Number 4 G.R.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 110120 March 16, 1994
LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner, 
vs.
COURT OF APPEALS, HON. MANUEL JN. SERAPIO,
Presiding Judge RTC, Branch 127, Caloocan City, HON.
MACARIO A. ASISTIO, JR., City Mayor of Caloocan and/or
THE CITY GOVERNMENT OF CALOOCAN, respondents.
Alberto N. Hidalgo and Ma. Teresa T. Oledan for petitioner.
The City Legal Officer & Chief, Law Department for Mayor Macario
A. Asistio, Jr. and the City Government of Caloocan.
ROMERO, J.:
The clash between the responsibility of the City Government of
Caloocan to dispose off the 350 tons of garbage it collects daily and
the growing concern and sensitivity to a pollution-free environment of
the residents of Barangay Camarin, Tala Estate, Caloocan City where
these tons of garbage are dumped everyday is the hub of this
controversy elevated by the protagonists to the Laguna Lake
Development Authority (LLDA) for adjudication.
The instant case stemmed from an earlier petition filed with this Court
by Laguna Lake Development Authority (LLDA for short) docketed as
No. 107542 against the City Government of Caloocan, et al. In the
Resolution of November 10, 1992, this Court referred G.R. No.
107542 to the Court of Appeals for appropriate disposition. Docketed
therein as CA-G.R. SP 
1
No. 29449, the Court of Appeals, in a decision  promulgated on
January 29, 1993 ruled that the LLDA has no power and authority to
issue a cease and desist order enjoining the dumping of garbage in
Barangay Camarin, Tala Estate, Caloocan City. The LLDA now seeks,
in this petition, a review of the decision of the Court of Appeals.
The facts, as disclosed in the records, are undisputed.
On March 8, 1991, the Task Force Camarin Dumpsite of Our Lady of
Lourdes Parish, Barangay Camarin, Caloocan City, filed a letter-
complaint2 with the Laguna Lake Development Authority seeking to
stop the operation of the 8.6-hectare open garbage dumpsite in Tala
Estate, Barangay Camarin, Caloocan City due to its harmful effects on
the health of the residents and the possibility of pollution of the water
content of the surrounding area.
On November 15, 1991, the LLDA conducted an on-site investigation,
monitoring and test sampling of the leachate 3that seeps from said
dumpsite to the nearby creek which is a tributary of the Marilao River.
The LLDA Legal and Technical personnel found that the City
Government of Caloocan was maintaining an open dumpsite at the
Camarin area without first securing an Environmental Compliance
Certificate (ECC) from the Environmental Management Bureau
(EMB) of the Department of Environment and Natural Resources, as
required under Presidential Decree No. 1586,4 and clearance from
LLDA as required under Republic Act No. 4850, 5 as amended by
Presidential Decree No. 813 and Executive Order No. 927, series of
1983.6
After a public hearing conducted on December 4, 1991, the LLDA,
acting on the complaint of Task Force Camarin Dumpsite, found that
the water collected from the leachate and the receiving streams could
considerably affect the quality, in turn, of the receiving waters since it
indicates the presence of bacteria, other than coliform, which may
have contaminated the sample during collection or handling. 7 On
December 5, 1991, the LLDA issued a Cease and Desist
Order8 ordering the City Government of Caloocan, Metropolitan
Manila Authority, their contractors, and other entities, to completely
halt, stop and desist from dumping any form or kind of garbage and
other waste matter at the Camarin dumpsite.
The dumping operation was forthwith stopped by the City Government
of Caloocan. However, sometime in August 1992 the dumping
operation was resumed after a meeting held in July 1992 among the
City Government of Caloocan, the representatives of Task Force
Camarin Dumpsite and LLDA at the Office of Environmental
Management Bureau Director Rodrigo U. Fuentes failed to settle the
problem.
After an investigation by its team of legal and technical personnel on
August 14, 1992, the LLDA issued another order reiterating the
December 5, 1991, order and issued an Alias Cease and Desist Order
enjoining the City Government of Caloocan from continuing its
dumping operations at the Camarin area.
On September 25, 1992, the LLDA, with the assistance of the
Philippine National Police, enforced its Alias Cease and Desist Order
by prohibiting the entry of all garbage dump trucks into the Tala
Estate, Camarin area being utilized as a dumpsite.
Pending resolution of its motion for reconsideration earlier filed on
September 17, 1992 with the LLDA, the City Government of Caloocan
filed with the Regional Trial Court of Caloocan City an action for the
declaration of nullity of the cease and desist order with prayer for the
issuance of writ of injunction, docketed as Civil Case No. C-15598. In
its complaint, the City Government of Caloocan sought to be declared
as the sole authority empowered to promote the health and safety and
enhance the right of the people in Caloocan City to a balanced ecology
within its territorial jurisdiction.9
On September 25, 1992, the Executive Judge of the Regional Trial
Court of Caloocan City issued a temporary restraining order enjoining
the LLDA from enforcing its cease and desist order. Subsequently, the
case was raffled to the Regional Trial Court, Branch 126 of Caloocan
which, at the time, was presided over by Judge Manuel Jn. Serapio of
the Regional Trial Court, Branch 127, the pairing judge of the
recently-retired presiding judge.
The LLDA, for its part, filed on October 2, 1992 a motion to dismiss
on the ground, among others, that under Republic Act No. 3931, as
amended by Presidential Decree No. 984, otherwise known as the
Pollution Control Law, the cease and desist order issued by it which is
the subject matter of the complaint is reviewable both upon the law
and the facts of the case by the Court of Appeals and not by the
Regional Trial Court. 10
On October 12, 1992 Judge Manuel Jn. Serapio issued an order
consolidating Civil Case No. C-15598 with Civil Case No. C-15580,
an earlier case filed by the Task Force Camarin Dumpsite entitled "Fr.
John Moran, et al. vs. Hon. Macario Asistio." The LLDA, however,
maintained during the trial that the foregoing cases, being independent
of each other, should have been treated separately.
On October 16, 1992, Judge Manuel Jn. Serapio, after hearing the
motion to dismiss, issued in the consolidated cases an order 11 denying
LLDA's motion to dismiss and granting the issuance of a writ of
preliminary injunction enjoining the LLDA, its agent and all persons
acting for and on its behalf, from enforcing or implementing its cease
and desist order which prevents plaintiff City of Caloocan from
dumping garbage at the Camarin dumpsite during the pendency of this
case and/or until further orders of the court.
On November 5, 1992, the LLDA filed a petition for certiorari,
prohibition and injunction with prayer for restraining order with the
Supreme Court, docketed as G.R. No. 107542, seeking to nullify the
aforesaid order dated October 16, 1992 issued by the Regional Trial
Court, Branch 127 of Caloocan City denying its motion to dismiss.
The Court, acting on the petition, issued a Resolution 12 on November
10, 1992 referring the case to the Court of Appeals for proper
disposition and at the same time, without giving due course to the
petition, required the respondents to comment on the petition and file
the same with the Court of Appeals within ten (10) days from notice.
In the meantime, the Court issued a temporary restraining order,
effective immediately and continuing until further orders from it,
ordering the respondents: (1) Judge Manuel Jn. Serapio, Presiding
Judge, Regional Trial Court, Branch 127, Caloocan City to cease and
desist from exercising jurisdiction over the case for declaration of
nullity of the cease and desist order issued by the Laguna Lake
Development Authority (LLDA); and (2) City Mayor of Caloocan
and/or the City Government of Caloocan to cease and desist from
dumping its garbage at the Tala Estate, Barangay Camarin, Caloocan
City.
Respondents City Government of Caloocan and Mayor Macario A.
Asistio, Jr. filed on November 12, 1992 a motion for reconsideration
and/or to quash/recall the temporary restraining order and an urgent
motion for reconsideration alleging that ". . . in view of the calamitous
situation that would arise if the respondent city government fails to
collect 350 tons of garbage daily for lack of dumpsite (i)t is therefore,
imperative that the issue be resolved with dispatch or with sufficient
leeway to allow the respondents to find alternative solutions to this
garbage problem."
On November 17, 1992, the Court issued a Resolution 13 directing the
Court of Appeals to immediately set the case for hearing for the
purpose of determining whether or not the temporary restraining order
issued by the Court should be lifted and what conditions, if any, may
be required if it is to be so lifted or whether the restraining order
should be maintained or converted into a preliminary injunction.
The Court of Appeals set the case for hearing on November 27, 1992,
at 10:00 in the morning at the Hearing Room, 3rd Floor, New
Building, Court of Appeals.14 After the oral argument, a conference
was set on December 8, 1992 at 10:00 o'clock in the morning where
the Mayor of Caloocan City, the General Manager of LLDA, the
Secretary of DENR or his duly authorized representative and the
Secretary of DILG or his duly authorized representative were required
to appear.
It was agreed at the conference that the LLDA had until December 15,
1992 to finish its study and review of respondent's technical plan with
respect to the dumping of its garbage and in the event of a rejection of
respondent's technical plan or a failure of settlement, the parties will
submit within 10 days from notice their respective memoranda on the
merits of the case, after which the petition shall be deemed submitted
for resolution.15Notwithstanding such efforts, the parties failed to settle
the dispute.
On April 30, 1993, the Court of Appeals promulgated its decision
holding that: (1) the Regional Trial Court has no jurisdiction on appeal
to try, hear and decide the action for annulment of LLDA's cease and
desist order, including the issuance of a temporary restraining order
and preliminary injunction in relation thereto, since appeal therefrom
is within the exclusive and appellate jurisdiction of the Court of
Appeals under Section 9, par. (3), of Batas Pambansa Blg. 129; and (2)
the Laguna Lake Development Authority has no power and authority
to issue a cease and desist order under its enabling law, Republic Act
No. 4850, as amended by P.D. No. 813 and Executive Order 
No. 927, series of 1983.
The Court of Appeals thus dismissed Civil Case No. 15598 and the
preliminary injunction issued in the said case was set aside; the cease
and desist order of LLDA was likewise set aside and the temporary
restraining order enjoining the City Mayor of Caloocan and/or the City
Government of Caloocan to cease and desist from dumping its garbage
at the Tala Estate, Barangay Camarin, Caloocan City was lifted,
subject, however, to the condition that any future dumping of garbage
in said area, shall be in conformity with the procedure and protective
works contained in the proposal attached to the records of this case and
found on pages 152-160 of the Rollo, which was thereby adopted by
reference and made an integral part of the decision, until the
corresponding restraining and/or injunctive relief is granted by the
proper Court upon LLDA's institution of the necessary legal
proceedings.
Hence, the Laguna Lake Development Authority filed the instant
petition for review on certiorari, now docketed as G.R. No. 110120,
with prayer that the temporary restraining order lifted by the Court of
Appeals be re-issued until after final determination by this Court of the
issue on the proper interpretation of the powers and authority of the
LLDA under its enabling law.
On July, 19, 1993, the Court issued a temporary restraining
order16 enjoining the City Mayor of Caloocan and/or the City
Government of Caloocan to cease and desist from dumping its garbage
at the Tala Estate, Barangay Camarin, Caloocan City, effective as of
this date and containing until otherwise ordered by the Court.
It is significant to note that while both parties in this case agree on the
need to protect the environment and to maintain the ecological balance
of the surrounding areas of the Camarin open dumpsite, the question as
to which agency can lawfully exercise jurisdiction over the matter
remains highly open to question.
The City Government of Caloocan claims that it is within its power, as
a local government unit, pursuant to the general welfare provision of
the Local Government Code, 17 to determine the effects of the
operation of the dumpsite on the ecological balance and to see that
such balance is maintained. On the basis of said contention, it
questioned, from the inception of the dispute before the Regional Trial
Court of Caloocan City, the power and authority of the LLDA to issue
a cease and desist order enjoining the dumping of garbage in the
Barangay Camarin over which the City Government of Caloocan has
territorial jurisdiction.
The Court of Appeals sustained the position of the City of Caloocan on
the theory that Section 7 of Presidential Decree No. 984, otherwise
known as the Pollution Control law, authorizing the defunct National
Pollution Control Commission to issue an ex-parte cease and desist
order was not incorporated in Presidential Decree No. 813 nor in
Executive Order No. 927, series of  revoke, suspend or modify any permit issued under this
1983. The Court of Appeals ruled that under Section 4, par. (d), of
Republic Act No. 4850, as amended, the LLDA is instead required "to
institute the necessary legal proceeding against any person who shall
commence to implement or continue implementation of any project,
plan or program within the Laguna de Bay region without previous
clearance from the Authority."
The LLDA now assails, in this partition for review, the
abovementioned ruling of the Court of Appeals, contending that, as an
administrative agency which was granted regulatory and adjudicatory
powers and functions by Republic Act No. 4850 and its amendatory
laws, Presidential Decree No. 813 and Executive Order No. 927, series
of 1983, it is invested with the power and authority to issue a cease
and desist order pursuant to Section 4 par. (c), (d), (e), (f) and (g) of
Executive Order No. 927 series of 1983 which provides, thus:
Sec. 4. Additional Powers and Functions. The authority
shall have the following powers and functions:
xxx xxx xxx
(c) Issue orders or decisions to compel compliance with
the provisions of this Executive Order and its
implementing rules and regulations only after proper
notice and hearing.
(d) Make, alter or modify orders requiring the
discontinuance of pollution specifying the conditions
and the time within which such discontinuance must be
accomplished.
(e) Issue, renew, or deny permits, under such conditions
as it may determine to be reasonable, for the prevention
and abatement of pollution, for the discharge of sewage,
industrial waste, or for the installation or operation of
sewage works and industrial disposal system or parts
thereof.
(f) After due notice and hearing, the Authority may also
Order whenever the same is necessary to prevent or
abate pollution.
(g) Deputize in writing or request assistance of
appropriate government agencies or instrumentalities
for the purpose of enforcing this Executive Order and
 its implementing rules and regulations and the orders
and decisions of the Authority.
The LLDA claims that the appellate court deliberately suppressed and
totally disregarded the above provisions of Executive Order No. 927,
series of 1983, which granted administrative quasi-judicial functions to
LLDA on pollution abatement cases.
In light of the relevant environmental protection laws cited which are
applicable in this case, and the corresponding overlapping jurisdiction
of government agencies implementing these laws, the resolution of the
issue of whether or not the LLDA has the authority and power to issue
an order which, in its nature and effect was injunctive, necessarily
requires a determination of the threshold question: Does the Laguna
Lake Development Authority, under its Charter and its amendatory
laws, have the authority to entertain the complaint against the dumping
of garbage in the open dumpsite in Barangay Camarin authorized by
the City Government of Caloocan which is allegedly endangering the
health, safety, and welfare of the residents therein and the sanitation
and quality of the water in the area brought about by exposure to
pollution caused by such open garbage dumpsite?
The matter of determining whether there is such pollution of the
environment that requires control, if not prohibition, of the operation
of a business establishment is essentially addressed to the
Environmental Management Bureau (EMB) of the DENR which, by
virtue of Section 16 of Executive Order No. 192, series of 1987, 18 has
assumed the powers and functions of the defunct National Pollution
Control Commission created under Republic Act No. 3931. Under said
Executive Order, a Pollution Adjudication Board (PAB) under the
Office of the DENR Secretary now assumes the powers and functions
of the National Pollution Control Commission with respect to
adjudication of pollution cases. 19
As a general rule, the adjudication of pollution cases generally pertains
to the Pollution Adjudication Board (PAB), except in cases where the
special law provides for another forum. It must be recognized in this
regard that the LLDA, as a specialized administrative agency, is
specifically mandated under Republic Act No. 4850 and its
amendatory laws to carry out and make effective the declared national
policy20 of promoting and accelerating the development and balanced
growth of the Laguna Lake area and the surrounding provinces of
Rizal and Laguna and the cities of San Pablo, Manila, Pasay, Quezon
and Caloocan21 with due regard and adequate provisions for
environmental management and control, preservation of the quality of
human life and ecological systems, and the prevention of undue
ecological disturbances, deterioration and pollution. Under such a
broad grant and power and authority, the LLDA, by virtue of its
special charter, obviously has the responsibility to protect the
inhabitants of the Laguna Lake region from the deleterious effects of
pollutants emanating from the discharge of wastes from the
surrounding areas. In carrying out the aforementioned declared policy,
the LLDA is mandated, among others, to pass upon and approve or
disapprove all plans, programs, and projects proposed by local
government offices/agencies within the region, public corporations,
and private persons or enterprises where such plans, programs and/or
projects are related to those of the LLDA for the development of the
region. 22
In the instant case, when the complainant Task Force Camarin
Dumpsite of Our Lady of Lourdes Parish, Barangay Camarin,
Caloocan City, filed its letter-complaint before the LLDA, the latter's
jurisdiction under its charter was validly invoked by complainant on
the basis of its allegation that the open dumpsite project of the City
Government of Caloocan in Barangay Camarin was undertaken
without a clearance from the LLDA, as required under Section 4, par.
(d), of Republic Act. No. 4850, as amended by P.D. No. 813 and
Executive Order No. 927. While there is also an allegation that the said
project was without an Environmental Compliance Certificate from the
Environmental Management Bureau (EMB) of the DENR, the primary
jurisdiction of the LLDA over this case was recognized by the
Environmental Management Bureau of the DENR when the latter
acted as intermediary at the meeting among the representatives of the
City Government of Caloocan, Task Force Camarin Dumpsite and
LLDA sometime in July 1992 to discuss the possibility of 
re-opening the open dumpsite.
Having thus resolved the threshold question, the inquiry then narrows
down to the following issue: Does the LLDA have the power and
authority to issue a "cease and desist" order under Republic Act No.
4850 and its amendatory laws, on the basis of the facts presented in
this case, enjoining the dumping of garbage in Tala Estate, Barangay
Camarin, Caloocan City.
The irresistible answer is in the affirmative.
The cease and desist order issued by the LLDA requiring the City
Government of Caloocan to stop dumping its garbage in the Camarin
open dumpsite found by the LLDA to have been done in violation of
Republic Act No. 4850, as amended, and other relevant environment
laws,23 cannot be stamped as an unauthorized exercise by the LLDA of
injunctive powers. By its express terms, Republic Act No. 4850, as
amended by P.D. No. 813 and Executive Order No. 927, series of
1983, authorizes the LLDA to "make, alter or modify order requiring
the discontinuance or pollution."24 (Emphasis supplied) Section 4, par.
(d) explicitly authorizes the LLDA to make whatever order may be
necessary in the exercise of its jurisdiction.
To be sure, the LLDA was not expressly conferred the power "to issue
and ex-parte cease and desist order" in a language, as suggested by the
City Government of Caloocan, similar to the express grant to the
defunct National Pollution Control Commission under Section 7 of
P.D. No. 984 which, admittedly was not reproduced in P.D. No. 813
and E.O. No. 927, series of 1983. However, it would be a mistake to
draw therefrom the conclusion that there is a denial of the power to
issue the order in question when the power "to make, alter or modify
orders requiring the discontinuance of pollution" is expressly and
clearly bestowed upon the LLDA by Executive Order No. 927, series
of 1983.
Assuming arguendo that the authority to issue a "cease and desist
order" were not expressly conferred by law, there is jurisprudence
enough to the effect that the rule granting such authority need not
necessarily be express.25 While it is a fundamental rule that an
administrative agency has only such powers as are expressly granted to
it by law, it is likewise a settled rule that an administrative agency has
also such powers as are necessarily implied in the exercise of its
express powers.26 In the exercise, therefore, of its express powers
under its charter as a regulatory and quasi-judicial body with respect to
pollution cases in the Laguna Lake region, the authority of the LLDA
to issue a "cease and desist order" is, perforce, implied. Otherwise, it
may well be reduced to a "toothless" paper agency.
In this connection, it must be noted that in Pollution Adjudication
Board v. Court of Appeals, et al.,27 the Court ruled that the Pollution
Adjudication Board (PAB) has the power to issue an ex-parte cease
and desist order when there isprima facie evidence of an establishment
exceeding the allowable standards set by the anti-pollution laws of the
country. The ponente, Associate Justice Florentino P. Feliciano,
declared:
Ex parte cease and desist orders are permitted by law
and regulations in situations like that here presented
precisely because stopping the continuous discharge of
pollutive and untreated effluents into the rivers and
other inland waters of the Philippines cannot be made
to wait until protracted litigation over the ultimate
correctness or propriety of such orders has run its full
course, including multiple and sequential appeals such
as those which Solar has taken, which of course may
take several years. The relevant pollution control statute
and implementing regulations were enacted and
promulgated in the exercise of that pervasive, sovereign
power to protect the safety, health, and general welfare
and comfort of the public, as well as the protection of
plant and animal life, commonly designated as the
police power. It is a constitutional commonplace that
the ordinary requirements of procedural due process
yield to the necessities of protecting vital public
interests like those here involved, through the exercise
of police power. . . .
The immediate response to the demands of "the necessities of
protecting vital public interests" gives vitality to the statement on
ecology embodied in the Declaration of Principles and State Policies of mandamus and injunction which are beyond the power of the LLDA
or the 1987 Constitution. Article II, Section 16 which provides: to issue, may be sought from the proper courts.

The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature.
As a constitutionally guaranteed right of every person, it carries the
correlative duty of non-impairment. This is but in consonance with the
declared policy of the state "to protect and promote the right to health
of the people and instill health consciousness among them." 28 It is to
be borne in mind that the Philippines is party to the Universal
Declaration of Human Rights and the Alma Conference Declaration of
1978 which recognize health as a fundamental human right. 29
Insofar as the implementation of relevant anti-pollution laws in the
Laguna Lake region and its surrounding provinces, cities and towns
are concerned, the Court will not dwell further on the related issues
raised which are more appropriately addressed to an administrative
agency with the special knowledge and expertise of the LLDA.
WHEREFORE, the petition is GRANTED. The temporary restraining
order issued by the Court on July 19, 1993 enjoining the City Mayor of
Caloocan and/or the City Government of Caloocan from dumping their
garbage at the Tala Estate, Barangay Camarin, Caloocan City is hereby
made permanent.

The issuance, therefore, of the cease and desist order by the LLDA, as SO ORDERED.
a practical matter of procedure under the circumstances of the case, is
a proper exercise of its power and authority under its charter and its Feliciano, Bidin, Melo and Vitug, JJ., concur.
amendatory laws. Had the cease and desist order issued by the LLDA
been complied with by the City Government of Caloocan as it did in
the first instance, no further legal steps would have been necessary.

The charter of LLDA, Republic Act No. 4850, as amended, instead of

conferring upon the LLDA the means of directly enforcing such
orders, has provided under its Section 4 (d) the power to institute
"necessary legal proceeding against any person who shall commence
to implement or continue implementation of any project, plan or
program within the Laguna de Bay region without previous clearance
from the LLDA."

Clearly, said provision was designed to invest the LLDA with

sufficiently broad powers in the regulation of all projects initiated in
the Laguna Lake region, whether by the government or the private
sector, insofar as the implementation of these projects is concerned. It
was meant to deal with cases which might possibly arise where
decisions or orders issued pursuant to the exercise of such broad
powers may not be obeyed, resulting in the thwarting of its laudabe
objective. To meet such contingencies, then the writs

NUMBER 8
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
            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).
NUMBER 14
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-46930 June 10, 1988
DALE SANDERS, AND A.S. MOREAU, JR, petitioners,  workers and supervisors;" b) "Messrs. Rossi and Wyers have
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-
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 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.

NUMBER 19
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-13250 October 29, 1971
THE COLLECTOR OF INTERNAL REVENUE, petitioner,  The decision of the Court of Tax Appeals, now under review,
vs.
ANTONIO CAMPOS RUEDA, respondent..
Assistant Solicitor General Jose P. Alejandro and Special
Attorney Jose G. Azurin, (O.S.G.) for petitioner.
Ramirez and Ortigas for respondent.
FERNANDO, J.:
The basic issue posed by petitioner Collector of Internal
Revenue in this appeal from a decision of the Court of Tax
Appeals as to whether or not the requisites of statehood, or at
least so much thereof as may be necessary for the acquisition
of an international personality, must be satisfied for a "foreign
country" to fall within the exemption of Section 122 of the
National Internal Revenue Code1 is now ripe for adjudication.
The Court of Tax Appeals answered the question in the
negative, and thus reversed the action taken by petitioner
Collector, who would hold respondent Antonio Campos Rueda,
as administrator of the estate of the late Estrella Soriano Vda.
de Cerdeira, liable for the sum of P161,874.95 as deficiency
estate and inheritance taxes for the transfer of intangible
personal properties in the Philippines, the deceased, a Spanish
national having been a resident of Tangier, Morocco from 1931
up to the time of her death in 1955. In an earlier resolution
promulgated May 30, 1962, this Court on the assumption that
the need for resolving the principal question would be obviated,
referred the matter back to the Court of Tax Appeals to
determine whether the alleged law of Tangier did grant the
reciprocal tax exemption required by the aforesaid Section 122.
Then came an order from the Court of Tax Appeals submitting
copies of legislation of Tangier that would manifest that the
element of reciprocity was not lacking. It was not until July 29,
1969 that the case was deemed submitted for decision. When
the petition for review was filed on January 2, 1958, the basic
issue raised was impressed with an element of novelty. Four
days thereafter, however, on January 6, 1958, it was held by
this Court that the aforesaid provision does not require that the
"foreign country" possess an international personality to come
within its terms.2 Accordingly, we have to affirm.
sets forth the background facts as follows: "This is an appeal
interposed by petitioner Antonio Campos Rueda as
administrator of the estate of the deceased Doña Maria de la
Estrella Soriano Vda. de Cerdeira, from the decision of the
respondent Collector of Internal Revenue, assessing against
and demanding from the former the sum P161,874.95 as
deficiency estate and inheritance taxes, including interest and
penalties, on the transfer of intangible personal properties
situated in the Philippines and belonging to said Maria de la
Estrella Soriano Vda. de Cerdeira. Maria de la Estrella Soriano
Vda. de Cerdeira (Maria Cerdeira for short) is a Spanish
national, by reason of her marriage to a Spanish citizen and was
a resident of Tangier, Morocco from 1931 up to her death on
January 2, 1955. At the time of her demise she left, among
others, intangible personal properties in the Philippines." 3 Then
came this portion: "On September 29, 1955, petitioner filed a
provisional estate and inheritance tax return on all the properties
of the late Maria Cerdeira. On the same date, respondent,
pending investigation, issued an assessment for state and
inheritance taxes in the respective amounts of P111,592.48 and
P157,791.48, or a total of P369,383.96 which tax liabilities were
paid by petitioner ... . On November 17, 1955, an amended
return was filed ... wherein intangible personal properties with
the value of P396,308.90 were claimed as exempted from
taxes. On November 23, 1955, respondent, pending
investigation, issued another assessment for estate and
inheritance taxes in the amounts of P202,262.40 and
P267,402.84, respectively, or a total of P469,665.24 ... . In a
letter dated January 11, 1956, respondent denied the request
for exemption on the ground that the law of Tangier is not
reciprocal to Section 122 of the National Internal Revenue
Code. Hence, respondent demanded the payment of the sums
of P239,439.49 representing deficiency estate and inheritance
taxes including ad valorem penalties, surcharges, interests and
compromise penalties ... . In a letter dated February 8, 1956,
and received by respondent on the following day, petitioner
requested for the reconsideration of the decision denying the
claim for tax exemption of the intangible personal properties and
the imposition of the 25% and 5% ad valorem penalties ... .
However, respondent denied request, in his letter dated May 5,
1956 ... and received by petitioner on May 21, 1956.
Respondent premised the denial on the grounds that there was
no reciprocity [with Tangier, which was moreover] a mere
principality, not a foreign country. Consequently, respondent
demanded the payment of the sums of P73,851.21 and
P88,023.74 respectively, or a total of P161,874.95 as deficiency
estate and inheritance taxes including surcharges, interests and
compromise penalties."4
The matter was then elevated to the Court of Tax Appeals. As
there was no dispute between the parties regarding the values
of the properties and the mathematical correctness of the
deficiency assessments, the principal question as noted dealt
with the reciprocity aspect as well as the insisting by the
Collector of Internal Revenue that Tangier was not a foreign
country within the meaning of Section 122. In ruling against the
contention of the Collector of Internal Revenue, the appealed
decision states: "In fine, we believe, and so hold, that the
expression "foreign country", used in the last proviso of Section
122 of the National Internal Revenue Code, refers to a
government of that foreign power which, although not an
international person in the sense of international law, does not
impose transfer or death upon intangible person properties of
our citizens not residing therein, or whose law allows a similar
exemption from such taxes. It is, therefore, not necessary that
Tangier should have been recognized by our Government order
to entitle the petitioner to the exemption benefits of the proviso
of Section 122 of our Tax. Code."5
Hence appeal to this court by petitioner. The respective briefs of
the parties duly submitted, but as above indicated, instead of
ruling definitely on the question, this Court, on May 30, 1962,
resolve to inquire further into the question of reciprocity and sent
back the case to the Court of Tax Appeals for the motion of
evidence thereon. The dispositive portion of such resolution
reads as follows: "While section 122 of the Philippine Tax Code
aforequoted speaks of 'intangible personal property' in both
subdivisions (a) and (b); the alleged laws of Tangier refer to
'bienes muebles situados en Tanger', 'bienes muebles
radicantes en Tanger', 'movables' and 'movable property'. In
order that this Court may be able to determine whether the
alleged laws of Tangier grant the reciprocal tax exemptions
required by Section 122 of the Tax Code, and without, for the
time being, going into the merits of the issues raised by the
petitioner-appellant, the case is [remanded] to the Court of Tax
Appeals for the reception of evidence or proof on whether or not
the words `bienes muebles', 'movables' and 'movable properties
as used in the Tangier laws, include or embrace 'intangible
person property', as used in the Tax Code." 6 In line with the
above resolution, the Court of Tax Appeals admitted evidence
submitted by the administrator petitioner Antonio Campos
Rueda, consisting of exhibits of laws of Tangier to the effect that
"the transfers by reason of death of movable properties,
corporeal or incorporeal, including furniture and personal effects
as well as of securities, bonds, shares, ..., were not subject, on
that date and in said zone, to the payment of any death tax,
whatever might have been the nationality of the deceased or his
heirs and legatees." It was further noted in an order of such
Court referring the matter back to us that such were duly
admitted in evidence during the hearing of the case on
September 9, 1963. Respondent presented no evidence." 7
The controlling legal provision as noted is a proviso in Section
122 of the National Internal Revenue Code. It reads thus: "That
no tax shall be collected under this Title in respect of intangible
personal property (a) if the decedent at the time of his death
was a resident of a foreign country which at the time of his
death did not impose a transfer tax or death tax of any character
in respect of intangible person property of the Philippines not
residing in that foreign country, or (b) if the laws of the foreign
country of which the decedent was a resident at the time of his
death allow a similar exemption from transfer taxes or death
taxes of every character in respect of intangible personal
property owned by citizens of the Philippines not residing in that
foreign country."8 The only obstacle therefore to a definitive
ruling is whether or not as vigorously insisted upon by petitioner
the acquisition of internal personality is a condition sine qua
non to Tangier being considered a "foreign country". Deference
to the De Lara ruling, as was made clear in the opening
paragraph of this opinion, calls for an affirmance of the decision
of the Court of Tax Appeals.
It does not admit of doubt that if a foreign country is to be
identified with a state, it is required in line with Pound's
formulation that it be a politically organized sovereign
community independent of outside control bound by penalties of
nationhood, legally supreme within its territory, acting through a
government functioning under a regime of  Justicem Bengson who thereafter assumed that position in a
law.9 It is thus a sovereign person with the people composing it
viewed as an organized corporate society under a government
with the legal competence to exact obedience to its
commands. 10 It has been referred to as a body-politic organized
by common consent for mutual defense and mutual safety and
to promote the general welfare. 11Correctly has it been described
by Esmein as "the juridical personification of the nation." 12 This
is to view it in the light of its historical development. The stress
is on its being a nation, its people occupying a definite territory,
politically organized, exercising by means of its government its
sovereign will over the individuals within it and maintaining its
separate international personality. Laski could speak of it then
as a territorial society divided into government and subjects,
claiming within its allotted area a supremacy over all other
institutions.13 McIver similarly would point to the power entrusted
to its government to maintain within its territory the conditions of
a legal order and to enter into international relations. 14 With the
latter requisite satisfied, international law do not exact
independence as a condition of statehood. So Hyde did opine. 15
Even on the assumption then that Tangier is bereft of
international personality, petitioner has not successfully made
out a case. It bears repeating that four days after the filing of
this petition on January 6, 1958 in Collector of Internal Revenue
v. De Lara, 16 it was specifically held by us: "Considering the
State of California as a foreign country in relation to section 122
of our Tax Code we believe and hold, as did the Tax Court, that
the Ancilliary Administrator is entitled the exemption from the
inheritance tax on the intangible personal property found in the
Philippines." 17There can be no doubt that California as a state
in the American Union was in the alleged requisite of
international personality. Nonetheless, it was held to be a
foreign country within the meaning of Section 122 of the
National Internal Revenue Code. 18
What is undeniable is that even prior to the De Lara ruling, this
Court did commit itself to the doctrine that even a tiny
principality, that of Liechtenstein, hardly an international
personality in the sense, did fall under this exempt category. So
it appears in an opinion of the Court by the then Acting Chief
permanent capacity, in Kiene v. Collector of Internal
Revenue. 19 As was therein noted: 'The Board found from the
documents submitted to it — proof of the laws of Liechtenstein
— that said country does not impose estate, inheritance and gift
taxes on intangible property of Filipino citizens not residing in
that country. Wherefore, the Board declared that pursuant to the
exemption above established, no estate or inheritance taxes
were collectible, Ludwig Kiene being a resident of Liechtestein
when he passed away." 20 Then came this definitive ruling: "The
Collector — hereafter named the respondent — cites decisions
of the United States Supreme Court and of this Court, holding
that intangible personal property in the Philippines belonging to
a non-resident foreigner, who died outside of this country is
subject to the estate tax, in disregard of the principle 'mobilia
sequuntur personam'. Such property is admittedly taxable here.
Without the proviso above quoted, the shares of stock owned
here by the Ludwig Kiene would be concededly subject to estate
and inheritance taxes. Nevertheless our Congress chose to
make an exemption where conditions are such that demand
reciprocity — as in this case. And the exemption must be
honored." 21
WHEREFORE, the decision of the respondent Court of Tax
Appeals of October 30, 1957 is affirmed. Without
pronouncement as to costs.
NUMBER 24
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 133-J May 31, 1982
BERNARDITA R. MACARIOLA, complainant,  adjudicated solely to defendant it being the share
vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court of
First Instance of Leyte, respondent.
MAKASIAR, J:
In a verified complaint dated August 6, 1968 Bernardita R.
Macariola charged respondent Judge Elias B. Asuncion of the
Court of First Instance of Leyte, now Associate Justice of the
Court of Appeals, with "acts unbecoming a judge."
The factual setting of the case is stated in the report dated May
27, 1971 of then Associate Justice Cecilia Muñoz Palma of the
Court of Appeals now retired Associate Justice of the Supreme
Court, to whom this case was referred on October 28, 1968 for
investigation, thus:
Civil Case No. 3010 of the Court of First Instance
of Leyte was a complaint for partition filed by
Sinforosa R. Bales, Luz R. Bakunawa, Anacorita
Reyes, Ruperto Reyes, Adela Reyes, and Priscilla
Reyes, plaintiffs, against Bernardita R. Macariola,
defendant, concerning the properties left by the
deceased Francisco Reyes, the common father of
the plaintiff and defendant.
In her defenses to the complaint for partition, Mrs.
Macariola alleged among other things that; a)
plaintiff Sinforosa R. Bales was not a daughter of
the deceased Francisco Reyes; b) the only legal
heirs of the deceased were defendant Macariola,
she being the only offspring of the first marriage of
Francisco Reyes with Felisa Espiras, and the
remaining plaintiffs who were the children of the
deceased by his second marriage with Irene
Ondez; c) the properties left by the deceased were
all the conjugal properties of the latter and his first
wife, Felisa Espiras, and no properties were
acquired by the deceased during his second
marriage; d) if there was any partition to be made,
those conjugal properties should first be
partitioned into two parts, and one part is to be
of the latter's deceased mother, Felisa Espiras,
and the other half which is the share of the
deceased Francisco Reyes was to be divided
equally among his children by his two marriages.
On June 8, 1963, a decision was rendered by
respondent Judge Asuncion in Civil Case 3010,
the dispositive portion of which reads:
IN VIEW OF THE FOREGOING
CONSIDERATIONS, the Court, upon
a preponderance of evidence, finds
and so holds, and hereby renders
judgment (1) Declaring the plaintiffs
Luz R. Bakunawa, Anacorita Reyes,
Ruperto Reyes, Adela Reyes and
Priscilla Reyes as the only children
legitimated by the subsequent
marriage of Francisco Reyes Diaz to
Irene Ondez; (2) Declaring the
plaintiff Sinforosa R. Bales to have
been an illegitimate child of
Francisco Reyes Diaz; (3) Declaring
Lots Nos. 4474, 4475, 4892, 5265,
4803, 4581, 4506 and 1/4 of Lot
1145 as belonging to the conjugal
partnership of the spouses Francisco
Reyes Diaz and Felisa Espiras; (4)
Declaring Lot No. 2304 and 1/4 of
Lot No. 3416 as belonging to the
spouses Francisco Reyes Diaz and
Irene Ondez in common partnership;
(5) Declaring that 1/2 of Lot No. 1184
as belonging exclusively to the
deceased Francisco Reyes Diaz; (6)
Declaring the defendant Bernardita
R. Macariola, being the only legal
and forced heir of her mother Felisa
Espiras, as the exclusive owner of
one-half of each of Lots Nos. 4474,
4475, 4892, 5265, 4803, 4581, 4506;
and the remaining one-half (1/2) of
each of said Lots Nos. 4474, 4475,
4892, 5265, 4803, 4581, 4506 and
one-half (1/2) of one-fourth (1/4) of
Lot No. 1154 as belonging to the
estate of Francisco Reyes Diaz; (7)
Declaring Irene Ondez to be the
exclusive owner of one-half (1/2) of
Lot No. 2304 and one-half (1/2) of
one-fourth (1/4) of Lot No. 3416; the
remaining one-half (1/2) of Lot 2304
and the remaining one-half (1/2) of
one-fourth (1/4) of Lot No. 3416 as
belonging to the estate of Francisco
Reyes Diaz; (8) Directing the division
or partition of the estate of Francisco
Reyes Diaz in such a manner as to
give or grant to Irene Ondez, as
surviving widow of Francisco Reyes
Diaz, a hereditary share of. one-
twelfth (1/12) of the whole estate of
Francisco Reyes Diaz (Art. 996 in
relation to Art. 892, par 2, New Civil
Code), and the remaining portion of
the estate to be divided among the
plaintiffs Sinforosa R. Bales, Luz R.
Bakunawa, Anacorita Reyes,
Ruperto Reyes, Adela Reyes,
Priscilla Reyes and defendant
Bernardita R. Macariola, in such a
way that the extent of the total share
of plaintiff Sinforosa R. Bales in the
hereditary estate shall not exceed
the equivalent of two-fifth (2/5) of the
total share of any or each of the
other plaintiffs and the defendant
(Art. 983, New Civil Code), each of
the latter to receive equal shares
from the hereditary estate, (Ramirez
vs. Bautista, 14 Phil. 528; Diancin vs.
Bishop of Jaro, O.G. [3rd Ed.] p. 33);
(9) Directing the parties, within thirty
days after this judgment shall have
become final to submit to this court,
for approval a project of partition of
the hereditary estate in the
proportion above indicated, and in
such manner as the parties may, by
agreement, deemed convenient and
equitable to them taking into
consideration the location, kind,
 quality, nature and value of the
properties involved; (10) Directing
the plaintiff Sinforosa R. Bales and
defendant Bernardita R. Macariola to
pay the costs of this suit, in the
proportion of one-third (1/3) by the
first named and two-thirds (2/3) by
the second named; and (I 1)
Dismissing all other claims of the
parties [pp 27-29 of Exh. C].
The decision in civil case 3010 became final for
lack of an appeal, and on October 16, 1963, a
project of partition was submitted to Judge
Asuncion which is marked Exh. A. Notwithstanding
the fact that the project of partition was not signed
by the parties themselves but only by the
respective counsel of plaintiffs and defendant,
Judge Asuncion approved it in his Order dated
October 23, 1963, which for convenience is
quoted hereunder in full:
The parties, through their respective
counsels, presented to this Court for
approval the following project of
partition:
COMES NOW, the plaintiffs and the
defendant in the above-entitled case,
to this Honorable Court respectfully
submit the following Project of
Partition:
l. The whole of Lots Nos. 1154, 2304
and 4506 shall belong exclusively to
Bernardita Reyes Macariola;
2. A portion of Lot No. 3416
consisting of 2,373.49 square meters
along the eastern part of the lot shall
be awarded likewise to Bernardita R.
Macariola;
3. Lots Nos. 4803, 4892 and 5265
shall be awarded to Sinforosa Reyes
Bales;
4. A portion of Lot No. 3416
consisting of 1,834.55 square meters
along the western part of the lot shall
likewise be awarded to Sinforosa
Reyes-Bales;
5. Lots Nos. 4474 and 4475 shall be
divided equally among Luz Reyes
Bakunawa, Anacorita Reyes,
Ruperto Reyes, Adela Reyes and
Priscilla Reyes in equal shares;
6. Lot No. 1184 and the remaining
portion of Lot No. 3416 after taking
the portions awarded under item (2)
and (4) above shall be awarded to
Luz Reyes Bakunawa, Anacorita
Reyes, Ruperto Reyes, Adela Reyes
and Priscilla Reyes in equal shares,
provided, however that the remaining
portion of Lot No. 3416 shall belong
exclusively to Priscilla Reyes.
WHEREFORE, it is respectfully
prayed that the Project of Partition
indicated above which is made in
accordance with the decision of the
Honorable Court be approved.
Tacloban City, October 16, 1963.
(SGD) BONIFACIO RAMO Atty. for
the Defendant Tacloban City
(SGD) ZOTICO A. TOLETE Atty. for
the Plaintiff Tacloban City
While the Court thought it more
desirable for all the parties to have
signed this Project of Partition,
nevertheless, upon assurance of
both counsels of the respective
parties to this Court that the Project
 of Partition, as above- quoted, had
been made after a conference and
agreement of the plaintiffs and the
defendant approving the above
Project of Partition, and that both
lawyers had represented to the Court
that they are given full authority to
sign by themselves the Project of
Partition, the Court, therefore, finding
the above-quoted Project of Partition
to be in accordance with law, hereby
approves the same. The parties,
therefore, are directed to execute
such papers, documents or
instrument sufficient in form and
substance for the vesting of the
rights, interests and participations
which were adjudicated to the
respective parties, as outlined in the
Project of Partition and the delivery
of the respective properties
adjudicated to each one in view of
said Project of Partition, and to
perform such other acts as are legal
and necessary to effectuate the said
Project of Partition.
SO ORDERED.
Given in Tacloban City, this 23rd day
of October, 1963.
(SGD) ELIAS B. ASUNCION Judge
EXH. B.
The above Order of October 23, 1963, was
amended on November 11, 1963, only for the
purpose of giving authority to the Register of
Deeds of the Province of Leyte to issue the
corresponding transfer certificates of title to the
respective adjudicatees in conformity with the
project of partition (see Exh. U).
One of the properties mentioned in the project of
partition was Lot 1184 or rather one-half thereof
with an area of 15,162.5 sq. meters. This lot,
which according to the decision was the exclusive
property of the deceased Francisco Reyes, was
adjudicated in said project of partition to the
plaintiffs Luz, Anacorita Ruperto, Adela, and
Priscilla all surnamed Reyes in equal shares, and
when the project of partition was approved by the
trial court the adjudicatees caused Lot 1184 to be
subdivided into five lots denominated as Lot 1184-
A to 1184-E inclusive (Exh. V).
Lot 1184-D was conveyed to Enriqueta D. Anota,
a stenographer in Judge Asuncion's court (Exhs.
F, F-1 and V-1), while Lot 1184-E which had an
area of 2,172.5556 sq. meters was sold on July
31, 1964 to Dr. Arcadio Galapon (Exh. 2) who was
issued transfer certificate of title No. 2338 of the
Register of Deeds of the city of Tacloban (Exh.
12).
On March 6, 1965, Dr. Arcadio Galapon and his
wife Sold a portion of Lot 1184-E with an area of
around 1,306 sq. meters to Judge Asuncion and
his wife, Victoria S. Asuncion (Exh. 11), which
particular portion was declared by the latter for
taxation purposes (Exh. F).
On August 31, 1966, spouses Asuncion and
spouses Galapon conveyed their respective
shares and interest in Lot 1184-E to "The Traders
Manufacturing and Fishing Industries Inc." (Exit 15
& 16). At the time of said sale the stockholders of
the corporation were Dominador Arigpa Tan,
Humilia Jalandoni Tan, Jaime Arigpa Tan, Judge
Asuncion, and the latter's wife, Victoria S.
Asuncion, with Judge Asuncion as the President
and Mrs. Asuncion as the secretary (Exhs. E-4 to
E-7). The Articles of Incorporation of "The Traders
Manufacturing and Fishing Industries, Inc." which
we shall henceforth refer to as "TRADERS" were
 registered with the Securities and Exchange
Commission only on January 9, 1967 (Exh. E) [pp.
378-385, rec.].
Complainant Bernardita R. Macariola filed on August 9, 1968
the instant complaint dated August 6, 1968 alleging four causes
of action, to wit: [1] that respondent Judge Asuncion violated
Article 1491, paragraph 5, of the New Civil Code in acquiring by
purchase a portion of Lot No. 1184-E which was one of those
properties involved in Civil Case No. 3010 decided by him; [2]
that he likewise violated Article 14, paragraphs I and 5 of the
Code of Commerce, Section 3, paragraph H, of R.A. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act,
Section 12, Rule XVIII of the Civil Service Rules, and Canon 25
of the Canons of Judicial Ethics, by associating himself with the
Traders Manufacturing and Fishing Industries, Inc., as a
stockholder and a ranking officer while he was a judge of the
Court of First Instance of Leyte; [3] that respondent was guilty of
coddling an impostor and acted in disregard of judicial decorum
by closely fraternizing with a certain Dominador Arigpa Tan who
openly and publicly advertised himself as a practising attorney
when in truth and in fact his name does not appear in the Rolls
of Attorneys and is not a member of the Philippine Bar; and [4]
that there was a culpable defiance of the law and utter disregard
for ethics by respondent Judge (pp. 1-7, rec.).
Respondent Judge Asuncion filed on September 24, 1968 his
answer to which a reply was filed on October 16, 1968 by herein
complainant. In Our resolution of October 28, 1968, We referred
this case to then Justice Cecilia Muñoz Palma of the Court of
Appeals, for investigation, report and recommendation. After
hearing, the said Investigating Justice submitted her report
dated May 27, 1971 recommending that respondent Judge
should be reprimanded or warned in connection with the first
cause of action alleged in the complaint, and for the second
cause of action, respondent should be warned in case of a
finding that he is prohibited under the law to engage in
business. On the third and fourth causes of action, Justice
Palma recommended that respondent Judge be exonerated.
The records also reveal that on or about November 9 or 11,
1968 (pp. 481, 477, rec.), complainant herein instituted an
action before the Court of First Instance of Leyte, entitled
"Bernardita R. Macariola, plaintiff, versus Sinforosa R. Bales, et
al., defendants," which was docketed as Civil Case No. 4235,
seeking the annulment of the project of partition made pursuant
to the decision in Civil Case No. 3010 and the two orders issued
by respondent Judge approving the same, as well as the
partition of the estate and the subsequent conveyances with
damages. It appears, however, that some defendants were
dropped from the civil case. For one, the case against Dr.
Arcadio Galapon was dismissed because he was no longer a
real party in interest when Civil Case No. 4234 was filed, having
already conveyed on March 6, 1965 a portion of lot 1184-E to
respondent Judge and on August 31, 1966 the remainder was
sold to the Traders Manufacturing and Fishing Industries, Inc.
Similarly, the case against defendant Victoria Asuncion was
dismissed on the ground that she was no longer a real party in
interest at the time the aforesaid Civil Case No. 4234 was filed
as the portion of Lot 1184 acquired by her and respondent
Judge from Dr. Arcadio Galapon was already sold on August
31, 1966 to the Traders Manufacturing and Fishing industries,
Inc. Likewise, the cases against defendants Serafin P.
Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez,
Traders Manufacturing and Fishing Industries, Inc., Alfredo R.
Celestial and Pilar P. Celestial, Leopoldo Petilla and Remedios
Petilla, Salvador Anota and Enriqueta Anota and Atty. Zotico A.
Tolete were dismissed with the conformity of complainant
herein, plaintiff therein, and her counsel.
On November 2, 1970, Judge Jose D. Nepomuceno of the
Court of First Instance of Leyte, who was directed and
authorized on June 2, 1969 by the then Secretary (now Minister)
of Justice and now Minister of National Defense Juan Ponce
Enrile to hear and decide Civil Case No. 4234, rendered a
decision, the dispositive portion of which reads as follows:
A. IN THE CASE AGAINST JUDGE ELIAS B.
ASUNCION
(1) declaring that only Branch IV of the Court of
First Instance of Leyte has jurisdiction to take
cognizance of the issue of the legality and validity
of the Project of Partition [Exhibit "B"] and the two
Orders [Exhibits "C" and "C- 3"] approving the
partition;
(2) dismissing the complaint against Judge Elias
B. Asuncion;
(3) adjudging the plaintiff, Mrs. Bernardita R.
Macariola to pay defendant Judge Elias B.
Asuncion,
(a) the sum of FOUR HUNDRED
THOUSAND PESOS [P400,000.00]
for moral damages;
(b) the sum of TWO HUNDRED
THOUSAND PESOS [P200,000.001
for exemplary damages;
(c) the sum of FIFTY THOUSAND
PESOS [P50,000.00] for nominal
damages; and
(d) he sum of TEN THOUSAND
PESOS [PI0,000.00] for Attorney's
Fees.
B. IN THE CASE AGAINST THE
DEFENDANT MARIQUITA
VILLASIN, FOR HERSELF AND
FOR THE HEIRS OF THE
DECEASED GERARDO VILLASIN
— (5) Justices, judges, prosecuting attorneys, clerks
(1) Dismissing the complaint against the
defendants Mariquita Villasin and the heirs of the
deceased Gerardo Villasin;
(2) Directing the plaintiff to pay the defendants
Mariquita Villasin and the heirs of Gerardo Villasin
the cost of the suit.
C. IN THE CASE AGAINST THE
DEFENDANT SINFOROSA R.
BALES, ET AL., WHO WERE
PLAINTIFFS IN CIVIL CASE NO.
3010 —
(1) Dismissing the complaint against defendants
Sinforosa R. Bales, Adela R. Herrer, Priscilla R.
Solis, Luz R. Bakunawa, Anacorita R. Eng and
Ruperto O. Reyes.
D. IN THE CASE AGAINST
DEFENDANT BONIFACIO RAMO —
(1) Dismissing the complaint against Bonifacio
Ramo;
(2) Directing the plaintiff to pay the defendant
Bonifacio Ramo the cost of the suit.
SO ORDERED [pp. 531-533, rec.]
It is further disclosed by the record that the aforesaid decision
was elevated to the Court of Appeals upon perfection of the
appeal on February 22, 1971.
I
WE find that there is no merit in the contention of complainant
Bernardita R. Macariola, under her first cause of action, that
respondent Judge Elias B. Asuncion violated Article 1491,
paragraph 5, of the New Civil Code in acquiring by purchase a
portion of Lot No. 1184-E which was one of those properties
involved in Civil Case No. 3010. 'That Article provides:
Article 1491. The following persons cannot acquire
by purchase, even at a public or judicial action,
either in person or through the mediation of
another:
xxx xxx xxx
of superior and inferior courts, and other officers
and employees connected with the administration
of justice, the property and rights in litigation or
levied upon an execution before the court within
whose jurisdiction or territory they exercise their
respective functions; this prohibition includes the
act of acquiring by assignment and shall apply to
lawyers, with respect to the property and rights
which may be the object of any litigation in which
they may take part by virtue of their profession
[emphasis supplied].
The prohibition in the aforesaid Article applies only to the sale or
assignment of the property which is the subject of litigation to
the persons disqualified therein. WE have already ruled that "...
for the prohibition to operate, the sale or assignment of the
property must take place during the pendency of the litigation
involving the property" (The Director of Lands vs. Ababa et al.,
88 SCRA 513, 519 [1979], Rosario vda. de Laig vs. Court of
Appeals, 86 SCRA 641, 646 [1978]).
In the case at bar, when the respondent Judge purchased
on March 6, 1965 a portion of Lot 1184-E, the decision in Civil
Case No. 3010 which he rendered on June 8, 1963 was already
final because none of the parties therein filed an appeal within
the reglementary period; hence, the lot in question was no
longer subject of the litigation. Moreover, at the time of the sale
on March 6, 1965, respondent's order dated October 23,
1963 and the amended order dated November 11,
1963 approving the October 16, 1963 project of partition made
pursuant to the June 8, 1963 decision, had long become final for
there was no appeal from said orders.
Furthermore, respondent Judge did not buy the lot in question
on March 6, 1965 directly from the plaintiffs in Civil Case No.
3010 but from Dr. Arcadio Galapon who earlier purchased
on July 31, 1964 Lot 1184-E from three of the plaintiffs, namely,
Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa after the
finality of the decision in Civil Case No. 3010. It may be recalled
that Lot 1184 or more specifically one-half thereof was
adjudicated in equal shares to Priscilla Reyes, Adela Reyes,
Luz Bakunawa, Ruperto Reyes and Anacorita Reyes in the
project of partition, and the same was subdivided into five lots
denominated as Lot 1184-A to 1184-E. As aforestated, Lot
1184-E was sold on July 31, 1964 to Dr. Galapon for which he
was issued TCT No. 2338 by the Register of Deeds of Tacloban
City, and on March 6, 1965 he sold a portion of said lot to
respondent Judge and his wife who declared the same for
taxation purposes only. The subsequent sale on August 31,
1966 by spouses Asuncion and spouses Galapon of their
respective shares and interest in said Lot 1184-E to the Traders
Manufacturing and Fishing Industries, Inc., in which respondent
was the president and his wife was the secretary, took place
long after the finality of the decision in Civil Case No. 3010 and
of the subsequent two aforesaid orders therein approving the
project of partition.
While it appears that complainant herein filed on or
about November 9 or 11, 1968 an action before the Court of
First Instance of Leyte docketed as Civil Case No. 4234,
seeking to annul the project of partition and the two orders
approving the same, as well as the partition of the estate and
the subsequent conveyances, the same, however, is of no
moment.
The fact remains that respondent Judge purchased on March 6,
1965 a portion of Lot 1184-E from Dr. Arcadio Galapon; hence,
after the finality of the decision which he rendered on June 8,
1963 in Civil Case No. 3010 and his two questioned orders
dated October 23, 1963 and November 11, 1963. Therefore, the
property was no longer subject of litigation.
The subsequent filing on November 9, or 11, 1968 of Civil Case
No. 4234 can no longer alter, change or affect the aforesaid
facts — that the questioned sale to respondent Judge, now
Court of Appeals Justice, was effected and consummated long
after the finality of the aforesaid decision or orders.
Consequently, the sale of a portion of Lot 1184-E to respondent
Judge having taken place over one year after the finality of the
decision in Civil Case No. 3010 as well as the two orders
approving the project of partition, and not during the pendency
of the litigation, there was no violation of paragraph 5, Article
1491 of the New Civil Code.
It is also argued by complainant herein that the sale on July 31,
1964 of Lot 1184-E to Dr. Arcadio Galapon by Priscilla Reyes,
Adela Reyes and Luz R. Bakunawa was only a mere scheme to
conceal the illegal and unethical transfer of said lot to
respondent Judge as a consideration for the approval of the
project of partition. In this connection, We agree with the
findings of the Investigating Justice thus:
And so we are now confronted with this all-
important question whether or not the acquisition
by respondent of a portion of Lot 1184-E and the
subsequent transfer of the whole lot to
"TRADERS" of which respondent was the
President and his wife the Secretary, was
intimately related to the Order of respondent
approving the project of partition, Exh. A.
 Respondent vehemently denies any interest or
participation in the transactions between the
Reyeses and the Galapons concerning Lot 1184-
E, and he insists that there is no evidence
whatsoever to show that Dr. Galapon had acted, in
the purchase of Lot 1184-E, in mediation for him
and his wife. (See p. 14 of Respondent's
Memorandum).
xxx xxx xxx
On this point, I agree with respondent that there is
no evidence in the record showing that Dr. Arcadio
Galapon acted as a mere "dummy" of respondent
in acquiring Lot 1184-E from the Reyeses. Dr.
Galapon appeared to this investigator as a
respectable citizen, credible and sincere, and I
believe him when he testified that he bought Lot
1184-E in good faith and for valuable
consideration from the Reyeses without any
intervention of, or previous understanding with
Judge Asuncion (pp. 391- 394, rec.).
On the contention of complainant herein that respondent Judge
acted illegally in approving the project of partition although it
was not signed by the parties, We quote with approval the
findings of the Investigating Justice, as follows:
1. I agree with complainant that respondent should
have required the signature of the parties more
particularly that of Mrs. Macariola on the project of
partition submitted to him for approval; however,
whatever error was committed by respondent in
that respect was done in good faith as according
to Judge Asuncion he was assured by Atty.
Bonifacio Ramo, the counsel of record of Mrs.
Macariola, That he was authorized by his client to
submit said project of partition, (See Exh. B and
tsn p. 24, January 20, 1969). While it is true that
such written authority if there was any, was not
presented by respondent in evidence, nor did Atty.
Ramo appear to corroborate the statement of
respondent, his affidavit being the only one that
was presented as respondent's Exh. 10, certain
actuations of Mrs. Macariola lead this investigator
to believe that she knew the contents of the
project of partition, Exh. A, and that she gave her
conformity thereto. I refer to the following
documents:
1) Exh. 9 — Certified true copy of OCT No. 19520
covering Lot 1154 of the Tacloban Cadastral
Survey in which the deceased Francisco Reyes
holds a "1/4 share" (Exh. 9-a). On tills certificate of
title the Order dated November 11, 1963, (Exh. U)
approving the project of partition was duly entered
and registered on November 26, 1963 (Exh. 9-D);
2) Exh. 7 — Certified copy of a deed of absolute
sale executed by Bernardita Reyes Macariola
on October 22, 1963, conveying to Dr. Hector
Decena the one-fourth share of the late Francisco
Reyes-Diaz in Lot 1154. In this deed of sale the
vendee stated that she was the absolute owner of
said one-fourth share, the same having been
adjudicated to her as her share in the estate of her
father Francisco Reyes Diaz as per decision of the
Court of First Instance of Leyte under case No.
3010 (Exh. 7-A). The deed of sale was duly
registered and annotated at the back of OCT
19520 on December 3, 1963 (see Exh. 9-e).
In connection with the abovementioned
documents it is to be noted that in the project of
partition dated October 16, 1963, which was
approved by respondent on October 23, 1963,
followed by an amending Order on November 11,
1963, Lot 1154 or rather 1/4 thereof was
adjudicated to Mrs. Macariola. It is this 1/4 share
in Lot 1154 which complainant sold to Dr. Decena
on October 22, 1963, several days after the
preparation of the project of partition.
Counsel for complainant stresses the view,
however, that the latter sold her one-fourth share
in Lot 1154 by virtue of the decision in Civil Case
 3010 and not because of the project of partition,
Exh. A. Such contention is absurd because from
the decision, Exh. C, it is clear that one-half of
one- fourth of Lot 1154 belonged to the estate of
Francisco Reyes Diaz while the other half of said
one-fourth was the share of complainant's mother,
Felisa Espiras; in other words, the decision did not
adjudicate the whole of the one-fourth of Lot 1154
to the herein complainant (see Exhs. C-3 & C-4).
Complainant became the owner of the entire one-
fourth of Lot 1154 only by means of the project of
partition, Exh. A. Therefore, if Mrs. Macariola sold
Lot 1154 on October 22, 1963, it was for no other
reason than that she was wen aware of the
distribution of the properties of her deceased
father as per Exhs. A and B. It is also significant at
this point to state that Mrs. Macariola admitted
during the cross-examination that she went to
Tacloban City in connection with the sale of Lot
1154 to Dr. Decena (tsn p. 92, November 28,
1968) from which we can deduce that she could
not have been kept ignorant of the proceedings in
civil case 3010 relative to the project of partition.
Complainant also assails the project of partition
because according to her the properties
adjudicated to her were insignificant lots and the
least valuable. Complainant, however, did not
present any direct and positive evidence to prove
the alleged gross inequalities in the choice and
distribution of the real properties when she could
have easily done so by presenting evidence on the
area, location, kind, the assessed and market
value of said properties. Without such evidence
there is nothing in the record to show that there
were inequalities in the distribution of the
properties of complainant's father (pp. 386389,
rec.).
Finally, while it is. true that respondent Judge did not violate
paragraph 5, Article 1491 of the New Civil Code in acquiring by
purchase a portion of Lot 1184-E which was in litigation in his
court, it was, however, improper for him to have acquired the
same. He should be reminded of Canon 3 of the Canons of
Judicial Ethics which requires that: "A judge's official conduct
should be free from the appearance of impropriety, and his
personal behavior, not only upon the bench and in the
performance of judicial duties, but also in his everyday life,
should be beyond reproach." And as aptly observed by the
Investigating Justice: "... it was unwise and indiscreet on the
part of respondent to have purchased or acquired a portion of a
piece of property that was or had been in litigation in his court
and caused it to be transferred to a corporation of which he and
his wife were ranking officers at the time of such transfer. One
who occupies an exalted position in the judiciary has the duty
and responsibility of maintaining the faith and trust of the
citizenry in the courts of justice, so that not only must he be truly
honest and just, but his actuations must be such as not give
cause for doubt and mistrust in the uprightness of his
administration of justice. In this particular case of respondent,
he cannot deny that the transactions over Lot 1184-E are
damaging and render his actuations open to suspicion and
distrust. Even if respondent honestly believed that Lot 1184-E
was no longer in litigation in his court and that he was
purchasing it from a third person and not from the parties to the
litigation, he should nonetheless have refrained from buying it
for himself and transferring it to a corporation in which he and
his wife were financially involved, to avoid possible suspicion
that his acquisition was related in one way or another to his
official actuations in civil case 3010. The conduct of respondent
gave cause for the litigants in civil case 3010, the lawyers
practising in his court, and the public in general to doubt the
honesty and fairness of his actuations and the integrity of our
courts of justice" (pp. 395396, rec.).
II
With respect to the second cause of action, the complainant
alleged that respondent Judge violated paragraphs 1 and 5,
Article 14 of the Code of Commerce when he associated himself
with the Traders Manufacturing and Fishing Industries, Inc. as a
stockholder and a ranking officer, said corporation having been
organized to engage in business. Said Article provides that:
Article 14 — The following cannot engage in
commerce, either in person or by proxy, nor can
they hold any office or have any direct,
administrative, or financial intervention in
commercial or industrial companies within the
limits of the districts, provinces, or towns in which
they discharge their duties:
1. Justices of the Supreme Court, judges and
officials of the department of public prosecution in
active service. This provision shall not be
applicable to mayors, municipal judges, and
municipal prosecuting attorneys nor to those who
by chance are temporarily discharging the
functions of judge or prosecuting attorney.
xxx xxx xxx
5. Those who by virtue of laws or special
provisions may not engage in commerce in a
determinate territory.
It is Our considered view that although the aforestated provision
is incorporated in the Code of Commerce which is part of the
commercial laws of the Philippines, it, however, partakes of the
nature of a political law as it regulates the relationship between
the government and certain public officers and employees, like
justices and judges.
Political Law has been defined as that branch of public law
which deals with the organization and operation of the
governmental organs of the State and define the relations of the
state with the inhabitants of its territory (People vs. Perfecto, 43
Phil. 887, 897 [1922]). It may be recalled that political law
embraces constitutional law, law of public corporations,
administrative law including the law on public officers and
elections. Specifically, Article 14 of the Code of Commerce
partakes more of the nature of an administrative law because it
regulates the conduct of certain public officers and employees
with respect to engaging in business: hence, political in
essence.
It is significant to note that the present Code of Commerce is the
Spanish Code of Commerce of 1885, with some modifications
made by the "Commission de Codificacion de las Provincias de
Ultramar," which was extended to the Philippines by the Royal
Decree of August 6, 1888, and took effect as law in this
jurisdiction on December 1, 1888.
Upon the transfer of sovereignty from Spain to the United States
and later on from the United States to the Republic of the
Philippines, Article 14 of this Code of Commerce must be
deemed to have been abrogated because where there is
change of sovereignty, the political laws of the former sovereign,
whether compatible or not with those of the new sovereign, are
automatically abrogated, unless they are expressly re-enacted
by affirmative act of the new sovereign.
Thus, We held in Roa vs. Collector of Customs (23 Phil. 315,
330, 311 [1912]) that:
By well-settled public law, upon the cession of
territory by one nation to another, either following
a conquest or otherwise, ... those laws which are
political in their nature and pertain to the
prerogatives of the former government
immediately cease upon the transfer of
sovereignty. (Opinion, Atty. Gen., July 10, 1899).
While municipal laws of the newly acquired
territory not in conflict with the, laws of the new
sovereign continue in force without the express
assent or affirmative act of the conqueror, the
political laws do not. (Halleck's Int. Law, chap. 34,
par. 14). However, such political laws of the prior
sovereignty as are not in conflict with the
constitution or institutions of the new sovereign,
may be continued in force if the conqueror shall so
declare by affirmative act of the commander-in-
chief during the war, or by Congress in time of
peace. (Ely's Administrator vs. United States, 171
U.S. 220, 43 L. Ed. 142). In the case of American
and Ocean Ins. Cos. vs. 356 Bales of Cotton (1
Pet. [26 U.S.] 511, 542, 7 L. Ed. 242), Chief
Justice Marshall said:
 On such transfer (by cession) of
territory, it has never been held that
the relations of the inhabitants with
each other undergo any change.
Their relations with their former
sovereign are dissolved, and new
relations are created between them
and the government which has
acquired their territory. The same act
which transfers their country,
transfers the allegiance of those who
remain in it; and the law which may
be denominated political, is
necessarily changed, although that
which regulates the intercourse and
general conduct of individuals,
remains in force, until altered by the
newly- created power of the State.
Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this
Court stated that: "It is a general principle of the public law that
on acquisition of territory the previous political relations of the
ceded region are totally abrogated. "
There appears no enabling or affirmative act that continued the
effectivity of the aforestated provision of the Code of Commerce
after the change of sovereignty from Spain to the United States
and then to the Republic of the Philippines. Consequently,
Article 14 of the Code of Commerce has no legal and binding
effect and cannot apply to the respondent, then Judge of the
Court of First Instance, now Associate Justice of the Court of
Appeals.
It is also argued by complainant herein that respondent Judge
violated paragraph H, Section 3 of Republic Act No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act,
which provides that:
Sec. 3. Corrupt practices of public officers. — In
addition to acts or omissions of public officers
already penalized by existing law, the following
shall constitute corrupt practices of any public
officer and are hereby declared to be unlawful:
x x x           x x x          x x x
(h) Directly or indirectly having
financial or pecuniary interest in any
business, contract or transaction in
connection with which he intervenes
or takes part in his official capacity,
or in which he is prohibited by the
Constitution or by any Iaw from
having any interest.
Respondent Judge cannot be held liable under the aforestated
paragraph because there is no showing that respondent
participated or intervened in his official capacity in the business
or transactions of the Traders Manufacturing and Fishing
Industries, Inc. In the case at bar, the business of the
corporation in which respondent participated has obviously no
relation or connection with his judicial office. The business of
said corporation is not that kind where respondent intervenes or
takes part in his capacity as Judge of the Court of First Instance.
As was held in one case involving the application of Article 216
of the Revised Penal Code which has a similar prohibition on
public officers against directly or indirectly becoming interested
in any contract or business in which it is his official duty to
intervene, "(I)t is not enough to be a public official to be subject
to this crime; it is necessary that by reason of his office, he has
to intervene in said contracts or transactions; and, hence, the
official who intervenes in contracts or transactions which have
no relation to his office cannot commit this crime.' (People vs.
Meneses, C.A. 40 O.G. 11th Supp. 134, cited by Justice Ramon
C. Aquino; Revised Penal Code, p. 1174, Vol. 11 [1976]).
It does not appear also from the records that the aforesaid
corporation gained any undue advantage in its business
operations by reason of respondent's financial involvement in it,
or that the corporation benefited in one way or another in any
case filed by or against it in court. It is undisputed that there was
no case filed in the different branches of the Court of First
Instance of Leyte in which the corporation was either party
plaintiff or defendant except Civil Case No. 4234 entitled
"Bernardita R. Macariola, plaintiff, versus Sinforosa O. Bales, et
al.," wherein the complainant herein sought to recover Lot 1184-
E from the aforesaid corporation. It must be noted, however,
that Civil Case No. 4234 was filed only on November 9 or 11,
1968 and decided on November 2, 1970 by CFI Judge Jose D.
Nepomuceno when respondent Judge was no longer connected
with the corporation, having disposed of his interest therein on
January 31, 1967.
Furthermore, respondent is not liable under the same paragraph
because there is no provision in both the 1935 and 1973
Constitutions of the Philippines, nor is there an existing law
expressly prohibiting members of the Judiciary from engaging or
having interest in any lawful business.
It may be pointed out that Republic Act No. 296, as amended,
also known as the Judiciary Act of 1948, does not contain any
prohibition to that effect. As a matter of fact, under Section 77 of
said law, municipal judges may engage in teaching or other
vocation not involving the practice of law after office hours but
with the permission of the district judge concerned.
Likewise, Article 14 of the Code of Commerce which prohibits
judges from engaging in commerce is, as heretofore stated,
deemed abrogated automatically upon the transfer of
sovereignty from Spain to America, because it is political in
nature.
Moreover, the prohibition in paragraph 5, Article 1491 of the
New Civil Code against the purchase by judges of a property in
litigation before the court within whose jurisdiction they perform
their duties, cannot apply to respondent Judge because the sale
of the lot in question to him took place after the finality of his
decision in Civil Case No. 3010 as well as his two orders
approving the project of partition; hence, the property was no
longer subject of litigation.
In addition, although Section 12, Rule XVIII of the Civil Service
Rules made pursuant to the Civil Service Act of 1959 prohibits
an officer or employee in the civil service from engaging in any
private business, vocation, or profession or be connected with
any commercial, credit, agricultural or industrial undertaking
without a written permission from the head of department, the
same, however, may not fall within the purview of paragraph h,
Section 3 of the Anti-Graft and Corrupt Practices Act because
the last portion of said paragraph speaks of a prohibition by
the Constitution or law on any public officer from having any
interest in any business and not by a mere administrative rule or
regulation. Thus, a violation of the aforesaid rule by any officer
or employee in the civil service, that is, engaging in private
business without a written permission from the Department
Head may not constitute graft and corrupt practice as defined by
law.
On the contention of complainant that respondent Judge
violated Section 12, Rule XVIII of the Civil Service Rules, We
hold that the Civil Service Act of 1959 (R.A. No. 2260) and the
Civil Service Rules promulgated thereunder, particularly Section
12 of Rule XVIII, do not apply to the members of the Judiciary.
Under said Section 12: "No officer or employee shall engage
directly in any private business, vocation, or profession or be
connected with any commercial, credit, agricultural or industrial
undertaking without a written permission from the Head of
Department ..."
It must be emphasized at the outset that respondent, being a
member of the Judiciary, is covered by Republic Act No. 296, as
amended, otherwise known as the Judiciary Act of 1948 and by
Section 7, Article X, 1973 Constitution.
Under Section 67 of said law, the power to remove or dismiss
judges was then vested in the President of the Philippines, not
in the Commissioner of Civil Service, and only on two grounds,
namely, serious misconduct and inefficiency, and upon the
recommendation of the Supreme Court, which alone is
authorized, upon its own motion, or upon information of the
Secretary (now Minister) of Justice to conduct the
corresponding investigation. Clearly, the aforesaid section
defines the grounds and prescribes the special procedure for
the discipline of judges.
And under Sections 5, 6 and 7, Article X of the 1973
Constitution, only the Supreme Court can discipline judges of
inferior courts as well as other personnel of the Judiciary.
It is true that under Section 33 of the Civil Service Act of 1959:
"The Commissioner may, for ... violation of the existing Civil
Service Law and rules or of reasonable office regulations, or in
the interest of the service, remove any subordinate officer or
employee from the service, demote him in rank, suspend him for
not more than one year without pay or fine him in an amount not
exceeding six months' salary." Thus, a violation of Section 12 of
Rule XVIII is a ground for disciplinary action against civil service
officers and employees.
However, judges cannot be considered as subordinate civil
service officers or employees subject to the disciplinary
authority of the Commissioner of Civil Service; for, certainly, the
Commissioner is not the head of the Judicial Department to
which they belong. The Revised Administrative Code (Section
89) and the Civil Service Law itself state that the Chief Justice is
the department head of the Supreme Court (Sec. 20, R.A. No.
2260) [1959]); and under the 1973 Constitution, the Judiciary is
the only other or second branch of the government (Sec. 1, Art.
X, 1973 Constitution). Besides, a violation of Section 12, Rule
XVIII cannot be considered as a ground for disciplinary action
against judges because to recognize the same as applicable to
them, would be adding another ground for the discipline of
judges and, as aforestated, Section 67 of the Judiciary Act
recognizes only two grounds for their removal, namely, serious
misconduct and inefficiency.
Moreover, under Section 16(i) of the Civil Service Act of 1959, it
is the Commissioner of Civil Service who has original and
exclusive jurisdiction "(T)o decide, within one hundred twenty
days, after submission to it, all administrative cases
against permanent officers and employees in the competitive
service, and, except as provided by law, to have final authority
to pass upon their removal, separation, and suspension and
upon all matters relating to the conduct, discipline, and
efficiency of such officers and employees; and prescribe
standards, guidelines and regulations governing the
administration of discipline" (emphasis supplied). There is no
question that a judge belong to the non-competitive or
unclassified service of the government as a Presidential
appointee and is therefore not covered by the aforesaid
provision. WE have already ruled that "... in interpreting Section
16(i) of Republic Act No. 2260, we emphasized that only
permanent officers and employees who belong to the classified
service come under the exclusive jurisdiction of the
Commissioner of Civil Service" (Villaluz vs. Zaldivar, 15 SCRA
710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619 [1963]).
Although the actuation of respondent Judge in engaging in
private business by joining the Traders Manufacturing and
Fishing Industries, Inc. as a stockholder and a ranking officer, is
not violative of the provissions of Article 14 of the Code of
Commerce and Section 3(h) of the Anti-Graft and Corrupt
Practices Act as well as Section 12, Rule XVIII of the Civil
Service Rules promulgated pursuant to the Civil Service Act of
1959, the impropriety of the same is clearly unquestionable
because Canon 25 of the Canons of Judicial Ethics expressly
declares that:
A judge should abstain from making personal
investments in enterprises which are apt to be
involved in litigation in his court; and, after his
accession to the bench, he should not retain such
investments previously made, longer than a period
sufficient to enable him to dispose of them without
serious loss. It is desirable that he should, so far
as reasonably possible, refrain from all relations
which would normally tend to arouse the suspicion
that such relations warp or bias his judgment, or
prevent his impartial attitude of mind in the
administration of his judicial duties. ...
WE are not, however, unmindful of the fact that respondent
Judge and his wife had withdrawn on January 31, 1967 from the
aforesaid corporation and sold their respective shares to third
parties, and it appears also that the aforesaid corporation did
not in anyway benefit in any case filed by or against it in court
as there was no case filed in the different branches of the Court
of First Instance of Leyte from the time of the drafting of the
Articles of Incorporation of the corporation on March 12, 1966,
up to its incorporation on January 9, 1967, and the eventual
withdrawal of respondent on January 31, 1967 from said
corporation. Such disposal or sale by respondent and his wife of
their shares in the corporation only 22 days after the
incorporation of the corporation, indicates that respondent
realized that early that their interest in the corporation
contravenes the aforesaid Canon 25. Respondent Judge and
his wife therefore deserve the commendation for their
immediate withdrawal from the firm after its incorporation and
before it became involved in any court litigation
III
With respect to the third and fourth causes of action,
complainant alleged that respondent was guilty of coddling an
impostor and acted in disregard of judicial decorum, and that
there was culpable defiance of the law and utter disregard for
ethics. WE agree, however, with the recommendation of the
Investigating Justice that respondent Judge be exonerated
because the aforesaid causes of action are groundless, and WE
quote the pertinent portion of her report which reads as follows:
The basis for complainant's third cause of action is
the claim that respondent associated and closely
fraternized with Dominador Arigpa Tan who openly
and publicly advertised himself as a practising
attorney (see Exhs. I, I-1 and J) when in truth and
in fact said Dominador Arigpa Tan does not
appear in the Roll of Attorneys and is not a
member of the Philippine Bar as certified to in Exh.
K.
The "respondent denies knowing that Dominador
Arigpa Tan was an "impostor" and claims that all
the time he believed that the latter was a bona
fide member of the bar. I see no reason for
disbelieving this assertion of respondent. It has
been shown by complainant that Dominador
Arigpa Tan represented himself publicly as an
attorney-at-law to the extent of putting up a
signboard with his name and the words "Attorney-
at Law" (Exh. I and 1- 1) to indicate his office, and
it was but natural for respondent and any person
for that matter to have accepted that statement on
its face value. "Now with respect to the allegation
of complainant that respondent is guilty of
fraternizing with Dominador Arigpa Tan to the
extent of permitting his wife to be a godmother of
Mr. Tan's child at baptism (Exh. M & M-1), that fact
even if true did not render respondent guilty of
violating any canon of judicial ethics as long as his
friendly relations with Dominador A. Tan and
family did not influence his official actuations as a
judge where said persons were concerned. There
is no tangible convincing proof that herein
respondent gave any undue privileges in his court
to Dominador Arigpa Tan or that the latter
benefitted in his practice of law from his personal
relations with respondent, or that he used his
influence, if he had any, on the Judges of the other
branches of the Court to favor said Dominador
Tan.
Of course it is highly desirable for a member of the
judiciary to refrain as much as possible from
maintaining close friendly relations with practising
attorneys and litigants in his court so as to avoid
suspicion 'that his social or business relations or
friendship constitute an element in determining his
judicial course" (par. 30, Canons of Judicial
Ethics), but if a Judge does have social relations,
that in itself would not constitute a ground for
disciplinary action unless it be clearly shown that
his social relations be clouded his official
actuations with bias and partiality in favor of his
friends (pp. 403-405, rec.).
In conclusion, while respondent Judge Asuncion, now Associate
Justice of the Court of Appeals, did not violate any law in
acquiring by purchase a parcel of land which was in litigation in
his court and in engaging in business by joining a private
corporation during his incumbency as judge of the Court of First
Instance of Leyte, he should be reminded to be more discreet in
his private and business activities, because his conduct as a
member of the Judiciary must not only be characterized with
propriety but must always be above suspicion.
WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF
THE COURT OF APPEALS IS HEREBY REMINDED TO BE
MORE DISCREET IN HIS PRIVATE AND BUSINESS
ACTIVITIES.
SO ORDERED.
 NUMBER 29

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-1870             February 27, 1948

ANTONIO C. OGNIR, petitioner, 
vs.
THE DIRECTOR OF PRISONS, respondent.
Vamenta and Maclang for petitioner.
First Assistant Solicitor General Roberto A. Gianzon, Solicitor
Antonio A. Torres and Lieutenant Colonel Fred Ruiz Castro,
J.A.G.S. (NDF), for respondent.
FERIA, J.:
This is a petition for habeas corpus by the petitioner against the
Director of Prisons.
The petitioner was convicted by the General Court Martial
appointed or convened during the year 1943 in Lanao by
Colonel Wendel W. Fertig, Commanding Officer of the 10th
Military District of Mindanao, and sentenced to life
imprisonment, for violation of the 93rd Article of War of the
Philippine Army. He now claims that his imprisonment is null
and void because the said General Court-Martial was not legally
constituted, inasmuch as District Commander that appointed or
convened it had no authority to do so, and therefore the
judgment of said court is null and void for want of jurisdiction.
The only question to be determined in the present case is
whether or not the General Court-Martial which sentenced the
petitioner to life imprisonment, was legally appointed or
convened. For it is a well established rule that a judgment
rendered by a military court which is not legally constituted is
treated not only as voidable but void and subject to collateral
attack, McClaughry vs. Deming, 186 U. S., 49; 46 Law. ed.,
1049.
Article 8, Commonwealth Act. No. 408 which provides the
following:.
 General Courts-Martial. — The President of the
Philippines, the Chief of Staff of the Philippine Army, and,
when empowered by the President, the Provost Martial
General, the Commanding Officer of a Division, the
District Commander, the Superintendent of the Military
Academy, the Commanding Officer of a separate brigade
or body of troops may appoint general courts-martial; but
when any such commander is the accuser or prosecutor
of the person or persons to be tried, the court shall be
appointed by superior competent authority, and no officer
shall be eligible to sit as a member of such court when he
is the accuser or a witness for the prosecution or for the
defense.
There is nothing in the record or in the return filed by the
respondent to show that Col. Wendel W. Fertig, Commanding
Officer of the 10th Military District of Mindanao had ever been
empowered to appoint a General Court-Martial, by the President
of the Commonwealth, or by General McArthur, Supreme
Commander of the U.S. Army in Southwest Pacific Area,
assuming that the military powers of the President of the
Commonwealth as Commander in Chief of the Philippine Army
was ipso facto transferred to said Supreme Commander when
the Commonwealth Government of the Philippines evacuated to
Australia and then to the United States. The appointment of
Colonel Fertig as Commander of the 10th Military District of
Mindanao does not carry with it the power to convene the
General Court-Martial. According to the above-quoted provision
of article 8, Commonwealth No. 408, the only officers who have
such inherent power by virtue of their position are the President
of the Commonwealth and the Chief of Staff of the Philippine
Army. All other officers such as the Provost Marshall and
Commanding Officer of a separate brigade or body of troops,
and Colonel Fertig may come within the latter category, can not
appoint a General Court Martial unless expressly empowered by
the President to do so.
"While courts-martial, not being 'inferior courts' to the Supreme
Court under the Constitution, cannot be appealed from to any
civil court, or controlled or directed by the decree or mandate of
such a court, yet in our U.S. Courts, similarly as in the English
tribunals, the writ of habeas corpus may be availed of by a
prisoner claiming to be illegally detained under trial or sentence
of court — martial, and this proceeding the legality of the action
of the court — as whether it was legally constituted, or had
jurisdiction, or its sentence was authorized by the code--may be
inquired into." (Winthrop's Military Law and Precedents, 2d ed.,
Vols. 1 and 2, p. 52.)
In view of the foregoing, we are of the opinion and so hold that
the judgment rendered by the General Court Martial that
sentenced the petitioner to life imprisonment is null and void,
because said court was not duly convened or appointed in
accordance with law and therefore, had no jurisdiction to render
said sentence.
The petitioner being illegally detained, respondent is ordered to
release him immediately. So ordered.
Moran, C.J., Pablo, Hilado, Bengzon, Briones, Padilla and
Tuason, JJ., concur.
PERFECTO, J.:.
We concur in this decision, but we do not accept Winthrop's
theory that courts-martial are not inferior courts to the Supreme
Court under the Constitution. All other courts are inferior to the
Supreme Court. The constitutional text is clear enough.
RESOLUTION ON A MOTION FOR RECONSIDERATION
May 12, 1948
FERIA, J.:
A motion for reconsideration of our decision was filed in this
case by the Judge Advocate General of the Philippine Army and
Solicitor Antonio A. Torres, on the ground: (1) that the General
Court Martial which convicted the defendant had been
convened not by Col. Fertig but by Lt. Col. Hodges of the 18th
Decision, 10th Military District; (2) that as a matter of fact Col.
Fertig was expressly authorized by Gen. MacArthur to convene
such court; and (3) that the decision of the General Court-
Martial which convicted the petitioner may be given the same
effects as the actuation of the civil courts during the Japanese
occupation.
As to the first ground, according to the return filed by the First
Assistant Solicitor General and the Solicitor Antonio Torres,
"The records of this case on file with the Judge Advocate
General Office, Philippine Army, disclose that the petitioner,
together with one Private Elino Pagaling, was charged with
violation of the 93rd Articles of War before a general court
martial appointed by Colonel Wendell W. Fertig, Commanding
Officer of the 10th Military District (Mindanao) pursuant to
paragraph 9, Special Order 124, Headquarters, 108th Division,
CPQ, Series of 1944, as amended." According to section 13,
Rule 102 of the Rules of Court, the return is prima
facie evidence of the cause of restraint, that is, that the
petitioner was confined by virtue of a judgment of conviction
rendered by a Court-Martial convened or appointed by said
officer Colonel Fertig, and there is no mention whatever of Lt.
Col. Hodges in said return. Therefore, the contention or
allegation in paragraph 4 of the motion for reconsideration that
"the decision of this Honorable Court was erroneously based on
the assumption that the Court-Martial which convicted the
petitioner was appointed and convened by Colonel Wendell W.
Fertig, when in truth and in fact said Court was appointed by Lt.
Col. Hodges, Division Commander of the 108 Division, 10th
Military District," is a reckless allegation.
With regard to the second ground, assuming, contrary to the
return, that Lt. Col. Hodges was the one who convened the
General Court-Martial, and not Col. Fertig, there is nothing in
the record to show or support the allegation that either Col.
Fertig or Lt. Col. Hodges was ever authorized by General
MacArthur to convene or appoint the General Court-Martial
which convicted the petitioner. The Exhibit I attached to the
motion for reconsideration, that purports to be an affidavit dated
March 8, 1948, of one Captain F. S. Lagman, states among
others that "a radiogram to GHQ, SWPA was transmitted
requesting for an authorization sometime in 1943, as far as I
remember. After the said request, it is my recollection that an
authority was granted him to appoint Special and General
Court-Martial." The statement in Exhibit I does not deserve any
credit. In the first place, the so-called affidavit is not signed; the
names F.S. Lagman appearing as affiant, and Jose R. Catibog
as the officer before whom the so-called affidavit is supposed to
have been sworn to, are not signed but typewritten. (2)
Secondly, said Lagman does not affirm that his recollection is
based on the fact that he personally received such radiogram.
On the contrary, as he states that "as an Adjutant General, I had
access, as custodian of all records to all incoming and outgoing
official communications of our headquarters," it is to be inferred
that he had obtained such information from the record, and the
best evidence is the record itself or the original transcription of
radiogram received, there being no showing that it was lost or
destroyed. Thirdly, Lagman refers to an authority granted (he
does not say by whom) to Colonel Fertig to convene Special
and General Courts-Martial, and not to Lt. Colonel Hodges who,
according to Exhibit 3 of the motion for reconsideration,
convened the General Court-Martial in question; and therefore,
even assuming without deciding that Col. Fertig was granted
such authority, the General Court-Martial in question convened
by Lt. Col. Hodges is null and void for the latter had no authority
to do so. And fourthly, Circular No. 34 of the Commonwealth of
the Philippine Army Headquarters Apo 75, Appendix B to the
petitioner's petition (admitted and not denied as a correct copy
of the original), belies the gratuitous assumption that Lt. Col.
Hodges had authority to convene said General Courts-Martial,
for said circular provides that "General Courts-Martial, appointed
by District Commanders from 1942 to 1944 are not covered by
this order (Executive Order that empowers District Commander
to convene general courts-martial, otherwise it would be giving
the order its retroactive effect," and that "General Courts-Martial
appointed by recognized guerrilla District Commanders prior to
June 6, 1945, must show authority for the appointment."
(Emphasis ours.)
(3) and regarding the third ground, the contention that the
proceedings of the General Court-Martial under consideration
"may be given effect as the actuation of de facto officers in the
same manner as the pronouncement of Civil Tribunals set up
during the second Republic." is untenable; because there is no
analogy between the decision of the courts established by the
Military Government or the so-called second Republic, and that
of the General Court-Martial which convicted the petitioner. The
Courts of the Commonwealth legally constituted which were
continued during the so-called Philippine Republic, and the
other courts during the Japanese occupation were legally
created by laws which, under the International Law, the military
occupant had the right to promulgate. While the said General
Court-Martial was created or convened by an officer having no NUMBER 34
power or authority to do so.
Paras, Pablo, Bengzon, Padilla, and Tuason, JJ., concur.  
Republic of the Philippines
Supreme Court
HILADO, J.: Manila
I concur in the result, but dissent from the declaration that the  
Commonwealth courts were continued during the so-called EN BANC
Philippine Republic. As I have so often contended, the  
occupation courts were different from the Commonwealth courts ISABELITA C. VINUYA, VICTORIA   G.R. No. 162230
— the majority have held the former de facto, but we all agree C. DELA PEA, HERMINIHILDA    
the latter were de jure. The former were courts of the occupation MANIMBO, LEONOR H.    
regime, the latter of the lawful government. SUMAWANG,
CANDELARIA L. SOLIMAN, MARIA    
L. QUILANTANG, MARIA L.    
PERFECTO, J.: MAGISA,
We join in this opinion of Mr. Justice Hilado. NATALIA M.    
ALONZO, LOURDES M.
NAVARO, FRANCISCA M.    
ATENCIO,
ERLINDA MANALASTAS, TARCILA    
M. SAMPANG, ESTER M. PALACIO,    
MAXIMA R. DELA CRUZ, BELEN A.    
SAGUM, FELICIDAD TURLA,    
FLORENCIA M. DELA PEA,   Present:
EUGENIA M. LALU, JULIANA G.    
MAGAT, CECILIA SANGUYO, ANA   PUNO, C. J.,
ALONZO, RUFINA P. MALLARI,   CARPIO,
ROSARIO M. ALARCON, RUFINA   CORONA,
C.
GULAPA, ZOILA B. MANALUS,   CARPIO MORALES,
CORAZON C. CALMA, MARTA A.   VELASCO, JR.,
GULAPA, TEODORA M.   NACHURA,
HERNANDEZ,
FERMIN B. DELA PEA, MARIA   LEONARDO-DE CATALINA Y. MANIO, MAMERTA T.    
DELA CASTRO, SAGUM, CARIDAD L. TURLA, et al.    
PAZ B. CULALA, ESPERANZA   BRION, In their capacity and as members of    
MANAPOL, JUANITA M. BRIONES,   PERALTA, the
VERGINIA M. GUEVARRA,   BERSAMIN, Malaya Lolas Organization,    
MAXIMA Petitioners,    
ANGULO, EMILIA SANGIL,   DEL CASTILLO,      
TEOFILA - versus -    
R. PUNZALAN, JANUARIA G.   ABAD,      
GARCIA, THE HONORABLE EXECUTIVE    
PERLA B. BALINGIT, BELEN A.   VILLARAMA, JR., SECRETARY ALBERTO G.    
CULALA, PILAR Q. GALANG,   PEREZ, and ROMULO, THE HONORABLE    
ROSARIO C. BUCO, GAUDENCIA   MENDOZA, JJ. SECRETARY OF FOREIGN    
C. AFFAIRS DELIA DOMINGO-    
DELA PEA, RUFINA Q.     ALBERT, THE HONORABLE    
CATACUTAN, SECRETARY OF JUSTICE    
FRANCIA A. BUCO, PASTORA C.     MERCEDITAS N. GUTIERREZ,    
GUEVARRA, VICTORIA M. DELA     and THE HONORABLE SOLICITOR    
CRUZ, PETRONILA O. DELA CRUZ,     GENERAL ALFREDO L.    
ZENAIDA P. DELA CRUZ,     BENIPAYO,
CORAZON Respondents.    
M. SUBA, EMERINCIANA A.     x---------------------------------------------------
VINUYA, -----x
LYDIA A. SANCHEZ, ROSALINA M.      
BUCO, PATRICIA A. BERNARDO,     DECISION
LUCILA H.      
PAYAWAL, MAGDALENA DEL CASTILLO, J.:
LIWAG, ESTER C. BALINGIT,      
JOVITA The Treaty of Peace with Japan, insofar as it barred
A. DAVID, EMILIA C. MANGILIT,     future claims such as those asserted by plaintiffs in
VERGINIA M. BANGIT, GUILLERMA     these actions, exchanged full compensation of
S. BALINGIT, TERECITA     plaintiffs for a future peace. History has vindicated the
PANGILINAN, wisdom of that bargain. And while full compensation
MAMERTA C. PUNO,     for plaintiffs' hardships, in the purely economic sense,
CRISENCIANA has been denied these former prisoners and countless
C. GULAPA, SEFERINA S. TURLA,   Promulgated: other survivors of the war, the immeasurable bounty of
MAXIMA B. TURLA, LEONICIA G.   April 28, 2010 life for themselves and their posterity in a free society
GUEVARRA, ROSALINA M.     and in a more peaceful world services the debt.[1]
CULALA,  
 
There is a broad range of vitally important areas that must be
regularly decided by the Executive Department without either
challenge or interference by the Judiciary. One such area involves
the delicate arena of foreign relations. It would be strange indeed if
the courts and the executive spoke with different voices in the realm
of foreign policy. Precisely because of the nature of the questions
presented, and the lapse of more than 60 years since the conduct
complained of, we make no attempt to lay down general guidelines
covering other situations not involved here, and confine the opinion
only to the very questions necessary to reach a decision on this
matter.
 
Factual Antecedents
 
This is an original Petition for Certiorari under Rule 65 of the
Rules of Court with an application for the issuance of a writ of
preliminary mandatory injunction against the Office of the Executive
Secretary, the Secretary of the Department of Foreign Affairs (DFA),
the Secretary of the Department of Justice (DOJ), and the Office of
the Solicitor General (OSG).
 
Petitioners are all members of the MALAYA LOLAS, a
non-stock, non-profit organization registered with the Securities
and Exchange Commission, established for the purpose of
providing aid to the victims of rape by Japanese military forces
in the Philippines during the Second World War.
 
Petitioners narrate that during the Second World War, the
Japanese army attacked villages and systematically raped the
women as part of the destruction of the village. Their communities
were bombed, houses were looted and burned, and civilians were
publicly tortured, mutilated, and slaughtered. Japanese soldiers
forcibly seized the women and held them in houses or cells, where
they were repeatedly raped, beaten, and abused by Japanese
soldiers. As a result of the actions of their Japanese tormentors, the
petitioners have spent their lives in misery, having endured physical
injuries, pain and disability, and mental and emotional suffering.[2]
Petitioners claim that since 1998, they have approached the
Executive Department through the DOJ, DFA, and OSG, requesting
assistance in filing a claim against the Japanese officials and military
officers who ordered the establishment of the comfort women
stations in the Philippines. However, officials of the Executive
Department declined to assist the petitioners, and took the position
that the individual claims of the comfort women for compensation had
already been fully satisfied by Japans compliance with the Peace
Treaty between the Philippines and Japan.
 
Issues
 
Hence, this petition where petitioners pray for this court to (a)
declare that respondents committed grave abuse of discretion
amounting to lack or excess of discretion in refusing to espouse their
claims for the crimes against humanity and war crimes committed
against them; and (b) compel the respondents to espouse their
claims for official apology and other forms of reparations against
Japan before the International Court of Justice (ICJ) and other
international tribunals.
 
Petitioners arguments
 
Petitioners argue that the general waiver of claims made by
the Philippine government in the Treaty of Peace with Japan is
void. They claim that the comfort women system established
by Japan, and the brutal rape and enslavement of petitioners
constituted a crime against humanity,[3] sexual slavery,[4] and torture.
[5]
 They allege that the prohibition against these international crimes
is jus cogens norms from which no derogation is possible; as such, in
waiving the claims of Filipina comfort women and failing to espouse
their complaints against Japan, the Philippine government is in
breach of its legal obligation not to afford impunity for crimes against
humanity. Finally, petitioners assert that the Philippine governments
acceptance of the apologies made by Japan as well as funds from
the Asian Womens Fund (AWF) were contrary to international law.
 
Respondents Arguments
Respondents maintain that all claims of the Philippines and its
nationals relative to the war were dealt with in the San Francisco
Peace Treaty of 1951 and the bilateral Reparations Agreement of
1956.[6]
Article 14 of the Treaty of Peace[7] provides:
 
Article 14. Claims and Property
 
a) It is recognized that Japan should pay reparations
to the Allied Powers for the damage and
suffering caused by it during the war.
Nevertheless it is also recognized that the
resources of Japan are not presently
sufficient, if it is to maintain a viable
economy, to make complete reparation for
all such damage and suffering and at the
present time meet its other obligations.
 
b)             Except as otherwise provided in the
present Treaty, the Allied Powers waive all
reparations claims of the Allied Powers,
other claims of the Allied Powers and their
nationals arising out of any actions taken by
Japan and its nationals in the course of the
prosecution of the war, and claims of the
Allied Powers for direct military costs of
occupation.
 
In addition, respondents argue that the apologies made
by Japan[8] have been satisfactory, and that Japan had addressed
the individual claims of the women through the atonement money
paid by the Asian Womens Fund.
Historical Background
 
       The comfort women system was the tragic legacy of the Rape of
Nanking. In December 1937, Japanese military forces captured the
city of Nanking in China and began a barbaric campaign of terror
known as the Rape of Nanking, which included the rapes and
murders of an estimated 20,000 to 80,000 Chinese women, including
young girls, pregnant mothers, and elderly women.[9]
 
In reaction to international outcry over the incident, the
Japanese government sought ways to end international
condemnation[10] by establishing the comfort women system. Under
this system, the military could simultaneously appease soldiers'
sexual appetites and contain soldiers' activities within a regulated
environment.[11] Comfort stations would also prevent the spread of
venereal disease among soldiers and discourage soldiers from
raping inhabitants of occupied territories.[12]
 
       Daily life as a comfort woman was unmitigated misery.[13] The
military forced victims into barracks-style stations divided into tiny
cubicles where they were forced to live, sleep, and have sex with as
many 30 soldiers per day.[14] The 30 minutes allotted for sexual
relations with each soldier were 30-minute increments of
unimaginable horror for the women.[15] Disease was rampant.
[16]
 Military doctors regularly examined the women, but these checks
were carried out to prevent the spread of venereal diseases; little
notice was taken of the frequent cigarette burns, bruises, bayonet
stabs and even broken bones inflicted on the women by soldiers.
 
Fewer than 30% of the women survived the war. [17] Their agony
continued in having to suffer with the residual physical, psychological,
and emotional scars from their former lives. Some returned home
and were ostracized by their families. Some committed
suicide. Others, out of shame, never returned home.[18]
Efforts to Secure Reparation
 
The most prominent attempts to compel the Japanese
government to accept legal responsibility and pay compensatory
damages for the comfort women system were through a series of
lawsuits, discussion at the United Nations (UN), resolutions by
various nations, and the Womens International Criminal Tribunal.
The Japanese government, in turn, responded through a series of
public apologies and the creation of the AWF.[19]
 
Lawsuits
 
In December 1991, Kim Hak-Sun and two other survivors filed
the first lawsuit in Japan by former comfort women against the
Japanese government. The Tokyo District Court however dismissed
their case.[20] Other suits followed,[21] but the Japanese government
has, thus far, successfully caused the dismissal of every case.[22]
 
Undoubtedly frustrated by the failure of litigation before
Japanese courts, victims of the comfort women system brought their
claims before the United States (US). On September 18, 2000, 15
comfort women filed a class action lawsuit in the US District Court for
the District of Columbia[23] "seeking money damages for [allegedly]
having been subjected to sexual slavery and torture before and
during World War II," in violation of "both positive and customary
international law." The case was filed pursuant to the Alien Tort
Claims Act (ATCA),[24] which allowed the plaintiffs to sue the
Japanese government in a US federal district court.[25] On October 4,
2001, the district court dismissed the lawsuit due to lack of jurisdiction
over Japan, stating that [t]here is no question that this court is not the
appropriate forum in which plaintiffs may seek to reopen x x x
discussions nearly half a century later x x x [E]ven if Japan did not
enjoy sovereign immunity, plaintiffs' claims are non-justiciable and
must be dismissed.
 
The District of Columbia Court of Appeals affirmed the lower
court's dismissal of the case.[26] On appeal, the US Supreme Court
granted the womens petition for writ of certiorari, vacated the
judgment of the District of Columbia Court of Appeals, and remanded
the case.[27] On remand, the Court of Appeals affirmed its prior
decision, noting that much as we may feel for the plight of the
appellants, the courts of the US simply are not authorized to hear
their case.[28] The women again brought their case to the US
Supreme Court which denied their petition for writ of certiorari
on February 21, 2006.
 
Efforts at the United
Nations
In 1992, the Korean Council for the Women Drafted for
Military Sexual Slavery by Japan (KCWS), submitted a petition to the
UN Human Rights Commission (UNHRC), asking for assistance in
investigating crimes committed by Japan against Korean women
and seeking reparations for former comfort women. [29] The UNHRC
placed the issue on its agenda and appointed Radhika
Coomaraswamy as the issue's special investigator. In 1996,
Coomaraswamy issued a Report reaffirming Japan's responsibility in
forcing Korean women to act as sex slaves for the imperial army, and
made the following recommendations:
 
A. At the national level
137. The Government of Japan should:
 
(a) Acknowledge that the system of comfort stations
set up by the Japanese Imperial Army during
the Second World War was a violation of its
obligations under international law and accept
legal responsibility for that violation;
 
(b) Pay compensation to individual victims of
Japanese military sexual slavery according to
principles outlined by the Special Rapporteur of
the Sub-Commission on Prevention of
Discrimination and Protection of Minorities on
the right to restitution, compensation and
rehabilitation for victims of grave violations of
human rights and fundamental freedoms. A
special administrative tribunal for this purpose
should be set up with a limited time-frame
since many of the victims are of a very
advanced age;
 
(c) Make a full disclosure of documents and materials
in its possession with regard to comfort stations
and other related activities of the Japanese
Imperial Army during the Second World War;
 
 (d) Make a public apology in writing to individual
women who have come forward and can be
substantiated as women victims of Japanese
military sexual slavery;
 
(e) Raise awareness of these issues by amending
educational curricula to reflect historical
realities;
 
(f) Identify and punish, as far as possible, perpetrators
involved in the recruitment and
institutionalization of comfort stations during the
Second World War.
 
 
Gay J. McDougal, the Special Rapporteur for the UN Sub-
Commission on Prevention of Discrimination and Protection of
Minorities, also presented a report to the Sub-Committee on June 22,
1998 entitled Contemporary Forms of Slavery: Systematic Rape,
Sexual Slavery and Slavery-like Practices During Armed
Conflict. The report included an appendix entitled An Analysis of the
Legal Liability of the Government of Japan for 'Comfort Women
Stations' established during the Second World War,[30] which
contained the following findings:
 
68. The present report concludes that the Japanese
Government remains liable for grave violations of
human rights and humanitarian law, violations that
amount in their totality to crimes against humanity. The
Japanese Governments arguments to the contrary,
including arguments that seek to attack the underlying
humanitarian law prohibition of enslavement and rape,
remain as unpersuasive today as they were when they
were first raised before the Nuremberg war crimes
tribunal more than 50 years ago. In addition, the
Japanese Governments argument that Japan has
already settled all claims from the Second World War
through peace treaties and reparations agreements
following the war remains equally unpersuasive. This
is due, in large part, to the failure until very recently of
the Japanese Government to admit the extent of the
Japanese militarys direct involvement in the
establishment and maintenance of these rape
centres. The Japanese Governments silence on this
point during the period in which peace and reparations
agreements between Japan and other Asian
Governments were being negotiated following the end
of the war must, as a matter of law and justice,
preclude Japan from relying today on these peace
treaties to extinguish liability in these cases.
 
69. The failure to settle these claims more than half a
century after the cessation of hostilities is a testament
to the degree to which the lives of women continue to
be undervalued. Sadly, this failure to address crimes
of a sexual nature committed on a massive scale
during the Second World War has added to the level
of impunity with which similar crimes are committed
today. The Government of Japan has taken some
steps to apologize and atone for the rape and
enslavement of over 200,000 women and girls who
were brutalized in comfort stations during the Second
World War. However, anything less than full and
unqualified acceptance by the Government of Japan
of legal liability and the consequences that flow from
such liability is wholly inadequate. It must now fall to
the Government of Japan to take the necessary final
steps to provide adequate redress.
 
 
The UN, since then, has not taken any official action
directing Japan to provide the reparations sought.
Women's International 
War Crimes
 
 
Tribunal
 
The Women's International War Crimes Tribunal (WIWCT) was a
people's tribunal established by a number of Asian women and
human rights organizations, supported by an international coalition of
non-governmental organizations.[31] First proposed in 1998, the
WIWCT convened in Tokyo in 2000 in order to adjudicate Japan's
military sexual violence, in particular the enslavement of comfort
women, to bring those responsible for it to justice, and to end the
ongoing cycle of impunity for wartime sexual violence against
women.
 
After examining the evidence for more than a year, the
tribunal issued its verdict on December 4, 2001, finding the former
Emperor Hirohito and the State of Japan guilty of crimes against
humanity for the rape and sexual slavery of women. [32] It bears
stressing, however, that although the tribunal included prosecutors,
witnesses, and judges, its judgment was not legally binding since the
tribunal itself was organized by private citizens.
 
Action by Individual Governments
 
On January 31, 2007, US Representative Michael Honda
of California, along with six co-sponsor representatives, introduced
House Resolution 121 which called for Japanese action in light of the
ongoing struggle for closure by former comfort women. The
Resolution was formally passed on July 30, 2007,[33] and made four
distinct demands:
 
[I]t is the sense of the House of Representatives that
the Government of Japan (1) should formally
acknowledge, apologize, and accept historical
responsibility in a clear and unequivocal manner for its
Imperial Armed Forces' coercion of young women into
sexual slavery, known to the world as comfort women,
during its colonial and wartime occupation of Asia and
the Pacific Islands from the 1930s through the duration
of World War II; (2) would help to resolve recurring
questions about the sincerity and status of prior
statements if the Prime Minister of Japan were to
make such an apology as a public statement in his
official capacity; (3) should clearly and publicly refute
any claims that the sexual enslavement and trafficking
of the comfort women for the Japanese Imperial Army
never occurred; and (4) should educate current and
future generations about this horrible crime while
following the recommendations of the international
community with respect to the comfort women.[34]
 
In December 2007, the European Parliament, the governing
body of the European Union, drafted a resolution similar to House
Resolution 121.[35] Entitled, Justice for Comfort Women, the
resolution demanded: (1) a formal acknowledgment of responsibility
by the Japanese government; (2) a removal of the legal obstacles
preventing compensation; and (3) unabridged education of the past.
The resolution also stressed the urgency with which Japan should
act on these issues, stating: the right of individuals to claim
reparations against the government should be expressly recognized
in national law, and cases for reparations for the survivors of sexual
slavery, as a crime under international law, should be prioritized,
taking into account the age of the survivors.
 
The Canadian and Dutch parliaments have each followed suit
in drafting resolutions against Japan. Canada's resolution demands
the Japanese government to issue a formal apology, to admit that its
Imperial Military coerced or forced hundreds of thousands of women
into sexual slavery, and to restore references in Japanese textbooks
to its war crimes.[36] The Dutch parliament's resolution calls for the
Japanese government to uphold the 1993 declaration of remorse
made by Chief Cabinet Secretary Yohei Kono.
 
The Foreign Affairs Committee of the United Kingdoms
Parliament also produced a report in November, 2008 entitled,
"Global Security: Japan and Korea" which concluded
that Japan should acknowledge the pain caused by the issue of
comfort women in order to ensure cooperation
between Japan and Korea.
 
Statements of
Remorse made by
representatives of the
Japanese government
 
Various officials of the Government of Japan have issued the
following public statements concerning the comfort system:
 
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:
 
The Government of Japan has been conducting a
study on the issue of wartime "comfort women" since
December 1991. I wish to announce the findings as a
result of that study.
 
As a result of the study which indicates that comfort
stations were operated in extensive areas for long
periods, it is apparent that there existed a great
number of comfort women. Comfort stations were
operated in response to the request of the military
authorities of the day. The then Japanese military was,
directly or indirectly, involved in the establishment and
management of the comfort stations and the transfer
of comfort women. The recruitment of the comfort
women was conducted mainly by private recruiters
who acted in response to the request of the military.
The Government study has revealed that in many
cases they were recruited against their own will,
through coaxing coercion, etc., and that, at times,
administrative/military personnel directly took part in
the recruitments. They lived in misery at comfort
stations under a coercive atmosphere.  
As to the origin of those comfort women who were
transferred to the war areas, excluding those
from Japan, those from
the Korean Peninsula accounted for a large part.
The Korean Peninsula was under Japanese rule in
those days, and their recruitment, transfer, control,
etc., were conducted generally against their will,
through coaxing, coercion, etc.
 Undeniably, this was an act, with the involvement of
the military authorities of the day, that severely injured
the honor and dignity of many women. The
Government of Japan would like to take this
opportunity once again to extend its sincere apologies
and remorse to all those, irrespective of place of origin,
who suffered immeasurable pain and incurable
physical and psychological wounds as comfort
women.
 
 It is incumbent upon us, the Government of Japan, to
continue to consider seriously, while listening to the
views of learned circles, how best we can express this
sentiment.
 
We shall face squarely the historical facts as described
above instead of evading them, and take them to heart
as lessons of history. We hereby reiterated our firm
determination never to repeat the same mistake by
forever engraving such issues in our memories
through the study and teaching of history.
 
As actions have been brought to court in Japan and
interests have been shown in this issue outside Japan,
the Government of Japan shall continue to pay full
attention to this matter, including private researched
related thereto.
b)          Prime Minister Tomiichi Murayamas Statement in
1994
 
On the issue of wartime comfort women, which
seriously stained the honor and dignity of many
women, I would like to take this opportunity once again
 to express my profound and sincere remorse and
apologies
 
 
c) Letters from the Prime Minister of Japan to Individual Comfort
Women   immeasurable pain and incurable psychological
The issue of comfort women, with the involvement of
the Japanese military authorities at that time, was a
grave affront to the honor and dignity of a large
number of women.
 
As Prime Minister of Japan, I thus extend anew my
most sincere apologies and remorse to all the women
who endured immeasurable and painful experiences
and suffered incurable physical and psychological
wounds as comfort women.
  
I believe that our country, painfully aware of its moral
responsibilities, with feelings of apology and remorse,
should face up squarely to its past history and
accurately convey it to future generations.
 
 
d) The Diet (Japanese Parliament) passed resolutions in
1995 and 2005
 
Solemnly reflecting upon the many instances of
colonial rule and acts of aggression that occurred in
modern world history, and recognizing
that Japan carried out such acts in the past and
inflicted suffering on the people of other countries,
especially in Asia, the Members of this House hereby
express deep remorse. (Resolution of the House of
Representatives adopted on June 9, 1995)
 
 
e) Various Public Statements by Japanese Prime Minister Shinzo
Abe
  I have talked about this matter in the Diet sessions
last year, and recently as well, and to the press. I have
been consistent. I will stand by the Kono Statement.
This is our consistent position. Further, we have been
apologizing sincerely to those who suffered
wounds as comfort women. Former Prime Ministers,
including Prime Ministers Koizumi and Hashimoto,
have issued letters to the comfort women. I would like
to be clear that I carry the same feeling. This has not
changed even slightly. (Excerpt from Remarks by
Prime Minister Abe at an Interview by NHK, March 11,
2007).
 
I am apologizing here and now. I am apologizing as
the Prime Minister and it is as stated in the statement
by the Chief Cabinet Secretary Kono. (Excerpt from
Remarks by Prime Minister Abe at the Budget
Committee, the House of Councilors, the Diet
of Japan, March 26, 2007).
 
I am deeply sympathetic to the former comfort women
who suffered hardships, and I have expressed my
apologies for the extremely agonizing circumstances
into which they were placed. (Excerpt from Telephone
Conference by Prime Minister Abe to President
George W. Bush, April 3, 2007).
 
I have to express sympathy from the bottom of my
heart to those people who were taken as wartime
comfort women. As a human being, I would like to
express my sympathies, and also as prime minister
of Japan I need to apologize to them. My
administration has been saying all along that we
continue to stand by the Kono Statement. We feel
responsible for having forced these women to go
through that hardship and pain as comfort women
under the circumstances at the time. (Excerpt from an
 interview article "A Conversation with Shinzo Abe" by
the Washington Post, April 22, 2007).
x x x both personally and as Prime Minister of Japan,
my heart goes out in sympathy to all those who
suffered extreme hardships as comfort women; and I
expressed my apologies for the fact that they were
forced to endure such extreme and harsh conditions.
Human rights are violated in many parts of the world
during the 20th Century; therefore we must work to
make the 21st Century a wonderful century in which
no human rights are violated. And the Government of
Japan and I wish to make significant contributions to
that end. (Excerpt from Prime Minister Abe's remarks
at the Joint Press Availability after the summit meeting
at Camp David between Prime Minister Abe and
President Bush, April 27, 2007).
 
 The Asian Women's Fund
 
Established by the Japanese government in 1995, the AWF
represented the government's concrete attempt to address its moral
responsibility by offering monetary compensation to victims of the
comfort women system.[37] The purpose of the AWF was to show
atonement of the Japanese people through expressions of apology
and remorse to the former wartime comfort women, to restore their
honor, and to demonstrate Japans strong respect for women.[38]
 
The AWF announced three programs for former comfort women who
applied for assistance: (1) an atonement fund paying 2 million
(approximately $20,000) to each woman; (2) medical and welfare
support programs, paying 2.5-3 million ($25,000-$30,000) for each
woman; and (3) a letter of apology from the Japanese Prime Minister
to each woman. Funding for the program came from the Japanese
government and private donations from the Japanese people. As of
March 2006, the AWF provided 700 million (approximately $7 million)
for these programs in South Korea, Taiwan, and the Philippines; 380
million (approximately $3.8 million) in Indonesia; and 242 million
(approximately $2.4 million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine government
signed a Memorandum of Understanding for medical and welfare
support programs for former comfort women. Over the next five
years, these were implemented by the Department of Social Welfare
and Development.
 
Our Ruling
 
Stripped down to its essentials, the issue in this case is
whether the Executive Department committed grave abuse of
discretion in not espousing petitioners claims for official apology and
other forms of reparations against Japan.
 
The petition lacks merit.
From a Domestic Law
Perspective, the
Executive Department
has the exclusive
prerogative to
determine whether to
espouse petitioners
claims against Japan.
 
 
Baker v. Carr[39] remains the starting point for analysis under
the political question doctrine. There the US Supreme Court
explained that:
 
x x x Prominent on the surface of any case held to
involve a political question is found a textually
demonstrable constitutional commitment of the issue
to a coordinate political department or a lack of
judicially discoverable and manageable standards for
resolving it, or the impossibility of deciding without an
initial policy determination of a kind clearly for non-
 judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing
lack of the respect due coordinate branches of
government; or an unusual need for unquestioning
adherence to a political decision already made; or the
potentiality of embarrassment from multifarious
pronouncements by various departments on question.
 
In Taada v. Cuenco,[40] we held that political questions refer "to those
questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure."
 
Certain types of cases often have been found to present political
questions.[41] One such category involves questions of foreign
relations. It is well-established that "[t]he conduct of the foreign
relations of our government is committed by the Constitution to the
executive and legislative--'the political'--departments of the
government, and the propriety of what may be done in the exercise
of this political power is not subject to judicial inquiry or
decision."[42] The US Supreme Court has further cautioned that
decisions relating to foreign policy
 
are delicate, complex, and involve large elements of
prophecy. They are and should be undertaken only by
those directly responsible to the people whose welfare
they advance or imperil. They are decisions of a kind
for which the Judiciary has neither aptitude, facilities
nor responsibility.[43]
 
 
To be sure, not all cases implicating foreign relations present political
questions, and courts certainly possess the authority to construe or
invalidate treaties and executive agreements.[44]However, the
question whether the Philippine government should espouse claims
of its nationals against a foreign government is a foreign relations
matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In this
case, the Executive Department has already decided that it is to the
best interest of the country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of 1951. The
wisdom of such decision is not for the courts to question. Neither
could petitioners herein assail the said determination by the
Executive Department via the instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp.,[45] the US
Supreme Court held that [t]he President is the sole organ of the
nation in its external relations, and its sole representative with foreign
relations.
 
It is quite apparent that if, in the maintenance of our
international relations, embarrassment -- perhaps
serious embarrassment -- is to be avoided and
success for our aims achieved, congressional
legislation which is to be made effective through
negotiation and inquiry within the international field
must often accord to the President a degree of
discretion and freedom from statutory restriction which
would not be admissible where domestic affairs alone
involved. Moreover, he, not Congress, has the better
opportunity of knowing the conditions which prevail in
foreign countries, and especially is this true in time of
war. He has his confidential sources of information. He
has his agents in the form of diplomatic, consular and
other officials. x x x
 
 
This ruling has been incorporated in
our jurisprudence through Bayan v.
Executive Secretary[46] and Pimentel v. Executive Secretary;[47] its
overreaching principle was, perhaps, best articulated in (now Chief)
Justice Punos dissent in Secretary of Justice v. Lantion:[48]
 
x x x The conduct of foreign relations is full of
complexities and consequences, sometimes with life
 and death significance to the nation especially in times
of war. It can only be entrusted to that department of
government which can act on the basis of the best
available information and can decide with
decisiveness. x x x It is also the President who
possesses the most comprehensive and the most
confidential information about foreign countries for our
diplomatic and consular officials regularly brief him on
meaningful events all over the world. He has also
unlimited access to ultra-sensitive military intelligence
data.In fine, the presidential role in foreign affairs is
dominant and the President is traditionally accorded a
wider degree of discretion in the conduct of foreign
affairs. The regularity, nay, validity of his actions are
adjudged under less stringent standards, lest their
judicial repudiation lead to breach of an international
obligation, rupture of state relations, forfeiture of
confidence, national embarrassment and a plethora of
other problems with equally undesirable
consequences.
 
 
The Executive Department has determined that taking up petitioners
cause would be inimical to our countrys foreign policy interests, and
could disrupt our relations with Japan, thereby creating serious
implications for stability in this region. For us to overturn the
Executive Departments determination would mean an assessment of
the foreign policy judgments by a coordinate political branch to which
authority to make that judgment has been constitutionally committed.
 
In any event, it cannot reasonably be maintained that the Philippine
government was without authority to negotiate the Treaty of Peace
with Japan. And it is equally true that, since time immemorial, when
negotiating peace accords and settling international claims:
 
x x x [g]overnments have dealt with x x x private
claims as their own, treating them as national assets,
and as counters, `chips', in international bargaining.
Settlement agreements have lumped, or linked, claims
deriving from private debts with others that were
intergovernmental in origin, and concessions in regard
to one category of claims might be set off against
concessions in the other, or against larger political
considerations unrelated to debts.[49]
 
 
Indeed, except as an agreement might otherwise provide,
international settlements generally wipe out the underlying private
claims, thereby terminating any recourse under domestic
law. In Ware v. Hylton,[50] a case brought by a British subject to
recover a debt confiscated by the Commonwealth of Virginia during
the war, Justice Chase wrote:
 
I apprehend that the treaty of peace abolishes the
subject of the war, and that after peace is concluded,
neither the matter in dispute, nor the conduct of either
party, during the war, can ever be revived, or brought
into contest again. All violences, injuries, or damages
sustained by the government, or people of either,
during the war, are buried in oblivion; and all those
things are implied by the very treaty of peace; and
therefore not necessary to be expressed. Hence it
follows, that the restitution of, or compensation for,
British property confiscated, or extinguished, during
the war, by any of the United States, could only be
provided for by the treaty of peace; and if there had
been no provision, respecting these subjects, in the
treaty, they could not be agitated after the treaty, by
the British government, much less by her subjects in
courts of justice. (Emphasis supplied).
 
 
This
practice of settling claims by means of a peace treaty is certainly
nothing new. For instance, in Dames & Moore v. Regan,[51] the US
Supreme Court held:
 
 Not infrequently in affairs between nations,
outstanding claims by nationals of one country against
the government of another country are sources of
friction between the two sovereigns. United States v.
Pink, 315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed.
796 (1942). To resolve these difficulties, nations have
often entered into agreements settling the claims of
their respective nationals. As one treatise writer puts it,
international agreements settling claims by nationals of
one state against the government of another are
established international practice reflecting traditional
international theory. L. Henkin, Foreign Affairs and the
Constitution 262 (1972). Consistent with that principle,
the United States has repeatedly exercised its
sovereign authority to settle the claims of its nationals
against foreign countries. x x x Under such
agreements, the President has agreed to renounce or
extinguish claims of United States nationals against
foreign governments in return for lump-sum payments
or the establishment of arbitration procedures. To be
sure, many of these settlements were encouraged by
the United States claimants themselves, since a
claimant's only hope of obtaining any payment at all
might lie in having his Government negotiate a
diplomatic settlement on his behalf. But it is also
undisputed that the United States has sometimes
disposed of the claims of its citizens without their
consent, or even without consultation with them,
usually without exclusive regard for their interests, as
distinguished from those of the nation as a whole.
Henkin, supra, at 262-263. Accord, Restatement
(Second) of Foreign Relations Law of the United
States 213 (1965) (President may waive or settle a
claim against a foreign state x x x [even] without the
consent of the [injured] national). It is clear that the
practice of settling claims continues today.
 
 
Respondents explain that the Allied Powers concluded the Peace
Treaty with Japan not necessarily for the complete atonement of the
suffering caused by Japanese aggression during the war, not for the
payment of adequate reparations, but for security purposes. The
treaty sought to prevent the spread of communism in Japan, which
occupied a strategic position in the Far East. Thus, the Peace Treaty
compromised individual claims in the collective interest of the free
world.
 
This was also the finding in a similar case involving American victims
of Japanese slave labor during the war.[52] In a consolidated case in
the Northern District of California,[53] the court dismissed the lawsuits
filed, relying on the 1951 peace treaty with Japan,[54] because of the
following policy considerations:
 
The official record of treaty negotiations establishes
that a fundamental goal of the agreement was to settle
the reparations issue once and for all. As the
statement of the chief United States negotiator, John
Foster Dulles, makes clear, it was well understood
that leaving open the possibility of future claims
would be an unacceptable impediment to a lasting
peace:
 
Reparation is usually the most
controversial aspect of peacemaking.
The present peace is no exception.
 
On the one hand, there are claims both
vast and just. Japan's aggression
caused tremendous cost, losses and
suffering.
 
On the other hand, to meet these
claims, there stands a Japan presently
reduced to four home islands which are
unable to produce the food its people
need to live, or the raw materials they
need to work. x x x
 
The policy of the United States that Japanese liability
for reparations should be sharply limited was informed
by the experience of six years of United States-led
occupation of Japan. During the occupation the
Supreme Commander of the Allied Powers (SCAP) for
the region, General Douglas MacArthur, confiscated
Japanese assets in conjunction with the task of
managing the economic affairs of the vanquished
nation and with a view to reparations payments. It
soon became clear that Japan's financial
condition would render any aggressive
reparations plan an exercise in futility. Meanwhile,
the importance of a stable, democratic Japan as a
bulwark to communism in the region increased. At
the end of 1948, MacArthur expressed the view that
[t]he use of reparations as a weapon to retard the
reconstruction of a viable economy in Japan should be
combated with all possible means and recommended
that the reparations issue be settled finally and without
delay.
 
That this policy was embodied in the treaty is clear not
only from the negotiations history but also from the
Senate Foreign Relations Committee report
recommending approval of the treaty by the Senate.
The committee noted, for example:
Obviously insistence upon the payment
of reparations in any proportion
commensurate with the claims of the
injured countries and their nationals
would wreck Japan's economy,
dissipate any credit that it may possess
at present, destroy the initiative of its
people, and create misery and chaos in
which the seeds of discontent and
communism would flourish. In short, [it]
would be contrary to the basic purposes
and policy of x x x the United States x x
x.
 
We thus hold that, from a municipal law perspective, that certiorari
will not lie. As a general principle and particularly here, where such
an extraordinary length of time has lapsed between the treatys
conclusion and our consideration the Executive must be given ample
discretion to assess the foreign policy considerations of espousing a
claim against Japan, from the standpoint of both the interests of the
petitioners and those of the Republic, and decide on that basis if
apologies are sufficient, and whether further steps are appropriate or
necessary.
 
The Philippines is not
under any international
obligation to espouse
petitioners claims.
 
 
In the international sphere, traditionally, the only means available for
individuals to bring a claim within the international legal system has
been when the individual is able to persuade a government to bring a
claim on the individuals behalf.[55] Even then, it is not the individuals
rights that are being asserted, but rather, the states own
rights. Nowhere is this position more clearly reflected than in the
dictum of the Permanent Court of International Justice (PCIJ) in the
1924 Mavrommatis Palestine Concessions Case:
By taking up the case of one of its subjects and by
resorting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality
asserting its own right to ensure, in the person of its
subjects, respect for the rules of international law. The
question, therefore, whether the present dispute
originates in an injury to a private interest, which in
point of fact is the case in many international disputes,
is irrelevant from this standpoint. Once a State has
taken up a case on behalf of one of its subjects before
 an international tribunal, in the eyes of the latter the
State is sole claimant.[56]
Since the exercise of diplomatic protection is the right of the
State, reliance on the right is within the absolute discretion of states,
and the decision whether to exercise the discretion may invariably be
influenced by political considerations other than the legal merits of the
particular claim.[57] As clearly stated by the ICJ in
Barcelona Traction:
 
The Court would here observe that, within the limits
prescribed by international law, a State may exercise
diplomatic protection by whatever means and to
whatever extent it thinks fit, for it is its own right
that the State is asserting. Should the natural or
legal person on whose behalf it is acting consider
that their rights are not adequately protected, they
have no remedy in international law. All they can do
is resort to national law, if means are available, with a
view to furthering their cause or obtaining redress. The
municipal legislator may lay upon the State an
obligation to protect its citizens abroad, and may also
confer upon the national a right to demand the
performance of that obligation, and clothe the right with
corresponding sanctions. However, all these questions
remain within the province of municipal law and do not
affect the position internationally.[58] (Emphasis
supplied)
 
 
The State, therefore, is the sole judge to decide whether its
protection will be granted, to what extent it is granted, and when will it
cease. It retains, in this respect, a discretionary power the exercise of
which may be determined by considerations of a political or other
nature, unrelated to the particular case.
 
The International Law Commissions (ILCs) Draft Articles on
Diplomatic Protection fully support this traditional view. They (i) state
that "the right of diplomatic protection belongs to or vests in the State,
[59]
 (ii) affirm its discretionary nature by clarifying that diplomatic
protection is a "sovereign prerogative" of the State;[60] and (iii) stress
that the state "has the right to exercise diplomatic protection
on behalf of a national. It is under no duty or obligation to do so."[61]
 
It has been argued, as petitioners argue now, that the State
has a duty to protect its nationals and act on his/her behalf when
rights are injured.[62] However, at present, there is no sufficient
evidence to establish a general international obligation for States to
exercise diplomatic protection of their own nationals abroad.
[63]
 Though, perhaps desirable, neither state practice nor opinio
juris has evolved in such a direction. If it is a duty internationally, it is
only a moral and not a legal duty, and there is no means of enforcing
its fulfillment.[64]
 
We fully agree that rape, sexual slavery, torture, and sexual violence
are morally reprehensible as well as legally prohibited under
contemporary international law.[65] However, petitioners take quite a
theoretical leap in claiming that these proscriptions automatically
imply that that the Philippines is under a non-derogable obligation to
prosecute international crimes, particularly since petitioners do not
demand the imputation of individual criminal liability, but seek to
recover monetary reparations from the state of Japan. Absent the
consent of states, an applicable treaty regime, or a directive by the
Security Council, there is no non-derogable duty to institute
proceedings against Japan. Indeed, precisely because of states
reluctance to directly prosecute claims against another state,
recent developments support the modern trend to empower
individuals to directly participate in suits against perpetrators of
international crimes.[66]Nonetheless, notwithstanding an array of
General Assembly resolutions calling for the prosecution of crimes
against humanity and the strong policy arguments warranting such a
rule, the practice of states does not yet support the present existence
of an obligation to prosecute international crimes.[67] Of course a
customary duty of prosecution is ideal, but we cannot find enough
evidence to reasonably assert its existence. To the extent that any
state practice in this area is widespread, it is in the practice of
granting amnesties, immunity, selective prosecution, or de
facto impunity to those who commit crimes against humanity.[68]
 
Even the invocation of jus cogens norms and erga
omnes obligations will not alter this analysis. Even if we sidestep the
question of whether jus cogens norms existed in 1951, petitioners
have not deigned to show that the crimes committed by the
Japanese army violated jus cogens prohibitions at the time the
Treaty of Peace was signed, or that the duty to prosecute
perpetrators of international crimes is an erga omnes obligation or
has attained the status of jus cogens.
 
The term erga omnes (Latin: in relation to everyone) in international
law has been used as a legal term describing obligations owed by
States towards the community of states as a whole. The concept
was recognized by the ICJ in Barcelona Traction:
 
x x x an essential distinction should be drawn between
the obligations of a State towards the international
community as a whole, and those arising vis--vis
another State in the field of diplomatic protection. By
their very nature, the former are the concern of all
States. In view of the importance of the rights involved,
all States can be held to have a legal interest in their
protection; they are obligations erga omnes.
 
Such obligations derive, for example, in contemporary
international law, from the outlawing of acts of
aggression, and of genocide, as also from the
principles and rules concerning the basic rights of the
human person, including protection from slavery and
racial discrimination. Some of the corresponding rights
of protection have entered into the body of general
international law others are conferred by international
instruments of a universal or quasi-universal character.
 
 
The Latin phrase, erga omnes, has since become one of the rallying
cries of those sharing a belief in the emergence of a value-based
international public order. However, as is so often the case, the reality
is neither so clear nor so bright. Whatever the relevance of
obligations erga omnes as a legal concept, its full potential remains
to be realized in practice.[69]
The term is closely connected with the international law concept
of jus cogens. In international law, the term jus cogens (literally,
compelling law) refers to norms that command peremptory authority,
superseding conflicting treaties and custom. Jus cogens norms are
considered peremptory in the sense that they are mandatory, do not
admit derogation, and can be modified only by general international
norms of equivalent authority.[70]
 
Early strains of the jus cogens doctrine have existed since the 1700s,
[71]
 but peremptory norms began to attract greater scholarly attention
with the publication of Alfred von Verdross's influential 1937 article,
Forbidden Treaties in International Law.[72] The recognition of jus
cogens gained even more force in the 1950s and 1960s with the
ILCs preparation of the Vienna Convention on the Law of Treaties
(VCLT).[73] Though there was a consensus that certain international
norms had attained the status of jus cogens,[74] the ILC was unable to
reach a consensus on the proper criteria for identifying peremptory
norms.
After an extended debate over these and other theories of jus
cogens, the ILC concluded ruefully in 1963 that there is not as yet
any generally accepted criterion by which to identify a general rule of
international law as having the character of jus cogens.[75] In a
commentary accompanying the draft convention, the ILC indicated
that the prudent course seems to be to x x x leave the full content of
this rule to be worked out in State practice and in the jurisprudence of
international tribunals.[76] Thus, while the existence of jus cogens in
international law is undisputed, no consensus exists on its substance,
[77]
 beyond a tiny core of principles and rules.[78]
 
Of course, we greatly sympathize with the cause of
petitioners, and we cannot begin to comprehend the unimaginable
horror they underwent at the hands of the Japanese soldiers. We are
also deeply concerned that, in apparent contravention of fundamental
principles of law, the petitioners appear to be without a remedy to
challenge those that have offended them before appropriate
fora. Needless to say, our government should take the lead in
protecting its citizens against violation of their fundamental human
rights. Regrettably, it is not within our power to order the Executive
Department to take up the petitioners cause. Ours is only the power
to urge and exhort the Executive Department to take up petitioners
cause.
 
WHEREFORE, the Petition is hereby DISMISSED.

NUMBER 39

SECOND DIVISION
DEUTSCHE GESELLSCHAFT FR G.R. No. 152318 effectivity of five (5) years, it nonetheless was stated that [t]he
TECHNISCHE ZUSAMMENARBEIT, Agreement shall be tacitly extended for successive periods of
also known as GERMAN AGENCY Present: one year unless either of the two Contracting Parties denounces
FOR TECHNICAL COOPERATION, it in writing three months prior to its expiry, and that even upon
(GTZ) HANS PETER PAULENZ and QUISUMBING, J., the Agreements expiry, its provisions would continue to apply to
ANNE NICOLAY, Chairperson, any projects agreed upon x x x until their completion. [2]
Petitioners, CARPIO MORALES,  
TINGA, On 10 December 1999, the Philippine government, through then
VELASCO, and Foreign Affairs Secretary Domingo Siazon, and the German
- versus - BRION, JJ. government, agreed to an Arrangement in furtherance of the
Promulgated: 1971 Agreement. This Arrangement affirmed the common
HON. COURT OF APPEALS, HON. commitment of both governments to promote jointly a project
ARIEL CADIENTE SANTOS, Labor April 16, 2009 called, Social Health InsuranceNetworking and Empowerment
Arbiter of the Arbitration Branch, (SHINE), which was designed to enable Philippine
National Labor Relations Commission, familiesespecially poor onesto maintain their health and secure
and BERNADETTE CARMELLA health care of sustainable quality. [3] It appears that SHINE had
MAGTAAS, CAROLINA DIONCO, already been in existence even prior to the effectivity of the
CHRISTOPHER RAMOS, MELVIN Arrangement, though the record does not indicate when exactly
DELA PAZ, RANDY TAMAYO and SHINE was constituted. Nonetheless, the Arrangement stated
EDGARDO RAMILLO, the various obligations of the Filipino and German governments.
Respondents. The relevant provisions of the Arrangement are reproduced as
  follows:
x----------------------------------------------------------------------------x  
  3.                   The Government of the Federal
DECISION Republic of Germany shall make the following
  contributions to the project.
TINGA, J.:  
  It shall
   
On 7 September 1971, the governments of the Federal Republic (a)        second
of Germany and the Republic of the Philippines ratified an  
Agreement concerning Technical Co-operation (Agreement) -          one expert in health economy, insurance
in Bonn, capital of what was then West Germany. The and health systems for up to 48 expert/months,
Agreement affirmed the countries common interest in promoting  
the technical and economic development of their States, and -          one expert in system development for up to
recogni[zed] the benefits to be derived by both States from 10 expert/months
closer technical co-operation, and allowed for the conclusion of  
arrangements concerning individual projects of technical co- -          short-term experts to deal with special tasks
operation.[1] While the Agreement provided for a limited term of for a total of up to 18 expert/months,
 
-          project assistants/guest students as
required, who shall work on the project as part
of their basic and further training and assume  
specific project tasks under the separately
financed junior staff promotion programme of
the Deutsche Gesellschaft fr Technische
Zusammenarbeit (GTZ);  
 
(b)       provide in situ  
 
-          short-term experts to deal with diverse
special tasks for a total of up to 27
expert/months,
 
-          five local experts in health economy, health  
insurance, community health systems,
information technology, information systems,
training and community mobilization for a total  
of up to 240 expert/months,
-          local and auxiliary personnel for a total of up
to 120 months;
 
(c) supply inputs, in particular
 
-          two cross-country vehicles,
 
-          ten computers with accessories,
 
-          office furnishings and equipment
 
up to a total value of DM 310,000 (three hundred
and ten thousand Deutsche Mark);
 
(c)        meet
 
-          the cost of accommodation for the seconded
experts and their families in so far as this cost is
not met by the seconded experts themselves,
-          the cost of official travel by the experts
referred to in sub-paragraph (a) above within
and outside the Republic of the Philippines,
-          the cost of seminars and courses,
-          the cost of transport and insurance to the
project site of inputs to be supplied pursuant to
sub-paragraph (c) above, excluding the charges
and storage fees referred to in paragraph 4(d)
below,
-          a proportion of the operating and
administrative costs;
xxx
4.                   The Government of the Republic of
the Philippines shall make the following
contributions to the project:
 
It shall
 
(a)               provide the necessary Philippine
experts for the project, in particular one project
coordinator in the Philippine Health Insurance
Corporation (Philhealth), at least three further
experts and a sufficient number of administrative
and auxiliary personnel, as well as health
personnel in the pilot provinces and in the other
project partners, in particular one responsible
expert for each pilot province and for each
association representing the various target groups,
 -             release suitably qualified experts from
their duties for attendance at the envisaged basic
and further training activities; it shall only nominate
such candidates as have given an undertaking to
work on the project for at least five years after
completing their training and shall ensure that
these Philippine experts receive appropriate
remuneration,
-             ensure that the project field offices have
sufficient expendables,
-             make available the land and buildings
required for the project;
 
(b)              assume an increasing proportion of the
running and operating costs of the project;
(c)               afford the seconded experts any
assistance they may require in carrying out the
tasks assigned to them and place at their disposal
all necessary records and documents;
(d)              guarantee that
 
-             the project is provided with an itemized
budget of its own in order to ensure smooth
continuation of the project.
 
-             the necessary legal and administrative
framework is created for the project,
 
-             the project is coordinated in close
cooperation with other national and international
agencies relevant to implementation,
 
-             the inputs supplied for the project on
behalf of the Government of the Federal Republic
of Germany are exempted from the cost of
licenses, harbour dues, import and export duties
and other public charges and fees, as well as
storage fees, or that any costs thereof are met, and
that they are cleared by customs without
delay. The aforementioned exemptions shall, at the
request of the implementing agencies also apply to
inputs procured in the Republic of the Philippines,
 
-             the tasks of the seconded experts are
taken over as soon as possible by Philippine
experts,
 
-             examinations passed by Philippine
nationals pursuant to this Arrangement are
recognized in accordance with their respective
standards and that the persons concerned are
afforded such opportunities with regard to careers,
appointments and advancement as are
[4]
commensurate with their training.
 
 
In the arraignment, both governments likewise named
their respective implementing organizations for SHINE.
The Philippines designated the Department of Health (DOH)
and the Philippine Health Insurance Corporation (Philhealth)
with the implementation of SHINE. For their part, the German
government charge[d] the Deustche Gesellschaft fr Technische
Zusammenarbeit[[5]] (GTZ[[6]]) GmbH, Eschborn, with the
implementation of its contributions.[7]
 
Private respondents were engaged as contract
employees hired by GTZ to work for SHINE on various dates
between December of 1998 to September of 1999. Bernadette
Carmela Magtaas was hired as an information systems
manager and project officer of SHINE; [8] Carolina Dionco as a
Project Assistant of SHINE;[9] Christopher Ramos as a project
assistant and liason personnel of NHI related SHINE activities
by GTZ;[10] Melvin Dela Paz and Randy Tamayo as
programmers;[11] and Edgardo Ramilo as driver, messenger and
multipurpose service man.[12] The employment contracts of all
six private respondents all specified Dr. Rainer Tollkotter,
identified as an adviser of GTZ, as the employer. At the same
time, all the contracts commonly provided that [i]t is mutually
agreed and understood that [Dr. Tollkotter, as employer] is a
seconded GTZ expert who is hiring the Employee on behalf of
GTZ and for a Philippine-German bilateral project named Social
Health InsuranceNetworking and Empowerment (SHINE) which
will end at a given time.[13]
 
In September of 1999, Anne Nicolay (Nicolay), a Belgian
national, assumed the post of SHINE Project Manager.
Disagreements eventually arose between Nicolay and private
respondents in matters such as proposed salary adjustments,
and the course Nicolay was taking in the implementation of
SHINE different from her predecessors. The dispute culminated
in a letter[14] dated 8 June 2000, signed by the private
respondents, addressed to Nicolay, and copies furnished
officials of the DOH, Philheath, and the director of
the Manila office of GTZ. The letter raised several issues which
private respondents claim had been brought up several times in
the past, but have not been given appropriate response. It was
claimed that SHINE under Nicolay had veered away from its
original purpose to facilitate the development of social health
insurance by shoring up the national health insurance program
and strengthening local initiatives, as Nicolay had refused to
support local partners and new initiatives on the premise that
community and local government unit schemes were not
sustainablea philosophy that supposedly betrayed Nicolays lack
of understanding of the purpose of the project. Private
respondents further alleged that as a result of Nicolays new
thrust, resources have been used inappropriately; that the new
management style was not congruent with the original goals of
the project; that Nicolay herself suffered from cultural
insensitivity that consequently failed to sustain healthy relations
with SHINEs partners and staff.
 
The letter ended with these ominous words:
 
The issues that we [the private respondents]
have stated here are very crucial to us in working
for the project. We could no longer find any reason
to stay with the project unless ALL of these issues
be addressed immediately and appropriately.[15]
 
 
In response, Nicolay wrote each of the private respondents a
letter dated 21 June 2000, all similarly worded except for their
respective addressees. She informed private respondents that
the projects orientations and evolution were decided in
consensus with partner institutions, Philhealth and the DOH,
and thus no longer subject to modifications. More pertinently,
she stated:
 
You have firmly and unequivocally stated in
the last paragraph of your 8th June 2000 letter that
you and the five other staff could no longer find any
reason to stay with the project unless ALL of these
issues be addressed immediately and
appropriately. Under the foregoing premises and
circumstances, it is now imperative that I am to
accept your resignation, which I expect to receive
as soon as possible.[16]
 
 
Taken aback, private respondents replied with a common letter,
clarifying that their earlier letter was not intended as a
resignation letter, but one that merely intended to raise attention
to what they perceived as vital issues. [17] Negotiations ensued
between private respondents and Nicolay, but for naught. Each
of the private respondents received a letter from Nicolay
dated 11 July 2000, informing them of the pre-termination of
their contracts of employment on the grounds of serious and
gross insubordination, among others, resulting to loss of
confidence and trust.[18]
 
On 21 August 2000, the private respondents filed a complaint for
illegal dismissal with the NLRC. Named as respondents therein
where GTZ, the Director of its Manila office Hans Peter Paulenz,
its Assistant Project Manager Christian Jahn, and Nicolay.
On 25 October 2005, GTZ, through counsel, filed a Motion to
Dismiss, on the ground that the Labor Arbiter had no jurisdiction
over the case, as its acts were undertaken in the discharge of
the governmental functions and sovereign acts of the
Government of the Federal Republic of Germany. This was
opposed by private respondents with the arguments
that GTZ had failed to secure a certification that it was
immune from suit from the Department of Foreign Affairs, and
that it was GTZ and not the German government which had
implemented the SHINE Project and entered into the contracts
of employment.
On 27 November 2000, the Labor Arbiter issued an
Order[19] denying the Motion to Dismiss. The Order cited, among
others, that GTZ was a private corporation which entered into an
employment contract; and that GTZ had failed to secure from
the DFA a certification as to its diplomatic status.
 
 
 
On 7 February 2001, GTZ filed with the Labor Arbiter a
Reiterating Motion to Dismiss, again praying that the Motion to
Dismiss be granted on the jurisdictional ground, and reprising
the arguments for dismissal it had earlier raised. [20] No action
was taken by the Labor Arbiter on this new motion. Instead,
on 15 October 2001, the Labor Arbiter rendered a
Decision[21] granting the complaint for illegal dismissal. The
Decision concluded that respondents were dismissed without
lawful cause, there being a total lack of due process both
substantive and procedural [sic].[22] GTZ was faulted for failing to
observe the notice requirements in the labor law. The Decision
likewise proceeded from the premise that GTZ had treated the
letter dated 8 June 2000 as a resignation letter, and devoted
some focus in debunking this theory.
 
The Decision initially offered that it need not discuss the
jurisdictional aspect considering that the same had already been
lengthily discussed in the Order de[n]ying respondents Motion to
Dismiss.[23] Nonetheless, it proceeded to discuss the
jurisdictional aspect, in this wise:
 
 
 
 
 
 
Under pain of being repetitious, the
undersigned Labor Arbiter has jurisdiction to
entertain the complaint on the following grounds:
Firstly, under the employment contract
entered into between complainants and
respondents, specifically Section 10 thereof, it
provides that contract partners agree that his
contract shall be subject to the LAWS of the
jurisdiction of the locality in which the service is
performed.
Secondly, respondent having entered into
contract, they can no longer invoke the sovereignty
of the Federal Republic of Germany.
 
Lastly, it is imperative to be immune from
suit, respondents should have secured from the
Department of Foreign Affairs a certification of
respondents diplomatic status and entitlement to
diplomatic privileges including immunity from suits.
Having failed in this regard, respondents cannot
escape liability from the shelter of sovereign
immunity.[sic][24]
 
 
Notably, GTZ did not file a motion for reconsideration to the
Labor Arbiters Decision or elevate said decision for appeal to the
NLRC. Instead, GTZ opted to assail the decision by way of a
special civil action for certiorari filed with the Court of Appeals.
[25]
 On 10 December 2001, the Court of Appeals promulgated a
Resolution[26] dismissing GTZs petition, finding that judicial
recourse at this stage of the case is uncalled for[,] [t]he
appropriate remedy of the petitioners [being] an appeal to the
NLRC x x x.[27] A motion for reconsideration to this Resolution
proved fruitless for GTZ.[28]
 
Thus, the present petition for review under Rule 45, assailing the
decision and resolutions of the Court of Appeals and of the
Labor Arbiter. GTZs arguments center on whether the Court of
Appeals could have entertained its petition for certiorari despite
its not having undertaken an appeal before the NLRC; and
whether the complaint for illegal dismissal should have been
dismissed for lack of jurisdiction on account of GTZs insistence
that it enjoys immunity from suit. No special arguments are
directed with respect to petitioners Hans Peter Paulenz and
Anne Nicolay, respectively the then Director and the then Project
Manager of GTZ in the Philippines; so we have to presume that
the arguments raised in behalf of GTZs alleged immunity from
suit extend to them as well.
 
The Court required the Office of the Solicitor General
(OSG) to file a Comment on the petition. In its Comment dated 7
November 2005, the OSG took the side of GTZ, with the prayer
that the petition be granted on the ground that GTZ was immune
from suit, citing in particular its assigned functions in
implementing the SHINE programa joint undertaking of the
Philippine and German governments which was neither
proprietary nor commercial in nature.
 
The Court of Appeals had premised the dismissal of GTZs
petition on its procedural misstep in bypassing an appeal to
NLRC and challenging the Labor Arbiters Decision directly with
the appellate court by way of a Rule 65 petition. In dismissing
the petition, the
 
 
Court of Appeals relied on our ruling in Air Service Cooperative
v. Court of Appeals.[29] The central issue in that case was
whether a decision of a Labor Arbiter rendered without
jurisdiction over the subject matter may be annulled in a petition
before a Regional Trial Court. That case may be differentiated
from the present case, since the Regional Trial Court does not
have original or appellate jurisdiction to review a decision
rendered by a Labor Arbiter. In contrast, there is no doubt, as
affirmed by jurisprudence, that the Court of Appeals has
jurisdiction to review, by way of its original certiorari jurisdiction,
decisions ruling on complaints for illegal dismissal.
 
Nonetheless, the Court of Appeals is correct in
pronouncing the general rule that the proper recourse from the
decision of the Labor Arbiter is to first appeal the same to the
NLRC. Air Services is in fact clearly detrimental to petitioners
position in one regard. The Court therein noted that on account
of the failure to correctly appeal the decision of the Labor Arbiter
to the NLRC, such judgment consequently became final and
executory.[30] GTZ goes as far as to request that the Court re-
examine Air Services, a suggestion that is needlessly
improvident under the circumstances. Air Services affirms
doctrines grounded in sound procedural rules that have allowed
for the considered and orderly disposition of labor cases.
 
 
 
 
The OSG points out, citing Heirs of Mayor Nemencio Galvez v.
Court of Appeals,[31] that even when appeal is available, the
Court has nonetheless allowed a writ of certiorari when the
orders of the lower court were issued either in excess of or
without jurisdiction. Indeed, the Court has ruled before that the
failure to employ available intermediate recourses, such as a
motion for reconsideration, is not a fatal infirmity if the ruling
assailed is a patent nullity. This approach suggested by the
OSG allows the Court to inquire directly into what is the main
issuewhether GTZ enjoys immunity from suit.
 The arguments raised by GTZ and the OSG are rooted in
several indisputable facts. The SHINE project was implemented
pursuant to the bilateral agreements between the Philippine and
German governments. GTZ was tasked, under the 1991
agreement, with the implementation of the contributions of the
German government. The activities performed by GTZ
pertaining to the SHINE project are governmental in nature,
related as they are to the promotion of health insurance in
the Philippines. The fact that GTZ entered into employment
contracts with the private respondents did not disqualify it from
invoking immunity from suit, as held in cases such as Holy See
v. Rosario, Jr.,[32]which set forth what remains valid doctrine:
 
 
 
 
 
Certainly, the mere entering into a contract
by a foreign state with a private party cannot be the
ultimate test. Such an act can only be the start of
the inquiry. The logical question is whether the
foreign state is engaged in the activity in the
regular course of business. If the foreign state is
not engaged regularly in a business or trade, the
particular act or transaction must then be tested by
its nature. If the act is in pursuit of a sovereign
activity, or an incident thereof, then it is an act jure
imperii, especially when it is not undertaken for
gain or profit.[33]
 
Beyond dispute is the tenability of the comment points
raised by GTZ and the OSG that GTZ was not performing
proprietary functions notwithstanding its entry into the particular
employment contracts. Yet there is an equally fundamental
premise which GTZ and the OSG fail to address, namely: Is
GTZ, by conception, able to enjoy the FederalRepublics
immunity from suit?
 
The principle of state immunity from suit, whether a local
state or a foreign state, is reflected in Section 9, Article XVI of
the Constitution, which states that the State may not be sued
without its consent. Who or what consists of the State? For one,
the doctrine is available to foreign States insofar as they are
sought to be sued in the courts of the local State, [34] necessary
as it is to avoid unduly vexing the peace of nations.
If the instant suit had been brought directly against the
Federal Republic of Germany, there would be no doubt that it is
a suit brought against a State, and the only necessary inquiry is
whether said State had consented to be sued. However, the
present suit was brought against GTZ. It is necessary for us to
understand what precisely are the parameters of the legal
personality of GTZ.
 
Counsel for GTZ characterizes GTZ as the implementing
agency of the Government of the Federal Republic of Germany,
a depiction similarly adopted by the OSG. Assuming that
characterization is correct, it does not automatically invest GTZ
with the ability to invoke State immunity from suit. The distinction
lies in whether the agency is incorporated or unincorporated.
The following lucid discussion from Justice Isagani Cruz is
pertinent:
 
Where suit is filed not against the
government itself or its officials but against one of
its entities, it must be ascertained whether or not
the State, as the principal that may ultimately be
held liable, has given its consent to be sued. This
ascertainment will depend in the first instance
 on whether the government agency impleaded
is incorporated or unincorporated.
 
An incorporated agency has a charter of
its own that invests it with a separate juridical
personality, like the Social Security System, the
University of the Philippines, and the City of Manila.
By contrast, the unincorporated agency is so called
because it has no separate juridical personality but
is merged in the general machinery of the
government, like the Department of Justice, the
Bureau of Mines and the Government Printing
Office.
 
If the agency is incorporated, the test of
its suability is found in its charter. The simple
rule is that it is suable if its charter says so, and
this is true regardless of the functions it is
performing. Municipal corporations, for
example, like provinces and cities, are agencies
of the State when they are engaged in
governmental functions and therefore should
enjoy the sovereign immunity from suit.
Nevertheless, they are subject to suit even in
the performance of such functions because
their charter provides that they can sue and be
sued.[35]
 
 
State immunity from suit may be waived by general or special
law.[36] The special law can take the form of the original charter
of the incorporated government agency. Jurisprudence is replete
with examples of incorporated government agencies which were
ruled not entitled to invoke immunity from suit, owing to
provisions in their
charters manifesting their consent to be sued. These include the
National Irrigation Administration,[37] the former Central Bank,
[38]
 and the National Power Corporation.[39] In SSS v. Court of
Appeals,[40] the Court through Justice Melencio-Herrera
explained that by virtue of an express provision in its charter
allowing it to sue and be sued, the Social Security System did
not enjoy immunity from suit:
 
We come now to the amendability of the
SSS to judicial action and legal responsibility for its
acts. To our minds, there should be no question on
this score considering that the SSS is a juridical
entity with a personality of its own. It has corporate
powers separate and distinct from the
Government. SSS' own organic act specifically
provides that it can sue and be sued in Court.
These words "sue and be sued" embrace all civil
process incident to a legal action. So that, even
assuming that the SSS, as it claims, enjoys
immunity from suit as an entity performing
governmental functions, by virtue of the explicit
provision of the aforecited enabling law, the
Government must be deemed to have waived
immunity in respect of the SSS, although it does
not thereby concede its liability. That statutory law
has given to the private citizen a remedy for the
enforcement and protection of his rights. The SSS
thereby has been required to submit to the
jurisdiction of the Courts, subject to its right to
interpose any lawful defense. Whether the SSS
performs governmental or proprietary functions
thus becomes unnecessary to belabor. For by that
waiver, a private citizen may bring a suit against it
for varied objectives, such as, in this case, to
obtain compensation in damages arising from
contract, and even for tort.
 
A recent case squarely in point anent the
principle, involving the National Power Corporation,
is that of Rayo v. Court of First Instance of
Bulacan, 110 SCRA 457 (1981), wherein this
Court, speaking through Mr. Justice Vicente Abad
Santos, ruled:
  
"It is not necessary to write an extended
dissertation on whether or not the NPC
performs a governmental function with
respect to the management and operation
of the Angat Dam. It is sufficient to say that
the government has organized a private
corporation, put money in it and has
allowed it to sue and be sued in any court
under its charter. (R.A. No. 6395, Sec.
3[d]). As a government, owned and
controlled corporation, it has a personality
of its own, distinct and separate from that
of the Government. Moreover, the charter
provision that the NPC can 'sue and be
sued in any court' is without qualification on
the cause of action and accordingly it can
include a tort claim such as the one
instituted by the petitioners."[41]
 
It is useful to note that on the part of the Philippine government,
it had designated two entities, the Department of Health and the
Philippine Health Insurance Corporation (PHIC), as the
implementing agencies in behalf of the Philippines. The PHIC
was established under Republic Act No. 7875, Section 16(g) of
which grants the corporation the power to sue and be sued in
court. Applying the previously cited jurisprudence, PHIC would
not enjoy immunity from suit even in the performance of its
functions connected with SHINE, however, governmental in
nature as they may be.
Is GTZ an incorporated agency of the German government?
There is some mystery surrounding that question. Neither GTZ
nor the OSG go beyond the claim that petitioner is the
implementing agency of the Government of the Federal Republic
of Germany. On the other hand, private respondents asserted
before the Labor Arbiter that GTZ was a private corporation
engaged in the implementation of development projects. [42] The
Labor Arbiter accepted that claim in his Order denying the
Motion to Dismiss,[43] though he was silent on that point in his
Decision. Nevertheless, private respondents argue in their
Comment that the finding that GTZ was a private corporation
was never controverted, and is therefore deemed admitted. [44] In
its Reply, GTZ controverts that finding, saying that it is a matter
of public knowledge that the status of petitioner GTZ is that of
the implementing agency, and not that of a private corporation.
[45]
 
In truth, private respondents were unable to adduce any
evidence to substantiate their claim that GTZ was a private
corporation, and the Labor Arbiter acted rashly in accepting such
claim without explanation. But neither has GTZ supplied any
evidence defining its legal nature beyond that of the bare
descriptive implementing agency. There is no doubt that the
1991 Agreement designated GTZ as the implementing agency in
behalf of the German government. Yet the catch is that such
term has no precise definition that is responsive to our concerns.
Inherently, an agent acts in behalf of a principal, and the GTZ
can be said to act in behalf of the German state. But that is as
far as implementing agency could take us. The term by itself
does not supply whether GTZ is incorporated or unincorporated,
whether it is owned by the German state or by private interests,
whether it has juridical personality independent of the German
government or none at all.
 
GTZ itself provides a more helpful clue, inadvertently, through its
own official Internet website. [46] In the Corporate Profile section
of the English language version of its site, GTZ describes itself
as follows:
As an international cooperation enterprise
for sustainable development with worldwide
operations, the federally owned Deutsche
Gesellschaft fr Technische Zusammenarbeit (GTZ)
GmbH supports the German Government in
achieving its development-policy objectives. It
provides viable, forward-looking solutions for
political, economic, ecological and social
 development in a globalised world. Working under
difficult conditions, GTZ promotes complex reforms
and change processes. Its corporate objective is to
improve peoples living conditions on a sustainable
basis.
GTZ is a federal enterprise based in
Eschborn near Frankfurt am Main. It was founded
in 1975 as a company under private law. The
German Federal Ministry for Economic
Cooperation and Development (BMZ) is its major
client. The company also operates on behalf of
other German ministries, the governments of other
countries and international clients, such as the
European Commission, the United Nations and the
World Bank, as well as on behalf of private
enterprises. GTZ works on a public-benefit basis.
All surpluses generated are channeled [sic] back
into its own international cooperation projects for
sustainable development.[47]
 
 
GTZs own website elicits that petitioner is federally owned, a
federal enterprise, and founded in 1975 as a company under
private law. GTZ clearly has a very meaningful relationship with
the Federal Republic of Germany, which apparently owns it. At
the same time, it appears that GTZ was actually organized not
through a legislative public charter, but under private law, in the
same way that Philippine corporations can be organized under
the Corporation Code even if fully owned by the Philippine
government.
 
This self-description of GTZ in its own official website gives
further cause for pause in adopting petitioners argument that
GTZ is entitled to immunity from suit because it is an
implementing agency. The above-quoted statement does not
dispute the characterization of GTZ as an implementing agency
of the Federal Republic of Germany, yet it bolsters the notion
that as a company organized under private law, it has a legal
personality independent of that of the Federal Republic of
Germany.
 
The Federal Republic of Germany, in its own official website,
[48]
 also makes reference to GTZ and describes it in this manner:
 
 
 
 
x x x Going by the principle of sustainable
development, the German Technical Cooperation
(Deutsche Gesellschaft fr Technische
Zusammenarbeit GmbH, GTZ) takes on non-profit
projects in international technical cooperation. The
GTZ is a private company owned by the Federal
Republic of Germany.[49]
 
 
Again, we are uncertain of the corresponding legal implications
under German law surrounding a private company owned by the
Federal Republic of Germany. Yet taking the description on face
value, the apparent equivalent under Philippine law is that of a
corporation organized under the Corporation Code but owned by
the Philippine government, or a government-owned or controlled
corporation without original charter. And it bears notice that
Section 36 of the Corporate Code states that [e]very corporation
incorporated under this Code has the power and capacity x x x
to sue and be sued in its corporate name. [50]
 
It is entirely possible that under German law, an entity such as
GTZ or particularly GTZ itself has not been vested or has been
specifically deprived the power and capacity to sue and/or be
sued. Yet in the proceedings below and before this Court, GTZ
has failed to establish that under German law, it has not
consented to be sued despite it being owned by the Federal
Republic of Germany. We
adhere to the rule that in the absence of evidence to the
contrary,
foreign laws on a particular subject are presumed to be the
same as those of the Philippines,[51] and following the most
intelligent assumption we can gather, GTZ is akin to a
governmental owned or controlled corporation without original
charter which, by virtue of the Corporation Code, has expressly
consented to be sued. At the very least, like the Labor Arbiter
and the Court of Appeals, this Court has no basis in fact to
conclude or presume that GTZ enjoys immunity from suit.
 
This absence of basis in fact leads to another important point,
alluded to by the Labor Arbiter in his rulings. Our ruling in Holy
See v. Del Rosario[52] provided a template on how a foreign
entity desiring to invoke State immunity from suit could duly
prove such immunity before our local courts. The principles
enunciated in that case were derived from public international
law. We stated then:
 
In Public International Law, when a state or
international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, it requests
the Foreign Office of the state where it is sued to
convey to the court that said defendant is entitled
to immunity.
 
In the United States, the procedure followed
is the process of "suggestion," where the foreign
state or the international organization sued in an
American court requests the Secretary of State to
make a determination as to whether it is entitled to
immunity. If the Secretary of State finds that the
defendant is immune from suit, he, in turn, asks the
Attorney General to submit to the court a
"suggestion" that the defendant is entitled to
immunity. In England, a similar procedure is
followed, only the Foreign Office issues a
certification to that effect instead of submitting a
"suggestion" (O'Connell, I International Law 130
[1965]; Note: Immunity from Suit of Foreign
Sovereign Instrumentalities and Obligations, 50
Yale Law Journal 1088 [1941]).
 
In the Philippines, the practice is for the
foreign government or the international
organization to first secure an executive
endorsement of its claim of sovereign or diplomatic
immunity. But how the Philippine Foreign Office
conveys its endorsement to the courts varies.
In International Catholic Migration Commission v.
Calleja, 190 SCRA 130 (1990), the Secretary of
Foreign Affairs just sent a letter directly to the
Secretary of Labor and Employment, informing the
latter that the respondent-employer could not be
sued because it enjoyed diplomatic immunity.
In World Health Organization v. Aquino, 48 SCRA
242 (1972), the Secretary of Foreign Affairs sent
the trial court a telegram to that effect. In Baer v.
Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked
the Secretary of Foreign Affairs to request the
Solicitor General to make, in behalf of the
Commander of the United States Naval Base at
Olongapo City, Zambales, a "suggestion" to
respondent Judge. The Solicitor General embodied
the "suggestion" in a Manifestation and
Memorandum as amicus curiae.[53]
 
 
It is to be recalled that the Labor Arbiter, in both of his rulings,
noted that it was imperative for petitioners to secure from the
Department of Foreign Affairs a certification of respondents
diplomatic status and entitlement to diplomatic privileges
including immunity from suits.[54] The requirement might not
necessarily be imperative. However, had GTZ obtained such
certification from the DFA, it would have provided factual basis
for its claim of immunity that would, at the very least, establish a
disputable evidentiary presumption that the foreign party is
indeed immune which the opposing party will have to overcome
with its own factual evidence. We do not see why GTZ could not
have secured such certification or endorsement from the DFA
for purposes of this case. Certainly, it would have been highly
prudential for GTZ to obtain the same after the Labor Arbiter had
denied the motion to dismiss. Still, even at this juncture, we do
not see any evidence that the DFA, the office of the executive
branch in charge of our diplomatic relations, has indeed
endorsed GTZs claim of immunity. It may be possible that GTZ
tried, but failed to secure such certification, due to the same
concerns that we have discussed herein.
 
Would the fact that the Solicitor General has endorsed GTZs
claim of States immunity from suit before this Court sufficiently
substitute for the DFA certification? Note that the rule in public
international law quoted in Holy See referred to endorsement by
the Foreign Office of the State where the suit is filed, such
foreign office in the Philippines being the Department of Foreign
Affairs. Nowhere in the Comment of the OSG is it manifested
that the DFA has endorsed GTZs claim, or that the OSG had
solicited the DFAs views on the issue. The arguments raised by
the OSG are virtually the same as the arguments raised by GTZ
without any indication of any special and distinct perspective
maintained by the Philippine government on the issue. The
Comment filed by the OSG does not inspire the same degree of
confidence as a certification from the DFA would have elicited.
 
Holy See made reference to Baer v. Tizon,[55] and that in the said
case, the United States Embassy asked the Secretary of
Foreign Affairs to request the Solicitor General to make a
suggestion to the trial court, accomplished by way of a
Manifestation and Memorandum, that the petitioner therein
enjoyed immunity as the Commander of the Subic Bay Naval
Base. Such circumstance is actually not narrated in the text
of Baer itself and was likely supplied in Holy See because its
author, Justice Camilio Quiason, had appeared as the Solicitor
in behalf of the OSG in Baer. Nonetheless, as narrated in Holy
See, it was the Secretary of Foreign Affairs which directed the
OSG to intervene in behalf of the United States government in
the Baer case, and such fact is manifest enough of the
endorsement by the Foreign Office. We do not find a similar
circumstance that bears here.
 
The Court is thus holds and so rules that GTZ consistently has
been unable to establish with satisfaction that it enjoys the
immunity from suit generally enjoyed by its parent country, the
Federal Republic of Germany. Consequently, both the Labor
Arbiter and the Court of Appeals acted within proper bounds
when they refused to acknowledge that GTZ is so immune by
dismissing the complaint against it. Our finding has additional
ramifications on the failure of GTZ to properly appeal the Labor
Arbiters decision to the NLRC. As pointed out by the OSG, the
direct recourse to the Court of Appeals while bypassing the
NLRC could have been sanctioned had the Labor Arbiters
decision been a patent nullity. Since the Labor Arbiter acted
properly in deciding the complaint, notwithstanding GTZs claim
of immunity, we cannot see how the decision could have
translated into a patent nullity.
 
As a result, there was no basis for petitioners in foregoing the
appeal to the NLRC by filing directly with the Court of Appeals
the petition for certiorari. It then follows that the Court of Appeals
acted correctly in dismissing the petition on that ground. As a
further consequence, since petitioners failed to perfect an
appeal from the Labor Arbiters Decision, the same has long
become final and executory. All other questions related to this
case, such as whether or not private respondents were illegally
dismissed, are no longer susceptible to review, respecting as we
do the finality of the Labor Arbiters Decision.
 
A final note. This decision should not be seen as deviation from
the more common methodology employed in ascertaining
whether a party enjoys State immunity from suit, one which
focuses on the particular functions exercised by the party and
determines whether these are proprietary or sovereign in nature.
The nature of the acts performed by the entity invoking immunity
remains the most important barometer for testing whether the
privilege of State immunity from suit should apply. At the same
time, our Constitution stipulates that a State immunity from suit
is conditional on its withholding of consent; hence, the laws and
circumstances pertaining to the creation and legal personality of
an instrumentality or agency invoking immunity remain relevant.
Consent to be sued, as exhibited in this decision, is often
conferred by the very same statute or general law creating the
instrumentality or agency.
 
WHEREFORE, the petition is DENIED. No pronouncement as to
costs.
 
SO ORDERED.
NUMBER 44
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 90314               November 27, 1990
LOIDA Q. SHAUF and JACOB SHAUF, Petitioners,  director of personnel for administering the education services
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
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.
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
P100,000.0015
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:
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
20 
Telecommunications, et al. Vs. Aligaen, etc., et al.: "Inasmuch
as the State authorizes only legal acts by its officers,
unauthorized acts of government officials or officers are not acts
of the State, and an action against the officials or officers by one
whose rights have been invaded or violated by such acts, for the
protection of his rights, is not a suit against the State within the
rule of immunity of the State from suit. In the same tenor, it has
been said that an action at law or suit in equity against a State
officer or the director of a State department on the ground that,
while claiming to act for the State, he violates or invades the
personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which
he does not have, is not a suit against the State within the
constitutional provision that the State may not be sued without
its consent."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 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.
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.
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 NO. 49
sum of P100,000.00 as moral damages, P20,000.00 as and for
attorney’s fees, and the costs of suit. EN BANC
SO ORDERED. [G.R. No. 138570. October 10, 2000]
BAYAN (Bagong Alyansang Makabayan), a JUNK
VFA MOVEMENT, BISHOP TOMAS
MILLAMENA (Iglesia Filipina Independiente),
BISHOP ELMER BOLOCAN (United Church of
Christ of the Phil.), DR. REYNALDO
LEGASCA, MD, KILUSANG MAMBUBUKID NG
PILIPINAS, KILUSANG MAYO UNO,
GABRIELA, PROLABOR, and the PUBLIC
INTEREST LAW CENTER, petitioners,
vs. EXECUTIVE SECRETARY RONALDO
ZAMORA, FOREIGN AFFAIRS SECRETARY
DOMINGO SIAZON, DEFENSE SECRETARY
ORLANDO MERCADO, BRIG. GEN.
ALEXANDER AGUIRRE, SENATE PRESIDENT
MARCELO FERNAN, SENATOR FRANKLIN
DRILON, SENATOR BLAS OPLE, SENATOR
RODOLFO BIAZON, and SENATOR
FRANCISCO TATAD, respondents.
[G.R. No. 138572. October 10, 2000]
PHILIPPINE CONSTITUTION ASSOCIATION, INC.
(PHILCONSA), EXEQUIEL B. GARCIA,
AMADOGAT INCIONG, CAMILO L. SABIO,
AND RAMON A. GONZALES, petitioners,
vs. HON. RONALDO B. ZAMORA, as
 Executive Secretary, HON. ORLANDO
MERCADO, as Secretary of National Defense,
and HON. DOMINGO L. SIAZON, JR., as
Secretary of Foreign Affairs, respondents.
[G.R. No. 138587. October 10, 2000]
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and
SERGIO R. OSMEA III, petitioners,
vs. JOSEPH E. ESTRADA, RONALDO B.
ZAMORA, DOMINGO L. SIAZON, JR.,
ORLANDO B. MERCADO, MARCELO B.
FERNAN, FRANKLIN M. DRILON, BLAS F.
OPLE and RODOLFO G.
BIAZON, respondents.
[G.R. No. 138680. October 10, 2000]
INTEGRATED BAR OF THE PHILIPPINES,
Represented by its National President, Jose
Aguila Grapilon, petitioners, vs. JOSEPH
EJERCITO ESTRADA, in his capacity as
President, Republic of the Philippines, and
HON. DOMINGO SIAZON, in his capacity as
Secretary of Foreign Affairs, respondents.
[G.R. No. 138698. October 10, 2000]
JOVITO R. SALONGA, WIGBERTO TAADA,
ZENAIDA QUEZON-AVENCEA, ROLANDO
SIMBULAN, PABLITO V. SANIDAD, MA.
SOCORRO I. DIOKNO, AGAPITO A. AQUINO,
JOKER P. ARROYO, FRANCISCO C. RIVERA
JR., RENE A.V. SAGUISAG, KILOSBAYAN,
MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND
NATIONALISM, INC. (MABINI), petitioners,
vs. THE EXECUTIVE SECRETARY, THE
SECRETARY OF FOREIGN AFFAIRS, THE
SECRETARY OF NATIONAL DEFENSE,
SENATE PRESIDENT MARCELO B. FERNAN,
SENATOR BLAS F. OPLE, SENATOR
RODOLFO G. BIAZON, AND ALL OTHER
PERSONS ACTING THEIR CONTROL,
SUPERVISION, DIRECTION, AND
INSTRUCTION IN RELATION TO THE
VISITING FORCES AGREEMENT
(VFA), respondents.
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant
consolidated petitions for certiorari and prohibition are issues
relating to, and borne by, an agreement forged in the turn of the
last century between the Republic of the Philippines and the
United States of America -the Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of
America forged a Military Bases Agreement which formalized,
among others, the use of installations in the Philippine territory
by United States military personnel. To further strengthen their
defense and security relationship, the Philippines and the United
States entered into a Mutual Defense Treaty on August 30,
1951. Under the treaty, the parties agreed to respond to any
external armed attack on their territory, armed forces, public
vessels, and aircraft.[1]
In view of the impending expiration of the RP-US Military
Bases Agreement in 1991, the Philippines and the United States
negotiated for a possible extension of the military bases
agreement. On September 16, 1991, the Philippine Senate
rejected the proposed RP-US Treaty of Friendship, Cooperation
and Security which, in effect, would have extended the
presence of US military bases in the Philippines. [2] With the
expiration of the RP-US Military Bases Agreement, the periodic
military exercises conducted between the two countries were
held in abeyance. Notwithstanding, the defense and security
relationship between the Philippines and the United States of
America continued pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US
Defense Deputy Assistant Secretary for Asia Pacific Kurt
Campbell, met with the Philippine panel, headed by Foreign
Affairs Undersecretary Rodolfo Severino Jr., to exchange notes
on the complementing strategic interests of the United States
and the Philippines in the Asia-Pacific region. Both sides
discussed, among other things, the possible elements of the
Visiting Forces Agreement (VFA for brevity). Negotiations by
both panels on the VFA led to a consolidated draft text, which in
turn resulted to a final series of conferences and
negotiations[3] that culminated in Manila on January 12 and 13,
1998. Thereafter, then President Fidel V. Ramos approved the
VFA, which was respectively signed by public respondent
Secretary Siazon and Unites States Ambassador Thomas
Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through
respondent Secretary of Foreign Affairs, ratified the VFA. [4]
On October 6, 1998, the President, acting through
respondent Executive Secretary Ronaldo Zamora, officially
transmitted to the Senate of the Philippines, [5] the Instrument of
Ratification, the letter of the President [6] and the VFA, for
concurrence pursuant to Section 21, Article VII of the 1987
Constitution. The Senate, in turn, referred the VFA to its
Committee on Foreign Relations, chaired by Senator Blas F.
Ople, and its Committee on National Defense and Security,
chaired by Senator Rodolfo G. Biazon, for their joint
consideration and recommendation. Thereafter, joint public
hearings were held by the two Committees. [7]
On May 3, 1999, the Committees submitted Proposed
Senate Resolution No. 443[8] recommending the concurrence of
the Senate to the VFA and the creation of a Legislative
Oversight Committee to oversee its implementation. Debates
then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443
was approved by the Senate, by a two-thirds (2/3) vote [9] of its
members. Senate Resolution No. 443 was then re-numbered as
Senate Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into force after
an Exchange of Notes between respondent Secretary Siazon
and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9)
Articles, provides for the mechanism for regulating the
circumstances and conditions under which US Armed Forces
and defense personnel may be present in the Philippines, and is
quoted in its full text, hereunder:
Article I
Definitions
As used in this Agreement, United States personnel
means United States military and civilian personnel
temporarily in the Philippines in connection with
activities approved by the Philippine Government.
Within this definition:
1. The term military personnel refers to military members of
the United States Army, Navy, Marine Corps, Air Force,
and Coast Guard.
2. The term civilian personnel refers to individuals who are
neither nationals of, nor ordinary residents in the
Philippines and who are employed by the United States
armed forces or who are accompanying the United States
armed forces, such as employees of the American Red
Cross and the United Services Organization.
Article II
Respect for Law
It is the duty of the United States personnel to
respect the laws of the Republic of the Philippines
and to abstain from any activity inconsistent with the
spirit of this agreement, and, in particular, from any
political activity in the Philippines. The Government
of the United States shall take all measures within its
authority to ensure that this is done.
Article III
Entry and Departure
1. The Government of the Philippines shall facilitate
the admission of United States personnel and their
 departure from the Philippines in connection with
activities covered by this agreement.
2. United States military personnel shall be exempt
from passport and visa regulations upon entering
and departing the Philippines.
3. The following documents only, which shall be
presented on demand, shall be required in respect
of United States military personnel who enter the
Philippines:
(a) personal identity card issued by the
appropriate United States authority showing
full name, date of birth, rank or grade and
service number (if any), branch of service and
photograph;
(b) individual or collective document issued by the
appropriate United States authority,
authorizing the travel or visit and identifying
the individual or group as United States
military personnel; and
(c) the commanding officer of a military aircraft or
vessel shall present a declaration of health,
and when required by the cognizant
representative of the Government of the
Philippines, shall conduct a quarantine
inspection and will certify that the aircraft or
vessel is free from quarantinable diseases.
Any quarantine inspection of United States
aircraft or United States vessels or cargoes
thereon shall be conducted by the United
States commanding officer in accordance with
the international health regulations as
promulgated by the World Health
Organization, and mutually agreed
procedures.
4. United States civilian personnel shall be exempt
from visa requirements but shall present, upon
demand, valid passports upon entry and
departure of the Philippines.
5. If the Government of the Philippines has requested
the removal of any United States personnel from
its territory, the United States authorities shall be
responsible for receiving the person concerned
within its own territory or otherwise disposing of
said person outside of the Philippines.
Article IV
Driving and Vehicle Registration
1. Philippine authorities shall accept as valid, without
test or fee, a driving permit or license issued by the
appropriate United States authority to United
States personnel for the operation of military or
official vehicles.
2. Vehicles owned by the Government of the United
States need not be registered, but shall have
appropriate markings.
Article V
Criminal Jurisdiction
1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United
States personnel with respect to offenses committed
within the Philippines and punishable under the law of
the Philippines.
(b) United States military authorities shall have the right to
exercise within the Philippines all criminal and
disciplinary jurisdiction conferred on them by the
military law of the United States over United States
personnel in the Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction
over United States personnel with respect to
offenses, including offenses relating to the security
of the Philippines, punishable under the laws of the
 Philippines, but not under the laws of the United
States.
(b) United States authorities exercise exclusive
jurisdiction over United States personnel with
respect to offenses, including offenses relating to
the security of the United States, punishable under
the laws of the United States, but not under the
laws of the Philippines.
(c) For the purposes of this paragraph and paragraph
3 of this article, an offense relating to security
means:
(1) treason;
(2) sabotage, espionage or violation of any
law relating to national defense.
3. In cases where the right to exercise jurisdiction is
concurrent, the following rules shall apply:
(a) Philippine authorities shall have the primary right to
exercise jurisdiction over all offenses committed by
United States personnel, except in cases provided for
in paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary
right to exercise jurisdiction over United States
personnel subject to the military law of the United
States in relation to.
(1) offenses solely against the property or security of
the United States or offenses solely against the
property or person of United States personnel; and
(2) offenses arising out of any act or omission done in
performance of official duty.
(c) The authorities of either government may request the
authorities of the other government to waive their
primary right to exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the United States
military authorities to maintain good order and
discipline among their forces, Philippine authorities will,
upon request by the United States, waive their primary
right to exercise jurisdiction except in cases of
particular importance to the Philippines. If the
Government of the Philippines determines that the case
is of particular importance, it shall communicate such
determination to the United States authorities within
twenty (20) days after the Philippine authorities receive
the United States request.
(e) When the United States military commander
determines that an offense charged by authorities of
the Philippines against United states personnel arises
out of an act or omission done in the performance of
official duty, the commander will issue a certificate
setting forth such determination. This certificate will be
transmitted to the appropriate authorities of the
Philippines and will constitute sufficient proof of
performance of official duty for the purposes of
paragraph 3(b)(2) of this Article. In those cases where
the Government of the Philippines believes the
circumstances of the case require a review of the duty
certificate, United States military authorities and
Philippine authorities shall consult immediately.
Philippine authorities at the highest levels may also
present any information bearing on its validity. United
States military authorities shall take full account of the
Philippine position. Where appropriate, United States
military authorities will take disciplinary or other action
against offenders in official duty cases, and notify the
Government of the Philippines of the actions taken.
(f) If the government having the primary right does not
exercise jurisdiction, it shall notify the authorities of the
other government as soon as possible.
(g) The authorities of the Philippines and the United States
shall notify each other of the disposition of all cases in
which both the authorities of the Philippines and the
United States have the right to exercise jurisdiction.
4. Within the scope of their legal competence, the authorities
of the Philippines and United States shall assist each
other in the arrest of United States personnel in the
Philippines and in handling them over to authorities who
are to exercise jurisdiction in accordance with the
provisions of this article.
5. United States military authorities shall promptly notify
Philippine authorities of the arrest or detention of United
States personnel who are subject of Philippine primary or
exclusive jurisdiction. Philippine authorities shall promptly
notify United States military authorities of the arrest or
detention of any United States personnel.
6. The custody of any United States personnel over whom
the Philippines is to exercise jurisdiction shall immediately
reside with United States military authorities, if they so
request, from the commission of the offense until
completion of all judicial proceedings. United States
military authorities shall, upon formal notification by the
Philippine authorities and without delay, make such
personnel available to those authorities in time for any
investigative or judicial proceedings relating to the offense
with which the person has been charged in extraordinary
cases, the Philippine Government shall present its
position to the United States Government regarding
custody, which the United States Government shall take
into full account. In the event Philippine judicial
proceedings are not completed within one year, the United
States shall be relieved of any obligations under this
paragraph. The one-year period will not include the time
necessary to appeal. Also, the one-year period will not
include any time during which scheduled trial procedures
are delayed because United States authorities, after
timely notification by Philippine authorities to arrange for
the presence of the accused, fail to do so.
7. Within the scope of their legal authority, United States and
Philippine authorities shall assist each other in the
carrying out of all necessary investigation into offenses
and shall cooperate in providing for the attendance of
witnesses and in the collection and production of
evidence, including seizure and, in proper cases, the
delivery of objects connected with an offense.
8. When United States personnel have been tried in
accordance with the provisions of this Article and have
been acquitted or have been convicted and are serving, or
have served their sentence, or have had their sentence
remitted or suspended, or have been pardoned, they may
not be tried again for the same offense in the Philippines.
Nothing in this paragraph, however, shall prevent United
States military authorities from trying United States
personnel for any violation of rules of discipline arising
from the act or omission which constituted an offense for
which they were tried by Philippine authorities.
9. When United States personnel are detained, taken into
custody, or prosecuted by Philippine authorities, they shall
be accorded all procedural safeguards established by the
law of the Philippines. At the minimum, United States
personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific
charge or charges made against them and to have
reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and to
cross examine such witnesses;
(d) To present evidence in their defense and to have
compulsory process for obtaining witnesses;
(e) To have free and assisted legal representation of their
own choice on the same basis as nationals of the
Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited
regularly by United States authorities, and to have such
authorities present at all judicial proceedings. These
proceedings shall be public unless the court, in
accordance with Philippine laws, excludes persons who
have no role in the proceedings.
10. The confinement or detention by Philippine authorities of
United States personnel shall be carried out in facilities
agreed on by appropriate Philippine and United States
authorities. United States Personnel serving sentences in
the Philippines shall have the right to visits and material
assistance.
11. United States personnel shall be subject to trial only in
Philippine courts of ordinary jurisdiction, and shall not be
subject to the jurisdiction of Philippine military or religious
courts.
Article VI
Claims
1. Except for contractual arrangements, including United
States foreign military sales letters of offer and
acceptance and leases of military equipment, both
governments waive any and all claims against each other
for damage, loss or destruction to property of each others
armed forces or for death or injury to their military and
civilian personnel arising from activities to which this
agreement applies.
 2. For claims against the United States, other than
contractual claims and those to which paragraph 1
applies, the United States Government, in accordance
with United States law regarding foreign claims, will pay
just and reasonable compensation in settlement of
meritorious claims for damage, loss, personal injury or
death, caused by acts or omissions of United States
personnel, or otherwise incident to the non-combat
activities of the United States forces.
Article VII
Importation and Exportation
1. United States Government equipment, materials, supplies,
and other property imported into or acquired in the
Philippines by or on behalf of the United States armed
forces in connection with activities to which this
agreement applies, shall be free of all Philippine duties,
taxes and other similar charges. Title to such property
shall remain with the United States, which may remove
such property from the Philippines at any time, free from
export duties, taxes, and other similar charges. The
exemptions provided in this paragraph shall also extend to
any duty, tax, or other similar charges which would
otherwise be assessed upon such property after
importation into, or acquisition within, the Philippines.
Such property may be removed from the Philippines, or
disposed of therein, provided that disposition of such
property in the Philippines to persons or entities not
entitled to exemption from applicable taxes and duties
shall be subject to payment of such taxes, and duties and
prior approval of the Philippine Government.
2. Reasonable quantities of personal baggage, personal
effects, and other property for the personal use of United
States personnel may be imported into and used in the
Philippines free of all duties, taxes and other similar
charges during the period of their temporary stay in the
Philippines. Transfers to persons or entities in the
Philippines not entitled to import privileges may only be
made upon prior approval of the appropriate Philippine
authorities including payment by the recipient of
applicable duties and taxes imposed in accordance with
the laws of the Philippines. The exportation of such
property and of property acquired in the Philippines by
United States personnel shall be free of all Philippine
duties, taxes, and other similar charges.
Article VIII
Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces
may enter the Philippines upon approval of the
Government of the Philippines in accordance with
procedures stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed forces
may enter the Philippines upon approval of the
Government of the Philippines. The movement of vessels
shall be in accordance with international custom and
practice governing such vessels, and such agreed
implementing arrangements as necessary.
3. Vehicles, vessels, and aircraft operated by or for the
United States armed forces shall not be subject to the
payment of landing or port fees, navigation or over flight
charges, or tolls or other use charges, including light and
harbor dues, while in the Philippines. Aircraft operated by
or for the United States armed forces shall observe local
air traffic control regulations while in the Philippines.
Vessels owned or operated by the United States solely on
United States Government non-commercial service shall
not be subject to compulsory pilotage at Philippine ports.
Article IX
Duration and Termination
This agreement shall enter into force on the date on
which the parties have notified each other in writing
through the diplomatic channel that they have
completed their constitutional requirements for entry
into force. This agreement shall remain in force until
the expiration of 180 days from the date on which
either party gives the other party notice in writing that
it desires to terminate the agreement.
Via these consolidated[11] petitions for certiorari and
prohibition, petitioners - as legislators, non-governmental
organizations, citizens and taxpayers - assail the
constitutionality of the VFA and impute to herein respondents
grave abuse of discretion in ratifying the agreement.
 We have simplified the issues raised by the petitioners into
the following:
I indefinite way. He must show that he has been, or is about to
Do petitioners have legal standing as concerned
citizens, taxpayers, or legislators to question the
constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21,
Article VII or of Section 25, Article XVIII of the
Constitution?
III
Does the VFA constitute an abdication of Philippine
sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear
and try offenses committed by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over
offenses punishable by reclusion perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of
the Constitution?
b. the Prohibition against nuclear weapons under Article II,
Section 8?
c. Section 28 (4), Article VI of the Constitution granting the
exemption from taxes and duties for the equipment,
materials supplies and other properties imported into or
acquired in the Philippines by, or on behalf, of the US
Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioners standing to
sue, on the ground that the latter have not shown any interest in
the case, and that petitioners failed to substantiate that they
have sustained, or will sustain direct injury as a result of the
operation of the VFA.[12] Petitioners, on the other hand, counter
that the validity or invalidity of the VFA is a matter of
transcendental importance which justifies their standing. [13]
A party bringing a suit challenging the constitutionality of a
law, act, or statute must show not only that the law is invalid, but
also that he has sustained or in is in immediate, or imminent
danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some
be, denied some right or privilege to which he is lawfully entitled,
or that he is about to be subjected to some burdens or penalties
by reason of the statute complained of.[14]
In the case before us, petitioners failed to show, to the
satisfaction of this Court, that they have sustained, or are in
danger of sustaining any direct injury as a result of the
enforcement of the VFA. As taxpayers, petitioners have not
established that the VFA involves the exercise by Congress of
its taxing or spending powers.[15] On this point, it bears stressing
that a taxpayers suit refers to a case where the act complained
of directly involves the illegal disbursement of public funds
derived from taxation.[16] Thus, in Bugnay Const. &
Development Corp. vs. Laron[17], we held:
x x x it is exigent that the taxpayer-plaintiff sufficiently
show that he would be benefited or injured by the
judgment or entitled to the avails of the suit as a real
party in interest. Before he can invoke the power of
judicial review, he must specifically prove that he has
sufficient interest in preventing the illegal expenditure of
money raised by taxation and that he will sustain a direct
injury as a result of the enforcement of the questioned
statute or contract. It is not sufficient that he has merely
a general interest common to all members of the public.
Clearly, inasmuch as no public funds raised by taxation are
involved in this case, and in the absence of any allegation by
petitioners that public funds are being misspent or illegally
expended, petitioners, as taxpayers, have no legal standing to
assail the legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino
and Joker Arroyo, as petitioners-legislators, do not possess the
requisite locus standi to maintain the present suit. While this
Court, in Phil. Constitution Association vs. Hon. Salvador
Enriquez,[18] sustained the legal standing of a member of the
Senate and the House of Representatives to question the
validity of a presidential veto or a condition imposed on an item
in an appropriation bull, we cannot, at this instance, similarly
uphold petitioners standing as members of Congress, in the
absence of a clear showing of any direct injury to their person or
to the institution to which they belong.
Beyond this, the allegations of impairment of legislative
power, such as the delegation of the power of Congress to grant
tax exemptions, are more apparent than real. While it may be
true that petitioners pointed to provisions of the VFA which
allegedly impair their legislative powers, petitioners failed
however to sufficiently show that they have in fact suffered
direct injury.
In the same vein, petitioner Integrated Bar of the Philippines
(IBP) is stripped of standing in these cases. As aptly observed
by the Solicitor General, the IBP lacks the legal capacity to bring
this suit in the absence of a board resolution from its Board of
Governors authorizing its National President to commence the
present action.[19]
Notwithstanding, in view of the paramount importance and
the constitutional significance of the issues raised in the
petitions, this Court, in the exercise of its sound discretion,
brushes aside the procedural barrier and takes cognizance of
the petitions, as we have done in the early Emergency Powers
Cases,[20] where we had occasion to rule:
x x x ordinary citizens and taxpayers were allowed to
question the constitutionality of several executive orders
issued by President Quirino although they were involving
only an indirect and general interest shared in common
with the public. The Court dismissed the objection that
they were not proper parties and ruled
that transcendental importance to the public of these
cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities
of procedure. We have since then applied the exception
in many other cases. (Association of Small Landowners
in the Philippines, Inc. v. Sec. of Agrarian Reform, 175
SCRA 343). (Underscoring Supplied)
This principle was reiterated in the subsequent cases
of Gonzales vs. COMELEC,[21] Daza vs. Singson,
[22]
 and Basco vs. Phil. Amusement and Gaming
Corporation,  where we emphatically held:
[23]
Considering however the importance to the public of the
case at bar, and in keeping with the Courts duty, under
the 1987 Constitution, to determine whether or not the
other branches of the government have kept themselves
within the limits of the Constitution and the laws and that
they have not abused the discretion given to them, the
Court has brushed aside technicalities of procedure and
has taken cognizance of this petition. x x x
Again, in the more recent case of Kilosbayan vs.
Guingona, Jr.,[24] thisCourt ruled that in cases of transcendental
importance, the Court may relax the standing requirements
and allow a suit to prosper even where there is no direct
injury to the party claiming the right of judicial review.
Although courts generally avoid having to decide a
constitutional question based on the doctrine of separation of
powers, which enjoins upon the departments of the government
a becoming respect for each others acts,[25] this Court
nevertheless resolves to take cognizance of the instant
petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the
determination of which provision of the Constitution applies, with
regard to the exercise by the senate of its constitutional power
to concur with the VFA. Petitioners argue that Section 25, Article
XVIII is applicable considering that the VFA has for its subject
the presence of foreign military troops in the
Philippines.Respondents, on the contrary, maintain that Section
21, Article VII should apply inasmuch as the VFA is not a basing
arrangement but an agreement which involves merely the
temporary visits of United States personnel engaged in joint
military exercises.
The 1987 Philippine Constitution contains two provisions
requiring the concurrence of the Senate on treaties or
international agreements. Section 21, Article VII, which herein
respondents invoke, reads:
No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all
the Members of the Senate.
Section 25, Article XVIII, provides:
After the expiration in 1991 of the Agreement between
the Republic of the Philippines and the United States of
America concerning Military Bases, foreign military
bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by
the senate and, when the Congress so requires, ratified
by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a
treaty by the other contracting State.
Section 21, Article VII deals with treatise or international
agreements in general, in which case, the concurrence of at
least two-thirds (2/3) of all the Members of the Senate is
required to make the subject treaty, or international agreement,
valid and binding on the part of the Philippines. This provision
lays down the general rule on treatise or international
agreements and applies to any form of treaty with a wide variety
of subject matter, such as, but not limited to, extradition or tax
treatise or those economic in nature. All treaties or international
agreements entered into by the Philippines, regardless of
subject matter, coverage, or particular designation or
appellation, requires the concurrence of the Senate to be valid
and effective.
In contrast, Section 25, Article XVIII is a special provision
that applies to treaties which involve the presence of foreign
military bases, troops or facilities in the Philippines. Under this
provision, the concurrence of the Senate is only one of the
requisites to render compliance with the constitutional
requirements and to consider the agreement binding on the
Philippines.Section 25, Article XVIII further requires that foreign
military bases, troops, or facilities may be allowed in the
Philippines only by virtue of a treaty duly concurred in by the
Senate, ratified by a majority of the votes cast in a national
referendum held for that purpose if so required by Congress,
and recognized as such by the other contracting state.
It is our considered view that both constitutional provisions,
far from contradicting each other, actually share some common
ground. These constitutional provisions both embody phrases in
the negative and thus, are deemed prohibitory in mandate and
character. In particular, Section 21 opens with the clause No
treaty x x x, and Section 25 contains the phrase shall not be
allowed. Additionally, in both instances, the concurrence of the
Senate is indispensable to render the treaty or international
agreement valid and effective.
To our mind, the fact that the President referred the VFA to
the Senate under Section 21, Article VII, and that the Senate
extended its concurrence under the same provision, is
immaterial. For in either case, whether under Section 21, Article
VII or Section 25, Article XVIII, the fundamental law is crystalline
that the concurrence of the Senate is mandatory to comply with
the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the
treatment of United States troops and personnel visiting the
Philippines. It provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the United
States and the Philippine government in the matter of criminal
jurisdiction, movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically
deals with treaties involving foreign military bases, troops, or
facilities, should apply in the instant case. To a certain extent
and in a limited sense, however, the provisions of section 21,
Article VII will find applicability with regard to the issue and for
the sole purpose of determining the number of votes required to
obtain the valid concurrence of the Senate, as will be further
discussed hereunder.
It is a finely-imbedded principle in statutory construction that
a special provision or law prevails over a general one. Lex
specialis derogat generali. Thus, where there is in the same
statute a particular enactment and also a general one which, in
its most comprehensive sense, would include what is embraced
in the former, the particular enactment must be operative, and
the general enactment must be taken to affect only such cases
within its general language which are not within the provision of
the particular enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we
enunciated:
x x x that another basic principle of statutory construction
mandates that general legislation must give way to a
special legislation on the same subject, and generally be
so interpreted as to embrace only cases in which the
special provisions are not applicable (Sto. Domingo vs.
de los Angeles, 96 SCRA 139), that a specific statute
prevails over a general statute (De Jesus vs. People,
120 SCRA 760) and that where two statutes are of equal
theoretical application to a particular case, the one
designed therefor specially should prevail (Wil Wilhensen
Inc. vs. Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section 25, Article
XVIII is inapplicable to mere transient agreements for the
reason that there is no permanent placing of structure for the
establishment of a military base. On this score, the Constitution
makes no distinction between transient and
permanent. Certainly, we find nothing in Section 25, Article XVIII
that requires foreign troops or facilities to be stationed or
placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no
distinction is made by law, the Court should not distinguish- Ubi
lex non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that
Section 25, Article XVIII is not controlling since no foreign
military bases, but merely foreign troops and facilities, are
involved in the VFA. Notably, a perusal of said constitutional
provision reveals that the proscription covers foreign military
bases, troops, or facilities. Stated differently, this prohibition is
not limited to the entry of troops and facilities without any foreign
bases being established. The clause does not refer to foreign
military bases, troops, or facilities collectively but treats them as
separate and independent subjects. The use of comma and the
disjunctive word or clearly signifies disassociation and
independence of one thing from the others included in the
enumeration,[28]such that, the provision contemplates three
different situations - a military treaty the subject of which could
be either (a) foreign bases, (b) foreign troops, or (c) foreign
facilities - any of the three standing alone places it under the
coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as
manifested during the deliberations of the 1986 Constitutional
Commission, is consistent with this interpretation:
MR. MAAMBONG. I just want to address a question or two to
Commissioner Bernas.
This formulation speaks of three things: foreign military bases,
troops or facilities. My first question is: If the country does
enter into such kind of a treaty, must it cover the three-
bases, troops or facilities-or could the treaty entered into
cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it
covers only one or it covers three, the requirement will be
the same.
MR. MAAMBONG. In other words, the Philippine government
can enter into a treaty covering not bases but merely
troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government
can enter into a treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a
little bit more, we will find some. We just want to cover
everything.[29] (Underscoring Supplied)
Moreover, military bases established within the territory of
another state is no longer viable because of the alternatives
offered by new means and weapons of warfare such as nuclear
weapons, guided missiles as well as huge sea vessels that can
stay afloat in the sea even for months and years without
returning to their home country. These military warships are
actually used as substitutes for a land-home base not only of
military aircraft but also of military personnel and
facilities. Besides, vessels are mobile as compared to a land-
based military headquarters.
 At this juncture, we shall then resolve the issue of whether
or not the requirements of Section 25 were complied with when
the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases,
troops, or facilities in the country, unless the following conditions
are sufficiently met, viz: (a) it must be under a treaty; (b) the
treaty must be duly concurred in by the Senate and, when so
required by congress, ratified by a majority of the votes cast by
the people in a national referendum; and (c) recognized as a
treaty by the other contracting state.
There is no dispute as to the presence of the first two
requisites in the case of the VFA. The concurrence handed by
the Senate through Resolution No. 18 is in accordance with the
provisions of the Constitution, whether under the general
requirement in Section 21, Article VII, or the specific mandate
mentioned in Section 25, Article XVIII, the provision in the latter
article requiring ratification by a majority of the votes cast in a
national referendum being unnecessary since Congress has not
required it.
As to the matter of voting, Section 21, Article
VII particularly requires that a treaty or international agreement,
to be valid and effective, must be concurred in by at least two-
thirds of all the members of the Senate. On the other hand,
Section 25, Article XVIII simply provides that the treaty be duly
concurred in by the Senate.
Applying the foregoing constitutional provisions, a two-thirds
vote of all the members of the Senate is clearly required so that
the concurrence contemplated by law may be validly obtained
and deemed present. While it is true that Section 25, Article
XVIII requires, among other things, that the treaty-the VFA, in
the instant case-be duly concurred in by the Senate, it is very
true however that said provision must be related and viewed in
light of the clear mandate embodied in Section 21, Article VII,
which in more specific terms, requires that the concurrence of a
treaty, or international agreement, be made by a two -thirds vote
of all the members of the Senate. Indeed, Section 25, Article
XVIII must not be treated in isolation to section 21, Article, VII.
As noted, the concurrence requirement under Section 25,
Article XVIII must be construed in relation to the provisions of
Section 21, Article VII. In a more particular language, the
concurrence of the Senate contemplated under Section 25,
Article XVIII means that at least two-thirds of all the members of
the Senate favorably vote to concur with the treaty-the VFA in
the instant case.
Under these circumstances, the charter provides that the
Senate shall be composed of twenty-four (24) Senators.
[30]
 Without a tinge of doubt, two-thirds (2/3) of this figure, or not
less than sixteen (16) members, favorably acting on the
proposal is an unquestionable compliance with the requisite
number of votes mentioned in Section 21 of Article VII. The fact
that there were actually twenty-three (23) incumbent Senators at
the time the voting was made,[31] will not alter in any significant
way the circumstance that more than two-thirds of the members
of the Senate concurred with the proposed VFA, even if the two-
thirds vote requirement is based on this figure of actual
members (23). In this regard, the fundamental law is clear that
two-thirds of the 24 Senators, or at least 16 favorable votes,
suffice so as to render compliance with the strict constitutional
mandate of giving concurrence to the subject treaty.
Having resolved that the first two requisites prescribed in
Section 25, Article XVIII are present, we shall now pass upon
and delve on the requirement that the VFA should be
recognized as a treaty by the United States of America.
Petitioners content that the phrase recognized as a treaty,
embodied in section 25, Article XVIII, means that the VFA
should have the advice and consent of the United States Senate
pursuant to its own constitutional process, and that it should not
be considered merely an executive agreement by the United
States.
In opposition, respondents argue that the letter of United
States Ambassador Hubbard stating that the VFA is binding on
the United States Government is conclusive, on the point that
the VFA is recognized as a treaty by the United States of
America. According to respondents, the VFA, to be binding,
must only be accepted as a treaty by the United States.
This Court is of the firm view that the phrase recognized as
a treaty means that the other contracting party accepts or
acknowledges the agreement as a treaty.[32] To require the
other contracting state, the United States of America in this
case, to submit the VFA to the United States Senate for
concurrence pursuant to its Constitution,[33] is to accord strict
meaning to the phrase.
Well-entrenched is the principle that the words used in the
Constitution are to be given their ordinary meaning except
where technical terms are employed, in which case the
significance thus attached to them prevails. Its language should
be understood in the sense they have in common use. [34]
Moreover, it is inconsequential whether the United States
treats the VFA only as an executive agreement because, under
international law, an executive agreement is as binding as a
treaty.[35] To be sure, as long as the VFA possesses the
elements of an agreement under international law, the said
agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of
Treaties, is an international instrument concluded between
States in written form and governed by international law,
whether embodied in a single instrument or in two or more
related instruments, and whatever its particular designation.
[36]
 There are many other terms used for a treaty or international
agreement, some of which are: act, protocol,
agreement, compromis d arbitrage, concordat, convention,
declaration, exchange of notes, pact, statute, charter
and modus vivendi. All writers, from Hugo Grotius onward, have
pointed out that the names or titles of international agreements
included under the general term treaty have little or no legal
significance. Certain terms are useful, but they furnish little more
than mere description.[37]
Article 2(2) of the Vienna Convention provides that the
provisions of paragraph 1 regarding the use of terms in the
present Convention are without prejudice to the use of those
terms, or to the meanings which may be given to them in the
internal law of the State.
Thus, in international law, there is no difference between
treaties and executive agreements in their binding effect upon
states concerned, as long as the negotiating functionaries have
remained within their powers.[38] International law continues to
make no distinction between treaties and executive agreements:
they are equally binding obligations upon nations. [39]
In our jurisdiction, we have recognized the binding effect of
executive agreements even without the concurrence of the
Senate or Congress. In Commissioner of Customs vs.
Eastern Sea Trading,[40] we had occasion to pronounce:
x x x the right of the Executive to enter into binding
agreements without the necessity of subsequent
congressional approval has been confirmed by long
usage. From the earliest days of our history we have
entered into executive agreements covering such
subjects as commercial and consular relations, most-
favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements
and the settlement of claims. The validity of these has
never been seriously questioned by our courts.
x x x x x x x x x
Furthermore, the United States Supreme Court has
expressly recognized the validity and constitutionality of
executive agreements entered into without Senate
approval. (39 Columbia Law Review, pp. 753-754)
(See, also, U.S. vs. Curtis Wright Export Corporation,
299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S.
324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L.
ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law
Journal, Vol. 15 pp. 1905-1906; California Law
Review, Vol. 25, pp. 670-675; Hyde on International
Law [revised Edition], Vol. 2, pp. 1405, 1416-1418;
willoughby on the U.S. Constitution Law, Vol. I [2d
ed.], pp. 537-540; Moore, International Law Digest,
Vol. V, pp. 210-218; Hackworth, International Law
Digest, Vol. V, pp. 390-407). (Italics
Supplied) (Emphasis Ours)
 The deliberations of the Constitutional Commission which With the ratification of the VFA, which is equivalent to final
drafted the 1987 Constitution is enlightening and highly- acceptance, and with the exchange of notes between the
instructive: Philippines and the United States of America, it now becomes
MR. MAAMBONG. Of course it goes without saying that as far as obligatory and incumbent on our part, under the principles of
ratification of the other state is concerned, that is entirely their international law, to be bound by the terms of the
concern under their own laws. agreement. Thus, no less than Section 2, Article II of the
FR. BERNAS. Yes, but we will accept whatever they say. If they Constitution,[46]declares that the Philippines adopts the generally
say that we have done everything to make it a treaty, then as
accepted principles of international law as part of the law of the
far as we are concerned, we will accept it as a treaty.[41]
land and adheres to the policy of peace, equality, justice,
The records reveal that the United States Government,
freedom, cooperation and amity with all nations.
through Ambassador Thomas C. Hubbard, has stated that the
As a member of the family of nations, the Philippines agrees
United States government has fully committed to living up to the
to be bound by generally accepted rules for the conduct of its
terms of the VFA.[42] For as long as the united States of America
international relations. While the international obligation
accepts or acknowledges the VFA as a treaty, and binds itself
devolves upon the state and not upon any particular branch,
further to comply with its obligations under the treaty, there is
institution, or individual member of its government, the
indeed marked compliance with the mandate of the Constitution.
Philippines is nonetheless responsible for violations committed
Worth stressing too, is that the ratification, by the President,
by any branch or subdivision of its government or any official
of the VFA and the concurrence of the Senate should be taken
thereof. As an integral part of the community of nations, we are
as a clear an unequivocal expression of our nations consent to
responsible to assure that our government, Constitution and
be bound by said treaty, with the concomitant duty to uphold the
laws will carry out our international obligation. [47] Hence, we
obligations and responsibilities embodied thereunder.
cannot readily plead the Constitution as a convenient excuse for
Ratification is generally held to be an executive act,
non-compliance with our obligations, duties and responsibilities
undertaken by the head of the state or of the government, as
under international law.
the case may be, through which the formal acceptance of the
Beyond this, Article 13 of the Declaration of Rights and
treaty is proclaimed.[43] A State may provide in its domestic
Duties of States adopted by the International Law Commission
legislation the process of ratification of a treaty. The consent of
in 1949 provides: Every State has the duty to carry out in good
the State to be bound by a treaty is expressed by ratification
faith its obligations arising from treaties and other sources of
when: (a) the treaty provides for such ratification, (b) it is
international law, and it may not invoke provisions in its
otherwise established that the negotiating States agreed that
constitution or its laws as an excuse for failure to perform this
ratification should be required, (c) the representative of the
duty.[48]
State has signed the treaty subject to ratification, or (d) the
Equally important is Article 26 of the convention which
intention of the State to sign the treaty subject to ratification
provides that Every treaty in force is binding upon the parties to
appears from the full powers of its representative, or was
it and must be performed by them in good faith. This is known
expressed during the negotiation.[44]
as the principle of pacta sunt servanda which preserves the
In our jurisdiction, the power to ratify is vested in the
sanctity of treaties and have been one of the most fundamental
President and not, as commonly believed, in the legislature. The
principles of positive international law, supported by the
role of the Senate is limited only to giving or withholding its
jurisprudence of international tribunals.[49]
consent, or concurrence, to the ratification.[45] NO GRAVE ABUSE OF DISCRETION
 In the instant controversy, the President, in effect, is heavily
faulted for exercising a power and performing a task conferred
upon him by the Constitution-the power to enter into and ratify
treaties. Through the expediency of Rule 65 of the Rules of
Court, petitioners in these consolidated cases impute grave
abuse of discretion on the part of the chief Executive in
ratifying the VFA, and referring the same to the Senate pursuant
to the provisions of Section 21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies
such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, or, when the power is exercised
in an arbitrary or despotic manner by reason of passion or
personal hostility, and it must be so patent and gross as to
amount to an evasion of positive duty enjoined or to act at all in
contemplation of law.[50]
By constitutional fiat and by the intrinsic nature of his office,
the President, as head of State, is the sole organ and authority
in the external affairs of the country. In many ways, the
President is the chief architect of the nations foreign policy; his
dominance in the field of foreign relations is (then) conceded.
[51]
 Wielding vast powers an influence, his conduct in the external
affairs of the nation, as Jefferson describes, is executive
altogether."[52]
As regards the power to enter into treaties or international
agreements, the Constitution vests the same in the President,
subject only to the concurrence of at least two-thirds vote of all
the members of the Senate. In this light, the negotiation of the
VFA and the subsequent ratification of the agreement are
exclusive acts which pertain solely to the President, in the lawful
exercise of his vast executive and diplomatic powers granted
him no less than by the fundamental law itself. Into the field of
negotiation the Senate cannot intrude, and Congress itself is
powerless to invade it.[53] Consequently, the acts or judgment
calls of the President involving the VFA-specifically the acts of
ratification and entering into a treaty and those necessary or
incidental to the exercise of such principal acts - squarely fall
within the sphere of his constitutional powers and thus, may not
be validly struck down, much less calibrated by this Court, in the
absence of clear showing of grave abuse of power or discretion.
It is the Courts considered view that the President, in
ratifying the VFA and in submitting the same to the Senate for
concurrence, acted within the confines and limits of the powers
vested in him by the Constitution. It is of no moment that the
President, in the exercise of his wide latitude of discretion and in
the honest belief that the VFA falls within the ambit of Section
21, Article VII of the Constitution, referred the VFA to the Senate
for concurrence under the aforementioned provision. Certainly,
no abuse of discretion, much less a grave, patent and whimsical
abuse of judgment, may be imputed to the President in his act
of ratifying the VFA and referring the same to the Senate for the
purpose of complying with the concurrence requirement
embodied in the fundamental law. In doing so, the President
merely performed a constitutional task and exercised a
prerogative that chiefly pertains to the functions of his
office. Even if he erred in submitting the VFA to the Senate for
concurrence under the provisions of Section 21 of Article VII,
instead of Section 25 of Article XVIII of the Constitution, still, the
President may not be faulted or scarred, much less be adjudged
guilty of committing an abuse of discretion in some patent,
gross, and capricious manner.
For while it is conceded that Article VIII, Section 1, of the
Constitution has broadened the scope of judicial inquiry into
areas normally left to the political departments to decide, such
as those relating to national security, it has not altogether done
away with political questions such as those which arise in the
field of foreign relations.[54] The High Tribunals function, as
sanctioned by Article VIII, Section 1, is merely (to) check
whether or not the governmental branch or agency has gone
beyond the constitutional limits of its jurisdiction, not that it erred
or has a different view. In the absence of a showing (of) grave
abuse of discretion amounting to lack of jurisdiction, there is no
occasion for the Court to exercise its corrective powerIt has no
power to look into what it thinks is apparent error. [55]
As to the power to concur with treaties, the constitution
lodges the same with the Senate alone. Thus, once the
Senate[56] performs that power, or exercises its prerogative within
the boundaries prescribed by the Constitution, the concurrence
cannot, in like manner, be viewed to constitute an abuse of
power, much less grave abuse thereof. Corollarily, the Senate,
in the exercise of its discretion and acting within the limits of
such power, may not be similarly faulted for having simply
performed a task conferred and sanctioned by no less than the
fundamental law.
For the role of the Senate in relation to treaties is essentially
legislative in character;[57] the Senate, as an independent body
possessed of its own erudite mind, has the prerogative to either
accept or reject the proposed agreement, and whatever action it
takes in the exercise of its wide latitude of discretion, pertains to
the wisdom rather than the legality of the act. In this sense, the
Senate partakes a principal, yet delicate, role in keeping the
principles of separation of powers and of checks and balances alive
and vigilantly ensures that these cherished rudiments remain
true to their form in a democratic government such as ours. The
Constitution thus animates, through this treaty-concurring power
of the Senate, a healthy system of checks and balances
indispensable toward our nations pursuit of political maturity and
growth. True enough, rudimentary is the principle that matters
pertaining to the wisdom of a legislative act are beyond the
ambit and province of the courts to inquire.
In fine, absent any clear showing of grave abuse of
discretion on the part of respondents, this Court- as the final
arbiter of legal controversies and staunch sentinel of the rights
of the people - is then without power to conduct an incursion
and meddle with such affairs purely executive and legislative in
character and nature. For the Constitution no less, maps out the
distinct boundaries and limits the metes and bounds within NO. 54
which each of the three political branches of government may
exercise the powers exclusively and essentially conferred to it EN BANC
by law.  
WHEREFORE, in light of the foregoing disquisitions, the AKBAYAN CITIZENS ACTION PARTY
instant petitions are hereby DISMISSED. (AKBAYAN), PAMBANSANG KATIPUNAN G.R. No. 170516
SO ORDERED. NG MGA SAMAHAN SA KANAYUNAN  
(PKSK), ALLIANCE OF PROGRESSIVE Present:
LABOR (APL), VICENTE A. FABE, PUNO, C.J.,
ANGELITO R. MENDOZA, MANUEL P. QUISUMBING,
QUIAMBAO, ROSE BEATRIX CRUZ- YNARES-SANTIAG
ANGELES, CONG. LORENZO R. TANADA
III, CONG. MARIO JOYO AGUJA, CONG.
LORETA ANN P. ROSALES, CONG. ANA
THERESIA HONTIVEROS-BARAQUEL,
AND CONG. EMMANUEL JOEL J.
VILLANUEVA,
Petitioners,
 
- versus
 
THOMAS G. AQUINO, in his capacity as
Undersecretary of the Department of
Trade and Industry (DTI) and Chairman
and Chief Delegate of the Philippine
Coordinating Committee (PCC) for the
Japan-Philippines Economic Partnership
Agreement, EDSEL T. CUSTODIO, in his
capacity as Undersecretary of the
Department of Foreign Affairs (DFA) and
Co-Chair of the PCC for the JPEPA,
EDGARDO ABON, in his capacity as
Chairman of the Tariff Commission and
lead negotiator for Competition Policy and
Emergency Measures of the JPEPA,
MARGARITA SONGCO, in her capacity as
Assistant Director-General of the National
Economic Development Authority (NEDA)
and lead negotiator for Trade in Services
and Cooperation of the JPEPA, MALOU
MONTERO, in her capacity as Foreign
Service Officer I, Office of the
Undersecretary for International
Economic Relations of the DFA and lead
negotiator for the General and Final
Provisions of the JPEPA, ERLINDA
ARCELLANA, in her capacity as Director
of the Board of Investments and lead
negotiator for Trade in Goods (General
CARPIO,  
Rules) of the JPEPA, RAQUEL ECHAGUE,
AUSTRIA-MARTINEZ,  
CORONA, in her capacity as lead negotiator for  
CARPIO MORALES,Rules of Origin of the JPEPA, GALLANT  
AZCUNA, SORIANO, in his official capacity as  
TINGA, Deputy Commissioner of the Bureau of  
CHICO-NAZARIO, Customs and lead negotiator for Customs  
VELASCO, JR., Procedures and Paperless Trading of the  
NACHURA, JPEPA, MA. LUISA GIGETTE IMPERIAL, in  
REYES, her capacity as Director of the Bureau of  
Local Employment
LEONARDO-DE CASTRO, & of the Department of  
BRION, JJ. Labor and Employment (DOLE) and lead  
  negotiator for Movement of Natural  
  Persons of the JPEPA, PASCUAL DE  
  GUZMAN, in his capacity as Director of  
  the Board of Investments and lead  
  negotiator for Investment of the JPEPA,  
  JESUS MOTOOMULL, in his capacity as  
  Director for the Bureau of Product  
  Standards of the DTI and lead negotiator  
  for Mutual Recognition of the JPEPA,  
  LOUIE CALVARIO, in his capacity as lead  
  negotiator for Intellectual Property of the  
Promulgated: JPEPA, ELMER H. DORADO, in his
  capacity as Officer-in-Charge of the
  Government Procurement Policy Board
July 16, 2008 Technical Support Office, the government
  agency that is leading the negotiations on
  Government Procurement of the JPEPA,
  RICARDO V. PARAS, in his capacity as
  Chief State Counsel of the Department of
  Justice (DOJ) and lead negotiator for
  Dispute Avoidance and Settlement of the
  JPEPA, ADONIS SULIT, in his capacity as
  lead negotiator for the General and Final
  Provisions of the JPEPA, EDUARDO R.
  ERMITA, in his capacity as Executive
  Secretary, and ALBERTO ROMULO, in his
  capacity as Secretary of the DFA,*
 Respondents.
x---------------------------------------------
- - - - - -x
 
DECISION
 
CARPIO MORALES, J.:
 
Petitioners non-government organizations, Congresspersons,
citizens and taxpayers seek via the present petition for
mandamus and prohibition to obtain from respondents the full
text of the Japan-Philippines Economic Partnership Agreement
(JPEPA) including the Philippine and Japanese offers submitted
during the negotiation process and all pertinent attachments and
annexes thereto.
 
Petitioners Congressmen Lorenzo R. Taada III and Mario
Joyo Aguja filed on January 25, 2005 House Resolution No. 551
calling for an inquiry into the bilateral trade agreements then
being negotiated by the Philippine government, particularly the
JPEPA. The Resolution became the basis of an inquiry
subsequently conducted by the House Special Committee on
Globalization (the House Committee) into the negotiations of the
JPEPA.
 
In the course of its inquiry, the House Committee requested
herein respondent Undersecretary
Tomas Aquino (Usec. Aquino), Chairman of the Philippine
Coordinating Committee created under Executive Order No. 213
(CREATION OF A PHILIPPINE COORDINATING COMMITTEE
TO STUDY THE FEASIBILITY OF THE JAPAN-PHILIPPINES
ECONOMIC PARTNERSHIP AGREEMENT)[1] to study and
negotiate the proposed JPEPA, and to furnish the Committee
with a copy of the latest draft of the JPEPA. Usec. Aquino did
not heed the request, however.
 
Congressman Aguja later requested for the same document,
but Usec. Aquino, by letter of November 2, 2005, replied that
the Congressman shall be provided with a copy thereof once
the negotiations are completed and as soon as a thorough legal
review of the proposed agreement has been conducted.
 
In a separate move, the House Committee, through
Congressman Herminio G. Teves, requested Executive
Secretary Eduardo Ermita to furnish it with all documents on the
subject including the latest draft of the proposed agreement, the
requests and offers etc.[2] Acting on the request,
Secretary Ermita, by letter of June 23, 2005, wrote
Congressman Teves as follows:
 
In its letter dated 15 June 2005 (copy enclosed),
[the] D[epartment of] F[oreign] A[ffairs] explains
that the Committees request to be furnished all
documents on the JPEPA may be difficult to
accomplish at this time, since the proposed
Agreement has been a work in progress for
about three years. A copy of the draft JPEPA will
however be forwarded to the Committee as soon
as the text thereof is settled and complete.
(Emphasis supplied)
 
 
Congressman Aguja also requested NEDA Director-
General Romulo Neri and Tariff Commission
Chairman Edgardo Abon, by letter of July 1, 2005, for copies of
the latest text of the JPEPA.
 
Chairman Abon replied, however, by letter of July 12,
2005 that the Tariff Commission does not have a copy of the
documents being requested, albeit he was certain
that Usec. Aquino would provide the Congressman with a copy
once the negotiation is completed. And by letter of July 18,
2005, NEDA Assistant Director-General Margarita
R. Songco informed the Congressman that his request
addressed to Director-General Neri had been forwarded
to Usec. Aquino who would be in the best position to respond to
the request.
 
In its third hearing conducted on August 31, 2005, the House
Committee resolved to issue a subpoena for the most recent
draft of the JPEPA, but the same was not pursued because by
Committee Chairman Congressman Teves information, then
House Speaker Jose de Venecia had requested him to hold in
abeyance the issuance of the subpoena until the President
gives her consent to the disclosure of the documents. [3]
 
Amid speculations that the JPEPA might be signed by the
Philippine government within December 2005, the present
petition was filed on December 9, 2005.[4] The agreement was to
be later signed on September 9, 2006 by President
Gloria Macapagal-Arroyo and Japanese Prime
Minister Junichiro Koizumi in Helsinki, Finland, following which
the President endorsed it to the Senate for its concurrence
pursuant to Article VII, Section 21 of the Constitution. To date,
the JPEPA is still being deliberated upon by the Senate.
 
The JPEPA, which will be the first bilateral free trade
agreement to be entered into by the Philippines with another
country in the event the Senate grants its consent to it, covers a
broad range of topics which respondents enumerate as follows:
trade in goods, rules of origin, customs procedures, paperless
trading, trade in services, investment, intellectual property
rights, government procurement, movement of natural persons,
cooperation, competition policy, mutual recognition, dispute
avoidance and settlement, improvement of the business
environment, and general and final provisions. [5]
While the final text of the JPEPA has now been made
accessible to the public since September 11, 2006,
[6] 
respondents do not dispute that, at the time the petition was
filed up to the filing of petitioners Reply when the JPEPA was
still being negotiated the initial drafts thereof were kept from
public view.
Before delving on the substantive grounds relied upon by
petitioners in support of the petition, the Court finds it necessary
to first resolve some material procedural issues.
 
Standing
 
For a petition for mandamus such as the one at bar to be given
due course, it must be instituted by a party aggrieved by the
alleged inaction of any tribunal, corporation, board or person
which unlawfully excludes said party from the enjoyment of a
legal right.[7] Respondents deny that petitioners have such
standing to sue. [I]n the interest of a speedy and definitive
resolution of the substantive issues raised, however,
respondents consider it sufficient to cite a portion of the ruling
in Pimentel v. Office of Executive Secretary [8]which emphasizes
the need for a personal stake in the outcome of the controversy
on questions of standing.
 
In a petition anchored upon the right of the people to information
on matters of public concern, which is a public right by its very
nature, petitioners need not show that they have any legal or
special interest in the result, it being sufficient to show that they
are citizens and, therefore, part of the general public which
possesses the right.[9] As the present petition is anchored on the
right to information and petitioners are all suing in their capacity
as citizens and groups of citizens including petitioners-members
of the House of Representatives who additionally are suing in
their capacity as such, the standing of petitioners to file the
present suit is grounded in jurisprudence.
 
Mootness
Considering, however, that [t]he principal relief petitioners are
praying for is the disclosure of the contents of the JPEPA prior
to its finalization between the two States parties,[10] public
disclosure of the text of the JPEPA after its signing by the
President, during the pendency of the present petition, has been
largely rendered moot and academic.
With the Senate deliberations on the JPEPA still pending, the
agreement as it now stands cannot yet be considered as final
and binding between the two States. Article 164 of the JPEPA
itself provides that the agreement does not take effect
immediately upon the signing thereof. For it must still go through
the procedures required by the laws of each country for its entry
into force, viz:
 
Article 164
Entry into Force
 
This Agreement shall enter into force on the
thirtieth day after the date on which the
Governments of the Parties exchange diplomatic
notes informing each other that their respective
legal procedures necessary for entry into force
of this Agreement have been completed. It shall
remain in force unless terminated as provided for
in Article 165.[11] (Emphasis supplied)
 
 
President Arroyos endorsement of the JPEPA to the Senate for
concurrence is part of the legal procedures which must be met
prior to the agreements entry into force.
 
The text of the JPEPA having then been made accessible to the
public, the petition has become moot and academic to the
extent that it seeks the disclosure of the full text thereof.
The petition is not entirely moot, however, because
petitioners seek to obtain, not merely the text of the JPEPA, but
also the Philippine and Japanese offers in the course of the
negotiations.[12]
 
A discussion of the substantive issues, insofar as they impinge
on petitioners demand for access to the Philippine and
Japanese offers, is thus in order.
 
 
 
 
Grounds relied upon by petitioners
 
Petitioners assert, first, that the refusal of the government to
disclose the documents bearing on the JPEPA negotiations
violates their right to information
on matters of publicconcern[13] and contravenes other
constitutional provisions on transparency, such as that on the
policy of full public disclosure of all transactions involving public
interest.[14]Second, they contend that non-disclosure of the same
documents undermines their right to effective and reasonable
participation in all levels of social, political, and economic
decision-making.[15] Lastly, they proffer that divulging the
contents of the JPEPA only after the agreement has been
concluded will effectively make the Senate into a mere rubber
stamp of the Executive, in violation of the principle of separation
of powers.
 
Significantly, the grounds relied upon by petitioners for the
disclosure of the latest text of the JPEPA are, except for the
last, the same as those cited for the disclosure of the Philippine
and Japanese offers.
 
The first two grounds relied upon by petitioners which bear on
the merits of respondents claim of privilege shall be
discussed. The last, being purely speculatory given that the
Senate is still deliberating on the JPEPA, shall not.
The JPEPA is a matter of public concern
 
To be covered by the right to information, the information sought
must meet the threshold requirement that it be a matter of public
concern. Apropos is the teaching of Legaspi v. Civil Service
Commission:
 
In determining whether or not a particular
information is of public concern there is no rigid
test which can be applied. Public concern like
public interest is a term that eludes exact
definition.Both terms embrace a broad spectrum of
subjects which the public may want to know, either
 because these directly affect their lives, or simply
because such matters naturally arouse the interest
of an ordinary citizen. In the final analysis, it is for
the courts to determine on a case by case basis
whether the matter at issue is of interest or
importance, as it relates to or affects the public.
[16]
 (Underscoring supplied)
 
 
From the nature of the JPEPA as an international trade
agreement, it is evident that the Philippine and Japanese offers
submitted during the negotiations towards its execution are
matters of public concern. This, respondents do not
dispute. They only claim that diplomatic negotiations are
covered by the doctrine of executive privilege, thus
constituting an exception to the right to information and the
policy of full public disclosure.
 
Respondents claim of privilege
 
It is well-established in jurisprudence that neither the right to
information nor the policy of full public disclosure is absolute,
there being matters which, albeit of public concern or public
interest, are recognized as privileged in nature. The types of
information which may be considered privileged have been
elucidated in Almonte v. Vasquez,[17] Chavez v. PCGG,
[18]
 Chavez v. Public Estates Authority, [19] and most recently
in Senate v. Ermita[20] where the Court reaffirmed the validity of
the doctrine of executive privilege in this jurisdiction and dwelt
on its scope.
 
Whether a claim of executive privilege is valid depends on
the ground invoked to justify it and the context in which it is
made.[21] In the present case, the ground for respondents claim
of privilege is set forth in their Comment, viz:
 
x x x The categories of information that may be
considered privileged includes matters of
diplomatic character and under negotiation and
review. In this case, the privileged character of
the diplomatic negotiations has been
categorically invoked and clearly explained by
respondents particularly respondent DTI Senior
Undersecretary.
 
The documents on the proposed JPEPA as well
as the text which is subject to negotiations and
legal review by the parties fall under the
exceptions to the right of access to information on
matters of public concern and policy of public
disclosure. They come within the coverage of
executive privilege. At the time when the
Committee was requesting for copies of such
documents, the negotiations were ongoing as they
are still now and the text of the proposed JPEPA is
still uncertain and subject to change. Considering
the status and nature of such documents then and
now, these are evidently covered by executive
privilege consistent with existing legal provisions
and settled jurisprudence.
 
Practical and strategic considerations likewise
counsel against the disclosure of the rolling texts
which may undergo radical change or portions of
which may be totally abandoned. Furthermore,
the negotiations of the representatives of the
Philippines as well as of Japan must be
allowed to explore alternatives in the course of
the negotiations in the same manner as
judicial deliberations and working drafts of
opinions are accorded strict confidentiality.
[22]
 (Emphasis and underscoring supplied)
 
 
The ground relied upon by respondents is thus not simply that
the information sought involves a diplomatic matter, but that it
pertains to diplomatic negotiations then in progress.
 
Privileged character of diplomatic negotiations
 
The privileged character of diplomatic negotiations has been
recognized in this jurisdiction. In discussing valid limitations on
the right to information, the Court in Chavez v. PCGG held that
information on inter-government exchanges prior to the
conclusion of treaties and executive agreements may be subject
to reasonable safeguards for the sake of national interest.
[23]
 Even earlier, the same privilege was upheld in Peoples
Movement for Press Freedom (PMPF) v. Manglapus[24] wherein
the Court discussed the reasons for the privilege in more
precise terms.
 
In PMPF v. Manglapus, the therein petitioners were seeking
information from the Presidents representatives on the state of
the then on-going negotiations of the RP-US Military Bases
Agreement.[25] The Court denied the petition, stressing
that secrecy of negotiations with foreign countries is not
violative of the constitutional provisions of freedom of speech
or of the press nor of the freedom of access to
information. The Resolution went on to state, thus:
 
The nature of diplomacy requires
centralization of authority and expedition of
decision which are inherent in executive
action. Another essential characteristic of
diplomacy is its confidential nature. Although
much has been said about open and secret
diplomacy, with disparagement of the latter,
Secretaries of State Hughes and Stimson have
clearly analyzed and justified the practice. In the
words of Mr. Stimson:
 
A complicated negotiation . . .
cannot be carried through without
many, many private talks and
discussion, man to man; many
tentative suggestions and
proposals.Delegates from other
countries come and tell you in
confidence of their troubles at
home and of their differences with
other countries and with other
delegates; they tell you of what
they would do under certain
circumstances and would not do
under other circumstances. . . If
these reports . . . should become
public . . . who would ever
trust American Delegations in
another conference? (United
States Department of State, Press
Releases, June 7, 1930, pp. 282-
284.).
 
x x x x
 
There is frequent criticism of the secrecy in
which negotiation with foreign powers on
nearly all subjects is concerned. This, it is
claimed, is incompatible with the substance of
democracy. As expressed by one writer, It can be
said that there is no more rigid system of silence
anywhere in the world. (E.J. Young, Looking
Behind the Censorship, J. B. Lippincott Co.,
1938) President Wilson in starting his efforts for
the conclusion of the World War declared that we
must have open covenants, openly arrived at. He
quickly abandoned his thought.
 
No one who has studied the question believes that
such a method of publicity is possible. In the
moment that negotiations are started, pressure
groups attempt to muscle in. An ill-timed
speech by one of the parties or a frank
declaration of the concession which are
exacted or offered on both sides would quickly
lead to widespread propaganda to block the
 negotiations. After a treaty has been drafted
and its terms are fully published, there is
ample opportunity for discussion before it is
approved. (The New American Government and
Its Works, James T. Young, 4th Edition, p.
194) (Emphasis and underscoring supplied)
 
 
Still in PMPF v. Manglapus, the Court adopted the
doctrine in U.S. v. Curtiss-Wright Export Corp.[26] that the
President is the sole organ of the nation in its negotiations with
foreign countries, viz:
 
x x x In this vast external realm, with its important,
complicated, delicate and manifold problems, the
President alone has the power to speak or listen
as a representative of the
nation. He makestreaties with the advice and
consent of the Senate; but he alone
negotiates. Into the field of negotiation the Senate
cannot intrude; and Congress itself is powerless to
invade it. As Marshall said in his great argument
of March 7, 1800, in the House of
Representatives, The President is the sole
organ of the nation in its external relations,
and its sole representative with foreign
nations. Annals, 6th Cong., col. 613. . . (Emphasis
supplied; underscoring in the original)
 
 
Applying the principles adopted in PMPF v. Manglapus, it is
clear that while the final text of the JPEPA may not be kept
perpetually confidential since there should be ample opportunity
for discussion before [a treaty] is approved the offers exchanged
by the parties during the negotiations continue to be privileged
even after the JPEPA is published. It is reasonable to conclude
that the Japanese representatives submitted their offers with the
understanding that historic confidentiality[27] would govern the
same. Disclosing these offers could impair the ability of
the Philippines to deal not only with Japan but with other foreign
governments in future negotiations.
 
A ruling that Philippine offers in treaty negotiations should now
be open to public scrutiny would discourage future Philippine
representatives from frankly expressing their views during
negotiations. While, on first impression, it appears wise to deter
Philippine representatives from entering into compromises, it
bears noting that treaty negotiations, or any negotiation for that
matter, normally involve a process of quid pro quo,
and oftentimes negotiators have to be willing to grant
concessions in an area of lesser importance in order to
obtain more favorable terms in an area of greater national
interest. Apropos are the following observations of Benjamin S.
Duval, Jr.:
 
x x x [T]hose involved in the practice of
negotiations appear to be in agreement that
publicity leads to grandstanding, tends to
freeze negotiating positions, and inhibits the
give-and-take essential to successful
negotiation. As Sissela Bok points out, if
negotiators have more to gain from being
approved by their own sides than by making a
reasoned agreement with competitors or
adversaries, then they are inclined to 'play to the
gallery . . .'' In fact, the public reaction may
leave them little option. It would be a brave, or
foolish, Arab leader who expressed publicly a
willingness for peace with Israel that did not
involve the return of the entire West Bank, or
Israeli leader who stated publicly a willingness to
remove Israel's existing settlements from Judea
and Samaria in return for peace.[28] (Emphasis
supplied)
 
 
 Indeed, by hampering the ability of our representatives to
compromise, we may be jeopardizing higher national goals for
the sake of securing less critical ones.
Diplomatic negotiations, therefore, are recognized as privileged
in this jurisdiction, the JPEPA negotiations constituting no
exception. It bears emphasis, however, that such privilege is
only presumptive. For as Senate v. Ermita holds, recognizing a
type of information as privileged does not mean that it will be
considered privileged in all instances.Only after a consideration
of the context in which the claim is made may it be determined if
there is a public interest that calls for the disclosure of the
desired information, strong enough to overcome its traditionally
privileged status.
 
Whether petitioners have established the presence of such a
public interest shall be discussed later. For now, the Court shall
first pass upon the arguments raised by petitioners against the
application of PMPF v. Manglapus to the present case.
Arguments proffered by petitioners against  the application
of PMPF v.  Manglapus
 
 
Petitioners argue that PMPF v. Manglapus cannot be
applied in toto to the present case, there being substantial
factual distinctions between the two.
 
To petitioners, the first  and most fundamental
distinction lies in the nature of the treaty involved. They stress
that PMPF v. Manglapus involved the Military Bases Agreement
which necessarily pertained to matters affecting national
security; whereas the present case involves an economic
treaty that seeks to regulate trade and commerce between
the Philippines and Japan, matters which, unlike those covered
by the Military Bases Agreement, are not so vital to national
security to disallow their disclosure.
 
Petitioners argument betrays a faulty assumption that
information, to be considered privileged, must involve national
security. The recognition in Senate v. Ermita[29] that executive
privilege has encompassed claims of varying kinds, such that it
may even be more accurate to speak of executive privileges,
cautions against such generalization.
 
While there certainly are privileges grounded on the necessity of
safeguarding national security such as those involving military
secrets, not all are founded thereon. One example is the
informers privilege, or the privilege of the Government not to
disclose the identity of a person or persons who furnish
information of violations of law to officers charged with the
enforcement of that law. [30] The suspect involved need not be so
notorious as to be a threat to national security for this privilege
to apply in any given instance.Otherwise, the privilege would be
inapplicable in all but the most high-profile cases, in which case
not only would this be contrary to long-standing practice. It
would also be highly prejudicial to law enforcement efforts in
general.
Also illustrative is the privilege accorded to presidential
communications, which are presumed privileged without
distinguishing between those which involve matters of national
security and those which do not, the rationale for the privilege
being that
 
x x x [a] frank exchange of exploratory ideas and
assessments, free from the glare of publicity and
pressure by interested parties, is essential to
protect the independence of decision-makingof
those tasked to exercise Presidential, Legislative
and Judicial power. x x x[31] (Emphasis supplied)
 
 
In the same way that the privilege for judicial deliberations does
not depend on the nature of the case deliberated upon, so
presidential communications are privileged whether they involve
matters of national security.
It bears emphasis, however, that the privilege accorded to
presidential communications is not absolute, one significant
qualification being that the Executive cannot, any more than the
other branches of government, invoke a general confidentiality
privilege to shield its officials and employees from
investigations by the proper governmental institutions
into possible criminal wrongdoing. [32] This qualification
applies whether the privilege is being invoked in the context of a
judicial trial or a congressional investigation conducted in aid of
legislation.[33]
 
Closely related to the presidential communications privilege is
the deliberative process privilege recognized in the United
States. As discussed by the U.S. Supreme Court in NLRB v.
Sears, Roebuck & Co,[34] deliberative process covers documents
reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions
and policies are formulated. Notably, the privileged status of
such documents rests, not on the need to protect national
security but, on the obvious realization that officials will not
communicate candidly among themselves if each remark is a
potential item of discovery and front page news, the objective of
the privilege being to enhance the quality of agency
decisions. [35]
 
The diplomatic negotiations privilege bears a close
resemblance to the deliberative process and presidential
communications privilege. It may be readily perceived that the
rationale for the confidential character of diplomatic
negotiations, deliberative process, and presidential
communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus[36] shows that the
privilege for diplomatic negotiations is meant to encourage a
frank exchange of exploratory ideas between the negotiating
parties by shielding such negotiations from public view. Similar
to the privilege for presidential communications, the diplomatic
negotiations privilege seeks, through the same means, to
protect the independence in decision-making of the President,
particularly in its capacity as the sole organ of the nation in its
external relations, and its sole representative with foreign
nations. And, as with the deliberative process privilege, the
privilege accorded to diplomatic negotiations arises, not on
account of the content of the information per se, but because
the information is part of a process of deliberation which, in
pursuit of the public interest, must be presumed confidential.
 
The decision of the U.S. District Court, District of
Columbia in Fulbright & Jaworski v. Department of the
Treasury[37] enlightens on the close relation between diplomatic
negotiations and deliberative process privileges. The plaintiffs in
that case sought access to notes taken by a member of
the U.S. negotiating team during the U.S.-
French taxtreaty negotiations. Among the points noted therein
were the issues to be discussed, positions which the French
and U.S. teams took on some points, the draft language agreed
on, and articles which needed to be amended. Upholding the
confidentiality of those notes, Judge Green ruled, thus:
 
Negotiations between two countries to draft a
treaty represent a true example of a
deliberative process. Much give-and-take must
occur for the countries to reach an accord. A
description of the negotiations at any one point
would not provide an onlooker a summary of the
discussions which could later be relied on as law.
It would not be working law as the points
discussed and positions agreed on would be
subject to change at any date until the treaty was
signed by the President and ratified by the Senate.
The policies behind the deliberative process
privilege support non-disclosure. Much harm
could accrue to the negotiations process if
these notes were revealed. Exposure of the
pre-agreement positions of the French
negotiators might well offend foreign
governments and would lead to less candor by
the U. S. in recording the events of the
negotiations process. As several months pass in
between negotiations, this lack of record could
 hinder readily the U. S. negotiating team. Further
disclosure would reveal prematurely adopted
policies. If these policies should be changed,
public confusion would result easily.
Finally, releasing these snapshot views of the
negotiations would be comparable to releasing
drafts of the treaty, particularly when the notes
state the tentative provisions and language
agreed on. As drafts of regulations typically
are protected by the deliberative process
privilege, Arthur Andersen & Co. v. Internal
Revenue Service, C.A. No. 80-705 (D.C.Cir., May
21, 1982), drafts of treaties should be accorded
the same protection. (Emphasis and
underscoring supplied)
Clearly, the privilege accorded to diplomatic negotiations
follows as a logical consequence from the privileged
character of the deliberative process.
 
The Court is not unaware that in Center for International
Environmental Law (CIEL), et al. v. Office of U.S.
Trade Representative[38] where the plaintiffs sought information
relating to the just-completed negotiation of a United States-
Chile Free Trade Agreement the same district court, this time
under Judge Friedman, consciously refrained from applying the
doctrine in Fulbright and ordered the disclosure of the
information being sought.
Since the factual milieu in CIEL seemed to call for the straight
application of the doctrine in Fulbright, a discussion of why the
district court did not apply the same would help illumine this
Courts own reasons for deciding the present case along the
lines of Fulbright.
 
In both Fulbright and CIEL, the U.S. government cited a
statutory basis for withholding information, namely, Exemption
5 of the Freedom of Information Act (FOIA). [39] In order to
qualify for protection under Exemption 5, a document must
satisfy two conditions: (1) it must be either inter-agency or
intra-agency in nature, and (2) it must be bothpre-decisional
and part of the agency's deliberative or decision-making
process.[40]
 
Judge Friedman, in CIEL, himself cognizant of a superficial
similarity of context between the two cases, based his decision
on what he perceived to be a significant distinction: he found
the negotiators notes that were sought in Fulbright to be clearly
internal, whereas the documents being sought in CIEL were
those produced by or exchanged with an outside party, i.e.
Chile. The documents subject of Fulbright being clearly internal
in character, the question of disclosure therein turned not on
the threshold requirement of Exemption 5 that the document be
inter-agency, but on whether the documents were part of the
agency's pre-decisional deliberative process. On this basis,
Judge Friedman found that Judge Green's discussion
[in Fulbright] of the harm that could result from disclosure
therefore is irrelevant, since the documents at issue
[in CIEL] are not inter-agency, and the Court does not
reach the question of deliberative process. (Emphasis
supplied)
In fine, Fulbright was not overturned. The court in CIEL merely
found the same to be irrelevant in light of its distinct factual
setting. Whether this conclusion was valid a question on which
this Court would not pass the ruling in Fulbright that
[n]egotiations between two countries to draft a treaty represent
a true example of a deliberative process was left standing,
since the CIEL court explicitly stated that it did not reach the
question of deliberative process.
 
Going back to the present case, the Court recognizes
that the information sought by petitioners includes documents
produced and communicated by a party external to the
Philippine government, namely, the Japanese representatives
in the JPEPA negotiations, and to that extent this case is closer
to the factual circumstances of CIEL than those ofFulbright.
Nonetheless, for reasons which shall be discussed shortly, this
Court echoes the principle articulated in Fulbright that the
public policy underlying the deliberative process privilege
requires that diplomatic negotiations should also be accorded
privileged status, even if the documents subject of the present
case cannot be described as purely internal in character.
It need not be stressed that in CIEL, the court ordered the
disclosure of information based on its finding that the first
requirement of FOIA Exemption 5 that the documents be inter-
agency was not met. In determining whether the government
may validly refuse disclosure of the exchanges between
the U.S. and Chile, it necessarily had to deal with this
requirement, it being laid down by a statute binding on them.
 
In this jurisdiction, however, there is no counterpart of the
FOIA, nor is there any statutory requirement similar to FOIA
Exemption 5 in particular. Hence, Philippine courts, when
assessing a claim of privilege for diplomatic negotiations, are
more free to focus directly on the issue of whether the
privilege being claimed is indeed supported by public
policy, without having to consider as the CIEL court did if these
negotiations fulfill a formal requirement of being inter-
agency. Important though that requirement may be in the
context of domestic negotiations, it need not be accorded the
same significance when dealing with international negotiations.
 
There being a public policy supporting a privilege for diplomatic
negotiations for the reasons explained above, the Court sees
no reason to modify, much less abandon, the doctrine in PMPF
v. Manglapus.
A second  point petitioners proffer in their attempt to
differentiate PMPF v.  Manglapus from the present case is the
fact that the petitioners therein consisted entirely of members of
the mass media, while petitioners in the present case include
members of the House of Representatives who invoke their right
to information not just as citizens but as members of Congress.
 
Petitioners thus conclude that the present case involves the
right of members of Congress to demand information on
negotiations of international trade agreements from the
Executive branch, a matter which was not raised in PMPF
v. Manglapus.
 
While indeed the petitioners in PMPF v. Manglapus consisted
only of members of the mass media, it would be incorrect to
claim that the doctrine laid down therein has no bearing on a
controversy such as the present, where the demand for
information has come from members of Congress, not only from
private citizens.
 
The privileged character accorded to diplomatic
negotiations does not ipso facto lose all force and effect
simply because the same privilege is now being claimed
under different circumstances. The probability of the claim
succeeding in the new context might differ, but to say that the
privilege, as such, has no validity at all in that context is another
matter altogether.
 
The Courts statement in Senate v. Ermita that presidential
refusals to furnish information may be actuated by any of at
least three distinct kinds of considerations [state secrets
privilege, informers privilege, and a generic privilege for internal
deliberations], and may be asserted, with differing degrees of
success, in the context of either judicial or legislative
investigations,[41] implies that a privilege, once recognized, may
be invoked under different procedural settings. That this
principle holds true particularly with respect to diplomatic
negotiations may be inferred from PMPF v. Manglapus itself,
where the Court held that it is the President alone  who
negotiates treaties, and not even the Senate or the House of
Representatives, unless asked, may intrude upon that process.
 
Clearly, the privilege for diplomatic negotiations may be
invoked not only against citizens demands for information, but
also in the context of legislative investigations.
 
Hence, the recognition granted in PMPF v. Manglapus to the
privileged character of diplomatic negotiations cannot be
considered irrelevant in resolving the present case, the
contextual differences between the two cases notwithstanding.
As third  and last point raised against the application
of PMPF v.  Manglapus in this case, petitioners proffer that the
socio-political and historical contexts of the two cases are
worlds apart. They claim that the constitutional traditions and
concepts prevailing at the time PMPF v. Manglapus came
about, particularly the school of thought that the requirements of
foreign policy and the ideals of transparency were incompatible
with each other or the incompatibility hypothesis, while valid
when international relations were still governed by power,
politics and wars, are no longer so in this age of international
cooperation.[42]
 
Without delving into petitioners assertions respecting the
incompatibility hypothesis, the Court notes that the ruling
in PMPF v. Manglapus is grounded more on the nature of treaty
negotiations as such than on a particular socio-political school
of thought. If petitioners are suggesting that the nature of treaty
negotiations have so changed that [a]n ill-timed speech by one
of the parties or a frank declaration of the concession which are
exacted or offered on both sides no longer lead[s] to widespread
propaganda to block the negotiations, or that parties in treaty
negotiations no longer expect their communications to be
governed by historic confidentiality, the burden is on them to
substantiate the same. This petitioners failed to discharge.
 
Whether the privilege applies only at certain stages of the
negotiation process
 
 
Petitioners admit that diplomatic negotiations on the JPEPA are
entitled to a reasonable amount of confidentiality so as not to
jeopardize the diplomatic process. They argue, however, that
the same is privileged only at certain stages of the negotiating
process, after which such information must necessarily be
revealed to the public.[43] They add that the duty to disclose this
information was vested in the government when the
negotiations moved from the formulation and exploratory stage
to the firming up of definite propositions or official
recommendations, citing Chavez v. PCGG[44] and Chavez v.
PEA.[45]
 
The following statement in Chavez v. PEA, however, suffices to
show that the doctrine in both that case and Chavez v.
PCGG with regard to the duty to disclose definite propositions of
the government does not apply to diplomatic negotiations:
 
 We rule, therefore, that the constitutional right to
information includes official information on on-
going negotiations before a final contract. The
information, however, must constitutedefinite
propositions by the government and should
not cover recognized exceptions  like
privileged information, military and diplomatic
secrets and similar matters affecting national
security and public order. x x x[46] (Emphasis and
underscoring supplied)
 
It follows from this ruling that even definite propositions of the
government may not be disclosed if they fall under recognized
exceptions. The privilege for diplomatic negotiations is clearly
among the recognized exceptions, for the footnote to the
immediately quoted ruling cites PMPF v. Manglapus itself as an
authority.
 
Whether there is sufficient  public interest to overcome the
claim of privilege
 
 
It being established that diplomatic negotiations enjoy a
presumptive privilege against disclosure, even against the
demands of members of Congress for information, the Court
shall now determine whether petitioners have shown the
existence of a public interest sufficient to overcome the privilege
in this instance.
 
To clarify, there are at least two kinds of public interest
that must be taken into account. One is the presumed public
interest in favor of keeping the subject information
confidential, which is the reason for the privilege in the first
place, and the other is the public interest in favor of
disclosure, the existence of which must be shown by the party
asking for information. [47]
 
The criteria to be employed in determining whether there is a
sufficient public interest in favor of disclosure may be gathered
from cases such as U.S. v. Nixon,[48] Senate Select Committee
on Presidential Campaign Activities v. Nixon,[49] and In re
Sealed Case.[50]
 
U.S. v. Nixon, which involved a claim of the presidential
communications privilege against the subpoena duces tecum of
a district court in a criminal case, emphasized the need to
balance such claim of privilege against the constitutional duty of
courts to ensure a fair administration of criminal  justice.
x x x the allowance of the privilege to withhold
evidence that is demonstrably relevant in a
criminal trial would cut deeply into the
guarantee of due process of law and gravely
impair the basic function of the courts. A
Presidents acknowledged need for
confidentiality in the communications of his
office is general in nature, whereas
the constitutional need for production of
relevant evidence in a criminal proceeding is
specific and central to the fair adjudication of a
particular criminal case in the administration
of justice. Without access to specific facts a
criminal prosecution may be totally frustrated. The
Presidents broad interest in confidentiality of
communications will not be vitiated by disclosure
of a limited number of conversations preliminarily
shown to have some bearing on the pending
criminal cases. (Emphasis, italics and
underscoring supplied)
 
Similarly, Senate Select Committee v. Nixon,[51] which
involved a claim of the presidential communications privilege
against the subpoena duces tecum of a Senate committee,
spoke of the need to balance such claim with the duty of
Congress to perform its legislative  functions.
 The staged decisional structure established
in Nixon v. Sirica was designed to ensure that the
President and those upon whom he directly relies
in the performance of his duties could continue to
work under a general assurance that their
deliberations would remain confidential. So long
as the presumption that the public interest
favors confidentiality can be defeated only by
a strong showing of need by another
institution of government- a showing that the
responsibilities of that institution cannot
responsibly be fulfilled without access to
records of the President's deliberations- we
believed in Nixon v. Sirica, and continue to
believe, that the effective functioning of the
presidential office will not be impaired. x x x
 
x x x x
 
The sufficiency of the Committee's showing of
need has come to depend, therefore, entirely
on whether the subpoenaed materials
are critical to the performance of its legislative
functions. x x x (Emphasis and underscoring
supplied)
 
 
In re Sealed Case[52] involved a claim of the deliberative process
and presidential communications privileges against
subpoena duces tecum of a grand jury. On the claim of
deliberative process privilege, the court stated:
 
The deliberative process privilege is
a qualified privilege and can be overcome
by a sufficient showing of need. This need
determination is to be made flexibly on a case-
by-case, ad hoc basis. "[E]ach time [the
deliberative process privilege] is asserted the
district court must undertake a fresh balancing of
the competing interests," taking into account
factors such as "the relevance of the
evidence," "the availability of other evidence,"
"the seriousness of the litigation," "the role of
the government," and the "possibility of future
timidity by government employees.
x x x (Emphasis, italics and underscoring supplied)
 
 
Petitioners have failed to present the strong and sufficient
showing of need referred to in the immediately cited cases. The
arguments they proffer to establish their entitlement to the
subject documents fall short of this standard.
 
Petitioners go on to assert that the non-involvement of the
Filipino people in the JPEPA negotiation process effectively
results in the bargaining away of their economic and property
rights without their knowledge and participation, in violation of
the due process clause of the Constitution. They claim,
moreover, that it is essential for the people to have access to
the initial offers exchanged during the negotiations since only
through such disclosure can their constitutional right to
effectively participate in decision-making be brought to life in the
context of international trade agreements.
 
Whether it can accurately be said that the Filipino people were
not involved in the JPEPA negotiations is a question of fact
which this Court need not resolve. Suffice it to state that
a respondents had presented documents purporting to show that
public consultations were conducted on the
JPEPA. Parenthetically, petitioners consider these alleged
consultations as woefully selective and inadequate. [53]
 
AT ALL EVENTS, since it is not disputed that the offers
exchanged by the Philippine and Japanese representatives
have not been disclosed to the public, the Court shall pass upon
the issue of whether access to the documents bearing on them
is, as petitioners claim, essential to their right to participate in
decision-making.

The case for petitioners has, of course, been immensely
weakened by the disclosure of the full text of the JPEPA to the
public since September 11, 2006, even as it is still being
deliberated upon by the Senate and, therefore, not yet binding
on the Philippines. Were the Senate to concur with the validity
of the JPEPA at this moment, there has already been, in the
words of PMPF v. Manglapus, ample opportunity for discussion
before [the treaty] is approved.
 
The text of the JPEPA having been published, petitioners have
failed to convince this Court that they will not be able to
meaningfully exercise their right to participate in decision-
making unless the initial offers are also published.
It is of public knowledge that various non-government
sectors and private citizens have already publicly expressed
their views on the JPEPA, their comments not being limited to
general observations thereon but on its specific
provisions. Numerous articles and statements critical of the
JPEPA have been posted on the Internet. [54] Given these
developments, there is no basis for petitioners claim that access
to the Philippine and Japanese offers is essential to the exercise
of their right to participate in decision-making.
Petitioner-members of the House of Representatives
additionally anchor their claim to have a right to the subject
documents on the basis of Congress inherent power to regulate
commerce, be it domestic or international. They allege that
Congress cannot meaningfully exercise the power to regulate
international trade agreements such as the JPEPA without
being given copies of the initial offers exchanged during the
negotiations thereof. In the same vein, they argue that the
President cannot exclude Congress from the JPEPA
negotiations since whatever power and authority the President
has to negotiate international trade agreements is derived only
by delegation of Congress, pursuant to Article VI, Section 28(2)
of the Constitution and Sections 401 and 402 of Presidential
Decree No. 1464.[55]
The subject of Article VI Section 28(2) of the Constitution
is not the power to negotiate treaties and international
agreements, but the power to fix tariff rates, import and export
quotas, and other taxes. Thus it provides:
 
(2) The Congress may, by law, authorize the
President to fix within specified limits, and subject
to such limitations and restrictions as it may
impose, tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties or
imposts within the framework of the national
development program of the Government.
 
 
As to the power to negotiate treaties, the constitutional basis
thereof is Section 21 of Article VII the article on the Executive
Department which states:
 
No treaty or international agreement shall be valid
and effective unless concurred in by at least two-
thirds of all the Members of the Senate.
 
 
The doctrine in PMPF v. Manglapus that the treaty-making
power is exclusive to the President, being the sole organ of the
nation in its external relations, was echoed in BAYAN v.
Executive Secretary[56] where the Court held:
 
By constitutional fiat and by the intrinsic
nature of his office, the President, as head of
State, is the sole organ and authority in the
external affairs of the country. In many ways,
the President is the chief architect of the
nation's foreign policy; his "dominance in the
field of foreign relations is (then)
conceded." Wielding vast powers and
 influence, his conduct in the external affairs of
the nation, as Jefferson describes, is executive
altogether.
 
As regards the power to enter into treaties or
international agreements, the Constitution
vests the same in the President, subject only
to the concurrence of at least two thirds vote
of all the members of the Senate. In this light,
the negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts
which pertain solely to the President, in the lawful
exercise of his vast executive and diplomatic
powers granted him no less than by the
fundamental law itself. Into the field of
negotiation the Senate cannot intrude, and
Congress itself is powerless to invade
it. x x x (Italics in the original; emphasis and
underscoring supplied)
 
 
The same doctrine was reiterated even more recently
in Pimentel v. Executive Secretary[57] where the Court ruled:
 
In our system of government, the President, being
the head of state, is regarded as the sole
organ and authority in external relations and is
the country's sole representative with foreign
nations. As the chief architect of foreign policy,
the President acts as the country's mouthpiece
with respect to international affairs. Hence, the
President is vested with the authority to deal
with foreign states and governments, extend or
withhold recognition, maintain diplomatic
relations, enter into treaties, and otherwise
transact the business of foreign relations. In the
realm of treaty-making, the President has the
sole authority to negotiate with other states.
 
Nonetheless, while the President has
the sole authority to negotiate and enter into
treaties, the Constitution provides a limitation
to his power by requiring the concurrence of
2/3 of all the members of the Senate for
the validity of the treaty entered into by him.
x x x (Emphasis and underscoring supplied)
 
 
While the power then to fix tariff rates and other taxes clearly
belongs to Congress, and is exercised by the President only by
delegation of that body, it has long been recognized that the
power to enter into treaties is vested directly and exclusively in
the President, subject only to the concurrence of at least two-
thirds of all the Members of the Senate for the validity of the
treaty. In this light, the authority of the President to enter into
trade agreements with foreign nations provided under P.D.
1464[58] may be interpreted as an acknowledgment of a power
already inherent in its office. It may not be used as basis to
hold the President or its representatives accountable to
Congress for the conduct of treaty negotiations.
This is not to say, of course, that the Presidents power to enter
into treaties is unlimited but for the requirement of Senate
concurrence, since the President must still ensure that all
treaties will substantively conform to all the relevant provisions
of the Constitution.
 
It follows from the above discussion that Congress, while
possessing vast legislative powers, may not interfere in the field
of treaty negotiations. While Article VII, Section 21 provides for
Senate concurrence, such pertains only to the validity of the
treaty under consideration, not to the conduct of negotiations
attendant to its conclusion. Moreover, it is not even Congress as
a whole that has been given the authority to concur as a means
of checking the treaty-making power of the President, but only
the Senate.
 
Thus, as in the case of petitioners suing in their capacity as
private citizens, petitioners-members of the House of
Representatives fail to present a sufficient showing of need that
the information sought is critical to the performance of the
functions of Congress, functions that do not include treaty-
negotiation.
 
Respondents alleged failure to timely claim executive
privilege
 
On respondents invocation of executive privilege, petitioners
find the same defective, not having been done seasonably as it
was raised only in their Comment to the present petition and not
during the House Committee hearings.
That respondents invoked the privilege for the first time
only in their Comment to the present petition does not mean that
the claim of privilege should not be credited.Petitioners position
presupposes that an assertion of the privilege should have been
made during the House Committee investigations, failing which
respondents are deemed to have waived it.
 
When the House Committee and petitioner-
Congressman Aguja requested respondents for copies of the
documents subject of this case, respondents replied that the
negotiations were still on-going and that the draft of the JPEPA
would be released once the text thereof is settled and
complete. There was no intimation that the requested copies are
confidential in nature by reason of public policy. The response
may not thus be deemed a claim of privilege by the standards
of Senate v. Ermita, which recognizes as claims of privilege
only those which are accompanied by precise and certain
reasons for preserving the confidentiality of the information
being sought.
 
Respondents failure to claim the privilege during the House
Committee hearings may not, however, be construed as a
waiver thereof by the Executive branch. As the immediately
preceding paragraph indicates, what respondents received from
the House Committee and petitioner-Congressman Aguja were
mere requests for information. And as priorlystated, the House
Committee itself refrained from pursuing its earlier resolution to
issue a subpoena duces tecum on account of then Speaker
Jose de Venecias alleged request to Committee Chairperson
Congressman Teves to hold the same in abeyance.
 
While it is a salutary and noble practice for Congress to refrain
from issuing subpoenas to executive officials out of respect for
their office until resort to it becomes necessary, the fact remains
that such requests are not a compulsory process. Being mere
requests, they do not strictly call for an assertion of executive
privilege.
The privilege is an exemption to Congress power of
inquiry.[59] So long as Congress itself finds no cause to enforce
such power, there is no strict necessity to assert the privilege. In
this light, respondents failure to invoke the privilege during the
House Committee investigations did not amount to a waiver
thereof.
 
The Court observes, however, that the claim of privilege
appearing in respondents Comment to this petition fails to
satisfy in full the requirement laid down in Senate v. Ermitathat
the claim should be invoked by the President or through the
Executive Secretary by order of the President.[60] Respondents
claim of privilege is being sustained, however, its flaw
notwithstanding, because of circumstances peculiar to the case.
 
The assertion of executive privilege by the Executive Secretary,
who is one of the respondents herein, without him adding the
phrase by order of the President, shall be considered as
partially complying with the requirement laid down in Senate
v. Ermita. The requirement that the phrase by order of the
President should accompany the Executive Secretarys claim of
privilege is a new rule laid down for the first time in Senate
v. Ermita, which was not yet final and executory at the time
respondents filed their Comment to the petition. [61] A strict
application of this requirement would thus be unwarranted in
this case.
 
 
Response to the Dissenting Opinion of the Chief Justice

We are aware that behind the dissent of the Chief Justice
lies a genuine zeal to protect our peoples right to information
against any abuse of executive privilege. It is a zeal that We
fully share.
 
The Court, however, in its endeavor to guard against the
abuse of executive privilege, should be careful not to veer
towards the opposite extreme, to the point that it would strike
down as invalid even a legitimate exercise thereof.
 
We respond only to the salient arguments of the
Dissenting Opinion which have not yet been sufficiently
addressed above.
 
1. After its historical discussion on the allocation of power over
international trade agreements in the United States, the dissent
concludes that it will be turning somersaults with history to
contend that the President is the sole organ for external
relations in that jurisdiction. With regard to this opinion, We
make only the following observations:
 
There is, at least, a core meaning of the phrase sole organ of
the nation in its external relations which is not being disputed,
namely, that the power to directly negotiate treaties and
international agreements is vested by our Constitution only in
the Executive. Thus, the dissent states that Congress has the
power to regulate commerce with foreign nations but
does not have the power to negotiate international
agreements directly.[62]
 
What is disputed is how this principle applies to the case
at bar.
 
The dissent opines that petitioner-members of the House of
Representatives, by asking for the subject JPEPA documents,
are not seeking to directly participate in the negotiations of the
JPEPA, hence, they cannot be prevented from gaining access
to these documents.
On the other hand, We hold that this is one occasion where the
following ruling in Agan v. PIATCO[63] and in other cases both
before and since should be applied:
 
This Court has long and consistently adhered
to the legal maxim that those that cannot be
done directly cannot be done indirectly. To
declare the PIATCO contracts valid despite the
clear statutory prohibition against a direct
government guarantee would not only make a
mockery of what the BOT Law seeks to
prevent -- which is to expose the government to
the risk of incurring a monetary obligation resulting
from a contract of loan between the project
proponent and its lenders and to which the
Government is not a party to -- but would also
render the BOT Law useless for what it seeks
to achieve - to make use of the resources of the
private sector in the financing, operation and
maintenance of infrastructure and development
projects which are necessary for national growth
and development but which the government,
unfortunately, could ill-afford to finance at this
point in time.[64]
 
Similarly, while herein petitioners-members of the House of
Representatives may not have been aiming to participate in the
negotiations directly, opening the JPEPA negotiations to their
scrutiny even to the point of giving them access to the offers
exchanged between the Japanese and Philippine
delegations would have made a mockery of what the
Constitution sought to prevent and rendered it useless for what
it sought to achieve when it vested the power of direct
negotiation solely with the President.
 
What the U.S. Constitution sought to prevent and aimed to
achieve in defining the treaty-making power of the President,
which our Constitution similarly defines, may be gathered
from Hamiltons explanation of why the U.S. Constitution
excludes the House of Representatives from the treaty-making
process:
 
x x x The fluctuating, and taking its future increase
into account, the multitudinous composition of that
body, forbid us to expect in it those qualities which
are essential to the proper execution of such a
trust. Accurate and comprehensive knowledge of
foreign politics; a steady and systematic
adherence to the same views; a nice and uniform
sensibility to national character,
decision,secrecy  and dispatch; are incompatible
with a body so variable and so numerous. The
very complication of the business by introducing a
necessity of the concurrence of so many different
bodies, would of itself afford a solid objection. The
greater frequency of the calls upon the house of
representatives, and the greater length of time
which it would often be necessary to keep them
together when convened, to obtain their sanction
in the progressive stages of a treaty, would be
source of so great inconvenience and expense, as
alone ought to condemn the project.[65]
 
These considerations a fortiori apply in this jurisdiction, since
the Philippine Constitution, unlike that of the U.S., does not
even grant the Senate the power to advise the Executive in the
making of treaties, but only vests in that body the power to
concur in the validity of the treaty after negotiations have been
concluded.[66] Much less, therefore, should it be inferred that the
House of Representatives has this power.
Since allowing petitioner-members of the House of
Representatives access to the subject JPEPA documents would
set a precedent for future negotiations, leading to the
contravention of the public interests articulated above which the
Constitution sought to protect, the subject documents should not
be disclosed.
 
2. The dissent also asserts that respondents can no
longer claim the diplomatic secrets privilege over the subject
JPEPA documents now that negotiations have been concluded,
since their reasons for nondisclosure cited in the June 23, 2005
letter of Sec. Ermita, and later in their Comment, necessarily
apply only for as long as the negotiations were still pending;
 
In their Comment, respondents contend that the
negotiations of the representatives of the Philippines as well as
of Japan must be allowed to explore alternatives in the course
of the negotiations in the same manner as judicial deliberations
and working drafts of opinions are accorded strict
confidentiality. That respondents liken the documents
involved in the JPEPA negotiations to judicial deliberations
and working drafts of opinions evinces, by itself, that they
were claiming confidentiality not only until, but even after,
the conclusion of the negotiations.
 
Judicial deliberations do not lose their confidential character
once a decision has been promulgated by the courts. The same
holds true with respect to working drafts of opinions, which are
comparable to intra-agency recommendations. Such intra-
agency recommendations are privileged even after the position
under consideration by the agency has developed into a definite
proposition, hence, the rule in this jurisdiction that agencies
have the duty to disclose only definite propositions, and not the
inter-agency and intra-agency communications during the stage
when common assertions are still being formulated. [67]
 
3. The dissent claims that petitioner-members of the
House of Representatives have sufficiently shown their need for
the same documents to overcome the privilege. Again, We
disagree.
 
The House Committee that initiated the investigations on the
JPEPA did not pursue its earlier intention to subpoena the
documents. This strongly undermines the assertion that access
to the same documents by the House Committee is critical to
the performance of its legislative functions. If the documents
were indeed critical, the House Committee should have, at the
very least, issued a subpoena duces tecum or, like what the
Senate did in Senate v. Ermita, filed the present petition as a
legislative body, rather than leaving it to the discretion of
individual Congressmen whether to pursue an action or
not. Such acts would have served as strong indicia that
Congress itself finds the subject information to be critical to its
legislative functions.
 
Further, given that respondents have claimed executive
privilege, petitioner-members of the House of Representatives
should have, at least, shown how its lack of access to the
Philippine and Japanese offers would hinder the intelligent
crafting of legislation. Mere assertion that the JPEPA covers
a subject matter over which Congress has the power to
legislate would not suffice. As Senate Select Committee v.
Nixon[68] held, the showing required to overcome the
presumption favoring confidentiality turns, not only on the nature
and appropriateness of the function in the performance of which
the material was sought, but also the degree to which the
material was necessary to its fulfillment.This petitioners failed to
do.
 
Furthermore, from the time the final text of the JPEPA including
its annexes and attachments was published, petitioner-
members of the House of Representatives have been free to
use it for any legislative purpose they may see fit. Since such
publication, petitioners need, if any, specifically for the
Philippine and Japanese offers leading to the final version of the
JPEPA, has become even less apparent.
In asserting that the balance in this instance tilts in favor of
disclosing the JPEPA documents, the dissent contends that the
Executive has failed to show how disclosing them afterthe
conclusion of negotiations would impair the performance of its
functions. The contention, with due respect, misplaces
the onus probandi. While, in keeping with the general
presumption of transparency, the burden is initially on the
Executive to provide precise and certain reasons for upholding
its claim of privilege, once the Executive is able to show that the
documents being sought are covered by a recognized privilege,
the burden shifts to the party seeking information to overcome
the privilege by a strong showing of need.
 
When it was thus established that the JPEPA documents are
covered by the privilege for diplomatic negotiations pursuant
to PMPF v. Manglapus, the presumption arose that their
disclosure would impair the performance of executive
functions. It was then incumbent on petitioner- requesting
parties to show that they have a strong need for the information
sufficient to overcome the privilege. They have not, however.
 
4. Respecting the failure of the Executive Secretary to explicitly
state that he is claiming the privilege by order of the President,
the same may not be strictly applied to the privilege claim
subject of this case.
 
When the Court in Senate v. Ermita limited the power of
invoking the privilege to the President alone, it was laying down
a new rule for which there is no counterpart even in the United
States from which the concept of executive privilege was
adopted. As held in the 2004 case of Judicial Watch, Inc. v.
Department of Justice,[69] citing In re Sealed Case,[70] the issue
of whether a President must personally invoke the [presidential
communications] privilege remains an open question. U.S. v.
Reynolds,[71] on the other hand, held that [t]here must be a
formal claim of privilege, lodged by the head of the department
which has control over the matter, after actual personal
consideration by that officer.
The rule was thus laid down by this Court, not in adherence to
any established precedent, but with the aim of preventing the
abuse of the privilege in light of its highly exceptional
nature. The Courts recognition that the Executive Secretary also
bears the power to invoke the privilege, provided he does so by
order of the President, is meant to avoid laying down too rigid a
rule, the Court being aware that it was laying down a new
restriction on executive privilege. It is with the same spirit that
the Court should not be overly strict with applying the same rule
in this peculiar instance, where the claim of executive privilege
occurred before the judgment in Senate v. Ermita became final.
5. To show that PMPF v. Manglapus may not be applied in the
present case, the dissent implies that the Court therein erred in
citing US v. Curtiss Wright[72] and the book entitled The New
American Government and Its Work[73] since these authorities,
so the dissent claims, may not be used to calibrate the
importance of the right to information in the Philippine setting.
 
The dissent argues that since Curtiss-Wright referred to a
conflict between the executive and legislative branches of
government, the factual setting thereof was different from that
of PMPF v. Manglapus which involved a collision between
governmental power over the conduct of foreign affairs and the
citizens right to information.
 
That the Court could freely cite Curtiss-Wright a case that
upholds the secrecy of diplomatic negotiations
against congressional demands for information in the course of
laying down a ruling on the public right to information only
serves to underscore the principle mentioned earlier that the
privileged character accorded to diplomatic negotiations does
not ipso facto lose all force and effect simply because the same
privilege is now being claimed under different circumstances.
 
PMPF v. Manglapus indeed involved a demand for information
from private citizens and not an executive-legislative conflict, but
so did Chavez v. PEA[74] which held that the [publics] right to
information . . . does not extend to matters recognized as
privileged information under the separation of powers. What
counts as privileged information in an executive-legislative
conflict is thus also recognized as such in cases involving the
publics right to information.
 
Chavez v. PCGG[75] also involved the publics right to
information, yet the Court recognized as a valid limitation to that
right the same privileged information based on separation of
powers closed-door Cabinet meetings, executive sessions of
either house of Congress, and the internal deliberations of the
Supreme Court.
These cases show that the Court has always regarded claims of
privilege, whether in the context of an executive-legislative
conflict or a citizens demand for information, as closely
intertwined, such that the principles applicable to one are also
applicable to the other.
 
The reason is obvious. If the validity of claims of privilege were
to be assessed by entirely different criteria in each context, this
may give rise to the absurd result where Congress would be
denied access to a particular information because of a claim of
executive privilege, but the general public would have access
to the same information, the claim of privilege notwithstanding.
 
Absurdity would be the ultimate result if, for instance, the Court
adopts the clear and present danger test for the assessment of
claims of privilege against citizens demands for information. If
executive information, when demanded by a citizen, is
privileged only when there is a clear and present danger of a
substantive evil that the State has a right to prevent, it would be
very difficult for the Executive to establish the validity of its claim
in each instance. In contrast, if the demand comes from
Congress, the Executive merely has to show that the
information is covered by a recognized privilege in order to shift
the burden on Congress to present a strong showing of
need. This would lead to a situation where it would be more
difficult for Congress to access executive information than
it would be for private citizens.
 
We maintain then that when the Executive has already shown
that an information is covered by executive privilege, the party
demanding the information must present a strong showing of
need, whether that party is Congress or a private citizen.
 
The rule that the same showing of need test applies in both
these contexts, however, should not be construed as a denial of
the importance of analyzing the context in which an executive
privilege controversy may happen to be placed. Rather, it
affirms it, for it means that the specific need being shown by the
party seeking information in every particularinstance is highly
significant in determining whether to uphold a claim of
privilege. This need is, precisely, part of the context in light
of which every claim of privilege should be assessed.
 
Since, as demonstrated above, there are common principles
that should be applied to executive privilege controversies
across different contexts, the Court in PMPF v. Manglapusdid
not err when it cited the Curtiss-Wright case.
 
The claim that the book cited in PMPF
v. Manglapus entitled The New American Government and Its
Work could not have taken into account the expanded statutory
right to information in the FOIA assumes that the observations
in that book in support of the confidentiality of treaty
negotiations would be different had it been written after the
FOIA.Such assumption is, with due respect, at best,
speculative.
 
As to the claim in the dissent that [i]t is more doubtful if the
same book be used to calibrate the importance of the right of
access to information in the Philippine setting considering its
elevation as a constitutional right, we submit that the elevation
of such right as a constitutional right did not set it free from the
legitimate restrictions of executive privilege which is
itself constitutionally-based.[76] Hence, the comments in that
book which were cited in PMPF v. Manglapus remain valid
doctrine.
 
6. The dissent further asserts that the Court has never used
need as a test to uphold or allow inroads into rights guaranteed
under the Constitution. With due respect, we assert
otherwise. The Court has done so before, albeit without using
the term need.
 
In executive privilege controversies, the requirement that parties
present a sufficient showing of need only means, in substance,
that they should show a public interest in favor of
disclosure sufficient in degree to overcome the claim of
privilege.[77] Verily, the Court in such cases engages in
a balancing of interests. Such a balancing of interests is
certainly not new in constitutional adjudication involving
fundamental rights. Secretary of Justice v.  Lantion,[78] which was
cited in the dissent, applied just such a test.
 
Given that the dissent has clarified that it does not seek to apply
the clear and present danger test to the present controversy, but
the balancing test, there seems to be no substantial dispute
between the position laid down in this ponencia and that
reflected in the dissent as to what test to apply. It would appear
that the only disagreement is on the results of applying that test
in this instance.
 
The dissent, nonetheless, maintains that it suffices that
information is of public concern for it to be covered by the right,
regardless of the publics need for the information, and that the
same would hold true even if they simply want to know it
because it interests them. As has been stated earlier, however,
there is no dispute that the information subject of this case is a
matter of public concern. The Court has earlier concluded that it
is a matter of public concern, not on the basis of any specific
need shown by petitioners, but from the very nature of the
JPEPA as an international trade agreement.
 
However, when the Executive has as in this case invoked the
privilege, and it has been established that the subject
information is indeed covered by the privilege being claimed,
can a party overcome the same by merely asserting that the
information being demanded is a matter of public concern,
without any further showing required? Certainly not, for that
would render the doctrine of executive privilege of no force and
effect whatsoever as a limitation on the right to information,
because then the sole test in such controversies would be
whether an information is a matter of public concern.
 
Moreover, in view of the earlier discussions, we must bear in
mind that, by disclosing the documents of the JPEPA
negotiations, the Philippine government runs the grave risk of
betraying the trust reposed in it by the Japanese
representatives, indeed, by the Japanese government
itself. How would the Philippine government then explain itself
when that happens? Surely, it cannot bear to say that it
just had to release the information because certain persons
simply wanted to know it because it interests them.
 
Thus, the Court holds that, in determining whether an
information is covered by the right to information, a specific
showing of need for such information is not a relevant
consideration, but only whether the same is a matter of public
concern. When, however, the government has claimed
executive privilege, and it has established that the information is
indeed covered by the same, then the party demanding it, if it is
to overcome the privilege, must show that that the information is
vital, not simply for the satisfaction of its curiosity, but for its
ability to effectively and reasonably participate in social, political,
and economic decision-making.[79]
7. The dissent maintains that [t]he treaty has thus entered the
ultimate stage where the people can exercise their right to
participate in the discussion whether the Senate should concur
in its ratification or not. (Emphasis supplied) It adds that this
right will be diluted unless the people can have access to the
subject JPEPA documents. What, to the dissent, is a dilution of
the right to participate in decision-making is, to Us, simply a
recognition of the qualified nature of the publics right to
information. It is beyond dispute that the right to information is
not absolute and that the doctrine of executive privilege is a
recognized limitation on that right.
 
Moreover, contrary to the submission that the right to participate
in decision-making would be diluted, We reiterate that our
people have been exercising their right to participate in the
discussion on the issue of the JPEPA, and they have been able
to articulate their different opinions without need of access to
the JPEPA negotiation documents.
 
Thus, we hold that the balance in this case tilts in favor of
executive privilege.
 
8. Against our ruling that the principles applied in U.S. v. Nixon,
the Senate Select Committee case, and In re Sealed Case, are
similarly applicable to the present controversy, the dissent cites
the caveat in the Nixon case that the U.S. Court was there
addressing only the Presidents assertion of privilege in the
context of a criminal trial, not a civil litigation nor a congressional
demand for information. What this caveat means, however, is
only that courts must be careful not to hastily apply the ruling
therein to other contexts. It does not, however, absolutely mean
that the principles applied in that case may never be applied in
such contexts.
 
Hence, U.S. courts have cited U.S. v. Nixon in support of their
rulings on claims of executive privilege in contexts other than a
criminal trial, as in the case of Nixon v. Administrator of General
Services[80] which involved former President Nixons invocation
of executive privilege to challenge the constitutionality of the
Presidential Recordings and Materials Preservation Act [81] and
the above-mentioned In re Sealed Case which involved a claim
of privilege against a subpoena duces tecum issued in a grand
jury investigation.
 
Indeed, in applying to the present case the principles found
in U.S. v. Nixon and in the other cases already mentioned, We
are merely affirming what the Chief Justice stated in his
Dissenting Opinion in Neri v. Senate Committee on
Accountability[82] a case involving an executive-legislative
conflict over executive privilege. That dissenting opinion stated
that, while Nixon was not concerned with the balance between
the Presidents generalized interest in confidentiality and
congressional demands for information, [n]onetheless the
[U.S.] Court laid down principles and procedures that can
serve as torch lights to illumine us on the scope and use of
Presidential communication privilege in the case at bar. the House Special Committee on Globalization, is of no
[83]
 While the Court was divided in Neri, this opinion of the Chief moment, since it cannot be interpreted as a waiver of the
Justice was not among the points of disagreement, and We privilege on the part of the Executive branch.
similarly hold now that the Nixon case is a useful guide in the  
proper resolution of the present controversy, notwithstanding For reasons already explained, this Decision shall not be
the difference in context. interpreted as departing from the ruling in Senate v. Ermita that
  executive privilege should be invoked by the President or
Verily, while the Court should guard against the abuse of through the Executive Secretary by order of the President.
executive privilege, it should also give full recognition to  
the validity of the privilege whenever it is claimed within the  
proper bounds of executive power, as in this WHEREFORE, the petition is DISMISSED.
case. Otherwise, the Court would undermine its own credibility,  
for it would be perceived as no longer aiming to strike a SO ORDERED.
balance, but seeking merely to water down executive privilege
to the point of irrelevance.
 
Conclusion
 
 
To recapitulate, petitioners demand to be furnished with a
copy of the full text of the JPEPA has become moot and
academic, it having been made accessible to the public
since September 11, 2006. As for their demand for copies of the
Philippine and Japanese offers submitted during the JPEPA
negotiations, the same must be denied, respondents claim of
executive privilege being valid.
 
Diplomatic negotiations have, since the Court promulgated its
Resolution in PMPF v. Manglapus on September 13, 1988,
been recognized as privileged in this jurisdiction and the
reasons proffered by petitioners against the application of the
ruling therein to the present case have not persuaded the
Court. Moreover, petitioners both private citizens and members
of the House of Representatives have failed to present
a sufficient showing of need to overcome the claim of privilege
in this case.
 
That the privilege was asserted for the first time in respondents
Comment to the present petition, and not during the hearings of
 On 03 August 1988, Minucher filed Civil Case No. 88-45691
before the Regional Trial Court (RTC), Branch 19, of Manila for
damages on account of what he claimed to have been trumped-
up charges of drug trafficking made by Arthur Scalzo. The
Manila RTC detailed what it had found to be the facts and
circumstances surrounding the case.

"The testimony of the plaintiff disclosed that he is an Iranian

national. He came to the Philippines to study in the University of
the Philippines in 1974. In 1976, under the regime of the Shah
of Iran, he was appointed Labor Attaché for the Iranian
Embassies in Tokyo, Japan and Manila, Philippines. When the
NO. 59
Shah of Iran was deposed by Ayatollah Khomeini, plaintiff
became a refugee of the United Nations and continued to stay
G.R. No. 142396             February 11, 2003
in the Philippines. He headed the Iranian National Resistance
Movement in the Philippines.
KHOSROW MINUCHER, petitioner, 
vs.
"He came to know the defendant on May 13, 1986, when the
HON. COURT OF APPEALS and ARTHUR
latter was brought to his house and introduced to him by a
SCALZO, respondents.
certain Jose Iñigo, an informer of the Intelligence Unit of the
military. Jose Iñigo, on the other hand, was met by plaintiff at
DECISION
the office of Atty. Crisanto Saruca, a lawyer for several Iranians
whom plaintiff assisted as head of the anti-Khomeini movement
VITUG, J.:
in the Philippines.
Sometime in May 1986, an Information for violation of Section 4
"During his first meeting with the defendant on May 13, 1986,
of Republic Act No. 6425, otherwise also known as the
upon the introduction of Jose Iñigo, the defendant expressed his
"Dangerous Drugs Act of 1972," was filed against petitioner
interest in buying caviar. As a matter of fact, he bought two kilos
Khosrow Minucher and one Abbas Torabian with the Regional
of caviar from plaintiff and paid P10,000.00 for it. Selling caviar,
Trial Court, Branch 151, of Pasig City. The criminal charge
aside from that of Persian carpets, pistachio nuts and other
followed a "buy-bust operation" conducted by the Philippine
Iranian products was his business after the Khomeini
police narcotic agents in the house of Minucher, an Iranian
government cut his pension of over $3,000.00 per month.
national, where a quantity of heroin, a prohibited drug, was said
During their introduction in that meeting, the defendant gave the
to have been seized. The narcotic agents were accompanied by
plaintiff his calling card, which showed that he is working at the
private respondent Arthur Scalzo who would, in due time,
US Embassy in the Philippines, as a special agent of the Drug
become one of the principal witnesses for the prosecution. On
Enforcement Administration, Department of Justice, of the
08 January 1988, Presiding Judge Eutropio Migrino rendered a
United States, and gave his address as US Embassy, Manila. At
decision acquitting the two accused.
the back of the card appears a telephone number in defendant’s
own handwriting, the number of which he can also be contacted.
"It was also during this first meeting that plaintiff expressed his
desire to obtain a US Visa for his wife and the wife of a
countryman named Abbas Torabian. The defendant told him
that he [could] help plaintiff for a fee of $2,000.00 per visa. Their
conversation, however, was more concentrated on politics,
carpets and caviar. Thereafter, the defendant promised to see
plaintiff again.
"On May 19, 1986, the defendant called the plaintiff and invited
the latter for dinner at Mario's Restaurant at Makati. He wanted
to buy 200 grams of caviar. Plaintiff brought the merchandize
but for the reason that the defendant was not yet there, he
requested the restaurant people to x x x place the same in the
refrigerator. Defendant, however, came and plaintiff gave him
the caviar for which he was paid. Then their conversation was
again focused on politics and business.
"On May 26, 1986, defendant visited plaintiff again at the latter's
residence for 18 years at Kapitolyo, Pasig. The defendant
wanted to buy a pair of carpets which plaintiff valued at
$27,900.00. After some haggling, they agreed at $24,000.00.
For the reason that defendant did not yet have the money, they
agreed that defendant would come back the next day. The
following day, at 1:00 p.m., he came back with his $24,000.00,
which he gave to the plaintiff, and the latter, in turn, gave him
the pair of carpets.1awphi1.nét
"At about 3:00 in the afternoon of May 27, 1986, the defendant
came back again to plaintiff's house and directly proceeded to
the latter's bedroom, where the latter and his countryman,
Abbas Torabian, were playing chess. Plaintiff opened his safe in
the bedroom and obtained $2,000.00 from it, gave it to the
defendant for the latter's fee in obtaining a visa for plaintiff's
wife. The defendant told him that he would be leaving the
Philippines very soon and requested him to come out of the
house for a while so that he can introduce him to his cousin
waiting in a cab. Without much ado, and without putting on his
shirt as he was only in his pajama pants, he followed the
defendant where he saw a parked cab opposite the street. To
his complete surprise, an American jumped out of the cab with a
drawn high-powered gun. He was in the company of about 30 to
40 Filipino soldiers with 6 Americans, all armed. He was
handcuffed and after about 20 minutes in the street, he was
brought inside the house by the defendant. He was made to sit
down while in handcuffs while the defendant was inside his
bedroom. The defendant came out of the bedroom and out from
defendant's attaché case, he took something and placed it on
the table in front of the plaintiff. They also took plaintiff's wife
who was at that time at the boutique near his house and
likewise arrested Torabian, who was playing chess with him in
the bedroom and both were handcuffed together. Plaintiff was
not told why he was being handcuffed and why the privacy of
his house, especially his bedroom was invaded by defendant.
He was not allowed to use the telephone. In fact, his telephone
was unplugged. He asked for any warrant, but the defendant
told him to `shut up.’ He was nevertheless told that he would be
able to call for his lawyer who can defend him.
"The plaintiff took note of the fact that when the defendant
invited him to come out to meet his cousin, his safe was opened
where he kept the $24,000.00 the defendant paid for the carpets
and another $8,000.00 which he also placed in the safe together
with a bracelet worth $15,000.00 and a pair of earrings worth
$10,000.00. He also discovered missing upon his release his 8
pieces hand-made Persian carpets, valued at $65,000.00, a
painting he bought for P30,000.00 together with his TV and
betamax sets. He claimed that when he was handcuffed, the
defendant took his keys from his wallet. There was, therefore,
nothing left in his house.
"That his arrest as a heroin trafficker x x x had been well
publicized throughout the world, in various newspapers,
particularly in Australia, America, Central Asia and in the
Philippines. He was identified in the papers as an international
drug trafficker. x x x
In fact, the arrest of defendant and Torabian was likewise on
television, not only in the Philippines, but also in America and in
Germany. His friends in said places informed him that they saw
him on TV with said news.
"After the arrest made on plaintiff and Torabian, they were
brought to Camp Crame handcuffed together, where they were
detained for three days without food and water." 1
During the trial, the law firm of Luna, Sison and Manas, filed a
special appearance for Scalzo and moved for extension of time
to file an answer pending a supposed advice from the United
States Department of State and Department of Justice on the
defenses to be raised. The trial court granted the motion. On 27
October 1988, Scalzo filed another special appearance to quash
the summons on the ground that he, not being a resident of the
Philippines and the action being one in personam, was beyond
the processes of the court. The motion was denied by the court,
in its order of 13 December 1988, holding that the filing by
Scalzo of a motion for extension of time to file an answer to the
complaint was a voluntary appearance equivalent to service of
summons which could likewise be construed a waiver of the
requirement of formal notice. Scalzo filed a motion for
reconsideration of the court order, contending that a motion for
an extension of time to file an answer was not a voluntary
appearance equivalent to service of summons since it did not
seek an affirmative relief. Scalzo argued that in cases involving
the United States government, as well as its agencies and
officials, a motion for extension was peculiarly unavoidable due
to the need (1) for both the Department of State and the
Department of Justice to agree on the defenses to be raised
and (2) to refer the case to a Philippine lawyer who would be
expected to first review the case. The court a quo denied the
motion for reconsideration in its order of 15 October 1989.
Scalzo filed a petition for review with the Court of Appeals, there
docketed CA-G.R. No. 17023, assailing the denial. In a
decision, dated 06 October 1989, the appellate court denied the
petition and affirmed the ruling of the trial court. Scalzo then
elevated the incident in a petition for review on certiorari,
docketed G.R. No. 91173, to this Court. The petition, however,
was denied for its failure to comply with SC Circular No. 1-88; in
any event, the Court added, Scalzo had failed to show that the
appellate court was in error in its questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February
1990, was issued (a) declaring Scalzo in default for his failure to
file a responsive pleading (answer) and (b) setting the case for
the reception of evidence. On 12 March 1990, Scalzo filed a
motion to set aside the order of default and to admit his answer
to the complaint. Granting the motion, the trial court set the case
for pre-trial. In his answer, Scalzo denied the material
allegations of the complaint and raised the affirmative defenses
(a) of Minucher’s failure to state a cause of action in his
complaint and (b) that Scalzo had acted in the discharge of his
official duties as being merely an agent of the Drug Enforcement
Administration of the United States Department of Justice.
Scalzo interposed a counterclaim of P100,000.00 to answer for
attorneys' fees and expenses of litigation.
Then, on 14 June 1990, after almost two years since the
institution of the civil case, Scalzo filed a motion to dismiss the
complaint on the ground that, being a special agent of the
United States Drug Enforcement Administration, he was entitled
to diplomatic immunity. He attached to his motion Diplomatic
Note No. 414 of the United States Embassy, dated 29 May
1990, addressed to the Department of Foreign Affairs of the
Philippines and a Certification, dated 11 June 1990, of Vice
Consul Donna Woodward, certifying that the note is a true and
faithful copy of its original. In an order of 25 June 1990, the trial
court denied the motion to dismiss.
On 27 July 1990, Scalzo filed a petition for certiorari with
injunction with this Court, docketed G.R. No. 94257 and entitled
"Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking
that the complaint in Civil Case No. 88-45691 be ordered
dismissed. The case was referred to the Court of Appeals, there
docketed CA-G.R. SP No. 22505, per this Court’s resolution of
07 August 1990. On 31 October 1990, the Court of Appeals
promulgated its decision sustaining the diplomatic immunity of
Scalzo and ordering the dismissal of the complaint against him.
Minucher filed a petition for review with this Court, docketed
G.R. No. 97765 and entitled "Khosrow Minucher vs. the
Honorable Court of Appeals, et. al." (cited in 214 SCRA 242),
appealing the judgment of the Court of Appeals. In a decision,
dated 24 September 1992, penned by Justice (now Chief
Justice) Hilario Davide, Jr., this Court reversed the decision of
the appellate court and remanded the case to the lower court for
trial. The remand was ordered on the theses (a) that the Court
of Appeals erred in granting the motion to dismiss of Scalzo for
lack of jurisdiction over his person without even considering the
issue of the authenticity of Diplomatic Note No. 414 and (b) that
the complaint contained sufficient allegations to the effect that
Scalzo committed the imputed acts in his personal capacity and
outside the scope of his official duties and, absent any evidence
to the contrary, the issue on Scalzo’s diplomatic immunity could
not be taken up.
The Manila RTC thus continued with its hearings on the case.
On 17 November 1995, the trial court reached a decision; it
adjudged:
"WHEREFORE, and in view of all the foregoing considerations,
judgment is hereby rendered for the plaintiff, who successfully
established his claim by sufficient evidence, against the
defendant in the manner following:
"`Adjudging defendant liable to plaintiff in actual and
compensatory damages of P520,000.00; moral damages in the
sum of P10 million; exemplary damages in the sum of
P100,000.00; attorney's fees in the sum of P200,000.00 plus
costs.
`The Clerk of the Regional Trial Court, Manila, is ordered to take
note of the lien of the Court on this judgment to answer for the
unpaid docket fees considering that the plaintiff in this case
instituted this action as a pauper litigant.’" 2
While the trial court gave credence to the claim of Scalzo and
the evidence presented by him that he was a diplomatic agent
entitled to immunity as such, it ruled that he, nevertheless,
should be held accountable for the acts complained of
committed outside his official duties. On appeal, the Court of
Appeals reversed the decision of the trial court and sustained
the defense of Scalzo that he was sufficiently clothed with
diplomatic immunity during his term of duty and thereby immune
from the criminal and civil jurisdiction of the "Receiving State"
pursuant to the terms of the Vienna Convention.
Hence, this recourse by Minucher. The instant petition for
review raises a two-fold issue: (1) whether or not the doctrine of
conclusiveness of judgment, following the decision rendered by
this Court in G.R. No. 97765, should have precluded the Court
of Appeals from resolving the appeal to it in an entirely different
manner, and (2) whether or not Arthur Scalzo is indeed entitled
to diplomatic immunity.
The doctrine of conclusiveness of judgment, or its kindred rule
of res judicata, would require 1) the finality of the prior judgment,
2) a valid jurisdiction over the subject matter and the parties on
the part of the court that renders it, 3) a judgment on the merits,
and 4) an identity of the parties, subject matter and causes of
action.3 Even while one of the issues submitted in G.R. No.
97765 - "whether or not public respondent Court of Appeals
erred in ruling that private respondent Scalzo is a diplomat
immune from civil suit conformably with the Vienna Convention
on Diplomatic Relations" - is also a pivotal question raised in the
instant petition, the ruling in G.R. No. 97765, however, has not
resolved that point with finality. Indeed, the Court there has
made this observation -
"It may be mentioned in this regard that private respondent
himself, in his Pre-trial Brief filed on 13 June 1990,
unequivocally states that he would present documentary
evidence consisting of DEA records on his investigation and
surveillance of plaintiff and on his position and duties as DEA
special agent in Manila. Having thus reserved his right to
present evidence in support of his position, which is the basis
for the alleged diplomatic immunity, the barren self-serving
claim in the belated motion to dismiss cannot be relied upon for
a reasonable, intelligent and fair resolution of the issue of
diplomatic immunity."4
Scalzo contends that the Vienna Convention on Diplomatic
Relations, to which the Philippines is a signatory, grants him
absolute immunity from suit, describing his functions as an
agent of the United States Drugs Enforcement Agency as
"conducting surveillance operations on suspected drug dealers
in the Philippines believed to be the source of prohibited drugs
being shipped to the U.S., (and) having ascertained the target,
(he then) would inform the Philippine narcotic agents (to) make
the actual arrest." Scalzo has submitted to the trial court a
number of documents -
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;
2. Exh. '1' - Certification of Vice Consul Donna K.
Woodward dated 11 June 1990;
3. Exh. '5' - Diplomatic Note No. 757 dated 25 October
1991;
4. Exh. '6' - Diplomatic Note No. 791 dated 17 November
1992; and
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October
1988.
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia,
Legal Adviser, Department of Foreign Affairs, dated 27
June 1990 forwarding Embassy Note No. 414 to the
Clerk of Court of RTC Manila, Branch 19 (the trial court);
7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st
Indorsement (Exh. '3'); and
8. Exh. '8' - Letter dated 18 November 1992 from the
Office of the Protocol, Department of Foreign Affairs,
through Asst. Sec. Emmanuel Fernandez, addressed to
the Chief Justice of this Court.5
The documents, according to Scalzo, would show that: (1) the
United States Embassy accordingly advised the Executive
Department of the Philippine Government that Scalzo was a
member of the diplomatic staff of the United States diplomatic
mission from his arrival in the Philippines on 14 October 1985
until his departure on 10 August 1988; (2) that the United States
Government was firm from the very beginning in asserting the
diplomatic immunity of Scalzo with respect to the case pursuant
to the provisions of the Vienna Convention on Diplomatic
Relations; and (3) that the United States Embassy repeatedly
urged the Department of Foreign Affairs to take appropriate
action to inform the trial court of Scalzo’s diplomatic immunity.
The other documentary exhibits were presented to indicate that:
(1) the Philippine government itself, through its Executive
Department, recognizing and respecting the diplomatic status of
Scalzo, formally advised the "Judicial Department" of his
diplomatic status and his entitlement to all diplomatic privileges
and immunities under the Vienna Convention; and (2) the
Department of Foreign Affairs itself authenticated Diplomatic
Note No. 414. Scalzo additionally presented Exhibits "9" to "13"
consisting of his reports of investigation on the surveillance and
subsequent arrest of Minucher, the certification of the Drug
Enforcement Administration of the United States Department of
Justice that Scalzo was a special agent assigned to the
Philippines at all times relevant to the complaint, and the special
power of attorney executed by him in favor of his previous
counsel6 to show (a) that the United States Embassy, affirmed
by its Vice Consul, acknowledged Scalzo to be a member of the
diplomatic staff of the United States diplomatic mission from his
arrival in the Philippines on 14 October 1985 until his departure
on 10 August 1988, (b) that, on May 1986, with the cooperation
of the Philippine law enforcement officials and in the exercise of
his functions as member of the mission, he investigated
Minucher for alleged trafficking in a prohibited drug, and (c) that
the Philippine Department of Foreign Affairs itself recognized
that Scalzo during his tour of duty in the Philippines (14 October
1985 up to 10 August 1988) was listed as being an Assistant
Attaché of the United States diplomatic mission and accredited
with diplomatic status by the Government of the Philippines. In
his Exhibit 12, Scalzo described the functions of the overseas
office of the United States Drugs Enforcement Agency, i.e., (1)
to provide criminal investigative expertise and assistance to
foreign law enforcement agencies on narcotic and drug control
programs upon the request of the host country, 2) to establish
and maintain liaison with the host country and counterpart
foreign law enforcement officials, and 3) to conduct complex
criminal investigations involving international criminal
conspiracies which affect the interests of the United States.
The Vienna Convention on Diplomatic Relations was a
codification of centuries-old customary law and, by the time of
its ratification on 18 April 1961, its rules of law had long become
stable. Among the city states of ancient Greece, among the
peoples of the Mediterranean before the establishment of the
Roman Empire, and among the states of India, the person of the
herald in time of war and the person of the diplomatic envoy in
time of peace were universally held sacrosanct. 7 By the end of
the 16th century, when the earliest treatises on diplomatic law
were published, the inviolability of ambassadors was firmly
established as a rule of customary international
law.8Traditionally, the exercise of diplomatic intercourse among
states was undertaken by the head of state himself, as being
the preeminent embodiment of the state he represented, and
the foreign secretary, the official usually entrusted with the
external affairs of the state. Where a state would wish to have a
more prominent diplomatic presence in the receiving state, it
would then send to the latter a diplomatic mission. Conformably
with the Vienna Convention, the functions of the diplomatic
mission involve, by and large, the representation of the interests
of the sending state and promoting friendly relations with the
receiving state.9
The Convention lists the classes of heads of diplomatic
missions to include (a) ambassadors or nuncios accredited to
the heads of state,10 (b) envoys,11 ministers
or internuncios accredited to the heads of states; and (c)
charges d' affairs12 accredited to the ministers of foreign
affairs.13 Comprising the "staff of the (diplomatic) mission" are
the diplomatic staff, the administrative staff and the technical
and service staff. Only the heads of missions, as well as
members of the diplomatic staff, excluding the members of the
administrative, technical and service staff of the mission, are
accorded diplomatic rank. Even while the Vienna Convention on
Diplomatic Relations provides for immunity to the members of
diplomatic missions, it does so, nevertheless, with an
understanding that the same be restrictively applied. Only
"diplomatic agents," under the terms of the Convention, are
vested with blanket diplomatic immunity from civil and criminal
suits. The Convention defines "diplomatic agents" as the heads
of missions or members of the diplomatic staff, thus impliedly
withholding the same privileges from all others. It might bear
stressing that even consuls, who represent their respective
states in concerns of commerce and navigation and perform
certain administrative and notarial duties, such as the issuance
of passports and visas, authentication of documents, and
administration of oaths, do not ordinarily enjoy the traditional
diplomatic immunities and privileges accorded diplomats, mainly
for the reason that they are not charged with the duty of
representing their states in political matters. Indeed, the main
yardstick in ascertaining whether a person is a diplomat entitled
to immunity is the determination of whether or not he performs
duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits "9" to "13," that he
was an Assistant Attaché of the United States diplomatic
mission and was accredited as such by the Philippine
Government. An attaché belongs to a category of officers in the
diplomatic establishment who may be in charge of its cultural,
press, administrative or financial affairs. There could also be a
class of attaches belonging to certain ministries or departments
of the government, other than the foreign ministry or
department, who are detailed by their respective ministries or
departments with the embassies such as the military, naval, air,
commercial, agricultural, labor, science, and customs attaches,
or the like. Attaches assist a chief of mission in his duties and
are administratively under him, but their main function is to
observe, analyze and interpret trends and developments in their
respective fields in the host country and submit reports to their
own ministries or departments in the home government. 14 These
officials are not generally regarded as members of the
diplomatic mission, nor are they normally designated as having
diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented
Diplomatic Notes Nos. 414, 757 and 791, all issued post litem
motam, respectively, on 29 May 1990, 25 October 1991 and 17
November 1992. The presentation did nothing much to alleviate
the Court's initial reservations in G.R. No. 97765, viz:
"While the trial court denied the motion to dismiss, the public
respondent gravely abused its discretion in dismissing Civil
Case No. 88-45691 on the basis of an erroneous assumption
that simply because of the diplomatic note, the private
respondent is clothed with diplomatic immunity, thereby
divesting the trial court of jurisdiction over his person.
"x x x x x x x x x
"And now, to the core issue - the alleged diplomatic immunity of
the private respondent. Setting aside for the moment the issue
of authenticity raised by the petitioner and the doubts that
surround such claim, in view of the fact that it took private
respondent one (1) year, eight (8) months and seventeen (17)
days from the time his counsel filed on 12 September 1988 a
Special Appearance and Motion asking for a first extension of
time to file the Answer because the Departments of State and
Justice of the United States of America were studying the case
for the purpose of determining his defenses, before he could
secure the Diplomatic Note from the US Embassy in Manila,
and even granting for the sake of argument that such note is
authentic, the complaint for damages filed by petitioner cannot
be peremptorily dismissed.
"x x x x x x x x x
"There is of course the claim of private respondent that the acts
imputed to him were done in his official capacity. Nothing
supports this self-serving claim other than the so-called
Diplomatic Note. x x x. The public respondent then should have
sustained the trial court's denial of the motion to dismiss. Verily,
it should have been the most proper and appropriate recourse.
It should not have been overwhelmed by the self-serving
Diplomatic Note whose belated issuance is even suspect and
whose authenticity has not yet been proved. The undue haste
with which respondent Court yielded to the private respondent's
claim is arbitrary."
A significant document would appear to be Exhibit No. 08, dated
08 November 1992, issued by the Office of Protocol of the
Department of Foreign Affairs and signed by Emmanuel C.
Fernandez, Assistant Secretary, certifying that "the records of
the Department (would) show that Mr. Arthur W. Scalzo, Jr.,
during his term of office in the Philippines (from 14 October
1985 up to 10 August 1988) was listed as an Assistant Attaché
of the United States diplomatic mission and was, therefore,
accredited diplomatic status by the Government of the
Philippines." No certified true copy of such "records," the
supposed bases for the belated issuance, was presented in
evidence.
Concededly, vesting a person with diplomatic immunity is a
prerogative of the executive branch of the government. In World
Health Organization vs. Aquino, 15 the Court has recognized that,
in such matters, the hands of the courts are virtually tied. Amidst
apprehensions of indiscriminate and incautious grant of
immunity, designed to gain exemption from the jurisdiction of
courts, it should behoove the Philippine government, specifically
its Department of Foreign Affairs, to be most circumspect, that
should particularly be no less than compelling, in its post litem
motam issuances. It might be recalled that the privilege is not an
immunity from the observance of the law of the territorial
sovereign or from ensuing legal liability; it is, rather, an immunity
from the exercise of territorial jurisdiction. 16 The government of
the United States itself, which Scalzo claims to be acting for,
has formulated its standards for recognition of a diplomatic
agent. The State Department policy is to only concede
diplomatic status to a person who possesses an acknowledged
diplomatic title and "performs duties of diplomatic
nature."17 Supplementary criteria for accreditation are the
possession of a valid diplomatic passport or, from States which
do not issue such passports, a diplomatic note formally
representing the intention to assign the person to diplomatic
duties, the holding of a non-immigrant visa, being over twenty-
one years of age, and performing diplomatic functions on an
essentially full-time basis.18 Diplomatic missions are requested
to provide the most accurate and descriptive job title to that
which currently applies to the duties performed. The Office of
the Protocol would then assign each individual to the
appropriate functional category.19
But while the diplomatic immunity of Scalzo might thus remain
contentious, it was sufficiently established that, indeed, he
worked for the United States Drug Enforcement Agency and
was tasked to conduct surveillance of suspected drug activities
within the country on the dates pertinent to this case. If it should
be ascertained that Arthur Scalzo was acting well within his
assigned functions when he committed the acts alleged in the
complaint, the present controversy could then be resolved under
the related doctrine of State Immunity from Suit.
The precept that a State cannot be sued in the courts of a
foreign state is a long-standing rule of customary international
law then closely identified with the personal immunity of a
foreign sovereign from suit20 and, with the emergence of
democratic states, made to attach not just to the person of the
head of state, or his representative, but also distinctly to the
state itself in its sovereign capacity. 21 If the acts giving rise to a
suit are those of a foreign government done by its foreign agent,
although not necessarily a diplomatic personage, but acting in
his official capacity, the complaint could be barred by the
immunity of the foreign sovereign from suit without its consent.
Suing a representative of a state is believed to be, in effect,
suing the state itself. The proscription is not accorded for the
benefit of an individual but for the State, in whose service he is,
under the maxim - par in parem, non habet imperium - that all
states are sovereign equals and cannot assert jurisdiction over
one another.22 The implication, in broad terms, is that if the
judgment against an official would require the state itself to
perform an affirmative act to satisfy the award, such as the
appropriation of the amount needed to pay the damages
decreed against him, the suit must be regarded as being against
the state itself, although it has not been formally impleaded. 23
In United States of America vs. Guinto, 24 involving officers of the
United States Air Force and special officers of the Air Force
Office of Special Investigators charged with the duty of
preventing the distribution, possession and use of prohibited
drugs, this Court has ruled -
"While the doctrine (of state immunity) appears to prohibit only
suits against the state without its consent, it is also applicable to
complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties. x x x. It
cannot for a moment be imagined that they were acting in their
private or unofficial capacity when they apprehended and later
testified against the complainant. It follows that for discharging
their duties as agents of the United States, they cannot be
directly impleaded for acts imputable to their principal, which
has not given its consent to be sued. x x x As they have acted
on behalf of the government, and within the scope of their
authority, it is that government, and not the petitioners
personally, [who were] responsible for their acts." 25
This immunity principle, however, has its limitations. Thus,
Shauf vs. Court of Appeals26 elaborates:
"It is a different matter where the public official is made to
account in his capacity as such for acts contrary to law and
injurious to the rights of the plaintiff. As was clearly set forth by
Justice Zaldivar in Director of the Bureau of
Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368):
`Inasmuch as the State authorizes only legal acts by its officers,
unauthorized acts of government officials or officers are not acts
of the State, and an action against the officials or officers by one
whose rights have been invaded or violated by such acts, for the
protection of his rights, is not a suit against the State within the
rule of immunity of the State from suit. In the same tenor, it has
been said that an action at law or suit in equity against a State
officer or the director of a State department on the ground that,
while claiming to act for the State, he violates or invades the
personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which
he does not have, is not a suit against the State within the
constitutional provision that the State may not be sued without
its consent. The rationale for this ruling is that the doctrine of
state immunity cannot be used as an instrument for perpetrating
an injustice.
"x x x x x x x x x
"(T)he doctrine of immunity from suit will not apply and may not
be invoked where the public official is being sued in his private
and personal capacity as an ordinary citizen. The cloak of
protection afforded the officers and agents of the government is
removed the moment they are sued in their individual capacity.
This situation usually arises where the public official acts without
authority or in excess of the powers vested in him. It is a well-
settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have
caused by his act done with malice and in bad faith or beyond
the scope of his authority and jurisdiction." 27
A foreign agent, operating within a territory, can be cloaked with
immunity from suit but only as long as it can be established that
he is acting within the directives of the sending state. The
consent of the host state is an indispensable requirement of
basic courtesy between the two sovereigns. Guinto and Shauf
both involve officers and personnel of the United States,
stationed within Philippine territory, under the RP-US Military
Bases Agreement. While evidence is wanting to show any
similar agreement between the governments of the Philippines
and of the United States (for the latter to send its agents and to
conduct surveillance and related activities of suspected drug
dealers in the Philippines), the consent or imprimatur of the
Philippine government to the activities of the United States Drug
Enforcement Agency, however, can be gleaned from the facts
heretofore elsewhere mentioned. The official exchanges of
communication between agencies of the government of the two
countries, certifications from officials of both the Philippine
Department of Foreign Affairs and the United States Embassy,
as well as the participation of members of the Philippine
Narcotics Command in the "buy-bust operation" conducted at
the residence of Minucher at the behest of Scalzo, may be
inadequate to support the "diplomatic status" of the latter but
they give enough indication that the Philippine government has
given its imprimatur, if not consent, to the activities within
Philippine territory of agent Scalzo of the United States Drug
Enforcement Agency. The job description of Scalzo has tasked
him to conduct surveillance on suspected drug suppliers and,
after having ascertained the target, to inform local law enforcers
who would then be expected to make the arrest. In conducting
surveillance activities on Minucher, later acting as the poseur-
buyer during the buy-bust operation, and then becoming a
principal witness in the criminal case against Minucher, Scalzo
hardly can be said to have acted beyond the scope of his official
function or duties.
All told, this Court is constrained to rule that respondent Arthur
Scalzo, an agent of the United States Drug Enforcement
Agency allowed by the Philippine government to conduct
activities in the country to help contain the problem on the drug
traffic, is entitled to the defense of state immunity from suit.
WHEREFORE, on the foregoing premises, the petition is Office of the Solicitor General Arturo A. Alafriz, Assistant
DENIED. No costs. Solicitor General Frine' C. Zaballero and Solicitor Sumilang V.
Bernardo for respondent-appellee.
SO ORDERED.
BARREDO, J.:
Appeal from the following decision of the Court of First Instance
of Manila in its Civil Case No. 49705 entitled Moy Ya Lim Yao,
etc., et al. vs. The Commissioner of Immigration which, brief as
it is, sufficiently depicts the factual setting of and the
fundamental issues involved in this case thus:
In the instant case, petitioners seek the issuance
of a writ of injunction against the Commissioner of
Immigration, "restraining the latter and/or his
authorized representative from ordering plaintiff
Lau Yuen Yeung to leave the Philippines and
causing her arrest and deportation and the
confiscation of her bond, upon her failure to do
so."
The prayer for preliminary injunction embodied in
the complaint, having been denied, the case was
heard on the merits and the parties submitted their
respective evidence.
The facts of the case, as substantially and
correctly stated by the Solicitor General are these:
On February 8, 1961, Lau Yuen
NO. 64 Yeung applied for a passport visa to
enter the Philippines as a non-
Republic of the Philippines
immigrant. In the interrogation made
SUPREME COURT
in connection with her application for
Manila
a temporary visitor's visa to enter the
EN BANC
Philippines, she stated that she was
 
a Chinese residing at Kowloon,
G.R. No. L-21289 October 4, 1971
Hongkong, and that she desired to
MOY YA LIM YAO alias EDILBERTO AGUINALDO LIM and
take a pleasure trip to the Philippines
LAU YUEN YEUNG, petitioners-appellants, 
to visit her great (grand) uncle Lau
vs.
Ching Ping for a period of one month
THE COMMISSIONER OF IMMIGRATION, respondent-
(Exhibits "l," "1-a," and "2"). She was
appellee.
permitted to come into the
Aruego, Mamaril & Associates for petitioners-appellants.
Philippines on March 13, 1961, and
was permitted to stay for a period of
one month which would expire on
April 13, 1961. On the date of her
arrival, Asher Y, Cheng filed a bond
in the amount of P1,000.00 to
undertake, among others that said
Lau Yuen Yeung would actually
depart from the Philippines on or
before the expiration of her
authorized period of stay in this
country or within the period as in his
discretion the Commissioner of
Immigration or his authorized
representative might properly allow.
After repeated extensions, petitioner
Lau Yuen Yeung was allowed to stay
in the Philippines up to February 13,
1962 (Exhibit "4"). On January 25,
1962, she contracted marriage with
Moy Ya Lim Yao alias Edilberto
Aguinaldo Lim an alleged Filipino
citizen. Because of the contemplated
action of respondent to confiscate
her bond and order her arrest and
immediate deportation, after the
expiration of her authorized stay, she
brought this action for injunction with
preliminary injunction. At the hearing
which took place one and a half
years after her arrival, it was
admitted that petitioner Lau Yuen
Yeung could not write either English
or Tagalog. Except for a few words,
she could not speak either English or
Tagalog. She could not name any
Filipino neighbor, with a Filipino
name except one, Rosa. She did not
know the names of her brothers-in-
law, or sisters-in-law.
Under the facts unfolded above, the Court is of the
considered opinion, and so holds, that the instant
petition for injunction cannot be sustained for the
same reason as set forth in the Order of this
Court, dated March 19, 1962, the pertinent
portions of which read:
First, Section 15 of the Revised Naturalization Law
provides:
Effect of the naturalization on wife
and children. — Any woman who is
now or may hereafter be married to a
citizen of the Philippines, and who
might herself be lawfully naturalized
shall be deemed a citizen of the
Philippines.
The above-quoted provision is clear and its import
unequivocal and hence it should be held to mean
what it plainly and explicitly expresses in
unmistakable terms. The clause "who might
herself be lawfully naturalized" incontestably
implies that an alien woman may be deemed a
citizen of the Philippines by virtue of her marriage
to a Filipino citizen only if she possesses all the
qualifications and none of the disqualifications
specified in the law, because these are the explicit
requisites provided by law for an alien to be
naturalized. (Lee Suan Ay, Alberto Tan and Lee
Chiao vs. Emilio Galang, etc., G. R. No. L-11855).
However, from the allegation of paragraph 3 of the
complaint, to wit:
3. That plaintiff Lau Yuen Yeung,
Chinese by birth, who might herself
be lawfully naturalized as a Filipino
citizen (not being disqualified to
become such by naturalization), is a
Filipino citizen by virtue of her
marriage on January 25, 1962 to
plaintiff MOY YA LIM YAO alias
EDILBERTO AGUINALDO LIM,
 under the Naturalization Laws of the
Philippines.
it can be deduced beyond debate that petitioner
Lau Yuen Yeung while claiming not to be
disqualified, does not and cannot allege that she
possesses all the qualifications to be naturalized,
naturally because, having been admitted as a
temporary visitor only on March 13, 1961, it is
obvious at once that she lacks at least, the
requisite length of residence in the Philippines
(Revised Naturalization Law, Sec. 2, Case No. 2,
Sec. 3, Case No. 3).
Were if the intention of the law that
the alien woman, to be deemed a
citizen of the Philippines by virtue of
marriage to a Filipino citizen, need
only be not disqualified under the
Naturalization Law, it would have
been worded "and who herself is not
disqualified to become a citizen of
the Philippines."
Second, Lau Yuen Yeung, a temporary Chinese
woman visitor, whose authorized stay in the
Philippines, after repeated extensions thereof, was
to expire last February 28, 1962, having married
her co-plaintiff only on January 25, 1962, or just a
little over one month before the expiry date of her
stay, it is evident that said marriage was effected
merely for convenience to defeat or avoid her then
impending compulsory departure, not to say
deportation. This cannot be permitted.
Third, as the Solicitor General has well stated:
5. That petitioner Lau Yuen Yeung,
having been admitted as a
temporary alien visitor on the
strength of a deliberate and
voluntary representation that she will
enter and stay only for a period of
one month and thereby secured a
visa, cannot go back on her
representation to stay permanently
without first departing from the
Philippines as she had promised.
(Chung Tiao Bing, et al. vs.
Commissioner of Immigration, G. R.
No. L-9966, September 29, 1956;
Ong Se Lun vs. Board of
Commissioners, G. R. No. L-6017,
September 16, 1954; Sec. 9, last
par., Phil. Immigration Law).
The aforequoted argument of the Solicitor General
is well buttressed not only by the decided cases of
the Supreme Court on the point mentioned above,
but also on the very provisions of Section 9, sub-
paragraph (g) of the Philippine Immigration Act of
1940 which reads:
An alien who is admitted as a non-
immigrant cannot remain in the
Philippines permanently. To obtain
permanent admission, a non-
immigrant alien must depart
voluntarily to some foreign country
and procure from the appropriate
Philippine Consul the proper visa
and thereafter undergo examination
by the Officers of the Bureau of
Immigration at a Philippine port of
entry for determination of his
admissibility in accordance with the
requirements of this Act. (This
paragraph is added by Republic Act
503). (Sec. 9, subparagraph (g) of
the Philippine Immigration Act of
1940).
And fourth, respondent Commissioner of
Immigration is charged with the administration of
all laws relating to immigration (Sec. 3, Com. Act
No. 613) and in the performance of his duties in
 relation to alien immigrants, the law gives the
Commissioner of Immigration a wide discretion, a
quasi-judicial function in determining cases
presented to him (Pedro Uy So vs. Commissioner
of Immigration CA-G. R. No. 23336-R, Dec. 15,
1960), so that his decision thereon may not be
disturbed unless he acted with abuse of discretion
or in excess of his jurisdiction.
It may also be not amiss to state that wife Lau
Yuen Yeung, while she barely and insufficiently
talk in broken Tagalog and English, she admitted
that she cannot write either language.
The only matter of fact not clearly passed upon by His Honor
which could have some bearing in the resolution of this appeal
is the allegation in the brief of petitioners-appellants, not denied
in the governments brief, that "in the hearing ..., it was shown
thru the testimony of the plaintiff Lau Yuen Yeung that she does
not possess any of the disqualifications for naturalization." Of
course, as an additional somehow relevant factual matter, it is
also emphasized by said appellants that during the hearing in
the lower court, held almost ten months after the alleged
marriage of petitioners, "Lau Yuen Yeung was already carrying
in her womb for seven months a child by her husband."
Appellants have assigned six errors allegedly committed by the
court a quo, thus:
I WARNING THAT HER FAILURE TO DO SO
THE LOWER COURT ERRED IN HOLDING
THAT THE CLAUSE "WHO MIGHT HERSELF BE
LAWFULLY NATURALIZED" (OF SECTION 15,
REVISED NATURALIZATION LAW)
INCONTESTABLY IMPLIES THAT AN ALIEN
WOMAN MAY BE DEEMED A CITIZEN OF THE
PHILIPPINES BY VIRTUE OF HER MARRIAGE
TO A FILIPINO CITIZEN, ONLY IF SHE
POSSESSES ALL THE QUALIFICATIONS AND
NONE OF THE DISQUALIFICATIONS
SPECIFIED IN THE LAW.
II
THE LOWER COURT ERRED IN HOLDING
THAT A WOMAN FOREIGNER WHO DOES NOT
POSSESS ANY OF THE DISQUALIFICATIONS
FOR CITIZENSHIP AND WHO MARRIED A
FILIPINO CITIZEN IS STILL CONSIDERED AN
ALIEN EVEN AFTER SUCH MARRIAGE AS TO
FALL WITHIN THE REQUIREMENT OF
SECTION 9, SUB-PARAGRAPH (9) OF THE
PHILIPPINE IMMIGRATION ACT OF 1940.
III
THE COURT ERRED IN CONCLUDING THAT
LAU YUEN YEUNG'S MARRIAGE TO A FILIPINO
CITIZEN WAS ONLY FOR CONVENIENCE,
MERELY BECAUSE THE SAME WAS
CELEBRATED JUST OVER A MONTH BEFORE
THE EXPIRY DATE OF HER AUTHORIZED
STAY.
IV
THE LOWER COURT ERRED IN FAILING TO
FIND THAT THE COMMISSIONER OF
IMMIGRATION ACTED WITH ABUSE OF
DISCRETION OR IN EXCESS OF HIS
JURISDICTION WHEN SAID OFFICER
THREATENED TO SEND OUT OF THE
COUNTRY PLAINTIFF LAU YUEN YEUNG WITH
WOULD MEAN CONFISCATION OF HER BOND,
ARREST AND IMMEDIATE DEPORTATION, IN
SPITE OF THE FACT THAT LAU YUEN YEUNG
IS NOW A FILIPINO CITIZEN.
V
THE LOWER COURT ERRED IN DISMISSING
PLAINTIFFS-APPELLANTS' COMPLAINT AND IN
REFUSING TO PERMANENTLY ENJOIN THE
COMMISSIONER FROM ORDERING PLAINTIFF
LAU YUEN YEUNG TO LEAVE THE
PHILIPPINES AS A TEMPORARY VISITOR
WHICH SHE IS NOT.
VI
 THE LOWER COURT ERRED IN REFUSING TO
GRANT PLAINTIFFS-APPELLANTS' MOTION
FOR PRELIMINARY INJUNCTION EMBODIED IN
THEIR COMPLAINT, IN AN ORDER DATED
MARCH 19, 1962. (PAGES 36-41, RECORD ON
APPEAL) .
We need not discuss these assigned errors separately. In effect,
the above decision upheld the two main grounds of objection of
the Solicitor General to the petition in the court below, viz:
That petitioner Lau Yuen Yeung, having been
admitted as a temporary alien visitor on the
strength of a deliberate and voluntary
representation that she will enter and stay only for
a period of one month and thereby secured a visa,
cannot go back on her representation to stay
permanently without first departing from the
Philippines as she had promised. (Chung Tiao
Bing, et al. vs. Commissioner of Immigration, G.R.
No. L-9966, September 29, 1956; Ong Se Lun vs.
Board of Commissioners, G.R. No. L-6017, Sept.
16, 1954, Sec. 9, last par. Phil. Immigration Law);
That the mere marriage of a Filipino citizen to an
alien does not automatically confer on the latter
Philippine citizenship. The alien wife must possess
all the qualifications required by law to become a
Filipino citizen by naturalization and none of the
disqualifications. (Lee Suan Ay, Alberto Tan and
Lee Chiao vs. Galang, etc., G. R. No. L-11855,
Dec. 25, 1959)
It is obvious from the nature of these objection that their proper
resolution would necessarily cover all the points raised in
appellants' assignments of error, hence, We will base our
discussions, more or less, on said objections.
I reside here, the immigration authorities may neither deport them
The first objection of the Solicitor General which covers the
matters dealt with in appellants' second and fourth assignments
of error does not require any lengthy discussion. As a matter of
fact, it seem evident that the Solicitor General's pose that an
alien who has been admitted into the Philippines as a non-
immigrant cannot remain here permanently unless he voluntarily
leaves the country first and goes to a foreign country to secure
thereat from the appropriate Philippine consul the proper visa
and thereafter undergo examination by officers of the Bureau of
Immigration at a Philippine port of entry for determination of his
admissibility in accordance with the requirements of the
Philippine Immigration Act of 1940, as amended by Republic Act
503, is premised on the assumption that petitioner Lau Yuen
Yeung is not a Filipino citizen. We note the same line of
reasoning in the appealed decision of the court a quo.
Accordingly, it is but safe to assume that were the Solicitor
General and His Honor of the view that said petitioner had
become ipso facto a Filipina by virtue of her marriage to her
Filipino husband, they would have held her as entitled to
assume the status of a permanent resident without having to
depart as required of aliens by Section 9 (g) of the law.
In any event, to set this point at rest, We hereby hold that
portion of Section 9 (g) of the Immigration Act providing:
An alien who is admitted as a non-immigrant
cannot remain in the Philippines permanently. To
obtain permanent admission, a non-immigrant
alien must depart voluntarily to some foreign
country and procure from the appropriate
Philippine consul the proper visa and thereafter
undergo examination by the officers of the Bureau
of Immigration at a Philippine port of entry for
determination of his admissibility in accordance
with the requirements of this Act.
does not apply to aliens who after coming into the Philippines as
temporary visitors, legitimately become Filipino citizens or
acquire Filipino citizenship. Such change of nationality naturally
bestows upon their the right to stay in the Philippines
permanently or not, as they may choose, and if they elect to
nor confiscate their bonds. True it is that this Court has
vehemently expressed disapproval of convenient ruses
employed by alien to convert their status from temporary visitors
to permanent residents in circumvention of the procedure
prescribed by the legal provision already mentioned, such as
in Chiong Tiao Bing vs. Commissioner of Immigration, 99 Phil.
1020, wherein, thru Mr. Justice J.B.L. Reyes, the Court,
reiterating the ruling in Ong Se Lun vs. Board of Immigration
Commissioners, 95 PMI. 785, said:
... It is clear that if an alien gains admission to the
Islands on the strength of a deliberate and
voluntary representation that he will enter only for
a limited time, and thereby secures the benefit of a
temporary visa, the law will not allow him
subsequently to go back on his representation and
stay permanently, without first departing from the
Philippines as he had promised. No officer can
relieve him of the departure requirements of
section 9 of the Immigration Act, under the guise
of "change" or "correction", for the law makes no
distinctions, and no officer is above the law. Any
other ruling would, as stated in our previous
decision, encourage aliens to enter the Islands on
false pretences; every alien so permitted to enter
for a limited time, might then claim a right to
permanent admission, however flimsy such claim
should be, and thereby compel our government to
spend time, money and effort to examining and
verifying whether or not every such alien really has
a right to take up permanent residence here. In the
meanwhile, the alien would be able to prolong his
stay and evade his return to the port whence he
came, contrary to what he promised to do when he
entered. The damages inherent in such ruling are
self-evident.
On the other hand, however, We cannot see any reason why an
alien who has been here as a temporary visitor but who has in
the meanwhile become a Filipino should be required to still
leave the Philippines for a foreign country, only to apply thereat
for a re-entry here and undergo the process of showing that he
is entitled to come back, when after all, such right has become
incontestible as a necessary concomitant of his assumption of
our nationality by whatever legal means this has been conferred
upon him. Consider for example, precisely the case of the minor
children of an alien who is naturalized. It is indubitable that they
become ipso facto citizens of the Philippines. Could it be the law
that before they can be allowed permanent residence, they still
have to be taken abroad so that they may be processed to
determine whether or not they have a right to have permanent
residence here? The difficulties and hardships which such a
requirement entails and its seeming unreasonableness argue
against such a rather absurd construction. Indeed, as early as
1957, in Ly Giok Ha vs. Galang, 101 Phil. 459, Mr. Justice
Concepcion, our present Chief Justice, already ruled thus:
... (P)etitioners allege that, upon her marriage to a
Filipino, Ly Giok Ha became also a citizen of the
Philippines. Indeed, if this conclusion were correct,
it would follow that, in consequence of her
marriage, she had been naturalized as such
citizen, and, hence the decision appealed from
would have to be affirmed, for section 40(c) of
Commonwealth Act 613 provides that "in the event
of the naturalization as a Philippine citizen ... of
the alien on whose behalf the bond deposit is
given, the bond shall be cancelled or the sum
deposited shall be returned to the depositor or his
legal representative." (At. pp. 462-463)
In other words, the applicable statute itself more than implies
that the naturalization of an alien visitor as a Philippine citizen
logically produces the effect of conferring upon him ipso facto all
the rights of citizenship including that of being entitled to
permanently stay in the Philippines outside the orbit of authority
of the Commissioner of Immigration vis-a-vis aliens, if only
because by its very nature and express provisions, the
Immigration Law is a law only for aliens and is inapplicable to
citizens of the Philippines. In the sense thus discussed
therefore, appellants' second and fourth assignments of error
are well taken.
II
Precisely, the second objection, of the Solicitor General
sustained by the trial judge is that appellant Lau Yuen Yeung's
marriage to appellant Moya Lim Yao alias Edilberto Aguinaldo
whose Filipino citizenship is not denied did not have the effect of
making her a Filipino, since it has not been shown that she
"might herself be lawfully naturalized," it appearing clearly in the
record that she does not possess all the qualifications required
of applicants for naturalization by the Revised Naturalization
Law, Commonwealth Act 473, even if she has proven that she
does not suffer from any of the disqualifications thereunder. In
other words, the Solicitor General implicitly concedes that had it
been established in the proceedings below that appellant Lau
Yuen Yeung possesses all the qualifications required by the law
of applicants for naturalization, she would have been recognized
by the respondent as a Filipino citizen in the instant case,
without requiring her to submit to the usual proceedings for
naturalization.
To be sure, this position of the Solicitor General is in accord with
what used to be the view of this Court since Lee Suan Ay, et al.
v. Emilio Galang, etc., et al., G.R. No. L-11855, promulgated
December 23, 1959, 106 Phil., 706,713, 1 for it was only in Zita
Ngo Burca vs. Republic, G.R. NO. L-24252 which was
promulgated on January 30, 1967 (19 SCRA 186), that over the
pen of Mr. Justice Conrado Sanchez, this Court held that for an
alien woman who marries a Filipino to be deemed a Filipina, she
has to apply for naturalization in accordance with the procedure
prescribed by the Revised Naturalization Law and prove in said
naturalization proceeding not only that she has all the
qualifications and none of the disqualifications provided in the
law but also that she has complied with all the formalities
required thereby like any other applicant for
naturalization,2 albeit said decision is not yet part of our
jurisprudence inasmuch as the motion for its reconsideration is
still pending resolution. Appellants are in effect urging Us,
however, in their first and second assignments of error, not only
to reconsider Burca but to even reexamine Lee Suan Ay which,
as a matter of fact, is the prevailing rule, having been reiterated
in all subsequent decisions up to Go Im Ty. 3
Actually, the first case in which Section 15 of the Naturalization
Law, Commonwealth Act 473, underwent judicial construction
was in the first Ly Giok Ha case,4 one almost identical to the one
at bar. Ly Giok Ha, a woman of Chinese nationality, was a
temporary visitor here whose authority to stay was to expire on
March 14, 1956. She filed a bond to guaranty her timely
departure. On March 8, 1956, eight days before the expiration of
her authority to stay, she married a Filipino by the name of
Restituto Lacasta. On March 9, 1956, her husband notified the
Commissioner of Immigration of said marriage and, contending
that his wife had become a Filipina by reason of said marriage,
demanded for the cancellation of her bond, but instead of
acceding to such request, the Commissioner required her to
leave, and upon her failure to do so, on March 16, 1956, the
Commissioner confiscated her bond; a suit was filed for the
recovery of the bond; the lower court sustained her contention
that she had no obligation to leave, because she had become
Filipina by marriage, hence her bond should be returned. The
Commissioner appealed to this Court. In the said appeal, Mr.
Justice Roberto Concepcion, our present Chief Justice, spoke
for the Court, thus:
The next and most important question for
determination is whether her marriage to a Filipino
justified or, at least, excused the aforesaid failure
of Ly Giok Ha to depart from the Philippines on or
before March 14, 1956. In maintaining the
affirmative view, petitioners alleged that, upon her
marriage to a Filipino, Ly Giok Ha became, also, a
citizen of the Philippines. Indeed, if this conclusion
were correct, it would follow that, in consequence
of her marriage, she had been naturalized as such
citizen, and, hence, the decision appealed from
would have to be affirmed, for section 40(c) of
Commonwealth Act No. 613 provides that "in the
event of the naturalization as a Philippine citizen ...
of the alien on whose behalf the bond deposit is
given, the bond shall be cancelled or the sum
deposited shall be returned to the depositor or his
legal representative." Thus the issue boils down to
whether an alien female who marries a male
citizen of the Philippines follows ipso facto his
political status.
The pertinent part of section 15 of Commonwealth
Act No. 473, upon which petitioners rely, reads:
 Any woman who is now or may
hereafter be married to a citizen of
the Philippines, and who might
herself be lawfully naturalized shall
be deemed a citizen of the
Philippines.
Pursuant thereto, marriage to a male Filipino does
not vest Philippine citizenship to his foreign wife,
unless she "herself may be lawfully naturalized."
As correctly held in an opinion of the Secretary of
Justice (Op. No. 52, series of 1950),* this
limitation of section 15 excludes, from the benefits
of naturalization by marriage, those disqualified
from being naturalized as citizens of the
Philippines under section 4 of said Commonwealth
Act No. 473, namely:
(a) Persons opposed to organized
government or affiliated with any
association or group of persons who
uphold and teach doctrines opposing
all organized governments;
(b) Persons defending or teaching
the necessity or propriety of
violence, personal assault, or
assassination for the success and
predominance of their ideas;
(c) Polygamists or believers in the
practice of polygamy;
(d) Persons convicted of crimes
involving moral turpitude;
(e) Persons suffering from mental
alienation or incurable contagious
diseases;
(f) Persons who, during the period of
their residence in the Philippines,
have not mingled socially with the
Filipinos, or who have not evinced a
sincere desire to learn and embrace
the customs, traditions, and ideals of
the Filipinos;
(g) Citizens or subjects of nations
with whom the ... Philippines are at
war, during the period of such war;
(h) Citizens or subjects of a foreign
country other than the United States,
whose laws does not grant Filipinos
the right to become naturalized
citizens or subjects thereof.
In the case at bar, there is neither proof nor
allegation in the pleadings that Ly Giok Ha does
not fall under any of the classes disqualified by
law. Moreover, as the parties who claim that,
despite her failure to depart from the Philippines
within the period specified in the bond in question,
there has been no breach thereof, petitioners have
the burden of proving her alleged change of
political status, from alien to citizen. Strictly
speaking, petitioners have not made out, therefore
a case against the respondents-appellants.
Considering, however, that neither in the
administrative proceedings, nor in the lower court,
had the parties seemingly felt that there was an
issue on whether Ly Giok Ha may "be lawfully
naturalized," and this being a case of first
impression in our courts, we are of the opinion
that, in the interest of equity and justice, the
parties herein should be given an opportunity to
introduce evidence, if they have any, on said
issue. (At pp. 462-464.) .
As may be seen, although not specifically in so many words, no
doubt was left in the above decision as regards the following
propositions: .
1. That under Section 15 of Commonwealth Act 473, the
Revised Naturalization Law, the marriage of an alien woman to
a Filipino makes her a Filipina, if she "herself might be lawfully
naturalized";
2. That this Court declared as correct the opinion of the
Secretary of Justice that the limitation of Section 15 of the
Naturalization Law excludes from the benefits of naturalization
by marriage, only those disqualified from being naturalized
under Section 4 of the law qouted in the decision;
3. That evidence to the effect that she is not disqualified may be
presented in the action to recover her bond confiscated by the
Commissioner of Immigration;
4. That upon proof of such fact, she may be recognized as
Filipina; and
5. That in referring to the disqualification enumerated in the law,
the Court somehow left the impression that no inquiry need be
made as to qualifications,5 specially considering that the
decision cited and footnotes several opinions of the Secretary of
Justice, the immediate superior of the Commissioner of
Immigration, the most important of which are the following:
Paragraph (a), section 13 of Act No. 2927, as
amended, (now section 15, Commonwealth Act
No. 473), provided that "any woman who is now or
may hereafter be married to a citizen of the
Philippines, and who might herself be lawfully
naturalized shall be deemed a citizen of the
Philippines." A similar provision in the
naturalization law of the United States has been
construed as not requiring the woman to have the
qualifications of residence, good character, etc.,
as in the case of naturalization by judicial
proceedings, but merely that she is of the race of
persons who may be naturalized. (Kelly v. Owen
[Dist. Col. 1868] 7 Wall 496, 5F, 11, 12; ex
parte Tryason [D. C. Wash. 1914] 215 F. 449, 27
Op. Atty. Gen. 507). (Op. No. 168, s. 1940 of
Justice Sec. Jose Abad Santos.)
In a previous opinion rendered for your Office, I
stated that the clause "who might herself be
lawfully naturalized", should be construed as not
requiring the woman to have the qualifications of
residence, good character, etc., as in cases of
naturalization by judicial proceedings, but merely
that she is of the race of persons who may be
naturalized. (Op. No. 79, s. 1940)
Inasmuch as the race qualification has been
removed by the Revised Naturalization Law, it
results that any woman who married a citizen of
the Philippines prior to or after June 17, 1939, and
the marriage not having been dissolved, and on
the assumption that she possesses none of the
disqualifications mentioned in Section 4 of
Commonwealth Act No. 473, follows the
citizenship of her husband. (Op. No. 176, s. 1940
of Justice Sec. Jose Abad Santos.)
From the foregoing narration of facts, it would
seem that the only material point of inquiry is as to
the citizenship of Arce Machura. If he shall be
found to be a citizen of the Philippines, his wife,
Mrs. Lily James Machura, shall likewise be
deemed a citizen of the Philippines pursuant to the
provision of Section 15, Commonwealth Act No.
473, which reads in part as follows:
Any woman who is now or may
hereafter be married to a citizen of
the Philippines, and who might
herself be lawfully naturalized shall
be deemed a citizen of the
Philippines.
The phrase "who might herself be lawfully
naturalized", as contained in the above provision,
means that the woman who is married to a Filipino
citizen must not belong to any of the disqualified
classes enumerated in Section 4 of the
Naturalization Law (Ops., Sec. of Jus., No. 28, s.
1950; No. 43, s. 1948, No. 95, s. 1941; Nos. 79
and 168, s. 1940). Under the facts stated in the
within papers, Mrs. Machura does not appear to
be among the disqualified classes mentioned in
the law.
It having been shown that Arce Machura or
Arsenio Guevara was born as an illegitimate of a
 Filipino mother, he should be considered as a
citizen of the Philippines in consonance with the
well-settled rule that an illegitimate child follows
the citizenship of his only legally recognized
parent, the mother (Op., Sec. of Jus., Nos. 58, 98
& 281, s. 1948; No. 96, s. 1949). Her husband
being a Filipino, Mrs. Machura must necessarily
be deemed as a citizen of the Philippines by
marriage (Sec. 15, Com. Act No. 473.) (Op. No.
52, s. 1950 of Justice Sec. Ricardo Nepomuceno.)
The logic and authority of these opinions, compelling as they
are, must have so appealed to this Court that five days later, on
May 22, 1957, in Ricardo Cua v. The Board of Commissioners,
101 Phil. 521, Mr. Justice J.B.L. Reyes, reiterated the same
ruling on the basis of the following facts:
Tjioe Wu Suan, an Indonesian, arrived in Manila on November
1, 1952, but it turned out that her passport was forged. On
December 10, 1953, a warrant was issued for her arrest for
purpose of deportation. Later, on December 20, 1953, she
married Ricardo Cua, a Filipino, and because of said marriage,
the Board of Special Inquiry considered her a Filipina. Upon a
review of the case, however, the Board of Immigration
Commissioners insisted on continuing with the deportation
proceedings and so, the husband filed prohibition and
mandamus proceedings. The lower court denied the petition.
Although this Court affirmed said decision, it held, on the other
hand, that:
Granting the validity of marriage, this Court has
ruled in the recent case of Ly Giok Ha v. Galang,
supra, p. 459, that the bare fact of a valid marriage
to a citizen does not suffice to confer his
citizenship upon the wife. Section 15 of the
Naturalization Law requires that the alien woman
who marries a Filipino must show, in addition, that
she "might herself be lawfully naturalized" as a
Filipino citizen. As construed in the decision
cited, this last condition requires proof that the
woman who married a Filipino is herself not
disqualified under section 4 of the Naturalization
Law.
No such evidence appearing on record, the claim
of assumption of Filipino citizenship by Tjioe Wu
Suan, upon her marriage to petitioner, is
untenable. The lower court, therefore, committed
no error in refusing to interfere with the deportation
proceedings, where she can anyway establish the
requisites indispensable for her acquisition of
Filipino citizenship, as well as the alleged validity
of her Indonesian passport. (Ricardo Cua v. The
Board of Immigration Commissioners, G. R. No. L-
9997, May 22, 1957, 101 Phil. 521, 523.)
[Emphasis supplied] .
For emphasis, it is reiterated that in the above two cases, this
Court expressly gave the parties concerned opportunity to prove
the fact that they were not suffering from any of the
disqualifications of the law without the need of undergoing any
judicial naturalization proceeding. It may be stated, therefore,
that according to the above decisions, the law in this country, on
the matter of the effect of marriage of an alien woman to a
Filipino is that she thereby becomes a Filipina, if it can be
proven that at the time of such marriage, she does not possess
any of the disqualifications enumerated in Section 4 of the
Naturalization Law, without the need of submitting to any
naturalization proceedings under said law.
It is to be admitted that both of the above decisions made no
reference to qualifications, that is, as to whether or not they
need also to be proved, but, in any event, it is a fact that the
Secretary of Justice understood them to mean that such
qualifications need not be possessed nor proven. Then
Secretary of Justice Jesus Barrera, who later became a
distinguished member of this Court, 6 so ruled in opinions
rendered by him subsequent to Ly Giok Ha, the most illustrative
of which held: .
At the outset it is important to note that an alien
woman married to a Filipino citizen needs only to
show that she "might herself be lawfully
naturalized" in order to acquire Philippine
citizenship. Compliance with other conditions of
the statute, such as those relating to the
qualifications of an applicant for naturalization
through judicial proceedings, is not necessary.
(See: Leonard v. Grant, 5 Fed. 11; 27 Ops. Atty.
Gen [U.S.] 507; Ops. Sec. of Justice, No. 776, s.
1940, and No. 111, s. 1953.
This view finds support in the case of Ly Giok Ha
et al. v. Galang et al., G.R. No. L-10760,
promulgated May 17, 1957, where the Supreme
Court, construing the abovequoted section of the
Naturalization Law, held that "marriage to a male
Filipino does not vest Philippine citizenship to his
foreign wife," unless she "herself may be lawfully
naturalized," and that "this limitation of Section 15
excludes, from the benefits of naturalization by
marriage, those disqualified from being
naturalized as citizens of the Philippines under
Section 4 of said Commonwealth Act No. 473." In
other words, disqualification for any of the causes
enumerated in Section 4 of the Act is the decisive
factor that defeats the right of the foreign wife of a
Philippine citizen to acquire Philippine citizenship.
xxx xxx xxx
Does petitioner, Lim King Bian, belong to any of
these groups The Commissioner of Immigration
does not say so but merely predicates his negative
action on the ground that a warrant of deportation
for "overstaying" is pending against the petitioner.
We do not believe the position is well taken. Since
the grounds for disqualification for naturalization
are expressly enumerated in the law, a warrant of
deportation not based on a finding of unfitness to
become naturalized for any of those specified
causes may not be invoked to negate acquisition
of Philippine citizenship by a foreign wife of a
Philippine citizen under Section 15 of the
Naturalization Law. (Inclusio unius est exclusio
alterius) (Op. No. 12, s. 1958 of Justice Undersec.
Jesus G. Barrera.)
Regarding the steps that should be taken by an
alien woman married to a Filipino citizen in order
to acquire Philippine citizenship, the procedure
followed in the Bureau of Immigration is as follows:
The alien woman must file a petition for the
cancellation of her alien certificate of registration
alleging, among other things, that she is married to
a Filipino citizen and that she is not disqualified
from acquiring her husband's citizenship pursuant
to section 4 of Commonwealth Act No. 473, as
amended. Upon the filing of said petition, which
should be accompanied or supported by the joint
affidavit of the petitioner and her Filipino husband
to the effect that the petitioner does not belong to
any of the groups disqualified by the cited section
from becoming naturalized Filipino citizen (please
see attached CEB Form 1), the Bureau of
Immigration conducts an investigation and
thereafter promulgates its order or decision
granting or denying the petition. (Op. No. 38, s.
19058 of Justice Sec. Jesus G. Barrera.)
This view finds support in the case of Ly Giok Ha
et al., v. Galang et al. (G.R. No. L-10760,
promulgated May 17, 1957), where the Supreme
Court, construing the above-quoted section in the
Revised Naturalization Law, held that "marriage to
a male Filipino does not vest Philippine citizenship
to his foreign wife, unless she herself may be
lawfully naturalized," and that "this limitation of
Section 15 excludes, from the benefits of
naturalization by marriage, those disqualified from
being naturalized as citizens of the Philippines
under Section 4 of said Commonwealth Act No.
473." In other words, disqualification for any of the
causes enumerated in section 4 of the Act is the
decisive factor that defeats the right of an alien
woman married to a Filipino citizen to acquire
 Philippine citizenship. (Op. 57, s. 1958 of Justice
Sec. Jesus G. Barrera.)
The contention is untenable. The doctrine
enunciated in the Ly Giok Ha case is not a new
one. In that case, the Supreme Court held that
under paragraph I of Section 15 Of
Commonwealth Act No. 473, 'marriage to a male
Filipino does not vest Philippine citizenship to his
foreign wife unless she "herself may be lawfully
naturalized"', and, quoting several earlier opinions
of the Secretary of Justice, namely: No. 52, s.
1950; No. 168, s. 1940; No. 95, s. 1941; No. 63, s.
1948; No. 28. s. 1950, "this limitation of section 15
excludes from the benefits of naturalization by
marriage, those disqualified from being naturalized
as citizens of the Philippines under section 4 of
said Commonwealth Act No. 473." (Op. 134, s.
1962 of Justice Undersec. Magno S. Gatmaitan.)
It was not until more than two years later that, in one respect,
the above construction of the law was importantly modified by
this Court in Lee Suan Ay, supra, in which the facts were as
follows:
Upon expiration of the appellant Lee Suan Ay's
authorized period of temporary stay in the
Philippines (25 March 1955), on 26 March 1955
the Commissioner of Immigration asked the
bondsman to present her to the Bureau of
Immigration within 24 hours from receipt of notice,
otherwise the bond will be confiscated(Annex 1).
For failure of the bondsman to comply with the
foregoing order, on 1 April 1955. the
Commissioner of Immigration ordered the cash
bond confiscated (Annex E). Therefore, there was
an order issued by the Commissioner of
Immigration confiscating or forfeiting the cash
bond. Unlike in forfeiture of bail bonds in criminal
proceedings, where the Court must enter an order
forfeiting the bail bond and the bondsman must be
given an opportunity to present his principal or
give a satisfactory reason for his inability to do so,
before final judgment may be entered against the
bondsman,(section 15, Rule 110; U.S. v. Bonoan,
22 Phil. 1.) in forfeiture of bonds posted for the
temporary stay of an alien in the Philippines, no
court proceeding is necessary. Once a breach of
the terms and conditions of the undertaking in the
bond is committed, the Commissioner of
Immigration may, under the terms and conditions
thereof, declare it forfeited in favor of the
Government. (In the meanwhile, on April 1, 1955,
Lee Suan Ay and Alberto Tan, a Filipino, were
joined in marriage by the Justice of the Peace of
Las Piñas, Rizal.)
Mr. Justice Sabino Padilla speaking for a unanimous court
which included Justices Concepcion and Reyes who had
penned Ly Giok Ha, and Ricardo Cua, ruled thus:
The fact that Lee Suan Ay (a Chinese) was
married to a Filipino citizen does not relieve the
bondsman from his liability on the bond. The
marriage took place on 1 April 1955, and the
violation of the terms and conditions of the
undertaking in the bond — failure to depart from
the Philippines upon expiration of her authorized
period of temporary stay in the Philippines (25
March 1955) and failure to report to the
Commissioner of Immigration within 24 hours from
receipt of notice — were committed before the
marriage. Moreover, the marriage of a Filipino
citizen to an alien does not automatically confer
Philippine citizenship upon the latter. She must
possess the qualifications required by law to
become a Filipino citizen by naturalization.* There
is no showing that the appellant Lee Suan Ay
possesses all the qualifications and none of the
disqualifications provided for by law to become a
Filipino citizen by naturalization.
Pertinently to be noted at once in this ruling, which, to be sure,
is the one relied upon in the appealed decision now before Us,
is the fact that the footnote of the statement therein that the
alien wife "must possess the qualifications required by law to
become a Filipino citizen by naturalization" makes reference to
Section 15, Commonwealth Act 473 and precisely, also to Ly
Giok Ha v. Galang, supra. As will be recalled, on the other hand,
in the opinions of the Secretary of Justice explicitly adopted by
the Court in Ly Giok Ha, among them, Opinion No. 176, Series
of 1940, above-quoted, it was clearly held that "(I)n a previous
opinion rendered for your Office, I stated that the clause "who
might herself be lawfully naturalized", should be construed as
not requiring the woman to have the qualifications of residence,
good character, etc., as in cases of naturalization by judicial
proceedings but merely that she is of the race by persons who
may be naturalized. (Op. No. 79, s. 1940)
Since Justice Padilla gave no reason at all for the obviously
significant modification of the construction of the law, it could be
said that there was need for clarification of the seemingly new
posture of the Court. The occasion for such clarification should
have been in Kua Suy, etc., et al. vs. The Commissioner of
Immigration, G.R. No. L-13790, October 31, 1963, penned by
Mr. Justice J.B.L. Reyes, who had rendered the opinion in
Ricardo Cua, supra, which followed that in Ly Giok Ha, supra,
but apparently seeing no immediate relevancy in the case on
hand then of the particular point in issue now, since it was not
squarely raised therein similarly as in Lee Suan Ay, hence,
anything said on the said matter would at best be no more
than obiter dictum, Justice Reyes limited himself to holding that
"Under Section 15 of the Naturalization Act, the wife is deemed
a citizen of the Philippines only if she "might herself be lawfully
naturalized," so that the fact of marriage to a citizen, by itself
alone, does not suffice to confer citizenship, as this Court has
previously ruled in Ly Giok Ha v. Galang, 54 O.G. 356, and in
Cua v. Board of Immigration Commissioners, 53 O.G. 8567; and
there is here no evidence of record as to the qualifications or
absence of disqualifications of appellee Kua Suy", without
explaining the apparent departure already pointed out from Ly
Giok Ha and Ricardo Cua. Even Justice Makalintal, who wrote a
separate concurring and dissenting opinion merely lumped
together Ly Giok Ha, Ricardo Cua and Lee Suan Ay and opined
that both qualifications and non-disqualifications have to be
shown without elucidating on what seemed to be departure from
the said first two decisions.
It was only on November 30, 1963 that to Mr. Justice Roberto
Regala fell the task of rationalizing the Court's position. In Lo
San Tuang v. Galang, G.R. No. L-18775, November 30, 1963, 9
SCRA 638, the facts were simply these: Lo San Tuang, a
Chinese woman, arrived in the Philippines on July 1, 1960 as a
temporary visitor with authority to stay up to June 30, 1961. She
married a Filipino on January 7, 1961, almost six months before
the expiry date of her permit, and when she was requested to
leave after her authority to stay had expired, she refused to do
so, claiming she had become a Filipina by marriage, and to
bolster her position, she submitted an affidavit stating explicitly
that she does not possess any of the disqualifications
enumerated in the Naturalization Law, Commonwealth Act 473.
When the case reached the court, the trial judge held for the
government that in addition to not having any of the
disqualifications referred to, there was need that Lo San Tuang
should have also possessed all the qualifications of residence,
moral character, knowledge of a native principal dialect, etc.,
provided by the law. Recognizing that the issue squarely to be
passed upon was whether or not the possession of all the
qualifications were indeed needed to be shown apart from non-
disqualification, Justice Regala held affirmatively for the Court,
reasoning out thus: .
It is to be noted that the petitioner has anchored
her claim for citizenship on the basis of the
decision laid down in the case of Leonard v. Grant,
5 Swy. 603, 5 F 11, where the Circuit Court of
Oregon held that it was only necessary that the
woman "should be a person of the class or race
permitted to be naturalized by existing laws, and
that in respect of the qualifications arising out of
her conduct or opinions, being the wife of a citizen,
she is to be regarded as qualified for citizenship,
and therefore considered a citizen." (In
explanation of its conclusion, the Court said: "If,
whenever during the life of the woman or
afterwards, the question of her citizenship arises in
a legal proceeding, the party asserting her
citizenship by reason of her marriage with a citizen
must not only prove such marriage, but also that
the woman then possessed all the further
qualifications necessary to her becoming
naturalized under existing laws, the statute will be
practically nugatory, if not a delusion and a share.
The proof of the facts may have existed at the time
of the marriage, but years after, when a
controversy arises upon the subject, it may be lost
or difficult to find.")
In other words, all that she was required to prove
was that she was a free white woman or a woman
of African descent or nativity, in order to be
deemed an American citizen, because, with
respect to the rest of the qualifications on
residence, moral character, etc., she was
presumed to be qualified.
Like the law in the United States, our former
Naturalization Law (Act No. 2927, as amended by
Act No. 3448) specified the classes of persons
who alone might become citizens of the
Philippines, even as it provided who were
disqualified. Thus, the pertinent provisions of that
law provided:
Section 1. Who may become
Philippine citizens — Philippine
citizenship may be acquired by (a)
natives of the Philippines who are
not citizens thereof under the Jones
Law; (b) natives of the Insular
possessions of the United States; (c)
citizens of the United States, or
foreigners who under the laws of the
United States may become citizens
of said country if residing therein.
Section 2. Who are disqualified. —
The following cannot be naturalized
as Philippine citizens: (a) Persons
opposed to organized government or
affiliated with any association or
group of persons who uphold and
teach doctrines opposing all
organized government; (b) persons
defending or teaching the necessity
or propriety of violence, personal
assault or assassination for the
success and predominance of their
ideas; (c) polygamists or believers in
the practice of polygamy; (d) persons
convicted of crimes involving moral
turpitude; (e) persons suffering from
mental alienation or incurable
contagious diseases; (f) citizens or
subjects of nations with whom the
United States and the Philippines are
at war, during the period of such war.
Section 3. Qualifications. — The
persons comprised in subsection (a)
of section one of this Act, in order to
be able to acquire Philippine
citizenship, must be not less than
twenty-one years of age on the day
of the hearing of their petition.
The persons comprised in
subsections (b) and (c) of said
section one shall, in addition to being
not less than twenty-one years of
age on the day of the hearing of the
petition, have all and each of the
following qualifications:
First. Residence in the Philippine
Islands for a continuous period of not
less than five years, except as
provided in the next following
section;
 Second. To have conducted
themselves in a proper and
irreproachable manner during the
entire period of their residence in the
Philippine Islands, in their relation
with the constituted government as
well as with the community in which
they are living;
Third. To hold in the Philippine
Islands real estate worth not less
than one thousand pesos, Philippine
currency, or have some known trade
or profession; and
Fourth. To speak and write English,
Spanish, or some native tongue.
In case the petitioner is a foreign
subject, he shall, besides, declare in
writing and under oath his intention
of renouncing absolutely and
perpetually all faith and allegiance to
the foreign authority, state or
sovereignty of which he was a
native, citizen or subject.
Applying the interpretation given by Leonard v.
Grant supra, to our law as it then stood, alien
women married to citizens of the Philippines must,
in order to be deemed citizens of the Philippines,
be either (1) natives of the Philippines who were
not citizens thereof under the Jones Law, or (2)
natives of other Insular possessions of the United
States, or (3) citizens of the United States or
foreigners who under the laws of the United States
might become citizens of that country if residing
therein. With respect to the qualifications set forth
in Section 3 of the former law, they were deemed
to have the same for all intents and purposes.
But, with the approval of the Revised
Naturalization Law (Commonwealth Act No. 473)
on June 17, 1939, Congress has since discarded
class or racial consideration from the qualifications
of applicants for naturalization (according to its
proponent, the purpose in eliminating this
consideration was, first, to remove the features of
the existing naturalization act which discriminated
in favor of the Caucasians and against Asiatics
who are our neighbors, and are related to us by
racial affinity and, second, to foster amity with all
nations [Sinco, Phil. Political Law 502 — 11 ed.]),
even as it retained in Section 15 the phrase in
question. The result is that the phrase "who might
herself be lawfully naturalized" must be
understood in the context in which it is now found,
in a setting so different from that in which it was
found by the Court in Leonard v. Grant.
The only logical deduction from the elimination of
class or racial consideration is that, as the Solicitor
General points out, the phrase "who might herself
be lawfully naturalized" must now be understood
as referring to those who under Section 2 of the
law are qualified to become citizens of the
Philippines.
There is simply no support for the view that the
phrase "who might herself be lawfully naturalized"
must now be understood as requiring merely that
the alien woman must not belong to the class of
disqualified persons under Section 4 of the
Revised Naturalization Law. Such a proposition
misreads the ruling laid down in Leonard v. Grant.
A person who is not disqualified is not necessarily
qualified to become a citizen of the Philippines,
because the law treats "qualifications" and
"disqualifications" in separate sections. And then it
must not be lost sight of that even under the
interpretation given to the former law, it was to be
understood that the alien woman was not
disqualified under Section 2 of that law. Leonard v.
Grant did not rule that it was enough if the alien
woman does not belong to the class of disqualified
 persons in order that she may be deemed to follow
the citizenship of her husband: What that case
held was that the phrase "who might herself be
lawfully naturalized, merely means that she
belongs to the class or race of persons qualified to
become citizens by naturalization — the
assumption being always that she is not otherwise
disqualified.
We therefore hold that under the first paragraph of
Section 15 of the Naturalization Law, an alien
woman, who is married to a citizen of the
Philippines, acquires the citizenship of her
husband only if she has all the qualifications and
none of the disqualifications provided by law.
Since there is no proof in this case that petitioner
has all the qualifications and is not in any way
disqualified, her marriage to a Filipino citizen does
not automatically make her a Filipino citizen. Her
affidavit to the effect that she is not in any way
disqualified to become a citizen of this country was
correctly disregarded by the trial court, the same
being self-serving.
Naturally, almost a month later in Sun Peck Yong v.
Commissioner of Immigration, G.R. No. L-20784, December 27,
1963, 9 SCRA 875, wherein the Secretary of Foreign Affairs
reversed a previous resolution of the preceding administration to
allow Sun Peck Yong and her minor son to await the taking of
the oath of Filipino citizenship of her husband two years after
the decision granting him nationalization and required her to
leave and this order was contested in court, Justice Barrera
held:
In the case of Lo San Tuang v. Commissioner of
Immigration (G.R. No. L-18775, promulgated
November 30, 1963; Kua Suy vs. Commissioner
of Immigration, L-13790, promulgated October 31,
1963), we held that the fact that the husband
became a naturalized citizen does not
automatically make the wife a citizen of the
Philippines. It must also be shown that she herself
possesses all the qualifications, and none of the
disqualifications, to become a citizen. In this case,
there is no allegation, much less showing, that
petitioner-wife is qualified to become a Filipino
citizen herself. Furthermore, the fact that a
decision was favorably made on the naturalization
petition of her husband is no assurance that he
(the husband) would become a citizen, as to make
a basis for the extension of her temporary stay.
On the same day, in Tong Siok Sy v. Vivo, G.R. No. L-21136,
December 27, 1963, 9 SCRA 876, Justice Barrera reiterated the
same ruling and citing particularly Lo San Tuang and Kua Suy,
held that the marriage of Tong Siok Sy to a Filipino on
November 12, 1960 at Taichung, Taiwan and her taking oath of
Filipino citizenship before the Philippine Vice-Consul at Taipeh,
Taiwan on January 6, 1961 did not make her a Filipino citizen,
since she came here only in 1961 and obviously, she had not
had the necessary ten-year residence in the Philippines
required by the law.
Such then was the status of the jurisprudential law on the matter
under discussion when Justice Makalintal sought a
reexamination thereof in Choy King Tee v. Galang, G.R. No. L-
18351, March 26, 1965, 13 SCRA 402. Choy King Tee's
husband was granted Philippine citizenship on January 13,
1959 and took the oath on January 31 of the same year. Choy
King Tee first came to the Philippines in 1955 and kept
commuting between Manila and Hongkong since then, her last
visa before the case being due to expire on February 14, 1961.
On January 27, 1961, her husband asked the Commissioner of
Immigration to cancel her alien certificate of registration, as well
as their child's, for the reason that they were Filipinos, and when
the request was denied as to the wife, a mandamus was sought,
which the trial court granted. Discussing anew the issue of the
need for qualifications, Justice Makalintal not only reiterated the
arguments of Justice Regala in Lo San Tuang but added further
that the ruling is believed to be in line with the national policy of
selective admission to Philippine citizenship.7
No wonder, upon this authority, in Austria v. Conchu, G.R. No.
L-20716, June 22, 1965, 14 SCRA 336, Justice J.P. Bengzon
readily reversed the decision of the lower court granting the
writs of mandamus and prohibition against the Commissioner of
Immigration, considering that Austria's wife, while admitting she
did not possess all the qualifications for naturalization, had
submitted only an affidavit that she had none of the
disqualifications therefor. So also did Justice Dizon similarly
hold eight days later in Brito v. Commissioner, G.R. No. L-
16829, June 30, 1965, 14 SCRA 539.
Then came the second Ly Giok Ha case 8 wherein Justice J. B.
L. Reyes took occasion to expand on the reasoning of Choy
King Tee by illustrating with examples "the danger of relying
exclusively on the absence of disqualifications, without taking
into account the other affirmative requirements of the law." 9
Lastly, in Go Im Ty v. Republic, G.R. No. L-17919, decided on
July 30, 1966, 10 Justice Zaldivar held for the Court that an alien
woman who is widowed during the dependency of the
naturalization proceedings of her husband, in order that she
may be allowed to take the oath as Filipino, must, aside from
proving compliance with the requirements of Republic Act 530,
show that she possesses all the qualifications and does not
suffer from any of the disqualifications under the Naturalization
Law, citing in the process the decision to such effect discussed
above, 11even as he impliedly reversed pro tanto the ruling
in Tan Lin v. Republic, G.R. No. L-13786, May 31, 1961, 2
SCRA 383.
Accordingly, in Burca, Justice Sanchez premised his opinion on
the assumption that the point now under discussion is settled
law.
In the case now at bar, the Court is again called upon to rule on
the same issue. Under Section 15 of the Naturalization Law,
Commonwealth Act 473, providing that:
SEC. 15. Effect of the naturalization on wife and
children. — Any woman, who is now or may
hereafter be married to a citizen of the Philippines,
and who might herself be lawfully naturalized shall
be deemed a citizen of the Philippines.
Minor children of persons naturalized under this
law who have been born in the Philippines shall be
considered citizens thereof.
A foreign-born minor child, if dwelling in the
Philippines at the time of the naturalization of the
parent, shall automatically become a Philippine
citizen, and a foreign-born child, who is not in the
Philippines at the time the parent is naturalized,
shall be deemed a Philippine citizen only during
his minority, unless he begins to reside
permanently in the Philippines when still a minor,
in which case, he will continue to be a Philippine
citizen even after becoming of age.
A child born outside of the Philippines after the
naturalization of his parent, shall be considered a
Philippine citizen unless within one year after
reaching the age of majority he fails to register
himself as a Philippine citizen at the American
Consulate of the country where he resides, and to
take the necessary oath of allegiance.
is it necessary, in order that an alien woman who marries a
Filipino or who is married to a man who subsequently becomes
a Filipino, may become a Filipino citizen herself, that, aside from
not suffering from any of the disqualifications enumerated in the
law, she must also possess all the qualifications required by
said law? if nothing but the unbroken line from Lee Suan Ay to
Go Im Ty, as recounted above, were to be considered, it is
obvious that an affirmative answer to the question would be
inevitable, specially, if it is noted that the present case was
actually submitted for decision on January 21, 1964 yet, shortly
after Lo San Tuang, Tong Siok Sy and Sun Peck Yong,
all supra, and even before Choy King Tee, supra, were decided.
There are other circumstances, however, which make it
desirable, if not necessary, that the Court take up the matter
anew. There has been a substantial change in the membership
of the Court since Go Im Ty, and of those who were in the Court
already when Burca was decided, two members, Justice
Makalintal and Castro concurred only in the result, precisely,
according to them, because (they wanted to leave the point now
under discussion open in so far as they are concerned. 12 Truth
to tell, the views and arguments discussed at length with
copious relevant authorities, in the motion for reconsideration as
well as in the memorandum of the amici curae 13 in the Burca
case cannot just be taken lightly and summarily ignored, since
they project in the most forceful manner, not only the legal and
logical angles of the issue, but also the imperative practical
aspects thereof in the light of the actual situation of the
thousands of alien wives of Filipinos who have so long, even
decades, considered themselves as Filipinas and have always
lived and acted as such, officially or otherwise, relying on the
long standing continuous recognition of their status as such by
the administrative authorities in charge of the matter, as well as
by the courts. Under these circumstances, and if only to afford
the Court an opportunity to consider the views of the five
justices who took no part in Go Im Ty (including the writer of this
opinion), the Court decided to further reexamine the matter.
After all, the ruling first laid in Lee Suan Ay, and later in Lo San
Tuang, Choy King Tee stand the second (1966) Ly Giok Ha, did
not categorically repudiate the opinions of the Secretary of
Justice relied upon by the first (1959) Ly Giok Ha. Besides,
some points brought to light during the deliberations in this case
would seem to indicate that the premises of the later cases can
still bear further consideration.
Whether We like it or not, it is undeniably factual that the legal
provision We are construing, Section 15, aforequoted, of the
Naturalization Law has been taken directly, copied and adopted
from its American counterpart. To be more accurate, said
provision is nothing less than a reenactment of the American
provision. A brief review of its history proves this beyond per
adventure of doubt.
The first Naturalization Law of the Philippines approved by the
Philippine Legislature under American sovereignty was that of
March 26, 1920, Act No. 2927. Before then, as a consequence
of the Treaty of Paris, our citizenship laws were found only in
the Organic Laws, the Philippine Bill of 1902, the Act of the
United States Congress of March 23, 1912 and later the Jones
Law of 1916. In fact, Act No. 2927 was enacted pursuant to
express authority granted by the Jones Law. For obvious
reasons, the Philippines gained autonomy on the subjects of
citizenship and immigration only after the effectivity of the
Philippine Independence Act. This made it practically impossible
for our laws on said subject to have any perspective or
orientation of our own; everything was American.
The Philippine Bill of 1902 provided pertinently: .
SECTION 4. That all inhabitants of the Philippine
Islands continuing to reside herein who were
Spanish subjects on the eleventh day of April,
eighteen-hundred and ninety-nine, and then
resided in said Islands, and their children born
subsequent thereto, shall be deemed and held to
be citizens of the Philippine Islands and as such
entitled to the protection of the United States,
except such as shall have elected to preserve their
allegiance to the Crown of Spain in accordance
with the provisions of the treaty of peace between
the United States and Spain signed at Paris
December tenth, eighteen hundred and ninety-
eight.
This Section 4 of the Philippine Bill of 1902 was amended by
Act of Congress of March 23, 1912, by adding a provision as
follows:
Provided, That the Philippine Legislature is hereby
authorized to provide by law for the acquisition of
Philippine citizenship by those natives of the
Philippine Islands who do not come within the
foregoing provisions, the natives of other insular
possessions of the United States, and such other
persons residing in the Philippine Islands who
would become citizens of the United States, under
the laws of the United States, if residing therein.
The Jones Law reenacted these provisions substantially: .
SECTION 2. That all inhabitants of the Philippine
Islands who were Spanish subjects on the
eleventh day of April, eighteen hundred and
ninety-nine, and then resided in said islands, and
their children born subsequent thereto, shall be
deemed and held to be citizens of the Philippine
Islands, except such as shall have elected to
preserve their allegiance to the Crown of Spain in
accordance with the provisions of the treaty of
 peace between the United States and Spain,
signed at Paris December tenth, eighteen hundred
and ninety-eight and except such others as have
since become citizens of some other country:
Provided, That the Philippine Legislature, herein
provided for, is hereby authorized to provide by
law for the acquisition of Philippine citizenship by
those natives of the Philippine Islands who do not
come within the foregoing provisions, the natives
of the insular possessions of the United States,
and such other persons residing in the Philippine
Islands who are citizens of the United States
under the laws of the United States if residing
therein.
For aught that appears, there was nothing in any of the said
organic laws regarding the effect of marriage to a Filipino upon
the nationality of an alien woman, albeit under the Spanish Civil
Code provisions on citizenship, Articles 17 to 27, which were,
however, abrogated upon the change of sovereignty, it was
unquestionable that the citizenship of the wife always followed
that of the husband. Not even Act 2927 contained any provision
regarding the effect of naturalization of an alien, upon the
citizenship of his alien wife, nor of the marriage of such alien
woman with a native born Filipino or one who had become a
Filipino before the marriage, although Section 13 thereof
provided thus: .
SEC. 13. Right of widow and children of
petitioners who have died. — In case a petitioner
should die before the final decision has been
rendered, his widow and minor children may
continue the proceedings. The decision rendered
in the case shall, so far as the widow and minor
children are concerned, produce the same legal
effect as if it had been rendered during the life of
the petitioner.
It was not until November 30, 1928, upon the approval of Act
3448, amending Act 2977, that the following provisions were
added to the above Section 13:
SECTION 1. The following new sections are
hereby inserted between sections thirteen and
fourteen of Act Numbered Twenty-nine hundred
and Twenty-seven:
SEC. 13(a). Any woman who is now
or may hereafter be married to a
citizen of the Philippine Islands and
who might herself be lawfully
naturalized, shall be deemed a
citizen of the Philippine Islands.
SEC. 13(b). Children of persons who
have been duly naturalized under
this law, being under the age of
twenty-one years at the time of the
naturalization of their parents, shall,
if dwelling in the Philippine Islands,
be considered citizens thereof.
SEC. 13(c). Children of persons
naturalized under this law who have
been born in the Philippine Islands
after the naturalization of their
parents shall be considered citizens
thereof.
When Commonwealth Act 473, the current naturalization law,
was enacted on June 17, 1939, the above Section 13 became
its Section 15 which has already been quoted earlier in this
decision. As can be seen, Section 13 (a) abovequoted was re-
enacted practically word for word in the first paragraph of this
Section 15 except for the change of Philippine Islands to
Philippines. And it could not have been on any other basis than
this legislative history of our naturalization law that each and
everyone of the decisions of this Court from the first Ly Giok Ha
to Go Im Ty, discussed above, were rendered.
As stated earlier, in the opinion of Chief Justice Concepcion in
the first Ly Giok Ha, it was quite clear that for an alien woman
who marries a Filipino to become herself a Filipino citizen, there
is no need for any naturalization proceeding because she
becomes a Filipina ipso facto from the time of such marriage,
provided she does not suffer any of the disqualifications
enumerated in Section 4 of Commonwealth Act 473, with no
mention being made of whether or not the qualifications
enumerated in Section 2 thereof need be shown. It was only
in Lee Suan Ay in 1959 that the possession of qualifications
were specifically required, but it was not until 1963, in Lo San
Tuang, that Justice Regala reasoned out why the possession of
the qualifications provided by the law should also be shown to
be possessed by the alien wife of a Filipino, for her to become a
Filipina by marriage.
As may be recalled, the basic argument advanced by Justice
Regala was briefly as follows: That "like the law in the United
States, our Naturalization Law specified the classes of persons
who alone might become citizens, even as it provided who were
disqualified," and inasmuch as Commonwealth Act 473, our
Naturalization Law since 1939 did not reenact the section
providing who might become citizens, allegedly in order to
remove racial discrimination in favor of Caucasians and against
Asiatics, "the only logical deduction ... is that the phrase "who
might herself be lawfully naturalized" must now be understood
as referring to those who under Section 2 of the law are
qualified to become citizens of the Philippines" and "there is
simply no support for the view that the phrase "who might
herself be lawfully naturalized" must now be understood as
requiring merely that the alien woman must not belong to the
class of disqualified persons under Section 4 of the Revised
Naturalization Law." 14
A similar line of reasoning was followed in Choy King Tee,
which for ready reference may be qouted:
The question has been settled by the uniform
ruling of this Court in a number of cases. The alien
wife of a Filipino citizen must first prove that she
has all the qualifications required by Section 2 and
none of the disqualifications enumerated in
Section 4 of the Naturalization Law before she
may be deemed a Philippine citizen (Lao Chay v.
Galang, L-190977, Oct. 30, 1964, citing Lo San
Tuang v. Galang, L-18775, Nov. 30, 1963; Sun
Peck Yong v. Commissioner of Immigration, L-
20784, December 27, 1963; Tong Siok Sy v. Vivo,
L-21136, December 27, 1963). The writer of this
opinion has submitted the question anew to the
court for a possible reexamination of the said
ruling in the light of the interpretation of a similar
law in the United States after which Section 15 of
our Naturalization Law was patterned. That law
was section 2 of the Act of February 10, 1855
(Section 1994 of the Revised Statutes of the U.S.).
The local law, Act No. 3448, was passed on
November 30, 1928 as an amendment to the
former Philippine Naturalization Law, Act No.
2927, which was approved on March 26, 1920.
Under this Naturalization Law, acquisition of
Philippine citizenship was limited to three classes
of persons, (a) Natives of the Philippines who
were not citizens thereof; (b) natives of the other
insular possessions of the United States; and (c)
citizens of the United States, or foreigners who,
under the laws of the United States, may become
citizens of the latter country if residing therein. The
reference in subdivision (c) to foreigners who may
become American Citizens is restrictive in
character, for only persons of certain specified
races were qualified thereunder. In other words, in
so far as racial restrictions were concerned there
was at the time a similarity between the
naturalization laws of the two countries and hence
there was reason to accord here persuasive force
to the interpretation given in the United States to
the statutory provision concerning the citizenship
of alien women marrying American citizens.
This Court, however, believes that such reason
has ceased to exist since the enactment of the
Revised Naturalization Law, (Commonwealth Act
No. 473) on June 17, 1939. The racial restrictions
have been eliminated in this Act, but the provision
found in Act No. 3448 has been maintained. It is
logical to presume that when Congress chose to
retain the said provision — that to be deemed a
 Philippine citizen upon marriage the alien wife
must be one "who might herself be lawfully
naturalized," the reference is no longer to the class
or race to which the woman belongs, for class or
race has become immaterial, but to the
qualifications and disqualifications for
naturalization as enumerated in Sections 2 and 4
of the statute. Otherwise the requirement that the
woman "might herself be lawfully naturalized"
would be meaningless surplusage, contrary to
settled norms of statutory construction.
The rule laid down by this Court in this and in
other cases heretofore decided is believed to be in
line with the national policy of selective admission
to Philippine citizenship, which after all is a
privilege granted only to those who are found
worthy thereof, and not indiscriminately to
anybody at all on the basis alone of marriage to a
man who is a citizen of the Philippines,
irrespective of moral character, ideological beliefs,
and identification with Filipino ideals, customs and
traditions.
Appellee here having failed to prove that she has
all the qualifications for naturalization, even,
indeed, that she has none of the disqualifications,
she is not entitled to recognition as a Philippine
citizen.
In the second Ly Giok Ha, the Court further fortified the
arguments in favor of the same conclusion thus:
On cross-examination, she (Ly Giok Ha) failed to
establish that: (1) she has been residing in the
Philippines for a continuous period of at least (10)
years (p. 27, t.s.n., id.); (2) she has a lucrative
trade, profession, or lawful occupation (p. 13,
t.s.n., id.); and (3) she can speak and write
English, or any of the principal Philippine
languages (pp. 12, 13, t.s.n., id.).
While the appellant Immigration Commissioner
contends that the words emphasized indicate that
the present Naturalization Law requires that an
alien woman who marries a Filipino husband must
possess the qualifications prescribed by section 2
in addition to not being disqualified under any of
the eight ("a" to "h") subheadings of section 4 of
Commonwealth Act No. 473, in order to claim our
citizenship by marriage, both the appellee and the
court below (in its second decision) sustain the
view that all that the law demands is that the
woman be not disqualified under section 4.
At the time the present case was remanded to the
court of origin (1960) the question at issue could
be regarded as not conclusively settled, there
being only the concise pronouncement in Lee
Suan Ay, et al. v. Galang, G. R. No. L-11855, Dec.
23, 1959, to the effect that:
The marriage of a Filipino citizen to
an alien does not automatically
confer Philippine citizenship upon
the latter. She must possess the
qualifications required by law to
become a Filipino citizen by
naturalization.
Since that time, however, a long line of decisions
of this Court has firmly established the rule that
the requirement of section 15 of Commonwealth
Act 473 (the Naturalization Act), that an alien
woman married to a citizen should be one who
"might herself be lawfully naturalized," means not
only woman free from the disqualifications
enumerated in section 4 of the Act but also one
who possesses the qualifications prescribed by
section 2 of Commonwealth Act 473 (San Tuan v.
Galang, L-18775, Nov. 30, 1963; Sun Peck Yong
v. Com. of Immigration, L-20784, Dee. 27, 1963;
Tong Siok Sy v. Vivo, L-21136, Dec. 27, 1963;
Austria v. Conchu, L-20716, June 22, 1965; Choy
King Tee v. Galang, L-18351, March 26, 1965;
Brito v. Com. of Immigration, L-16829, June 30,
1965).
Reflection will reveal why this must be so. The
qualifications prescribed under section 2 of the
Naturalization Act, and the disqualifications
enumerated in its section 4 are not mutually
exclusive; and if all that were to be required is that
the wife of a Filipino be not disqualified under
section 4, the result might well be that citizenship
would be conferred upon persons in violation of
the policy of the statute. For example, section 4
disqualifies only —
(c) Polygamists or believers in the practice of
polygamy; and
(d) Persons convicted of crimes involving moral
turpitude,
so that a blackmailer, or a maintainer of gambling
or bawdy houses, not previously convicted by a
competent court would not be thereby disqualified;
still, it is certain that the law did not intend such
person to be admitted as a citizen in view of the
requirement of section 2 that an applicant for
citizenship "must be of good moral character."
Similarly, the citizen's wife might be a convinced
believer in racial supremacy, in government by
certain selected classes, in the right to vote
exclusively by certain "herrenvolk", and thus
disbelieve in the principles underlying the
Philippine Constitution; yet she would not be
disqualified under section 4, as long as she is not
"opposed to organized government," nor affiliated
to groups "upholding or teaching doctrines
opposing all organized governments", nor
"defending or teaching the necessity or propriety
of violence, personal assault or assassination for
the success or predominance of their ideas." Et
sic de caeteris.
The foregoing instances should suffice to illustrate
the danger of relying exclusively on the absence of
disqualifications, without taking into account the
other affirmative requirements of the law, which, in
the case at bar, the appellee Ly Giok Ha
admittedly does not possess.
As to the argument that the phrase "might herself
be lawfully naturalized" was derived from the U.S.
Revised Statutes (section 1994) and should be
given the same territorial and racial significance
given to it by American courts, this Court has
rejected the same in Lon San Tuang v. Galang, L-
18775, November 30, 1963; and in Choy King Tee
v. Galang, L-18351, March 26, 1965.
It is difficult to minimize the persuasive force of the foregoing
rationalizations, but a closer study thereof cannot bat reveal
certain relevant considerations which adversely affect the
premises on which they are predicated, thus rendering the
conclusions arrived thereby not entirely unassailable.
1. The main proposition, for instance, that in eliminating Section
1 of Act 2927 providing who are eligible for Philippine
citizenship, the purpose of Commonwealth Act 473, the Revised
Naturalization Law, was to remove the racial requirements for
naturalization, thereby opening the door of Filipino nationality to
Asiatics instead of allowing the admission thereto of Caucasians
only, suffers from lack of exact accuracy. It is important to note,
to start with, that Commonwealth Act 473 did away with the
whole Section 1 of Act 2927 which reads, thus:
SECTION 1. Who may become Philippine citizens.
— Philippine citizenship may be acquired by: (a)
natives of the Philippines who are not citizens
thereof under the Jones Law; (b) natives of the
other Insular possessions of the United States; (c)
citizens of the United States, or foreigners who
under the laws of the United States may become
citizens of said country if residing therein.
and not only subdivision (c) thereof. Nowhere in this whole
provision was there any mention of race or color of the persons
who were then eligible for Philippine citizenship. What is more
evident from said provision is that it reflected the inevitable
subordination of our legislation during the pre-Commonwealth
American regime to the understandable stations flowing from
our staffs as a territory of the United States by virtue of the
Treaty of Paris. In fact, Section 1 of Act 2927 was precisely
approved pursuant to express authority without which it could
not have been done, granted by an amendment to Section 4 of
the Philippine Bill of 1902 introduced by the Act of the United
States Congress of March 23, 1912 and which was reenacted
as part of the Jones Law of 1916, the pertinent provisions of
which have already been footed earlier. In truth, therefore, it
was because of the establishment of the Philippine
Commonwealth and in the exercise of our legislative autonomy
on citizenship matters under the Philippine Independence Act
that Section 1 of Act 2927 was eliminated, 15 and not purposely
to eliminate any racial discrimination contained in our
Naturalization Law. The Philippine Legislature naturally wished
to free our Naturalization Law from the impositions of American
legislation. In other words, the fact that such discrimination was
removed was one of the effects rather than the intended
purpose of the amendment.
2. Again, the statement in Choy King Tee to the effect that "the
reference in subdivision (c) (of Section 1 of Act 2927) to
foreigners who may become American citizens is restrictive in
character, for only persons of certain specified races were
qualified thereunder" fails to consider the exact import of the
said subdivision. Explicitly, the thrust of the said subdivision was
to confine the grant under it of Philippine citizenship only to the
three classes of persons therein mentioned, the third of which
were citizens of the United States and, corollarily, persons who
could be American citizens under her laws. The words used in
the provision do not convey any idea of favoring aliens of any
particular race or color and of excluding others, but more
accurately, they refer to all the disqualifications of foreigners for
American citizenship under the laws of the United States. The
fact is that even as of 1906, or long before 1920, when our Act
2927 became a law, the naturalization, laws of the United States
already provided for the following disqualifications in the Act of
the Congress of June 29, 1906:
SEC. 7. That no person who disbelieves in or who
is opposed to organized government, or who is a
member of or affiliated with any organization
entertaining and teaching such disbelief in or
opposition to organized government, or who
advocates or teaches the duty, necessity, or
propriety of the unlawful assaulting or killing of any
officer or officers, either of specific individuals or of
officers generally, of the Government of the United
States, or of any other organized government,
because of his or their official character, or who is
a polygamist, shall be naturalized or be made a
citizen of the United States.
and all these disqualified persons were, therefore, ineligible for
Philippine citizenship under Section 1 of Act 2927 even if they
happened to be Caucasians. More importantly, as a matter of
fact, said American law, which was the first "Act to Establish a
Bureau of Immigration and Naturalization and to provide for a
Uniform Rule for Naturalization of Aliens throughout the United
States" contained no racial disqualification requirement, except
as to Chinese, the Act of May 6, 1882 not being among the
expressly repealed by this law, hence it is clear that when Act
2927 was enacted, subdivision (e) of its Section 1 could not
have had any connotation of racial exclusion necessarily, even if
it were traced back to its origin in the Act of the United States
Congress of 1912 already mentioned above. 16 Thus, it would
seem that the rationalization in the qouted decisions predicated
on the theory that the elimination of Section 1 of Act 2927 by
Commonwealth Act 473 was purposely for no other end than
the abolition of racial discrimination in our naturalization law has
no clear factual basis. 17
3. In view of these considerations, there appears to be no
cogent reason why the construction adopted in the opinions of
the Secretary of Justice referred to in the first Ly Giok Ha
decision of the Chief Justice should not prevail. It is beyond
dispute that the first paragraph of Section 15 of Commonwealth
Act 473 is a reenactment of Section 13(a) of Act 2927, as
amended by Act 3448, and that the latter is nothing but an exact
copy, deliberately made, of Section 1994 of the Raised Statutes
of the United States as it stood before its repeal in
1922. 18 Before such repeal, the phrase "who might herself be
lawfully naturalized" found in said Section 15 had a definite
unmistakable construction uniformly foIlowed in all courts of the
United States that had occasion to apply the same and which,
therefore, must be considered, as if it were written in the statute
itself. It is almost trite to say that when our legislators enacted
said section, they knew of its unvarying construction in the
United States and that, therefore, in adopting verbatim the
American statute, they have in effect incorporated into the
provision, as thus enacted, the construction given to it by the
American courts as well as the Attorney General of the United
States and all administrative authorities, charged with the
implementation of the naturalization and immigration laws of
that country. (Lo Cham v. Ocampo, 77 Phil., 635 [1946];
Laxamana v. Baltazar, 92 Phil., 32 [1952]; Hartley v.
Commissioner, 295 U.S. 216, 79 L. ed. 1399, 55 S Ct. 756
[19353; Helvering v. Winmill, 305 U.S. 79, 83 L ed. 52, 59 S Ct.
45 [1938]; Helvering v. R. J. Reynolds Tobacco Co., 306 U.S.
110, 83 L ed. 536, 59 S Ct. 423 [1939]. [p. 32, Memo of Amicus
Curiae]).
A fairly comprehensive summary of the said construction by the
American courts and administrative authorities is contained in
United States of America ex rel. Dora Sejnensky v. Robert E.
Tod, Commissioner of Immigration, Appt., 295 Fed. 523,
decided November 14, 1922, 26 A. L. R. 1316 as follows:
Section 1994 of the Revised Statutes (Comp. Stat.
3948, 2 Fed. Sta. Anno. 2d ed. p. 117) provides as
follows: "Any woman who is now or may hereafter
be married to a citizen of the United States, and
who might herself be lawfully naturalized, shall be
deemed a citizen."
Section 1944 of the Revised Stat. is said to
originate in the Act of Congress of February 10,
1855 (10 Stat. at L. 604, chap. 71), which in its
second section provided "that any woman, who
might lawfully be naturalized under the existing
laws, married, or who shall be married to a citizen
of the United States, shall be deemed and taken to
be a citizen."
And the American Statute of 1855 is substantially
a copy of the earlier British Statute 7 & 8 Vict.
chap. 66, s 16, 1844, which provided that "any
woman married, or who shall be married, to a
natural-born subject or person naturalized, shall
be deemed and taken to be herself naturalized,
and have all the rights and privileges of a natural
born subject."
The Act of Congress of September 22, 1922 (42
Stat. at L. 1021, chap. 411, Comp. Stat. 4358b,
Fed. Stat. Anno. Supp. 1922, p. 255), being "An
Act Relative to the Naturalization and Citizenship
of Married Women," in 2, provides "that any
woman who marries a citizen of the United States
after the passage of this Act, ... shall not become a
citizen of the United States by reason of such
marriage ..."
Section 6 of the act also provides "that 1994 of the
Revised Statutes ... are repealed."
Section 6 also provides that `such repeal shall not
terminate citizenship acquired or retained under
either of such sections, ..." meaning 2 and 6. So
that this Act of September 22, 1922, has no
application to the facts of the present case, as the
marriage of the relator took place prior to its
passage. This case, therefore, depends upon the
meaning to be attached to 1994 of the Revised
Statutes.
In 1868 the Supreme Court, in Kelly v. Owen, 7
Wall. 496, 498, 19 L. ed. 283, 284, construed this
provision as found in the Act of 1855 as follows:
"The term, "who might lawfully be naturalized
under the existing laws," only limits the application
of the law to free white women. The previous
Naturalization Act, existing at the time, only
required that the person applying for its benefits
should be "a free white person," and not an alien
enemy."
This construction limited the effect of the statute to
those aliens who belonged to the class or race
which might be lawfully naturalized, and did not
refer to any of the other provisions of the
naturalization laws as to residence or moral
character, or to any of the provisions of the
immigration laws relating to the exclusion or
deportation of aliens.
In 1880, in Leonard v. Grant (C. C.) 5 Fed. 11,
District Judge Deady also construed the Act of
1855, declaring that "any woman who is now or
may hereafter be married to a citizen of the United
States, and might herself be lawfully naturalized,
shall be deemed a citizen." He held that "upon the
authorities, and the reason, if not the necessity, of
the case," the statute must be construed as in
effect declaring that an alien woman, who is of the
class or race that may be lawfully naturalized
under the existing laws, and who marries a citizen
of the United States, is such a citizen also, and it
was not necessary that it should appear
affirmatively that she possessed the other
qualifications at the time of her marriage to entitle
her to naturalization.
In 1882, the Act of 1855 came before Mr. Justice
Harlan, sitting in the circuit court, in United States
v. Kellar, 13 Fed. 82. An alien woman, a subject of
Prussia came to the United States and married
here a naturalized citizen. Mr. Justice Harlan, with
the concurrence of Judge Treat, held that upon
her marriage she became ipso facto a citizen of
the United States as fully as if she had complied
with all of the provisions of the statutes upon the
subject of naturalization. He added: "There can be
no doubt of this, in view of the decision of the
Supreme Court of the United, States in Kelly v.
Owen, 7 Wall. 496, 19 L. ed. 283." The alien
"belonged to the class of persons" who might be
lawfully naturalized.
In 1904, in Hopkins v. Fachant, 65 C. C. A. 1, 130
Fed. 839, an alien woman came to the United
States from France and entered the country
contrary to the immigration laws. The immigration
authorities took her into custody at the port of New
York, with the view of deporting her. She applied
for her release under a writ of habeas corpus, and
pending the disposition of the matter she married
a naturalized American citizen. The circuit court of
appeals for the ninth Circuit held, affirming the
court below, that she was entitled to be discharged
from custody. The court declared: "The rule is well
settled that her marriage to a naturalized citizen of
the United States entitled her to be discharged.
The status of the wife follows that of her
husband, ... and by virtue of her marriage her
husband's domicil became her domicil." .
In 1908, the circuit court for the district of Rhode
Island in Re Rustigian, 165. Fed. 980, had before
it the application of a husband for his final decree
of naturalization. It appeared that at that time his
wife was held by the immigration authorities at
New York on the ground that she was afflicted with
a dangerous and contagious disease. Counsel on
both sides agreed that the effect of the husband's
naturalization would be to confer citizenship upon
the wife. In view of that contingency District Judge
Brown declined to pass upon the husband's
application for naturalization, and thought it best to
wait until it was determined whether the wife's
disease was curable. He placed his failure to act
on the express ground that the effect of
naturalizing the husband might naturalize her. At
the same time he express his opinion that the
husband's naturalization would not effect her
naturalization, as she was not one who could
become lawfully naturalized. "Her own capacity (to
become naturalized)," the court stated "is a
prerequisite to her attaining citizenship. If herself
lacking in that capacity, the married status cannot
confer it upon her." Nothing, however, was actually
decided in that case, and the views expressed
therein are really nothing more than mere dicta.
But, if they can be regarded as something more
than that, we find ourselves, with all due respect
for the learned judge, unable to accept them.
In 1909, in United States ex rel. Nicola v. Williams,
173 Fed. 626, District Judge Learned Hand held
that an alien woman, a subject of the Turkish
Empire, who married an American citizen while
visiting Turkey, and then came to the United
States, could not be excluded, although she had,
at the time of her entry, a disease which under the
immigration laws would have been sufficient
ground for her exclusion, if she bad not had the
status of a citizen. The case was brought into this
court on appeal, and in 1911 was affirmed, in 106
C. C. A. 464, 184 Fed. 322. In that case, however
at the time the relators married, they might have
been lawfully naturalized, and we said: "Even if we
assume the contention of the district attorney to be
correct that marriage will not make a citizen of a
woman who would be excluded under our
immigration laws, it does not affect these relators."
We held that, being citizens, they could not be
excluded as aliens; and it was also said to be
inconsistent with the policy of our law that the
husband should be a citizen and the wife an alien.
The distinction between that case and the one
now before the court is that, in the former case,
the marriage took place before any order of
exclusion had been made, while in this the
marriage was celebrated after such an order was
made. But such an order is a mere administrative
provision, and has not the force of a judgment of a
court, and works no estoppel. The administrative
order is based on the circumstances that existed
at the time the order of exclusion was made. If the
circumstances change prior to the order being
carried into effect, it cannot be executed. For
example, if an order of exclusion should be based
on the ground that the alien was at the time
afflicted with a contagious disease, and it should
be made satisfactorily to appear, prior to actual
deportation, that the alien had entirely recovered
from the disease, we think it plain that the order
could not be carried into effect. So, in this case, if,
after the making of the order of exclusion and
while she is permitted temporarily to remain, she
in good faith marries an American citizen, we
cannot doubt the validity of her marriage, and that
she thereby acquired, under international law and
under 1994 of the Revised Statutes, American
citizenship, and ceased to be an alien. There
upon, the immigration authorities lost their
jurisdiction over her, as that jurisdiction applies
only to aliens, and not to citizens.
In 1910, District Judge Dodge, in Ex
parte Kaprielian, 188 Fed. 694, sustained the right
of the officials to deport a woman under the
following circumstances: She entered this country
in July, 1910, being an alien and having been born
in Turkey. She was taken into custody by the
immigration authorities in the following September,
and in October a warrant for her deportation was
issued. Pending hearings as to the validity of that
order, she was paroled in the custody of her
counsel. The ground alleged for her deportation
was that she was afflicted with a dangerous and
contagious disease at the time of her entry. One of
the reasons assigned to defeat deportation was
that the woman had married a citizen of the United
States pending the proceedings for her
deportation. Judge Dodge declared himself unable
to believe that a marriage under such
circumstances "is capable of having the effect
claimed, in view of the facts shown." He held that it
was no part of the intended policy of 1994 to annul
or override the immigration laws, so as to
authorize the admission into the country of the
wife of a naturalized alien not otherwise entitled to
enter, and that an alien woman, who is of a class
of persons excluded by law from admission to the
United States does not come within the provisions
of that section. The court relied wholly upon the
dicta contained in the Rustigian Case. No other
authorities were cited.
In 1914, District Judge Neterer, in Ex parte
Grayson, 215 Fed. 449, construed 1994 and held
that where, pending proceedings to deport an
alien native of France as an alien prostitute, she
was married to a citizen of the United States, she
thereby became a citizen, and was not subject to
deportation until her citizenship was revoked by
due process of law. It was his opinion that if, as
was contended, her marriage was conceived in
fraud, and was entered into for the purpose of
evading the immigration laws and preventing her
deportation, such fact should be established in a
court of competent jurisdiction in an action
commenced for the purpose. The case was
appealed and the appeal was dismissed. 134 C.
C. A. 666, 219 Fed. 1022.
It is interesting also to observe the construction
placed upon the language of the statute by the
Department of Justice. In 1874, Attorney General
Williams, 14 Ops. Atty. Gen. 402, passing upon
the Act of February 10, 1855, held that residence
within the United States for the period required by
the naturalization laws was riot necessary in order
to constitute an alien woman a citizen, she having
married a citizen of the United States abroad,
although she never resided in the United States,
she and her husband having continued to reside
abroad after the marriage.
In 1909, a similar construction was given to the
Immigration Act of May 5, 1907, in an opinion
rendered by Attorney General Wickersham. It
appeared an unmarried woman, twenty-eight
years of age and a native of Belgium, arrived in
New York and went at once to a town in Nebraska,
where she continued to reside. About fifteen
months after her arrival she was taken before a
United States commissioner by way of instituting
proceedings under the Immigration Act (34 Stat. at
L. 898, chap. 1134, Comp. Stat. 4242, 3 Fed. Stat.
Anno. 2d ed. p. 637) for her deportation, on the
ground that she had entered this country for the
purpose of prostitution, and had been found an
inmate of a house of prostitution and practicing the
same within three years after landing. It appeared,
however, that after she was taken before the
United States commissioner, but prior to her arrest
under a warrant by the Department of Justice, she
was lawfully married to a native-born citizen of the
United States. The woman professed at the time
of her marriage an intention to abandon her
previous mode of life and to remove with her
husband to his home in Pennsylvania. He knew
what her mode of life had been, but professed to
believe in her good intentions. The question was
raised as to the right to deport her, the claim being
advance that by her marriage she bad become an
American citizen and therefore could not be
deported. The Attorney General ruled against the
right to deport her as she had become an
American citizen. He held that the words, "who
might herself be lawfully naturalized," refer to a
class or race who might be lawfully naturalized,
and that compliance with the other conditions of
the naturalization laws was not required. 27 Ops.
Atty. Gen. 507.
Before concluding this opinion, we may add that it
has not escaped our observation that Congress, in
 enacting the Immigration Act of 1917, so as to
provide, in 19, "that the marriage to an American
citizen of a female of the sexually immoral
classes ... shall not invest such female with United
States citizenship if the marriage of such alien
female shall be solemnized after her arrest or after
the commission of acts which make her liable to
deportation under this act."
Two conclusions seem irresistibly to follow from
the above change in the law:
(1) Congress deemed legislation essential to
prevent women of the immoral class avoiding
deportation through the device of marrying an
American citizen.
(2) If Congress intended that the marriage of an
American citizen with an alien woman of any other
of the excluded classes, either before or after her
detention, should not confer upon her American
citizenship, thereby entitling her to enter the
country, its intention would have been expressed,
and 19 would not have been confined solely to
women of the immoral class.
Indeed, We have examined all the leading American decisions
on the subject and We have found no warrant for the proposition
that the phrase "who might herself be lawfully naturalized" in
Section 1994 of the Revised Statutes was meant solely as a
racial bar, even if loose statements in some decisions and other
treaties and other writings on the subject would seem to give
such impression. The case of Kelley v. Owen, supra, which
appears to be the most cited among the first of the
decisions 19 simply held:
As we construe this Act, it confers the privileges of
citizenship upon women married to citizens of the
United States, if they are of the class of persons
for whose naturalization the previous Acts of
Congress provide. The terms "married" or "who
shall be married," do not refer in our judgment, to
the time when the ceremony of marriage is
celebrated, but to a state of marriage. They mean
that, whenever a woman, who under previous Acts
might be naturalized, is in a state of marriage to a
citizen, whether his citizenship existed at the
passage of the Act or subsequently, or before or
after the marriage, she becomes, by that fact, a
citizen also. His citizenship, whenever it exists,
confers, under the Act, citizenship upon her. The
construction which would restrict the Act to women
whose husbands, at the time of marriage, are
citizens, would exclude far the greater number, for
whose benefit, as we think, the Act was intended.
Its object, in our opinion, was to allow her
citizenship to follow that of her husband, without
the necessity of any application for naturalization
on her part; and, if this was the object, there is no
reason for the restriction suggested.
The terms, "who might lawfully be naturalized
under the existing laws," only limit the application
of the law to free white women. The previous
Naturalization Act, existing at the time only
required that the person applying for its benefits
should be "a free white person," and not an alien
enemy. Act of April 14th, 1802, 2 Stat. at L. 153.
A similar construction was given to the Act by the
Court of Appeals of New York, in Burton v. Burton,
40 N. Y. 373; and is the one which gives the
widest extension to its provisions.
Note that write the court did say that "the terms, "who might
lawfully be naturalized under existing laws" only limit the
application to free white women" 20 it hastened to add that "the
previous Naturalization Act, existing at the time, ... required that
the person applying for its benefits should be (not only) a "free
white person" (but also) ... not an alien enemy." This is simply
because under the Naturalization Law of the United States at
the time the case was decided, the disqualification of enemy
aliens had already been removed by the Act of July 30, 1813, as
may be seen in the corresponding footnote hereof anon. In
other words, if in the case of Kelly v. Owen only the race
requirement was mentioned, the reason was that there was no
other non-racial requirement or no more alien enemy
disqualification at the time; and this is demonstrated by the fact
that the court took care to make it clear that under the previous
naturalization law, there was also such requirement in addition
to race. This is impotent, since as stated in re Rustigian, 165
Fed. Rep. 980, "The expression used by Mr. Justice Field, (in
Kelly v. Owen) the terms "who might lawfully be naturalized
under existing laws" only limit the application of the law to free
white women, must be interpreted in the application to the
special facts and to the incapacities under the then existing
laws," (at p. 982) meaning that whether or not an alien wife
marrying a citizen would be a citizen was dependent, not only
on her race and nothing more necessarily, but on whether or not
there were other disqualifications under the law in force at the
time of her marriage or the naturalization of her husband.
4. As already stated, in Lo San Tuang, Choy King Tee and the
second Ly Giok Ha, the Court drew the evidence that because
Section 1 of Act 2927 was eliminated by Commonwealth Act
473, it follows that in place of the said eliminated section
particularly its subdivision (c), being the criterion of whether or
not an alien wife "may be lawfully naturalized," what should be
required is not only that she must not be disqualified under
Section 4 but that she must also possess the qualifications
enumerated in Section 2, such as those of age, residence, good
moral character, adherence to the underlying principles of the
Philippine Constitution, irreproachable conduct, lucrative
employment or ownership of real estate, capacity to speak and
write English or Spanish and one of the principal local
languages, education of children in certain schools, etc., thereby
implying that, in effect, sails Section 2 has been purposely
intended to take the place of Section 1 of Act 2927. Upon further
consideration of the proper premises, We have come, to the
conclusion that such inference is not sufficiently justified.
To begin with, nothing extant in the legislative history, which We
have already explained above of the mentioned provisions has
been shown or can be shown to indicate that such was the clear
intent of the legislature. Rather, what is definite is that Section
15 is, an exact copy of Section 1994 of the Revised Statutes of
the United States, which, at the time of the approval of
Commonwealth Act 473 had already a settled construction by
American courts and administrative authorities.
Secondly, as may be gleaned from the summary of pertinent
American decisions quoted above, there can be no doubt that in
the construction of the identically worded provision in the
Revised Statutes of the United States, (Section 1994, which
was taken, from the Act of February 10, 1855) all authorities in
the United States are unanimously agreed that the qualifications
of residence, good moral character, adherence to the
Constitution, etc. are not supposed to be considered, and that
the only eligibility to be taken into account is that of the race or
class to which the subject belongs, the conceptual scope of
which, We have just discussed. 21 In the very case of Leonard v.
Grant, supra, discussed by Justice Regala in Lo San Tuang, the
explanation for such posture of the American authorities was
made thus:
The phrase, "shall be deemed a citizen" in section
1994 Rev. St., or as it was in the Act of
1855, supra, "shall be deemed and taken to be a
citizen" while it may imply that the person to whom
it relates has not actually become a citizen by
ordinary means or in the usual way, as by the
judgment of a competent court, upon a proper
application and proof, yet it does not follow that
such person is on that account practically any the
less a citizen. The word "deemed" is the
equivalent of "considered" or "judged"; and,
therefore, whatever an act of Congress requires to
be "deemed" or "taken" as true of any person or
thing, must, in law, be considered as having been
duly adjudged or established concerning "such
person or thing, and have force and effect
accordingly. When, therefore, Congress declares
that an alien woman shall, under certain
circumstances, be "deemed' an American citizen,
the effect when the contingency occurs, is
equivalent to her being naturalized directly by an
act of Congress, or in the usual mode thereby
prescribed.
Unless We disregard now the long settled familiar rule of
statutory construction that in a situation like this wherein our
legislature has copied an American statute word for word, it is
understood that the construction already given to such statute
before its being copied constitute part of our own law, there
seems to be no reason how We can give a different connotation
or meaning to the provision in question. At least, We have
already seen that the views sustaining the contrary conclusion
appear to be based on in accurate factual premises related to
the real legislative background of the framing of our
naturalization law in its present form.
Thirdly, the idea of equating the qualifications enumerated in
Section 2 of Commonwealth Act 473 with the eligibility
requirements of Section 1 of Act 2927 cannot bear close
scrutiny from any point of view. There is no question that
Section 2 of Commonwealth Act 473 is more or less
substantially the same as Section 3 of Act 2927. In other words,
Section 1 of Act 2927 co-existed already with practically the
same provision as Section 2 of Commonwealth Act 473. If it
were true that the phrase "who may be lawfully naturalized" in
Section 13 (a) of Act 2927, as amended by Act 3448, referred to
the so-called racial requirement in Section 1 of the same Act,
without regard to the provisions of Section 3 thereof, how could
the elimination of Section 1 have the effect of shifting the
reference to Section 3, when precisely, according to the
American jurisprudence, which was prevailing at the time
Commonwealth Act 473 was approved, such qualifications as
were embodied in said Section 3, which had their counterpart in
the corresponding American statutes, are not supposed to be
taken into account and that what should be considered only are
the requirements similar to those provided for in said Section 1
together with the disqualifications enumerated in Section 4?
Fourthly, it is difficult to conceive that the phrase "who might be
lawfully naturalized" in Section 15 could have been intended to
convey a meaning different than that given to it by the American
courts and administrative authorities. As already stated, Act
3448 which contained said phrase and from which it was taken
by Commonwealth Act 473, was enacted in 1928. By that, time,
Section 1994 of the Revised Statutes of the United States was
no longer in force because it had been repealed expressly the
Act of September 22, 1922 which did away with the automatic
naturalization of alien wives of American citizens and required,
instead, that they submit to regular naturalization proceedings,
albeit under more liberal terms than those of other applicants. In
other words, when our legislature adopted the phrase in
question, which, as already demonstrated, had a definite
construction in American law, the Americans had already
abandoned said phraseology in favor of a categorical
compulsion for alien wives to be natural judicially. Simple logic
would seem to dictate that, since our lawmakers, at the time of
the approval of Act 3448, had two choices, one to adopt the
phraseology of Section 1994 with its settled construction and
the other to follow the new posture of the Americans of requiring
judicial naturalization and it appears that they have opted for the
first, We have no alternative but to conclude that our law still
follows the old or previous American Law On the subject.
Indeed, when Commonwealth Act 473 was approved in 1939,
the Philippine Legislature, already autonomous then from the
American Congress, had a clearer chance to disregard the old
American law and make one of our own, or, at least, follow the
trend of the Act of the U.S. Congress of 1922, but still, our
legislators chose to maintain the language of the old law. What
then is significantly important is not that the legislature
maintained said phraseology after Section 1 of Act 2927 was
eliminated, but that it continued insisting on using it even after
the Americans had amended their law in order to provide for
what is now contended to be the construction that should be
given to the phrase in question. Stated differently, had our
legislature adopted a phrase from an American statute before
the American courts had given it a construction which was
acquiesced to by those given upon to apply the same, it would
be possible for Us to adopt a construction here different from
that of the Americans, but as things stand, the fact is that our
legislature borrowed the phrase when there was already a
settled construction thereof, and what is more, it appears that
our legislators even ignored the modification of the American
law and persisted in maintaining the old phraseology. Under
these circumstances, it would be in defiance of reason and the
principles of Statutory construction to say that Section 15 has a
nationalistic and selective orientation and that it should be
construed independently of the previous American posture
because of the difference of circumstances here and in the
United States. It is always safe to say that in the construction of
a statute, We cannot fall on possible judicial fiat or perspective
when the demonstrated legislative point of view seems to
indicate otherwise.
5. Viewing the matter from another angle, there is need to
emphasize that in reality and in effect, the so called racial
requirements, whether under the American laws or the
Philippine laws, have hardly been considered as qualifications in
the same sense as those enumerated in Section 3 of Act 2927
and later in Section 2 of Commonwealth Act 473. More
accurately, they have always been considered as
disqualifications, in the sense that those who did not possess
them were the ones who could not "be lawfully naturalized," just
as if they were suffering from any of the disqualifications under
Section 2 of Act 2927 and later those under Section 4 of
Commonwealth Act 473, which, incidentally, are practically
identical to those in the former law, except those in paragraphs
(f) and (h) of the latter. 22 Indeed, such is the clear impression
anyone will surely get after going over all the American
decisions and opinions quoted and/or cited in the latest USCA
(1970), Title 8, section 1430, pp. 598-602, and the first
decisions of this Court on the matter, Ly Giok Ha (1959) and
Ricardo Cua, citing with approval the opinions of the secretary
of Justice. 23 Such being the case, that is, that the so-called
racial requirements were always treated as disqualifications in
the same light as the other disqualifications under the law, why
should their elimination not be viewed or understood as a
subtraction from or a lessening of the disqualifications? Why
should such elimination have instead the meaning that what
were previously considered as irrelevant qualifications have
become disqualifications, as seems to be the import of the
holding in Choy King Tee to the effect that the retention in
Section 15 of Commonwealth Act 473 of the same language of
what used to be Section 13 (a) of Act 2927 (as amended by Act
3448), notwithstanding the elimination of Section 1 of the latter,
necessarily indicates that the legislature had in mind making the
phrase in question "who may be lawfully naturalized" refer no
longer to any racial disqualification but to the qualification under
Section 2 of Commonwealth Act 473? Otherwise stated, under
Act 2927, there were two groups of persons that could not be
naturalized, namely, those falling under Section 1 and those
falling under Section 2, and surely, the elimination of one group,
i.e. those belonging to Section 1, could not have had, by any
process of reasoning, the effect of increasing, rather than
decreasing, the disqualifications that used to be before such
elimination. We cannot see by what alchemy of logic such
elimination could have convicted qualifications into
disqualifications specially in the light of the fact that, after all,
these are disqualifications clearly set out as such in the law
distinctly and separately from qualifications and, as already
demonstrated, in American jurisprudence, qualifications had
never been considered to be of any relevance in determining
"who might be lawfully naturalized," as such phrase is used in
the statute governing the status of alien wives of American
citizens, and our law on the matter was merely copied verbatim
from the American statutes.
6. In addition to these arguments based on the applicable legal
provisions and judicial opinions, whether here or in the United
States, there are practical considerations that militate towards
the same conclusions. As aptly stated in the motion for
reconsideration of counsel for petitioner-appellee dated
February 23, 1967, filed in the case of Zita Ngo Burca v.
Republic, supra:
Unreasonableness of requiring alien wife to prove
"qualifications" —
There is one practical consideration that strongly
militates against a construction that Section 15 of
the law requires that an alien wife of a Filipino
must affirmatively prove that she possesses the
qualifications prescribed under Section 2, before
she may be deemed a citizen. Such condition, if
imposed upon an alien wife, becomes
unreasonably onerous and compliance therewith
manifestly difficult. The unreasonableness of such
requirement is shown by the following:
1. One of the qualifications required
of an Applicant for naturalization
under Section 2 of the law is that the
applicant "must have resided in the
Philippines for a continuous period of
not less than ten years." If this
requirement is applied to an alien
wife married to a Filipino citizen, this
means that for a period of ten years
at least, she cannot hope to acquire
the citizenship of her husband. If the
wife happens to be a citizen of a
country whose law declares that
upon her marriage to a foreigner she
automatically loses her citizenship
and acquires the citizenship of her
husband, this could mean that for a
period of ten years at least, she
would be stateless. And even after
having acquired continuous
residence in the Philippines for ten
years, there is no guarantee that her
petition for naturalization will be
granted, in which case she would
remain stateless for an indefinite
period of time.
2. Section 2 of the law likewise
requires of the applicant for
naturalization that he "must own real
estate in the Philippines worth not
less than five thousand pesos,
Philippine currency, or must have
some known lucrative trade,
profession, or lawful occupation."
Considering the constitutional
prohibition against acquisition by an
alien of real estate except in cases of
hereditary succession (Art. XIII, Sec.
5, Constitution), an alien wife
desiring to acquire the citizenship of
her husband must have to prove that
she has a lucrative income derived
from a lawful trade, profession or
occupation. The income requirement
has been interpreted to mean that
the petitioner herself must be the
one to possess the said income. (Uy
v. Republic, L-19578, Oct. 27, 1964;
Tanpa Ong vs. Republic, L-20605,
June 30, 1965; Li Tong Pek v.
Republic, L-20912, November 29,
1965). In other words, the wife must
prove that she has a lucrative
income derived from sources other
than her husband's trade, profession
or calling. It is of common
knowledge, and judicial notice may
be taken of the fact that most wives
in the Philippines do not have gainful
occupations of their own. Indeed,
Philippine law, recognizing the
dependence of the wife upon the
husband, imposes upon the latter the
duty of supporting the former. (Art.
291, Civil Code). It should be borne
in mind that universally, it is an
accepted concept that when a
woman marries, her primary duty is
to be a wife, mother and
housekeeper. If an alien wife is not
to be remiss in this duty, how can
she hope to acquire a lucrative
income of her own to qualify her for
citizenship?
3. Under Section 2 of the law, the
applicant for naturalization "must
have enrolled his minor children of
school age, in any of the public
schools or private schools
recognized by the Office of the
Private Education of the Philippines,
where Philippine history, government
and civics are taught or prescribed
as part of the school curriculum
during the entire period of residence
in the Philippines required of him
prior to the hearing of his petition for
naturalization as Philippine citizen." If
an alien woman has minor children
by a previous marriage to another
alien before she marries a Filipino,
and such minor children had not
been enrolled in Philippine schools
during her period of residence in the
country, she cannot qualify for
naturalization under the
interpretation of this Court. The
reason behind the requirement that
children should be enrolled in
recognized educational institutions is
that they follow the citizenship of
their father. (Chan Ho Lay v.
Republic, L-5666, March 30, 1954;
Tan Hi v. Republic, 88 Phil. 117
[1951]; Hao Lian Chu v. Republic, 87
Phil. 668 [1950]; Yap Chin v.
Republic, L-4177, May 29, 1953; Lim
Lian Hong v. Republic, L-3575, Dec.
26, 1950). Considering that said
minor children by her first husband
generally follow the citizenship of
their alien father, the basis for such
requirement as applied to her does
not exist. Cessante ratione legis
cessat ipsa lex.
4. Under Section 3 of the law, the
10-year continuous residence
prescribed by Section 2 "shall be
understood as reduced to five years
for any petitioner (who is) married to
a Filipino woman." It is absurd that
an alien male married to a Filipino
wife should be required to reside
only for five years in the Philippines
to qualify for citizenship, whereas an
alien woman married to a Filipino
husband must reside for ten years.
Thus under the interpretation given by this Court, it
is more difficult for an alien wife related by
marriage to a Filipino citizen to become such
citizen, than for a foreigner who is not so related.
And yet, it seems more than clear that the general
purpose of the first paragraph of Section 15 was
obviously to accord to an alien woman, by reason
of her marriage to a Filipino, a privilege not
similarly granted to other aliens. It will be recalled
that prior to the enactment of Act No. 3448 in
1928, amending Act No. 2927 (the old
Naturalization Law), there was no law granting any
special privilege to alien wives of Filipinos. They
were treated as any other foreigner. It was
precisely to remedy this situation that the
Philippine legislature enacted Act No. 3448. On
this point, the observation made by the Secretary
of Justice in 1941 is enlightening:
It is true that under, Article 22 of the
(Spanish) Civil Code, the wife follows
the nationality of the husband; but
the Department of State of the
United States on October 31, 1921,
ruled that the alien wife of a Filipino
citizen is not a Filipino citizen,
pointing out that our Supreme Court
in the leading case of Roa v.
 Collector of Customs (23 Phil. 315)
held that Articles 17 to 27 of the Civil
Code being political have been
abrogated upon the cession of the
Philippine Islands to the United
States. Accordingly, the stated taken
by the Attorney-General prior to the
envictment of Act No. 3448, was that
marriage of alien women to
Philippine citizens did not make the
former citizens of this counting. (Op.
Atty. Gen., March 16, 1928) .
To remedy this anomalous condition,
Act No. 3448 was enacted in 1928
adding section 13(a) to Act No. 2927
which provides that "any woman
who is now or may hereafter be
married to a citizen of the Philippine
Islands, and who might herself be
lawfully naturalized, shall be deemed
a citizen of the Philippine Islands.
(Op. No. 22, s. 1941; emphasis
ours).
If Section 15 of the, Revised Naturalization Law
were to be interpreted, as this Court did, in such a
way as to require that the alien wife must prove
the qualifications prescribed in Section 2, the
privilege granted to alien wives would become
illusory. It is submitted that such a construction,
being contrary to the manifested object of the
statute must be rejected.
A statute is to be construed with
reference to its manifest object, and
if the language is susceptible of two
constructions, one which will carry
out and the other defeat such
manifest object, it should receive the
former construction. (In re National
Guard, 71 Vt. 493, 45 A. 1051;
Singer v. United States, 323 U.S.
338, 89 L. ed. 285. See also, U.S. v.
Navarro, 19 Phil. 134 [1911]; U. S. v.
Toribio, 15 Phil. 85 [1910).
... A construction which will cause
objectionable results should be
avoided and the court will, if
possible, place on the statute a
construction which will not result in
injustice, and in accordance with the
decisions construing statutes, a
construction which will result in
oppression, hardship, or
inconveniences will also be avoided,
as will a construction which will
prejudice public interest, or
construction resulting in
unreasonableness, as well as a
construction which will result in
absurd consequences.
So a construction should, if possible,
be avoided if the result would be an
apparent inconsistency in legislative
intent, as has been determined by
the judicial decisions, or which would
result in futility, redundancy, or a
conclusion not contemplated by the
legislature; and the court should
adopt that construction which will be
the least likely to produce mischief.
Unless plainly shown to have been
the intention of the legislature, an
interpretation which would render the
requirements of the statute uncertain
and vague is to be avoided, and the
court will not ascribe to the
legislature an intent to confer an
illusory right. ... (82 C.J.S., Statutes,
sec. 326, pp. 623-632).
7. In Choy King Tee and the second Ly Giok Ha, emphasis was
laid on the need for aligning the construction of Section 15 with
"the national policy of selective admission to Philippine
citizenship." But the question may be asked, is it reasonable to
suppose that in the pursuit of such policy, the legislature
contemplated to make it more difficult if not practically
impossible in some instances, for an alien woman marrying a
Filipino to become a Filipina than any ordinary applicant for
naturalization, as has just been demonstrated above? It seems
but natural and logical to assume that Section 15 was intended
to extend special treatment to alien women who by marrying a
Filipino irrevocably deliver themselves, their possessions, their
fate and fortunes and all that marriage implies to a citizen of this
country, "for better or for worse." Perhaps there can and will be
cases wherein the personal conveniences and benefits arising
from Philippine citizenship may motivate such marriage, but
must the minority, as such cases are bound to be, serve as the
criterion for the construction of law? Moreover, it is not
farfetched to believe that in joining a Filipino family the alien
woman is somehow disposed to assimilate the customs, beliefs
and ideals of Filipinos among whom, after all, she has to live
and associate, but surely, no one should expect her to do so
even before marriage. Besides, it may be considered that in
reality the extension of citizenship to her is made by the law not
so much for her sake as for the husband. Indeed, We find the
following observations anent the national policy rationalization in
Choy King Tee and Ly Giok Ha (the second) to be quite
persuasive:
We respectfully suggest that this articulation of the
national policy begs the question. The avowed
policy of "selectives admission" more particularly
refers to a case where citizenship is sought to be
acquired in a judicial proceeding for naturalization.
In such a case, the courts should no doubt apply
the national policy of selecting only those who are
worthy to become citizens. There is here a choice
between accepting or rejecting the application for
citizenship. But this policy finds no application in
cases where citizenship is conferred by operation
of law. In such cases, the courts have no choice to
accept or reject. If the individual claiming
citizenship by operation of law proves in legal
proceedings that he satisfies the statutory
requirements, the courts cannot do otherwise than
to declare that he is a citizen of the Philippines.
Thus, an individual who is able to prove that his
father is a Philippine citizen, is a citizen of the
Philippines, "irrespective of his moral character,
ideological beliefs, and identification with Filipino
ideals, customs, and traditions." A minor child of a
person naturalized under the law, who is able to
prove the fact of his birth in the Philippines, is
likewise a citizen, regardless of whether he has
lucrative income, or he adheres to the principles of
the Constitution. So it is with an alien wife of a
Philippine citizen. She is required to prove only
that she may herself be lawfully naturalized, i.e.,
that she is not one of the disqualified persons
enumerated in Section 4 of the law, in order to
establish her citizenship status as a fact.
A paramount policy consideration of graver import
should not be overlooked in this regard, for it
explains and justifies the obviously deliberate
choice of words. It is universally accepted that a
State, in extending the privilege of citizenship to
an alien wife of one of its citizens could have had
no other objective than to maintain a unity of
allegiance among the members of the family.
(Nelson v. Nelson, 113 Neb. 453, 203 N. W. 640
[1925]; see also "Convention on the Nationality of
Married Women: Historical Background and
Commentary." UNITED NATIONS, Department of
Economic and Social Affairs E/CN, 6/399, pp. 8 et
seq.). Such objective can only be satisfactorily
achieved by allowing the wife to acquire
citizenship derivatively through the husband. This
is particularly true in the Philippines where
tradition and law has placed the husband as head
of the family, whose personal status and decisions
govern the life of the family group. Corollary to
this, our laws look with favor on the unity and
solidarity of the family (Art. 220, Civil Code), in
whose preservation of State as a vital and
enduring interest. (See Art. 216, Civil Code). Thus,
it has been said that by tradition in our country,
there is a theoretic identity of person and interest
between husband and wife, and from the nature of
the relation, the home of one is that of the other.
(See De la Viña v. Villareal, 41 Phil. 13). It should
likewise be said that because of the theoretic
identity of husband and wife, and the primacy of
the husband, the nationality of husband should be
the nationality of the wife, and the laws upon one
should be the law upon the other. For as the court,
in Hopkins v. Fachant (9th Cir., 1904) 65 C.C.A.,
1, 130 Fed. 839, held: "The status of the wife
follows that of the husband, ... and by virtue of her
marriage her husband's domicile became her
domicile." And the presumption under Philippine
law being that the property relations of husband
and wife are under the regime of conjugal
partnership (Art. 119, Civil Code), the income of
one is also that of the other.
It is, therefore, not congruent with our cherished
traditions of family unity and identity that a
husband should be a citizen and the wife an alien,
and that the national treatment of one should be
different from that of the other. Thus, it cannot be
that the husband's interests in property and
business activities reserved by law to citizens
should not form part of the conjugal partnership
and be denied to the wife, nor that she herself
cannot, through her own efforts but for the benefit
of the partnership, acquire such interests. Only in
rare instances should the identity of husband and
wife be refused recognition, and we submit that in
respect of our citizenship laws, it should only be in
the instances where the wife suffers from the
disqualifications stated in Section 4 of the Revised
Naturalization Law. (Motion for
Reconsideration, Burca vs. Republic, supra.)
With all these considerations in mind, We are persuaded that it
is in the best interest of all concerned that Section 15 of the
Naturalization Law be given effect in the same way as it was
understood and construed when the phrase "who may be
lawfully naturalized," found in the American statute from which it
was borrowed and copied verbatim, was applied by the
American courts and administrative authorities. There is merit,
of course in the view that Philippine statutes should be
construed in the light of Philippine circumstances, and with
particular reference to our naturalization laws. We should realize
the disparity in the circumstances between the United States, as
the so-called "melting pot" of peoples from all over the world,
and the Philippines as a developing country whose Constitution
is nationalistic almost in the come. Certainly, the writer of this
opinion cannot be the last in rather passionately insisting that
our jurisprudence should speak our own concepts and resort to
American authorities, to be sure, entitled to admiration, and
respect, should not be regarded as source of pride and
indisputable authority. Still, We cannot close our eyes to the
undeniable fact that the provision of law now under scrutiny has
no local origin and orientation; it is purely American, factually
taken bodily from American law when the Philippines was under
the dominating influence of statutes of the United States
Congress. It is indeed a sad commentary on the work of our
own legislature of the late 1920's and 1930's that given the
opportunity to break away from the old American pattern, it took
no step in that direction. Indeed, even after America made it
patently clear in the Act of Congress of September 22, 1922 that
alien women marrying Americans cannot be citizens of the
United States without undergoing naturalization proceedings,
our legislators still chose to adopt the previous American law of
August 10, 1855 as embodied later in Section 1994 of the
Revised Statutes of 1874, Which, it is worth reiterating, was
consistently and uniformly understood as conferring American
citizenship to alien women marrying Americans ipso facto,
without having to submit to any naturalization proceeding and
without having to prove that they possess the special
qualifications of residence, moral character, adherence to
American ideals and American constitution, provided they show
they did not suffer from any of the disqualifications enumerated
in the American Naturalization Law. Accordingly, We now hold,
all previous decisions of this Court indicating otherwise
notwithstanding, that under Section 15 of Commonwealth Act
473, an alien woman marrying a Filipino, native born or
naturalized, becomes ipso facto a Filipina provided she is not
disqualified to be a citizen of the Philippines under Section 4 of
the same law. Likewise, an alien woman married to an alien
who is subsequently naturalized here follows the Philippine
citizenship of her husband the moment he takes his oath as
Filipino citizen, provided that she does not suffer from any of the
disqualifications under said Section 4.
As under any other law rich in benefits for those coming under
it, doubtless there will be instances where unscrupulous
persons will attempt to take advantage of this provision of law
by entering into fake and fictitious marriages or mala
fide matrimonies. We cannot as a matter of law hold that just
because of these possibilities, the construction of the provision
should be otherwise than as dictated inexorably by more
ponderous relevant considerations, legal, juridical and practical.
There can always be means of discovering such undesirable
practice and every case can be dealt with accordingly as it
arises.
III.
The third aspect of this case requires necessarily a re-
examination of the ruling of this Court in Burca, supra, regarding
the need of judicial naturalization proceedings before the alien
wife of a Filipino may herself be considered or deemed a
Filipino. If this case which, as already noted, was submitted for
decision in 1964 yet, had only been decided earlier, before Go
Im Ty, the foregoing discussions would have been sufficient to
dispose of it. The Court could have held that despite her
apparent lack of qualifications, her marriage to her co-petitioner
made her a Filipina, without her undergoing any naturalization
proceedings, provided she could sustain, her claim that she is
not disqualified under Section 4 of the law. But as things stand
now, with the Burca ruling, the question We have still to decide
is, may she be deemed a Filipina without submitting to a
naturalization proceeding?
Naturally, if Burca is to be followed, it is clear that the answer to
this question must necessarily be in the affirmative. As already
stated, however, the decision in Burca has not yet become final
because there is still pending with Us a motion for its
reconsideration which vigorously submits grounds worthy of
serious consideration by this Court. On this account, and for the
reasons expounded earlier in this opinion, this case is as good
an occasion as any other to re-examine the issue.
In the said decision, Justice Sanchez held for the Court:
We accordingly rule that: (1) An alien woman
married to a Filipino who desires to be a citizen of
this country must apply therefore by filing a
petition for citizenship reciting that she possesses
all the qualifications set forth in Section 2 and
none of the disqualifications under Section 4, both
of the Revised Naturalization Law; (2) Said petition
must be filed in the Court of First Instance where
petitioner has resided at least one year
immediately preceding the filing of the petition;
and (3) Any action by any other office, agency,
board or official, administrative or otherwise —
other than the judgment of a competent court of
justice — certifying or declaring that an alien wife
of the Filipino citizen is also a Filipino citizen, is
hereby declared null and void.
3. We treat the present petition as one for
naturalization. Or, in the words of law, a "petition
for citizenship". This is as it should be. Because a
reading of the petition will reveal at once that
efforts were made to set forth therein, and to prove
afterwards, compliance with Sections 2 and 4 of
the Revised Naturalization law. The trial court itself
apparently considered the petition as one for
naturalization, and, in fact, declared petitioner "a
citizen of the Philippines."
In other words, under this holding, in order for an alien woman
marrying a Filipino to be vested with Filipino citizenship, it is not
enough that she possesses the qualifications prescribed by
Section 2 of the law and none of the disqualifications
enumerated in its Section 4. Over and above all these, she has
to pass thru the whole process of judicial naturalization
apparently from declaration of intention to oathtaking, before
she can become a Filipina. In plain words, her marriage to a
Filipino is absolutely of no consequence to her nationality vis-a-
vis that of her Filipino husband; she remains to be the national
of the country to which she owed allegiance before her
marriage, and if she desires to be of one nationality with her
husband, she has to wait for the same time that any other
applicant for naturalization needs to complete, the required
period of ten year residence, gain the knowledge of English or
Spanish and one of the principle local languages, make her
children study in Filipino schools, acquire real property or
engage in some lawful occupation of her own independently of
her husband, file her declaration of intention and after one year
her application for naturalization, with the affidavits of two
credible witnesses of her good moral character and other
qualifications, etc., etc., until a decision is ordered in her favor,
after which, she has to undergo the two years of probation, and
only then, but not before she takes her oath as citizen, will she
begin to be considered and deemed to be a citizen of the
Philippines. Briefly, she can become a Filipino citizen only by
judicial declaration.
Such being the import of the Court's ruling, and it being quite
obvious, on the other hand, upon a cursory reading of the
provision, in question, that the law intends by it to spell out what
is the "effect of naturalization on (the) wife and children" of an
alien, as plainly indicated by its title, and inasmuch as the
language of the provision itself clearly conveys the thought that
some effect beneficial to the wife is intended by it, rather than
that she is not in any manner to be benefited thereby, it
behooves Us to take a second hard look at the ruling, if only to
see whether or not the Court might have overlooked any
relevant consideration warranting a conclusion different from
that complained therein. It is undeniable that the issue before
Us is of grave importance, considering its consequences upon
tens of thousands of persons affected by the ruling therein
made by the Court, and surely, it is for Us to avoid, whenever
possible, that Our decision in any case should produce any
adverse effect upon them not contemplated either by the law or
by the national policy it seeks to endorse.
AMICI CURIAE in the Burca case, respectable and impressive
by their number and standing in the Bar and well known for their
reputation for intellectual integrity, legal acumen and incisive
and comprehensive resourcefulness in research, truly evident in
the quality of the memorandum they have submitted in said
case, invite Our attention to the impact of the decision therein
thus:
The doctrine announced by this Honorable Court
for the first time in the present case -- that an alien
woman who marries a Philippine citizen not only
does not ipso facto herself become a citizen but
can acquire such citizenship only through ordinary
naturalization proceedings under the Revised
Naturalization Law, and that all administrative
actions "certifying or declaring such woman to be
a Philippine citizen are null and void" — has
consequences that reach far beyond the confines
of the present case. Considerably more people are
affected, and affected deeply, than simply Mrs.
Zita N. Burca. The newspapers report that as
many as 15 thousand women married to Philippine
citizens are affected by this decision of the Court.
These are women of many and diverse
nationalities, including Chinese, Spanish, British,
American, Columbian, Finnish, Japanese, Chilean,
and so on. These members of the community,
some of whom have been married to citizens for
two or three decades, have all exercised rights
and privileges reserved by law to Philippine
citizens. They will have acquired, separately or in
conjugal partnership with their citizen husbands,
real property, and they will have sold and
transferred such property. Many of these women
 may be in professions membership in which is
limited to citizens. Others are doubtless
stockholders or officers or employees in
companies engaged in business activities for
which a certain percentage of Filipino equity
content is prescribed by law. All these married
women are now faced with possible divestment of
personal status and of rights acquired and
privileges exercised in reliance, in complete good
faith, upon a reading of the law that has been
accepted as correct for more than two decades by
the very agencies of government charged with the
administration of that law. We must respectfully
suggest that judicial doctrines which would visit
such comprehensive and far-reaching injury upon
the wives and mothers of Philippine citizens
deserve intensive scrutiny and reexamination.
To be sure, this appeal can be no less than what this Court
attended to in Gan Tsitung vs. Republic, G.R. No. L-20819, Feb.
21, 1967, 19 SCRA 401 — when Chief Justice Concepcion
observed:
The Court realizes, however, that the rulings in the
Barretto and Delgado cases — although referring
to situations the equities of which are not identical
to those obtaining in the case at bar — may have
contributed materially to the irregularities
committed therein and in other analogous cases,
and induced the parties concerned to believe,
although erroneously, that the procedure followed
was valid under the law.
Accordingly, and in view of the implications of the
issue under consideration, the Solicitor General
was required, not only, to comment thereon, but,
also, to state "how many cases there are, like the
one at bar, in which certificates of naturalization
have been issued after notice of the filing of the
petition for naturalization had been published in
the Official Gazette only once, within the periods
(a) from January 28, 1950" (when the decision in
Delgado v. Republic was promulgated) "to May 29,
1957" (when the Ong Son Cui was decided) "and
(b) from May 29, 1957 to November 29, 1965"
(when the decision in the present case was
rendered).
After mature deliberation, and in the light of the
reasons adduced in appellant's motion for
reconsideration and in the reply thereto of the
Government, as well as of the data contained in
the latter, the Court holds that the doctrine laid
down in the Ong Son Cui case shall apply and
affect the validity of certificates of naturalization
issued after, not on or before May 29, 1957.
Here We are met again by the same problem. In Gan Tsitung,
the Court had to expressly enjoin the prospective application of
its construction of the law made in a previous decision, 24 which
had already become final, to serve the ends of justice and
equity. In the case at bar, We do not have to go that far. As
already observed, the decision in Burca still under
reconsideration, while the ruling in Lee Suan Ay, Lo San Tuang,
Choy King Tee and others that followed them have at the most
become the law of the case only for the parties thereto. If there
are good grounds therefor, all We have to do now is to
reexamine the said rulings and clarify or modify them.
For ready reference, We requote Section 15:
Sec. 15. Effect of the naturalization on wife and
children. — Any woman who is now or may
hereafter be married to a citizen of the Philippines,
and who might herself be lawfully naturalized shall
be deemed a citizen of the Philippines.
Minor children of persons naturalized under this
law who have been born in the Philippines shall be
considered citizens thereof.
A foreign-born minor child, if dwelling in the
Philippines at the time of naturalization of the
parents, shall automatically become a Philippine
citizen, and a foreign-born minor child, who is not
in the Philippines at the time the parent is
naturalized, shall be deemed a Philippine citizen
 only during his minority, unless he begins to reside
permanently in the Philippines when still a minor,
in which case, he will continue to be a Philippine
citizen even after becoming of age.
A child born outside of the Philippines after the
naturalization of his parent, shall be considered a
Philippine citizen, unless within one year after
reaching the age of majority, he fails to register
himself as a Philippine citizen at the American
Consulate of the country where he resides, and to
take the necessary oath of allegiance.
It is obvious that the main subject-matter and purpose of the
statute, the Revised Naturalization Law or Commonwealth Act
473, as a whole, is to establish a complete procedure for the
judicial conferment of the status of citizenship upon qualified
aliens. After laying out such a procedure, remarkable for its
elaborate and careful inclusion of all safeguards against the
possibility of any undesirable persons becoming a part of our
citizenry, it carefully but categorically states the consequence of
the naturalization of an alien undergoing such procedure it
prescribes upon the members of his immediate family, his wife
and children, 25 and, to that end, in no uncertain terms it ordains
that: (a) all his minor children who have been born in the
Philippines shall be "considered citizens" also; (b) all such minor
children, if born outside the Philippines but dwelling here at the
time of such naturalization "shall automatically become"
Filipinos also, but those not born in the Philippines and not in
the Philippines at the time of such naturalization, are also
redeemed citizens of this country provided that they shall lose
said status if they transfer their permanent residence to a
foreign country before becoming of age; (c) all such minor
children, if born outside of the Philippines after such
naturalization, shall also be "considered" Filipino citizens, unless
they expatriate themselves by failing to register as Filipinos at
the Philippine (American) Consulate of the country where they
reside and take the necessary oath of allegiance; and (d) as to
the wife, she "shall be deemed a citizen of the Philippines" if she
is one "who might herself be lawfully naturalized". 26
No doubt whatever is entertained, so Burca holds very correctly,
as to the point that the minor children, falling within the
conditions of place and time of birth and residence prescribed in
the provision, are vested with Philippine citizenship directly by
legislative fiat or by force of the law itself and without the need
for any judicial proceeding or declaration. (At p. 192, 19 SCRA).
Indeed, the language of the provision, is not susceptible of any
other interpretation. But it is claimed that the same expression
"shall be deemed a citizen of the Philippines" in reference to the
wife, does not necessarily connote the vesting of citizenship
status upon her by legislative fiat because the antecedent
phrase requiring that she must be one "who might herself be
lawfully naturalized" implies that such status is intended to
attach only after she has undergone the whole process of
judicial naturalization required of any person desiring to become
a Filipino. Stated otherwise, the ruling in Burca is that while
Section 15 envisages and intends legislative naturalization as to
the minor children, the same section deliberately treats the wife
differently and leaves her out for the ordinary judicial
naturalization.
Of course, it goes without saying that it is perfectly within the
constitutional authority of the Congress of the Philippines to
confer or vest citizenship status by legislative fiat. (U.S. v. Wong
Kim Ark, 169 U.S. 649, 42 L ed. 890 [1898]; See, 1 Tañada &
Carreon, Political Law of the Philippines 152 [1961 ed.]) In fact,
it has done so for particular individuals, like two foreign religious
prelates, 27 hence there is no reason it cannot do it for classes
or groups of persons under general conditions applicable to all
of the members of such class or group, like women who marry
Filipinos, whether native-born or naturalized. The issue before
Us in this case is whether or not the legislature hag done so in
the disputed provisions of Section 15 of the Naturalization Law.
And Dr. Vicente G. Sinco, one of the most respect authorities on
political law in the Philippines 28 observes in this connection
thus: "A special form of naturalization is often observed by some
states with respect to women. Thus in the Philippines a foreign
woman married to a Filipino citizen becomes ipso
facto naturalized, if she belongs to any of the classes who may
apply for naturalization under the Philippine Laws." (Sinco, Phil.
Political Law 498-499 [10th ed. 1954]; emphasis ours; this
comment is substantially reiterated in the 1962 edition, citing Ly
Giok Ha and Ricardo Cua, supra.)
More importantly, it may be stated, at this juncture, that in
construing the provision of the United States statutes from
which our law has been copied, 28a the American courts have
held that the alien wife does not acquire American citizenship by
choice but by operation of law. "In the Revised Statutes the
words "and taken" are omitted. The effect of this statute is that
every alien woman who marries a citizen of the United States
becomes perforce a citizen herself, without the formality of
naturalization, and regardless of her wish in that respect."
(USCA 8, p. 601 [1970 ed.], citing Mackenzie v. Hare, 1913, 134
P. 713, 165 Cal. 766, affirmed 36 S. Ct. 106, 239 U.S. 299, 60 L
ed. 297.) .
We need not recount here again how this provision in question
was first enacted as paragraph (a) of Section 13, by way of an
insertion into Act 2927 by Act 3448 of November 30, 1928, and
that, in turn, and paragraph was copied verbatim from Section
1994 of the Revised Statutes of the United States, which by that
time already had a long accepted construction among the courts
and administrative authorities in that country holding that under
such provision an alien woman who married a citizen became,
upon such marriage, likewise a citizen by force of law and as a
consequence of the marriage itself without having to undergo
any naturalization proceedings, provided that, it could be shown
that at the time of such marriage, she was not disqualified to be
naturalized under the laws then in force. To repeat the
discussion We already made of these undeniable facts would
unnecessarily make this decision doubly extensive. The only
point which might be reiterated for emphasis at this juncture is
that whereas in the United States, the American Congress,
recognizing the construction, of Section 1994 of the Revised
Statutes to be as stated above, and finding it desirable to avoid
the effects of such construction, approved the Act of September
22, 1922 Explicitly requiring all such alien wives to submit to
judicial naturalization albeit under more liberal terms than those
for other applicants for citizenship, on the other hand, the
Philippine Legislature, instead of following suit and adopting
such a requirement, enacted Act 3448 on November 30, 1928
which copied verbatim the aforementioned Section 1994 of the
Revised Statutes, thereby indicating its preference to adopt the
latter law and its settled construction rather than the reform
introduced by the Act of 1922.
Obviously, these considerations leave Us no choice. Much as
this Court may feel that as the United States herself has
evidently found it to be an improvement of her national policy
vis-a-vis the alien wives of her citizens to discontinue their
automatic incorporation into the body of her citizenry without
passing through the judicial scrutiny of a naturalization
proceeding, as it used to be before 1922, it seems but proper,
without evidencing any bit of colonial mentality, that as a
developing country, the Philippines adopt a similar policy,
unfortunately, the manner in which our own legislature has
enacted our laws on the subject, as recounted above, provides
no basis for Us to construe said law along the line of the 1922
modification of the American Law. For Us to do so would be to
indulge in judicial legislation which it is not institutionally
permissible for this Court to do. Worse, this court would be
going precisely against the grain of the implicit Legislative intent.
There is at least one decision of this Court before Burca wherein
it seems it is quite clearly implied that this Court is of the view
that under Section 16 of the Naturalization Law, the widow and
children of an applicant for naturalization who dies during the
proceedings do not have to submit themselves to another
naturalization proceeding in order to avail of the benefits of the
proceedings involving the husband. Section 16 provides: .
SEC. 16. Right of widow and children of
petitioners who have died. — In case a petitioner
should die before the final decision has been
rendered, his widow and minor children may
continue the proceedings. The decision rendered
in the case shall, so far as the widow and minor
children are concerned, produce the same legal
effect as if it had been rendered during the life of
the petitioner.
In Tan Lin v. Republic, G.R. No. L-13706, May 31, 1961, 2
SCRA 383, this Court held:
Invoking the above provisions in their favor,
petitioners-appellants argue (1) that under said
Sec. 16, the widow and minor children are allowed
to continue the same proceedings and are not
substituted for the original petitioner; (2) that the
qualifications of the original petitioner remain to be
in issue and not those of the widow and minor
children, and (3) that said Section 16 applies
whether the petitioner dies before or after final
decision is rendered, but before the judgment
becomes executory.
There is force in the first and second arguments.
Even the second sentence of said Section 16
contemplate the fact that the qualifications of the
original petitioner remains the subject of inquiry,
for the simple reason that it states that "The
decision rendered in the case shall, so far as the
widow and minor children are concerned, produce
the same legal effect as if it had been rendered
during the life of the petitioner." This phraseology
emphasizes the intent of the law to continue the
proceedings with the deceased as the theoretical
petitioner, for if it were otherwise, it would have
been unnecessary to consider the decision
rendered, as far as it affected the widow and the
minor children.
xxx xxx xxx
The Chua Chian case (supra), cited by the
appellee, declared that a dead person can not be
bound to do things stipulated in the oath of
allegiance, because an oath is a personal matter.
Therein, the widow prayed that she be allowed to
take the oath of allegiance for the deceased. In the
case at bar, petitioner Tan Lin merely asked that
she be allowed to take the oath of allegiance and
the proper certificate of naturalization, once the
naturalization proceedings of her deceased
husband, shall have been completed, not on
behalf of the deceased but on her own behalf and
of her children, as recipients of the benefits of his
naturalization. In other words, the herein petitioner
proposed to take the oath of allegiance, as a
citizen of the Philippines, by virtue of the legal
provision that "any woman who is now or may
hereafter be married to a citizen of the Philippines
and who might herself be lawfully naturalized shall
be deemed a citizen of the Philippines. Minor
children of persons naturalized under this law who
have been born in the Philippines shall be
considered citizens thereof." (Section 15,
Commonwealth Act No. 473). The decision
granting citizenship to Lee Pa and the record of
the case at bar, do not show that the petitioning
widow could not have been lawfully naturalized, at
the time Lee Pa filed his petition, apart from the
fact that his 9 minor children were all born in the
Philippines. (Decision, In the Matter of the Petition
of Lee Pa to be admitted a citizen of the
Philippines, Civil Case No. 16287, CFI, Manila,
Annex A; Record on Appeal, pp. 8-11). The
reference to Chua Chian case is, therefore,
premature.
Section 16, as may be seen, is a parallel provision to Section
15. If the widow of an applicant for naturalization as Filipino,
who dies during the proceedings, is not required to go through a
naturalization preceeding, in order to be considered as a Filipino
citizen hereof, it should follow that the wife of a living Filipino
cannot be denied the same privilege. This is plain common
sense and there is absolutely no evidence that the Legislature
intended to treat them differently.
Additionally, We have carefully considered the arguments
advanced in the motion for reconsideration in Burca, and We
see no reason to disagree with the following views of counsel: .
It is obvious that the provision itself is a legislative
declaration of who may be considered citizens of
the Philippines. It is a proposition too plain to be
disputed that Congress has the power not only to
prescribe the mode or manner under which
foreigners may acquire citizenship, but also the
very power of conferring citizenship by legislative
fiat. (U. S. v. Wong Kim Ark, 169 U. S. 649, 42 L.
Ed. 890 [1898] ; see 1 Tañada and Carreon,
Political Law of the Philippines 152 [1961 ed.]) The
Constitution itself recognizes as Philippine citizens
"Those who are naturalized in accordance with
law" (Section 1[5], Article IV, Philippine
Constitution). Citizens by naturalization, under this
provision, include not only those who are
naturalized in accordance with legal proceedings
for the acquisition of citizenship, but also those
who acquire citizenship by "derivative
naturalization" or by operation of law, as, for
example, the "naturalization" of an alien wife
through the naturalization of her husband, or by
marriage of an alien woman to a citizen. (See
Tañada & Carreon, op. cit. supra, at 152, 172;
Velayo, Philippine Citizenship and Naturalization 2
[1965 ed.]; 1 Paras, Civil Code 186 [1967 ed.]; see
also 3 Hackworth, Digest of International Law 3).
The phrase "shall be deemed a citizen of the
Philippines" found in Section 14 of the Revised
Naturalization Law clearly manifests an intent to
confer citizenship. Construing a similar phrase
found in the old U.S. naturalization law (Revised
Statutes, 1994), American courts have uniformly
taken it to mean that upon her marriage, the alien
woman becomes by operation of law a citizen of
the United States as fully as if she had complied
with all the provisions of the statutes upon the
subject of naturalization. (U.S. v. Keller, 13 F. 82;
U.S. Opinions of the US Attorney General dated
June 4, 1874 [14 Op. 4021, July 20, 1909 [27 Op.
507], December 1, 1910 [28 Op. 508], Jan. 15,
1920 [32 Op. 2091 and Jan. 12, 1923 [23 398]).
The phrase "shall be deemed a
citizen," in Section 1994 Revised
Statute (U.S. Comp. Stat. 1091,
1268) or as it was in the Act of 1855
(10 Stat. at L. 604, Chapt. 71, Sec.
2), "shall be deemed and taken to be
a citizens" while it may imply that the
person to whom it relates has not
actually become a citizen by the
ordinary means or in the usual way,
as by the judgment of a competent
court, upon a proper application and
proof, yet it does not follow that such
person is on that account practically
any the less a citizen. The word
"deemed" is the equivalent of
"considered" or "judged," and
therefore, whatever an Act of
Congress requires to be "deemed"
or "taken" as true of any person or
thing must, in law, be considered as
having been duly adjudged or
established concerning such person
or thing, and have force and effect
accordingly. When, therefore,
Congress declares that an alien
woman shall, under certain
circumstances, be "deemed" an
American citizen, the effect when the
contingency occurs, is equivalent to
her being naturalized directly by an
Act of Congress or in the usual
mode thereby prescribed. (Van
Dyne, Citizenship of the United
States 239, cited in Velayo,
Philippine Citizenship and
Naturalization 146-147 [1965 ed.];
emphasis ours).
That this was likewise the intent of the Philippine
legislature when it enacted the first paragraph of
Section 15 of the Revised Naturalization Law is
 shown by a textual analysis of the entire statutory
provision. In its entirety, Section 15 reads:
(See supra).
The phrases "shall be deemed" "shall be
considered," and "shall automatically become" as
used in the above provision, are undoubtedly
synonymous. The leading idea or purpose of the
provision was to confer Philippine citizenship by
operation of law upon certain classes of aliens as
a legal consequence of their relationship, by blood
or by affinity, to persons who are already citizens
of the Philippines. Whenever the fact of
relationship of the persons enumerated in the
provision concurs with the fact of citizenship of the
person to whom they are related, the effect is for
said persons to become ipso factocitizens of the
Philippines. "Ipso facto" as here used does not
mean that all alien wives and all minor children of
Philippine citizens, from the mere fact of
relationship, necessarily become such citizens
also. Those who do not meet the statutory
requirements do not ipso facto become citizens;
they must apply for naturalization in order to
acquire such status. What it does mean, however,
is that in respect of those persons enumerated in
Section 15, the relationship to a citizen of the
Philippines is the operative fact which establishes
the acquisition of Philippine citizenship by them.
Necessarily, it also determines the point of time at
which such citizenship commences. Thus, under
the second paragraph of Section 15, a minor child
of a Filipino naturalized under the law, who was
born in the Philippines, becomes ipso facto a
citizen of the Philippines from the time the fact of
relationship concurs with the fact of citizenship of
his parent, and the time when the child became a
citizen does not depend upon the time that he is
able to prove that he was born in the Philippines.
The child may prove some 25 years after the
naturalization of his father that he was born in the
Philippines and should, therefore, be "considered"
a citizen thereof. It does not mean that he became
a Philippine citizen only at that later time. Similarly,
an alien woman who married a Philippine citizen
may be able to prove only some 25 years after her
marriage (perhaps, because it was only 25 years
after the marriage that her citizenship status
became in question), that she is one who might
herself be lawfully naturalized." It is not reasonable
to conclude that she acquired Philippine
citizenship only after she had proven that she
"might herself be lawfully naturalized." It is not
reasonable to conclude that she acquired
Philippine citizenship only after she had proven
that she "might herself be lawfully naturalized."
The point that bears emphasis in this regard is that
in adopting the very phraseology of the law, the
legislature could not have intended that an alien
wife should not be deemed a Philippine
citizen unless and until she proves that she might
herself be lawfully naturalized. Far from it, the law
states in plain terms that she shall be deemed a
citizen of the Philippines if she is one "who might
herself be lawfully naturalized." The proviso that
she must be one "who might herself be lawfully
naturalized" is not a condition precedent to
the vesting or acquisition of citizenship; it is only a
condition or a state of fact necessary to establish
her citizenship as a factum probandum, i.e., as a
fact established and proved in evidence. The word
"might," as used in that phrase, precisely replies
that at the time of her marriage to a Philippine
citizen, the alien woman "had (the) power" to
become such a citizen herself under the laws then
in force. (Owen v. Kelly, 6 DC 191 [1867], aff'd
Kelly v. Owen, 76 US 496, 19 L ed 283 [1869).
That she establishes such power long after her
marriage does not alter the fact that at her
marriage, she became a citizen.
(This Court has held) that "an alien wife of a
Filipino citizen may not acquire the status of a
citizen of the Philippines unless there is proof that
she herself may be lawfully naturalized" (Decision,
pp. 3-4). Under this view, the "acquisition" of
citizenship by the alien wife depends on
her having proven her qualifications for citizenship,
that is, she is not a citizen unless and until she
proves that she may herself be lawfully
naturalized. It is clear from the words of the law
that the proviso does not mean that she must first
prove that she "might herself be lawfully
naturalized" before she shall be deemed (by
Congress, not by the courts) a citizen. Even the
"uniform" decisions cited by this Court (at fn. 2) to
support its holding did not rule that the alien wife
becomes a citizen only after she has proven her
qualifications for citizenship. What those decisions
ruled was that the alien wives in those cases failed
to prove their qualifications and therefore they
failed to establish their claim to citizenship. Thus
in Ly Giok Ha v. Galang, 101 Phil. 459 [l957], the
case was remanded to the lower court for
determination of whether petitioner, whose claim
to citizenship by marriage to a Filipino was
disputed by the Government, "might herself be
lawfully naturalized," for the purpose of " proving
her alleged change of political status from alien to
citizen" (at 464). In Cua v. Board, 101 Phil. 521
[1957], the alien wife who was being deported,
claimed she was a Philippine citizen by marriage
to a Filipino. This Court finding that there was no
proof that she was not disqualified under Section 4
of the Revised Naturalization Law, ruled that: "No
such evidence appearing on record, the claim of
assumption of Philippine citizenship by Tijoe Wu
Suan, upon her marriage to petitioner, is
untenable." (at 523) It will be observed that in
these decisions cited by this Court, the lack of
proof that the alien wives "might (themselves) be
lawfully naturalized" did not necessarily imply that
they did not become, in truth and in fact, citizens
upon their marriage to Filipinos. What the
decisions merely held was that these wives failed
to establish their claim to that status as a proven
fact.
In all instances where citizenship is conferred by
operation of law, the time when citizenship is
conferred should not be confused with the time
when citizenship status is established as a proven
fact. Thus, even a natural-born citizen of the
Philippines, whose citizenship status is put in
issue in any proceeding would be required to
prove, for instance, that his father is a citizen of
the Philippines in order to factually establish his
claim to citizenship.* His citizenship status
commences from the time of birth, although his
claim thereto is established as a fact only at a
subsequent time. Likewise, an alien woman who
might herself be lawfully naturalized becomes a
Philippine citizen at the time of her marriage to a
Filipino husband, not at the time she is able to
establish that status as a proven fact by showing
that she might herself be lawfully naturalized.
Indeed, there is no difference between a statutory
declaration that a person is deemed a citizen of
the Philippines provided his father is such
citizen from a declaration that an alien woman
married to a Filipino citizen of the
Philippines provided she might herself be lawfully
naturalized. Both become citizens by operation of
law; the former becomes a citizen ipso facto upon
birth; the later ipso facto upon marriage.
It is true that unless and until the alien wife proves
that she might herself be lawfully naturalized, it
cannot be said that she has established her status
 as a proven fact. But neither can it be said that on
that account, she did not become a citizen of the
Philippines. If her citizenship status is not
questioned in any legal proceeding, she obviously
has no obligation to establish her status as a fact.
In such a case, the presumption of law should be
that she is what she claims to be. (U.S. v. Roxas,
5 Phil. 375 [1905]; Hilado v. Assad, 51 O.G. 4527
[1955]). There is a presumption that a
representation shown to have been made is true.
(Aetna Indemnity Co. v. George A. Fuller, Co., 73
A. 738, 74 A. 369, 111 ME. 321).
The question that keeps bouncing back as a consequence of
the foregoing views is, what substitute is them for naturalization
proceedings to enable the alien wife of a Philippine citizen to
have the matter of her own citizenship settled and established
so that she may not have to be called upon to prove it everytime
she has to perform an act or enter in to a transaction or
business or exercise a right reserved only to Filipinos? The
ready answer to such question is that as the laws of our country,
both substantive and procedural, stand today, there is no such
procedure, but such paucity is no proof that the citizenship
under discussion is not vested as of the date of marriage or the
husband's acquisition of citizenship, as the case may be, for the
truth is that the same situation objections even as to native-born
Filipinos. Everytime the citizenship of a person is material or
indispensable in a judicial or administrative case, whatever the
corresponding court or administrative authority decides therein
as to such citizenship is generally not considered as
res adjudicata, hence it has to be threshed out again and again
as the occasion may demand. This, as We view it, is the sense
in which Justice Dizon referred to "appropriate proceeding"
in Brito v. Commissioner, supra. Indeed, only the good sense
and judgment of those subsequently inquiring into the matter
may make the effort easier or simpler for the persons concerned
by relying somehow on the antecedent official findings, even if
these are not really binding.
It may not be amiss to suggest, however, that in order to have a
good starting point and so that the most immediate relevant
public records may be kept in order, the following observations
in Opinion No. 38, series of 1958, of then Acting Secretary of
Justice Jesus G. Barrera, may be considered as the most
appropriate initial step by the interested parties:
Regarding the steps that should be taken by an
alien woman married to a Filipino citizen in order
to acquire Philippine citizenship, the procedure
followed in the Bureau of Immigration is as follows:
The alien woman must file a petition for the
cancellation of her alien certificate of registration
alleging, among other things, that she is married to
a Filipino, citizen and that she is not disqualified
from acquiring her husband's citizenship pursuant
to section 4 of Commonwealth Act No. 473, as
amended. Upon the filing of said petition, which
should be accompanied or supported by the joint
affidavit of the petitioner and her Filipino husband
to the effect that the petitioner does not belong to
any of the groups disqualified by the cited section
from becoming naturalized Filipino citizen (please
see attached CEB Form 1), the Bureau of
Immigration conducts an investigation and
thereafter promulgates its order or decision
granting or denying the petition.
Once the Commissioner of Immigration cancels the subject's
registration as an alien, there will probably be less difficulty in
establishing her Filipino citizenship in any other proceeding,
depending naturally on the substance and vigor of the
opposition.
Before closing, it is perhaps best to clarify that this third issue
We have passed upon was not touched by the trial court, but as
the point is decisive in this case, the Court prefers that the
matter be settled once and for all now.
IN VIEW OF ALL THE FOREGOING, the judgment of the
Court a quo dismissing appellants' petition for injunction is
hereby reversed and the Commissioner of Immigration and/or
his authorized representative is permanently enjoined from
causing the arrest and deportation and the confiscation of the
bond of appellant Lau Yuen Yeung, who is hereby declared to
have become a Filipino citizen from and by virtue of her
marriage to her co-appellant Moy Ya Lim Yao alias Edilberto NO. 69
Aguinaldo Lim, a Filipino citizen on January 25, 1962. No costs.
G.R. No. 140520               December 18, 2000
JUSTICE SERAFIN R. CUEVAS, substituted by ARTEMIO G.
TUQUERO in his capacity as Secretary of Justice, Petitoner, 
vs.
JUAN ANTONIO MUÑOZ, Respondent.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari of the Decision of the Court
1 

of Appeals, dated November 9, 1999, directing the immediate release of

respondent Juan Antonio Muñoz from the custody of law upon finding the
Order of provisional arrest dated September 20, 1999 issued by Branch
2

19 of the Regional Trial Court of Manila to be null and void.

The antecedent facts:
On August 23, 1997, the Hong Kong Magistrate’s Court at Eastern
Magistracy issued a warrant for the arrest of respondent for seven (7)
counts of accepting an advantage as an agent contrary to Section 9(1)(a)
of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong, and
seven (7) counts of conspiracy to defraud, contrary to the common law of
Hong Kong. Said warrant remains in full force and effect up to the
3 

present time. 4

On September 13, 1999, the Philippine Department of Justice (hereafter,

"Philippine DOJ") received a request for the provisional arrest of the
respondent from the Mutual Legal Assistance Unit, International Law
Division of the Hong Kong Department of Justice (hereafter, "Hong Kong
DOJ") pursuant to Article 11(1) of the "Agreement Between The
5 

Government Of The Republic Of The Philippines And The Government

Of Hong Kong For The Surrender Of Accused And Convicted Persons"
(hereafter, "RP-Hong Kong Extradition Agreement"). The Philippine DOJ
6 

forwarded the request for provisional arrest to the Anti-Graft Division of

the National Bureau of Investigation (NBI).
On September 17, 1999, for and in behalf of the government of Hong
Kong, the NBI filed an application for the provisional arrest of respondent
with the Regional Trial Court (RTC) of Manila.
On September 20, 1999, Branch 19 of the RTC of Manila issued an
Order granting the application for provisional arrest and issuing the
corresponding Order of Arrest. 7

On September 23, 1999, respondent was arrested pursuant to the said

order, and is currently detained at the NBI detention cell. 8

On October 14, 1999, respondent filed with the Court of Appeals, a

petition for certiorari, prohibition and mandamus with application for
preliminary mandatory injunction and/or writ of habeas corpus assailing
the validity of the Order of Arrest. The Court of Appeals rendered a
decision declaring the Order of Arrest null and void on the following
grounds:
(1) that there was no urgency to warrant the request for
provisional arrest under Article 11(1) of the RP-Hong Kong
Extradition Agreement; 9
(2) that the request for provisional arrest and the accompanying
warrant of arrest and summary of facts were unauthenticated and
mere facsimile copies which are insufficient to form a basis for the
issuance of the Order of Arrest; 10
(3) that the twenty (20) day period for provisional arrest under
Section 20(d) of Presidential Decree No. 1069 otherwise known
as the Philippine Extradition Law, was not amended by Article
11(3) of the RP-Hong Kong Extradition Agreement which
provides for a forty-five (45) day period for provisional arrest;
11
(4) that the Order of Arrest was issued without the Judge having
personally determined the existence of probable cause; and
12 
(5) that the requirement of dual criminality under Section 3(a) of
P.D. No. 1069 has not been satisfied as the crimes for which
respondent is wanted in Hong Kong, namely accepting an
advantage as an agent and conspiracy to commit fraud, are not
punishable by Philippine laws.13
Thus, petitioner Justice Serafin R. Cuevas, in his capacity as the
Secretary of the Department of Justice, lost no time in filing the instant
petition.
14
On November 17, 1999, respondent filed an Urgent Motion For Release
Pending Appeal. He primarily contended that, since Section 20(d) of P.D.
No. 1069 sets the maximum period of provisional arrest at twenty (20)
days, and he has been detained beyond the said period, without both a
request for extradition having been received by the Philippine DOJ and
the corresponding petition for extradition having been filed in the proper
RTC, he should be released from detention.  15
On December 16, 1999, petitioner filed a Manifestation with this Court
stressing the fact that as early as November 5, 1999, the Philippine DOJ
had already received from the Hong Kong DOJ, a formal request for the
surrender of respondent. Petitioner also informed this Court that pursuant
to the said request for extradition, the Philippine DOJ, representing the
Government of Hong Kong, filed on November 22, 1999, a verified
petition for the extradition of respondent docketed as Case No. 99-95733
and currently pending in Branch 10 of the RTC of Manila. 16
Petitioner submits that the Court of Appeals erred in nullifying the Order
of provisional arrest against respondent.
Petitioner imputes the following errors in the subject Decision of the Court
of Appeals, to wit:
I
The Court of Appeals gravely erred in holding that:
A. there was no urgency for the provisional arrest of respondent;
B. the municipal law (P.D. No. 1069) subordinates an
international agreement (RP-Hongkong Agreement);
C. the supporting documents for a request for provisional arrest
have to be authenticated;
D. there was lack of factual and legal bases in the determination
of probable cause; and
E. the offense of accepting an advantage as an agent is not an
offense under the Anti-Graft and Corrupt Practices Act, as
amended.
II
The Court of Appeals seriously erred in declaring as null and void the trial
court’s Order of Arrest dated September 20, 1999 despite that (sic)
respondent waived the right to assail the order of arrest by filing in the
trial court a motion for release on recognizance, that (sic) the issue of
legality of the order of arrest was being determined by the trial court, and
respondent mocked the established rules of procedure intended for an
orderly administration of justice.17
Petitioner takes exception to the finding of the Court of Appeals that the
offense of accepting an advantage as an agent is not punishable under
Republic Act (R.A.) No. 3019 otherwise known as the Anti-Graft and
Corrupt Practices Act, thus, obviating the application of P.D. No.
1069 that requires the offense to be punishable under the laws both of
18 
the requesting state or government and the Republic of the Philippines. 19
However, the issue of whether or not the rule of double criminality applies
was not for the Court of Appeals to decide in the first place. The trial
court in which the petition for extradition is filed is vested with jurisdiction
to determine whether or not the offenses mentioned in the petition are
extraditable based on the application of the dual criminality rule and other
conditions mentioned in the applicable treaty. In this case, the presiding
Judge of Branch 10 of the RTC of Manila has yet to rule on the
extraditability of the offenses for which the respondent is wanted in Hong
Kong. Therefore, respondent has prematurely raised this issue before the
Court of Appeals and now, before this Court.
Petitioner’s other arguments, however, are impressed with merit.
First. There was urgency for the provisional arrest of the respondent.
Section 20(a) of P.D. No. 1069 reads as follows:
Provisional Arrest. - (a) In case of urgency, the requesting state may,
pursuant to the relevant treaty or convention and while the same remains
in force, request for the provisional arrest of the accused, pending receipt
of the request for extradition made in accordance with Section 4 of this
Decree;
and Article 11 of the Extradition Agreement between the Philippines and
Hong Kong provides in part that:
(1) In urgent cases, the person sought may, in accordance with the law of
the requested Party, be provisionally arrested on the application of the
requesting Party. x x x.
Nothing in existing treaties or Philippine legislation defines the meaning
of "urgency" as used in the context of a request for provisional arrest.
Using reasonable standards of interpretation, however, we believe that
"urgency" connotes such conditions relating to the nature of the offense
charged and the personality of the prospective extraditee which would
make him susceptible to the inclination to flee or escape from the
jurisdiction if he were to learn about the impending request for his
extradition and/or likely to destroy the evidence pertinent to the said
request or his eventual prosecution and without which the latter could not
proceed. 20
We find that such conditions exist in respondent’s case.
First. It should be noted that at the time the request for provisional arrest
was made, respondent’s pending application for the discharge of a
restraint order over certain assets held in relation to the offenses with
which he is being charged, was set to be heard by the Court of First
Instance of Hong Kong on September 17, 1999. The Hong Kong DOJ
was concerned that the pending request for the extradition of the
respondent would be disclosed to the latter during the said proceedings,
and would motivate respondent to flee the Philippines before the request
for extradition could be made. 21
There is also the fact that respondent is charged with seven (7) counts of
accepting an advantage as an agent and seven (7) counts of conspiracy
to defraud, for each count of which, if found guilty, he may be punished
with seven (7) and fourteen (14) years imprisonment, respectively.
Undoubtedly, the gravity of the imposable penalty upon an accused is a
factor to consider in determining the likelihood that the accused will
abscond if allowed provisional liberty. It is, after all, but human to fear a
lengthy, if not a lifetime, incarceration. Furthermore, it has also not
escaped the attention of this Court that respondent appears to be affluent
and possessed of sufficient resources to facilitate an escape from this
jurisdiction. 22
The arguments raised by the respondent in support of his allegation that
he is not a flight risk, are, to wit:
a) He did not flee or hide when the Central Bank and the NBI
investigated the matter alleged in the request for extradition of the
Hongkong Government during the second half of 1994; he has
since been cleared by the Central Bank;
b) He did not flee or hide when the Hongkong Government’s
Independent Commission Against Corruption (ICAC) issued a
warrant for his arrest in August 1997; he has in fact filed a case in
Hongkong against the Hongkong Government for the release of
his frozen assets;
c) He never changed his address nor his identity, and has sought
vindication of his rights before the courts in Hongkong and in the
Philippines;
d) He has never evaded arrest by any lawful authority, and
certainly will never fly away now that his mother is on her death
bed.
23
do not convince this Court. That respondent did not flee despite the
investigation conducted by the Central Bank and the NBI way back in
1994, nor when the warrant for his arrest was issued by the Hong Kong
ICAC in August 1997, is not a guarantee that he will not flee now that
proceedings for his extradition are well on the way. Respondent is about
to leave the protective sanctuary of his mother state to face criminal
charges in another jurisdiction. It cannot be denied that this is sufficient
impetus for him to flee the country as soon as the opportunity to do so
arises.
Respondent also avers that his mother’s impending death makes it
impossible for him to leave the country. However, by respondent’s own
admission, his mother finally expired at the Cardinal Santos Hospital in
Mandaluyong City last December 5, 1999. 24
Second. Twelve (12) days after respondent was provisionally arrested,
the Philippine DOJ received from the Hong Kong DOJ, a request for the
surrender or extradition of respondent.
On one hand, Section 20(d) of P.D. No. 1069 reads as follows:
(d) If within a period of twenty (20) days after the provisional arrest the
Secretary of Foreign Affairs has not received the request for extradition
and the documents mentioned in Section 4 of this Decree, the accused
shall be released from custody.
On the other hand, Article 11(3) of the RP-Hong Kong Extradition
Agreement provides that:
(3) The provisional arrest of the person sought shall be terminated upon
the expiration of forty-five days from the date of arrest if the request for
surrender has not been received, unless the requesting Party can justify
continued provisional arrest of the person sought in which case the
period of provisional arrest shall be terminated upon the expiration of a
reasonable time not being more than a further fifteen days. This provision
shall not prevent the re-arrest or surrender of the person sought if the
request for the person’s surrender is received subsequently.
Petitioner contends that Article 11(3) of the RP-Hong Kong Extradition
Agreement which allows a period of forty-five (45) days for provisional
arrest absent a formal request for extradition has amended Section 20(d)
of P.D. No. 1069 which provides only a twenty (20) day period for the
same. 25
Petitioner’s argument on this point, however, has been rendered moot
and academic by the fact that as early as November 5, 1999 or twelve
(12) days after respondent’s arrest on September 23, 1999, the
Philippine DOJ already received from the Hong Kong DOJ, a request for
the surrender of respondent. The crucial event, after all, which tolls the
provisional detention period is the transmittal of the request for the
extradition or surrender of the extraditee. Hence, the question as to
whether the period for provisional arrest stands at twenty (20) days, as
provided for in P.D. No. 1069, or has been extended to forty-five (45)
days under the Extradition Agreement between Hong Kong and the
Philippines is rendered irrelevant by the actual request made by the Hong
Kong DOJ for the extradition of respondent twelve (12) days after the
request for the latter’s provisional arrest.
Likewise, respondent’s contention in his motion for release pending
appeal, that his incarceration cannot continue beyond the twenty (20) day
period without a petition for his extradition having been filed in court, is
simply bereft of merit. It is clear from the above-cited provisions, that for
the provisional arrest of an accused to continue, the formal request for
extradition is not required to be filed in court. It only need be received by
the requested state within the periods provided for by P.D. No. 1069 and
the RP-Hong Kong Extradition Agreement. By no stretch of imagination
may we infer from the required receipt of the request for extradition and
its accompanying documents, the additional requisite that the same be
filed in the court within the same periods.
Third. The request for provisional arrest of respondent and its
accompanying documents are valid despite lack of authentication.
Section 20(b) of P.D. No. 1069 reads as follows:
(b) A request for provisional arrest shall be sent to the Director of the
National Bureau of Investigation, Manila, either through the diplomatic
channels or direct by post or telegraph.
and Article 11(1) of the RP-Hong Kong Extradition Agreement provides in
part that:
x x x. The application for provisional arrest shall contain an indication of
intention to request the surrender of the person sought and the text of a
warrant of arrest or a judgment of conviction against that person, a
statement of the penalty for that offense, and such further information, if
any, as would be necessary to justify the issue of a warrant of arrest had
the offense been committed, or the person convicted, within the
jurisdiction of the requested Party.
The language of the abovequoted provisions is clear. There is no
requirement for the authentication of a request for provisional arrest and
its accompanying documents.
We also note that under Section 20(d) of P.D. No. 1069, viz:
(d) If within a period of 20 days after the request for provisional arrest the
Secretary of Foreign Affairs has not received the request for extradition
and the documents mentioned in Section 4 of this Decree, the accused
26 
shall be released from custody. 27
the original or authenticated copies of the decision or sentence imposed
upon the accused by the requesting state or the criminal charge and the
warrant of arrest issued by the authority of the requesting state, need not
accompany the request for provisional arrest and may, in fact, be
transmitted after the said request has already been received by the
requested state.
Furthermore, the pertinent provision of the RP-Hong Kong Extradition
Agreement enumerates the documents that must accompany the
request, as follows: (1) an indication of the intention to request the
surrender of the person sought; (2) the text of a warrant of arrest or
judgment of conviction against that person; (3) a statement of penalty for
that offense; and (4) such further information as would justify the issue of
a warrant of arrest had the offense been committed, or the person
convicted, within the jurisdiction of the requested party. That the 28 
enumeration does not specify that these documents must be
authenticated copies, is not a mere omission of law. This may be gleaned
from the fact that while Article 11(1) does not require the accompanying
documents of a request for provisional arrest to be authenticated,
Article 9 of the same Extradition Agreement makes authentication a
requisite for admission in evidence of any document accompanying
a request for surrender or extradition. In other words, authentication
29 
is required for the request for surrender or extradition but not for the
request for provisional arrest.
We must also state that the above mentioned provisions of P.D. No. 1069
and the RP-Hong Kong Extradition Agreement, as they are worded,
serve the purpose sought to be achieved by treaty stipulations for
provisional arrest.
The process of preparing a formal request for extradition and its
accompanying documents, and transmitting them through diplomatic
channels, is not only time-consuming but also leakage-prone. There is
naturally a great likelihood of flight by criminals who get an intimation of
the pending request for their extradition. To solve this problem, speedier
initial steps in the form of treaty stipulations for provisional arrest were
formulated. Thus, it is an accepted practice for the requesting state to
30 
rush its request in the form of a telex or diplomatic cable, the practicality
of the use of which is conceded. Even our own Extradition Law (P.D. No.
31 
1069) allows the transmission of a request for provisional
arrest via telegraph. In the advent of modern technology, the telegraph
32 
or cable have been conveniently replaced by the facsimile machine.
Therefore, the transmission by the Hong Kong DOJ of the request for
respondent’s provisional arrest and the accompanying documents,
namely, a copy of the warrant of arrest against respondent, a summary of
the facts of the case against him, particulars of his birth and address, a
statement of the intention to request his provisional arrest and the reason
therefor, by fax machine, more than serves this purpose of expediency.
Respondent’s reliance on Garvida v. Sales, Jr. is misplaced. The
33 
proscription against the admission of a pleading that has been
transmitted by facsimile machine has no application in the case at bar for
obvious reasons. First, the instant case does not involve a pleading; and
second, unlike the COMELEC Rules of Procedure which do not sanction
the filing of a pleading by means of a facsimile machine, P.D. No. 1069
and the RP Hong Kong Extradition Agreement do not prohibit the
transmission of a request for provisional arrest by means of a fax
machine.
In a futile attempt to convince this Court, respondent cites our ruling in
the recent case of Secretary of Justice v. Hon. Lantion, et al. , where we
34 
held that the right of an extraditee to due process necessarily includes
the right to be furnished with copies of the extradition request and
supporting papers, and to file a comment thereto during the evaluation
stage of the extradition proceedings.
Respondent posits that, in the same vein, the admission by the RTC of
the request for provisional arrest and its supporting documents despite
lack of authentication is a violation of the respondent’s right to due
process. This contention fails to impress us.
Respondent’s contention is now a non-issue, in view of our Resolution
dated October 17, 2000 in the said case of Secretary of Justice v. Hon.
Lantion, et al. reconsidering and reversing our earlier decision therein.
Acting on therein petitioner’s Motion for Reconsideration, we held that
therein respondent is bereft of the right to notice and hearing during the
evaluation stage of the extradition process. Worthy to reiterate is the
35 
following concluding pronouncement of this Court in the said case: 36
In tilting the balance in favor of the interests of the State, the Court
stresses that it is not ruling that the private respondent has no right to
due process at all throughout the length and breath of the extrajudicial
proceedings. Procedural due process requires a determination of what
process is due, when it is due and the degree of what is due. Stated
otherwise, a prior determination should be made as to whether
procedural protections are at all due and when they are due, which in
turn depends on the extent to which an individual will be ‘condemned to
suffer grievous loss.’ We have explained why an extraditee has no right
37 
to notice and hearing during the evaluation stage of the extradition
process. As aforesaid, P.D. 1069 xxx affords an extraditee sufficient
opportunity to meet the evidence against him once the petition is filed in
court. The time for the extraditee to know the basis of the request for his
extradition is merely moved to the filing in court of the formal petition for
extradition. The extraditee’s right to know is momentarily withheld during
the evaluation stage of the extradition process to accommodate the more
compelling interest of the State to prevent escape of potential extraditees
which can be precipitated by premature information of the basis of the
request for his extradition. No less compelling at that stage of the
extradition proceedings is the need to be more deferential to the
judgment of a co-equal branch of the government, the Executive, which
has been endowed by our Constitution with greater power over matters
involving our foreign relations. Needless to state, this balance of interests
is not a static but a moving balance which can be adjusted as the
extradition process moves from the administrative stage to the judicial
stage and to the execution stage depending on factors that will come into
play. In sum, we rule that the temporary hold on private respondent’s
privilege of notice and hearing is a soft restraint on his right to due
process which will not deprive him of fundamental fairness should he
decide to resist the request for his extradition to the United States. There
is no denial of due process as long as fundamental fairness is assured a
party.
Respondent also contends that the request for his provisional arrest was
rendered defective by the fact that the person who made the request was
not a foreign diplomat as provided for in Section 4 (2) of P.D. No. 1069,
to wit:
SEC. 4. Request; By Whom Made; Requirements.-
(1) Any foreign state or government with which the Republic of
the Philippines has entered into extradition treaty or convention,
and only when the relevant treaty or convention, remains in force,
may request for the extradition of any accused who is suspected
of being in the territorial jurisdiction of the Philippines.
(2) The request shall be made by the Foreign Diplomat of the
requesting state or government, addressed to the Secretary of
Foreign Affairs, x x x.
This contention deserves scant consideration. The foregoing refers to the
requirements for a request for extradition and not for a request for
provisional arrest. The pertinent provisions are Article 11(2) which states:
An application for provisional arrest may be forwarded through the same
channels as a request for surrender or through the International Criminal
Police Organization (INTERPOL); 38
and Article 8(1) which provides:
Requests for surrender and related documents shall be conveyed
through the appropriate authority as may be notified from time to time by
one party to another.39
Hence, there is sufficient compliance with the foregoing if the request for
provisional arrest is made by an official who is authorized by the
government of the requesting state to make such a request and the
authorization is communicated to the requested state.
The request for provisional arrest of respondent was signed by Wayne
Walsh, Senior Government Counsel of the Mutual Legal Assistance Unit,
International Law Division of the Hong Kong DOJ who stated in
categorical terms that:
The Department of Justice (Mutual Legal Assistance Unit) of the HKSAR
is the appropriate authority under the Agreement to make requests for
provisional arrest and surrender. I confirm that as a member of the
Mutual Legal Assistance Unit, I am authorized (sic) to make this request
for provisional arrest.
40
Last. There was sufficient factual and legal basis for the determination of
probable cause as a requisite for the issuance of the Order of Arrest. 41
We have defined probable cause for the issuance of a warrant of arrest
as "the existence of such facts and circumstances that would lead a
reasonably discreet and prudent person to believe that an offense has
been committed by the person sought to be arrested." The determination
42 
of probable cause is a function of the Judge. Such is the mandate of our
Constitution which provides that a warrant of arrest shall issue only upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce. In the case of Allado v. Diokno, we stated
43  44 
that personal determination by the Judge of the existence of probable
cause means that he -
(a) shall personally evaluate the report and the supporting documents
submitted by the fiscal regarding the existence of probable cause and, on
the basis thereof, issue a warrant of arrest; or, (b) if on the basis thereof
he finds no probable cause, may disregard the fiscal’s report and require
the submission of supporting affidavits of witnesses to aid him in arriving
at a conclusion on the existence of probable cause. 45
The Judge cannot, therefore, merely rely on the certification issued by
the prosecutor. He is, however, not required to personally examine ipso
facto the complainant and his witnesses. He sufficiently complies with the
requirement of personal determination if he reviews the information and
the documents attached thereto, and on the basis thereof forms a belief
that the accused is probably guilty of the crime with which he is being
charged. The Judge determines the existence of probable cause to pass
46 
upon whether a warrant of arrest should be issued against the accused,
that is, whether there is a necessity for placing him under immediate
custody in order not to frustrate the ends of justice.
47
The request for the respondent’s provisional arrest was accompanied by
facsimile copies of the outstanding warrant of arrest issued by the Hong
Kong government, a summary of the facts of the case against
respondent, particulars of his birth and address, an intention to request
his provisional arrest and the reason therefor. The said documents were
appended to the application for respondent’s provisional arrest filed in the
RTC, and formed the basis of the judge’s finding of probable cause for
48 
the issuance of the warrant of arrest against respondent.
Respondent alleges the contrary and surmises that all that the trial judge
did was to interview NBI agent Saunar who filed the application for the
issuance of the warrant of provisional arrest, and that "her honor did not
probably even notice that the supporting documents were not
authenticated." The allegation, baseless and purely speculative, is one
49 
which we cannot countenance in view of the legal presumption that
official duty has been regularly performed.50
That the Presiding Judge of RTC Manila, Branch 19, made a personal
determination of the existence of probable cause on the basis of the
documents forwarded by the Hong Kong DOJ is further supported by the
Order of Arrest against respondent which states:
ORDER
This treats of the Application For Provisional Arrest of Juan Antonio
Muñoz, for the purpose of extradition from the Republic of the
Philippines.
This application was filed in behalf of the Government of Hong Kong
Special Administrative Region for the provisional arrest of Juan Antonio
Muñoz, pursuant to Section 20 of Presidential Decree No. 1069, in
relation to paragraph 1, Article 11 of the Agreement for the Surrender of
Accused and Convicted Persons between the Republic of the Philippines
and Hong Kong on provisional arrest. The application alleged that Juan
Antonio Muñoz is wanted in Hong Kong for seven (7) counts of the
offense of "accepting an advantage as an agent", contrary to Section 9(1)
(9) of the Prevention of Bribery Ordinance Cap. 201 of Hong Kong and
seven (7) counts of the offense of "conspiracy to defraud", contrary to the
Common Law of Hong Kong.
That a warrant of arrest was issued by the Magistrate’s Court at Eastern
Magistracy, Hong Kong on August 23, 1997, pursuant to the 14 charges
filed against him before the issuing Court. Juan Antonio Muñoz is now
alleged to be in the Philippines. He was born on June 24, 1941, a holder
of Philippines Passport No. 2K 934808, formerly an employee of the
Central Bank of the Philippines and with address at Phase 3, BF Homes,
No. 26 D C Chuan Street, Metro Manila.
That there is an urgency in the issuance of the provisional arrest warrant
for the reason that the application to discharge the restraint over the
funds, subject of the offenses, in his Citibank Account in Hong Kong was
set for hearing on September 17, 1999 and that his lawyer in Hong Kong
will be notified of the request of the Hong Kong Government for his
provisional arrest (sic) and Juan Antonio E. Muñoz upon knowledge of
the request.
Considering that the Extradition treaty referred to is part of our systems of
laws and recognized by Presidential Decree No. 1069 and the
Constitution itself by the adoption of international laws, treaties and
conventions as parts (sic) of the law of the land, the application for
provisional arrest of Juan Antonio Muñoz is hereby GRANTED. Let a
warrant for his provisional arrest therefore issue.
SO ORDERED. (Underscoring supplied.)
51 

Finally, petitioner also avers that the respondent has waived his right to
assail the validity of his provisional arrest when he filed a motion for
release on recognizance. Considering that we find petitioner’s other
contentions to be impressed with merit, there is no need to delve further
into this particular issue.
WHEREFORE, the petition is GRANTED, and the assailed Decision of
the Court of Appeals, dated November 9, 1999, in CA-G.R. SP No.
55343 is hereby REVERSED and SET ASIDE. Respondent’s "Urgent
Motion For Release Pending Appeal" is hereby DENIED.
SO ORDERED.