G.R. No. L-5270 January 15, 1910 Section 1 of Act No.
Section 1 of Act No. 55, which went into effect January 1, 1901, provides that —
THE UNITED STATES, plaintiff-appellee,
vs.
H. N. BULL, defendant-appellant.
Bruce & Lawrence, for appellant.
Office of the Solicitor-General Harvey, for appellee.
ELLIOTT, J.:
The appellant was convicted in the Court of First Instance of a violation of section 1 of Act
No. 55, as amended by section 1 of Act No. 275, and from the judgment entered thereon
appealed to this court, where under proper assignments of error he contends: (1) that the
complaint does not state facts sufficient to confer jurisdiction upon the court; (2) that under
the evidence the trial court was without jurisdiction to hear and determine the case; (3) that
Act No. 55 as amended is in violation of certain provisions of the Constitution of the United
States, and void as applied to the facts of this case; and (4) that the evidence is insufficient
to support the conviction.
The information alleges:
That on and for many months prior to the 2d day of December, 1908, the said H. N.
Bull was then and there master of a steam sailing vessel known as the
steamship Standard, which vessel was then and there engaged in carrying and
transporting cattle, carabaos, and other animals from a foreign port and city of
Manila, Philippine Islands; that the said accused H. N. Bull, while master of said
vessel, as aforesaid, on or about the 2d day of December, 1908, did then and there
willfully, unlawfully, and wrongly carry, transport, and bring into the port and city of
Manila, aboard said vessel, from the port of Ampieng, Formosa, six hundred and
seventy-seven (677) head of cattle and carabaos, without providing suitable means
for securing said animals while in transit, so as to avoid cruelty and unnecessary
suffering to the said animals, in this, to wit, that the said H. N. Bull, master, as
aforesaid, did then and there fail to provide stalls for said animals so in transit and
suitable means for trying and securing said animals in a proper manner, and did then
and there cause some of said animals to be tied by means of rings passed through
their noses, and allow and permit others to be transported loose in the hold and on
the deck of said vessel without being tied or secured in stalls, and all without
bedding; that by reason of the aforesaid neglect and failure of the accused to provide
suitable means for securing said animals while so in transit, the noses of some of
said animals were cruelly torn, and many of said animals were tossed about upon
the decks and hold of said vessel, and cruelly wounded, bruised, and killed.
All contrary to the provisions of Acts No. 55 and No. 275 of the Philippine
Commission.
The owners or masters of steam, sailing, or other vessels, carrying or transporting
cattle, sheep, swine, or other animals, from one port in the Philippine Islands to
another, or from any foreign port to any port within the Philippine Islands, shall carry
with them, upon the vessels carrying such animals, sufficient forage and fresh water
to provide for the suitable sustenance of such animals during the ordinary period
occupied by the vessel in passage from the port of shipment to the port of
debarkation, and shall cause such animals to be provided with adequate forage and
fresh water at least once in every twenty-four hours from the time that the animals
are embarked to the time of their final debarkation.
By Act No. 275, enacted October 23, 1901, Act No. 55 was amended by adding to section 1
thereof the following:
The owners or masters of steam, sailing, or other vessels, carrying or transporting
cattle, sheep, swine, or other animals from one port in the Philippine Islands to
another, or from any foreign port to any port within the Philippine Islands, shall
provide suitable means for securing such animals while in transit so as to avoid all
cruelty and unnecessary suffering to the animals, and suitable and proper facilities
for loading and unloading cattle or other animals upon or from vessels upon which
they are transported, without cruelty or unnecessary suffering. It is hereby made
unlawful to load or unload cattle upon or from vessels by swinging them over the
side by means of ropes or chains attached to the thorns.
Section 3 of Act No. 55 provides that —
Any owner or master of a vessel, or custodian of such animals, who knowingly and
willfully fails to comply with the provisions of section one, shall, for every such failure,
be liable to pay a penalty of not less that one hundred dollars nor more that five
hundred dollars, United States money, for each offense. Prosecution under this Act
may be instituted in any Court of First Instance or any provost court organized in the
province or port in which such animals are disembarked.
1. It is contended that the information is insufficient because it does not state that the court
was sitting at a port where the cattle were disembarked, or that the offense was committed
on board a vessel registered and licensed under the laws of the Philippine Islands.
Act No. 55 confers jurisdiction over the offense created thereby on Courts of First Instance or
any provost court organized in the province or port in which such animals are disembarked,
and there is nothing inconsistent therewith in Act No. 136, which provides generally for the
organization of the courts of the Philippine Islands. Act No. 400 merely extends the general
jurisdiction of the courts over certain offenses committed on the high seas, or beyond the
jurisdiction of any country, or within any of the waters of the Philippine Islands on board a
ship or water craft of any kind registered or licensed in the Philippine Islands, in accordance
with the laws thereof. (U.S. vs. Fowler, 1 Phil. Rep., 614.) This jurisdiction may be exercised
by the Court of First Instance in any province into which such ship or water upon which the
offense or crime was committed shall come after the commission thereof. Had this offense
been committed upon a ship carrying a Philippine registry, there could have been no doubt of
the Jurisdiction of the court, because it is expressly conferred, and the Act is in accordance
with well recognized and established public law. But the Standard was a Norwegian vessel,
and it is conceded that it was not registered or licensed in the Philippine Islands under the
laws thereof. We have then the question whether the court had jurisdiction over an offense of
this character, committed on board a foreign ship by the master thereof, when the neglect
and omission which constitutes the offense continued during the time the ship was within the
territorial waters of the United States. No court of the Philippine Islands had jurisdiction over
an offenses or crime committed on the high seas or within the territorial waters of any other
country, but when she came within 3 miles of a line drawn from the headlines which embrace
the entrance to Manila Bay, she was within territorial waters, and a new set of principles
became applicable. (Wheaton, Int. Law (Dana ed.), p. 255, note 105; Bonfils, Le Droit Int.,
sec 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then subject to the
jurisdiction of the territorial sovereign subject through the proper political agency. This
offense was committed within territorial waters. From the line which determines these waters
the Standard must have traveled at least 25 miles before she came to anchor. During that
part of her voyage the violation of the statue continued, and as far as the jurisdiction of the
court is concerned, it is immaterial that the same conditions may have existed while the
vessel was on the high seas. The offense, assuming that it originated at the port of departure
in Formosa, was a continuing one, and every element necessary to constitute it existed
during the voyage across the territorial waters. The completed forbidden act was done within
American waters, and the court therefore had jurisdiction over the subject-matter of the
offense and the person of the offender.
The offense then was thus committed within the territorial jurisdiction of the court, but the
objection to the jurisdiction raises the further question whether that jurisdiction is restricted by
the fact of the nationality of the ship. Every. Every state has complete control and jurisdiction
over its territorial waters. According to strict legal right, even public vessels may not enter the
ports of a friendly power without permission, but it is now conceded that in the absence of a
prohibition such ports are considered as open to the public ship of all friendly powers. The
exemption of such vessels from local jurisdiction while within such waters was not
established until within comparatively recent times. In 1794, Attorney-General Bradford, and
in 1796 Attorney-General Lee, rendered opinions to the effect that "the laws of nations invest
the commander of a foreign ship of war with no exemption from the jurisdiction of the country
into which he comes." (1, Op. U.S. Attys. Gen., 46, 87.) This theory was also supported by
Lord Stowell in an opinion given by him to the British Government as late as 1820. In the
leading case of the Schooner Exchange vs. McFadden (7 Cranch (U.S.), 116, 144), Chief
Justice Marshall said that the implied license under which such vessels enter a friendly port
may reasonably be construed as "containing exemption from the jurisdiction of the sovereign
within whose territory she claims the rights of hospitality." The principle was accepted by the
Geneva Arbitration Tribunal, which announced that "the priviledge of exterritoriality accorded
to vessels of war has been admitted in the law of nations; not as an absolute right, but solely
as a proceeding founded on the principle of courtesy and mutual deference between
nations."
(2 Moore, Int. Law Dig., secs. 252 and 254; Hall, Int. Law, sec. 55; Taylor, Int. Law, sec. 256;
Ortolan, Dip de la Mer, 2. C.X.)
Such vessels are therefore permitted during times of peace to come and go freely. Local
official exercise but little control over their actions, and offenses committed by their crew are
justiciable by their own officers acting under the laws to which they primarily owe allegiance.
This limitation upon the general principle of territorial sovereignty is based entirely upon
comity and convenience, and finds its justification in the fact that experience shows that such
vessels are generally careful to respect local laws and regulation which are essential to the
health, order, and well-being of the port. But comity and convenience does not require the
extension of the same degree of exemption to merchant vessels. There are two well-defined
theories as to extent of the immunities ordinarily granted to them, According to the French
theory and practice, matters happening on board a merchant ship which do not concern the
tranquillity of the port or persons foreign to the crew, are justiciable only by the court of the
country to which the vessel belongs. The French courts therefore claim exclusive jurisdiction
over crimes committed on board French merchant vessels in foreign ports by one member of
the crew against another. (See Bonfils, Le Droit Int. (quat. ed.), secs. 624-628; Martens, Le
Droit Int., tome 2, pp. 338, 339; Ortolan, Dip. de la Mer, tit. 1, p. 292; Masse, Droit Int., tome
2, p. 63.) Such jurisdiction has never been admitted or claim by Great Britain as a right,
although she has frequently conceded it by treaties. (Halleck, Int. Law (Baker's ed.), vol. 1,
231; British Territorial Waters Act, 1878.) Writers who consider exterritoriality as a fact
instead of a theory have sought to restrict local jurisdiction, but Hall, who is doubtless the
leading English authority, says that —
It is admitted by the most thoroughgoing asserters of the territoriality of merchant
vessels that so soon as the latter enter the ports of a foreign state they become
subject to the local jurisdiction on all points in which the interests of the country are
touched. (Hall, Int. Law, p. 263.)
The United States has adhered consistently to the view that when a merchant vessel enters
a foreign port it is subject to the jurisdiction of the local authorities, unless the local
sovereignty has by act of acquiescence or through treaty arrangements consented to waive
a portion of such jurisdiction. (15 Op. Attys. Gen., U. S., 178; 2 Moore, Int. Law Dig., sec.
204; article by Dean Gregory, Mich. Law Review, Vol. II, No. 5.) Chief Justice Marshall, in the
case of the Exchange, said that —
When merchant vessels enter for the purpose of trade, in would be obviously in
convinient and dangerous to society and would subject the laws to continual
infraction and the government to degradation if such individual merchants did not
owe temporary and local allegiance, and were not amendable to the jurisdiction of
the country.
The Supreme Court of the United States has recently said that the merchant vessels of one
country visiting the ports of another for the purpose of trade, subject themselves to the laws
which govern the ports they visit, so long as they remain; and this as well in war as in peace,
unless otherwise provided by treaty. (U. S. vs. Diekelman, 92 U. S., 520-525.)
Certain limitations upon the jurisdiction of the local courts are imposed by article 13 of the
treaty of commerce and navigation between Sweden and Norway and the United States, of
July 4, 1827, which concedes to the consul, vice-consuls, or consular agents of each country
"The right to sit as judges and arbitrators in such differences as may arise between the
captains and crews of the vessels belonging to the nation whose interests are committed to
their charge, without the interference of the local authorities, unless the conduct of the crews
or of the captains should disturb the order or tranquillity of the country." (Comp. of Treaties in
Force, 1904, p. 754.) This exception applies to controversies between the members of the
ship's company, and particularly to disputes regarding wages. (2 Moore, Int. Law Dig., sec.
206, p. 318; Tellefsen vs. Fee, 168 Mass., 188.) The order and tranquillity of the country are
affected by many events which do not amount to a riot or general public disturbance. Thus
an assault by one member of the crew upon another, committed upon the ship, of which the
public may have no knowledge whatever, is not by this treaty withdrawn from the cognizance
of the local authorities.
In 1876 the mates of the Swedish bark Frederike and Carolina engaged in a "quarrel" on
board the vessel in the port of Galveston, Texas. They were prosecuted before a justice of
the peace, but the United States district attorney was instructed by the Government to take
the necessary steps to have the proceedings dismissed, and the aid of the governor of
Texas was invoked with the view to "guard against a repetition of similar proceedings." (Mr.
Fish, Secretary of State, to Mr. Grip, Swedish and Norwegian charged, May 16, 1876;
Moore, Int. Law Dig.) It does not appear that this "quarrel" was of such a nature as to amount
to a breach of the criminal laws of Texas, but when in 1879 the mate for the Norwegian bark
Livingston was prosecuted in the courts of Philadelphia County for an assault and battery
committed on board the ship while lying in the port of Philadelphia, it was held that there was
nothing in the treaty which deprived the local courts of jurisdiction.
(Commonwealth vs. Luckness, 14 Phila. (Pa.), 363.) Representations were made through
diplomatic channels to the State Department, and on July 30, 1880, Mr. Evarts, Secretary of
State, wrote to Count Lewenhaupt, the Swedish and Norwegian minister, as follows:
I have the honor to state that I have given the matter careful consideration in
connection with the views and suggestion of your note and the provisions of the
thirteenth article of the treaty of 1827 between the United States and Sweden and
Norway. The stipulations contained in the last clause of that article . . . are those
under which it is contended by you that jurisdiction is conferred on the consular
officers, not only in regard to such differences of a civil nature growing out of the
contract of engagement of the seamen, but also as to disposing of controversies
resulting from personal violence involving offense for which the party may be held
amenable under the local criminal law.
This Government does not view the article in question as susceptible of such broad
interpretation. The jurisdiction conferred upon the consuls is conceived to be limited
to their right to sit as judges or abitrators in such differences as may arise between
captains and crews of the vessels, where such differences do not involve on the part
of the captain or crew a disturbance of the order or tranquillity of the country. When,
however, a complaint is made to a local magistrate, either by the captain or one or
more of the crew of the vessel, involving the disturbance of the order or tranquillity of
the country, it is competent for such magistrate to take cognizance of the matter in
furtherance of the local laws, and under such circumstances in the United States it
becomes a public duty which the judge or magistrate is not at liberty voluntarily to
forego. In all such cases it must necessarily be left to the local judicial authorities
whether the procedure shall take place in the United States or in Sweden to
determine if in fact there had been such disturbance of the local order and
tranquillity, and if the complaint is supported by such proof as results in the
conviction of the party accused, to visit upon the offenders such punishment as may
be defined against the offense by the municipal law of the place." (Moore, Int. Law
Dig., vol. 2, p. 315.)
The treaty does not therefore deprive the local courts of jurisdiction over offenses committed
on board a merchant vessel by one member of the crew against another which amount to a
disturbance of the order or tranquillity of the country, and a fair and reasonable construction
of the language requires un to hold that any violation of criminal laws disturbs the order or
traquillity of the country. The offense with which the appellant is charged had nothing to so
with any difference between the captain and the crew. It was a violation by the master of the
criminal law of the country into whose port he came. We thus find that neither by reason of
the nationality of the vessel, the place of the commission of the offense, or the prohibitions of
any treaty or general principle of public law, are the court of the Philippine Islands deprived
of jurisdiction over the offense charged in the information in this case.
It is further contended that the complaint is defective because it does not allege that the
animals were disembarked at the port of Manila, an allegation which it is claimed is essential
to the jurisdiction of the court sitting at that port. To hold with the appellant upon this issue
would be to construe the language of the complaint very strictly against the Government. The
disembarkation of the animals is not necessary in order to constitute the completed offense,
and a reasonable construction of the language of the statute confers jurisdiction upon the
court sitting at the port into which the animals are bought. They are then within the territorial
jurisdiction of the court, and the mere fact of their disembarkation is immaterial so far as
jurisdiction is concerned. This might be different if the disembarkation of the animals
constituted a constitutional element in the offense, but it does not.
It is also contended that the information is insufficient because it fails to allege that the
defendant knowingly and willfully failed to provide suitable means for securing said animals
while in transit, so as to avoid cruelty and unnecessary suffering. The allegation of the
complaint that the act was committed willfully includes the allegation that it was committed
knowingly. As said in Woodhouse vs. Rio Grande R.R. Company (67 Texas, 416), "the word
'willfully' carries the idea, when used in connection with an act forbidden by law, that the act
must be done knowingly or intentionally; that, with knowledge, the will consented to,
designed, and directed the act." So in Wong vs. City of Astoria (13 Oregon, 538), it was said:
"The first one is that the complaint did not show, in the words of the ordinance, that the
appellant 'knowingly' did the act complained of. This point, I think, was fully answered by the
respondent's counsel — that the words 'willfully' and 'knowingly' conveyed the same
meaning. To 'willfully' do an act implies that it was done by design — done for a certain
purpose; and I think that it would necessarily follow that it was 'knowingly' done." To the
same effect is Johnson vs. The People (94 Ill., 505), which seems to be on all fours with the
present case.
The evidence shows not only that the defendant's acts were knowingly done, but his defense
rests upon the assertion that "according to his experience, the system of carrying cattle loose
upon the decks and in the hold is preferable and more secure to the life and comfort of the
animals." It was conclusively proven that what was done was done knowingly and
intentionally.
In charging an offense under section 6 of General Orders, No. 58, paragraph 3, it is only
necessary to state the act or omission complained of as constituting a crime or public offense
in ordinary and concise language, without repitition. It need not necessarily be in the words
of the statute, but it must be in such form as to enable a person of common understanding to
know what is intended and the court to pronounce judgment according to right. A complaint
which complies with this requirement is good. (U.S. vs. Sarabia, 4 Phil. Rep., 556.)
The Act, which is in the English language, impose upon the master of a vessel the duty to
"provide suitable means for securing such animals while in transit, so as to avoid all cruelty
and unnecessary suffering to the animals." The allegation of the complaint as it reads in
English is that the defendant willfully, unlawfully, and wrongfully carried the cattle "without
providing suitable means for securing said animals while in transit, so as to avoid cruelty and
unnecessary suffering to the said animals in this . . . that by reason of the aforesaid neglect
and failure of the accused to provide suitable means for securing said animals were cruelty
torn, and many of said animals were tossed about upon the decks and hold of said vessels,
and cruelty wounded, bruised, and killed."
The appellant contends that the language of the Spanish text of the information does not
charge him with failure to provide "sufficient" and "adequate" means. The words used are
"medios suficientes" and "medios adecuados." In view of the fact that the original complaint
was prepared in English, and that the word "suitable" is translatable by the words
"adecuado," "suficiente," and "conveniente," according to the context and circumstances, we
determine this point against the appellant, particularly in view of the fact that the objection
was not made in the court below, and that the evidence clearly shows a failure to provide
"suitable means for the protection of the animals."
2. The appellant's arguments against the constitutionality of Act No. 55 and the amendment
thereto seems to rest upon a fundamentally erroneous conception of the constitutional law of
these Islands. The statute penalizes acts and ommissions incidental to the transportation of
live stock between foreign ports and ports of the Philippine Islands, and had a similar statute
regulating commerce with its ports been enacted by the legislature of one of the States of the
Union, it would doubtless have been in violation of Article I, section 3, of the Constitution of
the United States. (Stubbs vs. People (Colo.), 11 L. R. A., N. S., 1071.)
But the Philippine Islands is not a State, and its relation to the United States is controlled by
constitutional principles different from those which apply to States of the Union. The
importance of the question thus presented requires a statement of the principles which
govern those relations, and consideration of the nature and extent of the legislative power of
the Philippine Commission and the Legislature of the Philippines. After much discussion and
considerable diversity of opinion certain applicable constitutional doctrines are established.
The Constitution confers upon the United States the express power to make war and
treaties, and it has the power possessed by all nations to acquire territory by conquest or
treaty. Territory thus acquired belongs to the United States, and to guard against the
possibility of the power of Congress to provide for its government being questioned, the
framers of the Constitution provided in express terms that Congress should have the power
"to dispose of and make all needful rules and regulations respecting territory and other
property belonging to the United States." (Art. IV, sec. 3, par. 3.) Upon the acquisition of the
territory by the United States, and until it is formally incorporated into the Union, the duty of
providing a government therefor devolves upon Congress. It may govern the territory by its
direct acts, or it may create a local government, and delegate thereto the ordinary powers
required for local government. (Binns vs. U. S., 194 U. S., 486.) This has been the usual
procedure. Congress has provided such governments for territories which were within the
Union, and for newly acquired territory not yet incorporated therein. It has been customary to
organize a government with the ordinary separation of powers into executive, legislative, and
judicial, and to prescribe in an organic act certain general conditions in accordance with
which the local government should act. The organic act thus became the constitution of the
government of the territory which had not been formally incorporated into the Union, and the
validity of legislation enacted by the local legislature was determined by its conformity with
the requirements of such organic act. (National Bank vs. Yankton, 11 Otto (U. S.), 129.) To
the legislative body of the local government Congress has delegated that portion of
legislative power which in its wisdom it deemed necessary for the government of the territory,
reserving, however, the right to annul the action of the local legislature and itself legislate
directly for the territory. This power has been exercised during the entire period of the history
of the United States. The right of Congress to delegate such legislative power can no longer
be seriously questioned. (Dorr vs. U. S., 195 U. S., 138; U. S. vs. Heinszen, 206 U. S., 370,
385.)
The Constitution of the United States does not by its own force operate within such territory,
although the liberality of Congress in legislating the Constitution into contiguous territory
tended to create an impression upon the minds of many people that it went there by its own
force. (Downes vs. Bidwell, 182 U. S., 289.) In legislating with reference to this territory, the
power of Congress is limited only by those prohibitions of the Constitution which go to the
very root of its power to act at all, irrespective of time or place. In all other respects it is
plenary. (De Lima vs. Bidwell, 182 U. S., 1; Downes vs. Bidwell, 182 U. S., 244;
Hawaii vs. Mankichi, 190 U. S., 197; Dorr vs. U. S., 195 U. S., 138; Rassmussen vs. U. S.,
197 U. S., 516.)
This power has been exercised by Congress throughout the whole history of the United
States, and legislation founded on the theory was enacted long prior to the acquisition of the
present Insular possessions. Section 1891 of the Revised Statutes of 1878 provides that
"The Constitution and all laws of the United States which are not locally inapplicable shall
have the same force and effect within all the organized territories, and in every Territory
hereafter organized, as elsewhere within the United States." When Congress organized a
civil government for the Philippines, it expressly provided that this section of the Revised
Statutes should not apply to the Philippine Islands. (Sec. 1, Act of 1902.)
In providing for the government of the territory which was acquired by the United States as a
result of the war with Spain, the executive and legislative authorities have consistently
proceeded in conformity with the principles above state. The city of Manila was surrendered
to the United States on August 13, 1898, and the military commander was directed to hold
the city, bay, and harbor, pending the conclusion of a peace which should determine the
control, disposition, and government of the Islands. The duty then devolved upon the
American authorities to preserve peace and protect person and property within the occupied
territory. Provision therefor was made by proper orders, and on August 26 General Merritt
assumed the duties of military governor. The treaty of peace was signed December 10,
1898. On the 22d of December, 1898, the President announced that the destruction of the
Spanish fleet and the surrender of the city had practically effected the conquest of the
Philippine Islands and the suspension of the Spanish sovereignty therein, and that by the
treaty of peace the future control, disposition, and government of the Islands had been ceded
to the United States. During the periods of strict military occupation, before the treaty of
peace was ratified, and the interim thereafter, until Congress acted (Santiago vs. Noueral,
214 U.S., 260), the territory was governed under the military authority of the President as
commander in chief. Long before Congress took any action, the President organized a civil
government which, however, had its legal justification, like the purely military government
which it gradually superseded, in the war power. The military power of the President
embraced legislative, executive personally, or through such military or civil agents as he
chose to select. As stated by Secretary Root in his report for 1901 —
The military power in exercise in a territory under military occupation includes
executive, legislative, and judicial authority. It not infrequently happens that in a
single order of a military commander can be found the exercise of all three of these
different powers — the exercise of the legislative powers by provisions prescribing a
rule of action; of judicial power by determination of right; and the executive power by
the enforcement of the rules prescribed and the rights determined.
President McKinley desired to transform military into civil government as rapidly as
conditions would permit. After full investigation, the organization of civil government was
initiated by the appointment of a commission to which civil authority was to be gradually
transferred. On September 1, 1900, the authority to exercise, subject to the approval of the
President. "that part of the military power of the President in the Philippine Islands which is
legislative in its character" was transferred from the military government to the Commission,
to be exercised under such rules and regulations as should be prescribed by the Secretary of
War, until such time as complete civil government should be established, or congress
otherwise provided. The legislative power thus conferred upon the Commission was declared
to include "the making of rules and orders having the effect of law for the raising of revenue
by taxes, customs duties, and imposts; the appropriation and expenditure of public funds of
the Islands; the establishment of an educational system to secure an efficient civil service;
the organization and establishment of courts; the organization and establishment of
municipal and departmental government, and all other matters of a civil nature which the
military governor is now competent to provide by rules or orders of a legislative character."
This grant of legislative power to the Commission was to be exercised in conformity with
certain declared general principles, and subject to certain specific restrictions for the
protection of individual rights. The Commission were to bear in mind that the government to
be instituted was "not for our satisfaction or for the expression of our theoretical views, but
for the happiness, peace, and prosperity of the people of the Philippine Island, and the
measures adopted should be made to conforms to their customs, their habits, and even their
prejudices, to the fullest extent consistent with the accomplishment of the indispensable
requisites of just and effective government." The specific restrictions upon legislative power
were found in the declarations that "no person shall be deprived of life, liberty, or property
without due process of law; that private property shall not be taken for public use without just
compensation; that in all criminal prosecutions the accused shall enjoy the right to a speedy
and public trial, to be informed of the nature and cause of the accusation, to be confronted
with the witnesses against him, to have compulsory process for obtaining witnesses in his
favor, and to have the assistance of counsel for his defense; that excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishment inflicted; that no
person shall be put twice in jeopardy for the same offense or be compelled in any criminal
case to be a witness against himself; that the right to be secure against unreasonable
searches and seizures shall not be violated; that neither slavery nor involuntary servitude
shall exist except as a punishment for crime; that no bill of attainder or ex post facto law shall
be passed; that no law shall be passed abridging the freedom of speech or of the press or of
the rights of the people to peaceably assemble and petition the Government for a redress of
grievances; that no law shall be made respecting an establishment of religion or prohibiting
the free exercise thereof, and that the free exercise and enjoyment of religious profession
and worship without discrimination or preference shall forever be allowed."
To prevent any question as to the legality of these proceedings being raised, the Spooner
amendment to the Army Appropriation Bill passed March 2, 1901, provided that "all military,
civil, and judicial powers necessary to govern the Philippine Islands . . . shall until otherwise
provided by Congress be vested in such person and persons, and shall be exercised in such
manner, as the President of the United States shall direct, for the establishment of civil
government, and for maintaining and protecting the inhabitants of said Islands in the free
enjoyment of their liberty, property, and religion." Thereafter, on July 4, 1901, the authority,
which had been exercised previously by the military governor, was transferred to that official.
The government thus created by virtue of the authority of the President as Commander in
Chief of the Army and Navy continued to administer the affairs of the Islands under the
direction of the President until by the Act of July 1, 1902, Congress assumed control of the
situation by the enactment of a law which, in connection with the instructions of April 7, 1900,
constitutes the organic law of the Philippine Islands.
The Act of July 1, 1902, made no substancial changes in the form of government which the
President had erected. Congress adopted the system which was in operation, and approved
the action of the President in organizing the government. Substantially all the limitations
which had been imposed on the legislative power by the President's instructions were
included in the law, Congress thus extending to the Islands by legislative act nor the
Constitution, but all its provisions for the protection of the rights and privileges of individuals
which were appropriate under the conditions. The action of the President in creating the
Commission with designated powers of government, in creating the office of the Governor-
General and Vice-Governor-General, and through the Commission establishing certain
executive departments, was expressly approved and ratified. Subsequently the action of the
President in imposing a tariff before and after the ratification of the treaty of peace was also
ratified and approved by Congress. (Act of March 8, 1902; Act of July 1, 1902;
U.S. vs. Heinszen, 206 U.S., 370; Lincoln vs. U.S., 197 U.S., 419.) Until otherwise provided
by law the Islands were to continue to be governed "as thereby and herein provided." In the
future the enacting clause of all statutes should read "By authority of the United States"
instead of "By the authority of the President." In the course of time the legislative authority of
the Commission in all parts of the Islands not inhabited by Moros or non-Christian tribes was
to be transferred to a legislature consisting of two houses — the Philippine Commission and
the Philippine Assembly. The government of the Islands was thus assumed by Congress
under its power to govern newly acquired territory not incorporated into the United States.
This Government of the Philippine Islands is not a State or a Territory, although its form and
organization somewhat resembles that of both. It stands outside of the constitutional relation
which unites the States and Territories into the Union. The authority for its creation and
maintenance is derived from the Constitution of the United States, which, however, operates
on the President and Congress, and not directly on the Philippine Government. It is the
creation of the United States, acting through the President and Congress, both deriving
power from the same source, but from different parts thereof. For its powers and the
limitations thereon the Government of the Philippines looked to the orders of the President
before Congress acted and the Acts of Congress after it assumed control. Its organic laws
are derived from the formally and legally expressed will of the President and Congress,
instead of the popular sovereign constituency which lies upon any subject relating to the
Philippines is primarily in Congress, and when it exercise such power its act is from the
viewpoint of the Philippines the legal equivalent of an amendment of a constitution in the
United States.
Within the limits of its authority the Government of the Philippines is a complete
governmental organism with executive, legislative, and judicial departments exercising the
functions commonly assigned to such departments. The separation of powers is as complete
as in most governments. In neither Federal nor State governments is this separation such as
is implied in the abstract statement of the doctrine. For instance, in the Federal Government
the Senate exercises executive powers, and the President to some extent controls legislation
through the veto power. In a State the veto power enables him to exercise much control over
legislation. The Governor-General, the head of the executive department in the Philippine
Government, is a member of the Philippine Commission, but as executive he has no veto
power. The President and Congress framed the government on the model with which
Americans are familiar, and which has proven best adapted for the advancement of the
public interests and the protection of individual rights and priviliges.
In instituting this form of government of intention must have been to adopt the general
constitutional doctrined which are inherent in the system. Hence, under it the Legislature
must enact laws subject to the limitations of the organic laws, as Congress must act under
the national Constitution, and the States under the national and state constitutions. The
executive must execute such laws as are constitutionally enacted. The judiciary, as in all
governments operating under written constitutions, must determine the validity of legislative
enactments, as well as the legality of all private and official acts. In performing these
functions it acts with the same independence as the Federal and State judiciaries in the
United States. Under no other constitutional theory could there be that government of laws
and not of men which is essential for the protection of rights under a free and orderly
government.
Such being the constitutional theory of the Government of the Philippine Islands, it is
apparent that the courts must consider the question of the validity of an act of the Philippine
Commission or the Philippine Legislature, as a State court considers an act of the State
legislature. The Federal Government exercises such powers only as are expressly or
impliedly granted to it by the Constitution of the United States, while the States exercise all
powers which have not been granted to the central government. The former operates under
grants, the latter subject to restrictions. The validity of an Act of Congress depends upon
whether the Constitution of the United States contains a grant of express or implied authority
to enact it. An act of a State legislature is valid unless the Federal or State constitution
expressly or impliedly prohibits its enaction. An Act of the legislative authority of the
Philippines Government which has not been expressly disapproved by Congress is valid
unless its subject-matter has been covered by congressional legislation, or its enactment
forbidden by some provision of the organic laws.
The legislative power of the Government of the Philippines is granted in general terms
subject to specific limitations. The general grant is not alone of power to legislate on certain
subjects, but to exercise the legislative power subject to the restrictions stated. It is true that
specific authority is conferred upon the Philippine Government relative to certain subjects of
legislation, and that Congress has itself legislated upon certain other subjects. These,
however, should be viewed simply as enactments on matters wherein Congress was fully
informed and ready to act, and not as implying any restriction upon the local legislative
authority in other matters. (See Opinion of Atty. Gen. of U. S., April 16, 1908.)
The fact that Congress reserved the power to annul specific acts of legislation by the
Government of the Philippine tends strongly to confirm the view that for purposes of
construction the Government of the Philippines should be regarded as one of general instead
of enumerated legislative powers. The situation was unusual. The new government was to
operate far from the source of its authority. To relieve Congress from the necessity of
legislating with reference to details, it was thought better to grant general legislative power to
the new government, subject to broad and easily understood prohibitions, and reserve to
Congress the power to annul its acts if they met with disapproval. It was therefore provided
"that all laws passed by the Government of the Philippine Islands shall be reported to
Congress, which hereby reserves the power and authority to annul the same." (Act of
Congress, July 1, 1902, sec. 86.) This provision does not suspend the acts of the Legislature
of the Philippines until approved by Congress, or when approved, expressly or by
acquiescence, make them the laws of Congress. They are valid acts of the Government of
the Philippine Islands until annulled. (Miners Bank vs. Iowa, 12 How. (U. S.), 1.)
In order to determine the validity of Act No. 55 we must then ascertain whether the
Legislature has been expressly or implication forbidden to enact it. Section 3, Article IV, of
the Constitution of the United States operated only upon the States of the Union. It has no
application to the Government of the Philippine Islands. The power to regulate foreign
commerce is vested in Congress, and by virtue of its power to govern the territory belonging
to the United States, it may regulate foreign commerce with such territory. It may do this
directly, or indirectly through a legislative body created by it, to which its power in this respect
if delegate. Congress has by direct legislation determined the duties which shall be paid
upon goods imported into the Philippines, and it has expressly authorized the Government of
the Philippines to provide for the needs of commerce by improving harbors and navigable
waters. A few other specific provisions relating to foreign commerce may be found in the
Acts of Congress, but its general regulation is left to the Government of the Philippines,
subject to the reserved power of Congress to annul such legislation as does not meet with its
approval. The express limitations upon the power of the Commission and Legislature to
legislate do not affect the authority with respect to the regulation of commerce with foreign
countries. Act No. 55 was enacted before Congress took over the control of the Islands, and
this act was amended by Act No. 275 after the Spooner amendment of March 2, 1901, was
passed. The military government, and the civil government instituted by the President, had
the power, whether it be called legislative or administrative, to regulate commerce between
foreign nations and the ports of the territory. (Cross vs. Harrison, 16 How. (U.S.), 164, 190;
Hamilton vs. Dillin, 21 Wall. (U.S.), 73, 87.) This Act has remained in force since its
enactment without annulment or other action by Congress, and must be presumed to have
met with its approval. We are therefore satisfied that the Commission had, and the
Legislature now has, full constitutional power to enact laws for the regulation of commerce
between foreign countries and the ports of the Philippine Islands, and that Act No. 55, as
amended by Act No. 275, is valid.
3. Whether a certain method of handling cattle is suitable within the meaning of the Act can
not be left to the judgment of the master of the ship. It is a question which must be
determined by the court from the evidence. On December 2, 1908, the defendant Bull
brought into and disembarked in the port and city of Manila certain cattle, which came from
the port of Ampieng, Formosa, without providing suitable means for securing said animals
while in transit, so as to avoid cruelty and unnecessary suffering to said animals, contrary to
the provisions of section 1 of Act No. 55, as amended by section 1 of Act No. 275. The trial
court found the following facts, all of which are fully sustained by the evidence:
That the defendant, H. N. Bull, as captain and master of the Norwegian steamer
known as the Standard, for a period of six months or thereabouts prior to the 2d day
of December, 1908, was engaged in the transportation of cattle and carabaos from
Chines and Japanese ports to and into the city of Manila, Philippine Islands.
That on the 2d day of December, 1908, the defendant, as such master and captain
as aforesaid, brought into the city of Manila, aboard said ship, a large number of
cattle, which ship was anchored, under the directions of the said defendant, behind
the breakwaters in front of the city of Manila, in Manila Bay, and within the
jurisdiction of this court; and that fifteen of said cattle then and there had broken legs
and three others of said cattle were dead, having broken legs; and also that said
cattle were transported and carried upon said ship as aforesaid by the defendant,
upon the deck and in the hold of said ship, without suitable precaution and care for
the transportation of said animals, and to avoid danger and risk to their lives and
security; and further that said cattle were so transported abroad said ship by the
defendant and brought into the said bay, and into the city of Manila, without any
provisions being made whatever upon said decks of said ship and in the hold thereof
to maintain said cattle in a suitable condition and position for such transportation.
That a suitable and practicable manner in which to transport cattle abroad steamship
coming into Manila Bay and unloading in the city of Manila is by way of individual
stalls for such cattle, providing partitions between the cattle and supports at the front
sides, and rear thereof, and cross-cleats upon the floor on which they stand and are
transported, of that in case of storms, which are common in this community at sea,
such cattle may be able to stand without slipping and pitching and falling, individually
or collectively, and to avoid the production of panics and hazard to the animals on
account or cattle were transported in this case. Captain Summerville of the
steamship Taming, a very intelligent and experienced seaman, has testified, as a
witness in behalf of the Government, and stated positively that since the introduction
in the ships with which he is acquainted of the stall system for the transportation of
animals and cattle he has suffered no loss whatever during the last year. The
defendant has testified, as a witness in his own behalf, that according to his
experience the system of carrying cattle loose upon the decks and in the hold is
preferable and more secure to the life and comfort of the animals, but this theory of
the case is not maintainable, either by the proofs or common reason. It can not be
urged with logic that, for instance, three hundred cattle supports for the feet and
without stalls or any other protection for them individually can safely and suitably
carried in times of storm upon the decks and in the holds of ships; such a theory is
against the law of nature. One animal falling or pitching, if he is untied or
unprotected, might produce a serious panic and the wounding of half the animals
upon the ship if transported in the manner found in this case.
The defendant was found guilty, and sentenced to pay a fine of two hundred and fifty pesos,
with subsidiary imprisonment in case of insolvency, and to pay the costs. The sentence and
judgment is affirmed. So ordered.Arellano, C.J., Torres, Johnson, Carson and Moreland,
JJ., concur.
Case Title: US vs Bull, 15 Phil 7
Subject Matter: Applicability of Art. 2 of the Revised Penal Code
Facts:
On December 2, 1908, a steamship vessel engaged in the transport of animals named
Stanford commanded by H.N. Bull docked in the port of Manila, Philippines. It was found that
said vessel from Ampieng, Formosa carried 674 heads of cattle without providing appropriate
shelter and proper suitable means for securing the animals which resulted for most of the
animals to get hurt and others to have died while in transit.
This cruelty to animals is said to be contrary to Acts No. 55 and No. 275 of the Philippine
Constitution. It is however contended that cases cannot be filed because neither was it said
that the court sitting where the animals were disembarked would take jurisdiction, nor did it
say about ships not licensed under Philippine laws, like the ships involved.
Issue:
Whether or not the court had jurisdiction over an offense committed on board a foreign ship
while inside the territorial waters of the Philippines.
Held:
Yes. When the vessel comes within 3 miles from the headlines which embrace the entrance
of Manila Bay, the vessel is within territorial waters and thus, the laws of the Philippines shall
apply. A crime committed on board a Norwegian merchant vessel sailing to the Philippines is
within the jurisdiction of the courts of the Philippines if the illegal conditions existed during the
time the ship was within the territorial waters - regardless of the fact that the same conditions
existed when the ship settled from the foreign port and while it was on the high seas,
In light of the above restriction, the defendant was found guilty and sentenced to pay a fine of
two hundred and fifty pesos with subsidiary imprisonment in case of insolvency, and to pay
the costs.
G.R. No. L-30671 November 28, 1973
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
HON. GUILLERMO P. VILLASOR, as Judge of the Court of First Instance of Cebu,
Branch I, THE PROVINCIAL SHERIFF OF RIZAL, THE SHERIFF OF QUEZON CITY, and
THE SHERIFF OF THE CITY OF MANILA, THE CLERK OF COURT, Court of First
Instance of Cebu, P. J. KIENER CO., LTD., GAVINO UNCHUAN, AND INTERNATIONAL
CONSTRUCTION CORPORATION, respondents.
Office of the Solicitor General Felix V. Makasiar and Solicitor Bernardo P. Pardo for
petitioner.Andres T. Velarde and Marcelo B. Fernan for respondents.
FERNANDO, J.:
The Republic of the Philippines in this certiorari and prohibition proceeding challenges the
validity of an order issued by respondent Judge Guillermo P. Villasor, then of the Court of
First Instance of Cebu, Branch I,1 declaring a decision final and executory and of an alias writ
of execution directed against the funds of the Armed Forces of the Philippines subsequently
issued in pursuance thereof, the alleged ground being excess of jurisdiction, or at the very
least, grave abuse of discretion. As thus simply and tersely put, with the facts being
undisputed and the principle of law that calls for application indisputable, the outcome is
predictable. The Republic of the Philippines is entitled to the writs prayed for. Respondent
Judge ought not to have acted thus. The order thus impugned and the alias writ of execution
must be nullified.
In the petition filed by the Republic of the Philippines on July 7, 1969, a summary of facts
was set forth thus: "7. On July 3, 1961, a decision was rendered in Special Proceedings No.
2156-R in favor of respondents P. J. Kiener Co., Ltd., Gavino Unchuan, and International
Construction Corporation, and against the petitioner herein, confirming the arbitration award
in the amount of P1,712,396.40, subject of Special Proceedings. 8. On June 24, 1969,
respondent Honorable Guillermo P. Villasor, issued an Order declaring the aforestated
decision of July 3, 1961 final and executory, directing the Sheriffs of Rizal Province, Quezon
City [as well as] Manila to execute the said decision. 9. Pursuant to the said Order dated
June 24, 1969, the corresponding Alias Writ of Execution [was issued] dated June 26, 1969,
.... 10. On the strength of the afore-mentioned Alias Writ of Execution dated June 26, 1969,
the Provincial Sheriff of Rizal (respondent herein) served notices of garnishment dated June
28, 1969 with several Banks, specially on the "monies due the Armed Forces of the
Philippines in the form of deposits sufficient to cover the amount mentioned in the said Writ
of Execution"; the Philippine Veterans Bank received the same notice of garnishment on
June 30, 1969 .... 11. The funds of the Armed Forces of the Philippines on deposit with the
Banks, particularly, with the Philippine Veterans Bank and the Philippine National Bank [or]
their branches are public funds duly appropriated and allocated for the payment of pensions
of retirees, pay and allowances of military and civilian personnel and for maintenance and
operations of the Armed Forces of the Philippines, as per Certification dated July 3, 1969 by
the AFP Controller,..."2. The paragraph immediately succeeding in such petition then alleged:
"12. Respondent Judge, Honorable Guillermo P. Villasor, acted in excess of jurisdiction [or]
with grave abuse of discretion amounting to lack of jurisdiction in granting the issuance of an
alias writ of execution against the properties of the Armed Forces of the Philippines, hence,
the Alias Writ of Execution and notices of garnishment issued pursuant thereto are null and
void."3 In the answer filed by respondents, through counsel Andres T. Velarde and Marcelo
B. Fernan, the facts set forth were admitted with the only qualification being that the total
award was in the amount of P2,372,331.40.4
The Republic of the Philippines, as mentioned at the outset, did right in filing
this certiorari and prohibition proceeding. What was done by respondent Judge is not in
conformity with the dictates of the Constitution. .
It is a fundamental postulate of constitutionalism flowing from the juristic concept of
sovereignty that the state as well as its government is immune from suit unless it gives its
consent. It is readily understandable why it must be so. In the classic formulation of Holmes:
"A sovereign is exempt from suit, not because of any formal conception or obsolete theory,
but on the logical and practical ground that there can be no legal right as against the
authority that makes the law on which the right depends."5 Sociological jurisprudence
supplies an answer not dissimilar. So it was indicated in a recent decision, Providence
Washington Insurance Co. v. Republic of the Philippines,6 with its affirmation that "a
continued adherence to the doctrine of non-suability is not to be deplored for as against the
inconvenience that may be caused private parties, the loss of governmental efficiency and
the obstacle to the performance of its multifarious functions are far greater if such a
fundamental principle were abandoned and the availability of judicial remedy were not thus
restricted. With the well known propensity on the part of our people to go to court, at the least
provocation, the loss of time and energy required to defend against law suits, in the absence
of such a basic principle that constitutes such an effective obstacle, could very well be
imagined."7
This fundamental postulate underlying the 1935 Constitution is now made explicit in the
revised charter. It is therein expressly provided: "The State may not be sued without its
consent."8 A corollary, both dictated by logic and sound sense from a basic concept is that
public funds cannot be the object of a garnishment proceeding even if the consent to be
sued had been previously granted and the state liability adjudged. Thus in the recent case
of Commissioner of Public Highways v. San Diego,9 such a well-settled doctrine was
restated in the opinion of Justice Teehankee: "The universal rule that where the State gives
its consent to be sued by private parties either by general or special law, it may limit
claimant's action 'only up to the completion of proceedings anterior to the stage of execution'
and that the power of the Courts ends when the judgment is rendered, since government
funds and properties may not be seized under writs of execution or garnishment to satisfy
such judgments, is based on obvious considerations of public policy. Disbursements of
public funds must be covered by the corresponding appropriation as required by law. The
functions and public services rendered by the State cannot be allowed to be paralyzed or
disrupted by the diversion of public funds from their legitimate and specific objects, as
appropriated by law." 10 Such a principle applies even to an attempted garnishment of a
salary that had accrued in favor of an employee. Director of Commerce and Industry v.
Concepcion, 11 speaks to that effect. Justice Malcolm as ponente left no doubt on that score.
Thus: "A rule which has never been seriously questioned, is that money in the hands of
public officers, although it may be due government employees, is not liable to the creditors of
these employees in the process of garnishment. One reason is, that the State, by virtue of its
sovereignty, may not be sued in its own courts except by express authorization by the
Legislature, and to subject its officers to garnishment would be to permit indirectly what is
prohibited directly. Another reason is that moneys sought to be garnished, as long as they
remain in the hands of the disbursing officer of the Government, belong to the latter,
although the defendant in garnishment may be entitled to a specific portion thereof. And still
another reason which covers both of the foregoing is that every consideration of public policy
forbids it." 12
In the light of the above, it is made abundantly clear why the Republic of the Philippines
could rightfully allege a legitimate grievance.
WHEREFORE, the writs of certiorari and prohibition are granted, nullifying and setting aside
both the order of June 24, 1969 declaring executory the decision of July 3, 1961 as well as
the alias writ of execution issued thereunder. The preliminary injunction issued by this Court
on July 12, 1969 is hereby made permanent.
REPUBLIC OF THE PHILIPPINES, petitioner,vs.
HON. GUILLERMO P. VILLASOR, as Judge of the Court of First Instance of Cebu, Branch I,
THE PROVINCIAL SHERIFF OF RIZAL, THE SHERIFF OF QUEZON CITY, and THE
SHERIFF OF THE CITY OF MANILA, THE CLERK OF COURT, Court of First Instance of
Cebu, P. J. KIENER CO., LTD., GAVINO UNCHUAN, AND INTERNATIONAL
CONSTRUCTION CORPORATION, respondents
Facts:
The case was filed by the Republic of the Philippines requesting to nullify the ruling of The
Court of First Instance in Cebu in garnishing the public funds allocated for the Arm Forces of
the Philippines.
A decision was rendered in Special Proceedings in favor of respondents P. J. Kiener Co.,
Ltd., Gavino Unchuan, and International Construction Corporation, and against the petitioner
herein, confirming the arbitration award in the amount of P1,712,396.40, subject of Special
Proceedings. The respondent Honorable Guillermo P. Villasor, issued an Order declaring the
said decision final and executory, directing the Sheriffs of Rizal Province, Quezon City and
Manila to execute the said decision. The corresponding Alia Writ of Execution was issued.
On the strength of the aforementioned Alias Writ of Execution, the Provincial Sheriff of Rizal
served Notices of Garnishment with several Banks. The funds of the Armed Forces of the
Philippines on deposit with Philippine Veterans Bank and PNB are public funds duly
appropriated and allocated for the payment of pensions of retirees, pay and allowances of
military and civilian personnel and for maintenance and operations of the AFP.
Petitioner, filed prohibition proceedings against respondent Judge Villasor for acting in
excess of jurisdiction with grave abuse of discretion amounting to lack of jurisdiction in
granting the issuance of a Writ of Execution against the properties of the AFP, hence the
notices and garnishment are null and void.
Issues:Whether or not the state can be sued without its consent.
Whether or not the notice of garnishment issued by Judge Villasor is valid.
Discussions:
The provision of Sec 3 Article XVI declares that “the State may not be sued without its
consent”. This provision is merely a recognition of the sovereign character of the State and
express an affirmation of the unwritten rule insulating it from the jurisdiction of the courts of
justice. Another justification is the practical consideration that the demands and
inconveniences of litigation will divert time and resources of the State from the more pressing
matters demanding its attention, to the prejudice of the public welfare.
As a general rule, whether the money is deposited by way of general or special deposit, they
remain government funds and are not subject to garnishment. An exception of the rule is a
law or ordinance that has been enacted appropriating a specific amount to pay a valid
government obligation.
Rulings:
It is a fundamental postulate of constitutionalism flowing from the juristic concept of
sovereignty that the state as well as its government is immune from suit unless it gives its
consent. A sovereign is exempt from suit, not because of any formal conception or obsolete
theory, but on the logical and practical ground that there can be no legal right as against the
authority that makes the law on which the right depends. A continued adherence to the
doctrine of non-suability is not to be deplored for as against the inconvenience that may
cause private parties, the loss of government efficiency and the obstacle to the performance
of its multifarious functions are far greater is such a fundamental principle were abandoned
and the availability of judicial remedy were not thus restricted.
What was done by respondent Judge is not in conformity with the dictates of the
Constitution. From a logical and sound sense from the basic concept of the non-suability of
the State, public funds cannot be the object of a garnishment proceeding even if the consent
to be sued had been previously granted and the state liability adjudged. Disbursements of
public funds must be covered by the corresponding appropriation as required by law. The
functions and public services rendered by the State cannot be allowed to be paralyzed or
disrupted by the diversion of public funds from their legitimate and specific objects, as
appropriated by law.
KHOSROW MINUCHER, petitioner,
vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.
VITUG, J.:
Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425,
otherwise also known as the "Dangerous Drugs Act of 1972," was filed against petitioner
Khosrow Minucher and one Abbas Torabian with the Regional Trial Court, Branch 151, of
Pasig City. The criminal charge followed a "buy-bust operation" conducted by the Philippine
police narcotic agents in the house of Minucher, an Iranian national, where a quantity of
heroin, a prohibited drug, was said to have been seized. The narcotic agents were
accompanied by private respondent Arthur Scalzo who would, in due time, become one of
the principal witnesses for the prosecution. On 08 January 1988, Presiding Judge Eutropio
Migrino rendered a decision acquitting the two accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court
(RTC), Branch 19, of Manila for damages on account of what he claimed to have been
trumped-up charges of drug trafficking made by Arthur Scalzo. The Manila RTC detailed
what it had found to be the facts and circumstances surrounding the case.
"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the
Philippines to study in the University of the Philippines in 1974. In 1976, under the regime of
the Shah of Iran, he was appointed Labor Attaché for the Iranian Embassies in Tokyo, Japan
and Manila, Philippines. When the Shah of Iran was deposed by Ayatollah Khomeini, plaintiff
became a refugee of the United Nations and continued to stay in the Philippines. He headed
the Iranian National Resistance Movement in the Philippines.
"He came to know the defendant on May 13, 1986, when the latter was brought to his house
and introduced to him by a certain Jose Iñigo, an informer of the Intelligence Unit of the
military. Jose Iñigo, on the other hand, was met by plaintiff at the office of Atty. Crisanto
Saruca, a lawyer for several Iranians whom plaintiff assisted as head of the anti-Khomeini
movement in the Philippines.
"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose
Iñigo, the defendant expressed his interest in buying caviar. As a matter of fact, he bought
two kilos of caviar from plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of
Persian carpets, pistachio nuts and other Iranian products was his business after the
Khomeini government cut his pension of over $3,000.00 per month. During their introduction
in that meeting, the defendant gave the plaintiff his calling card, which showed that he is
working at the US Embassy in the Philippines, as a special agent of the Drug Enforcement
Administration, Department of Justice, of the United States, and gave his address as US
Embassy, Manila. At the back of the card appears a telephone number in 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.8 Traditionally, the exercise of diplomatic
intercourse among states was undertaken by the head of state himself, as being the
preeminent embodiment of the state he represented, and the foreign secretary, the official
usually entrusted with the external affairs of the state. Where a state would wish to have a
more prominent diplomatic presence in the receiving state, it would then send to the latter a
diplomatic mission. Conformably with the Vienna Convention, the functions of the diplomatic
mission involve, by and large, the representation of the interests of the sending state and
promoting friendly relations with the receiving state.9
The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors
or nuncios accredited to the heads of state,10 (b) envoys,11 ministers
or internuncios accredited to the heads of states; and (c) charges d' affairs 12 accredited to the
ministers of foreign affairs.13 Comprising the "staff of the (diplomatic) mission" are the
diplomatic staff, the administrative staff and the technical and service staff. Only the heads of
missions, as well as members of the diplomatic staff, excluding the members of the
administrative, technical and service staff of the mission, are accorded diplomatic rank. Even
while the Vienna Convention on Diplomatic Relations provides for immunity to the members
of diplomatic missions, it does so, nevertheless, with an understanding that the same be
restrictively applied. Only "diplomatic agents," under the terms of the Convention, are vested
with blanket diplomatic immunity from civil and criminal suits. The Convention defines
"diplomatic agents" as the heads of missions or members of the diplomatic staff, thus
impliedly withholding the 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 DENIED. No costs.SO ORDERED.
Facts:Violation of the “Dangerous Drugs Act of 1972,” was filed against Minucher following a
“buy-bust operation” conducted by Philippine police narcotic agents accompanied by Scalzo
in the house of Minucher, an Iranian national, where heroin was said to have been seized.
Minucher was later acquitted by the court.
Minucher later on filed for damages due to trumped-up charges of drug trafficking made by
Arthur Scalzo.
Scalzo on his counterclaims that he 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 subsequently 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 of the United States
Embassy addressed to DOJ of the Philippines and a Certification of Vice Consul Donna
Woodward, certifying that the note is a true and faithful copy of its original. Trial court denied
the motion to dismiss.
ISSUE
Whether or not Arthur Scalzo is indeed entitled to diplomatic immunity.
RULLING
YES. A foreign agent, operating within a territory, can be cloaked with immunity from suit as
long as it can be established that he is acting within the directives of the sending state.
The consent or imprimatur of the Philippine government to the activities of the United States
Drug Enforcement Agency, however, can be gleaned from the undisputed facts in the case.
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
Participation of members of the Philippine Narcotics Command in the “buy-bust operation”
conducted at the residence of Minucher at the behest of Scalzo
These 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
G.R. No. L-52179 April 8, 1991
MUNICIPALITY OF SAN FERNANDO, LA UNION, petitioner
vs.
HON. JUDGE ROMEO N. FIRME, JUANA RIMANDO-BANIÑA, IAUREANO BANIÑA, JR.,
SOR MARIETA BANIÑA, MONTANO BANIÑA, ORJA BANIÑA, AND LYDIA R.
BANIÑA, respondents.
Mauro C. Cabading, Jr. for petitioner.
Simeon G. Hipol for private respondent.
MEDIALDEA, J.:
This is a petition for certiorari with prayer for the issuance of a writ of preliminary mandatory
injunction seeking the nullification or modification of the proceedings and the orders issued
by the respondent Judge Romeo N. Firme, in his capacity as the presiding judge of the Court
of First Instance of La Union, Second Judicial District, Branch IV, Bauang, La Union in Civil
Case No. 107-BG, entitled "Juana Rimando Baniña, et al. vs. Macario Nieveras, et al." dated
November 4, 1975; July 13, 1976; August 23,1976; February 23, 1977; March 16, 1977; July
26, 1979; September 7, 1979; November 7, 1979 and December 3, 1979 and the decision
dated October 10, 1979 ordering defendants Municipality of San Fernando, La Union and
Alfredo Bislig to pay, jointly and severally, the plaintiffs for funeral expenses, actual damages
consisting of the loss of earning capacity of the deceased, attorney's fees and costs of suit
and dismissing the complaint against the Estate of Macario Nieveras and Bernardo Balagot.
The antecedent facts are as follows:
Petitioner Municipality of San Fernando, La Union is a municipal corporation existing under
and in accordance with the laws of the Republic of the Philippines. Respondent Honorable
Judge Romeo N. Firme is impleaded in his official capacity as the presiding judge of the
Court of First Instance of La Union, Branch IV, Bauang, La Union. While private respondents
Juana Rimando-Baniña, Laureano Baniña, Jr., Sor Marietta Baniña, Montano Baniña, Orja
Baniña and Lydia R. Baniña are heirs of the deceased Laureano Baniña Sr. and plaintiffs in
Civil Case No. 107-Bg before the aforesaid court.
At about 7 o'clock in the morning of December 16, 1965, a collision occurred involving a
passenger jeepney driven by Bernardo Balagot and owned by the Estate of Macario
Nieveras, a gravel and sand truck driven by Jose Manandeg and owned by Tanquilino
Velasquez and a dump truck of the Municipality of San Fernando, La Union and driven by
Alfredo Bislig. Due to the impact, several passengers of the jeepney including Laureano
Baniña Sr. died as a result of the injuries they sustained and four (4) others suffered varying
degrees of physical injuries.
On December 11, 1966, the private respondents instituted a compliant for damages against
the Estate of Macario Nieveras and Bernardo Balagot, owner and driver, respectively, of the
passenger jeepney, which was docketed Civil Case No. 2183 in the Court of First Instance of
La Union, Branch I, San Fernando, La Union. However, the aforesaid defendants filed a
Third Party Complaint against the petitioner and the driver of a dump truck of petitioner.
Thereafter, the case was subsequently transferred to Branch IV, presided over by
respondent judge and was subsequently docketed as Civil Case No. 107-Bg. By virtue of a
court order dated May 7, 1975, the private respondents amended the complaint wherein the
petitioner and its regular employee, Alfredo Bislig were impleaded for the first time as
defendants. Petitioner filed its answer and raised affirmative defenses such as lack of cause
of action, non-suability of the State, prescription of cause of action and the negligence of the
owner and driver of the passenger jeepney as the proximate cause of the collision.
In the course of the proceedings, the respondent judge issued the following questioned
orders, to wit:
(1) Order dated November 4, 1975 dismissing the cross-claim against Bernardo
Balagot;
(2) Order dated July 13, 1976 admitting the Amended Answer of the Municipality of
San Fernando, La Union and Bislig and setting the hearing on the affirmative
defenses only with respect to the supposed lack of jurisdiction;
(3) Order dated August 23, 1976 deferring there resolution of the grounds for the
Motion to Dismiss until the trial;
(4) Order dated February 23, 1977 denying the motion for reconsideration of the
order of July 13, 1976 filed by the Municipality and Bislig for having been filed out of
time;
(5) Order dated March 16, 1977 reiterating the denial of the motion for
reconsideration of the order of July 13, 1976;
(6) Order dated July 26, 1979 declaring the case deemed submitted for decision it
appearing that parties have not yet submitted their respective memoranda despite
the court's direction; and
(7) Order dated September 7, 1979 denying the petitioner's motion for
reconsideration and/or order to recall prosecution witnesses for cross examination.
On October 10, 1979 the trial court rendered a decision, the dispositive portion is hereunder
quoted as follows:
IN VIEW OF ALL OF (sic) THE FOREGOING, judgment is hereby rendered for the
plaintiffs, and defendants Municipality of San Fernando, La Union and Alfredo Bislig
are ordered to pay jointly and severally, plaintiffs Juana Rimando-Baniña, Mrs.
Priscilla B. Surell, Laureano Baniña Jr., Sor Marietta Baniña, Mrs. Fe B. Soriano,
Montano Baniña, Orja Baniña and Lydia B. Baniña the sums of P1,500.00 as funeral
expenses and P24,744.24 as the lost expected earnings of the late Laureano Baniña
Sr., P30,000.00 as moral damages, and P2,500.00 as attorney's fees. Costs against
said defendants.
The Complaint is dismissed as to defendants Estate of Macario Nieveras and
Bernardo Balagot.
SO ORDERED. (Rollo, p. 30)
Petitioner filed a motion for reconsideration and for a new trial without prejudice to another
motion which was then pending. However, respondent judge issued another order dated
November 7, 1979 denying the motion for reconsideration of the order of September 7, 1979
for having been filed out of time.
Finally, the respondent judge issued an order dated December 3, 1979 providing that if
defendants municipality and Bislig further wish to pursue the matter disposed of in the order
of July 26, 1979, such should be elevated to a higher court in accordance with the Rules of
Court. Hence, this petition.
Petitioner maintains that the respondent judge committed grave abuse of discretion
amounting to excess of jurisdiction in issuing the aforesaid orders and in rendering a
decision. Furthermore, petitioner asserts that while appeal of the decision maybe available,
the same is not the speedy and adequate remedy in the ordinary course of law.
On the other hand, private respondents controvert the position of the petitioner and allege
that the petition is devoid of merit, utterly lacking the good faith which is indispensable in a
petition for certiorari and prohibition. (Rollo, p. 42.) In addition, the private respondents stress
that petitioner has not considered that every court, including respondent court, has the
inherent power to amend and control its process and orders so as to make them
conformable to law and justice. (Rollo, p. 43.)
The controversy boils down to the main issue of whether or not the respondent court
committed grave abuse of discretion when it deferred and failed to resolve the defense of
non-suability of the State amounting to lack of jurisdiction in a motion to dismiss.
In the case at bar, the respondent judge deferred the resolution of the defense of non-
suability of the State amounting to lack of jurisdiction until trial. However, said respondent
judge failed to resolve such defense, proceeded with the trial and thereafter rendered a
decision against the municipality and its driver.
The respondent judge did not commit grave abuse of discretion when in the exercise of its
judgment it arbitrarily failed to resolve the vital issue of non-suability of the State in the guise
of the municipality. However, said judge acted in excess of his jurisdiction when in his
decision dated October 10, 1979 he held the municipality liable for the quasi-delict committed
by its regular employee.
The doctrine of non-suability of the State is expressly provided for in Article XVI, Section 3 of
the Constitution, to wit: "the State may not be sued without its consent."
Stated in simple parlance, the general rule is that the State may not be sued except when it
gives consent to be sued. Consent takes the form of express or implied consent.
Express consent may be embodied in a general law or a special law. The standing consent
of the State to be sued in case of money claims involving liability arising from contracts is
found in Act No. 3083. A special law may be passed to enable a person to sue the
government for an alleged quasi-delict, as in Merritt v. Government of the Philippine Islands
(34 Phil 311). (see United States of America v. Guinto, G.R. No. 76607, February 26, 1990,
182 SCRA 644, 654.)
Consent is implied when the government enters into business contracts, thereby descending
to the level of the other contracting party, and also when the State files a complaint, thus
opening itself to a counterclaim. (Ibid)
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 provided that they can sue and be sued. (Cruz, Philippine
Political Law, 1987 Edition, p. 39)
A distinction should first be made between suability and liability. "Suability depends on the
consent of the state to be sued, liability on the applicable law and the established facts. The
circumstance that a state is suable does not necessarily mean that it is liable; on the other
hand, it can never be held liable if it does not first consent to be sued. Liability is not
conceded by the mere fact that the state has allowed itself to be sued. When the state does
waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that
the defendant is liable." (United States of America vs. Guinto, supra, p. 659-660)
Anent the issue of whether or not the municipality is liable for the torts committed by its
employee, the test of liability of the municipality depends on whether or not the driver, acting
in behalf of the municipality, is performing governmental or proprietary functions. As
emphasized in the case of Torio vs. Fontanilla (G. R. No. L-29993, October 23, 1978. 85
SCRA 599, 606), the distinction of powers becomes important for purposes of determining
the liability of the municipality for the acts of its agents which result in an injury to third
persons.
Another statement of the test is given in City of Kokomo vs. Loy, decided by the Supreme
Court of Indiana in 1916, thus:
Municipal corporations exist in a dual capacity, and their functions are twofold. In
one they exercise the right springing from sovereignty, and while in the performance
of the duties pertaining thereto, their acts are political and governmental. Their
officers and agents in such capacity, though elected or appointed by them, are
nevertheless public functionaries performing a public service, and as such they are
officers, agents, and servants of the state. In the other capacity the municipalities
exercise a private, proprietary or corporate right, arising from their existence as legal
persons and not as public agencies. Their officers and agents in the performance of
such functions act in behalf of the municipalities in their corporate or individual
capacity, and not for the state or sovereign power." (112 N.E., 994-995) (Ibid, pp.
605-606.)
It has already been remarked that municipal corporations are suable because their charters
grant them the competence to sue and be sued. Nevertheless, they are generally not liable
for torts committed by them in the discharge of governmental functions and can be held
answerable only if it can be shown that they were acting in a proprietary capacity. In
permitting such entities to be sued, the State merely gives the claimant the right to show that
the defendant was not acting in its governmental capacity when the injury was committed or
that the case comes under the exceptions recognized by law. Failing this, the claimant
cannot recover. (Cruz, supra, p. 44.)
In the case at bar, the driver of the dump truck of the municipality insists that "he was on his
way to the Naguilian river to get a load of sand and gravel for the repair of San Fernando's
municipal streets." (Rollo, p. 29.)
In the absence of any evidence to the contrary, the regularity of the performance of official
duty is presumed pursuant to Section 3(m) of Rule 131 of the Revised Rules of Court.
Hence, We rule that the driver of the dump truck was performing duties or tasks pertaining to
his office.
We already stressed in the case of Palafox, et. al. vs. Province of Ilocos Norte, the District
Engineer, and the Provincial Treasurer (102 Phil 1186) that "the construction or maintenance
of roads in which the truck and the driver worked at the time of the accident are admittedly
governmental activities."
After a careful examination of existing laws and jurisprudence, We arrive at the
conclusion that the municipality cannot be held liable for the torts committed by its regular
employee, who was then engaged in the discharge of governmental functions. Hence, the
death of the passenger –– tragic and deplorable though it may be –– imposed on the
municipality no duty to pay monetary compensation.
All premises considered, the Court is convinced that the respondent judge's dereliction in
failing to resolve the issue of non-suability did not amount to grave abuse of discretion. But
said judge exceeded his jurisdiction when it ruled on the issue of liability.
ACCORDINGLY, the petition is GRANTED and the decision of the respondent court is
hereby modified, absolving the petitioner municipality of any liability in favor of private
respondents.SO ORDERED.
FACTS: On December 16, 1965, a collision occurred involving a passenger jeepney driven
by Balagot and owned by the Estate of Macario Nieveras, a gravel and sand truck driven by
Jose Manandeg and owned by Tanquilino Velasquez and a dump truck of the Municipality of
San Fernando, La Union and driven by Alfredo Bislig. Several passengers of the jeepney
including Laureano Baniña Sr. died as a result of the injuries they sustained and 4 others
suffered varying degrees of physical injuries.
The heirs of Baniña Sr. filed a complaint for damages against the Estate of Nieveras and
Balagot. However, the aforesaid defendants filed a Third Party Complaint against the
petitioner and the driver of a dump truck of petitioner. The case was transferred to branch
presided by Judge Firme. The heirs of Baniña Sr. amended the complaint wherein the
petitioner and its regular employee Bislig were impleaded as defendants. Judge Firme in its
decision rendered the Municipality of San Fernando and Bislig jointly and severally liable to
pa funeral expenses, lot expected earnings, moral damages and attorney’s fees.
ISSUE:
Whether or not petitioner was liable.
RULING:The petitioner cannot be held liable by virtue of the non-suability of the State.
The general rule Is that the State may not be sued except when it gives consent to be sued
(Article XVI, Sec. 3 of the Constitution.) Express consent may be embodied in a general law
or a special law. The standing consent of the State to be sued in case of money claims
involving liability arising from contracts is found in Act No. 3083. Consent is implied when the
government enters into business contracts and also when the State files a complaint.
Municipal corporations 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 provided
that they can sue and be sued. However, the circumstance that a state is suable does not
necessarily mean that it is liable; on the other hand, it can never be held liable if it does not
first consent to be sued. Liability is not conceded by the mere fact that the state has allowed
itself to be sued. When the state does waive its sovereign immunity, it is only giving the
plaintiff the chance to prove, if it can, that the defendant is liable.”
Municipal corporations are suable because their charters grant them the competence to sue
and be sued. Nevertheless, they are generally not liable for torts committed by them in the
discharge of governmental functions and can be held answerable only if it can be shown that
they were acting in a proprietary capacity Here, the driver of the dump truck of the
municipality insists that “he was on his way to the Naguilian river to get a load of sand and
gravel for the repair of San Fernando’s municipal streets.” In the absence of any evidence to
the contrary, the regularity of the performance of official duty is presumed pursuant to
Section 3(m) of Rule 131 of the Revised Rules of Court.
Hence, the SC held that the driver of the dump truck was performing duties or tasks
pertaining to his office. Municipality cannot be held liable for the torts committed by its
regular employee, who was then engaged in the discharge of governmental functions.
G.R. No. 102667 February 23, 2000
AMADO J. LANSANG, petitioner,
vs.
COURT OF APPEALS, GENERAL ASSEMBLY OF THE BLIND, INC., and JOSE
IGLESIAS, respondents.
QUISUMBING, J.:
Before us is a petition to review the decision of the Court of Appeals in C.A. G.R. CV No.
27244, which set aside the ruling of the Regional Trial Court, Manila, Branch 8, in Civil Case
No. 88-43887, and ordered petitioner Amado J. Lansang to pay private respondent Jose
Iglesias P50,000.00 in moral damages, P10,000.00 in exemplary damages and P5,000.00 in
attorney's fees.
Like public streets, public parks are beyond the commerce of man. However, private
respondents were allegedly awarded a "verbal contract of lease" in 1970 by the National
Parks Development Committee (NPDC), a government initiated civic body engaged in the
development of national parks, including Rizal Park,1 but actually administered by high
profile civic leaders and journalists. Whoever in NPDC gave such "verbal" accommodation to
private respondents was unclear, for indeed no document or instrument appears on record to
show the grantor of the verbal license to private respondents to occupy a portion of the
government park dedicated to the national hero's memory.
Private respondents were allegedly given office and library space as well as kiosks area
selling food and drinks. One such kiosk was located along T.M. Kalaw St., in front of the
Army and Navy Club. Private respondent General Assembly of the Blind, Inc. (GABI) was to
remit to NPDC, 40 percent of the profits derived from operating the kiosks, 2 without again
anything shown in the record who received the share of the profits or how they were used or
spent.
With the change of government after the EDSA Revolution, the new Chairman of the NPDC,
herein petitioner, sought to clean up Rizal Park. In a written notice dated February 23, 1988
and received by private respondents on February 29, 1988, petitioner terminated the so-
called verbal agreement with GABI and demanded that the latter vacate the premises and
the kiosks it ran privately within the public park.3 In another notice dated March 5, 1988,
respondents were given until March 8, 1988 to vacate. 4
The latter notice was signed by private respondent Iglesias, GABI president, allegedly to
indicate his conformity to its contents. However, Iglesias, who is totally blind, claims that he
was deceived into signing the notice. He was allegedly told by Ricardo Villanueva, then chief
warden of Rizal Park, that he was merely acknowledging receipt of the notice. Although
blind, Iglesias as president was knowledgeable enough to run GABI as well as its business.
On the day of the supposed eviction, GABI filed an action for damages and injunction in the
Regional Trial Court against petitioner, Villanueva, and "all persons acting on their
behalf".5 The trial court issued a temporary restraining order on the same day. 6
The TRO expired on March 28, 1988. The following day, GABI was finally evicted by NPDC.
GABI's action for damages and injunction was subsequently dismissed by the RTC, ruling
that the complaint was actually directed against the State which could not be sued without its
consent. Moreover, the trial court ruled that GABI could not claim damages under the alleged
oral lease agreement since GABI was a mere accommodation concessionaire. As such, it
could only recover damages upon proof of the profits it could realize from the conclusion.
The trial court noted that no such proof was presented.1âwphi1.nêt
On appeal, the Court of Appeals reversed the decision of the trial court.
The Court of Appeals ruled that the mere allegation that a government official is being sued
in his official capacity is not enough to protect such official from liability for acts done without
or in excess of his authority.7 Granting that petitioner had the authority to evict GABI from
Rizal Park, "the abusive and capricious manner in which that authority was exercised
amounted to a legal wrong for which he must now be held liable for damages"8 according to
the Court of Appeals.
The Court of Appeals noted that, as the trial court observed, the eviction of GABI came at the
heels of two significant incidents. First, after private respondent Iglesias extended monetary
support to striking workers of the NPDC, and second, after Iglesias sent the Tanodbayan, a
letter on November 26, 1987, denouncing alleged graft and corruption in the NPDC. 9 These,
according to the Court of Appeals, should not have been taken against GABI, which had
been occupying Rizal Park for nearly 20 years. GABI was evicted purportedly for violating its
verbal agreement with NPDC.10 However, the Court of Appeals pointed out that NPDC failed
to present proof of such violation.11
The Court of Appeals found petitioner liable for damages under Articles 19, 21, and 24 of the
Civil Code.12
The Court of Appeals absolved from liability all other persons impleaded in GABI's complaint
since it appeared that they were merely acting under the orders of petitioner. The new
officers of NPDC, additionally impleaded by GABI, were likewise absolved from liability,
absent any showing that they participated in the acts complained of. Petitioner was ordered
to pay private respondent Iglesias moral and exemplary damages and attorney's fees.
Hence, this petition, in which petitioner raises the following issues:
I. WHETHER OR NOT RESPONDENT COURT ERRED IN NOT HOLDING THAT
PRIVATE RESPONDENTS' COMPLAINT AGAINST PETITIONER, AS CHAIRMAN
OF NPDC, AND HIS CO-DEFENDANTS IN CIVIL CASE NO. 88-43887, IS IN
EFFECT A SUIT AGAINST THE STATE WHICH CANNOT BE SUED WITHOUT ITS
CONSENT.
II. WHETHER OR NOT RESPONDENT COURT ERRED IN NOT HOLDING THAT
PETITIONER'S ACT OF TERMINATING RESPONDENT GABI'S CONCESSION IS
VALID AND DONE IN THE LAWFUL PERFORMANCE OF OFFICIAL DUTY.13
Petitioner insists that the complaint filed against him is in reality a complaint against the
State, which could not prosper without the latter's consent. He anchors his argument on the
fact that NPDC is a government agency, and that when he ordered the eviction of GABI, he
was acting in his capacity as chairman of NPDC. Petitioner avers that the mere allegation
that he was being sued in his personal capacity did not remove the case from the coverage
of the law of public officers and the doctrine of state immunity.
Petitioner points out that Iglesias signed the notice of eviction to indicate his conformity
thereto. He contends that as evidence of private respondents' bad faith, they sued petitioner
instead of complying with their undertaking to vacate their library and kiosk at Rizal Park.
Petitioner adds that during the actual eviction, no untoward incident occurred. GABI's
properties were properly inventoried and stored.
According to petitioner, the Court of Appeals' observation that the eviction was prompted by
Iglesias' support for striking NPDC workers and the letter-complaint sent to the Tanodbayan
is merely conjectural.
Finally, petitioner avers that the move to evict GABI and award the spaces it occupied to
another group was an executive policy decision within the discretion of NPDC. GABI's
possession of the kiosks as concessionaire was by mere tolerance of NPDC and, thus, such
possession may be withdrawn at any time, with or without cause.
On the other hand, private respondents aver that petitioner acted beyond the scope of his
authority when he showed malice and bad faith in ordering GABI's ejectment from Rizal
Park. Quoting from the decision of the Court of Appeals, private respondents argue that
petitioner is liable for damages for performing acts "to injure an individual rather than to
discharge a public duty."14
While private respondents recognize the authority of petitioner to terminate the agreement
with GABI "if [the contract] is prejudicial to the interest of the NPDC,"15 they maintain that
petitioner's personal interest, and not that of the NPDC, was the root cause of GABI's
ejecment.
The doctrine of state immunity from suit applies to complaints filed against public officials for
acts done in the performance of their duties. The rule is that the suit must be regarded as
one against the state where satisfaction of the judgment against the public official concerned
will require the state itself to perform a positive act, such as appropriation of the amount
necessary to pay the damages awarded to the plaintiff.16
The rule does not apply where the public official is charged in his official capacity for acts
that are unlawful and injurious to the rights of others.17 Public officials are not exempt, in their
personal capacity, from liability arising from acts committed in bad faith.18
Neither does it apply where the public official is clearly being sued not in his official capacity
but in his personal capacity, although the acts complained of may have been committed
while he occupied a public position.
We are convinced that petitioner is being sued not in his capacity as NPDC chairman but in
his personal capacity. The complaint filed by private respondents in the RTC merely
identified petitioner as chairman of the NPDC, but did not categorically state that he is being
sued in that capacity.19 Also, it is evident from paragraph 4 of said complaint that petitioner
was sued allegedly for having personal motives in ordering the ejectment of GABI from Rizal
Park.
4. Defendant AMADO J. LANSANG, JR., the Chairman of the National Parks
Development Committee, acting under the spirit of revenge, ill-will, evil motive and
personal resentment against plaintiff JOSE IGLESIAS, served on the plaintiff
corporation a letter, dated February 23, 1988 terminating plaintiffs lease agreement
with a demand for the plaintiff corporation to vacate its office premises. .
.20 (Emphasis supplied.)
The parties do not dispute that it was petitioner who ordered the ejectment of GABI from their
office and kiosk at Rizal Park. There is also no dispute that petitioner, as chairman of the
NPDC which was the agency tasked to administer Rizal Park, had the authority to terminate
the agreement with GABI21 and order the organization's ejectment. The question now is
whether or not petitioner abused his authority in ordering the ejectment of private
respondents.
We find, however, no evidence of such abuse of authority on record. As earlier stated, Rizal
Park is beyond the commerce of man and, thus, could not be the subject of a lease contract.
Admittedly, there was no written contract. That private respondents were allowed to occupy
office and kiosk spaces in the park was only a matter of accommodation by the previous
administrator. This being so, also admittedly, petitioner may validly discontinue the
accommodation extended to private respondents, who may be ejected from the park when
necessary. Private respondents cannot and does not claim a vested right to continue to
occupy Rizal Park.
The Court of Appeals awarded private respondent Iglesias moral and exemplary damages
and attorney's fees. However, we find no evidence on record to support Iglesias' claim that
he suffered moral injury as a result of GABI's ejectment from Rizal Park. Absent any
satisfactory proof upon which the Court may base the amount of damages suffered, the
award of moral damages cannot be sustained.22
Neither can we sustain the award of exemplary damages, which may only be awarded in
addition to moral, temperate, liquidated, or compensatory damages.23 We also disallow the
award for attorney's fees, which can only be recovered per stipulation of the parties, which is
absent in this case. There is no showing that any of the exceptions justifying the award of
attorney's fees absent a stipulation is present in this case.24
WHEREFORE, the instant petition is GRANTED. The decision of the Court of Appeals in CA-
G.R. CV No. 27244 is hereby SET ASIDE, and the DISMISSAL of the complaint for damages
by the trial court for want of merit is AFFIRMED. No costs.SO ORDERED.1âwphi1.nêt
Facts: Private respondents General Assembly of the Blind, Inc. (GABI) and Jose Iglesias
were allegedly awarded a verbal contract of lease in 1970 to occupy a portion of Rizal Park
by the National Parks Development Committee (NPDC), a government initiated civic body
engaged in the development of national parks. Private respondents were allegedly given
office and library space as well as kiosks area selling food and drinks. Private respondent
GABI was to remit to NPDC 40% of the profits derived from operating the kiosks. After the
EDSA Revolution, petitioner Lansang, the new Chairman of the NPDC, sought to clean up
Rizal Park. Petitioner terminated the so-called verbal agreement with GABI and demanded
that the latter vacate the premises and the kiosks it ran privately within the public park. On
the day of the supposed eviction, GABI filed an action for damages and injunction against
petitioner.
Issue: Whether or not the complaint filed against the petitioner is in reality a complaint
against the State, which could not prosper without the State’s consent
Held: The doctrine of state immunity from suit applies to complaints filed against public
officials for acts done in the performance of their duties. The rule is that the suit must be
regarded as one against the state where satisfaction of the judgment against the public
official concerned will require the state itself to perform a positive act, such as appropriation
of the amount necessary to pay the damages awarded to the plaintiff.
The rule does not apply where the public official is charged in his official capacity for acts
that are unlawful and injurious to the rights of others. Public officials are not exempt, in their
personal capacity, from liability arising from acts committed in bad faith. Neither does its
apply where the public official is clearly being sued not in his official capacity but in his
personal capacity, although the acts complained of may have been committed while he
occupied a public position.
In the case, the petitioner is being sued not in his capacity as NPDC chairman but in his
personal capacity. It is also evident the petitioner is sued allegedly for having personal
motives in ordering the ejectment of GABI from Rizal Park.
The important question to consider is whether or not petitioner abused his authority in
ordering the ejectment of GABI.
The Court found no evidence of such abuse of authority. Rizal Park is beyond the commerce
of man and, thus, could not be the subject of lease contract. That private respondents were
allowed to occupy office and kiosk spaces in the park was only a matter of accommodation
by the previous administrator. This being so, petitioner may validly discontinue the
accommodation extended to private respondents, who may be ejected from the park when
necessary. Private respondents cannot and do not claim a vested right to continue to occupy
Rizal Park.
[G.R. No. 74135. May 28, 1992.]
M. H. WYLIE and CAPT. JAMES WILLIAMS, Petitioners, v. AURORA I. RARANG and
THE HONORABLE INTERMEDIATE APPELLATE COURT, Respondents.
SYLLABUS
1. POLITICAL LAW; STATE IMMUNITY FROM SUIT; BASIS AND JUSTIFICATION FOR
ENFORCEMENT OF DOCTRINE. — In the case of United States of America v. Guinto (182
SCRA 644 [1990]), we discussed the principle of the state immunity from suit as follows:
"The rule that a state may not be sued without its consent, now expressed in Article XVI,
Section 3, of the 1987 Constitution, is one of the generally accepted principles of
international law that we have adopted as part of the law of our land under Article II, Section
2. . . . Even without such affirmation, we would still be bound by the generally accepted
principles of international law under the doctrine of incorporation. Under this doctrine, as
accepted by the majority of states, such principles are deemed incorporated in the law of
every civilized state as a condition and consequence of its membership in the society of
nations. Upon its admission to such society, the state is automatically obligated to comply
with these principles in its relations with other states. As applied to the local state, the
doctrine of state immunity is based on the justification given by Justice Holmes that ‘there
can be no legal right against the authority which makes the law on which the right depends.’
(Kawanakoa v. Polybank, 205 U.S. 349) There are other practical reasons for the
enforcement of the doctrine. In the case of the foreign state sought to be impleaded in the
local jurisdiction, the added inhibition is expressed in the maxim par in parem, non habet
imperium. All states are sovereign equals and cannot assert jurisdiction over one another. A
contrary disposition would, in the language of a celebrated case, ‘unduly vex the peace of
nations.’ (Da Haber v. Queen of Portugal, 17 Q.B. 171)
2. ID.; ID.; PROHIBITED SUITS; GENERAL RULE; EXCEPTIONS; QUALIFICATION OF
RULES. — While the doctrine appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties. The rule is that if the judgment against
such officials will require the state itself to perform an affirmative act to satisfy the same,
such as the appropriation of the amount needed to pay the damages awarded against them,
the suit must be regarded as against the state itself although it has not been formally
impleaded. (Garcia v. Chief of Staff, 16 SCRA 120) In such a situation, the state may move
to dismiss the complaint on the ground that it has been filed without its consent. The doctrine
is sometimes derisively called ‘the royal prerogative of dishonesty’ because of the privilege it
grants the state to defeat any legitimate claim against it by simply invoking its non-suability.
That is hardly fair, at least in democratic societies, for the state is not an unfeeling tyrant
unmoved by the valid claims of its citizens. In fact, the doctrine is not absolute and does not
say the state may not be sued under any circumstance. On the contrary, the rule says that
the state may not be sued without its consent, which clearly imports that it may be sued if it
consents. The consent of the state to be sued may be manifested expressly or impliedly.
Express consent may be embodied in a general law or a special law. Consent is implied
when the state enters into a contract it itself commences litigation. . . . The above rules are
subject to qualification. Express consent is effected only by the will of the legislature through
the medium of a duly enacted statute. (Republic v. Purisima, 78 SCRA 470) We have held
that not all contracts entered into by the government will operate as a waiver of its non-
suability; distinction must be made between its sovereign and proprietary acts. (United
States of America v. Ruiz, 136 SCRA 487) As for the filing of a complaint by the government,
suability will result only where the government is claiming affirmative relief from the
defendant. (Lim v. Brownell, 107 Phil. 345)"
3. ID.; ID.; IMMUNITY FROM SUIT OF UNITED STATES AND ITS PERSONNEL
STATIONED IN PHILIPPINE TERRITORY; NATURE AND EXTENT; WAIVER OF
IMMUNITY. — "In the case of the United States of America, the customary rule of
international law on state immunity is expressed with more specificity in the RP-US Bases
Treaty. Article III thereof provides as follows: ‘It is mutually agreed that the United States
shall have the rights, power and authority within the bases which are necessary for the
establishment, use, operation and defense thereof or appropriate for the control thereof and
all the rights, power and authority within the limits of the territorial waters and air space
adjacent to, or in the vicinity of, the bases which are necessary to provide access to them or
appropriate for their control.’." . . It bears stressing at this point that the above observations
do not confer on the United States of America a blanket immunity for all acts done by it or its
agents in the Philippines. Neither may the other petitioners claim that they are also insulated
from suit in this country merely because they have acted as agents of the United States in
the discharge of their official functions. There is no question that the United States of
America, like any other state, will be deemed to have impliedly waived its non-suability if it
has entered into a contract in its proprietary or private capacity. It is only when the contract
involves its sovereign or governmental capacity that no such waiver may be implied. This
was our ruling in United States of America v. Ruiz, (136 SCRA 487) where the transaction in
question dealt with the improvement of the wharves in the naval installation at Subic Bay. As
this was a clearly governmental function, we held that the contract did not operate to divest
the United States of its sovereign immunity from suit.
4. ID.; ID.; ID.; MERE ASSERTION OF NON-SUABILITY NOT GROUND FOR SUMMARY
DISMISSAL OF CHARGES. — The other petitioners in the cases before us all aver they
have acted in the discharge of their official functions as officers or agents of the United
States. However, this is a matter of evidence. The charges against them may not be
summarily dismissed on their mere assertion that their acts are imputable to the United
States of America, which has not given its consent to be sued. In fact, the defendants are
sought to be held answerable for personal torts in which the United States itself is not
involved. If found liable, they and they alone must satisfy the judgment."cralaw virtua1aw
library
5. ID.; ID.; ID.; TORTS AND CRIMES NOT COVERED BY IMMUNITY AGREEMENT. —
Pursuing the question further, does the grant of rights, power, and authority to the United
States under the RP - US Bases Treaty cover immunity of its officers from crimes and torts?
Our answer is No. Killing a person in cold blood while on patrol duty, running over a child
while driving with reckless imprudence on an official trip, or slandering a person during office
hours could not possibly be covered by the immunity agreement. Our laws and, we presume,
those of the United States do not allow the commission of crimes in the name of official duty.
6. ID.; ID.; PUBLIC OFFICIALS PERSONALLY ACCOUNTABLE FOR ULTRA VIRES ACTS;
IMMUNITY FROM SUIT NOT GRANT OF PRIVILEGED STATUS. — The case of Chavez v.
Sandiganbayan, 193 SCRA 282 [1991] gives the law on immunity from suit of public officials:
"The general rule is that public officials can be held personally accountable for acts claimed
to have been performed in connection with official duties where they have acted ultra vires or
where there is showing of bad faith. . . . "Moreover, the petitioner’s argument that the
immunity proviso under Section 4(a) of Executive Order No. 1 also extends to him is not well-
taken. A mere invocation of the immunity clause does not ipso facto result in the charges
being automatically dropped. . . . . "Immunity from suit cannot institutionalize irresponsibility
and non-accountability nor grant a privileged status not claimed by any other official of the
Republic. "Where the petitioner exceeds his authority as Solicitor General, acts in bad faith,
or, as contended by the private respondent, ‘maliciously conspir(es) with the PCGG
commissioners in persecuting respondent Enrile by filing against him an evidently baseless
suit in derogation of the latter’s constitutional rights and liberties,’ there can be no question
that a complaint for damages does not confer a license to persecute or recklessly injure
another. The actions governed by Articles 19, 20, 21, and 32 of the Civil Code on Human
Relations may be taken against public officers or private citizens alike. . . ."cralaw virtua1aw
library
7. CIVIL LAW; DAMAGES; "FAULT" OR NEGLIGENCE INCLUDES CRIMINAL ACTS. —
Article 2176 of the Civil Code prescribes a civil liability for damages caused by a person’s act
or omission constituting fault or negligence, to wit: "Article 2176. Whoever by act or
omission, causes damage to another, there being fault or negligence is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the provisions of this
Chapter." "Fault" or "negligence" in this Article covers not only acts "not punishable by law"
but also acts criminal in character, whether intentional or voluntary or negligent." (Andamo v.
Intermediate Appellate Court, 191 SCRA 195 [1990]).
8. ID.; ID.; MORAL DAMAGES RECOVERABLE IN CASE OF LIBEL, SLANDER OR
OTHER DEFAMATION; ALLEGATION OF FORGERY A DEFAMATION. — Article 2219(7)
of the Civil Code provides that moral damages may be recovered in case of libel, slander or
any other form of defamation. In effect, the offended party in these cases is given the right to
receive from the guilty party moral damages for injury to his feelings and reputation in
addition to punitive or exemplary damages. (Occena v. Icamina, 181 SCRA 328 [1990]. In
another case, Heirs of Basilisa Justiva v. Gustilo, 7 SCRA 72 [1963], we ruled that the
allegation of forgery of documents could be a defamation, which in the light of Article 2219(7)
of the Civil Code could by analogy be ground for payment of moral damages, considering the
wounded feelings and besmirched reputation of the defendants.
9. ID.; ID.; DEFAMATION ESTABLISHED IN CASE AT BAR. — Indeed the imputation of
theft contained in the POD dated February 3, 1978 is a defamation against the character and
reputation of the private Respondent. Petitioner Wylie himself admitted that the Office of the
Provost Marshal explicitly recommended the deletion of the name Auring if the article were
published. The petitioners, however, were negligent because under their direction they
issued the publication without deleting the name "Auring." Such act or omission is ultra vires
and cannot be part of official duty. It was a tortious act which ridiculed the
private Respondent.
DECISION
GUTIERREZ, JR., J.:
The pivotal issue in this petition centers on the extent of the "immunity from suit" of the
officials of a United States Naval Base inside Philippine territory.
In February, 1978, petitioner M. H. Wylie was the assistant administrative officer while
petitioner Capt. James Williams was the commanding officer of the U. S. Naval Base in
Subic Bay, Olongapo City. Private respondent Aurora I. Rarang was an employee in the
Office of the Provost Marshal assigned as merchandise control guard.
M. H. Wylie, in his capacity as assistant administrative officer of the U.S. Naval Station
supervised the publication of the "Plan of the Day" (POD) which was published daily the US
Naval Base station. The POD featured important announcements, necessary precautions,
and general matters of interest to military personnel. One of the regular features of the POD
was the "action line inquiry." On February 3, 1978, the POD published, under the "NAVSTA
ACTION LINE INQUIRY" the following:jgc:chanrobles.com.ph
"Question: I have observed that Merchandise Control inspector/inspectress are (sic)
consuming for their own benefit things they have confiscate from Base Personnel. The
observation is even more aggravated by consuming such confiscated items as cigarettes
and food stuffs PUBLICLY. This is not to mention ‘Auring’ who is in herself, a disgrace to her
division and to the Office of the Provost Marshal. In lieu of this observation, may I therefore,
ask if the head of the Merchandise Control Division is aware of this
malpractice?chanrobles.com : virtual law library
Answer: Merchandise Control Guards and all other personnel are prohibited from
appropriating confiscated items for their own consumption or use. Two locked containers are
installed at the Main Gate area for deposit of confiscated items and the OPM evidence
custodian controls access to these containers.
Merchandise Control Guards are permitted to eat their meals at their worksite due to heavy
workload. Complaints regarding merchandise control guards procedure or actions may be
made directly at the Office of the Provost Marshal for immediate and necessary action.
Specific dates and time along with details of suspected violations would be most
appreciated. Telephone 4-3430/4-3234 for further information or to report noted or suspected
irregularities. Exhibits E & E-1." (Rollo, pp. 11-12)
The private respondent was the only one who was named "Auring" in the Office of the
Provost Marshal. That the private respondent was the same "Auring" referred to in the POD
was conclusively proven when on February 7, 1978, petitioner M. H. Wylie wrote her a letter
of apology for the "inadvertent" publication. The private respondent then commenced an
action for damages in the Court of First Instance of Zambales (now Regional Trial Court)
against M. H. Wylie, Capt. James Williams and the U. S. Naval Base. She alleged that the
article constituted false, injurious, and malicious defamation and libel tending to impeach her
honesty, virtue and reputation exposing her to public hatred, contempt and ridicule; and that
the libel was published and circulated in the English language and read by almost all the U.
S. Naval Base personnel. She prayed that she be awarded P300,000.00 as moral damages
exemplary damages which the court may find proper; and P50,000.00 as attorney’s fees.
In response to the complaint, the defendants filed a motion to dismiss anchored on three
grounds:chanrobles.com : virtual law library
"1. Defendants M. H. Wylie and Capt. James Williams acted in the performance of their
official functions as officers of the United States Navy and are, therefore, immune from suit;
2. The United States Naval Base is an instrumentality of the US government which cannot be
sued without its consent; and
3. This Court has no jurisdiction over the subject matter as well as the parties in this case."
(Record on Appeal, pp. 133-134)
The motion was, however, denied.
In their answer, the defendants reiterated the lack of jurisdiction of the court over the case.
In its decision, the trial court ruled that the acts of defendants M. H. Wylie and Capt. James
Williams were not official acts of the government of the United States of America in the
operation and control of the Base but personal and tortious acts which are exceptions to the
general rule that a sovereign country cannot be sued in the court of another country without
its consent. In short, the trial court ruled that the acts and omissions of the two US officials
were not imputable against the US government but were done in the individual and personal
capacities of the said officials. The trial court dismissed the suit against the US Naval Base.
The dispositive portion of the decision reads as follows:jgc:chanrobles.com.ph
"WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
defendants jointly and severally, as follows:chanrob1es virtual 1aw library
1) Ordering defendants M. H. Wylie and Capt. James Williams to pay the plaintiff Aurora
Rarang the sum of one hundred thousand (100,000.00) pesos by way of moral and
exemplary damages;
2) Ordering defendants M. H. Wylie and Capt. James Williams to pay the plaintiff the sum of
thirty thousand (P30,000.00) pesos by way of attorney’s fees and expenses of litigation; and
3) To pay the costs of this suit.
Counterclaims are dismissed.
Likewise, the suit against the U. S. Naval Base is ordered dismissed." (Record on Appeal, p.
154)
On appeal, the petitioners reiterated their stance that they are immune from suit since the
subject publication was made in their official capacities as officers of the U. S. Navy. They
also maintained that they did not intentionally and maliciously cause the questioned
publication.cralawnad
The private respondent, not satisfied with the amount of damages awarded to her, also
appealed the trial court’s decision.
Acting on these appeals, the Intermediate Appellate Court, now Court of Appeals, modified
the trial court’s decision, to wit:jgc:chanrobles.com.ph
"WHEREFORE, the judgment of the court below is modified so that the defendants are
ordered to pay the plaintiff, jointly and severally, the sum of P175,000.00 as moral damages
and the sum of P60,000.00 as exemplary damages. The rest of the judgment appealed from
is hereby affirmed in toto. Costs against the defendants-appellants." (Rollo, p. 44)
The appellate court denied a motion for reconsideration filed by the petitioners.
Hence, this petition.
In a resolution dated March 9, 1987, we gave due course to the petition.
The petitioner persist that they made the questioned publication in the performance of their
official functions as administrative assistant, in the case of M. H. Wylie, and commanding
officer, in the case of Capt. James Williams of the US Navy assigned to the U. S. Naval
Station, Subic Bay, Olongapo City and were, therefore, immune from suit for their official
actions.
In the case of United States of America v. Guinto (182 SCRA 644 [1990]), we discussed the
principle of the state immunity from suit as follows:jgc:chanrobles.com.ph
"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."cralaw virtua1aw library
Even without such affirmation, we would still be bound by the generally accepted principles
of international law under the doctrine of incorporation. Under this doctrine, as accepted by
the majority of states, such principles are deemed incorporated in the law of every civilized
state as a condition and consequence of its membership in the society of nations. Upon its
admission to such society, the state is automatically obligated to comply with these principles
in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the justification given
by Justice Holmes that ‘there can be no legal right against the authority which makes the law
on which the right depends.’ ((Kawanakoa v. Polybank, 205 U.S. 349) There are other
practical reasons for the enforcement of the doctrine. In the case of the foreign state sought
to be impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in
parem, non habet imperium. All states are sovereign equals and cannot assert jurisdiction
over one another. a contrary disposition would, in the language of a celebrated case, ‘unduly
vex the peace of nations.’ (Da Haber v. Queen of Portugal, 17 Q. B. 171)
While the doctrine appears to prohibit only suits against the state without its consent, it is
also applicable to complaints filed against officials of the state for acts allegedly performed
by them in the discharge of their duties. the rule is that if the judgment against such officials
will require the state itself to perform an affirmative act to satisfy the same, such as the
appropriation of the amount needed to pay the damages awarded against them, the suit
must be regarded as against the state itself although it has not been formally impleaded.
(Garcia v. Chief of Staff, 16 SCRA 120) In such a situation, the state may move to dismiss
the complaint on the ground that it has been filed without its consent.
The doctrine is sometimes derisively called ‘the royal prerogative of dishonesty’ because of
the privilege it grants the state to defeat any legitimate claim against it by simply invoking its
non-suability. That is hardly fair, at least in democratic societies, for the state is not an
unfeeling tyrant unmoved by the valid claims of its citizens. In fact, the doctrine is not
absolute and does not say the state may not be sued under any circumstance. On the
contrary, the rule says that the state may not be sued without its consent, which clearly
imports that it may be sued if it consents.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
The consent of the state to be sued may be manifested expressly or impliedly. Express
consent may be embodied in a general law or a special law. Consent is implied when the
state enters into a contract it itself commences litigation.
The above rules are subject to qualification. Express consent is effected only by the will of
the legislature through the medium of a duly enacted statute. (Republic v. Purisima, 78
SCRA 470) We have held that not all contracts entered into by the government will operate
as a waiver of its non-suability; distinction must be made between its sovereign and
proprietary acts. (United States of America v. Ruiz, 136 SCRA 487) As for the filing of a
complaint by the government, suability will result only where the government is claiming
affirmative relief from the defendant. (Lim v. Brownell, 107 Phil. 345)" (at pp. 652-655).
In the same case we had opportunity to discuss extensively the nature and extent of
immunity from suit of United States personnel who are assigned and stationed in Philippine
territory, to wit:jgc:chanrobles.com.ph
"In the case of the United States of America, the customary rule of international law on state
immunity is expressed with more specificity in the RP-US Bases Treaty. Article III thereof
provides as follows:chanrob1es virtual 1aw library
‘It is mutually agreed that the United States shall have the rights, power and authority within
the bases which are necessary for the establishment, use, operation and defense thereof or
appropriate for the control thereof and all the rights, power and authority within the limits of
the territorial waters and air space adjacent to, or in the vicinity of, the bases which are
necessary to provide access to them or appropriate for their control.’
The petitioners also rely heavily on Baer v. Tizon, (57 SCRA 1) along with several other
decisions, to support their position that they are not suable in the cases below, the United
States not having waived its sovereign immunity from suit. It is emphasized that in Baer, the
Court held:chanrob1es virtual 1aw library
‘The invocation of the doctrine of immunity from suit of a foreign state without its consent is
appropriate. More specifically, insofar as alien armed forces is concerned, the starting point
is Raquiza v. Bradford, a 1945 decision. In dismissing a habeas corpus petition for the
release of petitioners confined by American army authorities, Justice Hilado, speaking for the
Court, cited Coleman v. Tennessee, where it was explicitly declared: ‘It is well settled that a
foreign army, permitted to march through a friendly country or to be stationed in it, by
permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of
the place.’ Two years later, in Tubb and Tedrow v. Griess, this Court relied on the ruling in
Raquiza v. Bradford and cited in support thereof excepts from the works of the following
authoritative writers: Vattel, Wheaton, Hall, Lawrence, Oppenheim, Westlake, Hyde, and
McNair and Lauterpacht. Accuracy demands the clarification that after the conclusion of he
Philippine-American Military Bases Agreement, the treaty provisions should control on such
matter, the assumption being that there was a manifestation of the submission to jurisdiction
on the part of the foreign power whenever appropriate. More to the point is Syquia v. Almeda
Lopez, where plaintiffs as lessors sued the Commanding General of the United States Army
in the Philippines, seeking the restoration to them of the apartment buildings they owned
leased to the United States armed forces station in the Manila area. a motion to dismiss on
the ground of non-suability was filed and upheld by respondent Judge. The matter was taken
to this Court in a mandamus proceeding. It failed. It was the ruling that respondent Judge
acted correctly considering that the ‘action must be considered as one against the U.S.
Government.’ The opinion of Justice Montemayor continued: ‘It is clear that the courts of he
Philippines including the Municipal Court of Manila have no jurisdiction over the present case
for unlawful detainer. The question of lack of jurisdiction was raised and interposed at the
very beginning of the action. The U.S. Government has not given its consent to the filing of
this suit which is essentially against her, though not in name. Moreover, this is not only a
case of a citizen filing a suit against his own Government without the latter’s consent but it is
of a citizen filing an action against a foreign government without said government’s consent,
which renders more obvious the lack of jurisdiction of the courts of his country. The principles
of law behind this rule are so elementary and of such general acceptance that we deem it
unnecessary to cite authorities in support thereof.’
It bears stressing at this point that the above observations do not confer on the United States
of America a blanket immunity for all acts done by it or its agents in the Philippines. Neither
may the other petitioners claim that they are also insulated from suit in this country merely
because they have acted as agents of the United States in the discharge of their official
functions.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
There is no question that the United States of America, like any other state, will be deemed
to have impliedly waived its non-suability if it has entered into a contract in its proprietary or
private capacity. It is only when the contract involves its sovereign or governmental capacity
that no such waiver may be implied. This was our ruling in United States of America v. Ruiz,
(136 SCRA 487) where the transaction in question dealt with the improvement of the
wharves in the naval installation at Subic Bay. As this was a clearly governmental function,
we held that the contract did not operate to divest the United States of its sovereign immunity
from suit. In the words of Justice Vicente Abad Santos:chanrob1es virtual 1aw library
‘The traditional rule of immunity excepts a State from being sued in the courts of another
State without its consent or waiver. This rule is a necessary consequence of the principles of
independence and equality of States. However, the rules of International Law are not
petrified; they are constantly developing and evolving. And because the activities of states
have multiplied, it has been necessary to distinguish them - between sovereign and
governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis).
The result is that State immunity now extends only to acts jure imperii. The restrictive
application of State immunity is now the rule in the United States, the United Kingdom and
other states in Western Europe.
The restrictive application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic
affairs. Stated differently, a State may be said to have descended to the level of an individual
and can thus be deemed to have tacitly given its concent to be sued only when it enters into
business contracts. It does not apply where the contract relates to the exercise of its
sovereign functions. In this case the projects are integral part of the naval base which is
devoted to the defense of both the United States and the Philippines, indisputably a function
of the government of the highest order; they are not utilized for nor dedicated to commercial
or business purposes.’
The other petitioners in the cases before us all aver they have acted in the discharge of their
official functions as officers or agents of the United States. However, this is a matter of
evidence. The charges against them may not be summarily dismissed on their mere
assertion that their acts are imputable to the United States of America, which has not given
its consent to be sued. In fact, the defendants are sought to be held answerable for personal
torts in which the United States itself is not involved. If found liable, they and they alone must
satisfy the judgment." (At pp. 655-658)
In the light of these precedents, we proceed to resolve the present case.
The POD was published under the direction and authority of the commanding officer, U.S.
Naval Station Subic Bay. The administrative assistant, among his other duties, is tasked to
prepare and distribute the POD. On February 3, 1978, when the questioned article was
published in the POD, petitioner Capt. James Williams was the commanding officer while
petitioner M.H. Wylie was the administrative assistant of the US Naval Station of Subic bay.
The NAVSTA ACTION LINE INQUIRY is a regular feature of the POD. It is a telephone
answering device in the office of the Administrative Assistant. The Action Line is intended to
provide personnel access to the Commanding Officer on matters they feel should be brought
to his attention for correction or investigation. The matter of inquiry may be phoned in or
mailed to the POD. (TSN, September 9, 1980, pp. 12-13, Jerry Poblon) According to M. H.
Wylie, the action line naming "Auring" was received about three (3) weeks prior to its being
published in the POD on February 3, 1978. It was forwarded to Rarang’s office of
employment, the Provost Marshal, for comment. The Provost Marshal office’s response." . .
included a short note stating that if the article was published, to remove the name." (Exhibit
8-A, p. 5) The Provost Marshal’s response was then forwarded to the executive officer and to
the commanding officer for approval. The approval of the commanding officer was forwarded
to the office of the Administrative Assistant for inclusion in the POD. A certain Mrs.
Dologmodin, a clerk typist in the office of the Administrative Assistant prepared the smooth
copy of the POD. Finally, M. H. Wylie, the administrative assistant signed the smooth copy of
the POD but failed to notice the reference to "Auring" in the action line inquiry. (Exh. 8-A, pp.
4-5, Questions Nos. 14-15)
There is no question, therefore, that the two (2) petitioners actively participated in screening
the features and articles in the POD as part of their official functions. Under the rule that U.S.
officials in the performance of their official functions are immune from suit, then it should
follow that the petitioners may not be held liable for the questioned publication.
It is to be noted, however, that the petitioners were sued in their personal capacities for their
alleged tortious acts in publishing a libelous article.

The question, therefore, arises - are American naval officers who commit a crime or tortious
act while discharging official functions still covered by the principle of state immunity from
suit? Pursuing the question further, does the grant of rights, power, and authority to the
United States under the RP-US Bases Treaty cover immunity of its officers from crimes and
torts? Our answer is No.
Killing a person in cold blood while on patrol duty, running over a child while driving with
reckless imprudence on an official trip, or slandering a person during office hours could not
possibly be covered by the immunity agreement. Our laws and, we presume, those of the
United States do not allow the commission of crimes in the name of official duty.
The case of Chavez v. Sandiganbayan, 193 SCRA 282 [1991] gives the law on immunity
from suit of public officials:jgc:chanrobles.com.ph
"The general rule is that public officials can be held personally accountable for acts claimed
to have been performed in connection with official duties where they have acted ultra vires or
where there is showing of bad faith.chanrobl
"Moreover, the petitioner’s argument that the immunity proviso under Section 4(a) of
Executive Order No. 1 also extends to him is not well-taken. A mere invocation of the
immunity clause does not ipso facto result in the charges being automatically dropped.
"In the case of Presidential Commission on Good Government v. Peña (159 SCRA 556
[1988] then Chief Justice Claudio Teehankee, added a clarification of the immunity accorded
PCGG officials under Section 4(a) of Executive Order No. 1 as
follows:jgc:chanrobles.com.ph
"‘With respect to the qualifications expressed by Mr. Justice Feliciano in his separate
opinion, I just wish to point out two things: First, the main opinion does not claim absolute
immunity for he members of the Commission. The cited section of Executive Order No. 1
provides the Commission’s members immunity from suit thus: ‘No civil action shall lie against
the Commission or any member thereof for anything done or omitted in the discharge of the
task contemplated by this order.’ No absolute immunity like that sought by Mr. Marcos in his
Constitution for himself and his subordinates is herein involved. It is understood that the
immunity granted the members of the Commission by virtue of the unimaginable magnitude
of its task to recover the plundered wealth and the State’s exercise of police power was
immunity from liability for damages in the official discharge of the task granted the members
of the Commission much in the same manner that judges are immune from suit in the official
discharge of the functions of their office. . . . (at pp. 581-582).
"Immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a
privileged status not claimed by any other official of the Republic. (id., at page 586)
"Where the petitioner exceeds his authority as Solicitor General, acts in bad faith, or, as
contended by the private respondent, ‘maliciously conspir(es) with the PCGG commissioners
in persecuting respondent Enrile by filing against him an evidently baseless suit in derogation
of the latter’s constitutional rights and liberties’ (Rollo, p. 417), there can be no question that
a complaint for damages does not confer a license to persecute or recklessly injure another.
The actions governed by Articles 19, 20, 21 and 32 of the Civil Code on Human Relations
may be taken against public officers or private citizens alike. . . ." (pp. 289-291).
We apply the same ruling to this case.
The subject article in US Newsletter POD dated February 3, 1978 mentions a certain
"Auring" as." . . a disgrace to her division and to the Office of the Provost Marshal." The
same article explicitly implies that Auring was consuming and appropriating for herself
confiscated items like cigarettes and foodstuffs. There is no question that the Auring alluded
to in the Article was the private respondent as she was the only Auring in the Office of the
Provost Marshal. Moreover, as a result of this article, the private respondent was
investigated by her supervisor. Before the article came out, the private respondent had been
the recipient of commendations by her superiors for honesty in the performance of her
duties.
It may be argued that Captain James Williams as commanding officer of the naval base is far
removed in the chain of command from the offensive publication and it would be asking too
much to hold him responsible for everything which goes wrong on the base. This may be true
as a general rule. In this particular case, however, the records show that the offensive
publication was sent to the commanding officer for approval and he approved it. The factual
findings of the two courts below are based on the records. The petitioners have shown no
convincing reasons why our usual respect for the findings of the trial court and the
respondent court should be withheld in this particular case and why their decisions should be
reversed.
Article 2176 of the Civil Code prescribes a civil liability for damages caused by a person’s act
or omission constituting fault or negligence, to wit:jgc:chanrobles.com.ph
"Article 2176. Whoever by act or omission, causes damage to another, there being fault or
negligence is obliged to pay for the damage done. Such fault or negligence, if there is no
pre-existing contractual relation between the parties, is called a quasi-delict and is governed
by the provisions of this Chapter."cralaw virtua1aw library
"Fault" or "negligence" in this Article covers not only acts "not punishable by law" but also
acts criminal in character, whether intentional or voluntary or negligent." (Andamo v.
Intermediate Appellate Court, 191 SCRA 195 [1990]).
Moreover, Article 2219(7) of the Civil Code provides that moral damages may be recovered
in case of libel, slander or any other form of defamation. In effect, the offended party in these
cases is given the right to receive from the guilty party moral damages for injury to his feeling
and reputation in addition to punitive or exemplary damages. (Occena v. Icamina, 181 SCRA
328 [1990]. In another case, Heirs of Basilisa Justiva v. Gustilo, 7 SCRA 72 [1963], we ruled
that the allegation of forgery of documents could be a defamation, which in the light of Article
2219(7) of the Civil Code could by analogy be ground for payment of moral damages,
considering the wounded feelings and besmirched reputation of the defendants.chanrobles
virtualawlibrary chanrobles.com:chanrobles.com.ph
Indeed the imputation of theft contained in the POD dated February 3, 1978 is a defamation
against the character and reputation of the private Respondent. Petitioner Wylie himself
admitted that the Office of the Provost Marshal explicitly recommended the deletion of the
name Auring if the article were to be published. The petitioners, however, were negligent
because under their direction they issued the publication without deleting the name "Auring."
Such act or omission is ultra vires and cannot be part of official duty. it was a tortious act
which ridiculed the private Respondent. As a result of the petitioner’s act, the private
respondent, according to the record, suffered besmirched reputation, serious anxiety,
wounded feeling and social humiliation, specially so, since the article was baseless and
false. The petitioners, alone, in their personal capacities are liable for the damages they
caused the private Respondent.
WHEREFORE, the petition is hereby DISMISSED. The questioned decision and resolution of
the then Intermediate Appellate Court, now Court of Appeals, are AFFIRMED.
Bidin, Davide, Jr. and Romero, JJ., concur.
wylie v. rarang 209 SCRA 357 (1992)
WYLIE v. RARANG (28 May 1992)
Petitioners: M.H. Wylie and Capt. James Williams
Respondents: Aurora I. Rarang and the IAC
Nature: Petition for review
Ponente: Gutierrez, Jr.
AT THE NAVAL BASE. In Feb. 1978, M.H. Wylie was the assistant administrative officer and
Capt. James Williams was the commanding officer of the US Naval Base in Subic Bay,
Olongapo City. Aurora I. Rarang was employed as a merchandise control guard in the Office
of the Provost Marshal.
THE “POD”. Wylie, in his capacity as asst. admin. officer, supervised the publication of the
Naval Base station’s “Plan of the Day” (POD), which featured important announcements,
necessary precautions, and general matters of interest to military personnel. One of its
regular features was the “action line inquiry.”
THE CAUSE OF THIS MESS. On Feb. 3, 1978, the POD published, under the “NAVSTA
Action Line Inquiry,” the ff:
Question: I have observed that Merchandise Control inspector/ inspectress are (sic)
consuming for their own benefit things they have confiscated from Base Personnel. The
observation is even more aggravated by consuming such confiscated items as cigarettes
and food stuffs PUBLICLY. This is not to mention ‘Auring’ who is in herself, a disgrace to her
division and to the Office of the Provost Marshal. In lieu of this observation, may I therefore,
ask if the head of the Merchandise Control Division is aware of this malpractice?
Answer: Merchandise Control Guards and all other personnel are prohibited from
appropriating confiscated items for their own consumption or use. Two locked containers are
installed at the Main Gate area for deposit of confiscated items and the OPM evidence
custodian controls access to these containers. Merchandise Control Guards are permitted to
eat their meals at their worksite due to heavy workload. Complaints regarding merchandise
control guards procedure or actions may be made directly at the Office of the Provost
Marshal for immediate and necessary action….
Rarang was the “Auring” referred to here, as she was the only one with that name in the
Office of the Provost Marshall, and Wylie’s letter of apology for the “inadvertent” publication
was also conclusive proof of this.
AN ACTION FOR DAMAGES was instituted by Rarang against Wylie, Williams, and the US
Naval Base. She prayed for P300K moral damages, exemplary damages, and P50K
attorney’s fees.
RARANG’S ALLEGATIONS: the article constituted false, injurious, and malicious defamation
and libel tending to impeach her honesty, virtue and reputation exposing her to public hatred,
contempt and ridicule; and that the libel was published and circulated in the English
language and read by almost all the U.S. Naval Base personnel.
WYLIE, WILLIAMS, THE NAVAL BASE FILED A MOTION TO DISMISS, BASED ON
THESE GROUNDS:
1. Wylie and Williams acted in the performance of their official functions as officers of the US
Navy and are immune from suit;
2. The US Naval Base is an instrumentality of the US government which cannot be sued
without its consent; and
3. lack of jurisdiction over the subject matter and the parties.
MOTION DENIED.
THE TC’S DECISION: the acts of Wylie and Williams weren’t official acts of the US
government in the operation and control of the Base but personal and tortious acts which are
exceptions to the general rule that a sovereign country can’t be sued in the court of another
country without its consent. Thus their acts weren’t imputable against the US government but
were done in their individual and personal capacities. They were ordered to pay Rarang
P100K moral and exemplary damages, and P30K attorney’s fees. However, the suit against
the US Naval Base was dismissed.
BOTH PARTIES APPEALED. Wylie and Williams asserted that they are immune from suit
since the publication was made in their official capacities as officers of the U. S. Navy, and
that they did not intentionally and maliciously cause the publication. Rarang appealed as she
wasn’t satisfied with the award.
THE IAC MODIFIED THE TC’S DECISION: Rarang was awarded P175K moral damages
and P60K exemplary damages.
WYLIE AND WILLIAMS’ ARGUMENT in this Petition for Review: they made the publication
in the performance of their official functions as administrative assistant (Wylie) and
commanding officer (Williams) of the US Navy and were, therefore, immune from suit for
their official actions.
ISSUE: WON Wylie and Williams are liable for the published article in the POD. Does the
grant of rights, power, and authority to the US under the RP-US Bases Treaty cover
immunity of its officers from crimes and torts?
HELD: YES and NO respectively.
THE PRINCIPLE OF STATE IMMUNITY FROM SUIT, QUOTING US v. GUINTO: 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…Even without such
affirmation, we would still be bound by the generally accepted principles of international law
under the doctrine of incorporation … As applied to the local state, the doctrine of state
immunity is based on the justification given by Justice Holmes that ‘there can be no legal
right against the authority which makes the law on which the right depends! (Kawanakoa v.
Polybank) There are other practical reasons for the enforcement of the doctrine. In the case
of the foreign state sought to be impleaded in the local jurisdiction, the added inhibition is
expressed in the maxim par in parem, non habet imperium . All states are sovereign equals
and cannot assert jurisdiction over one another. A contrary disposition would, in the
language of a celebrated case, ‘unduly vex the peace of nations.’ (Da Haber v. Queen of
Portugal)
While the doctrine appears to prohibit only suits against the state without its consent, it is
also applicable to complaints filed against officials of the state for acts allegedly performed
by them in the discharge of their duties. The rule is that if the judgment against such officials
will require the state itself to perform an affirmative act to satisfy the same, such as the
appropriation of the amount needed to pay the damages awarded against them, the suit
must be regarded as against the state itself although it has not been formally impleaded
(Garcia v. Chief of Staff). In such a situation, the state may move to dismiss the complaint on
the ground that it has been filed without its consent.
The doctrine is sometimes derisively called ‘the royal prerogative of dishonesty’ because of
the privilege it grants the state to defeat any legitimate claim against it by simply invoking its
non-suability. That is hardly fair, at least in democratic societies, for the state is not an
unfeeling tyrant unmoved by the valid claims of its citizens. In fact, the doctrine is not
absolute and does not say the state may not be sued under any circumstance. On the
contrary, the rule says that the state may not be sued without its consent, which clearly
imports that it may be sued if it consents. The consent of the state to be sued may be
manifested expressly or impliedly. Express consent may be embodied in a general law or a
special law. Consent is implied when the state enters into a contract it itself commences
litigation…The above rules are subject to qualification. Express consent is effected only by
the will of the legislature through the medium of a duly enacted statute. (Rep. v. Purisima)…
not all contracts entered into by the government will operate as a waiver of its non-suability;
distinction must be made between its sovereign and proprietary acts (US v. Ruiz). As for the
filing of a complaint by the government, suability will result only where the government is
claiming affirmative relief from the defendant. (Lim v. Brownell)
THE NATURE AND EXTENT OF IMMUNITY FROM SUIT, ALSO UNDER US v. GUINTO: In
the case of the US, the customary rule of international law on state immunity is expressed
with more specificity in the RP-US Bases Treaty …
The petitioners also rely heavily on Baer v. Tizon… to support their position that they are not
suable, the US not having waived its sovereign immunity from suit. It is emphasized that in
Baer, the Court held:
“The invocation of the doctrine of immunity from suit of a foreign state without its consent is
appropriate… insofar as alien armed forces are concerned, the starting point is Raquiza v.
Bradford, a 1945 decision. In dismissing a habeas corpus petition for the release of
petitioners confined by American army authorities, Justice Hilado cited Coleman v.
Tennessee, where it was explicitly declared: ‘It is well settled that a foreign army, permitted
to march through a friendly country or to be stationed in it, by permission of its government or
sovereign, is exempt from the civil and criminal jurisdiction of the place.’ Two years later, in
Tubb and Tedrow v. Griess, this Court relied on Raquiza v. Bradford and cited in support
excerpts from the works of the authoritative writers … Accuracy demands the clarification
that after the conclusion of the Philippine-American Military Bases Agreement, the treaty
provision should control on such matter, the assumption being that there was a manifestation
of the submission to jurisdiction on the part of the foreign power whenever appropriate. More
to the point is Syquia v. Almeda Lopez … It was the ruling that respondent Judge acted
correctly considering that the ‘action must be considered as one against the U.S.
Government.’ The opinion of Justice Montemayor continued: ‘It is clear that the courts of the
Philippines including the Municipal Court of Manila have no jurisdiction over the present case
for unlawful detainer. The question of lack of jurisdiction was raised and interposed at the
very beginning of the action. The U.S. Government has not given its consent to the filing of
this suit which is essentially against her, though not in name. Moreover, this is not only a
case of a citizen filing a suit against his own Government without the latter’s consent but it is
of a citizen filing an action against a foreign government without said government’s consent,
which renders more obvious the lack of jurisdiction of the courts of his country. The principles
of law behind this rule are so elementary and of such general acceptance that we deem it
unnecessary to cite authorities in support thereof.”
The above observations do not confer on the US a blanket immunity for all acts done by it or
its agents in the Philippines. Neither may the other petitioners claim that they are also
insulated from suit in this country merely because they have acted as agents of the US in the
discharge of their official functions. There is no question that the US, like any other state, will
be deemed to have impliedly waived its non-suability if it has entered into a contract in its
proprietary or private capacity. It is only when the contract involves its sovereign or
governmental capacity that no such waiver may be implied … In the words of Justice Vicente
Abad Santos:
“The traditional rule of immunity excepts a State from being sued in the courts of another
State without its consent or waiver. This rule is a necessary consequence of the principles of
independence and equality of States. However, the rules of International Law are not
petrified; they are constantly developing and evolving. And because the activities of states
have multiplied, it has been necessary to distinguish them-between sovereign and
governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis).
The result is that State immunity now extends only to acts jure imperii... The restrictive
application of State immunity is proper only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial activities or economic affairs. Stated
differently, a State may be said to have descended to the level of an individual and can thus
be deemed to have tacitly given its consent to be sued only when it enters into business
contracts. It does not apply where the contract relates to the exercise of its sovereign
functions.”
The other petitioners in the cases before us all aver they have acted in the discharge of their
official functions as officers or agents of the US. 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 US, 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 US itself is not involved. If
found liable, they and they alone must satisfy the judgment.
SUMMARY OF THE EVENTS. The POD was published under the direction and authority of
the commanding officer. The administrative assistant, among his other duties, is tasked to
prepare and distribute the POD. The NAVSTA Action Line Inquiry is a regular feature of the
POD , which was to provide personnel access to the Commanding Officer on matters they
feel should be brought to his attention for correction or investigation . According to Wylie, the
action line naming “Auring” was received about 3 weeks prior to the article’s publication. It
was forwarded to the Provost Marshal for comment, and the response “… included a short
note stating that if the article was published, to remove the name.” This note was forwarded
to the executive officer and to the commanding officer for approval. The approval of the
commanding officer was forwarded to the office of the Administrative Assistant for inclusion
in the POD. A clerk typist in the office of the Administrative Assistant prepared the smooth
copy of the POD and Wylie, the administrative assistant signed the smooth copy of the POD
but failed to notice the reference to “Auring” in the action line inquiry.
As the article implied that Rarang was consuming and appropriating confiscated items, she
was investigated by her supervisor. Before the article came out, she had been the recipient
of commendations by her superiors for honesty in the performance of her duties.
PART OF OFFICIAL FUNCTIONS. Wylie and Williams actively participated in screening the
features and articles in the POD as part of their official functions. Under the rule that US
officials in the performance of their official functions are immune from suit, then it should
follow that they may not be held liable for the questioned publication.
BUT: TAKE NOTE THAT THEY WERE SUED IN THEIR PERSONAL CAPACITIES for their
alleged tortious acts in publishing a libelous article. And our laws and, we presume, those of
the US don’t allow the commission of crimes in the name of official duty, and these aren’t
covered by the immunity agreement.
CHAVEZ v. SANDIGANBAYAN on the law on immunity from suit of public officials is
applicable here: the general rule is that public officials can be held personally accountable for
acts claimed to have been performed in connection with official duties where they have acted
ultra vires or where there is showing of bad faith… A mere invocation of the immunity clause
does not ipso facto result in the charges being automatically dropped. In the case of PCGG
v. Peña, Chief Justice Teehankee added a clarification of the immunity accorded PCGG
officials under Section 4(a) of Exec. Order No. I as follows:
…First, the main opinion does not claim absolute immunity for the members of the
Commission, The cited section … provides the Commission’s members immunity from suit
thus: ‘No civil action shall lie against the Commission or any member thereof for anything
done or omitted in the discharge of the task contemplated by this order.’ No absolute
immunity like that sought by Mr. Marcos in his Constitution for himself and his subordinates
is herein involved. It is understood that the immunity granted the members of the
Commission by virtue of the unimaginable magnitude of its task to recover the plundered
wealth and the State’s exercise of police power was immunity from liability for damages in
the official discharge of the task granted the members of the Commission much in the same
manner that judges are immune from suit in the official discharge of the functions of their
office.
Immunity from suit cannot institutionalize irresponsibility and nonaccountability nor grant a
privileged status not claimed by any other official of the Republic. Where the petitioner
exceeds his authority as Solicitor General, acts in bad faith, or … ‘maliciously conspir(es)
with the PCGG commissioners in persecuting respondent Enrile by filing against him an
evidently baseless suit in derogation of the latter’s constitutional rights and liberties’, there
can be no question that a complaint for damages does not confer a license to persecute or
recklessly injure another. The actions governed by Articles 19, 20, 21, and 32 of the Civil
Code on Human Relations may be taken against public officers or private citizens alike.
ARGUMENT: that Williams as commanding officer is far removed in the chain of command
from the offensive publication and it would be asking too much to hold him responsible for
everything which goes wrong on the base.
WHILE THIS IS TRUE AS A GEN. RULE, FOR THIS CASE NO. The records show that the
offensive publication was sent to the commanding officer for approval and he approved it.
Art. 2176 prescribes a civil liability for damages caused by a person’s act or omission
constituting fault or negligence. “Fault” or “negligence” in this Article covers not only acts “not
punishable by law” but also acts criminal in character, whether intentional or voluntary or
negligent. ” Moreover, Art. 2219(7) provides that moral damages may be recovered in case
of libel, slander or any other form of defamation. In effect, the offended party in these cases
is given the right to receive from the guilty party moral damages for injury to his feelings and
reputation in addition to punitive or exemplary damages .
ULTRA VIRES ACT CAN’T BE PART OF OFFICIAL DUTY. Indeed the imputation of theft
contained in the POD is a defamation against Rarang’s character and reputation. Wylie
himself admitted that the Office of the Provost Marshal explicitly recommended the deletion
of the name if the article was published, but they were negligent because under their
direction they issued the publication without deleting the name. Such act or omission is ultra
vires and cannot be part of official duty. It was a tortious act which ridiculed Rarang, and as a
result she suffered besmirched reputation, serious anxiety, wounded feelings and social
humiliation, specially so, since the article was baseless and false. Wylie and Williams alone,
in their personal capacities, are liable for the damages they caused.
WHEREFORE, the petition is hereby DISMISSED. The questioned decision and resolution of
the IAC are AFFIRMED.
FRANCISCO I. CHAVEZ, Petitioner, v. HON. ALBERTO G. ROMULO, IN HIS CAPACITY
AS EXECUTIVE SECRETARY; DIRECTOR GENERAL HERMOGENES E. EBDANE, JR.,
IN HIS CAPACITY AS THE CHIEF OF THE PNP, et al., Respondents.
SANDOVAL-GUTIERREZ, J.:
The right of individuals to bear arms is not absolute, but is subject to regulation. The
maintenance of peace and order1 and the protection of the people against violence are
constitutional duties of the State, and the right to bear arms is to be construed in connection
and in harmony with these constitutional duties.
Before us is a petition for prohibition and injunction seeking to enjoin the implementation of
the Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of
Residence2 (Guidelines) issued on January 31, 2003, by respondent Hermogenes E.
Ebdane, Jr., Chief of the Philippine National Police (PNP).
The facts are undisputed:
In January 2003, President Gloria Macapagal-Arroyo delivered a speech before the
members of the PNP stressing the need for a nationwide gun ban in all public places to avert
the rising crime incidents. She directed the then PNP Chief, respondent Ebdane, to suspend
the issuance of Permits to Carry Firearms Outside of Residence (PTCFOR),
thus:chanroblesvirtua1awlibrary
THERE IS ALSO NEED TO FOCUS ON THE HIGH PROFILE CRIMES THAT TEND TO
DISTURB THE PSYCHOLOGICAL PERIMETERS OF THE COMMUNITY THE LATEST
BEING THE KILLING OF FORMER NPA LEADER ROLLY KINTANAR. I UNDERSTAND
WE ALREADY HAVE THE IDENTITY OF THE CULPRIT. LET US BRING THEM TO THE
BAR OF JUSTICE.
THE NPA WILL FIND IT MORE DIFFICULT TO CARRY OUT THEIR PLOTS IF OUR LAW
ENFORCEMENT AGENCIES CAN RID THEMSELVES OF RASCALS IN UNIFORM, AND
ALSO IF WE ENFORCE A GUN BAN IN PUBLIC PLACES.
THUS, I AM DIRECTING THE PNP CHIEF TO SUSPEND INDEFINITELY THE ISSUANCE
OF PERMIT TO CARRY FIREARMS IN PUBLIC PLACES. THE ISSUANCE OF PERMITS
WILL NOW BE LIMITED ONLY TO OWNERSHIP AND POSSESSION OF GUNS AND NOT
TO CARRYING THEM IN PUBLIC PLACES.FROM NOW ON, ONLY THE UNIFORMED
MEN IN THE MILITARY AND AUTHORIZED LAW ENFORCEMENT OFFICERS CAN
CARRY FIREARMS IN PUBLIC PLACES, AND ONLY PURSUANT TO EXISTING LAW.
CIVILIAN OWNERS MAY NO LONGER BRING THEIR FIREARMS OUTSIDE THEIR
RESIDENCES. THOSE WHO WANT TO USE THEIR GUNS FOR TARGET PRACTICE
WILL BE GIVEN SPECIAL AND TEMPORARY PERMITS FROM TIME TO TIME ONLY
FOR THAT PURPOSE. AND THEY MAY NOT LOAD THEIR GUNS WITH BULLETS UNTIL
THEY ARE IN THE PREMISES OF THE FIRING RANGE.
WE CANNOT DISREGARD THE PARAMOUNT NEED FOR LAW AND ORDER. JUST AS
WE CANNOT BE HEEDLESS OF OUR PEOPLES ASPIRATIONS FOR PEACE.
Acting on President Arroyos directive, respondent Ebdane issued the assailed Guidelines
quoted as follows:
TO :All Concerned
FROM : Chief, PNP
SUBJECT: Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside
of Residence.
DATE :January 31, 2003
1.Reference: PD 1866 dated June 29, 1983 and its Implementing Rules and Regulations.
2.General:
The possession and carrying of firearms outside of residence is a privilege granted by the
State to its citizens for their individual protection against all threats of lawlessness and
security.
As a rule, persons who are lawful holders of firearms (regular license, special permit,
certificate of registration or MR) are prohibited from carrying their firearms outside of
residence. However, the Chief, Philippine National Police may, in meritorious cases as
determined by him and under conditions as he may impose, authorize such person or
persons to carry firearms outside of residence.
3.Purposes:
This Memorandum prescribes the guidelines in the implementation of the ban on the carrying
of firearms outside of residence as provided for in the Implementing Rules and Regulations,
Presidential Decree No. 1866, dated June 29, 1983 and as directed by PGMA. It also
prescribes the conditions, requirements and procedures under which exemption from the ban
may be granted.
4.Specific Instructions on the Ban on the Carrying of Firearms:
a.All PTCFOR are hereby revoked. Authorized holders of licensed firearms covered with
valid PTCFOR may re-apply for a new PTCFOR in accordance with the conditions
hereinafter prescribed.
b.All holders of licensed or government firearms are hereby prohibited from carrying their
firearms outside their residence except those covered with mission/letter orders and duty
detail orders issued by competent authority pursuant to Section 5, IRR, PD 1866, provided,
that the said exception shall pertain only to organic and regular employees.
5.The following persons may be authorized to carry firearms outside of residence.
a.All persons whose application for a new PTCFOR has been approved, provided, that the
persons and security of those so authorized are under actual threat, or by the nature of their
position, occupation and profession are under imminent danger.
b.All organic and regular employees with Mission/Letter Orders granted by their respective
agencies so authorized pursuant to Section 5, IRR, PD 1866, provided, that such
Mission/Letter Orders is valid only for the duration of the official mission which in no case
shall be more than ten (10) days.
c.All guards covered with Duty Detail Orders granted by their respective security agencies so
authorized pursuant to Section 4, IRR, PD 1866, provided, that such DDO shall in no case
exceed 24-hour duration.
d.Members of duly recognized Gun Clubs issued Permit to Transport (PTT) by the PNP for
purposes of practice and competition, provided, that such firearms while in transit must not
be loaded with ammunition and secured in an appropriate box or case detached from the
person.
e.Authorized members of the Diplomatic Corps.
6.Requirements for issuance of new PTCFOR:
a.Written request by the applicant addressed to Chief, PNP stating his qualification to
possess firearm and the reasons why he needs to carry firearm outside of residence.
b.Xerox copy of current firearm license duly authenticated by Records Branch, FED;
c.Proof of actual threat, the details of which should be issued by the Chief of
Police/Provincial or City Directors and duly validated by C, RIID;
d.Copy of Drug Test Clearance, duly authenticated by the Drug Testing Center, if
photocopied;
e.Copy of DI/ RIID clearance, duly authenticated by ODI/RIID, if photocopied;
f.Copy of Neuro-Psychiatric Clearance duly authenticated by NP Testing Center, if
photocopied;
g.Copy of Certificate of Attendance to a Gun Safety Seminar, duly validated by Chief,
Operations Branch, FED;
h.NBI Clearance;
i.Two (2) ID pictures (2 x 2) taken not earlier than one (1) year from date of filing of
application; andcralawlibrary
j.Proof of Payment
7.Procedures:
a.Applications may be filed directly to the Office of the PTCFOR Secretariat in Camp Crame.
In the provinces, the applications may also be submitted to the Police Regional Offices
(PROs) and Provincial/City Police Offices (P/CPOs) for initial processing before they are
forwarded to the office of the PTCFOR Secretariat. The processors, after ascertaining that
the documentary requirements are in order, shall issue the Order of Payment (OP) indicating
the amount of fees payable by the applicant, who in turn shall pay the fees to the Land Bank.
b.Applications, which are duly processed and prepared in accordance with existing rules and
regulations, shall be forwarded to the OCPNP for approval.
c.Upon approval of the application, OCPNP will issue PTCFOR valid for one (1) year from
date of issue.
d.Applications for renewal of PTCFOR shall be processed in accordance with the provisions
of par. 6 above.
e.Application for possession and carrying of firearms by diplomats in the Philippines shall be
processed in accordance with NHQ PNP Memo dated September 25, 2000, with Subj:
Possession and Carrying of Firearms by Diplomats in the Philippines.
8.Restrictions in the Carrying of Firearms:
a.The firearm must not be displayed or exposed to public view, except those authorized in
uniform and in the performance of their official duties.
b.The firearm shall not be brought inside public drinking and amusement places, and all
other commercial or public establishments.
Petitioner Francisco I. Chavez, a licensed gun owner to whom a PTCFOR has been issued,
requested the Department of Interior and Local Government (DILG) to reconsider the
implementation of the assailed Guidelines. However, his request was denied. Thus, he filed
the present petition impleading public respondents Ebdane, as Chief of PNP; Alberto G.
Romulo, as Executive Secretary; and Gerry L. Barias, as Chief of the PNP-Firearms and
Explosives Division. He anchored his petition on the following grounds:
THE PRESIDENT HAS NO POWER OR AUTHORITY MUCH LESS BY A MERE SPEECH
TO ALTER, MODIFY OR AMEND THE LAW ON FIREARMS BY IMPOSING A GUN BAN
AND CANCELING EXISTING PERMITS FOR GUNS TO BE CARRIED OUTSIDE
RESIDENCES.
II. OFFICIALLY, THERE IS NO PRESIDENTIAL ISSUANCE ON THE GUN BAN; THE
PRESIDENTIAL SPEECH NEVER INVOKED POLICE POWER TO JUSTIFY THE GUN
BAN; THE PRESIDENTS VERBAL DECLARATION ON GUN BAN VIOLATED THE
PEOPLES RIGHT TO PROTECT LIFE AND THEIR PROPERTY RIGHT TO CARRY
FIREARMS.
III. THE PNP CHIEF HAS NO POWER OR AUTHORITY TO ISSUE THE QUESTIONED
GUIDELINES BECAUSE:chanroblesvirtua1awlibrary
1) THERE IS NO LAW, STATUTE OR EXECUTIVE ORDER WHICH GRANTS THE PNP
CHIEF THE AUTHORITY TO PROMULGATE THE PNP GUIDELINES.
2) THE IMPLEMENTING RULES AND REGULATIONS OF PD 1866 CANNOT BE THE
SUBJECT OF ANOTHER SET OF IMPLEMENTING GUIDELINES.
3) THE PRESIDENTS SPEECH CANNOT BE A BASIS FOR THE PROMULGATION OF
IMPLEMENTNG GUIDELINES ON THE GUN BAN.
IV. ASSUMING ARGUENDO, THAT THE PNP GUIDELINES IMPLEMENT PD 1866, AND
THE AMENDMENTS THERETO, THE PNP CHIEF STILL HAS NO POWER OR
AUTHORITY TO ISSUE THE SAME BECAUSE
1) PER SEC 6, RA 8294, WHICH AMENDS PD 1866, THE IRR SHALL BE PROMULGATED
JOINTLY BY THE DOJ AND THE DILG.
2) SEC. 8, PD 1866 STATES THAT THE IRR SHALL BE PROMULGATED BY THE CHIEF
OF THE PHILIPPINE CONSTABULARY.
V.THE PNP GUIDELINES VIOLATE THE DUE PROCESS CLAUSE OF THE
CONSTITUTION BECAUSE:chanroblesvirtua1awlibrary
1) THE RIGHT TO OWN AND CARRY A FIREARM IS NECESSARILY INTERTWINED
WITH THE PEOPLES INHERENT RIGHT TO LIFE AND TO PROTECT LIFE. THUS, THE
PNP GUIDELINES DEPRIVE PETITIONER OF THIS RIGHT WITHOUT DUE PROCESS OF
LAW FOR:chanroblesvirtua1awlibrary
A) THE PNP GUIDELINES DEPRIVE PETITIONER OF HIS MOST POTENT, IF NOT HIS
ONLY, MEANS TO DEFEND HIMSELF.
B) THE QUESTIONED GUIDELINES STRIPPED PETITIONER OF HIS MEANS OF
PROTECTION AGAINST CRIME DESPITE THE FACT THAT THE STATE COULD NOT
POSSIBLY PROTECT ITS CITIZENS DUE TO THE INADEQUACY AND INEFFICIENCY
OF THE POLICE FORCE.
2) THE OWNESHIP AND CARRYING OF FIREARMS ARE CONSTITUTIONALLY
PROTECTED PROPERTY RIGHTS WHICH CANNOT BE TAKEN AWAY WITHOUT DUE
PROCESS OF LAW AND WITHOUT JUST CAUSE.
Vl.ASSUMING ARGUENDO, THAT THE PNP GUIDELINES WERE ISSUED IN THE
EXERCISE OF POLICE POWER, THE SAME IS AN INVALID EXERCISE THEREOF
SINCE THE MEANS USED THEREFOR ARE UNREASONABLE AND UNNCESSARY FOR
THE ACCOMPLISHMENT OF ITS PURPOSE TO DETER AND PREVENT CRIME
THEREBY BECOMING UNDULY OPPRESSIVE TO LAW-ABIDING GUN-OWNERS.
VII.THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND CONFISCATORY SINCE IT
REVOKED ALL EXISTING PERMITS TO CARRY WITHOUT, HOWEVER, REFUNDING
THE PAYMENT THE PNP RECEIVED FROM THOSE WHO ALREADY PAID THEREFOR.
VIII.THE PNP GUIDELINES VIOLATE THE EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION BECAUSE THEY ARE DIRECTED AT AND OPPRESSIVE ONLY TO
LAW-ABIDING GUN OWNERS WHILE LEAVING OTHER GUN-OWNERS THE
LAWBREAKERS (KIDNAPPERS, ROBBERS, HOLD-UPPERS, MNLF, MILF, ABU SAYYAF
COLLECTIVELY, AND NPA) UNTOUCHED.
IX.THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND UNFAIR BECAUSE THEY
WERE IMPLEMENTED LONG BEFORE THEY WERE PUBLISHED.
X.THE PNP GUIDELINES ARE EFFECTIVELY AN EX POST FACTO LAW SINCE THEY
APPLY RETROACTIVELY AND PUNISH ALL THOSE WHO WERE ALREADY GRANTED
PERMITS TO CARRY OUTSIDE OF RESIDENCE LONG BEFORE THEIR
PROMULGATION.
Petitioners submissions may be synthesized into five (5) major
issues:chanroblesvirtua1awlibrary
First, whether respondent Ebdane is authorized to issue the assailed
Guidelines;chanroblesvirtuallawlibrary
Second, whether the citizens right to bear arms is a constitutional right?
Third, whether the revocation of petitioners PTCFOR pursuant to the assailed Guidelines is a
violation of his right to property?;chanroblesvirtuallawlibrary
Fourth, whether the issuance of the assailed Guidelines is a valid exercise of police power?;
Fifth, whether the assailed Guidelines constitute an ex post facto law?
The Solicitor General seeks the dismissal of the petition pursuant to the doctrine of hierarchy
of courts. Nonetheless, in refutation of petitioners arguments, he contends that: (1) the PNP
Chief is authorized to issue the assailed Guidelines; (2) petitioner does not have a
constitutional right to own and carry firearms; (3) the assailed Guidelines do not violate the
due process clause of the Constitution; and (4) the assailed Guidelines do not constitute an
ex post facto law.
Initially, we must resolve the procedural barrier.
On the alleged breach of the doctrine of hierarchy of courts, suffice it to say that the doctrine
is not an iron-clad dictum. In several instances where this Court was confronted with cases
of national interest and of serious implications, it never hesitated to set aside the rule and
proceed with the judicial determination of the cases.3 The case at bar is of similar import as
it involves the citizens right to bear arms.
Authority of the PNP Chief
Relying on the principle of separation of powers, petitioner argues that only Congress can
withhold his right to bear arms. In revoking all existing PTCFOR, President Arroyo and
respondent Ebdane transgressed the settled principle and arrogated upon themselves a
power they do not possess the legislative power.
We are not persuaded.
It is true that under our constitutional system, the powers of government are distributed
among three coordinate and substantially independent departments: the legislative, the
executive and the judiciary. Each has exclusive cognizance of the matters within its
jurisdiction and is supreme within its own sphere.4 cralawred
Pertinently, the power to make laws the legislative power is vested in Congress.5 Congress
may not escape its duties and responsibilities by delegating that power to any other body or
authority. Any attempt to abdicate the power is unconstitutional and void, on the principle that
delegata potestas non potest delegari delegated power may not be delegated.6 cralawred
The rule which forbids the delegation of legislative power, however, is not absolute and
inflexible. It admits of exceptions. An exception sanctioned by immemorial practice permits
the legislative body to delegate its licensing power to certain persons, municipal
corporations, towns, boards, councils, commissions, commissioners, auditors, bureaus and
directors.7 Such licensing power includes the power to promulgate necessary rules and
regulations.8 cralawred
The evolution of our laws on firearms shows that since the early days of our Republic, the
legislatures tendency was always towards the delegation of power. Act No. 1780,9 delegated
upon the Governor-General (now the President) the authority (1) to approve or disapprove
applications of any person for a license to deal in firearms or to possess the same for
personal protection, hunting and other lawful purposes; and (2) to revoke such license any
time.10 Further, it authorized him to issue regulations which he may deem necessary for the
proper enforcement of the Act.11 With the enactment of Act No. 2711, the Revised
Administrative Code of 1917, the laws on firearms were integrated.12 The Act retained the
authority of the Governor General provided in Act No. 1780. Subsequently, the growing
complexity in the Office of the Governor-General resulted in the delegation of his authority to
the Chief of the Constabulary.On January 21, 1919, Acting Governor-General Charles E.
Yeater issued Executive Order No. 813 authorizing and directing the Chief of Constabulary
to act on his behalf in approving and disapproving applications for personal, special and
hunting licenses. This was followed by Executive Order No. 6114 designating the Philippine
Constabulary (PC) as the government custodian of all firearms, ammunitions and explosives.
Executive Order No. 215,15 issued by President Diosdado Macapagal on December 3,
1965, granted the Chief of the Constabulary, not only the authority to approve or disapprove
applications for personal, special and hunting license, but also the authority to revoke the
same. With the foregoing developments, it is accurate to say that the Chief of the
Constabulary had exercised the authority for a long time. In fact, subsequent issuances such
as Sections 2 and 3 of the Implementing Rules and Regulations of Presidential Decree No.
186616 perpetuate such authority of the Chief of the Constabulary. Section 2 specifically
provides that any person or entity desiring to possess any firearm shall first secure the
necessary permit/license/authority from the Chief of the Constabulary. With regard to the
issuance of PTCFOR, Section 3 imparts: The Chief of Constabulary may, in meritorious
cases as determined by him and under such conditions as he may impose, authorize lawful
holders of firearms to carry them outside of residence. These provisions are issued pursuant
to the general power granted by P.D. No. 1866 empowering him to promulgate rules and
regulations for the effective implementation of the decree.17 At this juncture, it bears
emphasis that P.D. No. 1866 is the chief law governing possession of firearms in the
Philippines and that it was issued by President Ferdinand E. Marcos in the exercise of his
legislative power.18 cralawred
In an attempt to evade the application of the above-mentioned laws and regulations,
petitioner argues that the Chief of the PNP is not the same as the Chief of the Constabulary,
the PC being a mere unit or component of the newly established PNP. He contends further
that Republic Act No. 829419 amended P.D. No. 1866 such that the authority to issue rules
and regulations regarding firearms is now jointly vested in the Department of Justice and the
DILG, not the Chief of the Constabulary.20 cralawred
Petitioners submission is bereft of merit.
By virtue of Republic Act No. 6975,21 the Philippine National Police (PNP) absorbed the
Philippine Constabulary (PC). Consequently, the PNP Chief succeeded the Chief of the
Constabulary and, therefore, assumed the latters licensing authority. Section 24 thereof
specifies, as one of PNPs powers, the issuance of licenses for the possession of firearms
and explosives in accordance with law.22 This is in conjunction with the PNP Chiefs power
to issue detailed implementing policies and instructions on such matters as may be
necessary to effectively carry out the functions, powers and duties of the PNP.23 cralawred
Contrary to petitioners contention, R.A. No. 8294 does not divest the Chief of the
Constabulary (now the PNP Chief) of his authority to promulgate rules and regulations for the
effective implementation of P.D. No. 1866. For one, R.A. No. 8294 did not repeal entirely
P.D. No. 1866. It merely provides for the reduction of penalties for illegal possession of
firearms. Thus, the provision of P.D. No. 1866 granting to the Chief of the Constabulary the
authority to issue rules and regulations regarding firearms remains effective.
Correspondingly, the Implementing Rules and Regulations dated September 15, 1997 jointly
issued by the Department of Justice and the DILG pursuant to Section 6 of R.A. No. 8294
deal only with the automatic review, by the Director of the Bureau of Corrections or the
Warden of a provincial or city jail, of the records of convicts for violations of P.D. No. 1866.
The Rules seek to give effect to the beneficent provisions of R.A. No. 8294, thereby ensuring
the early release and reintegration of the convicts into the community.
Clearly, both P.D. No. 1866 and R.A. No. 6975 authorize the PNP Chief to issue the assailed
guidelines.
Corollarily, petitioner disputes President Arroyos declaration of a nationwide gun ban,
arguing that she has no authority to alter, modify, or amend the law on firearms through a
mere speech.
First, it must be emphasized that President Arroyos speech was just an expression of her
policy and a directive to her subordinate. It cannot, therefore, be argued that President
Arroyo enacted a law through a mere speech.
Second, at the apex of the entire executive officialdom is the President.Section 17, Article VII
of the Constitution specifies his power as Chief Executive, thus: The President shall have
control of all the executive departments, bureaus and offices. He shall ensure that the laws
be faithfully executed. As Chief Executive, President Arroyo holds the steering wheel that
controls the course of her government. She lays down policies in the execution of her plans
and programs. Whatever policy she chooses, she has her subordinates to implement them.
In short, she has the power of control. Whenever a specific function is entrusted by law or
regulation to her subordinate, she may act directly or merely direct the performance of a
duty.24 Thus, whenPresident Arroyo directed respondent Ebdane to suspend the issuance
of PTCFOR, she was just directing a subordinate to perform an assigned duty. Such act is
well within the prerogative of her office.
II.Right to bear arms: Constitutional or Statutory?
Petitioner earnestly contends that his right to bear arms is a constitutionally-protected right.
This, he mainly anchors on various American authorities. We therefore find it imperative to
determine the nature of the right in light of American jurisprudence.
The bearing of arms is a tradition deeply rooted in the English and American society. It
antedates not only the American Constitution but also the discovery of firearms.25 cralawred
A provision commonly invoked by the American people to justify their possession of firearms
is the Second Amendment of the Constitution of the United States of America, which reads:
A well regulated militia, being necessary for the security of free state, the right of the people
to keep and bear Arms, shall not be infringed.
An examination of the historical background of the foregoing provision shows that it pertains
to the citizenscollective right to take arms in defense of the State, not to the citizens
individual right to own and possess arms. The setting under which the right was
contemplated has a profound connection with the keeping and maintenance of a militia or an
armed citizenry. That this is how the right was construed is evident in early American cases.
The first case involving the interpretation of the Second Amendment that reached the United
States Supreme Court is United States v. Miller.26 Here, the indictment charged the
defendants with transporting an unregistered Stevens shotgun without the required stamped
written order, contrary to the National Firearms Act. The defendants filed a demurrer
challenging the facial validity of the indictment on the ground that the National Firearms Act
offends the inhibition of the Second Amendment. The District Court sustained the demurrer
and quashed the indictment. On appeal, the Supreme Court interpreted the right to bear
arms under the Second Amendment as referring to the collective right of those comprising
the Militia a body of citizens enrolled for military discipline. It does not pertain to the individual
right of citizen to bear arm. Miller expresses its holding as follows:chanroblesvirtua1awlibrary
In the absence of any evidence tending to show that possession or use of a shotgun having
a barrel of less than eighteen inches in length at this time has some reasonable relationship
to the preservation or efficiency of a well regulated militia, we cannot say that the Second
Amendment guarantees the right to keep and bear such an instrument. Certainly it is not
within judicial notice that this weapon is any part of the ordinary military equipment or that its
use could contribute to the common defense.
The same doctrine was re-echoed in Cases v. United States.27 Here, the Circuit Court of
Appeals held that the Federal Firearms Act, as applied to appellant, does not conflict with the
Second Amendment. It ruled that:chanroblesvirtua1awlibrary
While [appellants] weapon may be capable of military use, or while at least familiarity with it
might be regarded as of value in training a person to use a comparable weapon of military
type and caliber, still there is no evidence that the appellant was or ever had been a member
of any military organization or that his use of the weapon under the circumstances disclosed
was in preparation for a military career. In fact, the only inference possible is that the
appellant at the time charged in the indictment was in possession of, transporting, and using
the firearm and ammunition purely and simply on a frolic of his own and without any thought
or intention of contributing to the efficiency of the well regulated militia which the Second
amendment was designed to foster as necessary to the security of a free state.
With the foregoing jurisprudence, it is erroneous to assume that the US Constitution grants
upon the American people the right to bear arms. In a more explicit language, the United
States v. Cruikshank28 decreed: The right of the people to keep and bear arms is not a right
granted by the Constitution. Neither is it in any way dependent upon that instrument.
Likewise, in People v. Persce,29 the Court of Appeals said: Neither is there any
constitutional provision securing the right to bear arms which prohibits legislation with
reference to such weapons as are specifically before us for consideration. The provision in
the Constitution of the United States that the right of the people to keep and bear arms shall
not be infringed is not designed to control legislation by the state.
With more reason, the right to bear arms cannot be classified as fundamental under the 1987
Philippine Constitution.Our Constitution contains no provision similar to the Second
Amendment, as we aptly observed in the early case of United States v. Villareal:30
cralawred
The only contention of counsel which would appear to necessitate comment is the claim that
the statute penalizing the carrying of concealed weapons and prohibiting the keeping and the
use of firearms without a license, is in violation of the provisions of section 5 of the Philippine
Bill of Rights.
Counsel does not expressly rely upon the prohibition in the United States Constitution
against the infringement of the right of the people of the United States to keep and bear arms
(U. S. Constitution, amendment 2), which is not included in the Philippine Bill. But it may be
well, in passing, to point out that in no event could this constitutional guaranty have any
bearing on the case at bar, not only because it has not been expressly extended to the
Philippine Islands, but also because it has been uniformly held that both this and similar
provisions in State constitutions apply only to arms used in civilized warfare (see cases cited
in 40 Cyc., 853, note 18); x x x.
Evidently, possession of firearms by the citizens in the Philippines is the exception, not the
rule. The right to bear arms is a mere statutory privilege, not a constitutional right. It is a
mere statutory creation. What then are the laws that grant such right to the Filipinos? The
first real firearm law is Act No. 1780 enacted by the Philippine Commission on October 12,
1907. It was passed to regulate the importation, acquisition, possession, use and transfer of
firearms. Section 9 thereof provides:chanroblesvirtua1awlibrary
SECTION 9. Any person desiring to possess one or more firearms for personal protection, or
for use in hunting or other lawful purposes only, and ammunition therefor, shall make
application for a license to possess such firearm or firearms or ammunition as hereinafter
provided. Upon making such application, and before receiving the license, the applicant shall
make a cash deposit in the postal savings bank in the sum of one hundred pesos for each
firearm for which the license is to be issued, or in lieu thereof he may give a bond in such
form as the Governor-General may prescribe, payable to the Government of the Philippine
Islands, in the sum of two hundred pesos for each such firearm: PROVIDED, HOWEVER,
That persons who are actually members of gun clubs, duly formed and organized at the time
of the passage of this Act, who at such time have a license to possess firearms, shall not be
required to make the deposit or give the bond prescribed by this section, and the bond duly
executed by such person in accordance with existing law shall continue to be security for the
safekeeping of such arms.
The foregoing provision was restated in Section 88731 of Act No. 2711 that integrated the
firearm laws.Thereafter, President Ferdinand E. Marcos issued P.D. No. 1866. It codified the
laws on illegal possession, manufacture, dealing in, acquisition of firearms, ammunitions or
explosives and imposed stiffer penalties for their violation. R.A. No. 8294 amended some of
the provisions of P.D. No. 1866 by reducing the imposable penalties. Being a mere statutory
creation, the right to bear arms cannot be considered an inalienable or absolute right.
III.Vested Property Right
Section 1, Article III of the Constitution provides that no person shall be deprived of life,
liberty or property without due process of law. Petitioner invokes this provision, asserting that
the revocation of his PTCFOR pursuant to the assailed Guidelines deprived him of his vested
property right without due process of law and in violation of the equal protection of law.
Petitioner cannot find solace to the above-quoted Constitutional provision.
In evaluating a due process claim, the first and foremost consideration must be whether life,
liberty or property interest exists.32 The bulk of jurisprudence is that a license authorizing a
person to enjoy a certain privilege is neither a property nor property right. In Tan v. The
Director of Forestry,33 we ruled that a license is merely a permit or privilege to do what
otherwise would be unlawful, and is not a contract between the authority granting it and the
person to whom it is granted; neither is it property or a property right, nor does it create a
vested right. In a more emphatic pronouncement, we held in Oposa v. Factoran, Jr.34
that:chanroblesvirtua1awlibrary
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not
a contract, property or a property right protected by the due process clause of the
Constitution.
Petitioner, in arguing that his PTCFOR is a constitutionally protected property right, relied
heavily on Bell v. Burson35 wherein the U.S. Supreme Court ruled that once a license is
issued, continued possession may become essential in the pursuit of livelihood. Suspension
of issued licenses thus involves state action that adjudicates important interest of the
licensees.
Petitioners reliance on Bell is misplaced. This case involves a drivers license, not a license to
bear arms. The catena of American jurisprudence involving license to bear arms is perfectly
in accord with our ruling that a PTCFOR is neither a property nor a property right. In Erdelyi
v. OBrien,36 the plaintiff who was denied a license to carry a firearm brought suit against the
defendant who was the Chief of Police of the City of Manhattan Beach, on the ground that
the denial violated her constitutional rights to due process and equal protection of the laws.
The United States Court of Appeals Ninth Circuit ruled that Erdelyi did not have a property
interest in obtaining a license to carry a firearm, ratiocinating as follows:
Property interests protected by the Due Process Clause of the Fourteenth Amendment do
not arise whenever a person has only an abstract need or desire for, or unilateral expectation
of a benefit. x x x Rather, they arise from legitimate claims of entitlement defined by existing
rules or understanding that stem from an independent source, such as state law. x x x
Concealed weapons are closely regulated by the State of California. x x xWhether the statute
creates a property interest in concealed weapons licenses depends largely upon the extent
to which the statute contains mandatory language that restricts the discretion of the [issuing
authority] to deny licenses to applicants who claim to meet the minimum eligibility
requirements. x x xWhere state law gives the issuing authority broad discretion to grant or
deny license application in a closely regulated field, initial applicants do not have a property
right in such licenses protected by the Fourteenth Amendment. See Jacobson, supra, 627
F.2d at 180 (gaming license under Nevada law);
Similar doctrine was announced in Potts v. City of Philadelphia,37 Conway v. King,38
Nichols v. County of Sta. Clara,39 and Gross v. Norton.40 These cases enunciated that the
test whether the statute creates a property right or interest depends largely on the extent of
discretion granted to the issuing authority.
In our jurisdiction, the PNP Chief is granted broad discretion in the issuance of PTCFOR.
This is evident from the tenor of the Implementing Rules and Regulations of P.D. No. 1866
which state that the Chief of Constabulary may, in meritorious cases as determined by him
and under such conditions as he may impose, authorize lawful holders of firearms to carry
them outside of residence. Following the American doctrine, it is indeed logical to say that a
PTCFOR does not constitute a property right protected under our Constitution.
Consequently, a PTCFOR, just like ordinary licenses in other regulated fields, may be
revoked any time. It does not confer an absolute right, but only a personal privilege to be
exercised under existing restrictions, and such as may thereafter be reasonably imposed.41
A licensee takes his license subject to such conditions as the Legislature sees fit to impose,
and one of the statutory conditions of this license is that it might be revoked by the selectmen
at their pleasure. Such a license is not a contract, and a revocation of it does not deprive the
defendant of any property, immunity, or privilege within the meaning of these words in the
Declaration of Rights.42 The US Supreme Court, in Doyle v. Continental Ins. Co,43 held:
The correlative power to revoke or recall a permission is a necessary consequence of the
main power. A mere license by the State is always revocable.
The foregoing jurisprudence has been resonating in the Philippines as early as 1908. Thus,
in The Government of the Philippine Islands v. Amechazurra44 we
ruled:chanroblesvirtua1awlibrary
x x x no private person is bound to keep arms. Whether he does or not is entirely optional
with himself, but if, for his own convenience or pleasure, he desires to possess arms, he
must do so upon such terms as the Government sees fit to impose, for the right to keep and
bear arms is not secured to him by law. The Government can impose upon him such terms
as it pleases. If he is not satisfied with the terms imposed, he should decline to accept them,
but, if for the purpose of securing possession of the arms he does agree to such conditions,
he must fulfill them.
IV.Police Power
At any rate, assuming that petitioners PTCFOR constitutes a property right protected by the
Constitution, the same cannot be considered as absolute as to be placed beyond the reach
of the States police power. All property in the state is held subject to its general regulations,
necessary to the common good and general welfare.
In a number of cases, we laid down the test to determine the validity of a police measure,
thus:
(1) The interests of the public generally, as distinguished from those of a particular class,
require the exercise of the police power; andcralawlibrary
(2) The means employed are reasonably necessary for the accomplishment of the purpose
and not unduly oppressive upon individuals.
Deeper reflection will reveal that the test merely reiterates the essence of the constitutional
guarantees of substantive due process, equal protection, and non-impairment of property
rights.
It is apparent from the assailed Guidelines that the basis for its issuance was the need for
peace and order in the society. Owing to the proliferation of crimes, particularly those
committed by the New Peoples Army (NPA), which tends to disturb the peace of the
community, President Arroyo deemed it best to impose a nationwide gun ban. Undeniably,
the motivating factor in the issuance of the assailed Guidelines is the interest of the public in
general.
The only question that can then arise is whether the means employed are appropriate and
reasonably necessary for the accomplishment of the purpose and are not unduly oppressive.
In the instant case, the assailed Guidelines do not entirely prohibit possession of firearms.
What they proscribe is merely the carrying of firearms outside of residence. However, those
who wish to carry their firearms outside of their residences may re-apply for a new PTCFOR.
This we believe is a reasonable regulation. If the carrying of firearms is regulated,
necessarily, crime incidents will be curtailed. Criminals carry their weapon to hunt for their
victims; they do not wait in the comfort of their homes. With the revocation of all PTCFOR, it
would be difficult for criminals to roam around with their guns. On the other hand, it would be
easier for the PNP to apprehend them.
Notably, laws regulating the acquisition or possession of guns have frequently been upheld
as reasonable exercise of the police power.45 In State v. Reams,46 it was held that the
legislature may regulate the right to bear arms in a manner conducive to the public peace.
With the promotion of public peace as its objective and the revocation of all PTCFOR as the
means, we are convinced that the issuance of the assailed Guidelines constitutes a
reasonable exercise of police power. The ruling in United States v. Villareal,47 is relevant,
thus:chanroblesvirtua1awlibrary
We think there can be no question as to the reasonableness of a statutory regulation
prohibiting the carrying of concealed weapons as a police measure well calculated to restrict
the too frequent resort to such weapons in moments of anger and excitement. We do not
doubt that the strict enforcement of such a regulation would tend to increase the security of
life and limb, and to suppress crime and lawlessness, in any community wherein the practice
of carrying concealed weapons prevails, and this without being unduly oppressive upon the
individual owners of these weapons. It follows that its enactment by the legislature is a
proper and legitimate exercise of the police power of the state.
V. Ex post facto law
In Mekin v. Wolfe,48 an ex post facto law has been defined as one (a) which makes an
action done before the passing of the law and which was innocent when done criminal, and
punishes such action; or (b) which aggravates a crime or makes it greater than it was when
committed; or (c) which changes the punishment and inflicts a greater punishment than the
law annexed to the crime when it was committed; or (d) which alters the legal rules of
evidence and receives less or different testimony than the law required at the time of the
commission of the offense in order to convict the defendant.
We see no reason to devote much discussion on the matter. Ex post facto law prohibits
retrospectivity of penal laws.49 The assailed Guidelines cannot be considered as an ex post
facto lawbecause it is prospective in its application. Contrary to petitioners argument, it would
not result in the punishment of acts previously committed.
WHEREFORE, thepetition is hereby DISMISSED.
SO ORDERED.
Facts: GMA delivered a speech to PNP directing PNP Chief Hermogenes Ebdane to
suspend the issuance pf Permit to Carry Firearms Outside of Residence PTCFOR). Ebdane
issued guidelines banning carrying firearms outside of residence. Petitioner, Francisco
Chaves requested DILG to reconsider the implementation. The request was denied. Hence
the petition for prohibition and injunction against Executive Secretary Alberto Romulo and
PNP Chief Ebdane.
Issue: Whether or not revocation of PTCFOR is a violation of right to property? Whether or
not the banning of carrying firearms outside the residence is a valid exercise of police
power?
Decision: Petition dismissed. Just like ordinary licenses in other regulated fields, PTCFOR
may be revoked any time. It does not confer an absolute right, but only a personal privilege
to be exercised under existing restrictions. A licensee takes his license subject to such
conditions as the Legislature sees fit to impose, and one of the statutory conditions of this
license is that it might be revoked. Revocation of it does not deprive the defendant of any
property, immunity, or privilege.
The basis for its issuance was the need for peace and order in the society. the assailed
Guidelines do not entirely prohibit possession of firearms. What they proscribe is merely the
carrying of firearms outside of residence. However, those who wish to carry their firearms
outside of their residences may re-apply for a new PTCFOR. This is a reasonable regulation.
If the carrying of firearms is regulated, necessarily, crime incidents will be curtailed.
Oposa vs. Factoran Case Digest (G.R. No. 101083, July 30, 1993)
FACTS:
The plaintiffs in this case are all minors duly represented and joined by their parents. The
first complaint was filed as a taxpayer's class suit at the Branch 66 (Makati, Metro Manila), of
the Regional Trial Court, National capital Judicial Region against defendant (respondent)
Secretary of the Department of Environment and Natural Reasources (DENR). Plaintiffs
alleged that they are entitled to the full benefit, use and enjoyment of the natural resource
treasure that is the country's virgin tropical forests. They further asseverate that they
represent their generation as well as generations yet unborn and asserted that continued
deforestation have caused a distortion and disturbance of the ecological balance and have
resulted in a host of environmental tragedies.
Plaintiffs prayed that judgement be rendered ordering the respondent, his agents,
representatives and other persons acting in his behalf to cancel all existing Timber License
Agreement (TLA) in the country and to cease and desist from receiving, accepting,
processing, renewing or approving new TLAs.
Defendant, on the other hand, filed a motion to dismiss on the ground that the complaint had
no cause of action against him and that it raises a political question.
The RTC Judge sustained the motion to dismiss, further ruling that granting of the relief
prayed for would result in the impairment of contracts which is prohibited by the Constitution.
Plaintiffs (petitioners) thus filed the instant special civil action for certiorari and asked the
court to rescind and set aside the dismissal order on the ground that the respondent RTC
Judge gravely abused his discretion in dismissing the action.
ISSUES:
(1) Whether or not the plaintiffs have a cause of action.
(2) Whether or not the complaint raises a political issue.
(3) Whether or not the original prayer of the plaintiffs result in the impairment of contracts.
RULING:
First Issue: Cause of Action.
Respondents aver that the petitioners failed to allege in their complaint a specific legal right
violated by the respondent Secretary for which any relief is provided by law. The Court did
not agree with this. The complaint focuses on one fundamental legal right -- the right to a
balanced and healthful ecology which is incorporated in Section 16 Article II of the
Constitution. The said right carries with it the duty to refrain from impairing the environment
and implies, among many other things, the judicious management and conservation of the
country's forests. Section 4 of E.O. 192 expressly mandates the DENR to be the primary
government agency responsible for the governing and supervising the exploration, utilization,
development and conservation of the country's natural resources. The policy declaration of
E.O. 192 is also substantially re-stated in Title XIV Book IV of the Administrative Code of
1987. Both E.O. 192 and Administrative Code of 1987 have set the objectives which will
serve as the bases for policy formation, and have defined the powers and functions of the
DENR. Thus, right of the petitioners (and all those they represent) to a balanced and
healthful ecology is as clear as DENR's duty to protect and advance the said right.
A denial or violation of that right by the other who has the correlative duty or obligation to
respect or protect or respect the same gives rise to a cause of action. Petitioners maintain
that the granting of the TLA, which they claim was done with grave abuse of discretion,
violated their right to a balance and healthful ecology. Hence, the full protection thereof
requires that no further TLAs should be renewed or granted.
After careful examination of the petitioners' complaint, the Court finds it to be adequate
enough to show, prima facie, the claimed violation of their rights.
Second Issue: Political Issue.
Second paragraph, Section 1 of Article VIII of the constitution provides for the expanded
jurisdiction vested upon the Supreme Court. It allows the Court to rule upon even on the
wisdom of the decision of the Executive and Legislature and to declare their acts as invalid
for lack or excess of jurisdiction because it is tainted with grave abuse of discretion.
Third Issue: Violation of the non-impairment clause.
The Court held that the Timber License Agreement is an instrument by which the state
regulates the utilization and disposition of forest resources to the end that public welfare is
promoted. It is not a contract within the purview of the due process clause thus, the non-
impairment clause cannot be invoked. It can be validly withdraw whenever dictated by public
interest or public welfare as in this case. The granting of license does not create irrevocable
rights, neither is it property or property rights.
Moreover, the constitutional guaranty of non-impairment of obligations of contract is limit by
the exercise by the police power of the State, in the interest of public health, safety, moral
and general welfare. In short, the non-impairment clause must yield to the police power of
the State.
The instant petition, being impressed with merit, is hereby GRANTED and the RTC decision
is SET ASIDE.
[G.R. No. 165036 : July 05, 2010]
HAZEL MA. C. ANTOLIN, PETITIONER, VS. ABELARDO T. DOMONDON, JOSE A.
GANGAN, AND VIOLETA J. JOSEF, RESPONDENTS.
 [G.R. NO. 175705]
HAZEL MA. C. ANTOLIN PETITIONER, VS. ANTONIETA FORTUNA-IBE, RESPONDENT.
DEL CASTILLO, J.:
Examinations have a two-fold purpose. First, they are summative; examinations are
intended to assess and record what and how much the students have learned. Second, and
perhaps more importantly, they are formative; examinations are intended to be part and
parcel of the learning process. In a perfect system, they are tools for learning. In view of the
pedagogical aspect of national examinations, the need for all parties to fully ventilate their
respective positions, and the view that government transactions can only be improved by
public scrutiny, we remand these cases to the trial court for further proceedings.
Factual Antecedents
Petitioner took the accountancy licensure examinations (the Certified Public Accountant
[CPA] Board Exams) conducted by the Board of Accountancy (the Board) in October
1997.[1] The examination results were released on October 29, 1997; out of 6,481
examinees, only 1,171 passed. Unfortunately, petitioner did not make it. When the results
were released, she received failing grades in four out of the seven subjects. [2]
Subject Petitioner's Grade
Theory of Accounts 65 %
Business Law 66 %
Management Services 69 %
Auditing Theory 82 %
Auditing Problems 70 %
Practical Accounting I 68 %
Practical Accounting II 77 %
Convinced that she deserved to pass the examinations, she wrote to respondent Abelardo T.
Domondon (Domondon), Acting Chairman of the Board of Accountancy, and requested that
her answer sheets be re-corrected.[3] On November 3, 1997, petitioner was shown her
answer sheets, but these consisted merely of shaded marks, so she was unable to
determine why she failed the exam.[4] Thus, on November 10, 1997, she again wrote to the
Board to request for copies of (a) the questionnaire in each of the seven subjects (b) her
answer sheets; (c) the answer keys to the questionnaires, and (d) an explanation of the
grading system used in each subject (collectively, the Examination Papers).[5]
Acting Chairman Domondon denied petitioner's request on two grounds: first, that Section
36, Article III of the Rules and Regulations Governing the Regulation and Practice of
Professionals, as amended by Professional Regulation Commission (PRC) Resolution No.
332, series of 1994, only permitted access to the petitioner's answer sheet (which she had
been shown previously), and that reconsideration of her examination result was only proper
under the grounds stated therein:
Sec. 36 An examinee shall be allowed to have access or to go over his/her test papers or
answer sheets on a date not later than thirty (30) days from the official release of the results
of the examination. Within ten (10) days from such date, he/she may file his/her request for
reconsideration of ratings. Reconsideration of rating shall be effected only on grounds of
mechanical error in the grading of his/her testpapers or answer sheets, or malfeasance. [6]
Second, Acting Chairman Domondon clarified that the Board was precluded from releasing
the Examination Papers (other than petitioner's answer sheet) by Section 20, Article IV of
PRC Resolution No. 338, series of 1994, which provides:
Sec. 20. Illegal, Immoral, Dishonorable, Unprofessional Acts - The hereunder acts shall
constitute prejudicial, illegal, grossly immoral, dishonorable, or unprofessional conduct:
A. Providing, getting, receiving, holding, using or reproducing questions
xxx
3. that have been given in the examination except if the test bank for the subject has on
deposit at least two thousand (2,000) questions.[7]
After a further exchange of correspondence,[8] the Board informed petitioner that an
investigation was conducted into her exam and there was no mechanical error found in the
grading of her test papers.[9]
Proceedings before the Regional Trial Court
Undeterred, on January 12, 1998, petitioner filed a Petition for Mandamus with Damages
against the Board of Accountancy and its members[10] before the Regional Trial Court (RTC)
of Manila. The case was raffled to Branch 33, and docketed as Civil Case No. 98-
86881. The Petition included a prayer for the issuance of a preliminary mandatory injunction
ordering the Board of Accountancy and its members (the respondents) to furnish petitioner
with copies of the Examination Papers. Petitioner also prayed that final judgment be issued
ordering respondents to furnish petitioner with all documents and other materials as would
enable her to determine whether respondents fairly administered the examinations and
correctly graded petitioner's performance therein, and, if warranted, to issue to her a
certificate of registration as a CPA.[11]
On February 5, 1998, respondents filed their Opposition to the Application for a Writ of
Preliminary Mandatory Injunction, and argued, inter alia, that petitioner was not entitled to the
relief sought, that the respondents did not have the duty to furnish petitioner with copies of
the Examination Papers, and that petitioner had other plain, speedy, adequate remedy in the
ordinary course of law, namely, recourse to the PRC.[12] Respondents also filed their Answer
with Compulsory Counterclaim in the main case, which asked that the Petition for Mandamus
with Damages be dismissed for lack of merit on the following grounds: (1) petitioner failed to
exhaust administrative remedies; (2) the petition stated no cause of action because there
was no ministerial duty to release the information demanded; and (3) the constitutional right
to information on matters of public concern is subject to limitations provided by law, including
Section 20, Article IV, of PRC Resolution No. 338, series of 1994.[13]
On March 3, 1998, petitioner filed an Amended Petition (which was admitted by the RTC),
where she included the following allegation in the body of her petition:
The allegations in this amended petition are meant only to plead a cause of action for access
to the documents requested, not for re-correction which petitioner shall assert in the proper
forum depending on, among others, whether she finds sufficient error in the documents to
warrant such or any other relief. None of the allegations in this amended petition, including
those in the following paragraphs, is made to assert a cause of action for re-correction.[14]
If only to underscore the fact that she was not asking for a re-checking of her exam, the
following prayer for relief was deleted from the Amended Petition: "and, if warranted, to issue
to her a certificate of registration as a CPA."
On June 23, 1998, respondents filed a Manifestation and Motion to Dismiss Application for
Writ of Preliminary Mandatory Injunction, on the ground that petitioner had taken and passed
the May 1998 CPA Licensure Examination and had taken her oath as a CPA. [15] Petitioner
filed her Opposition on July 8, 1998.[16] Subsequently, on October 29, 1998, respondents
filed their Answer with Counterclaim to the amended petition. They reiterated their original
allegations and further alleged that there was no cause of action because at the time the
Amended Petition was admitted, they had ceased to be members of the Board of
Accountancy and they were not in possession of the documents sought by the petitioner. [17]
Ruling of the Regional Trial Court
In an Order dated October 16, 1998, the trial court granted respondent's Motion to Dismiss
Petitioner's Application for a Writ of Preliminary Mandatory Injunction (not the main case),
ruling that the matter had become moot since petitioner passed the May CPA Licensure
1998 Examination and had already taken her oath as a CPA.[18]
Undaunted, petitioner sought and obtained leave to file a Second Amended Petition for
Mandamus with Damages[19] where she finally impleaded the PRC as respondent and
included the following plea in her prayer:
WHEREFORE, petitioner respectfully prays that:
xxxx
2. Judgment be issued -
(a) commanding respondents to give petitioner all documents and other materials as would
enable her to determine whether respondents fairly administered the same examinations and
correctly graded petitioner's performance therein and, if warranted, to make the
appropriate revisions on the results of her examination. (Emphasis ours)
On June 21, 2002, the trial court dismissed the petition on the ground that the petition had
already become moot, since petitioner managed to pass the 1998 CPA Board
examinations.[20] Petitioner sought reconsideration[21] which was granted by the trial court in
its Omnibus Order[22] dated November 11, 2002. The Omnibus Order provides in part:
On the motion for reconsideration filed by the petitioner, the Court is inclined to reconsider its
Order dismissing the petition. The Court agrees with the petitioner that the passing of the
petitioner in the subsequent CPA examination did not render the petition moot and academic
because the relief "and if warranted, to issue to her a certificate of registration as Certified
Public Accountant" was deleted from the original petition. As regard the issue of whether the
petitioner has the constitutional right to have access to the questioned documents, the Court
would want first the parties to adduce evidence before it can resolve the issue so that it can
make a complete determination of the rights of the parties.
The Court would also want the Professional Regulation Commission to give its side of the
case the moment it is impleaded as a respondent in the Second Amended Petition for
Mandamus filed by the petitioner which this Court is inclined to grant.
As to the Motion for Conservatory Measures filed by the petitioner, the Court denies the
same. It is clear that the PRC has in custody the documents being requested by the
petitioner. It has also an adequate facility to preserve and safeguard the documents. To be
sure that the questioned documents are preserved and safeguarded, the Court will order the
PRC to preserve and safeguard the documents and make them available anytime the Court
or petitioner needs them.
WHEREFORE, the Order of this Court dated June 20, 2002 is reconsidered and set
aside. The Professional Regulation Commission is ordered to preserve and safeguard the
following documents:
a) Questionnaire in each of the seven subjects comprising the Accountancy Examination of
October, 1997;
b) Petitioner's Answer Sheets; and
c) Answer keys to the questionnaires.
SO ORDERED.[23]
Respondents filed a motion for reconsideration which was denied.[24]
Proceedings before the Court of Appeals
The RTC Decisions led to the filing of three separate petitions for certiorari before the Court
of Appeals (CA):
(a) CA-GR SP No. 76498, a petition filed by respondents Domondon, Gangan, and Josef on
April 11, 2003;
(b) CA-GR SP No. 76546, a petition filed by respondent Ibe on April 30, 2003; and
(c) CA-GR SP No. 76545, a petition filed by the Board of Accountancy and PRC.
It is the first two proceedings that are pending before us. In both cases, the CA set aside the
RTC Decisions and ordered the dismissal of Civil Case No. 98-8681.
Ruling of the Court of Appeals
In its December 11, 2006 Decision[25] in CA-GR SP No. 76546, the CA ruled that the petition
has become moot in view of petitioner's eventual passing of the 1998 CPA Board Exam. In
CA-GR SP No. 76498, the CA found, in a Decision dated February 16, 2004, [26] that (i)
Section 20, Article IV of PRC Resolution No. 338 constituted a valid limitation on petitioner's
right to information and access to government documents; (ii) the Examination Documents
were not of public concern, because petitioner merely sought review of her failing marks; (iii)
it was not the ministerial or mandatory function of the respondents to review and reassess
the answers to examination questions of a failing examinee; (iv) the case has become moot,
since petitioner already passed the May 1998 CPA Board Examinations and took her oath as
a CPA; and (v) petitioner failed to exhaust administrative remedies, because, having failed to
secure the desired outcome from the respondents, she did not elevate the matter to the PRC
before seeking judicial intervention.[27]
CA-GR SP No. 76498 and CA-GR SP No. 76546 were brought before us by the petitioner
and docketed as G.R. Nos. 165036 and 175705, respectively. The cases were then
consolidated, in view of the similarity of the factual antecedents and issues, and to avoid the
possibility of conflicting decisions by different divisions of this Court.[28]
Issues
Before us, petitioner argues that she has a right to obtain copies of the examination papers
so she can determine for herself why and how she failed and to ensure that the Board
properly performed its duties. She argues that the Constitution[29] as well as the Code of
Conduct and Ethical Standards for Public Officials and Employees [30] support her right to
demand access to the Examination Papers. Furthermore, she claims that there was no need
to exhaust administrative remedies, since no recourse to the PRC was available, and only a
pure question of law is involved in this case. Finally, she claims that her demand for access
to documents was not rendered moot by her passing of the 1998 CPA Board Exams.
Our Ruling
Propriety of Writ of Mandamus
At the very outset let us be clear of our ruling. Any claim for re-correction or revision of her
1997 examination cannot be compelled by mandamus. This much was made evident by our
ruling in Agustin-Ramos v. Sandoval,[31] where we stated:
After deliberating on the petition in relation to the other pleadings filed in the proceedings at
bar, the Court resolved to DENY said petition for lack of merit. The petition at bar prays for
the setting aside of the Order of respondent Judge dismissing petitioners' mandamus action
to compel the other respondents (Medical Board of Examiners and the Professional
Regulation Commission) "to reconsider, recorrect and/or rectify the board ratings of the
petitioners from their present failing grades to higher or passing marks." The function of
reviewing and re-assessing the petitioners' answers to the examination questions, in
the light of the facts and arguments presented by them x x x is a discretionary
function of the Medical Board, not a ministerial and mandatory one, hence, not within
the scope of the writ of mandamus. The obvious remedy of the petitioners from the
adverse judgment by the Medical Board of Examiners was an appeal to the Professional
Regulation Commission itself, and thence to the Court of Appeals; and since they did not
apply for relief to the Commission prior to their institution of the special civil action of
mandamus in the Regional Trial Court, the omission was fatal to the action under the familiar
doctrine requiring exhaustion of administrative remedies. Apart from the obvious
undesirability of a procedure which would allow Courts to substitute their judgment for that of
Government boards in the determination of successful examinees in any administered
examination - an area in which courts have no expertise - and the circumstance that the law
declares the Court of Appeals to be the appropriate review Court, the Regional Trial Court
was quite correct in refusing to take cognizance of an action seeking reversal of the quasi-
judicial action taken by the Medical Board of Examiners.[32] (Emphasis ours)
For a writ of mandamus to issue, the applicant must have a well-defined, clear, and certain
legal right to the thing demanded. The corresponding duty of the respondent to perform the
required act must be equally clear.[33] No such clarity exists here; neither does petitioner's
right to demand a revision of her examination results. And despite petitioner's assertions
that she has not made any demand for re-correction, the most cursory perusal of her Second
Amended Petition and her prayer that the respondents "make the appropriate revisions on
the results of her examination" belies this claim.
Like the claimants in Agustin, the remedy of petitioner from the refusal of the Board to
release the Examination Papers should have been through an appeal to the
PRC. Undoubtedly, petitioner had an adequate remedy from the Board's refusal to provide
her with copies of the Examination Papers. Under Section 5(a) of Presidential Decree No.
223,[34] the PRC has the power to promulgate rules and regulations to implement policies for
the regulation of the accounting profession.[35] In fact, it is one such regulation (PRC
Resolution No. 338) that is at issue in this case. In addition, under Section 5(c), the PRC
has the power to
review, coordinate, integrate and approve the policies, resolutions, rules and
regulations, orders or decisions promulgated by the various Boards with respect to the
profession or occupation under their jurisdictions including the results of their licensure
examinations but their decisions on administrative cases shall be final and executory unless
appealed to the Commission within thirty (30) days from the date of promulgation thereof.
Petitioner posits that no remedy was available because the PRC's power to "review" and
"approve" in Section 5(c) only refers to appeals in decisions concerning administrative
investigations[36] and not to instances where documents are being requested. Not only is this
position myopic and self-serving, it is bereft of either statutory or jurisprudential basis. The
PRC's quasi-legislative and enforcement powers, encompassing its authority to review and
approve "policies, resolutions, rules and regulations, orders, or decisions" cover more than
administrative investigations conducted pursuant to its quasi-judicial powers.[37] More
significantly, since the PRC itself issued the resolution questioned by the petitioner here, it
was in the best position to resolve questions addressed to its area of expertise. Indeed,
petitioner could have saved herself a great deal of time and effort had she given the PRC the
opportunity to rectify any purported errors committed by the Board.
One of the reasons for exhaustion of administrative remedies is our well-entrenched doctrine
on separation of powers, which enjoins upon the Judiciary a becoming policy of non-
interference with matters falling primarily (albeit not exclusively) within the competence of
other departments.[38] Courts, for reasons of law, comity and convenience, should not
entertain suits unless the available administrative remedies have first been resorted to and
the proper authorities have been given an appropriate opportunity to act and correct their
alleged errors, if any, committed in the administrative forum. [39]
However, the principle of exhaustion of administrative remedies is subject to exceptions,
among which is when only a question of law is involved.[40] This is because issues of law -
such as whether petitioner has a constitutional right to demand access to the Examination
Papers - cannot be resolved with finality by the administrative officer. [41]
Issues of Mootness
We now turn to the question of whether the petition has become moot in view of petitioner's
having passed the 1998 CPA examination. An issue becomes moot and academic when it
ceases to present a justiciable controversy, so that a declaration on the issue would be of no
practical use or value.[42]
In this jurisdiction, any citizen may challenge any attempt to obstruct the exercise of his or
her right to information and may seek its enforcement by mandamus.[43] And since every
citizen possesses the inherent right to be informed by the mere fact of citizenship, [44] we find
that petitioner's belated passing of the CPA Board Exams does not automatically mean that
her interest in the Examination Papers has become mere superfluity. Undoubtedly, the
constitutional question presented, in view of the likelihood that the issues in this case will be
repeated, warrants review.[45]
The crux of this case is whether petitioner may compel access to the Examination
Documents through mandamus. As always, our inquiry must begin with the Constitution.
Section 7, Article III provides:
Sec.7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official
acts, transactions, or decisions, as well to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be provided by
law.
Together with the guarantee of the right to information, Section 28, Article II promotes full
disclosure and transparency in government, viz:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public interest.
Like all the constitutional guarantees, the right to information is not absolute. The people's
right to information is limited to "matters of public concern," and is further "subject to such
limitations as may be provided by law." Similarly, the State's policy of full disclosure is
limited to "transactions involving public interest," and is "subject to reasonable conditions
prescribed by law". The Court has always grappled with the meanings of the terms "public
interest" and "public concern." As observed in Legaspi v. Civil Service Commission:[46]
In determining whether x x x 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.
We have also recognized the need to preserve a measure of confidentiality on some matters,
such as national security, trade secrets and banking transactions, criminal matters, and other
confidential matters.[47]
We are prepared to concede that national board examinations such as the CPA Board
Exams are matters of public concern. The populace in general, and the examinees in
particular, would understandably be interested in the fair and competent administration of
these exams in order to ensure that only those qualified are admitted into the accounting
profession. And as with all matters pedagogical, these examinations could be not merely
quantitative means of assessment, but also means to further improve the teaching and
learning of the art and science of accounting.
On the other hand, we do realize that there may be valid reasons to limit access to the
Examination Papers in order to properly administer the exam. More than the mere
convenience of the examiner, it may well be that there exist inherent difficulties in the
preparation, generation, encoding, administration, and checking of these multiple choice
exams that require that the questions and answers remain confidential for a limited
duration. However, the PRC is not a party to these proceedings. They have not been given
an opportunity to explain the reasons behind their regulations or articulate the justification for
keeping the Examination Documents confidential. In view of the far-reaching implications of
this case, which may impact on every board examination administered by the PRC, and in
order that all relevant issues may be ventilated, we deem it best to remand these cases to
the RTC for further proceedings.
IN VIEW OF THE FOREGOING, the petitions are GRANTED. The December 11, 2006 and
February 16, 2004 Decisions of the Court of Appeals in CA-GR SP No. 76546 and CA-GR
SP No. 76498, respectively, are hereby SET ASIDE. The November 11, 2002 and January
30, 2003 Orders of the Regional Trial Court of Manila, Branch 33, in Civil Case No. 98-86881
are AFFIRMED. The case is remanded to the Regional Trial Court for further proceedings.
SO ORDERED.
G.R. No. 151445 April 11, 2002
ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCEY GLORIA
MACAPAGAL-ARROYO, and HONORABLE ANGELO REYES in his capacity as
Secretary of National Defense, respondents.
SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors,
vs.
GLORIA MACAPAGA-ARROYO, ALBERTO ROMULO, ANGELO REYES, respondents.
DISSENTING OPINION
SEPARATE OPINION
DE LEON, JR., J.:
This case involves a petition for certiorari and prohibition as well as a petition-in-intervention,
praying that respondents be restrained from proceeding with the so-called "Balikatan 02-1"
and that after due notice and hearing, that judgment be rendered issuing a permanent writ of
injunction and/or prohibition against the deployment of U.S. troops in Basilan and Mindanao
for being illegal and in violation of the Constitution.
The facts are as follows:
Beginning January of this year 2002, personnel from the armed forces of the United States of
America started arriving in Mindanao to take part, in conjunction with the Philippine military,
in "Balikatan 02-1." These so-called "Balikatan" exercises are the largest combined training
operations involving Filipino and American troops. In theory, they are a simulation of joint
military maneuvers pursuant to the Mutual Defense Treaty,1 a bilateral defense agreement
entered into by the Philippines and the United States in 1951.
Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to the paucity of
any formal agreement relative to the treatment of United States personnel visiting the
Philippines. In the meantime, the respective governments of the two countries agreed to hold
joint exercises on a reduced scale. The lack of consensus was eventually cured when the
two nations concluded the Visiting Forces Agreement (V FA) in 1999.
The entry of American troops into Philippine soil is proximately rooted in the international
anti-terrorism campaign declared by President George W. Bush in reaction to the tragic
events that occurred on September 11, 2001. On that day, three (3) commercial aircrafts
were hijacked, flown and smashed into the twin towers of the World Trade Center in New
York City and the Pentagon building in Washington, D.C. by terrorists with alleged links to
the al-Qaeda ("the Base"), a Muslim extremist organization headed by the infamous Osama
bin Laden. Of no comparable historical parallels, these acts caused billions of dollars worth
of destruction of property and incalculable loss of hundreds of lives.
On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for
certiorari and prohibition, attacking the constitutionality of the joint exercise. 2 They were
joined subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA, both party-Iist
organizations, who filed a petition-in-intervention on February 11, 2002.
Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS
and PARTIDO, on the other hand, aver that certain members of their organization are
residents of Zamboanga and Sulu, and hence will be directly affected by the operations
being conducted in Mindanao. They likewise pray for a relaxation on the rules relative
to locus standi citing the unprecedented importance of the issue involved.
On February 71 2002 the Senate conducted a hearing on the "Balikatan" exercise wherein
Vice-President Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign. Affairs,
presented the Draft Terms of Reference (TOR).3 Five days later, he approved the TOR,
which we quote hereunder:
I. POLICY LEVEL
1. The Exercise shall be consistent with the Philippine Constitution and all its
activities shall be in consonance with the laws of the land and the provisions of the
RP-US Visiting Forces Agreement (VFA).
2. The conduct of this training Exercise is in accordance with pertinent United
Nations resolutions against global terrorism as understood by the respective parties.
3. No permanent US basing and support facilities shall be established. Temporary
structures such as those for troop billeting, classroom instruction and messing may
be set up for use by RP and US Forces during the Exercise.
4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors
under the authority of the Chief of Staff, AFP. In no instance will US Forces operate
independently during field training exercises (FTX). AFP and US Unit Commanders
will retain command over their respective forces under the overall authority of the
Exercise Co-Directors. RP and US participants shall comply with operational
instructions of the AFP during the FTX.
5. The exercise shall be conducted and completed within a period of not more than
six months, with the projected participation of 660 US personnel and 3,800 RP
Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and
terminate the Exercise and other activities within the six month Exercise period.
6. The Exercise is a mutual counter-terrorism advising, assisting and training
Exercise relative to Philippine efforts against the ASG, and will be conducted on the
Island of Basilan. Further advising, assisting and training exercises shall be
conducted in Malagutay and the Zamboanga area. Related activities in Cebu will be
for support of the Exercise.
7. Only 160 US Forces organized in 12-man Special Forces Teams shall be
deployed with AFP field, commanders. The US teams shall remain at the Battalion
Headquarters and, when approved, Company Tactical headquarters where they can
observe and assess the performance of the AFP Forces.
8. US exercise participants shall not engage in combat, without prejudice to their
right of self-defense.
9. These terms of Reference are for purposes of this Exercise only and do not create
additional legal obligations between the US Government and the Republic of the
Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of mutual military assisting,
advising and training of RP and US Forces with the primary objective of
enhancing the operational capabilities of both forces to combat terrorism.
b. At no time shall US Forces operate independently within RP territory.
c. Flight plans of all aircraft involved in the exercise will comply with the local
air traffic regulations.
2. ADMINISTRATION & LOGISTICS
a. RP and US participants shall be given a country and area briefing at the
start of the Exercise. This briefing shall acquaint US Forces on the culture
and sensitivities of the Filipinos and the provisions of the VF A. The briefing
shall also promote the full cooperation on the part of the RP and US
participants for the successful conduct of the Exercise.
b. RP and US participating forces may share, in accordance with their
respective laws and regulations, in the use of their resources, equipment
and other assets. They will use their respective logistics channels.
c. Medical evaluation shall be jointly planned and executed utilizing RP and
US assets and resources.
d. Legal liaison officers from each respective party shall be appointed by the
Exercise Directors.
3. PUBLIC AFFAIRS
a. Combined RP-US Information Bureaus shall be established at the
Exercise Directorate in Zamboanga City and at GHQ, AFP in Camp
Aguinaldo, Quezon City.
b. Local media relations will be the concern of the AFP and all public affairs
guidelines shall be jointly developed by RP and US Forces.
c. Socio-Economic Assistance Projects shall be planned and executed
jointly by RP and US Forces in accordance with their respective laws and
regulations, and in consultation with community and local government
officials.
Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and
United States Charge d' Affaires Robert Fitts signed the Agreed Minutes of the discussion
between the Vice-President and Assistant Secretary Kelly.4
Petitioners Lim and Ersando present the following arguments:
I.THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE
TREATY (MDT) in 1951 TO PROVIDE MUTUAL MILITARY ASSIST ANCE IN
ACCORDANCE WITH THE 'CONSTITUTIONAL PROCESSE-S' OF EACH COUNTRY
ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR,
MEANING A THIRD COUNTRY AGAINST ONE OF THEM.
BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT THE ABU SAYYAF
BANDITS IN BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS
SUBJECT THE PHILIPPINES TO AN ARMED EXTERNAL ATTACK TO WARRANT U.S.
MILITARY ASSISTANCE UNDER THE MDT OF 1951.
II.NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE
IN COMBAT OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF
FIRED UPON".
Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO.
In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter
alia, Lim and Ersando's standing to file suit, the prematurity of the action, as well as the
impropriety of availing of certiorari to ascertain a question of fact. Anent their locus
standi, the Solicitor General argues that first, they may not file suit in their capacities as,
taxpayers inasmuch as it has not been shown that "Balikatan 02-1 " involves the exercise of
Congress' taxing or spending powers. Second, their being lawyers does not invest them with
sufficient personality to initiate the case, citing our ruling in Integrated Bar of the
Philippines v. Zamora.5 Third, Lim and Ersando have failed to demonstrate the requisite
showing of direct personal injury. We agree.
It is also contended that the petitioners are indulging in speculation. The Solicitor General is
of the view that since the Terms of Reference are clear as to the extent and duration of
"Balikatan 02-1," the issues raised by petitioners are premature, as they are based only on a
fear of future violation of the Terms of Reference. Even petitioners' resort to a special civil
action for certiorari is assailed on the ground that the writ may only issue on the basis of
established facts.
Apart from these threshold issues, the Solicitor General claims that there is actually no
question of constitutionality involved. The true object of the instant suit, it is said, is to obtain
an interpretation of the V FA. The Solicitor General asks that we accord due deference to the
executive determination that "Balikatan 02-1" is covered by the VFA, considering the
President's monopoly in the field of foreign relations and her role as commander-in-chief of
the Philippine armed forces.
Given the primordial importance of the issue involved, it will suffice to reiterate our view on
this point in a related case:
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, 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. [citation omitted]
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,
Daza vs. Singson, and Basco vs. Phil, Amusement and Gaming Corporation,
where we emphatically held:
Considering however the importance to the public of the case at bar, and in
keeping with the Court's 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 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. xxx'
Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court 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 department of the
government a becoming respect for each other's act, this Court nevertheless
resolves to take cognizance of the instant petition.6
Hence, we treat with similar dispatch the general objection to the supposed prematurity of
the action. At any rate, petitioners' concerns on the lack of any specific regulation on the
latitude of activity US personnel may undertake and the duration of their stay has been
addressed in the Terms of Reference.
The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to
which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for
brevity). The MDT has been described as the "core" of the defense relationship between the
Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and
technological capabilities of our armed forces through joint training with its American
counterparts; the "Balikatan" is the largest such training exercise directly supporting the
MDT's objectives. It is this treaty to which the V FA adverts and the obligations thereunder
which it seeks to reaffirm.
The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it
created a vacuum in US-Philippine defense relations, that is, until it was replaced by the
Visiting Forces Agreement. It should be recalled that on October 10, 2000, by a vote of
eleven to three, this Court upheld the validity of the VFA.7 The V FA provides the "regulatory
mechanism" by which "United States military and civilian personnel [may visit] temporarily in
the Philippines in connection with activities approved by the Philippine Government." It
contains provisions relative to entry and departure of American personnel, driving and
vehicle registration, criminal jurisdiction, claims, importation and exportation, movement of
vessels and aircraft, as well as the duration of the agreement and its termination. It is the
VFA which gives continued relevance to the MDT despite the passage of years. Its primary
goal is to facilitate the promotion of optimal cooperation between American and Philippine
military forces in the event of an attack by a common foe.
The first question that should be addressed is whether "Balikatan 02-1" is covered by the
Visiting Forces Agreement. To resolve this, it is necessary to refer to the V FA itself: Not
much help can be had therefrom, unfortunately, since the terminology employed is itself the
source of the problem. The VFA permits United States personnel to engage, on an
impermanent basis, in "activities," the exact meaning of which was left undefined. The
expression is ambiguous, permitting a wide scope of undertakings subject only to the
approval of the Philippine government.8 The sole encumbrance placed on its definition is
couched in the negative, in that United States personnel must "abstain from any
activity inconsistent with the spirit of this agreement, and in particular, from any political
activity."9 All other activities, in other words, are fair game.
We are not left completely unaided, however. The Vienna Convention on the Law of
Treaties, which contains provisos governing interpretations of international agreements,
state:
SECTION 3. INTERPRETATION OF TREATIES
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning
to be given to the tenus of the treaty in their context and in the light of its object and
purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the
parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion
with the conclusion of the treaty and accepted by the other parties as an
instrument related to the party .
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes
the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between
the parties.
4. A special meaning shall be given to a term if it is established that the parties so
intended.
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of article 31, or to determine the
meaning when the interpretation according to article 31 :
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd unreasonable.
It is clear from the foregoing that the cardinal rule of interpretation must involve an
examination of the text, which is presumed to verbalize the parties' intentions. The
Convention likewise dictates what may be used as aids to deduce the meaning of terms,
which it refers to as the context of the treaty, as well as other elements may be taken into
account alongside the aforesaid context. As explained by a writer on the Convention ,
[t]he Commission's proposals (which were adopted virtually without change by the
conference and are now reflected in Articles 31 and 32 of the Convention) were
clearly based on the view that the text of a treaty must be presumed to be the
authentic expression of the intentions of the parties; the Commission accordingly
came down firmly in favour of the view that 'the starting point of interpretation is the
elucidation of the meaning of the text, not an investigation ab initio into the intentions
of the parties'. This is not to say that the travauxpreparatoires of a treaty , or the
circumstances of its conclusion, are relegated to a subordinate, and wholly
ineffective, role. As Professor Briggs points out, no rigid temporal prohibition on
resort to travaux preparatoires of a treaty was intended by the use of the phrase
'supplementary means of interpretation' in what is now Article 32 of the Vienna
 Convention. The distinction between the general rule of interpretation and the
supplementary means of interpretation is intended rather to ensure that the
supplementary means do not constitute an alternative, autonomous method of
interpretation divorced from the general rule.10
The Terms of Reference rightly fall within the context of the VFA.
After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of
the word .'activities" arose from accident. In our view, it was deliberately made that way to
give both parties a certain leeway in negotiation. In this manner, visiting US forces may
sojourn in Philippine territory for purposes other than military. As conceived, the joint
exercises may include training on new techniques of patrol and surveillance to protect the
nation's marine resources, sea search-and-rescue operations to assist vessels in distress,
disaster relief operations, civic action projects such as the building of school houses, medical
and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only
logical to assume that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and
training exercise," falls under the umbrella of sanctioned or allowable activities in the context
of the agreement. Both the history and intent of the Mutual Defense Treaty and the V FA
support the conclusion that combat-related activities -as opposed to combat itself -such as
the one subject of the instant petition, are indeed authorized.
That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under
the terms of the VFA, what may US forces legitimately do in furtherance of their aim to
provide advice, assistance and training in the global effort against terrorism? Differently
phrased, may American troops actually engage in combat in Philippine territory? The Terms
of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise
participants may not engage in combat "except in self-defense." We wryly note that this
sentiment is admirable in the abstract but difficult in implementation. The target of "Balikatan
02-1 I" the Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought
to their very doorstep. They cannot be expected to pick and choose their targets for they will
not have the luxury of doing so. We state this point if only to signify our awareness that the
parties straddle a fine line, observing the honored legal maxim "Nemo potest facere per
alium quod non potest facere per directum."11 The indirect violation is actually petitioners'
worry, that in reality, "Balikatan 02-1 " is actually a war principally conducted by the United
States government, and that the provision on self-defense serves only as camouflage to
conceal the true nature of the exercise. A clear pronouncement on this matter thereby
becomes crucial.
In our considered opinion, neither the MDT nor the V FA allow foreign troops to engage in an
offensive war on Philippine territory. We bear in mind the salutary proscription stated in the
Charter of the United Nations, to wit:
Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1,
shall act in accordance with the following Principles.
xxx xxx xxx xxx
4. All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations.
xxx xxx xxx xxx
In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as
in all other treaties and international agreements to which the Philippines is a party, must be
read in the context of the 1987 Constitution. In particular, the Mutual Defense Treaty was
concluded way before the present Charter, though it nevertheless remains in effect as a valid
source of international obligation. The present Constitution contains key provisions useful in
determining the extent to which foreign military troops are allowed in Philippine territory.
Thus, in the Declaration of Principles and State Policies, it is provided that:
xxx xxx xxx xxx
SEC. 2. The Philippines renounces war as an instrument of national policy, adopts
the generally accepted principles of international law as part of the law of the land
and adheres to the policy of peace, equality, justice, freedom, cooperation, and
amity with all nations.
xxx xxx xxx xxx
SEC. 7. The State shall pursue an independent foreign policy. In its relations with
other states the paramount consideration shall be national sovereignty, territorial
integrity, national interest, and the right to self- determination.
SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a
policy of freedom from nuclear weapons in the country.
xxx xxx xxx xxx
The Constitution also regulates the foreign relations powers of the Chief Executive when it
provides that "[n]o treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the members of the Senate."12 Even more pointedly,
the Transitory Provisions state:
Sec. 25. 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.
The aforequoted provisions betray a marked antipathy towards foreign military presence in
the country, or of foreign influence in general. Hence, foreign troops are allowed entry into
the Philippines only by way of direct exception. Conflict arises then between the fundamental
law and our obligations arising from international agreements.
A rather recent formulation of the relation of international law vis-a-vis municipal law was
expressed in Philip Morris, Inc. v. Court of Appeals,13 to wit:
xxx Withal, the fact that international law has been made part of the law of the land
does not by any means imply the primacy of international law over national law in the
municipal sphere. Under the doctrine of incorporation as applied in most countries,
rules of international law are given a standing equal, not superior, to national
legislation.
This is not exactly helpful in solving the problem at hand since in trying to find a middle
ground, it favors neither one law nor the other, which only leaves the hapless seeker with an
unsolved dilemma. Other more traditional approaches may offer valuable insights.
From the perspective of public international law, a treaty is favored over municipal law
pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding
upon the parties to it and must be performed by them in good faith."14 Further, a party to a
treaty is not allowed to "invoke the provisions of its internal law as justification for its failure to
perform a treaty."15
Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in section 5
of Article VIII:
The Supreme Court shall have the following powers:
xxx xxx xxx xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
xxx xxx xxx xxx
In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always subject to
qualification or amendment by a subsequent law, or that it is subject to the police power of
the State. In Gonzales v. Hechanova,17
xxx As regards the question whether an international agreement may be invalidated
by our courts, suffice it to say that the Constitution of the Philippines has clearly
settled it in the affirmative, by providing, in Section 2 of Article VIII thereof, that the
Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse,
modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court
may provide, final judgments and decrees of inferior courts in -( I) All cases in which
the constitutionality or validity of any treaty, law, ordinance, or executive order or
regulation is in question." In other words, our Constitution authorizes the nullification
of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs
counter to an act of Congress.
The foregoing premises leave us no doubt that US forces are prohibited / from engaging in
an offensive war on Philippine territory.
Yet a nagging question remains: are American troops actively engaged in combat alongside
Filipino soldiers under the guise of an alleged training and assistance exercise? Contrary to
what petitioners would have us do, we cannot take judicial notice of the events transpiring
down south,18 as reported from the saturation coverage of the media. As a rule, we do not
take cognizance of newspaper or electronic reports per se, not because of any issue as to
their truth, accuracy, or impartiality, but for the simple reason that facts must be established
in accordance with the rules of evidence. As a result, we cannot accept, in the absence of
concrete proof, petitioners' allegation that the Arroyo government is engaged in
"doublespeak" in trying to pass off as a mere training exercise an offensive effort by foreign
troops on native soil. The petitions invite us to speculate on what is really happening in
Mindanao, to issue I make factual findings on matters well beyond our immediate perception,
and this we are understandably loath to do.
It is all too apparent that the determination thereof involves basically a question of fact. On
this point, we must concur with the Solicitor General that the present subject matter is not a
fit topic for a special civil action for certiorari. We have held in too many instances that
questions of fact are not entertained in such a remedy. The sole object of the writ is to
correct errors of jurisdiction or grave abuse of discretion: The phrase "grave abuse of
discretion" has a precise meaning in law, denoting abuse of discretion "too patent and gross
as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined
or act in contemplation of law, or where the power is exercised in an arbitrary and despotic
manner by reason of passion and personal hostility."19
In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts. 20
Under the expanded concept of judicial power under the Constitution, courts are charged
with the duty "to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government."21 From the facts obtaining, we find that the holding of "Balikatan 02-1" joint
military exercise has not intruded into that penumbra of error that would otherwise call for
correction on our part. In other words, respondents in the case at bar have not committed
grave abuse of discretion amounting to lack or excess of jurisdiction.
WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without
prejudice to the filing of a new petition sufficient in form and substance in the proper
Regional Trial Court.
SO ORDERED.
Bellosillo, Melo, Mendoza, Quisumbing, Carpio, JJ., concur.
Kapunan, dissenting opinion.
Ynares-Santiago, join the dissenting opinion.
Panganiban, separate opinion.
Davide., Jr., C.J., Puno, Sandoval-Gutierrez, join the main and separate opinion of J.
Panganiban.
EN BANC
G.R. No. 151445 April 11, 2002
ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCY
PRESIDENT GLORIA MACAPAGAL-ARROYO and HONORABLE ANGELO REYES in
his official capacity as Secretary of National Defense, respondents.
SANLAKAS and PARTIDO NG MANGGAGAWA, intervenors.
DISSENTING OPINION
KAPUNAN, J.:
On September 11, 2001, terrorists, with the use of hijacked commercial airplanes, attacked
the World Trade Center Building in New York City and the Pentagon Building in Washington
D.C., U.S.A., killing thousands of people.
Following the attacks, the United States declared a "global war" against terrorism and started
to bomb and attack Afghanistan to topple the Taliban regime and capture Osama bin Laden,
the suspected mastermind of the September 11, 2001 attacks. With the Northern Alliance
mainly providing the ground forces, the Taliban regime fell in a few months, without Osama
bin Laden having been captured. He is believed either to be still in Afghanistan or has
crossed the border into Pakistan.
In line with President Gloria Macapagal-Arroyo's pledge to render all-out aid to the US in its
campaign against "global terrorism," an arrangement for a. joint military exercises known as
"RP-US Balikatan 02-1 Exercises" was entered into between the US and Philippine
authorities, allegedly within the ambit of the Visiting Forces Agreement (V FA) with the main
objective of enhancing the operational capabilities of the countries in combating terrorism.
The US government has identified the Abu Sayyaf Group (ASG) in the Philippines as a
terrorist group forming part of a "terrorist underground" linked to the al-Qaeda network of
Osama bin Laden.
Beginning January 21, 2002, American troops started arriving in Mindanao as part of the
total contingent force of 660 soldiers, 160 to be stationed in Basilan, 200 to 250 in
Zamboanga, and 250 in the Air Force base in Mactan, Cebu.
The salient features of the joint military exercises as embodied in the Terms of Reference
(TOR) are summarized as follows:
(a) The exercise shall be consistent with the Constitution and other Philippine laws,
particularly the RP-US Visiting Forces Agreement;
(b) No permanent US bases and support facilities will be established;
(c) The exercise shall be implemented jointly by RP and US Exercise Co-Directors
under the direction of the Chief of Staff of the AFP and in no instance will US Forces
operate independently during field training exercises;
(d) It shall be conducted and completed within a period of not more than six months,
with the projected participation of 660 US personnel and 3,800 RP forces, and the
Chief of Staff of the AFP shall direct the Exercise Co-Directors to wind up the
Exercise and other activities and the withdrawal of US forces within the six-month
period;
(e) The exercise "is a mutual counter-terrorism advising, assisting and training
exercise" relative to Philippine efforts against the Abu Sayyaf Group and will be
conducted on the Island of Basilan. Further advising, assisting and training exercises
shall be conducted in Malagutay and the Zamboanga area. Related activities in
Cebu will also be conducted in support of the Exercise;
 (f) Only 160 US troops organized in 12-man Special Forces Teams shall be
deployed in Basilan, with the US Team remaining at the Company Tactical
Headquarters where they can observe and assess the performance of the troops;
and
(g) US exercise participants shall not engage in combat, without prejudice to their
right to self-defense.
Petitioners now seek the issuance of a writ of prohibition/injunction to prevent US troops from
participating in areas of armed conflict on the ground that such is in gross violation of the
Constitution. They argue that:
I explicit:
THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE
TREATY (MDT) IN 1951 TO PROVIDE MUTUAL MILITARY ASSISTANCE IN
ACCORDANCE WITH THE CONSTITUTIONAL PROCESSES" OF EACH
COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL
AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF THEM.
BY NO STRETCH OF THE IMAGINATION CAN IT BE SAID THAT THE ABU
SAYYAF BANDITS IN BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE
THAT HAS SUBJECTED THE PHILIPPINES TO AN ARMED EXTERNAL ATTACK
TO WARRANT US MILITARY ASSISTANCE UNDER THE MDT OF 1951.
II
NEITHER DOES THE VFA OF 1999 AUTHORIZED AMERICAN SOLDIERS TO
ENGAGE IN COMBAT OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO
FIRE BACK "IF FIRED UPON."
Sanlakas and Partido ng Manggagawa as intervenors seek the same relief as petitioners,
stressing that the Constitution prohibits the presence of foreign military troops or facilities in
the country, except under a treaty duly concurred in by the Senate and recognized as a
treaty by the other state.
The petition is impressed with merit.
There is no treaty allowing
US troops to engage in combat.
The Constitution prohibits foreign military bases, troops or facilities unless a treaty permits
the same. Section 25, Article XVIII of the Constitution 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.
There is no treaty allowing foreign military troops to engage in combat with internal elements.
The Mutual Defense Treaty (MDT) between the Republic of the Philippines and the United
States of America does not authorize US military troops to engage the ASG in combat. The
MDT contemplates only an "external armed attack." Article III of the treaty cannot be more
The Parties, through their Foreign Ministers or their deputies, will consult together
from time to time regarding the implementation of this treaty and whenever in the
opinion of either of them the territorial integrity, political independence or security of
either of the Parties is threatened by external armed attack in the Pacific. [Emphasis
supplied.]
Supporting this conclusion is the third paragraph of the MDT preamble where the parties
express their desire
to declare publicly and formally their sense of unity and their common determination
to defend themselves against external armed attack, so that no potential aggressor
could be under the illusion that either of them stands alone in the Pacific area.
[Emphasis supplied.]
There is no evidence that
the ASG is connected with
"global terrorism."
There is no empirical basis for the allegation that the "terrorism" which the ASG is accused of
constitutes an "external armed attack." The ASG has committed mostly crimes of kidnapping
for ransom and murder - common crimes that are punishable under the penal code but
which, by themselves, hardly constitute "terrorism."
Parenthetically, there is lack of agreement as to the precise definition of terrorism. Indeed,
one man's terrorist may be another man's freedom fighter. The divergent interests of States
have caused contradicting definitions and conflicting perceptions of what constitutes "terrorist
acts" that make it difficult for the United Nations to reach a decision on the definition of
terrorism. Because of this "definitional predicament," the power of definition is easily
exercised by a superpower which, by reason of its unchallenged hegemony, could draw lists
of what it considers terrorist organizations or states sponsoring terrorism based on criteria
determined by the hegemon's own strategic interests.1
In any case, ties between the ASG and so-called international "terrorist" organizations have
not been established.2 Even assuming that such ties do exist, it does not necessarily make
the "attacks" by the ASG "external" as to fall within the ambit of the MDT.
Balikatan exercises are
not covered by VFA as
US troops are not
allowed to engage in combat.
Neither is the present situation covered by the so-called Visiting Forces Agreement (VFA).
The V FA was concluded after the removal of the US military bases, troops and facilities in
the aftermath of the termination of the treaty allowing the presence of American military
bases in the Philippines. The VF A is nothing more than what its formal name suggests: an
"Agreement between the Government of the Republic of the Philippines and the Government
of the United States of America regarding the Treatment of United States Armed Forces
Visiting the Philippines. "The last paragraph of the V FA preamble also "recogniz[es] the
desirability of defining the treatment of United States personnel visiting the Republic of the
Philippines."
The VFA was entered into to enable American troops to enter the country again after the
removal of the American military bases so they can participate in military exercises under the
auspices of the Mutual Defense Treaty. It provided the legal framework under which
American soldiers will be treated while they remain in the country.
The military exercises contemplated in the VFA are those in accordance with the National
Defense Plan (NDP) of the Philippines. The NDP was previously approved and adopted by
the Mutual Defense Board, jointly chaired by the Chief of Staff of the Armed Forces of the
Philippines and the Commander in the Pacific of the United States Armed Forces.
The NDP is directed against potential foreign aggressors, not designed to deal with internal
disorders. This was what the Senate understood when it ratified the VFA in Senate
Resolution No. 18, which reads:
The VFA shall serve as the legal mechanism to promote defense cooperation
between the two countries, enhancing the preparedness of the Armed Forces of the
Philippines against external threats; and enabling the Philippines to bolster the
stability of the Pacific Area in a shared effort with its neighbor states.
The VFA's ambiguous reference to "activities"3 is not a loophole that legitimizes the presence
of US troops in Basilan. In the treaty's preamble, the parties "reaffirm their obligations under
the Mutual Defense Treaty of August 30, 1951." As the preamble comprises part of a treaty's
context for the purpose of interpretation, the VFA must be read in light of the provisions of
the MDT. As stated earlier, the MDT contemplates only an external armed attack;
consequently, the "activities" referred to in the V FA cannot thus be interpreted to include
armed confrontation with or suppression of the ASG members who appear to be mere local
bandits, mainly engaged in kidnapping for ransom and murder -even arson, extortion and
illegal possession of firearms, all of which are common offenses under our criminal laws.
These activities involve purely police matters and domestic law and order problems; they are
hardly "external" attacks within the contemplation of the MDT and the V FA. To construe the
vagueness of the term "activities" in the V FA as authorizing American troops to confront the
ASG in armed conflict would, therefore, contravene both spirit and letter of the MDT.
Respondents maintain that the American troops are not here to fight the ASG but merely to
engage in "training exercises." To allay fears that the American troops are here to engage
the ASG in combat, the TOR professes that the present exercise "is a mutual counter-
terrorism advising, assisting and training Exercise relative to Philippine efforts against the
ASG, and will be conducted on the Island of Basilan." The TOR further provides that the
"exercise" shall involve the conduct of "mutual military assisting, advising and training of
RP and US Forces with the primary objective of enhancing the operational capabilities of
both forces to combat terrorism."
These avowals of assistance, advice, and training, however, fly in the face of the presence of
US troops in the heart of the ASG's stronghold. Such presence is an act of provocation that
makes an armed confrontation between US soldiers and ASG members inevitable.
The US troops in Basilan have been described as being "on a slippery slope between
training and fighting." Their very presence makes them a target for terrorist and for the
local Moslem populace, which has been bitterly anti-American since colonial times. Though
they are called advisers, the Americans win be going on risky missions deep into the jungle.
A former Green Beret who is an analyst of Washington's Center for Strategies and
Budgetary Assessments notes that "when troops go out on patrol, they come as close as
they can to direct combat."4
"Advising" or "training" Filipino soldiers hardly describes the involvement of US troops
(unaccompanied by Filipino counterparts) on board combat helicopters which land on the
battlegrounds to evacuate Filipino soldiers wounded while fighting the ASG. For example, on
April 5,2002, US troops on board a Pave Hawk helicopter flew to the scene of a night battle
on Basilan Island to evacuate a wounded Filipino soldier. This was reportedly the third time
in recent weeks that chopper-borne US forces had evacuated Filipino soldiers fighting the
ASG.5
Whatever euphemisms may be conjured to characterize American involvement, the
RP-US Balikatan 02-1 Exercises are aimed at seeking out the ASG and exterminating
it.
The prohibition contained in the TOR against US exercise participants from engaging in
combat but "without prejudice to their right to self- defense" provides little consolation.
Combat muddles the distinction between aggression and self-defense. US troops can always
say they did not fire first and no one would dare say otherwise. The ASG has been so
demonized that no one cares how it is exorcised. Significantly, the TOR does not define the
parameters of "self-defense." Militarily, a pre-emptive strike could be interpreted as an act of
self -defense.
What I fear most is that the country would be dragged into a more devastating and protracted
conflict as a result of the continued presence of US military troops in Basilan. A single ASG
sniper's bullet felling an American soldier could be used as an excuse for massive retaliation
by US ground and air forces to attack and bomb out every suspected ASG lair, all in the
name of "self -defense.
Apprehensions over possible catastrophic consequence of US military involvement in our
country are not without historical basis.
The US experience in Vietnam, for example, began as an expression of support for the
establishment of South Vietnam under Bao Dai's leadership in 1949 to. counteract the
support given by communist China and the Soviet Union to North Vietnam. In 1950, the US
began providing military assistance in fighting North Vietnam by sending military advisors as
well as US tanks, planes, artillery and other supplies. The US became more involved in the
Vietnam conflict when in 1961, it sent the first 400 Green Beret "Special Advisors" to South
Vietnam to train the latter's soldiers in methods of counter-insurgency against the Viet Cong
guerillas. It clarified that the American soldiers were not in Vietnam to engage in
combat.6
However, due to the increased success of the Viet Cong guerillas, assisted by the Northern
Vietnamese Army, the US eventually began to run covert operations using South
Vietnamese commandos in speed boats to harass radar sites along the coastline of North
Vietnam. In 1964, after an alleged torpedo attack by North Vietnam of the American
destroyers USS. Maddox and USS. C. Turner Joy in the Gulf of Tonkin, the US decided to
retaliate by conducting bombing raids in North Vietnam.7
The Vietnam War resulted in the death of two million Vietnamese and injuries to three million
others. Twelve million Vietnamese became refugees and thousands of children became
orphaned.8 Millions of acres of Vietnam's forests were defoliated by a herbicide called Agent
Orange, dropped from the air. Millions of mines and unexploded bombs and artillery shells
are still scattered in the countryside, posing constant danger to life and limb.
US militarv presence is
essentially indefinite
and open-ended.
Already, there are indications that the US intends to reestablish a more enduring
presence in the country. Defense Secretary Angelo Reyes was quoted to have declared on
March 20, 2002 that 2,665 US soldiers will take part in the RP-US Balikatan 02-2 starting
next month in Central Luzon and that 10 more military exercises will be held this year. 9 How
many more war exercises are needed for "training and advising" Filipino soldiers? What
conditions must be satisfied for the United States to consider the "war against terrorism" in
Mindanao terminated? The endless frequency and successive repetition of the war exercises
covering the two largest islands of the country amount, in a real sense, to the permanent
presence of foreign military troops here sans a treaty in blatant violation of the constitutional
proscription.
US President George w. Bush in his January 30, 2002 speech declared:
The men and women of our armed-forces have delivered a message to every enemy
of the United States. You shall not escape the justice of this nation. x x x.
Should any country be timid in the face of terror, if they do not act, America will.
President Arroyo, in a speech at the Regis Hotel in New York City on February 1, 2002,
pledged her "full support" to US President George W. Bush in the fight against international
terrorism. She declared that "the Philippines will continue to be a partner of the United States
in the war to end terrorism" and that "(t)he anti-terrorism partnership will continue after the
whole world is secure against the terrorist."10
In his speech on the White House Laws on March 11, 2002, President Bush exhorted:
America encourages and expects governments everywhere to help remove the
terrorist parasites that threaten their own countries and the peace of the world. x x x.
We are helping right now in the Philippines, where terrorist with links to Al Qaeda are
trying to seize the southern part of the country to establish a military regime.
They are oppressing local peoples, and have kidnapped both American and Filipino
citizens."11
The Philippine Daily Inquirer in its March 17, 2002 issue carried the following report:
The United States wants to bring in more troops for the controversial Balikatan 02-1
training exercise aimed at wiping out the Abu Sayyaf bandits in Basilan.
The US military last week began calling the war-games "Operation Enduring
Freedom-Philippines," giving credence to claims that the country has become, after
Afghanistan, the second front of the US-led global war on terrorism.
Today's issue of April 1, 2002 reporting as its source New York News Service, quoted a
senior Bush administration official as saying:
We are looking at prolonged training. x x x. It takes more to build up capabilities than
saying here are some night vision goggles.
The declarations of the two Presidents on the war against terrorism and their avowal to
secure the world against the terrorists would ineluctably suggest a long-drawn conflict
without a foreseeable end. Worse, it is not unlikely that this war could expand and
escalate to include as protagonists the Moro Islamic Liberation Front and the Moro
National Liberation Front and -not improbably -the National People's Army, all lumped-
up as "terrorists" in a unilateral characterization.
No less than US Deputy Defense Secretary Paul Wolfowitz declared that the proposed $48-
billion increase to the US defense budget for 2003 is intended to sustain the war on
terrorism,12 including that fought in this country, thus: .
Deputy Defense Secretary Paul Wolfowitz on Wednesday said the Pentagon needs
a big budget increase next year on terrorism, which has expanded from Afghanistan
to the Philippines and now appears to be moving to Georgia.13
The Court can take judicial notice of the foregoing pronouncements as they are of public
knowledge,14 having been widely circulated in all channels of the media. Neither have they
been denied.
US military intervention
is not the solution to the
Mindanao problem.
Assuming that the ASG is a terrorist organization, U.S. military intervention is not the solution
to achieve peace. The annihilation of the rebel bandits would be a futile quest so long at the
root causes of their criminality are not addressed. A study15 by the United Nations
Secretariat, however, acknowledges that international terrorism springs from "misery,
frustration, grievance and 'despair," elements which, many believe, are present in Basilan.
Two veteran Philippine journalists have described the province as Mindanao's "war
laboratory," where lawlessness, government neglect, religious strife, poverty, and power
struggle are rampant.16
If indeed acts of terrorism are cries of desperation, if terrorism is but a symptom of the
greater maladies of "misery, frustration, grievance and despair," then it cannot be remedied
alone by ASG's physical extermination, which appears to be the object of President Bush
and President Macapagal- Arroyo's joint campaign against global terrorism." Admittedly, the
State has the right to use force as a means of self-preservation. But perhaps we should all
consider that a military solution is but a first-aid measure, not the prescription to these
diseases. It has been opined that:
The issue of terrorism in the Philippines should be dealt with not from the
perspective of Manila-Washington ties but from a serious study of how terrorism
figures in the minds of leaders and armed men belonging to the large but deeply
factionalized guerrilla movements in the country. Terrorism can never be dissociated
from guerrilla warfare and the separatist movement in Mindanao. From these
movements would arise religious extremists or millennarian groups. With the right
resources and the right agenda, these movements will continue to attract men-
skilled, intelligent, and experienced-who will come to grasp the practical realities of
waging a war with the minimum of resources but maximum public impact.
The government does not have to look for foreign connections-and be motivated by
the desire to help foreign friends to address a problem that has been and will be the
making of its own home grown armies.17
The presence of US troops in Basilan, whether from the legal, philosophical-or even from the
practical perspective cannot be justified, On the contrary, it is counterproductive. It serves to
fuel an already volatile situation. US troops are likely less able, if not less willing, to
distinguish between the innocent and the enemy. The inevitable "collateral damage," the
killing of women and children, Muslims and Christians, the destruction of homes, schools and
hospitals would fan the flames of fanaticism and transform mere rogues into martyrs.
The Filipino soldier has proven himself brave, courageous, fearless and tenacious in the field
of battle as shown in Bataan and Corregidor, in the four long years of guerilla warfare
thereafter against the Japanese, and in the struggle for independence against Spain and the
United States at the turn of the last century. The local army and police have successfully
battled in the past against Communist and other insurgents which were more organized and
numerous, operating in larger parts of the country and fighting for their political beliefs. If our
troops need training by us advisers or have to conduct joint exercises with US troops to
improve their fighting capability, these could be more effectively achieved if done outside
Basilan or away from the danger zones. Instead of bringing troops to the combat zones, the
US can do more by supplying our soldiers with modern and high tech weaponry.
Prescinding from the foregoing disquisitions, it is totally erroneous to argue that petitioners
do not have legal standing or that the issues raised by them are premature and not based on
sufficient facts. The issues raised are of transcendental importance.18
The Balikatan exercises pose direct injury to some of the petitioners (intervenors) who live in
the affected areas. The presence of us troops in the combat zones "assisting" and "advising"
our troops in combat against the ASG is a blatant violation of the Constitutional proscription
against the stationing of foreign troops to fight a local insurgency and puts the country in peril
of becoming a veritable killing field. If the time is not ripe to challenge the continuing affront
against the Constitution and the safety of the people, when is the right time? When the
countryside has been devastated and numerous lives lost?
I therefore vote to give due course to the petition.
Lim v. Executive Secretary
Lessons Applicable: Locus Standi, International Law v. Muncipal Law, Certiorari,
Incorporation Clause, Treaties
Laws Applicable: Constitution
FACTS:
Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the
armed forces of the United States of America started arriving in Mindanao to take partin
"Balikatan 02-1” on January 2002. The Balikatan 02-1 exercises involves the simulation of
joint military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense
agreement entered into by the Philippines and the United States in 1951. The exercise is
rooted from the international anti-terrorism campaign declared by President George W. Bush
in reaction to the 3 commercial aircrafts hijacking that smashed into twin towers of the World
Trade Center in New York City and the Pentagon building in Washington, D.C. allegedly by
the al-Qaeda headed by the Osama bin Laden that occurred on September 11, 2001. Arthur
D. Lim and Paulino P. Ersando as citizens, lawyers and taxpayers filed a petition for
certiorari and prohibition attacking the constitutionality of the joint exercise. Partylists
Sanlakas and Partido Ng Manggagawa as residents of Zamboanga and Sulu directly
affected by the operations filed a petition-in-intervention.
The Solicitor General commented the prematurity of the action as it is based only on a fear
of future violation of the Terms of Reference and impropriety of availing of certiorari to
ascertain a question of fact specifically interpretation of the VFA whether it is covers
"Balikatan 02-1” and no question of constitutionality is involved. Moreover, there is lack of
locus standi since it does not involve tax spending and there is no proof of direct personal
injury.
ISSUE: W/N the petition and the petition-in-intervention should prosper.
HELD: NO. Petition and the petition-in-intervention are hereby DISMISSED without
prejudice to the filing of a new petition sufficient in form and substance in the proper
Regional Trial Court - Supreme Court is not a trier of facts
Doctrine of Importance to the Public
Considering however the importance to the public of the case at bar, and in keeping with the
Court's 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 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.
Although courts generally avoid having to decide a constitutional question based on the
doctrine of separation of powers, which enjoins upon the department of the government a
becoming respect for each other's act, this Court nevertheless resolves to take cognizance
of the instant petition.
Interpretation of Treaty
The VFA permits United States personnel to engage, on an impermanent basis, in
"activities," the exact meaning of which was left undefined. The expression is ambiguous,
permitting a wide scope of undertakings subject only to the approval of the Philippine
government. The sole encumbrance placed on its definition is couched in the negative, in
that United States personnel must "abstain from any activity inconsistent with the spirit of this
agreement, and in particular, from any political activity." All other activities, in other words,
are fair game.
To aid in this, the Vienna Convention on the Law of Treaties Article 31 SECTION 3 and
Article 32 contains provisos governing interpretations of international agreements. It is clear
from the foregoing that the cardinal rule of interpretation must involve an examination of the
text, which is presumed to verbalize the parties' intentions. The Convention likewise dictates
what may be used as aids to deduce the meaning of terms, which it refers to as the context
of the treaty, as well as other elements may be taken into account alongside the aforesaid
context. According to Professor Briggs, writer on the Convention, the distinction between the
general rule of interpretation and the supplementary means of interpretation is intended
rather to ensure that the supplementary means do not constitute an alternative, autonomous
method of interpretation divorced from the general rule.
The meaning of the word “activities" was deliberately made that way to give both parties a
certain leeway in negotiation. Thus, the VFA gives legitimacy to the current Balikatan
exercises. Both the history and intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities -as opposed to combat itself -such as the one
subject of the instant petition, are indeed authorized.
The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US
exercise participants may not engage in combat "except in self-defense." ." The indirect
violation is actually petitioners' worry, that in reality, "Balikatan 02-1" is actually a war
principally conducted by the United States government, and that the provision on self-
defense serves only as camouflage to conceal the true nature of the exercise. A clear
pronouncement on this matter thereby becomes crucial. In our considered opinion, neither
the MDT nor the VFA allow foreign troops to engage in an offensive war on Philippine
territory. Under the salutary proscription stated in Article 2 of the Charter of the United
Nations.
Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties
and international agreements to which the Philippines is a party, must be read in the context
of the 1987 Constitution especially Sec. 2, 7 and 8 of Article 2: Declaration of Principles and
State Policies in this case. The Constitution also regulates the foreign relations powers of
the Chief Executive when it provides that "[n]o treaty or international agreement shall be
valid and effective unless concurred in by at least two-thirds of all the members of the
Senate." Even more pointedly Sec. 25 on Transitory Provisions which shows antipathy
towards foreign military presence in the country, or of foreign influence in general. Hence,
foreign troops are allowed entry into the Philippines only by way of direct exception.
International Law vs. Fundamental Law and Municipal Laws
Conflict arises then between the fundamental law and our obligations arising from
international agreements.
Philip Morris, Inc. v. Court of Appeals: “Withal, the fact that international law has been made
part of the law of the land does not by any means imply the primacy of international law over
national law in the municipal sphere. Under the doctrine of incorporation as applied in most
countries, rules of international law are given a standing equal, not superior, to national
legislation.”
From the perspective of public international law, a treaty is favored over municipal law
pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding
upon the parties to it and must be performed by them in good faith." Further, a party to a
treaty is not allowed to "invoke the provisions of its internal law as justification for its failure to
perform a treaty."
Our Constitution espouses the opposing view as stated in section 5 of Article VIII: “The
Supreme Court shall have the following powers: xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules
of Court may provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question.”
Ichong v. Hernandez: “provisions of a treaty are always subject to qualification or
amendment by a subsequent law, or that it is subject to the police power of the State”
Gonzales v. Hechanova: “our Constitution authorizes the nullification of a treaty, not only
when it conflicts with the fundamental law, but, also, when it runs counter to an act of
Congress.”
The foregoing premises leave us no doubt that US forces are prohibited / from engaging in
an offensive war on Philippine territory.
MAXIMO CALALANG, Petitioner, v. A. D. WILLIAMS, ET AL., Respondents.
Maximo Calalang in his own behalf.
Solicitor General Ozaeta and Assistant Solicitor General Amparo for respondents
Williams, Fragante and Bayan
City Fiscal Mabanag for the other respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF COMMONWEALTH ACT No. 648;
DELEGATION OF LEGISLATIVE POWER; AUTHORITY OF DIRECTOR OF PUBLIC
WORKS AND SECRETARY OF PUBLIC WORKS AND COMMUNICATIONS TO
PROMULGATE RULES AND REGULATIONS. — The provisions of section 1 of
Commonwealth Act No. 648 do not confer legislative power upon the Director of Public
Works and the Secretary of Public Works and Communications. The authority therein
conferred upon them and under which they promulgated the rules and regulations now
complained of is not to determine what public policy demands but merely to carry out the
legislative policy laid down by the National Assembly in said Act, to wit, "to promote safe
transit upon, and avoid obstructions on, roads and streets designated as national roads by
acts of the National Assembly or by executive orders of the President of the Philippines" and
to close them temporarily to any or all classes of traffic "whenever the condition of the road
or the traffic thereon makes such action necessary or advisable in the public convenience
and interest." The delegated power, if at all, therefore, is not the determination of what the
law shall be, but merely the ascertainment of the facts and circumstances upon which the
application of said law is to be predicated. To promulgate rules and regulations on the use of
national roads and to determine when and how long a national road should be closed to
traffic, in view of the condition of the road or the traffic thereon and the requirements of public
convenience and interest, is an administrative function which cannot be directly discharged
by the National Assembly. It must depend on the discretion of some other government official
to whom is confided the duty of determining whether the proper occasion exists for executing
the law. But it cannot be said that the exercise of such discretion is the making of the law.
2. ID.; ID.; POLICE POWER; PERSONAL LIBERTY; GOVERNMENTAL AUTHORITY. —
Commonwealth Act No. 548 was passed by the National Assembly in the exercise of the
paramount police power of the state. Said Act, by virtue of which the rules and regulations
complained of were promulgated, aims to promote safe transit upon and avoid obstructions
on national roads, in the interest and convenience of the public. In enacting said law,
therefore, the National Assembly was prompted by considerations of public convenience and
welfare. It was inspired by a desire to relieve congestion of traffic, which is, to say the least, a
menace to public safety. Public welfare, then, lies at the bottom of the enactment of said law,
and the state in order to promote the general welfare may interfere with personal liberty, with
property, and with business and occupations. Persons and property may be subjected to all
kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity
of the state (U.S. v. Gomer Jesus, 31 Phil., 218). To this fundamental aim of our Government
the rights of the individual are subordinated. Liberty is a blessing without which life is a
misery, but liberty should not be made to prevail over authority because then society will fall
into anarchy. Neither should authority be made to prevail over liberty because then the
individual will fall into slavery. The citizen should achieve the required balance of liberty and
authority in his mind through education and, personal discipline, so that there may be
established the resultant equilibrium, which means peace and order and happiness for all.
The moment greater authority is conferred upon the government, logically so much is
withdrawn from the residuum of liberty which resides in the people. The paradox lies in the
fact that the apparent curtailment of liberty is precisely the very means of insuring its
preservation.
 3. ID.; ID.; SOCIAL JUSTICE. — Social justice is "neither communism, nor despotism, nor
atomism, nor anarchy," but the humanization of laws and the equalization of social and
economic forces by the State so that justice in its rational and objectively secular conception
may at least be approximated. Social justice means the promotion of the welfare of all the
people, the adoption by the Government of measures calculated to insure economic stability
of all the competent elements of society, through the maintenance of a proper economic and
social equilibrium in the interrelations of the members of the community, constitutionally,
through the adoption of measures legally justifiable, or extra-constitutionally, through the
exercise of powers underlying the existence of all governments on the time-honored principle
of salus populi est suprema lex. Social justice, therefore, must be founded on the recognition
of the necessity of interdependence among divers and diverse units of a society and of the
protection that should be equally and evenly extended to all groups as a combined force in
our social and economic life, consistent with the fundamental and paramount objective of the
state of promoting the health, comfort, and quiet of all persons, and of bringing about "the
greatest good to the greatest number."
DECISION
LAUREL, J.:
Maximo Calalang, in his capacity as a private citizen and as a taxpayer of Manila, brought
before this court this petition for a writ of prohibition against the respondents, A. D. Williams,
as Chairman of the National Traffic Commission; Vicente Fragante, as Director of Public
Works; Sergio Bayan, as Acting Secretary of Public Works and Communications; Eulogio
Rodriguez, as Mayor of the City of Manila; and Juan Dominguez, as Acting Chief of Police of
Manila.
It is alleged in the petition that the National Traffic Commission, in its resolution of July 17,
1940, resolved to recommend to the Director of Public Works and to the Secretary of Public
Works and Communications that animal-drawn vehicles be prohibited from passing along
Rosario Street extending from Plaza Calderon de la Barca to Dasmariñas Street, from 7:30
a.m. to 12:30 p.m. and from 1:30 p.m. to 5:30 p.m.; and along Rizal Avenue extending from
the railroad crossing at Antipolo Street to Echague Street, from 7 a.m. to 11 p.m., from a
period of one year from the date of the opening of the Colgante Bridge to traffic; that the
Chairman of the National Traffic Commission, on July 18, 1940 recommended to the Director
of Public Works the adoption of the measure proposed in the resolution aforementioned, in
pursuance of the provisions of Commonwealth Act No. 548 which authorizes said Director of
Public Works, with the approval of the Secretary of Public Works and Communications, to
promulgate rules and regulations to regulate and control the use of and traffic on national
roads; that on August 2, 1940, the Director of Public Works, in his first indorsement to the
Secretary of Public Works and Communications, recommended to the latter the approval of
the recommendation made by the Chairman of the National Traffic Commission as aforesaid,
with the modification that the closing of Rizal Avenue to traffic to animal-drawn vehicles be
limited to the portion thereof extending from the railroad crossing at Antipolo Street to
Azcarraga Street; that on August 10, 1940, the Secretary of Public Works and
Communications, in his second indorsement addressed to the Director of Public Works,
approved the recommendation of the latter that Rosario Street and Rizal Avenue be closed
to traffic of animal-drawn vehicles, between the points and during the hours as above
indicated, for a period of one year from the date of the opening of the Colgante Bridge to
traffic; that the Mayor of Manila and the Acting Chief of Police of Manila have enforced and
caused to be enforced the rules and regulations thus adopted; that as a consequence of
such enforcement, all animal-drawn vehicles are not allowed to pass and pick up passengers
in the places above-mentioned to the detriment not only of their owners but of the riding
public as well.
It is contended by the petitioner that Commonwealth Act No. 548 by which the Director of
Public Works, with the approval of the Secretary of Public Works and Communications, is
authorized to promulgate rules and regulations for the regulation and control of the use of
and traffic on national roads and streets is unconstitutional because it constitutes an undue
delegation of legislative power. This contention is untenable. As was observed by this court
in Rubi v. Provincial Board of Mindoro (39 Phil, 660, 700), "The rule has nowhere been better
stated than in the early Ohio case decided by Judge Ranney, and since followed in a
multitude of cases, namely: ’The true distinction therefore is between the delegation of power
to make the law, which necessarily involves a discretion as to what it shall be, and conferring
an authority or discretion as to its execution, to be exercised under and in pursuance of the
law. The first cannot be done; to the latter no valid objection can be made.’ (Cincinnati, W. &
Z. R. Co. v. Comm’rs. Clinton County, 1 Ohio St., 88.) Discretion, as held by Chief Justice
Marshall in Wayman v. Southard (10 Wheat., 1) may be committed by the Legislature to an
executive department or official. The Legislature may make decisions of executive
departments or subordinate officials thereof, to whom it has committed the execution of
certain acts, final on questions of fact. (U.S. v. Kinkead, 248 Fed., 141.) The growing
tendency in the decisions is to give prominence to the ’necessity’ of the case."cralaw
virtua1aw library
Section 1 of Commonwealth Act No. 548 reads as follows:jgc:chanrobles.com.ph
"SECTION 1. To promote safe transit upon, and avoid obstructions on, roads and streets
designated as national roads by acts of the National Assembly or by executive orders of the
President of the Philippines, the Director of Public Works, with the approval of the Secretary
of Public Works and Communications, shall promulgate the necessary rules and regulations
to regulate and control the use of and traffic on such roads and streets. Such rules and
regulations, with the approval of the President, may contain provisions controlling or
regulating the construction of buildings or other structures within a reasonable distance from
along the national roads. Such roads may be temporarily closed to any or all classes of traffic
by the Director of Public Works and his duly authorized representatives whenever the
condition of the road or the traffic thereon makes such action necessary or advisable in the
public convenience and interest, or for a specified period, with the approval of the Secretary
of Public Works and Communications."cralaw virtua1aw library
The above provisions of law do not confer legislative power upon the Director of Public
Works and the Secretary of Public Works and Communications. The authority therein
conferred upon them and under which they promulgated the rules and regulations now
complained of is not to determine what public policy demands but merely to carry out the
legislative policy laid down by the National Assembly in said Act, to wit, "to promote safe
transit upon and avoid obstructions on, roads and streets designated as national roads by
acts of the National Assembly or by executive orders of the President of the Philippines" and
to close them temporarily to any or all classes of traffic "whenever the condition of the road
or the traffic makes such action necessary or advisable in the public convenience and
interest." The delegated power, if at all, therefore, is not the determination of what the law
shall be, but merely the ascertainment of the facts and circumstances upon which the
application of said law is to be predicated. To promulgate rules and regulations on the use of
national roads and to determine when and how long a national road should be closed to
traffic, in view of the condition of the road or the traffic thereon and the requirements of public
convenience and interest, is an administrative function which cannot be directly discharged
by the National Assembly. It must depend on the discretion of some other government official
to whom is confided the duty of determining whether the proper occasion exists for executing
the law. But it cannot be said that the exercise of such discretion is the making of the law. As
was said in Locke’s Appeal (72 Pa. 491): "To assert that a law is less than a law, because it
is made to depend on a future event or act, is to rob the Legislature of the power to act
wisely for the public welfare whenever a law is passed relating to a state of affairs not yet
developed, or to things future and impossible to fully know." The proper distinction the court
said was this: "The Legislature cannot delegate its power to make the law; but it can make a
law to delegate a power to determine some fact or state of things upon which the law makes,
or intends to make, its own action depend. To deny this would be to stop the wheels of
government. There are many things upon which wise and useful legislation must depend
which cannot be known to the law-making power, and, must, therefore, be a subject of
inquiry and determination outside of the halls of legislation." (Field v. Clark, 143 U. S. 649,
694; 36 L. Ed. 294.)
In the case of People v. Rosenthal and Osmeña, G.R. Nos. 46076 and 46077, promulgated
June 12, 1939, and in Pangasinan Transportation v. The Public Service Commission, G.R.
No. 47065, promulgated June 26, 1940, this Court had occasion to observe that the principle
of separation of powers has been made to adapt itself to the complexities of modern
governments, giving rise to the adoption, within certain limits, of the principle of "subordinate
legislation," not only in the United States and England but in practically all modern
governments. Accordingly, with the growing complexity of modern life, the multiplication of
the subjects of governmental regulations, and the increased difficulty of administering the
laws, the rigidity of the theory of separation of governmental powers has, to a large extent,
been relaxed by permitting the delegation of greater powers by the legislative and vesting a
larger amount of discretion in administrative and executive officials, not only in the execution
of the laws, but also in the promulgation of certain rules and regulations calculated to
promote public interest.
The petitioner further contends that the rules and regulations promulgated by the
respondents pursuant to the provisions of Commonwealth Act No. 548 constitute an unlawful
interference with legitimate business or trade and abridge the right to personal liberty and
freedom of locomotion. Commonwealth Act No. 548 was passed by the National Assembly in
the exercise of the paramount police power of the state.
Said Act, by virtue of which the rules and regulations complained of were promulgated, aims
to promote safe transit upon and avoid obstructions on national roads, in the interest and
convenience of the public. In enacting said law, therefore, the National Assembly was
prompted by considerations of public convenience and welfare. It was inspired by a desire to
relieve congestion of traffic. which is, to say the least, a menace to public safety. Public
welfare, then, lies at the bottom of the enactment of said law, and the state in order to
promote the general welfare may interfere with personal liberty, with property, and with
business and occupations. Persons and property may be subjected to all kinds of restraints
and burdens, in order to secure the general comfort, health, and prosperity of the state (U.S.
v. Gomez Jesus, 31 Phil., 218). To this fundamental aim of our Government the rights of the
individual are subordinated. Liberty is a blessing without which life is a misery, but liberty
should not be made to prevail over authority because then society will fall into anarchy.
Neither should authority be made to prevail over liberty because then the individual will fall
into slavery. The citizen should achieve the required balance of liberty and authority in his
mind through education and personal discipline, so that there may be established the
resultant equilibrium, which means peace and order and happiness for all. The moment
greater authority is conferred upon the government, logically so much is withdrawn from the
residuum of liberty which resides in the people. The paradox lies in the fact that the apparent
curtailment of liberty is precisely the very means of insuring its preservation.
The scope of police power keeps expanding as civilization advances. As was said in the
case of Dobbins v. Los Angeles (195 U.S. 223, 238; 49 L. ed. 169), "the right to exercise the
police power is a continuing one, and a business lawful today may in the future, because of
the changed situation, the growth of population or other causes, become a menace to the
public health and welfare, and be required to yield to the public good." And in People v.
Pomar (46 Phil., 440), it was observed that "advancing civilization is bringing within the
police power of the state today things which were not thought of as being within such power
yesterday. The development of civilization, the rapidly increasing population, the growth of
public opinion, with an increasing desire on the part of the masses and of the government to
look after and care for the interests of the individuals of the state, have brought within the
police power many questions for regulation which formerly were not so considered."cralaw
virtua1aw library
The petitioner finally avers that the rules and regulations complained of infringe upon the
constitutional precept regarding the promotion of social justice to insure the well-being and
economic security of all the people. The promotion of social justice, however, is to be
achieved not through a mistaken sympathy towards any given group. Social justice is
"neither communism, nor despotism, nor atomism, nor anarchy," but the humanization of
laws and the equalization of social and economic forces by the State so that justice in its
rational and objectively secular conception may at least be approximated. Social justice
means the promotion of the welfare of all the people, the adoption by the Government of
measures calculated to insure economic stability of all the competent elements of society,
through the maintenance of a proper economic and social equilibrium in the interrelations of
the members of the community, constitutionally, through the adoption of measures legally
justifiable, or extra-constitutionally, through the exercise of powers underlying the existence
of all governments on the time-honored principle of salus populi est suprema lex.
Social justice, therefore, must be founded on the recognition of the necessity of
interdependence among divers and diverse units of a society and of the protection that
should be equally and evenly extended to all groups as a combined force in our social and
economic life, consistent with the fundamental and paramount objective of the state of
promoting the health, comfort, and quiet of all persons, and of bringing about "the greatest
good to the greatest number."cralaw virtua1aw library
In view of the foregoing, the writ of prohibition prayed for is hereby denied, with costs against
the petitioner. So ordered.
MAXIMO CALALANG vs A. D. WILLIAMS, ET AL.,
G.R. No. 47800 December 2, 1940
Doctrine: Social Justice
LAUREL, J.:
Facts:
The National Traffic Commission, in its resolution of July 17, 1940, resolved to recommend
to the Director of the Public Works and to the Secretary of Public Works
and Communications that animal-drawn vehicles be prohibited from passing along the
following for a period of one year from the date of the opening of the Colgante Bridge to
traffic:
1) Rosario Street extending from Plaza Calderon de la Barca to Dasmariñas
Street from 7:30Am to 12:30 pm and from 1:30 pm to 530 pm; and
2) along Rizal Avenue extending from the railroad crossing at Antipolo Street to
Echague Street from 7 am to 11pm
The Chairman of the National Traffic Commission on July 18, 1940 recommended to the
Director of Public Works with the approval of the Secretary of Public Works the adoption of
thethemeasure proposed in the resolution aforementioned in pursuance of the provisions of t
heCommonwealth Act No. 548 which authorizes said Director with the approval from the
Secretary of the Public Works and Communication to promulgate rules and regulations to
regulate and control the use of and traffic on national roads.
On August 2, 1940, the Director recommended to the Secretary the approval of the
recommendations made by the Chairman of the National Traffic Commission with
modifications. The Secretary of Public Works approved the recommendations on August
10,1940. The Mayor of Manila and the Acting Chief of Police of Manila have enforced and
caused to be enforced the rules and regulation. As a consequence, all animal-drawn vehicles
are not allowed to pass and pick up passengers in the places above mentioned to the
detriment not only of their owners but of the riding public as well.
Issues:
1) Whether the rules and regulations promulgated by the respondents pursuant to the
provisions of Commonwealth Act NO. 548 constitute an unlawful inference with legitimate
business or trade and abridged the right to personal liberty and freedom of locomotion?
2) Whether the rules and regulations complained of infringe upon the constitutional
precept regarding the promotion of social justice to insure the well-being and economic
security of all the people?
Held:
1) No. The promulgation of the Act aims to promote safe transit upon and avoid obstructions
on national roads in the interest and convenience of the public. In enacting said law, the
National Assembly was prompted by considerations of public convenience and welfare. It
was inspired by the desire to relieve congestion of traffic, which is a menace to the public
safety. Public welfare lies at the bottom of the promulgation of the said law and the state in
order to promote the general welfare may interfere with personal liberty, with property, and
with business and occupations. Persons and property may be subject to all kinds of
restraints and burdens in order to secure the general comfort, health, and prosperity of the
State. To this fundamental aims of the government, the rights of the individual are
subordinated. Liberty is a blessing which should not be made to prevail over authority
because society will fall into anarchy. Neither should authority be made to prevail over liberty
because then the individual will fall into slavery. The paradox lies in the fact that the apparent
curtailment of liberty is precisely the very means of insuring its preserving.
2) No. Social justice is “neither communism, nor despotism, nor atomism, nor anarchy,” but
the humanization of laws and the equalization of social and economic forces by the State so
that justice in its rational and objectively secular conception may at least be approximated.
Social justice means the promotion of the welfare of all the people, the adoption by the
Government of measures calculated to insure economic stability of all the competent
elements of society, through the maintenance of a proper economic and social equilibrium in
the interrelations of the members of the community, constitutionally, through the adoption of
measures legally justifiable, or extra-constitutionally, through the exercise of powers
underlying the existence of all governments on the time-honored principles of salus populi
estsuprema lex.
Social justice must be founded on the recognition of the necessity of interdependence
among divers and diverse units of a society and of the protection that should be equally and
evenly extended to all groups as a combined force in our social and economic life, consistent
with the fundamental and paramount objective of the state of promoting health, comfort and
quiet of all persons, and of bringing about “the greatest good to the greatest number.”
PHILIPPINE TELEGRAPH AND TELEPHONE COMPANY, * petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION and GRACE DE GUZMAN, respondents.
REGALADO, J.:
Seeking relief through the extraordinary writ of certiorari, petitioner Philippine Telegraph and
Telephone Company (hereafter, PT & T) invokes the alleged concealment of civil status and
defalcation of company funds as grounds to terminate the services of an employee. That
employee, herein private respondent Grace de Guzman, contrarily argues that what really
motivated PT & T to terminate her services was her having contracted marriage during her
employment, which is prohibited by petitioner in its company policies. She thus claims that
she was discriminated against in gross violation of law, such a proscription by an employer
being outlawed by Article 136 of the Labor Code.
Grace de Guzman was initially hired by petitioner as a reliever, specifically as a
"Supernumerary Project Worker," for a fixed period from November 21, 1990 until April 20,
1991 vice one C.F. Tenorio who went on maternity leave.1 Under the Reliever Agreement
which she signed with petitioner company, her employment was to be immediately
terminated upon expiration of the agreed period. Thereafter, from June 10, 1991 to July 1,
1991, and from July 19, 1991 to August 8, 1991, private respondent's services as reliever
were again engaged by petitioner, this time in replacement of one Erlinda F. Dizon who went
on leave during both periods.2 After August 8, 1991, and pursuant to their Reliever
Agreement, her services were terminated.
On September 2, 1991, private respondent was once more asked to join petitioner company
as a probationary employee, the probationary period to cover 150 days. In the job application
form that was furnished her to be filled up for the purpose, she indicated in the portion for
civil status therein that she was single although she had contracted marriage a few months
earlier, that is, on May 26, 1991.3
It now appears that private respondent had made the same representation in the two
successive reliever agreements which she signed on June 10, 1991 and July 8, 1991. When
petitioner supposedly learned about the same later, its branch supervisor in Baguio City,
Delia M. Oficial, sent to private respondent a memorandum dated January 15, 1992 requiring
her to explain the discrepancy. In that memorandum, she was reminded about the
company's policy of not accepting married women for employment.4
In her reply letter dated January 17, 1992, private respondent stated that she was not aware
of PT&T's policy regarding married women at the time, and that all along she had not
deliberately hidden her true civil status.5 Petitioner nonetheless remained unconvinced by
her explanations. Private respondent was dismissed from the company effective January 29,
1992,6 which she readily contested by initiating a complaint for illegal dismissal, coupled with
a claim for non-payment of cost of living allowances (COLA), before the Regional Arbitration
Branch of the National Labor Relations Commission in Baguio City.
At the preliminary conference conducted in connection therewith, private respondent
volunteered the information, and this was incorporated in the stipulation of facts between the
parties, that she had failed to remit the amount of P2,380.75 of her collections. She then
executed a promissory note for that amount in favor of petitioner7. All of these took place in a
formal proceeding and with the agreement of the parties and/or their counsel.
On November 23, 1993, Labor Arbiter Irenarco R. Rimando handed down a decision
declaring that private respondent, who had already gained the status of a regular employee,
was illegally dismissed by petitioner. Her reinstatement, plus payment of the corresponding
back wages and COLA, was correspondingly ordered, the labor arbiter being of the firmly
expressed view that the ground relied upon by petitioner in dismissing private respondent
was clearly insufficient, and that it was apparent that she had been discriminated against on
account of her having contracted marriage in violation of company rules.
On appeal to the National Labor Relations Commission (NLRC), said public respondent
upheld the labor arbiter and, in its decision dated April 29, 1994, it ruled that private
respondent had indeed been the subject of an unjust and unlawful discrimination by her
employer, PT & T. However, the decision of the labor arbiter was modified with the
qualification that Grace de Guzman deserved to be suspended for three months in view of
the dishonest nature of her acts which should not be condoned. In all other respects, the
NLRC affirmed the decision of the labor arbiter, including the order for the reinstatement of
private respondent in her employment with PT & T.
The subsequent motion for reconsideration filed by petitioner was rebuffed by respondent
NLRC in its resolution of November 9, 1994, hence this special civil action assailing the
aforestated decisions of the labor arbiter and respondent NLRC, as well as the denial
resolution of the latter.
1. Decreed in the Bible itself is the universal norm that women should be regarded with love
and respect but, through the ages, men have responded to that injunction with indifference,
on the hubristic conceit that women constitute the inferior sex. Nowhere has that prejudice
against womankind been so pervasive as in the field of labor, especially on the matter of
equal employment opportunities and standards. In the Philippine setting, women have
traditionally been considered as falling within the vulnerable groups or types of workers who
must be safeguarded with preventive and remedial social legislation against discriminatory
and exploitative practices in hiring, training, benefits, promotion and retention.
The Constitution, cognizant of the disparity in rights between men and women in almost all
phases of social and political life, provides a gamut of protective provisions. To cite a few of
the primordial ones, Section 14, Article II8 on the Declaration of Principles and State Policies,
expressly recognizes the role of women in nation-building and commands the State to
ensure, at all times, the fundamental equality before the law of women and men. Corollary
thereto, Section 3 of Article XIII9 (the progenitor whereof dates back to both the 1935 and
1973 Constitution) pointedly requires the State to afford full protection to labor and to
promote full employment and equality of employment opportunities for all, including an
assurance of entitlement to tenurial security of all workers. Similarly, Section 14 of Article
XIII 10 mandates that the State shall protect working women through provisions for
opportunities that would enable them to reach their full potential.
2. Corrective labor and social laws on gender inequality have emerged with more frequency
in the years since the Labor Code was enacted on May 1, 1974 as Presidential Decree No.
442, largely due to our country's commitment as a signatory to the United Nations
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). 11
Principal among these laws are Republic Act No. 6727 12 which explicitly prohibits
discrimination against women with respect to terms and conditions of employment,
promotion, and training opportunities; Republic Act No. 6955 13 which bans the "mail-order-
bride" practice for a fee and the export of female labor to countries that cannot guarantee
protection to the rights of women workers; Republic Act No. 7192 14 also known as the
"Women in Development and Nation Building Act," which affords women equal opportunities
with men to act and to enter into contracts, and for appointment, admission, training,
graduation, and commissioning in all military or similar schools of the Armed Forces of the
Philippines and the Philippine National Police; Republic Act No. 7322 15 increasing the
maternity benefits granted to women in the private sector; Republic Act No. 7877 16 which
outlaws and punishes sexual harassment in the workplace and in the education and training
environment; and Republic Act No. 8042, 17 or the "Migrant Workers and Overseas Filipinos
Act of 1995," which prescribes as a matter of policy, inter alia, the deployment of migrant
workers, with emphasis on women, only in countries where their rights are secure. Likewise,
it would not be amiss to point out that in the Family Code, 18 women's rights in the field of
civil law have been greatly enhanced and expanded.
In the Labor Code, provisions governing the rights of women workers are found in Articles
130 to 138 thereof. Article 130 involves the right against particular kinds of night work while
Article 132 ensures the right of women to be provided with facilities and standards which the
Secretary of Labor may establish to ensure their health and safety. For purposes of labor
and social legislation, a woman working in a nightclub, cocktail lounge, massage clinic, bar
or other similar establishments shall be considered as an employee under Article 138. Article
135, on the other hand, recognizes a woman's right against discrimination with respect to
terms and conditions of employment on account simply of sex. Finally, and this brings us to
the issue at hand, Article 136 explicitly prohibits discrimination merely by reason of the
marriage of a female employee.
3. Acknowledged as paramount in the due process scheme is the constitutional guarantee of
protection to labor and security of tenure. Thus, an employer is required, as a condition sine
qua non prior to severance of the employment ties of an individual under his employ, to
convincingly establish, through substantial evidence, the existence of a valid and just cause
in dispensing with the services of such employee, one's labor being regarded as
constitutionally protected property.
On the other hand, it is recognized that regulation of manpower by the company falls within
the so-called management prerogatives, which prescriptions encompass the matter of hiring,
supervision of workers, work assignments, working methods and assignments, as well as
regulations on the transfer of employees, lay-off of workers, and the discipline, dismissal,
and recall of employees. 19 As put in a case, an employer is free to regulate, according to his
discretion and best business judgment, all aspects of employment, "from hiring to firing,"
except in cases of unlawful discrimination or those which may be provided by law. 20
In the case at bar, petitioner's policy of not accepting or considering as disqualified from work
any woman worker who contracts marriage runs afoul of the test of, and the right against,
discrimination, afforded all women workers by our labor laws and by no less than the
Constitution. Contrary to petitioner's assertion that it dismissed private respondent from
employment on account of her dishonesty, the record discloses clearly that her ties with the
company were dissolved principally because of the company's policy that married women
are not qualified for employment in PT & T, and not merely because of her supposed acts of
dishonesty.
That it was so can easily be seen from the memorandum sent to private respondent by Delia
M. Oficial, the branch supervisor of the company, with the reminder, in the words of the
latter, that "you're fully aware that the company is not accepting married women employee
(sic), as it was verbally instructed to you." 21 Again, in the termination notice sent to her by
the same branch supervisor, private respondent was made to understand that her severance
from the service was not only by reason of her concealment of her married status but, over
and on top of that, was her violation of the company's policy against marriage ("and even told
you that married women employees are not applicable [sic] or accepted in our
company.") 22 Parenthetically, this seems to be the curious reason why it was made to
appear in the initiatory pleadings that petitioner was represented in this case only by its said
supervisor and not by its highest ranking officers who would otherwise be solidarily liable
with the corporation. 23
Verily, private respondent's act of concealing the true nature of her status from PT & T could
not be properly characterized as willful or in bad faith as she was moved to act the way she
did mainly because she wanted to retain a permanent job in a stable company. In other
words, she was practically forced by that very same illegal company policy into
misrepresenting her civil status for fear of being disqualified from work. While loss of
confidence is a just cause for termination of employment, it should not be simulated. 24 It
must rest on an actual breach of duty committed by the employee and not on the employer's
caprices. 25 Furthermore, it should never be used as a subterfuge for causes which are
improper, illegal, or unjustified. 26
In the present controversy, petitioner's expostulations that it dismissed private respondent,
not because the latter got married but because she concealed that fact, does have a hollow
ring. Her concealment, so it is claimed, bespeaks dishonesty hence the consequent loss of
confidence in her which justified her dismissal.
Petitioner would asseverate, therefore, that while it has nothing against marriage, it
nonetheless takes umbrage over the concealment of that fact. This improbable reasoning,
with interstitial distinctions, perturbs the Court since private respondent may well be minded
to claim that the imputation of dishonesty should be the other way around.
Petitioner would have the Court believe that although private respondent defied its policy
against its female employees contracting marriage, what could be an act of insubordination
was inconsequential. What it submits as unforgivable is her concealment of that marriage
yet, at the same time, declaring that marriage as a trivial matter to which it supposedly has
no objection. In other words, PT & T says it gives its blessings to its female employees
contracting marriage, despite the maternity leaves and other benefits it would consequently
respond for and which obviously it would have wanted to avoid. If that employee confesses
such fact of marriage, there will be no sanction; but if such employee conceals the same
instead of proceeding to the confessional, she will be dismissed. This line of reasoning does
not impress us as reflecting its true management policy or that we are being regaled with
responsible advocacy.
This Court should be spared the ennui of strained reasoning and the tedium of propositions
which confuse through less than candid arguments. Indeed, petitioner glosses over the fact
that it was its unlawful policy against married women, both on the aspects of qualification and
retention, which compelled private respondent to conceal her supervenient marriage. It was,
however, that very policy alone which was the cause of private respondent's secretive
conduct now complained of. It is then apropos to recall the familiar saying that he who is the
cause of the cause is the cause of the evil caused.
Finally, petitioner's collateral insistence on the admission of private respondent that she
supposedly misappropriated company funds, as an additional ground to dismiss her from
employment, is somewhat insincere and self-serving. Concededly, private respondent
admitted in the course of the proceedings that she failed to remit some of her collections, but
that is an altogether different story. The fact is that she was dismissed solely because of her
concealment of her marital status, and not on the basis of that supposed defalcation of
company funds. That the labor arbiter would thus consider petitioner's submissions on this
supposed dishonesty as a mere afterthought, just to bolster its case for dismissal, is a
perceptive conclusion born of experience in labor cases. For, there was no showing that
private respondent deliberately misappropriated the amount or whether her failure to remit
the same was through negligence and, if so, whether the negligence was in nature simple or
grave. In fact, it was merely agreed that private respondent execute a promissory note to
refund the same, which she did, and the matter was deemed settled as a peripheral issue in
the labor case.
Private respondent, it must be observed, had gained regular status at the time of her
dismissal. When she was served her walking papers on January 29, 1992, she was about to
complete the probationary period of 150 days as she was contracted as a probationary
employee on September 2, 1991. That her dismissal would be effected just when her
probationary period was winding down clearly raises the plausible conclusion that it was
done in order to prevent her from earning security of tenure. 27 On the other hand, her earlier
stints with the company as reliever were undoubtedly those of a regular employee, even if
the same were for fixed periods, as she performed activities which were essential or
necessary in the usual trade and business of PT & T. 28 The primary standard of determining
regular employment is the reasonable connection between the activity performed by the
employee in relation to the business or trade of the employer. 29
As an employee who had therefore gained regular status, and as she had been dismissed
without just cause, she is entitled to reinstatement without loss of seniority rights and other
privileges and to full back wages, inclusive of allowances and other benefits or their
monetary equivalent. 30 However, as she had undeniably committed an act of dishonesty in
concealing her status, albeit under the compulsion of an unlawful imposition of petitioner, the
three-month suspension imposed by respondent NLRC must be upheld to obviate the
impression or inference that such act should be condoned. It would be unfair to the employer
if she were to return to its fold without any sanction whatsoever for her act which was not
totally justified. Thus, her entitlement to back wages, which shall be computed from the time
her compensation was withheld up to the time of her actual reinstatement, shall be reduced
by deducting therefrom the amount corresponding to her three months suspension.
4. The government, to repeat, abhors any stipulation or policy in the nature of that adopted
by petitioner PT & T. The Labor Code state, in no uncertain terms, as follows:
Art. 136. Stipulation against marriage. — It shall be unlawful for an employer
to require as a condition of employment or continuation of employment that
a woman shall not get married, or to stipulate expressly or tacitly that upon
getting married, a woman employee shall be deemed resigned or separated,
or to actually dismiss, discharge, discriminate or otherwise prejudice a
woman employee merely by reason of marriage.
This provision had a studied history for its origin can be traced to Section 8 of Presidential
Decree No. 148, 31 better known as the "Women and
Child Labor Law," which amended paragraph (c), Section 12 of Republic Act No.
679, 32 entitled "An Act to Regulate the Employment of Women and Children, to Provide
Penalties for Violations Thereof, and for Other Purposes." The forerunner to Republic Act
No. 679, on the other hand, was Act No. 3071 which became law on March 16, 1923 and
which regulated the employment of women and children in shops, factories, industrial,
agricultural, and mercantile establishments and other places of labor in the then Philippine
Islands.
It would be worthwhile to reflect upon and adopt here the rationalization in Zialcita, et
al. vs. Philippine Air Lines, 33 a decision that emanated from the Office of the President.
There, a policy of Philippine Air Lines requiring that prospective flight attendants must be
single and that they will be automatically separated from the service once they marry was
declared void, it being violative of the clear mandate in Article 136 of the Labor Code with
regard to discrimination against married women. Thus:
Of first impression is the incompatibility of the respondent's policy or
regulation with the codal provision of law. Respondent is resolute in its
contention that Article 136 of the Labor Code applies only to women
employed in ordinary occupations and that the prohibition against marriage
of women engaged in extraordinary occupations, like flight attendants, is fair
and reasonable, considering the pecularities of their chosen profession.
We cannot subscribe to the line of reasoning pursued by respondent. All
along, it knew that the controverted policy has already met its doom as early
as March 13, 1973 when Presidential Decree No. 148, otherwise known as
the Women and Child Labor Law, was promulgated. But for the timidity of
those affected or their labor unions in challenging the validity of the policy,
the same was able to obtain a momentary reprieve. A close look at Section
8 of said decree, which amended paragraph (c) of Section 12 of Republic
Act No. 679, reveals that it is exactly the same provision reproduced
verbatim in Article 136 of the Labor Code, which was promulgated on May 1,
1974 to take effect six (6) months later, or on November 1, 1974.
It cannot be gainsaid that, with the reiteration of the same provision in the
new Labor Code, all policies and acts against it are deemed illegal and
therefore abrogated. True, Article 132 enjoins the Secretary of Labor to
establish standards that will ensure the safety and health of women
employees and in appropriate cases shall by regulation require employers to
determine appropriate minimum standards for termination in special
occupations, such as those of flight attendants, but that is precisely the
factor that militates against the policy of respondent. The standards have not
yet been established as set forth in the first paragraph, nor has the
Secretary of Labor issued any regulation affecting flight attendants.
It is logical to presume that, in the absence of said standards or regulations
which are as yet to be established, the policy of respondent against
marriage is patently illegal. This finds support in Section 9 of the New
Constitution, which provides:
Sec. 9. The State shall afford protection to labor, promote full employment
and equality in employment, ensure equal work opportunities regardless of
sex, race, or creed, and regulate the relations between workers and
employees. The State shall assure the rights of workers to self-organization,
collective bargaining, security of tenure, and just and humane conditions of
work . . . .
Moreover, we cannot agree to the respondent's proposition that termination
from employment of flight attendants on account of marriage is a fair and
reasonable standard designed for their own health, safety, protection and
welfare, as no basis has been laid therefor. Actually, respondent claims that
its concern is not so much against the continued employment of the flight
attendant merely by reason of marriage as observed by the Secretary of
Labor, but rather on the consequence of marriage-pregnancy. Respondent
discussed at length in the instant appeal the supposed ill effects of
pregnancy on flight attendants in the course of their employment. We feel
that this needs no further discussion as it had been adequately explained by
the Secretary of Labor in his decision of May 2, 1976.
In a vain attempt to give meaning to its position, respondent went as far as
invoking the provisions of Articles 52 and 216 of the New Civil Code on the
preservation of marriage as an inviolable social institution and the family as
a basic social institution, respectively, as bases for its policy of non-
marriage. In both instances, respondent predicates absence of a flight
attendant from her home for long periods of time as contributory to an
unhappy married life. This is pure conjecture not based on actual conditions,
considering that, in this modern world, sophisticated technology has
narrowed the distance from one place to another. Moreover, respondent
overlooked the fact that married flight attendants can program their lives to
adapt to prevailing circumstances and events.
Article 136 is not intended to apply only to women employed in ordinary
occupations, or it should have categorically expressed so. The sweeping
intendment of the law, be it on special or ordinary occupations, is reflected in
the whole text and supported by Article 135 that speaks of non-
discrimination on the employment of women.
The judgment of the Court of Appeals in Gualberto, et al. vs. Marinduque Mining & Industrial
Corporation 34 considered as void a policy of the same nature. In said case, respondent, in
dismissing from the service the complainant, invoked a policy of the firm to consider female
employees in the project it was undertaking as separated the moment they get married due
to lack of facilities for married women. Respondent further claimed that complainant was
employed in the project with an oral understanding that her services would be terminated
when she gets married. Branding the policy of the employer as an example of "discriminatory
chauvinism" tantamount to denying equal employment opportunities to women simply on
account of their sex, the appellate court struck down said employer policy as unlawful in view
of its repugnance to the Civil Code, Presidential Decree No. 148 and the Constitution.
Under American jurisprudence, job requirements which establish employer preference or
conditions relating to the marital status of an employee are categorized as a "sex-plus"
discrimination where it is imposed on one sex and not on the other. Further, the same should
be evenly applied and must not inflict adverse effects on a racial or sexual group which is
protected by federal job discrimination laws. Employment rules that forbid or restrict the
employment of married women, but do not apply to married men, have been held to violate
Title VII of the United States Civil Rights Act of 1964, the main federal statute prohibiting job
discrimination against employees and applicants on the basis of, among other things, sex. 35
Further, it is not relevant that the rule is not directed against all women but just against
married women. And, where the employer discriminates against married women, but not
against married men, the variable is sex and the discrimination is unlawful. 36 Upon the other
hand, a requirement that a woman employee must remain unmarried could be justified as a
"bona fide occupational qualification," or BFOQ, where the particular requirements of the job
would justify the same, but not on the ground of a general principle, such as the desirability
of spreading work in the workplace. A requirement of that nature would be valid provided it
reflects an inherent quality reasonably necessary for satisfactory job performance. Thus, in
one case, a no-marriage rule applicable to both male and female flight attendants, was
regarded as unlawful since the restriction was not related to the job performance of the flight
attendants. 37
5. Petitioner's policy is not only in derogation of the provisions of Article 136 of the Labor
Code on the right of a woman to be free from any kind of stipulation against marriage in
connection with her employment, but it likewise assaults good morals and public policy,
tending as it does to deprive a woman of the freedom to choose her status, a privilege that
by all accounts inheres in the individual as an intangible and inalienable right. 38 Hence, while
it is true that the parties to a contract may establish any agreements, terms, and conditions
that they may deem convenient, the same should not be contrary to law, morals, good
customs, public order, or public policy. 39 Carried to its logical consequences, it may even be
said that petitioner's policy against legitimate marital bonds would encourage illicit or
common-law relations and subvert the sacrament of marriage.
Parenthetically, the Civil Code provisions on the contract of labor state that the relations
between the parties, that is, of capital and labor, are not merely contractual, impressed as
they are with so much public interest that the same should yield to the common good. 40 It
goes on to intone that neither capital nor labor should visit acts of oppression against the
other, nor impair the interest or convenience of the public. 41 In the final reckoning, the
danger of just such a policy against marriage followed by petitioner PT & T is that it strikes at
the very essence, ideals and purpose of marriage as an inviolable social institution and,
ultimately, of the family as the foundation of the nation. 42 That it must be effectively
interdicted here in all its indirect, disguised or dissembled forms as discriminatory conduct
derogatory of the laws of the land is not only in order but imperatively required.
ON THE FOREGOING PREMISES, the petition of Philippine Telegraph and Telephone
Company is hereby DISMISSED for lack of merit, with double costs against petitioner.
SO ORDERED.
FACTS:
PT&T (Philippine Telegraph & Telephone Company) initially hired Grace de Guzman
specifically as reliever for C.F. Tenorio who went on maternity leave. She was again invited
for employment as replacement of Erlina F. Dizon who went on leave on 2 periods. De
Guzman was again asked to join PT&T as a probationary employee. She indicated in the
portion of the job application form under civil status that she was single although she had
contracted marriage a few months earlier.
When petitioner learned later about the marriage, its branch supervisor sent de Guzman a
memorandum requiring her to explain the discrepancy including a reminder about the
company’s policy of not accepting married women for employment. She was dismissed from
the company and Labor Arbiter handed down a decision declaring that petitioner illegally
dismissed de Guzman, who had already gained the status of a regular employee. It was
apparent that she had been discriminated on account of her having contracted marriage in
violation of company policies.
ISSUE:
Whether or not the alleged concealment of civil status can be grounds to terminate the
services of an employee.
RULING:
No. Private respondent’s act of concealing the true nature of her status from PT&T could not
be properly characterized as in bad faith as she was moved to act the way she did mainly
because she wanted to retain a permanent job in a stable company. Thus, could not be a
ground to terminate her services.
Article 136 of the Labor Code, one of the protective laws for women, explicitly prohibits
discrimination merely by reason of marriage of a female employee. It is recognized that
company is free to regulate manpower and employment from hiring to firing, according to
their discretion and best business judgment, except in those cases of unlawful discrimination
or those provided by law.
PT&T’s policy of not accepting or disqualifying from work any woman worker who contracts
marriage is afoul of the right against discrimination provided to all women workers by our
labor laws and by our Constitution. The record discloses clearly that de Guzman’s ties with
PT&T were dissolved principally because of the company’s policy that married women are
not qualified for employment in the company, and not merely because of her supposed acts
of dishonesty.
The policy of PT&T is in derogation of the provisions stated in Art.136 of the Labor Code on
the right of a woman to be free from any kind of stipulation against marriage in connection
with her employment and it likewise is contrary to good morals and public policy, depriving a
woman of her freedom to choose her status, a privilege that is inherent in an individual as an
intangible and inalienable right. The kind of policy followed by PT&T strikes at the very
essence, ideals and purpose of marriage as an inviolable social institution and ultimately,
family as the foundation of the nation. Such policy must be prohibited in all its indirect,
disguised or dissembled forms as discriminatory conduct derogatory of the laws of the land
not only for order but also imperatively required. However, SC nevertheless ruled that Grace
did commit an act of dishonesty, which should be sanctioned and therefore agreed with the
NLRC’s decision that the dishonesty warranted temporary suspension of Grace from work.
G.R. No. 81958 June 30, 1988
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner,
vs.
HON. FRANKLIN M. DRILON as Secretary of Labor and Employment, and TOMAS D.
ACHACOSO, as Administrator of the Philippine Overseas Employment
Administration, respondents.
Gutierrez & Alo Law Offices for petitioner.
SARMIENTO, J.:
The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for short), a firm
"engaged principally in the recruitment of Filipino workers, male and female, for overseas
placement," 1 challenges the Constitutional validity of Department Order No. 1, Series of
1988, of the Department of Labor and Employment, in the character of "GUIDELINES
GOVERNING THE TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO
DOMESTIC AND HOUSEHOLD WORKERS," in this petition for certiorari and prohibition.
Specifically, the measure is assailed for "discrimination against males or females;" 2 that it
"does not apply to all Filipino workers but only to domestic helpers and females with similar
skills;" 3 and that it is violative of the right to travel. It is held likewise to be an invalid exercise
of the lawmaking power, police power being legislative, and not executive, in character.
In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the Constitution,
providing for worker participation "in policy and decision-making processes affecting their
rights and benefits as may be provided by law." 4 Department Order No. 1, it is contended,
was passed in the absence of prior consultations. It is claimed, finally, to be in violation of the
Charter's non-impairment clause, in addition to the "great and irreparable injury" that PASEI
members face should the Order be further enforced.
On May 25, 1988, the Solicitor General, on behalf of the respondents Secretary of Labor and
Administrator of the Philippine Overseas Employment Administration, filed a Comment
informing the Court that on March 8, 1988, the respondent Labor Secretary lifted the
deployment ban in the states of Iraq, Jordan, Qatar, Canada, Hongkong, United States, Italy,
Norway, Austria, and Switzerland. * In submitting the validity of the challenged "guidelines,"
the Solicitor General invokes the police power of the Philippine State.
It is admitted that Department Order No. 1 is in the nature of a police power measure. The
only question is whether or not it is valid under the Constitution.
The concept of police power is well-established in this jurisdiction. It has been defined as the
"state authority to enact legislation that may interfere with personal liberty or property in
order to promote the general welfare." 5 As defined, it consists of (1) an imposition of
restraint upon liberty or property, (2) in order to foster the common good. It is not capable of
an exact definition but has been, purposely, veiled in general terms to underscore its all-
comprehensive embrace.
"Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future
where it could be done, provides enough room for an efficient and flexible response to
conditions and circumstances thus assuring the greatest benefits." 6
It finds no specific Constitutional grant for the plain reason that it does not owe its origin to
the Charter. Along with the taxing power and eminent domain, it is inborn in the very fact of
statehood and sovereignty. It is a fundamental attribute of government that has enabled it to
perform the most vital functions of governance. Marshall, to whom the expression has been
credited, 7 refers to it succinctly as the plenary power of the State "to govern its citizens." 8
"The police power of the State ... is a power coextensive with self- protection, and it is not
inaptly termed the "law of overwhelming necessity." It may be said to be that inherent and
plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety,
and welfare of society." 9
It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in
the conception that men in organizing the state and imposing upon its government limitations
to safeguard constitutional rights did not intend thereby to enable an individual citizen or a
group of citizens to obstruct unreasonably the enactment of such salutary measures
calculated to ensure communal peace, safety, good order, and welfare." 10 Significantly, the
Bill of Rights itself does not purport to be an absolute guaranty of individual rights and
liberties "Even liberty itself, the greatest of all rights, is not unrestricted license to act
according to one's will." 11 It is subject to the far more overriding demands and requirements
of the greater number.
Notwithstanding its extensive sweep, police power is not without its own limitations. For all its
awesome consequences, it may not be exercised arbitrarily or unreasonably. Otherwise, and
in that event, it defeats the purpose for which it is exercised, that is, to advance the public
good. Thus, when the power is used to further private interests at the expense of the
citizenry, there is a clear misuse of the power. 12
In the light of the foregoing, the petition must be dismissed.
As a general rule, official acts enjoy a presumed vahdity. 13 In the absence of clear and
convincing evidence to the contrary, the presumption logically stands.
The petitioner has shown no satisfactory reason why the contested measure should be
nullified. There is no question that Department Order No. 1 applies only to "female contract
workers," 14 but it does not thereby make an undue discrimination between the sexes. It is
well-settled that "equality before the law" under the Constitution 15 does not import a perfect
Identity of rights among all men and women. It admits of classifications, provided that (1)
such classifications rest on substantial distinctions; (2) they are germane to the purposes of
the law; (3) they are not confined to existing conditions; and (4) they apply equally to all
members of the same class. 16
The Court is satisfied that the classification made-the preference for female workers — rests
on substantial distinctions.
As a matter of judicial notice, the Court is well aware of the unhappy plight that has befallen
our female labor force abroad, especially domestic servants, amid exploitative working
conditions marked by, in not a few cases, physical and personal abuse. The sordid tales of
maltreatment suffered by migrant Filipina workers, even rape and various forms of torture,
confirmed by testimonies of returning workers, are compelling motives for urgent
Government action. As precisely the caretaker of Constitutional rights, the Court is called
upon to protect victims of exploitation. In fulfilling that duty, the Court sustains the
Government's efforts.
The same, however, cannot be said of our male workers. In the first place, there is no
evidence that, except perhaps for isolated instances, our men abroad have been afflicted
with an Identical predicament. The petitioner has proffered no argument that the Government
should act similarly with respect to male workers. The Court, of course, is not impressing
some male chauvinistic notion that men are superior to women. What the Court is saying is
that it was largely a matter of evidence (that women domestic workers are being ill-treated
abroad in massive instances) and not upon some fanciful or arbitrary yardstick that the
Government acted in this case. It is evidence capable indeed of unquestionable
demonstration and evidence this Court accepts. The Court cannot, however, say the same
thing as far as men are concerned. There is simply no evidence to justify such an inference.
Suffice it to state, then, that insofar as classifications are concerned, this Court is content
that distinctions are borne by the evidence. Discrimination in this case is justified.
As we have furthermore indicated, executive determinations are generally final on the Court.
Under a republican regime, it is the executive branch that enforces policy. For their part, the
courts decide, in the proper cases, whether that policy, or the manner by which it is
implemented, agrees with the Constitution or the laws, but it is not for them to question its
wisdom. As a co-equal body, the judiciary has great respect for determinations of the Chief
Executive or his subalterns, especially when the legislature itself has specifically given them
enough room on how the law should be effectively enforced. In the case at bar, there is no
gainsaying the fact, and the Court will deal with this at greater length shortly, that
Department Order No. 1 implements the rule-making powers granted by the Labor Code. But
what should be noted is the fact that in spite of such a fiction of finality, the Court is on its
own persuaded that prevailing conditions indeed call for a deployment ban.
There is likewise no doubt that such a classification is germane to the purpose behind the
measure. Unquestionably, it is the avowed objective of Department Order No. 1 to "enhance
the protection for Filipino female overseas workers" 17 this Court has no quarrel that in the
midst of the terrible mistreatment Filipina workers have suffered abroad, a ban on
deployment will be for their own good and welfare.
The Order does not narrowly apply to existing conditions. Rather, it is intended to apply
indefinitely so long as those conditions exist. This is clear from the Order itself ("Pending
review of the administrative and legal measures, in the Philippines and in the host countries .
. ."18), meaning to say that should the authorities arrive at a means impressed with a greater
degree of permanency, the ban shall be lifted. As a stop-gap measure, it is possessed of a
necessary malleability, depending on the circumstances of each case. Accordingly, it
provides:
9. LIFTING OF SUSPENSION. — The Secretary of Labor and Employment
(DOLE) may, upon recommendation of the Philippine Overseas Employment
Administration (POEA), lift the suspension in countries where there are:
1. Bilateral agreements or understanding with the Philippines, and/or,
2. Existing mechanisms providing for sufficient safeguards to ensure the
welfare and protection of Filipino workers. 19
The Court finds, finally, the impugned guidelines to be applicable to all female domestic
overseas workers. That it does not apply to "all Filipina workers" 20 is not an argument for
unconstitutionality. Had the ban been given universal applicability, then it would have been
unreasonable and arbitrary. For obvious reasons, not all of them are similarly circumstanced.
What the Constitution prohibits is the singling out of a select person or group of persons
within an existing class, to the prejudice of such a person or group or resulting in an unfair
advantage to another person or group of persons. To apply the ban, say exclusively to
workers deployed by A, but not to those recruited by B, would obviously clash with the equal
protection clause of the Charter. It would be a classic case of what Chase refers to as a law
that "takes property from A and gives it to B." 21 It would be an unlawful invasion of property
rights and freedom of contract and needless to state, an invalid act. 22 (Fernando says:
"Where the classification is based on such distinctions that make a real difference as infancy,
sex, and stage of civilization of minority groups, the better rule, it would seem, is to recognize
its validity only if the young, the women, and the cultural minorities are singled out for
favorable treatment. There would be an element of unreasonableness if on the contrary their
status that calls for the law ministering to their needs is made the basis of discriminatory
legislation against them. If such be the case, it would be difficult to refute the assertion of
denial of equal protection." 23 In the case at bar, the assailed Order clearly accords
protection to certain women workers, and not the contrary.)
It is incorrect to say that Department Order No. 1 prescribes a total ban on overseas
deployment. From scattered provisions of the Order, it is evident that such a total ban has
hot been contemplated. We quote:
5. AUTHORIZED DEPLOYMENT-The deployment of domestic helpers and
workers of similar skills defined herein to the following [sic] are authorized
under these guidelines and are exempted from the suspension.
5.1 Hirings by immediate members of the family of Heads of
State and Government;
5.2 Hirings by Minister, Deputy Minister and the other senior
government officials; and
5.3 Hirings by senior officials of the diplomatic corps and
duly accredited international organizations.
5.4 Hirings by employers in countries with whom the
Philippines have [sic] bilateral labor agreements or
understanding.
xxx xxx xxx
7. VACATIONING DOMESTIC HELPERS AND WORKERS OF SIMILAR
SKILLS--Vacationing domestic helpers and/or workers of similar skills shall
be allowed to process with the POEA and leave for worksite only if they are
returning to the same employer to finish an existing or partially served
employment contract. Those workers returning to worksite to serve a new
employer shall be covered by the suspension and the provision of these
guidelines.
xxx xxx xxx
9. LIFTING OF SUSPENSION-The Secretary of Labor and Employment
(DOLE) may, upon recommendation of the Philippine Overseas Employment
Administration (POEA), lift the suspension in countries where there are:
1. Bilateral agreements or understanding with the
Philippines, and/or,
2. Existing mechanisms providing for sufficient safeguards
to ensure the welfare and protection of Filipino workers. 24
xxx xxx xxx
The consequence the deployment ban has on the right to travel does not impair the right.
The right to travel is subject, among other things, to the requirements of "public safety," "as
may be provided by law." 25 Department Order No. 1 is a valid implementation of the Labor
Code, in particular, its basic policy to "afford protection to labor," 26 pursuant to the
respondent Department of Labor's rule-making authority vested in it by the Labor
Code. 27 The petitioner assumes that it is unreasonable simply because of its impact on the
right to travel, but as we have stated, the right itself is not absolute. The disputed Order is a
valid qualification thereto.
Neither is there merit in the contention that Department Order No. 1 constitutes an invalid
exercise of legislative power. It is true that police power is the domain of the legislature, but it
does not mean that such an authority may not be lawfully delegated. As we have mentioned,
the Labor Code itself vests the Department of Labor and Employment with rulemaking
powers in the enforcement whereof. 28
The petitioners's reliance on the Constitutional guaranty of worker participation "in policy and
decision-making processes affecting their rights and benefits" 29 is not well-taken. The right
granted by this provision, again, must submit to the demands and necessities of the State's
power of regulation.
The Constitution declares that:
Sec. 3. 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. 30
"Protection to labor" does not signify the promotion of employment alone. What concerns the
Constitution more paramountly is that such an employment be above all, decent, just, and
humane. It is bad enough that the country has to send its sons and daughters to strange
lands because it cannot satisfy their employment needs at home. Under these
circumstances, the Government is duty-bound to insure that our toiling expatriates have
adequate protection, personally and economically, while away from home. In this case, the
Government has evidence, an evidence the petitioner cannot seriously dispute, of the lack or
inadequacy of such protection, and as part of its duty, it has precisely ordered an indefinite
ban on deployment.
The Court finds furthermore that the Government has not indiscriminately made use of its
authority. It is not contested that it has in fact removed the prohibition with respect to certain
countries as manifested by the Solicitor General.
The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the
loftier purposes targetted by the Government. 31 Freedom of contract and enterprise, like all
other freedoms, is not free from restrictions, more so in this jurisdiction, where laissez
faire has never been fully accepted as a controlling economic way of life.
This Court understands the grave implications the questioned Order has on the business of The Court is satisfied that the classification made-the preference for female workers — rests
recruitment. The concern of the Government, however, is not necessarily to maintain profits on substantial distinctions.
of business firms. In the ordinary sequence of events, it is profits that suffer as a result of
Government regulation. The interest of the State is to provide a decent living to its citizens.
Imbong v. Ochoa (G.R. No. 204819)
The Government has convinced the Court in this case that this is its intent. We do not find
the impugned Order to be tainted with a grave abuse of discretion to warrant the
extraordinary relief prayed for.
Facts:
WHEREFORE, the petition is DISMISSED. No costs.SO ORDERED.

FACTS:Phil association of Service Exporters, Inc., is engaged principally in the recruitment The increase of the country’s population at an uncontrollable pace led to the executive and
of Filipino workers, male and female of overseas employment. It challenges the constitutional
validity of Dept. Order No. 1 (1998) of DOLE entitled “Guidelines Governing the Temporary the legislative’s decision that prior measures were still not adequate. Thus, Congress
Suspension of Deployment of Filipino Domestic and Household Workers.” It claims that such
enacted R.A. No. 10354, otherwise known as the Responsible Parenthood and Reproductive
order is a discrimination against males and females. The Order does not apply to all Filipino
workers but only to domestic helpers and females with similar skills, and that it is in violation Health Act of 2012 (RH Law), to provide Filipinos, especially the poor and the marginalized,
of the right to travel, it also being an invalid exercise of the lawmaking power. Further, PASEI
invokes Sec 3 of Art 13 of the Constitution, providing for worker participation in policy and access and information to the full range of modern family planning methods, and to ensure
decision-making processes affecting their rights and benefits as may be provided by law. that its objective to provide for the peoples’ right to reproductive health be achieved. Stated
Thereafter the Solicitor General on behalf of DOLE submitting to the validity of the
challenged guidelines involving the police power of the State and informed the court that the differently, the RH Law is an enhancement measure to fortify and make effective the current
respondent have lifted the deployment ban in some states where there exists bilateral
laws on contraception, women’s health and population control.
agreement with the Philippines and existing mechanism providing for sufficient safeguards to
ensure the welfare and protection of the Filipino workers.

ISSUE:Whether or not D.O. No. 1 of DOLE is constitutional as it is an exercise of police Shortly after, challengers from various sectors of society moved to assail the constitutionality
power.
of RH Law. Meanwhile, the RH-IRR for the enforcement of the assailed legislation took
RULING: “[Police power] has been defined as the "state authority to enact legislation that
effect. The Court then issued a Status Quo Ante Order enjoining the effects and
may interfere with personal liberty or property in order to promote the general welfare." As
defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in order to implementation of the assailed legislation.
foster the common good. It is not capable of an exact definition but has been, purposely,
veiled in general terms to underscore its all-comprehensive embrace.
Petitioners question, among others, the constitutionality of the RH Law, claiming that it
“The petitioner has shown no satisfactory reason why the contested measure should be
nullified. There is no question that Department Order No. 1 applies only to "female contract violates Section 26(1), Article VI of the Constitution, prescribing the one subject-one title rule.
workers," but it does not thereby make an undue discrimination between the sexes. It is
According to them, being one for reproductive health with responsible parenthood, the
well-settled that "equality before the law" under the Constitution does not import a perfect
Identity of rights among all men and women. It admits of classifications, provided that (1) assailed legislation violates the constitutional standards of due process by concealing its true
such classifications rest on substantial distinctions; (2) they are germane to the purposes of
the law; (3) they are not confined to existing conditions; and (4) they apply equally to all intent – to act as a population control measure. On the other hand, respondents insist that
members of the same class.
the RH Law is not a birth or population control measure, and that the concepts of
“responsible parenthood” and “reproductive health” are both interrelated as they are general object which the statute seeks to effect, and where, as here, the persons interested

inseparable. are informed of the nature, scope and consequences of the proposed law and its operation.

Moreover, this Court has invariably adopted a liberal rather than technical construction of the
Issue: rule “so as not to cripple or impede legislation.”

In this case, a textual analysis of the various provisions of the law shows that both
Whether or not RH Law violated the one subject-one title rule under the Constitution
“reproductive health” and “responsible parenthood” are interrelated and germane to the

overriding objective to control the population growth. As expressed in the first paragraph of
Ruling: NO
Section 2 of the RH Law:

Despite efforts to push the RH Law as a reproductive health law, the Court sees it as
SEC. 2. Declaration of Policy. – The State recognizes and guarantees the human rights of all
principally a population control measure. The corpus of the RH Law is geared towards the
persons including their right to equality and nondiscrimination of these rights, the right to
reduction of the country’s population. While it claims to save lives and keep our women and
sustainable human development, the right to health which includes reproductive health, the
children healthy, it also promotes pregnancy-preventing products. As stated earlier, the RH
right to education and information, and the right to choose and make decisions for
Law emphasizes the need to provide Filipinos, especially the poor and the marginalized, with
themselves in accordance with their religious convictions, ethics, cultural beliefs, and the
access to information on the full range of modem family planning products and methods.
demands of responsible parenthood.
These family planning methods, natural or modern, however, are clearly geared towards the

prevention of pregnancy. For said reason, the manifest underlying objective of the RH Law is
The one subject/one title rule expresses the principle that the title of a law must not be
to reduce the number of births in the country. The Court, thus, agrees with the petitioners’
“so uncertain that the average person reading it would not be informed of the purpose
contention that the whole idea of contraception pervades the entire RH Law.
of the enactment or put on inquiry as to its contents, or which is misleading, either in

referring to or indicating one subject where another or different one is really

Be that as it may, the RH Law does not violate the one subject/one bill rule.
embraced in the act, or in omitting any expression or indication of the real subject or
In Cawaling, Jr. v. COMELEC, it was written: It is well-settled that the “one title-one subject”
scope of the act.”
rule does not require the Congress to employ in the title of the enactment language of such

precision as to mirror, fully index or catalogue all the contents and the minute details therein.
Considering the close intimacy between “reproductive health” and “responsible parenthood”
The rule is sufficiently complied with if the title is comprehensive enough as to include the
which bears to the attainment of the goal of achieving “sustainable human development” as

stated under its terms, the Court finds no reason to believe that Congress intentionally
sought to deceive the public as to the contents of the assailed legislation.The Court declares
R.A. No. 10354 as NOT UNCONSTITUTIONAL except with respect to certain provisions
which are declared UNCONSTITUTIONAL. The Status Quo Ante Order issued by the Court
is hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have been herein
declared as constitutional.
G.R. No. 161872 April 13, 2004
REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
TINGA, J.:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on
December 17, 2003. Respondent Commission on Elections (COMELEC) refused to give due
course to petitioner’s Certificate of Candidacy in its Resolution No. 6558 dated January 17,
2004. The decision, however, was not unanimous since Commissioners Luzviminda G.
Tancangco and Mehol K. Sadain voted to include petitioner as they believed he had parties
or movements to back up his candidacy.
On January 15, 2004, petitioner moved for reconsideration of Resolution No.
6558. Petitioner’s Motion for Reconsideration was docketed as SPP (MP) No. 04-001. The
COMELEC, acting on petitioner’s Motion for Reconsideration and on similar motions filed by
other aspirants for national elective positions, denied the same under the aegis of Omnibus
Resolution No. 6604 dated February 11, 2004. The COMELEC declared petitioner and thirty-
five (35) others nuisance candidates who could not wage a nationwide campaign and/or are
not nominated by a political party or are not supported by a registered political party with a
national constituency. Commissioner Sadain maintained his vote for petitioner. By then,
Commissioner Tancangco had retired.
In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were
allegedly rendered in violation of his right to "equal access to opportunities for public service"
under Section 26, Article II of the 1987
Constitution,1 by limiting the number of qualified candidates only to those who can afford to
wage a nationwide campaign and/or are nominated by political parties. In so doing, petitioner
argues that the COMELEC indirectly amended the constitutional provisions on the electoral
process and limited the power of the sovereign people to choose their leaders. The
COMELEC supposedly erred in disqualifying him since he is the most qualified among all the
presidential candidates, i.e., he possesses all the constitutional and legal qualifications for
the office of the president, he is capable of waging a national campaign since he has
numerous national organizations under his leadership, he also has the capacity to wage an
international campaign since he has practiced law in other countries, and he has a platform
of government. Petitioner likewise attacks the validity of the form for the Certificate of
Candidacy prepared by the COMELEC. Petitioner claims that the form does not provide clear
and reasonable guidelines for determining the qualifications of candidates since it does not
ask for the candidate’s bio-data and his program of government.
First, the constitutional and legal dimensions involved.
Implicit in the petitioner’s invocation of the constitutional provision ensuring "equal access to
opportunities for public office" is the claim that there is a constitutional right to run for or hold
public office and, particularly in his case, to seek the presidency. There is none. What is
recognized is merely a privilege subject to limitations imposed by law. Section 26, Article II of
the Constitution neither bestows such a right nor elevates the privilege to the level of an
enforceable right. There is nothing in the plain language of the provision which suggests
such a thrust or justifies an interpretation of the sort.
The "equal access" provision is a subsumed part of Article II of the Constitution, entitled
"Declaration of Principles and State Policies." The provisions under the Article are generally
considered not self-executing,2 and there is no plausible reason for according a different
treatment to the "equal access" provision. Like the rest of the policies enumerated in Article
II, the provision does not contain any judicially enforceable constitutional right but merely
specifies a guideline for legislative or executive action. 3 The disregard of the provision does
not give rise to any cause of action before the courts.4
An inquiry into the intent of the framers5 produces the same determination that the provision
is not self-executory. The original wording of the present Section 26, Article II had read, "The
State shall broaden opportunities to public office and prohibit public
dynasties."6 Commissioner (now Chief Justice) Hilario Davide, Jr. successfully brought forth
an amendment that changed the word "broaden" to the phrase "ensure equal access," and
the substitution of the word "office" to "service." He explained his proposal in this wise:
I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is
important would be equal access to the opportunity. If you broaden, it would
necessarily mean that the government would be mandated to create as many
offices as are possible to accommodate as many people as are also possible.
That is the meaning of broadening opportunities to public service. So, in order that
we should not mandate the State to make the government the number one
 employer and to limit offices only to what may be necessary and expedient yet
offering equal opportunities to access to it, I change the word
"broaden."7 (emphasis supplied)
Obviously, the provision is not intended to compel the State to enact positive measures that
would accommodate as many people as possible into public office. The approval of the
"Davide amendment" indicates the design of the framers to cast the provision as simply
enunciatory of a desired policy objective and not reflective of the imposition of a clear State
burden.
Moreover, the provision as written leaves much to be desired if it is to be regarded as the
source of positive rights. It is difficult to interpret the clause as operative in the absence of
legislation since its effective means and reach are not properly defined. Broadly written, the
myriad of claims that can be subsumed under this rubric appear to be entirely open-
ended.8 Words and phrases such as "equal access," "opportunities," and "public service" are
susceptible to countless interpretations owing to their inherent impreciseness. Certainly, it
was not the intention of the framers to inflict on the people an operative but amorphous
foundation from which innately unenforceable rights may be sourced.
As earlier noted, the privilege of equal access to opportunities to public office may be
subjected to limitations. Some valid limitations specifically on the privilege to seek elective
office are found in the provisions9 of the Omnibus Election Code on "Nuisance Candidates"
and COMELEC Resolution No. 645210 dated December 10, 2002 outlining the instances
wherein the COMELEC may motu proprio refuse to give due course to or cancel a Certificate
of Candidacy.
As long as the limitations apply to everybody equally without discrimination, however, the
equal access clause is not violated. Equality is not sacrificed as long as the burdens
engendered by the limitations are meant to be borne by any one who is minded to file a
certificate of candidacy. In the case at bar, there is no showing that any person is exempt
from the limitations or the burdens which they create.
Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the
Omnibus Election Code and COMELEC Resolution No. 6452 dated 10 December 2003.
Thus, their presumed validity stands and has to be accorded due weight.
Clearly, therefore, petitioner’s reliance on the equal access clause in Section 26, Article II of
the Constitution is misplaced.
The rationale behind the prohibition against nuisance candidates and the disqualification of
candidates who have not evinced a bona fide intention to run for office is easy to divine. The
State has a compelling interest to ensure that its electoral exercises are rational, objective,
and orderly. Towards this end, the State takes into account the practical considerations in
conducting elections. Inevitably, the greater the number of candidates, the greater the
opportunities for logistical confusion, not to mention the increased allocation of time and
resources in preparation for the election. These practical difficulties should, of course, never
exempt the State from the conduct of a mandated electoral exercise. At the same time,
remedial actions should be available to alleviate these logistical hardships, whenever
necessary and proper. Ultimately, a disorderly election is not merely a textbook example of
inefficiency, but a rot that erodes faith in our democratic institutions. As the United States
Supreme Court held:
[T]here is surely an important state interest in requiring some preliminary showing of
a significant modicum of support before printing the name of a political organization
and its candidates on the ballot – the interest, if no other, in avoiding confusion,
deception and even frustration of the democratic [process].11
The COMELEC itself recognized these practical considerations when it
promulgated Resolution No. 6558 on 17 January 2004, adopting the study Memorandum of
its Law Department dated 11 January 2004. As observed in the COMELEC’s Comment:
There is a need to limit the number of candidates especially in the case of
candidates for national positions because the election process becomes a mockery
even if those who cannot clearly wage a national campaign are allowed to run. Their
names would have to be printed in the Certified List of Candidates, Voters
Information Sheet and the Official Ballots. These would entail additional costs to the
government. For the official ballots in automated counting and canvassing of votes,
an additional page would amount to more or less FOUR HUNDRED FIFTY MILLION
PESOS (₱450,000,000.00).
xxx[I]t serves no practical purpose to allow those candidates to continue if they
cannot wage a decent campaign enough to project the prospect of winning, no
matter how slim.12
The preparation of ballots is but one aspect that would be affected by allowance of "nuisance
candidates" to run in the elections. Our election laws provide various entitlements for
candidates for public office, such as watchers in every polling place, 13 watchers in the board
of canvassers,14 or even the receipt of electoral contributions.15 Moreover, there are election
rules and regulations the formulations of which are dependent on the number of candidates
in a given election.
Given these considerations, the ignominious nature of a nuisance candidacy becomes even
more galling. The organization of an election with bona fide candidates standing is onerous
enough. To add into the mix candidates with no serious intentions or capabilities to run a
viable campaign would actually impair the electoral process. This is not to mention the
candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll body
would be bogged by irrelevant minutiae covering every step of the electoral process, most
probably posed at the instance of these nuisance candidates. It would be a senseless
sacrifice on the part of the State.
Owing to the superior interest in ensuring a credible and orderly election, the State could
exclude nuisance candidates and need not indulge in, as the song goes, "their trips to the
moon on gossamer wings."
The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the
compelling State interest to ensure orderly and credible elections by excising impediments
thereto, such as nuisance candidacies that distract and detract from the larger purpose. The
COMELEC is mandated by the Constitution with the administration of elections 16 and
endowed with considerable latitude in adopting means and methods that will ensure the
promotion of free, orderly and honest elections.17 Moreover, the Constitution guarantees that
only bona fide candidates for public office shall be free from any form of harassment and
discrimination.18 The determination of bona fide candidates is governed by the statutes, and
the concept, to our mind is, satisfactorily defined in the Omnibus Election Code.
Now, the needed factual premises.
However valid the law and the COMELEC issuance involved are, their proper application in
the case of the petitioner cannot be tested and reviewed by this Court on the basis of what is
now before it. The assailed resolutions of the COMELEC do not direct the Court to the
evidence which it considered in determining that petitioner was a nuisance candidate. This
precludes the Court from reviewing at this instance whether the COMELEC committed grave
abuse of discretion in disqualifying petitioner, since such a review would necessarily take into
account the matters which the COMELEC considered in arriving at its decisions.
Petitioner has submitted to this Court mere photocopies of various documents purportedly
evincing his credentials as an eligible candidate for the presidency. Yet this Court, not being
a trier of facts, can not properly pass upon the reproductions as evidence at this level.
Neither the COMELEC nor the Solicitor General appended any document to their
respective Comments.
The question of whether a candidate is a nuisance candidate or not is both legal and factual.
The basis of the factual determination is not before this Court. Thus, the remand of this case
for the reception of further evidence is in order.
A word of caution is in order. What is at stake is petitioner’s aspiration and offer to serve in
the government. It deserves not a cursory treatment but a hearing which conforms to the
requirements of due process.
As to petitioner’s attacks on the validity of the form for the certificate of candidacy, suffice it
to say that the form strictly complies with Section 74 of the Omnibus Election Code. This
provision specifically enumerates what a certificate of candidacy should contain, with the
required information tending to show that the candidate possesses the minimum
qualifications for the position aspired for as established by the Constitution and other election
laws.
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby
remanded to the COMELEC for the reception of further evidence, to determine the question
on whether petitioner Elly Velez Lao Pamatong is a nuisance candidate as contemplated in
Section 69 of the Omnibus Election Code.
The COMELEC is directed to hold and complete the reception of evidence and report its
findings to this Court with deliberate dispatch.
SO ORDERED.
Rev. Ely Velez Pamatong Vs. Commission on Elections
G.R. No. 161872, April 13, 2004
FACTS:
Petitioner Pamatong filed his Certificate of Candidacy (COC) for President. Respondent
COMELEC declared petitioner and 35 others as nuisance candidates who could not wage a
nationwide campaign and/or are not nominated by a political party or are not supported by a
registered political party with a national constituency.
Pamatong filed a Petition For Writ of Certiorari with the Supreme Court claiming that the
COMELEC violated his right to "equal access to opportunities for public service" under
Section 26, Article II of the 1987 Constitution, by limiting the number of qualified candidates
only to those who can afford to wage a nationwide campaign and/or are nominated by
political parties. The COMELEC supposedly erred in disqualifying him since he is the most
qualified among all the presidential candidates, i.e., he possesses all the constitutional and
legal qualifications for the office of the president, he is capable of waging a national
campaign since he has numerous national organizations under his leadership, he also has
the capacity to wage an international campaign since he has practiced law in other countries,
and he has a platform of government.
ISSUE:Is there a constitutional right to run for or hold public office?
RULING:No. What is recognized in Section 26, Article II of the Constitution is merely a
privilege subject to limitations imposed by law. It neither bestows such a right nor elevates
the privilege to the level of an enforceable right. There is nothing in the plain language of the
provision which suggests such a thrust or justifies an interpretation of the sort.
The "equal access" provision is a subsumed part of Article II of the Constitution, entitled
"Declaration of Principles and State Policies." The provisions under the Article are generally
considered not self-executing, and there is no plausible reason for according a different
treatment to the "equal access" provision. Like the rest of the policies enumerated in Article
II, the provision does not contain any judicially enforceable constitutional right but merely
specifies a guideline for legislative or executive action. The disregard of the provision does
not give rise to any cause of action before the courts.
Obviously, the provision is not intended to compel the State to enact positive measures that
would accommodate as many people as possible into public office. Moreover, the provision
as written leaves much to be desired if it is to be regarded as the source of positive rights. It
is difficult to interpret the clause as operative in the absence of legislation since its effective
means and reach are not properly defined. Broadly written, the myriad of claims that can be
subsumed under this rubric appear to be entirely open-ended. Words and phrases such as
"equal access," "opportunities," and "public service" are susceptible to countless
interpretations owing to their inherent impreciseness. Certainly, it was not the intention of the
framers to inflict on the people an operative but amorphous foundation from which innately
unenforceable rights may be sourced.
The privilege of equal access to opportunities to public office may be subjected to limitations.
Some valid limitations specifically on the privilege to seek elective office are found in the
provisions of the Omnibus Election Code on "Nuisance Candidates.” As long as the
limitations apply to everybody equally without discrimination, however, the equal access
clause is not violated. Equality is not sacrificed as long as the burdens engendered by the
limitations are meant to be borne by any one who is minded to file a certificate of candidacy.
In the case at bar, there is no showing that any person is exempt from the limitations or the
burdens which they create.
The rationale behind the prohibition against nuisance candidates and the disqualification of
candidates who have not evinced a bona fide intention to run for office is easy to divine. The
State has a compelling interest to ensure that its electoral exercises are rational, objective,
and orderly. Towards this end, the State takes into account the practical considerations in
conducting elections. Inevitably, the greater the number of candidates, the greater the
opportunities for logistical confusion, not to mention the increased allocation of time and
resources in preparation for the election. The organization of an election with bona fide
candidates standing is onerous enough. To add into the mix candidates with no serious
intentions or capabilities to run a viable campaign would actually impair the electoral
process. This is not to mention the candidacies which are palpably ridiculous so as to
constitute a one-note joke. The poll body would be bogged by irrelevant minutiae covering
every step of the electoral process, most probably posed at the instance of these nuisance
candidates. It would be a senseless sacrifice on the part of the State.
The question of whether a candidate is a nuisance candidate or not is both legal and factual.
The basis of the factual determination is not before this Court. Thus, the remand of this case
for the reception of further evidence is in order. The SC remanded to the COMELEC for the
reception of further evidence, to determine the question on whether petitioner Elly Velez Lao
Pamatong is a nuisance candidate as contemplated in Section 69 of the Omnibus Election
Code.
Obiter Dictum: One of Pamatong's contentions was that he was an international lawyer and
is thus more qualified compared to the likes of Erap, who was only a high school dropout.
Under the Constitution (Article VII, Section 2), the only requirements are the following: (1)
natural-born citizen of the Philippines; (2) registered voter; (3) able to read and write; (4) at
least forty years of age on the day of the election; and (5) resident of the Philippines for at
least ten years immediately preceding such election.
At any rate, Pamatong was eventually declared a nuisance candidate and was disqualified.
G.R. No. 129093 August 30, 2001
HON. JOSE D. LINA, JR., SANGGUNIANG PANLALAWIGAN OF LAGUNA, and HON.
CALIXTO CATAQUIZ, petitioners,
vs.
HON. FRANCISCO DIZON PAÑO and TONY CALVENTO, respondents.
QUISUMBING, J.:
For our resolution is a petition for review on certiorari seeking the reversal of the decision 1
dated February 10, 1997 of the Regional Trial Court of San Pedro, Laguna, Branch 93,
enjoining petitioners from implementing or enforcing Kapasiyahan Bilang 508, Taon 1995, of
the Sangguniang Panlalawigan of Laguna and its subsequent Order 2 dated April 21, 1997
denying petitioners' motion for reconsideration.
On December 29, 1995, respondent Tony Calvento was appointed agent by the Philippine
Charity Sweepstakes Office (PCSO) to install Terminal OM 20 for the operation of lotto. He
asked Mayor Calixto Cataquiz, Mayor of San Pedro, Laguna, for a mayor's permit to open
the lotto outlet. This was denied by Mayor Cataquiz in a letter dated February 19, 1996. The
ground for said denial was an ordinance passed by the Sangguniang Panlalawigan of
Laguna entitled Kapasiyahan Blg. 508, T. 1995 which was issued on September 18, 1995.
The ordinance reads:
ISANG KAPASIYAHAN TINUTUTULAN ANG MGA "ILLEGAL GAMBLING" LALO
NA ANG LOTTO SA LALAWIGAN NG LAGUNA
 SAPAGKA'T, ang sugal dito sa lalawigan ng Laguna ay talamak na;
SAPAGKA'T, ang sugal ay nagdudulot ng masasamang impluwensiya lalo't higit sa
mga kabataan;
KUNG KAYA'T DAHIL DITO, at sa mungkahi nina Kgg. Kgd. Juan M. Unico at Kgg.
Kgd. Gat-Ala A. Alatiit, pinangalawahan ni Kgg. Kgd. Meliton C. Larano at buong
pagkakaisang sinangayunan ng lahat ng dumalo sa pulong;
IPINASIYA, na tutulan gaya ng dito ay mahigpit na TINUTUTULAN ang ano mang
uri ng sugal dito sa lalawigan ng Laguna lalo't higit ang Lotto;
IPINASIYA PA RIN na hilingin tulad ng dito ay hinihiling sa Panlalawigang pinuno ng
Philippine National Police (PNP) Col. [illegible] na mahigpit na pag-ibayuhin ang
pagsugpo sa lahat ng uri ng illegal na sugal sa buong lalawigan ng Laguna lalo na
ang "Jueteng".3
As a result of this resolution of denial, respondent Calvento filed a complaint for declaratory
relief with prayer for preliminary injunction and temporary restraining order. In the said
complaint, respondent Calvento asked the Regional Trial Court of San Pedro Laguna,
Branch 93, for the following reliefs: (1) a preliminary injunction or temporary restraining order,
ordering the defendants to refrain from implementing or enforcing Kapasiyahan Blg. 508, T.
1995; (2) an order requiring Hon. Municipal Mayor Calixto R Cataquiz to issue a business
permit for the operation of a lotto outlet; and (3) an order annulling or declaring as
invalid Kapasiyahan Blg. 508, T. 1995.
On February 10, 1997, the respondent judge, Francisco Dizon Paño, promulgated his
decision enjoining the petitioners from implementing or enforcing resolution or Kapasiyahan
Blg. 508, T. 1995. The dispositive portion of said decision reads:
WHEREFORE, premises considered, defendants, their agents and representatives
are hereby enjoined from implementing or enforcing resolution or kapasiyahan blg.
508, T. 1995 of the Sangguniang Panlalawigan ng Laguna prohibiting the operation
of the lotto in the province of Laguna.
SO ORDERED.4
Petitioners filed a motion for reconsideration which was subsequently denied in an Order
dated April 21, 1997, which reads:
Acting on the Motion for Reconsideration filed by defendants Jose D. Lina, Jr. and
the Sangguniang Panlalawigan of Laguna, thru counsel, with the opposition filed by
plaintiff's counsel and the comment thereto filed by counsel for the defendants which
were duly noted, the Court hereby denies the motion for lack of merit.
SO ORDERED.5
On May 23, 1997, petitioners filed this petition alleging that the following errors were
committed by the respondent trial court:
I
THE TRIAL COURT ERRED IN ENJOINING THE PETITIONERS FROM
IMPLEMENTING KAPASIYAHAN BLG. 508, T. 1995 OF THE SANGGUNIANG
PANLALAWIGAN OF LAGUNA PROHIBITING THE OPERATION OF THE LOTTO
IN THE PROVINCE OF LAGUNA.
II
THE TRIAL COURT FAILED TO APPRECIATE THE ARGUMENT POSITED BY
THE PETITIONERS THAT BEFORE ANY GOVERNMENT PROJECT OR
PROGRAM MAY BE IMPLEMENTED BY THE NATIONAL AGENCIES OR
OFFICES, PRIOR CONSULTATION AND APPROVAL BY THE LOCAL
GOVERNMENT UNITS CONCERNED AND OTHER CONCERNED SECTORS IS
REQUIRED.
Petitioners contend that the assailed resolution is a valid policy declaration of the Provincial
Government of Laguna of its vehement objection to the operation of lotto and all forms of
gambling. It is likewise a valid exercise of the provincial government's police power under the
General Welfare Clause of Republic Act 7160, otherwise known as the Local Government
Code of 1991.6 They also maintain that respondent's lotto operation is illegal because no
prior consultations and approval by the local government were sought before it was
implemented contrary to the express provisions of Sections 2 (c) and 27 of R.A. 7160.7
For his part, respondent Calvento argues that the questioned resolution is, in effect, a
curtailment of the power of the state since in this case the national legislature itself had
already declared lotto as legal and permitted its operations around the country. 8 As for the
allegation that no prior consultations and approval were sought from the sangguniang
panlalawigan of Laguna, respondent Calvento contends this is not mandatory since such a
requirement is merely stated as a declaration of policy and not a self-executing provision of
the Local Government Code of 1991.9 He also states that his operation of the lotto system is
legal because of the authority given to him by the PCSO, which in turn had been granted a
franchise to operate the lotto by Congress.10
The Office of the Solicitor General (OSG), for the State, contends that the Provincial
Government of Laguna has no power to prohibit a form of gambling which has been
authorized by the national government.11 He argues that this is based on the principle that
ordinances should not contravene statutes as municipal governments are merely agents of
the national government. The local councils exercise only delegated legislative powers which
have been conferred on them by Congress. This being the case, these councils, as
delegates, cannot be superior to the principal or exercise powers higher than those of the
latter. The OSG also adds that the question of whether gambling should be permitted is for
Congress to determine, taking into account national and local interests. Since Congress has
allowed the PCSO to operate lotteries which PCSO seeks to conduct in Laguna, pursuant to
its legislative grant of authority, the province's Sangguniang Panlalawigan cannot nullify the
exercise of said authority by preventing something already allowed by Congress.
The issues to be resolved now are the following: (1) whether Kapasiyahan Blg. 508, T. 1995
of the Sangguniang Panlalawigan of Laguna and the denial of a mayor's permit based
thereon are valid; and (2) whether prior consultations and approval by the
concerned Sanggunian are needed before a lotto system can be operated in a given local
government unit.
The entire controversy stemmed from the refusal of Mayor Cataquiz to issue a mayor's
permit for the operation of a lotto outlet in favor of private respondent. According to the
mayor, he based his decision on an existing ordinance prohibiting the operation of lotto in the
province of Laguna. The ordinance, however, merely states the "objection" of the council to
the said game. It is but a mere policy statement on the part of the local council, which is not
self-executing. Nor could it serve as a valid ground to prohibit the operation of the lotto
system in the province of Laguna. Even petitioners admit as much when they stated in their
petition that:
5.7. The terms of the Resolution and the validity thereof are express and clear. The
Resolution is a policy declaration of the Provincial Government of Laguna of its
vehement opposition and/or objection to the operation of and/or all forms of
gambling including the Lotto operation in the Province of Laguna.12
As a policy statement expressing the local government's objection to the lotto, such
resolution is valid. This is part of the local government's autonomy to air its views which may
be contrary to that of the national government's. However, this freedom to exercise contrary
views does not mean that local governments may actually enact ordinances that go against
laws duly enacted by Congress. Given this premise, the assailed resolution in this case could
not and should not be interpreted as a measure or ordinance prohibiting the operation of
lotto.
The game of lotto is a game of chance duly authorized by the national government through
an Act of Congress. Republic Act 1169, as amended by Batas Pambansa Blg. 42, is the law
which grants a franchise to the PCSO and allows it to operate the lotteries. The pertinent
provision reads:
SECTION 1. The Philippine Charity Sweepstakes Office. — The Philippine Charity
Sweepstakes Office, hereinafter designated the Office, shall be the principal
government agency for raising and providing for funds for health programs, medical
assistance and services and charities of national character, and as such shall have
the general powers conferred in section thirteen of Act Numbered One thousand four
hundred fifty-nine, as amended, and shall have the authority:
A. To hold and conduct charity sweepstakes races, lotteries, and other similar
activities, in such frequency and manner, as shall be determined, and subject to
such rules and regulations as shall be promulgated by the Board of Directors.
This statute remains valid today. While lotto is clearly a game of chance, the national
government deems it wise and proper to permit it. Hence, the Sangguniang Panlalawigan of
Laguna, a local government unit, cannot issue a resolution or an ordinance that would seek
to prohibit permits. Stated otherwise, what the national legislature expressly allows by law,
such as lotto, a provincial board may not disallow by ordinance or resolution.
In our system of government, the power of local government units to legislate and enact
ordinances and resolutions is merely a delegated power coming from Congress. As held
in Tatel vs. Virac,13 ordinances should not contravene an existing statute enacted by
Congress. The reasons for this is obvious, as elucidated in Magtajas v. Pryce Properties
Corp.14
Municipal governments are only agents of the national government. Local councils
exercise only delegated legislative powers conferred upon them by Congress as the
national lawmaking body. The delegate cannot be superior to the principal or
exercise powers higher than those of the latter. It is a heresy to suggest that the
local government units can undo the acts of Congress, from which they have derived
their power in the first place, and negate by mere ordinance the mandate of the
statute.
Municipal corporations owe their origin to, and derive their powers and rights wholly
from the legislature. It breathes into them the breath of life, without which they
cannot exist. As it creates, so it may destroy. As it may destroy, it may abridge and
control. Unless there is some constitutional limitation on the right, the legislature
might, by a single act, and if we can suppose it capable of so great a folly and so
great a wrong, sweep from existence all of the municipal corporations in the state,
and the corporation could not prevent it. We know of no limitation on the right so far
as the corporation themselves are concerned. They are, so to phrase it, the mere
tenants at will of the legislature (citing Clinton vs. Ceder Rapids, etc. Railroad Co.,
24 Iowa 455).
Nothing in the present constitutional provision enhancing local autonomy dictates a different
conclusion.
The basic relationship between the national legislature and the local government
units has not been enfeebled by the new provisions in the Constitution strengthening
the policy of local autonomy. Without meaning to detract from that policy, we here
confirm that Congress retains control of the local government units although in
 significantly reduced degree now than under our previous Constitutions. The power
to create still includes the power to destroy. The power to grant still includes the
power to withhold or recall. True, there are certain notable innovations in the
Constitution, like the direct conferment on the local government units of the power to
tax (citing Art. X, Sec. 5, Constitution), which cannot now be withdrawn by mere
statute. By and large, however, the national legislature is still the principal of the
local government units, which cannot defy its will or modify or violate it.15
Ours is still a unitary form of government, not a federal state. Being so, any form of
autonomy granted to local governments will necessarily be limited and confined within the
extent allowed by the central authority. Besides, the principle of local autonomy under the
1987 Constitution simply means "decentralization". It does not make local governments
sovereign within the state or an "imperium in imperio".16
To conclude our resolution of the first issue, respondent mayor of San Pedro, cannot avail
of Kapasiyahan Bilang 508, Taon 1995, of the Provincial Board of Laguna as justification to
prohibit lotto in his municipality. For said resolution is nothing but an expression of the local
legislative unit concerned. The Board's enactment, like spring water, could not rise above its
source of power, the national legislature.
As for the second issue, we hold that petitioners erred in declaring that Sections 2 (c) and 27
of Republic Act 7160, otherwise known as the Local Government Code of 1991, apply
mandatorily in the setting up of lotto outlets around the country. These provisions state:
SECTION 2. Declaration of Policy. — . . .
(c) It is likewise the policy of the State to require all national agencies and offices to
conduct periodic consultations with appropriate local government units, non-
governmental and people's organizations, and other concerned sectors of the
community before any project or program is implemented in their respective
jurisdictions.
SECTION 27. Prior Consultations Required. — No project or program shall be
implemented by government authorities unless the consultations mentioned in
Section 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian
concerned is obtained; Provided, that occupants in areas where such projects are to
be implemented shall not be evicted unless, appropriate relocation sites have been
provided, in accordance with the provisions of the Constitution.
From a careful reading of said provisions, we find that these apply only to national programs
and/or projects which are to be implemented in a particular local community. Lotto is neither
a program nor a project of the national government, but of a charitable institution, the PCSO.
Though sanctioned by the national government, it is far fetched to say that lotto falls within
the contemplation of Sections 2 (c) and 27 of the Local Government Code.
Section 27 of the Code should be read in conjunction with Section 26 thereof. 17 Section 26
reads:
SECTION 26. Duty of National Government Agencies in the Maintenance of
Ecological Balance. - It shall be the duty of every national agency or government-
owned or controlled corporation authorizing or involved in the planning and
implementation of any project or program that may cause pollution, climatic change,
depletion of non-renewable resources, loss of crop land, range-land, or forest cover,
and extinction of animal or plant species, to consult with the local government units,
nongovernmental organizations, and other sectors concerned and explain the goals
and objectives of the project or program, its impact upon the people and the
community in terms of environmental or ecological balance, and the measures that
will be undertaken to prevent or minimize the adverse effects thereof.
Thus, the projects and programs mentioned in Section 27 should be interpreted to mean
projects and programs whose effects are among those enumerated in Section 26 and 27, to
wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3) may cause
the depletion of non-renewable resources; (4) may result in loss of crop land, range-land, or
forest cover; (5) may eradicate certain animal or plant species from the face of the planet;
and (6) other projects or programs that may call for the eviction of a particular group of
people residing in the locality where these will be implemented. Obviously, none of these
effects will be produced by the introduction of lotto in the province of Laguna.
Moreover, the argument regarding lack of consultation raised by petitioners is clearly an
afterthought on their part. There is no indication in the letter of Mayor Cataquiz that this was
one of the reasons for his refusal to issue a permit. That refusal was predicated solely but
erroneously on the provisions of Kapasiyahan Blg. 508, Taon 1995, of the Sangguniang
Panlalawigan of Laguna.
In sum, we find no reversible error in the RTC decision enjoining Mayor Cataquiz from
enforcing or implementing the Kapasiyahan Blg. 508, T. 1995, of the Sangguniang
Panlalawigan of Laguna. That resolution expresses merely a policy statement of the Laguna
provincial board. It possesses no binding legal force nor requires any act of implementation.
It provides no sufficient legal basis for respondent mayor's refusal to issue the permit sought
by private respondent in connection with a legitimate business activity authorized by a law
passed by Congress.
WHEREFORE, the petition is DENIED for lack of merit. The Order of the Regional Trial
Court of San Pedro, Laguna enjoining the petitioners from implementing or enforcing
Resolution or Kapasiyahan Blg. 508, T. 1995, of the Provincial Board of Laguna is hereby
AFFIRMED. No costs.
SO ORDERED.
Facts:
On December 29, 1995, respondent Tony Calvento was appointed agent by the Philippine
Charity Sweepstakes Office (PCSO) to install Terminal OM 20 for the operation of lotto. He
asked Mayor Calixto Cataquiz, Mayor of San Pedro, Laguna, for a mayor's permit to open
the lotto... outlet. This was denied by Mayor Cataquiz in a letter dated February 19,
1996. The ground for said denial was an ordinance passed by the Sangguniang
Panlalawigan of Laguna entitled Kapasiyahan Blg. 508, T. 1995 which was issued on
September 18,... 1995.
As a result of this resolution of denial, respondent Calvento filed a complaint for declaratory
relief with prayer for preliminary injunction and temporary restraining order. In the said
complaint, respondent Calvento asked the Regional Trial Court of San Pedro Laguna,...
Branch 93, for the following reliefs: (1) a preliminary injunction or temporary restraining order,
ordering the defendants to refrain from implementing or enforcing Kapasiyahan Blg. 508, T.
1995; (2) an order requiring Hon. Municipal Mayor Calixto R. Cataquiz to issue a... business
permit for the operation of a lotto outlet; and (3) an order annulling or declaring as invalid
Kapasiyahan Blg. 508, T. 1995.
Petitioners filed a motion for reconsideration which was subsequently denied in an Order
dated April 21, 1997
On May 23, 1997, petitioners filed this petition alleging that the following errors were
committed by the respondent trial court
Issues:
issues to be resolved now are the following: (1) whether Kapasiyahan Blg. 508, T. 1995 of
the Sangguniang Panlalawigan of Laguna and the denial of a mayor's permit based thereon
are valid; and (2) whether prior consultations and approval by the concerned
Sanggunian are needed before a lotto system can be operated in a given local government
unit.
Ruling:The Office of the Solicitor General (OSG), for the State, contends that the Provincial
Government of Laguna has no power to prohibit a form of gambling which has been
authorized by the national government.
As a policy statement expressing the local government's objection to the lotto, such
resolution is valid. This is part of the local government's autonomy to air its views which may
be contrary to that of the national government's. However, this freedom to exercise...
contrary views does not mean that local governments may actually enact ordinances that go
against laws duly enacted by Congress.
Municipal governments are only agents of the national government. Local councils exercise
only delegated legislative powers conferred upon them by Congress as the national
lawmaking body. The delegate cannot be superior to the principal or exercise powers...
higher than those of the latter.
respondent mayor of San Pedro, cannot avail of Kapasiyahan Bilang 508, Taon 1995, of the
Provincial Board of Laguna as justification to prohibit lotto in his municipality. For said
resolution is nothing but an expression of... the local legislative unit concerned. The Board's
enactment, like spring water, could not rise above its source of power, the national
legislature.
To conclude our resolution of the first issue, respondent mayor of San Pedro, cannot avail of
Kapasiyahan Bilang 508, Taon 1995, of the Provincial Board of Laguna as justification to
prohibit lotto in his municipality. For said resolution is nothing but an expression of... the local
legislative unit concerned. The Board's enactment, like spring water, could not rise above its
source of power, the national legislature
Lotto is neither a program nor a project of the national government, but of a charitable
institution,... the PCSO. Though sanctioned by the national government, it is far fetched to
say that lotto falls within the contemplation of Sections 2 (c) and 27 of the Local Government
Code.
That resolution expresses merely a policy statement of the Laguna... provincial board. It
possesses no binding legal force nor requires any act of implementation. It provides no
sufficient legal basis for respondent mayor's refusal to issue the permit sought by private
respondent in connection with a legitimate business activity authorized... by a law passed by
Congress.
Principles: