinion.
32

Information Technology Foundation of the Philippines v. COMELEC
33
cannot be more emphatic:
[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually
challenging. The controversy must be justiciabledefinite and concrete, touching on the legal relations of
parties having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion
of a legal right, on the one hand, and a denial thereof on the other hand; that is, it must concern a real and not
merely a theoretical question or issue. There ought to be an actual and substantial controversy admitting of
specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law
would be upon a hypothetical state of facts. (Emphasis and underscoring supplied)
Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly Urbanized
City was held to be premature as it was tacked on uncertain, contingent events.
34
Similarly, a petition that fails
to allege that an application for a license to operate a radio or television station has been denied or granted by
the authorities does not present a justiciable controversy, and merely wheedles the Court to rule on a
hypothetical problem.
35

The Court dismissed the petition in Philippine Press Institute v. Commission on Elections
36
for failure to cite any
specific affirmative action of the Commission on Elections to implement the assailed resolution. It refused, in
Abbas v. Commission on Elections,
37
to rule on the religious freedom claim of the therein petitioners based
merely on a perceived potential conflict between the provisions of the Muslim Code and those of the national
law, there being no actual controversy between real litigants.
The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any
constitutional interest suffices to provide a basis for mounting a constitutional challenge. This, however, is
qualified by the requirement that there must be sufficient facts to enable the Court to intelligently adjudicate
the issues.
38

Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project,
39
allowed the pre-enforcement
review of a criminal statute, challenged on vagueness grounds, since plaintiffs faced a "credible threat of
prosecution" and "should not be required to await and undergo a criminal prosecution as the sole means of
seeking relief."
40
The plaintiffs therein filed an action before a federal court to assail the constitutionality of the
material support statute, 18 U.S.C. 2339B (a) (1),
41
proscribing the provision of material support to
organizations declared by the Secretary of State as foreign terrorist organizations. They claimed that they
intended to provide support for the humanitarian and political activities of two such organizations.
Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition clearly
shows that the challenged prohibition forbids the conduct or activity that a petitioner seeks to do, as there
would then be a justiciable controversy.
42

116

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged provisions of
RA 9372 forbid constitutionally protected conduct or activity that they seek to do. No demonstrable threat has
been established, much less a real and existing one.
Petitioners obscure allegations of sporadic "surveillance" and supposedly being tagged as "communist fronts" in
no way approximate a credible threat of prosecution. From these allegations, the Court is being lured to render
an advisory opinion, which is not its function.
43

Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court
has no original jurisdiction. Then again, declaratory actions characterized by "double contingency," where both
the activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely
theorized, lie beyond judicial review for lack of ripeness.
44

The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the
realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any
power granted by law may be abused.
45
Allegations of abuse must be anchored on real events before courts may
step in to settle actual controversies involving rights which are legally demandable and enforceable.
A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of constitutional
litigation are rightly excepted
Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of terrorism
46

under RA 9372 in that terms like "widespread and extraordinary fear and panic among the populace" and
"coerce the government to give in to an unlawful demand" are nebulous, leaving law enforcement agencies with
no standard to measure the prohibited acts.
Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth find no
application in the present case since these doctrines apply only to free speech cases; and that RA 9372 regulates
conduct, not speech.
For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools of thought
on whether the void-for-vagueness and overbreadth doctrines are equally applicable grounds to assail a penal
statute.
Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of the two
doctrines to free speech cases. They particularly cite Romualdez v. Hon. Sandiganbayan
47
and Estrada v.
Sandiganbayan.
48

The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 5
49
of the Anti-Graft and
Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court stated that "the overbreadth
and the vagueness doctrines have special application only to free-speech cases," and are "not appropriate for
testing the validity of penal statutes."
50
It added that, at any rate, the challenged provision, under which the
therein petitioner was charged, is not vague.
51

While in the subsequent case of Romualdez v. Commission on Elections,
52
the Court stated that a facial
invalidation of criminal statutes is not appropriate, it nonetheless proceeded to conduct a vagueness analysis,
and concluded that the therein subject election offense
53
under the Voters Registration Act of 1996, with which
the therein petitioners were charged, is couched in precise language.
54

117

The two Romualdez cases rely heavily on the Separate Opinion
55
of Justice Vicente V. Mendoza in the Estrada
case, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and free from ambiguity
respecting the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a "facial"
invalidation as opposed to an "as-applied" challenge. He basically postulated that allegations that a penal
statute is vague and overbroad do not justify a facial review of its validity. The pertinent portion of the
Concurring Opinion of Justice Mendoza, which was quoted at length in the main Estrada decision, reads:
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible
"chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no
readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,
the transcendent value to all society of constitutionally protected expression is deemed to justify allowing
attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his
own conduct could not be regulated by a statute drawn with narrow specificity." The possible harm to society in
permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected
speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects
of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from
their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented
from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as
in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt
for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First
Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again,
that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a
legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no
set of circumstances exists under which the Act would be valid." As for the vagueness doctrine, it is said that a
litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who
engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to
the conduct of others."
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing
"on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases.
They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is constitutional will not be heard to attack the
statute on the ground that impliedly it might also be taken as applying to other persons or other situations in
which its application might be unconstitutional." As has been pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found
vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant."
Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and
in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might
be applied to parties not before the Court whose activities are constitutionally protected. It constitutes a
departure from the case and controversy requirement of the Constitution and permits decisions to be made
without concrete factual settings and in sterile abstract contexts. But, as the U.S. Supreme Court pointed out in
Younger v. Harris
118

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions,
whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to
be employed "sparingly and only as a last resort," and is generally disfavored. In determining the
constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be
examined in the light of the conduct with which the defendant is charged.
56
(Underscoring supplied.)
The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as
grounds for a facial or as-applied challenge against a penal statute (under a claim of violation of due process of
law) or a speech regulation (under a claim of abridgement of the freedom of speech and cognate rights).
To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane.
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the
Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties
targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying
out its provisions and becomes an arbitrary flexing of the Government muscle.
57
The overbreadth doctrine,
meanwhile, decrees that a governmental purpose to control or prevent activities constitutionally subject to
state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the
area of protected freedoms.
58

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will
understand what a statute prohibits and will accordingly refrain from that behavior, even though some of it is
protected.
59

A "facial" challenge is likewise different from an "as-applied" challenge.
Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial
invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its
actual operation to the parties, but also on the assumption or prediction that its very existence may cause
others not before the court to refrain from constitutionally protected speech or activities.
60

Justice Mendoza accurately phrased the subtitle
61
in his concurring opinion that the vagueness and overbreadth
doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant cannot thus successfully
mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling effect" on
protected speech, the exercise of which should not at all times be abridged.
62
As reflected earlier, this rationale
is inapplicable to plain penal statutes that generally bear an "in terrorem effect" in deterring socially harmful
conduct. In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so
long as it refrains from diminishing or dissuading the exercise of constitutionally protected rights.
63

The Court reiterated that there are "critical limitations by which a criminal statute may be challenged" and
"underscored that an on-its-face invalidation of penal statutes x x x may not be allowed."
64

[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other
fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a
119

facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of
crimes may be hampered. No prosecution would be possible. A strong criticism against employing a facial
challenge in the case of penal statutes, if the same is allowed, would effectively go against the grain of the
doctrinal requirement of an existing and concrete controversy before judicial power may be appropriately
exercised. A facial challenge against a penal statute is, at best, amorphous and speculative. It would, essentially,
force the court to consider third parties who are not before it. As I have said in my opposition to the allowance
of a facial challenge to attack penal statutes, such a test will impair the States ability to deal with crime. If
warranted, there would be nothing that can hinder an accused from defeating the States power to prosecute on
a mere showing that, as applied to third parties, the penal statute is vague or overbroad, notwithstanding that
the law is clear as applied to him.
65
(Emphasis and underscoring supplied)
It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of
challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas
of protected speech, inevitably almost always under situations not before the court, that are impermissibly
swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for
being substantially overbroad if the court confines itself only to facts as applied to the litigants.
The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual
rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as
applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted
to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules
give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute
"on its face," not merely "as applied for" so that the overbroad law becomes unenforceable until a properly
authorized court construes it more narrowly. The factor that motivates courts to depart from the normal
adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third parties
not courageous enough to bring suit. The Court assumes that an overbroad laws "very existence may cause
others not before the court to refrain from constitutionally protected speech or expression." An overbreadth
ruling is designed to remove that deterrent effect on the speech of those third parties.
66
(Emphasis in the
original omitted; underscoring supplied.)
In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases,
67
observed that the
US Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First
Amendment,
68
and that claims of facial overbreadth have been entertained in cases involving statutes which, by
their terms, seek to regulate only spoken words.
69
In Virginia v. Hicks,
70
it was held that rarely, if ever, will an
overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or speech-
related conduct. Attacks on overly broad statutes are justified by the "transcendent value to all society of
constitutionally protected expression."
71

Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness
analysis of the definition of "terrorism" in RA 9372 is legally impermissible absent an actual or imminent charge
against them
While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness test on
the Anti-Plunder Law as applied to the therein petitioner, finding, however, that there was no basis to review
the law "on its face and in its entirety."
72
It stressed that "statutes found vague as a matter of due process
typically are invalidated only 'as applied' to a particular defendant."
73

American jurisprudence
74
instructs that "vagueness challenges that do not involve the First Amendment must be
examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity."
120

For more than 125 years, the US Supreme Court has evaluated defendants claims that criminal statutes are
unconstitutionally vague, developing a doctrine hailed as "among the most important guarantees of liberty
under law."
75

In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in
examining the constitutionality of criminal statutes. In at least three cases,
76
the Court brought the doctrine into
play in analyzing an ordinance penalizing the non-payment of municipal tax on fishponds, the crime of illegal
recruitment punishable under Article 132(b) of the Labor Code, and the vagrancy provision under Article 202 (2)
of the Revised Penal Code. Notably, the petitioners in these three cases, similar to those in the two Romualdez
and Estrada cases, were actually charged with the therein assailed penal statute, unlike in the present case.
There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity
From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following elements
may be culled: (1) the offender commits an act punishable under any of the cited provisions of the Revised Penal
Code, or under any of the enumerated special penal laws; (2) the commission of the predicate crime sows and
creates a condition of widespread and extraordinary fear and panic among the populace; and (3) the offender is
actuated by the desire to coerce the government to give in to an unlawful demand.
In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that the
element of "unlawful demand" in the definition of terrorism
77
must necessarily be transmitted through some
form of expression protected by the free speech clause.
The argument does not persuade. What the law seeks to penalize is conduct, not speech.
Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually
committed to trigger the operation of the key qualifying phrases in the other elements of the crime, including
the coercion of the government to accede to an "unlawful demand." Given the presence of the first element,
any attempt at singling out or highlighting the communicative component of the prohibition cannot recategorize
the unprotected conduct into a protected speech.
Petitioners notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one
particle of an element of the crime. Almost every commission of a crime entails some mincing of words on the
part of the offender like in declaring to launch overt criminal acts against a victim, in haggling on the amount of
ransom or conditions, or in negotiating a deceitful transaction. An analogy in one U.S. case
78
illustrated that the
fact that the prohibition on discrimination in hiring on the basis of race will require an employer to take down a
sign reading "White Applicants Only" hardly means that the law should be analyzed as one regulating speech
rather than conduct.
Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent
of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not speech. This
holds true a fortiori in the present case where the expression figures only as an inevitable incident of making the
element of coercion perceptible.
[I]t is true that the agreements and course of conduct here were as in most instances brought about through
speaking or writing. But it has never been deemed an abridgement of freedom of speech or press to make a
course of conduct illegal merely because the conduct was, in part, initiated, evidenced, or carried out by means
of language, either spoken, written, or printed. Such an expansive interpretation of the constitutional guaranties
of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of
trade as well as many other agreements and conspiracies deemed injurious to society.
79
(italics and
underscoring supplied)
121

Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a prohibited
conduct.
80
Since speech is not involved here, the Court cannot heed the call for a facial analysis.1avvphi1
IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein subject penal
statute as applied to the therein petitioners inasmuch as they were actually charged with the pertinent crimes
challenged on vagueness grounds. The Court in said cases, however, found no basis to review the assailed penal
statute on its face and in its entirety.
In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a criminal statute,
challenged on vagueness grounds, since the therein plaintiffs faced a "credible threat of prosecution" and
"should not be required to await and undergo a criminal prosecution as the sole means of seeking relief."
As earlier reflected, petitioners have established neither an actual charge nor a credible threat of prosecution
under RA 9372. Even a limited vagueness analysis of the assailed definition of "terrorism" is thus legally
impermissible. The Court reminds litigants that judicial power neither contemplates speculative counseling on a
statutes future effect on hypothetical scenarios nor allows the courts to be used as an extension of a failed
legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.
SO ORDERED.
















122

G.R. No. 175888 February 11, 2009
SUZETTE NICOLAS y SOMBILON, Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; RAUL GONZALEZ, in his capacity as
Secretary of Justice; EDUARDO ERMITA, in his capacity as Executive Secretary; RONALDO PUNO, in his
capacity as Secretary of the Interior and Local Government; SERGIO APOSTOL, in his capacity as Presidential
Legal Counsel; and L/CPL. DANIEL SMITH, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 176051 February 11, 2009
JOVITO R. SALONGA, WIGBERTO E. TAADA, JOSE DE LA RAMA, EMILIO C. CAPULONG, H. HARRY L. ROQUE,
JR., FLORIN HILBAY, and BENJAMIN POZON, Petitioners,
vs.
DANIEL SMITH, SECRETARY RAUL GONZALEZ, PRESIDENTIAL LEGAL COUNSEL SERGIO APOSTOL, SECRETARY
RONALDO PUNO, SECRETARY ALBERTO ROMULO, The Special 16th Division of the COURT OF APPEALS, and all
persons acting in their capacity, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 176222 February 11, 2009
BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by Dr. Carol Araullo; GABRIELA, represented by
Emerenciana de Jesus; BAYAN MUNA, represented by Rep. Satur Ocampo; GABRIELA WOMEN'S PARTY,
represented by Rep. Liza Maza; KILUSANG MAYO UNO (KMU), represented by Elmer Labog; KILUSANG
MAGBUBUKID NG PILIPINAS (KMP), represented by Willy Marbella; LEAGUE OF FILIPINO STUDENTS (LFS),
represented by Vencer Crisostomo; and THE PUBLIC INTEREST LAW CENTER, represented by Atty. Rachel
Pastores, Petitioners,
vs.
PRESIDENT GLORIA MACAPAGAL-ARROYO, in her capacity as concurrent Defense Secretary, EXECUTIVE
SECRETARY EDUARDO ERMITA, FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, JUSTICE SECRETARY RAUL
GONZALEZ, AND INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO, Respondents.
These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision of the Court of
Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in CA-G.R. SP No. 97212, dated
January 2, 2007.
The facts are not disputed.
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed Forces. He was
charged with the crime of rape committed against a Filipina, petitioner herein, sometime on November 1, 2005,
as follows:
The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic Duplantis, Keith Silkwood and
Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A of the Revised Penal Code, as amended by
Republic Act 8353, upon a complaint under oath filed by Suzette S. Nicolas, which is attached hereto and made
an integral part hereof as Annex "A," committed as follows:
"That on or about the First (1st) day of November 2005, inside the Subic Bay Freeport Zone, Olongapo City and
within the jurisdiction of this Honorable Court, the above-named accuseds (sic), being then members of the
United States Marine Corps, except Timoteo L. Soriano, Jr., conspiring, confederating together and mutually
123

helping one another, with lewd design and by means of force, threat and intimidation, with abuse of superior
strength and taking advantage of the intoxication of the victim, did then and there willfully, unlawfully and
feloniously sexually abuse and have sexual intercourse with or carnal knowledge of one Suzette S. Nicolas, a 22-
year old unmarried woman inside a Starex Van with Plate No. WKF-162, owned by Starways Travel and Tours,
with Office address at 8900 P. Victor St., Guadalupe, Makati City, and driven by accused Timoteo L. Soriano, Jr.,
against the will and consent of the said Suzette S. Nicolas, to her damage and prejudice.
CONTRARY TO LAW."
1

Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States,
entered into on February 10, 1998, the United States, at its request, was granted custody of defendant Smith
pending the proceedings.
During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the RTC of Makati for
security reasons, the United States Government faithfully complied with its undertaking to bring defendant
Smith to the trial court every time his presence was required.
On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its Decision, finding defendant
Smith guilty, thus:
WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient evidence against accused
S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND L/CPL. DOMINIC DUPLANTIS, all of the US Marine
Corps assigned at the USS Essex, are hereby ACQUITTED to the crime charged.
The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J. SMITH, also of the US
Marine Corps at the USS Essex, this Court hereby finds him GUILTY BEYOND REASONABLE DOUBT of the crime of
RAPE defined under Article 266-A, paragraph 1 (a) of the Revised Penal Code, as amended by R.A. 8353, and, in
accordance with Article 266-B, first paragraph thereof, hereby sentences him to suffer the penalty of reclusion
perpetua together with the accessory penalties provided for under Article 41 of the same Code.
Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the Philippines and the
United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in the facilities that shall, thereafter, be
agreed upon by appropriate Philippine and United States authorities. Pending agreement on such facilities,
accused L/CPL. DANIEL J. SMITH is hereby temporarily committed to the Makati City Jail.
Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S. NICOLAS in the
amount of P50,000.00 as compensatory damages plus P50,000.00 as moral damages.
SO ORDERED.
2

As a result, the Makati court ordered Smith detained at the Makati jail until further orders.
On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a contingent of Philippine
law enforcement agents, purportedly acting under orders of the Department of the Interior and Local
Government, and brought to a facility for detention under the control of the United States government,
provided for under new agreements between the Philippines and the United States, referred to as the Romulo-
Kenney Agreement of December 19, 2006 which states:
The Government of the Republic of the Philippines and the Government of the United States of America agree
that, in accordance with the Visiting Forces Agreement signed between our two nations, Lance Corporal Daniel J.
Smith, United States Marine Corps, be returned to U.S. military custody at the U.S. Embassy in Manila.
124

(Sgd.) Kristie A. Kenney
Representative of the United
States
of America

DATE: 12-19-06
(Sgd.) Alberto G. Romulo
Representative of the
Republic
of the Philippines

DATE: December 19, 2006
and the Romulo-Kenney Agreement of December 22, 2006 which states:
The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the United States of
America agree that, in accordance with the Visiting Forces Agreement signed between the two nations, upon
transfer of Lance Corporal Daniel J. Smith, United States Marine Corps, from the Makati City Jail, he will be
detained at the first floor, Rowe (JUSMAG) Building, U.S. Embassy Compound in a room of approximately 10 x 12
square feet. He will be guarded round the clock by U.S. military personnel. The Philippine police and jail
authorities, under the direct supervision of the Philippine Department of Interior and Local Government (DILG)
will have access to the place of detention to ensure the United States is in compliance with the terms of the VFA.
The matter was brought before the Court of Appeals which decided on January 2, 2007, as follows:
WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for having become moot.
3

Hence, the present actions.
The petitions were heard on oral arguments on September 19, 2008, after which the parties submitted their
memoranda.
Petitioners contend that the Philippines should have custody of defendant L/CPL Smith because, first of all, the
VFA is void and unconstitutional.
This issue had been raised before, and this Court resolved in favor of the constitutionality of the VFA. This was in
Bayan v. Zamora,
4
brought by Bayan, one of petitioners in the present cases.
Against the barriers of res judicata vis--vis Bayan, and stare decisis vis--vis all the parties, the reversal of the
previous ruling is sought on the ground that the issue is of primordial importance, involving the sovereignty of
the Republic, as well as a specific mandate of the Constitution.
The provision of the Constitution is Art. XVIII, Sec. 25 which states:
Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority
of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the
other contracting State.
The reason for this provision lies in history and the Philippine experience in regard to the United States military
bases in the country.
It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine Commonwealth
and, eventually, for the recognition of independence, the United States agreed to cede to the Philippines all the
territory it acquired from Spain under the Treaty of Paris, plus a few islands later added to its realm, except
certain naval ports and/or military bases and facilities, which the United States retained for itself.
125

This is noteworthy, because what this means is that Clark and Subic and the other places in the Philippines
covered by the RP-US Military Bases Agreement of 1947 were not Philippine territory, as they were excluded
from the cession and retained by the US.
Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed by the United
States. Furthermore, the RP-US Military Bases Agreement was never advised for ratification by the United States
Senate, a disparity in treatment, because the Philippines regarded it as a treaty and had it concurred in by our
Senate.
Subsequently, the United States agreed to turn over these bases to the Philippines; and with the expiration of
the RP-US Military Bases Agreement in 1991, the territory covered by these bases were finally ceded to the
Philippines.
To prevent a recurrence of this experience, the provision in question was adopted in the 1987 Constitution.
The provision is thus designed to ensure that any agreement allowing the presence of foreign military bases,
troops or facilities in Philippine territory shall be equally binding on the Philippines and the foreign sovereign
State involved. The idea is to prevent a recurrence of the situation in which the terms and conditions governing
the presence of foreign armed forces in our territory were binding upon us but not upon the foreign State.
Applying the provision to the situation involved in these cases, the question is whether or not the presence of
US Armed Forces in Philippine territory pursuant to the VFA is allowed "under a treaty duly concurred in by the
Senate xxx and recognized as a treaty by the other contracting State."
This Court finds that it is, for two reasons.
First, as held in Bayan v. Zamora,
5
the VFA was duly concurred in by the Philippine Senate and has been
recognized as a treaty by the United States as attested and certified by the duly authorized representative of the
United States government.
The fact that the VFA was not submitted for advice and consent of the United States Senate does not detract
from its status as a binding international agreement or treaty recognized by the said State. For this is a matter of
internal United States law. Notice can be taken of the internationally known practice by the United States of
submitting to its Senate for advice and consent agreements that are policymaking in nature, whereas those that
carry out or further implement these policymaking agreements are merely submitted to Congress, under the
provisions of the so-called CaseZablocki Act, within sixty days from ratification.
6

The second reason has to do with the relation between the VFA and the RP-US Mutual Defense Treaty of August
30, 1951. This earlier agreement was signed and duly ratified with the concurrence of both the Philippine Senate
and the United States Senate.
The RP-US Mutual Defense Treaty states:
7

MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE UNITED STATES OF AMERICA.
Signed at Washington, August 30, 1951.
The Parties of this Treaty
Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to live
in peace with all peoples and all governments, and desiring to strengthen the fabric of peace in the Pacific area.
Recalling with mutual pride the historic relationship which brought their two peoples together in a common
bond of sympathy and mutual ideals to fight side-by-side against imperialist aggression during the last war.
126

Desiring to declare publicly and formally their sense of unity and their common determination to defend
themselves against external armed attack, so that no potential aggressor could be under the illusion that either
of them stands alone in the Pacific area.
Desiring further to strengthen their present efforts for collective defense for the preservation of peace and
security pending the development of a more comprehensive system of regional security in the Pacific area.
Agreeing that nothing in this present instrument shall be considered or interpreted as in any way or sense
altering or diminishing any existing agreements or understandings between the Republic of the Philippines and
the United States of America.
Have agreed as follows:
Article I. The parties undertake, as set forth in the Charter of the United Nations, to settle any international
disputes in which they may be involved by peaceful means in such a manner that international peace and
security and justice are not endangered and to refrain in their international relation from the threat or use of
force in any manner inconsistent with the purposes of the United Nations.
Article II. In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by
self-help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack.
Article III. The Parties, through their Foreign Ministers or their deputies, will consult together from time to time
regarding the implementation of this Treaty and whenever in the opinion of either of them the territorial
integrity, political independence or security of either of the Parties is threatened by external armed attack in the
Pacific.
Article IV. Each Party recognizes that an armed attack in the Pacific area on either of the parties would be
dangerous to its own peace and safety and declares that it would act to meet the common dangers in
accordance with its constitutional processes.
Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security
Council of the United Nations. Such measures shall be terminated when the Security Council has taken the
measures necessary to restore and maintain international peace and security.
Article V. For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an armed
attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in
the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific.
Article VI. This Treaty does not affect and shall not be interpreted as affecting in any way the rights and
obligations of the Parties under the Charter of the United Nations or the responsibility of the United Nations for
the maintenance of international peace and security.
Article VII. This Treaty shall be ratified by the Republic of the Philippines and the United Nations of America in
accordance with their respective constitutional processes and will come into force when instruments of
ratification thereof have been exchanged by them at Manila.
Article VIII. This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice has
been given to the other party.
In withness whereof the undersigned Plenipotentiaries have signed this Treaty.
Done in duplicate at Washington this thirtieth day of August, 1951.
127

For the Republic of the Philippines:
(Sgd.) Carlos P. Romulo
(Sgd.) Joaquin M. Elizalde
(Sgd.) Vicente J. Francisco
(Sgd.) Diosdado Macapagal
For the United States of America:
(Sgd.) Dean Acheson
(Sgd.) John Foster Dulles
(Sgd.) Tom Connally
(Sgd.) Alexander Wiley
8

Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability to resist an armed
attack fall squarely under the provisions of the RP-US Mutual Defense Treaty. The VFA, which is the instrument
agreed upon to provide for the joint RP-US military exercises, is simply an implementing agreement to the main
RP-US Military Defense Treaty. The Preamble of the VFA states:
The Government of the United States of America and the Government of the Republic of the Philippines,
Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to
strengthen international and regional security in the Pacific area;
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
Noting that from time to time elements of the United States armed forces may visit the Republic of the
Philippines;
Considering that cooperation between the United States and the Republic of the Philippines promotes their
common security interests;
Recognizing the desirability of defining the treatment of United States personnel visiting the Republic of the
Philippines;
Have agreed as follows:
9

Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit
the VFA to the US Senate for advice and consent, but merely to the US Congress under the CaseZablocki Act
within 60 days of its ratification. It is for this reason that the US has certified that it recognizes the VFA as a
binding international agreement, i.e., a treaty, and this substantially complies with the requirements of Art.
XVIII, Sec. 25 of our Constitution.
10

The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the presence of
the US Armed Forces through the VFA is a presence "allowed under" the RP-US Mutual Defense Treaty. Since
the RP-US Mutual Defense Treaty itself has been ratified and concurred in by both the Philippine Senate and the
US Senate, there is no violation of the Constitutional provision resulting from such presence.
128

The VFA being a valid and binding agreement, the parties are required as a matter of international law to abide
by its terms and provisions.
The VFA provides that in cases of offenses committed by the members of the US Armed Forces in the
Philippines, the following rules apply:
Article V
Criminal Jurisdiction
x x x
6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall
immediately reside with United States military authorities, if they so request, from the commission of the
offense until completion of all judicial proceedings. United States military authorities shall, upon formal
notification by the Philippine authorities and without delay, make such personnel available to those authorities
in time for any investigative or judicial proceedings relating to the offense with which the person has been
charged. In extraordinary cases, the Philippine Government shall present its position to the United States
Government regarding custody, which the United States Government shall take into full account. In the event
Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any
obligations under this paragraph. The one year period will not include the time necessary to appeal. Also, the
one year period will not include any time during which scheduled trial procedures are delayed because United
States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused,
fail to do so.
Petitioners contend that these undertakings violate another provision of the Constitution, namely, that
providing for the exclusive power of this Court to adopt rules of procedure for all courts in the Philippines (Art.
VIII, Sec. 5[5]). They argue that to allow the transfer of custody of an accused to a foreign power is to provide for
a different rule of procedure for that accused, which also violates the equal protection clause of the Constitution
(Art. III, Sec. 1.).
Again, this Court finds no violation of the Constitution.
The equal protection clause is not violated, because there is a substantial basis for a different treatment of a
member of a foreign military armed forces allowed to enter our territory and all other accused.
11

The rule in international law is that a foreign armed forces allowed to enter ones territory is immune from local
jurisdiction, except to the extent agreed upon. The Status of Forces Agreements involving foreign military units
around the world vary in terms and conditions, according to the situation of the parties involved, and reflect
their bargaining power. But the principle remains, i.e., the receiving State can exercise jurisdiction over the
forces of the sending State only to the extent agreed upon by the parties.
12

As a result, the situation involved is not one in which the power of this Court to adopt rules of procedure is
curtailed or violated, but rather one in which, as is normally encountered around the world, the laws (including
rules of procedure) of one State do not extend or apply except to the extent agreed upon to subjects of
another State due to the recognition of extraterritorial immunity given to such bodies as visiting foreign armed
forces.
Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects
of jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of State,
diplomats and members of the armed forces contingents of a foreign State allowed to enter another States
territory. On the contrary, the Constitution states that the Philippines adopts the generally accepted principles
of international law as part of the law of the land. (Art. II, Sec. 2).
129

Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it comes to
detention as against custody. The moment the accused has to be detained, e.g., after conviction, the rule that
governs is the following provision of the VFA:
Article V
Criminal Jurisdiction
x x x
Sec. 10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in
facilities agreed on by appropriate Philippines and United States authorities. United States personnel serving
sentences in the Philippines shall have the right to visits and material assistance.
It is clear that the parties to the VFA recognized the difference between custody during the trial and detention
after conviction, because they provided for a specific arrangement to cover detention. And this specific
arrangement clearly states not only that the detention shall be carried out in facilities agreed on by authorities
of both parties, but also that the detention shall be "by Philippine authorities." Therefore, the Romulo-Kenney
Agreements of December 19 and 22, 2006, which are agreements on the detention of the accused in the United
States Embassy, are not in accord with the VFA itself because such detention is not "by Philippine authorities."
Respondents should therefore comply with the VFA and negotiate with representatives of the United States
towards an agreement on detention facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the
VFA.
Next, the Court addresses the recent decision of the United States Supreme Court in Medellin v. Texas ( 552 US
___ No. 06-984, March 25, 2008), which held that treaties entered into by the United States are not
automatically part of their domestic law unless these treaties are self-executing or there is an implementing
legislation to make them enforceable.1avvphi1
On February 3, 2009, the Court issued a Resolution, thus:
"G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No. 176051 (Jovito R. Salonga, et al.
v. Daniel Smith, et al.); and G.R. No. 176222 (Bagong Alyansang Makabayan [BAYAN], et al. v. President Gloria
Macapagal-Arroyo, et al.).
The parties, including the Solicitor General, are required to submit within three (3) days a
Comment/Manifestation on the following points:
1. What is the implication on the RP-US Visiting Forces Agreement of the recent US Supreme Court
decision in Jose Ernesto Medellin v. Texas, dated March 25, 2008, to the effect that treaty stipulations
that are not self-executory can only be enforced pursuant to legislation to carry them into effect; and
that, while treaties may comprise international commitments, they are not domestic law unless
Congress has enacted implementing statutes or the treaty itself conveys an intention that it be "self-
executory" and is ratified on these terms?
2. Whether the VFA is enforceable in the US as domestic law, either because it is self-executory or
because there exists legislation to implement it.
3. Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in by the US Senate
and, if so, is there proof of the US Senate advice and consent resolution? Peralta, J., no part."
After deliberation, the Court holds, on these points, as follows:
130

First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because the parties intend
its provisions to be enforceable, precisely because the Agreement is intended to carry out obligations and
undertakings under the RP-US Mutual Defense Treaty. As a matter of fact, the VFA has been implemented and
executed, with the US faithfully complying with its obligation to produce L/CPL Smith before the court during the
trial.
Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC Sec. 112(b),
inasmuch as it is the very purpose and intent of the US Congress that executive agreements registered under
this Act within 60 days from their ratification be immediately implemented. The parties to these present cases
do not question the fact that the VFA has been registered under the Case-Zablocki Act.1avvphi1
In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the Avena decision of
the International Court of Justice (ICJ), subject matter of the Medellin decision. The Convention and the ICJ
decision are not self-executing and are not registrable under the Case-Zablocki Act, and thus lack legislative
implementing authority.
Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on March 20, 1952, as
reflected in the US Congressional Record, 82nd Congress, Second Session, Vol. 98 Part 2, pp. 2594-2595.
The framers of the Constitution were aware that the application of international law in domestic courts varies
from country to country.
As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF INTERNATIONAL CRIMINAL LAW IN
NATIONAL COURTS, some countries require legislation whereas others do not.
It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec. 25, to require the
other contracting State to convert their system to achieve alignment and parity with ours. It was simply required
that the treaty be recognized as a treaty by the other contracting State. With that, it becomes for both parties a
binding international obligation and the enforcement of that obligation is left to the normal recourse and
processes under international law.
Furthermore, as held by the US Supreme Court in Weinberger v. Rossi,
13
an executive agreement is a "treaty"
within the meaning of that word in international law and constitutes enforceable domestic law vis--vis the
United States. Thus, the US Supreme Court in Weinberger enforced the provisions of the executive agreement
granting preferential employment to Filipinos in the US Bases here.
Accordingly, there are three types of treaties in the American system:
1. Art. II, Sec. 2 treaties These are advised and consented to by the US Senate in accordance with Art.
II, Sec. 2 of the US Constitution.
2. ExecutiveCongressional Agreements: These are joint agreements of the President and Congress and
need not be submitted to the Senate.
3. Sole Executive Agreements. These are agreements entered into by the President. They are to be
submitted to Congress within sixty (60) days of ratification under the provisions of the Case-Zablocki Act,
after which they are recognized by the Congress and may be implemented.
As regards the implementation of the RP-US Mutual Defense Treaty, military aid or assistance has been given
under it and this can only be done through implementing legislation. The VFA itself is another form of
implementation of its provisions.
131

WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals Decision in CA-G.R. SP No. 97212
dated January 2, 2007 is MODIFIED. The Visiting Forces Agreement (VFA) between the Republic of the
Philippines and the United States, entered into on February 10, 1998, is UPHELD as constitutional, but the
Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the VFA, and
respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States
representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in
Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by this Court.
The Court of Appeals is hereby directed to resolve without delay the related matters pending therein, namely,
the petition for contempt and the appeal of L/CPL Daniel Smith from the judgment of conviction.
No costs.
SO ORDERED.




















132

G.R. No. 190582 April 8, 2010
ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.
... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of
freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette
1

One unavoidable consequence of everyone having the freedom to choose is that others may make different
choices choices we would not make for ourselves, choices we may disapprove of, even choices that may shock
or offend or anger us. However, choices are not to be legally prohibited merely because they are different, and
the right to disagree and debate about important questions of public policy is a core value protected by our Bill
of Rights. Indeed, our democracy is built on genuine recognition of, and respect for, diversity and difference in
opinion.
Since ancient times, society has grappled with deep disagreements about the definitions and demands of
morality. In many cases, where moral convictions are concerned, harmony among those theoretically opposed is
an insurmountable goal. Yet herein lies the paradox philosophical justifications about what is moral are
indispensable and yet at the same time powerless to create agreement. This Court recognizes, however, that
practical solutions are preferable to ideological stalemates; accommodation is better than intransigence; reason
more worthy than rhetoric. This will allow persons of diverse viewpoints to live together, if not harmoniously,
then, at least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of preliminary
mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission
on Elections (COMELEC) dated November 11, 2009
2
(the First Assailed Resolution) and December 16, 2009
3
(the
Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots
in the COMELECs refusal to accredit Ang Ladlad as a party-list organization under Republic Act (RA) No. 7941,
otherwise known as the Party-List System Act.
4

Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays,
bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration
with the COMELEC in 2006. The application for accreditation was denied on the ground that the organization
had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a Petition
5
for registration with
the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-represented
sector that is particularly disadvantaged because of their sexual orientation and gender identity; that LGBTs are
victims of exclusion, discrimination, and violence; that because of negative societal attitudes, LGBTs are
constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8-point guidelines
enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections.
6
Ang Ladlad laid
out its national membership base consisting of individual members and organizational supporters, and outlined
its platform of governance.
7

On November 11, 2009, after admitting the petitioners evidence, the COMELEC (Second Division) dismissed the
Petition on moral grounds, stating that:
133

x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and
Transgender (LGBT) Community, thus:
x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual
orientation and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a persons capacity for profound emotional, affectional and sexual attraction to, and intimate and
sexual relations with, individuals of a different gender, of the same gender, or more than one gender."
This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends
religious beliefs. In Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for even their women did change the natural use into that
which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust
one toward another; men with men working that which is unseemly, and receiving in themselves that
recompense of their error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are indeed a people transgressing beyond
bounds." (7.81) "And we rained down on them a shower (of brimstone): Then see what was the end of those
who indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people who do mischief"
(29:30).
As correctly pointed out by the Law Department in its Comment dated October 2, 2008:
The ANG LADLAD apparently advocates sexual immorality as indicated in the Petitions par. 6F: Consensual
partnerships or relationships by gays and lesbians who are already of age. It is further indicated in par. 24 of the
Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs in the Philippines were
estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence, pertinent
provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to be complied
with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as Any act, omission,
establishment, business, condition of property, or anything else which x x x (3) shocks, defies; or disregards
decency or morality x x x
It also collides with Article 1306 of the Civil Code: The contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals,
good customs, public order or public policy. Art 1409 of the Civil Code provides that Contracts whose cause,
object or purpose is contrary to law, morals, good customs, public order or public policy are inexistent and void
from the beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended, penalizes
Immoral doctrines, obscene publications and exhibitions and indecent shows as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. The penalty of prision
mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall
be imposed upon:
134

1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;
2. (a) The authors of obscene literature, published with their knowledge in any form; the editors
publishing such literature; and the owners/operators of the establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or
immoral plays, scenes, acts or shows, it being understood that the obscene literature or
indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed
by virtue hereof, shall include those which: (1) glorify criminals or condone crimes; (2) serve no
other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or
religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public
order, morals, good customs, established policies, lawful orders, decrees and edicts.
3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are
offensive to morals.
Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise for not
being truthful when it said that it "or any of its nominees/party-list representatives have not violated or failed to
comply with laws, rules, or regulations relating to the elections."
Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment that
does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A.
said in one article that "older practicing homosexuals are a threat to the youth." As an agency of the
government, ours too is the States avowed duty under Section 13, Article II of the Constitution to protect our
youth from moral and spiritual degradation.
8

When Ang Ladlad sought reconsideration,
9
three commissioners voted to overturn the First Assailed Resolution
(Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners
voted to deny Ang Ladlads Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle,
and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his Separate
Opinion, upheld the First Assailed Resolution, stating that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has properly
proven its under-representation and marginalization, it cannot be said that Ladlads expressed sexual
orientations per se would benefit the nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing
congressional representatives is to enable Filipino citizens belonging to marginalized and under-represented
sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute
to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become
members of the House of Representatives.
If entry into the party-list system would depend only on the ability of an organization to represent its
constituencies, then all representative organizations would have found themselves into the party-list race. But
that is not the intention of the framers of the law. The party-list system is not a tool to advocate tolerance and
acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a tool for the
realization of aspirations of marginalized individuals whose interests are also the nations only that their
interests have not been brought to the attention of the nation because of their under representation. Until the
time comes when Ladlad is able to justify that having mixed sexual orientations and transgender identities is
beneficial to the nation, its application for accreditation under the party-list system will remain just that.
135

II. No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not
recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special class" of individuals. x x x Significantly,
it has also been held that homosexuality is not a constitutionally protected fundamental right, and that "nothing
in the U.S. Constitution discloses a comparable intent to protect or promote the social or legal equality of
homosexual relations," as in the case of race or religion or belief.
x x x x
Thus, even if societys understanding, tolerance, and acceptance of LGBTs is elevated, there can be no denying
that Ladlad constituencies are still males and females, and they will remain either male or female protected by
the same Bill of Rights that applies to all citizens alike.
x x x x
IV. Public Morals
x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither is there
any attempt to any particular religious groups moral rules on Ladlad. Rather, what are being adopted as moral
parameters and precepts are generally accepted public morals. They are possibly religious-based, but as a
society, the Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing, such that
some moral precepts espoused by said religions have sipped [sic] into society and these are not publicly
accepted moral norms.
V. Legal Provisions
But above morality and social norms, they have become part of the law of the land. Article 201 of the Revised
Penal Code imposes the penalty of prision mayor upon "Those who shall publicly expound or proclaim doctrines
openly contrary to public morals." It penalizes "immoral doctrines, obscene publications and exhibition and
indecent shows." "Ang Ladlad" apparently falls under these legal provisions. This is clear from its Petitions
paragraph 6F: "Consensual partnerships or relationships by gays and lesbians who are already of age It is further
indicated in par. 24 of the Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs in
the Philippines were estimated as 670,000. Moreoever, Article 694 of the Civil Code defines "nuisance" as any
act, omission x x x or anything else x x x which shocks, defies or disregards decency or morality x x x." These are
all unlawful.
10

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and
direct the COMELEC to grant Ang Ladlads application for accreditation. Ang Ladlad also sought the issuance ex
parte of a preliminary mandatory injunction against the COMELEC, which had previously announced that it
would begin printing the final ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of
COMELEC not later than 12:00 noon of January 11, 2010.
11
Instead of filing a Comment, however, the OSG filed a
Motion for Extension, requesting that it be given until January 16, 2010 to Comment.
12
Somewhat surprisingly,
the OSG later filed a Comment in support of petitioners application.
13
Thus, in order to give COMELEC the
opportunity to fully ventilate its position, we required it to file its own comment.
14
The COMELEC, through its
Law Department, filed its Comment on February 2, 2010.
15

In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12,
2010, effective immediately and continuing until further orders from this Court, directing the COMELEC to cease
and desist from implementing the Assailed Resolutions.
16

136

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear as
Amicus Curiae, attaching thereto its Comment-in-Intervention.
17
The CHR opined that the denial of Ang Ladlads
petition on moral grounds violated the standards and principles of the Constitution, the Universal Declaration of
Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010,
we granted the CHRs motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene
18
which motion was granted on
February 2, 2010.
19

The Parties Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma,
violated the constitutional guarantees against the establishment of religion. Petitioner also claimed that the
Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech and assembly, and equal
protection of laws, as well as constituted violations of the Philippines international obligations against
discrimination based on sexual orientation.
The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in denying petitioners
application for registration since there was no basis for COMELECs allegations of immorality. It also opined that
LGBTs have their own special interests and concerns which should have been recognized by the COMELEC as a
separate classification. However, insofar as the purported violations of petitioners freedom of speech,
expression, and assembly were concerned, the OSG maintained that there had been no restrictions on these
rights.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political
agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also argued for the
first time that the LGBT sector is not among the sectors enumerated by the Constitution and RA 7941, and that
petitioner made untruthful statements in its petition when it alleged its national existence contrary to actual
verification reports by COMELECs field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act No. 7941
The COMELEC denied Ang Ladlads application for registration on the ground that the LGBT sector is neither
enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the sectors in the
enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those
sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and
professionals) may be registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW
Labor Party v. Commission on Elections,
20
"the enumeration of marginalized and under-represented sectors is
not exclusive". The crucial element is not whether a sector is specifically enumerated, but whether a particular
organization complies with the requirements of the Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it had
nationwide existence through its members and affiliate organizations. The COMELEC claims that upon
verification by its field personnel, it was shown that "save for a few isolated places in the country, petitioner
does not exist in almost all provinces in the country."
21

137

This argument that "petitioner made untruthful statements in its petition when it alleged its national existence"
is a new one; previously, the COMELEC claimed that petitioner was "not being truthful when it said that it or any
of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations
relating to the elections." Nowhere was this ground for denial of petitioners accreditation mentioned or even
alluded to in the Assailed Resolutions. This, in itself, is quite curious, considering that the reports of petitioners
alleged non-existence were already available to the COMELEC prior to the issuance of the First Assailed
Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a change in respondents
theory, and a serious violation of petitioners right to procedural due process.
Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlads initial petition
shows that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged that the LGBT
community in the Philippines was estimated to constitute at least 670,000 persons; that it had 16,100 affiliates
and members around the country, and 4,044 members in its electronic discussion group.
22
Ang Ladlad also
represented itself to be "a national LGBT umbrella organization with affiliates around the Philippines composed
of the following LGBT networks:"
Abra Gay Association
Aklan Butterfly Brigade (ABB) Aklan
Albay Gay Association
Arts Center of Cabanatuan City Nueva Ecija
Boys Legion Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)
Cant Live in the Closet, Inc. (CLIC) Metro Manila
Cebu Pride Cebu City
Circle of Friends
Dipolog Gay Association Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality (GALANG) Metro Manila
Gay Mens Support Group (GMSG) Metro Manila
Gay United for Peace and Solidarity (GUPS) Lanao del Norte
Iloilo City Gay Association Iloilo City
Kabulig Writers Group Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA Baguio City
Marikina Gay Association Metro Manila
138

Metropolitan Community Church (MCC) Metro Manila
Naga City Gay Association Naga City
ONE BACARDI
Order of St. Aelred (OSAe) Metro Manila
PUP LAKAN
RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights), Inc. Metro Manila
San Jose del Monte Gay Association Bulacan
Sining Kayumanggi Royal Family Rizal
Society of Transexual Women of the Philippines (STRAP) Metro Manila
Soul Jive Antipolo, Rizal
The Link Davao City
Tayabas Gay Association Quezon
Womens Bisexual Network Metro Manila
Zamboanga Gay Association Zamboanga City
23

Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise that they
found that petitioner had no presence in any of these regions. In fact, if COMELECs findings are to be believed,
petitioner does not even exist in Quezon City, which is registered as Ang Ladlads principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal
requirements for accreditation. Indeed, aside from COMELECs moral objection and the belated allegation of
non-existence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not qualified to
register as a party-list organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong
Bayani. The difference, COMELEC claims, lies in Ang Ladlads morality, or lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlads Petition for Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof." At bottom, what our non-establishment clause calls for is
"government neutrality in religious matters."
24
Clearly, "governmental reliance on religious justification is
inconsistent with this policy of neutrality."
25
We thus find that it was grave violation of the non-establishment
clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on
whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to religious
doctrine. Otherwise stated, government must act for secular purposes and in ways that have primarily secular
effects. As we held in Estrada v. Escritor:
26

139

x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr.
Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public order but
public moral disputes may be resolved only on grounds articulable in secular terms." Otherwise, if government
relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would
require conformity to what some might regard as religious programs or agenda. The non-believers would
therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a
"compelled religion," anathema to religious freedom. Likewise, if government based its actions upon religious
beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or
non-religious views that would not support the policy. As a result, government will not provide full religious
freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class
citizens.1avvphi1
In other words, government action, including its proscription of immorality as expressed in criminal law like
concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is
"detrimental (or dangerous) to those conditions upon which depend the existence and progress of human
society" and not because the conduct is proscribed by the beliefs of one religion or the other. Although
admittedly, moral judgments based on religion might have a compelling influence on those engaged in public
deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they
might also be adherents of a religion and thus have religious opinions and moral codes with a compelling
influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a
uniform manner, harmonizing earth with heaven. Succinctly put, a law could be religious or Kantian or Aquinian
or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification
to pass scrutiny of the religion clauses. x x x Recognizing the religious nature of the Filipinos and the elevating
influence of religion in society, however, the Philippine constitution's religion clauses prescribe not a strict but a
benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and
interests but at the same time strive to uphold religious liberty to the greatest extent possible within flexible
constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could
allow for accommodation of morality based on religion, provided it does not offend compelling state interests.
27

Public Morals as a Ground to Deny Ang Ladlads Petition for Registration
Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct may be
religion-based, it has long been transplanted into generally accepted public morals. The COMELEC argues:
Petitioners accreditation was denied not necessarily because their group consists of LGBTs but because of the
danger it poses to the people especially the youth. Once it is recognized by the government, a sector which
believes that there is nothing wrong in having sexual relations with individuals of the same gender is a bad
example. It will bring down the standard of morals we cherish in our civilized society. Any society without a set
of moral precepts is in danger of losing its own existence.
28

We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals
themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this
censure religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike
or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines
has not seen fit to criminalize homosexual conduct. Evidently, therefore, these "generally accepted public
morals" have not been convincingly transplanted into the realm of law.
29

The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even the
OSG agrees that "there should have been a finding by the COMELEC that the groups members have committed
or are committing immoral acts."
30
The OSG argues:
x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more than one
gender, but mere attraction does not translate to immoral acts. There is a great divide between thought and
140

action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC would have its hands full of
disqualification cases against both the "straights" and the gays." Certainly this is not the intendment of the
law.
31

Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is
required for the youth. Neither has the COMELEC condescended to justify its position that petitioners admission
into the party-list system would be so harmful as to irreparably damage the moral fabric of society. We, of
course, do not suggest that the state is wholly without authority to regulate matters concerning morality,
sexuality, and sexual relations, and we recognize that the government will and should continue to restrict
behavior considered detrimental to society. Nonetheless, we cannot countenance advocates who, undoubtedly
with the loftiest of intentions, situate morality on one end of an argument or another, without bothering to go
through the rigors of legal reasoning and explanation. In this, the notion of morality is robbed of all value.
Clearly then, the bare invocation of morality will not remove an issue from our scrutiny.
We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best;
disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as "any act, omission, establishment,
condition of property, or anything else which shocks, defies, or disregards decency or morality," the remedies
for which are a prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement
without judicial proceedings.
32
A violation of Article 201 of the Revised Penal Code, on the other hand, requires
proof beyond reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere
allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot replace the
institution of civil or criminal proceedings and a judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify
exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlads registration on
purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a
tool to further any substantial public interest. Respondents blanket justifications give rise to the inevitable
conclusion that the COMELEC targets homosexuals themselves as a class, not because of any particular morally
reprehensible act. It is this selective targeting that implicates our equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any person be
denied equal protection of the laws," courts have never interpreted the provision as an absolute prohibition on
classification. "Equality," said Aristotle, "consists in the same treatment of similar persons."
33
The equal
protection clause guarantees that no person or class of persons shall be deprived of the same protection of laws
which is enjoyed by other persons or other classes in the same place and in like circumstances.
34

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class,
we will uphold the classification as long as it bears a rational relationship to some legitimate government end.
35

In Central Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas,
36
we declared that "[i]n our jurisdiction,
the standard of analysis of equal protection challenges x x x have followed the rational basis test, coupled with
a deferential attitude to legislative classifications and a reluctance to invalidate a law unless there is a showing
of a clear and unequivocal breach of the Constitution."
37

The COMELEC posits that the majority of the Philippine population considers homosexual conduct as immoral
and unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately for the
respondent, the Philippine electorate has expressed no such belief. No law exists to criminalize homosexual
behavior or expressions or parties about homosexual behavior. Indeed, even if we were to assume that public
opinion is as the COMELEC describes it, the asserted state interest here that is, moral disapproval of an
unpopular minority is not a legitimate state interest that is sufficient to satisfy rational basis review under the
equal protection clause. The COMELECs differentiation, and its unsubstantiated claim that Ang Ladlad cannot
141

contribute to the formulation of legislation that would benefit the nation, furthers no legitimate state interest
other than disapproval of or dislike for a disfavored group.
From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest
in participating in the party-list system on the same basis as other political parties similarly situated. State
intrusion in this case is equally burdensome. Hence, laws of general application should apply with equal force to
LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and
under-represented sectors.
It bears stressing that our finding that COMELECs act of differentiating LGBTs from heterosexuals insofar as the
party-list system is concerned does not imply that any other law distinguishing between heterosexuals and
homosexuals under different circumstances would similarly fail. We disagree with the OSGs position that
homosexuals are a class in themselves for the purposes of the equal protection clause.
38
We are not prepared to
single out homosexuals as a separate class meriting special or differentiated treatment. We have not received
sufficient evidence to this effect, and it is simply unnecessary to make such a ruling today. Petitioner itself has
merely demanded that it be recognized under the same basis as all other groups similarly situated, and that the
COMELEC made "an unwarranted and impermissible classification not justified by the circumstances of the
case."
Freedom of Expression and Association
Under our system of laws, every group has the right to promote its agenda and attempt to persuade society of
the validity of its position through normal democratic means.
39
It is in the public square that deeply held
convictions and differing opinions should be distilled and deliberated upon. As we held in Estrada v. Escritor:
40

In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where
citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to the
public square where people deliberate the order of their life together. Citizens are the bearers of opinion,
including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public
square. In this representative democracy, the state is prohibited from determining which convictions and moral
judgments may be proposed for public deliberation. Through a constitutionally designed process, the people
deliberate and decide. Majority rule is a necessary principle in this democratic governance. Thus, when public
deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and
preferences of the majority, i.e., the mainstream or median groups.

Nevertheless, in the very act of adopting and
accepting a constitution and the limits it specifies including protection of religious freedom "not only for a
minority, however small not only for a majority, however large but for each of us" the majority imposes
upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over
the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom
applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any
restriction imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any compelling
state interest, it is not for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the
COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved
message or discouraging a disfavored one.
This position gains even more force if one considers that homosexual conduct is not illegal in this country. It
follows that both expressions concerning ones homosexuality and the activity of forming a political association
that supports LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that
homosexual conduct violates public morality does not justify criminalizing same-sex conduct.
41
European and
United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and equality
142

grounds, citing general privacy and equal protection provisions in foreign and international texts.
42
To the extent
that there is much to learn from other jurisdictions that have reflected on the issues we face here, such
jurisprudence is certainly illuminating. These foreign authorities, while not formally binding on Philippine courts,
may nevertheless have persuasive influence on the Courts analysis.
In the area of freedom of expression, for instance, United States courts have ruled that existing free speech
doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition of a particular
expression of opinion, public institutions must show that their actions were caused by "something more than a
mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."
43

With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant
human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political party
may campaign for a change in the law or the constitutional structures of a state if it uses legal and democratic
means and the changes it proposes are consistent with democratic principles. The ECHR has emphasized that
political ideas that challenge the existing order and whose realization is advocated by peaceful means must be
afforded a proper opportunity of expression through the exercise of the right of association, even if such ideas
may seem shocking or unacceptable to the authorities or the majority of the population.
44
A political group
should not be hindered solely because it seeks to publicly debate controversial political issues in order to find
solutions capable of satisfying everyone concerned.
45
Only if a political party incites violence or puts forward
policies that are incompatible with democracy does it fall outside the protection of the freedom of association
guarantee.
46

We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive, or
even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and their supporters, in
all likelihood, believe with equal fervor that relationships between individuals of the same sex are morally
equivalent to heterosexual relationships. They, too, are entitled to hold and express that view. However, as far
as this Court is concerned, our democracy precludes using the religious or moral views of one part of the
community to exclude from consideration the values of other members of the community.
Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may be that
this Decision will only serve to highlight the discrepancy between the rigid constitutional analysis of this Court
and the more complex moral sentiments of Filipinos. We do not suggest that public opinion, even at its most
liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt nor expect to
affect individual perceptions of homosexuality through this Decision.
The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed on Ang
Ladlad, and its members have not been deprived of their right to voluntarily associate, then there has been no
restriction on their freedom of expression or association. The OSG argues that:
There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply
exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to
participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of Section 4,
Article III of the Constitution.
x x x x
A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take part
in the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the right to vote is a
constitutionally-guaranteed right which cannot be limited.
As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang Ladlads
petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of its members to
fully and equally participate in public life through engagement in the party list elections.
143

This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations imposed
by law. x x x
47

The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-list
system, and as advanced by the OSG itself the moral objection offered by the COMELEC was not a limitation
imposed by law. To the extent, therefore, that the petitioner has been precluded, because of COMELECs action,
from publicly expressing its views as a political party and participating on an equal basis in the political process
with other equally-qualified party-list candidates, we find that there has, indeed, been a transgression of
petitioners fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in scope and promise, international human rights
law, in particular, has grown dynamically in its attempt to bring about a more just and humane world order. For
individuals and groups struggling with inadequate structural and governmental support, international human
rights norms are particularly significant, and should be effectively enforced in domestic legal systems so that
such norms may become actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international obligations to protect and promote human rights. In
particular, we explicitly recognize the principle of non-discrimination as it relates to the right to electoral
participation, enunciated in the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without any discrimination to the equal protection of the
law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
In this context, the principle of non-discrimination requires that laws of general application relating to elections
be applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not specifically
enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee
has opined that the reference to "sex" in Article 26 should be construed to include "sexual orientation."
48

Additionally, a variety of United Nations bodies have declared discrimination on the basis of sexual orientation
to be prohibited under various international agreements.
49

The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen
representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and
without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
144

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal
suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is
elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs and
the Right to Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of
public affairs, the right to vote and to be elected and the right to have access to public service. Whatever form
of constitution or government is in force, the Covenant requires States to adopt such legislative and other
measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it
protects. Article 25 lies at the core of democratic government based on the consent of the people and in
conformity with the principles of the Covenant.
x x x x
15. The effective implementation of the right and the opportunity to stand for elective office ensures that
persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election, such
as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to
stand for election should not be excluded by unreasonable or discriminatory requirements such as education,
residence or descent, or by reason of political affiliation. No person should suffer discrimination or disadvantage
of any kind because of that person's candidacy. States parties should indicate and explain the legislative
provisions which exclude any group or category of persons from elective office.
50

We stress, however, that although this Court stands willing to assume the responsibility of giving effect to the
Philippines international law obligations, the blanket invocation of international law is not the panacea for all
social ills. We refer now to the petitioners invocation of the Yogyakarta Principles (the Application of
International Human Rights Law In Relation to Sexual Orientation and Gender Identity),
51
which petitioner
declares to reflect binding principles of international law.
At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory
on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of
the current state of international law, and do not find basis in any of the sources of international law
enumerated under Article 38(1) of the Statute of the International Court of Justice.
52
Petitioner has not
undertaken any objective and rigorous analysis of these alleged principles of international law to ascertain their
true status.
We also hasten to add that not everything that society or a certain segment of society wants or demands is
automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted
from at will. It is unfortunate that much of what passes for human rights today is a much broader context of
needs that identifies many social desires as rights in order to further claims that international law obliges states
to sanction these innovations. This has the effect of diluting real human rights, and is a result of the notion that
if "wants" are couched in "rights" language, then they are no longer controversial.1avvphi1
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by
various international law professors, are at best de lege ferenda and do not constitute binding obligations
on the Philippines. Indeed, so much of contemporary international law is characterized by the "soft law"
nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and
respect for human rights, most of which amount to no more than well-meaning desires, without the support of
either State practice or opinio juris.
53

145

As a final note, we cannot help but observe that the social issues presented by this case are emotionally
charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in opinion. This
Courts role is not to impose its own view of acceptable behavior. Rather, it is to apply the Constitution and laws
as best as it can, uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient
enough to withstand vigorous debate.
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated November
11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is
directed to GRANT petitioners application for party-list accreditation.
SO ORDERED.






















146

G.R. No. 183871 February 18, 2010
LOURDES D. RUBRICO, JEAN RUBRICO APRUEBO, and MARY JOY RUBRICO CARBONEL, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON, MAJ. DARWIN SY
a.k.a. DARWIN REYES, JIMMY SANTANA, RUBEN ALFARO, CAPT. ANGELO CUARESMA, a certain JONATHAN,
P/SUPT. EDGAR B. ROQUERO, ARSENIO C. GOMEZ, and OFFICE OF THE OMBUDSMAN, Respondents.
In this petition for review under Rule 45 of the Rules of Court in relation to Section 19
1
of the Rule on the Writ of
Amparo
2
(Amparo Rule), Lourdes D. Rubrico, Jean Rubrico Apruebo, and Mary Joy Rubrico Carbonel assail and
seek to set aside the Decision
3
of the Court of Appeals (CA) dated July 31, 2008 in CA-G.R. SP No. 00003, a
petition commenced under the Amparo Rule.
The petition for the writ of amparo dated October 25, 2007 was originally filed before this Court. After issuing
the desired writ and directing the respondents to file a verified written return, the Court referred the petition to
the CA for summary hearing and appropriate action. The petition and its attachments contained, in substance,
the following allegations:
1. On April 3, 2007, armed men belonging to the 301st Air Intelligence and Security Squadron (AISS, for
short) based in Fernando Air Base in Lipa City abducted Lourdes D. Rubrico (Lourdes), then attending a
Lenten pabasa in Bagong Bayan, Dasmarias, Cavite, and brought to, and detained at, the air base
without charges. Following a week of relentless interrogation - conducted alternately by hooded
individuals - and what amounts to verbal abuse and mental harassment, Lourdes, chair of the Ugnayan
ng Maralita para sa Gawa Adhikan, was released at Dasmarias, Cavite, her hometown, but only after
being made to sign a statement that she would be a military asset.
After Lourdes release, the harassment, coming in the form of being tailed on at least two occasions at
different places, i.e., Dasmarias, Cavite and Baclaran in Pasay City, by motorcycle-riding men in
bonnets, continued;
2. During the time Lourdes was missing, P/Sr. Insp. Arsenio Gomez (P/Insp. Gomez), then sub-station
commander of Bagong Bayan, Dasmarias, Cavite, kept sending text messages to Lourdes daughter,
Mary Joy R. Carbonel (Mary Joy), bringing her to beaches and asking her questions about Karapatan, an
alliance of human rights organizations. He, however, failed to make an investigation even after Lourdes
disappearance had been made known to him;
3. A week after Lourdes release, another daughter, Jean R. Apruebo (Jean), was constrained to leave
their house because of the presence of men watching them;
4. Lourdes has filed with the Office of the Ombudsman a criminal complaint for kidnapping and arbitrary
detention and administrative complaint for gross abuse of authority and grave misconduct against Capt.
Angelo Cuaresma (Cuaresma), Ruben Alfaro (Alfaro), Jimmy Santana (Santana) and a certain Jonathan,
c/o Headquarters 301st AISS, Fernando Air Base and Maj. Sy/Reyes with address at No. 09 Amsterdam
Ext., Merville Subd., Paraaque City, but nothing has happened; and the threats and harassment
incidents have been reported to the Dasmarias municipal and Cavite provincial police stations, but
nothing eventful resulted from their respective investigations.
Two of the four witnesses to Lourdes abduction went into hiding after being visited by government
agents in civilian clothes; and
5. Karapatan conducted an investigation on the incidents. The investigation would indicate that men
belonging to the Armed Forces of the Philippines (AFP), namely Capt. Cuaresma of the Philippine Air
Force (PAF), Alfaro, Santana, Jonathan and Maj. Darwin Sy/Reyes, led the abduction of Lourdes; that
147

unknown to the abductors, Lourdes was able to pilfer a "mission order" which was addressed to CA
Ruben Alfaro and signed by Capt. Cuaresma of the PAF.
The petition prayed that a writ of amparo issue, ordering the individual respondents to desist from performing
any threatening act against the security of the petitioners and for the Office of the Ombudsman (OMB) to
immediately file an information for kidnapping qualified with the aggravating circumstance of gender of the
offended party. It also prayed for damages and for respondents to produce documents submitted to any of
them on the case of Lourdes.
Before the CA, respondents President Gloria Macapagal-Arroyo, Gen. Hermogenes Esperon, then Armed Forces
of the Philippines (AFP) Chief of Staff, Police Director-General (P/Dir. Gen.) Avelino Razon, then Philippine
National Police (PNP) Chief, Police Superintendent (P/Supt.) Roquero of the Cavite Police Provincial Office, Police
Inspector (P/Insp.) Gomez, now retired, and the OMB (answering respondents, collectively) filed, through the
Office of the Solicitor General (OSG), a joint return on the writ specifically denying the material inculpatory
averments against them. The OSG also denied the allegations against the following impleaded persons, namely:
Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes, for lack of knowledge or information sufficient to form a
belief as to the allegations truth. And by way of general affirmative defenses, answering respondents
interposed the following defenses: (1) the President may not be sued during her incumbency; and (2) the
petition is incomplete, as it fails to indicate the matters required by Sec. 5(d) and (e) of the Amparo Rule.
4

Attached to the return were the affidavits of the following, among other public officials, containing their
respective affirmative defenses and/or statements of what they had undertaken or committed to undertake
regarding the claimed disappearance of Lourdes and the harassments made to bear on her and her daughters:
1. Gen. Esperon attested that, pursuant to a directive of then Secretary of National Defense (SND)
Gilberto C. Teodoro, Jr., he ordered the Commanding General of the PAF, with information to all
concerned units, to conduct an investigation to establish the circumstances behind the disappearance
and the reappearance of Lourdes insofar as the involvement of alleged personnel/unit is concerned. The
Provost Marshall General and the Office of the Judge Advocate General (JAGO), AFP, also undertook a
parallel action.
Gen. Esperon manifested his resolve to provide the CA with material results of the investigation; to
continue with the probe on the alleged abduction of Lourdes and to bring those responsible, including
military personnel, to the bar of justice when warranted by the findings and the competent evidence
that may be gathered in the investigation process by those mandated to look into the matter;
5

2. P/Dir. Gen. Razon - stated that an investigation he immediately ordered upon receiving a copy of the
petition is on-going vis--vis Lourdes abduction, and that a background verification with the PNP
Personnel Accounting and Information System disclosed that the names Santana, Alfaro, Cuaresma and
one Jonathan do not appear in the police personnel records, although the PNP files carry the name of
Darwin Reyes Y. Muga.
Per the initial investigation report of the Dasmarias municipal police station, P/Dir. Gen. Razon
disclosed, Lourdes was abducted by six armed men in the afternoon of April 3, 2007 and dragged aboard
a Toyota Revo with plate number XRR 428, which plate was issued for a Mitsubishi van to AK Cottage
Industry with address at 9 Amsterdam St., Merville Subd., Paraaque City. The person residing in the
apartment on that given address is one Darius/Erwin See @ Darius Reyes allegedly working, per the
latters house helper, in Camp Aguinaldo.
P/Dir. Gen. Razon, however, bemoaned the fact that Mrs. Rubrico never contacted nor coordinated with
the local police or other investigating units of the PNP after her release, although she is in the best
position to establish the identity of her abductors and/or provide positive description through
composite sketching. Nonetheless, he manifested that the PNP is ready to assist and protect the
148

petitioners and the key witnesses from threats, harassments and intimidation from whatever source
and, at the same time, to assist the Court in the implementation of its orders.
6
1avvphi1
3. P/Supt. Roquero stated conducting, upon receipt of Lourdes complaint, an investigation and
submitting the corresponding report to the PNP Calabarzon, observing that neither Lourdes nor her
relatives provided the police with relevant information;
4. P/Insp. Gomez alleged that Lourdes, her kin and witnesses refused to cooperate with the
investigating Cavite PNP; and
5. Overall Deputy Ombudsman Orlando Casimiro - alleged that cases for violation of Articles 267 and
124, or kidnapping and arbitrary detention, respectively, have been filed with, and are under preliminary
investigation by the OMB against those believed to be involved in Lourdes kidnapping; that upon
receipt of the petition for a writ of amparo, proper coordination was made with the Office of the Deputy
Ombudsman for the Military and other Law Enforcement Offices (MOLEO) where the subject criminal
and administrative complaints were filed.
Commenting on the return, petitioners pointed out that the return was no more than a general denial of
averments in the petition. They, thus, pleaded to be allowed to present evidence ex parte against the President,
Santana, Alfaro, Capt. Cuaresma, Darwin Sy, and Jonathan. And with leave of court, they also asked to serve
notice of the petition through publication, owing to their failure to secure the current address of the latter five
and thus submit, as the CA required, proof of service of the petition on them.
The hearing started on November 13, 2007.
7
In that setting, petitioners counsel prayed for the issuance of a
temporary protection order (TPO) against the answering respondents on the basis of the allegations in the
petition. At the hearing of November 20, 2007, the CA granted petitioners motion that the petition and writ be
served by the courts process server on Darwin Sy/Reyes, Santana, Alfaro, Capt. Cuaresma, and Jonathan.
The legal skirmishes that followed over the propriety of excluding President Arroyo from the petition,
petitioners motions for service by publication, and the issuance of a TPO are not of decisive pertinence in this
recital. The bottom line is that, by separate resolutions, the CA dropped the President as respondent in the case;
denied the motion for a TPO for the courts want of authority to issue it in the tenor sought by petitioners; and
effectively denied the motion for notice by publication owing to petitioners failure to submit the affidavit
required under Sec. 17, Rule 14 of the Rules of Court.
8

After due proceedings, the CA rendered, on July 31, 2008, its partial judgment, subject of this review, disposing
of the petition but only insofar as the answering respondents were concerned. The fallo of the CA decision reads
as follows:
WHEREFORE, premises considered, partial judgment is hereby rendered DISMISSING the instant petition with
respect to respondent Gen. Hermogenes Esperon, P/Dir. Gen. Avelino Razon, Supt. Edgar B. Roquero, P/Sr. Insp.
Arsenio C. Gomez (ret.) and the Office of the Ombudsman.
Nevertheless, in order that petitioners complaint will not end up as another unsolved case, the heads of the
Armed Forces of the Philippines and the Philippine National Police are directed to ensure that the investigations
already commenced are diligently pursued to bring the perpetrators to justice. The Chief of Staff of the Armed
Forces of the Philippines and P/Dir. Gen. Avelino Razon are directed to regularly update petitioners and this
Court on the status of their investigation.
SO ORDERED.
In this recourse, petitioners formulate the issue for resolution in the following wise:
149

WHETHER OR NOT the [CA] committed reversible error in dismissing [their] Petition and dropping President
Gloria Macapagal Arroyo as party respondent.
Petitioners first take issue on the Presidents purported lack of immunity from suit during her term of office. The
1987 Constitution, so they claim, has removed such immunity heretofore enjoyed by the chief executive under
the 1935 and 1973 Constitutions.
Petitioners are mistaken. The presidential immunity from suit remains preserved under our system of
government, albeit not expressly reserved in the present constitution. Addressing a concern of his co-members
in the 1986 Constitutional Commission on the absence of an express provision on the matter, Fr. Joaquin Bernas,
S.J. observed that it was already understood in jurisprudence that the President may not be sued during his or
her tenure.
9
The Court subsequently made it abundantly clear in David v. Macapagal-Arroyo, a case likewise
resolved under the umbrella of the 1987 Constitution, that indeed the President enjoys immunity during her
incumbency, and why this must be so:
Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in
any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the
dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while
serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the
legislative and judicial branch, only one constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties imposed upon him by the Constitution
necessarily impairs the operation of the Government.
10
x x x
And lest it be overlooked, the petition is simply bereft of any allegation as to what specific presidential act or
omission violated or threatened to violate petitioners protected rights.
This brings us to the correctness of the assailed dismissal of the petition with respect to Gen. Esperon, P/Dir.
Gen. Razon, P/Supt. Roquero, P/Insp. Gomez, and the OMB.
None of the four individual respondents immediately referred to above has been implicated as being connected
to, let alone as being behind, the alleged abduction and harassment of petitioner Lourdes. Their names were not
even mentioned in Lourdes Sinumpaang Salaysay
11
of April 2007. The same goes for the respective Sinumpaang
Salaysay and/or Karagdagang Sinumpaang Salaysay of Jean
12
and Mary Joy.
13

As explained by the CA, Gen. Esperon and P/Dir. Gen. Razon were included in the case on the theory that they,
as commanders, were responsible for the unlawful acts allegedly committed by their subordinates against
petitioners. To the appellate court, "the privilege of the writ of amparo must be denied as against Gen. Esperon
and P/Dir. Gen. Razon for the simple reason that petitioners have not presented evidence showing that those
who allegedly abducted and illegally detained Lourdes and later threatened her and her family were, in fact,
members of the military or the police force." The two generals, the CAs holding broadly hinted, would have
been accountable for the abduction and threats if the actual malefactors were members of the AFP or PNP.
As regards the three other answering respondents, they were impleaded because they allegedly had not exerted
the required extraordinary diligence in investigating and satisfactorily resolving Lourdes disappearance or
bringing to justice the actual perpetrators of what amounted to a criminal act, albeit there were allegations
against P/Insp. Gomez of acts constituting threats against Mary Joy.
While in a qualified sense tenable, the dismissal by the CA of the case as against Gen. Esperon and P/Dir. Gen.
Razon is incorrect if viewed against the backdrop of the stated rationale underpinning the assailed decision vis-
-vis the two generals, i.e., command responsibility. The Court assumes the latter stance owing to the fact that
command responsibility, as a concept defined, developed, and applied under international law, has little, if at all,
bearing in amparo proceedings.
150

The evolution of the command responsibility doctrine finds its context in the development of laws of war and
armed combats. According to Fr. Bernas, "command responsibility," in its simplest terms, means the
"responsibility of commanders for crimes committed by subordinate members of the armed forces or other
persons subject to their control in international wars or domestic conflict."
14
In this sense, command
responsibility is properly a form of criminal complicity. The Hague Conventions of 1907 adopted the doctrine of
command responsibility,
15
foreshadowing the present-day precept of holding a superior accountable for the
atrocities committed by his subordinates should he be remiss in his duty of control over them. As then
formulated, command responsibility is "an omission mode of individual criminal liability," whereby the superior
is made responsible for crimes committed by his subordinates for failing to prevent or punish the perpetrators
16

(as opposed to crimes he ordered).
The doctrine has recently been codified in the Rome Statute
17
of the International Criminal Court (ICC) to which
the Philippines is signatory. Sec. 28 of the Statute imposes individual responsibility on military commanders for
crimes committed by forces under their control. The country is, however, not yet formally bound by the terms
and provisions embodied in this treaty-statute, since the Senate has yet to extend concurrence in its
ratification.
18

While there are several pending bills on command responsibility,
19
there is still no Philippine law that provides
for criminal liability under that doctrine.
20

It may plausibly be contended that command responsibility, as legal basis to hold military/police commanders
liable for extra-legal killings, enforced disappearances, or threats, may be made applicable to this jurisdiction on
the theory that the command responsibility doctrine now constitutes a principle of international law or
customary international law in accordance with the incorporation clause of the Constitution.
21
Still, it would be
inappropriate to apply to these proceedings the doctrine of command responsibility, as the CA seemed to have
done, as a form of criminal complicity through omission, for individual respondents criminal liability, if there be
any, is beyond the reach of amparo. In other words, the Court does not rule in such proceedings on any issue of
criminal culpability, even if incidentally a crime or an infraction of an administrative rule may have been
committed. As the Court stressed in Secretary of National Defense v. Manalo (Manalo),
22
the writ of amparo was
conceived to provide expeditious and effective procedural relief against violations or threats of violation of the
basic rights to life, liberty, and security of persons; the corresponding amparo suit, however, "is not an action to
determine criminal guilt requiring proof beyond reasonable doubt x x x or administrative liability requiring
substantial evidence that will require full and exhaustive proceedings."
23
Of the same tenor, and by way of
expounding on the nature and role of amparo, is what the Court said in Razon v. Tagitis:
It does not determine guilt nor pinpoint criminal culpability for the disappearance [threats thereof or extra-
judicial killings]; it determines responsibility, or at least accountability, for the enforced disappearance [threats
thereof or extra-judicial killings] for purposes of imposing the appropriate remedies to address the
disappearance [or extra-judicial killings].
x x x x
As the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction are not crimes
penalized separately from the component criminal acts undertaken to carry out these killings and enforced
disappearances and are now penalized under the Revised Penal Code and special laws. The simple reason is that
the Legislature has not spoken on the matter; the determination of what acts are criminal x x x are matters of
substantive law that only the Legislature has the power to enact.
24
x x x
If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to
determine the author who, at the first instance, is accountable for, and has the duty to address, the
disappearance and harassments complained of, so as to enable the Court to devise remedial measures that may
be appropriate under the premises to protect rights covered by the writ of amparo. As intimated earlier,
however, the determination should not be pursued to fix criminal liability on respondents preparatory to
151

criminal prosecution, or as a prelude to administrative disciplinary proceedings under existing administrative
issuances, if there be any.
Petitioners, as the CA has declared, have not adduced substantial evidence pointing to government involvement
in the disappearance of Lourdes. To a concrete point, petitioners have not shown that the actual perpetrators of
the abduction and the harassments that followed formally or informally formed part of either the military or the
police chain of command. A preliminary police investigation report, however, would tend to show a link,
however hazy, between the license plate (XRR 428) of the vehicle allegedly used in the abduction of Lourdes and
the address of Darwin Reyes/Sy, who was alleged to be working in Camp Aguinaldo.
25
Then, too, there were
affidavits and testimonies on events that transpired which, if taken together, logically point to military
involvement in the alleged disappearance of Lourdes, such as, but not limited to, her abduction in broad
daylight, her being forcibly dragged to a vehicle blindfolded and then being brought to a place where the sounds
of planes taking off and landing could be heard. Mention may also be made of the fact that Lourdes was asked
about her membership in the Communist Party and of being released when she agreed to become an "asset."
Still and all, the identities and links to the AFP or the PNP of the alleged abductors, namely Cuaresma, Alfaro,
Santana, Jonathan, and Sy/Reyes, have yet to be established.
Based on the separate sworn statements of Maj. Paul Ciano
26
and Technical Sergeant John N. Romano,
27
officer-
in-charge and a staff of the 301st AISS, respectively, none of the alleged abductors of Lourdes belonged to the
301st AISS based in San Fernando Air Base. Neither were they members of any unit of the Philippine Air Force,
per the certification
28
of Col. Raul Dimatactac, Air Force Adjutant. And as stated in the challenged CA decision, a
verification with the Personnel Accounting and Information System of the PNP yielded the information that,
except for a certain Darwin Reyes y Muga, the other alleged abductors, i.e., Cuaresma, Alfaro, Santana and
Jonathan, were not members of the PNP. Petitioners, when given the opportunity to identify Police Officer 1
Darwin Reyes y Muga, made no effort to confirm if he was the same Maj. Darwin Reyes a.k.a. Darwin Sy they
were implicating in Lourdes abduction.
Petitioners, to be sure, have not successfully controverted answering respondents documentary evidence,
adduced to debunk the formers allegations directly linking Lourdes abductors and tormentors to the military or
the police establishment. We note, in fact, that Lourdes, when queried on cross-examination, expressed the
belief that Sy/Reyes was an NBI agent.
29
The Court is, of course, aware of what was referred to in Razon
30
as the
"evidentiary difficulties" presented by the nature of, and encountered by petitioners in, enforced disappearance
cases. But it is precisely for this reason that the Court should take care too that no wrong message is sent, lest
one conclude that any kind or degree of evidence, even the outlandish, would suffice to secure amparo
remedies and protection.
Sec. 17, as complemented by Sec. 18 of the Amparo Rule, expressly prescribes the minimum evidentiary
substantiation requirement and norm to support a cause of action under the Rule, thus:
Sec. 17. Burden of Proof and Standard of Diligence Required.The parties shall establish their claims by
substantial evidence.
x x x x
Sec. 18. Judgment.x x x If the allegations in the petition are proven by substantial evidence, the court shall
grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall
be denied. (Emphasis added.)
Substantial evidence is more than a mere imputation of wrongdoing or violation that would warrant a finding of
liability against the person charged;
31
it is more than a scintilla of evidence. It means such amount of relevant
evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally
reasonable minds might opine otherwise.
32
Per the CAs evaluation of their evidence, consisting of the
152

testimonies and affidavits of the three Rubrico women and five other individuals, petitioners have not
satisfactorily hurdled the evidentiary bar required of and assigned to them under the Amparo Rule. In a very real
sense, the burden of evidence never even shifted to answering respondents. The Court finds no compelling
reason to disturb the appellate courts determination of the answering respondents role in the alleged enforced
disappearance of petitioner Lourdes and the threats to her familys security.
Notwithstanding the foregoing findings, the Court notes that both Gen. Esperon and P/Dir. Gen. Razon, per their
separate affidavits, lost no time, upon their receipt of the order to make a return on the writ, in issuing
directives to the concerned units in their respective commands for a thorough probe of the case and in
providing the investigators the necessary support. As of this date, however, the investigations have yet to be
concluded with some definite findings and recommendation.
As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than satisfied that they have no direct or
indirect hand in the alleged enforced disappearance of Lourdes and the threats against her daughters. As police
officers, though, theirs was the duty to thoroughly investigate the abduction of Lourdes, a duty that would
include looking into the cause, manner, and like details of the disappearance; identifying witnesses and
obtaining statements from them; and following evidentiary leads, such as the Toyota Revo vehicle with plate
number XRR 428, and securing and preserving evidence related to the abduction and the threats that may aid in
the prosecution of the person/s responsible. As we said in Manalo,
33
the right to security, as a guarantee of
protection by the government, is breached by the superficial and one-sidedhence, ineffectiveinvestigation
by the military or the police of reported cases under their jurisdiction. As found by the CA, the local police
stations concerned, including P/Supt. Roquero and P/Insp. Gomez, did conduct a preliminary fact-finding on
petitioners complaint. They could not, however, make any headway, owing to what was perceived to be the
refusal of Lourdes, her family, and her witnesses to cooperate. Petitioners counsel, Atty. Rex J.M.A. Fernandez,
provided a plausible explanation for his clients and their witnesses attitude, "*They+ do not trust the
government agencies to protect them."
34
The difficulty arising from a situation where the party whose
complicity in extra-judicial killing or enforced disappearance, as the case may be, is alleged to be the same party
who investigates it is understandable, though.
The seeming reluctance on the part of the Rubricos or their witnesses to cooperate ought not to pose a
hindrance to the police in pursuing, on its own initiative, the investigation in question to its natural end. To
repeat what the Court said in Manalo, the right to security of persons is a guarantee of the protection of ones
right by the government. And this protection includes conducting effective investigations of extra-legal killings,
enforced disappearances, or threats of the same kind. The nature and importance of an investigation are
captured in the Velasquez Rodriguez case,
35
in which the Inter-American Court of Human Rights pronounced:
[The duty to investigate] must be undertaken in a serious manner and not as a mere formality preordained to be
ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not a
step taken by private interests that depends upon the initiative of the victim or his family or upon offer of
proof, without an effective search for the truth by the government. (Emphasis added.)
This brings us to Mary Joys charge of having been harassed by respondent P/Insp. Gomez. With the view we
take of this incident, there is nothing concrete to support the charge, save for Mary Joys bare allegations of
harassment. We cite with approval the following self-explanatory excerpt from the appealed CA decision:
In fact, during her cross-examination, when asked what specific act or threat P/Sr. Gomez (ret) committed
against her or her mother and sister, Mary Joy replied "None "
36

Similarly, there appears to be no basis for petitioners allegations about the OMB failing to act on their
complaint against those who allegedly abducted and illegally detained Lourdes. Contrary to petitioners
contention, the OMB has taken the necessary appropriate action on said complaint. As culled from the
affidavit
37
of the Deputy Overall Ombudsman and the joint affidavits
38
of the designated investigators, all dated
November 7, 2007, the OMB had, on the basis of said complaint, commenced criminal
39
and administrative
40

153

proceedings, docketed as OMB-P-C-07-0602-E and OMB-P-A 07-567-E, respectively, against Cuaresma, Alfaro,
Santana, Jonathan, and Sy/Reyes. The requisite orders for the submission of counter-affidavits and verified
position papers had been sent out.
The privilege of the writ of amparo, to reiterate, is a remedy available to victims of extra-judicial killings and
enforced disappearances or threats of similar nature, regardless of whether the perpetrator of the unlawful act
or omission is a public official or employee or a private individual.
At this juncture, it bears to state that petitioners have not provided the CA with the correct addresses of
respondents Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes. The mailed envelopes containing the petition
for a writ of amparo individually addressed to each of them have all been returned unopened. And petitioners
motion interposed before the appellate court for notice or service via publication has not been accompanied by
supporting affidavits as required by the Rules of Court. Accordingly, the appealed CA partial judgment
disposing of the underlying petition for a writ of amparo without (1) pronouncement as to the accountability, or
lack of it, of the four non-answering respondents or (2) outright dismissal of the same petition as to them
hews to the prescription of Sec. 20 of the Amparo Rule on archiving and reviving cases.
41
Parenthetically,
petitioners have also not furnished this Court with sufficient data as to where the afore-named respondents
may be served a copy of their petition for review.
Apart from the foregoing considerations, the petition did not allege ultimate facts as would link the OMB in any
manner to the violation or threat of violation of the petitioners rights to life, liberty, or personal security.
The privilege of the writ of amparo is envisioned basically to protect and guarantee the rights to life, liberty, and
security of persons, free from fears and threats that vitiate the quality of this life.
42
It is an extraordinary writ
conceptualized and adopted in light of and in response to the prevalence of extra-legal killings and enforced
disappearances.
43
Accordingly, the remedy ought to be resorted to and granted judiciously, lest the ideal sought
by the Amparo Rule be diluted and undermined by the indiscriminate filing of amparo petitions for purposes less
than the desire to secure amparo reliefs and protection and/or on the basis of unsubstantiated allegations.
In their petition for a writ of amparo, petitioners asked, as their main prayer, that the Court order the impleaded
respondents "to immediately desist from doing any acts that would threaten or seem to threaten the security of
the Petitioners and to desist from approaching Petitioners, x x x their residences and offices where they are
working under pain of contempt of [this] Court." Petitioners, however, failed to adduce the threshold
substantive evidence to establish the predicate facts to support their cause of action, i.e., the adverted
harassments and threats to their life, liberty, or security, against responding respondents, as responsible for the
disappearance and harassments complained of. This is not to say, however, that petitioners allegation on the
fact of the abduction incident or harassment is necessarily contrived. The reality on the ground, however, is that
the military or police connection has not been adequately proved either by identifying the malefactors as
components of the AFP or PNP; or in case identification is not possible, by showing that they acted with the
direct or indirect acquiescence of the government. For this reason, the Court is unable to ascribe the authorship
of and responsibility for the alleged enforced disappearance of Lourdes and the harassment and threats on her
daughters to individual respondents. To this extent, the dismissal of the case against them is correct and must,
accordingly, be sustained.
Prescinding from the above considerations, the Court distinctly notes that the appealed decision veritably
extended the privilege of the writ of amparo to petitioners when it granted what to us are amparo reliefs.
Consider: the appellate court decreed, and rightly so, that the police and the military take specific measures for
the protection of petitioners right or threatened right to liberty or security. The protection came in the form of
directives specifically to Gen. Esperon and P/Dir. Gen. Razon, requiring each of them (1) to ensure that the
investigations already commenced by the AFP and PNP units, respectively, under them on the complaints of
Lourdes and her daughters are being pursued with urgency to bring to justice the perpetrators of the acts
complained of; and (2) to submit to the CA, copy furnished the petitioners, a regular report on the progress and
status of the investigations. The directives obviously go to Gen. Esperon in his capacity as head of the AFP and,
154

in a sense, chief guarantor of order and security in the country. On the other hand, P/Dir. Gen. Razon is called
upon to perform a duty pertaining to the PNP, a crime-preventing, investigatory, and arresting institution.
As the CA, however, formulated its directives, no definitive time frame was set in its decision for the completion
of the investigation and the reportorial requirements. It also failed to consider Gen. Esperon and P/Dir. Gen.
Razons imminent compulsory retirement from the military and police services, respectively. Accordingly, the CA
directives, as hereinafter redefined and amplified to fully enforce the amparo remedies, are hereby given to,
and shall be directly enforceable against, whoever sits as the commanding general of the AFP and the PNP.
At this stage, two postulates and their implications need highlighting for a proper disposition of this case.
First, a criminal complaint for kidnapping and, alternatively, for arbitrary detention rooted in the same acts and
incidents leading to the filing of the subject amparo petition has been instituted with the OMB, docketed as
OMB-P-C-O7-0602-E. The usual initial steps to determine the existence of a prima facie case against the five (5)
impleaded individuals suspected to be actually involved in the detention of Lourdes have been set in motion. It
must be pointed out, though, that the filing
44
of the OMB complaint came before the effectivity of the Amparo
Rule on October 24, 2007.
Second, Sec. 22
45
of the Amparo Rule proscribes the filing of an amparo petition should a criminal action have, in
the meanwhile, been commenced. The succeeding Sec. 23,
46
on the other hand, provides that when the criminal
suit is filed subsequent to a petition for amparo, the petition shall be consolidated with the criminal action
where the Amparo Rule shall nonetheless govern the disposition of the relief under the Rule. Under the terms of
said Sec. 22, the present petition ought to have been dismissed at the outset. But as things stand, the outright
dismissal of the petition by force of that section is no longer technically feasible in light of the interplay of the
following factual mix: (1) the Court has, pursuant to Sec. 6
47
of the Rule, already issued ex parte the writ of
amparo; (2) the CA, after a summary hearing, has dismissed the petition, but not on the basis of Sec. 22; and (3)
the complaint in OMB-P-C-O7-0602-E named as respondents only those believed to be the actual abductors of
Lourdes, while the instant petition impleaded, in addition, those tasked to investigate the kidnapping and
detention incidents and their superiors at the top. Yet, the acts and/or omissions subject of the criminal
complaint and the amparo petition are so linked as to call for the consolidation of both proceedings to obviate
the mischief inherent in a multiplicity-of-suits situation.
Given the above perspective and to fully apply the beneficial nature of the writ of amparo as an inexpensive and
effective tool to protect certain rights violated or threatened to be violated, the Court hereby adjusts to a
degree the literal application of Secs. 22 and 23 of the Amparo Rule to fittingly address the situation obtaining
under the premises.
48
Towards this end, two things are at once indicated: (1) the consolidation of the probe and
fact-finding aspects of the instant petition with the investigation of the criminal complaint before the OMB; and
(2) the incorporation in the same criminal complaint of the allegations in this petition bearing on the threats to
the right to security. Withal, the OMB should be furnished copies of the investigation reports to aid that body in
its own investigation and eventual resolution of OMB-P-C-O7-0602-E. Then, too, the OMB shall be given easy
access to all pertinent documents and evidence, if any, adduced before the CA. Necessarily, Lourdes, as
complainant in OMB-P-C-O7-0602-E, should be allowed, if so minded, to amend her basic criminal complaint if
the consolidation of cases is to be fully effective.
WHEREFORE, the Court PARTIALLY GRANTS this petition for review and makes a decision:
(1) Affirming the dropping of President Gloria Macapagal-Arroyo from the petition for a writ of amparo;
(2) Affirming the dismissal of the amparo case as against Gen. Hermogenes Esperon, and P/Dir. Gen.
Avelino Razon, insofar as it tended, under the command responsibility principle, to attach accountability
and responsibility to them, as then AFP Chief of Staff and then PNP Chief, for the alleged enforced
disappearance of Lourdes and the ensuing harassments allegedly committed against petitioners. The
dismissal of the petition with respect to the OMB is also affirmed for failure of the petition to allege
155

ultimate facts as to make out a case against that body for the enforced disappearance of Lourdes and
the threats and harassment that followed; and
(3) Directing the incumbent Chief of Staff, AFP, or his successor, and the incumbent Director-General of
the PNP, or his successor, to ensure that the investigations already commenced by their respective units
on the alleged abduction of Lourdes Rubrico and the alleged harassments and threats she and her
daughters were made to endure are pursued with extraordinary diligence as required by Sec. 17
49
of the
Amparo Rule. They shall order their subordinate officials, in particular, to do the following:
(a) Determine based on records, past and present, the identities and locations of respondents
Maj. Darwin Sy, a.k.a. Darwin Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and
one Jonathan; and submit certifications of this determination to the OMB with copy furnished to
petitioners, the CA, and this Court;
(b) Pursue with extraordinary diligence the evidentiary leads relating to Maj. Darwin Sy and the
Toyota Revo vehicle with Plate No. XRR 428; and
(c) Prepare, with the assistance of petitioners and/or witnesses, cartographic sketches of
respondents Maj. Sy/Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and a certain
Jonathan to aid in positively identifying and locating them.
The investigations shall be completed not later than six (6) months from receipt of this Decision; and within
thirty (30) days after completion of the investigations, the Chief of Staff of the AFP and the Director-General of
the PNP shall submit a full report of the results of the investigations to the Court, the CA, the OMB, and
petitioners.
This case is accordingly referred back to the CA for the purpose of monitoring the investigations and the actions
of the AFP and the PNP.
Subject to the foregoing modifications, the Court AFFIRMS the partial judgment dated July 31, 2008 of the CA.
SO ORDERED.











156

G.R. No. 146710-15 March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND
CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA, ROMEO
CAPULONG and ERNESTO B. FRANCISCO, JR., respondent.
----------------------------------------
G.R. No. 146738 March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, respondent.
On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges that he is
the President on leave while respondent Gloria Macapagal-Arroyo claims she is the President. The warring
personalities are important enough but more transcendental are the constitutional issues embedded on the
parties' dispute. While the significant issues are many, the jugular issue involves the relationship between the
ruler and the ruled in a democracy, Philippine style.
First, we take a view of the panorama of events that precipitated the crisis in the office of the President.
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent Gloria
Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos voted for the petitioner believing
he would rescue them from life's adversity. Both petitioner and the respondent were to serve a six-year term
commencing on June 30, 1998.
From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly but
surely eroded his popularity. His sharp descent from power started on October 4, 2000. Ilocos Sur Governor, Luis
"Chavit" Singson, a longtime friend of the petitioner, went on air and accused the petitioner, his family and
friends of receiving millions of pesos from jueteng lords.
1

The expos immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto Guingona, Jr.,
then the Senate Minority Leader, took the floor and delivered a fiery privilege speech entitled "I Accuse." He
accused the petitioner of receiving some P220 million in jueteng money from Governor Singson from November
1998 to August 2000. He also charged that the petitioner took from Governor Singson P70 million on excise tax
on cigarettes intended for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon,
to the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on Justice (then
headed by Senator Renato Cayetano) for joint investigation.
2

The House of Representatives did no less. The House Committee on Public Order and Security, then headed by
Representative Roilo Golez, decided to investigate the expos of Governor Singson. On the other hand,
Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the move to impeach
the petitioner.
Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin issued a
pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking petitioner to step
down from the presidency as he had lost the moral authority to govern.
3
Two days later or on October 13, the
Catholic Bishops Conference of the Philippines joined the cry for the resignation of the petitioner.
4
Four days
later, or on October 17, former President Corazon C. Aquino also demanded that the petitioner take the
"supreme self-sacrifice" of resignation.
5
Former President Fidel Ramos also joined the chorus. Early on, or on
157

October 12, respondent Arroyo resigned as Secretary of the Department of Social Welfare and Services
6
and
later asked for petitioner's resignation.
7
However, petitioner strenuously held on to his office and refused to
resign.
The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior Economic
Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former Senator
Vicente Paterno and Washington Sycip.
8
On November 2, Secretary Mar Roxas II also resigned from the
Department of Trade and Industry.
9
On November 3, Senate President Franklin Drilon, and House Speaker
Manuel Villar, together with some 47 representatives defected from the ruling coalition, Lapian ng Masang
Pilipino.
10

The month of November ended with a big bang. In a tumultuous session on November 13, House Speaker Villar
transmitted the Articles of Impeachment
11
signed by 115 representatives, or more than 1/3 of all the members
of the House of Representatives to the Senate. This caused political convulsions in both houses of Congress.
Senator Drilon was replaced by Senator Pimentel as Senate President. Speaker Villar was unseated by
Representative Fuentebella.
12
On November 20, the Senate formally opened the impeachment trial of the
petitioner. Twenty-one (21) senators took their oath as judges with Supreme Court Chief Justice Hilario G.
Davide, Jr., presiding.
13

The political temperature rose despite the cold December. On December 7, the impeachment trial started.
14
The
battle royale was fought by some of the marquee names in the legal profession. Standing as prosecutors were
then House Minority Floor Leader Feliciano Belmonte and Representatives Joker Arroyo, Wigberto Taada,
Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez
and Antonio Nachura. They were assisted by a battery of private prosecutors led by now Secretary of Justice
Hernando Perez and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief
Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City Fiscal
of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his
brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and during its course enjoyed the
highest viewing rating. Its high and low points were the constant conversational piece of the chattering classes.
The dramatic point of the December hearings was the testimony of Clarissa Ocampo, senior vice president of
Equitable-PCI Bank. She testified that she was one foot away from petitioner Estrada when he affixed the
signature "Jose Velarde" on documents involving a P500 million investment agreement with their bank on
February 4, 2000.
15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it
resumed on January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty. Edgardo
Espiritu who served as petitioner's Secretary of Finance took the witness stand. He alleged that the petitioner
jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of insider trading.
16
Then
came the fateful day of January 16, when by a vote of 11-10
17
the senator-judges ruled against the opening of
the second envelope which allegedly contained evidence showing that petitioner held P3.3 billion in a secret
bank account under the name "Jose Velarde." The public and private prosecutors walked out in protest of the
ruling. In disgust, Senator Pimentel resigned as Senate President.
18
The ruling made at 10:00 p.m. was met by a
spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had assembled at
the EDSA Shrine and speeches full of sulphur were delivered against the petitioner and the eleven (11) senators.
On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective
resignation. They also filed their Manifestation of Withdrawal of Appearance with the impeachment tribunal.
19

Senator Raul Roco quickly moved for the indefinite postponement of the impeachment proceedings until the
House of Representatives shall have resolved the issue of resignation of the public prosecutors. Chief Justice
Davide granted the motion.
20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer line of
people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in
158

Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's resignation.
Students and teachers walked out of their classes in Metro Manila to show their concordance. Speakers in the
continuing rallies at the EDSA Shrine, all masters of the physics of persuasion, attracted more and more
people.
21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner informed
Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the
Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election for President where
he would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense
Orlando Mercado and General Reyes, together with the chiefs of all the armed services went to the EDSA
Shrine.
22
In the presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering
demonstrators, General Reyes declared that "on behalf of Your Armed Forces, the 130,000 strong members of
the Armed Forces, we wish to announce that we are withdrawing our support to this government."
23
A little
later, PNP Chief, Director General Panfilo Lacson and the major service commanders gave a similar stunning
announcement.
24
Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau chiefs quickly
resigned from their posts.
25
Rallies for the resignation of the petitioner exploded in various parts of the country.
To stem the tide of rage, petitioner announced he was ordering his lawyers to agree to the opening of the highly
controversial second envelope.
26
There was no turning back the tide. The tide had become a tsunami.
January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the peaceful and
orderly transfer of power started at Malacaang'' Mabini Hall, Office of the Executive Secretary. Secretary
Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst.
Secretary Boying Remulla, and Atty. Macel Fernandez, head of the Presidential Management Staff, negotiated
for the petitioner. Respondent Arroyo was represented by now Executive Secretary Renato de Villa, now
Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando Perez.
27
Outside the palace, there
was a brief encounter at Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing
and caused minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice
Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the
Philippines.
28
At 2:30 p.m., petitioner and his family hurriedly left Malacaang Palace.29 He issued the following
press statement:
30

"20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the
Republic of the Philippines. While along with many other legal minds of our country, I have strong and
serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to
be a factor that will prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for
the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our
people with gratitude for the opportunities given to me for service to our people. I will not shirk from
any future challenges that may come ahead in the same service of our country.
I call on all my supporters and followers to join me in to promotion of a constructive national spirit of
reconciliation and solidarity.
May the Almighty bless our country and beloved people.
159

MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA"
It also appears that on the same day, January 20, 2001, he signed the following letter:
31

"Sir:
By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and the
Constitution, the Vice-President shall be the Acting President.
(Sgd.) JOSEPH EJERCITO ESTRADA"
A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.
23
Another copy was
transmitted to Senate President Pimentel on the same day although it was received only at 9:00 p.m.
33

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers the
duties of the Presidency. On the same day, this Court issued the following Resolution in Administrative Matter
No. 01-1-05-SC, to wit:
"A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-Arroyo to Take her Oath of
Office as President of the Republic of the Philippines before the Chief Justice Acting on the urgent
request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the
Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20,
2001, which request was treated as an administrative matter, the court Resolve unanimously to confirm
the authority given by the twelve (12) members of the Court then present to the Chief Justice on
January 20, 2001 to administer the oath of office of Vice President Gloria Macapagal-Arroyo as President
of the Philippines, at noon of January 20, 2001.1wphi1.nt
This resolution is without prejudice to the disposition of any justiciable case that may be filed by a
proper party."
Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special envoys.
34

Recognition of respondent Arroyo's government by foreign governments swiftly followed. On January 23, in a
reception or vin d' honneur at Malacaang, led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio
Franco, more than a hundred foreign diplomats recognized the government of respondent Arroyo.
35
US
President George W. Bush gave the respondent a telephone call from the White House conveying US recognition
of her government.
36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of Representatives.
37

The House then passed Resolution No. 175 "expressing the full support of the House of Representatives to the
administration of Her Excellency, Gloria Macapagal-Arroyo, President of the Philippines."
38
It also approved
Resolution No. 176 "expressing the support of the House of Representatives to the assumption into office by
Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending its
congratulations and expressing its support for her administration as a partner in the attainment of the nation's
goals under the Constitution."
39

On January 26, the respondent signed into law the Solid Waste Management Act.
40
A few days later, she also
signed into law the Political Advertising ban and Fair Election Practices Act.
41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President.
42
The next
day, February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator Guingona, Jr.
43

160

Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmena voted "yes" with reservations, citing as
reason therefor the pending challenge on the legitimacy of respondent Arroyo's presidency before the Supreme
Court. Senators Teresa Aquino-Oreta and Robert Barbers were absent.
44
The House of Representatives also
approved Senator Guingona's nomination in Resolution No. 178.
45
Senator Guingona, Jr. took his oath as Vice
President two (2) days later.
46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and
has been terminated.
47
Senator Miriam Defensor-Santiago stated "for the record" that she voted against the
closure of the impeachment court on the grounds that the Senate had failed to decide on the impeachment case
and that the resolution left open the question of whether Estrada was still qualified to run for another elective
post.
48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked up from 16%
on January 20, 2001 to 38% on January 26, 2001.
49
In another survey conducted by the ABS-CBN/SWS from
February 2-7, 2001, results showed that 61% of the Filipinos nationwide accepted President Arroyo as
replacement of petitioner Estrada. The survey also revealed that President Arroyo is accepted by 60% in Metro
Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating
increased to 52%. Her presidency is accepted by majorities in all social classes: 58% in the ABC or middle-to-
upper classes, 64% in the D or mass class, and 54% among the E's or very poor class.
50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several cases
previously filed against him in the Office of the Ombudsman were set in motion. These are: (1) OMB Case No. 0-
00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and corruption; (2) OMB Case
No. 0-00-1754 filed by the Volunteers Against Crime and Corruption on November 17, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for
Government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines Foundation, Inc. on
November 24, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB
Case No. 0-00-1756 filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds,
illegal use of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et
al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA
7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft
and corruption.
A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the charges
against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the following as
members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel
Laureso. On January 22, the panel issued an Order directing the petitioner to file his counter-affidavit and the
affidavits of his witnesses as well as other supporting documents in answer to the aforementioned complaints
against him.
Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No. 146710-15, a
petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent
Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757
and 1758 or in any other criminal complaint that may be filed in his office, until after the term of petitioner as
President is over and only if legally warranted." Thru another counsel, petitioner, on February 6, filed GR No.
146738 for Quo Warranto. He prayed for judgment "confirming petitioner to be the lawful and incumbent
President of the Republic of the Philippines temporarily unable to discharge the duties of his office, and
declaring respondent to have taken her oath as and to be holding the Office of the President, only in an acting
capacity pursuant to the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same
day, February 6, required the respondents "to comment thereon within a non-extendible period expiring on 12
February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738
and the filing of the respondents' comments "on or before 8:00 a.m. of February 15."
161

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing, Chief
Justice Davide, Jr.
51
and Associate Justice Artemio Panganiban
52
recused themselves on motion of petitioner's
counsel, former Senator Rene A. Saguisag. They debunked the charge of counsel Saguisag that they have
"compromised themselves by indicating that they have thrown their weight on one side" but nonetheless
inhibited themselves. Thereafter, the parties were given the short period of five (5) days to file their memoranda
and two (2) days to submit their simultaneous replies.
In a resolution dated February 20, acting on the urgent motion for copies of resolution and press statement for
"Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No. 146738, the Court resolved:
"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the
office of the President vacant and that neither did the Chief Justice issue a press statement justifying the
alleged resolution;
(2) to order the parties and especially their counsel who are officers of the Court under pain of being
cited for contempt to refrain from making any comment or discussing in public the merits of the cases at
bar while they are still pending decision by the Court, and
(3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman from
resolving or deciding the criminal cases pending investigation in his office against petitioner, Joseph E.
Estrada and subject of the cases at bar, it appearing from news reports that the respondent
Ombudsman may immediately resolve the cases against petitioner Joseph E. Estrada seven (7) days after
the hearing held on February 15, 2001, which action will make the cases at bar moot and academic."
53

The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for decision.
The bedrock issues for resolution of this Court are:
I
Whether the petitions present a justiciable controversy.
II
Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President
on leave while respondent Arroyo is an Acting President.
III
Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still
President, whether he is immune from criminal prosecution.
IV
Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity.
We shall discuss the issues in seriatim.
I. Whether or not the cases At bar involve a political question
Private respondents
54
raise the threshold issue that the cases at bar pose a political question, and hence, are
beyond the jurisdiction of this Court to decide. They contend that shorn of its embroideries, the cases at bar
162

assail the "legitimacy of the Arroyo administration." They stress that respondent Arroyo ascended the
presidency through people power; that she has already taken her oath as the 14
th
President of the Republic; that
she has exercised the powers of the presidency and that she has been recognized by foreign governments. They
submit that these realities on ground constitute the political thicket, which the Court cannot enter.
We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the shroud on
political question but its exact latitude still splits the best of legal minds. Developed by the courts in the 20th
century, the political question doctrine which rests on the principle of separation of powers and on prudential
considerations, continue to be refined in the mills of constitutional law.
55
In the United States, the most
authoritative guidelines to determine whether a question is political were spelled out by Mr. Justice Brennan in
the 1962 case or Baker v. Carr,
56
viz:
"x x x Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department or a lack of
judicially discoverable and manageable standards for resolving it, or the impossibility of deciding
without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of
a court's undertaking independent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning adherence to a political decision already
made; or the potentiality of embarrassment from multifarious pronouncements by various departments
on question. Unless one of these formulations is inextricable from the case at bar, there should be no
dismissal for non justiciability on the ground of a political question's presence. The doctrine of which we
treat is one of 'political questions', not of 'political cases'."
In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer delineation
of the inner and outer perimeters of a political question.
57
Our leading case is Tanada v. Cuenco,
58
where this
Court, through former Chief Justice Roberto Concepcion, held that political questions refer "to those questions
which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or executive branch of the government. It is
concerned with issues dependent upon the wisdom, not legality of a particular measure." To a great degree, the
1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of
judicial review of this court not only to settle actual controversies involving rights which are legally demandable
and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of government.
59
Heretofore, the
judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of its
jurisdiction.
60
With the new provision, however, courts are given a greater prerogative to determine what it can
do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing.
In sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so called
political thicket. Prominent of these provisions is section 18 of Article VII which empowers this Court in limpid
language to "x x x review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of
the proclamation of martial law or the suspension of the privilege of the writ (of habeas corpus) or the extension
thereof x x x."
Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President
Corazon C. Aquino, et al.
61
and related cases
62
to support their thesis that since the cases at bar involve the
legitimacy of the government of respondent Arroyo, ergo, they present a political question. A more cerebral
reading of the cited cases will show that they are inapplicable. In the cited cases, we held that the government
of former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful
one. No less than the Freedom Constitution
63
declared that the Aquino government was installed through a
direct exercise of the power of the Filipino people "in defiance of the provisions of the 1973 Constitution, as
amended." In is familiar learning that the legitimacy of a government sired by a successful revolution by people
power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In
checkered contrast, the government of respondent Arroyo is not revolutionary in character. The oath that she
163

took at the EDSA Shrine is the oath under the 1987 Constitution.
64
In her oath, she categorically swore to
preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the
presidency under the authority of the 1987 Constitution.
In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA I involves the
exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of
people power of freedom of speech and freedom of assembly to petition the government for redress of
grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of
the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra
constitutional and the resignation of the sitting President that it caused and the succession of the Vice President
as President are subject to judicial review. EDSA I presented a political question; EDSA II involves legal
questions. A brief discourse on freedom of speech and of the freedom of assembly to petition the government
for redress of grievance which are the cutting edge of EDSA People Power II is not inappropriate.
Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one of the
reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the
recognition of freedom of the press of the Filipinos and included it as among "the reforms sine quibus non."
65

The Malolos Constitution, which is the work of the revolutionary Congress in 1898, provided in its Bill of Rights
that Filipinos shall not be deprived (1) of the right to freely express his ideas or opinions, orally or in writing,
through the use of the press or other similar means; (2) of the right of association for purposes of human life
and which are not contrary to public means; and (3) of the right to send petitions to the authorities, individually
or collectively." These fundamental rights were preserved when the United States acquired jurisdiction over
the Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by President
McKinley, it is specifically provided "that no law shall be passed abridging the freedom of speech or of the press
or of the rights of the people to peaceably assemble and petition the Government for redress of grievances."
The guaranty was carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the
Act of Congress of August 29, 1966.
66

Thence on, the guaranty was set in stone in our 1935 Constitution,
67
and the 1973
68
Constitution. These rights
are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:
"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of grievances."
The indispensability of the people's freedom of speech and of assembly to democracy is now self-evident. The
reasons are well put by Emerson: first, freedom of expression is essential as a means of assuring individual
fulfillment; second, it is an essential process for advancing knowledge and discovering truth; third, it is essential
to provide for participation in decision-making by all members of society; and fourth, it is a method of achieving
a more adaptable and hence, a more stable community of maintaining the precarious balance between healthy
cleavage and necessary consensus."
69
In this sense, freedom of speech and of assembly provides a framework
in which the "conflict necessary to the progress of a society can take place without destroying the society."
70

In Hague v. Committee for Industrial Organization,
71
this function of free speech and assembly was echoed in
the amicus curiae filed by the Bill of Rights Committee of the American Bar Association which emphasized that
"the basis of the right of assembly is the substitution of the expression of opinion and belief by talk rather than
force; and this means talk for all and by all."
72
In the relatively recent case of Subayco v. Sandiganbayan,
73
this
Court similar stressed that " it should be clear even to those with intellectual deficits that when the sovereign
people assemble to petition for redress of grievances, all should listen. For in a democracy, it is the people who
count; those who are deaf to their grievances are ciphers."
Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution
require the proper interpretation of certain provisions in the 1987 Constitution, notably section 1 of Article II,
74

and section 8
75
of Article VII, and the allocation of governmental powers under section 11
76
of Article VII. The
issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the correct
164

calibration of the right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury v.
Madison,
77
the doctrine has been laid down that "it is emphatically the province and duty of the judicial
department to say what the law is . . ." Thus, respondent's in vocation of the doctrine of political question is but
a foray in the dark.
II. Whether or not the petitioner Resigned as President
We now slide to the second issue. None of the parties considered this issue as posing a political question.
Indeed, it involves a legal question whose factual ingredient is determinable from the records of the case and by
resort to judicial notice. Petitioner denies he resigned as President or that he suffers from a permanent
disability. Hence, he submits that the office of the President was not vacant when respondent Arroyo took her
oath as President.
The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which provides:
"Sec. 8. In case of death, permanent disability, removal from office or resignation of the President, the
Vice President shall become the President to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the President and Vice President, the President of
the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as
President until the President or Vice President shall have been elected and qualified.
x x x."
The issue then is whether the petitioner resigned as President or should be considered resigned as of January
20, 2001 when respondent took her oath as the 14
th
President of the Public. Resignation is not a high level legal
abstraction. It is a factual question and its elements are beyond quibble: there must be an intent to resign and
the intent must be coupled by acts of relinquishment.
78
The validity of a resignation is not government by any
formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as
the resignation is clear, it must be given legal effect.
In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he
evacuated Malacaang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent Arroyo.
Consequently, whether or not petitioner resigned has to be determined from his act and omissions before,
during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts and
circumstantial evidence bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as President.
To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow the
succession of events after the expos of Governor Singson. The Senate Blue Ribbon Committee investigated. The
more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon investigation spiked the hate
against him. The Articles of Impeachment filed in the House of Representatives which initially was given a near
cipher chance of succeeding snowballed. In express speed, it gained the signatures of 115 representatives or
more than 1/3 of the House of Representatives. Soon, petitioner's powerful political allies began deserting him.
Respondent Arroyo quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar
defected with 47 representatives in tow. Then, his respected senior economic advisers resigned together with
his Secretary of Trade and Industry.
As the political isolation of the petitioner worsened, the people's call for his resignation intensified. The call
reached a new crescendo when the eleven (11) members of the impeachment tribunal refused to open the
second envelope. It sent the people to paroxysms of outrage. Before the night of January 16 was over, the EDSA
Shrine was swarming with people crying for redress of their grievance. Their number grew exponentially. Rallies
and demonstration quickly spread to the countryside like a brush fire.
165

As events approached January 20, we can have an authoritative window on the state of mind of the petitioner.
The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of Executive Secretary Angara
serialized in the Philippine Daily Inquirer.
79
The Angara Diary reveals that in the morning of January 19,
petitioner's loyal advisers were worried about the swelling of the crowd at EDSA, hence, they decided to create
an ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara
into his small office at the presidential residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo
(Reyes) (Ed, this is serious. Angelo has defected.)"
80
An hour later or at 2:30 p.m., the petitioner decided to call
for a snap presidential election and stressed he would not be a candidate. The proposal for a snap election for
president in May where he would not be a candidate is an indicium that petitioner had intended to give up
the presidency even at that time. At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators demanding
the resignation of the petitioner and dramatically announced the AFP's withdrawal of support from the
petitioner and their pledge of support to respondent Arroyo. The seismic shift of support left petitioner weak as
a president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner to consider the
option of "dignified exit or resignation."
81
Petitioner did not disagree but listened intently.
82
The sky was
falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a
graceful and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to go
abroad with enough funds to support him and his family.
83
Significantly, the petitioner expressed no objection
to the suggestion for a graceful and dignified exit but said he would never leave the country.
84
At 10:00 p.m.,
petitioner revealed to Secretary Angara, "Ed, Angie (Reyes) guaranteed that I would have five days to a week in
the palace."
85
This is proof that petitioner had reconciled himself to the reality that he had to resign. His mind
was already concerned with the five-day grace period he could stay in the palace. It was a matter of time.
The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and
requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and orderly
transfer of power."
86
There was no defiance to the request. Secretary Angara readily agreed. Again, we note
that at this stage, the problem was already about a peaceful and orderly transfer of power. The resignation of
the petitioner was implied.
The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of January
20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition period of five days
after the petitioner's resignation; (2) the guarantee of the safety of the petitioner and his family, and (3) the
agreement to open the second envelope to vindicate the name of the petitioner.
87
Again, we note that the
resignation of petitioner was not a disputed point. The petitioner cannot feign ignorance of this fact.
According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three points and the following
entry in the Angara Diary shows the reaction of the petitioner, viz:
"x x x
I explain what happened during the first round of negotiations. The President immediately stresses that
he just wants the five-day period promised by Reyes, as well as to open the second envelope to clear his
name.
If the envelope is opened, on Monday, he says, he will leave by Monday.
The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na ako sa red
tape, bureaucracy, intriga. (I am very tired. I don't want any more of this it's too painful. I'm tired of
the red tape, the bureaucracy, the intrigue.)
I just want to clear my name, then I will go."
88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when he said "x
x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.
166

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following happened:
"Opposition's deal
7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona. For this
round, I am accompanied by Dondon Bagatsing and Macel.
Rene pulls out a document titled "Negotiating Points." It reads:
'1. The President shall sign a resignation document within the day, 20 January 2001, that will be
effective on Wednesday, 24 January 2001, on which day the Vice President will assume the Presidency
of the Republic of the Philippines.
2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice President to various positions and
offices of the government shall start their orientation activities in coordination with the incumbent
officials concerned.
3. The Armed Forces of the Philippines and the Philippine National Police shall function under the Vice
President as national military and police authority effective immediately.
4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the security of the
President and his family as approved by the national military and police authority (Vice President).
5. It is to be noted that the Senate will open the second envelope in connection with the alleged savings
account of the President in the Equitable PCI Bank in accordance with the rules of the Senate, pursuant
to the request to the Senate President.
Our deal
We bring out, too, our discussion draft which reads:
The undersigned parties, for and in behalf of their respective principals, agree and undertake as follows:
'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President
Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria Macapagal-Arroyo.
'2. In return, President Estrada and his families are guaranteed security and safety of their person and
property throughout their natural lifetimes. Likewise, President Estrada and his families are guarantee
freedom from persecution or retaliation from government and the private sector throughout their
natural lifetimes.
This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the Chief of
Staff, as approved by the national military and police authorities Vice President (Macapagal).
'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will authorize
the opening of the second envelope in the impeachment trial as proof that the subject savings account
does not belong to President Estrada.
'4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the 'Transition
Period"), the incoming Cabinet members shall receive an appropriate briefing from the outgoing Cabinet
officials as part of the orientation program.
167

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function Vice
President (Macapagal) as national military and police authorities.
Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the
necessary signatures as affixed to this agreement and insure faithful implementation and observance
thereof.
Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor provided
for in "Annex A" heretofore attached to this agreement."
89

The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that
during this second round of negotiation, the resignation of the petitioner was again treated as a given fact. The
only unsettled points at that time were the measures to be undertaken by the parties during and after the
transition period.
According to Secretary Angara, the draft agreement, which was premised on the resignation of the petitioner
was further refined. It was then, signed by their side and he was ready to fax it to General Reyes and Senator
Pimentel to await the signature of the United Opposition. However, the signing by the party of the respondent
Arroyo was aborted by her oath-taking. The Angara diary narrates the fateful events, viz;
90

"xxx
11:00 a.m. Between General Reyes and myself, there is a firm agreement on the five points to effect a
peaceful transition. I can hear the general clearing all these points with a group he is with. I hear voices
in the background.
Agreement.
The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation shall be
effective on 24 January 2001, on which day the Vice President will assume the presidency of the
Republic of the Philippines.
x x x
The rest of the agreement follows:
2. The transition process for the assumption of the new administration shall commence on 20 January
2001, wherein persons designated by the Vice President to various government positions shall start
orientation activities with incumbent officials.
'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and security
of the President and his families throughout their natural lifetimes as approved by the national military
and police authority Vice President.
'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as national
military and police authorities.
'5. Both parties request the impeachment court to open the second envelope in the impeachment trial,
the contents of which shall be offered as proof that the subject savings account does not belong to the
President.
The Vice President shall issue a public statement in the form and tenor provided for in Annex "B"
heretofore attached to this agreement.
168

11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our side and
awaiting the signature of the United opposition.
And then it happens. General Reyes calls me to say that the Supreme Court has decided that Gloria
Macapagal-Arroyo is President and will be sworn in at 12 noon.
'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What about the
agreement)?' I asked.
Reyes answered: 'Wala na, sir (it's over, sir).'
I ask him: Di yung transition period, moot and academic na?'
And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'
Contrary to subsequent reports, I do not react and say that there was a double cross.
But I immediately instruct Macel to delete the first provision on resignation since this matter is already
moot and academic. Within moments, Macel erases the first provision and faxes the documents, which
have been signed by myself, Dondon and Macel, to Nene Pimentel and General Reyes.
I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the other
side, as it is important that the provisions on security, at least, should be respected.
I then advise the President that the Supreme Court has ruled that Chief Justice Davide will administer
the oath to Gloria at 12 noon.
The President is too stunned for words:
Final meal
12 noon Gloria takes her oath as president of the Republic of the Philippines.
12:20 p.m. The PSG distributes firearms to some people inside the compound.
The president is having his final meal at the presidential Residence with the few friends and Cabinet
members who have gathered.
By this time, demonstrators have already broken down the first line of defense at Mendiola. Only the
PSG is there to protect the Palace, since the police and military have already withdrawn their support for
the President.
1 p.m. The President's personal staff is rushing to pack as many of the Estrada family's personal
possessions as they can.
During lunch, Ronnie Puno mentions that the president needs to release a final statement before leaving
Malacaang.
The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her
oath as President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her proclamation as
President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil
society.
169

It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for
the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our
people with gratitude for the opportunities given to me for service to our people. I will not shirk from
any future challenges that may come ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion of a constructive national spirit of
reconciliation and solidarity.
May the Almighty bless our country and our beloved people.
MABUHAY!"'
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving
Malacaang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the
respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized he was
leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of
our nation. He did not say he was leaving the Palace due to any kind inability and that he was going to re-assume
the presidency as soon as the disability disappears: (3) he expressed his gratitude to the people for the
opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the
people as President (4) he assured that he will not shirk from any future challenge that may come ahead in the
same service of our country. Petitioner's reference is to a future challenge after occupying the office of the
president which he has given up; and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and
solidarity could not be attained if he did not give up the presidency. The press release was petitioner's
valedictory, his final act of farewell. His presidency is now in the part tense.
It is, however, urged that the petitioner did not resign but only took a temporary leave dated January 20, 2001
of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again, we refer to the said
letter, viz:
"Sir.
By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and the
Constitution, the Vice President shall be the Acting president.
(Sgd.) Joseph Ejercito Estrada"
To say the least, the above letter is wrapped in mystery.
91
The pleadings filed by the petitioner in the cases at
bar did not discuss, may even intimate, the circumstances that led to its preparation. Neither did the counsel of
the petitioner reveal to the Court these circumstances during the oral argument. It strikes the Court as strange
that the letter, despite its legal value, was never referred to by the petitioner during the week-long crisis. To be
sure, there was not the slightest hint of its existence when he issued his final press release. It was all too easy for
him to tell the Filipino people in his press release that he was temporarily unable to govern and that he was
leaving the reins of government to respondent Arroyo for the time bearing. Under any circumstance, however,
the mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press release
of the petitioner clearly as a later act. If, however, it was prepared after the press released, still, it commands
scant legal significance. Petitioner's resignation from the presidency cannot be the subject of a changing caprice
nor of a whimsical will especially if the resignation is the result of his reputation by the people. There is another
reason why this Court cannot given any legal significance to petitioner's letter and this shall be discussed in issue
number III of this Decision.
170

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not resign as a
matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft and Corrupt Practices
Act, which allegedly prohibits his resignation, viz:
"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminals or
administrative, or pending a prosecution against him, for any offense under this Act or under the
provisions of the Revised Penal Code on bribery."
A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA No. 3019
originated form Senate Bill No. 293. The original draft of the bill, when it was submitted to the Senate, did not
contain a provision similar to section 12 of the law as it now stands. However, in his sponsorship speech, Senator
Arturo Tolentino, the author of the bill, "reserved to propose during the period of amendments the inclusion of
a provision to the effect that no public official who is under prosecution for any act of graft or corruption, or is
under administrative investigation, shall be allowed to voluntarily resign or retire."
92
During the period of
amendments, the following provision was inserted as section 15:
"Sec. 15. Termination of office No public official shall be allowed to resign or retire pending an
investigation, criminal or administrative, or pending a prosecution against him, for any offense under
the Act or under the provisions of the Revised Penal Code on bribery.
The separation or cessation of a public official form office shall not be a bar to his prosecution under this
Act for an offense committed during his incumbency."
93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second paragraph of
the provision and insisted that the President's immunity should extend after his tenure.
Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed. Section 15 above
became section 13 under the new bill, but the deliberations on this particular provision mainly focused on the
immunity of the President, which was one of the reasons for the veto of the original bill. There was hardly any
debate on the prohibition against the resignation or retirement of a public official with pending criminal and
administrative cases against him. Be that as it may, the intent of the law ought to be obvious. It is to prevent the
act of resignation or retirement from being used by a public official as a protective shield to stop the
investigation of a pending criminal or administrative case against him and to prevent his prosecution under the
Anti-Graft Law or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled
to render service for that would be a violation of his constitutional right.
94
A public official has the right not to
serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a public official is
facing administrative or criminal investigation or prosecution, such resignation or retirement will not cause the
dismissal of the criminal or administrative proceedings against him. He cannot use his resignation or retirement
to avoid prosecution.
There is another reason why petitioner's contention should be rejected. In the cases at bar, the records show
that when petitioner resigned on January 20, 2001, the cases filed against him before the Ombudsman were
OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While these cases have been filed,
the respondent Ombudsman refrained from conducting the preliminary investigation of the petitioner for the
reason that as the sitting President then, petitioner was immune from suit. Technically, the said cases cannot be
considered as pending for the Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot
therefore be invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not
suffer from any insuperable legal obstacle like the immunity from suit of a sitting President.
Petitioner contends that the impeachment proceeding is an administrative investigation that, under section 12
of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment proceeding is
debatable. But even assuming arguendo that it is an administrative proceeding, it can not be considered pending
at the time petitioner resigned because the process already broke down when a majority of the senator-judges
171

voted against the opening of the second envelope, the public and private prosecutors walked out, the public
prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were postponed
indefinitely. There was, in effect, no impeachment case pending against petitioner when he resigned.
III
Whether or not the petitioner Is only temporarily unable to Act as President.
We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the
powers and duties of the presidency, and hence is a President on leave. As aforestated, the inability claim is
contained in the January 20, 2001 letter of petitioner sent on the same day to Senate President Pimentel and
Speaker Fuentebella.
Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the
petitioner to discharge the powers and duties of the presidency. His significant submittal is that "Congress has
the ultimate authority under the Constitution to determine whether the President is incapable of performing his
functions in the manner provided for in section 11 of article VII."
95
This contention is the centerpiece of
petitioner's stance that he is a President on leave and respondent Arroyo is only an Acting President.
An examination of section 11, Article VII is in order. It provides:
"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker of the House
of Representatives his written declaration that he is unable to discharge the powers and duties of his
office, and until he transmits to them a written declaration to the contrary, such powers and duties shall
be discharged by the Vice-President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to
the Speaker of the House of Representatives their written declaration that the President is unable to
discharge the powers and duties of his office, the Vice-President shall immediately assume the powers
and duties of the office as Acting President.
Thereafter, when the President transmits to the President of the Senate and to the Speaker of the
House of Representatives his written declaration that no inability exists, he shall reassume the powers
and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within
five days to the President of the Senate and to the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and duties of his office, the Congress
shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-
eight hours, in accordance with its rules and without need of call.
If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within
twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting
separately, that the President is unable to discharge the powers and duties of his office, the Vice-
President shall act as President; otherwise, the President shall continue exercising the powers and
duties of his office."
That is the law. Now, the operative facts:
1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate President
and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as President on January 20,
2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on January 24, 2001 House
Resolution No. 175;
96

172

On the same date, the House of the Representatives passed House Resolution No. 176
97
which states:
"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE ASSUMPTION
INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER
ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION
WHEREAS, as a consequence of the people's loss of confidence on the ability of former President Joseph
Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine National Police
and majority of his cabinet had withdrawn support from him;
WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria
Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief Justice
Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of the international community had extended their
recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the Philippines;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national healing
and reconciliation with justice for the purpose of national unity and development;
WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided, thus
by reason of the constitutional duty of the House of Representatives as an institution and that of the
individual members thereof of fealty to the supreme will of the people, the House of Representatives
must ensure to the people a stable, continuing government and therefore must remove all obstacles to
the attainment thereof;
WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the
nation, to eliminate fractious tension, to heal social and political wounds, and to be an instrument of
national reconciliation and solidarity as it is a direct representative of the various segments of the whole
nation;
WHEREAS, without surrending its independence, it is vital for the attainment of all the foregoing, for the
House of Representatives to extend its support and collaboration to the administration of Her
Excellency, President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-building, the
national interest demanding no less: Now, therefore, be it
Resolved by the House of Representatives, To express its support to the assumption into office by Vice
President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend its
congratulations and to express its support for her administration as a partner in the attainment of the
Nation's goals under the Constitution.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
173

On February 7, 2001, the House of the Representatives passed House Resolution No. 178
98
which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION OF SENATOR
TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the Presidency
of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of such
vacancy shall nominate a Vice President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a majority vote of all members of both
Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader
Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity, competence and
courage; who has served the Filipino people with dedicated responsibility and patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having
served the government in various capacities, among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of
the Philippines qualities which merit his nomination to the position of Vice President of the Republic:
Now, therefore, be it
Resolved as it is hereby resolved by the House of Representatives, That the House of Representatives
confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice President of the Republic of the
Philippines.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on February 7, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of the Senate
signed the following:
"RESOLUTION
WHEREAS, the recent transition in government offers the nation an opportunity for meaningful change
and challenge;
WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity of
purpose and resolve cohesive resolute (sic) will;
WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity
despite diversities in perspectives;
174

WHEREFORE, we recognize and express support to the new government of President Gloria Macapagal-
Arroyo and resolve to discharge and overcome the nation's challenges."
99

On February 7, the Senate also passed Senate Resolution No. 82
100
which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S NOMINATION OF SEM.
TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the Presidency
of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such
vacancy shall nominate a Vice President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a majority vote of all members of both
Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader
Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the Philippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence and
courage; who has served the Filipino people with dedicated responsibility and patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship, having served
the government in various capacities, among others, as Delegate to the Constitutional Convention,
Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the land -
which qualities merit his nomination to the position of Vice President of the Republic: Now, therefore,
be it
Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T. Guingona,
Jr. as Vice President of the Republic of the Philippines.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
On the same date, February 7, the Senate likewise passed Senate Resolution No. 83
101
which states:
"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO
Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is functus
officio and has been terminated.
Resolved, further, That the Journals of the Impeachment Court on Monday, January 15, Tuesday, January
16 and Wednesday, January 17, 2001 be considered approved.
Resolved, further, That the records of the Impeachment Court including the "second envelope" be
transferred to the Archives of the Senate for proper safekeeping and preservation in accordance with
175

the Rules of the Senate. Disposition and retrieval thereof shall be made only upon written approval of
the Senate president.
Resolved, finally. That all parties concerned be furnished copies of this Resolution.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of vacancy in the Senate
and calling on the COMELEC to fill up such vacancy through election to be held simultaneously with the regular
election on May 14, 2001 and the Senatorial candidate garnering the thirteenth (13
th
) highest number of votes
shall serve only for the unexpired term of Senator Teofisto T. Guingona, Jr.'
(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as President.
(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector
of government, and without any support from the Armed Forces of the Philippines and the Philippine National
Police, the petitioner continues to claim that his inability to govern is only momentary.
What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized
respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of
petitioner Estrada. Is no longer temporary. Congress has clearly rejected petitioner's claim of inability.
The question is whether this Court has jurisdiction to review the claim of temporary inability of petitioner
Estrada and thereafter revise the decision of both Houses of Congress recognizing respondent Arroyo as
president of the Philippines. Following Taada v. Cuenco,
102
we hold that this Court cannot exercise its judicial
power or this is an issue "in regard to which full discretionary authority has been delegated to the Legislative xxx
branch of the government." Or to use the language in Baker vs. Carr,
103
there is a "textually demonstrable or a
lack of judicially discoverable and manageable standards for resolving it." Clearly, the Court cannot pass upon
petitioner's claim of inability to discharge the power and duties of the presidency. The question is political in
nature and addressed solely to Congress by constitutional fiat. It is a political issue, which cannot be decided by
this Court without transgressing the principle of separation of powers.
In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a
President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to
rest by Congress and the decision that respondent Arroyo is the de jure, president made by a co-equal branch
of government cannot be reviewed by this Court.
IV
Whether or not the petitioner enjoys immunity from suit.
Assuming he enjoys immunity, the extent of the immunity
176

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent Ombudsman
should be prohibited because he has not been convicted in the impeachment proceedings against him; and
second, he enjoys immunity from all kinds of suit, whether criminal or civil.
Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In the 1910 case of
Forbes, etc. vs. Chuoco Tiaco and Crosfield,
104
the respondent Tiaco, a Chinese citizen, sued petitioner W.
Cameron Forbes, Governor-General of the Philippine Islands. J.E. Harding and C.R. Trowbridge, Chief of Police
and Chief of the Secret Service of the City of Manila, respectively, for damages for allegedly conspiring to deport
him to China. In granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held:
" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority to
touch the acts of the Governor-General; that he may, under cover of his office, do what he will,
unimpeded and unrestrained. Such a construction would mean that tyranny, under the guise of the
execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly
free from interference of courts or legislatures. This does not mean, either that a person injured by the
executive authority by an act unjustifiable under the law has n remedy, but must submit in silence. On
the contrary, it means, simply, that the governors-general, like the judges if the courts and the members
of the Legislature, may not be personally mulcted in civil damages for the consequences of an act
executed in the performance of his official duties. The judiciary has full power to, and will, when the
mater is properly presented to it and the occasion justly warrants it, declare an act of the Governor-
General illegal and void and place as nearly as possible in status quo any person who has been deprived
his liberty or his property by such act. This remedy is assured to every person, however humble or of
whatever country, when his personal or property rights have been invaded, even by the highest
authority of the state. The thing which the judiciary can not do is mulct the Governor-General personally
in damages which result from the performance of his official duty, any more than it can a member of the
Philippine Commission of the Philippine Assembly. Public policy forbids it.
Neither does this principle of nonliability mean that the chief executive may not be personally sued at all
in relation to acts which he claims to perform as such official. On the contrary, it clearly appears from
the discussion heretofore had, particularly that portion which touched the liability of judges and drew
an analogy between such liability and that of the Governor-General, that the latter is liable when he acts
in a case so plainly outside of his power and authority that he can not be said to have exercised
discretion in determining whether or not he had the right to act. What is held here is that he will be
protected from personal liability for damages not only when he acts within his authority, but also when
he is without authority, provided he actually used discretion and judgement, that is, the judicial faculty,
in determining whether he had authority to act or not. In other words, in determining the question of
his authority. If he decide wrongly, he is still protected provided the question of his authority was one
over which two men, reasonably qualified for that position, might honestly differ; but he s not protected
if the lack of authority to act is so plain that two such men could not honestly differ over its
determination. In such case, be acts, not as Governor-General but as a private individual, and as such
must answer for the consequences of his act."
Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from suit,
viz "xxx. Action upon important matters of state delayed; the time and substance of the chief executive spent in
wrangling litigation; disrespect engendered for the person of one of the highest officials of the state and for the
office he occupies; a tendency to unrest and disorder resulting in a way, in distrust as to the integrity of
government itself."
105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then
came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973
Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity.
Section 17, Article VII stated:
177

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for
official acts done by him or by others pursuant to his specific orders during his tenure.
The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this
Constitution.
In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The King's Men:
The Law of Privilege As a Defense To Actions For Damages,"
106
petitioner's learned counsel, former Dean of the
UP College of Law, Atty. Pacificao Agabin, brightened the modifications effected by this constitutional
amendment on the existing law on executive privilege. To quote his disquisition:
"In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying the
absolute immunity concept. First, we extended it to shield the President not only form civil claims but
also from criminal cases and other claims. Second, we enlarged its scope so that it would cover even acts
of the President outside the scope of official duties. And third, we broadened its coverage so as to
include not only the President but also other persons, be they government officials or private
individuals, who acted upon orders of the President. It can be said that at that point most of us were
suffering from AIDS (or absolute immunity defense syndrome)."
The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive
immunity in the 1973 Constitution. The move was led by them Member of Parliament, now Secretary of Finance,
Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos violated the
principle that a public office is a public trust. He denounced the immunity as a return to the anachronism "the
king can do no wrong."
107
The effort failed.
The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People Power
revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executive immunity
provision of the 1973 Constitution. The following explanation was given by delegate J. Bernas vis:
108

"Mr. Suarez. Thank you.
The last question is with reference to the Committee's omitting in the draft proposal the immunity
provision for the President. I agree with Commissioner Nolledo that the Committee did very well in
striking out second sentence, at the very least, of the original provision on immunity from suit under the
1973 Constitution. But would the Committee members not agree to a restoration of at least the first
sentence that the President shall be immune from suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be spending all his time facing litigation's, as the
President-in-exile in Hawaii is now facing litigation's almost daily?
Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence that
during his tenure he is immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973 Constitution
was to make that explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for any more query, Madam President.
I think the Commissioner for the clarifications."
We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that he
cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The
178

impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that
led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83
"Recognizing that the Impeachment Court is Functus Officio."
109
Since, the Impeachment Court is now functus
officio, it is untenable for petitioner to demand that he should first be impeached and then convicted before he
can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a submission has
nothing to commend itself for it will place him in a better situation than a non-sitting President who has not
been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be sure, the
debates in the Constitutional Commission make it clear that when impeachment proceedings have become
moot due to the resignation of the President, the proper criminal and civil cases may already be filed against
him, viz:
110

"xxx
Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for
example, and the President resigns before judgement of conviction has been rendered by the
impeachment court or by the body, how does it affect the impeachment proceeding? Will it be
necessarily dropped?
Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation
would render the case moot and academic. However, as the provision says, the criminal and civil aspects
of it may continue in the ordinary courts."
This is in accord with our ruling In Re: Saturnino Bermudez
111
that 'incumbent Presidents are immune from suit
or from being brought to court during the period of their incumbency and tenure" but not beyond. Considering
the peculiar circumstance that the impeachment process against the petitioner has been aborted and thereafter
he lost the presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal prosecution
before the Ombudsman that he be convicted in the impeachment proceedings. His reliance on the case of
Lecaroz vs. Sandiganbayan
112
and related cases
113
are inapropos for they have a different factual milieu.
We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases
filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption.
By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be
covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this
Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from
liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and
conditions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts
illegally is not acting as such but stands in the same footing as any trespasser.
114

Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination to expand
the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974
case of US v. Nixon,
115
US President Richard Nixon, a sitting President, was subpoenaed to produce certain
recordings and documents relating to his conversations with aids and advisers. Seven advisers of President
Nixon's associates were facing charges of conspiracy to obstruct Justice and other offenses, which were
committed in a burglary of the Democratic National Headquarters in Washington's Watergate Hotel during the
972 presidential campaign. President Nixon himself was named an unindicted co-conspirator. President Nixon
moved to quash the subpoena on the ground, among others, that the President was not subject to judicial
process and that he should first be impeached and removed from office before he could be made amenable to
judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the ground for
asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized
interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair
administration of criminal justice." In the 1982 case of Nixon v. Fitzgerald,
116
the US Supreme Court further held
that the immunity of the president from civil damages covers only "official acts." Recently, the US Supreme
Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones
117
where it held that the US
179

President's immunity from suits for money damages arising out of their official acts is inapplicable to unofficial
conduct.
There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our
jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust.
118
It
declared as a state policy that "the State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruptio."
119
it ordained that "public officers and employees
must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency act with patriotism and justice, and lead modest lives."
120
It set the rule that 'the right of the State to
recover properties unlawfully acquired by public officials or employees, from them or from their nominees or
transferees, shall not be barred by prescription, latches or estoppel."
121
It maintained the Sandiganbayan as an
anti-graft court.
122
It created the office of the Ombudsman and endowed it with enormous powers, among
which is to "investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust improper or inefficient."
123

The Office of the Ombudsman was also given fiscal autonomy.
124
These constitutional policies will be devalued if
we sustain petitioner's claim that a non-sitting president enjoys immunity from suit for criminal acts committed
during his incumbency.
V
Whether or not the prosecution of petitioner
Estrada should be enjoined due to prejudicial publicity
Petitioner also contends that the respondent Ombudsman should be stopped from conducting the investigation
of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He submits that the
respondent Ombudsman has developed bias and is all set file the criminal cases violation of his right to due
process.
There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases.
125
The British approach the
problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop
criminal trials when the right of an accused to fair trial suffers a threat.
126
The American approach is different. US
courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused
to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial; probability of
irreparable harm, strong likelihood, clear and present danger, etc.
This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul
convictions in high profile criminal cases.
127
In People vs. Teehankee, Jr.,
128
later reiterated in the case of
Larranaga vs. court of Appeals, et al.,
129
we laid down the doctrine that:
"We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial
publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like
all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair
trial is not incompatible to a free press. To be sure, responsible reporting enhances accused's right to a
fair trial for, as well pointed out, a responsible press has always been regarded as the criminal field xxx.
The press does not simply publish information about trials but guards against the miscarriage of justice
by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the
trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the
publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible
to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational
180

criminal cases. The state of the art of our communication system brings news as they happen straight to
our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts
and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of
touch with the world. We have not installed the jury system whose members are overly protected from
publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law and trained to
disregard off-court evidence and on-camera performances of parties to litigation. Their mere exposure
to publications and publicity stunts does not per se fatally infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the
barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v.
Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual
prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and
proof that the judges have been unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at a bar, the records do not show that the trial judge developed actual bias against
appellants as a consequence of the extensive media coverage of the pre-trial and trial of his case. The
totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a
result of prejudicial publicity, which is incapable of change even by evidence presented during the trial.
Appellant has the burden to prove this actual bias and he has not discharged the burden.'
We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc.
130
and its
companion cases, viz:
"Again petitioners raise the effect of prejudicial publicity on their right to due process while undergoing
preliminary investigation. We find no procedural impediment to its early invocation considering the
substantial risk to their liberty while undergoing a preliminary investigation.
xxx
The democratic settings, media coverage of trials of sensational cases cannot be avoided and
oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications
industry. For sure, few cases can match the high volume and high velocity of publicity that attended the
preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues
unabated even today. Commentators still bombard the public with views not too many of which are
sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their
lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and
their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and
public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was
xxx
a. The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal
trials both here and in England had long been presumptively open, thus giving assurance that
the proceedings were conducted fairly to all concerned and discouraging perjury, the
misconduct of participants, or decisions based on secret bias or partiality. In addition, the
significant community therapeutic value of public trials was recognized when a shocking crime
occurs a community reaction of outrage and public protest often follows, and thereafter the
open processes of justice serve an important prophylactic purpose, providing an outlet for
community concern, hostility and emotion. To work effectively, it is important that society's
criminal process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99 L ED
11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From
this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past,
it must be concluded that a presumption of openness inheres in the very nature of a criminal
181

trial under this Nation's system of justice, Cf., e,g., Levine v. United States, 362 US 610, 4 L Ed 2d
989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the First Amendment,
share a common core purpose of assuring freedom of communication on matters relating to the
functioning of government. In guaranteeing freedom such as those of speech and press, the First
Amendment can be read as protecting the right of everyone to attend trials so as give meaning
to those explicit guarantees; the First Amendment right to receive information and ideas means,
in the context of trials, that the guarantees of speech and press, standing alone, prohibit
government from summarily closing courtroom doors which had long been open to the public at
the time the First Amendment was adopted. Moreover, the right of assembly is also relevant,
having been regarded not only as an independent right but also as a catalyst to augment the
free exercise of the other First Amendment rights with which the draftsmen deliberately linked
it. A trial courtroom is a public place where the people generally and representatives of the
media have a right to be present, and where their presence historically has been thought to
enhance the integrity and quality of what takes place.
c. Even though the Constitution contains no provision which be its terms guarantees to the public
the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have
been recognized as indispensable to the enjoyment of enumerated rights. The right to attend
criminal trial is implicit in the guarantees of the First Amendment: without the freedom to
attend such trials, which people have exercised for centuries, important aspects of freedom of
speech and of the press be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can
deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we
held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges
have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at
bar, we find nothing in the records that will prove that the tone and content of the publicity that
attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ
Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed
of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal
investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights
of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear
that they considered any extra-record evidence except evidence properly adduced by the parties. The
length of time the investigation was conducted despite its summary nature and the generosity with
which they accommodated the discovery motions of petitioners speak well of their fairness. At no
instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the
ground of bias resulting from their bombardment of prejudicial publicity." (emphasis supplied)
Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the
preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more
than hostile headlines to discharge his burden of proof.
131
He needs to show more weighty social science
evidence to successfully prove the impaired capacity of a judge to render a bias-free decision. Well to note, the
cases against the petitioner are still undergoing preliminary investigation by a special panel of prosecutors in
the office of the respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the
minds of the members of this special panel have already been infected by bias because of the pervasive
prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and the Court
cannot second guess whether its recommendation will be unfavorable to the petitioner.1wphi1.nt
The records show that petitioner has instead charged respondent Ombudsman himself with bias. To quote
petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of slanted news
reports, and he has buckled to the threats and pressures directed at him by the mobs."
132
News reports have
also been quoted to establish that the respondent Ombudsman has already prejudged the cases of the
182

petitioner
133
and it is postulated that the prosecutors investigating the petitioner will be influenced by this bias
of their superior.
Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news reports
referred to by the petitioner cannot be the subject of judicial notice by this Court especially in light of the
denials of the respondent Ombudsman as to his alleged prejudice and the presumption of good faith and
regularity in the performance of official duty to which he is entitled. Nor can we adopt the theory of derivative
prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman flows to his subordinates. In truth,
our Revised Rules of Criminal Procedure, give investigation prosecutors the independence to make their own
findings and recommendations albeit they are reviewable by their superiors.
134
They can be reversed but they
can not be compelled cases which they believe deserve dismissal. In other words, investigating prosecutors
should not be treated like unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file
the cases against the petitioner and the latter believes that the findings of probable cause against him is the
result of bias, he still has the remedy of assailing it before the proper court.
VI. Epilogue
A word of caution to the "hooting throng." The cases against the petitioner will now acquire a different
dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably, the call from the
majority for instant justice will hit a higher decibel while the gnashing of teeth of the minority will be more
threatening. It is the sacred duty of the respondent Ombudsman to balance the right of the State to prosecute
the guilty and the right of an accused to a fair investigation and trial which has been categorized as the "most
fundamental of all freedoms."
135
To be sure, the duty of a prosecutor is more to do justice and less to prosecute.
His is the obligation to insure that the preliminary investigation of the petitioner shall have a circus-free
atmosphere. He has to provide the restraint against what Lord Bryce calls "the impatient vehemence of the
majority." Rights in a democracy are not decided by the mob whose judgment is dictated by rage and not by
reason. Nor are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the
majority is not and should never be the definition of the rule of law. If democracy has proved to be the best
form of government, it is because it has respected the right of the minority to convince the majority that it is
wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the key to man's progress from
the cave to civilization. Let us not throw away that key just to pander to some people's prejudice.
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria Macapagal-
Arroyo as the de jure 14
th
President of the Republic are DISMISSED.
SO ORDERED.









183

G.R. No. 159402 February 23, 2011
AIR TRANSPORTATION OFFICE, Petitioner,
vs.
SPOUSES DAVID
*
ELISEA RAMOS, Respondents.
The States immunity from suit does not extend to the petitioner because it is an agency of the State engaged in
an enterprise that is far from being the States exclusive prerogative.
Under challenge is the decision promulgated on May 14, 2003,
1
by which the Court of Appeals (CA) affirmed
with modification the decision rendered on February 21, 2001 by the Regional Trial Court, Branch 61 (RTC), in
Baguio City in favor of the respondents.
2

Antecedents
Spouses David and Elisea Ramos (respondents) discovered that a portion of their land registered under Transfer
Certificate of Title No. T-58894 of the Baguio City land records with an area of 985 square meters, more or less,
was being used as part of the runway and running shoulder of the Loakan Airport being operated by petitioner
Air Transportation Office (ATO). On August 11, 1995, the respondents agreed after negotiations to convey the
affected portion by deed of sale to the ATO in consideration of the amount of P778,150.00. However, the ATO
failed to pay despite repeated verbal and written demands.
Thus, on April 29, 1998, the respondents filed an action for collection against the ATO and some of its officials in
the RTC (docketed as Civil Case No. 4017-R and entitled Spouses David and Elisea Ramos v. Air Transportation
Office, Capt. Panfilo Villaruel, Gen. Carlos Tanega, and Mr. Cesar de Jesus).
In their answer, the ATO and its co-defendants invoked as an affirmative defense the issuance of Proclamation
No. 1358, whereby President Marcos had reserved certain parcels of land that included the respondents
affected portion for use of the Loakan Airport. They asserted that the RTC had no jurisdiction to entertain the
action without the States consent considering that the deed of sale had been entered into in the performance
of governmental functions.
On November 10, 1998, the RTC denied the ATOs motion for a preliminary hearing of the affirmative defense.
After the RTC likewise denied the ATOs motion for reconsideration on December 10, 1998, the ATO commenced
a special civil action for certiorari in the CA to assail the RTCs orders. The CA dismissed the petition for
certiorari, however, upon its finding that the assailed orders were not tainted with grave abuse of discretion.
3

Subsequently, February 21, 2001, the RTC rendered its decision on the merits,
4
disposing:
WHEREFORE, the judgment is rendered ORDERING the defendant Air Transportation Office to pay the plaintiffs
DAVID and ELISEA RAMOS the following: (1) The amount of P778,150.00 being the value of the parcel of land
appropriated by the defendant ATO as embodied in the Deed of Sale, plus an annual interest of 12% from
August 11, 1995, the date of the Deed of Sale until fully paid; (2) The amount of P150,000.00 by way of moral
damages and P150,000.00 as exemplary damages; (3) the amount of P50,000.00 by way of attorneys fees plus
P15,000.00 representing the 10, more or less, court appearances of plaintiffs counsel; (4) The costs of this suit.
SO ORDERED.
In due course, the ATO appealed to the CA, which affirmed the RTCs decision on May 14, 2003,
5
viz:
184

IN VIEW OF ALL THE FOREGOING, the appealed decision is hereby AFFIRMED, with MODIFICATION that the
awarded cost therein is deleted, while that of moral and exemplary damages is reduced to P30,000.00 each, and
attorneys fees is lowered to P10,000.00.
No cost.
SO ORDERED.
Hence, this appeal by petition for review on certiorari.
Issue
The only issue presented for resolution is whether the ATO could be sued without the States consent.
Ruling
The petition for review has no merit.
The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-suability of the
State, is expressly provided in Article XVI of the 1987 Constitution, viz:
Section 3. The State may not be sued without its consent.
The immunity from suit is based on the political truism that the State, as a sovereign, can do no wrong.
Moreover, as the eminent Justice Holmes said in Kawananakoa v. Polyblank:
6

The territory [of Hawaii], of course, could waive its exemption (Smith v. Reeves, 178 US 436, 44 L ed 1140, 20
Sup. Ct. Rep. 919), and it took no objection to the proceedings in the cases cited if it could have done so. xxx But
in the case at bar it did object, and the question raised is whether the plaintiffs were bound to yield. Some
doubts have been expressed as to the source of the immunity of a sovereign power from suit without its own
permission, but the answer has been public property since before the days of Hobbes. Leviathan, chap. 26, 2. A
sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and
practical ground that there can be no legal right as against the authority that makes the law on which the right
depends. "Car on peut bien recevoir loy d'autruy, mais il est impossible par nature de se donner loy." Bodin,
Republique, 1, chap. 8, ed. 1629, p. 132; Sir John Eliot, De Jure Maiestatis, chap. 3. Nemo suo statuto ligatur
necessitative. Baldus, De Leg. et Const. Digna Vox, 2. ed. 1496, fol. 51b, ed. 1539, fol. 61.
7

Practical considerations dictate the establishment of an immunity from suit in favor of the State. Otherwise, and
the State is suable at the instance of every other individual, government service may be severely obstructed and
public safety endangered because of the number of suits that the State has to defend against.
8
Several
justifications have been offered to support the adoption of the doctrine in the Philippines, but that offered in
Providence Washington Insurance Co. v. Republic of the Philippines
9
is "the most acceptable explanation,"
according to Father Bernas, a recognized commentator on Constitutional Law,
10
to wit:
[A] continued adherence to the doctrine of non-suability is not to be deplored for as against the inconvenience
that may be caused private parties, the loss of governmental efficiency and the obstacle to the performance of
its multifarious functions are far greater if such a fundamental principle were abandoned and the availability of
judicial remedy were not thus restricted. With the well-known propensity on the part of our people to go to
court, at the least provocation, the loss of time and energy required to defend against law suits, in the absence
of such a basic principle that constitutes such an effective obstacle, could very well be imagined.
An unincorporated government agency without any separate juridical personality of its own enjoys immunity
from suit because it is invested with an inherent power of sovereignty. Accordingly, a claim for damages against
185

the agency cannot prosper; otherwise, the doctrine of sovereign immunity is violated.
11
However, the need to
distinguish between an unincorporated government agency performing governmental function and one
performing proprietary functions has arisen. The immunity has been upheld in favor of the former because its
function is governmental or incidental to such function;
12
it has not been upheld in favor of the latter whose
function was not in pursuit of a necessary function of government but was essentially a business.
13

Should the doctrine of sovereignty immunity or non-suability of the State be extended to the ATO?
In its challenged decision,
14
the CA answered in the negative, holding:
On the first assignment of error, appellants seek to impress upon Us that the subject contract of sale partook of
a governmental character. Apropos, the lower court erred in applying the High Courts ruling in National Airports
Corporation vs. Teodoro (91 Phil. 203 [1952]), arguing that in Teodoro, the matter involved the collection of
landing and parking fees which is a proprietary function, while the case at bar involves the maintenance and
operation of aircraft and air navigational facilities and services which are governmental functions.
We are not persuaded.
Contrary to appellants conclusions, it was not merely the collection of landing and parking fees which was
declared as proprietary in nature by the High Court in Teodoro, but management and maintenance of airport
operations as a whole, as well. Thus, in the much later case of Civil Aeronautics Administration vs. Court of
Appeals (167 SCRA 28 [1988]), the Supreme Court, reiterating the pronouncements laid down in Teodoro,
declared that the CAA (predecessor of ATO) is an agency not immune from suit, it being engaged in functions
pertaining to a private entity. It went on to explain in this wise:
x x x
The Civil Aeronautics Administration comes under the category of a private entity. Although not a body
corporate it was created, like the National Airports Corporation, not to maintain a necessary function of
government, but to run what is essentially a business, even if revenues be not its prime objective but rather the
promotion of travel and the convenience of the travelling public. It is engaged in an enterprise which, far from
being the exclusive prerogative of state, may, more than the construction of public roads, be undertaken by
private concerns. [National Airports Corp. v. Teodoro, supra, p. 207.]
x x x
True, the law prevailing in 1952 when the Teodoro case was promulgated was Exec. Order 365 (Reorganizing the
Civil Aeronautics Administration and Abolishing the National Airports Corporation). Republic Act No. 776 (Civil
Aeronautics Act of the Philippines), subsequently enacted on June 20, 1952, did not alter the character of the
CAAs objectives under Exec. Order 365. The pertinent provisions cited in the Teodoro case, particularly Secs. 3
and 4 of Exec. Order 365, which led the Court to consider the CAA in the category of a private entity were
retained substantially in Republic Act 776, Sec. 32(24) and (25). Said Act provides:
Sec. 32. Powers and Duties of the Administrator. Subject to the general control and supervision of the
Department Head, the Administrator shall have among others, the following powers and duties:
x x x
(24) To administer, operate, manage, control, maintain and develop the Manila International Airport and all
government-owned aerodromes except those controlled or operated by the Armed Forces of the Philippines
including such powers and duties as: (a) to plan, design, construct, equip, expand, improve, repair or alter
aerodromes or such structures, improvement or air navigation facilities; (b) to enter into, make and execute
contracts of any kind with any person, firm, or public or private corporation or entity;
186

(25) To determine, fix, impose, collect and receive landing fees, parking space fees, royalties on sales or
deliveries, direct or indirect, to any aircraft for its use of aviation gasoline, oil and lubricants, spare parts,
accessories and supplies, tools, other royalties, fees or rentals for the use of any of the property under its
management and control.
x x x
From the foregoing, it can be seen that the CAA is tasked with private or non-governmental functions which
operate to remove it from the purview of the rule on State immunity from suit. For the correct rule as set forth
in the Teodoro case states:
x x x
Not all government entities, whether corporate or non-corporate, are immune from suits. Immunity from suits is
determined by the character of the objects for which the entity was organized. The rule is thus stated in Corpus
Juris:
Suits against State agencies with relation to matters in which they have assumed to act in private or non-
governmental capacity, and various suits against certain corporations created by the state for public purposes,
but to engage in matters partaking more of the nature of ordinary business rather than functions of a
governmental or political character, are not regarded as suits against the state. The latter is true, although the
state may own stock or property of such a corporation for by engaging in business operations through a
corporation, the state divests itself so far of its sovereign character, and by implication consents to suits against
the corporation. (59 C.J., 313) [National Airports Corporation v. Teodoro, supra, pp. 206-207; Italics supplied.]
This doctrine has been reaffirmed in the recent case of Malong v. Philippine National Railways [G.R. No. L-
49930, August 7, 1985, 138 SCRA 63], where it was held that the Philippine National Railways, although owned
and operated by the government, was not immune from suit as it does not exercise sovereign but purely
proprietary and business functions. Accordingly, as the CAA was created to undertake the management of
airport operations which primarily involve proprietary functions, it cannot avail of the immunity from suit
accorded to government agencies performing strictly governmental functions.
15

In our view, the CA thereby correctly appreciated the juridical character of the ATO as an agency of the
Government not performing a purely governmental or sovereign function, but was instead involved in the
management and maintenance of the Loakan Airport, an activity that was not the exclusive prerogative of the
State in its sovereign capacity. Hence, the ATO had no claim to the States immunity from suit. We uphold the
CAs aforequoted holding.
We further observe the doctrine of sovereign immunity cannot be successfully invoked to defeat a valid claim
for compensation arising from the taking without just compensation and without the proper expropriation
proceedings being first resorted to of the plaintiffs property.
16
Thus, in De los Santos v. Intermediate Appellate
Court,
17
the trial courts dismissal based on the doctrine of non-suability of the State of two cases (one of which
was for damages) filed by owners of property where a road 9 meters wide and 128.70 meters long occupying a
total area of 1,165 square meters and an artificial creek 23.20 meters wide and 128.69 meters long occupying an
area of 2,906 square meters had been constructed by the provincial engineer of Rizal and a private contractor
without the owners knowledge and consent was reversed and the cases remanded for trial on the merits. The
Supreme Court ruled that the doctrine of sovereign immunity was not an instrument for perpetrating any
injustice on a citizen. In exercising the right of eminent domain, the Court explained, the State exercised its jus
imperii, as distinguished from its proprietary rights, or jus gestionis; yet, even in that area, where private
property had been taken in expropriation without just compensation being paid, the defense of immunity from
suit could not be set up by the State against an action for payment by the owners.
187

Lastly, the issue of whether or not the ATO could be sued without the States consent has been rendered moot
by the passage of Republic Act No. 9497, otherwise known as the Civil Aviation Authority Act of 2008.
R.A. No. 9497 abolished the ATO, to wit:
Section 4. Creation of the Authority. There is hereby created an independent regulatory body with quasi-
judicial and quasi-legislative powers and possessing corporate attributes to be known as the Civil Aviation
Authority of the Philippines (CAAP), herein after referred to as the "Authority" attached to the Department of
Transportation and Communications (DOTC) for the purpose of policy coordination. For this purpose, the
existing Air transportation Office created under the provisions of Republic Act No. 776, as amended is hereby
abolished.
x x x
Under its Transitory Provisions, R.A. No. 9497 established in place of the ATO the Civil Aviation Authority of the
Philippines (CAAP), which thereby assumed all of the ATOs powers, duties and rights, assets, real and personal
properties, funds, and revenues, viz:
CHAPTER XII
TRANSITORTY PROVISIONS
Section 85. Abolition of the Air Transportation Office. The Air Transportation Office (ATO) created under
Republic Act No. 776, a sectoral office of the Department of Transportation and Communications (DOTC), is
hereby abolished.1avvphi1
All powers, duties and rights vested by law and exercised by the ATO is hereby transferred to the Authority.
All assets, real and personal properties, funds and revenues owned by or vested in the different offices of the
ATO are transferred to the Authority. All contracts, records and documents relating to the operations of the
abolished agency and its offices and branches are likewise transferred to the Authority. Any real property
owned by the national government or government-owned corporation or authority which is being used and
utilized as office or facility by the ATO shall be transferred and titled in favor of the Authority.
Section 23 of R.A. No. 9497 enumerates the corporate powers vested in the CAAP, including the power to sue
and be sued, to enter into contracts of every class, kind and description, to construct, acquire, own, hold,
operate, maintain, administer and lease personal and real properties, and to settle, under such terms and
conditions most advantageous to it, any claim by or against it.
18

With the CAAP having legally succeeded the ATO pursuant to R.A. No. 9497, the obligations that the ATO had
incurred by virtue of the deed of sale with the Ramos spouses might now be enforced against the CAAP.
WHEREFORE, the Court denies the petition for review on certiorari, and affirms the decision promulgated by the
Court of Appeals.
No pronouncement on costs of suit.
SO ORDERED.



188

G.R. Nos. 171947-48 December 18, 2008
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES, DEPARTMENT OF EDUCATION, CULTURE AND SPORTS,
1
DEPARTMENT OF HEALTH, DEPARTMENT
OF AGRICULTURE, DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, DEPARTMENT OF BUDGET AND
MANAGEMENT, PHILIPPINE COAST GUARD, PHILIPPINE NATIONAL POLICE MARITIME GROUP, and
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS, SABINIANO ALBARRACIN,
MANUEL SANTOS, JR., DINAH DELA PEA, PAUL DENNIS QUINTERO, MA. VICTORIA LLENOS, DONNA CALOZA,
FATIMA QUITAIN, VENICE SEGARRA, FRITZIE TANGKIA, SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS BOBIS,
FELIMON SANTIAGUEL, and JAIME AGUSTIN R. OPOSA, respondents.
The need to address environmental pollution, as a cause of climate change, has of late gained the attention of
the international community. Media have finally trained their sights on the ill effects of pollution, the
destruction of forests and other critical habitats, oil spills, and the unabated improper disposal of garbage. And
rightly so, for the magnitude of environmental destruction is now on a scale few ever foresaw and the wound no
longer simply heals by itself.
2
But amidst hard evidence and clear signs of a climate crisis that need bold action,
the voice of cynicism, naysayers, and procrastinators can still be heard.
This case turns on government agencies and their officers who, by the nature of their respective offices or by
direct statutory command, are tasked to protect and preserve, at the first instance, our internal waters, rivers,
shores, and seas polluted by human activities. To most of these agencies and their official complement, the
pollution menace does not seem to carry the high national priority it deserves, if their track records are to be the
norm. Their cavalier attitude towards solving, if not mitigating, the environmental pollution problem, is a sad
commentary on bureaucratic efficiency and commitment.
At the core of the case is the Manila Bay, a place with a proud historic past, once brimming with marine life and,
for so many decades in the past, a spot for different contact recreation activities, but now a dirty and slowly
dying expanse mainly because of the abject official indifference of people and institutions that could have
otherwise made a difference.
This case started when, on January 29, 1999, respondents Concerned Residents of Manila Bay filed a complaint
before the Regional Trial Court (RTC) in Imus, Cavite against several government agencies, among them the
petitioners, for the cleanup, rehabilitation, and protection of the Manila Bay. Raffled to Branch 20 and docketed
as Civil Case No. 1851-99 of the RTC, the complaint alleged that the water quality of the Manila Bay had fallen
way below the allowable standards set by law, specifically Presidential Decree No. (PD) 1152 or the Philippine
Environment Code. This environmental aberration, the complaint stated, stemmed from:
x x x [The] reckless, wholesale, accumulated and ongoing acts of omission or commission [of the
defendants] resulting in the clear and present danger to public health and in the depletion and
contamination of the marine life of Manila Bay, [for which reason] ALL defendants must be held jointly
and/or solidarily liable and be collectively ordered to clean up Manila Bay and to restore its water
quality to class B waters fit for swimming, skin-diving, and other forms of contact recreation.
3

In their individual causes of action, respondents alleged that the continued neglect of petitioners in abating the
pollution of the Manila Bay constitutes a violation of, among others:
(1) Respondents constitutional right to life, health, and a balanced ecology;
(2) The Environment Code (PD 1152);
(3) The Pollution Control Law (PD 984);
189

(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree (PD 825);
(7) The Marine Pollution Law (PD 979);
(8) Executive Order No. 192;
(9) The Toxic and Hazardous Wastes Law (Republic Act No. 6969);
(10) Civil Code provisions on nuisance and human relations;
(11) The Trust Doctrine and the Principle of Guardianship; and
(12) International Law
Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered to clean the Manila Bay and
submit to the RTC a concerted concrete plan of action for the purpose.
The trial of the case started off with a hearing at the Manila Yacht Club followed by an ocular inspection of the
Manila Bay. Renato T. Cruz, the Chief of the Water Quality Management Section, Environmental Management
Bureau, Department of Environment and Natural Resources (DENR), testifying for petitioners, stated that water
samples collected from different beaches around the Manila Bay showed that the amount of fecal coliform
content ranged from 50,000 to 80,000 most probable number (MPN)/ml when what DENR Administrative Order
No. 34-90 prescribed as a safe level for bathing and other forms of contact recreational activities, or the "SB"
level, is one not exceeding 200 MPN/100 ml.
4

Rebecca de Vera, for Metropolitan Waterworks and Sewerage System (MWSS) and in behalf of other
petitioners, testified about the MWSS efforts to reduce pollution along the Manila Bay through the Manila
Second Sewerage Project. For its part, the Philippine Ports Authority (PPA) presented, as part of its evidence, its
memorandum circulars on the study being conducted on ship-generated waste treatment and disposal, and its
Linis Dagat (Clean the Ocean) project for the cleaning of wastes accumulated or washed to shore.
The RTC Ordered Petitioners to Clean Up and Rehabilitate Manila Bay
On September 13, 2002, the RTC rendered a Decision
5
in favor of respondents. The dispositive portion reads:
WHEREFORE, finding merit in the complaint, judgment is hereby rendered ordering the abovenamed
defendant-government agencies, jointly and solidarily, to clean up and rehabilitate Manila Bay and
restore its waters to SB classification to make it fit for swimming, skin-diving and other forms of contact
recreation. To attain this, defendant-agencies, with defendant DENR as the lead agency, are directed,
within six (6) months from receipt hereof, to act and perform their respective duties by devising a
consolidated, coordinated and concerted scheme of action for the rehabilitation and restoration of the
bay.
In particular:
Defendant MWSS is directed to install, operate and maintain adequate [sewerage] treatment facilities in
strategic places under its jurisdiction and increase their capacities.
190

Defendant LWUA, to see to it that the water districts under its wings, provide, construct and operate
sewage facilities for the proper disposal of waste.
Defendant DENR, which is the lead agency in cleaning up Manila Bay, to install, operate and maintain
waste facilities to rid the bay of toxic and hazardous substances.
Defendant PPA, to prevent and also to treat the discharge not only of ship-generated wastes but also of
other solid and liquid wastes from docking vessels that contribute to the pollution of the bay.
Defendant MMDA, to establish, operate and maintain an adequate and appropriate sanitary landfill
and/or adequate solid waste and liquid disposal as well as other alternative garbage disposal system
such as re-use or recycling of wastes.
Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to revitalize the marine life in
Manila Bay and restock its waters with indigenous fish and other aquatic animals.
Defendant DBM, to provide and set aside an adequate budget solely for the purpose of cleaning up and
rehabilitation of Manila Bay.
Defendant DPWH, to remove and demolish structures and other nuisances that obstruct the free flow of
waters to the bay. These nuisances discharge solid and liquid wastes which eventually end up in Manila
Bay. As the construction and engineering arm of the government, DPWH is ordered to actively
participate in removing debris, such as carcass of sunken vessels, and other non-biodegradable garbage
in the bay.
Defendant DOH, to closely supervise and monitor the operations of septic and sludge companies and
require them to have proper facilities for the treatment and disposal of fecal sludge and sewage coming
from septic tanks.
Defendant DECS, to inculcate in the minds and hearts of the people through education the importance
of preserving and protecting the environment.
Defendant Philippine Coast Guard and the PNP Maritime Group, to protect at all costs the Manila Bay
from all forms of illegal fishing.
No pronouncement as to damages and costs.
SO ORDERED.
The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before the Court of Appeals (CA)
individual Notices of Appeal which were eventually consolidated and docketed as CA-G.R. CV No. 76528.
On the other hand, the DENR, Department of Public Works and Highways (DPWH), Metropolitan Manila
Development Authority (MMDA), Philippine Coast Guard (PCG), Philippine National Police (PNP) Maritime
Group, and five other executive departments and agencies filed directly with this Court a petition for review
under Rule 45. The Court, in a Resolution of December 9, 2002, sent the said petition to the CA for consolidation
with the consolidated appeals of MWSS, LWUA, and PPA, docketed as CA-G.R. SP No. 74944.
Petitioners, before the CA, were one in arguing in the main that the pertinent provisions of the Environment
Code (PD 1152) relate only to the cleaning of specific pollution incidents and do not cover cleaning in general.
And apart from raising concerns about the lack of funds appropriated for cleaning purposes, petitioners also
asserted that the cleaning of the Manila Bay is not a ministerial act which can be compelled by mandamus.
191

The CA Sustained the RTC
By a Decision
6
of September 28, 2005, the CA denied petitioners appeal and affirmed the Decision of the RTC in
toto, stressing that the trial courts decision did not require petitioners to do tasks outside of their usual basic
functions under existing laws.
7

Petitioners are now before this Court praying for the allowance of their Rule 45 petition on the following ground
and supporting arguments:
THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE PASSED UPON BY THE HONORABLE
COURT, I.E., IT AFFIRMED THE TRIAL COURTS DECISION DECLARING THAT SECTION 20 OF *PD+ 1152
REQUIRES CONCERNED GOVERNMENT AGENCIES TO REMOVE ALL POLLUTANTS SPILLED AND
DISCHARGED IN THE WATER SUCH AS FECAL COLIFORMS.
ARGUMENTS
I
[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO THE CLEANING OF SPECIFIC POLLUTION
INCIDENTS AND [DO] NOT COVER CLEANING IN GENERAL
II
THE CLEANING OR REHABILITATION OF THE MANILA BAY IS NOT A MINISTERIAL ACT OF PETITIONERS
THAT CAN BE COMPELLED BY MANDAMUS.
The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under the headings, Upgrading of
Water Quality and Clean-up Operations, envisage a cleanup in general or are they limited only to the cleanup of
specific pollution incidents? And second, can petitioners be compelled by mandamus to clean up and
rehabilitate the Manila Bay?
On August 12, 2008, the Court conducted and heard the parties on oral arguments.
Our Ruling
We shall first dwell on the propriety of the issuance of mandamus under the premises.
The Cleaning or Rehabilitation of Manila Bay
Can be Compelled by Mandamus
Generally, the writ of mandamus lies to require the execution of a ministerial duty.
8
A ministerial duty is one
that "requires neither the exercise of official discretion nor judgment."
9
It connotes an act in which nothing is
left to the discretion of the person executing it. It is a "simple, definite duty arising under conditions admitted or
proved to exist and imposed by law."
10
Mandamus is available to compel action, when refused, on matters
involving discretion, but not to direct the exercise of judgment or discretion one way or the other.
Petitioners maintain that the MMDAs duty to take measures and maintain adequate solid waste and liquid
disposal systems necessarily involves policy evaluation and the exercise of judgment on the part of the agency
concerned. They argue that the MMDA, in carrying out its mandate, has to make decisions, including choosing
where a landfill should be located by undertaking feasibility studies and cost estimates, all of which entail the
exercise of discretion.
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Respondents, on the other hand, counter that the statutory command is clear and that petitioners duty to
comply with and act according to the clear mandate of the law does not require the exercise of discretion.
According to respondents, petitioners, the MMDA in particular, are without discretion, for example, to choose
which bodies of water they are to clean up, or which discharge or spill they are to contain. By the same token,
respondents maintain that petitioners are bereft of discretion on whether or not to alleviate the problem of
solid and liquid waste disposal; in other words, it is the MMDAs ministerial duty to attend to such services.
We agree with respondents.
First off, we wish to state that petitioners obligation to perform their duties as defined by law, on one hand, and
how they are to carry out such duties, on the other, are two different concepts. While the implementation of
the MMDAs mandated tasks may entail a decision-making process, the enforcement of the law or the very act
of doing what the law exacts to be done is ministerial in nature and may be compelled by mandamus. We said so
in Social Justice Society v. Atienza
11
in which the Court directed the City of Manila to enforce, as a matter of
ministerial duty, its Ordinance No. 8027 directing the three big local oil players to cease and desist from
operating their business in the so-called "Pandacan Terminals" within six months from the effectivity of the
ordinance. But to illustrate with respect to the instant case, the MMDAs duty to put up an adequate and
appropriate sanitary landfill and solid waste and liquid disposal as well as other alternative garbage disposal
systems is ministerial, its duty being a statutory imposition. The MMDAs duty in this regard is spelled out in Sec.
3(c) of Republic Act No. (RA) 7924 creating the MMDA. This section defines and delineates the scope of the
MMDAs waste disposal services to include:
Solid waste disposal and management which include formulation and implementation of policies,
standards, programs and projects for proper and sanitary waste disposal. It shall likewise include the
establishment and operation of sanitary land fill and related facilities and the implementation of other
alternative programs intended to reduce, reuse and recycle solid waste. (Emphasis added.)
The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste Management Act (RA 9003)
which prescribes the minimum criteria for the establishment of sanitary landfills and Sec. 42 which provides the
minimum operating requirements that each site operator shall maintain in the operation of a sanitary landfill.
Complementing Sec. 41 are Secs. 36 and 37 of RA 9003,
12
enjoining the MMDA and local government units,
among others, after the effectivity of the law on February 15, 2001, from using and operating open dumps for
solid waste and disallowing, five years after such effectivity, the use of controlled dumps.
The MMDAs duty in the area of solid waste disposal, as may be noted, is set forth not only in the Environment
Code (PD 1152) and RA 9003, but in its charter as well. This duty of putting up a proper waste disposal system
cannot be characterized as discretionary, for, as earlier stated, discretion presupposes the power or right given
by law to public functionaries to act officially according to their judgment or conscience.
13
A discretionary duty is
one that "allows a person to exercise judgment and choose to perform or not to perform."
14
Any suggestion that
the MMDA has the option whether or not to perform its solid waste disposal-related duties ought to be
dismissed for want of legal basis.
A perusal of other petitioners respective charters or like enabling statutes and pertinent laws would yield this
conclusion: these government agencies are enjoined, as a matter of statutory obligation, to perform certain
functions relating directly or indirectly to the cleanup, rehabilitation, protection, and preservation of the Manila
Bay. They are precluded from choosing not to perform these duties. Consider:
(1) The DENR, under Executive Order No. (EO) 192,
15
is the primary agency responsible for the conservation,
management, development, and proper use of the countrys environment and natural resources. Sec. 19 of the
Philippine Clean Water Act of 2004 (RA 9275), on the other hand, designates the DENR as the primary
government agency responsible for its enforcement and implementation, more particularly over all aspects of
water quality management. On water pollution, the DENR, under the Acts Sec. 19(k), exercises jurisdiction "over
all aspects of water pollution, determine[s] its location, magnitude, extent, severity, causes and effects and
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other pertinent information on pollution, and [takes] measures, using available methods and technologies, to
prevent and abate such pollution."
The DENR, under RA 9275, is also tasked to prepare a National Water Quality Status Report, an Integrated Water
Quality Management Framework, and a 10-year Water Quality Management Area Action Plan which is
nationwide in scope covering the Manila Bay and adjoining areas. Sec. 19 of RA 9275 provides:
Sec. 19 Lead Agency.The [DENR] shall be the primary government agency responsible for the
implementation and enforcement of this Act x x x unless otherwise provided herein. As such, it shall
have the following functions, powers and responsibilities:
a) Prepare a National Water Quality Status report within twenty-four (24) months from the effectivity of
this Act: Provided, That the Department shall thereafter review or revise and publish annually, or as the
need arises, said report;
b) Prepare an Integrated Water Quality Management Framework within twelve (12) months following
the completion of the status report;
c) Prepare a ten (10) year Water Quality Management Area Action Plan within 12 months following the
completion of the framework for each designated water management area. Such action plan shall be
reviewed by the water quality management area governing board every five (5) years or as need arises.
The DENR has prepared the status report for the period 2001 to 2005 and is in the process of completing the
preparation of the Integrated Water Quality Management Framework.
16
Within twelve (12) months thereafter,
it has to submit a final Water Quality Management Area Action Plan.
17
Again, like the MMDA, the DENR should
be made to accomplish the tasks assigned to it under RA 9275.
Parenthetically, during the oral arguments, the DENR Secretary manifested that the DENR, with the assistance of
and in partnership with various government agencies and non-government organizations, has completed, as of
December 2005, the final draft of a comprehensive action plan with estimated budget and time frame,
denominated as Operation Plan for the Manila Bay Coastal Strategy, for the rehabilitation, restoration, and
rehabilitation of the Manila Bay.
The completion of the said action plan and even the implementation of some of its phases should more than
ever prod the concerned agencies to fast track what are assigned them under existing laws.
(2) The MWSS, under Sec. 3 of RA 6234,
18
is vested with jurisdiction, supervision, and control over all
waterworks and sewerage systems in the territory comprising what is now the cities of Metro Manila and
several towns of the provinces of Rizal and Cavite, and charged with the duty:
(g) To construct, maintain, and operate such sanitary sewerages as may be necessary for the proper
sanitation and other uses of the cities and towns comprising the System; x x x
(3) The LWUA under PD 198 has the power of supervision and control over local water districts. It can prescribe
the minimum standards and regulations for the operations of these districts and shall monitor and evaluate local
water standards. The LWUA can direct these districts to construct, operate, and furnish facilities and services for
the collection, treatment, and disposal of sewerage, waste, and storm water. Additionally, under RA 9275, the
LWUA, as attached agency of the DPWH, is tasked with providing sewerage and sanitation facilities, inclusive of
the setting up of efficient and safe collection, treatment, and sewage disposal system in the different parts of
the country.
19
In relation to the instant petition, the LWUA is mandated to provide sewerage and sanitation
facilities in Laguna, Cavite, Bulacan, Pampanga, and Bataan to prevent pollution in the Manila Bay.
194

(4) The Department of Agriculture (DA), pursuant to the Administrative Code of 1987 (EO 292),
20
is designated as
the agency tasked to promulgate and enforce all laws and issuances respecting the conservation and proper
utilization of agricultural and fishery resources. Furthermore, the DA, under the Philippine Fisheries Code of
1998 (RA 8550), is, in coordination with local government units (LGUs) and other concerned sectors, in charge of
establishing a monitoring, control, and surveillance system to ensure that fisheries and aquatic resources in
Philippine waters are judiciously utilized and managed on a sustainable basis.
21
Likewise under RA 9275, the DA
is charged with coordinating with the PCG and DENR for the enforcement of water quality standards in marine
waters.
22
More specifically, its Bureau of Fisheries and Aquatic Resources (BFAR) under Sec. 22(c) of RA 9275
shall primarily be responsible for the prevention and control of water pollution for the development,
management, and conservation of the fisheries and aquatic resources.
(5) The DPWH, as the engineering and construction arm of the national government, is tasked under EO 292
23
to
provide integrated planning, design, and construction services for, among others, flood control and water
resource development systems in accordance with national development objectives and approved government
plans and specifications.
In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to perform metro-wide services
relating to "flood control and sewerage management which include the formulation and implementation of
policies, standards, programs and projects for an integrated flood control, drainage and sewerage system."
On July 9, 2002, a Memorandum of Agreement was entered into between the DPWH and MMDA, whereby
MMDA was made the agency primarily responsible for flood control in Metro Manila. For the rest of the country,
DPWH shall remain as the implementing agency for flood control services. The mandate of the MMDA and
DPWH on flood control and drainage services shall include the removal of structures, constructions, and
encroachments built along rivers, waterways, and esteros (drainages) in violation of RA 7279, PD 1067, and
other pertinent laws.
(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast Guard Law of 1974, and Sec. 6 of PD
979,
24
or the Marine Pollution Decree of 1976, shall have the primary responsibility of enforcing laws, rules, and
regulations governing marine pollution within the territorial waters of the Philippines. It shall promulgate its
own rules and regulations in accordance with the national rules and policies set by the National Pollution
Control Commission upon consultation with the latter for the effective implementation and enforcement of PD
979. It shall, under Sec. 4 of the law, apprehend violators who:
a. discharge, dump x x x harmful substances from or out of any ship, vessel, barge, or any other floating
craft, or other man-made structures at sea, by any method, means or manner, into or upon the
territorial and inland navigable waters of the Philippines;
b. throw, discharge or deposit, dump, or cause, suffer or procure to be thrown, discharged, or deposited
either from or out of any ship, barge, or other floating craft or vessel of any kind, or from the shore,
wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description
whatever other than that flowing from streets and sewers and passing therefrom in a liquid state into
tributary of any navigable water from which the same shall float or be washed into such navigable
water; and
c. deposit x x x material of any kind in any place on the bank of any navigable water or on the bank of
any tributary of any navigable water, where the same shall be liable to be washed into such navigable
water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or
may be impeded or obstructed or increase the level of pollution of such water.
(7) When RA 6975 or the Department of the Interior and Local Government (DILG) Act of 1990 was signed into
law on December 13, 1990, the PNP Maritime Group was tasked to "perform all police functions over the
Philippine territorial waters and rivers." Under Sec. 86, RA 6975, the police functions of the PCG shall be taken
195

over by the PNP when the latter acquires the capability to perform such functions. Since the PNP Maritime
Group has not yet attained the capability to assume and perform the police functions of PCG over marine
pollution, the PCG and PNP Maritime Group shall coordinate with regard to the enforcement of laws, rules, and
regulations governing marine pollution within the territorial waters of the Philippines. This was made clear in
Sec. 124, RA 8550 or the Philippine Fisheries Code of 1998, in which both the PCG and PNP Maritime Group
were authorized to enforce said law and other fishery laws, rules, and regulations.
25

(8) In accordance with Sec. 2 of EO 513, the PPA is mandated "to establish, develop, regulate, manage and
operate a rationalized national port system in support of trade and national development."
26
Moreover, Sec. 6-c
of EO 513 states that the PPA has police authority within the ports administered by it as may be necessary to
carry out its powers and functions and attain its purposes and objectives, without prejudice to the exercise of
the functions of the Bureau of Customs and other law enforcement bodies within the area. Such police authority
shall include the following:
x x x x
b) To regulate the entry to, exit from, and movement within the port, of persons and vehicles, as well as
movement within the port of watercraft.
27

Lastly, as a member of the International Marine Organization and a signatory to the International Convention for
the Prevention of Pollution from Ships, as amended by MARPOL 73/78,
28
the Philippines, through the PPA, must
ensure the provision of adequate reception facilities at ports and terminals for the reception of sewage from the
ships docking in Philippine ports. Thus, the PPA is tasked to adopt such measures as are necessary to prevent the
discharge and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters
from vessels docked at ports and apprehend the violators. When the vessels are not docked at ports but within
Philippine territorial waters, it is the PCG and PNP Maritime Group that have jurisdiction over said vessels.
(9) The MMDA, as earlier indicated, is duty-bound to put up and maintain adequate sanitary landfill and solid
waste and liquid disposal system as well as other alternative garbage disposal systems. It is primarily responsible
for the implementation and enforcement of the provisions of RA 9003, which would necessary include its penal
provisions, within its area of jurisdiction.
29

Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that are frequently violated are dumping of
waste matters in public places, such as roads, canals or esteros, open burning of solid waste, squatting in open
dumps and landfills, open dumping, burying of biodegradable or non- biodegradable materials in flood-prone
areas, establishment or operation of open dumps as enjoined in RA 9003, and operation of waste management
facilities without an environmental compliance certificate.
Under Sec. 28 of the Urban Development and Housing Act of 1992 (RA 7279), eviction or demolition may be
allowed "when persons or entities occupy danger areas such as esteros, railroad tracks, garbage dumps,
riverbanks, shorelines, waterways, and other public places such as sidewalks, roads, parks and playgrounds."
The MMDA, as lead agency, in coordination with the DPWH, LGUs, and concerned agencies, can dismantle and
remove all structures, constructions, and other encroachments built in breach of RA 7279 and other pertinent
laws along the rivers, waterways, and esteros in Metro Manila. With respect to rivers, waterways, and esteros in
Bulacan, Bataan, Pampanga, Cavite, and Laguna that discharge wastewater directly or eventually into the Manila
Bay, the DILG shall direct the concerned LGUs to implement the demolition and removal of such structures,
constructions, and other encroachments built in violation of RA 7279 and other applicable laws in coordination
with the DPWH and concerned agencies.
(10) The Department of Health (DOH), under Article 76 of PD 1067 (the Water Code), is tasked to promulgate
rules and regulations for the establishment of waste disposal areas that affect the source of a water supply or a
reservoir for domestic or municipal use. And under Sec. 8 of RA 9275, the DOH, in coordination with the DENR,
DPWH, and other concerned agencies, shall formulate guidelines and standards for the collection, treatment,
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and disposal of sewage and the establishment and operation of a centralized sewage treatment system. In areas
not considered as highly urbanized cities, septage or a mix sewerage-septage management system shall be
employed.
In accordance with Sec. 72
30
of PD 856, the Code of Sanitation of the Philippines, and Sec. 5.1.1
31
of Chapter XVII
of its implementing rules, the DOH is also ordered to ensure the regulation and monitoring of the proper
disposal of wastes by private sludge companies through the strict enforcement of the requirement to obtain an
environmental sanitation clearance of sludge collection treatment and disposal before these companies are
issued their environmental sanitation permit.
(11) The Department of Education (DepEd), under the Philippine Environment Code (PD 1152), is mandated to
integrate subjects on environmental education in its school curricula at all levels.
32
Under Sec. 118 of RA 8550,
the DepEd, in collaboration with the DA, Commission on Higher Education, and Philippine Information Agency,
shall launch and pursue a nationwide educational campaign to promote the development, management,
conservation, and proper use of the environment. Under the Ecological Solid Waste Management Act (RA 9003),
on the other hand, it is directed to strengthen the integration of environmental concerns in school curricula at
all levels, with an emphasis on waste management principles.
33

(12) The Department of Budget and Management (DBM) is tasked under Sec. 2, Title XVII of the Administrative
Code of 1987 to ensure the efficient and sound utilization of government funds and revenues so as to effectively
achieve the countrys development objectives.
34

One of the countrys development objectives is enshrined in RA 9275 or the Philippine Clean Water Act of 2004.
This law stresses that the State shall pursue a policy of economic growth in a manner consistent with the
protection, preservation, and revival of the quality of our fresh, brackish, and marine waters. It also provides
that it is the policy of the government, among others, to streamline processes and procedures in the prevention,
control, and abatement of pollution mechanisms for the protection of water resources; to promote
environmental strategies and use of appropriate economic instruments and of control mechanisms for the
protection of water resources; to formulate a holistic national program of water quality management that
recognizes that issues related to this management cannot be separated from concerns about water sources and
ecological protection, water supply, public health, and quality of life; and to provide a comprehensive
management program for water pollution focusing on pollution prevention.
Thus, the DBM shall then endeavor to provide an adequate budget to attain the noble objectives of RA 9275 in
line with the countrys development objectives.
All told, the aforementioned enabling laws and issuances are in themselves clear, categorical, and complete as
to what are the obligations and mandate of each agency/petitioner under the law. We need not belabor the
issue that their tasks include the cleanup of the Manila Bay.
Now, as to the crux of the petition. Do Secs. 17 and 20 of the Environment Code encompass the cleanup of
water pollution in general, not just specific pollution incidents?
Secs. 17 and 20 of the Environment Code
Include Cleaning in General
The disputed sections are quoted as follows:
Section 17. Upgrading of Water Quality.Where the quality of water has deteriorated to a degree
where its state will adversely affect its best usage, the government agencies concerned shall take such
measures as may be necessary to upgrade the quality of such water to meet the prescribed water
quality standards.
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Section 20. Clean-up Operations.It shall be the responsibility of the polluter to contain, remove and
clean-up water pollution incidents at his own expense. In case of his failure to do so, the government
agencies concerned shall undertake containment, removal and clean-up operations and expenses
incurred in said operations shall be charged against the persons and/or entities responsible for such
pollution.
When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the subject, o, amended the counterpart
provision (Sec. 20) of the Environment Code (PD 1152). Sec. 17 of PD 1152 continues, however, to be
operational.
The amendatory Sec. 16 of RA 9275 reads:
SEC. 16. Cleanup Operations.Notwithstanding the provisions of Sections 15 and 26 hereof, any person
who causes pollution in or pollutes water bodies in excess of the applicable and prevailing standards
shall be responsible to contain, remove and clean up any pollution incident at his own expense to the
extent that the same water bodies have been rendered unfit for utilization and beneficial use: Provided,
That in the event emergency cleanup operations are necessary and the polluter fails to immediately
undertake the same, the [DENR] in coordination with other government agencies concerned, shall
undertake containment, removal and cleanup operations. Expenses incurred in said operations shall be
reimbursed by the persons found to have caused such pollution under proper administrative
determination x x x. Reimbursements of the cost incurred shall be made to the Water Quality
Management Fund or to such other funds where said disbursements were sourced.
As may be noted, the amendment to Sec. 20 of the Environment Code is more apparent than real since the
amendment, insofar as it is relevant to this case, merely consists in the designation of the DENR as lead agency
in the cleanup operations.
Petitioners contend at every turn that Secs. 17 and 20 of the Environment Code concern themselves only with
the matter of cleaning up in specific pollution incidents, as opposed to cleanup in general. They aver that the
twin provisions would have to be read alongside the succeeding Sec. 62(g) and (h), which defines the terms
"cleanup operations" and "accidental spills," as follows:
g. Clean-up Operations [refer] to activities conducted in removing the pollutants discharged or spilled in
water to restore it to pre-spill condition.
h. Accidental Spills [refer] to spills of oil or other hazardous substances in water that result from
accidents such as collisions and groundings.
Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely direct the government agencies
concerned to undertake containment, removal, and cleaning operations of a specific polluted portion or
portions of the body of water concerned. They maintain that the application of said Sec. 20 is limited only to
"water pollution incidents," which are situations that presuppose the occurrence of specific, isolated pollution
events requiring the corresponding containment, removal, and cleaning operations. Pushing the point further,
they argue that the aforequoted Sec. 62(g) requires "cleanup operations" to restore the body of water to pre-
spill condition, which means that there must have been a specific incident of either intentional or accidental
spillage of oil or other hazardous substances, as mentioned in Sec. 62(h).
As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g) as delimiting the application
of Sec. 20 to the containment, removal, and cleanup operations for accidental spills only. Contrary to
petitioners posture, respondents assert that Sec. 62(g), in fact, even expanded the coverage of Sec. 20.
Respondents explain that without its Sec. 62(g), PD 1152 may have indeed covered only pollution accumulating
from the day-to-day operations of businesses around the Manila Bay and other sources of pollution that slowly
accumulated in the bay. Respondents, however, emphasize that Sec. 62(g), far from being a delimiting provision,
198

in fact even enlarged the operational scope of Sec. 20, by including accidental spills as among the water
pollution incidents contemplated in Sec. 17 in relation to Sec. 20 of PD 1152.
To respondents, petitioners parochial view on environmental issues, coupled with their narrow reading of their
respective mandated roles, has contributed to the worsening water quality of the Manila Bay. Assuming,
respondents assert, that petitioners are correct in saying that the cleanup coverage of Sec. 20 of PD 1152 is
constricted by the definition of the phrase "cleanup operations" embodied in Sec. 62(g), Sec. 17 is not hobbled
by such limiting definition. As pointed out, the phrases "cleanup operations" and "accidental spills" do not
appear in said Sec. 17, not even in the chapter where said section is found.
Respondents are correct. For one thing, said Sec. 17 does not in any way state that the government agencies
concerned ought to confine themselves to the containment, removal, and cleaning operations when a specific
pollution incident occurs. On the contrary, Sec. 17 requires them to act even in the absence of a specific
pollution incident, as long as water quality "has deteriorated to a degree where its state will adversely affect its
best usage." This section, to stress, commands concerned government agencies, when appropriate, "to take
such measures as may be necessary to meet the prescribed water quality standards." In fine, the underlying
duty to upgrade the quality of water is not conditional on the occurrence of any pollution incident.
For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that it is properly applicable to
a specific situation in which the pollution is caused by polluters who fail to clean up the mess they left behind. In
such instance, the concerned government agencies shall undertake the cleanup work for the polluters account.
Petitioners assertion, that they have to perform cleanup operations in the Manila Bay only when there is a
water pollution incident and the erring polluters do not undertake the containment, removal, and cleanup
operations, is quite off mark. As earlier discussed, the complementary Sec. 17 of the Environment Code comes
into play and the specific duties of the agencies to clean up come in even if there are no pollution incidents
staring at them. Petitioners, thus, cannot plausibly invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of RA
9275 on the pretext that their cleanup mandate depends on the happening of a specific pollution incident. In
this regard, what the CA said with respect to the impasse over Secs. 17 and 20 of PD 1152 is at once valid as it is
practical. The appellate court wrote: "PD 1152 aims to introduce a comprehensive program of environmental
protection and management. This is better served by making Secs. 17 & 20 of general application rather than
limiting them to specific pollution incidents."
35

Granting arguendo that petitioners position thus described vis--vis the implementation of Sec. 20 is correct,
they seem to have overlooked the fact that the pollution of the Manila Bay is of such magnitude and scope that
it is well-nigh impossible to draw the line between a specific and a general pollution incident. And such
impossibility extends to pinpointing with reasonable certainty who the polluters are. We note that Sec. 20 of PD
1152 mentions "water pollution incidents" which may be caused by polluters in the waters of the Manila Bay
itself or by polluters in adjoining lands and in water bodies or waterways that empty into the bay. Sec. 16 of RA
9275, on the other hand, specifically adverts to "any person who causes pollution in or pollutes water bodies,"
which may refer to an individual or an establishment that pollutes the land mass near the Manila Bay or the
waterways, such that the contaminants eventually end up in the bay. In this situation, the water pollution
incidents are so numerous and involve nameless and faceless polluters that they can validly be categorized as
beyond the specific pollution incident level.
Not to be ignored of course is the reality that the government agencies concerned are so undermanned that it
would be almost impossible to apprehend the numerous polluters of the Manila Bay. It may perhaps not be
amiss to say that the apprehension, if any, of the Manila Bay polluters has been few and far between. Hence,
practically nobody has been required to contain, remove, or clean up a given water pollution incident. In this
kind of setting, it behooves the Government to step in and undertake cleanup operations. Thus, Sec. 16 of RA
9275, previously Sec. 20 of PD 1152, covers for all intents and purposes a general cleanup situation.
The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage of the long-term
solution. The preservation of the water quality of the bay after the rehabilitation process is as important as the
199

cleaning phase. It is imperative then that the wastes and contaminants found in the rivers, inland bays, and
other bodies of water be stopped from reaching the Manila Bay. Otherwise, any cleanup effort would just be a
futile, cosmetic exercise, for, in no time at all, the Manila Bay water quality would again deteriorate below the
ideal minimum standards set by PD 1152, RA 9275, and other relevant laws. It thus behooves the Court to put
the heads of the petitioner-department-agencies and the bureaus and offices under them on continuing notice
about, and to enjoin them to perform, their mandates and duties towards cleaning up the Manila Bay and
preserving the quality of its water to the ideal level. Under what other judicial discipline describes as "continuing
mandamus,"
36
the Court may, under extraordinary circumstances, issue directives with the end in view of
ensuring that its decision would not be set to naught by administrative inaction or indifference. In India, the
doctrine of continuing mandamus was used to enforce directives of the court to clean up the length of the
Ganges River from industrial and municipal pollution.
37

The Court can take judicial notice of the presence of shanties and other unauthorized structures which do not
have septic tanks along the Pasig-Marikina-San Juan Rivers, the National Capital Region (NCR) (Paraaque-
Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycuayan-Marilao-Obando
(Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers
and connecting waterways, river banks, and esteros which discharge their waters, with all the accompanying
filth, dirt, and garbage, into the major rivers and eventually the Manila Bay. If there is one factor responsible for
the pollution of the major river systems and the Manila Bay, these unauthorized structures would be on top of
the list. And if the issue of illegal or unauthorized structures is not seriously addressed with sustained resolve,
then practically all efforts to cleanse these important bodies of water would be for naught. The DENR Secretary
said as much.
38

Giving urgent dimension to the necessity of removing these illegal structures is Art. 51 of PD 1067 or the Water
Code,
39
which prohibits the building of structures within a given length along banks of rivers and other
waterways. Art. 51 reads:
The banks of rivers and streams and the shores of the seas and lakes throughout their entire length
and within a zone of three (3) meters in urban areas, twenty (20) meters in agricultural areas and forty
(40) meters in forest areas, along their margins, are subject to the easement of public use in the
interest of recreation, navigation, floatage, fishing and salvage. No person shall be allowed to stay in
this zone longer than what is necessary for recreation, navigation, floatage, fishing or salvage or to build
structures of any kind. (Emphasis added.)
Judicial notice may likewise be taken of factories and other industrial establishments standing along or near the
banks of the Pasig River, other major rivers, and connecting waterways. But while they may not be treated as
unauthorized constructions, some of these establishments undoubtedly contribute to the pollution of the Pasig
River and waterways. The DILG and the concerned LGUs, have, accordingly, the duty to see to it that non-
complying industrial establishments set up, within a reasonable period, the necessary waste water treatment
facilities and infrastructure to prevent their industrial discharge, including their sewage waters, from flowing
into the Pasig River, other major rivers, and connecting waterways. After such period, non-complying
establishments shall be shut down or asked to transfer their operations.
At this juncture, and if only to dramatize the urgency of the need for petitioners-agencies to comply with their
statutory tasks, we cite the Asian Development Bank-commissioned study on the garbage problem in Metro
Manila, the results of which are embodied in the The Garbage Book. As there reported, the garbage crisis in the
metropolitan area is as alarming as it is shocking. Some highlights of the report:
1. As early as 2003, three land-filled dumpsites in Metro Manila - the Payatas, Catmon and Rodriquez
dumpsites - generate an alarming quantity of lead and leachate or liquid run-off. Leachate are toxic
liquids that flow along the surface and seep into the earth and poison the surface and groundwater that
are used for drinking, aquatic life, and the environment.
200

2. The high level of fecal coliform confirms the presence of a large amount of human waste in the dump
sites and surrounding areas, which is presumably generated by households that lack alternatives to
sanitation. To say that Manila Bay needs rehabilitation is an understatement.
3. Most of the deadly leachate, lead and other dangerous contaminants and possibly strains of
pathogens seeps untreated into ground water and runs into the Marikina and Pasig River systems and
Manila Bay.
40

Given the above perspective, sufficient sanitary landfills should now more than ever be established as
prescribed by the Ecological Solid Waste Management Act (RA 9003). Particular note should be taken of the
blatant violations by some LGUs and possibly the MMDA of Sec. 37, reproduced below:
Sec. 37. Prohibition against the Use of Open Dumps for Solid Waste.No open dumps shall be
established and operated, nor any practice or disposal of solid waste by any person, including LGUs
which [constitute] the use of open dumps for solid waste, be allowed after the effectivity of this Act:
Provided, further that no controlled dumps shall be allowed (5) years following the effectivity of this
Act. (Emphasis added.)
RA 9003 took effect on February 15, 2001 and the adverted grace period of five (5) years which ended on
February 21, 2006 has come and gone, but no single sanitary landfill which strictly complies with the prescribed
standards under RA 9003 has yet been set up.
In addition, there are rampant and repeated violations of Sec. 48 of RA 9003, like littering, dumping of waste
matters in roads, canals, esteros, and other public places, operation of open dumps, open burning of solid
waste, and the like. Some sludge companies which do not have proper disposal facilities simply discharge sludge
into the Metro Manila sewerage system that ends up in the Manila Bay. Equally unabated are violations of Sec.
27 of RA 9275, which enjoins the pollution of water bodies, groundwater pollution, disposal of infectious wastes
from vessels, and unauthorized transport or dumping into sea waters of sewage or solid waste and of Secs. 4
and 102 of RA 8550 which proscribes the introduction by human or machine of substances to the aquatic
environment including "dumping/disposal of waste and other marine litters, discharge of petroleum or residual
products of petroleum of carbonaceous materials/substances [and other] radioactive, noxious or harmful liquid,
gaseous or solid substances, from any water, land or air transport or other human-made structure."
In the light of the ongoing environmental degradation, the Court wishes to emphasize the extreme necessity for
all concerned executive departments and agencies to immediately act and discharge their respective official
duties and obligations. Indeed, time is of the essence; hence, there is a need to set timetables for the
performance and completion of the tasks, some of them as defined for them by law and the nature of their
respective offices and mandates.
The importance of the Manila Bay as a sea resource, playground, and as a historical landmark cannot be over-
emphasized. It is not yet too late in the day to restore the Manila Bay to its former splendor and bring back the
plants and sea life that once thrived in its blue waters. But the tasks ahead, daunting as they may be, could only
be accomplished if those mandated, with the help and cooperation of all civic-minded individuals, would put
their minds to these tasks and take responsibility. This means that the State, through petitioners, has to take the
lead in the preservation and protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures is over. Petitioners must transcend their limitations, real
or imaginary, and buckle down to work before the problem at hand becomes unmanageable. Thus, we must
reiterate that different government agencies and instrumentalities cannot shirk from their mandates; they must
perform their basic functions in cleaning up and rehabilitating the Manila Bay. We are disturbed by petitioners
hiding behind two untenable claims: (1) that there ought to be a specific pollution incident before they are
required to act; and (2) that the cleanup of the bay is a discretionary duty.
201

RA 9003 is a sweeping piece of legislation enacted to radically transform and improve waste management. It
implements Sec. 16, Art. II of the 1987 Constitution, which explicitly provides that the State shall protect and
advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of
nature.
So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced and healthful ecology need
not even be written in the Constitution for it is assumed, like other civil and political rights guaranteed in the Bill
of Rights, to exist from the inception of mankind and it is an issue of transcendental importance with
intergenerational implications.
41
Even assuming the absence of a categorical legal provision specifically prodding
petitioners to clean up the bay, they and the men and women representing them cannot escape their obligation
to future generations of Filipinos to keep the waters of the Manila Bay clean and clear as humanly as possible.
Anything less would be a betrayal of the trust reposed in them.
WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R. CV No. 76528 and
SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil Case No. 1851-99 are AFFIRMED but with
MODIFICATIONS in view of subsequent developments or supervening events in the case. The fallo of the RTC
Decision shall now read:
WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-government agencies
to clean up, rehabilitate, and preserve Manila Bay, and restore and maintain its waters to SB level (Class
B sea waters per Water Classification Tables under DENR Administrative Order No. 34 [1990]) to make
them fit for swimming, skin-diving, and other forms of contact recreation.
In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible for the conservation,
management, development, and proper use of the countrys environment and natural resources, and Sec. 19 of
RA 9275, designating the DENR as the primary government agency responsible for its enforcement and
implementation, the DENR is directed to fully implement its Operational Plan for the Manila Bay Coastal
Strategy for the rehabilitation, restoration, and conservation of the Manila Bay at the earliest possible time. It is
ordered to call regular coordination meetings with concerned government departments and agencies to ensure
the successful implementation of the aforesaid plan of action in accordance with its indicated completion
schedules.
(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec. 25 of the Local
Government Code of 1991,
42
the DILG, in exercising the Presidents power of general supervision and its duty to
promulgate guidelines in establishing waste management programs under Sec. 43 of the Philippine Environment
Code (PD 1152), shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and Bataan to
inspect all factories, commercial establishments, and private homes along the banks of the major river systems
in their respective areas of jurisdiction, such as but not limited to the Pasig-Marikina-San Juan Rivers, the NCR
(Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-
Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and
other minor rivers and waterways that eventually discharge water into the Manila Bay; and the lands abutting
the bay, to determine whether they have wastewater treatment facilities or hygienic septic tanks as prescribed
by existing laws, ordinances, and rules and regulations. If none be found, these LGUs shall be ordered to require
non-complying establishments and homes to set up said facilities or septic tanks within a reasonable time to
prevent industrial wastes, sewage water, and human wastes from flowing into these rivers, waterways, esteros,
and the Manila Bay, under pain of closure or imposition of fines and other sanctions.
(3) As mandated by Sec. 8 of RA 9275,
43
the MWSS is directed to provide, install, operate, and maintain the
necessary adequate waste water treatment facilities in Metro Manila, Rizal, and Cavite where needed at the
earliest possible time.
202

(4) Pursuant to RA 9275,
44
the LWUA, through the local water districts and in coordination with the DENR, is
ordered to provide, install, operate, and maintain sewerage and sanitation facilities and the efficient and safe
collection, treatment, and disposal of sewage in the provinces of Laguna, Cavite, Bulacan, Pampanga, and
Bataan where needed at the earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550,
45
the DA, through the BFAR, is ordered to improve and restore the marine life
of the Manila Bay. It is also directed to assist the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan,
Pampanga, and Bataan in developing, using recognized methods, the fisheries and aquatic resources in the
Manila Bay.
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in accordance with Sec. 124 of
RA 8550, in coordination with each other, shall apprehend violators of PD 979, RA 8550, and other existing laws
and regulations designed to prevent marine pollution in the Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 513
46
and the International Convention for the Prevention of Pollution from
Ships, the PPA is ordered to immediately adopt such measures to prevent the discharge and dumping of solid
and liquid wastes and other ship-generated wastes into the Manila Bay waters from vessels docked at ports and
apprehend the violators.
(8) The MMDA, as the lead agency and implementor of programs and projects for flood control projects and
drainage services in Metro Manila, in coordination with the DPWH, DILG, affected LGUs, PNP Maritime Group,
Housing and Urban Development Coordinating Council (HUDCC), and other agencies, shall dismantle and
remove all structures, constructions, and other encroachments established or built in violation of RA 7279, and
other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers,
the Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros in Metro Manila. The
DPWH, as the principal implementor of programs and projects for flood control services in the rest of the
country more particularly in Bulacan, Bataan, Pampanga, Cavite, and Laguna, in coordination with the DILG,
affected LGUs, PNP Maritime Group, HUDCC, and other concerned government agencies, shall remove and
demolish all structures, constructions, and other encroachments built in breach of RA 7279 and other applicable
laws along the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River,
the Laguna De Bay, and other rivers, connecting waterways, and esteros that discharge wastewater into the
Manila Bay.
In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill, as prescribed by RA
9003, within a period of one (1) year from finality of this Decision. On matters within its territorial jurisdiction
and in connection with the discharge of its duties on the maintenance of sanitary landfills and like undertakings,
it is also ordered to cause the apprehension and filing of the appropriate criminal cases against violators of the
respective penal provisions of RA 9003,
47
Sec. 27 of RA 9275 (the Clean Water Act), and other existing laws on
pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one (1) year from finality of
this Decision, determine if all licensed septic and sludge companies have the proper facilities for the treatment
and disposal of fecal sludge and sewage coming from septic tanks. The DOH shall give the companies, if found to
be non-complying, a reasonable time within which to set up the necessary facilities under pain of cancellation of
its environmental sanitation clearance.
(10) Pursuant to Sec. 53 of PD 1152,
48
Sec. 118 of RA 8550, and Sec. 56 of RA 9003,
49
the DepEd shall integrate
lessons on pollution prevention, waste management, environmental protection, and like subjects in the school
curricula of all levels to inculcate in the minds and hearts of students and, through them, their parents and
friends, the importance of their duty toward achieving and maintaining a balanced and healthful ecosystem in
the Manila Bay and the entire Philippine archipelago.
203

(11) The DBM shall consider incorporating an adequate budget in the General Appropriations Act of 2010 and
succeeding years to cover the expenses relating to the cleanup, restoration, and preservation of the water
quality of the Manila Bay, in line with the countrys development objective to attain economic growth in a
manner consistent with the protection, preservation, and revival of our marine waters.
(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime Group,
DILG, and also of MWSS, LWUA, and PPA, in line with the principle of "continuing mandamus," shall, from
finality of this Decision, each submit to the Court a quarterly progressive report of the activities undertaken in
accordance with this Decision.
No costs.
SO ORDERED.




















204

G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M. ARANETA, IMEE
MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YIGUEZ and
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President, CONRADO F. ESTRELLA,
petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ, MIRIAM DEFENSOR SANTIAGO,
FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive Secretary,
Secretary of Justice, Immigration Commissioner, Secretary of National Defense and Chief of Staff, respectively,
respondents.
Before the Court is a contreversy of grave national importance. While ostensibly only legal issues are involved,
the Court's decision in this case would undeniably have a profound effect on the political, economic and other
aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-violent
"people power" revolution and forced into exile. In his stead, Corazon C. Aquino was declared President of the
Republic under a revolutionary government. Her ascension to and consilidation of power have not been
unchallenged. The failed Manila Hotel coup in 1986 led by political leaders of Mr. Marcos, the takeover of
television station Channel 7 by rebel troops led by Col. Canlas with the support of "Marcos loyalists" and the
unseccessful plot of the Marcos spouses to surreptitiously return from Hawii with mercenaries aboard an
aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987] awakened the nation to the
capacity of the Marcoses to stir trouble even from afar and to the fanaticism and blind loyalty of their followers
in the country. The ratification of the 1987 Constitution enshrined the victory of "people power" and also clearly
reinforced the constitutional moorings of Mrs. Aquino's presidency. This did not, however, stop bloody
challenges to the government. On August 28, 1987, Col. Gregorio Honasan, one of the major players in the
February Revolution, led a failed coup that left scores of people, both combatants and civilians, dead. There
were several other armed sorties of lesser significance, but the message they conveyed was the same a split
in the ranks of the military establishment that thraetened civilian supremacy over military and brought to the
fore the realization that civilian government could be at the mercy of a fractious military.
But the armed threats to the Government were not only found in misguided elements and among rabid
followers of Mr. Marcos. There are also the communist insurgency and the seccessionist movement in Mindanao
which gained ground during the rule of Mr. Marcos, to the extent that the communists have set up a parallel
government of their own on the areas they effectively control while the separatist are virtually free to move
about in armed bands. There has been no let up on this groups' determination to wrest power from the
govermnent. Not only through resort to arms but also to through the use of propaganda have they been
successful in dreating chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of the nation
attributed to Mr. Marcos and his cronies left the economy devastated. The efforts at economic recovery, three
years after Mrs. Aquino assumed office, have yet to show concrete results in alleviating the poverty of the
masses, while the recovery of the ill-gotten wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs. Aquino,
considering the dire consequences to the nation of his return at a time when the stability of government is
threatened from various directions and the economy is just beginning to rise and move forward, has stood
firmly on the decision to bar the return of Mr. Marcos and his family.
The Petition
205

This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into exile
after causing twenty years of political, economic and social havoc in the country and who within the short space
of three years seeks to return, is in a class by itself.
This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel documents
to Mr. Marcos and the immediate members of his family and to enjoin the implementation of the President's
decision to bar their return to the Philippines.
The Issue
Th issue is basically one of power: whether or not, in the exercise of the powers granted by the Constitution, the
President may prohibit the Marcoses from returning to the Philippines.
According to the petitioners, the resolution of the case would depend on the resolution of the following issues:
1. Does the President have the power to bar the return of former President Marcos and family
to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former President Marcos and his family
from returning to the Philippines, in the interest of "national security, public safety or public
health
a. Has the President made a finding that the return of former President Marcos and his family to
the Philippines is a clear and present danger to national security, public safety or public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been complied with in making such
finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be dispensed with, has the President's
decision, including the grounds upon which it was based, been made known to
petitioners so that they may controvert the same?
c. Is the President's determination that the return of former President Marcos and his family to
the Philippines is a clear and present danger to national security, public safety, or public health a
political question?
d. Assuming that the Court may inquire as to whether the return of former President Marcos
and his family is a clear and present danger to national security, public safety, or public health,
have respondents established such fact?
3. Have the respondents, therefore, in implementing the President's decision to bar the return
of former President Marcos and his family, acted and would be acting without jurisdiction, or in
excess of jurisdiction, or with grave abuse of discretion, in performing any act which would
effectively bar the return of former President Marcos and his family to the Philippines?
[Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.1
206

The case for petitioners is founded on the assertion that the right of the Marcoses to return to the Philippines is
guaranteed under the following provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be
provided by law.
The petitioners contend that the President is without power to impair the liberty of abode of the Marcoses
because only a court may do so "within the limits prescribed by law." Nor may the President impair their right to
travel because no law has authorized her to do so. They advance the view that before the right to travel may be
impaired by any authority or agency of the government, there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr. Marcos and his family to return to
the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and residence within the borders
of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the Philippines,
provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order (order public), public
health or morals or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.
On the other hand, the respondents' principal argument is that the issue in this case involves a political question
which is non-justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand E.
Marcos and his family have the right to travel and liberty of abode. Petitioners invoke these
constitutional rights in vacuo without reference to attendant circumstances.
207

Respondents submit that in its proper formulation, the issue is whether or not petitioners
Ferdinand E. Marcos and family have the right to return to the Philippines and reside here at this
time in the face of the determination by the President that such return and residence will
endanger national security and public safety.
It may be conceded that as formulated by petitioners, the question is not a political question as
it involves merely a determination of what the law provides on the matter and application
thereof to petitioners Ferdinand E. Marcos and family. But when the question is whether the
two rights claimed by petitioners Ferdinand E. Marcos and family impinge on or collide with the
more primordial and transcendental right of the State to security and safety of its nationals, the
question becomes political and this Honorable Court can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and
reestablish their residence here? This is clearly a justiciable question which this Honorable Court
can decide.
Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines and
reestablish their residence here even if their return and residence here will endanger national
security and public safety? this is still a justiciable question which this Honorable Court can
decide.
Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and
family shall return to the Philippines and establish their residence here? This is now a political
question which this Honorable Court can not decide for it falls within the exclusive authority and
competence of the President of the Philippines. [Memorandum for Respondents, pp. 9-11;
Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security over individual rights. In support
thereof, they cite Article II of the Constitution, to wit:
Section 4. The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment thereof, all
citizens may be required, under conditions provided by law, to render personal, military, or civil
service.
Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and
the promotion of the general welfare are essential for the enjoyment by all the people of the
blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and family from returning to the Philippines for
reasons of national security and public safety has international precedents. Rafael Trujillo of the Dominican
Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of Cuba, King Farouk
of Egypt, Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela were among
the deposed dictators whose return to their homelands was prevented by their governments. [See Statement of
Foreign Affairs Secretary Raul S. Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-
319.]
The parties are in agreement that the underlying issue is one of the scope of presidential power and its limits.
We, however, view this issue in a different light. Although we give due weight to the parties' formulation of the
issues, we are not bound by its narrow confines in arriving at a solution to the controversy.
208

At the outset, we must state that it would not do to view the case within the confines of the right to travel and
the import of the decisions of the U.S. Supreme Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt
1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the right to
travel and recognized exceptions to the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to travel from the Philippines to other
countries or within the Philippines. These are what the right to travel would normally connote. Essentially, the
right involved is the right to return to one's country, a totally distinct right under international law, independent
from although related to the right to travel. Thus, the Universal Declaration of Humans Rights and the
International Covenant on Civil and Political Rights treat the right to freedom of movement and abode within
the territory of a state, the right to leave a country, and the right to enter one's country as separate and distinct
rights. The Declaration speaks of the "right to freedom of movement and residence within the borders of each
state" [Art. 13(l)] separately from the "right to leave any country, including his own, and to return to his
country." [Art. 13(2).] On the other hand, the Covenant guarantees the "right to liberty of movement and
freedom to choose his residence" [Art. 12(l)] and the right to "be free to leave any country, including his own."
[Art. 12(2)] which rights may be restricted by such laws as "are necessary to protect national security, public
order, public health or morals or enter qqqs own country" of which one cannot be "arbitrarily deprived." [Art.
12(4).] It would therefore be inappropriate to construe the limitations to the right to return to one's country in
the same context as those pertaining to the liberty of abode and the right to travel.
The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights, which
treats only of the liberty of abode and the right to travel, but it is our well-considered view that the right to
return may be considered, as a generally accepted principle of international law and, under our Constitution, is
part of the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right
to travel and enjoys a different protection under the International Covenant of Civil and Political Rights, i.e.,
against being "arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the purpose of
effectively exercising the right to travel are not determinative of this case and are only tangentially material
insofar as they relate to a conflict between executive action and the exercise of a protected right. The issue
before the Court is novel and without precedent in Philippine, and even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or not there can be limitations on
the right to travel in the absence of legislation to that effect is rendered unnecessary. An appropriate case for its
resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain the methodology for its
resolution. Our resolution of the issue will involve a two-tiered approach. We shall first resolve whether or not
the President has the power under the Constitution, to bar the Marcoses from returning to the Philippines.
Then, we shall determine, pursuant to the express power of the Court under the Constitution in Article VIII,
Section 1, whether or not the President acted arbitrarily or with grave abuse of discretion amounting to lack or
excess of jurisdiction when she determined that the return of the Marcose's to the Philippines poses a serious
threat to national interest and welfare and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three great branches of government.
To recall the words of Justice Laurel in Angara v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution
has blocked but with deft strokes and in bold lines, allotment of power to the executive, the legislative and the
judicial departments of the government." [At 157.1 Thus, the 1987 Constitution explicitly provides that "[the
legislative power shall be vested in the Congress of the Philippines" Art VI, Sec. 11, "[t]he executive power shall
bevested in the President of the Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in one
Supreme Court and in such lower courts as may be established by law" [Art. VIII, Sec. 1.] These provisions not
209

only establish a separation of powers by actual division [Angara v. Electoral Commission, supra] but also confer
plenary legislative, executive and judicial powers subject only to limitations provided in the Constitution. For as
the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the legislative power
means a grant of all legislative power; and a grant of the judicial power means a grant of all the judicial power
which may be exercised under the government." [At 631-632.1 If this can be said of the legislative power which
is exercised by two chambers with a combined membership of more than two hundred members and of the
judicial power which is vested in a hierarchy of courts, it can equally be said of the executive power which is
vested in one official the President.
As stated above, the Constitution provides that "[t]he executive power shall be vested in the President of the
Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by executive power" although in the
same article it touches on the exercise of certain powers by the President, i.e., the power of control over all
executive departments, bureaus and offices, the power to execute the laws, the appointing power, the powers
under the commander-in-chief clause, the power to grant reprieves, commutations and pardons, the power to
grant amnesty with the concurrence of Congress, the power to contract or guarantee foreign loans, the power
to enter into treaties or international agreements, the power to submit the budget to Congress, and the power
to address Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the President did the framers of the
Constitution intend that the President shall exercise those specific powers and no other? Are these se
enumerated powers the breadth and scope of "executive power"? Petitioners advance the view that the
President's powers are limited to those specifically enumerated in the 1987 Constitution. Thus, they assert: "The
President has enumerated powers, and what is not enumerated is impliedly denied to her. Inclusion unius est
exclusio alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This argument brings to mind the institution
of the U.S. Presidency after which ours is legally patterned.**
Corwin, in his monumental volume on the President of the United States grappled with the same problem. He
said:
Article II is the most loosely drawn chapter of the Constitution. To those who think that a
constitution ought to settle everything beforehand it should be a nightmare; by the same token,
to those who think that constitution makers ought to leave considerable leeway for the future
play of political forces, it should be a vision realized.
We encounter this characteristic of Article 11 in its opening words: "The executive power shall
be vested in a President of the United States of America." . . .. [The President: Office and Powers,
17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different persons who held the office
from Washington to the early 1900's, and the swing from the presidency by commission to Lincoln's
dictatorship, he concluded that "what the presidency is at any particular moment depends in important
measure on who is President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it remained of course, an
agency of government subject to unvarying demands and duties no remained, of cas President.
But, more than most agencies of government, it changed shape, intensity and ethos according
to the man in charge. Each President's distinctive temperament and character, his values,
standards, style, his habits, expectations, Idiosyncrasies, compulsions, phobias recast the
WhiteHouse and pervaded the entire government. The executive branch, said Clark Clifford, was
a chameleon, taking its color from the character and personality of the President. The thrust of
the office, its impact on the constitutional order, therefore altered from President to President.
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Above all, the way each President understood it as his personal obligation to inform and involve
the Congress, to earn and hold the confidence of the electorate and to render an accounting to
the nation and posterity determined whether he strengthened or weakened the constitutional
order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, that the
consideration of tradition and the development of presidential power under the different constitutions are
essential for a complete understanding of the extent of and limitations to the President's powers under the 1987
Constitution. The 1935 Constitution created a strong President with explicitly broader powers than the U.S.
President. The 1973 Constitution attempted to modify the system of government into the parliamentary type,
with the President as a mere figurehead, but through numerous amendments, the President became even more
powerful, to the point that he was also the de facto Legislature. The 1987 Constitution, however, brought back
the presidential system of government and restored the separation of legislative, executive and judicial powers
by their actual distribution among three distinct branches of government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the
President is head of state as well as head of government and whatever powers inhere in such positions pertain
to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the
execution of the laws is only one of the powers of the President. It also grants the President other powers that
do not involve the execution of any provision of law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise of
specific powers of the President, it maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said to be limited only to the specific
powers enumerated in the Constitution. In other words, executive power is more than the sum of specific
powers so enumerated,
It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has
to be executive. Thus, in the landmark decision of Springer v. Government of the Philippine Islands, 277 U.S. 189
(1928), on the issue of who between the Governor-General of the Philippines and the Legislature may vote the
shares of stock held by the Government to elect directors in the National Coal Company and the Philippine
National Bank, the U.S. Supreme Court, in upholding the power of the Governor-General to do so, said:
...Here the members of the legislature who constitute a majority of the "board" and
"committee" respectively, are not charged with the performance of any legislative functions or
with the doing of anything which is in aid of performance of any such functions by the
legislature. Putting aside for the moment the question whether the duties devolved upon these
members are vested by the Organic Act in the Governor-General, it is clear that they are not
legislative in character, and still more clear that they are not judicial. The fact that they do not
fall within the authority of either of these two constitutes logical ground for concluding that they
do fall within that of the remaining one among which the powers of government are divided
....[At 202-203; Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent we find
reinforcement for the view that it would indeed be a folly to construe the powers of a branch of government to
embrace only what are specifically mentioned in the Constitution:
The great ordinances of the Constitution do not establish and divide fields of black and white.
Even the more specific of them are found to terminate in a penumbra shading gradually from
one extreme to the other. ....
xxx xxx xxx
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It does not seem to need argument to show that however we may disguise it by veiling words
we do not and cannot carry out the distinction between legislative and executive action with
mathematical precision and divide the branches into watertight compartments, were it ever so
desirable to do so, which I am far from believing that it is, or that the Constitution requires. [At
210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment is to serve and
protect the people" and that "[t]he maintenance of peace and order,the protection of life, liberty, and property,
and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of
democracy." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and order, the protection of life,
liberty and property, and the promotion of the general welfare are essentially ideals to guide governmental
action. But such does not mean that they are empty words. Thus, in the exercise of presidential functions, in
drawing a plan of government, and in directing implementing action for these plans, or from another point of
view, in making any decision as President of the Republic, the President has to consider these principles, among
other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the Philippines,
the President is, under the Constitution, constrained to consider these basic principles in arriving at a decision.
More than that, having sworn to defend and uphold the Constitution, the President has the obligation under the
Constitution to protect the people, promote their welfare and advance the national interest. It must be borne in
mind that the Constitution, aside from being an allocation of power is also a social contract whereby the people
have surrendered their sovereign powers to the State for the common good. Hence, lest the officers of the
Government exercising the powers delegated by the people forget and the servants of the people become
rulers, the Constitution reminds everyone that "[s]overeignty resides in the people and all government authority
emanates from them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who seek to return to the country are the
deposed dictator and his family at whose door the travails of the country are laid and from whom billions of
dollars believed to be ill-gotten wealth are sought to be recovered. The constitutional guarantees they invoke
are neither absolute nor inflexible. For the exercise of even the preferred freedoms of speech and ofexpression,
although couched in absolute terms, admits of limits and must be adjusted to the requirements of equally
important public interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the President's residual power to protect the
general welfare of the people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything not
forbidden by the Constitution or the laws that the needs of the nation demand [See Corwin, supra, at 153]. It is a
power borne by the President's duty to preserve and defend the Constitution. It also may be viewed as a power
implicit in the President's duty to take care that the laws are faithfully executed [see Hyman, The American
President, where the author advances the view that an allowance of discretionary power is unavoidable in any
government and is best lodged in the President].
More particularly, this case calls for the exercise of the President's powers as protector of the peace. Rossiter
The American Presidency].The power of the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State against external and internal threats
to its existence. The President is not only clothed with extraordinary powers in times of emergency, but is also
tasked with attending to the day-to-day problems of maintaining peace and order and ensuring domestic
tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in
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fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency
specified in the commander-in-chief provision. For in making the President commander-in-chief the
enumeration of powers that follow cannot be said to exclude the President's exercising as Commander-in- Chief
powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus or
declaring martial law, in order to keep the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the Marcose's from returning has been
recognized by memembers of the Legislature, and is manifested by the Resolution proposed in the House of
Representatives and signed by 103 of its members urging the President to allow Mr. Marcos to return to the
Philippines "as a genuine unselfish gesture for true national reconciliation and as irrevocable proof of our
collective adherence to uncompromising respect for human rights under the Constitution and our laws." [House
Resolution No. 1342, Rollo, p. 321.1 The Resolution does not question the President's power to bar the
Marcoses from returning to the Philippines, rather, it appeals to the President's sense of compassion to allow a
man to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses to be allowed to return to the
Philippines cannot be considered in the light solely of the constitutional provisions guaranteeing liberty of abode
and the right to travel, subject to certain exceptions, or of case law which clearly never contemplated situations
even remotely similar to the present one. It must be treated as a matter that is appropriately addressed to those
residual unstated powers of the President which are implicit in and correlative to the paramount duty residing in
that office to safeguard and protect general welfare. In that context, such request or demand should submit to
the exercise of a broader discretion on the part of the President to determine whether it must be granted or
denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
the Government." [Art. VIII, Sec. 1] Given this wording, we cannot agree with the Solicitor General that the issue
constitutes a political question which is beyond the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry into areas which the Court, under previous constitutions, would have normally left to the political
departments to decide. But nonetheless there remain issues beyond the Court's jurisdiction the determination
of which is exclusively for the President, for Congress or for the people themselves through a plebiscite or
referendum. We cannot, for example, question the President's recognition of a foreign government, no matter
how premature or improvident such action may appear. We cannot set aside a presidential pardon though it
may appear to us that the beneficiary is totally undeserving of the grant. Nor can we amend the Constitution
under the guise of resolving a dispute brought before us because the power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on the political question
doctrine. The deliberations of the Constitutional Commission cited by petitioners show that the framers
intended to widen the scope of judicial review but they did not intend courts of justice to settle all actual
controversies before them. When political questions are involved, the Constitution limits the determination to
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of the official whose action is being questioned. If grave abuse is not established, the Court will not substitute its
judgment for that of the official concerned and decide a matter which by its nature or by law is for the latter
alone to decide. In this light, it would appear clear that the second paragraph of Article VIII, Section 1 of the
Constitution, defining "judicial power," which specifically empowers the courts to determine whether or not
there has been a grave abuse of discretion on the part of any branch or instrumentality of the government,
incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42
SCRA 4481 that:]
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Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of
the writ of habeas corpus under specified conditions. Pursuant to the principle of separation of
powers underlying our system of government, the Executive is supreme within his own sphere.
However, the separation of powers, under the Constitution, is not absolute. What is more, it
goes hand in hand with the system of checks and balances, under which the Executive is
supreme, as regards the suspension of the privilege, but only if and when he acts within the
sphere alloted to him by the Basic Law, and the authority to determine whether or not he has so
acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally
supreme. In the exercise of such authority, the function of the Court is merely to check not to
supplant the Executive, or to ascertain merely whether he has gone beyond the constitutional
limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of
his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there exist factual bases for the President
to conclude that it was in the national interest to bar the return of the Marcoses to the Philippines. If such
postulates do exist, it cannot be said that she has acted, or acts, arbitrarily or that she has gravely abused her
discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed during the
briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security
Adviser, wherein petitioners and respondents were represented, there exist factual bases for the President's
decision..
The Court cannot close its eyes to present realities and pretend that the country is not besieged from within by a
well-organized communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab power,
urban terrorism, the murder with impunity of military men, police officers and civilian officials, to mention only
a few. The documented history of the efforts of the Marcose's and their followers to destabilize the country, as
earlier narrated in this ponencia bolsters the conclusion that the return of the Marcoses at this time would only
exacerbate and intensify the violence directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained. The military establishment has
given assurances that it could handle the threats posed by particular groups. But it is the catalytic effect of the
return of the Marcoses that may prove to be the proverbial final straw that would break the camel's back. With
these before her, the President cannot be said to have acted arbitrarily and capriciously and whimsically in
determining that the return of the Marcoses poses a serious threat to the national interest and welfare and in
prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of violence
against the State, that would be the time for the President to step in and exercise the commander-in-chief
powers granted her by the Constitution to suppress or stamp out such violence. The State, acting through the
Government, is not precluded from taking pre- emptive action against threats to its existence if, though still
nascent they are perceived as apt to become serious and direct. Protection of the people is the essence of the
duty of government. The preservation of the State the fruition of the people's sovereignty is an obligation in the
highest order. The President, sworn to preserve and defend the Constitution and to see the faithful execution
the laws, cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships
brought about by the plunder of the economy attributed to the Marcoses and their close associates and
relatives, many of whom are still here in the Philippines in a position to destabilize the country, while the
Government has barely scratched the surface, so to speak, in its efforts to recover the enormous wealth stashed
away by the Marcoses in foreign jurisdictions. Then, We cannot ignore the continually increasing burden
imposed on the economy by the excessive foreign borrowing during the Marcos regime, which stifles and
stagnates development and is one of the root causes of widespread poverty and all its attendant ills. The
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resulting precarious state of our economy is of common knowledge and is easily within the ambit of judicial
notice.
The President has determined that the destabilization caused by the return of the Marcoses would wipe away
the gains achieved during the past few years and lead to total economic collapse. Given what is within our
individual and common knowledge of the state of the economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or with grave
abuse of discretion in determining that the return of former President Marcos and his family at the present time
and under present circumstances poses a serious threat to national interest and welfare and in prohibiting their
return to the Philippines, the instant petition is hereby DISMISSED.
SO ORDERED.




















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G.R. No. 101949 December 1, 1994
THE HOLY SEE, petitioner,
vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of Makati, Branch 61 and
STARBRIGHT SALES ENTERPRISES, INC., respondents.
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside the Orders
dated June 20, 1991 and September 19, 1991 of the Regional Trial Court, Branch 61, Makati, Metro Manila in
Civil Case No. 90-183.
The Order dated June 20, 1991 denied the motion of petitioner to dismiss the complaint in Civil Case No. 90-183,
while the Order dated September 19, 1991 denied the motion for reconsideration of the June 20,1991 Order.
Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is represented in
the Philippines by the Papal Nuncio.
Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real estate
business.
This petition arose from a controversy over a parcel of land consisting of 6,000 square meters (Lot 5-A, Transfer
Certificate of Title No. 390440) located in the Municipality of Paraaque, Metro Manila and registered in the
name of petitioner.
Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title Nos. 271108
and 265388 respectively and registered in the name of the Philippine Realty Corporation (PRC).
The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the sellers.
Later, Licup assigned his rights to the sale to private respondent.
In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose as to who of
the parties has the responsibility of evicting and clearing the land of squatters. Complicating the relations of the
parties was the sale by petitioner of Lot 5-A to Tropicana Properties and Development Corporation (Tropicana).
I
On January 23, 1990, private respondent filed a complaint with the Regional Trial Court, Branch 61, Makati,
Metro Manila for annulment of the sale of the three parcels of land, and specific performance and damages
against petitioner, represented by the Papal Nuncio, and three other defendants: namely, Msgr. Domingo A.
Cirilos, Jr., the PRC and Tropicana (Civil Case No.
90-183).
The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner and the PRC, agreed to
sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price of P1,240.00 per square meters; (2) the agreement to sell
was made on the condition that earnest money of P100,000.00 be paid by Licup to the sellers, and that the
sellers clear the said lots of squatters who were then occupying the same; (3) Licup paid the earnest money to
Msgr. Cirilos; (4) in the same month, Licup assigned his rights over the property to private respondent and
informed the sellers of the said assignment; (5) thereafter, private respondent demanded from Msgr. Cirilos that
the sellers fulfill their undertaking and clear the property of squatters; however, Msgr. Cirilos informed private
respondent of the squatters' refusal to vacate the lots, proposing instead either that private respondent
undertake the eviction or that the earnest money be returned to the latter; (6) private respondent
counterproposed that if it would undertake the eviction of the squatters, the purchase price of the lots should
be reduced from P1,240.00 to P1,150.00 per square meter; (7) Msgr. Cirilos returned the earnest money of
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P100,000.00 and wrote private respondent giving it seven days from receipt of the letter to pay the original
purchase price in cash; (8) private respondent sent the earnest money back to the sellers, but later discovered
that on March 30, 1989, petitioner and the PRC, without notice to private respondent, sold the lots to Tropicana,
as evidenced by two separate Deeds of Sale, one over Lot 5-A, and another over Lots 5-B and 5-D; and that the
sellers' transfer certificate of title over the lots were cancelled, transferred and registered in the name of
Tropicana; (9) Tropicana induced petitioner and the PRC to sell the lots to it and thus enriched itself at the
expense of private respondent; (10) private respondent demanded the rescission of the sale to Tropicana and
the reconveyance of the lots, to no avail; and (11) private respondent is willing and able to comply with the
terms of the contract to sell and has actually made plans to develop the lots into a townhouse project, but in
view of the sellers' breach, it lost profits of not less than P30,000.000.00.
Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and the PRC on
the one hand, and Tropicana on the other; (2) the reconveyance of the lots in question; (3) specific performance
of the agreement to sell between it and the owners of the lots; and (4) damages.
On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the complaint petitioner for lack of
jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for being an improper party. An opposition
to the motion was filed by private respondent.
On June 20, 1991, the trial court issued an order denying, among others, petitioner's motion to dismiss after
finding that petitioner "shed off [its] sovereign immunity by entering into the business contract in question"
(Rollo, pp. 20-21).
On July 12, 1991, petitioner moved for reconsideration of the order. On August 30, 1991, petitioner filed a
"Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation for claim of Immunity as a
Jurisdictional Defense." So as to facilitate the determination of its defense of sovereign immunity, petitioner
prayed that a hearing be conducted to allow it to establish certain facts upon which the said defense is based.
Private respondent opposed this motion as well as the motion for reconsideration.
On October 1, 1991, the trial court issued an order deferring the resolution on the motion for reconsideration
until after trial on the merits and directing petitioner to file its answer (Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the privilege of sovereign
immunity only on its own behalf and on behalf of its official representative, the Papal Nuncio.
On December 9, 1991, a Motion for Intervention was filed before us by the Department of Foreign Affairs,
claiming that it has a legal interest in the outcome of the case as regards the diplomatic immunity of petitioner,
and that it "adopts by reference, the allegations contained in the petition of the Holy See insofar as they refer to
arguments relative to its claim of sovereign immunity from suit" (Rollo, p. 87).
Private respondent opposed the intervention of the Department of Foreign Affairs. In compliance with the
resolution of this Court, both parties and the Department of Foreign Affairs submitted their respective
memoranda.
II
A preliminary matter to be threshed out is the procedural issue of whether the petition for certiorari under Rule
65 of the Revised Rules of Court can be availed of to question the order denying petitioner's motion to dismiss.
The general rule is that an order denying a motion to dismiss is not reviewable by the appellate courts, the
remedy of the movant being to file his answer and to proceed with the hearing before the trial court. But the
general rule admits of exceptions, and one of these is when it is very clear in the records that the trial court has
no alternative but to dismiss the complaint (Philippine National Bank v. Florendo, 206 SCRA 582 [1992]; Zagada
217

v. Civil Service Commission, 216 SCRA 114 [1992]. In such a case, it would be a sheer waste of time and energy to
require the parties to undergo the rigors of a trial.
The other procedural question raised by private respondent is the personality or legal interest of the
Department of Foreign Affairs to intervene in the case in behalf of the Holy See (Rollo, pp. 186-190).
In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic
immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court
that said defendant is entitled to immunity.
In the United States, the procedure followed is the process of "suggestion," where the foreign state or the
international organization sued in an American court requests the Secretary of State to make a determination as
to whether it is entitled to immunity. If the Secretary of State finds that the defendant is immune from suit, he,
in turn, asks the Attorney General to submit to the court a "suggestion" that the defendant is entitled to
immunity. In England, a similar procedure is followed, only the Foreign Office issues a certification to that effect
instead of submitting a "suggestion" (O'Connell, I International Law 130 [1965]; Note: Immunity from Suit of
Foreign Sovereign Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]).
In the Philippines, the practice is for the foreign government or the international organization to first secure an
executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office
conveys its endorsement to the courts varies. In International Catholic Migration Commission v. Calleja, 190
SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and
Employment, informing the latter that the respondent-employer could not be sued because it enjoyed
diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign
Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked
the Secretary of Foreign Affairs to request the Solicitor General to make, in behalf of the Commander of the
United States Naval Base at Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor General
embodied the "suggestion" in a Manifestation and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this
Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department to file its
memorandum in support of petitioner's claim of sovereign immunity.
In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents
through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus
Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644 [1990] and companion cases).
In cases where the foreign states bypass the Foreign Office, the courts can inquire into the facts and make their
own determination as to the nature of the acts and transactions involved.
III
The burden of the petition is that respondent trial court has no jurisdiction over petitioner, being a foreign state
enjoying sovereign immunity. On the other hand, private respondent insists that the doctrine of non-suability is
not anymore absolute and that petitioner has divested itself of such a cloak when, of its own free will, it entered
into a commercial transaction for the sale of a parcel of land located in the Philippines.
A. The Holy See
Before we determine the issue of petitioner's non-suability, a brief look into its status as a sovereign state is in
order.
Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the Holy See,
was considered a subject of International Law. With the loss of the Papal States and the limitation of the
218

territory under the Holy See to an area of 108.7 acres, the position of the Holy See in International Law became
controversial (Salonga and Yap, Public International Law 36-37 [1992]).
In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive dominion
and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right of the Holy See to
receive foreign diplomats, to send its own diplomats to foreign countries, and to enter into treaties according to
International Law (Garcia, Questions and Problems In International Law, Public and Private 81 [1948]).
The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy See
absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field of
international relations" (O'Connell, I International Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested in the
Holy See or in the Vatican City. Some writers even suggested that the treaty created two international persons
the Holy See and Vatican City (Salonga and Yap, supra, 37).
The Vatican City fits into none of the established categories of states, and the attribution to it of "sovereignty"
must be made in a sense different from that in which it is applied to other states (Fenwick, International Law
124-125 [1948]; Cruz, International Law 37 [1991]). In a community of national states, the Vatican City
represents an entity organized not for political but for ecclesiastical purposes and international objects. Despite
its size and object, the Vatican City has an independent government of its own, with the Pope, who is also head
of the Roman Catholic Church, as the Holy See or Head of State, in conformity with its traditions, and the
demands of its mission in the world. Indeed, the world-wide interests and activities of the Vatican City are such
as to make it in a sense an "international state" (Fenwick, supra., 125; Kelsen, Principles of International Law 160
[1956]).
One authority wrote that the recognition of the Vatican City as a state has significant implication that it is
possible for any entity pursuing objects essentially different from those pursued by states to be invested with
international personality (Kunz, The Status of the Holy See in International Law, 46 The American Journal of
International Law 308 [1952]).
Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in
the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See that is the
international person.
The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See,
through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government
since 1957 (Rollo, p. 87). This appears to be the universal practice in international relations.
B. Sovereign Immunity
As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally accepted
principles of International Law. Even without this affirmation, such principles of International Law are deemed
incorporated as part of the law of the land as a condition and consequence of our admission in the society of
nations (United States of America v. Guinto, 182 SCRA 644 [1990]).
There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to
the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of
another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized
only with regard to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure
gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public International Law
194 [1984]).
219

Some states passed legislation to serve as guidelines for the executive or judicial determination when an act
may be considered as jure gestionis. The United States passed the Foreign Sovereign Immunities Act of 1976,
which defines a commercial activity as "either a regular course of commercial conduct or a particular
commercial transaction or act." Furthermore, the law declared that the "commercial character of the activity
shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather
than by reference to its purpose." The Canadian Parliament enacted in 1982 an Act to Provide For State
Immunity in Canadian Courts. The Act defines a "commercial activity" as any particular transaction, act or
conduct or any regular course of conduct that by reason of its nature, is of a "commercial character."
The restrictive theory, which is intended to be a solution to the host of problems involving the issue of sovereign
immunity, has created problems of its own. Legal treatises and the decisions in countries which follow the
restrictive theory have difficulty in characterizing whether a contract of a sovereign state with a private party is
an act jure gestionis or an act jure imperii.
The restrictive theory came about because of the entry of sovereign states into purely commercial activities
remotely connected with the discharge of governmental functions. This is particularly true with respect to the
Communist states which took control of nationalized business activities and international trading.
This Court has considered the following transactions by a foreign state with private parties as acts jure imperii:
(1) the lease by a foreign government of apartment buildings for use of its military officers (Syquia v. Lopez, 84
Phil. 312 [1949]; (2) the conduct of public bidding for the repair of a wharf at a United States Naval Station
(United States of America v. Ruiz, supra.); and (3) the change of employment status of base employees (Sanders
v. Veridiano, 162 SCRA 88 [1988]).
On the other hand, this Court has considered the following transactions by a foreign state with private parties as
acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of three restaurants, a cafeteria, a
bakery, a store, and a coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to American
servicemen and the general public (United States of America v. Rodrigo, 182 SCRA 644 [1990]); and (2) the
bidding for the operation of barber shops in Clark Air Base in Angeles City (United States of America v. Guinto,
182 SCRA 644 [1990]). The operation of the restaurants and other facilities open to the general public is
undoubtedly for profit as a commercial and not a governmental activity. By entering into the employment
contract with the cook in the discharge of its proprietary function, the United States government impliedly
divested itself of its sovereign immunity from suit.
In the absence of legislation defining what activities and transactions shall be considered "commercial" and as
constituting acts jure gestionis, we have to come out with our own guidelines, tentative they may be.
Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test.
Such an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in
the activity in the regular course of business. If the foreign state is not engaged regularly in a business or trade,
the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity,
or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit.
As held in United States of America v. Guinto, (supra):
There is no question that the United States of America, like any other state, will be deemed to
have impliedly waived its non-suability if it has entered into a contract in its proprietary or
private capacity. It is only when the contract involves its sovereign or governmental capacity
that no such waiver may be implied.
In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate business,
surely the said transaction can be categorized as an act jure gestionis. However, petitioner has denied that the
acquisition and subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said property
220

for the site of its mission or the Apostolic Nunciature in the Philippines. Private respondent failed to dispute said
claim.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not
for commercial purpose, but for the use of petitioner to construct thereon the official place of residence of the
Papal Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a receiving state,
necessary for the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna
Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the Philippine Senate and
entered into force in the Philippines on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action relating to private immovable property situated in the
territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the
mission. If this immunity is provided for a diplomatic envoy, with all the more reason should immunity be
recognized as regards the sovereign itself, which in this case is the Holy See.
The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a
governmental character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made it
almost impossible for petitioner to use it for the purpose of the donation. The fact that squatters have occupied
and are still occupying the lot, and that they stubbornly refuse to leave the premises, has been admitted by
private respondent in its complaint (Rollo, pp. 26, 27).
The issue of petitioner's non-suability can be determined by the trial court without going to trial in the light of
the pleadings, particularly the admission of private respondent. Besides, the privilege of sovereign immunity in
this case was sufficiently established by the Memorandum and Certification of the Department of Foreign
Affairs. As the department tasked with the conduct of the Philippines' foreign relations (Administrative Code of
1987, Book IV, Title I, Sec. 3), the Department of Foreign Affairs has formally intervened in this case and officially
certified that the Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the
Philippines exempt from local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic
mission or embassy in this country (Rollo, pp. 156-157). The determination of the executive arm of government
that a state or instrumentality is entitled to sovereign or diplomatic immunity is a political question that is
conclusive upon the courts (International Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]).
Where the plea of immunity is recognized and affirmed by the executive branch, it is the duty of the courts to
accept this claim so as not to embarrass the executive arm of the government in conducting the country's
foreign relations (World Health Organization v. Aquino, 48 SCRA 242 [1972]). As in International Catholic
Migration Commission and in World Health Organization, we abide by the certification of the Department of
Foreign Affairs.
Ordinarily, the procedure would be to remand the case and order the trial court to conduct a hearing to
establish the facts alleged by petitioner in its motion. In view of said certification, such procedure would
however be pointless and unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge Tirso Velasco, G.R. No.
109645, July 25, 1994).
IV
Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public
International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask
his own government to espouse his cause through diplomatic channels.
Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against
the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the validity of
its claims. Of course, the Foreign Office shall first make a determination of the impact of its espousal on the
221

relations between the Philippine government and the Holy See (Young, Remedies of Private Claimants Against
Foreign States, Selected Readings on Protection by Law of Private Foreign Investments 905, 919 [1964]). Once
the Philippine government decides to espouse the claim, the latter ceases to be a private cause.
According to the Permanent Court of International Justice, the forerunner of the International Court of Justice:
By taking up the case of one of its subjects and by reporting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own rights its right to
ensure, in the person of its subjects, respect for the rules of international law (The
Mavrommatis Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).
WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183 against petitioner
is DISMISSED.
SO ORDERED.




















222

G.R. No. 79253 March 1, 1993
UNITED STATES OF AMERICA and MAXINE BRADFORD, petitioners,
vs.
HON. LUIS R. REYES, as Presiding Judge of Branch 22, Regional Trial Court of Cavite, and NELIA T. MONTOYA,
respondents.
This is a petition for certiorari and prohibition under Rule 65 of the Rules of Court. Petitioners would have Us
annul and set aside, for having been issued with grave abuse of discretion amounting to lack of jurisdiction, the
Resolution of 17 July 1987 of Branch 22 of the Regional Trial Court (RTC) of Cavite in Civil Case No. 224-87. The
said resolution denied, for lack of merit, petitioners' motion to dismiss the said case and granted the private
respondent's motion for the issuance of a writ of preliminary attachment. Likewise sought to be set aside is the
writ of attachment subsequently issued by the RTC on 28 July 1987.
The doctrine of state immunity is at the core of this controversy.
The readings disclose the following material operative facts:
Private respondent, hereinafter referred to as Montoya, is an American citizen who, at the time material to this
case, was employed as an identification (I.D.) checker at the U.S. Navy Exchange (NEX) at the Joint United States
Military Assistance Group (JUSMAG) headquarters in Quezon City. She is married to one Edgardo H. Montoya, a
Filipino-American serviceman employed by the U.S. Navy and stationed in San Francisco, California. Petitioner
Maxine Bradford, hereinafter referred to as Bradford, is likewise an American citizen who was the activity
exchange manager at the said JUSMAG Headquarters.
As a consequence of an incident which occurred on 22 January 1987 whereby her body and belongings were
searched after she had bought some items from the retail store of the NEX JUSMAG, where she had purchasing
privileges, and while she was already at the parking area, Montoya filed on
7 May 1987 a complaint
1
with the Regional Trial Court of her place of residence Cavite against Bradford for
damages due to the oppressive and discriminatory acts committed by the latter in excess of her authority as
store manager of the NEX JUSMAG. The complaint, docketed as Civil Case No. 224-87 and subsequently raffled
off to Branch 22 at Imus, Cavite, alleges the following, material operative facts:
xxx xxx xxx
3. That on January 22, 1987, after working as the duty ID checker from 7:45 to 11:45 a.m.,
plaintiff went shopping and left the store at l2:00 noon of that day;
4. That on the way to her car while already outside the store, Mrs. Yong Kennedy, also an ID
checker, upon the instruction of the store manager, Ms. Maxine Bradford, approached plaintiff
and informed her that she needed to search her bags;
5. That plaintiff went to defendant, who was then outside the store talking to some men, to
protest the search but she was informed by the defendant that the search is to be made on all
Jusmag employees that day;
6. That the search was thereafter made on the person, car and bags of the plaintiff by Mrs. Yong
Kennedy in the presence of the defendant and numerous curious onlookers;
7. That having found nothing irregular on her person and belongings, plaintiff was allowed to
leave the premises;
223

8. That feeling aggrieved, plaintiff checked the records and discovered that she was the only one
whose person and belonging was (sic) searched that day contrary to defendant's allegation as
set forth in par. 5 hereof and as evidenced by the memorandum dated January 30, 1987 made
by other Filipino Jusmag employees, a photocopy of which is hereto attached as ANNEX "A" and
made integral (sic) part hereof:
9. That moreover, a check with Navy Exchange Security Manager, R.L. Roynon on January 27,
1987 was made and she was informed by Mr. Roynon that it is a matter of policy that customers
and employees of NEX Jusmag are not searched outside the store unless there is a very strong
evidence of a wrongdoing;
10. That plaintiff knows of no circumstances sufficient to trigger suspicion of a wrongdoing on
her part but on the other hand, is aware of the propensity of defendant to lay suspicion on
Filipinos for theft and/or shoplifting;
11. That plaintiff formally protested the illegal search on February 14, 1987 in a letter addressed
to Mr. R.L. Roynon, a photocopy of which is hereto attached as ANNEX "B" and made integral
(sic) part hereof; but no action was undertaken by the said officer;
12. That the illegal search on the person and belongings of the plaintiff in front of many people
has subjected the plaintiff to speculations of theft, shoplifting and such other wrongdoings and
has exposed her to contempt and ridicule which was caused her undue embarrassment and
indignity;
13. That since the act could not have been motivated by other (sic) reason than racial
discrimination in our own land, the act constitute (sic) a blow to our national pride and dignity
which has caused the plaintiff a feeling of anger for which she suffers sleepless nights and
wounded feelings;
14. That considering the above, plaintiff is entitled to be compensated by way of moral damages
in the amount of P500,000.00;
15. That to serve as a deterrent to those inclined to follow the oppressive act of the defendant,
exemplary damages in the amount of P100,000.00 should also be awarded.
2

She then prayed for judgment ordering Bradford to pay her P500,000.00 as moral damages, P100,000.00 as
exemplary damages and reasonable attorney's fees plus the costs of the suit.
3

Summons and a copy of the complaint were served on Bradford on 13 May 1987. In response thereto, she filed
two (2) motions for extension of time to file her Answer which were both granted by the trial court. The first was
filed through Atty. Miguel Famularcano, Jr., who asked for a 20-day extension from 28 May 1987. The second,
filed through the law firm of Luna, Sison and Manas, sought a 15-day extension from 17 June 1987.
4
Thus,
Bradford had up to 1 July 1987 to file her Answer. Instead of doing so, however, she, together with the
government of the United States of America (hereinafter referred to as the public petitioner), filed on 25 June
1987, also through the law firm of Luna, Sison and Manas, a Motion to Dismiss
5
based on the following grounds:
1) (This) action is in effect a suit against the United States of America, a foreign sovereign
immune from suit without its consent for the cause of action pleaded in the complaint; and
2) Defendant, Maxine Bradford, as manager of the US Navy Exchange Branch at JUSMAG,
Quezon City, is immune from suit for act(s) done by her in the performance of her official
functions under the Philippines-United States Military Assistance Agreement of 1947 and
Military Bases Agreement of 1947, as amended.
6

224

In support of the motion, the petitioners claimed that JUSMAG, composed of an Army, Navy and Air Group, had
been established under the Philippine-United States Military Assistance Agreement entered into on 21 March
1947 to implement the United States' program of rendering military assistance to the Philippines. Its
headquarters in Quezon City is considered a temporary installation under the provisions of Article XXI of the
Military Bases Agreement of 1947. Thereunder, "it is mutually agreed that the United States shall have the
rights, power and authority within the bases which are necessary for the establishment, use and operation and
defense thereof or appropriate for the control thereof." The 1979 amendment of the Military Bases Agreement
made it clear that the United States shall have "the use of certain facilities and areas within the bases and shall
have effective command and control over such facilities and over United States personnel, employees,
equipment and material." JUSMAG maintains, at its Quezon City headquarters, a Navy Exchange referred to as
the NEX-JUSMAG. Checking of purchases at the NEX is a routine procedure observed at base retail outlets to
protect and safeguard merchandise, cash and equipment pursuant to paragraphs 2 and 4(b) of NAVRESALEACT
SUBIC INST. 5500.1.
7
Thus, Bradford's order to have purchases of all employees checked on 22 January 1987 was
made in the exercise of her duties as Manager of the NEX-JUSMAG.
They further claimed that the Navy Exchange (NAVEX), an instrumentality of the U.S. Government, is considered
essential for the performance of governmental functions. Its mission is to provide a convenient and reliable
source, at the lowest practicable cost, of articles and services required for the well-being of Navy personnel, and
of funds to be used for the latter's welfare and recreation. Montoya's complaint, relating as it does to the
mission, functions and responsibilities of a unit of the United States Navy, cannot then be allowed. To do so
would constitute a violation of the military bases agreement. Moreover, the rights, powers and authority
granted by the Philippine government to the United States within the U.S. installations would be illusory and
academic unless the latter has effective command and control over such facilities and over American personnel,
employees, equipment and material. Such rights, power and authority within the bases can only be exercised by
the United States through the officers and officials of its armed forces, such as Bradford. Baer vs. Tizon
8
and
United States of America vs.
Ruiz
9
were invoked to support these claims.
On 6 July 1987, Montoya filed a motion for preliminary attachment
10
on the ground that Bradford was about to
depart from the country and was in the process of removing and/or disposing of her properties with intent to
defraud her creditors. On 14 July 1987, Montoya filed her opposition to the motion to dismiss
11
alleging therein
that the grounds proffered in the latter are bereft of merit because (a) Bradford, in ordering the search upon her
person and belongings outside the NEX JUSMAG store in the presence of onlookers, had committed an
improper, unlawful and highly discriminatory act against a Filipino employee and had exceeded the scope of her
authority; (b) having exceeded her authority, Bradford cannot rely on the sovereign immunity of the public
petitioner because her liability is personal; (c) Philippine courts are vested with jurisdiction over the case
because Bradford is a civilian employee who had committed the challenged act outside the U.S. Military Bases;
such act is not one of those exempted from the jurisdiction of Philippine courts; and (d) Philippine courts can
inquire into the factual circumstances of the case to determine whether or not Bradford had acted within or
outside the scope of her authority.
On 16 July 1987, public petitioner and Bradford filed a reply to Montoya's opposition and an opposition to the
motion for preliminary attachment.
12

On 17 July 1987,
13
the trial court
14
resolved both the motion to dismiss and the motion for preliminary
attachment in this wise:
On the motion to dismiss, the grounds and arguments interposed for the dismissal of this case
are determined to be not indubitable. Hence, the motion is denied for lack of merit.
The motion for preliminary attachment is granted in the interest of justice, upon the plaintiff's
filing of a bond in the sum of P50,000.00.
225

Upon Montoya's filing of the required bond, the trial court issued on 28 July 1987 an Order
15
decreeing the
issuance of a writ of attachment and directing the sheriff to serve the writ immediately at the expense of the
private respondent. The writ of attachment was issued on that same date.
16

Instead of filing a motion to reconsider the last two (2) orders, or an answer insofar as Bradford is concerned
both the latter and the public petitioner filed on 6 August 1987 the instant petition to annul and set aside the
above Resolution of 17 July 1987 and the writ of attachment issued pursuant thereto. As grounds therefor, they
allege that:
10. The respondent judge committed a grave abuse of discretion amounting to lack of
jurisdiction in denying the motion to dismiss the complaint in Civil Case No. 224-87 "for lack of
merit." For the action was in effect a suit against the United States of America, a foreign
sovereign immune from suit without its consent for the cause of action pleaded in the
complaint, while its co-petitioner was immune from suit for act(s) done by her in the
performance of her official functions as manager of the US Navy Exchange Branch at the
Headquarters of JUSMAG, under the Philippines-United States Military Assistance Agreement of
1947 and Military Bases Agreement of 1947, as amended.
17

On 5 August 1987, the trial court set Civil Case No. 224-87 for pre-trial and trial on 27 August 1987 at 9:30 a.m.
18

On 12 August 1987, this Court resolved to require the respondents to comment on the petition.
19

On 19 August 1987, petitioners filed with the trial court a Motion
to Suspend Proceedings
20
which the latter denied in its Order of 21 August 1987.
21

In the meantime, however, for failure to file an answer, Bradford was declared in default in Civil Case No. 224-87
and Montoya was allowed to present her evidence ex-parte.
22
She thus took the witness stand and presented
Mrs. Nam Thi Moore and Mrs. Miss Yu as her witnesses.
On 10 September 1987, the trial court rendered its decision
23
in Civil Case No. 224-87, the dispositive portion of
which reads:
Prescinding from the foregoing, it is hereby determined that the unreasonable search on the
plaintiff's person and bag caused (sic) done recklessly and oppressively by the defendant,
violated, impaired and undermined the plaintiff's liberty guaranteed by the Constitution,
entitling her to moral and exemplary damages against the defendant. The search has unduly
subjected the plaintiff to intense humiliation and indignities and had consequently ridiculed and
embarrassed publicly said plaintiff so gravely and immeasurably.
WHEREFORE, judgment is hereby rendered for the plaintiff and against the defendant Maxine
Bradford assessing the latter to pay unto the former the sums of P300,000.00 for moral
damages, P100,000.00 for exemplary damages and P50,000.00 for actual expenses and
attorney's fees.
No costs.
SO ORDERED.
24

Bradford received a copy of the decision on 21 September 1987. On that same date, she and the public
petitioner filed with this Court a Petition for Restraining Order
25
which sought to have the trial court's decision
vacated and to prevent the execution of the same; it was also prayed that the trial court be enjoined from
continuing with Civil Case No. 224-87. We noted this pleading in the Resolution of 23 September 1987.
26

226

In the meantime, since no motion for reconsideration or appeal had been interposed by Bradford challenging
the 10 September 1987 Decision which she had received on 21 September 1987, respondent Judge issued on 14
October 1987 an order directing that an entry of final judgment be made. A copy thereof was received by
Bradford on 21 October, 1987.
27

Also on 14 October 1987, Montoya filed her Comment with Opposition to the Petition for Restraining Order.
28

Respondent Judge had earlier filed his own Comment to the petition on 14 September 1987.
29

On 27 October 1987, Montoya filed before the trial court a motion for the execution of the Decision of 10
September 1987 which petitioners opposed on the ground that although this Court had not yet issued in this
case a temporary restraining order, it had nevertheless resolved to require the respondents to comment on the
petition. It was further averred that execution thereof would cause Bradford grave injury; moreover,
enforcement of a writ of execution may lead to regrettable incidents and unnecessarily complicate the situation
in view of the public petitioner's position on the issue of the immunity of its employees. In its Resolution of 11
November 1987, the trial court directed the issuance of a writ of execution.
30

Consequently, the petitioners filed on 4 December 1987, a Manifestation and Motion reciting the foregoing
incidents obtaining before the trial court and praying that their petition for a restraining order be resolved.
31

On 7 December 1987, this Court issued a Temporary Restraining Order "ENJOINING the respondents and the
Provincial Sheriff of Pasig, Metro Manila, from enforcing the Decision dated September 10, 1987, and the Writs
of Attachment and Execution issued in Civil Case No. 224-87."
32

On 28 November 1988, after the private respondent filed a Rejoinder to the Consolidated Reply to the
Comments filed by the petitioners, this Court gave due course to the petition and required the parties to submit
their respective memoranda-Petitioners filed their Memorandum on 8 February
1989
33
while private respondent filed her Memorandum on 14 November
1990.
34

The kernel issue presented in this case is whether or not the trial court committed grave abuse of discretion in
denying the motion to dismiss based on the following grounds: (a) the complaint in Civil Case No. 224-87 is in
effect a suit against the public petitioner, a foreign sovereign immune from suit which has not given consent to
such suit and (b) Bradford is immune from suit for acts done by her in the performance of her official functions
as manager of the U.S. Navy Exchange of JUSMAG pursuant to the Philippines-United States Military Assistance
Agreement of 1947 and the Military Bases Agreement of 1947, as amended.
Aside from maintaining the affirmative view, the public petitioner and Bradford even go further by asserting that
even if the latter's act were ultra vires she would still be immune from suit for the rule that public officers or
employees may be sued in their personal capacity for ultra vires and tortious acts is "domestic law" and not
applicable in International Law. It is claimed that the application of the immunity doctrine does not turn upon
the lawlessness of the act or omission attributable to the foreign national for if this were the case, the concept
of immunity would be meaningless as inquiry into the lawlessness or illegality of the act or omission would first
have to be made before considering the question of immunity; in other words, immunity will lie only if such act
or omission is found to be lawful.
On the other hand, Montoya submits that Bradford is not covered by the protective mantle of the doctrine of
sovereign immunity from suit as the latter is a mere civilian employee of JUSMAG performing non-governmental
and proprietary functions. And even assuming arguendo that Bradford is performing governmental functions,
she would still remain outside the coverage of the doctrine of state immunity since the act complained of is ultra
vires or outside the scope of her authority. What is being questioned is not the fact of search alone, but also the
manner in which the same was conducted as well as the fact of discrimination against Filipino employees.
Bradford's authority to order a search, it is asserted, should have been exercised with restraint and should have
been in accordance with the guidelines and procedures laid down by the cited "NAVRESALEACT, Subic Inst."
227

Moreover, ultra vires acts of a public officer or employee, especially tortious and criminal acts, are his private
acts and may not be considered as acts of the State. Such officer or employee alone is answerable for any
liability arising therefrom and may thus be proceeded against in his personal capacity.
Montoya further argues that both the acts and person of Bradford are not exempt from the Philippine courts'
jurisdiction because (a) the search was conducted in a parking lot at Scout Borromeo, Quezon City, outside the
JUSMAG store and, therefore, outside the territorial control of the U.S. Military Bases in the Philippines; (b)
Bradford does not possess diplomatic immunity under Article 16(b) of the 1953 Military Assistance Agreement
creating the JUSMAG which provides that only the Chief of the Military Advisory Group and not more than six (6)
other senior members thereof designated by him will be accorded diplomatic immunity;
35
and (c) the acts
complained of do not fall under those offenses where the U.S. has been given the right to exercise its jurisdiction
(per Article 13 of the 1947 Military Bases Agreement, as amended by the, Mendez-Blair Notes of 10 August
1965).
36

Finally, Montoya maintains that at the very least, Philippine courts may inquire into the factual circumstances of
the case to determine whether petitioner Bradford is immune from suit or exempt from Philippine jurisdiction.
To rule otherwise would render the Philippine courts powerless as they may be easily divested of their
jurisdiction upon the mere invocation of this principle of immunity from suit.
A careful review of the records of this case and a judicious scrutiny of the arguments of both parties yield
nothing but the weakness of the petitioners' stand. While this can be easily demonstrated, We shall first
consider some procedural matters.
Despite the fact that public petitioner was not impleaded as a defendant in Civil Case No. 224-87, it nevertheless
joined Bradford in the motion to dismiss on the theory that the suit was in effect against it without,
however, first having obtained leave of court to intervene therein. This was a procedural lapse, if not a
downright improper legal tack. Since it was not impleaded as an original party, the public petitioner could, on its
own volition, join in the case only by intervening therein; such intervention, the grant of which is discretionary
upon the court,
37
may be allowed only upon a prior motion for leave with notice to all the parties in the action.
Of course, Montoya could have also impleaded the public petitioner as an additional defendant by amending the
complaint if she so believed that the latter is an indispensible or necessary party.
Since the trial court entertained the motion to dismiss and the subsequent pleadings filed by the public
petitioner and Bradford, it may be deemed to have allowed the public petitioner to intervene. Corollarily,
because of its voluntary appearance, the public petitioner must be deemed to have submitted itself to the
jurisdiction of the trial court.
Moreover, the said motion does not specify any of the grounds for a motion to dismiss enumerated in Section 1,
Rule 16 of the Rules of Court. It merely recites state immunity on the part of the public petitioner and immunity
on the part of Bradford for the reason that the act imputed to her was done in the performance of her official
functions. The upshot of this contention is actually lack of cause of action a specific ground for dismissal
under the aforesaid Rule because assuming arguendo that Montoya's rights had been violated by the public
petitioner and Bradford, resulting in damage or injury to the former, both would not be liable therefor, and no
action may be maintained thereon, because of the principle of state immunity.
The test of the sufficiency of the facts to constitute a cause of action is whether or not, admitting the facts
alleged in the complaint, the court could render a valid judgment upon the same, in accordance with the prayer
in the complaint.
38

A motion to dismiss on the ground of failure to state a cause of action hypothetically admits the truth of the
allegations in the complaint.
228

In deciding a motion to dismiss, a court may grant, deny, allow amendments to the pleadings or defer the
hearing and determination of the same if the ground alleged does not appear to be indubitable.
39
In the instant
case, while the trial court concluded that "the grounds and arguments interposed for the dismissal" are not
"indubitable," it denied the motion for lack of merit. What the trial court should have done was to defer there
solution on the motion instead of denying it for lack of merit.
In any event, whatever may or should have been done, the public petitioner and Bradford were not expected to
accept the verdict, making their recourse to this Court via the instant petition inevitable. Thus, whether the trial
court should have deferred resolution on or denied outright the motion to dismiss for lack of merit is no longer
pertinent or relevant.
The complaint in Civil Case No. 224-87 is for damages arising from what Montoya describes as an "illegal search"
on her "person and belongings" conducted outside the JUSMAG premises in front of many people and upon the
orders of Bradford, who has the propensity for laying suspicion on Filipinos for theft or shoplifting. It is averred
that the said search was directed only against Montoya.
Howsoever viewed, it is beyond doubt that Montoya's cause of action is premised on the theory that the acts
complained of were committed by Bradford not only outside the scope of her authority or more specifically,
in her private capacity but also outside the territory where she exercises such authority, that is, outside the
NEX-JUSMAG particularly, at the parking area which has not been shown to form part of the facility of which
she was the manager. By their motion to dismiss, public petitioner and Bradford are deemed to have
hypothetically admitted the truth of the allegation in the complaint which support this theory.
The doctrine of state immunity and the exceptions thereto are summarized in Shauf vs. Court of Appeals,
40
thus:
I. The rule that a state may not be sued without its consent, now expressed in Article XVI Section
3, of the 1987 Constitution, is one of the generally accepted principles of international law that
we have adopted as part of the law of our land under Article II, Section 2. This latter provision
merely reiterates a policy earlier embodied in the 1935 and 1973 Constitutions and also
intended to manifest our resolve to abide by the rules of the international community.
41

While the doctrine appears to prohibit only suits against the state without its consent, it is also
applicable to complaints filed against officials of the state for acts allegedly performed by them
in the discharge of their duties. The rule is that if the judgment against such officials will require
the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the
amount needed to pay the damages awarded against them, the suit must be regarded as against
the state itself although it has not been formally impleaded.
42
It must be noted, however, that
the rule is not so all-encompassing as to be applicable under all circumstances.
It is a different matter where the public official is made to account in his capacity as such for
acts contrary to law and injurious to the rights of plaintiff. As was clearly set forth by Justice
Zaldivar in Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc., et al.
43

"Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of
government officials or officers are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by such acts, for the protection of his
rights, is not a suit against the State within the rule of immunity of the State from suit. In the
same tenor, it has been said that an action at law or suit in equity against a State officer or the
director of a State department on the ground that, while claiming to act or the State, he violates
or invades the personal and property rights of the plaintiff, under an unconstitutional act or
under an assumption of authority which he does not have, is not a suit against the State within
the constitutional provision that the State may not be sued without its consent."
44
The rationale
for this ruling is that the doctrinaire of state immunity cannot be used as an instrument for
perpetrating an injustice.
45

229

In the case of Baer, etc. vs. Tizon, etc., et al.,
46
it was ruled that:
There should be no misinterpretation of the scope of the decision reached by
this Court. Petitioner, as the Commander of the United States Naval Base in
Olongapo, does not possess diplomatic immunity. He may therefore be
proceeded against in his personal capacity, or when the action taken by him
cannot be imputed to the government which he represents.
Also, in Animos, et al. vs. Philippine Veterans Affairs Office, et al.,
47
we held that:
. . . it is equally well-settled that where a litigation may have adverse
consequences on the public treasury, whether in the disbursements of funds or
loss of property, the public official proceeded against not being liable in his
personal capacity, then the doctrine of non-suability may appropriately be
invoked. It has no application, however, where the suit against such a
functionary had to be instituted because of his failure to comply with the duty
imposed by statute appropriating public funds for the benefit of plaintiff or
petitioner. . . . .
The aforecited authorities are clear on the matter. They state that the doctrine of immunity
from suit will not apply and may not be invoked where the public official is being sued in his
private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers
and agents of the government is removed the moment they are sued in their individual capacity.
This situation usually arises where the public official acts without authority or in excess of the
powers vested in him. It is a well-settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have caused by his act done
with malice and in bad faith, or beyond the scope of his authority or jurisdiction.
48

The agents and officials of the United States armed forces stationed in Clark Air Base are no
exception to this rule. In the case of United States of America, et al. vs. Guinto, etc., et al., ante,
49
we declared:
It bears stressing at this point that the above observations do not confer on the
United States of America Blanket immunity for all acts done by it or its agents in
the Philippines. Neither may the other petitioners claim that they are also
insulated from suit in this country merely because they have acted as agents of
the United States in the discharge of their official functions.
Since it is apparent from the complaint that Bradford was sued in her private or personal capacity for acts
allegedly done beyond the scope and even beyond her place of official functions, said complaint is not then
vulnerable to a motion to dismiss based on the grounds relied upon by the petitioners because as a
consequence of the hypothetical admission of the truth of the allegations therein, the case falls within the
exception to the doctrine of state immunity.
In the recent cases of Williams vs. Rarang
50
and Minucher vs. Court of Appeals,
51
this Court reiterated this
exception. In the former, this Court observed:
There is no question, therefore, that the two (2) petitioners actively participated in screening
the features and articles in the POD as part of their official functions. Under the rule that U.S.
officials in the performance of their official functions are immune from suit, then it should
follow that petitioners may not be held liable for the questioned publication.
230

It is to be noted, however, that the petitioners were sued in their personal capacities for their
alleged tortious acts in publishing a libelous article.
The question, therefore, arises are American naval officers who commit a crime or tortious
act while discharging official functions still covered by the principle of state immunity from suit?
Pursuing the question further, does the grant of rights, power, and authority to the United
States under the RP-US Bases Treaty cover immunity of its officers from crimes and torts? Our
answer is No.
In the latter, even on the claim of diplomatic immunity which Bradford does not in fact pretend to have in the
instant case as she is not among those granted diplomatic immunity under Article 16(b) of the 1953 Military
Assistance Agreement creating the JUSMAG
52
this Court ruled:
Even Article 31 of the Vienna Convention on Diplomatic Relations admits of exceptions. It reads:
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the
receiving State. He shall also enjoy immunity from its civil and administrative
jurisdiction except in the case of:
xxx xxx xxx
(c) an action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving State outside
his official functions (Emphasis supplied).
There can be no doubt that on the basis of the allegations in the complaint, Montoya has a sufficient and viable
cause of action. Bradford's purported non-suability on the ground of state immunity is then a defense which
may be pleaded in the answer and proven at the trial.
Since Bradford did not file her Answer within the reglementary period, the trial court correctly declared her in
default upon motion of the private respondent. The judgment then rendered against her on 10 September 1987
after the ex parte reception of the evidence for the private respondent and before this Court issued the
Temporary Restraining Order on 7 December 1987 cannot be impugned. The filing of the instant petition and
the knowledge thereof by the trial court did not prevent the latter from proceeding with Civil Case No.
224-87. "It is elementary that the mere pendency of a special civil action for certiorari, commenced in relation to
a case pending before a lower Court, does not interrupt the course of the latter when there is no writ of
injunction restraining it."
53

WHEREFORE, the instant petition is DENIED for lack of merit. The Temporary Restraining Order of 7 December
1987 is hereby LIFTED.
Costs against petitioner Bradford.
SO ORDERED.




231