You are on page 1of 274

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.
Sycip, Salazar, Luna, Manalo and Feliciano for petitioners.
Emilio L. Baldia for respondents.
TEEHANKEE, J.:p
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." 1
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." 2
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."
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. 4
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, 5 and that court proceedings in the receiving or host State are
not the proper remedy in the case of abuse of diplomatic immunity. 6
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.
2

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, 7 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, 8 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. 9 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." 10
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" 11 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 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, 13 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 14 for
consultations between the Host State and the United Nations agency concerned to determine,
3

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. 15
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. 16
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.
4

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.
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.
Hector P. Teodosio for petitioner.
Cirilo Ganzon, Jr. for private respondents.

VITUG, J.:
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.
It is beyond question that petitioner SEAFDEC is an international agency enjoying diplomatic
immunity. This, we have already held in Southeast Asian Fisheries Development CenterAquaculture 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
6

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 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
7

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.
8

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.
G.R. No. 125865

March 26, 2001

JEFFREY LIANG (HUEFENG), petitioner,


vs.
PEOPLE OF THE PHILIPPINES, respondent.
RESOLUTION
YNARES-SANTIAGO, J.:
This resolves petitioner's Motion for Reconsideration of our Decision dated January 28, 2000,
denying the petition for review.
The Motion is anchored on the following arguments:
1) THE DFA'S DETERMINATION OF IMMUNITY IS A POLITICAL QUESTION TO BE MADE BY
THE EXECUTIVE BRANCH OF THE GOVERNMENT AND IS CONCLUSIVE UPON THE
COURTS.
2) THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS ABSOLUTE.
3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN DEVELOPMENT BANK (ADB).
4) DUE PROCESS WAS FULLY AFFORDED THE COMPLAINANT TO REBUT THE DFA
PROTOCOL.
5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY MADE A FINDING OF FACT ON
THE MERITS, NAMELY, THE SLANDERING OF A PERSON WHICH PREJUDGED
PETITIONER'S CASE BEFORE THE METROPOLITAN TRIAL COURT (MTC)-MANDALUYONG.
6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT APPLICABLE TO THIS
CASE.
This case has its origin in two criminal Informations 1 for grave oral defamation filed against
petitioner, a Chinese national who was employed as an Economist by the Asian Development
Bank (ADB), alleging that on separate occasions on January 28 and January 31, 1994,
petitioner allegedly uttered defamatory words to Joyce V. Cabal, a member of the clerical staff
of ADB. On April 13, 1994, the Metropolitan Trial Court of Mandaluyong City, acting pursuant
to an advice from the Department of Foreign Affairs that petitioner enjoyed immunity from
legal processes, dismissed the criminal Informations against him. On a petition for certiorari
9

and mandamus filed by the People, the Regional Trial Court of Pasig City, Branch 160,
annulled and set aside the order of the Metropolitan Trial Court dismissing the criminal cases. 2
Petitioner, thus, brought a petition for review with this Court. On January 28, 2000, we
rendered the assailed Decision denying the petition for review. We ruled, in essence, that the
immunity granted to officers and staff of the ADB is not absolute; it is limited to acts
performed in an official capacity. Furthermore, we held that the immunity cannot cover the
commission of a crime such as slander or oral defamation in the name of official duty.
On October 18, 2000, the oral arguments of the parties were heard. This Court also granted
the Motion for Intervention of the Department of Foreign Affairs. Thereafter, the parties were
directed to submit their respective memorandum.
For the most part, petitioner's Motion for Reconsideration deals with the diplomatic immunity
of the ADB, its officials and staff, from legal and judicial processes in the Philippines, as well
as the constitutional and political bases thereof. It should be made clear that nowhere in the
assailed Decision is diplomatic immunity denied, even remotely. The issue in this case, rather,
boils down to whether or not the statements allegedly made by petitioner were uttered while
in the performance of his official functions, in order for this case to fall squarely under the
provisions of Section 45 (a) of the "Agreement Between the Asian Development Bank and the
Government of the Republic of the Philippines Regarding the Headquarters of the Asian
Development Bank," to wit:
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.
After a careful deliberation of the arguments raised in petitioner's and intervenor's Motions for
Reconsideration, we find no cogent reason to disturb our Decision of January 28, 2000. As we
have stated therein, the slander of a person, by any stretch, cannot be considered as falling
within the purview of the immunity granted to ADB officers and personnel. Petitioner argues
that the Decision had the effect of prejudging the criminal case for oral defamation against
him. We wish to stress that it did not. What we merely stated therein is that slander, in
general, cannot be considered as an act performed in an official capacity. The issue of
whether or not petitioner's utterances constituted oral defamation is still for the trial court to
determine.
WHEREFORE, in view of the foregoing, the Motions for Reconsideration filed by petitioner and
intervenor Department of Foreign Affairs are DENIED with FINALITY.
SO ORDERED.
G.R. No. 206510

September 16, 2014

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV.
DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO,
CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO
10

M. REYES, JR., Bagong Alyansang Makabayan, HON. NERI JAVIER COLMENARES,


Bayan Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk VF A Movement,
TERESITA R. PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan Party-list, PETER
SJ. GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG,
Kilusang Mayo Uno, JOAN MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA,
THERESA A. CONCEPCION, MARY JOAN A. GUAN, NESTOR T. BAGUINON, PH.D., A.
EDSEL
F.
TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE
in his capacity as Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S.
AQUINO III in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines, HON. ALBERT F. DEL ROSARIO, Secretary, pepartment of Foreign
Affair.s, HON. PAQUITO OCHOA, JR., Executiv~.:Secretary, Office of the President, .
HON. VOLTAIRE T. GAZMIN, Secretary, Department of National Defense, HON.
RAMON JESUS P. P AJE, Secretary, Department of Environment and Natural Resoz!
rces, VICE ADMIRAL JOSE LUIS M. ALANO, Philippine Navy Flag Officer in Command,
Armed Forces of the Philippines, ADMIRAL RODOLFO D. ISO RENA, Commandant,
Philippine Coast Guard, COMMODORE ENRICO EFREN EVANGELISTA, Philippine
Coast Guard Palawan, MAJOR GEN. VIRGILIO 0. DOMINGO, Commandant of Armed
Forces of the Philippines Command and LT. GEN. TERRY G. ROBLING, US Marine
Corps Forces. Pacific and Balikatan 2013 Exercise Co-Director, Respondents.
DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a
Temporary Environmental Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC,
otherwise known as the Rules of Procedure for Environmental Cases (Rules), involving
violations of environmental laws and regulations in relation to the grounding of the US
military ship USS Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of southern Philippines)
language which means "long reef exposed at low tide." Tubbataha is composed of two huge
coral atolls - the north atoll and the south atoll - and the Jessie Beazley Reef, a smaller coral
structure about 20 kilometers north of the atolls. The reefs of Tubbataha and Jessie Beazley
are considered part of Cagayancillo, a remote island municipality of Palawan. 1
In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No. 306
issued by President Corazon C. Aquino on August 11, 1988. Located in the middle of Central
Sulu Sea, 150 kilometers southeast of Puerto Princesa City, Tubbataha lies at the heart of the
Coral Triangle, the global center of marine biodiversity.
11

In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and Cultural
Organization (UNESCO) as a World Heritage Site. It was recognized as one of the Philippines'
oldest ecosystems, containing excellent examples of pristine reefs and a high diversity of
marine life. The 97,030-hectare protected marine park is also an important habitat for
internationally threatened and endangered marine species. UNESCO cited Tubbataha's
outstanding universal value as an important and significant natural habitat for in situ
conservation of biological diversity; an example representing significant on-going ecological
and biological processes; and an area of exceptional natural beauty and aesthetic
importance.2
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067, 3 otherwise known as the
"Tubbataha Reefs Natural Park (TRNP) Act of 2009" "to ensure the protection and
conservation of the globally significant economic, biological, sociocultural, educational and
scientific values of the Tubbataha Reefs into perpetuity for the enjoyment of present and
future generations." Under the "no-take" policy, entry into the waters of TRNP is strictly
regulated and many human activities are prohibited and penalized or fined, including fishing,
gathering, destroying and disturbing the resources within the TRNP. The law likewise created
the Tubbataha Protected Area Management Board (TPAMB) which shall be the sole policymaking and permit-granting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In
December 2012, the US Embassy in the Philippines requested diplomatic clearance for the
said vessel "to enter and exit the territorial waters of the Philippines and to arrive at the port
of Subic Bay for the purpose of routine ship replenishment, maintenance, and crew
liberty."4 On January 6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving on January 13,
2013 after a brief stop for fuel in Okinawa, Japan.1wphi1
On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in
Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship
ran aground on the northwest side of South Shoal of the Tubbataha Reefs, about 80 miles
east-southeast of Palawan. No cine was injured in the incident, and there have been no
reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret
for the incident in a press statement.5 Likewise, US Ambassador to the Philippines Harry K.
Thomas, Jr., in a meeting at the Department of Foreign Affairs (DFA) on February 4, "reiterated
his regrets over the grounding incident and assured Foreign Affairs Secretazy Albert F. del
Rosario that the United States will provide appropriate compensation for damage to the reef
caused by the ship."6 By March 30, 2013, the US Navy-led salvage team had finished
removing the last piece of the grounded ship from the coral reef.
On April 1 7, 2013, the above-named petitioners on their behalf and in representation of their
respective sector/organization and others, including minors or generations yet unborn, filed
the present petition agairtst Scott H. Swift in his capacity as Commander of the US 7th Fleet,
12

Mark A. Rice in his capacity as Commanding Officer of the USS Guardian and Lt. Gen. Terry G.
Robling, US Marine Corps Forces, Pacific and Balikatan 2013 Exercises Co-Director ("US
respondents"); President Benigno S. Aquino III in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines (AFP), DF A Secretary Albert F. Del Rosario, Executive
Secretary Paquito Ochoa, Jr., Secretary Voltaire T. Gazmin (Department of National Defense),
Secretary Jesus P. Paje (Department of Environment and Natural Resources), Vice-Admiral Jose
Luis M. Alano (Philippine Navy Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena
(Philippine Coast Guard Commandant), Commodore Enrico Efren Evangelista (Philippine Coast
Guard-Palawan), and Major General Virgilio 0. Domingo (AFP Commandant), collectively the
"Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS
Guardian cause and continue to cause environmental damage of such magnitude as to affect
the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros
Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which events violate their
constitutional rights to a balanced and healthful ecology. They also seek a directive from this
Court for the institution of civil, administrative and criminal suits for acts committed in
violation of environmental laws and regulations in connection with the grounding incident.
Specifically, petitioners cite the following violations committed by US respondents under R.A.
No. 10067: unauthorized entry (Section 19); non-payment of conservation fees (Section 21 );
obstruction of law enforcement officer (Section 30); damages to the reef (Section 20); and
destroying and disturbing resources (Section 26[g]). Furthermore, petitioners assail certain
provisions of the Visiting Forces Agreement (VFA) which they want this Court to nullify for
being unconstitutional.
The numerous reliefs sought in this case are set forth in the final prayer of the petition, to wit:
WHEREFORE, in view of the foregoing, Petitioners respectfully pray that the Honorable Court:
1. Immediately issue upon the filing of this petition a Temporary Environmental Protection
Order (TEPO) and/or a Writ of Kalikasan, which shall, in particular,
a. Order Respondents and any person acting on their behalf, to cease and desist all
operations over the Guardian grounding incident;
b. Initially demarcating the metes and bounds of the damaged area as well as an
additional buffer zone;
c. Order Respondents to stop all port calls and war games under 'Balikatan' because of
the absence of clear guidelines, duties, and liability schemes for breaches of those
duties, and require Respondents to assume responsibility for prior and future
environmental damage in general, and environmental damage under the Visiting Forces
Agreement in particular.
13

d. Temporarily define and describe allowable activities of ecotourism, diving, recreation,


and limited commercial activities by fisherfolk and indigenous communities near or
around the TRNP but away from the damaged site and an additional buffer zone;
2. After summary hearing, issue a Resolution extending the TEPO until further orders of
the Court;
3. After due proceedings, render a Decision which shall include, without limitation:
a. Order Respondents Secretary of Foreign Affairs, following the dispositive portion of
Nicolas v. Romulo, "to forthwith negotiate with the United States representatives for the
appropriate agreement on [environmental guidelines and environmental accountability]
under Philippine authorities as provided in Art. V[] of the VFA ... "
b. Direct Respondents and appropriate agencies to commence administrative, civil, and
criminal proceedings against erring officers and individuals to the full extent of the law,
and to make such proceedings public;
c. Declare that Philippine authorities may exercise primary and exclusive criminal
jurisdiction over erring U.S. personnel under the circumstances of this case;
d. Require Respondents to pay just and reasonable compensation in the settlement of
all meritorious claims for damages caused to the Tubbataha Reef on terms and
conditions no less severe than those applicable to other States, and damages for
personal injury or death, if such had been the case;
e. Direct Respondents to cooperate in providing for the attendance of witnesses and in
the collection and production of evidence, including seizure and delivery of objects
connected with the offenses related to the grounding of the Guardian;
f. Require the authorities of the Philippines and the United States to notify each other of
the disposition of all cases, wherever heard, related to the grounding of the Guardian;
g. Restrain Respondents from proceeding with any purported restoration, repair,
salvage or post salvage plan or plans, including cleanup plans covering the damaged
area of the Tubbataha Reef absent a just settlement approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and LOU consultations in accordance
with the Local Government Code and R.A. 10067;
i. Require Respondent US officials and their representatives to place a deposit to the
TRNP Trust Fund defined under Section 17 of RA 10067 as a bona .fide gesture towards
full reparations;

14

j. Direct Respondents to undertake measures to rehabilitate the areas affected by the


grounding of the Guardian in light of Respondents' experience in the Port Royale
grounding in 2009, among other similar grounding incidents;
k. Require Respondents to regularly publish on a quarterly basis and in the name of
transparency and accountability such environmental damage assessment, valuation,
and valuation methods, in all stages of negotiation;
l. Convene a multisectoral technical working group to provide scientific and technical
support to the TPAMB;
m. Order the Department of Foreign Affairs, Department of National Defense, and the
Department of Environment and Natural Resources to review the Visiting Forces
Agreement and the Mutual Defense Treaty to consider whether their provisions allow for
the exercise of erga omnes rights to a balanced and healthful ecology and for damages
which follow from any violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of
protecting the damaged areas of TRNP;
o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction") and Article VI
of the Visiting Forces Agreement unconstitutional for violating equal protection and/or
for violating the preemptory norm of nondiscrimination incorporated as part of the law
of the land under Section 2, Article II, of the Philippine Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other respects;
and
4. Provide just and equitable environmental rehabilitation measures and such other
reliefs as are just and equitable under the premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed their comment 8 to the petition, petitioners also
filed a motion for early resolution and motion to proceed ex parte against the US
respondents.9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the application for a TEPO and ocular
inspection and production orders, respondents assert that: ( 1) the grounds relied upon for
the issuance of a TEPO or writ of Kalikasan have become fait accompli as the salvage
operations on the USS Guardian were already completed; (2) the petition is defective in form
and substance; (3) the petition improperly raises issues involving the VFA between the
Republic of the Philippines and the United States of America; and ( 4) the determination of the
15

extent of responsibility of the US Government as regards the damage to the Tubbataha Reefs
rests exdusively with the executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal standing of petitioners to file the
present petition.
Locus standi is "a right of appearance in a court of justice on a given question." 10 Specifically,
it is "a party's personal and substantial interest in a case where he has sustained or will
sustain direct injury as a result" of the act being challenged, and "calls for more than just a
generalized grievance."11 However, the rule on standing is a procedural matter which this
Court has relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers and legislators
when the public interest so requires, such as when the subject matter of the controversy is of
transcendental importance, of overreaching significance to society, or of paramount public
interest.12
In the landmark case of Oposa v. Factoran, Jr., 13 we recognized the "public right" of citizens to
"a balanced and healthful ecology which, for the first time in our constitutional history, is
solemnly incorporated in the fundamental law." We declared that the right to a balanced and
healthful ecology need not be written in the Constitution for it is assumed, like other civil and
polittcal 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.1wphi1 Such right
carries with it the correlative duty to refrain from impairing the environment. 14
On the novel element in the class suit filed by the petitioners minors in Oposa, this Court
ruled that not only do ordinary citizens have legal standing to sue for the enforcement of
environmental rights, they can do so in representation of their own and future generations.
Thus:
Petitioners minors assert that they represent their generation as well as generations yet
unborn. We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their personality to sue in
behalf of the succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a
right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature
means the created world in its entirety. Such rhythm and harmony indispensably include,
inter alia, the judicious disposition, utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources to the end that their exploration, development and utilization be equitably
accessible to the present a:: well as future generations. Needless to say, every generation
has a responsibility to the next to preserve that rhythm and harmony for the full 1:njoyment
of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right

16

to a sound environment constitutes, at the same time, the performance of their obligation to
ensure the protection of that right for the generations to come.15 (Emphasis supplied.)
The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and
generations yet unborn, is now enshrined in the Rules which allows the filing of a citizen suit
in environmental cases. The provision on citizen suits in the Rules "collapses the traditional
rule on personal and direct interest, on the principle that humans are stewards of nature."16
Having settled the issue of locus standi, we shall address the more fundamental question of
whether this Court has jurisdiction over the US respondents who did not submit any pleading
or manifestation in this case.
The immunity of the State from suit, known also as the doctrine of sovereign immunity or
non-suability of the State,17 is expressly provided in Article XVI of the 1987 Constitution which
states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto,18 we discussed the principle of state immunity
from suit, as follows:
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. x x x.
Even without such affirmation, we would still be bound by the generally accepted principles of
international law under the doctrine of incorporation. Under this doctrine, as accepted by the
majority of states, such principles are deemed incorporated in the law of every civilized state
as a condition and consequence of its membership in the society of nations. Upon its
admission to such society, the state is automatically obligated to comply with these principles
in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the justification given
by Justice Holmes that ''there can be no legal right against the authority which makes the law
on which the right depends." [Kawanakoa v. Polybank, 205 U.S. 349] There are other practical
reasons for the enforcement of the doctrine. In the case of the foreign state sought to be
impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in
parem, non habet imperium. All states are sovereign equals and cannot assert jurisdiction
over one another. A contrary disposition would, in the language of a celebrated case, "unduly
vex the peace of nations." [De Haber v. Queen of Portugal, 17 Q. B. 171]
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
17

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.
[Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, the state may move to dismiss the
comp.taint on the ground that it has been filed without its consent.19 (Emphasis supplied.)
Under the American Constitution, the doctrine is expressed in the Eleventh Amendment which
reads:
The Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals, 20 we further expounded on the immunity of
foreign states from the jurisdiction of local courts, as follows:
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 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. If the acts giving rise to a suit arc 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 soverr~ign equals and cannot assert jurisdiction over one another. The implication, in
broad terms, is that if the judgment against an official would rec 1uire 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.21 (Emphasis supplied.)
In the same case we also mentioned that in the case of diplomatic immunity, 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.22
In United States of America v. Judge Guinto,23 one of the consolidated cases therein involved a
Filipino employed at Clark Air Base who was arrested following a buy-bust operation
conducted by two officers of the US Air Force, and was eventually dismissed from his
employment when he was charged in court for violation of R.A. No. 6425. In a complaint for
damages filed by the said employee against the military officers, the latter moved to dismiss
the case on the ground that the suit was against the US Government which had not given its
consent. The RTC denied the motion but on a petition for certiorari and prohibition filed before
this Court, we reversed the RTC and dismissed the complaint. We held that petitioners US
military officers were acting in the exercise of their official functions when they conducted the
18

buy-bust operation against the complainant and thereafter testified against him at his trial. 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.
This traditional rule of State immunity which exempts a State from being sued in the courts of
another State without the former's consent or waiver has evolved into a restrictive doctrine
which distinguishes sovereign and governmental acts (Jure imperil") from private, commercial
and proprietary acts (Jure gestionis). Under the restrictive rule of State immunity, State
immunity extends only to acts Jure imperii. The restrictive application of State immunity is
proper only when the proceedings arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic affairs.24
In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity principle,
thus:
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 JustiGe
Zaldivar in Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc., et al. :
"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.
xxxx
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.26 (Emphasis supplied.) In this case, the US respondents were sued in their official
capacity as commanding officers of the US Navy who had control and supervision over the
USS Guardian and its crew. The alleged act or omission resulting in the unfortunate grounding
19

of the USS Guardian on the TRNP was committed while they we:re performing official military
duties. Considering that the satisfaction of a judgment against said officials will require
remedial actions and appropriation of funds by the US government, the suit is deemed to be
one against the US itself. The principle of State immunity therefore bars the exercise of
jurisdiction by this Court over the persons of respondents Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the
conduct of the US in this case, when its warship entered a restricted area in violation of R.A.
No. 10067 and caused damage to the TRNP reef system, brings the matter within the ambit of
Article 31 of the United Nations Convention on the Law of the Sea (UNCLOS). He explained
that while historically, warships enjoy sovereign immunity from suit as extensions of their flag
State, Art. 31 of the UNCLOS creates an exception to this rule in cases where they fail to
comply with the rules and regulations of the coastal State regarding passage through the
latter's internal waters and the territorial sea.
According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter
of long-standing policy the US considers itself bound by customary international rules on the
"traditional uses of the oceans" as codified in UNCLOS, as can be gleaned from previous
declarations by former Presidents Reagan and Clinton, and the US judiciary in the case of
United States v. Royal Caribbean Cruise Lines, Ltd.27
The international law of the sea is generally defined as "a body of treaty rules arid customary
norms governing the uses of the sea, the exploitation of its resources, and the exercise of
jurisdiction over maritime regimes. It is a branch of public international law, regulating the
relations of states with respect to the uses of the oceans." 28 The UNCLOS is a multilateral
treaty which was opened for signature on December 10, 1982 at Montego Bay, Jamaica. It
was ratified by the Philippines in 1984 but came into force on November 16, 1994 upon the
submission of the 60th ratification.
The UNCLOS is a product of international negotiation that seeks to balance State sovereignty
(mare clausum) and the principle of freedom of the high seas (mare liberum). 29 The freedom
to use the world's marine waters is one of the oldest customary principles of international
law.30 The UNCLOS gives to the coastal State sovereign rights in varying degrees over the
different zones of the sea which are: 1) internal waters, 2) territorial sea, 3) contiguous zone,
4) exclusive economic zone, and 5) the high seas. It also gives coastal States more or less
jurisdiction over foreign vessels depending on where the vessel is located.31
Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises
sovereignty, subject to the UNCLOS and other rules of international law. Such sovereignty
extends to the air space over the territorial sea as well as to its bed and subsoil. 32
In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy sovereign
immunity subject to the following exceptions:

20

Article
Non-compliance by warships with the laws and regulations of the coastal State

30

If any warship does not comply with the laws and regulations of the coastal State concerning
passage through the territorial sea and disregards any request for compliance therewith
which is made to it, the coastal State may require it to leave the territorial sea immediately.
Article
Responsibility of the flag State for damage caused by a warship

31

or other government ship operated for non-commercial purposes


The flag State shall bear international responsibility for any loss or damage to the coastal
State resulting from the non-compliance by a warship or other government ship operated for
non-commercial purposes with the laws and regulations of the coastal State concerning
passage through the territorial sea or with the provisions of this Convention or other rules of
international law.
Article
32
Immunities of warships and other government ships operated for non-commercial purposes
With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in
this Convention affects the immunities of warships and other government ships operated for
non-commercial purposes. (Emphasis supplied.) A foreign warship's unauthorized entry into
our internal waters with resulting damage to marine resources is one situation in which the
above provisions may apply. But what if the offending warship is a non-party to the UNCLOS,
as in this case, the US?
An overwhelming majority - over 80% -- of nation states are now members of UNCLOS, but
despite this the US, the world's leading maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS' negotiation and drafting, the
U.S. delegation ultimately voted against and refrained from signing it due to concerns over
deep seabed mining technology transfer provisions contained in Part XI. In a remarkable,
multilateral effort to induce U.S. membership, the bulk of UNCLOS member states cooperated
over the succeeding decade to revise the objection.able provisions. The revisions satisfied the
Clinton administration, which signed the revised Part XI implementing agreement in 1994. In
the fall of 1994, President Clinton transmitted UNCLOS and the Part XI implementing
agreement to the Senate requesting its advice and consent. Despite consistent support from
President Clinton, each of his successors, and an ideologically diverse array of stakeholders,
the Senate has since withheld the consent required for the President to internationally bind
the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the 108th and
110th Congresses, its progress continues to be hamstrung by significant pockets of political
21

ambivalence over U.S. participation in international institutions. Most recently, 111 th


Congress SFRC Chairman Senator John Kerry included "voting out" UNCLOS for full Senate
consideration among his highest priorities. This did not occur, and no Senate action has been
taken on UNCLOS by the 112th Congress.34
Justice Carpio invited our attention to the policy statement given by President Reagan on
March 10, 1983 that the US will "recognize the rights of the other , states in the waters off
their coasts, as reflected in the convention [UNCLOS], so long as the rights and freedom of
the United States and others under international law are recognized by such coastal states",
and President Clinton's reiteration of the US policy "to act in a manner consistent with its
[UNCLOS] provisions relating to traditional uses of the oceans and to encourage other
countries to do likewise." Since Article 31 relates to the "traditional uses of the oceans," and
"if under its policy, the US 'recognize[s] the rights of the other states in the waters off their
coasts,"' Justice Carpio postulates that "there is more reason to expect it to recognize the
rights of other states in their internal waters, such as the Sulu Sea in this case."
As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to join the
UN CLOS was centered on its disagreement with UN CLOS' regime of deep seabed mining
(Part XI) which considers the oceans and deep seabed commonly owned by mankind,"
pointing out that such "has nothing to do with its [the US'] acceptance of customary
international rules on navigation."
It may be mentioned that even the US Navy Judge Advocate General's Corps publicly
endorses the ratification of the UNCLOS, as shown by the following statement posted on its
official website:
The Convention is in the national interest of the United States because it establishes stable
maritime zones, including a maximum outer limit for territorial seas; codifies innocent
passage, transit passage, and archipelagic sea lanes passage rights; works against
"jurisdictiomtl creep" by preventing coastal nations from expanding their own maritime zones;
and reaffirms sovereign immunity of warships, auxiliaries anJ government aircraft.
xxxx
Economically, accession to the Convention would support our national interests by enhancing
the ability of the US to assert its sovereign rights over the resources of one of the largest
continental shelves in the world. Further, it is the Law of the Sea Convention that first
established the concept of a maritime Exclusive Economic Zone out to 200 nautical miles, and
recognized the rights of coastal states to conserve and manage the natural resources in this
Zone.35
We fully concur with Justice Carpio's view that non-membership in the UNCLOS does not mean
that the US will disregard the rights of the Philippines as a Coastal State over its internal
waters and territorial sea. We thus expect the US to bear "international responsibility" under
Art. 31 in connection with the USS Guardian grounding which adversely affected the
22

Tubbataha reefs. Indeed, it is difficult to imagine that our long-time ally and trading partner,
which has been actively supporting the country's efforts to preserve our vital marine
resources, would shirk from its obligation to compensate the damage caused by its warship
while transiting our internal waters. Much less can we comprehend a Government exercising
leadership in international affairs, unwilling to comply with the UNCLOS directive for all
nations to cooperate in the global task to protect and preserve the marine environment as
provided in Article 197, viz:
Article
Cooperation on a global or regional basis

197

States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or
through competent international organizations, in formulating and elaborating international
rules, standards and recommended practices and procedures consistent with this Convention,
for the protection and preservation of the marine environment, taking into account
characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute.
Although the said treaty upholds the immunity of warships from the jurisdiction of Coastal
States while navigating the.latter's territorial sea, the flag States shall be required to leave
the territorial '::;ea immediately if they flout the laws and regulations of the Coastal State,
and they will be liable for damages caused by their warships or any other government vessel
operated for non-commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise, they
invoke federal statutes in the US under which agencies of the US have statutorily waived their
immunity to any action. Even under the common law tort claims, petitioners asseverate that
the US respondents are liable for negligence, trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United States troops and personnel
visiting the Philippines to promote "common security interests" between the US and the
Philippines in the region. It provides for the guidelines to govern such visits of military
personnel, and further defines the rights of the United States and the Philippine government
in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies. 36 The invocation of US federal tort laws and
even common law is thus improper considering that it is the VF A which governs disputes
involving US military ships and crew navigating Philippine waters in pursuance of the
objectives of the agreement.
As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction and
not to special civil actions such as the present petition for issuance of a writ of Kalikasan. In
fact, it can be inferred from Section 17, Rule 7 of the Rules that a criminal case against a
person charged with a violation of an environmental law is to be filed separately:
23

SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the writ of
kalikasan shall not preclude the filing of separate civil, criminal or administrative actions.
In any case, it is our considered view that a ruling on the application or non-application of
criminal jurisdiction provisions of the VF A to US personnel who may be found responsible for
the grounding of the USS Guardian, would be premature and beyond the province of a
petition for a writ of Kalikasan. We also find it unnecessary at this point to determine whether
such waiver of State immunity is indeed absolute. In the same vein, we cannot grant
damages which have resulted from the violation of environmental laws. The Rules allows the
recovery of damages, including the collection of administrative fines under R.A. No. 10067, in
a separate civil suit or that deemed instituted with the criminal action charging the same
violation of an environmental law.37
Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for issuance of a
writ of Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for decision,
the court shall render judgment granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from committing acts or
neglecting the performance of a duty in violation of environmental laws resulting in
environmental destruction or damage;
(b) Directing the respondent public official, govemment agency, private person or entity
to protect, preserve, rehabilitate or restore the environment;
(c) Directing the respondent public official, government agency, private person or entity
to monitor strict compliance with the decision and orders of the court;
(d) Directing the respondent public official, government agency, or private person or
entity to make periodic reports on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced and healthful
ecology or to the protection, preservation, rehabilitation or restoration of the
environment, except the award of damages to individual petitioners. (Emphasis
supplied.)
We agree with respondents (Philippine officials) in asserting that this petition has become
moot in the sense that the salvage operation sought to be enjoined or restrained had already
been accomplished when petitioners sought recourse from this Court. But insofar as the
directives to Philippine respondents to protect and rehabilitate the coral reef stn icture and
marine habitat adversely affected by the grounding incident are concerned, petitioners are
entitled to these reliefs notwithstanding the completion of the removal of the USS Guardian
24

from the coral reef. However, we are mindful of the fact that the US and Philippine
governments both expressed readiness to negotiate and discuss the matter of compensation
for the damage caused by the USS Guardian. The US Embassy has also declared it is closely
coordinating with local scientists and experts in assessing the extent of the damage and
appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed by the Rules. As
can be gleaned from the following provisions, mediation and settlement are available for the
consideration of the parties, and which dispute resolution methods are encouraged by the
court, to wit:
RULE3
xxxx
SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court shall inquire
from the parties if they have settled the dispute; otherwise, the court shall immediately refer
the parties or their counsel, if authorized by their clients, to the Philippine Mediation Center
(PMC) unit for purposes of mediation. If not available, the court shall refer the case to the
clerk of court or legal researcher for mediation.
Mediation must be conducted within a non-extendible period of thirty (30) days from receipt
of notice of referral to mediation.
The mediation report must be submitted within ten (10) days from the expiration of the 30day period.
SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the continuance of
the pre-trial. Before the scheduled date of continuance, the court may refer the case to the
branch clerk of court for a preliminary conference for the following purposes:
(a) To assist the parties in reaching a settlement;
xxxx
SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and their
counsels under oath, and they shall remain under oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a settlement of the
dispute. The judge may issue a consent decree approving the agreement between the parties
in accordance with law, morals, public order and public policy to protect the right of the
people to a balanced and healthful ecology.
xxxx
25

SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to
compromise or settle in accordance with law at any stage of the proceedings before rendition
of judgment. (Underscoring supplied.)
The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser, the
USS Port Royal, ran aground about half a mile off the Honolulu Airport Reef Runway and
remained stuck for four days. After spending $6.5 million restoring the coral reef, the US
government was reported to have paid the State of Hawaii $8.5 million in settlement over
coral reef damage caused by the grounding.38
To underscore that the US government is prepared to pay appropriate compensation for the
damage caused by the USS Guardian grounding, the US Embassy in the Philippines has
announced the formation of a US interdisciplinary scientific team which will "initiate
discussions with the Government of the Philippines to review coral reef rehabilitation options
in Tubbataha, based on assessments by Philippine-based marine scientists." The US team
intends to "help assess damage and remediation options, in coordination with the Tubbataha
Management Office, appropriate Philippine government entities, non-governmental
organizations, and scientific experts from Philippine universities."39
A rehabilitation or restoration program to be implemented at the cost of the violator is also a
major relief that may be obtained under a judgment rendered in a citizens' suit under the
Rules, viz:
RULES
SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff proper
reliefs which shall include the protection, preservation or rehabilitation of the environment
and the payment of attorney's fees, costs of suit and other litigation expenses. It may also
require the violator to submit a program of rehabilitation or restoration of the environment,
the costs of which shall be borne by the violator, or to contribute to a special trust fund for
that purpose subject to the control of the court.1wphi1
In the light of the foregoing, the Court defers to the Executive Branch on the matter of
compensation and rehabilitation measures through diplomatic channels. Resolution of these
issues impinges on our relations with another State in the context of common security
interests under the VFA. It is settled that "[t]he conduct of the foreign relations of our
government is committed by the Constitution to the executive and legislative-"the political"
--departments of the government, and the propriety of what may be done in the exercise of
this political power is not subject to judicial inquiry or decision."40
On the other hand, we cannot grant the additional reliefs prayed for in the petition to order a
review of the VFA and to nullify certain immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, 41 the VFA was duly
concurred in by the Philippine Senate and has been recognized as a treaty by the United
26

States as attested and certified by the duly authorized representative of the United States
government. The VF A being a valid and binding agreement, the parties are required as a
matter of international law to abide by its terms and provisions. 42 The present petition under
the Rules is not the proper remedy to assail the constitutionality of its provisions.
WHEREFORE, the petition for the issuance of the privilege of the Writ of Kalikasan is hereby
DENIED.
No pronouncement as to costs.SO ORDERED.
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.
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the constitutionality of
Republic Act No. 95221(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
27

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 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 standiand (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.
28

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
Petitioners
Standi as Citizens

the

Threshold
Possess

Issues
Locus

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.17
The
Writs
of
Are
Proper
the Constitutionality of Statutes

Certiorari
Remedies

and
to

Prohibition
Test

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.18
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,19 and indeed, of acts of other branches of government. 20Issues of constitutional
import are sometimes crafted out of statutes which, while having no bearing on the personal
29

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
RA
9522
is
to
Demarcate
Maritime
Zones
Shelf
Under
UNCLOS
Delineate Philippine Territory

Not
a
the
and
III,

Unconstitutional
Statutory
Tool
Countrys
Continental
not
to

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.22
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,
30

fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and 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." 24
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,25 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.26
RA
9522s
of
Regime
Maritime
Zones
Scarborough
with
the
Over these Areas

Use

of

the
Framework
of
Islands
to
Determine
the
of
the
KIG
and
the
Shoal,
not
Inconsistent
Philippines
Claim
of
Sovereignty

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:29
31

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
waters
166,858

171,435

Territorial
Sea

32,106

274,136

Exclusive
Economic
Zone
TOTAL

382,669
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.30

32

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
33

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.31
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.34 (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.
34

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 47.35
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.37
Statutory
RA 5446 Retained

Claim

Over

Sabah

under

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
Incompatible
with
Delineation of Internal Waters

RA
the

9522

not
Constitutions

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.
35

xxxx
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.41
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.44 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.
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.47
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." 49Article II provisions serve as guides
in formulating and interpreting implementing legislation, as well as in interpreting executory
provisions of the Constitution. Although Oposa v. Factoran50 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
251 ) and subsistence fishermen (Article XIII, Section 752 ), are not violated by RA 9522.
36

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 twofronted 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.
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.
DECISION
SANDOVAL-GUTIERREZ, J.:
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),
37

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 andmandamus 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.

38

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 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.

39

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.
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.

40

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 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.
41

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-Sioco5 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
42

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 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. 8 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.10 It is sui generis, tracing its existence wholly to treaty
obligations between different nations.11 It is not a trial to determine the guilt or
innocence of the potential extraditee. 12 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.14
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.
43

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 Purganancorrectly 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. 15 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.
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.
44

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.
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.
DECISION
QUISUMBING, J.:
Before us is a special civil action for certiorari and prohibition directed against the Orders
dated May 7, 20031 and May 9, 20032 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, 3 shall be subject to whatever ruling that this Court may have in
the similar case of Mark Jimenez entitledGovernment of the United States of America v.
Purganan,4 docketed as G.R No. 148571. In compliance with our directive, the trial court,
45

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.
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?

46

Petitioners assert that their bail cannot be cancelled without due process of law. By way of
analogy, they point to Rule 114, Section 218 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
47

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 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 hearingbefore 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 noflight 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 holddeparture 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.

48

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.17
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, 19 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.20
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.
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.
DECISION
AZCUNA, J:
49

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 partydefendant in the Philippines. The said motion further alleged that Ambassador Soeratmin and
50

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."
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 CAG.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
51

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.17
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 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
52

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:
xxx
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.
xxx
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.
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.

53

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.
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.
DECISION
TINGA, J.:
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 familiesespecially 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.
54

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,
- 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,
55

- 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;
xxx
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;
(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,

56

- 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[5 ] (GTZ[6 ]) 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;"8 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 Insurance
Networking 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
letter14 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.
57

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 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.17Negotiations 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
58

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
Decision21 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.
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

59

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 26dismissing 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.
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
60

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.
61

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.
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
62

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.
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
63

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:
64

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:

65

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 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
66

"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 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.
G.R. No. 148571

September 24, 2002

67

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
Davide Jr., CJ, Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Morales and Callejo, Sr.
DECISION
PANGANIBAN, J.:
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 2 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." 4
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. 5
68

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. 8
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.
69

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. 12
Hence, this Petition. 13
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.
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.
70

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 17 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 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
71

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 22 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."
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.
72

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. 25Since 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 27 by
facilitating the arrest and the custodial transfer 28 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." 30 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. 31
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." 32
In Secretary v. Lantion 33 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
73

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
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, 36 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.
xxxxxxxxx
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
74

of that jurisdiction.38 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. 39
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 40 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. Such failure would discourage other states from
entering into treaties with us, particularly an extradition treaty that hinges on reciprocity. 41
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
Before the Issuance of a Warrant of Arrest?

Notice

and

Hearing

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
75

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 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, 46 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.
76

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." 50

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. 51
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 52 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 ." 53
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
77

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." 55
In Webb v. De Leon, 56 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. 57 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,
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.

78

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 58 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 59 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.
79

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 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
80

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 exist in
a vacuum; the due process rights accorded to individuals must be carefully balanced against
exigent and palpable government interests." 66
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)
81

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, 72 the Court
has already debunked the disenfranchisement argument when it ruled thus:
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
82

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
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.
83

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.

84

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,
85

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 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.
G.R. No. 142396

February 11, 2003

KHOSROW MINUCHER, petitioner,


vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.
86

DECISION
VITUG, J.:
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
87

[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 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
88

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 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
89

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:

90

"`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
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
91

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
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,
92

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.8Traditionally, 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 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
93

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
94

"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 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."17Supplementary 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.
95

The precept that a State cannot be sued in the courts of a foreign state is a longstanding 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, 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,
Appeals26 elaborates:

however,

has

its

limitations.

Thus,

Shauf

vs.

Court

of

"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
96

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.
97

WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.SO ORDERED.


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.

TORRES, JR., J.:p


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.);

98

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, 1under 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.
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

99

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.
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. M1007) 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.

100

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
101

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, 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.
102

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:
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 Memorandum10 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
103

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
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.

104

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 17 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, 20directing, 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

105

4. The Philippine International Trading Corporation shall participate in all official


trade and economic discussions between the Philippines and other centrallyplanned economy countries.
xxx xxx xxx
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.
21
133 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
106

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.
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.

107

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. 27 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.
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
108

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).
109

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.:
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:

110

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 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.

111

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. 37
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 89-0801 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.
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.
DECISION
TINGA, J.:
Before this Court is a
Temporary Restraining
(PCGG) to restrain and
Case No. 0164, and to

Petition for Certiorari and Prohibition with Prayer for Issuance of a


Order filed by the Presidential Commission on Good Government
enjoin respondent Sandiganbayan from further proceeding with Civil
declare null and void the Resolutions of the Sandiganbayan (Second
112

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 complaint8 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 pretrial scheduled on said date in deference to whatever action the Court may take on this
petition.14
113

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 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
114

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 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.
115

] 3 par. 1 IRSG28 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:
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
116

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.43There, 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
117

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.
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

118

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) Requests49 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 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

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the SouthSouth Network (SSN) for Non-State Armed Group Engagement, and ATTY. SOLIMAN
M. SANTOS, JR., Petitioners,
119

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 PAGADUANARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA DE LESUS, RITA BAUA,
REY CLARO CASAMBRE, Petitioners,
vs.
120

GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-inChief, 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
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-inChief, 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.
121

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 ANTITERRORISM 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-inChief, 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, 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.
122

OSCAR CALDERON, THE PNP, including its intelligence and investigative elements,
AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.
DECISION
CARPIO MORALES, J.:
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 2007,1signed 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),6Senator 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.
123

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and


organizations mostly based in the Southern Tagalog Region, 7 and individuals8 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 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 quasijudicial 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 functionshas 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
124

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.
[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. PCGG13 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
125

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 BAYANST, 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.
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
126

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 America17 (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
Administration21 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 1723 of RA 9372 by the Department of Justice
before the Basilan Regional Trial Court against the Abu Sayyaf Group. 24 Petitionerorganizations 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
127

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 petitionerorganizations 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 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
128

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 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. COMELEC33 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)

129

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
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

130

Without any justiciable controversy, the petitions have become pleas


over which the Court has no original jurisdiction. Then again,
characterized by "double contingency," where both the activity the
undertake and the anticipated reaction to it of a public official are
beyond judicial review for lack of ripeness.44

for declaratory relief,


declaratory actions
petitioners intend to
merely theorized, lie

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 terrorism46under 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. Sandiganbayan47 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
131

the Voters Registration Act of 1996, with which the therein petitioners were charged, is
couched in precise language.54
The two Romualdez cases rely heavily on the Separate Opinion 55 of Justice Vicente V. Mendoza
in the Estradacase, 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."
132

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
[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
133

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 facialinvalidation 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 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
134

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

135

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 chargeagainst 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 jurisprudence74 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."
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 nonpayment 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 andEstrada 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.

136

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)
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

137

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 prosecutionunder 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.
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
138

ALBERTO ROMULO, JUSTICE SECRETARY RAUL GONZALEZ, AND INTERIOR AND


LOCAL GOVERNMENT SECRETARY RONALDO PUNO,Respondents.
DECISION
AZCUNA, J.:
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 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. WKF162, 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.
139

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 266B, 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.
(Sgd.) Kristie
A.
Kenney
Representative of the United
States
of
America

(Sgd.) Alberto G. Romulo


Representative
of
the
Republic
of
the
Philippines

DATE: 12-19-06

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
140

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.
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.
141

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

142

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.
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
international disputes in which they may be involved by
that international peace and security and justice are not
international relation from the threat or use of force in
purposes of the United Nations.

of the United Nations, to settle any


peaceful means in such a manner
endangered and to refrain in their
any manner inconsistent with the

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.
143

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.
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 Wiley8
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;

144

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.
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
xxx
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.
145

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).
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
xxx
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
146

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 "selfexecutory" and is ratified on these terms?
2. Whether the VFA is enforceable in the US as domestic law, either because it is selfexecutory 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:
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
147

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.

148

WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals Decision in CAG.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.
G.R. No. 190582

April 8, 2010

ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON


REMOTO, Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.
DECISION
DEL CASTILLO, J.:
... [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. Barnette1
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
149

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, 20093 (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 Petition5 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:
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."
150

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 disregardsdecency 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:
151

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.
152

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.
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.
xxxx
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.
xxxx
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.
153

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
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 Ladladspetition 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

154

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
155

few isolated places in the country, petitioner does not exist in almost all provinces in the
country."21
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
156

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
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 City23
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
157

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 nonestablishment 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
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
158

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 action. Reduction ad absurdum. If immoral
159

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

160

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 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
161

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 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

162

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.
xxxx
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.
163

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.
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 x47
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 equallyqualified 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
164

orientation."48Additionally, 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;
(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.
xxxx
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
165

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
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
166

hereby SET ASIDE. The Commission


application for party-list accreditation.

on

Elections

is

directed

to GRANT petitioners

SO ORDERED.
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.
DECISION
VELASCO, JR., J.:
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 Amparo2 (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
167

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 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)
168

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 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.61avvphi1
169

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.
170

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:
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
171

petitioner Lourdes. Their names were not even mentioned in Lourdes Sinumpaang
Salaysay11 of
April
2007.
The
same
goes
for
the
respectiveSinumpaang
12
Salaysay and/or Karagdagang Sinumpaang Salaysay of Jean 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.
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,15foreshadowing 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
172

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].
xxxx
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 criminal prosecution, or
173

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.

174

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.
xxxx
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 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
175

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 extrajudicial 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
theVelasquez 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 selfexplanatory 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
affidavits38 of the designated investigators, all dated November 7, 2007, the OMB had, on the
basis of said complaint, commenced criminal 39 and administrative40 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 extrajudicial killings and enforced disappearances or threats of similar nature, regardless of

176

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 judgmentdisposing
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 themhews 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
177

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, 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 filing44 of the OMB complaint came before the effectivity of the Amparo Rule
on October 24, 2007.
Second, Sec. 2245 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
178

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-O70602-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 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:
179

(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.
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.
PUNO, J.:
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
180

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 October 12, respondent Arroyo resigned as Secretary of the Department of
Social Welfare and Services6 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,
181

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.19Senator 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
182

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino
Monument on Ayala Avenue in 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.25Rallies 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
183

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.
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 MacapagalArroyo 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."
184

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34Recognition 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.37The House then passed Resolution No. 175 "expressing the full support of
the House of Representatives to the administration of Her Excellency, Gloria MacapagalArroyo, 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. 43Senators 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
185

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."
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;

186

(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 respondents54 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 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
187

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 orBaker 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. 60With 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."

188

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 cases62 to support their
thesis that since the cases at bar involve thelegitimacy 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 Constitution63 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 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 ofpeople 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 TheMalolos 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 197368 Constitution. These rights are now safely ensconced in section 4, Article III of the
1987 Constitution, viz:
189

"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 decisionmaking 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 bytalk 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 875 of Article VII, and the allocation of
governmental powers under section 1176 of Article VII. The issues likewise call for a ruling on
the scope of presidential immunity from suit. They also involve the correct 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
Resigned as President

not

the

petitioner

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
190

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 oathtaking 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.
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
191

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
192

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.
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.
193

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.
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.
xxx
The rest of the agreement follows:

194

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.
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:
195

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 MacapagalArroyo 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 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 reassume 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.
196

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.
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
197

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, 0-001757 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 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
198

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 VicePresident 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 VicePresident 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:
199

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
On the same date, the House of the Representatives passed House Resolution No.
17697 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
200

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.)
Speaker

FELICIANO

BELMONTE

JR.

This Resolution was adopted by the House of Representatives on January 24, 2001.
(Sgd.)
Secretary General"

ROBERTO

P.

NAZARENO

On February 7, 2001, the House of the Representatives passed House Resolution No.
17898 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

201

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.)
Speaker

FELICIANO

BELMONTE

JR.

This Resolution was adopted by the House of Representatives on February 7, 2001.


(Sgd.)
Secretary General"

ROBERTO

P.

NAZARENO

(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;
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. 82100 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;
202

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
President of the Senate

Q.

PIMENTEL

JR.

This Resolution was adopted by the Senate on February 7, 2001.


(Sgd.)
Secretary of the Senate"

LUTGARDO

B.

BARBO

On the same date, February 7, the Senate likewise passed Senate Resolution No.
83101 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 officioand 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 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
President of the Senate

Q.

PIMENTEL,

JR.

This Resolution was adopted by the Senate on February 7, 2001.


(Sgd.)
Secretary of the Senate"

LUTGARDO

B.

BARBO
203

(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 (13th) highest number of votes shall serve only for the
unexpired term of Senator Teofisto T. Guingona, Jr.'
(6) Both houses of Congress started
respondent Arroyo as President.

sending bills

to

be

signed

into

law by

(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
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; andsecond, 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
204

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

205

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:
"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?
206

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 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. Sandiganbayan112 and related cases113 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
207

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 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
208

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 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 offcourt 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
209

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 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.
210

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
211

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 petitioner 133and 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."135To 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.
212

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent
Gloria Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED. SO
ORDERED.
G.R. No. 159402

February 23, 2011

AIR TRANSPORTATION OFFICE, Petitioner,


vs.
SPOUSES DAVID* ELISEA RAMOS, Respondents.
RESOLUTION
BERSAMIN, J.:
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.

213

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 plusP15,000.00 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:
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.
214

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 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

215

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:
xxx
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.]
xxx
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:
216

xxx
(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;
(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.
xxx
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 theTeodoro case states:
xxx
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

217

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.
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.
xxx
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
TRANSITORTY PROVISIONS

XII
218

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
ATO is hereby transferred to the Authority.

by

law

and

exercised by

the

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 betransferred 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.
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.
DECISION
219

VELASCO, JR., J.:


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);
220

(3) The Pollution Control Law (PD 984);


(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
221

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, defendantagencies, 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.
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.

222

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.
The CA Sustained the RTC
By a Decision6 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
223

[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
Can be Compelled by Mandamus

Rehabilitation

of

Manila

Bay

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.
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.
224

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 decisionmaking 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 inSocial
Justice Society v. Atienza11 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,
225

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 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 nongovernment organizations, has completed, as of December 2005, the final draft of a
comprehensive action plan with estimated budget and time frame, denominated as Operation
226

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;
xxx
(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.
(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 29223 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.
227

In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to perform metrowide 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
on the bank of any tributary of any navigable water, where the same shall be liable
be washed into such navigable water, either by ordinary or high tides, or by storms
floods, or otherwise, whereby navigation shall or may be impeded or obstructed
increase the level of pollution of such water.

or
to
or
or

(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 over by the PNP when the latter acquires the
capability to perform such functions. Since the PNP Maritime Group has not yet attained the
228

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:
xxxx
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,
229

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, 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. 7230 of PD 856, the Code of Sanitation of the Philippines, and Sec.
5.1.131 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,
230

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
Include Cleaning in General

20

of

the

Environment

Code

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.
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
231

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, in fact even enlarged the operational scope of Sec. 20, by including
232

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.
233

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 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-MalabonTullahan-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
234

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 zonelonger 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.
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

235

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.
236

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.
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 withMODIFICATIONS 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 defendantgovernment 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, skindiving, 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.
237

(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-TullahanTenejeros 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.
(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.

238

(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.
(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.
239

(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.
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.

CORTES, J.:
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
240

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 illgotten 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
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?
241

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
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.
242

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:
243

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.
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.

244

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. 2632; 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.
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 well245

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 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 inOcampo 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
246

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-inchief 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
247

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. 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 ofspecific 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:
248

...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
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
249

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 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.
250

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
251

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:]
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.
252

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 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.
G.R. No. 101949 December 1, 1994
THE HOLY SEE, petitioner,
vs.
253

THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court
of Makati, Branch 61 and STARBRIGHT SALES ENTERPRISES, INC., respondents.
Padilla Law Office for petitioner.
Siguion Reyna, Montecillo & Ongsiako for private respondent.

QUIASON, J.:
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
254

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 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).
255

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 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.
256

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. InWorld 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
257

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 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.
258

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]).
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
259

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 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
260

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
261

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 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. 90183 against petitioner is DISMISSED. SO ORDERED.
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.
Luna, Sison & Manas for petitioners.
Evelyn R. Dominguez for private respondent.
DAVIDE, JR., J.:
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
262

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
1
7 May 1987 a complaint 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;
263

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
264

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
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. 7Thus, 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
265

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.
9
Ruiz 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.
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:

266

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
20
21
to Suspend Proceedings which the latter denied in its Order of 21 August 1987.

Motion

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
dispositive portion of which reads:

23

in Civil Case No. 224-87, the

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
267

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
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. 28Respondent 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
33
1989 while
private
respondent
filed
her
Memorandum
on
14
November
34
1990.
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
268

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." 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.
269

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.
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.

270

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
271

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
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
272

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,
reiterated this exception. In the former, this Court observed:

51

this Court

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.
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:

273

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 theex 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.

274