Republic of the Philippines Petitioners are the complainants in NLRC Cases Nos.

inants in NLRC Cases Nos. SRAB 10-03- Notwithstanding, we deem it wise to give due course to the petition
SUPREME COURT 00067-91 to 10-03-00078-91 and SRAB 10-07-00159-91 for illegal because of the implications of the issue in our international relations.
Manila dismissal and damages.
Petitioners argued that the acts of mining exploration and exploitation
FIRST DIVISION In its Motion to Dismiss, private respondent alleged that respondent are outside the official functions of an international agency protected by
Labor Arbiter had no jurisdiction over its personality since it enjoyed diplomatic immunity. Even assuming that private respondent was entitled
diplomatic immunity pursuant to the 1946 Convention on the Privileges to diplomatic immunity, petitioners insisted that private respondent
and Immunities of the United Nations. In support thereof, private waived it when it engaged in exploration work and entered into a
respondent attached a letter from the Department of Foreign Affairs contract of employment with petitioners.
G.R. Nos. 109095-109107 February 23, 1995
dated August 26, 1991, which acknowledged its immunity from suit. The
letter confirmed that private respondent, being a special fund Petitioners, likewise, invoked the constitutional mandate that the State
ELDEPIO LASCO, RODOLFO ELISAN, URBANO BERADOR, administered by the United Nations, was covered by the 1946
shall afford full protection to labor and promote full employment and
FLORENTINO ESTOBIO, MARCELINO MATURAN, FRAEN Convention on the Privileges and Immunities of the United Nations of
equality of employment opportunities for all (1987 Constitution, Art.
BALIBAG, CARMELITO GAJOL, DEMOSTHENES MANTO, which the Philippine Government was an original signatory (Rollo, p. 21).
XIII, Sec. 3).
SATURNINO BACOL, SATURNINO LASCO, RAMON
LOYOLA, JOSENIANO B. ESPINA, all represented by
On November 25, 1991, respondent Labor Arbiter issued an order The Office of the Solicitor General is of the view that private respondent
MARIANO R. ESPINA, petitioner,
dismissing the complaints on the ground that private respondent was is covered by the mantle of diplomatic immunity. Private respondent is a
vs.
protected by diplomatic immunity. The dismissal was based on the letter specialized agency of the United Nations. Under Article 105 of the
UNITED NATIONS REVOLVING FUND FOR NATURAL
of the Foreign Office dated September 10, 1991. Charter of the United Nations:
RESOURCES EXPLORATION (UNRFNRE) represented by its
operations manager, DR. KYRIACOS LOUCA, OSCAR N.
ABELLA, LEON G. GONZAGA, JR., MUSIB M. BUAT, Petitioners' motion for reconsideration was denied. Thus, an appeal was 1. The Organization shall enjoy in the territory of its
Commissioners of National Labor Relations Commission (NLRC), filed with the NLRC, which affirmed the dismissal of the complaints in Members such privileges and immunities as are
Fifth Division, Cagayan de Oro City and IRVING PETILLA, its Resolution dated January 25, 1993. necessary for the fulfillment of its purposes.
Labor Arbiter of Butuan City, respondents.
Petitioners filed the instant petition for certiorari without first seeking a 2. Representatives of the Members of the United
reconsideration of the NLRC resolution. Nations and officials of the Organization shall
QUIASON, J.: similarly enjoy such privileges and immunities as are
II necessary for the independent exercise of their
This is a petition for certiorari under Rule 65 of the Revised Rules of functions in connection with the organization.
Court to set aside the Resolution dated January 25, 1993 of the National Article 223 of the Labor Code of the Philippines, as amended, provides
Labor Relations Commission (NLRC), Fifth Division, Cagayan de Oro that decisions of the NLRC are final and executory. Thus, they may only Corollary to the cited article is the Convention on the Privileges and
City. be questioned through certiorari as a special civil action under Rule 65 of Immunities of the Specialized Agencies of the United Nations, to which
the Revised Rules of Court. the Philippines was a signatory (Vol. 1, Philippine Treaty Series, p. 621).
We dismiss the petition. We quote Sections 4 and 5 of Article III thereof:
Ordinarily, certiorari as a special civil action will not lie unless a motion for
I reconsideration is first filed before the respondent tribunal, to allow it an Sec. 4. The specialized agencies, their property and assets,
opportunity to correct its assigned errors (Liberty Insurance Corporation wherever located and by whomsoever held shall enjoy immunity
v. Court of Appeals, 222 SCRA 37 [1993]). from every form of legal process except insofar as in any
Petitioners were dismissed from their employment with private
particular case they have expressly waived their
respondent, the United Nations Revolving Fund for Natural Resources
immunity. It is, however, understood that no waiver of
Exploration (UNRFNRE), which is a special fund and subsidiary organ In the case at bench, petitioners' failure to file a motion for
immunity shall extend to any measure of execution
of the United Nations. The UNRFNRE is involved in a joint project of reconsideration is fatal to the instant petition. Moreover, the petition
(Emphasis supplied).
the Philippine Government and the United Nations for exploration work lacks any explanation for such omission, which may merit its being
in Dinagat Island. considered as falling under the recognized exceptions to the necessity of
filing such motion. Sec. 5. The premises of the specialized agencies shall
be inviolable. The property and assets of the specialized
agencies, wherever located and by whomsoever held, shall be

1
 immune from search, requisition, confiscation, expropriation and Immunity is necessary to assure unimpeded performance of their SO ORDERED.
any other form of interference, whether by executive, functions. The purpose is "to shield the affairs of international
administrative, judicial or legislative action (Emphasis organizations, in accordance with international practice, from political Padilla, Davide, Jr., Bellosillo and Kapunan, JJ., concur.
supplied). pressure or control by the host country to the prejudice of member
States of the organization, and to ensure the unhampered performance of
As a matter of state policy as expressed in the Constitution, the their functions" (International Catholic Migration Commission v. Calleja,
Philippine Government adopts the generally accepted principles of 190 SCRA 130 [1990]).
international law (1987 Constitution, Art. II, Sec. 2). Being a member of
the United Nations and a party to the Convention on the Privileges and In the International Catholic Migration Commission case, we held that there is
Immunities of the Specialized Agencies of the United Nations, the no conflict between the constitutional duty of the State to protect the
Philippine Government adheres to the doctrine of immunity granted to rights of workers and to promote their welfare, and the grant of
the United Nations and its specialized agencies. Both treaties have the immunity to international organizations. Clauses on jurisdictional
force and effect of law. immunity are now standard in the charters of the international
organizations to guarantee the smooth discharge of their functions.
In World Health Organization v. Aquino, 48 SCRA 242, (1972), we had
occasion to rule that: The diplomatic immunity of private respondent was sufficiently
established by the letter of the Department of Foreign Affairs,
It is a recognized principle of international law and recognizing and confirming the immunity of UNRFNRE in accordance
under our system of separation of powers with the 1946 Convention on Privileges and Immunities of the United
that diplomatic immunity is essentially a political question and Nations where the Philippine Government was a party. The issue
courts should refuse to look beyond a determination by the whether an international organization is entitled to diplomatic immunity
executive branch of the government, and where the plea of is a "political question" and such determination by the executive branch
diplomatic immunity is recognized and affirmed by the is conclusive on the courts and quasi-judicial agencies (The Holy See v.
executive branch of the government as in the case at Hon. Eriberto U. Rosario, Jr., G.R. No. 101949, Dec. 1, 1994;
bar, it is then the duty of the courts to accept the claim International Catholic Migration Commission v. Calleja, supra).
of immunity upon appropriate suggestion by the
principal law officer of the government, the Solicitor Our courts can only assume jurisdiction over private respondent if it
General or other officer acting under his direction. expressly waived its immunity, which is not so in the case at bench
Hence, in adherence to the settled principle that courts (Convention on the Privileges and Immunities of the Specialized
may not so exercise their jurisdiction by seizure and Agencies of the United Nations, Art. III, Sec. 4).
detention of property, as to embarrass the executive
arm of the government in conducting foreign Private respondent is not engaged in a commercial venture in the
relations, it is accepted doctrine that "in such cases the Philippines. Its presence here is by virtue of a joint project entered into
judicial department of (this) government follows the action of the by the Philippine Government and the United Nations for mineral
political branch and will not embarrass the latter by assuming exploration in Dinagat Island. Its mission is not to exploit our natural
an antagonistic jurisdiction (Emphasis supplied). resources and gain pecuniarily thereby but to help improve the quality of
life of the people, including that of petitioners.
We recognize the growth of international organizations dedicated to
specific universal endeavors, such as health, agriculture, science and This is not to say that petitioner have no recourse. Section 31 of the
technology and environment. It is not surprising that their existence has Convention on the Privileges and Immunities of the Specialized Agencies
evolved into the concept of international immunities. The reason behind of the United Nations states that "each specialized agency shall make a
the grant of privileges and immunities to international organizations, its provision for appropriate modes of settlement of: (a) disputes arising out
officials and functionaries is to secure them legal and practical of contracts or other disputes of private character to which the
independence in fulfilling their duties (Jenks, International Immunities 17 specialized agency is a party."
[1961]).
WHEREFORE, the petition is DISMISSED.

2
743 Phil. 8
EN BANC
[ 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 ofCaloocan, FRANCES Q. QUIMPO,
CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA
CAROLINA P. ARAULLO, RENATO M. REYES, JR.,
BagongAlyansang Makabayan, HON. NERI JAVIER
COLMENARES, BayanMuna Party-list, ROLAND G.
SIMBULAN, PH.D., Junk VFAMovement, 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 U.S. 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, Department of Foreign Affairs, HON.
PAQUITO OCHOA, JR., Executive Secretary, Office of the
President, HON. VOLTAIRE T. GAZMIN, Secretary, Department
of National Defense, HON. RAMON JESUS P. PAJE, Secretary,
Department of Environment and Natural Resources, VICE
ADMIRAL JOSE LUIS M. ALANO, Philippine Navy Flag Officer
in Command, Armed Forces of the Philippines, ADMIRAL
RODOLFO D. ISORENA, Commandant, Philippine Coast Guard,
COMMODORE ENRICO EFREN EVANGELISTA, Philippine
Coast Guard Palawan, MAJOR GEN. VIRGILIO O.
DOMINGO, Commandant of Armed Forces of the Philippines
Commandand LT. GEN. TERRY G. ROBLING, US Marine Corps
Forces, Pacific and Balikatan 2013 Exercise Co-Director,
Respondents.
DECISION
VILLARAMA, JR., J.:
be the sole policy-making and permit-granting body of the TRNP.
Before us is a petition for the issuance of a Writ of Kalikasan with prayer The USS Guardian is an Avenger-class mine countermeasures ship of the
for the issuance of a Temporary Environmental Protection Order US Navy. In December 2012, the US Embassy in the Philippines
(TEPO) under Rule 7 of A.M. No. 09-6-8-SC, otherwise known as requested diplomatic clearance for the said vessel ―to enter and exit the
the Rules of Procedure for Environmental Cases (Rules), involving violations of territorial waters of the Philippines and to arrive at the port of Subic Bay
environmental laws and regulations in relation to the grounding of the for the purpose of routine ship replenishment, maintenance, and crew
US military ship USS Guardian over the Tubbataha Reefs. 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.
Factual Background
On January 15, 2013, the USS Guardian departed Subic Bay for its next
The name ―Tubbataha‖ came from the Samal (seafaring people of port of call in Makassar, Indonesia. On January 17, 2013 at 2:20 a.m.
southern Philippines) language which means ―long reef exposed at low while transiting the Sulu Sea, the ship ran aground on the northwest side
tide.‖ Tubbataha is composed of two huge coral atolls – the north atoll of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast of
and the south atoll – and the Jessie Beazley Reef, a smaller coral structure Palawan. No one was injured in the incident, and there have been no
about 20 kilometers north of the atolls. The reefs of Tubbataha and reports of leaking fuel or oil.
Jessie Beazley are considered part of Cagayancillo, a remote island
municipality of Palawan.[1] On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott
Swift, expressed regret for the incident in a press statement.[5]Likewise,
In 1988, Tubbataha was declared a National Marine Park by virtue of US Ambassador to the Philippines Harry K. Thomas, Jr., in a meeting at
Proclamation No. 306 issued by President Corazon C. Aquino on August the Department of Foreign Affairs (DFA) on February 4, ―reiterated his
11, 1988. Located in the middle of Central Sulu Sea, 150 kilometers regrets over the grounding incident and assured Foreign Affairs Secretary
southeast of Puerto Princesa City, Tubbataha lies at the heart of the Albert F. del Rosario that the United States will provide appropriate
Coral Triangle, the global center of marine biodiversity. 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
In 1993, Tubbataha was inscribed by the United Nations Educational of the grounded ship from the coral reef.
Scientific and Cultural Organization (UNESCO) as a World Heritage
Site. It was recognized as one of the Philippines‘ oldest ecosystems, On April 17, 2013, the above-named petitioners on their behalf and in
containing excellent examples of pristine reefs and a high diversity of representation of their respective sector/organization and others,
marine life. The 97,030-hectare protected marine park is also an including minors or generations yet unborn, filed the present petition
important habitat for internationally threatened and endangered marine against Scott H. Swift in his capacity as Commander of the US 7th Fleet,
species. UNESCO cited Tubbataha‘s outstanding universal value as an Mark A. Rice in his capacity as Commanding Officer of the USS
important and significant natural habitat for in situ conservation of Guardian and Lt. Gen. Terry G. Robling, US Marine Corps Forces,
biological diversity; an example representing significant on-going Pacific and Balikatan 2013 Exercises Co-Director (―US respondents‖);
ecological and biological processes; and an area of exceptional natural President Benigno S. Aquino III in his capacity as Commander-in-Chief
beauty and aesthetic importance.[2] of the Armed Forces of the Philippines (AFP), DFA Secretary Albert F.
Del Rosario, Executive Secretary Paquito Ochoa, Jr., Secretary Voltaire
On April 6, 2010, Congress passed Republic Act (R.A.) No. T. Gazmin (Department of National Defense), Secretary Jesus P. Paje
10067,[3] otherwise known as the ―Tubbataha Reefs Natural Park (TRNP) (Department of Environment and Natural Resources), Vice-Admiral Jose
Act of 2009‖ ―to ensure the protection and conservation of the globally Luis M. Alano (Philippine Navy Flag Officer in Command, AFP),
significant economic, biological, sociocultural, educational and scientific Admiral Rodolfo D. Isorena (Philippine Coast Guard Commandant),
values of the Tubbataha Reefs into perpetuity for the enjoyment of Commodore Enrico Efren Evangelista (Philippine Coast Guard-
present and future generations.‖ Under the ―no-take‖ policy, entry into Palawan), and Major General Virgilio O. Domingo (AFP Commandant),
the waters of TRNP is strictly regulated and many human activities are collectively the ―Philippine respondents.‖
prohibited and penalized or fined, including fishing, gathering, destroying
and disturbing the resources within the TRNP. The law likewise created The Petition
the Tubbataha Protected Area Management Board (TPAMB) which shall
3

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
3.
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
4.
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:
1. WHEREFORE, in view of the foregoing, Petitioners
respectfully pray that the Honorable Court:
2. 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.
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;
After summary hearing, issue a Resolution extending the TEPO
until further orders of the Court;
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
LGU 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;
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
4
 protection and/or for violating the preemptory norm importance, of overreaching significance to society, or of paramount fundamental question of whether this Court has jurisdiction over the US
of nondiscrimination incorporated as part of the law public interest.[12] respondents who did not submit any pleading or manifestation in this
of the land under Section 2, Article II, of the case.
Philippine Constitution; 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 The immunity of the State from suit, known also as the doctrine of
p. Allow for continuing discovery measures; time in our constitutional history, is solemnly incorporated in the sovereign immunity or non-suability of the State,[17] is expressly provided
fundamental law.‖ We declared that the right to a balanced and healthful in Article XVI of the 1987 Constitution which states:
q. Supervise marine wildlife rehabilitation in the ecology need not be written in the Constitution for it is assumed, like
Tubbataha Reefs in all other respects; and other civil and political rights guaranteed in the Bill of Rights, to exist Section 3. The State may not be sued without its consent.
from the inception of mankind and it is an issue of transcendental In United States of America v. Judge Guinto,[18]we discussed the principle of
importance with intergenerational implications. Such right carries with it state immunity from suit, as follows:
the correlative duty to refrain from impairing the environment.[14]
The rule that a state may not be sued without its consent, now expressed
5. Provide just and equitable environmental rehabilitation On the novel element in the class suit filed by the petitioners minors in Article XVI, Section 3, of the 1987 Constitution, is one of the
measures and such other reliefs as are just and equitable under in Oposa, this Court ruled that not only do ordinary citizens have legal generally accepted principles of international law that we have adopted as
the premises.[7] (Underscoring supplied.) standing to sue for the enforcement of environmental rights, they can do part of the law of our land under Article II, Section 2. x x x.
so in representation of their own and future generations. Thus:
Even without such affirmation, we would still be bound by the generally
Since only the Philippine respondents filed their comment [8] to the Petitioners minors assert that they represent their generation as well as accepted principles of international law under the doctrine of
petition, petitioners also filed a motion for early resolution and motion to generations yet unborn. We find no difficulty in ruling that they can, for incorporation. Under this doctrine, as accepted by the majority of states,
proceed ex parte against the US respondents.[9] themselves, for others of their generation and for the succeeding such principles are deemed incorporated in the law of every civilized state
generations, file a class suit. Their personality to sue in behalf of the as a condition and consequence of its membership in the society of
Respondents’ Consolidated Comment succeeding generations can only be based on the concept of nations. Upon its admission to such society, the state is automatically
intergenerational responsibility insofar as the right to a balanced obligated to comply with these principles in its relations with other states.
In their consolidated comment with opposition to the application for a and healthful ecology is concerned. Such a right, as hereinafter
TEPO and ocular inspection and production orders, respondents assert expounded, considers the ―rhythm and harmony of nature.‖Nature As applied to the local state, the doctrine of state immunity is based on
that: (1) the grounds relied upon for the issuance of a TEPO or writ means the created world in its entirety. Such rhythm and harmony the justification given by Justice Holmes that ―there can be no legal right
of Kalikasan have become fait accompli as the salvage operations on indispensably include, inter alia, the judicious disposition, utilization, against the authority which makes the law on which the right
the USS Guardian were already completed; (2) the petition is defective in management, renewal and conservation of the country‘s forest, mineral, depends.‖[Kawanakoa v. Polybank, 205 U.S. 349] There are other practical
form and substance; (3) the petition improperly raises issues involving land, waters, fisheries, wildlife, off-shore areas and other natural reasons for the enforcement of the doctrine. In the case of the foreign
the VFA between the Republic of the Philippines and the United States resources to the end that their exploration, development and utilization state sought to be impleaded in the local jurisdiction, the added
of America; and (4) the determination of the extent of responsibility of be equitably accessible to the present as well as future generations. inhibition is expressed in the maxim par in parem, non habet
the US Government as regards the damage to the Tubbataha Reefs rests Needless to say, every generation has a responsibility to the next to imperium. All states are sovereign equals and cannot assert
exclusively with the executive branch. preserve that rhythm and harmony for the full enjoyment of a balanced jurisdiction over one another. A contrary disposition would, in the
and healthful ecology. Put a little differently, the minors‘ assertion of language of a celebrated case, ―unduly vex the peace of
The Court’s Ruling their right to a sound environment constitutes, at the same time, the nations.‖ [De Haber v. Queen of Portugal, 17 Q. B. 171]
performance of their obligation to ensure the protection of that right for
As a preliminary matter, there is no dispute on the legal standing of the generations to come.[15] (Emphasis supplied.) While the doctrine appears to prohibit only suits against the state without
petitioners to file the present petition. its consent, it is also applicable to complaints filed against officials
The liberalization of standing first enunciated in Oposa, insofar as it refers of the state for acts allegedly performed by them in the discharge of
Locus standi is ―a right of appearance in a court of justice on a given to minors and generations yet unborn, is now enshrined in the Rules their duties. The rule is that if the judgment against such officials will
question.‖[10] Specifically, it is ―a party‘s personal and substantial interest which allows the filing of a citizen suit in environmental cases. The require the state itself to perform an affirmative act to satisfy the same,
in a case where he has sustained or will sustain direct injury as a result‖ of provision on citizen suits in the Rules ―collapses the traditional rule on such as the appropriation of the amount needed to pay the damages
the act being challenged, and ―calls for more than just a generalized personal and direct interest, on the principle that humans are stewards of awarded against them, the suit must be regarded as against the state itself
grievance.‖[11] However, the rule on standing is a procedural matter nature.‖[16] although it has not been formally impleaded. [Garcia v. Chief of Staff, 16
which this Court has relaxed for non-traditional plaintiffs like ordinary SCRA 120] In such a situation, the state may move to dismiss the
citizens, taxpayers and legislators when the public interest so requires, Having settled the issue of locus standi, we shall address the more
such as when the subject matter of the controversy is of transcendental

5
complaint on the ground that it has been filed without its Government which had not given its consent. The RTC denied the personal capacity as an ordinary citizen. The cloak of protection
consent.[19] (Emphasis supplied.) motion but on a petition for certiorari and prohibition filed before this afforded the officers and agents of the government is removed the
Court, we reversed the RTC and dismissed the complaint. We held that moment they are sued in their individual capacity. This situation usually
Under the American Constitution, the doctrine is expressed in the petitioners US military officers were acting in the exercise of their official arises where the public official acts without authority or in excess of the
Eleventh Amendment which reads: functions when they conducted the buy-bust operation against the powers vested in him. It is a well-settled principle of law that a public
complainant and thereafter testified against him at his trial. It follows that official may be liable in his personal private capacity for whatever
The Judicial power of the United States shall not be construed to extend for discharging their duties as agents of the United States, they cannot be damage he may have caused by his act done with malice and in
to any suit in law or equity, commenced or prosecuted against one of the directly impleaded for acts imputable to their principal, which has not bad faith, or beyond the scope of his authority or
United States by Citizens of another State, or by Citizens or Subjects of given its consent to be sued. jurisdiction.[26] (Emphasis supplied.)
any Foreign State.
In the case of Minucher v. Court of Appeals,[20] we further expounded on the This traditional rule of State immunity which exempts a State from being In this case, the US respondents were sued in their official capacity as
immunity of foreign states from the jurisdiction of local courts, as sued in the courts of another State without the former‘s consent or commanding officers of the US Navy who had control and supervision
follows: waiver has evolved into a restrictive doctrine which distinguishes over the USS Guardian and its crew. The alleged act or omission resulting
sovereign and governmental acts (jure imperii) from private, commercial in the unfortunate grounding of the USS Guardian on the TRNP was
The precept that a State cannot be sued in the courts of a foreign state is a long- and proprietary acts (jure gestionis). Under the restrictive rule of State committed while they were performing official military duties.
standing rule of customary international law then closely identified with immunity, State immunity extends only to acts jure imperii. The restrictive Considering that the satisfaction of a judgment against said officials will
the personal immunity of a foreign sovereign from suit and, with the application of State immunity is proper only when the proceedings arise require remedial actions and appropriation of funds by the US
emergence of democratic states, made to attach not just to the person of out of commercial transactions of the foreign sovereign, its commercial government, the suit is deemed to be one against the US itself. The
the head of state, or his representative, but also distinctly to the state activities or economic affairs.[24] principle of State immunity therefore bars the exercise of jurisdiction by
itself in its sovereign capacity. If the acts giving rise to a suit are those this Court over the persons of respondents Swift, Rice and Robling.
of a foreign government done by its foreign agent, although not In Shauf v. Court of Appeals,[25] we discussed the limitations of the State
necessarily a diplomatic personage, but acting in his official immunity principle, thus: During the deliberations, Senior Associate Justice Antonio T. Carpio
capacity, the complaint could be barred by the immunity of the took the position that the conduct of the US in this case, when its
foreign sovereign from suit without its consent. Suing a It is a different matter where the public official is made to account warship entered a restricted area in violation of R.A. No. 10067 and
representative of a state is believed to be, in effect, suing the state itself. in his capacity as such for acts contrary to law and injurious to the caused damage to the TRNP reef system, brings the matter within the
The proscription is not accorded for the benefit of an individual but for rights of plaintiff. As was clearly set forth by Justice Zaldivar in Director ambit of Article 31 of the United Nations Convention on the Law of the
the State, in whose service he is, under the maxim - par in parem, non habet of the Bureau of Telecommunications, et al. vs. Aligaen, etc., et al.: ―Inasmuch as Sea (UNCLOS). He explained that while historically, warships enjoy
imperium - thatall states are sovereign equals and cannot assert jurisdiction the State authorizes only legal acts by its officers, unauthorized acts of sovereign immunity from suit as extensions of their flag State, Art. 31 of
over one another. The implication, in broad terms, is that if the judgment government officials or officers are not acts of the State, and an action the UNCLOS creates an exception to this rule in cases where they fail to
against an official would require the state itself to perform an affirmative against the officials or officers by one whose rights have been invaded or comply with the rules and regulations of the coastal State regarding
act to satisfy the award, such as the appropriation of the amount needed violated by such acts, for the protection of his rights, is not a suit against passage through the latter‘s internal waters and the territorial sea.
to pay the damages decreed against him, the suit must be regarded as the State within the rule of immunity of the State from suit. In the same
being against the state itself, although it has not been formally tenor, it has been said that an action at law or suit in equity against a State According to Justice Carpio, although the US to date has not ratified the
impleaded.[21] (Emphasis supplied.) officer or the director of a State department on the ground that, while UNCLOS, as a matter of long-standing policy the US considers itself
claiming to act for the State, he violates or invades the personal and bound by customary international rules on the ―traditional uses of the
In the same case we also mentioned that in the case of diplomatic property rights of the plaintiff, under an unconstitutional act or under an oceans‖ as codified in UNCLOS, as can be gleaned from previous
immunity, the privilege is not an immunity from the observance of the assumption of authority which he does not have, is not a suit against the declarations by former Presidents Reagan and Clinton, and the US
law of the territorial sovereign or from ensuing legal liability; it is, rather, State within the constitutional provision that the State may not be sued judiciary in the case of United States v. Royal Caribbean Cruise Lines, Ltd.[27]
an immunity from the exercise of territorial jurisdiction. [22] without its consent.‖ The rationale for this ruling is that the doctrine of
state immunity cannot be used as an instrument for perpetrating an The international law of the sea is generally defined as ―a body of treaty rules
In United States of America v. Judge Guinto,[23] one of the consolidated cases injustice. and customary norms governing the uses of the sea, the exploitation of
therein involved a Filipino employed at Clark Air Base who was arrested its resources, and the exercise of jurisdiction over maritime regimes. It is
following a buy-bust operation conducted by two officers of the US Air x x x x a branch of public international law, regulating the relations of states with
Force, and was eventually dismissed from his employment when he was respect to the uses of the oceans.‖[28] The UNCLOS is a multilateral
charged in court for violation of R.A. No. 6425. In a complaint for The aforecited authorities are clear on the matter. They state that the treaty which was opened for signature on December 10, 1982 at
damages filed by the said employee against the military officers, the latter doctrine of immunity from suit will not apply and may not be Montego Bay, Jamaica. It was ratified by the Philippines in 1984 but
moved to dismiss the case on the ground that the suit was against the US invoked where the public official is being sued in his private and came into force on November 16, 1994 upon the submission of the
60th ratification.

6
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 negotiation and drafting, the U.S. delegation ultimately voted against and
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 objectionable provisions. The revisions satisfied the Clinton
to enjoy sovereign immunity subject to the following exceptions:
Article 30
Non-compliance by warships with the laws and regulations
of the coastal State
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 31
Responsibility of the flag State for damage caused by a warship
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 ―if under its policy, the US ‗recognize[s] the rights of the other states
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'
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
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 ambivalence over U.S.
participation in international institutions. Most recently, 111th 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,‖
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 UNCLOS was centered on its disagreement with
UNCLOS‘ 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 ―jurisdictional creep‖ by
preventing coastal nations from expanding their own maritime zones;
and reaffirms sovereign immunity of warships, auxiliaries and
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 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 197
Cooperation on a global or regional basis
7
 to Philippine respondents to protect and rehabilitate the coral reef
States shall cooperate on a global basis and, as appropriate, on a regional In any case, it is our considered view thata ruling on the application or structure and marine habitat adversely affected by the grounding incident
basis, directly or through competent international organizations, in non-application of criminal jurisdiction provisions of the VFA to US are concerned, petitioners are entitled to these reliefs notwithstanding the
formulating and elaborating international rules, standards and personnel who may be found responsible for the grounding of the USS completion of the removal of the USS Guardian from the coral reef.
recommended practices and procedures consistent with this Convention, Guardian, would be premature and beyond the province of a petition for
for the protection and preservation of the marine environment, taking a writ of Kalikasan. We also find it unnecessary at this point to determine However, we are mindful of the fact that the US and Philippine
into account characteristic regional features. whether such waiver of State immunity is indeed absolute. In the same governments both expressed readiness to negotiate and discuss the
vein, we cannot grant damages which have resulted from the violation of matter of compensation for the damage caused by the USS Guardian. The
In fine, the relevance of UNCLOS provisions to the present controversy environmental laws. The Rules allows the recovery of damages, including US Embassy has also declared it is closely coordinating with local
is beyond dispute. Although the said treaty upholds the immunity of the collection of administrative fines under R.A. No. 10067, in a separate scientists and experts in assessing the extent of the damage and
warships from the jurisdiction of Coastal States while navigating the civil suit or that deemed instituted with the criminal action charging the appropriate methods of rehabilitation.
latter‘s territorial sea, the flag States shall be required to leave the same violation of an environmental law.[37]
territorial sea immediately if they flout the laws and regulations of the Exploring avenues for settlement of environmental cases is not
Coastal State, and they will be liable for damages caused by their warships Section 15, Rule 7 enumerates the reliefs which may be granted in a proscribed by the Rules. As can be gleaned from the following
or any other government vessel operated for non-commercial purposes petition for issuance of a writ of Kalikasan, to wit: provisions, mediation and settlement are available for the consideration
under Article 31. of the parties, and which dispute resolution methods are encouraged by
Sec. 15. Judgment.—Within sixty (60) days from the time the petition is the court, to wit:
Petitioners argue that there is a waiver of immunity from suit found in submitted for decision, the court shall render judgment granting or
the VFA. Likewise, they invoke federal statutes in the US under which denying the privilege of the writ of kalikasan. RULE 3
agencies of the US have statutorily waived their immunity to any action.
Even under the common law tort claims, petitioners asseverate that the The reliefs that may be granted under the writ are the following: xxxx
US respondents are liable for negligence, trespass and nuisance.
(a) Directing respondent to permanently cease and desist from Sec. 3. Referral to mediation.–At the start of the pre-trial conference, the
We are not persuaded. committing acts or neglecting the performance of a duty in violation of court shall inquire from the parties if they have settled the dispute;
environmental laws resulting in environmental destruction or damage; otherwise, the court shall immediately refer the parties or their counsel, if
The VFA is an agreement which defines the treatment of United States authorized by their clients, to the Philippine Mediation Center (PMC)
troops and personnel visiting the Philippines to promote ―common (b) Directing the respondent public official, government agency, private unit for purposes of mediation. If not available, the court shall refer the
security interests‖ between the US and the Philippines in the region. It person or entity to protect, preserve,rehabilitate or restore the case to the clerk of court or legal researcher for mediation.
provides for the guidelines to govern such visits of military personnel, environment;
and further defines the rights of the United States and the Philippine Mediation must be conducted within a non-extendible period of thirty
government in the matter of criminal jurisdiction, movement of vessel (c) Directing the respondent public official, government agency, private (30) days from receipt of notice of referral to mediation.
and aircraft, importation and exportation of equipment, materials and person or entity to monitor strict compliance with the decision and
supplies.[36] The invocation of US federal tort laws and even common law orders of the court; The mediation report must be submitted within ten (10) days from the
is thus improper considering that it is the VFA which governs disputes expiration of the 30-day period.
involving US military ships and crew navigating Philippine waters in (d) Directing the respondent public official, government agency, or
pursuance of the objectives of the agreement. private person or entity to make periodic reports on the execution of the Sec. 4. Preliminary conference.–If mediation fails, the court will schedule the
final judgment; and continuance of the pre-trial. Before the scheduled date of continuance,
As it is, the waiver of State immunity under the VFA pertains only to the court may refer the case to the branch clerk of court for a preliminary
criminal jurisdiction and not to special civil actions such as the present (e) Such other reliefs which relate to the right of the people to a balanced conference for the following purposes:
petition for issuance of a writ of Kalikasan. In fact, it can be inferred from and healthful ecology or to the protection,preservation, rehabilitation or
Section 17, Rule 7 of the Rules that a criminal case against a person restoration of the environment, except the award of damages to (a) To assist the parties in reaching a settlement;
charged with a violation of an environmental law is to be filed separately: individual petitioners. (Emphasis supplied.)
xxxx
Sec. 17. Institution of separate actions.—The filing of a petition for the We agree with respondents (Philippine officials) in asserting that this
issuance of the writ of kalikasan shall not preclude the filing of separate petition has become moot in the sense that the salvage operation sought Sec. 5. Pre-trial conference; consent decree.–The judge shall put the parties and
civil, criminal or administrative actions. to be enjoined or restrained had already been accomplished when their counsels under oath, and they shall remain under oath in all pre-trial
petitioners sought recourse from this Court. But insofar as the directives conferences.

8
 diplomatic channels. Resolution of these issues impinges on our
The judge shall exert best efforts to persuade the parties to arrive at a relations with another State in the context of common security interests [4] Rollo, pp. 194-199.
settlement of the dispute. The judge may issue a consent decree under the VFA. It is settled that ―[t]he conduct of the foreign relations of
approving the agreement between the parties in accordance with law, our government is committed by the Constitution to the executive and [5] .

morals, public order and public policy to protect the right of the people legislative—―the political‖--departments of the government, and the
to a balanced and healthful ecology. propriety of what may be done in the exercise of this political power is [6] ―Joint Statement Between The Philippines And The United States On

not subject to judicial inquiry or decision.‖ [40] The USS Guardian Grounding On Tubbataha Reef,‖ February 5,
xxxx 2013.Accessed at US Embassy website - .
On the other hand, we cannot grant the additional reliefs prayed for in
Sec. 10. Efforts to settle.–The court shall endeavor to make the parties to the petition to order a review of the VFA and to nullify certain immunity [7] Rollo, pp. 89-92.
agree to compromise or settle in accordance with law at any stage of the provisions thereof.
proceedings before rendition of judgment. (Underscoring supplied.) [8] Id. at 156-191. In a letter dated 27 May 2013, the DFA‘s Office of

As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Legal Affairs informed this Court that it has received from the Embassy
Zamora, [41] the VFA was duly concurred in by the Philippine Senate and of the United States the Notice sent by this Court, with a request to
The Court takes judicial notice of a similar incident in 2009 when a
has been recognized as a treaty by the United States as attested and return the same. It said that the US Embassy ―asserts that it is not an
guided-missile cruiser, the USS Port Royal, ran aground about half a mile
certified by the duly authorized representative of the United States agent for the service of process upon the individuals named in court
off the Honolulu Airport Reef Runway and remained stuck for four days.
government. The VFA being a valid and binding agreement, the parties documents, and that the transmission of the Court documents should
After spending $6.5 million restoring the coral reef, the US government
are required as a matter of international law to abide by its terms and have been done through diplomatic channels.‖ (Id. at 255.)
was reported to have paid the State of Hawaii $8.5 million in settlement
provisions. [42] The present petition under the Rules is not the proper
over coral reef damage caused by the grounding.[38]
remedy to assail the constitutionality of its provisions. [9] Id. at 215-247.

To underscore that the US government is prepared to pay appropriate

WHEREFORE, the petition for the issuance of the privilege of the Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA
[10]
compensation for the damage caused by the USS Guardian grounding, the
Writ of Kalikasan is hereby DENIED. 244, 254, citing David v. Macapagal-Arroyo, 522 Phil. 705, 755 (2006).
US Embassy in the Philippines has announced the formation of a US
interdisciplinary scientific team which will ―initiate discussions with the
No pronouncement as to costs. [11]Id., citing Jumamil v. Cafe, 507 Phil. 455, 465 (2005), citing Integrated Bar
Government of the Philippines to review coral reef rehabilitation options
of the Philippines v. Zamora, 392 Phil. 618, 632-633 (2000).
in Tubbataha, based on assessments by Philippine-based marine
SO ORDERED.
scientists.‖ The US team intends to ―help assess damage and remediation
Biraogo v. Philippine Truth Commission of 2010, G.R. Nos. 192935&
[12]
options, in coordination with the Tubbataha Management Office,
Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, 193036, December 7, 2010, 637 SCRA 78, 151, citing Social Justice Society
appropriate Philippine government entities, non-governmental
Perez, Reyes, and Perlas-Bernabe, JJ., concur. (SJS) v. Dangerous Drugs Board, et al., 591 Phil. 393, 404 (2008); Tatad v.
organizations, and scientific experts from Philippine universities.‖[39]
Sereno, C.J., see concurring opinion. Secretary of the Department of Energy, 346 Phil. 321 (1997) and De Guia v.
A rehabilitation or restoration program to be implemented at the cost of Mendoza, J., on official leave. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.
the violator is also a major relief that may be obtained under a judgment Leonen, J., see separate concurring opinion.
Jardeleza, J., no part. [13] G.R. No. 101083, July 30, 1993, 224 SCRA 792.
rendered in a citizens‘ suit under the Rules, viz:
[14] Id. at 804-805.
RULE 5
[1] Tubbataha Reefs Natural Park – . [15] Id. at 802-803.
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 [2]
Id. [16] See Annotation to the Rules of Procedure for Environmental Cases.
rehabilitation of the environment and the payment of attorney‘s fees,
costs of suit and other litigation expenses. It may also require the violator [3]
―AN ACT ESTABLISHING THE TUBBATAHA REEFS Air Transportation Office v. Ramos, G.R. No. 159402, February 23, 2011,
[17]
to submit a program of rehabilitation or restoration of the environment,
NATURAL PARK IN THE PROVINCE OF PALAWAN AS A 644 SCRA 36, 41.
the costs of which shall be borne by the violator, or to contribute to a
PROTECTED AREA UNDER THE NIPAS ACT (R.A. 7586) AND
special trust fund for that purpose subject to the control of the court.
THE STRATEGIC ENVIRONMENTAL PLAN (SEP) FOR [18] 261 Phil. 777 (1990).
PALAWAN ACT (R.A. 7611), PROVIDING FOR ITS
In the light of the foregoing, the Court defers to the Executive Branch
MANAGEMENT AND FOR OTHER PURPOSES.‖ [19] Id. at 790-792.
on the matter of compensation and rehabilitation measures through

9
[20] 445 Phil. 250 (2003). [38] ―USS Port Royal (CG73)‖ – ;―USS Port Royal Returns to Homeport‖
, Navy Military Home Page, Story Number NNS090211-02 Release Date: x x x x
[21] Id. at 269-270. Citations omitted. 2/11/2009 6:00 AM – ; ―Navy, state reach settlement on USS Port Royal The restrictive theory came about because of the entry of sovereign states
damage‖, posted Feb. 05, 2011 8:26 AM –. into purely commercial activities remotely connected with the discharge
Id. at 268, citing J.L. Brierly, ―The Law of Nations,‖ Oxford
[22] of governmental functions. This is particularly true
University Press, 6th Edition, 1963, p. 244. [39] . with respect to the Communist states which took control of
nationalized business activities and international trading.
[23] Supra note 18, at 788-789 & 797. [40] Vinuya v. Romulo, G.R. No. 162230, April 28, 2010, 619 SCRA 533,

559, citing Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918). In JUSMAG v. National Labor Relations Commission, this Court affirmed the
[24] United States of America v. Ruiz, 221 Phil. 179, 182-183 & 184 (1985). Philippines‘ adherence to the restrictive theory as follows:
[41] Supra note 36.
[25] G.R. No. 90314, November 27, 1990, 191 SCRA 713. The doctrine of state immunity from suit has undergone further
[42] Nicolas v. Secretary Romulo, et al., 598 Phil. 262, 280 & 285. metamorphosis. The view evolved that the existence of a contract does
[26] Id. at 727-728. not, per se, mean that sovereign states may, at all times, be sued in local
courts. The complexity of relationships between sovereign states,
[27] 24 FSupp. 2d 155, 159 (D.P.R. 1997). brought about by their increasing commercial activities, mothered a more
restrictive application of the doctrine.
[28] Merlin M. Magallona, A Primer on the Law of the Sea, 1997, p. 1.
CONCURRING OPINION xxxx
Bertrand Theodor L. Santos, ―Untangling a Tangled Net of
[29]

Confusion: Reconciling the Philippine Fishery Poaching Law and the As it stands now, the application of the doctrine of immunity from
UNCLOS‖ World Bulletin, Vol. 18: 83-116 (July-December 2002), p. 96. SERENO, CJ: suit has been restricted to sovereign or governmental activities
(jure imperii). The mantle of state immunity cannot be extended to
Anne Bardin, ―Coastal State‘s Jurisdiction Over Foreign Vessels‖ 14
[30]
I concur. commercial, private and proprietary acts (jure gestionis).
Pace Int‘l. Rev. 27, 28 (2002).
Sovereign immunity serves as a bar for the foreign sovereign to be Since the Philippines adheres to the restrictive theory, it is crucial to
[31] Id. at 29. subjected to the trial process. Supported both by local jurisprudence, as ascertain the legal nature of the act involved – whether the entity
as international law (which forms part of the Philippine legal structure), claiming immunity performs governmental, as opposed to
[32] Art. 2, UNCLOS. the doctrine should not be reversed in this particular case. proprietary, functions. As held in United States of America v. Ruiz –

[33]Art. 29 of UNCLOS defines warship as ―a ship belonging to the
armed forces of a State bearing the external marks distinguishing such
ships of its nationality, under the command of an officer duly
commissioned by the government of the State and whose name appears
in the appropriate service list or its equivalent, and manned by a crew
which is under regular armed forces discipline.‖
Commander Robert C. ―Rock‖ De Tolve, JAGC, USN, ―At What
[34]
Cost? America‘s UNCLOS Allergy in the Time of ‗Lawfare‘‖, 61 Naval
L. Rev. 1, 3 (2012).
[35] . absolutetheory, a sovereign cannot, without its consent, be made a
See BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, 396
[36]
Phil. 623, 652 (2000).
[37] Rule 10, Rules of Procedure for Environmental Cases.
SOVEREIGN IMMUNITY IN PHILIPPINE LAW The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign
Sovereign immunity in Philippine law has been lengthily discussed by the sovereign, its commercial activities or economic affairs. Stated differently,
Court in China National Machinery & Equipment Corp. v. Hon. Santamaria in a State may be said to have descended to the level of an individual and
the following manner: can thus be deemed to have tacitly given its consent to be sued only
when it enters into business contracts. It does not apply where the
This Court explained the doctrine of sovereign immunity in Holy See v. contract relates to the exercise of its sovereign functions.[1] (Emphases
Rosario, to wit: supplied. Citations omitted)
There are two conflicting concepts of sovereign immunity, each widely From the Philippine perspective, what determines its ability to impose its
held and firmly established. According to the classical or law upon the foreign entity would be the act of the foreign entity – on
whether the act is an aspect of its sovereign function or a private act.
respondent in the courts of another sovereign. According to the newer or
restrictive theory, the immunity of the sovereign is recognized only with In this case, the two Naval Officers were acting pursuant to their
regard to public acts or acts jure imperii of a state, but not with regard to function as the commanding officers of a warship, traversing Philippine
private acts or acts jure gestionis. waters under the authority of the Visiting Forces Agreement (VFA).
While the events beg the question of what the warship was doing in that
area, when it should have been headed towards Indonesia, its presence in

10
Philippine waters is not wholly unexplainable. The VFA is a treaty, and it x x x x the current state practice may not support a rule of customary beyond a determination by the executive branch of the
has been affirmed as valid by this Court in Bayan v. Zamora,[2] and international law according to which states must deny sovereign government, and where the plea of diplomatic immunity is recognized
affirmed in Lim v. Executive Secretary[3] and Nicolas v. Romulo.[4] It has, in immunity in case of tortious acts committed by another country in the and affirmed by the executive branch of the government as in the case at
the past, been used to justify the presence of United States Armed Forces forum state. Even though such an obligation is included in the ECSI and bar, it is then the duty of the courts to accept the claim of immunity
in the Philippines. In this respect therefore, acts done pursuant to the the UNCJIS, a considerable number of states do not apply this exception. upon appropriate suggestion by the principal law officer of the
VFA take the nature of governmental acts, since both the United States But this does not answer the question whether states are prohibited from government, the Solicitor General in this case, or other officer acting
and Philippine governments recognize the VFA as a treaty with doing so. Section 1605 of the FSIA, for example, denies immunity in under his direction. Hence, in adherence to the settled principle that
corresponding obligations, and the presence of these two Naval Officers cases ‗in which money damages are sought … for personal injury or courts may not so exercise their jurisdiction by seizure and
and the warship in Philippine waters fell under this legal regime. death, or damage to or loss of property, occurring in the United States detention of property, as to embarrass the executive arm of the
and caused by the tortious act or omission of that foreign state‘. If government in conducting foreign relations, it is accepted doctrine
From this, the applicability of sovereign immunity cannot be denied as to sovereign immunity is the default rule and all exceptions must reflect that in such cases the judicial department of the government
the presence of the warship and its officers in Philippine waters. This customary international law, and if the tort exception has not yet evolved follows the action of the political branch and will not embarrass the
does not, however, put an end to the discussion, because even if into custom, then states such as the US, UK, Canada, and Australia that latter by assuming an antagonistic jurisdiction.‖
immunity is applicable to their presence, the specific act of hitting the have included the tort exception in their national immunity laws
Tubbataha Reef and causing damage thereto is a presumably tortuous act. automatically violate international law – a conclusion which no This ruling was reiterated in the subsequent cases of International Catholic
Can these kinds of acts also be covered by the principle of sovereign commentator so far has suggested. But if states that enact this Migration Commission vs. Calleja; The Holy See vs. Rosario, Jr; Lasco vs.
immunity? exception as law do not violate international law, why then should UN; and DFA vs. NLRC.
a state do so if its courts apply this exception not on the basis of
TORT EXCEPTION national law, but on the basis of how they construe and interpret The case of WHO vs. Aquino involved the search and seizure of personal
the doctrine of sovereign immunity under international effects of petitioner Leonce Verstuyft, an official of the WHO. Verstyft
Under the regime of international law, there is an added dimension to law?[14] (Emphasis supplied) was certified to be entitled to diplomatic immunity pursuant to the Host
sovereign immunity exceptions: the tort exception. Whether this has Agreement executed between the Philippines and the WHO.
evolved into a customary norm is still debatable; what is important to What Finke suggests is that a local court need not find the tort exception
emphasize is that while some states have enacted legislation to allow the concept in its national law if it can interpret the doctrine from its ICMC vs. Calleja concerned a petition for certification election filed
piercing of sovereign immunity in tortuous actions, the Foreign understanding of international law. Can the Philippines then interpret the against ICMC and IRRI. As international organizations, ICMC and IRRI
Sovereign Immunities Act of 1976 of the United States (FSIA)[5] contains exception as being part of its acceptance of ―general principles of were declared to possess diplomatic immunity. It was held that they are
such privilege. Specifically, the FSIA contains exceptions for (1) international law‖ under the Constitution?[15] not subject to local jurisdictions. It was ruled that the exercise of
waiver; (2) commercial activity; (3) expropriation; (4) property rights
[6] [7] [8] jurisdiction by the Department of Labor over the case would defeat the
acquired through succession or donation;[9] (5) damages for personal SOVEREIGN IMMUNITY AS A POLITICAL DECISION very purpose of immunity, which is to shield the affairs of international
injury or death or damage to or loss of property;[10] (6) enforcement of an organizations from political pressure or control by the host country and
arbitration agreement;[11] (7) torture, extrajudicial killing, aircraft sabotage, In Vinuya v. Romulo, we stated that ―the question whether the Philippine to ensure the unhampered performance of their functions.
hostage taking, or the provision of material support to such an act, if the government should espouse claims of its nationals against a foreign
state sponsors terrorism;[12] and (8) maritime lien in a suit for admiralty government is a foreign relations matter, the authority for which is In Holy See v. Rosario, Jr. involved an action for annulment of sale of land
based on commercial activity.[13] demonstrably committed by our Constitution not to the courts but to the against the Holy See, as represented by the Papal Nuncio. The Court
political branches.‖[16] Immunity then, unlike in other jurisdictions, is upheld the petitioner‘s defense of sovereign immunity. It ruled that
Any claim under the FSIA goes through a hierarchical process between determined not by the courts of law but by the executive branches. where a diplomatic envoy is granted immunity from the civil and
the diplomatic channels of the United States and the forum state. Indeed, this was extensively discussed in Chief Justice Puno‘s concurring administrative jurisdiction of the receiving state over any real action
However, by explicitly including the tort exception in its local legislation opinion in Liang v. People, to wit: relating to private immovable property situated in the territory of the
under the 4th exception discussed above - with due consideration to the receiving state, which the envoy holds on behalf of the sending state for
heavy requirements for any doctrine to attain customary status - it Petitioner's argument that a determination by the Department of Foreign the purposes of the mission, with all the more reason should immunity
becomes plausible that the exception can be applied to the United States, Affairs that he is entitled to diplomatic immunity is a political question be recognized as regards the sovereign itself, which in that case is the
if not through customary international law, then by reason of binding on the courts, is anchored on the ruling enunciated in the case Holy See.
acquiescence or estoppel. of WHO, et al. vs. Aquino, et al., viz:
In Lasco vs. United Nations, the United Nations Revolving Fund for
As explained by Jasper Finke, ―It is a recognized principle of international law and under our Natural Resources Exploration was sued before the NLRC for illegal
system of separation of powers that diplomatic immunity is dismissal. The Court again upheld the doctrine of diplomatic immunity
essentially a political question and courts should refuse to look invoked by the Fund.

11
Finally, DFA v. NLRC involved an illegal dismissal case filed against the Apart from the decisions of the Italian courts which are the subject of
Asian Development Bank. Pursuant to its Charter and the Headquarters In 1995, successors in title of the victims of the Distomo massacre, the present proceedings, there is almost no State practice which might be
Agreement, the diplomatic immunity of the Asian Development Bank committed by the German armed forces in a Greek village in June 1944, considered to support the proposition that a State is deprived of its
was recognized by the Court. brought proceedings for compensation against Germany before the entitlement to immunity in such a case. Although the Hellenic Supreme
Greek courts. The Greek court ordered Germany to pay compensation Court in the Distomo case adopted a form of that proposition, the
xxxx to the claimants. The appeal by Germany against that judgment was Special Supreme Court in Margellos repudiated that approach two years
dismissed by a decision of the Hellenic Supreme Court, which ordered later. As the Court has noted in paragraph 76 above, under Greek law it
Clearly, the most important immunity to an international official, in the Germany to pay the costs of the appeal proceedings. The successful is the stance adopted in Margellos which must be followed in later cases
discharge of his international functions, is immunity from local Greek claimants under the first-instance and Supreme Court judgments unless the Greek courts find that there has been a change in customary
jurisdiction. There is no argument in doctrine or practice with the applied to the Italian courts for exequatur of those judgments, so as to be international law since 2002, which they have not done. As with the
principle that an international official is independent of the jurisdiction of able to have them enforced in Italy. This was allowed by the Florence territorial tort principle, the Court considers that Greek practice,
the local authorities for his official acts. Those acts are not his, but are Court of Appeal and confirmed by the Italian Court of Cassation. taken as a whole, tends to deny that the proposition advanced by
imputed to the organization, and without waiver the local courts cannot Italy has become part of customary international law.
hold him liable for them. In strict law, it would seem that even the Germany raised the dispute before the ICJ, claiming these decisions
organization itself could have no right to waive an official's immunity for constituted violations of its jurisdictional immunity. In addition, there is a substantial body of State practice from other
his official acts. This permits local authorities to assume jurisdiction over countries which demonstrates that customary international law
and individual for an act which is not, in the wider sense of the term, his The ICJ analyzed the case from the vantage point of immunity, such that does not treat a State’s entitlement to immunity as dependent upon
act at all. It is the organization itself, as a juristic person, which should the jurisdictional immunity of states refers primarily to an immunity from the gravity of the act of which it is accused or the peremptory
waive its own immunity and appear in court, not the individual, except the trial process and is thus preliminary in character, as stated in the nature of the rule which it is alleged to have violated.[23] (Emphasis
insofar as he appears in the name of the organization. Provisions for following manner: supplied)
immunity from jurisdiction for official acts appear, aside from the
aforementioned treatises, in the constitution of most modern At the outset, however, the Court must observe that the proposition that As things stand in the international sphere, the immunity of the state
international organizations. The acceptance of the principle is sufficiently the availability of immunity will be to some extent dependent upon the (and by extension, its agents, in the performance of their governmental
widespread to be regarded as declaratory of international gravity of the unlawful act presents a logical problem. Immunity from functions jure imperii) must stand against even serious violations of
law.[17] (Emphasis supplied) jurisdiction is an immunity not merely from being subjected to an international law, including breaches of international environmental law
adverse judgment but from being subjected to the trial process. It (which is an aspect of human rights law as well). The ICJ concluded that
In this view, the prudent interpretation of the tort exception would be to is, therefore, necessarily preliminary in nature. Consequently, a national
allow the executive branch to first determine whether diplomatic or court is required to determine whether or not a foreign State is entitled to x x x[U]nder customary international law as it presently stands, a State is
sovereign immunity can be invoked by the foreign officials involved. If it immunity as a matter of international law before it can hear the merits of not deprived of immunity by reason of the fact that it is accused of
can be invoked, then the next analysis should be whether this invoked the case brought before it and before the facts have been established. If serious violations of international human rights law or the international
immunity is absolute, as in the treatment of diplomatic envoys. If it is not immunity were to be dependent upon the State actually having law of armed conflict. In reaching that conclusion, the Court must
absolute, then and only then can the Court weave the tort exception into committed a serious violation of international human rights law or the emphasize that it is addressing only the immunity of the State itself from
the law of sovereign immunity and thus attain jurisdiction over the Naval law of armed conflict, then it would become necessary for the national the jurisdiction of the courts of other States; the question of whether,
Officers involved. This is important because the practice has been to court to hold an enquiry into the merits in order to determine whether it and if so to what extent, immunity might apply in criminal proceedings
afford the foreign entity absolute immunity, but withdraw the same from had jurisdiction. If, on the other hand, the mere allegation that the State against an official of the State is not in issue in the present case.[24]
its personnel when they commit private acts. had committed such wrongful acts were to be sufficient to deprive the
State of its entitlement to immunity, immunity could, in effect be negated
This does not mean that the act of the state is to be considered lawful.
SOVEREIGN IMMUNITY UNDER INTERNATIONAL LAW simply by skilful construction of the claim.[22] (Emphasis supplied) However, this also does not mean that state immunity is waived in the
context of an international breach of even a jus cogens norm, as explained
The basic concept of state immunity is that no state may be subjected to The ICJ continued dissecting national law in order to determine whether in this manner:
the jurisdiction of another state without its consent.[18] According to jurisdictional immunity could be defeated by reason of serious violations
Professor Ian Brownlie, it is ―a procedural bar (not a substantive defence) of human rights law or the law of armed conflict. In this, the ICJ clearly The rules of State immunity are procedural in character and are confined
based on the status and functions of the state or official in saw that there was no customary international law norm that led to the to determining whether or not the courts of one State may exercise
question.‖[19] Furthermore, its applicability depends on the law and defeat of immunity by reason of these violations, including the tort jurisdiction in respect of another State. They do not bear upon the
procedural rules of the forum state.[20] In the recent judgment of the exception, viz: question whether or not the conduct in respect of which the proceedings
International Court of Justice (ICJ) in the Jurisdictional Immunities of are brought was lawful or unlawful. That is why the application of the
the State (Germany v. Italy: Greece Intervening) case,[21] the doctrine of contemporary law of State immunity to proceedings concerning events
sovereign immunity was applied in the following context:

12
which occurred in 1943-1945 does not infringe the principle that law
should not be applied retrospectively to determine matters of legality and
responsibility (as the Court has explained in paragraph 58 above). For the
same reason, recognizing the immunity of a foreign State in accordance
with customary international law does not amount to recognizing as
lawful a situation created by the breach of a jus cogens rule, or rendering
aid and assistance in maintaining that situation, and so cannot contravene
the principle in Article 41 of the International Law Commission‘s
Articles on State Responsibility.[25]
presumption of regularity of performance of duties, before it can exercise
its judicial power. [17] G.R. No. 125865, 26 March 2001.
Finally, no exception exists in Philippine or international law that would [18] J-MAURICE ARBOUR & GENEVIEVE PARENTS, DROIT
remove the immunity of the United States in order to place it under the INTERNATIONAL PUBLIC, 5th Ed., 331 (2006).
jurisdiction of Philippine courts. The Writ of Kalikasan is a compulsory
writ, and its issuance initiates a legal process that would circumvent the [19] JAMES CRAWFORD, BROWNLIE‘S PRINCIPLES OF PUBLIC
internationally established rules of immunity. Should the Court issue the INTERNATIONAL LAW, 8th Ed., 487 (2012).
Writ, it could possibly entail international responsibility for breaching the
jurisdictional immunity of a sovereign state. [20] Id. at 488.

CONCLUSION OF JURISDICTIONAL ARGUMENTS AND

IMMUNITY I therefore vote to dismiss the Petition. [21]JURISDICTIONAL IMMUNITIES OF THE STATE (Germany v.
Italy), Judgment (Feb 3, 2012).
What the Court is left to work with is a process by which jurisdiction and
immunity can be determined by answering several questions, summated [1] G.R. No. 185572, February 07, 2012 [22] Id. at 82.
thusly:
[2] G.R. No. 138570, October 10, 2000. [23] Id. at 83-84.
1. Is the act of the foreign national or entity an act jure imperii, such
that it can be considered an act of state entitled to immunity, or [3] G.R. No. 151445, April 11, 2002.
an act jure gestionis, in which case it is to be considered a private
act? [4] G.R. No. 175888, February 11, 2009.
[5] Pub. L. 94-583, 90 Stat. 2891, 28 U.S.C. Sec. 1330, 1332(a), 1391(f) and
2. In respect of the above question, has the executive branch, in
the exercise of its political power, determined whether absolute 1601-1611. CONCURRING OPINION
diplomatic immunity is applicable?
[6] Id., sec. 1605(a)(1).

3. If it is an act jure imperii and thus entitled to sovereign immunity, LEONEN, J.:
[7] Id., sec. 1605(a)(2).
does an exception apply to withdraw the immunity privilege of
such acts? Prefatory
[8] Id., sec. 1605(a)(3).

I agree that the petition should be dismissed primarily because it is moot

[9] Id., sec. 1605(a)(4).
In this case, it is apparent that the act of the U.S.S. Guardian and its and academic.
officers in entering Philippine waters is allowed by the VFA, and as a [10] Id., sec. 1605(a)(5). The parties who brought this petition have no legal standing. They also
treaty privilege should be considered an act jure imperii. Its deviation into
the waters of Tubbataha, and whether this can be considered a private invoke the wrong remedy. In my view, it is time to clearly unpack the
[11] Id., sec. 1605(a)(6). rudiments of our extraordinary procedures in environmental cases in
act, is a factual issue that should be determined by the proper body.
Indeed, while Philippine authorities may not have authorized the order to avoid their abuse. Abuse of our procedures contributes to the
[12] Id., sec. 1605(a)(7). debasement of the proper function of the remedies and invites inordinate
deviation, if the United States government affirms that it gave
the Guardian sufficient discretion to determine its course, then the act is interference from this court from what may be technical and political
[13] Id., sec. 1605(b). decisions that must be made in a different forum. Our sympathy for
not necessarily robbed of its jure imperii character and is thus entitled to
immunity. The course of action of the Philippine government would be environmental concerns never justifies our conversion to an
JASPER FINKE, SOVEREIGN IMMUNITY: RULE, COMITY
[14]
environmental super body.
to engage in diplomatic negotiations for potential treaty breach liability. OR SOMETHING ELSE?, Eur J Int Law (2010) 21(4), 863-864.
As of this moment, the executive branch has not made a determination The writ of kalikasan is not an all-embracing legal remedy to be wielded
[15] Article II, Sec. 2, 1987 CONSTITUTION. like a political tool. It is both an extraordinary and equitable remedy
of the applicable immunity. No correspondence has been sent to the
Court as to the issue. Thus, the Court must act in deference to the which assists to prevent environmental catastrophes. It does not replace
[16] G.R. No. 162230, April 28, 2010. other legal remedies similarly motivated by concern for the environment
executive prerogative to first make this determination under the

13
and the community‘s ecological welfare. Certainly, when the petition This vagueness arises from the debate on which among the sources of 2) for the demarcation of the metes and bounds of the damaged area,
itself alleges that remedial and preventive remedies have occurred, the international law the doctrine of sovereign immunity draws its binding with an additional buffer zone;
functions of the writ cease to exist. In case of disagreement, parties need authority and the content of the doctrine given its source.
to exhaust the political and administrative arena. Only when a concrete 3) for respondents to stop all port calls and war games under the
cause of action arises out of facts that can be proven with substantial This doctrine of relative jurisdictional immunity (sovereign immunity) of Balikatan;
evidence may the proper legal action be entertained. states and their agents becomes binding in our jurisdiction as
international law only through Section 2 of Article II or Section 21 of 4) for respondents to assume responsibility for prior and future
Citizen‘s suits are suits brought by parties suffering direct and substantial Article VII of the Constitution. Article XVII, Section 3 of the environmental damage in general and under the Visiting Forces
injuries; although in the environmental field, these injuries may be shared Constitution is a limitation on suits against our state. It is not the textual Agreement (VFA);
with others. It is different from class suits brought as representative suits anchor for determining the extent of jurisdictional immunities that
under Oposa v. Factoran.[1] In my view, there is need to review this should be accorded to other states or their agents. International law may 5) for the temporary definition of allowable activities near or around the
doctrine insofar as it allows a nonrepresentative group to universally have evolved further than the usual distinction between acta jure imperii Tubbataha Reefs [Natural] Park, but away from the damaged site and the
represent a whole population as well as an unborn generation binding and acta jure gestionis. Indications of state practice even of public additional buffer zone;
them to causes of actions, arguments, and reliefs which they did not respondents show that jurisdictional immunity for foreign states may not
choose. Generations yet unborn suffer from the legal inability to assert apply to certain violations of jus cogens rules of international customary 6) for respondent Secretary of Foreign Affairs to negotiate with the
against false or unwanted representation. law. There can be tort exemptions provided by statute and, therefore, United States representatives for an agreement on environmental
the state practice of an agent‘s sovereign being sued in our courts. guidelines and accountability pursuant to the VFA;
Citizen‘s suits are procedural devices that allow a genuine cause of action
to be judicially considered in spite of the social costs or negative International law does not also prohibit legislation that clarifies national 7) for respondents and appropriate agencies to commence administrative,
externalities of such initiatives. This should be clearly distinguished in policy and, therefore, our own considerations of state practice in relation civil, and criminal proceedings against erring officers and individuals;
our rules and in jurisprudence from class suits that purport to represent to the limits of jurisdictional immunities for other sovereigns. Neither
the whole population and unborn generations. The former is in keeping does international law prohibit domestic courts from shaping exceptions 8) for the declaration of exclusive criminal jurisdiction of Philippine
with the required constitutional protection for our people. The latter is to jurisdictional immunity based upon our reading of the Constitution as authorities over erring USS Guardian personnel;
dangerous and should be used only in very extraordinary or rare well as international and municipal law.
situations. It may be jurisprudentially inappropriate. 9) for respondents to pay just and reasonable compensation in the
I am of the view, therefore, that this case be dismissed principally for its settlement of all meritorious claims for damages caused to the Tubbataha
In my view, decisions relating to environmental concerns should be more procedural infirmities. We should reserve doctrinal exposition and Reefs;
balanced. It must attend in a more sober way to the required balance of declaration of the content of jurisdictional immunities for other
all interests. Hence, our rule with respect to standing should require that sovereigns and their agents when the proper cases merit our attention 10) for respondents to cooperate in securing the attendance of witnesses
parties bringing the suit are sufficiently and substantially possessed of and not yet unduly limit such jurisprudence in relation to the law of the and the collection and production of evidence, including objects
individual interest and capability so that they can properly shape the sea, municipal torts, and violations of international customary law of a jus connected with the offenses related to the grounding of the Guardian;
issues brought before this court. The capability of the parties to bring cogens character. The results in this case would have been different if
suit can readily be seen through the allegations made in their petition. initiated with the proper remedy, by the proper parties in the proper 11) for respondents US officials and their representatives to place a
court. deposit to the TRNP Trust Fund, as defined in Section 17 of RA 10067,
Our doctrine regarding sovereign immunity also needs to be refined in as a bona fide gesture towards full reparations;
the proper case with respect to its nature, source, and its limitations. I
Procedural antecedents 12) for respondents to undertake rehabilitation measures for areas
The doctrine of sovereign immunity evolves out of the theory and affected by the grounding of the Guardian;
practice of sovereignty and the principle par in parem non habet This court was asked to issue a writ of kalikasan with temporary
jurisdictionem. Its particular contours as an international norm have environmental protection order or TEPO pursuant to Rule 7 of A.M. 13) for respondents to publish on a quarterly basis the environmental
evolved far beyond the form it took when the theory of absolute No. 09-6-8-SC, otherwise known as the Rules of Procedure for damage assessment, valuation, and valuation methods, in all stages of
sovereignty was current. Contemporarily, it is understood as a basic right Environmental Cases. Petitioners seek an immediate order from this negotiations to ensure transparency and accountability;
extended to states by other states on the basis of respect for sovereignty court:
and independence.[2] There appears to be a consensus among states that 14) for the convention of a multisectoral technical working group that
sovereign immunity as a concept is legally binding.[3] However, there 1) for respondents to cease and desist all operations over the Guardian will provide scientific and technical support to the Tubbataha Protected
remains to be a lack of international agreement as to how it is to be grounding incident; Area Management Board (TPAMB);
invoked and the extent of immunity in some cases.[4]
15) for respondents Department of Foreign Affairs, Department of

14
National Defense, and the Department of Environmental and Natural Acting on petitioners‘ petition but without necessarily giving due course, Agency is required to perform a nondiscretionary duty. [31]
Resources to review the VFA and the Mutual Defense Treaty in light of this court on May 8, 2013 issued a resolution. The resolution a) required
the right to a balanced and healthful ecology, and any violation related respondents, except the President of the Republic of the Philippines, to On the other hand, the FTCA provides that ―the U.S. Government is
thereto; comment within ten (10) days from notice of the resolution; and b) held liable in tort in the same manner and to the same extent as private
in abeyance the issuance of a TEPO.[18] individuals under like circumstances [but only] if the laws of the state in
16) for the declaration of the grant of immunity under Articles V and VI which the wrongful act occurred provide recovery in similar situations
of the VFA as being violative of equal protection and/or the peremptory We note that on May 27, 2013, the Office of Legal Affairs of the involving private parties.‖[32]
norm of nondiscrimination; Department of Foreign Affairs sent a letter to this court, requesting that
the notice of this court‘s resolution dated May 8, 2013 be returned, as it Petitioners also argued that the USS Guardian is liable in rem[33] to the
17) for permission to resort to continuing discovery measures; and was not an agent for the service of processes upon American Philippines for response costs and damages resulting from the
respondents.[19] destruction, loss, and injury caused to the Tubbataha Reefs. [34] Aside
18) for other just and equitable environmental rehabilitation measures from not having had prior permit to enter the area, petitioners pointed
and reliefs.[5] The pleadings presented the following issues: a) whether petitioners have out that the American respondents had committed gross and inexcusable
legal standing to file a petition for writ of kalikasan with prayer for negligence when it failed to utilize its technical expertise and equipment
Petitioners include representatives from people‘s organizations, non- temporary environmental protection order (TEPO), and b) whether the in preventing the incident.[35] It is their position that this necessarily
government organizations, accredited public interest groups, doctrine of sovereign immunity applies to foreign respondents. rendered sovereign immunity inapplicable to American respondents,
environmental institutes, government officials, and even if they were acting within the scope of their authority, office, or
academicians.[6] Respondents, on the other hand, are the American Petitioners argued that they have locus standi.[20] Having categorized the employment.[36]
commanding officers of the USS Guardian and the Balikatan 2013 petition as a citizen's suit, they alleged that they are representing ―others,
Exercises, incumbent Philippine government officials, and Philippine including minors and generations yet unborn‖ in asserting their II
military officers involved, by virtue of their office, in issues arising out of constitutional right to a balanced and healthful ecology.[21] Petitioners The parties do not have legal standing
the grounding of the USS Guardian in Tubbataha Reefs and its cited this court‘s ruling in Oposa v. Factoran that Article II, Section 16 of
subsequent salvage.[7] the 1987 Constitution was immediately enforceable. The Petitioners brought this case as a citizen‘s suit under the Tubbataha Reefs
pronouncement was anchored on the premise that the right to a balanced Natural Park Act of 2009, in conjunction with the Rules of Procedure for
The USS Guardian is a fifth Avenger Class Mine Countermeasures, and healthful ecology belonged ―to a different category of rights Environmental Cases.[37]
United States Navy ship.[8] The three diplomatic notes issued by the altogether for it concerns nothing less than self-preservation and self-
Embassy of the United States of America in the Philippines dated perpetuation.‖[22] Section 37 of the Tubbataha Reefs Natural Park Act of 2009 allows any
December 3, 2012, December 31, 2012, and January 14, 2013 all
[9] [10] [11]
citizen to file a civil, criminal, or administrative case against:
sought clearance for the ship to ―enter and exit the territorial waters of Petitioners also alleged that the American respondents are not immune
the Philippines and to arrive at the port of Subic Bay for the purpose of from suit.[23] Citing Nicolas v. Romulo,[24] they argued that Article V of the (a) Any person who violates or fails to comply with the provisions of this
routine ship replenishment, maintenance, and crew liberty.‖[12] Visiting Forces Agreement or VFA, which pertained to ―Criminal Act its implementing rules and regulations; or
Jurisdiction,‖[25] establishes a waiver of the US military officers involved
Thus, on January 17, 2013, while en route to Makasaar, Indonesia, in the incident's[26] immunity from suit in light of their violation of (b) Those mandated to implement and enforce the provisions of this Act
the USS Guardian ran aground in the Tubbataha Reefs‘ south atoll, Republic Act 10067, or the Tubbataha Reefs Natural Park (TRNP) Act with respect to orders, rules and regulations issued inconsistent with this
approximately 80 miles east-southeast of Palawan.[13] In a statement of 2009,[27] including its entry in the area without proper permit.[28] Also Act; and/or
issued on January 25, 2013, US Ambassador to the Philippines Harry K. citing US cases New York v. United States Army Corps of Engineers (E.D.N.Y.
Thomas expressed his regret over the incident, recognizing the legitimate September 24, 2012) and Trudeau v. FTC (456 F.3d 178, D.C. Cir. 2006), (c) Any public officer who wilfully or grossly neglects the performance of
concerns over the damage caused to the reef.[14] On February 5, 2013, a petitioners further argued that existing US federal statutes clearly provide an act, specifically enjoined as a duty by this Act or its implementing rules
joint statement was issued by the Philippines and the United States where that American government agencies have statutorily waived their and regulations; or abuses his authority in the performance of his duty;
the latter undertook to provide compensation.[15] On the same day, a immunity from any equitable action involving environmental or, in any manner improperly performs his duties under this act or its
salvage plan was submitted by a Singaporean company contracted by the damages.[29] They referred to both Resource Conservation and Recovery implementing rules and regulations: Provided, however, That, no suit can
US Navy to conduct the USS Guardian salvage operations.[16] The salvage Act of 1976 (RCRA) and the Federal Tort Claims Act (FTCA) as legal be filed until after a thirty (30)-day notice has been given to the public
operations were completed on March 30, 2013.[17] bases.[30] officer and the alleged violator concerned and no appropriate action has
been taken thereon. The court shall exempt such action from the
On April 17, 2013, petitioners filed the present petition for writ of Petitioners stated that RCRA waives sovereign immunity in citizen‘s suits payment of filing fees, upon prima facie showing of the non-enforcement
kalikasan with prayer for temporary environmental protection order when a) there is a need to enforce a permit, standard, or regulation; b) or violations complained of and exempt the plaintiff from the filing of an
(TEPO). there is a need to abate an imminent and substantial danger to health or injunction bond for the issuance of preliminary injunction. In the event
the environment; or c) the United States Environmental Protection

15
that the citizen should prevail, the court shall award reasonable attorney's be a trustee of an express trust, a guardian, an executor or administrator, are ―minors and generations yet unborn.‖
fees, moral damages and litigation costs as appropriate. or a party authorized by law or these Rules. An agent acting in his own
name and for the benefit of an undisclosed principal may sue or be sued ―Minors and generations yet unborn‖ is a category of real party in
While the Tubbataha Reefs Natural Park Act enumerates causes of action without joining the principal except when the contract involves things interest that was first established in Oposa v. Factoran. In Oposa v. Factoran,
available against duty-bearers, it does not specifically describe the parties belonging to the principal.(3a)[42] this court ruled that the representatives derived their personality to file a
who may file a case. suit on behalf of succeeding generations from "intergenerational
A ―representative‖ is not the party who will actually benefit or suffer responsibility."[46] The case mirrored through jurisprudence the general
The ―environmental‖ nature of this petition, based upon the alleged from the judgment of the case. The rule requires that the beneficiary be moral duty of the present generation to ensure the full enjoyment of a
violation of the Tubbataha Reefs Natural Park Act, by itself does not and identified as he or she is deemed the real party in interest.[43] This means balanced and healthful ecology by the succeeding generations. [47]
should not automatically render the Rules of Procedure for that acting in a representative capacity does not turn into a real party in
Environmental Cases applicable. At best, it must be reconciled with interest someone who is otherwise an outsider to the cause of action. Since environmental cases necessarily involve the balancing of different
rules on parties as contained in the Rules of Court. This is to preclude a types and degrees of interests, allowing anyone from the present
situation where the interpretation of the Rules of Procedure for This rule enumerates who may act as representatives, including those generation to represent others who are yet unborn poses three possible
Environmental Cases results in a ruling inconsistent or contrary to acting in a fiduciary capacity. While not an exhaustive list, it does set a dangers.
established legal concepts. It is my position that unless the remedy limit by allowing only those who are ―authorized by law or these
sought will serve the purpose of preventing an environmental Rules.‖[44] In environmental cases, this section may be used to bring a First, they run the risk of foreclosing arguments of others who are unable
catastrophe, the traditional procedural route should be taken. This suit, provided that two elements concur: a) the suit is brought on behalf to take part in the suit, putting into question its
means that even in environmental cases, Rule 3, Section 2, 3, or 12 of the of an identified party whose right has been violated, resulting in some representativeness. Second, varying interests may potentially result in
1997 Rules of Civil Procedure should still also apply. form of damage, and b) the representative authorized by law or the Rules arguments that are bordering on political issues, the resolutions of which
of Court to represent the victim. do not fall upon this court. Third, automatically allowing a class or
Real party in interest citizen's suit on behalf of "minors and generations yet unborn" may
The citizen‘s suit under the Rules of Procedure for Environmental Cases result in the oversimplification of what may be a complex issue, especially
Rule 3, Section 2 pertains to real party in interest: is a representative suit. A citizen‘s suit is defined: in light of the impossibility of determining future generation‘s true
interests on the matter.
SEC. 2. Parties in interest.— A real party in interest is the party who SEC. 5. Citizen suit. – Any Filipino citizen in representation of others,
stands to be benefited or injured by the judgment in the suit, or the party including minors or generations yet unborn, may file an action to enforce Decisions of this court will bind future generations. The unbridled and
entitled to the avails of the suit. Unless otherwise authorized by law or rights or obligations under environmental laws. Upon the filing of a misguided use of this remedy by supposed representatives may not only
these Rules, every action must be prosecuted or defended in the name of citizen suit, the court shall issue an order which shall contain a brief weaken the minors‘ and unborn‘s ability to decide for themselves but
the real party in interest. (2a)[38] description of the cause of action and the reliefs prayed for, requiring all may have unforeseen and unintended detrimental effects on their
interested parties to manifest their interest to intervene in the case within interests.
A real party in interest is a litigant whose right or interest stands to fifteen (15) days from notice thereof. The plaintiff may publish the order
benefit or get injured by the judgment of the case.[39] The interest once in a newspaper of a general circulation in the Philippines or furnish The last point is especially crucial in light of res judicata. A long-
referred to must be material interest, founded upon a legal right sought all affected barangays copies of said order. established doctrine on litigation, res judicata:
to be enforced.[40] They bring a suit because the act or omission of
another has caused them to directly suffer its consequences.[41] Simply In my view, this rule needs to be reviewed. A citizen‘s suit that seeks to . . . is an old axiom of law, dictated by wisdom and sanctified by age, and
put, a real party in interest has a cause of action based upon an existing enforce environmental rights and obligations may be brought by any founded on the broad principle that it is to the interest of the public
legal right-duty correlative. Filipino who is acting as a representative of others, including minors or that there should be an end to litigation by the same parties over a
generations yet unborn.[45] As representatives, it is not necessary for subject once fully and fairly adjudicated. It has been appropriately
Representatives as parties petitioners to establish that they directly suffered from the grounding of said that the doctrine is a rule pervading every well-regulated system of
the USS Guardian and the subsequent salvage operations. However, it is jurisprudence, and is put upon two grounds embodied in various
Section 3 of Rule 3, on the other hand, discusses parties acting in imperative for them to indicate with certainty the injured parties on maxims of the common law: one, public policy and necessity,
representation of the real party in interest: whose behalf they bring the suit. Furthermore, the interest of those they which makes it to the interest of the State that there should be an
represent must be based upon concrete legal rights. It is not sufficient to end to litigation – interest reipublicae ut sit finis litium; the other,
SEC. 3. Representatives as parties. — Where the action is allowed to draw out a perceived interest from a general, nebulous idea of a potential the hardship on the individual that he should be vexed twice for
be prosecuted or defended by a representative or someone acting in a ―injury.‖ one and the same cause – nemo debet bis vexari pro una et eadem
fiduciary capacity, the beneficiary shall be included in the title of the case causa. A contrary doctrine would subject the public peace and quiet to
and shall be deemed to be the real party in interest. A representative may This is particularly important when the parties sought to be represented the will and neglect of individuals and prefer the gratification of the

16
litigious disposition on the part of suitors to the preservation of the our children’s children. Even before they are born, we again restricted their ability to The complaint in the instant case explicitly declared that the plaintiffs-
public tranquillity and happiness.[48] (Emphasis supplied, citation omitted) make their own arguments. appellants instituted the "present class suit under Section 12, Rule 3, of
the Rules of Court in behalf of CMI subscribing stockholders" but did
The elements of res judicata are: It is my opinion that, at best, the use of the Oposa doctrine in environmental cases not state the number of said CMI subscribing stockholders so that the
should be allowed only when a) there is a clear legal basis for the representative suit; b) trial court could not infer, much less make sure as explicitly required by
. . . (1) the former judgment must be final; (2) the former judgment there are actual concerns based squarely upon an existing legal right; c) there is no the statutory provision, that the parties actually before it were
must have been rendered by a court having jurisdiction of the possibility of any countervailing interests existing within the population represented or sufficiently numerous and representative in order that all interests
subject matter and the parties; (3) the former judgment must be a those that are yet to be born; and d) there is an absolute necessity for such standing concerned might be fully protected, and that it was impracticable to
judgment on the merits; and (4) there must be between the first and because there is a threat of catastrophe so imminent that an immediate protective bring such a large number of parties before the court.
subsequent actions (i) identity of parties or at least such as measure is necessary. Better still, in the light of its costs and risks, we abandon the
representing the same interest in both actions; (ii) identity of subject precedent all together. The statute also requires, as a prerequisite to a class suit, that the subject-
matter, or of the rights asserted and relief prayed for, the relief being matter of the controversy be of common or general interest to numerous
founded on the same facts; and, (iii) identity of causes of action in both Class suit persons. Although it has been remarked that the "innocent
actions such that any judgment that may be rendered in the other action 'common or general interest' requirement is not very helpful in
will, regardless of which party is successful, amount to res judicata in the The same concern regarding res judicata also applies to a class suit. determining whether or not the suit is proper," the decided cases
action under consideration.[49] (Emphasis supplied, citation omitted) in our jurisdiction have more incisively certified the matter when
Rule 3, Section 12 of the Rules of Court states: there is such common or general interest in the subject matter of
An absolute identity of the parties is not required for res judicata to the controversy. By the phrase "subject matter of the action" is
apply, for as long as there exists an identity or community of interest. [50] SEC. 12. Class suit. — When the subject matter of the controversy is meant "the physical facts, the things real or personal, the money,
one of common or general interest to many persons so numerous that it lands, chattels, and the like, in relation to which the suit is
Res judicata renders conclusive between the parties and their privies a is impracticable to join all as parties, a number of them which the court prosecuted, and not the delict or wrong committed by the
ruling on their rights, not just for the present action, but in all subsequent finds to be sufficiently numerous and representative as to fully protect defendant."[53] (Emphasis supplied, citations omitted)
suits. This pertains to all points and matters judicially tried by a the interests of all concerned may sue or defend for the benefit of all.
competent court. The doctrine bars parties to litigate an issue more than Any party in interest shall have the right to intervene to protect his The same case referred to the United States Federal Rules of Civil
once, and this is strictly applied because ―the maintenance of public individual interest. (12a) Procedure. After having been raised by Mathay et al. as legal basis for its
order, the repose of society . . . require that what has been definitely class suit, this court held:
determined by competent tribunals shall be accepted as irrefragable legal In Mathay et al. v. The Consolidated Bank and Trust Company,[52] this court
truth.‖[51] held that a class suit must essentially contain the following elements: . . . We have no conflict with the authorities cited; those were rulings
under the Federal Rules of Civil Procedure, pursuant to Rule 23 of
Considering the effect of res judicata, the ruling in Oposa v. Factoran has The necessary elements for the maintenance of a class suit are which, there were three types of class suits, namely: the true, the
opened a dangerous practice of binding parties who are yet incapable of accordingly (1) that the subject matter of the controversy be one of hybrid, and the spurious, and these three had only one feature in
making choices for themselves, either due to minority or the sheer fact common or general interest to many persons, and (2) that such common, that is, in each the persons constituting the class must be
that they do not yet exist. Once res judicata sets in, the impleaded minors persons be so numerous as to make it impracticable to bring them so numerous as to make it impracticable to bring them all before
and generations yet unborn will be unable to bring a suit to relitigate their all to the court. An action does not become a class suit merely because the court. The authorities cited by plaintiffs-appellants refer to the
interest. it is designated as such in the pleadings. Whether the suit is or is not a spurious class action Rule 23 (a) (3) which involves a right sought to be
class suit depends upon the attending facts, and the complaint, or enforced, which is several, and there is a common question of law or fact
Perhaps it is time to revisit the ruling in Oposa v. Factoran. other pleading initiating the class action should allege the existence of the affecting the several rights and a common relief is sought. The spurious
necessary facts, to wit, the existence of a subject matter of common class action is merely a permissive joinder device; between the members
That case was significant in that, at that time, there was need to call attention to interest, and the existence of a class and the number of persons in of the class there is no jural relationship, and the right or liability of each
environmental concerns in light of emerging international legal principles. While the alleged class, in order that the court might be enabled to is distinct, the class being formed solely by the presence of a common
“intergenerational responsibility” is a noble principle, it should not be used to obtain determine whether the members of the class are so numerous as to question of law or fact. This permissive joinder is provided in Section 6
judgments that would preclude future generations from making their own assessment make it impracticable to bring them all before the court, to contrast of Rule 3, of our Rules of Court. Such joinder is not and cannot be
based on their actual concerns. The present generation must restrain itself from the number appearing on the record with the number in the class regarded as a class suit, which this action purported and was intended to
assuming that it can speak best for those who will exist at a different time, under a and to determine whether claimants on record adequately be as per averment of the complaint.
different set of circumstances. In essence, the unbridled resort to representative suit will represent the class and the subject matter of general or common
inevitably result in preventing future generations from protecting their own rights and interest. It may be granted that the claims of all the appellants involved the
pursuing their own interests and decisions. It reduces the autonomy of our children and same question of law. But this alone, as said above, did not

17
constitute the common interest over the subject matter courts to be liberal in assessing ―common interest.‖ comment. In my view, this pleading falls short of the requirement of
indispensable in a class suit. . . .[54] (Emphasis supplied, citations representativeness.
omitted) Another essential element of a class suit is that petitioners must be
sufficiently numerous and representative so as to fully protect the interest of all For instance, it is clear in some of the reliefs that were requested that the
In a class suit, petitioners necessarily bring the suit in two capacities: first, concerned. One of the dangers of bringing a class suit is that while the arguments may not be what all those they purport to represent really
as persons directly injured by the act or omission complained of; and parties‘ environmental interest shares a common legal basis, the extent want. As an illustration, the petition requests:
second, as representatives of an entire class who have suffered the same and nature of that interest differ depending on circumstances.
injury. In order to fully protect all those concerned, petitioners must 3) for respondents to stop all port calls and war games under the
show that they belong in the same universe as those they seek to In the case of Re: Request of the Plaintiffs, Heirs of the Passengers of the Doña Balikatan;
represent. More importantly, they must establish that, in that universe, Paz,[58] which quoted Moore‘s Federal Practice we noted:
they can intervene on behalf of the rest. The facts in this case and the writ of kalikasan certainly have no bearing
A "true class action" — distinguished from the so-called hybrid on why this court should issue an injunction against all port calls in any
These requirements equally apply in environmental cases. and the spurious class action in U.S. Federal Practice — ―involves part of the country made by all kinds of ships even if this is related to the
principles of compulsory joinder, since . . . (were it not) for the Balikatan exercises. ―War games‖ even undertaken solely on land has no
Petitioners who bring the suit both for themselves and those they seek to numerosity of the class members all should . . . (be) before the court. bearing on the subject matter of this case. Also, in the facts as alleged in
represent must share a common legal interest — that is, the subject of Included within the true class suit . . . (are) the shareholders' derivative the pleading, it is not clear how all those affected by the ecological
the suit over which there exists a cause of action is common to all suit and a class action by or against an unincorporated association. . . . A mishap that may have occurred in the Tubbataha Reefs would also be
persons who belong to the group.[55] As a result, the right sought to be judgment in a class suit, whether favorable or unfavorable to the interested in stopping ―war games under the Balikatan.‖ The pleading
enforced is enjoyed collectively, and not separately or class, is binding under res judicata principles upon all the asserts that it represents all generations yet unborn. Thus, it includes the
individually.[56] The substantial injury must have been suffered by both members of the class, whether or not they were before the court. It sons and daughters of all government officials who are now involved in
the parties bringing the suit and the represented class. is the non-divisible nature of the right sued on which determines the Balikatan exercises. It also includes the military commanders who are
both the membership of the class and the res judicata effect of the now administering such exercise. The broad relief requested belies the
However, it is recognized that any damage to the environment affects final determination of the right.‖[59] (Emphasis supplied) representativeness of the suit.
people differently, rendering it impossible for the injury suffered to be of
the same nature and degree for each and every person. For instance, Those who bring class suits do so, carrying a heavy burden of Of similar nature are the following prayers for relief in the petition:
second-hand smoke from one who lights up a cigarette may cause lung representation. All the parties represented may not have consented to
and other health complications of a much graver degree to exposed the agency imposed on them. 4) for respondents to assume responsibility for prior and future
commuters, compared to those who are kept insulated by well- environmental damage in general and under the Visiting Forces
maintained and well-ventilated buildings. The same may be said for Courts, therefore, must ensure that the parties that bring the suit are Agreement (VFA);
dumpsites along the shores of a bay. The gravity of injury they cause to sufficiently numerous to ensure that all possible interests and arguments
those whose source of livelihood is purely fishing in the affected area have been considered. The community, class, group, or identity that is 5) for the temporary definition of allowable activities near or around the
would be entirely different from that suffered by an office worker. represented must be sufficiently defined so that the court will be able to Tubbataha Reefs [Natural] Park, but away from the damaged site and the
properly assess that the parties bringing the suit are properly additional buffer zone;
The differences in effects, ranging from miniscule to grave, increase the representative.
possibility of ―free-riders‖ in a case. This results in a negative externality: an 6) for respondent Secretary of Foreign Affairs to negotiate with the
environmental management concept that delves into the effect of an In view of the technical nature of some environmental cases, not only United States representatives for an agreement on environmental
individual‘s or firm‘s action on others.[57] In this case, the effect on should the parties be representative in terms of the interests and guidelines and accountability pursuant to the VFA;
others is a disadvantage or an injury. arguments that they bring, they must likewise show that they have the
capability to bring reasonably cogent, rational, scientific, well-founded ....
In most instances where this free-rider or negative externality exists, a arguments. This is so because if they purportedly represent a
suit is not filed because the cost of maintaining and litigating outweighs community, class, group, or identity, we should assume that all those 8) for the declaration of exclusive criminal jurisdiction of Philippine
the actual damage suffered due to the act or omission of another. The represented would have wanted to argue in the best possible manner. authorities over erring USS Guardian personnel;
theory is that bringing a class suit allows those who are not as affected as
petitioners, though they may share the same interest, to latch their claim The cogency and representativeness of the arguments can readily be seen . . . .
on someone else without any personal expense. There must be some in the initiatory pleading. In the special civil actions invoked in this case,
assurances, however, that the interests are the same and the arguments this court has the discretion to scrutinize the initiatory pleading to 14) for the convention of a multisectoral technical working group that
that should have been brought by others who do not have the resources determine whether it should grant due course prior or after the filing of a will provide scientific and technical support to the Tubbataha Protected
to bring the suit are properly represented. This is why the rules allow

18
Area Management Board (TPAMBl); Section 1. Nature of the writ. - The writ is a remedy available to a natural  Renato Reyes Jr., Secretary-General of Bagong Alyansang
or juridical person, entity authorized by law, people‘s organization, non- Makabayan (Bayan)[73]
15) for respondents Department of Foreign Affairs, Department of governmental organization, or any public interest group accredited by  Hon. Neri Javier Colmenares, Representative of Bayan Muna
National Defense, and the Department of Environmental and Natural or registered with any government agency, on behalf of persons Party-list[74]
Resources to review the VFA and the Mutual Defense Treaty in light of whose constitutional right to a balanced and healthful ecology is  Roland Simbulan, Ph.D., Junk VFA Movement[75]
the right to a balanced and healthful ecology, and any violation related violated, or threatened with violation by an unlawful act or
 Hon. Raymond Palatino, Representative of Kabataan Party-
thereto; omission of a public official or employee, or private individual or
list[76]
entity, involving environmental damage of such magnitude as to
16) for the declaration of the grant of immunity under Articles V and VI prejudice the life, health or property of inhabitants in two or more  Peter Gonzales, Vice Chairperson of Pambansang Lakas ng
of the VFA as being violative of equal protection and/or the peremptory cities or provinces. (Emphasis supplied) Kilusang Mamamalakaya ng Pilipinas (Pamalakaya)[77]
norm of nondiscrimination;  Elmer Labog, Chairperson of Kilusang Mayo Uno [78]
The writ of kalikasan is a remedy that covers environmental damages the  Joan May Salvador, Secretary-General of Gabriela[79]
17) for permission to resort to continuing discovery measures magnitude of which transcends both political and territorial  Theresa Concepcion, Earth Island Institute[80]
boundaries.[60] It specifically provides that the prejudice to life, health, or  Mary Joan Guan, Executive Director for Center for Women's
Not all environmental cases need to be brought as class suits. There is property caused by an unlawful act or omission of a public official, public Resources[81]
no procedural requirement that majority of those affected must file a suit employee, or a private individual or entity must be felt in at least two
in order that an injunctive writ or a writ of kalikasan can be issued. It is cities or provinces.[61] The petition for its issuance may be filed on behalf
sufficient that the party has suffered its own direct and substantial of those whose right to a balanced and healthful ecology is violated, Petitioners satisfy the first requirement as they comprise both natural
interest, its legal basis is cogent, and it has the capability to move forward provided that the group or organization which seeks to represent is duly persons and groups duly recognized by the government. It is doubtful,
to present the facts and, if necessary, the scientific basis for its analysis accredited. [62]
however, whether there are actual injured parties being represented. As
for some of these cases to be given due course. discussed previously, a citizen's suit on an environmental issue must be
Two things must be examined: first, whether petitioners are qualified to resorted to responsibly.
Parenthetically, the humility of bringing suits only in the name of bring this suit under the requirements of the provisions; and second,
petitioners will protect them from the charge that more than the legal whether there are actual injured parties being represented. On the first Petitioners in this case also seek the issuance of a temporary
arguments they want to bring, they also want to impose their own issue, the following petitioners bring this case as individuals: environmental protection order or TEPO. Rule 7, Part III of the Rules
political views as views which are universally accepted. of Procedure for Environmental Cases provides:
In all environmental cases, it is also not necessary that generations yet unborn be  Rev. Pedro Agiro, Vicar Apostolic of Puerto Princesa[63] SEC. 8. Issuance of Temporary Environmental Protection Order (TEPO). – If it
represented. It is not also necessary that minors bring the suit. In my view,
 Rev. Deogracias Iniguez, Jr., Bishop-Emeritus of Caloocan[64] appears from the verified complaint with a prayer for the issuance of an
pleading their interests have no value added to the case except for its
 Frances Quimpo[65] Environmental Protection Order (EPO) that the matter is of extreme
emotive effect at the risk of encouraging a paternal attitude toward our
 Teresita R. Perez, Ph.D[66] urgency and the applicant will suffer grave injustice and irreparable
children and for those belonging to generations yet unborn. Certainly, it
 Giovanni Tapang, Ph.D[67] injury, the executive judge of the multiple-sala court before raffle or the
was not necessary with respect to the putative cause of action relating to
presiding judge of a single-sala court as the case may be, may issue ex
the grounding of the USS Guardian.  Jose Enrique Africa[68] parte a TEPO effective for only seventy-two (72) hours from date of the
 Nestor Baguinon[69] receipt of the TEPO by the party or person enjoined. Within said period,
With the class suit improperly brought, the parties who filed this petition  A. Edsel Tupaz[70] the court where the case is assigned, shall conduct a summary hearing to
have no legal standing. To protect the individuals, families, and
determine whether the TEPO may be extended until the termination of
communities who are improperly represented, this case should be
The following petitioners represent organizations: the case.
dismissed.
The court where the case is assigned, shall periodically monitor the
III existence of acts that are the subject matter of the TEPO even if issued
A petition for a writ of kalikasan by the executive judge, and may lift the same at any time as circumstances
is a wrong remedy  Clemente Bautista Jr., Coordinator of Kalikasan People's
Network for the Environment[71] may warrant.
Rule 7, Part III of the Rules of Procedure for Environmental Cases  Maria Carolina Araullo, Chairperson of Bagong Alyansang
The applicant shall be exempted from the posting of a bond for the
pertaines to the writ of kalikasan. It describes the nature of the writ: Makabayan (Bayan)[72] issuance of a TEPO. (Emphasis supplied)

19
 its consent." makes the law on which the right depends. In the case of foreign
A TEPO is an order which either directs or enjoins a person or States, the rule is derived from the principle of the sovereign
government agency to perform or refrain from a certain act, for the In Air Transportation Office v. Spouses Ramos,[88] this court underscored the equality of States, as expressed in the maxim par in parem non
purpose of protecting, preserving, and/or rehabilitating the practical considerations underlying the doctrine: habet imperium. All states are sovereign equals and cannot assert
environment.[82] The crucial elements in its issuance are the presence of jurisdiction over one another. A contrary attitude would "unduly vex the
"extreme urgency" and "grave injustice and irreparable injury" to the Practical considerations dictate the establishment of an immunity peace of nations.‖[95](Emphasis supplied, citations omitted)
applicant.[83] 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 V
Petitioners hinge the basis for this prayer on the salvage operations obstructed and public safety endangered because of the number of Sovereign immunity under international law
conducted immediately after the incident. The remedy is no longer suits that the State has to defend against . . . .[89] (Emphasis supplied,
available considering that all activities to remove the grounded USS citation omitted) Under international law, sovereign immunity remains to be an abstract
Guardian have been concluded.[84] Furthermore, the Notice to Mariners concept. On a basic level, it is understood as a basic right extended to
No. 011-2013 issued by the Philippine Coast Guard on January 29, 2013 The textual reference to ―[the] State‖ in Article XVI, Section 3 of the states by other states on the basis of respect for sovereignty and
effectively set the metes and bounds of the damaged area.[85] This notice Constitution does not refer to foreign governments. Rather, as a independence.[96] There appears to be a consensus among states that
also prohibited "leisure trips to Tubbataha" and advised "all watercrafts doctrine in international law, the concept of sovereign immunity is sovereign immunity as a concept is legally binding.[97] Nevertheless, legal
transitting the vicinity to take precautionary measures."[86] incorporated into our jurisdiction as international custom or general scholars observe that there remains to be a lack of agreement as to how it
principle of international law through Article II, Section 2, which is to be invoked or exercised in actual cases.[98] Finke presents:
In light of the facts of this case, I vote that the petition be also dismissed provides:
for being moot and being brought through the wrong remedy. States accept sovereign immunity as a legally binding concept, but only
Section 2. The Philippine renounces war as an instrument of national on a very abstract level. They agree on the general idea of immunity,
IV policy, adopts the generally accepted principles of international law as but disagree on the extent to which they actually must grant
Doctrine of relative jurisdictional immunity part of the law of the land and adheres to the policy of peace, equality, immunity in a specific case.[99] (Emphasis supplied, citations omitted)
(sovereign immunity) justice, freedom, cooperation, and amity with all nations. [90]
This vagueness arises from the debate about the sources of international
It is my position that doctrine on relative jurisdictional immunity of Alternatively, should there be an international agreement or a law for the doctrine of sovereign immunity.
foreign states or otherwise referred to as sovereign immunity should be treaty[91] that articulates the scope of jurisdictional immunity for other
further refined. I am of the view that immunity does not necessarily sovereigns, then it can be incorporated through Article VII, Section 21, Article 38(1) of the Statute of the International Court of Justice (ICJ
apply to all the foreign respondents should the case have been which provides: Statute)[100] enumerates the classic sources of international law:[101]
brought in a timely manner, with the proper remedy, and in the
proper court. Those who have directly and actually committed No treaty or international agreement shall be valid and effective unless The Court, whose function is to decide in accordance with international
culpable acts or acts resulting from gross negligence resulting in concurred in by at least two-thirds of all the Members of the Senate. law such disputes as are submitted to it, shall apply:
the grounding of a foreign warship in violation of our laws defining
a tortious act or one that protects the environment which In Republic of Indonesia v. Vinzon,[92] this court ruled that ―[the] rule that a a. international conventions, whether general or particular,
implement binding international obligations cannot claim State may not be sued without its consent is a necessary consequence of establishing rules expressly recognized by the contesting states;
sovereign immunity. the principles of independence and equality of States.‖[93] However, it
did not make any reference to Article XVI, Section 3 of the b. international custom, as evidence of a general practice
Some clarification may be necessary to map the contours of relative Constitution. Instead, it used Article II, Section 2[94] as basis for its accepted as law;
jurisdictional immunity of foreign states otherwise known as the doctrine discussion:
of sovereign immunity. c. the general principles of law recognized by civilized
International law is founded largely upon the principles of nations;
The doctrine of sovereign immunity can be understood either as a reciprocity, comity, independence, and equality of States which
domestic or an international concept.[87] were adopted as part of the law of our land under Article II, Section d. subject to the provisions of Article 59, judicial decisions and the
2 of the 1987 Constitution. The rule that a State may not be sued teachings of the most highly qualified publicists of the various
As a domestic concept, sovereign immunity is understood as the non- without its consent is a necessary consequence of the principles of nations, as subsidiary means for the determination of rules of
suability of the state. In the case of the Republic of the Philippines as a independence and equality of States. As enunciated in Sanders v. law.
State, this is contained in Article XVI, Section 3 of the 1987 Philippine Veridiano II, the practical justification for the doctrine of sovereign
Constitution, which provides that "[the] State may not be sued without immunity is that there can be no legal right against the authority that

20
 sovereign immunity in this case, on account of a warship entering a
International conventions, or treaties, are ―international agreement[s] However, the European Convention on Sovereign Immunity's restricted area and causing damage to the TRNP reef system. This is
concluded between States in written form and governed by international application is limited to the signatories of the treaty: based on a reading of Articles 31 and 32 of the UNCLOS, thus:
law, whether embodied in a single instrument, or in two or more related
instruments and whatever its particular designation.‖[102] International The Convention requires each Contracting State to give effect to Article 31
custom, or customary international law, pertains to principles, not necessarily judgments rendered against it by the courts of another Contracting
expressed in treaties, resulting from practices consistently followed by State. It is in particular for this reason that it operates only between Responsibility of the flag State for damage caused by a warship or other government
states due to a sense of legal obligation.[103] General principles of law the Contracting States on the basis of the special confidence ship operated for non-commercial purposes
recognized by civilized nations are "(those) principles of law, private and subsisting among the Members of the Council of Europe. The
public, which contemplation of the legal experience of civilized nations Convention confers no rights on nonContracting States; in The flag State shall bear international responsibility for any loss or
leads one to regard as obvious maxims of jurisprudence of a general and particular, it leaves open all questions as to the exercise of jurisdiction damage to the coastal State resulting from the non-compliance by a
fundamental character."[104] against non-Contracting States in Contracting States, and vice versa. warship or other government ship operated for non-commercial
purposes with the laws and regulations of the coastal State concerning
Sovereign immunity under treaty law On the other hand, the UN Convention on Jurisdictional Immunities of passage through the territorial sea or with the provisions of this
States[108] is a treaty adopted by the UN General Assembly in December Convention or other rules of international law.
Attempts have been made to establish sovereign immunity under treaty 2004. It was opened for signature on January 27, 2005, but is yet to be in
law.[105] On a multilateral level, two treaties on this issue have been force[109] for lacking the requisite number of member-state This is, however, subject to Article 32 of the same treaty which provides:
codified: a) the European Convention on State Immunity (ECSI), and b) signatories.[110] At present, it only has 28 signatories, 16 of which have
the UN Convention on Jurisdictional Immunities of States (UNCJIS). either ratified, accepted, approved, or acceded to the treaty. [111] Article 32

The European Convention on State Immunity is a treaty established
through the Council of Europe on May 16, 1972.[106] In the Council of
Europe's explanatory report, sovereign immunity is defined as "a concept
of international law, which has developed out of the principle par in parem
non habet imperium, by virtue of which one State is not subject to the
jurisdiction of another State."[107] The treaty arose out of the need to
address cases where states become involved in areas of private law:
For many years State immunity has occupied the attention of eminent
jurists. It is also the object of abundant case law. The development of
international relations and the increasing intervention of States in
spheres belonging to private law have posed the problem still more
acutely by increasing the number of disputes opposing individuals
and foreign States.
There are, at present, two theories, that of absolute State
immunity which is the logical consequence of the principle stated
above and that of relative State immunity which is tending to
predominate on account of the requirement of modern conditions.
According to this latter theory, the State enjoys immunity for acts
jure imperii but not for acts jure gestionis, that is to say when it
acts in the same way as a private person in relations governed by
private law. This divergence of opinion causes difficulties in
international relations. States whose courts and administrative authorities
apply the theory of absolute State immunity are led to call for the same
treatment abroad. (Emphasis supplied)
UNCJIS refers to jurisdictional immunities of states as a principle of Immunities of warships and other government ships operated for non-commercial
customary international law.[112] Scholars, however, point out that this purposes
posture is not accurate. According to Nagan and Root:[113]
With such exceptions as are contained in subsection A and in articles 30
It may be true that all states recognize jurisdictional immunity, and 31, nothing in this Convention affects the immunities of warships
but as we have already alluded to, that is so only at an abstract and other government ships operated for non-commercial purposes.
level; there is ―substantial disagreement on detail and
substance.‖[114] (Emphasis supplied, citations omitted) I agree that the UNCLOS does provide an opening clarifying the
―international responsibility‖ of the flag ship for non-compliance by a
Wiesinger adds: warship with the laws of a coastal State. However, because of Article 32
of the same treaty, it would seem that it should not be the only basis for
The UN Convention is not a codification of customary this court to infer either a waiver by the United States or authority under
international law concerning enforcement measures either, since it international law for domestic courts to shape their own doctrines of
introduces new categories of State property, which are immune sovereign jurisdictional immunity.
from execution. Moreover, it contains a connection requirement of
property serving commercial purposes with the entity against which the Other international agreements
claim was directed, which is a novelty in international law.[115] (Emphasis
supplied) The text of Article VII, Section 21 would seem to require Senate
concurrence for treaties and ―international agreements.‖ The term
The Philippines has neither signed nor ratified the UNCJIS. Article VII, ―international agreements,‖ however, for purposes of granting sovereign
Section 21 of the Constitution clearly provides the legal requisites to a immunity, should not cover mere executive agreements.
valid and enforceable international treaty: "No treaty or international
agreement shall be valid and effective unless concurred in by at least two- We are aware of Bayan Muna v. Romulo[116] where the ponente for this
thirds of all the Members of the Senate." court held:
Senior Associate Justice Antonio T. Carpio ably points to the UN . . . International agreements may be in the form of (1) treaties that
Convention on the Law of the Sea (UNCLOS) as basis for the waiver of require legislative concurrence after executive ratification; or (2)

21
executive agreements that are similar to treaties, except that they States Senate for concurrence pursuant to its Constitution, is to accord The records reveal that the United States Government, through
do not require legislative concurrence and are usually less formal strict meaning to the phrase. Ambassador Thomas C. Hubbard, has stated that the United States
and deal with a narrower range of subject matters than treaties. government has fully committed to living up to the terms of the VFA.
Well-entrenched is the principle that the words used in the Constitution For as long as the United States of America accepts or acknowledges the
Under international law, there is no difference between treaties and are to be given their ordinary meaning except where technical terms are VFA as a treaty, and binds itself further to comply with its obligations
executive agreements in terms of their binding effects on the employed, in which case the significance thus attached to them prevails. under the treaty, there is indeed marked compliance with the mandate of
contracting states concerned, as long as the negotiating Its language should be understood in the sense they have in common the Constitution.[121] (Emphasis supplied, citations omitted)
functionaries have remained within their powers. Neither, on the use.
domestic sphere, can one be held valid if it violates the Constitution. Under the US legal system, however, an executive agreement, while
Authorities are, however, agreed that one is distinct from another for Moreover, it is inconsequential whether the United States treats the legally binding, may not have the same effect as a treaty. It may, under
accepted reasons apart from the concurrence-requirement aspect. As has VFA only as an executive agreement because, under international certain circumstances, be considered as inferior to US law and/or
been observed by US constitutional scholars, a treaty has greater law, an executive agreement is as binding as a treaty. To be sure, Constitution. According to Garcia:[122]
"dignity" than an executive agreement, because its constitutional efficacy as long as the VFA possesses the elements of an agreement under
is beyond doubt, a treaty having behind it the authority of the President, international law, the said agreement is to be taken equally as a Under the U.S. legal system, international agreements can be entered into
the Senate, and the people; a ratified treaty, unlike an executive treaty. by means of a treaty or an executive agreement. The Constitution
agreement, takes precedence over any prior statutory allocates primary responsibility for entering into such agreements to the
enactment.[117] (Emphasis supplied, citations omitted) A treaty, as defined by the Vienna Convention on the Law of Treaties, is executive branch, but Congress also plays an essential role. First, in order
"an international instrument concluded between States in written form for a treaty (but not an executive agreement) to become binding upon the
This statement, however, should be confined only to the facts of that and governed by international law, whether embodied in a single United States, the Senate must provide its advice and consent to treaty
case. Executive agreements are not the same as treaties as a source of instrument or in two or more related instruments, and whatever its ratification by a two-thirds majority. Secondly, Congress may authorize
international law. It certainly may have a different effect in relation to particular designation." There are many other terms used for a treaty or congressional-executive agreements. Thirdly, many treaties and executive
our present statutes unlike a treaty that is properly ratified. international agreement, some of which are: act, protocol, agreements are not self-executing, meaning that implementing legislation
agreement, compromis d’ arbitrage, concordat, convention, declaration, is required to provide U.S. bodies with the domestic legal authority
Due to the nature of respondents' position in the United States Armed exchange of notes, pact, statute, charter and modus vivendi. All writers, necessary to enforce and comply with an international agreement‘s
Forces, the Visiting Forces Agreement of 1998 (VFA) is relevant in this from Hugo Grotius onward, have pointed out that the names or titles of provisions.
case. In particular, the question of whether the VFA, executed between international agreements included under the general term treaty have little
the Republic of the Philippines and the United States government, may or no legal significance. Certain terms are useful, but they furnish little The status of an international agreement within the United States
be treated as a "treaty" upon which the doctrine of foreign sovereign more than mere description. depends on a variety of factors. Self-executing treaties have a status
immunity is founded must be addressed. equal to federal statute, superior to U.S. state law, and inferior to the
Article 2(2) of the Vienna Convention provides that "the provisions Constitution. Depending upon the nature of executive agreements,
In BAYAN v. Zamora,[118] this court tackled the issues pertaining to the of paragraph 1 regarding the use of terms in the present they may or may not have a status equal to federal statute. In any
constitutionality of the VFA. It was described as "consist[ing] of a Convention are without prejudice to the use of those terms, or to case, self-executing executive agreements have a status that is
Preamble and nine (9) Articles, [and it] provides for the mechanism for the meanings which may be given to them in the internal law of the superior to U.S. state law and inferior to the Constitution. Treaties
regulating the circumstances and conditions under which [the] US Armed State. or executive agreements that are not self-executing have been
Forces and defense personnel maybe present in the Philippines. . . . "[119] understood by the courts to have limited status domestically;
Thus, in international law, there is no difference between treaties rather, the legislation or regulations implementing these
As a preliminary issue, this court ruled that the Senate concurrence as and executive agreements in their binding effect upon states agreements are controlling.[123] (Emphasis supplied, citation omitted)
required by the Constitution was achieved, thereby giving VFA a legally concerned, as long as the negotiating functionaries have remained
binding effect upon the government.[120] However, the agreement's within their powers. International law continues to make no Domestic politics and constitutional guidelines also figure into the effect
characterization as a "treaty" was put in question. This court held thatdistinction between treaties and executive agreements: they are of an executive agreement in the United States. Garcia adds:
despite the non-concurrence of the United States Senate, the VFA is equally binding obligations upon nations.
validly categorized as a treaty: The great majority of international agreements that the United
In our jurisdiction, we have recognized the binding effect of States enters into are not treaties but executive agreements—
This Court is of the firm view that the phrase "recognized as a treaty" executive agreements even without the concurrence of the Senate agreements entered into by the executive branch that are not
means that the other contracting party accepts or acknowledges or Congress. . . . submitted to the Senate for its advice and consent . Congress
the agreement as a treaty. To require the other contracting state, the generally requires notification upon the entry of such an agreement.
United States of America in this case, to submit the VFA to the United .... Although executive agreements are not specifically discussed in the

22
Constitution, they nonetheless have been considered valid international
compacts under Supreme Court jurisprudence and as a matter of
historical practice.
....
Sole executive agreements rely on neither treaty nor congressional
authority to provide for their legal basis. The Constitution may confer
limited authority upon the President to promulgate such agreements on
the basis of his foreign affairs power. If the President enters into an
executive agreement pursuant to and dealing with an area where he has
clear, exclusive constitutional authority — such as an agreement to
recognize a particular foreign government for diplomatic purposes — the
agreement is legally permissible regardless of Congress‘s opinion on the
matter. If, however, the President enters into an agreement and his
constitutional authority over the agreement‘s subject matter is unclear, a
reviewing court may consider Congress‘s position in determining whether
the agreement is legitimate. If Congress has given its implicit approval to
the President entering the agreement, or is silent on the matter, it is more
likely that the agreement will be deemed valid. When Congress opposes
the agreement and the President‘s constitutional authority to enter the
agreement is ambiguous, it is unclear if or when such an agreement
would be given effect.[124] (Emphasis supplied, citation omitted)
The recognition of the complex nature and legal consequences of an
executive agreement entered into by the United States with another State
must not be taken lightly. This is especially in light of the invocation of
"international comity", which loosely refers to "applying foreign law or
limiting domestic jurisdiction out of respect for foreign sovereignty." [125]
As it stands, international comity is by itself no longer a simple
matter. In quoting an 1895 US case, Hilton v. Guyot,[126] Paul argues that
at the beginning of the 20thcentury, the underlying principle of
international comity was the respect afforded by one sovereign to
another. At present, however, Paul posits:
For all these reasons, international comity would seem to be too
vague, incoherent, illusory, and ephemeral to serve as a foundation
for U.S. private international law. Yet, it is precisely these qualities that
have allowed the doctrine of international comity to mutate over
time in ways that respond to different geopolitical
circumstances. Specifically, international comity has shifted in three
distinct respects. First, the meaning of comity has shifted over
time. Originally, international comity was a discretionary doctrine that
empowered courts to decide when to defer to foreign law out of respect
for foreign sovereigns. Comity has become a rule that obligates courts to
apply foreign law in certain circumstances. Second, the object of comity
has changed. Whereas once courts justified applying foreign law out of accordance with a behavioral regularity, it is often described as the
deference to foreign sovereigns, courts later justified their decisions out ―psychological‖ element of CIL. It is what distinguishes a national act
of deference to the autonomy of private parties or to the political done voluntarily or out of comity from one that a nation follows because
branches. Most recently, courts have justified limits on domestic law out required to do so by law. Courts and scholars say that a longstanding
of deference to the global market. Third, the function of comity has practice among nations ―ripens‖ or ―hardens‖ into a rule of CIL when it
changed. Comity is no longer merely a doctrine for deciding when to becomes accepted by nations as legally binding.[129] (Emphasis supplied,
apply foreign law; it has become a justification for deference in a wide citation omitted)
range of cases concerning prescriptive, adjudicatory, and enforcement
jurisdiction. (Emphasis supplied, citation omitted) Nagan and Root[130] categorize the doctrine of sovereign immunity as a
customary rule of international law. They argue that the doctrine, which
On a substantive note, another issue raised in BAYAN v. Zamora is is also referred to as jurisdictional immunity, "has its roots in treaties,
whether the VFA amounted to an abdication of Philippine sovereignty domestic statutes, state practice, and the writings of juris
insofar as the jurisdiction of local courts "to hear and try offenses consults".[131] Quoting United States law,[132] Nagan and Root state:
committed by US military personnel"[127] was concerned. Upon finding
at the outset that the VFA did not amount to grave abuse of discretion,
. . . The doctrine of jurisdictional immunity takes the abstract
this court no longer proceeded to rule on this matter: concept of sovereignty and applies it to facts on the ground. As the
Restatement notes, ―Under international law, a state or state
In fine, absent any clear showing of grave abuse of discretion on the instrumentality is immune from the jurisdiction of the courts of another
part of respondents, this Court — as the final arbiter of legal state . . . .‖ The Restatement further states unambiguously that the rule of
controversies and staunch sentinel of the rights of the people — is sovereign immunity is ―an undisputed principle of international law.‖ . . .
then without power to conduct an incursion and meddle with such
affairs purely executive and legislative in character and nature. For The doctrine of sovereign immunity is one of the older concepts in
the Constitution no less, maps out the distinct boundaries and limits the customary international law. . . .[133] (Emphasis supplied, citation
metes and bounds within which each of the three political branches of omitted)
government may exercise the powers exclusively and essentially
conferred to it by law.[128] (Emphasis supplied) While the doctrine in itself is recognized by states, they do so only in
abstraction.[134]
In sum, the extent of the VFA's categorization as between the Philippine
and United States government — either as a "treaty"/"executive There appears to be a general recognition that foreign states are to be
agreement" or as a matter subject to international comity — remains afforded immunity on account of equality of states, but the "practice"
vague. Nevertheless, it is certain that the United States have made a lacks uniformity. Finke points out that the doctrine as exercised by
political commitment to recognize the provisions and execute their different states suffers from "substantial disagreement on detail and
obligations under the VFA. This includes respecting jurisdictional issues substance."[135] The inconsistencies in state practice render the possibility
in cases involving an offense committed by a US military personnel. of invoking international comity even more problematic.
Sovereign immunity as The legislation of other states highlight the differences in specific
customary international law treatment of sovereign immunity. For instance, the United States
Foreign Sovereign Immunities Act (FSIA) of 1978 was enacted in order
Customary international law traditionally pertains to: to render uniform determinations in cases involving sovereign
immunity.[136] While it recognizes sovereign immunity, it provides the
. . . the collection of international behavioral regularities that following exceptions:
nations over time come to view as binding on them as a matter of
law. This standard definition contain two elements. There must be a . . . the general principle that a foreign state is immune from the
widespread and uniform practice of nations. And nations must jurisdiction of the courts of the United States, but sets forth several
engage in the practice out of a sense of legal obligation. This second limited exceptions. The primary exceptions are
requirement, often referred to as opinio juris, is the central concept of
CIL. Because opinio juris refers to the reason why a nation acts in 1. waiver (―the foreign state has waived its immunity either expressly or
23
by implication‖), immunity.[152] Article 2, paragraph 1, of the Charter of the United Nations makes
clear, is one of the fundamental principles of the international legal
2. commercial activity (―the action is based upon a commercial activity The International Court of Justice ruled that Italy had violated customary order.
carried on in the United States by the foreign state‖),and international law when it took cognizance of the claim against Germany
before its local courts.[153] It held that: This principle has to be viewed together with the principle that
3. torts committed by a foreign official within the United each State possesses sovereignty over its own territory and that
States (the ―suit is brought against a foreign State for personal injury or In the present context, State practice of particular significance is to there flows from that sovereignty the jurisdiction of the State over
death, or damage to property occurring in the United States as a be found in the judgments of national courts faced with the events and persons within that territory. Exceptions to the
result of the tortious act of an official or employee of that State question whether a foreign State is immune, the legislation of those immunity of the State represent a departure from the principle of
acting within the scope of his office or employment‖).(Emphasis States which have enacted statutes dealing with immunity, the sovereign equality. Immunity may represent a departure from the
supplied, citation omitted) claims to immunity advanced by States before foreign courts and principle of territorial sovereignty and the jurisdiction which flows from
the statements made by States, first in the course of the extensive it. (Emphasis supplied)[154]
The United Kingdom State Immunity Act of 1978 also recognizes study of the subject by the International Law Commission and
general immunity from jurisdiction, subject to the following exceptions: then in the context of the adoption of the United Nations The International Court of Justice deemed it unnecessary to discuss the
a) submission to jurisdiction;[137]b) commercial transactions and contracts Convention. Opinio juris in this context is reflected in particular in difference between the application of sovereign immunity in sovereign
to be performed in the United Kingdom;[138] c) contracts of the assertion by States claiming immunity that international law acts (jus imperii) and non-sovereign activities (jus gestionis) of a State.[155] As
employment; [139] d) personal injuries and damage to property; e)
[140]
accords them a right to such immunity from the jurisdiction of to the argument that a serious violation of international law or
ownership, possession, and use of property;[141] f) patents, trademarks, other States; in the acknowledgment, by States granting immunity, peremptory norms (jus cogens) is an exception to sovereign immunity, the
etc.;[142] g) membership of bodies corporate, etc.;[143] h) arbitration;[144] i) that inter- national law imposes upon them an obligation to do so; International Court of Justice held that:
ships used for commercial purposes;[145] and value-added tax, customs and, conversely, in the assertion by States in other cases of a right
duties, etc.[146] to exercise jurisdiction over foreign States. While it may be true that 82. At the outset, however, the Court must observe that the proposition
States sometimes decide to accord an immunity more extensive than that that the availability of immunity will be to some extent dependent upon
The Australian Foreign States Immunities Act of 1985 provides for required by international law, for present purposes, the point is that the the gravity of the unlawful act presents a logical problem. Immunity
exceptions similar to the ones found in the United Kingdom law.[147] grant of immunity in such a case is not accompanied by the requisite from jurisdiction is an immunity not merely from being subjected
to an adverse judgment but from being subjected to the trial
opinio juris and therefore sheds no light upon the issue currently under
Aside from the variations in foreign laws, rulings in domestic cases have consideration by the Court. process. It is, therefore, necessarily preliminary in nature.
also remained on a theoretical level. There appears to be a general refusal Consequently, a national court is required to determine whether or
by international bodies to set particular rules and guidelines for the 56. Although there has been much debate regarding the origins of State not a foreign State is entitled to immunity as a matter of
disposition of actual cases involving sovereign immunity. immunity and the identification of the principles underlying that international law before it can hear the merits of the case brought
immunity in the past, the International Law Commission concluded before it and before the facts have been established. If immunity
Two cases are relevant for the purpose of discussing sovereign immunity in 1980 that the rule of State immunity had been ―adopted as a were to be dependent upon the State actually having committed a
as an international customary norm: the International Court of Justice's general rule of customary international law solidly rooted in the serious violation of international human rights law or the law of
decision in Germany v. Italy, and the International Tribunal for the Law of current practice of States‖ (Yearbook of the International Law armed conflict, then it would become necessary for the national
the Sea's procedural order on the Ara Libertad case. While stare Commission, 1980, Vol. II (2), p. 147, para. 26). That conclusion was court to hold an enquiry into the merits in order to determine
decisis does not apply, these are nevertheless instructive in understanding based upon an extensive survey of State practice and, in the whether it had jurisdiction. If, on the other hand, the mere
the status of sovereign immunity in international law. opinion of the Court, is confirmed by the record of national allegation that the State had committed such wrongful acts were to
legislation, judicial decisions, assertions of a right to immunity and be sufficient to deprive the State of its entitlement to immunity,
The issue of sovereign immunity as invoked between two States was dealt the comments of States on what became the United Nations immunity could, in effect be negated simply by skilful construction
with in the 2012 case of Jurisdictional Immunities of the State (Germany v. Convention.That practice shows that, whether in claiming immunity for of the claim.
Italy).[148] This arose out of a civil case brought before Italian domestic themselves or according it to others, States generally proceed on the
courts, seeking reparations from Germany for grave breaches of basis that there is a right to immunity under international law, 83. That said, the Court must nevertheless inquire whether customary
international humanitarian law during World War II.[149] The Italian together with a corresponding obligation on the part of other States international law has developed to the point where a State is not entitled
Court of Cassation held that it had jurisdiction over the claims on the to respect and give effect to that immunity. to immunity in the case of serious violations of human rights law or the
ground that state immunity was untenable if the act complained of was law of armed conflict. Apart from the decisions of the Italian courts
an international crime.[150] Thereafter, an Italian real estate owned by 57. The Court considers that the rule of State immunity occupies an which are the subject of the present proceedings, there is almost no State
Germany was attached for execution.[151] As a result, Germany brought important place in international law and international relations. It practice which might be considered to support the proposition that a
the case before the International Court of Justice, questioning the legality derives from the principle of sovereign equality of States, which, as State is deprived of its entitlement to immunity in such a case. . . .
of the judgment rendered by the Italian court. It based its claim on state

24
 principle that law should not be applied retrospectively to determine
84. In addition, there is a substantial body of State practice from other matters of legality and responsibility (as the Court has explained in Ghana countered:
countries which demonstrates that customary international law does paragraph 58 above). For the same reason, recognizing the immunity
not treat a State’s entitlement to immunity as dependent upon the of a foreign State in accordance with customary international law . . . that the coastal State [Ghana] enjoys full territorial sovereignty
gravity of the act of which it is accused or the peremptory nature of does not amount to recognizing as lawful a situation created by the over internal waters, and that any foreign vessel located in internal
the rule which it is alleged to have violated. breach of a jus cogens rule, or rendering aid and assistance in waters is subject to the legislative, administrative, judicial and
maintaining that situation, and so cannot contravene the principle jurisdictional powers of the coastal State."[159] (Emphasis supplied)
85. That practice is particularly evident in the judgments of in Article 41 of the International Law Commission’s Articles on
national courts. Arguments to the effect that international law no State Responsibility. The order dated December 15, 2012 ruled the following:
longer required State immunity in cases of allegations of serious
violations of international human rights law, war crimes or crimes 95. To the extent that it is argued that no rule which is not of the . . . that a warship is an expression of the sovereignty of the State whose
against humanity have been rejected by the courts in Canada (Bouzari status of jus cogens may be applied if to do so would hinder the flag it flies;[160]
v. Islamic Republic of Iran, Court of Appeal of Ontario, [2004] Dominion Law enforcement of a jus cogens rule, even in the absence of a direct
Reports (DLR), 4th Series, Vol. 243, p. 406; ILR, Vol. 128, p. 586; conflict, the Court sees no basis for such a proposition. A jus cogens . . . in accordance with general international law, a warship enjoys
allegations of torture), France (judgment of the Court of Appeal of Paris, rule is one from which no derogation is permitted but the rules which immunity, including in internal waters. . . .[161]
9 September 2002, and Cour de cassation, No. 02-45961, 16 December determine the scope and extent of jurisdiction and when that jurisdiction
2003, Bulletin civil de la Cour de cassation (Bull. civ.), 2003, I, No. 258, p. 206 may be exercised do not derogate from those substantive rules which ....
(the Bucheron case); Cour de cassation, No. 03-41851, 2 June 2004, Bull. possess jus cogens status, nor is there anything inherent in the concept of
civ., 2004, I, No. 158, p. 132 (the X case) and Cour de cassation, No. 04- jus cogens which would require their modification or would displace their
Ghana shall forthwith and unconditionally release the frigate ARA
47504, 3 January 2006 (the Grosz case); allegations of crimes against application. The Court has taken that approach in two cases, Libertad, shall ensure that the frigate ARA Libertad, its Commander and
humanity), Slovenia (case No. Up-13/99, Constitutional Court of notwithstanding that the effect was that a means by which a jus cogens crew are able to leave the port of Tema and the maritime areas under the
Slovenia; allegations of war crimes and crimes against humanity), New rule might be enforced was rendered unavailable. In Armed Activities, jurisdiction of Ghana, and shall ensure that the frigate ARA Libertad is
Zealand (Fang v. Jiang, High Court, [2007] New Zealand Administrative Reports it held that the fact that a rule has the status of jus cogens does not resupplied to that end.[162] (Citation supplied)
(NZAR), p. 420; ILR, Vol. 141, p. 702; allegations of torture), Poland confer upon the Court a jurisdiction which it would not otherwise
(Natoniewski, Supreme Court, 2010, Polish Yearbook of International Law, possess (Armed Activities on the Territory of the Congo (New Application: 2002) In sum, the International Court of Justice's position that sovereign
Vol. XXX, 2010, p. 299; allegations of war crimes and crimes against (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, immunity remains applicable even if the action is based upon violations
humanity) and the United Kingdom (Jones v. Saudi Arabia, House of Judgment, I.C.J. Reports 2006, p. 32, para. 64, and p. 52, para. 125). In Arrest of international law should be limited only to acts during armed
Lords, [2007] 1 Appeal Cases (AC) 270; ILR, Vol. 129, p. 629; allegations Warrant, the Court held, albeit without express reference to the concept conflict. Jurisdictional Immunities of the State (Germany v. Italy) also referred to
of torture). of jus cogens, that the fact that a Minister for Foreign Affairs was accused actions commited during World War II and especially referred to the
of criminal violations of rules which undoubtedly possess the character situation of international law at that time. The majority reflected the
.... of jus cogens did not deprive the Democratic Republic of the Congo of the attitude that sovereign immunity is a customary norm. It, however,
entitlement which it possessed as a matter of customary international law recognizes that uniformity in state practice is far from the consensus
93. This argument therefore depends upon the existence of a conflict to demand immunity on his behalf (Arrest Warrant of 11 April 2000 required to articulate specific rules pertaining to other circumstances —
between a rule, or rules, of jus cogens, and the rule of customary law which (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. such as transgressions of foreign warships of domestic legislation while
requires one State to accord immunity to another. In the opinion of the 24, para. 58, and p. 33, para. 78). The Court considers that the same granted innocent passage. It impliedly accepted that states enjoyed wide
Court, however, no such conflict exists. Assuming for this purpose that reasoning is applicable to the application of the customary international latitude to specify their own norms.
the rules of the law of armed conflict which prohibit the murder of law regarding the immunity of one State from proceedings in the courts
civilians in occupied territory, the deportation of civilian inhabitants to of another.[156] The provisional order in the ITLOS Ara Libertad case should also be
slave labour and the deportation of prisoners of war to slave labour are read within its factual ambient. That is, that the warship was the subject
rules of jus cogens, there is no conflict between those rules and the rules Though pertaining to provisional measures, another case that involved of seizure to enforce a commercial obligation of its flag state. In this
on State immunity. The two sets of rules address different matters. the issue of sovereign immunity is the "Ara Libertad" case (Argentina v. case, the foreign warship enjoys sovereign immunity. The case, however,
The rules of State immunity are procedural in character and are Ghana). Lodged before the International Tribunal for the Law of the Sea did not interpret Sections 31 and 32 of the UNCLOS.
confined to determining whether or not the courts of one State may (ITLOS), the case arose after "ARA Fragata Libertad," an Argentinian
exercise jurisdiction in respect of another State. They do not bear warship, was alleged to have been detained and subjected to several On this note, it is my opinion that there would be no violation of
upon the question whether or not the conduct in respect of which judicial measures by the Republic of Ghana.[157] In doing so, Argentina customary international law or existing treaty law if this court
the proceedings are brought was lawful or unlawful. That is why the alleged that Ghana violated the immunities from jurisdiction and further refines the limits of the doctrine of sovereign immunity's
application of the con- temporary law of State immunity to proceedings execution extended to the warship by its flag.[158] application when determining jurisdictional immunities of foreign
concerning events which occurred in 1943-1945 does not infringe the

25
warships specifically when it violates domestic laws implementing doctrine of sovereign immunity is not an absolute rule. Thus, the . . . the correct test for the application of State immunity is not the
international obligations even while on innocent passage. doctrine should take the form ofrelative sovereign jurisdictional immunity.[167] conclusion of a contract by a State but the legal nature of the act. . .
.[176](Emphasis supplied)
Sovereign immunity as The tendency in our jurisprudence moved along with the development in
general principle of law other states. In JUSMAG, this court stated:

There are indications from international legal scholars that sovereign States began to veer away from absolute sovereign immunity when . . . if the contract was entered into in the discharge of its
immunity might make more sense if it is understood as a general principle of "international trade increased and governments expanded into what had governmental functions, the sovereign state cannot be deemed to
international law rather than as international obligation arising out of treaty previously been private spheres."[168] The relative theory of sovereign have waived its immunity from suit.[177] (Emphasis supplied, citation
or customary norm. immunity distinguishes a state's official (acta jure imperii) from private (acta omitted)
jure gestionis) conduct.[169] The distinction is founded on the premise
Finke suggests that this provides the better platform. Whereas a rule is "[that] once the sovereign has descended from his throne and entered the These cases involved contracts. This made the determination of whether
more precise and consistent in both its application and legal marketplace[,] he has divested himself of his sovereign status and is there was waiver on the part of the state simpler.
consequences, a principle "allows for a broader spectrum of possible therefore no longer immune to the domestic jurisdiction of the courts of
behaviour."[163] Principles recognize a general idea and serve as a guide in other countries."[170] Further in Municipality of San Fernando, La Union v. Firme,[178] this court
policy determinations, rather than prescribe a particular mode of action, which stated that two exceptions are a) when the State gives its consent to be
is what rules do. This distinction is significant, as principles provide the In the 2003 case of Republic of Indonesia v. Vinzon, this court enunciated sued and b) when it enters into a business contract.[179] It ruled that:
leeway to accommodate legal and factual circumstances surrounding each that in cases involving foreign states, the basis of sovereign immunity is
case that customary rules generally do not.[164] the maxim par in parem non habet imperium. Founded on sovereign equality, Express consent may be embodied in a general law or a special
a state cannot assert its jurisdiction over another.[171] To do so otherwise law.
General principles of international law are said to be: would "unduly vex the peace of nations."[172] However, it also
underscored that the doctrine only applies to public acts or acts jure ....
. . . an autonomous, created by general consensus, systematically imperii, thus, referring to the relative theory. JUSMAG Philippines v.
fundamental part of International Law, that consists of different NLRC[173]discussed the restrictive application: Consent is implied when the government enters into business
normative notions, in which judges refer to, through a creative process, contracts, thereby descending to the level of the other contracting
in order to promote the consistency of International Law. [165] In this jurisdiction, we recognize and adopt the generally accepted party, and also when the State files a complaint, thus opening itself to
principles of international law as part of the law of the land. Immunity a counterclaim.[180] (Emphasis supplied, citations omitted)
Clearly, sovereign immunity is a doctrine recognized by states under the of State from suit is one of these universally recognized principles.
international law system. However, its characterization as a principle is In international law, "immunity" is commonly understood as an Other exceptions are cases involving acts unauthorized by the State, and
more appropriate in that "the extent to which foreign states are awarded exemption of the state and its organs from the judicial jurisdiction violation of rights by the impleaded government official. In the 1970
immunity differs from state to state."[166] This appears to be an accepted of another state. This is anchored on the principle of the sovereign case of Director of Bureau of Telecommunications, et al. v. Aligaen, et al.,[181] this
arrangement in light of the different state immunity laws all over the equality of states under which one state cannot assert jurisdiction over court held that:
world. another in violation of the maxim par in parem non habet imperium (an equal
has no power over an equal). Inasmuch as the State authorizes only legal acts by its
As it stands, states are allowed to draw the line in the application of officers, unauthorized acts of government officials or officers are
sovereign immunity in cases involving foreign states and their agents. As . . . . not acts of the State, and an action against the officials or officers
a principle of international law, it is deemed automatically incorporated in by one whose rights have been invaded or violated by such acts, for
our domestic legal system as per Article II, Section 2 of the As it stands now, the application of the doctrine of immunity from the protection of his rights, is not a suit against the State within the
Constitution. Considering this leeway, along with the urgency and suit has been restricted to sovereign or governmental activities rule of immunity of the State from suit. In the same tenor, it has been
importance of the case at hand, the Philippines is, therefore, free to (jure imperii). The mantle of state immunity cannot be extended to said that an action at law or suit in equity against a State officer or
provide guidelines consistent with international law, domestic legislation, commercial, private and proprietary acts (jure the director of a State department on the ground that, while
and existing jurisprudence. gestionis).[174] (Emphasis supplied, citations omitted) claiming to act for the State, he violates or invades the personal and
property rights of the plaintiff, under an unconstitutional act or
Exceptions to sovereign In United States of America v. Ruiz,[175] which dealt with a contract involving under an assumption of authority which he does not have, is not a
immunity the repair of wharves in Subic Bay's US naval installation, this court suit against the State within the constitutional provision that the
further adds that: State may not be sued without its consent.[182] (Emphasis supplied,
Our own jurisprudence is consistent with the pronouncement that the citations omitted)

26
 Furthermore, if we consider the doctrine of sovereign immunity as a
Shauf v. Court of Appeals[183] evolved the doctrine further as it stated that binding general principle of international law rather than an international [8] Id. at 13.
"[the] rational for this ruling is that the doctrine of state immunity cannot customary norm, the particular rules and guidelines in its application and
be used as an instrument for perpetrating an injustice."[184] invocation may be determined on a domestic level either through statute [9] Id. at 194.
or by jurisprudence.
Tortious acts or crimes committed while discharging official functions [10] Id. at 196.

are also not covered by sovereign immunity. Quoting the ruling It is difficult to imagine that the recognition of equality among nations is
in Chavez v. Sandiganbayan,[185]this court held American naval officers still, in these modern times, as absolute as we have held it to be in the [11] Id. at 198.

personally liable for damages in Wylie v. Rarang,[186] to wit: past or only has commercial acts as an exception. International law has
conceded jus cogens rules of international law and other obligations erga [12] All three notes were similarly worded as regards its request for
. . . The petitioners, however, were negligent because under their omnes. It is time that our domestic jurisprudence adopts diplomatic clearance. The amendments only pertained to the arrival and
direction they issued the publication without deleting the name "Auring." correspondingly. departure dates of the vessel.
Such act or omission is ultra vires and cannot be part of official duty. It
was a tortious act which ridiculed the private respondent. [187] Considering the flexibility in international law and the doctrines that we [13] Rollo, pp. 333–334.
have evolved so far, I am of the view that immunity does not
We note that the American naval officers were held to be accountable in their personal necessarily apply to all the foreign respondents should the case [14] Id. at 336.

capacities. [188] have been brought in a timely manner, with the proper remedy,
and in the proper court. Those who have directly and actually [15] Id. at 161.

As it stands, the Philippines has no law on the application of sovereign committed culpable acts or acts resulting from gross negligence
immunity in cases of damages and/or violations of domestic law resulting in the grounding of a foreign warship in violation of our [16] Id.
involving agents of a foreign state. But our jurisprudence does have laws defining a tortious act or one that protects the environment
openings to hold those who have committed an act ultra vires which implement binding international obligations cannot claim [17] Id.

responsible in our domestic courts. sovereign immunity.

[18] Id. at 145.

As previously discussed, it was held in Germany v. Italy that the issue of Certainly, this petition being moot and not brought by the proper parties,
implied waiver of sovereign immunity and a State's commission of a I agree that it is not the proper case where we can lay down this [19] Id. at 255.

serious violation of a peremptory norm (jus cogens) are two independent doctrine. I, therefore, can only concur in the result.
[20] Id. at 31.
areas. This reflects one of the positions taken by scholars in the
jurisdiction-immunity discourse: ACCORDINGLY, I vote to DISMISS the petition.
[21] Id. at 5–7.

Jurisdiction and its limits have developed differently depending on the

[22] Rollo, p. 32.
subject matter. The jurisdiction to adjudicate in civil matters has, for
[1] G.R. No. 101083, July 30, 1993, 224 SCRA 792 [Per J. Davide, Jr., En
example, developed mainly in the context of private international law,
[23] Id. at 37–38.
even though it is not unrelated to public international law. Immunity, Banc].
on the other hand, is linked to official acts of a state (if we accept
the principal distinction between private and public acts) and is [2] See J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4) Eur [24] 598 Phil. 262 (2009) [Per J. Azcuna, En Banc].
therefore more sensitive to the sovereignty of the foreign J Int Law 853-881, 854 (2011) .
state. Linking immunity to the limits of jurisdiction to adjudicate in civil [25] Sections 1 and 2 of Article V provide:
matters would therefore mean disregarding the official character of the [3] Id. at 856.
foreign state's conduct.[189] (Emphasis supplied, citation omitted) ―1. Subject to the provisions of this article:
[4] Id. (a) Philippine authorities shall have jurisdiction over United States
This ruling holds no value as a precedent, and, therefore, does not personnel with respect to offenses committed within the Philippines and
preclude the Philippines to make a determination that may be different [5] Rollo, pp. 89–92. punishable under the law of the Philippines.
from the International Court of Justice's ruling. Its value must only be to (b) United States military authorities shall have the right to exercise
elucidate on the concept of sovereign immunity, in the context of that [6] Id. at 5–7. within the Philippines all criminal and disciplinary jurisdiction conferred
case, as the general rule with the possibility of other exceptions. on them by the military law of the United States over United States
[7] Id. at 7–8. personnel in the Philippines.

27
2. (a) Philippine authorities exercise exclusive jurisdiction over United [40] Id.

States personnel with respect to offenses, including offenses relating to [60] ANNOTATION TO THE RULES OF PROCEDURE FOR

the security of the Philippines, punishable under the laws of the [41] Rebollido v. Court of Appeals, 252 Phil. 831, 839 (1989) [Per J. Gutierrez, ENVIRONMENTAL CASES, p. 133.

Philippines, but not under the laws of the United States. Jr., Third Division], citing Lee et al. v. Romillo, Jr., 244 Phil. 606, 612 (1988)
(b) United States authorities exercise exclusive jurisdiction over United [Per J. Gutierrez, Jr., Third Division]. [61] Id.

States personnel with respect to offenses, including offenses relating to

the security of the United States, punishable under the laws of the United [42] RULES OF CIVIL PROCEDURE, Rule 3, sec. 3. [62] Id.

States, but not under the laws of the Philippines.

(c) For the purposes of this paragraph and paragraph 3 of this article, an [43] Ang, represented by Aceron v. Spouses Ang, G.R. No. 186993, August [63] Rollo, p. 5.

offense relating to security means: (1) treason, (2) sabotage, espionage or 22, 2012, 678 SCRA 699, 709 [Per J. Reyes, Second Division].
violation of any law relating to national defense.‖ [64] Id.
[44] RULES OF CIVIL PROCEDURE, Rule 3, sec. 3.
[26] Rollo, p. 36. [65] Id.
[45] REVISED PROCEDURE ON ENVIRONMENTAL CASES, Rule
[27] Id. at 19. II, sec. 5. [66] Id. at 6.

[28] Id. at 47, as per Rep. Act No. 10067, sec. 19. [46]G.R. No. 101083, July 30, 1993, 224 SCRA 792, 803 [Per J. Davide, [67] Id.
Jr., En Banc].
[29] Id. at 47. [68] Id.
[47] Id.
[30] Id. at 38. [69] Id. at 7.
Heirs of Sotto v. Palicte, G.R. No. 159691, June 13, 2013, 698 SCRA 294,
[48]
[31] Id. 308 [Per J. Bersamin, First Division]. [70] Id.
[32] Id. at 41. [49] Id. at 304. [71] Id. at 5.

[33]Petitioners cited the United States Code (16 U.S.C.A. § 19jj-1(b)) for [50] Id. at 306. [72] Id.
the definition of liability in rem: ―Any instrumentality, including but not
limited to a vessel, vehicle, aircraft, or other equipment that destroys, [51] Id. at 308. [73] Id.
causes the loss of, or injures any park system resource or any marine or
aquatic park resource shall be liable in rem to the United States for [52] 157 Phil. 551 (1974) [Per J. Zaldivar, Second Division]. [74] Id.
response costs and damages resulting from such destruction, loss, or
injury to the same extent as a person is liable under subsection (a) of this [53] Id. at 563–565. [75] Id. at 6.
section.‖
[54] Id. at 567–568. [76] Id.
[34] Rollo, p. 40.
See Re: Request of the Plaintiffs, Heirs of the Passengers of the Doña Paz to Set
[55] [77] Id.
[35] Id. at 48. Aside the Order dated January 4, 1988 of Judge B.D. Chingcuangco, A.M. No.
88-1-646-0, March 3, 1988, 159 SCRA 623, 627 [En Banc]. [78] Id.
[36] Id.
[56] Id. [79] Id.
[37] Id. at 4.
[57] J. E. STIGLITZ, ECONOMICS OF THE PUBLIC SECTOR 215 [80] Id.
[38] RULES OF CIVIL PROCEDURE, Rule 3, sec. 2. (3rd ed., 2000).
[81] Id.
See Consumido v. Ros, 555 Phil. 652, 658 (2007) [Per J. Tinga, Second
[39] [58] A.M. No. 88-1-646-0, March 3, 1988, 159 SCRA 623, 627 [En Banc].
Division]. ANNOTATION TO THE RULES OF PROCEDURE FOR
[82]
[59] Id. at 627. ENVIRONMENTAL CASES, p. 113.

28
 See D. Kennedy, The Sources of International Law, 2 (1) American
[101] 244 [Per J. Velasco, Jr., En Banc].
[83] Id. at 114. University Int Law Review, 1-96 (1987).
[117] Id. at 258–260.
[84] Rollo, p. 164. [102]VIENNA CONVENTION ON THE LAW OF TREATIES (1961),
art. 2(1)(a) . [118] 396 Phil. 623 (2000) [Per J. Buena, En Banc].
[85] Id.
[103]E. Posner and Jack L. Goldsmith, A Theory of Customary International [119] Id. at 637.
[86] Id. at 161. Law (John M. Olin Program in Law and Economics Working Paper No.
63, 1998). See also M. Panezi, Sources of Law in Transition: Re-visiting general [120] Id. at 656.
[87] J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4) EUR J principles of International Law, Ancilla Juris, . See also RESTATEMENT

INT LAW 853-881, 854 (2011) . (THIRD) OF FOREIGN RELATIONS LAW (1987), sec. 102(2). [121] Id. at 657–660.

G.R. No. 159402, February 23, 2011, 644 SCRA 36 [Per J. Bersamin,
[88] E. Posner and Jack L. Goldsmith, A Theory of Customary International
[104] [122] M. J. Garcia (Legislative Attorney), International Law and Agreements:

Third Division]. Law 70 (John M. Olin Program in Law and Economics Working Paper their effect upon US law, CONGRESSIONAL RESEARCH SERVICE 7-
No. 63, 1998). See also, E. Lauterpacht, International LAW BEING 5700 RL32528 (2014), .
[89] Id. at 42. THE COLLECTED PAPERS OF HERSCH LAUTERPACHT, Vol. I,
The General Works. [123] Id.
[90] CONST. (1987), art. II, sec. 2.
J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4) Eur J
[105] [124] Id. at 4.
Unless the relevant treaty provision simply articulates an existing
[91] Int Law 853-881, 857 (2011) .
international customary norm in which case it will be arguably [125] J. Paul, The Transformation of International Comity (2008) .
incorporated through Article II, Section 2 of the Constitution also. COUNCIL OF EUROPE - EXPLANATORY REPORT ON THE
[106]

EUROPEAN CONVENTION ON STATE IMMUNITY (ETS No. [126] Id. at 27.

[92] 452 Phil. 1100 (2003) [Per J. Azcuna, En Banc]. 074), .
[127] 396 Phil. 623, 646 (2000) [Per J. Buena, En Banc].
[93] Id. at 1107. [107] Id.
[128] Id. at 666.
Const. (1987), art. II, sec. 2 states, ―The Philippines renounces war as
[94] [108] December 2, 2004.
an instrument of national policy, adopts the generally accepted E. Posner and J. L. Goldsmith, A Theory of Customary International
[129]

principles of international law as part of the law of the land and [109] The Philippines is not a signatory to the Convention. Law (John M. Olin Program in Law and Economics Working Paper No.
adheres to the policy of peace, equality, justice, freedom, 63) 5 (1998).
cooperation, and amity with all nations.‖ [110] See art. 30 of Convention.
W. P. Nagan and J. L. Root, The Emerging Restrictions on Foreign
[130]

Republic of Indonesia v. Vinzon, 452 Phil. 1100, 1107 (2003) [Per J.

[95] [111] Status according to the UN Treaty Collection as of 07-17-2014, . Immunity: Peremptory Norms of International Law, the UN Charter, and the
Azcuna, En Banc]. Application of Modern Communications Theory, 38 N.C. J. Int'l L. & Comm.
UN CONVENTION ON JURISDICTIONAL IMMUNITIES OF
[112] Reg. 375 (2013) .
J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4) Eur J
[96] STATES AND THEIR PROPERTIES, preamble.
Int Law 853-881, 854 (2011) . [131] Id. at 4.
W. Nagan and J. L. Root, The Emerging Restrictions on Sovereign Immunity:
[113]
[97] Id. at 856. Peremptory Norms of International Law, the UN Charter, and the Application of [132] RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW.
Modern Communications Theory, 38 N.C. J. Int'l L. & Comm. Reg. 375
[98] Id. (2013) . [133] Id. at 38.

J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4) EUR J

[99] [114] Id. at 60–61. J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4) Eur J
[134]

INT LAW 856-857 (2011) . Int Law 853-881, 856 (2011) .

[115] M. E. Wiesinger, State Immunity from Enforcement Measures (2006) .
[100] Available at . J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21
[135]
[116] Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA (4) Eur J Int Law 853-881, 871 (2011) .

29
 controlled from or has its principal place of business in the United [156] Id. at pars. 82–95.
J. K. Elsea and S. V. Yousef, The Foreign Sovereign Immunities Act
[136] Kingdom,being proceedings arising between the State and the body or its
(FSIA) and Foreign Officials, CONGRESSIONAL RESEARCH SERVICE other members or, as the case may be, between the State and the other [157] Id. at par. 26.
7-5700 (2013). partners.
[158] Id.
UNITED KINGDOM STATE IMMUNITY ACT of 1978, part I,
[137] UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part I,
[144]

2--(1) provides: "A State is not immune as respects proceedings in 9--(1) provides: Where a State has agreed in writing to submit a dispute [159] Id. at par. 56.
respect of which it has submitted to the jurisdiction of the courts of the which has arisen, or may arise, to arbitration, the State is not immune as
United Kingdom." respects proceedings in the courts of the United Kingdom which relate [160] Id. at par. 94.
to the arbitration.
[138] UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part I, [161] Id. at par. 95.
3--(1) provides: " A State is not immune as respects proceedings relating [145] UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part I,
to—(a) a commercial transaction entered into by the State; or (b) an 10--(2) provides: A State is not immune as respects— (a) an action in rem [162] Id. at par. 108.
obligation of the State which by virtue of a contract (whether a against a ship belonging to that State; or (b) an action in personam for
commercial transaction or not) falls to be performed wholly or partly in enforcing a claim in connection with such a ship J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4) Eur J
[163]

the United Kingdom. Int Law 853-881, 872 (2011) .

[146] UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part I,
[139] UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part I, 11--(1) provides: A State is not immune as respects proceedings relating J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4) Eur J
[164]

4--(1) provides: " A State is not immune as respects proceedings relating to its liability for—(a) value added tax, any duty of customs or excise or Int Law 853-881, 872 (2011) .
to a contract of employment between the State and an individual where any agricultural levy; or (b)rates in respect of premises occupied by it for
the contract was made in the United Kingdom or the work is to be commercial purposes. [165]M. Panezi, Sources of Law in Transition: Re-visiting general principles of
wholly or partly performed there." International Law, Ancilla Juris 71 (2007) .
[147] Part II of the law provides for the following exceptions: (a)
[140] UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part I, submission to jurisdiction; (b) commercial transactions; (c) contracts of J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4) Eur J
[166]

5--(1) provides: "A State is not immune as respects proceedings in employment; (d) personal injury and damage to property; (e) ownership, Int Law 853-881, 874 (2011) .
respect of—(a) death or personal injury; or (b) damage to or loss of possession, and use of property, etc.; (f) copyright, patents, trade marks,
tangible property,caused by an act or omission in the United Kingdom." etc., (g) membership of bodies corporate etc.; (h) arbitrations; (i) actions J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4) Eur J
[167]

in rem; (j) bills of exchange; and (k) taxes. Int Law 853-881, 853 (2011) .
[141] UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part I,

6--(1) provides: "A State is not immune as respects proceedings relating [148] Jurisdictional Immunities of the State (Germany v. Italy) (2012) ; See also P. B. N. J. Shmalo, Is the Restrictive Theory of Sovereign Immunity Workable?
[168]

to—(a) any interest of the State in, or its possession or use of, immovable Stephan, Sovereign Immunity and the International Court of Justice: The State Government Immunity and Liability, 17 (3) INTERNATIONAL
property in the United Kingdom; or (b)any obligation of the State arising System Triumphant, VIRGINIA PUBLIC LAW AND LEGAL THEORY STANFORD LAW REVIEW (1965) 501-507.
out of its interest in, or its possession or use of, any such property. RESEARCH PAPER NO. 2012-47 (2012).
J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4) Eur J
[169]
[142]UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part I, [149] Id. at pars. 27–29. Int Law 853-881, 858 (2011) .
7--(1) provides: A State is not immune as respects proceedings relating
to—(a) any patent, trade-mark, design or plant breeders‘ rights belonging [150] Id. J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4) Eur J
[170]

to the State and registered or protected in the United Kingdom or for Int Law 853-881, 859 (2011) .
which the State has applied in the United Kingdom; (b)an alleged [151] Id. at par. 37.
infringement by the State in the United Kingdom of any patent, trade- [171] 452 Phil. 1100, 1107 (2003) [Per J. Azcuna, En Banc].
mark, design, plant breeders‘ rights or copyright; or (c)the right to use a [152] Id.
trade or business name in the United Kingdom. [172] Id.
[153] Id. at par. 79.
UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part I,
[143] G.R. No. 108813, December 15, 1994, 239 SCRA 224 [Per J. Puno,
[173]

8--(1) provides: A State is not immune as respects proceedings relating to [154] Id. at pars. 55–57. Second Division].
its membership of a body corporate, an unincorporated body or a
partnership which— (a) has members other than States; and (b) is [155] Id. at par. 60. [174] Id. at 230–232. (cut)
incorporated or constituted under the law of the United Kingdom or is

30
797 Phil. 33
SECOND DIVISION
[ G.R. No. 203610, October 10, 2016 ]
REPUBLIC OF THE PHILIPPINES AND HOUSING AND
URBAN DEVELOPMENT COORDINATING COUNCIL
(HUDCC), PETITIONERS, VS. GONZALO ROQUE, JR.,
MANUELA ALMEDA ROQUE, EDUVIGIS A. PAREDES,
MICHAEL A. PAREDES, PURIFICACION ALMEDA, JOSE A.
ALMEDA, MICHELLE A. ALMEDA, MICHAEL A. ALMEDA,
ALBERTO DELURA, AND THERESA ALMEDA,
RESPONDENTS.
DECISION
BRION, J.:
We resolve the petition for review on certiorari[1] filed by the Republic of
the Philippines (Republic) assailing the July 4, 2012 decision[2] and the
September 26, 2012 resolution[3] of the Court of Appeals (CA) in CA
G.R. CV No. 93018. The CA affirmed the Regional Trial Court's (RTC)
decision annulling the sale of the respondents' properties to the Republic,
and ordering the respondents to return the purchase price they received
from the government.
ANTECEDENT FACTS
Gonzalo Roque, Jr. (Gonzalo), Manuela Almeda-Roque, Eduvigis A.
Paredes, Michael A. Paredes, Purification Almeda, Jose A. Almeda,
Michelle A. Almeda, Michael A. Almeda, Alberto Delura, and Theresa
Almeda (respondents), owned several parcels of land with a total area of
about 9,811 square meters,[4] located in Constitution Hills, Quezon
City.[5] Gonzalo represented the respondents in the court proceedings.
In 1978, the Republic, through the Department of Public Works and
Highways (DPWH), approached the respondents and asked them to sell a
portion of the land at government-dictated prices lower than the market
value.[6] The Republic was supposed to use the land for President Marcos'
National Government Center (NGC) Project — his plan to bring
together the various national government offices in one venue for greater
efficiency and to create additional areas for the expanding needs of the
central government and the people.[7]
The respondents allege that several public hearings regarding the sale
took place between the Republic and the respondents;[8] and that during
these meetings, the Republic made the following representations: and requested a feedback on the possibility of a repurchase. [21] However,
the secretary was transferred to another department and was unable to
First, the Republic guaranteed that although the respondents would get further address the situation.[22] Despite persistent follow-ups, the
paid a price much lower than the market value of the land, the respondents failed to receive any action from the Republic on this
construction of the NGC Project would eventually enhance the value of matter.[23]
the surrounding portions of the land that they still own. [9]
Realizing that the Republic had completely abandoned its initial plan to
Second, the Republic assured the respondents that, in the remote use the land for the NGC Project, in 2005, the respondents filed
possibility that it abandons the project, they will have the right to buy a complaint for the annulment of the sale of the properties on the
back the land.[10] grounds of fraud, force, intimidation, or undue influence.[24] They also
asserted their right to buy back the properties at the same price at which
The respondents further allege that they were reluctant to sell the land, they sold them since the Republic failed to develop the land according to
but felt compelled to do so because martial law was in force, and they the original purpose for which it was "expropriated."[25] Alternatively,
dared not resist a project of President Marcos.[11] Thus, relying on the they asked for the payment of additional compensation in the amount of
Republic's representations, the respondents signed the deeds of absolute not less than Five Million Pesos.[26]
sale.
In their answer,[27] the Republic and the HUDCC (defendants) argue that:
The Register of Deeds cancelled the three certificates of title (TCT) and (1) they are immune from suit as government instrumentalities; (2) they
issued six new titles.[12] Three of these new titles were issued in the agreed to neither the respondents' right to repurchase the properties in
Republic's name: (a) TCT No. RT-115781 (283214); (b) TCT No. RT- case the government abandons the NGC Project nor a right to additional
34249 (283216); and (c) TCT No. RT-115907 (283212).[13] compensation in case the respondents' remaining properties suffer a
decrease in market value; (3) the respondents were not forced,
The Republic did not immediately take possession of all of the land it had intimidated, or unduly influenced to sell their properties to the
bought from the respondents;[14] thus, the respondents continued to government; and (4) even assuming that any vice of consent attended the
occupy portions of the sold properties.[15] sale, the respondents' action for the annulment of sale is barred by
prescription[28] and laches.
After several years, informal settlers began to occupy parts of the land,
and the respondents felt that the Republic was reneging on its During trial, Dante Viloria (Viloria) testified on the negotiations that took
undertaking to develop the land into the NGC Project.[16] Hence, place. Viloria was the Assistant City Assessor of Quezon City and was
Gonzalo sent letters dated March 25, 1987, and September 23, 1988, to part of the government's negotiating team for the NGC Project. He
then DPWH Secretary Vicente R. Jayme (Jayme) offering to buy back the testified that: (a) the negotiated price was lower than the base amounts in
properties.[17] Gonzalo received no response. Presidential Decree No. 1517;[29] (b) the government did not file any
court action to expropriate the properties; (c) it did not take possession
The respondents' suspicion was confirmed in December 2003. Armando of the properties; and (d) it undertook to resell the properties to the
A. De Castro (De Castro), then undersecretary of the Housing and Urban respondents at the same price if the project would not push
Development Coordinating Council (HUDCC), wrote a letter to the through.[30] Gonzalo's testimony corroborated Viloria's testimony.
respondents, requesting them to vacate all portions of the sold land that
they were still occupying, because the government would use the Several presidential proclamations were issued pertaining to the NGC
properties for socialized housing pursuant to Republic Act (R.A.) No. Project from 1979-1998.[31] In 2003, Congress passed RA 9207, amending
9207.[18] the proclamations. Under Section 3 of RA 9207, 184 hectares on the west
side and 238 hectares on the east side were excluded from the original
On August 23, 2004, Gonzalo wrote another letter to then HUDCC 444-hectare NGC reservation.[32]
Secretary Michael Defensor, offering to buy back the properties. He [19] THE RTC RULING
argued that the respondents have the right to repurchase the properties
after the Republic abandoned the NGC Project and diverted the use of The RTC decided in the respondents' favor. It held that: (1) the Republic
the properties to socialized housing.[20] is not immune from suit; (2) the respondents' action is not barred by
either prescription or laches; and (3) the sale should be annulled.
Secretary Defensor allegedly found the respondents' position reasonable
31
First, the RTC held that the Republic is not immune from suit. Citing with Section 9, Article III of the Constitution, which provides that Third, the CA ruled that the respondents' action is not barred by
Section 9, Article III of the Constitution,[33] the Republic cannot invoke "private property shall not be taken for public use without just prescription and/or laches. As the RTC held, the respondents filed their
government immunity since the nature of the case is either to obtain just compensation." This provision imposes two requirements: public complaint within the prescribed period and were prompt and vigilant in
compensation or to retrieve the properties. purpose and payment of just compensation. protecting their rights.

Second, the respondents' action is not barred by either prescription or In the present case, the Republic "extrajudicially expropriated" the Hence, the Republic filed this petition.
laches. respondents' properties for a public purpose, i.e., the construction of the THE PARTIES' ARGUMENTS
NGC Project. However, the Republic failed to pay just compensation to
It noted Roque's letters to DPWH Secretary Jayme dated March 25, 1987 the respondents. To recall, it expropriated the land at an amount far In its petition, the Republic argues that: (a) the lower courts erred in
and September 23, 1988. In the March letter, Gonzalo brought up the below the actual market value. Despite the low price, the respondents annulling the sale on the ground of fraud; (b) the respondents have no
agreement he had with the Republic that he has pre-emptive right to buy sold their properties relying on the Republic's promise that they would be right to reacquire the properties sold to the Republic; (c) the respondents'
back his property from the government should the project not push amply compensated by the appreciation of their remaining properties' action is barred by laches and/or prescription; and (d) the State has not
through. In the September letter, Gonzalo told the DPWH Secretary that values. given its consent to be sued.
he prevented the informal settlers from building structures within his
former property and reiterated his pre-emptive right to buy back the Not only did the NGC Project not materialize but the values of their The Republic submits that the government did not use insidious words
property. The RTC took these letters as clear indications of the remaining properties depreciated due to the illegal settlers in their or machinations constitutive of fraud in transacting with the respondents.
respondents' vigilance in invoking their right; thus, their action is not vicinity. Thus, the respondents were deprived of just compensation to The government did not lie when it told the respondents that it intended
barred by laches. which they are entitled. to establish the NGC Project in the area, and its failure to realize the
project cannot be considered a fraudulent act.[36]
The RTC added that the respondents found out about the Republic's Consequently, the Republic may not validly invoke the non-suability of
plan to divert the use of the properties to low-cost housing only on May the State and conveniently hide under the State's cloak of invincibility Furthermore, the respondents' failure to realize their expected gain from
14, 2003, when RA 9207 was enacted. Thus, the filing of the complaint in against suit. The ends of justice would be subverted if the court were to the "economic boom" is not a ground to annul the sale. They voluntarily
2005 was within the four-year prescriptive period reckoned from the uphold the State's immunity from suit in this case. agreed to the sale, albeit reluctantly. They should not be allowed to
enactment of RA 9207. obtain judicial relief just because they believe they got the short end of
Second, the CA held that the parties entered into a conditional sale with a the bargain. Moreover, any deficiency in the purchase price has been
Third, the RTC annulled the deeds of absolute sale on the ground of right to repurchase the properties from the Republic. The sale was more than adequately compensated by the respondents' uninterrupted
fraud. It gave credence to Viloria and Gonzalo's testimonies about the subject to these conditions: (a) the landowners may repurchase the use of a portion of the government's property for over thirty (30)
matters discussed during negotiations. Based on these testimonies, the properties at selling price should the NGC Project not materialize; and years.[37]
RTC emphasized that the respondents signed the deeds of absolute sale (b) the construction of the NGC Project will increase the land value of
relying on the government's assurances that they could retrieve the the landowners' remaining properties. The Republic points out that the respondents failed to present any
properties should the NGC Project not materialize. document to prove that there were conditions imposed on the
The Republic invoked the parol evidence rule in arguing that the sale had sale.[38] Furthermore, the enactment of R.A. No. 9207 has determined the
Fourth, the RTC declared that the respondents are not entitled to no conditions. In response, the CA noted that the parol evidence rule public use of the land.[39]
damages and attorney's fees because the Republic was not in bad faith in admits of exceptions, such as the failure of the written agreement to
resisting the complaint. The RTC added that the Republic is not entitled express the parties' true intent.[35] This exception applies in the present Even assuming that vices of consent attended the sale in 1978 and
to its counterclaims because RA 9207 recognizes the validity of vested case. persisted during the Marcos regime, the Republic argues that the
rights and precedence of proclamations. respondents should have filed the action to annul within four (4) years
The testimony of Viloria established that the sale contracts failed to from February 24, 1986.[40] The respondents, however, only filed their
Aggrieved, the Republic filed an appeal with the CA. express the parties' true intent and agreement. He explained that the complaint in January 2005, or clearly beyond the prescriptive period.
THE CA RULING Republic assured the respondents that it would reconvey the properties
to them should the NGC Project not push through. Finally, the Republic reiterates that, under the doctrine of state immunity
from suit, it cannot be sued without its consent.[41]
The CA affirmed the RTC's decision. It held that: (1) the Republic is The CA added that the enactment of R.A. No. 9207 had no effect on the
[34]

not immune from suit; (2) the sale was conditioned upon the
materialization of the NGC Project; and (3) the respondents' action is
not barred by prescription or laches.
First, the CA ruled that the doctrine of sovereign immunity must be read
respondents' right to repurchase their land, because the law recognizes In their comment, the respondents argue that: (a) the defense of
the precedence and validity of vested rights. Given that the Republic no immunity from suit is not proper in an eminent domain case; (b) the
longer pushed through with the NGC Project, it should have allowed the action is not barred by prescription and/or laches; (c) the Republic
respondents to exercise their right to buy back the land. compelled them to sell their properties through extrajudicial
expropriation at a government-dictated price; and (d) the CA correctly

32
annulled the extrajudicial expropriation of the land and allowed the We rule that the Republic is not immune from suit in the present case.
respondents to repurchase the land given the government's abandonment B. Prescription and Laches
of the NGC Project. The Constitution provides that "the State may not be sued without its
consent."[49] One instance when a suit is against the State is when the We turn to the issue of whether the respondents' action for annulment of
The respondents submit that the Republic cannot hide behind the state Republic is sued by name,[50]as in this case. sale is barred by prescription and/or laches.
immunity doctrine to defeat the constitutionally guaranteed right against
the taking of private property for a purpose other than the specified A suit against the State is allowed when the State gives its consent, either Prescription can either be a question of law or fact.[57] It is question of
public use and only after payment of just compensation. expressly or impliedly. Express consent is given through a statute [51] while fact where there is a need to determine the veracity of factual
implied consent is given when the State enters into a contract or matters.[58] Laches is also evidentiary in nature.[59]
The respondents argue that their action has not prescribed because they commences litigation.[52] Although not all contracts entered into by the
filed the complaint within four (4) years from the enactment of RA government operates as a waiver of its non-suability, the Court held in This Court is not a trier of facts. It is not our function to review,
9207.[42] Their action is also not barred by laches because their act of the two cases below that the State effectively gave its consent when it examine, and evaluate the probative value of the evidence presented. We
sending the letters to the DPWH shows their vigilance in protecting their entered into contracts and committed breach. give great weight to the RTC's conclusion and findings; we are even
rights.[43] Further, the Republic failed to prove that the respondents had bound by the RTC's findings when the CA adopts them.[60]
any constructive or actual knowledge of the presidential decrees reducing In Santiago v. The Government of the Republic of the Philippines,[53] Ildefonso
or modifying the land meant for the NGC Project.[44] Santiago and his wife donated a parcel of land to the Republic on the Resolving the issues of prescription and laches in the present case
alleged condition that the latter would install lighting facilities and a water requires a factual review, specifically whether the presidential
The respondents contend that they had no choice but to accept the price system and would build an office building and parking lot on the proclamations that reduced the land allotted for the NGC Project
that the government offered during the Marcos regime. [45] Even the State property on or before December 7, 1974. Santiago filed a complaint for covered the subject properties and when the prescription period should
recognized the dark period of fear that enveloped the country under the revocation of the donation due to the government's breach of the start to run under the circumstances. These are questions of fact that this
President Marcos, as shown by the passage of R.A. No. 10368.[46] This condition. The trial court dismissed the case based on the State's non- Court need not delve into.
law made it a policy to acknowledge the State's moral and legal obligation suability. The Court set aside the dismissal on certiorari, reasoning that the
to recognize and provide reparation to victims of rights violations State's consent to be sued is presumed when the State fails to comply Nevertheless, the RTC found and concluded, with the CA affirming, that
committed at the time.[47] with the alleged terms of a deed of donation. It essentially held that the the respondents' action to annul the sale is not barred either by
Republic impliedly waived its immunity. prescription or laches. Both court ruled that the enactment of RA 9207
Finally, the respondents note that the Republic did not dispute Viloria's was the earliest time that the respondents could have known about the
testimony that during the negotiations for the expropriation of the land, In Republic v. Sandiganbayan,[54] the Court ruled that when the Republic government's plans to officially use the land for socialized housing. Thus,
the government undertook to resell the land to its former owners should entered into a compromise agreement with a private person, it stripped the respondents were not barred by prescription when they filed their
the government abandon the NGC Project.[48] itself of its immunity from suit and placed itself on the same level as its complaint in 2005, within four (4) years from the enactment of RA 9207.
adversary. When the State enters into a contract which creates mutual or
The Republic reiterates its arguments in the reply. It stresses that the reciprocal rights and obligations, the State may be sued even without As to laches, both the RTC and the CA found that the respondents'
RTC annulled the sale on the ground of fraud despite the absence of express consent.[55] Its consent to be sued is implied from its entry into letters to the DPWH showed that they were vigilant in asserting their
deceit or use of insidious words or machinations to induce the the contract and the Republic's breach grants the other party the right to alleged right to repurchase the properties from the Republic. This
respondents to enter into the sale contracts. It also insists that the enforce or repudiate the contract. vigilance negates the Republic's claim of laches.
properties will still be devoted to public use, which is socialized housing.
It stresses that the respondents failed to present evidence that P60.00 per In the present case, the Republic entered into deeds of sale with the We are bound and accordingly adopt these findings and conclusions by
square meter in 1987 did not constitute just compensation. Moreover, the respondents to construct the NGC Project on the lots sold. To facilitate the lower courts.
respondents used the properties without paying rent. the sale, the Republic created a negotiating team to discuss the terms of
OUR RULING the sale with the respondents. The latter agreed to the negotiated sale on C. Parol Evidence
these alleged conditions: (a) that they will have the right to repurchase the
We grant the Republic's petition. properties if the NGC Project does not push through; and (b) that the The core issue in this case is whether an exception to the parol evidence
NGC Project will increase the market value of their remaining properties. rule applies. In resolving this issue, we examine whether the parol
The issues for the Court's resolution are: (a) whether the Republic is evidence presented, particularly Gonzalo and Viloria's testimonies, are
immune from suit; (b) whether the action is barred by prescription or Following Santiago and Republic, the State's failure to abide by these admissible to establish the alleged oral conditions in the sale contract.
laches; and (c) whether an exception to the parol evidence rule applies. conditions constitutes the State's implied waiver of its immunity. We
reiterate that the doctrine of state immunity from suit cannot serve to We rule in the negative.
A. Immunity from Suit perpetrate an injustice on a citizen.[56] If we rule otherwise, we will be
tolerating unfair dealing in contract negotiation. Section 9, Rule 130 of the Rules of Court provides that a written contract

33
is deemed to contain all the terms agreed upon by the parties and no
evidence of these terms is admissible other than the contents of the
contract.
The parol evidence rule forbids any addition to the terms of a written
agreement by testimony showing that the parties orally agreed on other
terms before the signing of the document.[61] However, a party may
present evidence to modify, explain, or add to the terms of a written
agreement if he puts in issue in his pleadings either: (a) an intrinsic
ambiguity, mistake, or imperfection in the written agreement; (b)
the failure of the written agreement to express the parties' true
intent and agreement; (c) the validity of the written agreement; or (d)
the existence of other terms agreed to by the parties or their successors in
interest after the execution of the written agreement. The issue must be
squarely presented.[62]
We note the basic rule that he who alleges must prove his case. In this
case, the respondents have the burden to prove that the sale was subject
to two conditions: (a) their remaining properties will benefit from the
increase in land value after the construction of the NGC Project and (b)
the government will return the sold properties to them should the NGC
Project not materialize. However, they failed to discharge this burden.
Notably, they failed to present copies of the deeds of sale to show that
the sale was attended by the alleged conditions. Pursuant to the parol
Even assuming that the respondents put in issue in the complaint the materialize.[68] On the other hand, a sale contract between the Republic
deed of sales' failure to express the parties' true agreement, the parol and private persons is not subject to this same condition unless the
evidence will still not apply because they failed to justify the applicability parties stipulate it.
of the second exception to the parol evidence in this case.
The respondents in this case failed to prove that the sale was attended by
The second exception to the parol evidence rule applies only when the a similar condition. Hence, the parties are bound by their sale contract
written contract is so ambiguous or obscure in terms that the parties' transferring the property without the condition applicable in
contractual intention cannot be understood from a mere reading of expropriation cases.
the agreement.[64] Hence, the court may receive extrinsic evidence to
enable the court to address the ambiguity.[65] WHEREFORE, we grant the Republic's petition and
accordingly REVERSE and SET ASIDE the Court of Appeal's July 4,
Although parol evidence is admissible to explain the contract's meaning, 2012 decision and September 26, 2012 resolution in CA G.R. CV No.
it cannot serve to incorporate into the contract additional conditions 93018.
which are not mentioned at all in the contract unless there is fraud or
mistake.[66] Evidence of a prior or contemporaneous verbal agreement is SO ORDERED.
generally not admissible to vary, contradict, or defeat the operation of a
valid contract.[67] Hence, parol evidence is inadmissible to modify the Carpio,* (Chairperson), Del Castillo, Mendoza, and Leonen, JJ., concur.
terms of the agreement if the complaint fails to allege any mistake or
imperfection in the written agreement.
*Designated as Acting Chief Justice per Special Order No. 2386 dated
In the present case, the respondents failed to allege that the terms of the September 29, 2016.
deeds of sale are ambiguous or obscure to require the presentation of
parol evidence to ascertain the parties' intent. Both parties agree that the [1] Rollo, pp. 7-32.
transaction was clearly a sale to transfer ownership over the properties to
the Republic. Absent any allegation that the contractual terms are [2] Id. at 38-61; penned by Court of Appeals Associate Justice Socorro B.

evidence rule, no evidence of contractual terms is admissible other than ambiguous, the testimonies of Gonzalo and Viloria are unnecessary to Inting, and concurred in by Associate Justices Fernanda Lampas Peralta
the contract itself. On this level alone, the respondents failed to discharge establish the two alleged oral conditions. and Mario V. Lopez.
their burden.
To reiterate, the respondents failed to comply with the parol evidence [3] Id. at 63.

Furthermore, the respondents failed to put in issue in their pleadings the rule because: first, they failed to produce copies of the deeds of sale;
sale contract's failure to express the parties' agreement. In Ortañez v. Court second, they failed to prove that the second exception to the parol [4] RTC rollo, v.3.

of Appeals, the respondents alleged the existence of oral conditions

[63] evidence rule applies. Hence, the testimonies of Gonzalo and Viloria are
which were not reflected in the deeds of sale. A witness testified in court inadmissible under the parol evidence rule. [5] Rollo, p. 40.

that the sale was subject to the oral conditions. The Court held that the CONCLUSION
parol evidence was inadmissible because, among others, the respondents [6] Id. at 39-40.

failed to expressly plead that the deeds of sale did not reflect the parties' In sum, we rule that (a) the State is not immune from suit; (b) the
intentions. Instead, they merely alleged that the sale was subject to four respondents' action is not barred by either prescription or laches; and (c) [7] RTC rollo, p.4.
conditions which they tried to prove during trial. The Court emphasized the second exception to the parol evidence rule does not apply.
that this cannot be done because they failed to put in issue in their Consequently, we grant the Republic's petition and reverse the CA's [8] Rollo, p. 57.

pleadings any exception to the parol evidence rule. ruling annulling the sale contract between the parties.
[9] Id. at 40.

Similar to Ortañez, a review of the complaint reveals that the On a final note, we point out that the parties entered into a negotiated
respondents failed to put in issue in their complaint that the deeds of sale do sale transaction; thus, the Republic did not acquire the property through [10] Id. at 42.
not express the parties' true intent. Hence, the failure of the deeds of sale expropriation.
to reflect the parties' agreement was not squarely presented as an issue [11] Id. at 68.

for the court to hear evidence on it. Therefore, the exceptions to the In expropriation, the Republic's acquisition of the expropriated property
parol evidence rule cannot apply. is subject to the condition that the Republic will return the property [12] Id. at 61-62. The three titled issued in the Republic's name covers the

should the public purpose for which the expropriation was done did not properties sold while the remaining three titles issued in the respondents'

34
names covers their remaining properties. time martial rule ceased. b) In 1987, President Aquino issued Proclamation No. 137, excluding
some portions of the NGC reservation and declared these portions open
[13] Id. at 39-41 and 61-62. Assuming that fraud attended the sale, the action for the annulment of for disposition;
sale on that ground prescribes after four years from the discovery of the
[14] Id. at 41 and 70. fraud. The defendants argue that from 1987 to 1998, several presidential c) In 1993, President Ramos issued Proclamation No. 248, declaring the
proclamations were issued subjecting the properties to socialized housing excluded properties reserved for the bona fide residents; and
[15] Id. at 70. programs. The implementation of socialized housing on the properties
since 1987 was known to the general public. Thus, the respondents d) In 1998, President Ramos issued Proclamation No. 1169, excluding
[16] Id. at 41. should have filed the action for annulment of sale not later than 2002. additional areas from the NGC site.
[32] Id. at 79.
[17] Id. Presidential Decree No. 1517, Proclaiming Urban Land Reform in the
[29]

Philippines and Providing for the Implementing Machinery Thereof, [33] "Section 9. Private property shall not be taken for public use without
[18] An Act Declaring Certain Portions of the National Government "Urban Land Reform Act", June 11, 1978. just compensation."
Center Site Open for Disposition to Bona Fide Residents and Local
Government or Community Facilities, Charitable, Educational and [30] Rollo, pp. 103-104. [34] Rollo, p. 60.
Religious Institutions Actually Occupying the Same for Socioeconomic, "Q: What was the practice at that time with respect to the payment of
Civic and Religious Purposes, Amending for this Purpose Proclamation just compensation for land expropriation by the government, if you [35] Rules of Court, Rule 130, Sec. 9(b).
No. 1826, Series of 1979 and for Other Purposes (Approved on: May 17, know?
2003). [36] Rollo, p. 22.
A: We started expropriation proceedings under P.D. 1517, the declared
[19] Rollo, p. 71. value of the owner and the declare (sic) value of the assessor, whichever [37] Id. at 23.
is lower.
[20] Id. at 41-42. [38] Id. at 24.
Q: Was that observed in the case of the expropriation of the National
[21] Id. at 71-72: Marginal note on Gonzalo's letter: Government Center? [39] Id. at 24.
August 23, 2004
Sonny Godonez, A: It was not, sir, because the clamor there is very low not in accordance [40] Id. at 28.
with the price acquisition of lands.
This request is reasonable. Look into the possibility of a purchase. Give xxxx [41] Id. at 30.
me a feedback asap.
(Sgd.) Michael Defensor" Q: Did you arrive at some negotiated price, purchase price for the [42] Id. at 133.
properties?
[22] Id. at 72. A: Yes, Sir. [43] Id. at 133.
xxxx
[23] Id. Q: How about the issue of the possibility of abandonment of the project [44] Id. at 134.
of the government, was that taken up?
[24] RTC rollo, pp. 2-12. A: That is one that we discussed in the meeting the need of privating (sic) [45] Id. at 135.
their property. If the government will not push through with the
[25] Rollo, p. 42. project, they can repurchase or reconvey the property. Human Rights Victims Reparation and Recognition Act, July 23,
[46]

2012.
[26] Id. at 42. Q: At what price?
A: The same price." [47] Rollo, p. 137.
[27] Id. at 77-87.
[31]Rollo, pp. 78-79. Several presidential proclamations were issued in [48] Id. at 139.
[28]Id. at 82-83: The defendants argued that an action for annulment of relation to the NGC Project, to wit:
sale must be filed within four years from the time the defect of the a) In 1979, President Marcos issued Proclamation No. 1926, reserving [49] 1987 CONSTITUTION, ART. XVI, Sec. 6.
consent ceased. (CIVIL CODE OF THE PHILIPPINES, Art. 1391) the a 444-hectare property as a site for the NGC Project;
Thus, the action prescribed on February 24, 1990 or four years from the [50] Republic v. Sandoval, G.R. No. 84607, March 19, 1993, 220 SCRA (cut)

35

THIRD DIVISION
[ G.R. No. 190289, January 17, 2018 ]
THE CITY OF BACOLOD, HON. MAYOR EVELIO R.
LEONARDIA, ATTY. ALLAN L. ZAMORA AND ARCH.
LEMUEL D. REYNALDO, IN THEIR PERSONAL
CAPACITIES AND IN THEIR CAPACITIES AS OFFICIALS OF
THE CITY OF BACOLOD, PETITIONERS, VS. PHUTURE
VISIONS CO., INC., RESPONDENT.
DECISION
VELASCO JR., J.:
Nature of the Case
Before the Court is a Petition for Review on Certiorari under Rule 45 of
the Rules of Court of the Decision[1] dated February 27, 2009 and the
Resolution[2] dated October 27, 2009 of the Court of Appeals (CA) in CA
G.R. SP No. 03322. The assailed rulings reversed the dismissal of
respondent's Petition for Mandamus and Damages with Prayer for Issuance of a
Temporary Mandatory Order and/or Writ of Preliminary Mandatory
Injunction (Petition for Mandamus and Damages) by the Regional Trial
Court of Bacolod City, Branch 49.[3]
The Facts
The instant case stems from the Petition for Mandamus and Damages filed by
respondent Phuture Visions Co., Inc. (Phuture) on March 5, 2007 against
petitioners City of Bacolod, Hon. Mayor Evelio R. Leonardia, Atty. Allan
L. Zamora (now deceased) and Arch. Lemuel D. Reynaldo. In the Petition
for Mandamus and Damages, Phuture alleged the following:
Phuture was incorporated in 2004. In May 2005, its Articles of
Incorporation (AOI) was amended to, among others, include the
operation of lotto betting stations and/or other gaming outlets as one of
its secondary purposes. Eventually, it applied with the Philippine
Amusement and Gaming Corporation (PAGCOR) for an authority to
operate bingo games at the SM City Bacolod Mall (SM Bacolod), as well
as with SM Prime Holdings (SM Prime) for the lease of a space in the
said building. Phuture was issued a provisional Grant of Authority
(GOA) on December 5, 2006 by PAGCOR, subject to compliance with
certain requirements, and received an Award Notice from SM Prime on
January 10, 2007.[4]
were found to be in order.[11] However, petitioners found discrepancies in
Thereafter, Phuture processed, completed and submitted to the Permits Phuture's submitted requirements, wherein the application form was
and Licensing Division of the City Mayor of Bacolod City its Application notarized earlier than the amendment of its AOI to reflect the company's
for Permit to Engage in Business, Trade or Occupation to operate bingo primary purpose for bingo operations. Aside from this, respondent failed
games at SM Bacolod and paid the fees therefor. It was then issued a to pay the necessary permit fee/assessment fee under the applicable tax
claim slip for its permit on February 19, 2007, which was to be claimed ordinances of the City of Bacolod.[12]
on March 16, 2007.[5] In the meantime, Phuture further amended its AOI
on February 27, 2007 to reflect its engagement in bingo operations as its Also, without waiting for the release of the mayor's permit, respondent
primary purpose. started the operation of its bingo outlet at SM Bacolod. This prompted
the former City Legal Officer, Atty. Allan Zamora, to issue a Closure
Phuture commenced bingo operations at SM Bacolod on March 2, 2007, Order dated March 2, 2007, pursuant to City Tax Ordinance No. 93-001,
prior to the issuance of the actual hard copy of the mayor's permit. Series of 1993,[13] which declares unlawful for any person to operate any
However, at around 6:10 a.m. of March 3, 2007, respondent learned that business in the City of Bacolod without first obtaining a permit therefor
its bingo outlet was padlocked by agents of the Office of the City Legal from the City Mayor and paying the necessary permit fee and other
Officer and that a copy of a Closure Order dated March 2, 2007 was charges to the City Treasurer.
posted at the entrance of the bingo outlet.[6]
The Closure Order was presented by petitioners' representative to
Phuture claimed that the closure of its bingo outlet at SM Bacolod is respondent's lawyers to negotiate a possible peaceful solution before its
tainted with malice and bad faith and that petitioners did not have the implementation. However, respondent simply ignored the information
legal authority to shut down said bingo operations, especially since relayed to them and thus, at around 6:00 a.m. on March 3, 2007, the
PAGCOR itself had already issued a provisional GOA in its favor. Composite Enforcement Unit under the Office of the City Legal Officer
implemented the Closure Order.[14]
On March 7, 2007, the RTC conducted a summary hearing to determine
the sufficiency of the form and substance of the application for the Petitioners contended that the claim slip so heavily relied upon by
issuance of a temporary mandatory order and/or preliminary mandatory respondent was a mere oversight or human error of the City
injunction to remove the padlock installed at respondent's place of Government's employee who processed the same, who was likewise
business at SM Bacolod and allow it to conduct unhampered bingo duped by the tampered entries that respondent's application was for a
operations.[7] In the course of the summary hearing, specifically on March permit for bingo operations when, in truth, it was only for the renewal of
9, 2007, petitioners released in open court to respondent's counsel the a previously-issued permit albeit for a different line of business, i.e.,
hard copy of the Mayor's Permit dated February 19, 2007 which indicated "professional services, band/entertainment services."[15]
the kind of business allowed is "Professional Services, Ruling of the Regional Trial Court
Band/Entertainment. Services." Phuture's counsel, however, refused to
receive the same, protesting that it was not the Mayor's Permit which In a Decision[16] dated March 20, 2007, the RTC denied the prayer for the
respondent had applied for.[8] issuance of a temporary mandatory order and dismissed the case for lack
of merit, to wit:
On March 19, 2007, petitioners filed their Comment and Answer with In view of the foregoing disquisitions, it follows that the prayer for
Counterclaim, denying the allegations set forth in the Petition for Mandamus issuance of a temporary mandatory order prayed for must be denied.
and Damages and presenting a slightly different set of facts,[9] as follows:
WHEREFORE, in the light of all the foregoing discussions, the instant
On January 10, 2007, Phuture applied for the renewal of its mayor's petition is ordered DISMISSED for lack of merit, without prejudice to
permit with "professional services, band/entertainment services" as its filing an application of a Mayor's Permit specifically for bingo operation.
declared line of business, providing the address of the business as "RH Respondents' counterclaim is ordered DISMISSED, without prejudice to
Building, 26 Lacson Street, Barangay 5" instead of SM Bacolod where filing appropriate action with a court of competent jurisdiction.
respondent's bingo operations was located.[10]
Without pronouncement as to costs.
Upon submission of the requirements on February 19,2007 and while the
application was being processed, Phuture was issued a "claim slip" for it SO ORDERED.[17]
to claim the actual mayor's permit on March 16, 2007 if the requirements
36
Phuture filed an Urgent Motion for Partial Reconsideration on April 2, its political subdivisions are open to suit only when they consent to it.
2007, but the same was denied by the RTC in its Order dated September Petitioners again limit their argument to the CA's order to remand the
6, 2007.[18] Thus, respondent elevated the matter to the CA on appeal. [19] case to the RTC for trial on the aspect of damages. According to Consent may be express or implied, such as when the government
Ruling of the Court of Appeals petitioners, hearing the action for damages effectively violates the City's exercises its proprietary functions, or where such is embodied in a
immunity from suit since respondent had not yet obtained the consent of general or special law.[30] In the present case, respondent sued petitioners
In the assailed Decision dated February 27, 2009, the CA partially the City Government of Bacolod to be included in the claim for for the latter's refusal to issue a mayor's permit for bingo operations and
granted the appeal by affirming the trial court's denial of the application damages. They also argue that the other petitioners, the City Mayor and for closing its business on account of the lack of such permit. However,
for a temporary mandatory order but reversing the dismissal of the suit other officials impleaded, are similarly immune from suit since the acts while the authority of city mayors to issue or grant licenses and business
for damages and ordering the case to be reinstated and remanded to the they performed were within their lawful duty and permits is granted by the Local Government Code (LGC), [31] which also
court of origin for further proceedings. The dispositive portion of the functions.[24] Moreover, petitioners maintain that they were merely vests local government units with corporate powers, one of which is the
assailed Decision reads: performing governmental or sovereign acts and exercised their legal power to sue and be sued, this Court has held that the power to issue or
WHEREFORE, based on the foregoing premises, the appeal rights and duties to implement the provisions of the City grant licenses and business permits is not an exercise of the government's
is PARTLY GRANTED. The Decision of Branch 49 of the Regional Ordinance.[25] Finally, petitioners contend that the assailed Decision proprietary function. Instead, it is in an exercise of the police power of
Trial Court of Bacolod City dated 20 March 2007 and Order dated 06 contained inconsistencies such that the CA declared mandamus to be an the State, ergo a governmental act. This is clearly elucidated by the Court
September 2007, denying the application for a Temporary Mandatory inappropriate remedy, yet allowed the case for damages to prosper. [26] in Acebedo Optical Company, Inc. v. The Honorable Court of Appeals:[32]
Order is AFFIRMED. The dismissal of the main action The Court of Appeals erred in adjudging subject business permit as
is REVERSED and is hereby REINSTATED and REMANDED to In its Comment,[27] respondent Phuture argues that the grounds raised by having been issued by respondent City Mayor in the performance of
the court of origin for further proceedings. petitioners should not be considered since these were only invoked for proprietary functions of Iligan City. As hereinabove elaborated upon, the
the first time on appeal. Aside from this, respondent asserts that the case issuance of business licenses and permits by a municipality or city
SO ORDERED.[20] for damages should proceed since petitioners allegedly caused the illegal is essentially regulatory in nature. The authority, which devolved
The CA pronounced that the issue of whether the RTC erred in closure of its bingo outlet without proper notice and hearing and with upon local government units to issue or grant such licenses or
dismissing the prayer for temporary mandatory order for the removal of obvious discrimination. permits, is essentially in the exercise of the police power of the
the padlock allegedly installed illegally at respondent's place of business at State within the contemplation of the general welfare clause of the Local
SM Bacolod, as well as the prayer ordering petitioners to allow In their Reply to the Comment dated August 26, 2010, petitioners Government Code. (emphasis supplied)
respondent to conduct unhampered bingo operations during the oppose respondent's arguments, saying that the issues they raised in the No consent to be sued and be liable for damages can thus be implied
pendency of the case, had already been rendered moot since, with the instant petition cannot be considered as having been raised for the first from the mere conferment and exercise of the power to issue business
onset of another year, it was necessary to apply for another business time since they are intertwined and bear relevance and close relation to permits and licences. Accordingly, there is merit in petitioners' argument
permit with the Mayor's Office.[21] the issues resolved by the trial court. They further reiterate that they that they cannot be sued by respondent since the City's consent had not
cannot be held liable for damages since they were merely performing been secured for this purpose. This is notwithstanding petitioners' failure
Nevertheless, the CA proceeded to rule on the issue on whether the governmental or sovereign acts in the issuance of a mayor's permit. Thus, to raise this exculpatory defense at the first instance before the trial court
closure of respondent's bingo operations at SM Bacolod was effected in a they argue that whatever damages that respondent may have incurred or even before the appellate court.
manner consistent with law. While it ruled that the Mayor's power to belong to the concept of damnum absque injuria for which the law provides
issue licenses and permits is discretionary, and thus, cannot be compelled no remedy.[28] As this Court has repeatedly held, waiver of immunity from suit, being in
by mandamus, it found that respondent was not given due notice and The Issues derogation of sovereignty, will not be lightly inferred.[33] Moreover, it
hearing as to the closure of its business establishment at SM Bacolod. deserves mentioning that the City of Bacolod as a government agency or
Based on the CA's finding on the manner by which the closure of the Stripped of the verbiage, the sole issue in this case ts whether petitioners
instrumentality cannot be estopped by the omission, mistake or error of
bingo operations was effected, it concluded that respondent was denied can be made liable to pay respondent damages. its officials or agents.[34] Estoppel does not also lie against the
its proprietary right without due process of law. Accordingly, the CA The Court's Ruling government or any of its agencies arising from unauthorized or illegal
ordered the case to be reinstated and remanded to the RTC to determine acts of public officers.[35] Hence, we cannot hold petitioners estopped
if damages should be awarded.[22] The petition is meritorious. from invoking their immunity from suit on account of having raised it
only for the first time on appeal. On this score, Justice Barreda's Opinion
Petitioners timely interposed a Motion for Reconsideration,[23] protesting Petitioners have not given their consent to be sued in Insurance Co. of North America v. Osaka Shosen Kaisha[36] is particularly
the CA's order to remand the case to the RTC for trial on the aspect of illuminating:
damages. The CA, however, maintained its position, issuing the now The principle of immunity from suit is embodied in Section 3, Article x x x [T]he real reason why, from the procedural point of view, a suit
assailed Resolution. Aggrieved, petitioners brought the matter before this XVI of the 1987 Philippine Constitution which states that "[t]he State against the state filed without its consent must be dismissed is because,
Court through the present recourse. cannot be sued without its consent." The purpose behind this principle is necessarily, any such complaint cannot state a cause of action, since, as
The Petition to prevent the loss of governmental efficiency as a result of the time and the above decision confirms, "there can be no legal right as against the
energy it would require to defend itself against lawsuits.[29] The State and authority that makes the law on which the right depends." x x x

37

The question that arises now is, may failure to state a cause of action be
alleged as a ground of dismissal for the first-time on appeal? x x x
x x x Indeed, if a complaint suffers from the infirmity of not stating facts
sufficient to constitute a cause of action in the trial court, how could
there be a cause of action in it just because the case is already on appeal?
Again, if a complaint should be dismissed by the trial court because it
states no cause of action, how could such a complaint be the basis of a
proceeding on appeal? The answer, I submit, is found in section 2 of
Rule 9 which provides:
xxxx
x x x The requirement that this defense should be raised at the trial is
only to give the plaintiff a chance to cure the defect of his complaint, but
if, as in this case, the lack of consent of the state cannot be cured because
it is a matter of judicial notice that there is no law allowing the present
suit, (only Congress that can give such consent) the reason for the rule
cannot obtain, hence it is clear that such non-suability may be raised even
on appeal. After all, the record on appeal can be examined to find out if
the consent of the state is alleged in the complaint.
xxxx
x x x It is plain, however, that as far as the date is concerned, this rule of
waiver cannot apply, for the simple reason that in the case of the state as
already stated, the waiver may not be made by anyone other than
Congress, so any appearance in any form made on its behalf would be
ineffective and invalid if not authorized by a law duly passed by
Congress. Besides, the state has to act thru subalterns who are not always
prepared to act in the premises with the necessary capability, and
instances there can be when thru ignorance, negligence or malice, the
interest of the state may not be properly protected because of the
erroneous appearance made on its behalf by a government lawyer or
some other officer, hence, as a matter of public policy, the law must be
understood as insulating the state from such undesirable contingencies
and leaving it free to invoke its sovereign attributes at any time and at any
stage of a judicial proceeding, under the principle that the mistakes and
ommissions of its officers do not bind it.
Petitioners are not liable for damages
As to the primary issue of whether petitioners are liable to respondent
for damages, respondent Phuture alleged that petitioners are guilty of
surreptitiously padlocking its SM bingo outlet in a "patently arbitrary,
whimsical, capricious, oppressive, irregular, immoral and shamelessly
politically motivated" manner and with clear discrimination since the
majority owners of the company are the sons of petitioner Mayor
Leonardia's political rival, then Congressman Monico a month after it had supposedly applied for a license for bingo operations
Puentevella.[37] Such contention is clearly but non sequitur, grounded as it is with the Office of the Mayor. It is settled that a judicial admission is
in pure conjecture. binding on the person who makes it, and absent any showing that it was
made through palpable mistake, no amount of rationalization can offset
Sticking closely to the facts, it is best to recapitulate that while the CA such admission.[40] This admission clearly casts doubt on respondent's so-
ruled that respondent was not given due notice and hearing as to the called right to operate its business of bingo operations.
closure of its business establishment at SM Bacolod, it nevertheless
remanded the issue of the award of damages to the trial court for further Petitioners, in ordering the closure of respondent's bingo operations,
proceedings. Such action would only be an exercise in futility, as the trial were exercising their duty to implement laws and ordinances which
court had already ruled in its September 6, 2007 Decision that include the local government's authority to issue licenses and permits for
respondent Phuture had no right and/or authority to operate bingo business operations in the city. This authority is granted to them as a
games at SM Bacolod because it did not have a Business Permit and has delegated exercise of the police power of the State. It must be
not paid assessment for bingo operation. Thus, it held that petitioners emphasized that the nature of bingo operations is a form of gambling;
acted lawfully in stopping respondent's bingo operation on March thus, its operation is a mere privilege which could not only be regulated,
2, 2007 and closing its establishment for lack of any business permit. but may also very well be revoked or closed down when public interests
so require.[41]
The trial court further found that the Mayor's Office had already decided
and released a Business Permit for "Professional Services, In this jurisdiction, we adhere to the principle that injury alone does not
Band/Entertainment Services" dated January 19, 2007 to respondent, give respondent the right to recover damages, but it must also have a
which cannot reasonably expect to receive a Mayor's Permit for "Bingo right of action for the legal wrong inflicted by petitioners. In order that
Operations" unless and until it files a new application for bingo the law will give redress for an act causing damage, there must be damnum
operations, submit the necessary requirements therefor, and pay the et injuria that act must be not only hurtful, but wrongful. The case of The
corresponding assessment.[38] Orchard Golf & Country Club, Inc., et al. v. Ernesto V. Yu and Manuel C.
Yuhico,[42] citing Spouses Custodio v. Court of Appeals,[43] is instructive, to wit:
Aside from this, the RTC had also found that respondent's reliance on x x x [T]he mere fact that the plaintiff suffered losses does not give rise
the GOA issued by PAGCOR, the SM Award Notice, and the to a right to recover damages. To warrant the recovery of damages, there
"questionable" Claim Slip and Application paper tainted with must be both a right of action for a legal wrong inflicted by the
alteration/falsification did not appear to be a right that is clear and defendant, and damage resulting to the plaintiff therefrom. Wrong
unmistakable. From this, the trial court concluded that the right being without damage, or damage without wrong, does not constitute a cause
claimed by respondent to operate bingo games at SM Bacolod was, at the of action, since damages are merely part of the remedy allowed for the
very least, doubtful.[39] injury caused by a breach or wrong.
Based on the above observations made by the trial court, it appears that xxxx
respondent had no clear and unmistakable legal right to operate its bingo
operations at the onset. Respondent failed to establish that it had duly In order that a plaintiff may maintain an action for the injuries of which
applied for the proper permit for bingo operations with the Office of the he complains, he must establish that such injuries resulted from a breach
Mayor and, instead, merely relied on the questionable claim stub to of duty which the defendant owed to the plaintiff a concurrence of injury
support its claim. The trial court also found that the application form to the plaintiff and legal responsibility by the person causing it. The
submitted by respondent pertained to a renewal of respondent's business underlying basis for the award of tort damages is the premise that an
for "Professional Services, Band/Entertainment Services" located at "RH individual was injured in contemplation of law. Thus, there must first be
Bldg., 26th Lacson St." and not at SM Bacolod. These factual findings by the breach of some duty and the imposition of liability for that breach
the trial court belie respondent's claim that it had the right to operate its before damages may be awarded; it is not sufficient to state that there
bingo operations at SM Bacolod. should be tort liability merely because the plaintiff suffered some pain
and suffering.
Certainly, respondent's claim that it had applied for a license for bingo
operations is questionable since, as it had admitted in its Petition for xxxx
Mandamus and Damages, the primary purpose in its AOI was only
amended to reflect bingo operations on February 14, 2007 or more than In other words, in order that the law will give redress for an act causing
38
damage, that act must be not only hurtful, but wrongful. There must
be damnum et injuria. If, as may happen in many cases, a person sustains [5] Id. at 104-105. [23] Id. at 63-80.
actual damage, that is, harm or loss to his person or property, without
sustaining any legal injury, that is, an act or omission which the law does [6] Id. at 106. [24] Id. at 34-36.
not deem an injury, the damage is regarded as damnum absque injuria.
Considering that respondent had no legal right to operate the bingo [7] Id. at 149. [25] Id. at 36-38.
operations at the outset, then it is not entitled to the damages which it is
demanding from petitioners. [8] Id. at 152. [26] Id. at 39-40.

WHEREFORE, the petition is hereby GRANTED. The Decision [9] Id. at 121-142. [27] Id. at 168-188.
dated February 27, 2009 and the Resolution dated October 27, 2009 of
the Court of Appeals in CA-G.R. SP No. 03322 are [10] Id. at 47-48. [28] Id. at 191-197.
hereby ANNULLED and SET ASIDE. The Decision dated March 20,
2007 of the Regional Trial Court of Bacolod City, Branch 49 is [11] Id. at 24. Providence Washington Insurance Co. v. Republic of the Philippines, No. L-
[29]

hereby REINSTATED. 26386, September 30, 1969, 29 SCRA 598, 601-602.

[12] Id. at 24-25.
SO ORDERED. The Municipality of Hagonoy, Bulacan v. Dumdum, Jr., G.R. No. 168289,
[30]
[13] Enacted on December 22, 1993, its pertinent portions read: March 22, 2010, 616 SCRA 315.
Bersamin, Leonen, Martires, and Gesmundo, JJ., concur.
Section 47. Imposition of Fee. It shall be unlawful for any person or [31] Sec. 171, par. 2 (n) of the LGC reads:

juridical entity to conduct or engage in any of the business, trade or

February 1, 2018 occupation enumerated in this Code, and other business, trade or The City Mayor shall:
occupation for which a permit is required without first obtaining a permit
NOTICE OF JUDGMENT therefore from the City Mayor and paid the necessary permit fee and xxxx
other charges to the City Treasurer. x x x
Sirs / Mesdames: n) Grant or refuse to grant, pursuant to law, city licenses or permits, and
Section 48. Imposition of Fee. The fee imposed in the preceding section revoke the same for violation of law or ordinance or the conditions upon
Please take notice that on January 17, 2018 a Decision, copy attached shall be paid to the City Treasurer upon application for a Mayor's Permit which they are granted.
hereto, was rendered by the Supreme Court in the above-entitled case, before any business or activity can commence and within the first twenty
the original of which was received by this Office on February 1, 2018 at (20) days of January of each year in case of renewal thereof. [32] G.R. No. 100152, March 31, 2000, 329 SCRA 314, 335.

9:50 a.m.
Very truly yours, [14] Rollo, p. 27. [33] Universal Mills Corp. v. Bureau of Customs, 150 Phil. 57, 66 (1972); Union

(SGD) Insurance Society of Canton, Ltd. v. Republic, 150-B Phil. 107, 116
WILFREDO V. [15] Id. at 48. (1972); Mobil Philippines Exploration, Inc. v. Customs Arrastre Service, 125 Phil.
LAPITAN 270, 279 (1966).
Division Clerk of [16] Id. at 143-160. Rendered by Presiding Judge Ramon D. Delariarte.
Court [34] Republic v. Galeno, G.R. No. 215009, January 23, 2017.
[17] Id. at 159.
[35] Intra-Strata Assurance Corp. v. Republic, 579 Phil. 631, 648 (2008).
[1] Rollo, pp. 45-62. Penned by Associate Justice Rodil V. Zalameda and [18] Id. at 160.

concurred in by Associate Justices Amy C. Lazaro-Javier and Francisco P. [36] 137 Phil. 194, 203 (1969).

Acosta. [19] Id. at 161-162.

[37] Records, p. 71
[2] Id. at 82-87. [20] Id. at 61.
[38] Rollo, p. 157.
[3] Records, pp. 1-23. [21] Id. at 53-54.
[39] Id. (cut)
[4] Rollo, pp. 101-104. [22] Id. at 55-61.

39
 FIRST DIVISION construed strictissimi juris (Republic v. Feliciano, 148 SCRA 424). The prohibition, without the illegal exemption provided in PD No. 11;
consent of the State to be sued must emanate from statutory authority, declaring null and void Section 17 of R.A. No. 5487 which provides for
[G.R. No. 91359. September 25, 1992.] hence, from a legislative act, not from a mere memorandum. Without the issuance of rules and regulations in consultation with PADPAO,
such consent, the trial court did not acquire jurisdiction over the public declaring null and void the February 1, 1982 directive of Col. Sabas V.
VETERANS MANPOWER AND PROTECTIVE SERVICES, respondents. Edadas, in the name of the then PC Chief, requiring all private security
INC., Petitioner, v. THE COURT OF APPEALS, THE CHIEF agencies/security forces such as VMPSI to join PADPAO as a
OF PHILIPPINE CONSTABULARY and PHILIPPINE 4. ID.; ID.; REASONS BEHIND. — The state immunity doctrine rests prerequisite to secure/renew their licenses, declaring that VMPSI did not
CONSTABULARY SUPERVISORY UNIT FOR SECURITY upon reasons of public policy and the inconvenience and danger which engage in ‗cut-throat competition‘ in its contract with MWSS, ordering
AND INVESTIGATION AGENCIES (PC-SUSIA), Respondents. would flow from a different rule. "It is obvious that public service would defendants PC Chief and PC-SUSIA to renew the license of VMPSI;
be hindered, and public safety endangered, if the supreme authority could ordering the defendants to refrain from further harassing VMPSI and
Franciso A. Lava, Jr. and Andresito X. Fornier for Petitioner. be subjected to suits at the instance of every citizen, and, consequently, from threatening VMPSI with cancellations or non-renewal of license,
controlled in the use and disposition of the means required for the without legal and justifiable cause; ordering the defendants to pay to
proper administration of the government" (Siren v. U.S. Wall, 152, 19 L. VMPSI the sum of P1,000,000.00 as actual and compensatory damages,
SYLLABUS ed. 129, as cited in 78 SCRA 477). P1,000,000.00 as exemplary damages, and P200,000.00 as attorney‘s fees
and expenses of litigation; and granting such further or other reliefs to
VMPSI as may be deemed lawful, equitable and just." (pp. 55-56, Rollo.)
1. POLITICAL LAW; IMMUNITY FROM SUIT; THE PHILIPPINE DECISION
CONSTABULARY CHIEF AND THE PC-SUSIA MAY NOT BE The constitutionality of the following provisions of R.A. 5487 (otherwise
SUED WITHOUT THE CONSENT OF THE STATE. — The State known as the "Private Security Agency Law"), as amended, is questioned
may not be sued without its consent (Article XVI, Section 3, of the 1987 GRIÑO-AQUINO, J.: by VMPSI in its complaint:chanrobles.com.ph : virtual law library
Constitution). Invoking this rule, the PC Chief and PC-SUSIA contend
that, being instrumentalities of the national government exercising a "SECTION 4. Who may Organize a Security or Watchman Agency. —
primarily governmental function of regulating the organization and This is a petition for review on certiorari of the decision dated August 11, Any Filipino citizen or a corporation, partnership, or association, with a
operation of private detective, watchmen, or security guard agencies, said 1989, of the Court of Appeals in CA-G.R. SP No. 15990, entitled "The minimum capital of five thousand pesos, one hundred per cent of which
official (the PC Chief) and agency (PC-SUSIA) may not be sued without Chief of Philippine Constabulary (PC) and Philippine Constabulary is owned and controlled by Filipino citizens may organize a security or
the Government‘s consent, especially in this case because VMPSI‘s Supervisor Unit for Security and Investigation Agencies (PC-SUSIA) v. watchman agency: Provided, That no person shall organize or have an
complaint seeks not only to compel the public respondents to act in a Hon. Omar U. Amin and Veterans Manpower and Protective Services, interest in, more than one such agency except those which are already
certain way, but worse, because VMPSI seeks actual and compensatory Inc. (VMPSI)," lifting the writ of preliminary injunction which the existing at the promulgation of this Decree: . . ." (As amended by P.D.
damages in the sum of P1,000,000.00, exemplary damages in the same Regional Trial Court had issued to the PC-SUSIA enjoining them from Nos. 11 and 100.)
amount, and P200,000.00 as attorney‘s fees from said public respondents. committing acts that would result in the cancellation or non-renewal of
Even if its action prospers, the payment of its monetary claims may not the license of VMPSI to operate as a security agency.chanrobles virtual "SECTION 17. Rules and Regulations by Chief, Philippine Constabulary.
be enforced because the State did not consent to appropriate the lawlibrary — The Chief of the Philippine Constabulary, in consultation with the
necessary funds for that purpose. Philippine Association of Detective and Protective Agency Operators,
On March 28, 1988, VMPSI filed a complaint in the Regional Trial Court Inc. and subject to the provision of existing laws, is hereby authorized to
2. ID.; ID.; PUBLIC OFFICIAL MAY BE SUED IN HIS PERSONAL at Makati, Metro Manila, praying the court to:jgc:chanrobles.com.ph issue the rules and regulations necessary to carry out the purpose of this
CAPACITY IF HE ACTS, AMONG OTHERS BEYOND THE Act."cralaw virtua1aw library
SCOPE OF HIS AUTHORITY; CASE AT BAR. — A public official "A. Forthwith issue a temporary restraining order to preserve the status
may sometimes be held liable in his personal or private capacity if he acts quo, enjoining the defendants, or any one acting in their place or stead, to VMPSI alleges that the above provisions of R.A. No. 5487 violate the
in bad faith, or beyond the scope of his authority or jurisdiction (Shauf v. refrain from committing acts that would result in the cancellation or non- provisions of the 1987 Constitution against monopolies, unfair
Court of Appeals, supra), however, since the acts for which the PC Chief renewal of VMPSI‘s license; competition and combinations in restraint of trade, and tend to favor and
and PC-SUSIA are being called to account in this case, were performed institutionalize the Philippine Association of Detective and Protective
by them as part of their official duties, without malice, gross negligence, "B. In due time, issue a writ of preliminary injunction to the same effect; Agency Operators, Inc. (PADPAO) which is monopolistic because it has
or bad faith, no recovery may be had against them in their private an interest in more than one security agency.
capacities. "C. Render decision and judgment declaring null and void the
amendment of Section 4 of R.A. No. 5487, by PD No. 11 exempting Respondent VMPSI likewise questions the validity of paragraph 3,
3. ID.; ID.; CONSENT TO BE SUED MUST EMANATE FROM A organizations like PADPAO from the prohibition that no person shall subparagraph (g) of the Modifying Regulations on the Issuance of
LEGISLATIVE ACT. — Waiver of the State‘s immunity from suit, organize or have an interest in more than one agency, declaring License to Operate and Private Security Licenses and Specifying
being a derogation of sovereignty, will not be lightly inferred, but must be PADPAO as an illegal organization existing in violation of said Regulations for the Operation of PADPAO issued by then PC Chief Lt.

40
Gen. Fidel V. Ramos, through Col. Sabas V. Edades, requiring that "all the State which had not given consent thereto and that VMPSI‘s license
private security agencies/company security forces must register as already expired on March 31, 1988, hence, the restraining order or The State may not be sued without its consent (Article XVI, Section 3, of
members of any PADPAO Chapter organized within the Region where preliminary injunction would not serve any purpose because there was no the 1987 Constitution). Invoking this rule, the PC Chief and PC-SUSIA
their main offices are located . . ." (pp. 5-6, Complaint in Civil Case No. more license to be cancelled (Annex H, Petition). Respondent VMPSI contend that, being instrumentalities of the national government
88-471). As such membership requirement in PADPAO is compulsory in opposed the motion. exercising a primarily governmental function of regulating the
nature, it allegedly violates legal and constitutional provisions against organization and operation of private detective, watchmen, or security
monopolies, unfair competition and combinations in restraint of On April 18, 1988, the lower court denied VMPSI‘s application for a writ guard agencies, said official (the PC Chief) and agency (PC-SUSIA) may
trade.chanrobles.com : virtual law library of preliminary injunction for being premature because it "has up to May not be sued without the Government‘s consent, especially in this case
31, 1988 within which to file its application for renewal pursuant to because VMPSI‘s complaint seeks not only to compel the public
On May 12, 1986, a Memorandum of Agreement was executed by Section 2 (e) of Presidential Decree No. 199, . . ." (p. 140, respondents to act in a certain way, but worse, because VMPSI seeks
PADPAO and the PC Chief, which fixed the minimum monthly contract Rollo.).chanrobles.com : virtual law library actual and compensatory damages in the sum of P1,000,000.00,
rate per guard for eight (8) hours of security service per day at P2,255.00 exemplary damages in the same amount, and P200,000.00 as attorney‘s
within Metro Manila and P2,215.00 outside of Metro Manila (Annex B, On May 23, 1988, VMPSI reiterated its application for the issuance of a fees from said public respondents. Even if its action prospers, the
Petition). writ of preliminary injunction because PC-SUSIA had rejected payment payment of its monetary claims may not be enforced because the State
of the penalty for its failure to submit its application for renewal of its did not consent to appropriate the necessary funds for that
On June 29, 1987, Odin Security Agency (Odin) filed a complaint with license and the requirements therefor within the prescribed period in purpose.chanroblesvirtualawlibrary
PADPAO accusing VMPSI of cut-throat competition by undercutting its Section 2(e) of the Revised Rules and Regulations Implementing R.A.
contract rate for security services rendered to the Metropolitan 5487, as amended by P.D. 1919 (Annex M, Petition). Thus did we hold in Shauf v. Court of Appeals, 191 SCRA
Waterworks and Sewerage System (MWSS), charging said customer lower 713:jgc:chanrobles.com.ph
than the standard minimum rates provided in the Memorandum of On June 10, 1998, the RTC-Makati issued a writ of preliminary
Agreement dated May 12, 1986. injunction upon a bond of P100,000.00, restraining the defendants, or "While the doctrine appears to prohibit only suits against the state
any one acting in their behalf, from cancelling or denying renewal of without its consent, it is also applicable to complaints filed against
PADPAO found VMPSI guilty of cut-throat competition, hence, the VMPSI‘s license, until further orders from the court. officials of the state for acts allegedly performed by them in the discharge
PADPAO Committee on Discipline recommended the expulsion of of their duties. The rule is that if the judgment against such officials will
VMPSI from PADPAO and the cancellation of its license to operate a The PC Chief and PC-SUSIA filed a Motion for Reconsideration of the require the state itself to perform an affirmative act to satisfy the same,
security agency (Annex D, Petition). above order, but it was denied by the court in its Order of August 10, such as the appropriation of the amount needed to pay the damages
1988 (Annex R, Petition). awarded against them, the suit must be regarded as against the state itself
The PC-SUSIA made similar findings and likewise recommended the although it has not been formally impleaded." (Emphasis supplied.)
cancellation of VMPSI‘s license (Annex E, Petition). On November 3, 1988, the PC Chief and PC-SUSIA sought relief by a
petition for certiorari in the Court of Appeals. A public official may sometimes be held liable in his personal or private
As a result, PADPAO refused to issue a clearance/certificate of capacity if he acts in bad faith, or beyond the scope of his authority or
membership to VMPSI when it requested one. On August 11, 1989, the Court of Appeals granted the petition. The jurisdiction (Shauf v. Court of Appeals, supra), however, since the acts
dispositive portion of its decision reads:jgc:chanrobles.com.ph for which the PC Chief and PC-SUSIA are being called to account in this
VMPSI wrote the PC Chief on March 10, 1988, requesting him to set case, were performed by them as part of their official duties, without
aside or disregard the findings of PADPAO and consider VMPSI‘s "WHEREFORE, the petition for certiorari filed by petitioners PC Chief malice, gross negligence, or bad faith, no recovery may be had against
application for renewal of its license, even without a certificate of and PC-SUSIA is hereby GRANTED, and the RTC-Makati, Branch 135, them in their private capacities.
membership from PADPAO (Annex F, Petition). is ordered to dismiss the complaint filed by respondent VMPSI in Civil
Case No. 88-471, insofar as petitioners PC Chief and PC-SUSIA are We agree with the observation of the Court of Appeals that the
As the PC Chief did not reply, and VMPSI‘s license was expiring on concerned, for lack of jurisdiction. The writ of preliminary injunction Memorandum of Agreement dated May 12, 1986 does not constitute an
March 31, 1988, VMPSI filed Civil Case No. 88-471 in the RTC-Makati, issued on June 10, 1988, is dissolved." (pp. 295-296, Rollo.) implied consent by the State to be sued:jgc:chanrobles.com.ph
Branch 135, on March 28, 1988 against the PC Chief and PC-SUSIA. On
the same date, the court issued a restraining order enjoining the PC Chief VMPSI came to us with this petition for review. "The Memorandum of Agreement dated May 12, 1986 was entered into
and PC-SUSIA "from committing acts that would result in the by the PC Chief in relation to the exercise of a function sovereign in
cancellation or non-renewal of VMPSI‘s license" (Annex G, Petition). The primary issue in this case is whether or not VMPSI‘s complaint nature. The correct test for the application of state immunity is not the
against the PC Chief and PC-SUSIA is a suit against the State without its conclusion of a contract by the State but the legal nature of the act. This
The PC chief and PC-SUSIA filed a "Motion to Dismiss, Opposition to consent. was clearly enunciated in the case of United States of America v. Ruiz
the Issuance of Writ of Preliminary Injunction, and Motion to Quash the where the Hon. Supreme Court held:jgc:chanrobles.com.ph
Temporary Restraining Order," on the grounds that the case is against The answer is yes.

41
"‗The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign SO ORDERED.
sovereign, its commercial activities or economic affairs. Stated differently,
a State may be said to have descended to the level of an individual and Medialdea and Bellosillo, JJ., concur.
can thus be deemed to have tacitly given its consent to be sued only
when it enters into a business contract. It does not apply where the Cruz, J., is on leave.
contract relates to the exercise of its functions.‘ (136 SCRA 487, 492.)

"In the instant case, the Memorandum of Agreement entered into by the
PC Chief and PADPAO was intended to professionalize the industry and
to standardize the salaries of security guards as well as the current rates of
security services, clearly, a governmental function. The execution of the
said agreement is incidental to the purpose of R.A. 5487, as amended,
which is to regulate the organization and operation of private detective,
watchmen or security guard agencies. (Emphasis ours.)" (pp. 258-259,
Rollo.)

Waiver of the State‘s immunity from suit, being a derogation of

sovereignty, will not be lightly inferred, but must be construed strictissimi
juris (Republic v. Feliciano, 148 SCRA 424). The consent of the State to
be sued must emanate from statutory authority, hence, from a legislative
act, not from a mere memorandum. Without such consent, the trial court
did not acquire jurisdiction over the public respondents.

The state immunity doctrine rests upon reasons of public policy and the
inconvenience and danger which would flow from a different rule. "It is
obvious that public service would be hindered, and public safety
endangered, if the supreme authority could be subjected to suits at the
instance of every citizen, and, consequently, controlled in the use and
disposition of the means required for the proper administration of the
government" (Siren v. U.S. Wall, 152, 19 L. ed. 129, as cited in 78 SCRA
477). In the same vein, this Court in Republic v. Purisima (78 SCRA 470,
473) rationalized:jgc:chanrobles.com.ph

"Nonetheless, a continued adherence to the doctrine of nonsuability is

not to be deplored for as against the inconvenience that may be cause
[by] 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 obstacles, could
very well be imagined." (citing Providence Washington Insurance Co. v.
Republic, 29 SCRA 598.)cralawnad

WHEREFORE, the petition for review is DENIED and the judgment

appealed from is AFFIRMED in toto. No costs.

42
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-20213 January 31, 1966
MARIANO E. GARCIA, plaintiff-appellant,
vs.
THE CHIEF OF STAFF and THE ADJUTANT GENERAL,
ARMED FORCES OF THE PHILIPPINES and/or THE
CHAIRMAN, PHILIPPINE VETERANS BOARD and/or
THE AUDITOR GENERAL OF THE
PHILIPPINES,defendants-appellees.
Tiangco and Millosa for the plaintiff-appellant.
Office of the Solicitor General for the defendants-appellees.
REGALA, J.:
This is an appeal from an order of dismissal.
It appears that on December 1, 1961, the plaintiff-appellant, Mariano
E. Garcia, filed with the Court of First Instance of Pangasinan an
action to collect a sum of money against the Chief of Staff and the
Adjutant General of the Armed Forces of the Philippines, the
Chairman of the Philippine Veterans Board and /or the Auditor
General. The complaint alleged: that sometime in July, 1948, the
plaintiff suffered injuries while undergoing the 10-month military
training at Camp Floridablanca, Pampanga; that sometime thereafter
he filed his claim under Commonwealth Act 400 and in April, 1957,
he submitted some papers in support of his claim to the Adjutant
General's Office upon the latter's request; that on May 2, 1957, he
received a letter from the said Adjutant General's Office disallowing
his claim for disability benefits; that on November 24, 1958, after
further demands of the plaintiff, the Adjutant General's Office denied
the said claim, alleging that Commonwealth Act 400 had already been
repealed by Republic Act 610 which took effect on January 1, 1950;
that by reason of the injuries suffered by plaintiff he was deprived of
his sight or vision rendering him permanently disabled; and that by
reason of the unjustified refusal by defendants of plaintiff's claim, the
latter was deprived of his disability pension from July, 1948 totalling
no less than P4,000 at the rate of P20 a month and suffered thereby (c) To the Supreme Court of the Philippines, if the appellant
moral damages and attorney's fees the amount of P2,000.00. is a private person or entity.
The Philippine Veterans Administration and the Chief of Staff of the The well established rule that no recourse to court can be had until all
Armed Forces filed separate motions to dismiss the complaint on the administrative remedies had been exhausted and that actions against
grounds that the court has no jurisdiction over the subject matter of administrative officers should not be entertained if superior
the complaint; that the plaintiff failed to exhaust all administrative administrative officers could grant relief is squarely applicable to the
remedies before coming to court; that the complaint states no cause present case.
of action; and that the cause of action is barred by the statute of
limitations.
1äwphï1.ñët
In view therefor, the order dismissing the complaint is hereby
affirmed, without pronouncement as to costs.
Acting on the said motion, the court, on March 2, 1962, rendered an
order dismissing the complaint on the ground that the action has Bengzon, C.J., Bautista Angelo, Concepcion, Reyes J.B.L., Barrera, Dizon,
prescribed. Bengzon, J.P., and Zaldivar, JJ., concur.
Makalintal, J., took no part.
Motion for reconsideration of the said order having been denied, the
plaintiff has interposed this appeal.
Without need of discussing the various questions raised, We have to
uphold the order of dismissal, not necessarily on the same ground as
found by the lower court; but for the simple reason that the Court of
First Instance has no jurisdiction over the subject matter, it being a
money claim against the government.
This Court has already held (New Manila Lumber Co. Inc. vs.
Republic, G.R. No. L-14248, April 28, 1960) that a claim for the
recovery of money against the government should be filed with the
Auditor General, in line with the principle that the State cannot be
sued without its consent. Commonwealth Act 327 provides:
SECTION 1. In all cases involving the settlement of
accounts or claims, other than those of accountable officers,
the Auditor General shall act and decide the same within
sixty days, exclusive of Sundays and holidays, after their
presentation. . . .
SEC. 2. The party aggrieved by the final decision of the
Auditor General in the settlement of an account or claim
may, within thirty days from receipt of the decision, take an
appeal in writing:
xxx xxx x x x.
43
Republic of the Philippines Thereafter, petitioner filed a complaint on December 19, 1990 before the Presidential Decree No. 1620, Article 3 provides:
SUPREME COURT Labor Arbiter for illegal dismissal, illegal suspension and indemnity pay
Manila with moral and exemplary damages and attorney's fees. Art. 3. Immunity from Legal Process. The Institute shall enjoy immunity
THIRD DIVISION from any penal, civil and administrative proceedings, except insofar as
On January 2, 1991, private respondent IRRI, through counsel, wrote the that immunity has been expressly waived by the Director-General of the
G.R. No. 106483 May 22, 1995 Labor Arbiter to inform him that the Institute enjoys immunity from Institute or his authorized representatives.
ERNESTO L. CALLADO, petitioner, legal process by virtue of Article 3 of Presidential Decree No. 1620, 5 and
vs. that it invokes such diplomatic immunity and privileges as an In the case of International Catholic Migration Commission v. Hon. Calleja, et al.
INTERNATIONAL RICE RESEARCH INSTITUTE, respondent. international organization in the instant case filed by petitioner, not and Kapisanan ng Manggagawa at TAC sa IRRI v. Secretary of Labor and
having waived the same. 6 Employment and IRRI, 12 the Court upheld the constitutionality of the
aforequoted law. After the Court noted the letter of the Acting Secretary
ROMERO, J.: IRRI likewise wrote in the same tenor to the Regional Director of the of Foreign Affairs to the Secretary of Labor dated June 17, 1987, where
Department of Labor and Employment. 7 the immunity of IRRI from the jurisdiction of the Department of Labor
Did the International Rice Research Institute (IRRI) waive its immunity and Employment was sustained, the Court stated that this opinion
from suit in this dispute which arose from an employer-employee While admitting IRRI's defense of immunity, the Labor Arbiter, constituted "a categorical recognition by the Executive Branch of the
relationship? nonetheless, cited an Order issued by the Institute on August 13, 1991 to Government that . . . IRRI enjoy(s) immunities accorded to international
the effect that "in all cases of termination, respondent IRRI waives its organizations, which determination has been held to be a political
We rule in the negative and vote to dismiss the petition. immunity," 8 and, accordingly, considered the defense of immunity no question conclusive upon the Courts in order not to embarass a political
longer a legal obstacle in resolving the case. The dispositive portion of department of Government. 13 We cited the Court's earlier
Ernesto Callado, petitioner, was employed as a driver at the IRRI from the Labor arbiter's decision dated October 31, 1991, reads: pronouncement in WHO v. Hon. Benjamin Aquino, et al., 14 to wit:
April 11, 1983 to December 14, 1990. On February 11, 1990, while
driving an IRRI vehicle on an official trip to the Ninoy Aquino WHEREFORE, premises considered, judgment is hereby rendered It is a recognized principle of international law and under our system of
International Airport and back to the IRRI, petitioner figured in an ordering respondent to reinstate complainant to his former position separation of powers that diplomatic immunity is essentially a political
accident. without loss or (sic) seniority rights and privileges within five (5) days question and courts should refuse to look beyond a determination by the
from receipt hereof and to pay his full backwages from March 7, 1990 to executive branch of the government, and where the plea of diplomatic
Petitioner was informed of the findings of a preliminary investigation October 31, 1991, in the total amount of P83,048.75 computed on the immunity is recognized and affirmed by the executive branch of the
conducted by the IRRI's Human Resource Development Department basis of his last monthly salary. 9 government as in the case at bar, it is then the duty of the courts to
Manager in a Memorandum dated March 5, 1990. In view of the
1 accept the claim of immunity upon appropriate suggestion by the
aforesaid findings, he was charged with: The NLRC found merit in private respondent' s appeal and, finding that principal law officer of the government . . . or other officer acting under
IRRI did not waive its immunity, ordered the aforesaid decision of the his direction. Hence, in adherence to the settled principle that courts may
(1) Driving an institute vehicle while on official duty under the influence Labor Arbiter set aside and the complaint dismissed. 10 not so exercise their jurisdiction . . . as to embarass the executive arm of
of liquor; the government in conducting foreign relations, it is accepted doctrine
Hence, this petition where it is contended that the immunity of the IRRI that in such cases the judicial department of (this) government follows
(2) Serious misconduct consisting of your failure to report to your as an international organization granted by Article 3 of Presidential the action of the political branch and will not embarrass the latter by
supervisors the failure of your vehicle to start because of a problem with Decree No. 1620 may not be invoked in the case at bench inasmuch as it assuming an antagonistic jurisdiction. 15
the car battery which, you alleged, required you to overstay in Manila for waived the same by virtue of its Memorandum on "Guidelines on the
more than six (6) hours, whereas, had you reported the matter to IRRI, handling of dismissed employees in relation to P.D. 1620." 11 Further, we held that "(t)he raison d'etre for these immunities is the
Los Baños by telephone, your problem could have been solved within assurance of unimpeded performance of their functions by the agencies
one or two hours; It is also petitioner's position that a dismissal of his complaint before the concerned.
Labor Arbiter leaves him no other remedy through which he can seek
(3) Gross and habitual neglect of your duties. 2 redress. He further states that since the investigation of his case was not The grant of immunity from local jurisdiction to . . . and IRRI is clearly
referred to the Council of IRRI Employees and Management (CIEM), he necessitated by their international character and respective purposes. The
In a Memorandum dated March 9, 1990, petitioner submitted his answer was denied his constitutional right to due process. objective is to avoid the danger of partiality and interference by the host
and defenses to the charges against him. 3After evaluating petitioner's country in their internal workings. The exercise of jurisdiction by the
answer, explanations and other evidence, IRRI issued a Notice of We find no merit in petitioner's arguments. Department of Labor in these instances would defeat the very purpose of
Termination to petitioner on December 7, 1990. 4 immunity, which is to shield the affairs of international organizations, in
IRRI's immunity from suit is undisputed. accordance with international practice, from political pressure or control

44
by the host country to the prejudice of member States of the From the last paragraph of the foregoing quotation, it is clear that in The Court, in the Kapisanan ng mga Manggagawa at TAC sa
organization, and to ensure the unhampered the performance of their cases involving dismissed employees, the Institute may waive its IRRI case, 19 held:
functions. 16 immunity, signifying that such waiver is discretionary on its part.
Neither are the employees of IRRI without remedy in case of dispute
The grant of immunity to IRRI is clear and unequivocal and an express We agree with private respondent IRRI that this memorandum cannot, with management as, in fact, there had been organized a forum for better
waiver by its Director-General is the only way by which it may relinquish by any stretch of the imagination, be considered the express waiver by management-employee relationship as evidenced by the formation of the
or abandon this immunity. the Director-General. Respondent Commission has quoted IRRI's reply Council of IRRI Employees and Management (CIEM) wherein "both
thus: management and employees were and still are represented for purposes
On the matter of waiving its immunity from suit, IRRI had, early on, of maintaining mutual and beneficial cooperation between IRRI and its
made its position clear. Through counsel, the Institute wrote the Labor The 1983 . . . is an internal memo addressed to Personnel and Legal employees." The existence of this Union factually and tellingly belies the
Arbiter categorically informing him that the Institute will not waive its Office and was issued for its guidance in handling those cases where argument that Pres. Decree No. Decree No. 1620, which grants to IRRI
diplomatic immunity. In the second place, petitioner's reliance on the IRRI opts to waive its immunity. It is not a declaration of waiver for all cases. the status, privileges and immunities of an international organization,
Memorandum with "Guidelines in handling cases of dismissal of This is apparent from the use of the permissive term "may" rather than the mandatory deprives its employees of the right to self-organization.
employees in relation to P.D. 1620" dated July 26, 1983, is misplaced. term "shall" in the last paragraph of the memo. Certainly the memo cannot be
The Memorandum reads, in part: considered as the express waiver by the Director General as We have earlier concluded that petitioner was not denied due process,
contemplated by P.D. 1620, especially since the memo was issued by a and this, notwithstanding the non-referral to the Council of IRRI
Time and again the Institute has reiterated that it will not use its former Director-General. At the very least, the express declaration of the Employees and Management. Private respondent correctly pointed out
immunity under P.D. 1620 for the purpose of terminating the services of incumbent Director-general supersedes the 1983 memo and should be that petitioner, having opted not to seek the help of the CIEM Grievance
any of its employees. Despite continuing efforts on the part of IRRI to accorded greater respect. It would be equally important to point out that Committee, prepared his answer by his own self. 20 He cannot now fault
live up to this undertaking, there appears to be apprehension in the the Personnel and Legal Office has been non-existent since 1988 as a the Institute for not referring his case to the CIEM.
minds of some IRRI employees. To help allay these fears the following result of major reorganization of the IRRI. Cases of IRRI before DOLE
guidelines will be followed hereafter by the Personnel/Legal Office while are handled by an external Legal Counsel as in this particular IN VIEW OF THE FOREGOING, the petition for certiorari is
handling cases of dismissed employees. case. 18 (Emphasis supplied) DISMISSED. No costs.

xxx xxx xxx The memorandum, issued by the former Director-General to a now- SO ORDERED.
defunct division of the IRRI, was meant for internal circulation and not
2. Notification/manifestation to MOLE or labor arbiter as a pledge of waiver in all cases arising from dismissal of employees. Feliciano, Melo and Vitug, JJ., concur.
Moreover, the IRRI's letter to the Labor Arbiter in the case at bench
If and when a dismissed employee files a complaint against the Institute made in 1991 declaring that it has no intention of waiving its immunity, Francisco, J., is on leave.
contesting the legality of dismissal, IRRI's answer to the complaint will: at the very least, supplants any pronouncement of alleged waiver issued
in previous cases.
1. Indicate in the identification of IRRI that it is an
international organization operating under the laws of Petitioner's allegation that he was denied due process is unfounded and Footnotes
the Philippines including P.D. 1620. and has no basis.
1 Rollo, p. 83.
2. Base the defense on the merits and facts of the case as It is not denied that he was informed of the findings and charges
well as the legality of the cause or causes for resulting from an investigation conducted of his case in accordance with 2 Rollo, pp. 84-85.
termination. IRRI policies and procedures. He had a chance to comment thereon in a
Memorandum he submitted to the Manager of the Human Resource and 3 Rollo, p. 86.
3) Waiving immunity under P.D. 1620 Development Department. Therefore, he was given proper notice and
adequate opportunity to refute the charges and findings, hereby fulfilling
4 Rollo, p. 90.
If the plaintiff's attorney or the arbiter, asks if IRRI will waive its the basic requirements of due process.
immunity we may reply that the Institute will be happy to do so, as it has 5 "Granting to the International Rice Research Institute (IRRI) the
in the past in the formal manner required thereby reaffirming our Finally, on the issue of referral to the Council of IRRI Employees and
Status, Prerogatives, Privileges and Immunities of an International
commitment to abide by the laws of the Philippines and our full faith in Management (CIEM), petitioner similarly fails to persuade the Court. Organization."
the integrity and impartially of the legal system. 17 (Emphasis in this
paragraphs ours) (cut)

45
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-11154 March 21, 1916
E. MERRITT, plaintiff-appellant,
vs.
GOVERNMENT OF THE PHILIPPINE ISLANDS, defendant-
appellant.
Crossfield and O'Brien for plaintiff.
Attorney-General Avanceña for defendant..
TRENT, J.:
This is an appeal by both parties from a judgment of the Court of First
Instance of the city of Manila in favor of the plaintiff for the sum of
P14,741, together with the costs of the cause.
Counsel for the plaintiff insist that the trial court erred (1) "in limiting the
general damages which the plaintiff suffered to P5,000, instead of
P25,000 as claimed in the complaint," and (2) "in limiting the time when
plaintiff was entirely disabled to two months and twenty-one days and
fixing the damage accordingly in the sum of P2,666, instead of P6,000 as
claimed by plaintiff in his complaint."
The Attorney-General on behalf of the defendant urges that the trial
court erred: (a) in finding that the collision between the plaintiff's
motorcycle and the ambulance of the General Hospital was due to the
negligence of the chauffeur; (b) in holding that the Government of the
Philippine Islands is liable for the damages sustained by the plaintiff as a
result of the collision, even if it be true that the collision was due to the
negligence of the chauffeur; and (c) in rendering judgment against the
defendant for the sum of P14,741.
The trial court's findings of fact, which are fully supported by the record,
are as follows:
It is a fact not disputed by counsel for the defendant that when
the plaintiff, riding on a motorcycle, was going toward the
western part of Calle Padre Faura, passing along the west side
thereof at a speed of ten to twelve miles an hour, upon crossing
Taft Avenue and when he was ten feet from the southwestern had secured for his work because he had lost 50 per cent of his
intersection of said streets, the General Hospital ambulance, efficiency. As a contractor, he could no longer, as he had before
upon reaching said avenue, instead of turning toward the south, done, climb up ladders and scaffoldings to reach the highest
after passing the center thereof, so that it would be on the left parts of the building.
side of said avenue, as is prescribed by the ordinance and the
Motor Vehicle Act, turned suddenly and unexpectedly and long As a consequence of the loss the plaintiff suffered in the
before reaching the center of the street, into the right side of efficiency of his work as a contractor, he had to dissolved the
Taft Avenue, without having sounded any whistle or horn, by partnership he had formed with the engineer. Wilson, because
which movement it struck the plaintiff, who was already six feet he was incapacitated from making mathematical calculations on
from the southwestern point or from the post place there. account of the condition of his leg and of his mental faculties,
and he had to give up a contract he had for the construction of
By reason of the resulting collision, the plaintiff was so severely the Uy Chaco building."
injured that, according to Dr. Saleeby, who examined him on
the very same day that he was taken to the General Hospital, he We may say at the outset that we are in full accord with the trial court to
was suffering from a depression in the left parietal region, a the effect that the collision between the plaintiff's motorcycle and the
would in the same place and in the back part of his head, while ambulance of the General Hospital was due solely to the negligence of
blood issued from his nose and he was entirely unconscious. the chauffeur.
The marks revealed that he had one or more fractures of the The two items which constitute a part of the P14,741 and which are
skull and that the grey matter and brain was had suffered drawn in question by the plaintiff are (a) P5,000, the award awarded for
material injury. At ten o'clock of the night in question, which permanent injuries, and (b) the P2,666, the amount allowed for the loss
was the time set for performing the operation, his pulse was so of wages during the time the plaintiff was incapacitated from pursuing his
weak and so irregular that, in his opinion, there was little hope occupation. We find nothing in the record which would justify us in
that he would live. His right leg was broken in such a way that increasing the amount of the first. As to the second, the record shows,
the fracture extended to the outer skin in such manner that it and the trial court so found, that the plaintiff's services as a contractor
might be regarded as double and the would be exposed to were worth P1,000 per month. The court, however, limited the time to
infection, for which reason it was of the most serious nature. two months and twenty-one days, which the plaintiff was actually
confined in the hospital. In this we think there was error, because it was
At another examination six days before the day of the trial, Dr. clearly established that the plaintiff was wholly incapacitated for a period
Saleeby noticed that the plaintiff's leg showed a contraction of of six months. The mere fact that he remained in the hospital only two
an inch and a half and a curvature that made his leg very weak months and twenty-one days while the remainder of the six months was
and painful at the point of the fracture. Examination of his head spent in his home, would not prevent recovery for the whole time. We,
revealed a notable readjustment of the functions of the brain therefore, find that the amount of damages sustained by the plaintiff,
and nerves. The patient apparently was slightly deaf, had a light without any fault on his part, is P18,075.
weakness in his eyes and in his mental condition. This latter
weakness was always noticed when the plaintiff had to do any As the negligence which caused the collision is a tort committed by an
difficult mental labor, especially when he attempted to use his agent or employee of the Government, the inquiry at once arises whether
money for mathematical calculations. the Government is legally-liable for the damages resulting therefrom.
According to the various merchants who testified as witnesses, Act No. 2457, effective February 3, 1915, reads:
the plaintiff's mental and physical condition prior to the
accident was excellent, and that after having received the
An Act authorizing E. Merritt to bring suit against the
injuries that have been discussed, his physical condition had
Government of the Philippine Islands and authorizing the
undergone a noticeable depreciation, for he had lost the agility,
Attorney-General of said Islands to appear in said suit.
energy, and ability that he had constantly displayed before the
accident as one of the best constructors of wooden buildings
and he could not now earn even a half of the income that he
46
 Whereas a claim has been filed against the Government of the
Philippine Islands by Mr. E. Merritt, of Manila, for damages
resulting from a collision between his motorcycle and the
ambulance of the General Hospital on March twenty-fifth,
nineteen hundred and thirteen;
Whereas it is not known who is responsible for the accident nor be decided." We have "decided" that the accident was due solely to the
is it possible to determine the amount of damages, if any, to
which the claimant is entitled; and
Whereas the Director of Public Works and the Attorney-
General recommended that an Act be passed by the Legislature
authorizing Mr. E. Merritt to bring suit in the courts against the
Government, in order that said questions may be decided: Now, The Government of the Philippine Islands having been "modeled after
therefore,
By authority of the United States, be it enacted by the Philippine
Legislature, that:
SECTION 1. E. Merritt is hereby authorized to bring suit in the
Court of First Instance of the city of Manila against the
Government of the Philippine Islands in order to fix the
responsibility for the collision between his motorcycle and the
ambulance of the General Hospital, and to determine the
amount of the damages, if any, to which Mr. E. Merritt is
entitled on account of said collision, and the Attorney-General
of the Philippine Islands is hereby authorized and directed to
appear at the trial on the behalf of the Government of said
Islands, to defendant said Government at the same.
SEC. 2. This Act shall take effect on its passage.
Enacted, February 3, 1915.
Did the defendant, in enacting the above quoted Act, simply waive its
immunity from suit or did it also concede its liability to the plaintiff? If
only the former, then it cannot be held that the Act created any new
cause of action in favor of the plaintiff or extended the defendant's
liability to any case not previously recognized.
All admit that the Insular Government (the defendant) cannot be sued by
an individual without its consent. It is also admitted that the instant case
is one against the Government. As the consent of the Government to be
sued by the plaintiff was entirely voluntary on its part, it is our duty to
look carefully into the terms of the consent, and render judgment
accordingly.
The plaintiff was authorized to bring this action against the Government As to the scope of legislative enactments permitting individuals to sue the
"in order to fix the responsibility for the collision between his motorcycle state where the cause of action arises out of either fort or contract, the
and the ambulance of the General Hospital and to determine the amount rule is stated in 36 Cyc., 915, thus:
of the damages, if any, to which Mr. E. Merritt is entitled on account of
said collision, . . . ." These were the two questions submitted to the court By consenting to be sued a state simply waives its immunity
for determination. The Act was passed "in order that said questions may from suit. It does not thereby concede its liability to plaintiff, or
create any cause of action in his favor, or extend its liability to
negligence of the chauffeur, who was at the time an employee of the any cause not previously recognized. It merely gives a remedy to
defendant, and we have also fixed the amount of damages sustained by enforce a preexisting liability and submits itself to the
the plaintiff as a result of the collision. Does the Act authorize us to hold jurisdiction of the court, subject to its right to interpose any
that the Government is legally liable for that amount? If not, we must lawful defense.
look elsewhere for such authority, if it exists.
In Apfelbacher vs. State (152 N. W., 144, advanced sheets), decided April
16, 1915, the Act of 1913, which authorized the bringing of this suit,
the Federal and State Governments in the United States," we may look to read:
the decisions of the high courts of that country for aid in determining the
purpose and scope of Act No. 2457.
SECTION 1. Authority is hereby given to George Apfelbacher,
of the town of Summit, Waukesha County, Wisconsin, to bring
In the United States the rule that the state is not liable for the torts suit in such court or courts and in such form or forms as he
committed by its officers or agents whom it employs, except when may be advised for the purpose of settling and determining all
expressly made so by legislative enactment, is well settled. "The controversies which he may now have with the State of
Government," says Justice Story, "does not undertake to guarantee to any Wisconsin, or its duly authorized officers and agents, relative to
person the fidelity of the officers or agents whom it employs, since that the mill property of said George Apfelbacher, the fish hatchery
would involve it in all its operations in endless embarrassments, of the State of Wisconsin on the Bark River, and the mill
difficulties and losses, which would be subversive of the public interest." property of Evan Humphrey at the lower end of Nagawicka
(Claussen vs. City of Luverne, 103 Minn., 491, citing U. S. vs. Lake, and relative to the use of the waters of said Bark River
Kirkpatrick, 9 Wheat, 720; 6 L. Ed., 199; and Beers vs. States, 20 How., and Nagawicka Lake, all in the county of Waukesha, Wisconsin.
527; 15 L. Ed., 991.)
In determining the scope of this act, the court said:
In the case of Melvin vs. State (121 Cal., 16), the plaintiff sought to recover
damages from the state for personal injuries received on account of the
Plaintiff claims that by the enactment of this law the legislature
negligence of the state officers at the state fair, a state institution created
admitted liability on the part of the state for the acts of its
by the legislature for the purpose of improving agricultural and kindred
officers, and that the suit now stands just as it would stand
industries; to disseminate information calculated to educate and benefit
between private parties. It is difficult to see how the act does, or
the industrial classes; and to advance by such means the material interests
was intended to do, more than remove the state's immunity
of the state, being objects similar to those sought by the public school
from suit. It simply gives authority to commence suit for the
system. In passing upon the question of the state's liability for the
purpose of settling plaintiff's controversies with the estate.
negligent acts of its officers or agents, the court said:
Nowhere in the act is there a whisper or suggestion that the
court or courts in the disposition of the suit shall depart from
No claim arises against any government is favor of an well established principles of law, or that the amount of
individual, by reason of the misfeasance, laches, or unauthorized damages is the only question to be settled. The act opened the
exercise of powers by its officers or agents. (Citing Gibbons vs. door of the court to the plaintiff. It did not pass upon the
U. S., 8 Wall., 269; Clodfelter vs. State, 86 N. C., 51, 53; 41 Am. question of liability, but left the suit just where it would be in
Rep., 440; Chapman vs. State, 104 Cal., 690; 43 Am. St. Rep., the absence of the state's immunity from suit. If the Legislature
158; Green vs. State, 73 Cal., 29; Bourn vs. Hart, 93 Cal., 321; had intended to change the rule that obtained in this state so
27 Am. St. Rep., 203; Story on Agency, sec. 319.) long and to declare liability on the part of the state, it would not
47
 have left so important a matter to mere inference, but would It being quite clear that Act No. 2457 does not operate to extend the
have done so in express terms. (Murdock Grate Co. vs. Government's liability to any cause not previously recognized, we will
Commonwealth, 152 Mass., 28; 24 N.E., 854; 8 L. R. A., 399.) now examine the substantive law touching the defendant's liability for the
negligent acts of its officers, agents, and employees. Paragraph 5 of article
In Denning vs. State (123 Cal., 316), the provisions of the Act of 1893, 1903 of the Civil Code reads:
relied upon and considered, are as follows:
All persons who have, or shall hereafter have, claims on
contract or for negligence against the state not allowed by the
state board of examiners, are hereby authorized, on the terms
and conditions herein contained, to bring suit thereon against
the state in any of the courts of this state of competent
jurisdiction, and prosecute the same to final judgment. The rules The supreme court of Spain in defining the scope of this paragraph said:
of practice in civil cases shall apply to such suits, except as
herein otherwise provided.
And the court said:
This statute has been considered by this court in at least two
cases, arising under different facts, and in both it was held that
said statute did not create any liability or cause of action against
the state where none existed before, but merely gave an
additional remedy to enforce such liability as would have existed
if the statute had not been enacted. (Chapman vs. State, 104
Cal., 690; 43 Am. St. Rep., 158; Melvin vs. State, 121 Cal., 16.)
A statute of Massachusetts enacted in 1887 gave to the superior court
"jurisdiction of all claims against the commonwealth, whether at law or in
equity," with an exception not necessary to be here mentioned. In
construing this statute the court, in Murdock Grate Co. vs.
Commonwealth (152 Mass., 28), said:
The statute we are discussing disclose no intention to create
against the state a new and heretofore unrecognized class of
liabilities, but only an intention to provide a judicial tribunal
where well recognized existing liabilities can be adjudicated.
In Sipple vs. State (99 N. Y., 284), where the board of the canal claims had,
by the terms of the statute of New York, jurisdiction of claims for
damages for injuries in the management of the canals such as the plaintiff
had sustained, Chief Justice Ruger remarks: "It must be conceded that
the state can be made liable for injuries arising from the negligence of its
agents or servants, only by force of some positive statute assuming such
liability."
The state is liable in this sense when it acts through a special
agent, but not when the damage should have been caused by
the official to whom properly it pertained to do the act
performed, in which case the provisions of the preceding article
shall be applicable.
That the obligation to indemnify for damages which a third
person causes to another by his fault or negligence is based, as
is evidenced by the same Law 3, Title 15, Partida 7, on that the
person obligated, by his own fault or negligence, takes part in
the act or omission of the third party who caused the damage. It
follows therefrom that the state, by virtue of such provisions of
law, is not responsible for the damages suffered by private
individuals in consequence of acts performed by its employees
in the discharge of the functions pertaining to their office,
because neither fault nor even negligence can be presumed on
the part of the state in the organization of branches of public
service and in the appointment of its agents; on the contrary, we
must presuppose all foresight humanly possible on its part in
order that each branch of service serves the general weal an that
of private persons interested in its operation. Between these
latter and the state, therefore, no relations of a private nature
governed by the civil law can arise except in a case where the
state acts as a judicial person capable of acquiring rights and
contracting obligations. (Supreme Court of Spain, January 7,
1898; 83 Jur. Civ., 24.)
That the Civil Code in chapter 2, title 16, book 4, regulates the
obligations which arise out of fault or negligence; and whereas
in the first article thereof. No. 1902, where the general principle
is laid down that where a person who by an act or omission
causes damage to another through fault or negligence, shall be
obliged to repair the damage so done, reference is made to acts
or omissions of the persons who directly or indirectly cause the
damage, the following articles refers to this persons and
imposes an identical obligation upon those who maintain fixed
relations of authority and superiority over the authors of the
damage, because the law presumes that in consequence of such
relations the evil caused by their own fault or negligence is
imputable to them. This legal presumption gives way to proof,
however, because, as held in the last paragraph of article 1903,
responsibility for acts of third persons ceases when the persons
mentioned in said article prove that they employed all the
diligence of a good father of a family to avoid the damage, and
among these persons, called upon to answer in a direct and not
a subsidiary manner, are found, in addition to the mother or the
father in a proper case, guardians and owners or directors of an
establishment or enterprise, the state, but not always, except
when it acts through the agency of a special agent, doubtless
because and only in this case, the fault or negligence, which is
the original basis of this kind of objections, must be presumed
to lie with the state.
That although in some cases the state might by virtue of the
general principle set forth in article 1902 respond for all the
damage that is occasioned to private parties by orders or
resolutions which by fault or negligence are made by branches
of the central administration acting in the name and
representation of the state itself and as an external expression of
its sovereignty in the exercise of its executive powers, yet said
article is not applicable in the case of damages said to have been
occasioned to the petitioners by an executive official, acting in the
exercise of his powers, in proceedings to enforce the collections
of certain property taxes owing by the owner of the property
which they hold in sublease.
That the responsibility of the state is limited by article 1903 to
the case wherein it acts through a special agent(and a special agent,
in the sense in which these words are employed, is one who
receives a definite and fixed order or commission, foreign to the
exercise of the duties of his office if he is a special official) so
that in representation of the state and being bound to act as an
agent thereof, he executes the trust confided to him. This
concept does not apply to any executive agent who is an
employee of the acting administration and who on his own
responsibility performs the functions which are inherent in and
naturally pertain to his office and which are regulated by law
and the regulations." (Supreme Court of Spain, May 18, 1904;
98 Jur. Civ., 389, 390.)
That according to paragraph 5 of article 1903 of the Civil Code
and the principle laid down in a decision, among others, of the
18th of May, 1904, in a damage case, the responsibility of the
state is limited to that which it contracts through a special agent,
duly empowered by a definite order or commission to perform some act
or charged with some definite purpose which gives rise to the claim, and not
48
 where the claim is based on acts or omissions imputable to a
public official charged with some administrative or technical
office who can be held to the proper responsibility in the
manner laid down by the law of civil responsibility.
Consequently, the trial court in not so deciding and in
sentencing the said entity to the payment of damages, caused by
an official of the second class referred to, has by erroneous
interpretation infringed the provisions of articles 1902 and 1903
of the Civil Code. (Supreme Court of Spain, July 30, 1911; 122
Jur. Civ., 146.)

It is, therefore, evidence that the State (the Government of the Philippine
Islands) is only liable, according to the above quoted decisions of the
Supreme Court of Spain, for the acts of its agents, officers and employees
when they act as special agents within the meaning of paragraph 5 of
article 1903, supra, and that the chauffeur of the ambulance of the
General Hospital was not such an agent.

For the foregoing reasons, the judgment appealed from must be reversed,
without costs in this instance. Whether the Government intends to make
itself legally liable for the amount of damages above set forth, which the
plaintiff has sustained by reason of the negligent acts of one of its
employees, by legislative enactment and by appropriating sufficient funds
therefor, we are not called upon to determine. This matter rests solely
with the Legislature and not with the courts.

Arellano, C. J., Torres, Johnson, and Moreland, JJ., concur.

49
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-31635 August 31, 1971
ANGEL MINISTERIO and ASUNCION SADAYA, petitioners,
vs.
THE COURT OF FIRST INSTANCE OF CEBU, Fourth Branch, just compensation.
Presided by the Honorable, Judge JOSE C. BORROMEO, THE
PUBLIC HIGHWAY COMMISSIONER, and THE AUDITOR
GENERAL, respondents.
Eriberto Seno for petitioners.
Office of the Solicitor General Felix Q. Antonio, Acting First Assistant Solicitor facts to this effect: "That the plaintiffs are the registered owners of Lot
General Antonio A. Torres and Solicitor Norberto P. Eduardo for respondents.
FERNANDO, J.:
What is before this Court for determination in this appeal by certiorari to
review a decision of the Court of First Instance of Cebu is the question
of whether or not plaintiffs, now petitioners, seeking the just
compensation to which they are entitled under the Constitution for the
expropriation of their property necessary for the widening of a street, no
condemnation proceeding having been filed, could sue defendants Public
Highway Commissioner and the Auditor General, in their capacity as
public officials without thereby violating the principle of government
immunity from suit without its consent. The lower court, relying on what
it considered to be authoritative precedents, held that they could not and
dismissed the suit. The matter was then elevated to us. After a careful
consideration and with a view to avoiding the grave inconvenience, not
to say possible injustice contrary to the constitutional mandate, that
would be the result if no such suit were permitted, this Court arrives at a
different conclusion, and sustains the right of the plaintiff to file a suit of
this character. Accordingly, we reverse.
Petitioners as plaintiffs in a complaint filed with the Court of First
Instance of Cebu, dated April 13, 1966, sought the payment of just
compensation for a registered lot, containing an area of 1045 square
meters, alleging that in 1927 the National Government through its
authorized representatives took physical and material possession of it and
used it for the widening of the Gorordo Avenue, a national road, Cebu
City, without paying just compensation and without any agreement,
either written or verbal. There was an allegation of repeated demands for
the payment of its price or return of its possession, but defendants Public
Highway Commissioner and the Auditor General refused to restore its
possession. It was further alleged that on August 25, 1965, the appraisal
committee of the City of Cebu approved Resolution No. 90, appraising
the reasonable and just price of Lot No. 647-B at P50.00 per square
meter or a total price of P52,250.00. Thereafter, the complaint was
amended on June 30, 1966 in the sense that the remedy prayed for was in
the alternative, either the restoration of possession or the payment of the
In the answer filed by defendants, now respondents, through the then
Solicitor General, now Associate Justice, Antonio P. Barredo, the
principal defense relied upon was that the suit in reality was one against
the government and therefore should be dismissed, no consent having
been shown. Then on July 11, 1969, the parties submitted a stipulation of
647-B of the Banilad estate described in the Survey plan RS-600 GLRO
Record No. 5988 and more particularly described in Transfer Certificate
of Title No. RT-5963 containing an area of 1,045 square meters; That the
National Government in 1927 took possession of Lot 647-B Banilad
estate, and used the same for the widening of Gorordo Avenue; That the
Appraisal Committee of Cebu City approved Resolution No. 90, Series
of 1965 fixing the price of Lot No. 647-B at P50.00 per square meter;
That Lot No. 647-B is still in the possession of the National Government
the same being utilized as part of the Gorordo Avenue, Cebu City, and
that the National Government has not as yet paid the value of the land
which is being utilized for public use."1
The lower court decision now under review was promulgated on January
30, 1969. As is evident from the excerpt to be cited, the plea that the suit
was against the government without its consent having been manifested
met with a favorable response. Thus: "It is uncontroverted that the land
in question is used by the National Government for road purposes. No
evidence was presented whether or not there was an agreement or
contract between the government and the original owner and whether
payment was paid or not to the original owner of the land. It may be
presumed that when the land was taken by the government the payment
of its value was made thereafter and no satisfactory explanation was
given why this case was filed only in 1966. But granting that no
compensation was given to the owner of the land, the case is
undoubtedly against the National Government and there is no showing
that the government has consented to be sued in this case. It may be
contended that the present case is brought against the Public Highway
Commissioner and the Auditor General and not against the National
Government. Considering that the herein defendants are sued in their
official capacity the action is one against the National Government who
should have been made a party in this case, but, as stated before, with its
consent."2
Then came this petition for certiorari to review the above decision. The
principal error assigned would impugn the holding that the case being
against the national government which was sued without its consent
should be dismissed, as it was in fact dismissed. As was indicated in the
opening paragraph of this opinion, this assignment of error is justified.
The decision of the lower court cannot stand. We shall proceed to
explain why.
1. The government is immune from suit without its consent. 3 Nor is it
indispensable that it be the party proceeded against. If it appears that the
action, would in fact hold it liable, the doctrine calls for application. It
follows then that even if the defendants named were public officials, such
a principle could still be an effective bar. This is clearly so where a
litigation would result in a financial responsibility for the government,
whether in the disbursements of funds or loss of property. Under such
circumstances, the liability of the official sued is not personal. The party
that could be adversely affected is government. Hence the defense of
non-suability may be interposed.4
So it has been categorically set forth in Syquia v. Almeda
Lopez:5 "However, and this is important, where the judgment in such a
case would result not only in the recovery of possession of the property
in favor of said citizen but also in a charge against or financial liability to
the Government, then the suit should be regarded as one against the
government itself, and, consequently, it cannot prosper or be validly
entertained by the courts except with the consent of said Government." 6
2. 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 v. Aligean:7 "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
50
State within the constitutional provision that the State may not be sued
without its consent."8
3. It would follow then that the prayer in the amended complaint of
petitioners being in the alternative, the lower court, instead of dismissing
the same, could have passed upon the claim of plaintiffs there, now
petitioners, for the recovery of the possession of the disputed lot, since
no proceeding for eminent domain, as required by the then Code of Civil
Procedure, was instituted.9 However, as noted in Alfonso v. Pasay
City, 10 this Court speaking through Justice Montemayor, restoration
would be "neither convenient nor feasible because it is now and has been
used for road purposes." 11 The only relief, in the opinion of this Court,
would be for the government "to make due compensation, ..." 12 It was
made clear in such decision that compensation should have been made
"as far back as the date of the taking." Does it result, therefore, that
petitioners would be absolutely remediless since recovery of possession is
in effect barred by the above decision? If the constitutional mandate that
the owner be compensated for property taken for public use 13 were to
be respected, as it should, then a suit of this character should not be
summarily dismissed. The doctrine of governmental immunity from suit
cannot serve as an instrument for perpetrating an injustice on a citizen.
Had the government followed the procedure indicated by the governing
law at the time, a complaint would have been filed by it, and only upon
payment of the compensation fixed by the judgment, or after tender to
the party entitled to such payment of the amount fixed, may it "have the
right to enter in and upon the land so condemned" to appropriate the
same to the public use defined in the judgment." 14 If there were an
observance of procedural regularity, petitioners would not be in the sad
plaint they are now. It is unthinkable then that precisely because there
was a failure to abide by what the law requires, the government would
stand to benefit. It is just as important, if not more so, that there be
fidelity to legal norms on the part of officialdom if the rule of law were to
be maintained. It is not too much to say that when the government takes
any property for public use, which is conditioned upon the payment of
just compensation, to be judicially ascertained, it makes manifest that it
submits to the jurisdiction of a court. There is no thought then that the
doctrine of immunity from suit could still be appropriately invoked. 15
Accordingly, the lower court decision is reversed so that the court may
proceed with the complaint and determine the compensation to which
petitioners are entitled, taking into account the ruling in the above
Alfonso case: "As to the value of the property, although the plaintiff
claims the present market value thereof, the rule is that to determine due
compensation for lands appropriated by the Government, the basis
should be the price or value at the time that it was taken from the owner
and appropriated by the Government." 16
WHEREFORE, the lower court decision of January 30, 1969 dismissing 10 106 Phil. 1017 (1960).
the complaint is reversed and the case remanded to the lower court for
proceedings in accordance with law. 11 Ibid., p. 1022.
Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Teehankee, Villamor and 12 Ibid.
Makasiar, JJ., concur.
13 "According to Article III, Section 1, paragraph 2 of the Constitution:
Concepcion, C.J., and Barredo, J., took no part. "Private property shall not be taken for public use without just
compensation."
14 Section 247 of Act No. 190 reads in full: "Upon payment by the
Footnotes plaintiff to the defendant of compensation as fixed by the judgment, or
after tender to him of the amount so fixed and payment of the costs, the
1 Petition, Annex H, pp. 1 and 2. plaintiff shall have the right to enter in and upon the land so condemned,
to appropriate the same to the public use defined in the judgment. In
2 Ibid, Annex I, p.4. case the defendant and his attorney absent themselves from the court or
decline to receive the same, payment may be made to the clerk of the
3 Cf. Providence Washington Insurance Co. v. Republic, L-26386, Sept. court for him, and such officer shall be responsible on his bond therefor
30, 1969, 29 SCRA 598; Fireman's Fund Insurance Co. v. United States and shall be compelled to receive it."
Lines Co., L-26533, Jan. 30, 1970, 31 SCRA 309; Switzerland General
Insurance Company, Ltd. v. Republic, L-27389, March 30, 1970; 32 15 Cf. Merrit v. Government of the Philippine Islands, 34 Phil. 311
SCRA 227. (1916); Compania General de Tabacos v. Government, 45 Phil. 663
(1924); Salgado v. Ramos, 64 Phil. 724 (1937); Bull v. Yatco, 67 Phil. 728
4 Cf. Begosa v. Chairman Philippine Veterans Administration, L-25916, (1939); Santos vs. Santos, 92 Phil. 281 (1952) ; Froilan v. Pan Oriental
Shipping Co., 95 Phil. 905 (1954); Angat River Irrigation v. Angat River
April 30, 1970, 32 SCRA 466, citing Ruiz v. Cabahug, 102 Phil. 110
Workers' Union, 102 Phil. 789 (1957); Concepcion, J., diss.; Lyons, Inc. v.
(1957) and Syquia v. Almeda Lopez, 84 Phil. 312 (1949).
United States of America, 104 Phil. 593 (1958); Mobil Philippines
Exploration, Inc. v. Customs Arrastre Service, L-23139, December 17,
5 84 Phil. 312 (1949) affirmed in Marvel Building Corp. v. Phil. War
Damage Commission, 85 Phil. 27 (1949) and Johnson v. Turner, 94 Phil. 1966, 18 SCRA 1120; Hartford Insurance Co. v. P. D. Marchessini &
Co., L-24544, November 15, 1967, 21 SCRA 860; Firemen's Fund
807 (1954). Such a doctrine goes back to Tan Te v. Bell, 27 Phil. 354
Insurance Co. v. Maersk Line Far East Service, L-27189, March 28, 1969,
(1914). Cf. L. S. Moon v. Harrison, 43 Phil 27 (1922).
27 SCRA 519; Insurance Co. of North America v. Osaka Shosen Kaisha,
L-22784, March 28, 1969, 27 SCRA 780; Providence Washington
6 Ibid., p. 319.
Insurance Co. v. Republic of the Philippines, L-26386, Sept. 30, 1969, 29
SCRA 598.
7 L-31135, May 29, 1970, 33 SCRA 368.
16 Alfonso v. Pasay City, 106 Phil. 1017, 1022-1023 (1960).
8 Ibid., pp. 377-378.
9 Act No. 190 (1901). According to Section 241 of such Code: "The
Government of the Philippine Islands, or of any province or department
thereof, or of any municipality, and any person, or public or private
corporation having by law the right to condemn private property for
public use shall exercise that right in the manner hereinafter prescribed."
The next section reads: "The complaint in condemnation proceedings
shall state with certainty the right of condemnation, and describe the
property sought to be condemned, showing the interest of each
defendant separately." Sec. 242.
51
Republic of the Philippines 1. There is pertinence to this excerpt from Switzerland General Insurance and Corn Administration which, according to him, anticipated the case of
SUPREME COURT Co., Ltd. v. Republic of the Philippines: 6"The doctrine of non-suability a breach of contract within the parties and the suits that may thereafter
Manila recognized in this jurisdiction even prior to the effectivity of the [1935] arise. 13 The consent, to be effective though, must come from the State
Constitution is a logical corollary of the positivist concept of law which, acting through a duly enacted statute as pointed out by Justice Bengzon
SECOND DIVISION to para-phrase Holmes, negates the assertion of any legal right as against in Mobil. Thus, whatever counsel for defendant Rice and Corn
the state, in itself the source of the law on which such a right may be Administration agreed to had no binding force on the government. That
G.R. No. L-36084 August 31, 1977 predicated. Nor is this all.lwphl@itç Even if such a principle does give rise was clearly beyond the scope of his authority. At any rate, Justice Sanchez,
to problems, considering the vastly expanded role of government in Ramos v. Court of Industrial Relations, 14 was quite categorical as to its "not
REPUBLIC OF THE PHILIPPINES, petitioner, enabling it to engage in business pursuits to promote the general welfare, [being] possessed of a separate and distinct corporate existence. On the
vs. it is not obeisance to the analytical school of thought alone that calls for contrary, by the law of its creation, it is an office directly 'under the
HONORABLE AMANTE P. PURISIMA, the Presiding Judge of its continued applicability. Why it must continue to be so, even if the Office of the President of the Philippines." 15
the court of first Instance of Manila (Branch VII), and YELLOW matter be viewed sociologically, was set forth in Providence Washington
BALL FREIGHT LINES, INC., respondents. Insurance Co. v. Republic thus: "Nonetheless, a continued adherence to the WHEREFORE, the petitioner for certiorari is granted and the resolution
doctrine of non-suability is not to be deplored for as against the of October 4, 1972 denying the motion to dismiss filed by the Rice and
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Santiago M. Corn Administration nullified and set aside and the petitioner for
inconvenience that may be caused private parties, the loss of
Kapunan, Solicitor Oscar C. Fernandez and Special Attorney Renato P. Mabugat governmental efficiency and the obstacle to the performance of its prohibition is likewise granted restraining respondent Judge from acting
for petitioner. on civil Case No. 79082 pending in his sala except for the purpose of
multifarious functions are far greater if such a fundamental principle were
abandoned and the availability of judicial remedy were not thus restricted. ordering its dismissal for lack of jurisdiction. The temporary restraining
Jose Q. Calingo for private respondent.
With the well-known propensity on the part of our people to go the order issued on February 8, 1973 by this Court is made permanent
court, at the least provocation, the loss of time and energy required to terminating this case. Costs against Yellow Ball Freight Lines, Inc.
defend against law suits, in the absence of such a basic principle that
constitutes such an effective obstacle, could very well be imagined." 7 It Antonio, Aquino, Concepcion, Jr. and Santos, JJ., concur.
FERNANDO, Acting C.J.:
only remains to be added that under the present Constitution which, as
Barredo, J., took no part.
The jurisdictional issued raised by Solicitor General Estelito P. Mendoza noted, expressly reaffirmed such a doctrine, the following decisions had
on behalf of the Republic of the Philippines in this certiorari and been rendered: Del mar v. The Philippine veterans Administration; 8 Republic v.
prohibition proceeding arose from the failure of respondent Judge Villasor; 9 Sayson v. Singson; 10 and Director of the Bureau of Printing v.
Amante P. Purisima of the Court of First Instance of Manila to apply the Francisco. 11 Footnotes
well-known and of-reiterated doctrine of the non-suability of a State,
including its offices and agencies, from suit without its consent. it was so 2. Equally so, the next paragraph in the above opinion from the 1 Petitioner, Annex H.
alleged in a motion to dismiss filed by defendant Rice and Corn Switzerland General Insurance Company decision is likewise relevant:
Administration in a pending civil suit in the sala of respondent Judge for "Nor is injustice thereby cause private parties. They could still proceed to 2 L-23139, December 17 1966, 18 SCRA 1120.
the collection of a money claim arising from an alleged breach of seek collection of their money claims by pursuing the statutory remedy of
contract, the plaintiff being private respondent Yellow Ball Freight Lines, having the Auditor General pass upon them subject to appeal to judicial 3 Insurance Company of North America v. Republic, L-24520, July 11,
Inc. 1 Such a motion to dismiss was filed on September 7, 1972. At that tribunals for final adjudication. We could thus correctly conclude as we 1967, 20 SCRA 648, was the first case citing Mobil with approval. The
time, the leading case of Mobil Philippines Exploration, Inc. v. Customs did in the cited Provindence Washington Insurance decision: "Thus the last opinion came from the pen of Chief Justice Concepcion deciding
Arrastre Service, 2 were Justice Bengzon stressed the lack of jurisdiction of doctrine of non-suability of the government without its consent, as it has therein the appeals in Union Insurance Society of Canton, Ltd. v.
a court to pass on the merits of a claim against any office or entity acting operated in practice, hardly lends itself to the charge that it could be the Republic, L-26409, 46 SCRA 120; Domestic Insurance Company of the
as part of the machinery of the national government unless consent be fruitful parent of injustice, considering the vast and ever-widening scope Philippines v. Republic, L-26550, 46 SCRA 121; Insurance Company of
shown, had been applied in 53 other decisions. There is thus more than of state activities at present being undertaken. Whatever difficulties for
3 North America v. Republic, L-26587, 46 SCRA 121; British Traders
sufficient basis for an allegation of jurisdiction infirmity against the order private claimants may still exist, is, from an objective appraisal of all Insurance Co., Ltd. v. Barber Line, Macondray and Co., Inc., L-31157, 46
of respondent Judge denying the motion to dismiss dated October 4, factors, minimal. In the balancing of interests, so unavoidable in the SCRA 121, the decisions being promulgated on July 31, 1972.
1972. 4 What is more, the position of the Republic has been fortified with determination of what principles must prevail if government is to satisfy
the explicit affirmation found in this provision of the present the public weal, the verdict must be, as it has been these so many years, 4 Ibid, Annex J.
Constitution: "The State may not be sued without its consent." 5 for its continuing recognition as a fundamental postulate of
constitutional law." 12 5 Article XV, Section 16.
The merit of the petition for certiorari and prohibition is thus obvious.
3. Apparently respondent Judge was misled by the terms of the contract 6 L-27389, March 30, 1970, 32 SCRA 227. (cut)
between the private respondent, plaintiff in his sala, and defendant Rice

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