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G.R. No. 139465 January 18, 2000

SECRETARY OF JUSTICE, petitioner,
vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents.
MELO, J.:
The individual citizen is but a speck of particle or molecule vis-à-vis the vast and overwhelming powers of government. His only guarantee against oppression and
tyranny are his fundamental liberties under the Bill of Rights which shield him in times of need. The Court is now called to decide whether to uphold a citizen's basic
due process rights, or the government's ironclad duties under a treaty. The bugle sounds and this Court must once again act as the faithful guardian of the
fundamental writ.
The petition at our doorstep is cast against the following factual backdrop:
On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribing the Procedure for the Extradition of Persons Who Have
Committed Crimes in a Foreign Country". The Decree is founded on: the doctrine of incorporation under the Constitution; the mutual concern for the suppression of
crime both in the state where it was committed and the state where the criminal may have escaped; the extradition treaty with the Republic of Indonesia and the
intention of the Philippines to enter into similar treaties with other interested countries; and the need for rules to guide the executive department and the courts in
the proper implementation of said treaties.
On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the Republic of the Philippines, signed in Manila the "Extradition
Treaty Between the Government of the Republic of the Philippines and the Government of the United States of America" (hereinafter referred to as the RP-US
Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed its concurrence in the
Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents accompanying an extradition request upon certification by the
principal diplomatic or consular officer of the requested state resident in the Requesting State).
On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the extradition of
private respondent Mark Jimenez to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District
Court, Southern District of Florida, and other supporting documents for said extradition. Based on the papers submitted, private respondent appears to be charged in
the United States with violation of the following provisions of the United States Code (USC):
A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum Penalty — 5 years on each count);
B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty — 5 years on each count);
C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty — 5 years on each count);
D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty — 5 years on each count);
E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty — less than one year).
(p. 14, Rollo.)
On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of attorneys to take charge of and to handle the case pursuant to
Section 5(1) of Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation and assessment" of the extradition request and the
documents in support thereof. The panel found that the "official English translation of some documents in Spanish were not attached to the request and that there
are some other matters that needed to be addressed" (p. 15, Rollo).
Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a letter dated July 1, 1999 addressed to petitioner
requesting copies of the official extradition request from the U.S. Government, as well as all documents and papers submitted therewith; and that he be given ample
time to comment on the request after he shall have received copies of the requested papers. Private respondent also requested that the proceedings on the matter
be held in abeyance in the meantime.
Later, private respondent requested that preliminary, he be given at least a copy of, or access to, the request of the United States Government, and after receiving a
copy of the Diplomatic Note, a period of time to amplify on his request.
In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but received by private respondent only on August 4, 1999),
denied the foregoing requests for the following reasons:
1. We find it premature to furnish you with copies of the extradition request and supporting documents from the United States Government, pending
evaluation by this Department of the sufficiency of the extradition documents submitted in accordance with the provisions of the extradition treaty and
our extradition law. Article 7 of the Extradition Treaty between the Philippines and the United States enumerates the documentary requirements and
establishes the procedures under which the documents submitted shall be received and admitted as evidence. Evidentiary requirements under our
domestic law are also set forth in Section 4 of P.D. No. 1069.
Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to preliminary investigation of criminal cases.
We merely determine whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting
Government. The constitutionally guaranteed rights of the accused in all criminal prosecutions are therefore not available.
It is only after the filing of the petition for extradition when the person sought to be extradited will be furnished by the court with copies of the petition,
request and extradition documents and this Department will not pose any objection to a request for ample time to evaluate said documents.
2. The formal request for extradition of the United States contains grand jury information and documents obtained through grand jury process covered by
strict secrecy rules under United States law. The United States had to secure orders from the concerned District Courts authorizing the United States to
disclose certain grand jury information to Philippine government and law enforcement personnel for the purpose of extradition of Mr. Jimenez. Any
further disclosure of the said information is not authorized by the United States District Courts. In this particular extradition request the United States
Government requested the Philippine Government to prevent unauthorized disclosure of the subject information. This Department's denial of your
request is consistent with Article 7 of the RP-US Extradition Treaty which provides that the Philippine Government must represent the interests of the
United States in any proceedings arising out of a request for extradition. The Department of Justice under P.D. No. 1069 is the counsel of the foreign
governments in all extradition requests.
3. This Department is not in a position to hold in abeyance proceedings in connection with an extradition request. Article 26 of the Vienna Convention on
the Law of Treaties, to which we are a party provides that "[E]very treaty in force is binding upon the parties to it and must be performed by them in good
faith". Extradition is a tool of criminal law enforcement and to be effective, requests for extradition or surrender of accused or convicted persons must be
processed expeditiously.
(pp. 77-78, Rollo.)
Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial Court of the National Capital Judicial Region a petition against
the Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation, for mandamus (to compel herein petitioner to
furnish private respondent the extradition documents, to give him access thereto, and to afford him an opportunity to comment on, or oppose, the extradition
request, and thereafter to evaluate the request impartially, fairly and objectively); certiorari(to set aside herein petitioner's letter dated July 13, 1999); and
prohibition (to restrain petitioner from considering the extradition request and from filing an extradition petition in court; and to enjoin the Secretary of Foreign
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Affairs and the Director of the NBI from performing any act directed to the extradition of private respondent to the United States), with an application for the
issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-105, Rollo).
The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25 of said regional trial court stationed in Manila which is
presided over by the Honorable Ralph C. Lantion.
After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own behalf, moved that he be given ample time to file a
memorandum, but the same was denied.
On August 10, 1999, respondent judge issued an order dated the previous day, disposing:
WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary of Foreign Affairs and the Director of the National
Bureau of Investigation, their agents and/or representatives to maintain the status quo by refraining from committing the acts complained of; from
conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner; from filing the
corresponding Petition with a Regional Trial court; and from performing any act directed to the extradition of the petitioner to the United States, for a
period of twenty (20) days from service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.
The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the counsels for the parties herein, is set on August
17, 1999 at 9:00 o'clock in the morning. The respondents are, likewise, ordered to file their written comment and/or opposition to the issuance of a
Preliminary Injunction on or before said date.
SO ORDERED.
(pp. 110-111, Rollo.)
Forthwith, petitioner initiated the instant proceedings, arguing that:
PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE:
I.
BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED OF, I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT
ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT
ON, OR OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OF MANDAMUS IN THE PETITION FOR MANDAMUS, CERTIORARI AND
PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES;
II.
PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION
LAW;
III.
THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND
IV.
PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY.
(pp. 19-20, Rollo.)
On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed for, was a temporary restraining order (TRO) providing:
NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondent Judge Ralph C. Lantion, your agents,
representatives or any person or persons acting in your place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated
August 9, 1999 issued by public respondent in Civil Case No. 99-94684.
GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippines, this 17th day of August 1999.
(pp. 120-121, Rollo.)
The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their respective memoranda.
From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, a review of these issues as well as the extensive arguments
of both parties, compel us to delineate the focal point raised by the pleadings: During the evaluation stage of the extradition proceedings, is private respondent
entitled to the two basic due process rights of notice and hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot and
academic (the issues of which are substantially the same as those before us now), while a negative resolution would call for the immediate lifting of the TRO issued by
this Court dated August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing of the extradition petition with the proper regional trial court.
Corollarily, in the event that private respondent is adjudged entitled to basic due process rights at the evaluation stage of the extradition proceedings, would this
entitlement constitute a breach of the legal commitments and obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming that the
result would indeed be a breach, is there any conflict between private respondent's basic due process rights and the provisions of the RP-US Extradition Treaty?
The issues having transcendental importance, the Court has elected to go directly into the substantive merits of the case, brushing aside peripheral procedural
matters which concern the proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the petition therein, and of the issuance of the TRO of
August 17, 1999 by the trial court.
To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which was executed only on November 13, 1994, ushered into force
the implementing provisions of Presidential Decree No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removal of
an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in
connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state
or government." The portions of the Decree relevant to the instant case which involves a charged and not convicted individual, are abstracted as follows:
The Extradition Request
The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of Foreign Affairs, and shall be accompanied by:
1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority of the Requesting State having jurisdiction over
the matter, or some other instruments having equivalent legal force;
2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of the accused, his whereabouts in the
Philippines, if known, the acts or omissions complained of, and the time and place of the commission of these acts;
3. The text of the applicable law or a statement of the contents of said law, and the designation or description of the offense by the law, sufficient for
evaluation of the request; and
4. Such other documents or information in support of the request.
(Sec. 4. Presidential Decree No. 1069.)
Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinently provides
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this law and the relevant treaty or
convention, he shall forward the request together with the related documents to the Secretary of Justice, who shall immediately designate and authorize
an attorney in his office to take charge of the case.
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The above provision shows only too clearly that the executive authority given the task of evaluating the sufficiency of the request and the supporting documents is
the Secretary of Foreign Affairs. What then is the coverage of this task?
In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority must ascertain whether or not the request is supported by:
1. Documents, statements, or other types of information which describe the identity and probable location of the person sought;
2. A statement of the facts of the offense and the procedural history of the case;
3. A statement of the provisions of the law describing the essential elements of the offense for which extradition is requested;
4. A statement of the provisions of law describing the punishment for the offense;
5. A statement of the provisions of the law describing any time limit on the prosecution or the execution of punishment for the offense;
6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said Article, as applicable.
(Paragraph 2, Article 7, Presidential Decree No. 1069.)
7. Such evidence as, according to the law of the Requested State, would provide probable cause for his arrest and committal for trial if the offense had
been committed there;
8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and
9. A copy of the charging document.
(Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents received in support of the request had been certified by
the principal diplomatic or consular officer of the Requested State resident in the Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No.
951309 from the Department of Foreign Affairs).
In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executive authority of the Requested State determines that the
request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation."
The Extradition Petition
Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents are sufficient and complete in form and substance,
he shall deliver the same to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case (Paragraph [1],
Section 5, P.D. No. 1069). The lawyer designated shall then file a written petition with the proper regional trial court of the province or city, with a prayer that the
court take the extradition request under consideration (Paragraph [2], ibid.).
The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as practicable, issue an order summoning the prospective
extraditee to appear and to answer the petition on the day and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the immediate arrest
and temporary detention of the accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the prospective
extraditee.
The Extradition Hearing
The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9
thereof provides that in the hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary
nature of the proceedings, shall apply. During the hearing, Section 8 of the Decree provides that the attorney having charge of the case may, upon application by the
Requesting State, represent the latter throughout the proceedings.
Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the reasons therefor upon a showing of the existence of a prima
facie case, or dismiss the petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final and immediately executory
(Section 12, ibid.). The provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for
the required 15-day period to file brief (Section 13, ibid.).
The trial court determines whether or not the offense mentioned in the petition is extraditable based on the application of the dual criminality rule and other
conditions mentioned in Article 2 of the RP-US Extradition Treaty. The trial court also determines whether or not the offense for which extradition is requested is a
political one (Paragraph [1], Article 3, RP-US Extradition Treaty).1âwphi1.nêt
With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself: What is the nature of the role of the Department of
Justice at the evaluation stage of the extradition proceedings?
A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the extradition petition after the request and all the
supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to assure their
sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or not the request is politically motivated, or that the offense is a military offense
which is not punishable under non-military penal legislation. Ipso facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of
Justice has the ministerial duty of filing the extradition papers.
However, looking at the factual milieu of the case before us, it would appear that there was failure to abide by the provisions of Presidential Decree No. 1069. For
while it is true that the extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the
Department of Justice received the request, apparently without the Department of Foreign Affairs discharging its duty of thoroughly evaluating the same and its
accompanying documents. The statement of an assistant secretary at the Department of Foreign Affairs that his Department, in this regard, is merely acting as a post
office, for which reason he simply forwarded the request to the Department of Justice, indicates the magnitude of the error of the Department of Foreign Affairs in
taking lightly its responsibilities. Thereafter, the Department of Justice took it upon itself to determine the completeness of the documents and to evaluate the same
to find out whether they comply with the requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this connection
that although the Department of Justice had no obligation to evaluate the extradition documents, the Department also had to go over them so as to be able to
prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where private respondent insisted on the following; (1) the right to
be furnished the request and the supporting papers; (2) the right to be heard which consists in having a reasonable period of time to oppose the request, and to
present evidence in support of the opposition; and (3) that the evaluation proceedings be held in abeyance pending the filing of private respondent's opposition to
the request.
The two Departments seem to have misread the scope of their duties and authority, one abdicating its powers and the other enlarging its commission. The
Department of Foreign Affairs, moreover, has, through the Solicitor General, filed a manifestation that it is adopting the instant petition as its own, indirectly
conveying the message that if it were to evaluate the extradition request, it would not allow private respondent to participate in the process of evaluation.
Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairs thoroughly reviewed the extradition request and
supporting documents and that it arrived at a well-founded judgment that the request and its annexed documents satisfy the requirements of law. The Secretary of
Justice, eminent as he is in the field of law, could not privately review the papers all by himself. He had to officially constitute a panel of attorneys. How then could
the DFA Secretary or his undersecretary, in less than one day, make the more authoritative determination?
The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui generis. It is not a criminal investigation, but it is also
erroneous to say that it is purely an exercise of ministerial functions. At such stage, the executive authority has the power: (a) to make a technical assessment of the
completeness and sufficiency of the extradition papers; (b) to outrightly deny the request if on its face and on the face of the supporting documents the crimes
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indicated are not extraditable; and (c) to make a determination whether or not the request is politically motivated, or that the offense is a military one which is not
punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said
process may be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative body's quasi-
judicial power.
In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b) determining facts based upon the evidence presented; and (c)
rendering an order or decision supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S.
1). Inquisitorial power, which is also known as examining or investigatory power, is one or the determinative powers of an administrative body which better enables it
to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative body to inspect the records and premises,
and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of information by means or accounts, records,
reports, testimony of witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64).
The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or tool in an administrative agency's performance of its rule-
making or quasi-judicial functions. Notably, investigation is indispensable to prosecution.
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of an investigatory body with the sole power of investigation.
It does not exercise judicial functions and its power is limited to investigating the facts and making findings in respect thereto. The Court laid down the test of
determining whether an administrative body is exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise of power and
authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it
based on the facts and circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties, then there is an
absence of judicial discretion and judgment.
The above description in Ruperto applies to an administrative body authorized to evaluate extradition documents. The body has no power to adjudicate in regard to
the rights and obligations of both the Requesting State and the prospective extraditee. Its only power is to determine whether the papers comply with the
requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial and not final. The body
has no power to determine whether or not the extradition should be effected. That is the role of the court. The body's power is limited to an initial finding of whether
or not the extradition petition can be filed in court.
It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized by certain peculiarities. Primarily, it sets into motion
the wheels of the extradition process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be effected at two
stages: First, the provisional arrest of the prospective extraditee pending the submission of the request. This is so because the Treaty provides that in case of urgency,
a contracting party may request the provisional arrest of the person sought pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty),
but he shall be automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days
after which the arrested person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect, the provisions only mean that
once a request is forwarded to the Requested State, the prospective extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph [5],
Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is submitted. Practically, the purpose of this detention is to prevent his possible flight
from the Requested State. Second, the temporary arrest of the prospective extraditee during the pendency of the extradition petition in court (Section 6, Presidential
Decree No. 1069).
Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation stage. It is not only an imagined threat to his liberty, but a
very imminent one.
Because of these possible consequences, we conclude that the evaluation process is akin to an administrative agency conducting an investigative proceeding, the
consequences of which are essentially criminal since such technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of
a prospective extraditee. As described by petitioner himself, this is a "tool" for criminal law enforcement (p. 78, Rollo). In essence, therefore, the evaluation process
partakes of the nature of a criminal investigation. In a number of cases, we had occasion to make available to a respondent in an administrative case or investigation
certain constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral arguments,
there are rights formerly available only at the trial stage that had been advanced to an earlier stage in the proceedings, such as the right to counsel and the right
against self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-incrimination under Section 17, Article III of the 1987 Constitution
which is ordinarily available only in criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as an administrative
investigation of a licensed physician who is charged with immorality, which could result in his loss of the privilege to practice medicine if found guilty. The Court, citing
the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one's license as a medical practitioner, is an even greater deprivation
than forfeiture of property.
Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent which was filed under Republic Act No. 1379, or the Anti-
Graft Law. Again, we therein ruled that since the investigation may result in forfeiture of property, the administrative proceedings are deemed criminal or penal, and
such forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American
jurisprudence, laid down the test to determine whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented
the forfeiture can be included in the criminal case, such proceeding is criminal in nature, although it may be civil in form; and where it must be gathered from the
statute that the action is meant to be criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not involve the conviction of the
wrongdoer for the offense charged, the proceeding is civil in nature.
The cases mentioned above refer to an impending threat of deprivation of one's property or property right. No less is this true, but even more so in the case before
us, involving as it does the possible deprivation of liberty, which, based on the hierarchy of constitutionally protected rights, is placed second only to life itself and
enjoys precedence over property, for while forfeited property can be returned or replaced, the time spent in incarceration is irretrievable and beyond recompense.
By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a foreign country, thus saliently exhibiting the criminal or
penal aspect of the process. In this sense, the evaluation procedure is akin to a preliminary investigation since both procedures may have the same result — the
arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage of extradition proceedings, a preliminary investigation, which may
result in the filing of an information against the respondent, can possibly lead to his arrest, and to the deprivation of his liberty.
Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's Memorandum) that the extradition treaty is neither a piece of criminal
legislation nor a criminal procedural statute is not well-taken. Wright is not authority for petitioner's conclusion that his preliminary processing is not akin to a
preliminary investigation. The characterization of a treaty in Wright was in reference to the applicability of the prohibition against an ex post factolaw. It had nothing
to do with the denial of the right to notice, information, and hearing.
As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public authority, whether sanctioned by age or custom, or newly
devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserved these principles of liberty and justice, must
be held to be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance with due process requirements cannot be deemed non-compliance with treaty
commitments.
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The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their respective jurisdictions. At the same time, both
States accord common due process protection to their respective citizens.
The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and terminology, but more importantly, they
are alike in what their respective Supreme Courts have expounded as the spirit with which the provisions are informed and impressed, the elasticity in their
interpretation, their dynamic and resilient character which make them capable of meeting every modern problem, and their having been designed from earliest time
to the present to meet the exigencies of an undefined and expanding future. The requirements of due process are interpreted in both the United States and the
Philippines as not denying to the law the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a legal straitjacket, the
courts instead prefer to have the meaning of the due process clause "gradually ascertained by the process of inclusion and exclusion in the course of the decisions of
cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel
Owner's Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the very idea of free
government (Holden vs. Hardy, 169 U.S. 366).
Due process is comprised of two components — substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to
his life, liberty, or property, and procedural due process which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an
impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106).
True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in administrative
proceedings as well. Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their
interests, and upon notice, they may claim the right to appear therein and present their side and to refute the position of the opposing parties (Cruz, Phil.
Administrative Law, 1996 ed., p. 64).
In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the Rules of Court guarantees the respondent's basic due
process rights, granting him the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-
affidavits and other supporting documents within ten days from receipt thereof. Moreover, the respondent shall have the right to examine all other evidence
submitted by the complainant.
These twin rights may, however, be considered dispensable in certain instances, such as:
1. In proceeding where there is an urgent need for immediate action, like the summary abatement of a nuisance per se (Article 704, Civil Code), the
preventive suspension of a public servant facing administrative charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy
restaurants or theaters showing obscene movies or like establishments which are immediate threats to public health and decency, and the cancellation of
a passport of a person sought for criminal prosecution;
2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded from enjoying the right to notice and hearing at a
later time without prejudice to the person affected, such as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement
of a temporary appointee; and
3. Where the twin rights have previously been offered but the right to exercise them had not been claimed.
Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the extradition proceedings fall under any of the described
situations mentioned above?
Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy considering that the subject treaty involves the U.S.
Government.
American jurisprudence distinguishes between interstate rendition or extradition which is based on the Extradition Clause in the U.S. Constitution (Art. IV, §2 cl 2),
and international extradition proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty to deliver the fugitive to the
demanding state. The Extradition Clause and the implementing statute are given a liberal construction to carry out their manifest purpose, which is to effect the
return as swiftly as possible of persons for trial to the state in which they have been charged with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an
alleged fugitive, the requisition papers or the demand must be in proper form, and all the elements or jurisdictional facts essential to the extradition must appear on
the face of the papers, such as the allegation that the person demanded was in the demanding state at the time the offense charged was committed, and that the
person demanded is charged with the commission of the crime or that prosecution has been begun in the demanding state before some court or magistrate (35 C.J.S.
406-407). The extradition documents are then filed with the governor of the asylum state, and must contain such papers and documents prescribed by statute, which
essentially include a copy of the instrument charging the person demanded with a crime, such as an indictment or an affidavit made before a magistrate. Statutory
requirements with respect to said charging instrument or papers are mandatory since said papers are necessary in order to confer jurisdiction on the government of
the asylum state to effect extradition (35 C.J.S. 408-410). A statutory provision requiring duplicate copies of the indictment, information, affidavit, or judgment of
conviction or sentence and other instruments accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorney is
directory. However, the right being such a basic one has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex.
Cr. 407 and Ex parte Tucker, Cr., 324, S.W.2d 853).
In international proceedings, extradition treaties generally provide for the presentation to the executive authority of the Requested State of a requisition or demand
for the return of the alleged offender, and the designation of the particular officer having authority to act in behalf of the demanding nation (31A Am Jur 2d 815).
In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated September 13, 1999 from the Criminal Division of the U.S. Department
of Justice, summarizing the U.S. extradition procedures and principles, which are basically governed by a combination of treaties (with special reference to the RP-US
Extradition Treaty), federal statutes, and judicial decisions, to wit:
1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for the provincial arrest of an individual may be
made directly by the Philippine Department of Justice to the U.S. Department of Justice, and vice-versa. In the event of a provisional arrest, a formal
request for extradition is transmitted subsequently through the diplomatic channel.
2. The Department of State forwards the incoming Philippine extradition request to the Department of Justice. Before doing so, the Department of State
prepares a declaration confirming that a formal request has been made, that the treaty is in full force and effect, that under Article 17 thereof the parties
provide reciprocal legal representation in extradition proceedings, that the offenses are covered as extraditable offenses under Article 2 thereof, and that
the documents have been authenticated in accordance with the federal statute that ensures admissibility at any subsequent extradition hearing.
3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18 U.S.C. §3184). Said judge or magistrate is
authorized to hold a hearing to consider the evidence offered in support of the extradition request (Ibid.)
4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign country. The court must also determine that (a) it
has jurisdiction over the defendant and jurisdiction to conduct the hearing; (b) the defendant is being sought for offenses for which the applicable treaty
permits extradition; and (c) there is probable cause to believe that the defendant is the person sought and that he committed the offenses charged (Ibid.)
5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a "complaint made under oath, charging any
person found within his jurisdiction" with having committed any of the crimes provided for by the governing treaty in the country requesting extradition
(Ibid.) [In this regard, it is noted that a long line of American decisions pronounce that international extradition proceedings partake of the character of a
preliminary examination before a committing magistrate, rather than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).]
 6

6. If the court decides that the elements necessary for extradition are present, it incorporates its determinations in factual findings and conclusions of law
and certifies the person's extraditability. The court then forwards this certification of extraditability to the Department of State for disposition by the
Secretary of State. The ultimate decision whether to surrender an individual rests with the Secretary of State (18 U.S.C. §3186).
7. The subject of an extradition request may not litigate questions concerning the motives of the requesting government in seeking his extradition.
However, a person facing extradition may present whatever information he deems relevant to the Secretary of State, who makes the final determination
whether to surrender an individual to the foreign government concerned.
From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity — the Department of State — which has the power to
evaluate the request and the extradition documents in the beginning, and, in the person of the Secretary of State, the power to act or not to act on the court's
determination of extraditability. In the Philippine setting, it is the Department of Foreign Affairs which should make the initial evaluation of the request, and having
satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the request to the Department of Justice for the preparation and filing of the petition
for extradition. Sadly, however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over the request to the Department of Justice which has
taken over the task of evaluating the request as well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for extradition.
Private respondent asks what prejudice will be caused to the U.S. Government should the person sought to be extradited be given due process rights by the
Philippines in the evaluation stage. He emphasizes that petitioner's primary concern is the possible delay in the evaluation process.
We agree with private respondent's citation of an American Supreme Court ruling:
The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional
adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the
Due Process Clause, in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency
and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.
(Stanley vs. Illinois, 404 U.S. 645, 656)
The United States, no doubt, shares the same interest as the Philippine Government that no right — that of liberty — secured not only by the Bills of Rights of the
Philippines Constitution but of the United States as well, is sacrificed at the altar of expediency.
(pp. 40-41, Private Respondent's Memorandum.)
In the Philippine context, this Court's ruling is invoked:
One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not
enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will
not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a
few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under
Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right (Association of Small Landowners in
the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).
There can be no dispute over petitioner's argument that extradition is a tool of criminal law enforcement. To be effective, requests for extradition or the surrender of
accused or convicted persons must be processed expeditiously. Nevertheless, accelerated or fast-tracked proceedings and adherence to fair procedures are,
however, not always incompatible. They do not always clash in discord. Summary does not mean precipitous haste. It does not carry a disregard of the basic
principles inherent in "ordered liberty."
Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no extraditee yet in the strict sense of the word. Extradition may or
may not occur. In interstate extradition, the governor of the asylum state may not, in the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387)
since after a close evaluation of the extradition papers, he may hold that federal and statutory requirements, which are significantly jurisdictional, have not been met
(31 Am Jur 2d 819). Similarly, under an extradition treaty, the executive authority of the requested state has the power to deny the behest from the requesting state.
Accordingly, if after a careful examination of the extradition documents the Secretary of Foreign Affairs finds that the request fails to meet the requirements of the
law and the treaty, he shall not forward the request to the Department of Justice for the filing of the extradition petition since non-compliance with the aforesaid
requirements will not vest our government with jurisdiction to effect the extradition.
In this light, it should be observed that the Department of Justice exerted notable efforts in assuring compliance with the requirements of the law and the treaty since
it even informed the U.S. Government of certain problems in the extradition papers (such as those that are in Spanish and without the official English translation, and
those that are not properly authenticated). In fact, petitioner even admits that consultation meetings are still supposed to take place between the lawyers in his
Department and those from the U.S. Justice Department. With the meticulous nature of the evaluation, which cannot just be completed in an abbreviated period of
time due to its intricacies, how then can we say that it is a proceeding that urgently necessitates immediate and prompt action where notice and hearing can be
dispensed with?
Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private respondent precluded from enjoying the right to notice and
hearing at a later time without prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure. On one hand there is yet no
extraditee, but ironically on the other, it results in an administrative if adverse to the person involved, may cause his immediate incarceration. The grant of the
request shall lead to the filing of the extradition petition in court. The "accused" (as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest,
not only after the extradition petition is filed in court, but even during the evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and
the implementing law. The prejudice to the "accused" is thus blatant and manifest.
Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and shelved aside.
Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of Article III which reads:
Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers
pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
The above provision guarantees political rights which are available to citizens of the Philippines, namely: (1) the right to information on matters of public concern, and
(2) the corollary right of access to official records documents. The general right guaranteed by said provision is the right to information on matters of public concern.
In its implementation, the right of access to official records is likewise conferred. These cognate or related rights are "subject to limitations as may be provided by
law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed and critical public opinion
which alone can protect the values of democratic government (Ibid.).
Petitioner argues that the matters covered by private respondent's letter-request dated July 1, 1999 do not fall under the guarantee of the foregoing provision since
the matters contained in the documents requested are not of public concern. On the other hand, private respondent argues that the distinction between matters
vested with public interest and matters which are of purely private interest only becomes material when a third person, who is not directly affected by the matters
requested, invokes the right to information. However, if the person invoking the right is the one directly affected thereby, his right to information becomes absolute.
The concept of matters of public concerns escapes exact definition. Strictly speaking, every act of a public officer in the conduct of the governmental process is a
matter of public concern (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjects
 7

which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen (Legaspi
v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the people and any citizen has "standing".
When the individual himself is involved in official government action because said action has a direct bearing on his life, and may either cause him some kind of
deprivation or injury, he actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to information on matters of public
concern. As to an accused in a criminal proceeding, he invokes Section 14, particularly the right to be informed of the nature and cause of the accusation against him.
The right to information is implemented by the right of access to information within the control of the government (Bernas, The 1987 Constitution of the Republic of
the Philippines, 1996 ed., p. 337). Such information may be contained in official records, and in documents and papers pertaining to official acts, transactions, or
decisions.
In the case at bar, the papers requested by private respondent pertain to official government action from the U.S. Government. No official action from our country
has yet been taken. Moreover, the papers have some relation to matters of foreign relations with the U.S. Government. Consequently, if a third party invokes this
constitutional provision, stating that the extradition papers are matters of public concern since they may result in the extradition of a Filipino, we are afraid that the
balance must be tilted, at such particular time, in favor of the interests necessary for the proper functioning of the government. During the evaluation procedure, no
official governmental action of our own government has as yet been done; hence the invocation of the right is premature. Later, and in contrast, records of the
extradition hearing would already fall under matters of public concern, because our government by then shall have already made an official decision to grant the
extradition request. The extradition of a fellow Filipino would be forthcoming.
We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private respondent's entitlement to notice and hearing during the
evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the answer is in
the affirmative, is there really a conflict between the treaty and the due process clause in the Constitution?
First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality of the provisions of the RP-US Extradition Treaty nor the
Extradition Law implementing the same. We limit ourselves only to the effect of the grant of the basic rights of notice and hearing to private respondent on foreign
relations.
The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the parties to a treaty to keep their agreement
therein in good faith. The observance of our country's legal duties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that
"[t]he Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and
adheres to the policy of peace, equality, justice, freedom, cooperation and amity with nations." Under the doctrine of incorporation, rules of international law form
part of the law of the and land no further legislative action is needed to make such rules applicable in the domestic sphere (Salonga & Yap, Public International Law,
1992 ed., p. 12).
The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between
a rule of international law and the provisions of the constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to
both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the
observance of the Incorporation Clause in the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the
conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be
upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the
reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact that international law
has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The
doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national
legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect — a treaty may repeal a statute and a statute may repeal a treaty. In states
where the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with
the constitution (Ibid.).
In the case at bar, is there really a conflict between international law and municipal or national law? En contrario, these two components of the law of the land are
not pined against each other. There is no occasion to choose which of the two should be upheld. Instead, we see a void in the provisions of the RP-US Extradition
Treaty, as implemented by Presidential Decree No. 1069, as regards the basic due process rights of a prospective extraditee at the evaluation stage of extradition
proceedings. From the procedures earlier abstracted, after the filing of the extradition petition and during the judicial determination of the propriety of extradition,
the rights of notice and hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is silent as to these rights. Reference to the U.S.
extradition procedures also manifests this silence.
Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the evaluation procedure as an "ex parte technical assessment" of the
sufficiency of the extradition request and the supporting documents.
We disagree.
In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic twin due process rights of notice and hearing will not go
against the treaty or the implementing law. Neither the Treaty nor the Extradition Law precludes these rights from a prospective extraditee. Similarly, American
jurisprudence and procedures on extradition pose no proscription. In fact, in interstate extradition proceedings as explained above, the prospective extraditee may
even request for copies of the extradition documents from the governor of the asylum state, and if he does, his right to be supplied the same becomes a demandable
right (35 C.J.S. 410).
Petitioner contends that the United States requested the Philippine Government to prevent unauthorized disclosure of confidential information. Hence, the secrecy
surrounding the action of the Department of Justice Panel of Attorneys. The confidentiality argument is, however, overturned by petitioner's revelation that
everything it refuses to make available at this stage would be obtainable during trial. The Department of Justice states that the U.S. District Court concerned has
authorized the disclosure of certain grand jury information. If the information is truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition
proceedings. Not even during trial.
A libertarian approach is thus called for under the premises.
One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American jurisprudence and procedures on extradition, for any prohibition against
the conferment of the two basic due process rights of notice and hearing during the evaluation stage of the extradition proceedings. We have to consider similar
situations in jurisprudence for an application by analogy.
Earlier, we stated that there are similarities between the evaluation process and a preliminary investigation since both procedures may result in the arrest of the
respondent or the prospective extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the Extradition Law (Article 9, RP-US
Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioner's theory, because there is no provision of its availability, does this imply that for a
period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15, Article III of the Constitution which states that "[t]he privilege of the writ
or habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it"? Petitioner's theory would also infer that bail is
not available during the arrest of the prospective extraditee when the extradition petition has already been filed in court since Presidential Decree No. 1069 does not
provide therefor, notwithstanding Section 13, Article III of the Constitution which provides that "[a]ll persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided
 8

by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. . ." Can petitioner validly argue that since these
contraventions are by virtue of a treaty and hence affecting foreign relations, the aforestated guarantees in the Bill of Rights could thus be subservient thereto?
The basic principles of administrative law instruct us that "the essence of due process in administrative proceeding is an opportunity to explain one's side or an
opportunity to seek reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs.
NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In
essence, procedural due process refers to the method or manner by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31
[1997]). This Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law or treaty. Petitioner's fears that the Requesting State
may have valid objections to the Requested State's non-performance of its commitments under the Extradition Treaty are insubstantial and should not be given
paramount consideration.
How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of Presidential Decree No. 1069?
Of analogous application are the rulings in Government Service Insurance System vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National Police
Commission (271 SCRA 447 [1997]) where we ruled that in summary proceedings under Presidential Decree No. 807 (Providing for the Organization of the Civil
Service Commission in Accordance with Provisions of the Constitution, Prescribing its Powers and Functions and for Other Purposes), and Presidential Decree No. 971
(Providing Legal Assistance for Members of the Integrated National Police who may be charged for Service-Connected Offenses and Improving the Disciplinary System
in the Integrated National Police, Appropriating Funds Therefor and for other purposes), as amended by Presidential Decree No. 1707, although summary dismissals
may be effected without the necessity of a formal investigation, the minimum requirements of due process still operate. As held in GSIS vs. Court of Appeals:
. . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be removed or dismissed even without formal
investigation, in certain instances. It is equally clear to us that an employee must be informed of the charges preferred against him, and that the normal
way by which the employee is so informed is by furnishing him with a copy of the charges against him. This is a basic procedural requirement that a statute
cannot dispense with and still remain consistent with the constitutional provision on due process. The second minimum requirement is that the employee
charged with some misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter, that is to say, his defenses against
the charges levelled against him and to present evidence in support of his defenses. . . .
(at p. 671)
Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights of the respondent.
In the case at bar, private respondent does not only face a clear and present danger of loss of property or employment, but of liberty itself, which may eventually lead
to his forcible banishment to a foreign land. The convergence of petitioner's favorable action on the extradition request and the deprivation of private respondent's
liberty is easily comprehensible.
We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice outside legality," may be availed of only in the absence of, and
never against, statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA
677 [1997]). The constitutional issue in the case at bar does not even call for "justice outside legality," since private respondent's due process rights, although not
guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not be true to the organic law of the land if we choose strict construction
over guarantees against the deprivation of liberty. That would not be in keeping with the principles of democracy on which our Constitution is premised.
Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government authority, he must ever hold the oar of freedom in the
stronger arm, lest an errant and wayward course be laid.
WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent copies
of the extradition request and its supporting papers, and to grant him a reasonable period within which to file his comment with supporting evidence. The incidents
in Civil Case No. 99-94684 having been rendered moot and academic by this decision, the same is hereby ordered dismissed.
August 15, 1961
IN RE: PETITION OF ARTURO EFREN GARCIA for admission to the Philippine Bar without taking the examination. ARTURO EFREN GARCIA, petitioner.
RESOLUTION
BARRERA, J.:
Arturo E. Garcia has applied for admission to the practice of law in the Philippines without submitting to the required bar examinations. In his verified petition, he
avers, among others, that he is a Filipino citizen born in Bacolor City, Province of Negros Occidental, of Filipino parentage; that he had taken and finished in Spain, the
course of "Bachillerato Superior"; that he was approved, selected and qualified by the "Instituto de Cervantes" for admission to the Central University of Madrid
where he studied and finished the law course graduating there as "Licenciado En Derecho"; that thereafter he was allowed to practice the law profession in Spain;
and that under the provision of the Treaty of Academic Degrees and the Exercise of Professions between the Republic of the Philippines and the Spanish state, he is
entitled to practice the law profession in the Philippines without submitting to the required bar examinations.
After due consideration, the Court resolved to deny the petition on the following grounds:
(1) the provisions of the Treaty on Academic Degrees and the Exercise of Professions between the Republic of the Philippines and the Spanish State can not be
invoked by applicant. Under Article 11 thereof;
The Nationals of each of the two countries who shall have obtained recognition of the validity of their academic degrees by virtue of the stipulations of this
Treaty, can practice their professions within the territory of the Other, . . .. (Emphasis supplied).
from which it could clearly be discerned that said Treaty was intended to govern Filipino citizens desiring to practice their profession in Spain, and the citizens of Spain
desiring to practice their professions in the Philippines. Applicant is a Filipino citizen desiring to practice the legal profession in the Philippines. He is therefore subject
to the laws of his own country and is not entitled to the privileges extended to Spanish nationals desiring to practice in the Philippines.
(2) Article I of the Treaty, in its pertinent part, provides .
The nationals of both countries who shall have obtained degree or diplomas to practice the liberal professions in either of the Contracting States, issued by
competent national authorities, shall be deemed competent to exercise said professions in the territory of the Other, subject to the laws and regulations
of the latter. . . ..
It is clear, therefore, that the privileges provided in the Treaty invoked by the applicant are made expressly subject to the laws and regulations of the contracting
State in whose territory it is desired to exercise the legal profession; and Section 1 of Rule 127, in connection with Sections 2,9, and 16 thereof, which have the force
of law, require that before anyone can practice the legal profession in the Philippine he must first successfully pass the required bar examinations; and
(3) The aforementioned Treaty, concluded between the Republic of the Philippines and the Spanish State could not have been intended to modify the laws and
regulations governing admission to the practice of law in the Philippines, for the reason that the Executive Department may not encroach upon the constitutional
prerogative of the Supreme Court to promulgate rules for admission to the practice of law in the Philippines, the lower to repeal, alter or supplement such rules being
reserved only to the Congress of the Philippines. (See Sec. 13, Art VIII, Phil. Constitution).
G.R. No. L-2529 December 31, 1949
J. A. SISON, petitioner,
vs.
THE BOARD OF ACCOUNTANCY and ROBERT ORR FERGUZON, respondents.
 9

Quijano, Rosete and Tizon for petitioner.

Perkins, Ponce Enrile, Contreras and Gomez for respondent.
Claro M. Recto as amicus curiae.

TORRES, J.:
In his petition for certiorari against the Board of Accountancy and Robert Orr Ferguson, J. A. Sison prays that this Court render judgment "ordering the respondent
Board of Accountancy to revoke the certificate issued to Robert Orr Ferguson, a British subject admitted without examination because there does not exist any
reciprocity between the Philippines and the United Kingdom regarding the practice of accountancy."
Upon perusal of the pleadings and for a clear understanding of the issue raised by petitioner the following facts, which we believe are not disputed, shall be stated:
Pursuant to the provisions of Act No. 342, several persons, British subjects, and the possessors of certificates as chartered accountants issued by various incorporated
private accountant's societies in England and other parts of the British Empire, were, without examination, granted by the respondents Board of Accountancy,
certificates as public accountants to practice their profession in this jurisdiction. The respondent Robert Orr Ferguson was granted certificate No. 713-W on January
14, 1939 pursuant to resolution No. 24 of the Board of Accountancy, series of 1938.
Subsequently, the Board of Accountancy, upon the examination of the case of those British accountants without examination, came to the conclusion that , there
being no law which regulates the practice of accountancy in England, and that the practice of accountancy in England, and that the practice of accountancy in said
country being limited only to the members of incorporated private accountant's societies, the certificates issued by the Institutes of chartered accountants and other
similar societies in England and Wales cannot be considered on a par with the public accountant's certificates issued by the Philippine Board of Accountancy, which is
government entity. In view thereof, the respondent Board of Accountancy "resolved to suspend, . . . the validity of the C.P.A. certificates of the above-mentioned
candidates pending the final revocation thereof should they fail to prove to the satisfaction of the Board within sixty days' notice that : (a) Filipinos are allowed to
take the professional accountant examination given by the British government, if any, and (b) Filipino certified public accountants can, upon application, be registered
as chartered accountants or granted similar degrees by the British Government." (Annex B.)lawphi1.net
Such action of the Board of Accountancy was based on an opinion rendered by the Secretary of Justice, on October 1, 1946 (Annex A), to the Chartered Accountants
in England and Wales does not meet the requirement of section 41 of Rule 123 of the Rules of Court and that the negative statement therein, as quoted above, does
not establish the existence of reciprocity, which induced the board to hold that the registration, without examination, of those British subjects as certified public
accountants, is in accordance with the provision of section 122 of Act No. 3105 as amended by Commonwealth Act No. 342.
However, the Secretary of justice, answering a query from the Secretary of Finance, in an opinion rendered on February 10, 1947 "on the legality of the suspension or
revocation " of the certificates issued to those British subjects as contemplated in resolution No. 5, series of 1946 of the Board of Accountancy, was of the opinion
that "the board may not suspend or revoke the certificates previously granted to the ten British accountants herein involved, including respondent Robert Orr
Ferguson, because such action is in contravention of section 13 of Act No. 3105 as amended which explicitly provides that the suspension or revocation of the
certificate issued under the said Act may be done by the board for unprofessional conduct of the holder or other sufficient cause. The Secretary of Justice further said
that he believes that "the change in administrative interpretation with respect to the existence of reciprocity between the Philippines and Great Britain as to the
practice of accountancy," does not constitute sufficient cause for the suspension or revocation of the certificates in question within the meaning of said provision.
The opinion of the Secretary of Justice further said that if those certificates were issued to those British persons on the assumption that there is "reciprocity between
Great Britain and the Philippines as to the practice of certified public accountancy in the Philippines" a change of administrative interpretation is not favored (42 Am.
Jur., 412).While in the instant case the public policy with respect to the practice of foreign accountants in this country remains unchanged, the action intended by the
Board of Accountancy, to suspend or revoke the certificates already issued to such persons must be based on some other grounds, such ignorance, incapacity,
deception or fraud on the part of the holder of the certificates.
In the light of the above, the petitioner brought this action mainly on the ground that there is no reciprocity "between the Philippines and the United Kingdom" as
regards the practice of the profession of certified public accountant, because the certificate submitted by the respondent. Robert Orr Ferguson "is not a public or
financial record, and does not meet the requirements of section 41, rule 21 [123] of the Rules of the Court." And that the furthermore, the negative statement that
"there is nothing in the laws of the United Kingdom to restrict the right of the Filipino certified public accountant to practice as professional accountant therein, "
does not established the existence of reciprocity.
Section 12 of Act No. 3105, as amended, reads:
Section 12. Any person who has been engaged in the professional accountancy work in the Philippine Islands for a period of five years or more prior to the
date of his application, and who holds certificates as certified public accountant, or as chartered accountant, or other similar certificates or degrees in the
country of nationality, shall be entitled to registration as certified public accountant and to receive a certificate of registration as such certified public
accountant from the Board, Provided such country or state does not restrict the right of the Filipino certified public accountants to practice therein or
grants reciprocal rights to Filipino certified public accountants to practice therein or grants reciprocal rights to Filipinos, and provided that the application
for their registration shall be filed with the Board not later than December 31,1938.
From the text of the above-quoted section 12 of the Accountancy Law, it is inferred that the registration as certified public accountant and the issuance of the
corresponding certificate as such certified public accountant, to a person who for five years has been engaged in professional accountancy work in the Philippines and
is a holder of a certificate as certified public accountant, or as a chartered accountant, or other similar degrees in the country of his origin, is predicated on the fact
that the country of origin of such foreign applicant (a) "does not restrict the right of the Filipino certified public accountant to practice therein," (b) "grants reciprocal
rights to the Filipinos," and (c) the application for registration "be filed with the Board not later than December 31, 1938."
In the case at bar, while the profession of certified public accountant is not controlled or regulated by the Government of Great Britain, the country of origin of
respondent Robert Orr Ferguson, according to the record, said respondent had been admitted in this country to the practice of his profession as certified public
accountant on the strength of his membership of the Institute of Accountants and Actuaries in Glasgow (England), incorporated by the Royal Charter of 1855. The
question of his entitlement to admission to the practice of his profession in this jurisdiction, does not , therefore, come under reciprocity, as this principle is known in
International Law, but it is included in the meaning of comity, as expressed in the alternative condition of the proviso of the above-quoted section 12 which says: such
country or state does not restrict the right of Filipino certified public accountants to practice therein.
Mutuality, reciprocity, and comity as bases or elements. — International Law is founded largely upon mutuality, reciprocity, and the principle of comity of
nations. Comity, in this connection, is neither a matter of absolute obligation on the one hand, nor of mere courtesy and good will on the other; it is the
recognition which one nation allows within its territory to the acts of foreign governments and tribunals, having due regard both to the international duty
and convenience and the rights of its own citizens or of other persons who are under the protection of its laws. The fact of reciprocity does not necessarily
influence the application of the doctrine of comity, although it may do so and has been given consideration in some instances. (30 Am. Jur., 178; Hilton vs.
Guyot, 159 U. S., 113, 40 Law. ed., 95; 16 S. Ct., 139.)
In Hilton vs. Guyot (supra), the highest court of the United States said that comity "is the recognition which one nation allows within its territory to the legislative,
executive, or judicial acts of another nation, having due regard both to International duty and convenience, and to the rights of its own citizens or of other persons
 10

who are under the protection of its laws. " Again, in Bank of Augusta vs. Earle, 38 U.S., 13 Pet. 519, 589, Chief Justice Taney, speaking for the court while Mr. Justice
Story — well-known author of the treatise on Conflict of Laws — was a member of it, and largely adopting his words, said:
. . . It is needless to enumerate here the instances in which by the general practice of civilized countries, the laws of the one will, by the comity of nations,
be recognized and executed in another, where the rights of individuals are concerned . . . The comity thus extended to other nations is no impeachment of
sovereignty. It is the voluntary act of the nation by which it is offered, and is inadmissible when contrary to its policy, or prejudicial to its interest. But it
contributes so largely to promote justice between individuals, and to produce a friendly intercourse between the sovereignties to which they belong, that
courts, but the comity of the nation, which is administered and ascertained in the same way, and guided by the same reasoning, by which all other
principles of municipal law are ascertained and guided.
The record shows that the British Minister accredited to the Philippine Republic in two notes concerning this question, addressed to the President of the Philippines in
his capacity as Head of the Department of Foreign Affairs, said:
. . . there is no governmental control of the accounting profession in the United Kingdom and any resident of the United Kingdom, of whatever nationality,
may engage in the profession of accounting without formality; and . . . that the high standards of the accounting profession in the United Kingdom are
maintained by a number of private societies whose membership is restricted to persons who have passed a different professional examination but impose
no restriction whatsoever on membership with respect of nationality. (Night of November 5, 1946.)
Again , the British Minister, in his note of April 15, 1947, further said:
Your Excellency will recall that doubt had been expressed by the Philippine authorities concerned as to whether qualified public accountants would be
allowed to practice income tax accounting in the United Kingdom. Accordingly, I requested a ruling on this point, and I am happy to inform Your Excellency
that I have been authorized by His Majesty Principal Secretary of State for Foreign Affairs to state, for the information of the Government of the
Philippines, that qualified Philippine citizen are allowed to practice the profession of accountancy including income tax accounting, in the United Kingdom.
We are bound to take notice of the fact that fact that the Philippine and the United Kingdom, are bound by a treaty of friendship and commerce, and each nation is
represented in the other by corresponding diplomatic envoy. There is no reason whatsoever to doubt the statement and assurance made by the diplomatic
representative of the British Government in the Philippines, regarding the practice of the accountancy profession in the United Kingdom and the fact that Filipino
certified public accountant will be admitted to practice their profession in the United Kingdom should they choose to do so.
Under such circumstances, and without necessarily construing that such attitude of the British Government in the premises, as represented by the British Minister,
amounts to reciprocity, we may at least state that it comes within the realm of comity, as contemplated in our law.
It appearing that the record fails to show that the suspension of this respondent is . . . based on any of the cause provided by the Accountancy Law, we find no reason
why Robert Orr Ferguson, who had previously been registered as certified public accountants and issued the corresponding certificate public accountant in the
Philippine Islands, should be suspended from the practice of his profession in these Islands. The petition is denied, with cost.

G.R. No. L-5887 December 16, 1910

THE UNITED STATES, plaintiff-appellee,
vs.
LOOK CHAW (alias LUK CHIU), defendant-appellant.
Thos. D. Aitken for appellant.
Attorney-General Villamor for appellee.

ARELLANO, C. J.:
The first complaint filed against the defendant, in the Court of First Instance of Cebu, stated that he "carried, kept, possessed and had in his possession and control,
96 kilogrammes of opium," and that "he had been surprised in the act of selling 1,000 pesos worth prepared opium."
The defense presented a demurrer based on two grounds, the second of which was the more than one crime was charged in the complaint. The demurrer was
sustained, as the court found that the complaint contained two charges, one, for the unlawful possession of opium, and the other, for the unlawful sale of opium,
and, consequence of that ruling, it ordered that the fiscal should separated one charge from the other and file a complaint for each violation; this, the fiscal did, and
this cause concerns only the unlawful possession of opium. It is registered as No. 375, in the Court of First Instance of Cebu, and as No. 5887 on the general docket of
this court.
The facts of the case are contained in the following finding of the trial court:
The evidence, it says, shows that between 11 and 12 o'clock a. m. on the present month (stated as August 19, 1909), several persons, among them Messrs.
Jacks and Milliron, chief of the department of the port of Cebu and internal-revenue agent of Cebu, respectively, went abroad the steamship Erroll to
inspect and search its cargo, and found, first in a cabin near the saloon, one sack (Exhibit A) and afterwards in the hold, another sack (Exhibit B). The sack
referred to as Exhibit A contained 49 cans of opium, and the other, Exhibit B, the larger sack, also contained several cans of the same substance. The hold,
in which the sack mentioned in Exhibit B was found, was under the defendant's control, who moreover, freely and of his own will and accord admitted that
this sack, as well as the other referred to in Exhibit B and found in the cabin, belonged to him. The said defendant also stated, freely and voluntarily, that
he had bought these sacks of opium, in Hongkong with the intention of selling them as contraband in Mexico or Vera Cruz, and that, as his hold had
already been searched several times for opium, he ordered two other Chinamen to keep the sack. Exhibit A.
It is to be taken into account that the two sacks of opium, designated as Exhibits A and B, properly constitute the corpus delicti. Moreover, another lot of four cans of
opium, marked, as Exhibit C, was the subject matter of investigation at the trial, and with respect to which the chief of the department of the port of Cebu testified
that they were found in the part of the ship where the firemen habitually sleep, and that they were delivered to the first officer of the ship to be returned to the said
firemen after the vessel should have left the Philippines, because the firemen and crew of foreign vessels, pursuant to the instructions he had from the Manila
custom-house, were permitted to retain certain amounts of opium, always provided it should not be taken shore.
And, finally, another can of opium, marked "Exhibit D," is also corpus delicti and important as evidence in this cause. With regard to this the internal-revenue agent
testified as follows:itc-alf
FISCAL. What is it?
WITNESS. It is a can opium which was bought from the defendant by a secret-service agent and taken to the office of the governor to prove that the
accused had opium in his possession to sell.
On motion by the defense, the court ruled that this answer might be stricken out "because it refers to a sale." But, with respect to this answer, the chief of the
department of customs had already given this testimony, to wit:
FISCAL. Who asked you to search the vessel?
WITNESS. The internal-revenue agent came to my office and said that a party brought him a sample of opium and that the same party knew that there was
more opium on board the steamer, and the agent asked that the vessel be searched.
 11

The defense moved that this testimony be rejected, on the ground of its being hearsay evidence, and the court only ordered that the part thereof "that there was
more opium, on board the vessel" be stricken out.
The defense, to abbreviate proceedings, admitted that the receptacles mentioned as Exhibits A, B, and C, contained opium and were found on board the
steamship Erroll, a vessel of English nationality, and that it was true that the defendant stated that these sacks of opium were his and that he had them in his
possession.
According to the testimony of the internal-revenue agent, the defendant stated to him, in the presence of the provincial fiscal, of a Chinese interpreter (who
afterwards was not needed, because the defendant spoke English), the warden of the jail, and four guards, that the opium seized in the vessel had been bought by
him in Hongkong, at three pesos for each round can and five pesos for each one of the others, for the purpose of selling it, as contraband, in Mexico and Puerto de
Vera Cruz; that on the 15th the vessel arrived at Cebu, and on the same day he sold opium; that he had tried to sell opium for P16 a can; that he had a contract to sell
an amount of the value of about P500; that the opium found in the room of the other two Chinamen prosecuted in another cause, was his, and that he had left it in
their stateroom to avoid its being found in his room, which had already been searched many times; and that, according to the defendant, the contents of the large
sack was 80 cans of opium, and of the small one, 49, and the total number, 129.
It was established that the steamship Erroll was of English nationality, that it came from Hongkong, and that it was bound for Mexico, via the call ports of Manila and
Cebu.
The defense moved for a dismissal of the case, on the grounds that the court had no jurisdiction to try the same and the facts concerned therein did not constitute a
crime. The fiscal, at the conclusion of his argument, asked that the maximum penalty of the law be imposed upon the defendant, in view of the considerable amount
of opium seized. The court ruled that it did not lack jurisdiction, inasmuch as the crime had been committed within its district, on the wharf of Cebu.
The court sentenced the defendant to five years' imprisonment, to pay a fine of P10,000, with additional subsidiary imprisonment in case of insolvency, though not to
exceed one third of the principal penalty, and to the payment of the costs. It further ordered the confiscation, in favor of the Insular Government, of the exhibits
presented in the case, and that, in the event of an appeal being taken or a bond given, or when the sentenced should have been served, the defendant be not
released from custody, but turned over to the customs authorities for the purpose of the fulfillment of the existing laws on immigration.
From this judgment, the defendant appealed to this court.lawphi1.net
The appeal having been heard, together with the allegations made therein by the parties, it is found: That, although the mere possession of a thing of prohibited use
in these Islands, aboard a foreign vessel in transit, in any of their ports, does not, as a general rule, constitute a crime triable by the courts of this country, on account
of such vessel being considered as an extension of its own nationality, the same rule does not apply when the article, whose use is prohibited within the Philippine
Islands, in the present case a can of opium, is landed from the vessel upon Philippine soil, thus committing an open violation of the laws of the land, with respect to
which, as it is a violation of the penal law in force at the place of the commission of the crime, only the court established in that said place itself had competent
jurisdiction, in the absence of an agreement under an international treaty.
It is also found: That, even admitting that the quantity of the drug seized, the subject matter of the present case, was considerable, it does not appear that, on such
account, the two penalties fixed by the law on the subject, should be imposed in the maximum degree.
Therefore, reducing the imprisonment and the fine imposed to six months and P1,000, respectively, we affirm in all other respects the judgment appealed from, with
the costs of this instance against the appellant. So ordered.
G.R. No. L-18924 October 19, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant,
vs.
WONG CHENG (alias WONG CHUN), defendant-appellee.
Attorney-General Villa-Real for appellant.
Eduardo Gutierrez Repide for appellee.
ROMUALDEZ, J.:
In this appeal the Attorney-General urges the revocation of the order of the Court of First Instance of Manila, sustaining the demurrer presented by the defendant to
the information that initiated this case and in which the appellee is accused of having illegally smoked opium, aboard the merchant vessel Changsa of English
nationality while said vessel was anchored in Manila Bay two and a half miles from the shores of the city.
The demurrer alleged lack of jurisdiction on the part of the lower court, which so held and dismissed the case.
The question that presents itself for our consideration is whether such ruling is erroneous or not; and it will or will not be erroneous according as said court has or has
no jurisdiction over said offense.
The point at issue is whether the courts of the Philippines have jurisdiction over crime, like the one herein involved, committed aboard merchant vessels anchored in
our jurisdiction waters. 1awph!l.net
There are two fundamental rules on this particular matter in connection with International Law; to wit, the French rule, according to which crimes committed aboard
a foreign merchant vessels should not be prosecuted in the courts of the country within whose territorial jurisdiction they were committed, unless their commission
affects the peace and security of the territory; and the English rule, based on the territorial principle and followed in the United States, according to which, crimes
perpetrated under such circumstances are in general triable in the courts of the country within territory they were committed. Of this two rules, it is the last one that
obtains in this jurisdiction, because at present the theories and jurisprudence prevailing in the United States on this matter are authority in the Philippines which is
now a territory of the United States.
In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.], 116), Chief Justice Marshall said:
. . . When merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to
continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not
amenable to the jurisdiction of the country. . . .
In United States vs. Bull (15 Phil., 7), this court held:
. . . No court of the Philippine Islands had jurisdiction over an offense or crime committed on the high seas or within the territorial waters of any other
country, but when she came within three miles of a line drawn from the headlands, which embrace the entrance to Manila Bay, she was within territorial
waters, and a new set of principles became applicable. (Wheaton, International Law [Dana ed.], p. 255, note 105; Bonfils, Le Droit Int., secs. 490 et seq.;
Latour, La Mer Ter., ch. 1.) The ship and her crew were then subject to the jurisdiction of the territorial sovereign subject to such limitations as have been
conceded by that sovereignty through the proper political agency. . . .
It is true that in certain cases the comity of nations is observed, as in Mali and Wildenhus vs. Keeper of the Common Jail (120 U.., 1), wherein it was said that:
. . . The principle which governs the whole matter is this: Disorder which disturb only the peace of the ship or those on board are to be dealt with
exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders
punished by the proper authorities of the local jurisdiction. It may not be easy at all times to determine which of the two jurisdictions a particular act of
disorder belongs. Much will undoubtedly depend on the attending circumstances of the particular case, but all must concede that felonious homicide is a
subject for the local jurisdiction, and that if the proper authorities are proceeding with the case in the regular way the consul has no right to interfere to
prevent it.
 12

Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:
Although the mere possession of an article of prohibited use in the Philippine Islands, aboard a foreign vessel in transit in any local port, does not, as a
general rule, constitute a crime triable by the courts of the Islands, such vessels being considered as an extension of its own nationality, the same rule does
not apply when the article, the use of which is prohibited in the Islands, is landed from the vessels upon Philippine soil; in such a case an open violation of
the laws of the land is committed with respect to which, as it is a violation of the penal law in force at the place of the commission of the crime, no court
other than that established in the said place has jurisdiction of the offense, in the absence of an agreement under an international treaty.
As to whether the United States has ever consented by treaty or otherwise to renouncing such jurisdiction or a part thereof, we find nothing to this effect so far as
England is concerned, to which nation the ship where the crime in question was committed belongs. Besides, in his work "Treaties, Conventions, etc.," volume 1, page
625, Malloy says the following:
There shall be between the territories of the United States of America, and all the territories of His Britanic Majesty in Europe, a reciprocal liberty of
commerce. The inhabitants of the two countries, respectively, shall have liberty freely and securely to come with their ships and cargoes to all such places,
ports and rivers, in the territories aforesaid, to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts
of the said territories, respectively; also to hire and occupy houses and warehouses for the purposes of their commerce; and, generally, the merchants and
traders of each nation respectively shall enjoy the most complete protection and security for their commerce, but subject always to the laws and statutes
of the two countries, respectively. (Art. 1, Commerce and Navigation Convention.)
We have seen that the mere possession of opium aboard a foreign vessel in transit was held by this court not triable by or courts, because it being the primary object
of our Opium Law to protect the inhabitants of the Philippines against the disastrous effects entailed by the use of this drug, its mere possession in such a ship,
without being used in our territory, does not being about in the said territory those effects that our statute contemplates avoiding. Hence such a mere possession is
not considered a disturbance of the public order.
But to smoke opium within our territorial limits, even though aboard a foreign merchant ship, is certainly a breach of the public order here established, because it
causes such drug to produce its pernicious effects within our territory. It seriously contravenes the purpose that our Legislature has in mind in enacting the aforesaid
repressive statute. Moreover, as the Attorney-General aptly observes:
. . . The idea of a person smoking opium securely on board a foreign vessel at anchor in the port of Manila in open defiance of the local authorities, who
are impotent to lay hands on him, is simply subversive of public order. It requires no unusual stretch of the imagination to conceive that a foreign ship may
come into the port of Manila and allow or solicit Chinese residents to smoke opium on board.
The order appealed from is revoked and the cause ordered remanded to the court of origin for further proceedings in accordance with law, without special findings as
to costs. So ordered.
G.R. No. L-24170 December 16, 1968
ILLUH ASAALI, HATIB ABDURASID, INGKOH BANTALA, BASOK INGKIN, and MOHAMMAD BANTALLA,petitioners,
vs.
THE COMMISSIONER OF CUSTOMS, respondent.
FERNANDO, J.:
The policy relentlessly adhered to and unhesitatingly pursued to minimize, if not to do away entirely, with the evil and corruption that smuggling brings in its wake
would be frustrated and set at naught if the action taken by respondent Commissioner of Customs in this case, as affirmed by the Court of Tax Appeals, were to be set
aside and this appeal from the decision of the latter were to succeed. Fortunately, the controlling principles of law do not call for a contrary conclusion. It cannot be
otherwise if the legitimate authority vested in the government were not to be reduced to futility and impotence in the face of an admittedly serious malady, that at
times has assumed epidemic proportions.
The principal question raised by petitioners, owners of five sailing vessels and the cargo loaded therein declared forfeited by respondent Commissioner of Customs
for smuggling, is the validity of their interception and seizure by customs officials on the high seas, the contention being raised that importation had not yet begun
and that the seizure was effected outside our territorial waters..
Why such a plea could not be given the least credence without doing violence to common sense and placing the law in disrepute would be apparent from a statement
of the case and the findings of facts as set forth in the decision now under review, of the Court of Tax Appeals, dated November 19, 1964, the opinion being penned
by the late Associate Judge Augusto M. Luciano.
His opinion starts thus: "This is an appeal from the decision of the Acting Commissioner of Customs in Customs Case No. 113, dated September 26, 1961, (Jolo Seizure
Identification Cases Nos. 38, 39, 40, 41 & 42) decreeing the forfeiture of five (5) sailing vessels (kumpits) named 'Iroc-Iroc,' 'Lahat-lahat,' 'Liberal Wing III,' 'Sulu Area
Command,' and 'Business,' with their respective cargoes of blue seal cigarettes and rattan chairs for violation of Section 1363(a) of the Revised Administrative Code
and Section 20 of Republic Act No. 426 in relation with Section 1363(f) of the Revised Administrative Code."1
The facts according to the above opinion "are not controverted." Thus: "It appears that on September 10, 1950, at about noon time, a customs patrol team on board
Patrol Boat ST-23 intercepted the five (5) sailing vessels in question on the high seas, between British North Borneo and Sulu while they were heading towards Tawi-
tawi, Sulu. After ordering the vessels to stop, the customs officers boarded and found on board, 181 cases of 'Herald' cigarettes, 9 cases of 'Camel' cigarettes, and
some pieces of rattan chairs. The sailing vessels are all of Philippine registry, owned and manned by Filipino residents of Sulu, and of less than thirty (30) tons burden.
They came from Sandakan, British North Borneo, but did not possess any permit from the Commissioner of Customs to engage in the importation of merchandise into
any port of the Sulu sea, as required by Section 1363(a) of the Revised Administrative Code. Their cargoes were not covered by the required import license under
Republic Act No. 426, otherwise known as the Import Control Law."2
Respondent Commissioner of Customs, as noted at the outset, affirmed the decision rendered by the Collector of Customs of Jolo, who found cause for forfeiture
under the law of the vessels and the cargo contained therein. He was, as also already made known, sustained by the Court of Tax Appeals. Hence this petition for
review.
The first two errors assigned by petitioners would impugn the jurisdiction of the Bureau of Customs to institute seizure proceedings and thereafter to declare the
forfeiture of the vessels in question and their cargo. They would justify their stand thus: "In the light of the fact that the vessels involved with the articles laden
therein were apprehended and seized on the high seas, beyond the territorial waters of the Philippines, the said vessels could not have touched any place or port in
the Philippines, whether a port or place of entry or not, consequently, the said vessels could not have been engaged in the importation of the articles laden therein
into any Philippine port or place, whether a port or place of entry or not, to have incurred the liability of forfeiture under Section 1363(a) of the Revised
Administrative Code."3
Such a contention was advanced by petitioners before the Court of Tax Appeals. It met the repudiation that it deserved. Thus: "We perfectly see the point of the
petitioners but considering the circumstances surrounding the apprehension of the vessels in question, we believe that Section 1363(a) of the Revised Administrative
Code should be applied to the case at bar. It has been established that the five vessels came from Sandakan, British North Borneo, a foreign port, and when
intercepted, all of them were heading towards Tawi-tawi, a domestic port within the Sulu sea. Laden with foreign manufactured cigarettes, they did not possess the
import license required by Republic Act No. 426, nor did they carry a permit from the Commissioner of Customs to engage in importation into any port in the Sulu
sea. Their course announced loudly their intention not merely to skirt along the territorial boundary of the Philippines but to come within our limits and land
 13

somewhere in Tawi-tawi towards which their prows were pointed. As a matter of fact, they were about to cross our aquatic boundary but for the intervention of a
customs patrol which, from all appearances, was more than eager to accomplish its mission."4
The sense of realism and the vigorous language employed by the late Judge Luciano in rejecting such a plea deserve to be quoted. Thus: "To entertain even for a
moment the thought that these vessels were probably not bound for a Philippine port would be too much a concession even for a simpleton or a perennial optimist.
It is quite irrational for Filipino sailors manning five Philippine vessels to sneak out of the Philippines and go to British North Borneo, and come a long way back laden
with highly taxable goods only to turn about upon reaching the brink of our territorial waters and head for another foreign port."5
1. We find no plausible reason not to accept in its entirety such a conclusion reached by the Court of Tax Appeals. Nor, even if the persuasive element in the above
view were not so overwhelming, could we alter the decisive facts as found by it. For it is now beyond question that its finding, if supported by substantial evidence,
binds us, only questions of law being for us to resolve. Where the issue raised belongs to the former category, we lack the power of review.6
Moreover, for understandable reasons, we feel extreme reluctance to substitute our own discretion for that of the Court of Tax Appeals in its appreciation of the
relevant facts and its appraisal of their significance. As we had occasion to state in a relatively recent decision: "Nor as a matter of principle is it advisable for this
Court to set aside the conclusion reached by an agency such as the Court of Tax Appeals which is, by the very nature of its function, dedicated exclusively to the study
and consideration of tax problems and has necessarily developed an expertise on the subject, ..., there has been an abuse or improvident exercise of its authority."7
2. We thus could rest our decision affirming that of the Court of Tax Appeals on the above consideration.
It might not be amiss however to devote some degree of attention to the legal points raised in the above two assignment of errors, discussed jointly by petitioners-
appellants, alleging the absence of jurisdiction, the deprivation of property without due process of law and the abatement of liability consequent upon the repeal of
Republic Act No. 426. Not one of the principles of law relied upon suffices to call for reversal of the action taken by the respondent Commissioner of Customs, even if
the facts presented a situation less conclusive against the pretension of petitioners-appellants.
From the apprehension and seizure of the vessels in question on the high seas beyond the territorial waters of the Philippines, the absence of jurisdiction of
Commissioner of Customs is predicated. Such contention of petitioners-appellants is without merit.
It is unquestioned that all vessels seized are of Philippine registry. The Revised Penal Code leaves no doubt as to its applicability and enforceability not only within the
Philippines, its interior waters and maritime zone, but also outside of its jurisdiction against those committing offense while on a Philippine ship ...8 The principle of
law that sustains the validity of such a provision equally supplies a firm foundation for the seizure of the five sailing vessels found thereafter to have violated the
applicable provisions of the Revised Administrative Code.9
Moreover, it is a well settled doctrine of International Law that goes back to Chief Justice Marshall's opinion in Church v. Hubbart,10 an 1804 decision, that a state has
the right to protect itself and its revenues, a right not limited to its own territory but extending to the high seas. In the language of Chief Justice Marshall: "The
authority of a nation within its own territory is absolute and exclusive. The seizure of a vessel within the range of its cannon by a foreign force is an invasion of that
territory, and is a hostile act which it is its duty to repel. But its power to secure itself from injury may certainly be exercised beyond the limits of its territory."
The question asked in the brief of petitioners-appellants as to whether the seizure of the vessels in question and the cargoes on the high seas and thus beyond the
territorial waters of the Philippines was legal must be answered in the affirmative.
4. The next question raised is the alleged denial of due process arising from such forfeiture and seizure. The argument on the alleged lack of validity of the action
taken by the Commissioner of Customs is made to rest on the fact that the alleged offense imputed to petitioners-appellants is a violation of Section 1363(a) and not
Section 1363(f). The title of Section 1363 is clear, "Property subject to forfeiture under customs laws." The first subsection thereof, (a) cover any vessel including
cargo unlawfully engaged in the importation of merchandise except a port of entry. Subsection (f) speaks of any merchandise of any prohibited importation, the
importation of which is effected or attempted contrary to law and all other merchandise which in the opinion of the Collector of Customs have been used are or were
intended to be used as instrument in the importation or exportation of the former.
From the above recital of the legal provisions relied upon, it would appear most clearly that the due process question raised is insubstantial. Certainly, the facts on
which the seizure was based were not unknown to petitioners-appellants. On those facts the liability of the vessels and merchandise under the above terms of the
statute would appear to be undeniable. The action taken then by the Commissioner of Customs was in accordance with law.
How could there be a denial of due process? There was nothing arbitrary about the manner in which such seizure and forfeiture were effected. The right to a hearing
of petitioners-appellants was respected. They could not have been unaware of what they were doing. It would be an affront to reason if under the above
circumstances they could be allowed to raise in all seriousness a due process question. Such a constitutional guaranty, basic and fundamental, certainly should not be
allowed to lend itself as an instrument for escaping a liability arising from one's own nefarious acts.
5. Petitioners-appellants would further assail the validity of the action taken by the respondent Commissioner of Customs by the plea that the repeal of Republic Act
No. 426 abated whatever liability could have been incurred thereunder. This argument raised before the Court of Tax Appeals was correctly held devoid of any
persuasive force. The decision under review cited our opinion in Golay-Buchel & Cie v. Commissioner of Customs11 to the effect that the expiration of the Import
Control Law "did not produce the effect of declaring legal the importation of goods which were illegally imported and the seizure and forfeiture thereof as ordered by
the Collector of Customs illegal or null and void."
Roxas v. Sayoc 12 announced that principle earlier. Thus: "Herein, we are concerned with the effect of the expiration of a law, not with the abrogation of a law, and we
hold the view that once the Commissioner of Customs has acquired jurisdiction over the case, the mere expiration of Republic Act No. 650 will not divest him of his
jurisdiction thereon duly acquired while said law was still in force. In other words, we believe that despite the expiration of Republic Act No. 650 the Commissioner of
Customs retained his jurisdiction over the case and could continue to take cognizance thereof until its final determination, for the main question brought in by the
appeal from the decision of the Collector of Customs was the legality or illegality of the decision of the Collector of Customs, and that question could not have been
abated by the mere expiration of Republic Act No. 650. We firmly believe that the expiration of Republic Act No. 650 could not have produced the effect (1) of
declaring legal the importation of the cotton counterpanes which were illegally imported, and (2) of declaring the seizure and forfeiture ordered by the Collector of
Customs illegal or null and void; in other words it could not have the effect of annulling or setting aside the decision of the Collector of Customs which was rendered
while the law was in force and which should stand until it is revoked by the appellate tribunal."
As late as 1965, in Bombay Dept. Store v. Commissioner of Customs,13 we had occasion to reaffirm the doctrine in the above two decisions, the present Chief Justice,
speaking for the Court, stating that such expiration of the period of effectivity of Republic Act No. 650 "did not have the effect of depriving the Commissioner of
Customs of the jurisdiction, acquired by him prior thereto, to act on cases of forfeiture pending before him, which are in the nature of proceeding in rem...."
It is thus most evident that the Court of Tax Appeals had not in any wise refused to adhere faithfully to controlling legal principles when it sustained the action taken
by respondent Commissioner of Customs. It would be a reproach and a reflection on the law if on the facts as they had been shown to exist, the seizure and forfeiture
of the vessels and cargo in question were to be characterized as outside the legal competence of our government and violative of the constitutional rights of
petitioners-appellants. Fortunately, as had been made clear above, that would be an undeserved reflection and an unwarranted reproach. The vigor of the war
against smuggling must not be hampered by a misreading of international law concepts and a misplaced reliance on a constitutional guaranty that has not in any wise
been infringed.
WHEREFORE, the decision of respondent Court of Tax Appeals of November 19, 1964, is affirmed. With costs against petitioners-appellants.
G.R. No. L-24294 May 3, 1974
 14

DONALD BAER, Commander U.S. Naval Base, Subic Bay, Olongapo, Zambales, petitioner,
vs.
HON. TITO V. TIZON, as Presiding Judge of the Court of First Instance of Bataan, and EDGARDO GENER, respondents.
Sycip, Salazar, Luna Manalo & Feliciano for petitioner.
A. E. Dacanay for private respondent.
Office of the Solicitor General Camilo D. Quiason as amicus curiae.

FERNANDO, J.:p
There is nothing novel about the question raised in this certiorari proceeding against the then Judge Tito V. Tizon, filed by petitioner Donald Baer, then Commander of
the United States Naval Base, Subic Bay, Olongapo, Zambales, seeking to nullify the orders of respondent Judge denying his motion to dismiss a complaint filed
against him by the private respondent, Edgardo Gener, on the ground of sovereign immunity of a foreign power, his contention being that it was in effect a suit
against the United States, which had not given its consent. The answer given is supplied by a number of cases coming from this Tribunal starting from a 1945
decision, Raquiza v. Bradford1 to Johnson v. Turner,2 promulgated in 1954. The doctrine of immunity from suit is of undoubted applicability in this jurisdiction. It
cannot be otherwise, for under the 1935 Constitution, as now, it is expressly made clear that the Philippines "adopts the generally accepted principles of international
law as part of the law of the Nation."3 As will subsequently be shown, there was a failure on the part of the lower court to accord deference and respect to such a
basic doctrine, a failure compounded by its refusal to take note of the absence of any legal right on the part of petitioner. Hence, certiorari is the proper remedy.
The facts are not in dispute. On November 17, 1964, respondent Edgardo Gener, as plaintiff, filed a complaint for injunction with the Court of First Instance of Bataan
against petitioner, Donald Baer, Commander of the United States Naval Base in Olongapo. It was docketed as Civil Case No. 2984 of the Court of First Instance of
Bataan. He alleged that he was engaged in the business of logging in an area situated in Barrio Mabayo, Municipality of Morong, Bataan and that the American Naval
Base authorities stopped his logging operations. He prayed for a writ of preliminary injunction restraining petitioner from interfering with his logging operations. A
restraining order was issued by respondent Judge on November 23, 1964.4 Counsel for petitioner, upon instructions of the American Ambassador to the Philippines,
entered their appearance for the purpose of contesting the jurisdiction of respondent Judge on the ground that the suit was one against a foreign sovereign without
its consent.5 Then, on December 12, 1964, petitioner filed a motion to dismiss, wherein such ground was reiterated. It was therein pointed out that he is the chief or
head of an agency or instrumentality of the United States of America, with the subject matter of the action being official acts done by him for and in behalf of the
United States of America. It was added that in directing the cessation of logging operations by respondent Gener within the Naval Base, petitioner was entirely within
the scope of his authority and official duty, the maintenance of the security of the Naval Base and of the installations therein being the first concern and most
important duty of the Commander of the Base.6 There was, on December 14, 1964, an opposition and reply to petitioner's motion to dismiss by respondent Gener,
relying on the principle that "a private citizen claiming title and right of possession of certain property may, to recover possession of said property, sue as individuals,
officers and agents of the Government, who are said to be illegally withholding the same from him, though in doing so, said officers and agents claim that they are
acting for the Government." That was his basis for sustaining the jurisdiction of respondent Judge.7 Petitioner, thereafter, on January 12, 1965, made a written offer
of documentary evidence, including certified copies of telegrams of the Forestry Director to Forestry personnel in Balanga, Bataan dated January 8, and January 11,
1965, directing immediate investigation of illegal timber cutting in Bataan and calling attention to the fact that the records of the office show no new renewal of
timber license or temporary extension permits.8 The above notwithstanding, respondent Judge, on January 12, 1965, issued an order granting respondent Gener's
application for the issuance of a writ of preliminary injunction and denying petitioner's motion to dismiss the opposition to the application for a writ of preliminary
injunction.9
A motion for reconsideration having proved futile, this petition for certiorari was filed with this Court. The prayer was for the nullification and setting aside of the writ
of preliminary injunction issued by respondent Judge in the aforesaid Civil Case No. 2984 of the Court of First Instance of Bataan. A resolution of March 17, 1965 was
issued by this Court requiring respondents to file an answer and upon petitioner's posting a bond of P5,000.00 enjoining them from enforcing such writ of preliminary
injunction. The answer was duly forthcoming. It sought to meet the judicial question raised by the legal proposition that a private citizen claiming title and right of
possession of a certain property may, to recover the same, sue as individuals officers and agents of the government alleged to be illegally withholding such property
even if there is an assertion on their part that they are acting for the government. Support for such a view is found in the American Supreme Court decisions of United
States v. Lee10 and Land v. Dollar.11Thus the issue is squarely joined whether or not the doctrine of immunity from suit without consent is applicable. Thereafter,
extensive memoranda were filed both by petitioner and respondents. In addition, there was a manifestation and memorandum of the Republic of the Philippines
as amicus curiae where, after a citation of American Supreme Court decisions going back to Schooner Exchange v. M'faddon,12 an 1812 decision, to United States v.
Belmont,13 decided in 1937, the plea was made that the petition for certiorari be granted..
A careful study of the crucial issue posed in this dispute yields the conclusion, as already announced, that petitioner should prevail.
1. The invocation of the doctrine of immunity from suit of a foreign state without its consent is appropriate. More specifically, insofar as alien armed forces is
concerned, the starting point is Raquiza v. Bradford, a 1945 decision.14In dismissing a habeas corpus petition for the release of petitioners confined by American army
authorities, Justice Hilado, speaking for the Court, cited from Coleman v. Tennessee,15 where it was explicitly declared: "It is well settled that a foreign army,
permitted to march through a friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction
of the place."16 Two years later, in Tubb and Tedrow v. Griess,17 this Court relied on the ruling in Raquiza v. Bradford and cited in support thereof excerpts from the
works of the following authoritative writers: Vattel, Wheaton, Hall, Lawrence, Oppenhein, Westlake, Hyde, and McNair and Lauterpacht.18 Accuracy demands the
clarification that after the conclusion of the Philippine-American Military Bases Agreement, the treaty provisions should control on such matter, the assumption being
that there was a manifestation of the submission to jurisdiction on the part of the foreign power whenever appropriate.19More to the point is Syquia v. Almeda
Lopez,20 where plaintiffs as lessors sued the Commanding General of the United States Army in the Philippines, seeking the restoration to them of the apartment
buildings they owned leased to United States armed forces stationed in the Manila area. A motion to dismiss on the ground of non-suability was filed and upheld by
respondent Judge. The matter was taken to this Court in a mandamus proceeding. It failed. It was the ruling that respondent Judge acted correctly considering that
the "action must be considered as one against the U.S. Government."21 The opinion of Justice Montemayor continued: "It is clear that the courts of the Philippines
including the Municipal Court of Manila have no jurisdiction over the present case for unlawful detainer. The question of lack of jurisdiction was raised and interposed
at the very beginning of the action. The U.S. Government has not given its consent to the filing of this suit which is essentially against her, though not in name.
Moreover, this is not only a case of a citizen filing a suit against his own Government without the latter's consent but it is of a citizen filing an action against a foreign
government without said government's consent, which renders more obvious the lack of jurisdiction of the courts of his country. The principles of law behind this rule
are so elementary and of such general acceptance that we deem it unnecessary to cite authorities in support thereof."22 Then came Marvel Building Corporation v.
Philippine War Damage Commission,23 where respondent, a United States agency established to compensate damages suffered by the Philippines during World War II
was held as falling within the above doctrine as the suit against it "would eventually be a charge against or financial liability of the United States Government because
..., the Commission has no funds of its own for the purpose of paying money judgments."24 The Syquiaruling was again explicitly relied upon in Marquez Lim v.
Nelson,25 involving a complaint for the recovery of a motor launch, plus damages, the special defense interposed being "that the vessel belonged to the United States
Government, that the defendants merely acted as agents of said Government, and that the United States Government is therefore the real party in interest."26 So it
was in Philippine Alien Property Administration v. Castelo,27 where it was held that a suit against the Alien Property Custodian and the Attorney General of the United
States involving vested property under the Trading with the Enemy Act is in substance a suit against the United States. To the same effect is Parreno v.
 15

McGranery,28 as the following excerpt from the opinion of Justice Tuason clearly shows: "It is a widely accepted principle of international law, which is made a part of
the law of the land (Article II, Section 3 of the Constitution), that a foreign state may not be brought to suit before the courts of another state or its own courts
without its consent."29 Finally, there is Johnson v. Turner,30 an appeal by the defendant, then Commanding General, Philippine Command (Air Force, with office at
Clark Field) from a decision ordering the return to plaintiff of the confiscated military payment certificates known as scrip money. In reversing the lower court
decision, this Tribunal, through Justice Montemayor, relied on Syquia v. Almeda Lopez,31 explaining why it could not be sustained.
The solidity of the stand of petitioner is therefore evident. What was sought by private respondent and what was granted by respondent Judge amounted to an
interference with the performance of the duties of petitioner in the base area in accordance with the powers possessed by him under the Philippine-American
Military Bases Agreement. This point was made clear in these words: "Assuming, for purposes of argument, that the Philippine Government, through the Bureau of
Forestry, possesses the "authority to issue a Timber License to cut logs" inside a military base, the Bases Agreement subjects the exercise of rights under a timber
license issued by the Philippine Government to the exercise by the United States of its rights, power and authority of control within the bases; and the findings of the
Mutual Defense Board, an agency of both the Philippine and United States Governments, that "continued logging operation by Mr. Gener within the boundaries of
the U.S. Naval Base would not be consistent with the security and operation of the Base," is conclusive upon the respondent Judge. .. The doctrine of state immunity
is not limited to cases which would result in a pecuniary charge against the sovereign or would require the doing of an affirmative act by it. Prevention of a sovereign
from doing an affirmative act pertaining directly and immediately to the most important public function of any government - the defense of the state — is equally as
untenable as requiring it to do an affirmative act."32 That such an appraisal is not opposed to the interpretation of the relevant treaty provision by our government is
made clear in the aforesaid manifestation and memorandum as amicus curiae, wherein it joined petitioner for the grant of the remedy prayed for.
2. There should be no misinterpretation of the scope of the decision reached by this Court. Petitioner, as the Commander of the United States Naval Base in
Olongapo, does not possess diplomatic immunity. He may therefore be proceeded against in his personal capacity, or when the action taken by him cannot be
imputed to the government which he represents. Thus, after the Military Bases Agreement, in Miquiabas v. Commanding General33and Dizon v. The Commanding
General of the Philippine-Ryukus Command,34 both of them being habeas corpus petitions, there was no question as to the submission to jurisdiction of the
respondents. As a matter of fact, in Miquiabas v. Commanding General,35 the immediate release of the petitioner was ordered, it being apparent that the general
court martial appointed by respondent Commanding General was without jurisdiction to try petitioner. Thereafter, in the cited cases of Syquia, Marquez Lim,
and Johnson, the parties proceeded against were American army commanding officers stationed in the Philippines. The insuperable obstacle to the jurisdiction of
respondent Judge is that a foreign sovereign without its consent is haled into court in connection with acts performed by it pursuant to treaty provisions and thus
impressed with a governmental character.
3. The infirmity of the actuation of respondent Judge becomes even more glaring when it is considered that private respondent had ceased to have any right of
entering within the base area. This is made clear in the petition in these words: "In 1962, respondent Gener was issued by the Bureau of Forestry an ordinary timber
license to cut logs in Barrio Mabayo, Morong, Bataan. The license was renewed on July 10, 1963. In 1963, he commenced logging operation inside the United States
Naval Base, Subic Bay, but in November 1963 he was apprehended and stopped by the Base authorities from logging inside the Base. The renewal of his license
expired on July 30, 1964, and to date his license has not been renewed by the Bureau of Forestry. .. In July 1964, the Mutual Defense Board, a joint Philippines-United
States agency established pursuant to an exchange of diplomatic notes between the Secretary of Foreign Affairs and the United States Ambassador to provide "direct
liaison and consultation between appropriate Philippine and United States authorities on military matters of mutual concern,' advised the Secretary of Foreign Affairs
in writing that: "The enclosed map shows that the area in which Mr. Gener was logging definitely falls within the boundaries of the base. This map also depicts certain
contiguous and overlapping areas whose functional usage would be interfered with by the logging operations.'"36 Nowhere in the answer of respondents, nor in their
memorandum, was this point met. It remained unrefuted.
WHEREFORE, the writ of certiorari prayed for is granted, nullifying and setting aside the writ of preliminary injunction issued by respondent Judge in Civil Case No.
2984 of the Court of First Instance of Bataan. The injunction issued by this Court on March 18, 1965 enjoining the enforcement of the aforesaid writ of preliminary
injunction of respondent Judge is hereby made permanent. Costs against private respondent Edgardo Gener.
REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,
vs.
EMILIO G. GUANZON, defendant-appellee.
Office of the Solicitor General Arturo A. Alafriz Solicitor Camilo D. Quiason and Special Attorney Maria C. Paraiso for plaintiff-appellant.
Romeo C. Gonzaga for defendant-appellee.

FERNANDO, J.:p
A lower court decision, which on its face ignores the controlling statute as well as the applicable doctrines of this Court, is appealed by the Republic of the Philippines.
It filed an action for the foreclosure of certain real estate and chattel mortgages executed by defendant Emilio G. Guanzon, now appellee, in favor of the former Bank
of Taiwan, Ltd., as security for the payment of the loans obtained by him from said bank. The amount involved is P3,722.13, representing the principal and interest as
of September 30, 1961, with an additional sum equivalent to ten percent of the total indebtedness as attorney's fees. The loan transaction took place in 1943 during
the period of Japanese occupation. Upon the liberation of the Philippines in 1945, the United States, through its Alien Property Custodian, acquired such credit.
Thereafter, by virtue of the Philippine Property Act of 1946, it was transferred to our government. With the statute and the controlling judicial decisions, 1 clearly
pointing to one direction, the lower court, in a hasty and improvident exercise of judicial power, apparently oblivious of the law, took the other way. It held that the
Republic of the Philippines lacked legal interest over such mortgage loan and dismissed the case. We have no choice but to reverse.
The facts are undisputed. As set forth in the brief for appellant Republic of the Philippines: "On May and June, 1943, the defendant obtained two (2) loans from the
former Bank of Taiwan, Ltd., at its offices in Bacolod City, in the total sum of P1,600.00, with interest at the rate of six per centum (6%) per annum, compounded
quarterly, evidenced by two (2) promissory notes ... executed, signed and delivered by him to said bank. To secure prompt and full payment of the loans, the
defendant executed a real estate mortgage ... on the two parcels of land covered by Transfer Certificate of Title Nos. 1848 and 1855 of the Register of Deeds of
Negros Occidental and a Chattel Mortgage on standing crops ... growing on the same properties ... . By virtue of Vesting Order No. P-4, dated January 21, 1946, and
under the authority of the Trading with the Enemy Act, as amended, the United States of America vested in the Government of the United States the assets in the
Philippines of the Bank of Taiwan, Ltd. Pursuant to the Philippine Property Act of 1946, these assets were subsequently transferred to the Republic of the Philippines
by the Attorney General of the United States under Transfer Agreements dated July 20, 1954 and June 15, 1957, and are now administered by the Board of
Liquidators, a government agency created under Executive Order No. 372, dated November 24, 1950, and in accordance with Republic Acts Nos. 477 and 8, and other
pertinent laws."2 According to the brief for appellee Guanzon: "The statement of facts stated in appellant's brief is substantially correct so that this representation
finds no necessity in offering counter-statement of facts."3
It is not easy to explain, and certainly there is no justification, in the light of the above facts and considering the state of the law, why the lower court, in its decision,
dismissed the case on the ground that the Republic of the Philippines lacks legal interest. As noted, we have to reverse.
1. In the very able brief for appellant Republic of the Philippines, prepared by the then Solicitor General Arturo A. Alafriz and the former Solicitor, later Assistant
Solicitor General Camilo D. Quiason, it was made clear that while the Bank of Taiwan, Ltd. was the original creditor of the loans thus secured, with defendant, now
appellee, executing the mortages in question, the United States, pursuant to the Trading with the Enemy Act4 acquired such account, being among the assets of a
 16

bank which was a declared national of an enemy country. This it did through a vesting order,5the legal effect of which was to effectuate immediately the transfer of
title by operation of law without any necessity for any court action. Thus, title over such credit passed to the United States "as completely as if by conveyance,
transfer, or assignment, ... . "6 The brief for the Republic continues: "In accordance with the Philippine Property Act of 1946, the United States Government
transferred, conveyed and assigned to the Government of the Republic of the Philippines under Transfer Agreements, dated July 20, 1954 and June 15, 1957, all its
rights, title and interest to the loans in question. As such transferee, the Republic of the Philippines acquired the title and interest thereto ... . It follows, therefore,
that plaintiff has a legal interest in the promissory notes and in the real and chattel mortgages and has a cause of action against the debtor-mortgagor, the defendant
herein."7
All that was set forth in the three-page brief of counsel for appellee Guanzon reads as follows: "There is no showing as to how plaintiff-appellant was able to acquire
the Real and Chattel Mortgage executed by the defendant-appellee in favor of the Bank of Taiwan Ltd. a private bank of Japan, and therefore has no legal interest in
the subject matter. The transfer of obligation in question cannot be taken Judicial Notice by our courts because the vesting order P-4 of the Government of the
United States, pursuant to the Trading with the Enemy Act, as amended, of any and all property of any nature whatsoever subject to the Jurisdiction of the United
States affecting alien property in the Philippines cannot be taken Judicial Notice in the light of Sec. 1 of Rule 129 of the New Rules of Court, inasmuch as the Trading
with the Enemy Act is a foreign law enacted by the U.S. Government which is not enumerated in the aforecited new Rules of Court. Consequently, proof should have
been introduced to show how the United States Government was able to acquire the subject matter in litigation which was later transferred to the plaintiff-
appellant."8
It thus appears obvious that counsel for appellee lacks awareness of the controlling doctrine announced in the leading case of Brownell, Jr. v. Sun Life Assurance
Company,9 where Justice Labrador explicitly set forth: "This purpose of conveying enemy properties to the Philippines after all claims against them shall have been
settled is expressly embodied in the Philippine Property Act of 1946," 10 A brief history of the Philippine Property Act of 1946 is likewise found in his opinion: "On July
3, 1946, the Congress of the United States passed Public Law 485-79th Congress, known as the Philippine Property Act of 1946. Section 3 thereof provides that "The
Trading with the Enemy Act of October 6, 1917 (40 Stat. 411), as amended, shall continue in force in the Philippines after July 4, 1946, ... ." To implement the
provisions of the act, the President of the United States on July 3, 1946, promulgated Executive Order No. 9747, "continuing the functions of the Alien Property
Custodian and the Department of the Treasury in the Philippines." Prior to and preparatory to the approval of said Philippine Property Act of 1946, and agreement
was entered into between President Manuel Roxas of the Commonwealth and U.S. Commissioner Paul V. McNutt whereby title to enemy agricultural lands and other
properties was to be conveyed by the United States to the Philippines in order to help the rehabilitation of the latter, but that in order to avoid complex legal
problems in relation to said enemy properties, the Alien Property Custodian of the United States was to continue operations in the Philippines even after the latter's
independence, that he may settle all claims that may exist or arise against the above-mentioned enemy properties, in accordance with the Trading with the Enemy
Act of the United States." 11
Nothing can be clearer, therefore, than that the lower court grievously erred in failing to perceive that precisely the Republic of the Philippines, contrary to its
holding, possesses a legal interest over the subject matter of this controversy.
2. Apparently, the lower court, perhaps taken in by the contention of appellee, could not see its way clear to applying the Philippine Property Act of 1946 enacted by
the United States Congress as it was a foreign statute not susceptible to judicial notice. Again, if it were cognizant of the leaning of the above Brownell decision, it
would have realized how erroneous such a view is. For, as was made clear in the above decision, there was "conformity to the enactment of the Philippine Property
Act of 1946 of the United States [as] announced by President Manuel Roxas in a joint statement signed by him and by Commissioner McNutt Ambassador Romulo
also formally expressed the conformity of the Philippine Government to the approval of said act to the American Senate prior to its approval." 12It was further
stressed by Justice Labrador that after the grant of independence, the Congress of the Philippines approved Republic Act No. 8, which authorized the President of the
Philippines to enter into such contract or undertakings as may be necessary to effectuate the transfer to the Republic of the Philippines under the Philippine Property
Act of 1946 of any property or property rights or the proceeds thereof authorized to be transferred thereunder. Then his opinion continues: "The Congress of the
Philippines also approved Republic Act No. 7, which established a Foreign Funds Control Office. After the approval of the Philippine Property Act of 1946 of the United
States, the Philippine Government also formally expressed, through the Secretary of Foreign Affairs conformity thereto. ... The Congress of the Philippines has also
approved Republic Act No. 477, which provides for the administration and disposition of properties which have been or may hereafter be transferred to the Republic
of the Philippines in accordance with the Philippine Property Act of 1946 of the United States." 13
From which, the above conclusion follows: "It is evident, therefore, that the consent of the Philippine Government to the application of the Philippine Property Act of
1946 to the Philippines after independence was given, not only by the Executive Department of the Philippine Government, but also by the Congress, which enacted
the laws that would implement or carry out the benefits accruing from the operation of the United States
law." 14 Under the circumstances, there is no question, as was pointed out by the same jurist, "that a foreign law may have extraterritorial effect in a country other
than the country of origin, provided the latter, in which it is sought to be made operative, gives its consent thereto." 15 That is a sound legal proposition. It is a juridical
norm that has found acceptance in the Philippines at the close of the nineteenth century after its acquisition by the United States. Its origins in American law can be
traced back to Chief Justice Marshall's opinion in The Schooner Exchange v. M'Faddon, 16 an 1812 decision. It was cited with approval in the recent case of Reagan v.
Commissioner of Internal Revenue. 17 The doctrine is not unknown to European law. So it was noted in Reagan, with a citation from Jellinek: "It is to be admitted that
any state may, by its consent, express or implied, submit to a restriction of its sovereign rights. There may thus be a curtailment of what otherwise is a power plenary
in character. That is the concept of sovereignty as auto-limitation, which, in the succinct language of Jellinek, "is the property of a state-force due to which it has the
exclusive capacity of legal self-determination and self-restriction." A state then, if it chooses to, may refrain from the exercise of what otherwise is illimitable
competence." 18
It is thus undoubted that the lower court misapplied the rule on judicial notice. 19 The lower court could not simply have closed its eyes to the plain command of the
Philippine Property Act of 1946, which is a part of Philippine law, as was held so categorically by the above Brownell decision. To repeat, there is no justification for
the appealed decision.
3. The tone of certitude with which the lower court summarily dismissed the claim of the Republic on the ground of lack of legal interest is thus uncalled for. It could
have been avoided by an acquaintance, even of the slightest, with the doctrines enunciated by this Tribunal. An excerpt from Barrera v. Barrera 20 is of some
relevance: "The delicate task of ascertaining the significance that attaches to a constitutional or statutory provision, an executive order, a procedural norm or a
municipal ordinance is committed to the judiciary. It thus discharges a role no less crucial than that appertaining to the other two departments in the maintenance of
the rule of law. To assure stability in legal relations and avoid confusion, it has to speak with one voice. It does so with finality, logically and rightly , through the
highest judicial organ, this Court. What it says then should be definitive and authoritative, binding on those occupying the lower ranks in the judicial hierarchy. They
have to defer and to submit." 21
WHEREFORE, the decision of August 29, 1963 dismissing the complaint of the Republic of the Philippines is reversed and set aside. Costs against defendant Guanzon.
GUERRERO'S TRANSPORT SERVICES, INC., petitioner,
vs.
BLAYLOCK TRANSPORTATION SERVICES EMPLOYEES ASSOCIATION-KILUSAN (BTEA-KILUSAN), LABOR ARBITER FRANCISCO M. DE LOS REYES and JOSE
CRUZ, respondents.
Eladio B. Samson petitioner.
Francisco Angeles for private respondents.
 17

ANTONIO, J.:
Certiorari and prohibition with preliminary injunction to annul the Orders of the National Labor Relations Commission, of March 26, June 20 and September 25, 1975,
as well as the Writ of Execution of September 26, 1975, issued in NLRC Case No. 214, and to restrain respondent Deputy Sheriff of Manila from implementing said
writ.
On June 1, 1972, the United states Naval Base authorities at Subic, Zambales, conducted a public bidding for a five-year contract for the right to operate and/or
manage the transportation services inside the naval base. This bidding was won by Santiago Guerrero, owner- operator of Guerrero's Transport Services, Inc., herein
petitioner, over Concepcion F. Blaylock, the then incumbent concessionaire doing business under the name of "Blaylock Transport Services", whose 395 employees
are members of respondent union BTEA-KILUSAN. When petitioner, after the commencement of its operation on January 1, 1973, refused to employ the members of
the respondent union, the latter. On January, 12, 1975, filed a complaint 1 with the National Labor Relations Commission 2 docketed as NLRC Case No. 214, against
Guerrero's Transport Services, Inc. and Santiago Guerrero, to compel them to employ its members pursuant to Article 1, Section 2 of the RP-US Base Agreement
dated May 27, 1968. 3 This case was dismissed by the National Labor Relations Commission on March 13, 1973, upon petitioner's motion to dismiss on jurisdictional
grounds, there being no employer-employee relationship between the
parties. 4
Respondent union then appealed said Order on March 26,1973 to the Secretary of the Department of Labor, who, instead of deciding the appeal, remanded the case
for review to the NLRC which, subsequently, summoned both parties to a series of conferences. Thereafter, or on October .11, 1973, the NLRC issue a
Resolution 5 ordering petitioner, among others, "to absorb all the complainants who filed their applications on or before the deadline" set by petitioner "on 15
November 1972 except those who may have derogatory records with the U.S. Naval Authorities in Subic, Zambales" and directing the Officer-in-charge of the
provincial office of the Department of Labor in Olongapo City to "oversee the preparation of the list of those qualified for absorption in accordance with this
resolution."
Petitioner appealed to Secretary of Labor Blas F. Ople who, in turn, rendered a Decision on December 27, 1973, affirming said Resolution. 6 On January 22, 1974,
Santiago A. Guerrero) appealed the decision to the President of the Philippines, 7 but on July 9, 1974, the President, through Assistant Executive Secretary Ronaldo B.
Zamora, returned the case to the Secretary of Labor for appropriate action on the appeal, it appearing, that the same does not involve national interest. 8
In the meantime, the Provincial Director of the Labor Office in Zambales furnished, on August 2, 1974, petitioner 9 a list of forty-six (46) members of respondent union
BTEA-KILUSAN and former drivers of the Blaylock Transport Service, 10 who are within the coverage of the decision of the Secretary of Labor, and requesting
petitioner to report its action on the matter directly to the Chairman, NLRC, Manila. Subsequently, Santiago A. Guerrero received a letter dated September 24,
1974 11 from Col. Levi L. Basilla, PC (GSC) Camp Olivas, San Fernando, Pampanga, requesting compliance with the Order dated July 19, 1974 of the NLRC in NLRC Case
No. 214. In his reply letter dated October 4, 1974, Guerrero informed Col. Basilia that he had substantially complied with the decision of the Secretary of Labor
affirming the NLRC Resolution of October 31, 1974 in NLRC Case No. 214, and that any apparent non-compliance therewith was attributable to the individual
complainants who failed to submit themselves for processing and examination as requested by the authorities of the U.S. Naval Base in Subic, Zambales, preparatory
to their absorption by petitioner.
On January 18, 1975, Acting Executive Secretary Roberto V. Reyes, pursuant to Section 10 of Presidential Decree No. 21, directed the Chief of Constabulary to arrest
the executive officers of petitioner. 12 On February 20, 1975, petitioner informed Secretary Reyes that it has substantially complied with the NLRC Resolution of
October 31, 1975 as out of those listed by the Regional Labor Director, only a few passed the examination given and some of those who passed failed to comply with
the final requirements of the U.S. Naval Base Authority; that only those who passed and complied with the requirements of the U.S. Naval Base Authority were
extended appointments as early as December 16, 1974, but none of them, for evident lack of interest, has reported for work. 13 In his 1st endorsement dated March
26, 1975, Secretary Zamora required the Secretary of Labor to verify petitioner's allegations. 14 On the same date, respondent Labor Arbiter Francisco M. de los Reyes,
upon a motion for execution filed by respondent union, issued an Order stating that "upon the finality thereof and by way of implementing any writ of execution that
might be issued in this case, further hearings shall be held to determine the members of respondent union who are entitled to reinstatement in accordance with the
basic guidelines finally determined in this case." 15
On June 20, 1975, respondent Labor Arbiter De los Reyes ordered the reinstatement of 129 individuals "to their former or substantially equivalent positions without
loss of seniority and other rights and privileges". 16
On July 16,1975, respondent BTEA-KILUSAN filed a Motion for Issuance of Writ of Execution with respondent Labor Arbiter, 17 but this was objected to by petitioner
contending that the Labor Arbiter has no jurisdiction over NLRC Case No. 214 and, therefore, his proceedings and orders resulting therefrom are null and void. 18
On September 1, 1975, the Provincial Director of the Zambales Labor Office, pursuant to the directive of the Secretary of Labor, 19 and the NLRC Resolution dated
October 21, 1975 20 submitted a detailed information to the Assistant Secretary of the Department of Labor on petitioner's compliance, "to enable the Department of
Labor to formally close" NLRC Case No. 214. 21
On September 25, 1975, respondent Labor Arbiter, acting on the motion for execution filed by respondent union BTEA-KILUSAN, and finding that both the Orders,
dated March 26 and June 20, 1975, have not been appealed pursuant to Article 223 of the Labor Code, declared said Orders final and executory and directed
petitioner Guerrero's Transport Services, Inc. to reinstate the 129 complainants and to pay them the amount of P4,290.00 each, or a total of P592,110.00 as back
wages covering the period from August 22, 1974 to September 20, 1975. 22
On September 26, 1975, respondent Labor Arbiter issued a writ directing the respondent Deputy Sheriff of Manila levy on the moneys and/or properties of
petitioner, 23 and on the same date respondent Sheriff immediately serve said writ on petitioner who was given a period of five (5) days within which to comply
therewith.
It was on this factual environment that petitioner instituted the present petition for certiorari and prohibition with preliminary injunction on October 6, 1975.
Petitioner asserts that the afore-mentioned Orders were issued by respondent Labor Arbiter without jurisdiction.
As prayed for, this Court, on October 6, 1975, issued a temporary restraining order and required the respondents to file an answer within ten (10) days from notice.
On October 11, 1975, respondent Labor Arbiter De los Reyes and Sheriff Jose Cruz filed their Comment by way of answer to the petition, explaining the legal
justifications of their action on the premises.
Upon motion filed on October 11, 1975 by respondent union BTEA-KILUSAN for reconsideration and to lift the temporary restraining order of October 6, 1975, this
Court, on October 15, 1975, lifted said restraining order and set the case for hearing on Monday, October 20, 1975 at 3:00 p.m.
At the hearing of this case on October 20, 1975, a Compromise Agreement was arrived at by the parties wherein they agreed to submit to the Office of t he Secretary
of Labor the determination of members of the respondent union BTEA-KILUSAN who shall be reinstated or absorbed by the herein petitioner in the transportation
service inside the naval base, which determination shall be considered final. This Court approved this agreement and enjoined "all the parties to strictly observe the
terms thereof." This agreement is deemed to have superseded the Resolution of the National Labor Relations Commission of October 31, 1973, as affirmed by the
Secretary of Labor on December 27, 1973.
Pursuant to this agreement which was embodied in the Resolution of this Court of October 24, 1975, Secretary of Labor Blas F. Ople issued an Order dated November
13, 1975, the pertinent portion of which reads as follows:
 18

The issue submitted for resolution hinges on the credibility of the alleged applications. Considering that the employees are economically
dependent on their jobs, they have all the reasons and zealousness to pursue their jobs within the legitimate framework of our laws. The
applicant are no strangers to the pains and difficulties of unemployment. Because of these factors we cannot ignore the affidavits of proof
presented by the employees concerned as against the declaration of the herein respondent. Firmly entrenched is the rule in this jurisdiction
that doubts arising from labor disputes must be construed and interpreted in favor of the workers.
RESPONSIVE TO THE FOREGOING, the National Labor Relations Commission through Arbiter Francisco delos Reyes is hereby directed to
implement the absorption of the 175 members of the Blaylock Transport Employees Association (BTEA-KILUSAN) into the Guerrero Transport
Services, subject to the following terms and conditions:
1) that they were bona fide employees of the Blaybock Transportation Service at the time its concession expired:
2) that the appellants shall pass final screening and approval by the appropriate authorities of the U.S. Base concerned.
The applicants to be processed for absorption shall be those in the list of 46 submitted by OIC Liberator (Carino on 2 August 1974, and the list of
129 determined by Arbiter de los Reyes as embodied in the Writ of Execution issued on 25 September 1975.
The Regional Director of Regional Office No. II, San Fernando, Pampanga, shall make available to the parties the facilities of that Office in the
implementation of the aforesaid absorption process. 24
On November 24, 1975, in compliance with the aforesaid directive of the Secretary of Labor, Labor Arbiter Francisco M. delos Reyes conducted a hearing to receive
evidence as to who were the bona fide employees of the former concessionaire at the "time of its concession expire". Thereafter, Labor Arbiter De los Reyes issued
an Order, dated November 25, 1975, listing in Annex "A" thereof, 174 employees who were bona fide employees of the private respondent, and transmitting a copy
of said Order to the Base Commander, U.S. Naval Base, Olongapo City, with the request for the immediate screening and approval of their applications in accordance
with applicable rules of said command. The pertinent portion of said Order reads as follows:
As far as this Labor Arbiter is concerned, his only participation in this case refers to that portion of the Secretary of Labor's Order directing him
to implement "* * * the absorption of the 175 members of the Blaylock Transport Employees Association (BTEA-KILUSAN) into the Guerrero
Transport Services," subject to certain terms and conditions. Hence, any question of "prematurity" as espoused by respondent's counsel may
not he entertained by this Labor Arbiter.
Going now to the applicants who should be entitled to absorption, the Honorable Secretary of Labor specified that the same should be
composed of the 46 submitted by OIC Liberator Carino on 2 August 1974 and the 129 applicants determined by this Labor Arbiter. Of the latter,
only 128 will be named. A perusal of said list show that the name "Renato Carriaga" has been doubly listed. For convenience, these two listings
have now been consolidated and alphabetically arranged and as an integral part of this Order has been made as Annex "A" (pp 1 to 6).
For purposes of implementation, the initial step to be undertaken is for the submission of the name of the applicants to the U.S. Navy
authorities concerned, which means the U. S. Naval Base at Olongapo City for the screening and approval by the appropriate authorities.
Regarding the determination of whether the applicants are bona fide employees of the Blaylock Transportation Service at the time its
concession expired, the parties appear to be in agreement that the records of this case will eventually show whether the applicants are such
employees. Further, we feel that such employment will likewise appear in the records of the U. S. Naval Base at Olongapo City since persons
connected with the Base like the applicants, have to undergo processing by naval authority.
WHEREFORE, in view of the foregoing considerations, copies of this Order together with Annex "A" hereof are hereby transmitted to the Base
Commander, U. S. Naval Base , Olongapo City with the request for the immediate screening and approval of said applicants, in accordance with
applicable rules of that command. 25
Pursuant to Section 6 of Article I of the Philippine-U S. Labor Agreement of May 27, 1968, the United States Armed Forces undertook, consistent with military
requirements, "to provide security for employment, and, in the event certain services are contracted out, the United States Armed Forces shall require the contractor
or concessioner to give priority consideration to affected employees for employment. (Emphasis supplied.)
A treaty has two (2) aspects — as an international agreement between states, and as municipal law for the people of each state to observe. As part of the municipal
law, the aforesaid provision of the treaty enters into and forms part of the contract between petitioner and the U.S. Naval Base authorities. In view of said stipulation,
the new contractor is, therefore, bound to give "priority" to the employment of the qualified employees of the previous contractor. It is obviously in recognition of
such obligation that petitioner entered into the afore-mentioned Compromise Agreement.
As above indicated, under the Compromise Agreement as embodied in the Resolution of this Court dated October 24, 1975, the parties agreed to submit to the
Secretary of Labor the determination as to who of the members of the respondent union BTEA-KILUSAN shall be absorbed or employed by the herein petitioner
Guerrero's Transport Services, Inc., and that such determination shall be considered as final. In connection therewith, the Secretary of Labor issued an Order dated
November 13, 1975, directing the National Labor Relations Commission, through Labor Arbiter Francisco de los Reyes, to implement the absorption of the 175
members 26 into the Guerrero's Transport Services, subject to the following conditions, viz.: (a) that they were bona fide employees of the Blaylock Transport Service
at the time its concession expired; and (b) that they should pass final screening and approval by the appropriate authorities of the U.S. Naval Base concerned.
According to private respondent, however, Commander Vertplaetse of the U.S. Navy Exchange declined to implement the order of the Labor Arbiter, as it is the
petitioner who should request for the screening and approval of the applicants.
Considering that the afore-mentioned Compromise-Agreement of the parties, as approved by this Court, is more than a mere contract and has the force and effect of
any other judgment, it is, therefore, conclusive upon the [parties and their privies. 27 For it is settled that a compromise has, upon the parties, the effect and authority
of res judicataand is enforceable by execution upon approval by the court. 28 Since the resolution of the NLRC of October 31, 1973 required the absorption of the
applicants subject to the conditions therein contained, and there being no showing that such conditions were complied with, the Labor Arbiter exceeded his authority
in awarding back wages to the 129 complainants.
ACCORDINGLY, judgment is hereby rendered ordering petitioner to employ members of respondent labor union BTEA-KILUSAN referred to in the Order of the
Secretary of Labor dated November 13, 1975 who satisfy the criteria enunciated viz.: (a) those who were bona fide employees of the Blaylock Transport Services at
the time its concession expired; and (b) those who pass the final screening and approval by the appropriate authorities of the U.S. Naval Base. For this purpose,
petitioner is hereby ordered to submit to and secure from the appropriate authorities of the U.S. naval Base at Subic, Zambales the requisite screening and approval,
the names of the afore-mentioned members of respondent union.
The Order dated September 25, 1975 of respondent Labor Arbiter Francisco M. de los Reyes, awarding back wages to the 129 complainants in the total amount of
P592,110.00, is hereby set aside. No pronouncement as to costs.
G.R. No 94070 April 10, 1992
ROSALINDA DE PERIO SANTOS, petitioner,
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG and SECRETARY RAUL MANGLAPUS, respondents.

GRIÑO-AQUINO, J.:
 19

This is a petition for certiorari* seeking to set aside Administrative Order No. 122 of the Office of the President, finding the petitioner guilty of dishonesty and meting
upon her, after appreciating certain mitigating circumstances in her favor, the penalty of reprimand with a warning that a repetition of the same or similar offense
will be dealt with more severely. The President affirmed Assignment Order No. 58/88 dated April 27, 1988 of the Secretary of Foreign Affairs recalling the petitioner
to the home office from her post as permanent representative to the Philippine Mission to the United Nations and other International Organizations (MISUNPHIL, for
short) in Geneva, Switzerland (pp. 84-99, Rollo).
Petitioner Rosalinda de Perio-Santos, a career service officer with the rank of Chief of Mission II and Ambassador Extraordinary and Plenipotentiary, was appointed on
July 24, 1986, by her Excellency, President Corazon C. Aguino, to the position of Permanent Representative of the Philippines to the Philippine Mission to the United
Nations and other International Organizations with station in Geneva, Switzerland (Annexes A and B, pp. 33-34,Rollo).
On April 6, 1987, petitioner sought a leave of absence from the Department of Foreign Affairs (DFA) to spend the Easter Holidays in New York, U.S.A., with her
mother, brothers and sisters at no expense to the Government (p. 84, Rollo). She bought two (2) non-transferable, non-refundable discounted tickets costing SFr.
1,597 for herself and her adopted daughter Pia.
Before they could leave Geneva, petitioner received instructions from the home office directing her to proceed to Havana as a member of the Philippine delegation to
the UNCTAD G-77 Preparatory Conference from April 20-26, 1987 (Ibid.). For the official trip outside her station, she was entitled, under the "Foreign Service
Personnel Manual on Travel, Per Diems, and Daily Allowance Abroad," to SFr. 2,996 for the cost of economy roundtrip fare from Geneva-New York-Geneva portion of
her Geneva-New York-Havana-New York-Geneva trip. (Annexes C and D, pp. 35-37, Rollo) Instead of buying an economy roundtrip ticket, she used for the Geneva-
New York-Geneva portion of her trip the two (2) discounted tickets costing only SFr. 1,597 for herself and her daughter Pia. They left Geneva for New York en route to
Havana on April 15, 1987. On the same day, the DFA approved her application for a leave of absence with pay from April 27 to May 1, 1987 (Ibid.).
After the Havana Conference, she and her daughter spent her vacation leave in New York before returning to Geneva (Ibid.).
Instead of claiming reimbursement for SFr. 2,996, she requested, and received, reimbursement of only SFr. 1,597 which she spent for the Geneva to New York, and
New York to Geneva portion of her trip, thereby effecting savings of SFr.1,399 for the Government (p.35, Rollo).
On September 16, 1987, the DFA sent her a cable (GE-202/87) requesting clarification on "why Mission paid for plane ticket of infant Pia de Perio-Santos (petitioner's
daughter) Geneva-New York-Geneva per CV 216/87 when she was not authorized to accompany her adopting mother at government expense.(Ibid.)
Petitioner replied that the air fare tickets were for her only and did not include her daughter whose trip was paid from her personal funds (p. 86, Rollo).
On September 21, 1987, the DFA required her to refund the amount representing her daughter's round-trip ticket since DFA received a copy of the "facture" from the
travel agency showing that the amount of SFr.1,597 was in payment of (a) 1 billet adulte-Geneva/New York/Geneva SFr. 950, and (b) 1 billet enfant-Geneva/New
York/Geneva SFr. 673; and that the sum of SFr. 673 represented the cost of her daughter's portion of the ticket (p. 86, Ibid.).
Instead of refunding only the sum of Sfr. 673 to the Government, petitioner returned the full amount of SFr.1,597 (Annex E, pp. 38 and 86, Rollo). She thereafter
claimed payment for one round-trip economy plane ticket (Geneva-New York-Geneva) in the amount of SFr. 2,996 to which she was entitled under the Foreign
Service Personnel Manual on Travel, Per Diems and Daily Allowance Abroad.
On October 5, 1987, Deputy Armando Maglaque, and some MISUNPHIL employees filed administrative charges against her for "incompetence; inefficient; corrupt
and dishonest activities; rude and uncouth manners; abusive and high-handed behavior; irregular and highly illegal transactions involving funds of the mission." The
charges were referred to Ambassador Luis Ascalon for initial investigation (Comment, p. 182, Rollo). Petitioner explained the circumstances of the purchase of the
discounted tickets. On November 26, 1987, Ambassador Ascalon submitted his findings which, with the complaints, were referred to a 5-man Ad Hoc Investigation
Committee for preliminary investigation (p. 86, Rollo). The Committee found a prima facie case against petitioner for (1) dishonesty; (2) violation of existing rules and
regulations; (3) incompetence and inefficiency; and (4) conduct prejudicial to the best interest of the service.
Ambassador Eduardo Rosal also charged her with estafa before the Tanodbayan. The case was dismissed for insufficiency of evidence (p. 87, Rollo).
On November 23, 1987, DFA recalled her to Manila for consultation. She came home on November 29, 1987 (p. 86, Rollo).
On March 17, 1988, the Board of Foreign Service Administration (BFSA) constituted a new 5-man investigating committee to evaluate the evidence presented by the
parties.
Three (3) members of the committee, (Atty. Pineda and Ambassadors Pastores and Garrido) found her liable for misconduct only, and recommended dismissal of the
other charges. They also recommended that she be reprimanded and recalled to Manila. Ambassador Arague dissented with respect to the penalty, which he thought
should include a six-month suspension. Atty. De Vera found all the charges against Ambassador de Perio-Santos "to be unmeritorious." (pp. 87-88, Rollo.)
The BFSA met en banc on April 22, 1988 to consider the memorandum-report of the new Investigating Committee. On April 26, 1988, the BFSA, through its Chairman,
Undersecretary Jose D. Ingles, submitted a memorandum to the Secretary of Foreign Affairs (SFA), adopting the findings and recommendations of the investigating
committee.
In a letter-decision dated April 27, 1988 (p. 50, Rollo), the Secretary of Foreign Affairs affirmed the BFSA's recommendation declaring Ambassador de Perio-Santos
guilty of the lesser offense of misconduct, instead of dishonesty, meted to her the penalty of reprimand, and recalled her to the home office.
Petitioner filed a motion for reconsideration on the ground that she was denied due process when she was declared guilty of misconduct although it was not one of
the charges against her. Conceding that point, the Secretary ordered the records remanded to the BFSA for hearing to give petitioner an opportunity to defend
herself against the charge of misconduct which was deemed to have been filed by the Secretary himself since an administrative complaint can be initiated directly by
the Department Head (Sec. 37[b], P.D. 807) (p. 91, Rollo).
Insisting that no formal charge of misconduct had been filed against her, and that hence, there was nothing to investigate (p. 91, Rollo), petitioner refused to attend
the hearing. Consequently, in his resolution of August 18, 1988, Secretary Manglapus declared his decision of April 27, L988, "final and executory, effective
immediately." (Annex Q, p. 72, Rollo)
Petitioner appealed that resolution to the Office of the President, where it was docketed as O.P. Case No. 3903 (p. 91, Rollo).
On January 24, 1989, President Aquino nominated Narcisa L. Escaler as Ambassador and Permanent Representative to the United Nations and other International
Organizations in Geneva in lieu of the petitioner. The nomination was confirmed by the Commission on Appointments on March 15, 1989 (pp. 191, 224, Rollo).
On March 30, 1989, President Aquino issued Administrative Order No. 122 (Annex S, pp. 84-99, Rollo) finding petitioner guilty of dishonesty (instead of misconduct)
and imposed upon her the penalty of reprimand, with recall to the home office.
The finding of dishonesty was based on:
1. The certification which was made in support of her request for reimbursement of the discounted round-trip ticket stating that "she
purchased the said round trip ticket, which consists of two (2) one-waytickets (instead of two roundtrip tickets), one from Geneva to New York
and the other from New York to Geneva, as shown in the attached receipt ('quittance') of payment to the travel agency. Hence, she was
reimbursed, per Check No. UBS-4455589 dated May 7, 1987." (p. 95, Rollo)
2. The allegation in her telex ZGE-373-87 (in answer to DFA cable of September 16, 1987) that the Geneva Mission "never paid for the trip of
Ambassador de Perio-Santos' daughter to Mexico which was paid from ambassador's personal fund" (although the DFA in fact refunded Pia's
portion of the discounted round-trip tickets from Geneva-New York-Geneva). (p. 95, Rollo)
Petitioner filed a motion for reconsideration and a supplemental memorandum and letter addressed to the President (Annexes X, Y and Z, pp. 146-265, Rollo).
In a Resolution dated January 9, 1990 (Annex AA, pp. 166-167, Rollo), respondent Executive Secretary Catalino Macaraig, Jr., by authority of the President, denied the
motion for reconsideration.
 20

In due time she filed this petition for certiorari alleging that the President's "reprimand and recall orders are not supported by substantial evidence and were issued
with gross abuse of discretion and serious error of law" (p. 15, Rollo). The petition has merit.
The general rule is that the factual findings of administrative agencies are binding on this Court and controlling on the reviewing authorities if supported by
substantial evidence (Planters Products, Inc. vs. NLRC, 169 SCRA 328; Doruelo vs. Ministry of National Defense, 169 SCRA 448). Courts of justice will not interfere with
purely administrative matters rendered by administrative bodies within the scope of their power and authority (Gegare vs. CA, 177 SCRA 471).
A careful review of the records fails to yield any evidence of dishonesty on the part of the petitioner, or an intent to cheat and defraud the government. Her failure to
disclose the fact that her discounted tickets included the fare for her child, was harmless and inconsequential as the two (2) discounted Geneva-New York-Geneva
tickets for herself and her daughter were in fact inseparable, intransferable, non-cancellable and non-refundable, in effect one whole fare only, for purposes of the
discount. The mother and daughter tickets were, in the words of the petitioner, "married to each other" (p. 8, Rollo). One without the other would not have been
entitled to the discount. And if she left her daughter behind, it would have made no difference in the fare because the ticket was not refundable.
Using the discounted tickets was beneficial to the Government for they cost 50% less than an economy roundtrip ticket that the petitioner was entitled to purchase
for the same trip if she travelled alone. She obviously saved money (SFr.1,399) for the government by using her discounted tickets even if her daughter's fare was
included therein.
Since petitioner was moved by the best of motives in using the discounted tickets which she had purchased before she received the order to attend the UNCTAD
conference in Havana, her action should be commended instead of condemned (Hernandez vs. Chairman, Commission on Audit, 179 SCRA 39).
Petitioner's problems probably would not have arisen if before embarking on the Havana trip she had asked DFA for permission to use the two (2) discounted round-
trip tickets for the Geneva-New York-Geneva portion of her trip. Her inadvertence was construed by the Government as lack of candor and honesty on her part. The
Court believes however that she did not intend to falsify or conceal the truth when she filed a claim for the refund of the total cost of her discounted tickets
(SFr.1,597). Her claim for the whole discounted fare was based on the fact that her daughter's ticket was inseparable from her own fare. They had to go together to
be entitled to the special discount. Their fare was indivisible, hence, the Government's offer to shoulder only the petitioner's portion of the discounted fare (SFr. 950),
excluding her daughter's portion (SFr. 647) was neither fair nor reasonable.
In view of the DFA's objection to the refund of the entire discounted fare to her, the petitioner returned the whole amount of SFr.1,597 which she had earlier
received from the DFA, and asked, in return, for the cost of the regular economy fare (SFr. 2,966) which she was legally entitled to purchase for her trip. Thereupon,
the Secretary reprimanded her for misconduct and recalled her to the home office. On appeal to the Office of the President, the latter ironically found her guilty of
the more serious offense of dishonesty, reprimanded her therefor, and recalled her to Manila. We hold that under the circumstances above narrated, the petitioner's
actuation constituted neither dishonesty nor misconduct, hence, the reprimand that was meted to her was unmerited.
Nevertheless, the Court is not disposed to disturb the order of the DFA and the Office of the President recalling the petitioner to the home office. There is no merit in
the petitioner's contention that her tour of duty in Geneva was for four (4) years, as provided in Section 260 of P.D. No. 1578 ("Instituting the Administrative Code of
1978'), thus:
(b) Tour of duty — (1) The tour of duty of a foreign service officer at any post shall be four (4) years commencing on the date of his arrival at the
post, after which he shall be transferred to another post. (p. 15, Rollo)
As pointed out by the Solicitor General, P.D. 1578 was one of those unpublished "secret" decrees which this Court in Tañada, et al. vs. Tuvera, et al., 146 SCRA 446,
declared to be inoperative or without legal force and effect. P.D. 1578 was expressly repealed on May 5, 1987, by Executive Order No. 168, entitled "REPEALING
PRESIDENTIAL DECREE NO. 1578 ENTITLED 'INSTITUTING THE ADMINISTRATIVE CODE OF 1978.'"
The applicable law therefore is Section 6, Part B, Title III, of R.A. 708, "The Foreign Service Act of the Philippines," enacted on June 5, 1952, providing that:
Sec. 6. Assignments and Transfers — A Foreign Service Officer may be assigned by the Secretary to serve in the Department or in a diplomatic
or consular post abroad: Provided, however, that the minimum period during which he may serve in any foreign post shall be one year and the
maximum period four years, except in case of emergency or extraordinary circumstances, in which event he may be tranferred from one
foreign post to another or to the Department by the order of the Secretary without regard to his length of service in his former post. (Emphasis
supplied; p. 202, Rollo.)
Since the petitioner had been appointed to her post on July 24, 1986, she had already served the minimum one-year period of service when her recall on April 22,
1988 came. Her reassignment to Manila did not have to be explained and justified by the Secretary of Foreign Affairs nor the President of the Philippines (p.
51, Rollo).
The presidential prerogative to determine the assignments of the country's diplomatic personnel is unquestionable. As discussed in the Solicitor General's
"Comment" on the petition for certiorari and prohibition ––
The conduct of the country's foreign affairs is vested on the President through respondent Manglapus as alter ego of the President. As head of
the Department of Foreign Affairs, he is mandated by law to maintain the country's representation with foreign governments, the United
Nations (UN), Association of Southeast Asian Nations (ASEAN), and other international and regional organizations. The foreign service officers
and employees abroad represent the interest of the Philippines under the direction, supervision and control of the Chief Executive through
respondent Secretary.
xxx xxx xxx
Considering that the conduct of foreign relations is primarily an executive prerogative, courts may not inquire into the wisdom or unwisdom in
the exercise thereof. This is a principle laid down by the courts from time immemorial. The power to conduct foreign policy and its necessary
element of assigning the, country's representatives abroad is best addressed to the wisdom of the executive branch and not to be unduly
interfered with by the judiciary (U.S. v. Curtiss Wright Export Corp., 299 U.S. 304; Missouri v. Holland, 352 U.S. 416; U.S. v. Belmont, 301 U.S.
324; U.S. v. Pink, 315 U.S. 203; Jones v. U.S., 137 U.S. 202, 212; Oetegen v. Central Leather Co., 246 U.S. 297, 302; Foster v. Neilson, 2 Pet. 253,
30709; Williams v. Suffolf Insurance Co., 13 Pet. 414, 419-20; Zemel v. Rusk, 381 U.S. 17; Harisiades vs. Shughnessy, 342 U.S. 580; Chicago
Southern Air Lines Inc. v. Loatherman S.S. Corp., 333 U.S. 103; Haig v. Agee, 453 U.S. 280). In States which follow the principle of separation of
powers like the United States and the Philippines, the President holds actual executive power, including the power to conduct foreign relations
(Public International Law, Coquia and Santiago, 1984 ed., p. 480). On this, textwriters are nign unanimous:
The head of State, as the State's Chief organ and representative in the totality of its international intercourse, with the
consequence that all his, legally relevant international acts are considered acts of his state. Such acts comprises chiefly
the reception and sending of diplomatic agents, and consuls, conclusion of treaties, and recognition of states. (Ibid, p.
481, citing Fenwick, International Law, 554 [1965], at p. 758.)
The conduct of the external affairs of the State is an executive prerogative. As head of the State, the President deals with
foreign states and governments with respect to matters relating to entering into treaties, maintaining diplomatic
relations, extending or withholding recognition. Chief Justice Marshall described the President of the United States as the
'sole organ of the nation in its external relations and its sole representative with foreign nations.' This apt description
likewise applies to the President of the Philippines." (Añonuevo-Taro, The 1987 Constitution of the Philippines Explained,
1989 ed., p. 263-264.)
 21

Thus, the assignment to and recall from posts of ambassadors are prerogatives of the President, for her to exercise as the exigencies of the
foreign service and the interests of the nation may from time to time dictate. (pp. 204-207, Rollo.)
The petitioner's designation as the permanent representative of the Philippine Government to the United Nations and other International Organizations in Geneva
(Annex B, p. 34, Rollo), was one based on the special trust and confidence which the appointing power, the President, had in the appointee. Once that trust and
confidence ceased to exist, the incumbent's continuance in the position became untenable.
The tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them
endures (Corpus vs. Cuaderno, 13 SCRA 591). When that confidence is lost and the officer holding the position is separated from the service, such cessation is not
removal from office but merely an expiration of his/her term (Cadiente vs. Santos, 142 SCRA 280).
An incumbent of a primarily confidential position holds office at the pleasure of the appointing power. When the pleasure turns into displeasure, the incumbent is not
removed or dismissed from office — his term merely expires (Ingles vs. Mutuc, 26 SCRA 171).
"Primarily confidential" denotes "not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom
of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state" (Pinero vs. Hechanova, 18 SCRA
417; citing De los Santos vs. Mallare, 87 Phil. 289).
It is the fact of loss of confidence, not the reason for it, that is important and controlling. As holder of a primarily confidential position, petitioner's foreign assignment
was at the pleasure of the President. The recall order terminating her tour of duty in Geneva and returning her to the home office was merely a change of post or
transfer of location of work.
Petitioner may not justifiably assail the appointment of Narcisa Escaler as her replacement in Geneva because the power to appoint is essentially discretionary. The
appointing power, the President, has the right of choice which she may exercise freely, according to her best lights (Pamantasan ng Lungsod ng Maynila vs. Court of
Appeals, 140 SCRA 22). This Court may not order the reinstatement of the petitioner to her former position in Geneva for that would be tantamount to a usurpation
by this Court of the power of appointment, which is the exclusive prerogative of the Chief Executive (Article VII, Section 16, 1987 Constitution). It would violate the
system of separation of powers which inheres in our democratic republican form of government.
The recall order issued by the Secretary of Foreign Affairs (Assignment Order No. 58/88) was a valid exercise of his authority as an alter ego of the President (Villena
vs. Secretary of Interior, 67 Phil. 451). His acts, "performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief
Executive presumptively the acts of the latter (Cruz, Political Law, p. 188, 1987 Edition). His order recalling the petitioner to the home office, having been affirmed by
the President, any doubts as to its validity and propriety have thereby been laid to rest.
WHEREFORE, Administrative Order No. 122 of the Office of the President, insofar as it finds the petitioner guilty of dishonesty and reprimands her therefor, is hereby
set aside. However, the order recalling her to the home office in Manila is affirmed. No costs.
[G.R. No. 97765. September 24, 1992.]

KHOSROW MINUCHER, Petitioner, v. THE HONORABLE COURT OF APPEALS and ARTHUR W. SCALZO, JR., Respondents.

De Leon, De Leon, Casanova Associates for Petitioner.

Luna, Sison, & Manas for Private Respondent.

SYLLABUS

1. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; DISMISSAL OF ACTION BASED ON ERRONEOUS ASSUMPTION, A GRAVE ABUSE OF DISCRETION. — While the
trial court correctly denied the motion to dismiss, the public respondent gravely abused its discretion in dismissing Civil Case No. 88-45691 on the basis of an
erroneous assumption that simply because of the Diplomatic Note, the private respondent is clothed with diplomatic immunity, thereby divesting the trial court of
jurisdiction over his person. Private respondent himself, in his Pre-trial Brief filed on 13 June 1990, unequivocally states that he would present documentary evidence
consisting of DEA records on his investigation and surveillance of plaintiff and on his position and duties as DEA special agent in Manila. Having thus reserved his right
to present evidence in support of his position, which is the basis for the alleged diplomatic immunity, the barren self-serving claim in the belated motion to dismiss
cannot be relied upon for a reasonable, intelligent and fair resolution of the issue of diplomatic immunity. The public respondent then should have sustained the trial
court’s denial of the motion to dismiss. Verily, such should have been the most proper and appropriate recourse. It should not have been overwhelmed by the self-
serving Diplomatic Note whose belated issuance is even suspect and whose authenticity has not yet been proved. The undue haste with which respondent Court
yielded to the private respondent’s claim is arbitrary.

2. ID.; ACTIONS; MOTION TO DISMISS; GROUNDS; LACK OF CAUSE OF ACTION WHERE DEFENDANT IS A DIPLOMAT. — It may at once be stated that even if the private
respondent enjoys diplomatic immunity, a dismissal of the case cannot be ordered on the ground of lack of jurisdiction over his person, but rather for lack of a cause
of action because even if he committed the imputed act and could have been otherwise made liable therefor, his immunity would bar any suit against him in
connection therewith and would prevent recovery of damages arising therefrom.

3. ID.; ID.; JURISDICTION OVER THE PERSON, HOW ACQUIRED; CASE AT BAR. — Jurisdiction over the person of the defendant is acquired either by his voluntary
appearance or by the service of summons upon him. While in the instant case, private respondent’s counsel filed, on 26 October 1988, a motion to quash summons
because being outside the Philippines and being a non-resident alien, he is beyond the processes of the court, which was properly denied by the trial court, he had in
effect already waived any defect in the service of the summons by earlier asking, on two (2) occasions, for an extension of time to file an answer, and by ultimately
filing an Answer with Counterclaim. There is no question that the trial court acquired jurisdiction over the person of the private Respondent.

4. ID.; ID.; MOTION TO DISMISS; CASE SHOULD NOT BE DISMISSED WHERE THERE IS SUFFICIENT ALLEGATION OF PERSONAL LIABILITY OF DEFENDANT; CASE AT BAR.
— And now to the core issue — the alleged diplomatic immunity of the private Respondent. Setting aside for the moment the issue of authenticity raised by the
petitioner and the doubts that surround such a claim, in view of the fact that it took private respondent one (1) year, eight (8) months and seventeen (17) days from
the time his counsel filed on 12 September 1988 a Special Appearance and Motion asking for a first extension of time to file the Answer because the Departments of
State and Justice of the United States of America were studying the case for the purpose of determining his defenses, before he could secure the Diplomatic Note
from the U.S. Embassy in Manila, and even granting for the sake of argument that such note is authentic, the complaint for damages filed by the petitioner still cannot
be peremptorily dismissed. Said complaint contains sufficient allegations which indicate that the private respondent committed the imputed acts in his personal
capacity and outside the scope of his official duties and functions. As described in the complaint, he committed criminal acts for which he is also civilly liable. In the
Special Appearance to Quash Summons earlier alluded to, on the other hand, private respondent maintains that the claim for damages arose "from an alleged tort."
 22

Whether such claim arises from criminal acts or from tort, there can be no question that private respondent was sued in his personal capacity for acts committed
outside his official functions and duties. In the decision acquitting the petitioner in the criminal case involving the violation of the Dangerous Drugs Act, copy of which
is attached to his complaint for damages and which must be deemed as an integral part thereof, the trial court gave full credit to petitioner’s theory that he was a
victim of a frame-up instigated by the private Respondent. Thus, there is a prima facie showing in the complaint that indeed private respondent could be held
personally liable for the acts committed beyond his official functions or duties.

DECISION

DAVIDE, JR., J.:

May a complaint for damages be dismissed on the sole basis of a statement contained in a Diplomatic Note, belatedly issued after an answer to the said complaint
had already been filed, that the defendant was a member of the diplomatic staff of the United States Diplomatic Mission in the Philippines at the time the cause of
action accrued?

This is the issue in the instant petition.

On 3 August 1988, petitioner filed with the Regional Trial Court (RTC) of Manila a complaint for damages against private respondent Arthur Scalzo, Jr. The case was
docketed as Civil Case No. 88-45691 and was raffled off to Branch 19 of said court. 1 Petitioner alleges therein that he was the Labor Attache of the Embassy of Iran in
the Philippines "prior to the Ayatollah Khomeini regime." On 13 May 1986, private respondent, then connected with the American Embassy in Manila, was introduced
to him by a certain Jose Iñigo, an informer belonging to the military intelligence community, with whom petitioner had several business transactions involving Iranian
products like carpets, caviar and others. Iñigo had previously sought petitioner’s assistance in connection with charges of illegal recruitment. According to Iñigo,
private respondent was purportedly interested in buying Iranian products, namely caviar and carpets. On this same occasion, petitioner complained to the private
respondent about the problems the former was then encountering with the American Embassy regarding the expired visas of his wife and fellow Iranian, Abbas
Torabian. Offering his help, private respondent gave the petitioner a calling card showing that the former is an agent of the Drug Enforcement Administration (DEA),
Department of Justice, of the United States of America assigned to the American Embassy in Manila with official contacts with a certain Col. Dumlao; head of the Anti-
Narcotics Command, Philippine Constabulary. Private respondent also expressed his intent to purchase two (2) kilos of caviar worth P10,000.00 and informed the
petitioner that he might have prospective buyers for these goods; he further promised to arrange for the renewal of the aforesaid visas for a $2,000.00 fee. On 19
May 1986, private respondent invited petitioner to dinner at Mario’s Restaurant in Makati, Metro Manila; the petitioner accepted. During the said dinner held the
very next day, both discussed politics and business. Specifically, private respondent told petitioner that he wanted to purchase an additional two hundred (200) grams
of caviar and inquired about his commission for selling petitioner’s carpets; petitioner promised a 10% commission based on profits.chanrobles.com.ph : virtual law
library

In the evening of 26 May 1986, private respondent came to petitioner’s residence and asked to be entrusted with a pair of Persian silk carpets with a floor Price of
$24,000.00 each, for which he had a buyer. The following day, private respondent returned to petitioner’s residence, took the carpets and gave the latter $24,000.00;
after about an hour, private respondent returned, claimed that he had already made arrangements with his contacts at the American Embassy concerning the visas
and asked for $2,000.00. He was given this amount. It turned out, however, that private respondent had prepared an elaborate plan to frame-up the petitioner and
Abbas Torabian for alleged heroin trafficking; both were falsely arrested by private respondent and some American and Filipino police officers, and were taken to
Camp Crame in their underwear. Private respondent and his companions took petitioner’s three (3) suitcases containing various documents, his wallet containing
money and the keys to his house and car, as well as the $24,000.00 which private respondent had earlier delivered to him. Petitioner and Torabian were handcuffed
together for three (3) days and were not given food and water; they were asked to confess to the possession of heroin or else they would be jailed or even executed
by Iranian terrorists. Consequently, the two were charged for the violation of Section 4 of R.A. No. 6425 (Dangerous Drugs Act of 1972) before the Regional Trial Court
of Pasig. They were, however, acquitted by the said court on 8 January 1988. Private respondent testified for the prosecution in the said case.

Petitioner further alleges in his complaint that private respondent falsely testified against him in the criminal case. The former also avers that charges of unlawful
arrest, robbery and estafa or swindling have already been filed against the private Respondent.

He therefore prays for actual and compensatory damages of not less than P480,000,00 ($24,000.00) representing the fair market value of the Persian silk carpet and
$2,000.00 representing the refund of the amount he had given for the visas; moral damages in the amount of P5 million; exemplary damages in the sum of
P100,000.00 and attorney’s fees of at least P200,000.00 to answer for litigation expenses incurred for his defense in the criminal case and for the prosecution of the
civil case.chanrobles law library

On 14 September 1988, private respondent’s counsel, the law firm LUNA, SISON AND MANAS, filed a Special Appearance and Motion alleging therein that since the
private respondent is an agent of the Drug Enforcement Administration of the United States of America, and the acts and omissions complained of were performed
by him in the performance of official functions, the case is now under study by the Departments of State and Justice in Washington, D.C. for the purpose of
determining what defenses would be appropriate; said counsel also prayed that the period to answer be extended to 13 October 1988. 2 This prayer was granted in
the 16 September 1988 order of the court.

On 12 October 1988, private respondent’s aforesaid counsel filed another Special Appearance and Motion seeking a further extension of the period to answer to 28
October 1988 because the law firm had not yet received the decision of the Departments of State and Justice. 3

On 27 October 1988, private respondent’s counsel filed a Special Appearance to Quash Summons 4 alleging therein that: "The action being a personal action for
damages arising from an alleged tort, the defendant being outside the Philippines and not being a resident of the Philippines, Defendant is beyond the processes of
this court," and praying that the summons issued be quashed. The trial court denied the motion in its Order of 13 December 1988. 5 Unsatisfied with the said order,
private respondent filed a petition for certiorari with the Court of Appeals which was docketed as C.A.-G R. SP No 17023. In its Decision promulgated on 6 October
1989, the Court of Appeals dismissed the petition for lack of merit. 6 Respondent thus sought a review of the said decision by filing a petition with this Court which
was docketed as G.R. No. 91173. Said petition was however, dismissed by this Court in the Resolution of 20 December 1989 for non-compliance with paragraph 2 of
Circular No. 1-88; moreover, respondent failed to show that the Court of Appeals had committed any reversible error in the questioned judgment. 7
 23

On 9 March 1990, private respondent filed with the trial court his Answer in Civil Case No. 88-46591 8 wherein he denies the material allegations in the complaint,
sets forth the following Affirmative Defenses:jgc:chanrobles.com.ph

"The Complaint fails to state a cause of action: in having plaintiff and Abbas Torabian arrested on May 27, 1986 and detained at Camp Crame; a quantity of heroin,
seized from plaintiff by Philippine police authorities and in seizing the money used in the drug transaction, defendant acted in the discharge of his official duties or
otherwise in the performance of his official functions as agent of the Drug Enforcement Administration, U.S. Department of Justice." 9

and interposes a counterclaim for P100,000.00 to answer for attorney’s fees and the expenses of litigation.chanrobles law library : red

On 13 June 1990, private respondent filed with the trial court the Defendant’s Pre-Trial Brief, 10 the pertinent portions of which read:chanrob1es virtual 1aw library
x x x

"DEFENSES

1. Plaintiff’s complaint is false and malicious;

2. In having a quantity of heroin and the money used in the drug transaction between him and plaintiff seized from plaintiff by P.C. NARCOM, plaintiff (sic) was acting
in the discharge of his official functions as special agent of the Drug Enforcement Administration, U.S. Department of Justice and was then a member of the U.S.
diplomatic mission in the Philippines.

DEFENDANT’S EVIDENCE

Defendant will present:chanrob1es virtual 1aw library

1. His testimony by deposition upon written interrogatories because defendant lives and works outside the Philippines and is not a resident of the Philippines.

2. Documentary evidence, consisting of DEA records on his investigation and surveillance of plaintiff and on his position and duties as DEA special agent in May 1980
in Manila; these will be identified by defendant and possibly by another DEA official." 11

On 14 June 1990, private respondent filed a Motion to Dismiss 12 the case on the ground that as per the copy of Diplomatic Note No. 414 issued by the Embassy of
the United States of America, 13 dated 29 May 1990 and certified to be a true and faithful copy of the original by one Donald K. Woodward, Vice-Consul of the United
States of America on 11 June 1990, 14 the Embassy advised the Department of Foreign Affairs of the Republic of the Philippines that:jgc:chanrobles.com.ph

". . . Arthur W. Scalzo, was a member of the diplomatic staff of the United States diplomatic mission from his arrival in the Philippines on October 14, 1985 until his
departure on August 10, 1988. . . .

. . . in May 1986, with the cooperation of Philippine law enforcement officials and in the exercise of his functions as a member of the mission, Mr. Scalzo investigated
Mr. Khosrow Minucher, the plaintiff in the aforementioned case for allegedly trafficking in a prohibited drug. It is this investigation which has given rise to the
plaintiff’s complaint. The Embassy takes note of the provisions of Article 39(2) of the Vienna Convention on Diplomatic Relations, which provides that Mr. Scalzo
retains immunity from civil suit for acts performed in the exercise of his functions, as is the case here, even though he has departed (sic) the country." chanrobles
virtual lawlibrary

Petitioner opposed the motion.

On 25 June 1990, the trial court issued an order denying the motion for being "devoid of merit." 15

Private respondent then filed with the public respondent Court of Appeals a petition for certiorari, docketed therein as C.A.-G.R. SP No. 22505, to nullify the aforesaid
Order of 25 June 1990.

On 31 October 1990, public respondent promulgated a Decision 16 ordering the dismissal of Civil Case No. 88-45691 due to the trial court’s lack of jurisdiction over
the person of the defendant because the latter possessed diplomatic immunity.

Petitioner’s motion to reconsider the decision was denied in the public respondent’s Resolution of 8 March 1991 because:jgc:chanrobles.com.ph

"When therefore Mr. Scalzo testified in the Criminal Case against Khosrow Minucher it was in connection with his official functions as an agent of the Drug
Enforcement Administration of the United States and member (sic) of the American Mission charged with cooperating with the Philippine law enforcement agency.
He therefore, enjoys immunity from criminal and civil jurisdiction of the receiving State under Article 31 of the Vienna Convention on Diplomatic Relations." 17

Hence, this petition for review under Rule 45 of the Rules of Court. Petitioner declares that the public respondent erred:jgc:chanrobles.com.ph

"I. . . . IN NOT DISMISSING THE PETITION FOR CERTIORARI FILED BY SCALZO.

II. . . . IN RULING THAT PRIVATE RESPONDENT SCALZO IS A DIPLOMAT IMMUNE FROM CIVIL SUIT CONFORMABLY WITH THE VIENNA CONVENTION ON DIPLOMATIC
RELATIONS.

III. . . . IN NOT FINDING THAT SCALZO’S PARTICIPATION IN THE BUY-BUST OPERATION IS OUTSIDE OF HIS OFFICIAL FUNCTIONS, HENCE, THAT HE IS NOT IMMUNE
FROM SUIT UNDER THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS." 18
 24

After private respondent filed his Comment to the petition and the petitioner submitted his Reply thereto, this Court gave due course to the same and required the
parties to submit their respective Memoranda, which they subsequently did.

We find merit in the petition.

While the trial court correctly denied the motion to dismiss, the public respondent gravely abused its discretion in dismissing Civil Case No 88-45691 on the basis of
an erroneous assumption that simply because of the Diplomatic Note, the private respondent is clothed with diplomatic immunity, thereby divesting the trial court of
jurisdiction over his person. It may at once be stated that even if the private respondent enjoys diplomatic immunity, a dismissal of the case cannot be ordered on the
ground of lack of jurisdiction over his person, but rather for lack of a cause of action because even if he committed the imputed act and could have been otherwise
made liable therefor, his immunity would bar any suit against him in connection therewith and would prevent recovery of damages arising therefrom. Jurisdiction
over the person of the defendant is acquired either by his voluntary appearance or by the service of summons upon him. While in the instant case, private
respondent’s counsel filed, on 26 October 1988, a motion to quash summons because being outside the Philippines and being a non-resident alien, he is beyond the
processes of the court, which was properly denied by the trial court, he had in effect already waived any defect in the service of the summons by earlier asking, on
two (2) occasions, for an extension of time to file an answer, and by ultimately filing an Answer with Counterclaim. There is no question that the trial court acquired
jurisdiction over the person of the private Respondent.cralawnad

And now to the core issue — the alleged diplomatic immunity of the private Respondent. Setting aside for the moment the issue of authenticity raised by the
petitioner and the doubts that surround such a claim, in view of the fact that it took private respondent one (1) year, eight (8) months and seventeen (17) days from
the time his counsel filed on 12 September 1988 a Special Appearance and Motion asking for a first extension of time to file the Answer because the Departments of
State and Justice of the United States of America were studying the case for the purpose of determining his defenses, before he could secure the Diplomatic Note
from the U.S. Embassy in Manila, and even granting for the sake of argument that such note is authentic, the complaint for damages filed by the petitioner still cannot
be peremptorily dismissed. Said complaint contains sufficient allegations which indicate that the private respondent committed the imputed acts in his personal
capacity and outside the scope of his official duties and functions. As described in the complaint, he committed criminal acts for which he is also civilly liable. In the
Special Appearance to Quash Summons earlier alluded to, on the other hand, private respondent maintains that the claim for damages arose "from an alleged tort."
Whether such claim arises from criminal acts or from tort, there can be no question that private respondent was sued in his personal capacity for acts committed
outside his official functions and duties. In the decision acquitting the petitioner in the criminal case involving the violation of the Dangerous Drugs Act, copy of which
is attached to his complaint for damages and which must be deemed as an integral part thereof, the trial court gave full credit to petitioner’s theory that he was a
victim of a frame-up instigated by the private Respondent. Thus, there is a prima facie showing in the complaint that indeed private respondent could be held
personally liable for the acts committed beyond his official functions or duties.

In Shauf v. Court of Appeals, 19 after citing pertinent authorities, 20 this Court ruled:chanrobles lawlibrary : rednad

"The aforecited authorities are clear on the matter. They state that the doctrine of immunity from suit will not apply and may not be involved where the public official
is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the
moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in
him. It is a well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done
with malice and in bad faith, or beyond the scope of his authority or jurisdiction (Dumlao v. Court of Appeals, Et Al., 114 SCRA 247 [1982])."cralaw virtua1aw library

Even Article 31 of the Vienna Convention on Diplomatic Relations admits of exceptions. It reads:jgc:chanrobles.com.ph

"1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative
jurisdiction except in the case of:chanrob1es virtual 1aw library
x x x

(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. (Emphasis
supplied).

There is of course the claim of private respondent that the acts imputed to him were done in his official capacity. Nothing supports this self-serving claim other than
the so-called Diplomatic Note. In short, insofar as the records are concerned, private respondent did not come forward with evidence to prove that indeed, he had
acted in his official capacity. It does not appear that an actual hearing on the motion to dismiss was conducted and that private respondent offered evidence in
support thereof. Thus, it is apropos to quote what this Court stated in United States of America v. Guinto: 21

"But even as we are certain that the individual petitioners in G.R. No. 80018 were acting in the discharge of their official functions, we hesitate to make the same
conclusion in G.R. No. 80258. The contradictory factual allegations in this case deserve in our view a closer study of what actually happened to the plaintiffs. The
record is too meager to indicate if the defendants were really discharging their official duties or had actually exceeded their authority when the incident in question
occurred. Lacking this information, this Court cannot directly decide this case. The needed inquiry must first be made by the lower court so it may assess and resolve
the conflicting claims of the parties on the basis of the evidence that has yet to be presented at the trial. Only after it shall have determined in what capacity the
petitioners were acting at the time of the incident in question will this Court determine, if still necessary, if the doctrine of state immunity is applicable."cralaw
virtua1aw library

It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13 June 1990, unequivocally states that he would present
documentary evidence consisting of DEA records on his investigation and surveillance of plaintiff and on his position and duties as DEA special agent in Manila. Having
thus reserved his right to present evidence in support of his position, which is the basis for the alleged diplomatic immunity, the barren self-serving claim in the
belated motion to dismiss cannot be relied upon for a reasonable, intelligent and fair resolution of the issue of diplomatic immunity.

The public respondent then should have sustained the trial court’s denial of the motion to dismiss. Verily, such should have been the most proper and appropriate
recourse. It should not have been overwhelmed by the self-serving Diplomatic Note whose belated issuance is even suspect and whose authenticity has not yet been
proved. The undue haste with which respondent Court yielded to the private respondent’s claim is arbitrary.
 25

WHEREFORE, the challenged decision of public respondent of 31 October 1990 in C.A.-G.R. SP No. 22505 is SET ASIDE and the Order of 25 June 1990 of Branch 19 of
the Regional Trial Court of Manila in Civil Case No. 88-45691 denying private respondent’s Motion to Dismiss is hereby REINSTATED.
G.R. No. 90314 November 27, 1990
LOIDA Q. SHAUF and JACOB SHAUF, Petitioners,
vs.
HON. COURT OF APPEALS, DON E. DETWILER and ANTHONY PERSI, Respondents.
REGALADO, J.:
In this petition for review on certiorari, petitioners would have us reverse and set aside the decision rendered by respondent Court of Appeals on August 22, 1989, in
CA-G.R. CV No. 17932, entitled "Loida Shauf and Jacob Shauf, Plaintiffs-Appellants, versus Don Detwiler and Anthony Persi, Defendants-Appellants,"1 dismissing
petitioners’ complaint for damages filed before the Regional Trial Court, Branch LVI, Angeles City, in Civil Case No. 2783 thereof, and its subsequent resolution
denying petitioners’ motion for the reconsideration of its aforesaid decision.
As found by respondent court,2 Clark Air Base is one of the bases established and maintained by the United States by authority of the agreement between the
Philippines and the United States concerning military bases which entered into force on March 26, 1947.
The Third Combat Support Group, a unit of Clark Air Base, maintains a Central Civilian Personnel Office (CCPO) charged with the responsibility for civilian personnel
management and administration. It is through its civilian personnel officer that the base commander is responsible for direction and administration of civilian
personnel program, including advising management and operating officials on civilian personnel matters. Acting for the commander, the civilian personnel officer is
the administrative official in charge of the activities of the CCPO, and the commander relies on him to carry out all aspects of the civilian personnel program. The
CCPO personnel program encompasses placement and staffing, position management and classification.
The Third Combat Support Group also maintains an Education Branch, Personnel Division, which provides an education program for military personnel, U.S. civilian
employees, and adult dependents, assigned or attached to Clark Air Base. Its head, the education director, is responsible directly to the base director of personnel for
administering the education services program for Clark Air Base. In this capacity, and within broad agency policies, is delegated to him the full responsibility and
authority for the technical, administrative and management functions of the program. As part of his duties, the education director provides complete academic and
vocational guidance for military dependents, including counseling, testing and test interpretation. During the time material to the complaint, private respondent Don
Detwiler was civilian personnel officer, while private respondent Anthony Persi was education director.3
Petitioner Loida Q. Shauf, a Filipino by origin and married to an American who is a member of the United States Air Force, applied for the vacant position of Guidance
Counselor, GS17109, in the Base Education Office at Clark Air Base, for which she is eminently qualified. As found by the trial court, she received a Master of Arts
degree from the University of Sto. Tomas, Manila, in 1971 and has completed 34 semester hours in psychology-guidance and 25 quarter hours in human behavioral
science; she has also completed all course work in human behavior and counseling psychology for a doctoral degree; she is a civil service eligible; and, more
importantly, she had functioned as a Guidance Counselor at the Clark Air Base at the GS 1710-9 level for approximately four years at the time she applied for the
same position in 1976.4
By reason of her non-selection to the position, petitioner Loida Q. Shauf filed an equal employment opportunity complaint against private respondents, for alleged
discrimination against the former by reason of her nationality and sex. The controversy was investigated by one Rudolph Duncan, an appeals and grievance examiner
assigned to the Office of Civilian Personnel Operations, Appellate Division, San Antonio, Texas, U.S.A. and what follows are taken from his findings embodied in a
report duly submitted by him to the Equal Opportunity Officer on February 22, 1977.5
On or about October 1976, the position of Guidance Counselor, GS 1710-9, became vacant in the Base Education Office, Clark Air Base. A standard Form 52 was
submitted to the Civilian Personnel Office to fill said position. The Civilian Personnel Division took immediate steps to fill the position by advertisement in the Clark Air
Base Daily Bulletin #205 dated October 21, 1976. As a result of the advertisement, one application was received by the Civilian Personnel Office and two applications
were retrieved from the applicants supply file in the Civilian Personnel Office. These applications were that of Mrs. Jean Hollenshead, an employee of the DOD
Schools at Clark Air Base, Mrs. Lydia B. Gaillard, an unemployed dependent, and Mrs. Loida Q. Shauf. All three applications were reviewed and their experiences were
considered qualifying for the advertised position.
On November 11, 1976, the application of Loida Q. Shauf was referred to Mr. Anthony Persi, with the applications of Mrs. Jean Hollenshead and Mrs. Lydia Gaillard,
to be considered for the position of Guidance Counselor, GS 1710-9, Mr. Persi, after review of the applications, stated that upon screening the applications he
concluded that two applicants had what he considered minimum qualifications for the position. The two applicants were Mrs. Hollenshead and Mrs. Gaillard. In the
case of Loida Q. Shauf, Mr. Persi felt that her application was quite complete except for a reply to an inquiry form attached to the application. This inquiry form stated
that the National Personnel Records Center, St. Louis, Missouri, was unable to find an official personnel folder for Loida Q. Shauf. Mr. Persi said that as a result of the
National Personnel Records Center, GSA, not being able to find any records on Loida Q. Shauf, this raised some questions in his mind as to the validity of her work
experience. As a result of his reservations on Loida Q. Shauf’s work experience and his conclusions that the two other applications listed minimum qualifications, Mr.
Persi decided to solicit additional names for consideration.
Subsequently in his correspondence dated November 12, 1976, Mr. Persi returned the three applications to the Civilian Personnel Office without a selection decision.
Mr. Persi also requested in his correspondence that the Civilian Personnel Office initiate immediate inquiry to the Central Oversea Rotation and Recruiting Office
(CORRO) for the submission of a list of highly qualified candidates. He further stated in his correspondence that the three applicants who had indicated an interest
would be considered with the CORRO input for selection.
As a result of Mr. Persi’s request, an AF Form 1188 "Oversea Civilian Personnel Request" was submitted to CORRO on November 12, 1976. This request in fact asked
for one Guidance Counselor, GS 1710-9. The form listed the fact that local candidates are available. However, instead of getting a list of candidates for consideration,
Mr. Persi was informed by CORRO, through the Civilian Personnel Office in their December 15, 1976 message that a Mr. Edward B. Isakson from Loring AFB, Maine,
was selected for the position. Mr. Persi stated, when informed of CORRO’s selection, that he had heard of Mr. Isakson and, from what he had heard, Mr. Isakson was
highly qualified for the position; therefore, he wished to have the selection stand. This statement was denied by Mr. Persi. Mr. Isakson was placed on the rolls at Clark
Air Base on January 24, 1977.6
Said examiner, however, also stated in his findings that, by reason of petitioner Loida Q. Shauf’s credentials which he recited therein, she is and was at the time of the
vacancy,7 highly qualified for the position of Guidance Counselor, GS 1710-9. In connection with said complaint, a Notice of Proposed Disposition of Discrimination
Complaint, dated May 16, 1977,8 was served upon petitioner Loida Q. Shauf stating that because the individual selected did not meet the criteria of the qualification
requirements, it was recommended "that an overhire GS 1710-9 Assistant Education Advisor position be established for a 180 day period. x x x. The position should
be advertised for local procurement on a best qualified basis with the stipulation that if a vacancy occurs in a permanent GS 1710-9 position the selectee would
automatically be selected to fill the vacancy. If a position is not vacated in the 180 day period the temporary overhire would be released but would be selected to fill a
future vacancy if the selectee is available."
During that time, private respondents already knew that a permanent GS 1710-9 position would shortly be vacant, that is, the position of Mrs. Mary Abalateo whose
appointment was to expire on August 6, 1977 and this was exactly what private respondent Detwiler had in mind when he denied on June 27, 1977 Mrs. Abalateo’s
request for extension of March 31, 1977. However, private respondents deny that Col. Charles J. Corey represented to petitioner Loida Q. Shauf that she would be
appointed to the overhire position and to a permanent GS 1710-9 position as soon as it became vacant, which allegedly prompted the latter to accept the proposed
disposition.
 26

Contrary to her expectations, petitioner Loida Q. Shauf was never appointed to the position occupied by Mrs. Abalateo whose appointment was extended indefinitely
by private respondent Detwiler.9
Feeling aggrieved by what she considered a shabby treatment accorded her, petitioner Loida Q. Shauf wrote the U.S. Civil Service Commission questioning the
qualifications of Edward Isakson. Thereafter, said commission sent a communication addressed to private respondent Detwiler, 10 finding Edward Isakson not qualified
to the position of Guidance Counselor, GS 1710-9, and requesting that action be taken to remove him from the position and that efforts be made to place him in a
position for which he qualifies. Petitioner Loida Q. Shauf avers that said recommendation was ignored by private respondent Detwiler and that Isakson continued to
occupy said position of guidance counselor.
Petitioner Loida Q. Shauf likewise wrote the Base Commander of Clark Air Base requesting a hearing on her complaint for discrimination. Consequently, a hearing was
held on March 29, 1978 before the U.S. Department of Air Force in Clark Air Base.11
Before the Department of Air Force could render a decision, petitioner Loida Q. Shauf filed a complaint for damages, dated April 27, 1978, against private
respondents Don Detwiler and Anthony Persi before the Regional Trial Court, Branch LVI at Angeles City, docketed as Civil Case No. 2783, for the alleged
discriminatory acts of herein private respondents in maliciously denying her application for the GS 1710-9 position.
Private respondents, as defendants in Civil Case No. 2783, filed a motion to dismiss on the ground that as officers of the United States Armed Forces performing
official functions in accordance with the powers vested in them under the Philippine-American Military Bases Agreement, they are immune from suit. The motion to
dismiss was denied by the trial court. A motion for reconsideration was likewise denied.
Consequently, private respondents filed an Answer reiterating the issue of jurisdiction and alleging, inter alia, that defendant Persi’s request to Central Oversea
Rotation and Recruiting Office (CORRO) was not for appointment of a person to the position of Guidance Counselor, GS 1710-9, but for referrals whom defendant
Persi would consider together with local candidates for the position; that the extension of the employment of Mrs. Abalato was in accordance with applicable
regulation and was not related to plaintiff Loida Q. Shauf’s discrimination complaint; that the decision was a joint decision of management and CCPO reached at a
meeting on June 29, 1977 and based on a letter of the deputy director of civilian personnel, Headquarters Pacific Air Forces, dated June 15, 1977; and that the ruling
was made known to and amplified by the director and the deputy director of civilian personnel in letters to petitioner Loida Q. Shauf dated August 30, 1977 and
September 19, 1977.
The parties submitted a Partial Stipulation of Facts in the court a quo providing, in part, as follows:
a) In October 1976, the position of guidance counselor, GS-1710-9, at Clark Air Base was vacant;
b) Plaintiff Loida Q, Shauf, a qualified dependent locally available, was among those who applied for said vacant position of guidance counselor, GS-1710-9;
c) Plaintiff Loida Q. Shauf at the time she filed her aforesaid application was qualified for the position of guidance counselor, GS-1710-9;
d) Civilian Personnel Office accomplished and forwarded to CORRO an AF Form 1188 covering the position of guidance counselor, GS-1710-9, applied for
by plaintiff Loida Q. Shauf;
e) U.S. Department of Defense Instructions (DODI) No. 1400.23 under Policy and Procedures provides that-
"Where qualified dependents of military or civilian personnel of the Department of Defense are locally available for appointment to positions in foreign areas which
are designated for U.S. citizen occupancy and for which recruitment outside the current work force is appropriate, appointment to the position will be limited to such
dependents unless precluded by treaties or other agreements which provide for preferential treatment for local nationals."
And Air Force Regulation 40-301 dated 12 May 1976 in par. 2 c (1) thereof provides that-
"c. Selection or Referral of Eligible Applicants From the 50 States:
(1)CORRO makes selection, except as provided in (3) below, for oversea positions of Grades GS-11 and below (and wage grade equivalents) for which it has
received an AF Form 1188, and for higher grade positions if requested by the oversea activity."12
Likewise, a Supplement to Partial Stipulation of Facts was filed by the parties on October 6, 1978, which reads:
1. Under date of 30 September 1978, plaintiff Loida Q. Shauf through her counsel, Quasha Asperilla Ancheta Valmonte Peña & Marcos, lodged an appeal before the
Civil Service Commission, Appeals Review Board, from the decision of the Secretary of the Air Force dated 1 September 1978 affirming the EEO Complaints Examiner’s
Findings and Recommended Decision in the Discrimination Complaint of Mrs. Loida Q. Shauf, No. SF 071380181 dated 3 July 1978, x x x;
2. The aforesaid appeal has not been decided up to now by the Civil Service Commission, Appeals Review Board; and
3. Plaintiff Loida Q. Shauf has not instituted any action before any federal district court of the United States impugning the validity of the decision of the Secretary of
the Air Force dated 1 September 1978 affirming the EEO Complaints Examiner’s Findings and Recommended Decision in the Discrimination Complaint of Mrs. Loida
Q. Shauf, No. SF 071380181 dated 3 July 1978.13
Thereafter, on March 8, 1988, the trial court rendered judgment in favor of herein petitioner Loida Q. Shauf, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered ordering the defendants jointly and severally to pay the plaintiffs:
1) The amount $39,662.49 as actual damages or its equivalent in Philippine pesos in October 1976 as reported by the Central Bank of the Philippines or any
authorized agency of the Government;
2) The amount of P100,000.00 as moral and exemplary damages;
3) Twenty (20%) percent of $39,662.49 or its equivalent in Philippine Pesos in October 1976 as reported by the Central Bank of the Philippines or any
authorized agency of the Government, as attorney’s gees, and;
4) Cost(s) of suit.
SO ORDERED.14
Both parties appealed from the aforecited decision to respondent Court of Appeals.
In their appeal, plaintiffs-appellants (herein petitioners) raised the following assignment of errors:
1. Lower court gravely erred in holding that the actual and exemplary damages and attorney’s fees may be paid in Philippine Pesos based on the exchange
rate prevailing during October 1976 as determined by the Central Bank;
2. Lower court gravely erred in limiting the amount of moral and exemplary damages recoverable by plaintiff to P100,000.00 15
On the other hand, defendants-appellants (private respondents herein) argued that:
1. The trial court erred in not dismissing the complaint on the ground that defendants-appellants, as officers/officials of the United States Armed Forces,
are immune from suit for acts done or statements made by them in the performance of their official governmental functions in accordance with the
powers possessed by them under the Philippine-American Military Bases Agreement of 1947, as amended;
2. The trial court erred in not dismissing the complaint for a) non-exhaustion of administrative remedies; and b) lack of jurisdiction of the trial court over
the subject matter of the case in view of the exclusive jurisdiction of an appropriate U.S. District Court over an appeal from an agency decision on a
complaint of discrimination under the U.S. Federal Law on Equality of opportunity for civilian employees;
3. The trial court erred in holding that plaintiff-appellant Loida Q. Shauf was refused appointment as guidance counselor by the defendants-appellants on
account of her six (female), color (brown), and national origin (Filipino by birth) and that the trial court erred in awarding damages to plaintiffs-
appellants.16
As stated at the outset, respondent Court of Appeals reversed the decision of the trial court, dismissed herein petitioners’complaint and denied their motion for
reconsideration. Hence this petition, on the basis of he following grounds:
 27

The respondent Honorable Court of Appeals has decided a question of substance not in accord with law and/or with applicable decisions of this Honorable Court.
Respondent court committed grave error in dismissing plaintiffs-appellants’ complaint and-
(a) in holding that private respondents are immune from suit for discriminatory acts performed without or in excess of, their authority as officers of the
U.S. Armed Forces;
(b) for applying the doctrine of state immunity from suit when it is clear that the suit is not against the U.S. Government or its Armed Forces; and
(c) for failing to recognize the fact that the instant action is a pure and simple case for damages based on the discriminatory and malicious acts committed
by private respondents in their individual capacity who by force of circumstance and accident are officers of the U.S. Armed Forces, against petitioner
Loida Shauf solely on account of the latter’s sex (female), color (brown), and national origin (Filipino).17
Petitioners aver that private respondents are being sued in their private capacity for discriminatory acts performed beyond their authority, hence the instant action is
not a suit against the United States Government which would require its consent.
Private respondents, on the other hand, claim that in filing the case, petitioners sought a judicial review by a Philippine court of the official actuations of respondents
as officials of a military unit of the U.S. Air Force stationed at Clark Air Base. The acts complained of were done by respondents while administering the civil service
laws of the United States. The acts sued upon being a governmental activity of respondents, the complaint is barred by the immunity of the United States, as a foreign
sovereign, from suit without its consent and by the immunity of the officials of the United States armed forces for acts committed in the performance of their official
functions pursuant to the grant to the United States armed forces of rights, power and authority within the bases under the Military Bases Agreement. It is further
contended that the rule allowing suits against public officers and employees for unauthorized acts, torts and criminal acts is a rule of domestic law, not of
international law. It applies to cases involving the relations between private suitors and their government or state, not the relations between one government and
another from which springs the doctrine of immunity of a foreign sovereign.
I. The rule that a state may not be sued without its consent, now expressed in Article XVI, Section 3, of the 1987 Constitution, is one of the generally accepted
principles of international law that we have adopted as part of the law of our land under Article II, Section 2. This latter provision merely reiterates a policy earlier
embodied in the 1935 and 1973 Constitutions and also intended to manifest our resolve to abide by the rules of the international community.18
While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts
allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an
affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against
the state itself although it has been formally impleaded.19 It must be noted, however, that the rule is not also all-encompassing as to be applicable under all
circumstances.
It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the rights of plaintiff. As we clearly
set forth by Justice Zaldivar in Director of the Bureau of Telecommunications, et al. Vs. Aligaen, etc., et al.:20 "Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or officers are not acts of the State, and an action against the officials or officers by one whose rights have been
invaded or violated by such acts, for the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it
has been said that an action at law or suit in equity against a State officer or the director of a State department on the ground that, while claiming to act for the State,
he violates or invades the personal and property rights of the plaintiff, under an unconstitutional act or under an assumption of authority which he does not have, is
not a suit against the State within the constitutional provision that the State may not be sued without its consent." 21 The rationale for this ruling is that the doctrine of
state immunity cannot be used as an instrument for perpetrating an injustice.22
In the case of Baer, etc. vs. Tizon, etc., et al.,23 it was ruled that:
There should be no misinterpretation of the scope of the decision reached by this Court. Petitioner, as the Commander of the United States Naval Base in Olongapo,
does not possess diplomatic immunity. He may therefore be proceeded against in his personal capacity, or when the action taken by him cannot be imputed to the
government which he represents.
Also, in animos, et al. Vs. Philippine Veterans Affairs Office, et al.,24 we held that:
"x x x it is equally well-settled that where a litigation may have adverse consequences on the public treasury, whether in the disbursements of funds or loss of
property, the public official proceeded against not being liable in his personal capacity, then the doctrine of non-suability may appropriately be invoked. It has no
application, however, where the suit against such a functionary had to be instituted because of his failure to comply with the duty imposed by statute appropriating
public funds for the benefit of plaintiff or petitioner. x x x.
The aforecited authorities are clear on the matter. They state that the doctrine of immunity from suit will not apply and may not be invoked where the public official
is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the
moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in
him. It is a well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done
with malice and in bad faith, or beyond the scope of his authority or jurisdiction.25
The agents and officials of the United States armed forces stationed in Clark Air Base are no exception to this rule. In the case of United States of America, et al. Vs.
Guinto, etc., et al., ante,26 we declared:
It bears stressing at this point that the above observation do not confer on the United States of America blanket immunity for all acts done by it or its agents in the
Philippines. Neither may the other petitioners claim that they are also insulated from suit in this country merely because they have acted as agents of the United
States in the discharge of their official functions.
II. The court below, in finding that private respondents are guilty of discriminating against petitioner Loida Q. Shauf on account of her sex, color and origin,
categorically emphasized that:
There is ample evidence to sustain plaintiffs’ complaint that plaintiff Loida Q. Shauf was refused appointment as Guidance Counselor by the defendants on account of
her sex, color and origin.
She is a female, brown in color and a Filipino by origin, although married to an American who is a member of the United States Air Force. She is qualified for the
vacant position of Guidance Counselor in the office of the education director at Clark Air Base. She received a Master of Arts Degree from the University of Santo
Tomas, Manila, in 1971 and has completed 34 semester hours in psychology-guidance and 25 quarter hours in human behavioral science. She has also completed all
course work in human behavior and counseling psychology for a doctoral degree. She is a civil service eligible. More important, she had functioned as a Guidance
Counselor at the Clark Air Base at the GS-1710-9 level for approximately four years at the time she applied for the same position in 1976.
In filling the vacant position of Guidance Counselor, defendant Persi did not even consider the application of plaintiff Loida Q. Shauf, but referred the vacancy to
CORRO which appointed Edward B. Isakson who was not eligible to the position.
In defending his act, defendant Persi gave as his excuse that there was a question in his mind regarding validity of plaintiff Loida Q. Shauf’s work experience because
of lack of record. But his assertion is belied by the fact that plaintiff Loida Q. Shauf had previously been employed as Guidance Counselor at the Clark Air Base in 1971
and this would have come out if defendant Persi had taken the trouble of interviewing her. Nor can defendant free himself from any blame for the non-appointment
of plaintiff Loida Q. Shauf by claiming that it was CORRO that appointed Edward B. Isakson. This would not have happened if defendant Persi adhered to the
regulation that limits the appointment to the position of Guidance Counselor, GS-1710-9 to qualified dependents of military personnel of the Department of Defense
 28

who are locally available like the plaintiff Loida Q. Shauf. He should not have referred the matter to CORRO. Furthermore, defendant Persi should have protested the
appointment of Edward B. Isakson who was ineligible for the position. He, however, remained silent because he was satisfied with the appointment.
Likewise, the acts of the defendant Detwiler in rejecting the appointment of plaintiff Loida Q. Shauf were undoubtedly discriminatory.
Plaintiff Loida Q. Shauf twice applied for the position of Guidance Counselor sometime in 1975 and in October 1978. Although she was qualified for the postision, her
appointment was rejected ny the defendant Detwiler. The two who were appointed, a certain Petrucci and Edward B. Isakson, were ordered removed by the U.S. Civil
Service Commission. Instead of replacing Petrucci with the plaintiff Loida Q. Shauf, the defendant Detwiler had the position vacated by Petrucci abolished. And in the
case of Edward Isakson, the defendant Detwiler ignored the order of the U.S. Civil Service Commission to have him removed according to the testimony of plaintiff
Loida Q. Shauf.
In connection with her complaint against the defendants, plaintiff Loida Q. Shauf was presented a Notice of Proposed Disposition of her Discrimination Complaint by
Col. Charles J. Corey, Vice Commander, Third Combat Support Group, Clark Air Base, which would entitle her to a temporary appointment as Guidance Counselor with
the implied assurance that she would be appointed in a permanent capacity in the event of a vacancy.
At the time of the issuance of said Notice, defendants knew that there would be a vacancy in a permanent position as Guidance Counselor occupied by Mrs. Mary
Abalateo and it was understood between Col. Corey and plaintiff Loida Q. Shauf that this position would be reserved for her. Knowing this arrangement, defendant
Detwiler rejected the request for extension of services of Mrs. Mary Abalateo. However, after plaintiff Loida Q. Shauf consented to the terms of the Notice of
Proposed Disposition of her Discrimination Complaint, defendant Detwiler extended the services of Mrs. Mary Abalateo indefinitely. This act barred plaintiff Loida Q.
Shauf from applying for the position of Mrs. Mary Abalateo.
To rebut the evidence of the plaintiffs, defendant cited the findings and conclusions of Mr. Rudolph Duncan, who was appointed to investigate plaintiff Loida Q.
Shauf’s complaint for discrimination and Col. Charles J. Corey, Vice Commander, Third Combat Support Group that defendants were not guilty of Discrimination.
It is pointed out, however, that Mr. Rudolph Duncan found plaintiff loida Q. Shauf to be highly qualified for the position of Guidance Counselor at the GS-1710-9 level
and that management should have hired a local applicant. While Col. Corey characterized the act of defendant Persi as sloppy and recommend that he be
reprimanded. In any event their findings and conclusions are not binding with this Court.
To blunt the accusation of discrimination against them, defendants maintained that the extension of the appointment of Mrs. Mary Abalateo was a joint decision of
management and Central Civilian Personnel Office, Clark Air Base. Nonetheless, having earlier rejected by himself the request for extension of the services of Mrs.
Mary Abalateo, defendant Detwiler should not have concurred to such an extension as the reversal of his stand gave added substance to the charge of discrimination
against him.
To further disprove the charge that the defendants discriminated against plaintiff Loida Q. Shauf for her non-appointment as Guidance Counselor on account of her
being a Filipino and a female, counsel for the defendants cited the following: (1) that Mrs. Mary Abalateo whose appointment was extended by the defendant
Detwiler is likewise a female and a Filipino by origin; (2) that there are Filipinos employed in the office of the defendant Persi; and (3) that there were two other
women who applied in 1976 with the plaintiff Loida Q. Shauf for the position of Guidance Counselor.
The contention of the defendants based on the allegations enumerated in Nos. 1 and 2 of the preceding paragraph is without merit as there is no evidence to show
that Mrs. Mary Abalateo and the Filipinos in the office of the defendant Persi were appointed by the defendants. Moreover, faced with a choice between plaintiff
Loida Q. Shauf or Mrs. Mary Abalateo, it was to be expected that defendant Detwiler chose to retain Mrs. Mary Abalateo as Guidance Counselor in retaliation for the
complaint of discrimination filed against him by plaintiff Loida Q. Shauf. Finally, as to the contention based on the allegation in No. 3 of the preceding paragraph that
there were two other women applicants in 1976 with plaintiff Loida Q. Shauf, the record reveals that they had minimum qualifications unlike plaintiff Loida Q. Shauf
who was highly qualified.27
Elementary is the rule that the conclusions and findings of fact of the trial court are entitled to great weight on appeal and should not be disturbed unless for strong
and cogent reasons.28 Absent any substancial proof, therefore, that the trial court’s decision was grounded entirely on speculations, surmises or conjectures, the same
must be accorded full consideration and respect. This should be so because the trial court is, after all, in a much better position to observe and correctly appreciate
the respective parties’ evidence as they were presented.29
In the case at bar, there is nothing in the record which suggests any arbitrary, irregular or abusive conduct or motive on the part of the trial judge in ruling that private
respondents committed acts of discrimination for which they should be held personally liable. His conclusion on the matter is sufficiently borne out by the evidence
on record. We are thus constrained to uphold his findings of fact.
Respondent Court of Appeals, in its questioned decision, states that private respondents did, in fact, discriminate against petitioner Loida Q. Shauf. However, it
deemed such acts insufficient to prevent an application of the doctrine of state immunity, contrary to the findings made by the trial court. It reasons out that "the
parties invoked are all American citizens (although plaintiff is a Filipina by origin) and the appointment of personnel inside the base is clearly a sovereign act of the
United States. This is an internal affair in which we cannot interfere without having to touch some delicate constitutional issues."30 In other words, it believes that the
alleged discriminatory acts are not so grave in character as would justify the award of damages.
In view of the apparent discrepancy between the findings of fact of respondent Court of Appeals and the trial court, we are tasked to review the evidence in order to
arrive at the correct findings based on the record. A consideration of the evidence presented supports our view that the court a quo was correct in holding herein
private respondents personally liable and in ordering the indemnification of petitioner Loida Q. Shauf. The records are clear that even prior to the filing of the
complaint in this case, there were various reports and communications issued on the matter which, while they make no categorical statement of the private
respondents’ liability, nevertheless admit of facts from which the intent of private respondents to discriminate against Loida Q. Shauf is easily discernible. Witness the
following pertinent excerpts from the documents extant in the folder of Plaintiff’s Exhibits:
1. Notice of Proposed Disposition of Discrimination Complaint, dated May 16, 1977 (Exhibit "G").
B. Mr. Anthony Persi was totally inept in the recruitment practices employed in attempting on fill the GS 1710-9 Assistant Education applicable DOD regulations. In
addition, he failed to conduct an interview of qualified personnel in the local environment and when the qualifications of the complainant (sic) were questioned by
Mr. Persi he did not request a review by the CCPO nor request an interview with the complainant (sic). Mr. Persi failed to follow Department of Defense Instructions
Number 1400.23, under Policy and Procedures which states-"Where qualified dependents of military or civilian personnel of the Department of Defense are locally
available for appointment to positions in foreign areas which are designated for US citizen occupancy and for which recruitment outside the current work force is
appropriate, appointment to the positions will be limited to such dependents unless precluded by treaties or other agreements which provide for preferential
treatment for local nationals." Attachment to Air Force Supplement to FFM 213.2106 (b) (6) lists the positions of Guidance Counsellor, GS 1710-9, as positions to be
filled by locally available dependents. An added point is the lack of qualifications of the individual selected for the GS 1710-9 positions as outlined under X-118 Civil
Service Handbook. x x x31
2. Letter of the Director of the U.S. Civil Service Commission, San Francisco Region, dated October 27, 1977, addressed to Mr. Don Detwiler, concerning Mr. Edward B.
Isakson whose file was reviewed by the Commission (Exhibit "K").
The position of Guidance Counsellor is one for which the Commission has established a mandatory education requirement that may not be waived. An individual may
not be assigned to such a position without meeting the minimum qualification requirements. The requirements, as given in Handbook X-118, are completion of all
academic requirements for a bachelor’s degree from an accredited college or university and successful completion of a teacher education program under an
"approved program" or successful completion of required kinds of courses.
 29

On review of his record, we find that Mr. Isakson has a bachelor’s degree but he does not show completion of a teacher education program. To qualify for Guidance
Counselor on the basis of coursework and semester hour credit, he would need to have 24 semester hours in Education and 12 semester hours in a combination of
Psychology and Guidance subjects directly related to education. We do not find that he meets these requirements.
xxx
We can appreciate the fact that Mr. Isakson may be working toward meeting the Guidance Counselor requirements. Nonetheless, he does not appear to meet them
at this time. We must, therefore, request that action be taken to remove him from the position and that efforts be made to place him in a position for which he
qualifies.32
3. Letter of the Staff Judge Advocate of the Department of the Airforce addressed to Mr. Detwiler, dated January 25, 1977 (Exhibit "L").
1. The attached memo from Captain John Vento of this office is forwarded for your review and any action you deem appropriate. I concur with his
conclusion that there is no evidence of sex or ethnic bias in this matter. I also concur, however, that there were certain irregularities in the handling of this
selection.
xxx
3. Considering the above, it is most unfortunate that the filing of this latest Guidance Counselor vacancy was not handled wholly in accordance with
prescribed policies and regulations. This is not to suggest that Mrs. Shauf should necessarily have been hired. But, she and other qualified candidates
should have been given the consideration to which they were entitled. (At no time now or in the past have Mrs. Shauf’s qualifications ever been
questioned.) Had that happened and management chose to select some qualified candidate other than Mrs. Shauf, there would be no basis for her
complaint.
4. It is my understanding that Mrs. Shauf has filed a formal EEO complaint. While I am convinced that there was no discrimination in this case, my
experience with EEO complaints teaches me that, if Civil Service Commission finds that nonselection resulted from any kind of management malpractice, it
is prone to brand it as a "discriminatory practice." This usually results in a remedial order which can often be distasteful to management. x x x.33
The initial burden is on the plaintiff to establish a prima facie case or discrimination. Once the discriminatory act is proven, the burden shifts to the defendant to
articulate some legitimate, undiscriminatory reason for the plaintiff’s rejection.34 Any such justification is wanting in the case at bar, despite the prima facie case for
petitioner Loida Q. Shauf. Private respondents’ defense is based purely on outright denials which are insufficient to discharge the onus probandi imposed upon them.
They equally rely on the assertion that they are immune from suit by reason of their official functions. As correctly pointed out by petitioners in their Memorandum,
the mere invocation by private respondents of the official character of their duties cannot shield them from liability especially when the same were clearly done
beyond the scope of their authority, again citing the Guinto, case, supra:
The other petitioners in the case before us all aver they have acted in the discharge of their official functions as officers or agents of the United States. However, this
is a matter of evidence. The charges against them may not be summarily dismissed on their mere assertion that their acts are imputable to the United States of
America, which has not given its consent to be sued. In fact, the defendants are sought to be held answerable for personal torts in which the United States itself is not
involved. If found liable, they and they alone must satisfy the judgment.
III. Article XIII, Section 3, of the 1987 Constitution provides that the State shall afford full protection to labor, local and overseas, organized and unorganized, and
promote full employment and equality of employment opportunities for all. This is a carry-over from Article II, Section 9, of the 1973 Constitution ensuring equal
work opportunities regardless of sex, race, or creed.
Under the Constitution of the United States, the assurance of equality in employment and work opportunities regardless of sex, race, or creed is also given by the
equal protection clause of the Bill of Rights. The 14th Amendment, in declaring that no state shall deprive a person of his life, liberty, or property without due process
of law or deny to any person within its jurisdiction the equal protection of the laws, undoubtedly intended not only that there should be no arbitrary spoliation of
property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights, and that all persons
should be equally entitled to pursue their happiness ands acquire and enjoy property. It extends its protection to all persons without regard to race, color, or class. It
means equality of opportunity to all in like circumstances.35
The words "life, liberty, and property" as used in constitutions are representative terms and are intended to cover every right to which a member of the body politic
in entitled under the law. These terms include the right of self-defense, freedom of speech, religious and political freedom, exemption from arbitrary arrests, the right
to freely buy and sell as others may, the right to labor, to contract, to terminate contracts, to acquire property, and the right to all our liberties, personal, civil and
political-in short, all that makes life worth living.36
There is no doubt that private respondents Persi and Detwiler, in committing the acts complained of have, in effect, violated the basic constitutional right of
petitioner Loida Q. Shauf to earn a living which is very much an integral aspect of the right to life. For this, they should be held accountable.
While we recognize petitioner Loida Q. Shauf’s entitlement to an award of moral damages, we however find no justification for the award of actual or compensatory
damages, based on her supposedly unearned income from March, 1975 up to April, 1978 in the total amount of $39,662.49, as erroneously granted by the trial court.
Evidence that the plaintiff could have bettered her position had it not been for the defendants’ wrongful act cannot serve as basis for an award of damages, because
it is highly speculative.37 Petitioner Loida Q. Shauf’s claim is merely premised on the possibility that had she been employed, she would have earned said amount. But,
the undeniable fact remains that she was never so employed. Petitioner never acquired any vested right to the salaries pertaining to the position of GS 1710-9 to
which she was never appointed. Damages which are merely possible are speculative.38 In determining actual damages, the court cannot rely on speculation,
conjecture or guesswork. Without the actual proof of loss, the award of actual damages is erroneous.39 Consequently, the award of actual damages made by the trial
court should be deleted. Attorney’s fees, however, may be granted and we believe that an award thereof in the sum of P20,000.00 is reasonable under the
circumstances.1âwphi1
IV. Finally, private respondents postulate that petitioner Loida Q. Shauf failed to avail herself of her remedy under the United States federal legislation on equality of
opportunity for civilian employees, which is allegedly exclusive of any other remedy under American law, let alone remedies before a foreign court and under a
foreign law such as the Civil Code of the Philippines.
In a letter of the Department of the Air Force in Washington, D.C., dated September 1, 1978 and addressed to petitioner Loida Q. Shauf,40 the appeal rights of the
latter from the Air Force decision were enumerated as follows:
-You may appeal to the Civil Service Commission within 15 calendar days of receipt of the decision. Your appeal should be addressed to the Civil Service
Commission, Appeals Review Board, 1990 E Street, N.Q., Washington, D.C. 20415. The appeal and any representation in support thereof must be
submitted in duplicate.
-In lieu of an appeal to the Commission you may file a civil action in an appropriate U.S. District Court within 30 days of receipt of the decision.
-If you elect to appeal to the Commission’s Appeals Review Board, you may file a civil action in a U.S. District Court within 30 days of receipt of the
Commission’s final decision.
-A civil action may also be filed anytime after 180 days of the date of initial appeal to the Commission, if a final decision has not been rendered.
As earlier noted, in a Supplement to Partial Stipulation of Facts filed by the parties on October 6, 1978, it was manifested to the trial court that an appeal was lodged
by counsel for petitioners on September 30, 1978 before the Civil Service Commission. Appeals Review Board from the decision of the Secretary of the Air Force in
the discrimination case filed by petitioner Loida Q. Shauf, No. SF 071380181. Said appeal has not been decided up to now.
 30

Furthermore, it is basic that remedial statutes are to be construed liberally. The term "may," as used in adjective rules, is only permissive and not mandatory, and we
see no reason why the so-called rules on the above procedural options communicated to said petitioner should depart from this fundamental . petitioner Loida Q.
Shauf is not limited to these remedies, but is entitled as a matter of plain and simple justice to choose that remedy, not otherwise proscribed, which will best advance
and protect her interests. There is, thus, nothing to enjoin her from seeking redress in Philippine courts which should not be ousted of jurisdiction on the dubious and
inconclusive representations of private respondents on that score.
WHEREFORE, the challenged decision and resolution of respondent Court of Appeals in CA-G.R. CV No. 17932 are hereby ANNULLED and SET ASIDE. Private
respondents are hereby ORDERED, jointly and severally, to pay petitioners the sum of P100,000.00 as moral damages, P20,000.00 as and for attorney’s fees, and the
costs of suit.
SO ORDERED.
G.R. No. L-35645 May 22, 1985
UNITED STATES OF AMERICA, CAPT. JAMES E. GALLOWAY, WILLIAM I. COLLINS and ROBERT GOHIER, petitioners,
vs.
HON. V. M. RUIZ, Presiding Judge of Branch XV, Court of First Instance of Rizal and ELIGIO DE GUZMAN & CO., INC., respondents.
Sycip, Salazar, Luna & Manalo & Feliciano Law for petitioners.
Albert, Vergara, Benares, Perias & Dominguez Law Office for respondents.

ABAD SANTOS, J.:

This is a petition to review, set aside certain orders and restrain the respondent judge from trying Civil Case No. 779M of the defunct Court of First Instance of Rizal.
The factual background is as follows:
At times material to this case, the United States of America had a naval base in Subic, Zambales. The base was one of those provided in the Military Bases Agreement
between the Philippines and the United States.
Sometime in May, 1972, the United States invited the submission of bids for the following projects
1. Repair offender system, Alava Wharf at the U.S. Naval Station Subic Bay, Philippines.
2. Repair typhoon damage to NAS Cubi shoreline; repair typhoon damage to shoreline revetment, NAVBASE Subic; and repair to Leyte Wharf approach, NAVBASE
Subic Bay, Philippines.
Eligio de Guzman & Co., Inc. responded to the invitation and submitted bids. Subsequent thereto, the company received from the United States two telegrams
requesting it to confirm its price proposals and for the name of its bonding company. The company complied with the requests. [In its complaint, the company alleges
that the United States had accepted its bids because "A request to confirm a price proposal confirms the acceptance of a bid pursuant to defendant United States'
bidding practices." (Rollo, p. 30.) The truth of this allegation has not been tested because the case has not reached the trial stage.]
In June, 1972, the company received a letter which was signed by Wilham I. Collins, Director, Contracts Division, Naval Facilities Engineering Command, Southwest
Pacific, Department of the Navy of the United States, who is one of the petitioners herein. The letter said that the company did not qualify to receive an award for the
projects because of its previous unsatisfactory performance rating on a repair contract for the sea wall at the boat landings of the U.S. Naval Station in Subic Bay. The
letter further said that the projects had been awarded to third parties. In the abovementioned Civil Case No. 779-M, the company sued the United States of America
and Messrs. James E. Galloway, William I. Collins and Robert Gohier all members of the Engineering Command of the U.S. Navy. The complaint is to order the
defendants to allow the plaintiff to perform the work on the projects and, in the event that specific performance was no longer possible, to order the defendants to
pay damages. The company also asked for the issuance of a writ of preliminary injunction to restrain the defendants from entering into contracts with third parties
for work on the projects.
The defendants entered their special appearance for the purpose only of questioning the jurisdiction of this court over the subject matter of the complaint and the
persons of defendants, the subject matter of the complaint being acts and omissions of the individual defendants as agents of defendant United States of America, a
foreign sovereign which has not given her consent to this suit or any other suit for the causes of action asserted in the complaint." (Rollo, p. 50.)
Subsequently the defendants filed a motion to dismiss the complaint which included an opposition to the issuance of the writ of preliminary injunction. The company
opposed the motion. The trial court denied the motion and issued the writ. The defendants moved twice to reconsider but to no avail. Hence the instant petition
which seeks to restrain perpetually the proceedings in Civil Case No. 779-M for lack of jurisdiction on the part of the trial court.
The petition is highly impressed with merit.
The traditional rule of State immunity exempts a State from being sued in the courts of another State without its consent or waiver. This rule is a necessary
consequence of the principles of independence and equality of States. However, the rules of International Law are not petrified; they are constantly developing and
evolving. And because the activities of states have multiplied, it has been necessary to distinguish them-between sovereign and governmental acts (jure imperii) and
private, commercial and proprietary acts (jure gestionis). The result is that State immunity now extends only to acts jure imperil The restrictive application of State
immunity is now the rule in the United States, the United Kingdom and other states in western Europe. (See Coquia and Defensor Santiago, Public International Law,
pp. 207-209 [1984].)
The respondent judge recognized the restrictive doctrine of State immunity when he said in his Order denying the defendants' (now petitioners) motion: " A
distinction should be made between a strictly governmental function of the sovereign state from its private, proprietary or non- governmental acts (Rollo, p. 20.)
However, the respondent judge also said: "It is the Court's considered opinion that entering into a contract for the repair of wharves or shoreline is certainly not a
governmental function altho it may partake of a public nature or character. As aptly pointed out by plaintiff's counsel in his reply citing the ruling in the case of Lyons,
Inc., [104 Phil. 594 (1958)], and which this Court quotes with approval, viz.:
It is however contended that when a sovereign state enters into a contract with a private person, the state can be sued upon the theory that it
has descended to the level of an individual from which it can be implied that it has given its consent to be sued under the contract. ...
xxx xxx xxx
We agree to the above contention, and considering that the United States government, through its agency at Subic Bay, entered into a contract
with appellant for stevedoring and miscellaneous labor services within the Subic Bay Area, a U.S. Naval Reservation, it is evident that it can
bring an action before our courts for any contractual liability that that political entity may assume under the contract. The trial court, therefore,
has jurisdiction to entertain this case ... (Rollo, pp. 20-21.)
The reliance placed on Lyons by the respondent judge is misplaced for the following reasons:
In Harry Lyons, Inc. vs. The United States of America, supra, plaintiff brought suit in the Court of First Instance of Manila to collect several sums of money on account
of a contract between plaintiff and defendant. The defendant filed a motion to dismiss on the ground that the court had no jurisdiction over defendant and over the
subject matter of the action. The court granted the motion on the grounds that: (a) it had no jurisdiction over the defendant who did not give its consent to the suit;
and (b) plaintiff failed to exhaust the administrative remedies provided in the contract. The order of dismissal was elevated to this Court for review.
In sustaining the action of the lower court, this Court said:
 31

It appearing in the complaint that appellant has not complied with the procedure laid down in Article XXI of the contract regarding the
prosecution of its claim against the United States Government, or, stated differently, it has failed to first exhaust its administrative remedies
against said Government, the lower court acted properly in dismissing this case.(At p. 598.)
It can thus be seen that the statement in respect of the waiver of State immunity from suit was purely gratuitous and, therefore, obiter so that it has no value as an
imperative authority.
The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial
activities or economic affairs. Stated differently, a State may be said to have descended to the level of an individual and 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 contract relates to the exercise of its sovereign functions. In this case the
projects are an integral part of the naval base which is devoted to the defense of both the United States and the Philippines, indisputably a function of the
government of the highest order; they are not utilized for nor dedicated to commercial or business purposes.
That the correct test for the application of State immunity is not the conclusion of a contract by a State but the legal nature of the act is shown in Syquia vs. Lopez, 84
Phil. 312 (1949). In that case the plaintiffs leased three apartment buildings to the United States of America for the use of its military officials. The plaintiffs sued to
recover possession of the premises on the ground that the term of the leases had expired. They also asked for increased rentals until the apartments shall have been
vacated.
The defendants who were armed forces officers of the United States moved to dismiss the suit for lack of jurisdiction in the part of the court. The Municipal Court of
Manila granted the motion to dismiss; sustained by the Court of First Instance, the plaintiffs went to this Court for review on certiorari. In denying the petition, this
Court said:
On the basis of the foregoing considerations we are of the belief and we hold that the real party defendant in interest is the Government of the
United States of America; that any judgment for back or Increased rentals or damages will have to be paid not by defendants Moore and
Tillman and their 64 co-defendants but by the said U.S. Government. On the basis of the ruling in the case of Land vs. Dollar already cited, and
on what we have already stated, the present action must be considered as one against the U.S. Government. It is clear hat the courts of the
Philippines including the Municipal Court of Manila have no jurisdiction over the present case for unlawful detainer. The question of lack of
jurisdiction was raised and interposed at the very beginning of the action. The U.S. Government has not , given its consent to the filing of this
suit which is essentially against her, though not in name. Moreover, this is not only a case of a citizen filing a suit against his own Government
without the latter's consent but it is of a citizen filing an action against a foreign government without said government's consent, which renders
more obvious the lack of jurisdiction of the courts of his country. The principles of law behind this rule are so elementary and of such general
acceptance that we deem it unnecessary to cite authorities in support thereof. (At p. 323.)
In Syquia,the United States concluded contracts with private individuals but the contracts notwithstanding the States was not deemed to have given or waived its
consent to be sued for the reason that the contracts were for jure imperii and not for jure gestionis.
WHEREFORE, the petition is granted; the questioned orders of the respondent judge are set aside and Civil Case No. is dismissed. Costs against the private
respondent.
G.R. No. 76607 February 26, 1990
UNITED STATES OF AMERICA, FREDERICK M. SMOUSE AND YVONNE REEVES, petitioners,
vs.
HON. ELIODORO B. GUINTO, Presiding Judge, Branch LVII, Regional Trial Court, Angeles City, ROBERTO T. VALENCIA, EMERENCIANA C. TANGLAO, AND PABLO C.
DEL PILAR, respondents.
G.R. No. 79470 February 26, 1990
UNITED STATES OF AMERICA, ANTHONY LAMACHIA, T/SGT. USAF, WILFREDO BELSA, PETER ORASCION AND ROSE CARTALLA, petitioners,
vs.
HON. RODOLFO D. RODRIGO, as Presiding Judge of Branch 7, Regional Trial Court (BAGUIO CITY), La Trinidad, Benguet and FABIAN GENOVE, respondents.
G.R. No. 80018 February 26, 1990
UNITED STATES OF AMERICA, TOMI J. KINGI, DARREL D. DYE and STEVEN F. BOSTICK, petitioners,
vs.
HON. JOSEFINA D. CEBALLOS, As Presiding Judge, Regional Trial Court, Branch 66, Capas, Tarlac, and LUIS BAUTISTA, respondents.
G.R. No. 80258 February 26, 1990
UNITED STATES OF AMERICA, MAJOR GENERAL MICHAEL P. C. CARNS, AIC ERNEST E. RIVENBURGH, AIC ROBIN BLEVINS, SGT. NOEL A. GONZALES, SGT. THOMAS
MITCHELL, SGT. WAYNE L. BENJAMIN, ET AL., petitioners,
vs.
HON. CONCEPCION S. ALARCON VERGARA, as Presiding Judge, Branch 62 REGIONAL TRIAL COURT, Angeles City, and RICKY SANCHEZ, FREDDIE SANCHEZ AKA
FREDDIE RIVERA, EDWIN MARIANO, AKA JESSIE DOLORES SANGALANG, ET AL., respondents.
Luna, Sison & Manas Law Office for petitioners.

CRUZ, J.:
These cases have been consolidated because they all involve the doctrine of state immunity. The United States of America was not impleaded in the complaints
below but has moved to dismiss on the ground that they are in effect suits against it to which it has not consented. It is now contesting the denial of its motions
by the respondent judges.
In G.R. No. 76607, the private respondents are suing several officers of the U.S. Air Force stationed in Clark Air Base in connection with the bidding conducted by
them for contracts for barber services in the said base.
On February 24, 1986, the Western Pacific Contracting Office, Okinawa Area Exchange, U.S. Air Force, solicited bids for such contracts through its contracting
officer, James F. Shaw. Among those who submitted their bids were private respondents Roberto T. Valencia, Emerenciana C. Tanglao, and Pablo C. del Pilar.
Valencia had been a concessionaire inside Clark for 34 years; del Pilar for 12 years; and Tanglao for 50 years.
The bidding was won by Ramon Dizon, over the objection of the private respondents, who claimed that he had made a bid for four facilities, including the Civil
Engineering Area, which was not included in the invitation to bid.
The private respondents complained to the Philippine Area Exchange (PHAX). The latter, through its representatives, petitioners Yvonne Reeves and Frederic M.
Smouse explained that the Civil Engineering concession had not been awarded to Dizon as a result of the February 24, 1986 solicitation. Dizon was already
operating this concession, then known as the NCO club concession, and the expiration of the contract had been extended from June 30, 1986 to August 31, 1986.
They further explained that the solicitation of the CE barbershop would be available only by the end of June and the private respondents would be notified.
On June 30, 1986, the private respondents filed a complaint in the court below to compel PHAX and the individual petitioners to cancel the award to defendant
Dizon, to conduct a rebidding for the barbershop concessions and to allow the private respondents by a writ of preliminary injunction to continue operating the
concessions pending litigation. 1
 32

Upon the filing of the complaint, the respondent court issued an ex parte order directing the individual petitioners to maintain the status quo.
On July 22, 1986, the petitioners filed a motion to dismiss and opposition to the petition for preliminary injunction on the ground that the action was in effect a
suit against the United States of America, which had not waived its non-suability. The individual defendants, as official employees of the U.S. Air Force, were also
immune from suit.
On the same date, July 22, 1986, the trial court denied the application for a writ of preliminary injunction.
On October 10, 1988, the trial court denied the petitioners' motion to dismiss, holding in part as follows:
From the pleadings thus far presented to this Court by the parties, the Court's attention is called by the relationship between the plaintiffs
as well as the defendants, including the US Government, in that prior to the bidding or solicitation in question, there was a binding contract
between the plaintiffs as well as the defendants, including the US Government. By virtue of said contract of concession it is the Court's
understanding that neither the US Government nor the herein principal defendants would become the employer/s of the plaintiffs but that
the latter are the employers themselves of the barbers, etc. with the employer, the plaintiffs herein, remitting the stipulated percentage of
commissions to the Philippine Area Exchange. The same circumstance would become in effect when the Philippine Area Exchange opened
for bidding or solicitation the questioned barber shop concessions. To this extent, therefore, indeed a commercial transaction has been
entered, and for purposes of the said solicitation, would necessarily be entered between the plaintiffs as well as the defendants.
The Court, further, is of the view that Article XVIII of the RP-US Bases Agreement does not cover such kind of services falling under the
concessionaireship, such as a barber shop concession. 2
On December 11, 1986, following the filing of the herein petition for certiorari and prohibition with preliminary injunction, we issued a temporary restraining order
against further proceedings in the court below. 3
In G.R. No. 79470, Fabian Genove filed a complaint for damages against petitioners Anthony Lamachia, Wilfredo Belsa, Rose Cartalla and Peter Orascion for his
dismissal as cook in the U.S. Air Force Recreation Center at the John Hay Air Station in Baguio City. It had been ascertained after investigation, from the testimony of
Belsa Cartalla and Orascion, that Genove had poured urine into the soup stock used in cooking the vegetables served to the club customers. Lamachia, as club
manager, suspended him and thereafter referred the case to a board of arbitrators conformably to the collective bargaining agreement between the Center and its
employees. The board unanimously found him guilty and recommended his dismissal. This was effected on March 5, 1986, by Col. David C. Kimball, Commander of
the 3rd Combat Support Group, PACAF Clark Air Force Base. Genove's reaction was to file Ms complaint in the Regional Trial Court of Baguio City against the
individual petitioners. 4
On March 13, 1987, the defendants, joined by the United States of America, moved to dismiss the complaint, alleging that Lamachia, as an officer of the U.S. Air Force
stationed at John Hay Air Station, was immune from suit for the acts done by him in his official capacity. They argued that the suit was in effect against the United
States, which had not given its consent to be sued.
This motion was denied by the respondent judge on June 4, 1987, in an order which read in part:
It is the understanding of the Court, based on the allegations of the complaint — which have been hypothetically admitted by defendants upon
the filing of their motion to dismiss — that although defendants acted initially in their official capacities, their going beyond what their
functions called for brought them out of the protective mantle of whatever immunities they may have had in the beginning. Thus, the
allegation that the acts complained of were illegal, done. with extreme bad faith and with pre-conceived sinister plan to harass and finally
dismiss the plaintiff, gains significance. 5
The petitioners then came to this Court seeking certiorari and prohibition with preliminary injunction.
In G.R. No. 80018, Luis Bautista, who was employed as a barracks boy in Camp O' Donnell, an extension of Clark Air Base, was arrested following a buy-bust operation
conducted by the individual petitioners herein, namely, Tomi J. King, Darrel D. Dye and Stephen F. Bostick, officers of the U.S. Air Force and special agents of the Air
Force Office of Special Investigators (AFOSI). On the basis of the sworn statements made by them, an information for violation of R.A. 6425, otherwise known as the
Dangerous Drugs Act, was filed against Bautista in the Regional Trial Court of Tarlac. The above-named officers testified against him at his trial. As a result of the filing
of the charge, Bautista was dismissed from his employment. He then filed a complaint for damages against the individual petitioners herein claiming that it was
because of their acts that he was removed. 6
During the period for filing of the answer, Mariano Y. Navarro a special counsel assigned to the International Law Division, Office of the Staff Judge Advocate of Clark
Air Base, entered a special appearance for the defendants and moved for an extension within which to file an "answer and/or other pleadings." His reason was that
the Attorney General of the United States had not yet designated counsel to represent the defendants, who were being sued for their official acts. Within the
extended period, the defendants, without the assistance of counsel or authority from the U.S. Department of Justice, filed their answer. They alleged therein as
affirmative defenses that they had only done their duty in the enforcement of the laws of the Philippines inside the American bases pursuant to the RP-US Military
Bases Agreement.
On May 7, 1987, the law firm of Luna, Sison and Manas, having been retained to represent the defendants, filed with leave of court a motion to withdraw the answer
and dismiss the complaint. The ground invoked was that the defendants were acting in their official capacity when they did the acts complained of and that the
complaint against them was in effect a suit against the United States without its consent.
The motion was denied by the respondent judge in his order dated September 11, 1987, which held that the claimed immunity under the Military Bases Agreement
covered only criminal and not civil cases. Moreover, the defendants had come under the jurisdiction of the court when they submitted their answer.7
Following the filing of the herein petition for certiorari and prohibition with preliminary injunction, we issued on October 14, 1987, a temporary restraining order. 8
In G.R. No. 80258, a complaint for damages was filed by the private respondents against the herein petitioners (except the United States of America), for injuries
allegedly sustained by the plaintiffs as a result of the acts of the defendants. 9 There is a conflict of factual allegations here. According to the plaintiffs, the defendants
beat them up, handcuffed them and unleashed dogs on them which bit them in several parts of their bodies and caused extensive injuries to them. The defendants
deny this and claim the plaintiffs were arrested for theft and were bitten by the dogs because they were struggling and resisting arrest, The defendants stress that the
dogs were called off and the plaintiffs were immediately taken to the medical center for treatment of their wounds.
In a motion to dismiss the complaint, the United States of America and the individually named defendants argued that the suit was in effect a suit against the United
States, which had not given its consent to be sued. The defendants were also immune from suit under the RP-US Bases Treaty for acts done by them in the
performance of their official functions.
The motion to dismiss was denied by the trial court in its order dated August 10, 1987, reading in part as follows:
The defendants certainly cannot correctly argue that they are immune from suit. The allegations, of the complaint which is sought to be
dismissed, had to be hypothetically admitted and whatever ground the defendants may have, had to be ventilated during the trial of the case
on the merits. The complaint alleged criminal acts against the individually-named defendants and from the nature of said acts it could not be
said that they are Acts of State, for which immunity should be invoked. If the Filipinos themselves are duty bound to respect, obey and submit
themselves to the laws of the country, with more reason, the members of the United States Armed Forces who are being treated as guests of
this country should respect, obey and submit themselves to its laws. 10
and so was the motion for reconsideration. The defendants submitted their answer as required but subsequently filed their petition for certiorari and prohibition with
preliminary injunction with this Court. We issued a temporary restraining order on October 27, 1987. 11
 33

II
The rule that a state may not be sued without its consent, now expressed in Article XVI, Section 3, of the 1987 Constitution, is one of the generally accepted principles
of international law that we have adopted as part of the law of our land under Article II, Section 2. This latter provision merely reiterates a policy earlier embodied in
the 1935 and 1973 Constitutions and also intended to manifest our resolve to abide by the rules of the international community.
Even without such affirmation, we would still be bound by the generally accepted principles of international law under the doctrine of incorporation. Under this
doctrine, as accepted by the majority of states, such principles are deemed incorporated in the law of every civilized state as a condition and consequence of its
membership in the society of nations. Upon its admission to such society, the state is automatically obligated to comply with these principles in its relations with
other states.
As applied to the local state, the doctrine of state immunity is based on the justification given by Justice Holmes that "there can be no legal right against the authority
which makes the law on which the right depends." 12 There are other practical reasons for the enforcement of the doctrine. In the case of the foreign state sought to
be impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in parem, non habet imperium. All states are sovereign equals and cannot
assert jurisdiction over one another. A contrary disposition would, in the language of a celebrated case, "unduly vex the peace of nations." 13
While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts
allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an
affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against
the state itself although it has not been formally impleaded. 14 In such a situation, the state may move to dismiss the complaint on the ground that it has been filed
without its consent.
The doctrine is sometimes derisively called "the royal prerogative of dishonesty" because of the privilege it grants the state to defeat any legitimate claim against it by
simply invoking its non-suability. That is hardly fair, at least in democratic societies, for the state is not an unfeeling tyrant unmoved by the valid claims of its citizens.
In fact, the doctrine is not absolute and does not say the state may not be sued under any circumstance. On the contrary, the rule says that the state may not be sued
without its consent, which clearly imports that it may be sued if it consents.
The consent of the state to be sued may be manifested expressly or impliedly. Express consent may be embodied in a general law or a special law. Consent is implied
when the state enters into a contract or it itself commences litigation.
The general law waiving the immunity of the state from suit is found in Act No. 3083, under which the Philippine government "consents and submits to be sued upon
any moneyed claim involving liability arising from contract, express or implied, which could serve as a basis of civil action between private parties." In Merritt v.
Government of the Philippine Islands, 15 a special law was passed to enable a person to sue the government for an alleged tort. When the government enters into a
contract, it is deemed to have descended to the level of the other contracting party and divested of its sovereign immunity from suit with its implied
consent. 16 Waiver is also implied when the government files a complaint, thus opening itself to a counterclaim. 17
The above rules are subject to qualification. Express consent is effected only by the will of the legislature through the medium of a duly enacted statute. 18 We have
held that not all contracts entered into by the government will operate as a waiver of its non-suability; distinction must be made between its sovereign and
proprietary acts. 19 As for the filing of a complaint by the government, suability will result only where the government is claiming affirmative relief from the
defendant. 20
In the case of the United States of America, the customary rule of international law on state immunity is expressed with more specificity in the RP-US Bases Treaty.
Article III thereof provides as follows:
It is mutually agreed that the United States shall have the rights, power and authority within the bases which are necessary for the
establishment, use, operation and defense thereof or appropriate for the control thereof and all the rights, power and authority within the
limits of the territorial waters and air space adjacent to, or in the vicinity of, the bases which are necessary to provide access to them or
appropriate for their control.
The petitioners also rely heavily on Baer v. Tizon, 21 along with several other decisions, to support their position that they are not suable in the cases below, the
United States not having waived its sovereign immunity from suit. It is emphasized that in Baer, the Court held:
The invocation of the doctrine of immunity from suit of a foreign state without its consent is appropriate. More specifically, insofar as alien
armed forces is concerned, the starting point is Raquiza v. Bradford, a 1945 decision. In dismissing a habeas corpus petition for the release of
petitioners confined by American army authorities, Justice Hilado speaking for the Court, cited Coleman v. Tennessee, where it was explicitly
declared: 'It is well settled that a foreign army, permitted to march through a friendly country or to be stationed in it, by permission of its
government or sovereign, is exempt from the civil and criminal jurisdiction of the place.' Two years later, in Tubb and Tedrow v. Griess, this
Court relied on the ruling in Raquiza v. Bradford and cited in support thereof excerpts from the works of the following authoritative writers:
Vattel, Wheaton, Hall, Lawrence, Oppenheim, Westlake, Hyde, and McNair and Lauterpacht. Accuracy demands the clarification that after the
conclusion of the Philippine-American Military Bases Agreement, the treaty provisions should control on such matter, the assumption being
that there was a manifestation of the submission to jurisdiction on the part of the foreign power whenever appropriate. More to the point
is Syquia v. Almeda Lopez, where plaintiffs as lessors sued the Commanding General of the United States Army in the Philippines, seeking the
restoration to them of the apartment buildings they owned leased to the United States armed forces stationed in the Manila area. A motion to
dismiss on the ground of non-suability was filed and upheld by respondent Judge. The matter was taken to this Court in a mandamus
proceeding. It failed. It was the ruling that respondent Judge acted correctly considering that the 4 action must be considered as one against
the U.S. Government. The opinion of Justice Montemayor continued: 'It is clear that the courts of the Philippines including the Municipal Court
of Manila have no jurisdiction over the present case for unlawful detainer. The question of lack of jurisdiction was raised and interposed at the
very beginning of the action. The U.S. Government has not given its consent to the filing of this suit which is essentially against her, though not
in name. Moreover, this is not only a case of a citizen filing a suit against his own Government without the latter's consent but it is of a citizen
firing an action against a foreign government without said government's consent, which renders more obvious the lack of jurisdiction of the
courts of his country. The principles of law behind this rule are so elementary and of such general acceptance that we deem it unnecessary to
cite authorities in support thereof then came Marvel Building Corporation v. Philippine War Damage Commission, where respondent, a United
States Agency established to compensate damages suffered by the Philippines during World War II was held as falling within the above doctrine
as the suit against it would eventually be a charge against or financial liability of the United States Government because ... , the Commission has
no funds of its own for the purpose of paying money judgments.' The Syquia ruling was again explicitly relied upon in Marquez Lim v. Nelson,
involving a complaint for the recovery of a motor launch, plus damages, the special defense interposed being 'that the vessel belonged to the
United States Government, that the defendants merely acted as agents of said Government, and that the United States Government is
therefore the real party in interest.' So it was in Philippine Alien Property Administration v. Castelo, where it was held that a suit against Alien
Property Custodian and the Attorney General of the United States involving vested property under the Trading with the Enemy Act is in
substance a suit against the United States. To the same effect is Parreno v. McGranery, as the following excerpt from the opinion of justice
Tuazon clearly shows: 'It is a widely accepted principle of international law, which is made a part of the law of the land (Article II, Section 3 of
the Constitution), that a foreign state may not be brought to suit before the courts of another state or its own courts without its consent.'
 34

Finally, there is Johnson v. Turner, an appeal by the defendant, then Commanding General, Philippine Command (Air Force, with office at Clark
Field) from a decision ordering the return to plaintiff of the confiscated military payment certificates known as scrip money. In reversing the
lower court decision, this Tribunal, through Justice Montemayor, relied on Syquia v. Almeda Lopez, explaining why it could not be sustained.
It bears stressing at this point that the above observations do not confer on the United States of America a blanket immunity for all acts done by it or its agents in the
Philippines. Neither may the other petitioners claim that they are also insulated from suit in this country merely because they have acted as agents of the United
States in the discharge of their official functions.
There is no question that the United States of America, like any other state, will be deemed to have impliedly waived its non-suability if it has entered into a contract
in its proprietary or private capacity. It is only when the contract involves its sovereign or governmental capacity that no such waiver may be implied. This was our
ruling in UnitedStates of America v. Ruiz, 22 where the transaction in question dealt with the improvement of the wharves in the naval installation at Subic Bay. As this
was a clearly governmental function, we held that the contract did not operate to divest the United States of its sovereign immunity from suit. In the words of Justice
Vicente Abad Santos:
The traditional rule of immunity exempts a State from being sued in the courts of another State without its consent or waiver. This rule is a
necessary consequence of the principles of independence and equality of States. However, the rules of International Law are not petrified; they
are constantly developing and evolving. And because the activities of states have multiplied, it has been necessary to distinguish them —
between sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that State
immunity now extends only to acts jure imperii The restrictive application of State immunity is now the rule in the United States, the United
kingdom and other states in Western Europe.
xxx xxx xxx
The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign,
its commercial activities or economic affairs. Stated differently, a State may be said to have descended to the level of an individual and 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 contract relates
to the exercise of its sovereign functions. In this case the projects are an integral part of the naval base which is devoted to the defense of both
the United States and the Philippines, indisputably a function of the government of the highest order; they are not utilized for nor dedicated to
commercial or business purposes.
The other petitioners in the cases before us all aver they have acted in the discharge of their official functions as officers or agents of the United States. However, this
is a matter of evidence. The charges against them may not be summarily dismissed on their mere assertion that their acts are imputable to the United States of
America, which has not given its consent to be sued. In fact, the defendants are sought to be held answerable for personal torts in which the United States itself is not
involved. If found liable, they and they alone must satisfy the judgment.
In Festejo v. Fernando, 23 a bureau director, acting without any authority whatsoever, appropriated private land and converted it into public irrigation ditches. Sued
for the value of the lots invalidly taken by him, he moved to dismiss the complaint on the ground that the suit was in effect against the Philippine government, which
had not given its consent to be sued. This Court sustained the denial of the motion and held that the doctrine of state immunity was not applicable. The director was
being sued in his private capacity for a personal tort.
With these considerations in mind, we now proceed to resolve the cases at hand.
III
It is clear from a study of the records of G.R. No. 80018 that the individually-named petitioners therein were acting in the exercise of their official functions when they
conducted the buy-bust operation against the complainant and thereafter testified against him at his trial. The said petitioners were in fact connected with the Air
Force Office of Special Investigators and were charged precisely with the function of preventing the distribution, possession and use of prohibited drugs and
prosecuting those guilty of such acts. It cannot for a moment be imagined that they were acting in their private or unofficial capacity when they apprehended and
later testified against the complainant. It follows that for discharging their duties as agents of the United States, they cannot be directly impleaded for acts imputable
to their principal, which has not given its consent to be sued. As we observed in Sanders v. Veridiano: 24
Given the official character of the above-described letters, we have to conclude that the petitioners were, legally speaking, being sued as
officers of the United States government. As they have acted on behalf of that government, and within the scope of their authority, it is that
government, and not the petitioners personally, that is responsible for their acts.
The private respondent invokes Article 2180 of the Civil Code which holds the government liable if it acts through a special agent. The argument, it would seem, is
premised on the ground that since the officers are designated "special agents," the United States government should be liable for their torts.
There seems to be a failure to distinguish between suability and liability and a misconception that the two terms are synonymous. Suability depends on the consent
of the state to be sued, liability on the applicable law and the established facts. The circumstance that a state is suable does not necessarily mean that it is liable; on
the other hand, it can never be held liable if it does not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to be sued.
When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable.
The said article establishes a rule of liability, not suability. The government may be held liable under this rule only if it first allows itself to be sued through any of the
accepted forms of consent.
Moreover, the agent performing his regular functions is not a special agent even if he is so denominated, as in the case at bar. No less important, the said provision
appears to regulate only the relations of the local state with its inhabitants and, hence, applies only to the Philippine government and not to foreign governments
impleaded in our courts.
We reject the conclusion of the trial court that the answer filed by the special counsel of the Office of the Sheriff Judge Advocate of Clark Air Base was a submission
by the United States government to its jurisdiction. As we noted in Republic v. Purisima, 25 express waiver of immunity cannot be made by a mere counsel of the
government but must be effected through a duly-enacted statute. Neither does such answer come under the implied forms of consent as earlier discussed.
But even as we are certain that the individual petitioners in G.R. No. 80018 were acting in the discharge of their official functions, we hesitate to make the same
conclusion in G.R. No. 80258. The contradictory factual allegations in this case deserve in our view a closer study of what actually happened to the plaintiffs. The
record is too meager to indicate if the defendants were really discharging their official duties or had actually exceeded their authority when the incident in question
occurred. Lacking this information, this Court cannot directly decide this case. The needed inquiry must first be made by the lower court so it may assess and resolve
the conflicting claims of the parties on the basis of the evidence that has yet to be presented at the trial. Only after it shall have determined in what capacity the
petitioners were acting at the time of the incident in question will this Court determine, if still necessary, if the doctrine of state immunity is applicable.
In G.R. No. 79470, private respondent Genove was employed as a cook in the Main Club located at the U.S. Air Force Recreation Center, also known as the Open Mess
Complex, at John Hay Air Station. As manager of this complex, petitioner Lamachia is responsible for eleven diversified activities generating an annual income of $2
million. Under his executive management are three service restaurants, a cafeteria, a bakery, a Class VI store, a coffee and pantry shop, a main cashier cage, an
administrative office, and a decentralized warehouse which maintains a stock level of $200,000.00 per month in resale items. He supervises 167 employees, one of
whom was Genove, with whom the United States government has concluded a collective bargaining agreement.
From these circumstances, the Court can assume that the restaurant services offered at the John Hay Air Station partake of the nature of a business enterprise
undertaken by the United States government in its proprietary capacity. Such services are not extended to the American servicemen for free as a perquisite of
 35

membership in the Armed Forces of the United States. Neither does it appear that they are exclusively offered to these servicemen; on the contrary, it is well known
that they are available to the general public as well, including the tourists in Baguio City, many of whom make it a point to visit John Hay for this reason. All persons
availing themselves of this facility pay for the privilege like all other customers as in ordinary restaurants. Although the prices are concededly reasonable and
relatively low, such services are undoubtedly operated for profit, as a commercial and not a governmental activity.
The consequence of this finding is that the petitioners cannot invoke the doctrine of state immunity to justify the dismissal of the damage suit against them by
Genove. Such defense will not prosper even if it be established that they were acting as agents of the United States when they investigated and later dismissed
Genove. For that matter, not even the United States government itself can claim such immunity. The reason is that by entering into the employment contract with
Genove in the discharge of its proprietary functions, it impliedly divested itself of its sovereign immunity from suit.
But these considerations notwithstanding, we hold that the complaint against the petitioners in the court below must still be dismissed. While suable, the petitioners
are nevertheless not liable. It is obvious that the claim for damages cannot be allowed on the strength of the evidence before us, which we have carefully examined.
The dismissal of the private respondent was decided upon only after a thorough investigation where it was established beyond doubt that he had polluted the soup
stock with urine. The investigation, in fact, did not stop there. Despite the definitive finding of Genove's guilt, the case was still referred to the board of arbitrators
provided for in the collective bargaining agreement. This board unanimously affirmed the findings of the investigators and recommended Genove's dismissal. There
was nothing arbitrary about the proceedings. The petitioners acted quite properly in terminating the private respondent's employment for his unbelievably
nauseating act. It is surprising that he should still have the temerity to file his complaint for damages after committing his utterly disgusting offense.
Concerning G.R. No. 76607, we also find that the barbershops subject of the concessions granted by the United States government are commercial enterprises
operated by private person's. They are not agencies of the United States Armed Forces nor are their facilities demandable as a matter of right by the American
servicemen. These establishments provide for the grooming needs of their customers and offer not only the basic haircut and shave (as required in most military
organizations) but such other amenities as shampoo, massage, manicure and other similar indulgences. And all for a fee. Interestingly, one of the concessionaires,
private respondent Valencia, was even sent abroad to improve his tonsorial business, presumably for the benefit of his customers. No less significantly, if not more
so, all the barbershop concessionaires are under the terms of their contracts, required to remit to the United States government fixed commissions in consideration
of the exclusive concessions granted to them in their respective areas.
This being the case, the petitioners cannot plead any immunity from the complaint filed by the private respondents in the court below. The contracts in question
being decidedly commercial, the conclusion reached in the United States of America v. Ruiz case cannot be applied here.
The Court would have directly resolved the claims against the defendants as we have done in G.R. No. 79470, except for the paucity of the record in the case at hand.
The evidence of the alleged irregularity in the grant of the barbershop concessions is not before us. This means that, as in G.R. No. 80258, the respondent court will
have to receive that evidence first, so it can later determine on the basis thereof if the plaintiffs are entitled to the relief they seek. Accordingly, this case must also be
remanded to the court below for further proceedings.
IV
There are a number of other cases now pending before us which also involve the question of the immunity of the United States from the jurisdiction of the
Philippines. This is cause for regret, indeed, as they mar the traditional friendship between two countries long allied in the cause of democracy. It is hoped that the
so-called "irritants" in their relations will be resolved in a spirit of mutual accommodation and respect, without the inconvenience and asperity of litigation and
always with justice to both parties.
WHEREFORE, after considering all the above premises, the Court hereby renders judgment as follows:
1. In G.R. No. 76607, the petition is DISMISSED and the respondent judge is directed to proceed with the hearing and decision of Civil Case No.
4772. The temporary restraining order dated December 11, 1986, is LIFTED.
2. In G.R. No. 79470, the petition is GRANTED and Civil Case No. 829-R(298) is DISMISSED.
3. In G.R. No. 80018, the petition is GRANTED and Civil Case No. 115-C-87 is DISMISSED. The temporary restraining order dated October 14,
1987, is made permanent.
4. In G.R. No. 80258, the petition is DISMISSED and the respondent court is directed to proceed with the hearing and decision of Civil Case No.
4996. The temporary restraining order dated October 27, 1987, is LIFTED.
All without any pronouncement as to costs.
SO ORDERED.

G.R. No. 101949 December 1, 1994

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

QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside the Orders dated June 20, 1991 and September 19, 1991 of the
Regional Trial Court, Branch 61, Makati, Metro Manila in Civil Case No. 90-183.
The Order dated June 20, 1991 denied the motion of petitioner to dismiss the complaint in Civil Case No. 90-183, while the Order dated September 19, 1991 denied
the motion for reconsideration of the June 20,1991 Order.
Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is represented in the Philippines by the Papal Nuncio.
Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real estate business.
This petition arose from a controversy over a parcel of land consisting of 6,000 square meters (Lot 5-A, Transfer Certificate of Title No. 390440) located in the
Municipality of Parañaque, Metro Manila and registered in the name of petitioner.
Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title Nos. 271108 and 265388 respectively and registered in the name of
the Philippine Realty Corporation (PRC).
The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the sellers. Later, Licup assigned his rights to the sale to private
respondent.
In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose as to who of the parties has the responsibility of evicting and
clearing the land of squatters. Complicating the relations of the parties was the sale by petitioner of Lot 5-A to Tropicana Properties and Development Corporation
(Tropicana).
I
On January 23, 1990, private respondent filed a complaint with the Regional Trial Court, Branch 61, Makati, Metro Manila for annulment of the sale of the three
parcels of land, and specific performance and damages against petitioner, represented by the Papal Nuncio, and three other defendants: namely, Msgr. Domingo A.
 36

Cirilos, Jr., the PRC and Tropicana (Civil Case No.

90-183).
The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner and the PRC, agreed to sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price
of P1,240.00 per square meters; (2) the agreement to sell was made on the condition that earnest money of P100,000.00 be paid by Licup to the sellers, and that the
sellers clear the said lots of squatters who were then occupying the same; (3) Licup paid the earnest money to Msgr. Cirilos; (4) in the same month, Licup assigned his
rights over the property to private respondent and informed the sellers of the said assignment; (5) thereafter, private respondent demanded from Msgr. Cirilos that
the sellers fulfill their undertaking and clear the property of squatters; however, Msgr. Cirilos informed private respondent of the squatters' refusal to vacate the lots,
proposing instead either that private respondent undertake the eviction or that the earnest money be returned to the latter; (6) private respondent counterproposed
that if it would undertake the eviction of the squatters, the purchase price of the lots should be reduced from P1,240.00 to P1,150.00 per square meter; (7) Msgr.
Cirilos returned the earnest money of P100,000.00 and wrote private respondent giving it seven days from receipt of the letter to pay the original purchase price in
cash; (8) private respondent sent the earnest money back to the sellers, but later discovered that on March 30, 1989, petitioner and the PRC, without notice to
private respondent, sold the lots to Tropicana, as evidenced by two separate Deeds of Sale, one over Lot 5-A, and another over Lots 5-B and 5-D; and that the sellers'
transfer certificate of title over the lots were cancelled, transferred and registered in the name of Tropicana; (9) Tropicana induced petitioner and the PRC to sell the
lots to it and thus enriched itself at the expense of private respondent; (10) private respondent demanded the rescission of the sale to Tropicana and the
reconveyance of the lots, to no avail; and (11) private respondent is willing and able to comply with the terms of the contract to sell and has actually made plans to
develop the lots into a townhouse project, but in view of the sellers' breach, it lost profits of not less than P30,000.000.00.
Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and the PRC on the one hand, and Tropicana on the other; (2) the
reconveyance of the lots in question; (3) specific performance of the agreement to sell between it and the owners of the lots; and (4) damages.
On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the complaint — petitioner for lack of jurisdiction based on sovereign immunity from suit,
and Msgr. Cirilos for being an improper party. An opposition to the motion was filed by private respondent.
On June 20, 1991, the trial court issued an order denying, among others, petitioner's motion to dismiss after finding that petitioner "shed off [its] sovereign immunity
by entering into the business contract in question" (Rollo, pp. 20-21).
On July 12, 1991, petitioner moved for reconsideration of the order. On August 30, 1991, petitioner filed a "Motion for a Hearing for the Sole Purpose of Establishing
Factual Allegation for claim of Immunity as a Jurisdictional Defense." So as to facilitate the determination of its defense of sovereign immunity, petitioner prayed that
a hearing be conducted to allow it to establish certain facts upon which the said defense is based. Private respondent opposed this motion as well as the motion for
reconsideration.
On October 1, 1991, the trial court issued an order deferring the resolution on the motion for reconsideration until after trial on the merits and directing petitioner to
file its answer (Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the privilege of sovereign immunity only on its own behalf and on behalf of its official
representative, the Papal Nuncio.
On December 9, 1991, a Motion for Intervention was filed before us by the Department of Foreign Affairs, claiming that it has a legal interest in the outcome of the
case as regards the diplomatic immunity of petitioner, and that it "adopts by reference, the allegations contained in the petition of the Holy See insofar as they refer
to arguments relative to its claim of sovereign immunity from suit" (Rollo, p. 87).
Private respondent opposed the intervention of the Department of Foreign Affairs. In compliance with the resolution of this Court, both parties and the Department
of Foreign Affairs submitted their respective memoranda.
II
A preliminary matter to be threshed out is the procedural issue of whether the petition for certiorari under Rule 65 of the Revised Rules of Court can be availed of to
question the order denying petitioner's motion to dismiss. The general rule is that an order denying a motion to dismiss is not reviewable by the appellate courts, the
remedy of the movant being to file his answer and to proceed with the hearing before the trial court. But the general rule admits of exceptions, and one of these is
when it is very clear in the records that the trial court has no alternative but to dismiss the complaint (Philippine National Bank v. Florendo, 206 SCRA 582 [1992];
Zagada v. Civil Service Commission, 216 SCRA 114 [1992]. In such a case, it would be a sheer waste of time and energy to require the parties to undergo the rigors of a
trial.
The other procedural question raised by private respondent is the personality or legal interest of the Department of Foreign Affairs to intervene in the case in behalf
of the Holy See (Rollo, pp. 186-190).
In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of
the state where it is sued to convey to the court that said defendant is entitled to immunity.
In the United States, the procedure followed is the process of "suggestion," where the foreign state or the international organization sued in an American court
requests the Secretary of State to make a determination as to whether it is entitled to immunity. If the Secretary of State finds that the defendant is immune from
suit, he, in turn, asks the Attorney General to submit to the court a "suggestion" that the defendant is entitled to immunity. In England, a similar procedure is
followed, only the Foreign Office issues a certification to that effect instead of submitting a "suggestion" (O'Connell, I International Law 130 [1965]; Note: Immunity
from Suit of Foreign Sovereign Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]).
In the Philippines, the practice is for the foreign government or the international organization to first secure an executive endorsement of its claim of sovereign or
diplomatic immunity. But how the Philippine Foreign Office conveys its endorsement to the courts varies. In International Catholic Migration Commission v. Calleja,
190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment, informing the latter that the respondent-
employer could not be sued because it enjoyed diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs
sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor
General to make, in behalf of the Commander of the United States Naval Base at Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor General
embodied the "suggestion" in a Manifestation and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court to be allowed to intervene on the side of petitioner.
The Court allowed the said Department to file its memorandum in support of petitioner's claim of sovereign immunity.
In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents through their private counsels (Raquiza v. Bradford,
75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644 [1990] and companion cases). In
cases where the foreign states bypass the Foreign Office, the courts can inquire into the facts and make their own determination as to the nature of the acts and
transactions involved.
III
The burden of the petition is that respondent trial court has no jurisdiction over petitioner, being a foreign state enjoying sovereign immunity. On the other hand,
private respondent insists that the doctrine of non-suability is not anymore absolute and that petitioner has divested itself of such a cloak when, of its own free will, it
entered into a commercial transaction for the sale of a parcel of land located in the Philippines.
A. The Holy See
Before we determine the issue of petitioner's non-suability, a brief look into its status as a sovereign state is in order.
 37

Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the Holy See, was considered a subject of International Law. With the
loss of the Papal States and the limitation of the territory under the Holy See to an area of 108.7 acres, the position of the Holy See in International Law became
controversial (Salonga and Yap, Public International Law 36-37 [1992]).
In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive dominion and sovereign jurisdiction of the Holy See over the
Vatican City. It also recognized the right of the Holy See to receive foreign diplomats, to send its own diplomats to foreign countries, and to enter into treaties
according to International Law (Garcia, Questions and Problems In International Law, Public and Private 81 [1948]).
The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy See absolute and visible independence and of guaranteeing
to it indisputable sovereignty also in the field of international relations" (O'Connell, I International Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested in the Holy See or in the Vatican City. Some writers even
suggested that the treaty created two international persons — the Holy See and Vatican City (Salonga and Yap, supra, 37).
The Vatican City fits into none of the established categories of states, and the attribution to it of "sovereignty" must be made in a sense different from that in which it
is applied to other states (Fenwick, International Law 124-125 [1948]; Cruz, International Law 37 [1991]). In a community of national states, the Vatican City
represents an entity organized not for political but for ecclesiastical purposes and international objects. Despite its size and object, the Vatican City has an
independent government of its own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in conformity with its traditions,
and the demands of its mission in the world. Indeed, the world-wide interests and activities of the Vatican City are such as to make it in a sense an "international
state" (Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]).
One authority wrote that the recognition of the Vatican City as a state has significant implication — that it is possible for any entity pursuing objects essentially
different from those pursued by states to be invested with international personality (Kunz, The Status of the Holy See in International Law, 46 The American Journal
of International Law 308 [1952]).
Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the Vatican City, one can conclude that
in the Pope's own view, it is the Holy See that is the international person.
The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had
diplomatic representations with the Philippine government since 1957 (Rollo, p. 87). This appears to be the universal practice in international relations.
B. Sovereign Immunity
As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally accepted principles of International Law. Even without this affirmation,
such principles of International Law are deemed incorporated as part of the law of the land as a condition and consequence of our admission in the society of nations
(United States of America v. Guinto, 182 SCRA 644 [1990]).
There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or absolute theory, a sovereign cannot,
without its consent, be made a respondent in the courts of another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is
recognized only with regard to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public International Law 194 [1984]).
Some states passed legislation to serve as guidelines for the executive or judicial determination when an act may be considered as jure gestionis. The United States
passed the Foreign Sovereign Immunities Act of 1976, which defines a commercial activity as "either a regular course of commercial conduct or a particular
commercial transaction or act." Furthermore, the law declared that the "commercial character of the activity shall be determined by reference to the nature of the
course of conduct or particular transaction or act, rather than by reference to its purpose." The Canadian Parliament enacted in 1982 an Act to Provide For State
Immunity in Canadian Courts. The Act defines a "commercial activity" as any particular transaction, act or conduct or any regular course of conduct that by reason of
its nature, is of a "commercial character."
The restrictive theory, which is intended to be a solution to the host of problems involving the issue of sovereign immunity, has created problems of its own. Legal
treatises and the decisions in countries which follow the restrictive theory have difficulty in characterizing whether a contract of a sovereign state with a private party
is an act jure gestionis or an act jure imperii.
The restrictive theory came about because of the entry of sovereign states into purely commercial activities remotely connected with the discharge of governmental
functions. This is particularly true with respect to the Communist states which took control of nationalized business activities and international trading.
This Court has considered the following transactions by a foreign state with private parties as acts jure imperii: (1) the lease by a foreign government of apartment
buildings for use of its military officers (Syquia v. Lopez, 84 Phil. 312 [1949]; (2) the conduct of public bidding for the repair of a wharf at a United States Naval Station
(United States of America v. Ruiz, supra.); and (3) the change of employment status of base employees (Sanders v. Veridiano, 162 SCRA 88 [1988]).
On the other hand, this Court has considered the following transactions by a foreign state with private parties as acts jure gestionis: (1) the hiring of a cook in the
recreation center, consisting of three restaurants, a cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to
American servicemen and the general public (United States of America v. Rodrigo, 182 SCRA 644 [1990]); and (2) the bidding for the operation of barber shops in
Clark Air Base in Angeles City (United States of America v. Guinto, 182 SCRA 644 [1990]). The operation of the restaurants and other facilities open to the general
public is undoubtedly for profit as a commercial and not a governmental activity. By entering into the employment contract with the cook in the discharge of its
proprietary function, the United States government impliedly divested itself of its sovereign immunity from suit.
In the absence of legislation defining what activities and transactions shall be considered "commercial" and as constituting acts jure gestionis, we have to come out
with our own guidelines, tentative they may be.
Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an act can only be the start of the inquiry. The
logical question is whether the foreign state is engaged in the activity in the regular course of business. If the foreign state is not engaged regularly in a business or
trade, the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure
imperii, especially when it is not undertaken for gain or profit.
As held in United States of America v. Guinto, (supra):
There is no question that the United States of America, like any other state, will be deemed to have impliedly waived its non-suability if it has
entered into a contract in its proprietary or private capacity. It is only when the contract involves its sovereign or governmental capacity that no
such waiver may be implied.
In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate business, surely the said transaction can be categorized as an
act jure gestionis. However, petitioner has denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said
property for the site of its mission or the Apostolic Nunciature in the Philippines. Private respondent failed to dispute said claim.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not for commercial purpose, but for the use of petitioner to
construct thereon the official place of residence of the Papal Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a receiving state,
necessary for the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty
was concurred in by the Philippine Senate and entered into force in the Philippines on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the receiving state over any real action
relating to private immovable property situated in the territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the
 38

mission. If this immunity is provided for a diplomatic envoy, with all the more reason should immunity be recognized as regards the sovereign itself, which in this case
is the Holy See.
The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made it almost impossible for petitioner to use it for the purpose
of the donation. The fact that squatters have occupied and are still occupying the lot, and that they stubbornly refuse to leave the premises, has been admitted by
private respondent in its complaint (Rollo, pp. 26, 27).
The issue of petitioner's non-suability can be determined by the trial court without going to trial in the light of the pleadings, particularly the admission of private
respondent. Besides, the privilege of sovereign immunity in this case was sufficiently established by the Memorandum and Certification of the Department of Foreign
Affairs. As the department tasked with the conduct of the Philippines' foreign relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), the Department of
Foreign Affairs has formally intervened in this case and officially certified that the Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of
the Philippines exempt from local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this country (Rollo, pp.
156-157). The determination of the executive arm of government that a state or instrumentality is entitled to sovereign or diplomatic immunity is a political question
that is conclusive upon the courts (International Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). Where the plea of immunity is recognized and
affirmed by the executive branch, it is the duty of the courts to accept this claim so as not to embarrass the executive arm of the government in conducting the
country's foreign relations (World Health Organization v. Aquino, 48 SCRA 242 [1972]). As in International Catholic Migration Commission and in World Health
Organization, we abide by the certification of the Department of Foreign Affairs.
Ordinarily, the procedure would be to remand the case and order the trial court to conduct a hearing to establish the facts alleged by petitioner in its motion. In view
of said certification, such procedure would however be pointless and unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge Tirso Velasco, G.R. No. 109645, July 25,
1994).
IV
Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public International Law and Transnational Law, a person who
feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels.
Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the Holy See. Its first task is to persuade the
Philippine government to take up with the Holy See the validity of its claims. Of course, the Foreign Office shall first make a determination of the impact of its
espousal on the relations between the Philippine government and the Holy See (Young, Remedies of Private Claimants Against Foreign States, Selected Readings on
Protection by Law of Private Foreign Investments 905, 919 [1964]). Once the Philippine government decides to espouse the claim, the latter ceases to be a private
cause.
According to the Permanent Court of International Justice, the forerunner of the International Court of Justice:
By taking up the case of one of its subjects and by reporting to diplomatic action or international judicial proceedings on his behalf, a State is in
reality asserting its own rights — its right to ensure, in the person of its subjects, respect for the rules of international law (The Mavrommatis
Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).
WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183 against petitioner is DISMISSED.
SO ORDERED.
G.R. No. L-1648 August 17, 1949
PEDRO SYQUIA, GONZALO SYQUIA, and LEOPOLDO SYQUIA, petitioners,
vs.
NATIVIDAD ALMEDA LOPEZ, Judge of Municipal Court of Manila, CONRADO V. SANCHEZ, Judge of Court of First Instance of Manila, GEORGE F. MOORE, ET
AL., respondents.
Gibbs, Gibbs, Chuidian and Quasha for petitioner.
J. A. Wolfson for respondent.
MONTEMAYOR, J.:
For the purposes of this decision, the following facts gathered from and based on the pleadings, may be stated. The plaintiffs named Pedro, Gonzalo, and Leopoldo,
all surnamed Syquia, are the undivided joint owners of three apartment buildings situated in the City of Manila known as the North Syquia Apartments, South Syquia
Apartments and Michel Apartments located at 1131 M. H. del Pilar, 1151 M. H. del Pilar and 1188 A. Mabini Streets, respectively.
About the middle of the year 1945, said plaintiffs executed three lease contracts, one for each of the three apartments, in favor of the United States of America at a
monthly rental of P1,775 for the North Syquia Apartments, P1,890 for the South Syquia Apartment, and P3,335 for the Michel Apartments. The term or period for the
three leases was to be "for the duration of the war and six months thereafter, unless sooner terminated by the United States of America." The apartment buildings
were used for billeting and quartering officers of the U. S. armed forces stationed in the Manila area.
In March 1947, when these court proceedings were commenced, George F. Moore was the Commanding General, United States Army, Philippine Ryukus Command,
Manila, and as Commanding General of the U. S. Army in the Manila Theatre, was said to control the occupancy of the said apartment houses and had authority in
the name of the United States Government to assign officers of the U. S. Army to said apartments or to order said officers to vacate the same. Erland A. Tillman was
the Chief, Real Estate Division, Office of the District Engineers, U. S. Army, Manila, who, under the command of defendant Moore was in direct charge and control of
the lease and occupancy of said three apartment buildings. Defendant Moore and Tillman themselves did not occupy any part of the premises in question.
Under the theory that said leases terminated six months after September 2, 1945, when Japan surrendered, plaintiffs sometime in March, 1946, approached the
predecessors in office of defendants Moore and Tillman and requested the return of the apartment buildings to them, but were advised that the U. S. Army wanted
to continue occupying the premises. On May 11, 1946, said plaintiffs requested the predecessors in office of Moore and Tillman to renegotiate said leases, execute
lease contract for a period of three years and to pay a reasonable rental higher than those payable under the old contracts. The predecessors in office of Moore in a
letter dated June 6, 1946, refused to execute new leases but advised that "it is contemplated that the United States Army will vacate subject properties prior to 1
February 1947." Not being in conformity with the continuance of the old leases because of the alleged comparatively low rentals being paid thereunder, plaintiffs
formally requested Tillman to cancel said three leases and to release the apartment buildings on June 28, 1946. Tillman refused to comply with the request. Because
of the alleged representation and assurance that the U.S. Government would vacate the premises before February 1, 1947, the plaintiffs took no further steps to
secure possession of the buildings and accepted the monthly rentals tendered by the predecessors in office of Moore and Tillman on the basis of a month to month
lease subject to cancellation upon thirty days notice. Because of the failure to comply with the alleged representation and assurance that the three apartment
buildings will be vacated prior to February 1, 1947, plaintiffs on February 17, 1947, served formal notice upon defendants Moore and Tillman and 64 other army
officers or members of the United States Armed Forces who were then occupying apartments in said three buildings, demanding (a) cancellation of said leases; (b)
increase in rentals to P300 per month per apartment effective thirty days from notice; (c) execution of new leases for the three or any one or two of the said
apartment buildings for a definite term, otherwise, (d) release of said apartment buildings within thirty days of said notice in the event of the failure to comply with
the foregoing demands. The thirty-day period having expired without any of the defendants having complied with plaintiffs' demands, the plaintiffs commenced the
present action in the Municipal Court of Manila in the form of an action for unlawful detainer (desahucio) against Moore and Tillman and the 64 persons occupying
apartments in the three buildings for the purpose of having them vacate the apartments, each occupants to pay P300 a month for his particular apartment from
 39

January 1, 1947 until each of said particular defendant had vacated said apartment; to permit plaintiffs access to said apartment buildings for the purpose of
appraising the damages sustained as the result of the occupancy by defendants; that defendants be ordered to pay plaintiffs whatever damages may have been
actually caused on said property; and that in the event said occupants are unable to pay said P300 a month and/or the damages sustained by said property, the
defendants Moore and Tillman jointly and severally be made to pay said monthly rentals of P300 per month per apartment from January 1, 1947 to March 19, 1947,
inclusive, and/or the damages sustained by said apartments, and that defendants Moore and Tillman be permanently enjoined against ordering any additional parties
in the future from entering and occupying said premises.
Acting upon a motion to dismiss filed through the Special Assistant of the Judge Advocate, Philippine Ryukus Command on the ground that the court had no
jurisdiction over the defendants and over the subject matter of the action, because the real party in interest was the U.S. Government and not the individual
defendants named in the complaint, and that the complaint did not state a cause of action, the municipal court of Manila in an order dated April 29, 1947, found that
the war between the United States of America and her allies on one side and Germany and Japan on the other, had not yet terminated and, consequently, the period
or term of the three leases had not yet expired; that under the well settled rule of International Law, a foreign government like the United States Government cannot
be sued in the courts of another state without its consent; that it was clear from the allegations of the complaint that although the United States of America has not
been named therein as defendant, it is nevertheless the real defendant in this case, as the parties named as defendants are officers of the United States Army and
were occupying the buildings in question as such and pursuant to orders received from that Government. The municipal court dismissed the action with costs against
the plaintiffs with the suggestion or opinion that a citizen of the Philippines, who feels aggrieved by the acts of the Government of a foreign country has the right to
demand that the Philippine Government study his claim and if found meritorious, take such diplomatic steps as may be necessary for the vindication of rights of that
citizen, and that the matter included or involved in the action should be a proper subject matter of representations between the Government of the Government of
the United States of America and the Philippines. Not being satisfied with the order, plaintiffs appealed to the Court of Manila, where the motion to dismiss was
renewed.
The Court of First Instance of Manila in an order dated July 12, 1947, affirmed the order of the municipal court dismissing plaintiffs' complaint. It conceded that under
the doctrine laid down in the case of U. S. vs. Lee, 106 U. S., 196 and affirmed in the case of Tindal vs. Wesley, 167 U. S., 204 ordinarily, courts have jurisdiction over
cases where private parties sue to recover possession of property being held by officers or agents acting in the name of the U. S. Government even though no suit can
be brought against the Government itself, but inasmuch as the plaintiffs in the present case are bringing this action against officers and agents of the U. S.
Government not only to recover the possession of the three apartment houses supposedly being held illegally by them in the name of their government, but also to
collect back rents, not only at the rate agreed upon in the lease contracts entered into by the United States of America but in excess of said rate, to say nothing of the
damages claimed, as a result of which, a judgment in these proceedings may become a charge against the U. S. Treasury, then under the rule laid down in the case of
Land vs. Dollar, 91 Law. ed., 1209, the present suit must be regarded as one against the United States Government itself, which cannot be sued without its consent,
specially by citizens of another country.
The plaintiffs as petitioners have brought this case before us on a petition for a writ of mandamus seeking to order the Municipal Court of Manila to take jurisdiction
over the case. On October 30, 1947, counsel for respondents Almeda Lopez, Sanchez, Moore and Tillman filed a motion to dismiss on several grounds. The case was
orally argued on November 26, 1947. On March 4, 1948, petitioners filed a petition which, among other things, informed this Court that the North Syquia
Apartments, the South Syquia Apartments and Michel Apartments would be vacated by their occupants on February 29, March 31, and May 31, 1948, respectively. As
a matter of fact, said apartments were actually vacated on the dates already mentioned and were received by the plaintiff-owners.
On the basis of this petition and because of the return of the three apartment houses to the owners, counsel for respondents Almeda Lopez, Sanchez, Moore and
Tillman filed a petition to dismiss the present case on the ground that it is moot. Counsel for the petitioners answering the motion, claimed that the plaintiffs and
petitioners possession of the three apartment houses, reserving all of their rights against respondents including the right to collect rents and damages; that they have
not been paid rents since January 1, 1947; that respondents admitted that there is a total of P109,895 in rentals due and owing to petitioners; that should this case be
now dismissed, the petitioners will be unable to enforce collection; that the question of law involved in this case may again come up before the courts when conflicts
arise between Filipino civilian property owners and the U.S. Army authorities concerning contracts entered into in the Philippines between said Filipinos and the U.S.
Government. Consequently, this Court, according to the petitioners, far from dismissing the case, should decide it, particularly the question of jurisdiction.
On June 18, 1949, through a "petition to amend complaint" counsel for the petitioners informed this court that petitioners had already received the U. S. Army Forces
in the Western Pacific the sum of P109,895 as rentals for the three apartments, but with the reservation that said acceptance should not be construed as jeopardizing
the rights of the petitioners in the case now pending in the courts of the Philippines or their rights against the U. S. Government with respect to the three apartment
houses. In view of this last petition, counsel for respondents alleging that both respondent Moore and Tillman had long left the Islands for other Army assignments,
and now that both the possession of the three apartments in question as well as the rentals for their occupation have already been received by the petitioners renew
their motion for dismissal on the ground that this case has now become moot.
The main purpose of the original action in the municipal court was to recover the possession of the three apartment houses in question. The recovery of rentals as
submitted by the very counsel for the petitioner was merely incidental to the main action. Because the prime purpose of the action had been achieved, namely, the
recovery of the possession of the premises, apart from the fact that the rentals amounting to P109,895 had been paid to the petitioners and accepted by them
though under reservations, this Court may now well dismiss the present proceedings on the ground that the questions involved therein have become academic and
moot. Counsel for the petitioners however, insists that a decision be rendered on the merits, particularly on the question of jurisdiction of the municipal court over
the original action, not only for the satisfaction of the parties involved but also to serve as a guide in future cases involving cases of similar nature such as contracts of
lease entered into between the Government of the United States of America on one side and Filipino citizens on the other regarding properties of the latter. We
accept the suggestion of petitioners and shall proceed to discuss the facts and law involved and rule upon them.
We shall concede as correctly did the Court of First Instance, that following the doctrine laid down in the cases of U. S. vs. Lee and U. S. vs. Tindal, supra, a private
citizen claiming title and right of possession of a certain property may, to recover possession of said property, sue as individuals, officers and agents of the
Government who are said to be illegally witholding the same from him, though in doing so, said officers and agents claim that they are acting for the Government,
and the court may entertain such a suit altho the Government itself is not included as a party-defendant. Of course, the Government is not bound or concluded by
the decision. The philosophy of this ruling is that unless the courts are permitted to take cognizance and to assume jurisdiction over such a case, a private citizen
would be helpless and without redress and protection of his rights which may have been invaded by the officers of the government professing to act in its name. In
such a case the officials or agents asserting rightful possession must prove and justify their claim before the courts, when it is made to appear in the suit against them
that the title and right of possession is in the private citizen. 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. (See case of
Land vs. Dollar, 91 Law. ed., 1209.)
From a careful study of this case, considering the facts involved therein as well as those of public knowledge of which we take judicial cognizance, we are convinced
that the real party in interest as defendant in the original case is the United States of America. The lessee in each of the three lease agreements was the United States
of America and the lease agreement themselves were executed in her name by her officials acting as her agents. The considerations or rentals was always paid by the
U. S. Government. The original action in the municipal court was brought on the basis of these three lease contracts and it is obvious in the opinion of this court that
 40

any back rentals or increased rentals will have to be paid by the U. S. Government not only because, as already stated, the contracts of lease were entered into by
such Government but also because the premises were used by officers of her armed forces during the war and immediately after the terminations of hostilities.
We cannot see how the defendants and respondents Moore and Tillman could be held individually responsible for the payments of rentals or damages in relation to
the occupancy of the apartment houses in question. Both of these army officials had no intervention whatsoever in the execution of the lease agreements nor in the
initial occupancy of the premises both of which were effected thru the intervention of and at the instance of their predecessors in office. The original request made
by the petitioners for the return of the apartment buildings after the supposed termination of the leases, was made to, and denied not by Moore and Tillman but by
their predecessors in office. The notice and decision that the U. S. Army wanted and in fact continued to occupy the premises was made not by Moore and Tillman
but by predecessors in office. The refusal to renegotiate the leases as requested by the petitioners was made not by Moore but by his predecessors in office
according to the very complaint filed in the municipal court. The assurance that the U. S. Army will vacate the premises prior to February 29, 1947, was also made by
the predecessors in office of Moore.
As to the defendant Tillman, according to the complaint he was Chief, Real State Division, Office of the District Engineer, U. S. Army, and was in direct charge and
control of the leases and occupancy of the apartment buildings, but he was under the command of defendant Moore, his superior officer. We cannot see how said
defendant Tillman in assigning new officers to occupy apartments in the three buildings, in obedience to order or direction from his superior, defendant Moore, could
be held personally liable for the payment of rentals or increase thereof, or damages said to have been suffered by the plaintiffs.
With respect to defendant General Moore, when he assumed his command in Manila, these lease agreement had already been negotiated and executed and were in
actual operation. The three apartment buildings were occupied by army officers assigned thereto by his predecessors in office. All that he must have done was to
assign or billet incoming army officers to apartments as they were vacated by outgoing officers due to changes in station. He found these apartment buildings
occupied by his government and devoted to the use and occupancy of army officers stationed in Manila under his command, and he had reasons to believe that he
could continue holding and using the premises theretofore assigned for that purpose and under contracts previously entered into by his government, as long as and
until orders to the contrary were received by him. It is even to be presumed that when demand was made by the plaintiffs for the payment of increased rentals or for
vacating the three apartment buildings, defendant Moore, not a lawyer by profession but a soldier, must have consulted and sought the advise of his legal
department, and that his action in declining to pay the increased rentals or to eject all his army officers from the three buildings must have been in pursuance to the
advice and counsel of his legal division. At least, he was not in a position to pay increased rentals above those set and stipulated in the lease agreements, without the
approval of his government, unless he personally assumed financial responsibility therefor. Under these circumstances, neither do we believe nor find that defendant
Moore can be held personally liable for the payment of back or increased rentals and alleged damages.
As to the army officers who actually occupied the apartments involved, there is less reason for holding them personally liable for rentals and supposed damages as
sought by the plaintiffs. It must be remembered that these army officers when coming to their station in Manila were not given the choice of their dwellings. They
were merely assigned quarters in the apartment buildings in question. Said assignments or billets may well be regarded as orders, and all that those officers did was
to obey them, and, accordingly, occupied the rooms assigned to them. Under such circumstances, can it be supposed or conceived that such army officers would first
inquire whether the rental being paid by the government for the rooms or apartments assigned to them by order of their superior officer was fair and reasonable or
not, and whether the period of lease between their government and the owners of the premises had expired, and whether their occupancy of their rooms or
apartments was legal or illegal? And if they dismissed these seemingly idle speculations, assuming that they ever entered their minds, and continued to live in their
apartments unless and until orders to the contrary were received by them, could they later be held personally liable for any back rentals which their government may
have failed to pay to the owners of the building, or for any damages to the premises incident to all leases of property, specially in the absence of proof that such
damages to property had been caused by them and not by the previous occupants, also army officers who are not now parties defendant to this suit? Incidentally it
may be stated that both defendants Moore and Tillman have long left these Islands to assume other commands or assignments and in all probability none of their 64
co-defendants is still within this jurisdiction.
On the basis of the foregoing considerations we are of the belief and we hold that the real party defendant in interest is the Government of the United States of
America; that any judgment for back or increased rentals or damages will have to be paid not by defendants Moore and Tillman and their 64 co-defendants but by the
said U. S. Government. On the basis of the ruling in the case of Land vs. Dollar already cited, and on what we have already stated, the present action must be
considered as one against the U. S. Government. It is clear that the courts of the Philippines including the Municipal Court of Manila have no jurisdiction over the
present case for unlawful detainer. The question of lack of jurisdiction was raised and interposed at the very beginning of the action. The U. S. Government has not
given its consent to the filing of this suit which is essentially against her, though not in name. Moreover, this is not only a case of a citizen filing a suit against his own
Government without the latter's consent but it is of citizen filing an action against a foreign government without said government's consent, which renders more
obvious the lack of jurisdiction of the courts of his country. The principles of the law behind this rule are so elementary and of such general acceptance that we deem
it unnecessary to cite authorities in support thereof.
In conclusion we find that the Municipal Court of Manila committed no error in dismissing the case for lack of jurisdiction and that the Court of First Instance acted
correctly in affirming the municipal court's order of dismissal. Case dismissed, without pronouncement as to costs.

G.R. No. L-46930 June 10, 1988

DALE SANDERS, AND A.S. MOREAU, JR, petitioners,
vs.
HON. REGINO T. VERIDIANO II, as Presiding Judge, Branch I, Court of First Instance of Zambales, Olongapo City, ANTHONY M. ROSSI and RALPH L.
WYERS, respondents.

CRUZ, J.:
The basic issue to be resolved in this case is whether or not the petitioners were performing their official duties when they did the acts for which they have been sued
for damages by the private respondents. Once this question is decided, the other answers will fall into place and this petition need not detain us any longer than it
already has.
Petitioner Sanders was, at the time the incident in question occurred, the special services director of the U.S. Naval Station (NAVSTA) in Olongapo City. 1 Petitioner
Moreau was the commanding officer of the Subic Naval Base, which includes the said station. 2 Private respondent Rossi is an American citizen with permanent
residence in the Philippines,3 as so was private respondent Wyer, who died two years ago. 4 They were both employed as gameroom attendants in the special services
department of the NAVSTA, the former having been hired in 1971 and the latter in 1969. 5
On October 3, 1975, the private respondents were advised that their employment had been converted from permanent full-time to permanent part-time, effective
October 18, 1975. 6 Their reaction was to protest this conversion and to institute grievance proceedings conformably to the pertinent rules and regulations of the U.S.
Department of Defense. The result was a recommendation from the hearing officer who conducted the proceedings for the reinstatement of the private respondents
to permanent full-time status plus backwages. The report on the hearing contained the observation that "Special Services management practices an autocratic form
of supervision." 7
In a letter addressed to petitioner Moreau on May 17, 1976 (Annex "A" of the complaint), Sanders disagreed with the hearing officer's report and asked for the
rejection of the abovestated recommendation. The letter contained the statements that: a ) "Mr. Rossi tends to alienate most co-workers and supervisors;" b)
 41

"Messrs. Rossi and Wyers have proven, according to their immediate supervisors, to be difficult employees to supervise;" and c) "even though the grievants were
under oath not to discuss the case with anyone, (they) placed the records in public places where others not involved in the case could hear."
On November 7, 1975, before the start of the grievance hearings, a-letter (Annex "B" of the complaint) purportedly corning from petitioner Moreau as the
commanding general of the U.S. Naval Station in Subic Bay was sent to the Chief of Naval Personnel explaining the change of the private respondent's employment
status and requesting concurrence therewith. The letter did not carry his signature but was signed by W.B. Moore, Jr. "by direction," presumably of Moreau.
On the basis of these antecedent facts, the private respondent filed in the Court of First Instance of Olongapo City a for damages against the herein petitioners on
November 8, 1976.8 The plaintiffs claimed that the letters contained libelous imputations that had exposed them to ridicule and caused them mental anguish and that
the prejudgment of the grievance proceedings was an invasion of their personal and proprietary rights.
The private respondents made it clear that the petitioners were being sued in their private or personal capacity. However, in a motion to dismiss filed under a special
appearance, the petitioners argued that the acts complained of were performed by them in the discharge of their official duties and that, consequently, the court had
no jurisdiction over them under the doctrine of state immunity.
After extensive written arguments between the parties, the motion was denied in an order dated March 8, 1977, 9 on the main ground that the petitioners had not
presented any evidence that their acts were official in nature and not personal torts, moreover, the allegation in the complaint was that the defendants had acted
maliciously and in bad faith. The same order issued a writ of preliminary attachment, conditioned upon the filing of a P10,000.00 bond by the plaintiffs, against the
properties of petitioner Moreau, who allegedly was then about to leave the Philippines. Subsequently, to make matters worse for the defendants, petitioner Moreau
was declared in a default by the trial court in its order dated August 9, 1977. The motion to lift the default order on the ground that Moreau's failure to appear at the
pre-trial conference was the result of some misunderstanding, and the motion for reconsideration of the denial of the motion to dismiss, which was filed by the
petitioner's new lawyers, were denied by the respondent court on September 7, 1977.
This petition for certiorari, prohibition and preliminary injunction was thereafter filed before this Court, on the contention that the above-narrated acts of the
respondent court are tainted with grave abuse of discretion amounting to lack of jurisdiction.
We return now to the basic question of whether the petitioners were acting officially or only in their private capacities when they did the acts for which the private
respondents have sued them for damages.
It is stressed at the outset that the mere allegation that a government functionary is being sued in his personal capacity will not automatically remove him from the
protection of the law of public officers and, if appropriate, the doctrine of state immunity. By the same token, the mere invocation of official character will not suffice
to insulate him from suability and liability for an act imputed to him as a personal tort committed without or in excess of his authority. These well-settled principles
are applicable not only to the officers of the local state but also where the person sued in its courts pertains to the government of a foreign state, as in the present
case.
The respondent judge, apparently finding that the complained acts were prima facie personal and tortious, decided to proceed to trial to determine inter alia their
precise character on the strength of the evidence to be submitted by the parties. The petitioners have objected, arguing that no such evidence was needed to
substantiate their claim of jurisdictional immunity. Pending resolution of this question, we issued a temporary restraining order on September 26, 1977, that has
since then suspended the proceedings in this case in the court a quo.
In past cases, this Court has held that where the character of the act complained of can be determined from the pleadings exchanged between the parties before the
trial, it is not necessary for the court to require them to belabor the point at a trial still to be conducted. Such a proceeding would be superfluous, not to say unfair to
the defendant who is subjected to unnecessary and avoidable inconvenience.
Thus, in Baer v. Tizon, 10 we held that a motion to dismiss a complaint against the commanding general of the Olongapo Naval Base should not have been denied
because it had been sufficiently shown that the act for which he was being sued was done in his official capacity on behalf of the American government. The United
States had not given its consent to be sued. It was the reverse situation in Syquia v. Almeda Lopez," where we sustained the order of the lower court granting a where
we motion to dismiss a complaint against certain officers of the U.S. armed forces also shown to be acting officially in the name of the American government. The
United States had also not waived its immunity from suit. Only three years ago, in United States of America v. Ruiz, 12 we set aside the denial by the lower court of a
motion to dismiss a complaint for damages filed against the United States and several of its officials, it appearing that the act complained of was governmental rather
than proprietary, and certainly not personal. In these and several other cases 13 the Court found it redundant to prolong the other case proceedings after it had
become clear that the suit could not prosper because the acts complained of were covered by the doctrine of state immunity.
It is abundantly clear in the present case that the acts for which the petitioners are being called to account were performed by them in the discharge of their official
duties. Sanders, as director of the special services department of NAVSTA, undoubtedly had supervision over its personnel, including the private respondents, and
had a hand in their employment, work assignments, discipline, dismissal and other related matters. It is not disputed that the letter he had written was in fact a reply
to a request from his superior, the other petitioner, for more information regarding the case of the private respondents.14 Moreover, even in the absence of such
request, he still was within his rights in reacting to the hearing officer's criticism—in effect a direct attack against him—-that Special Services was practicing "an
autocratic form of supervision."
As for Moreau,what he is claimed to have done was write the Chief of Naval Personnel for concurrence with the conversion of the private respondents' type of
employment even before the grievance proceedings had even commenced. Disregarding for the nonce the question of its timeliness, this act is clearly official in
nature, performed by Moreau as the immediate superior of Sanders and directly answerable to Naval Personnel in matters involving the special services department
of NAVSTA In fact, the letter dealt with the financial and budgetary problems of the department and contained recommendations for their solution, including the re-
designation of the private respondents. There was nothing personal or private about it.
Given the official character of the above-described letters, we have to conclude that the petitioners were, legally speaking, being sued as officers of the United States
government. As they have acted on behalf of that government, and within the scope of their authority, it is that government, and not the petitioners personally, that
is responsible for their acts. Assuming that the trial can proceed and it is proved that the claimants have a right to the payment of damages, such award will have to
be satisfied not by the petitioners in their personal capacities but by the United States government as their principal. This will require that government to perform an
affirmative act to satisfy the judgment, viz, the appropriation of the necessary amount to cover the damages awarded, thus making the action a suit against that
government without its consent.
There should be no question by now that such complaint cannot prosper unless the government sought to be held ultimately liable has given its consent to' be sued.
So we have ruled not only in Baer but in many other decisions where we upheld the doctrine of state immunity as applicable not only to our own government but also
to foreign states sought to be subjected to the jurisdiction of our courts. 15
The practical justification for the doctrine, as Holmes put it, is that "there can be no legal right against the authority which makes the law on which the right
depends.16 In the case of foreign states, the rule is derived from the principle of the sovereign equality of states which wisely admonishes that par in parem non habet
imperium and that a contrary attitude would "unduly vex the peace of nations." 17 Our adherence to this precept is formally expressed in Article II, Section 2, of our
Constitution, where we reiterate from our previous charters that the Philippines "adopts the generally accepted principles of international law as part of the law of
the land.
All this is not to say that in no case may a public officer be sued as such without the previous consent of the state. To be sure, there are a number of well-recognized
exceptions. It is clear that a public officer may be sued as such to compel him to do an act required by law, as where, say, a register of deeds refuses to record a deed
of sale; 18 or to restrain a Cabinet member, for example, from enforcing a law claimed to be unconstitutional; 19 or to compel the national treasurer to pay damages
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from an already appropriated assurance fund; 20 or the commissioner of internal revenue to refund tax over-payments from a fund already available for the
purpose; 21 or, in general, to secure a judgment that the officer impleaded may satisfy by himself without the government itself having to do a positive act to assist
him. We have also held that where the government itself has violated its own laws, the aggrieved party may directly implead the government even without first filing
his claim with the Commission on Audit as normally required, as the doctrine of state immunity "cannot be used as an instrument for perpetrating an injustice." 22
This case must also be distinguished from such decisions as Festejo v. Fernando, 23 where the Court held that a bureau director could be sued for damages on a
personal tort committed by him when he acted without or in excess of authority in forcibly taking private property without paying just compensation therefor
although he did convert it into a public irrigation canal. It was not necessary to secure the previous consent of the state, nor could it be validly impleaded as a party
defendant, as it was not responsible for the defendant's unauthorized act.
The case at bar, to repeat, comes under the rule and not under any of the recognized exceptions. The government of the United States has not given its consent to be
sued for the official acts of the petitioners, who cannot satisfy any judgment that may be rendered against them. As it is the American government itself that will have
to perform the affirmative act of appropriating the amount that may be adjudged for the private respondents, the complaint must be dismissed for lack of
jurisdiction.
The Court finds that, even under the law of public officers, the acts of the petitioners are protected by the presumption of good faith, which has not been overturned
by the private respondents. Even mistakes concededly committed by such public officers are not actionable as long as it is not shown that they were motivated by
malice or gross negligence amounting to bad faith.24 This, to, is well settled .25 Furthermore, applying now our own penal laws, the letters come under the concept of
privileged communications and are not punishable, 26 let alone the fact that the resented remarks are not defamatory by our standards. It seems the private
respondents have overstated their case.
A final consideration is that since the questioned acts were done in the Olongapo Naval Base by the petitioners in the performance of their official duties and the
private respondents are themselves American citizens, it would seem only proper for the courts of this country to refrain from taking cognizance of this matter and to
treat it as coming under the internal administration of the said base.
The petitioners' counsel have submitted a memorandum replete with citations of American cases, as if they were arguing before a court of the United States. The
Court is bemused by such attitude. While these decisions do have persuasive effect upon us, they can at best be invoked only to support our own jurisprudence,
which we have developed and enriched on the basis of our own persuasions as a people, particularly since we became independent in 1946.
We appreciate the assistance foreign decisions offer us, and not only from the United States but also from Spain and other countries from which we have derived
some if not most of our own laws. But we should not place undue and fawning reliance upon them and regard them as indispensable mental crutches without which
we cannot come to our own decisions through the employment of our own endowments We live in a different ambience and must decide our own problems in the
light of our own interests and needs, and of our qualities and even idiosyncrasies as a people, and always with our own concept of law and justice.
The private respondents must, if they are still sominded, pursue their claim against the petitioners in accordance with the laws of the United States, of which they are
all citizens and under whose jurisdiction the alleged offenses were committed. Even assuming that our own laws are applicable, the United States government has
not decided to give its consent to be sued in our courts, which therefore has not acquired the competence to act on the said claim,.
WHEREFORE, the petition is GRANTED. The challenged orders dated March 8,1977, August 9,1977, and September 7, 1977, are SET ASIDE. The respondent court is
directed to DISMISS Civil Case No. 2077-O. Our Temporary restraining order of September 26,1977, is made PERMANENT. No costs.
SO ORDERED.