Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 100150 January 5, 1994

BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND GENEROSO

OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN DOES, respondents.

The City Attorney for petitioners.

The Solicitor General for public respondent.

VITUG, J.:

The extent of the authority and power of the Commission on Human Rights ("CHR") is again placed into
focus in this petition for prohibition, with prayer for a restraining order and preliminary injunction. The
petitioners ask us to prohibit public respondent CHR from further hearing and investigating CHR Case
No. 90-1580, entitled "Fermo, et al. vs. Quimpo, et al."

The case all started when a "Demolition Notice," dated 9 July 1990, signed by Carlos Quimpo (one of the
petitioners) in his capacity as an Executive Officer of the Quezon City Integrated Hawkers Management
Council under the Office of the City Mayor, was sent to, and received by, the private respondents (being
the officers and members of the North EDSA Vendors Association, Incorporated). In said notice, the
respondents were given a grace-period of three (3) days (up to 12 July 1990) within which to vacate the
questioned premises of North EDSA.1 Prior to their receipt of the demolition notice, the private
respondents were informed by petitioner Quimpo that their stalls should be removed to give way to the
"People's Park".2 On 12 July 1990, the group, led by their President Roque Fermo, filed a letter-complaint
(Pinag-samang Sinumpaang Salaysay) with the CHR against the petitioners, asking the late CHR
Chairman Mary Concepcion Bautista for a letter to be addressed to then Mayor Brigido Simon, Jr., of
Quezon City to stop the demolition of the private respondents' stalls, sari-sari stores, and carinderia along
North EDSA. The complaint was docketed as CHR Case No. 90-1580.3 On 23 July 1990, the CHR issued
an Order, directing the petitioners "to desist from demolishing the stalls and shanties at North EDSA
pending resolution of the vendors/squatters' complaint before the Commission" and ordering said
petitioners to appear before the CHR.4

On the basis of the sworn statements submitted by the private respondents on 31 July 1990, as well as
CHR's own ocular inspection, and convinced that on 28 July 1990 the petitioners carried out the
demolition of private respondents' stalls, sari-sari stores and carinderia,5 the CHR, in its resolution of 1
August 1990, ordered the disbursement of financial assistance of not more than P200,000.00 in favor of
the private respondents to purchase light housing materials and food under the Commission's supervision
and again directed the petitioners to "desist from further demolition, with the warning that violation of said
order would lead to a citation for contempt and arrest."6
A motion to dismiss,7 dated 10 September 1990, questioned CHR's jurisdiction. The motion also averred,
among other things, that:

1. this case came about due to the alleged violation by the (petitioners) of the Inter-
Agency Memorandum of Agreement whereby Metro-Manila Mayors agreed on a
moratorium in the demolition of the dwellings of poor dwellers in Metro-Manila;

xxx xxx xxx

3. . . . , a perusal of the said Agreement (revealed) that the moratorium referred to therein
refers to moratorium in the demolition of the structures of poor dwellers;

4. that the complainants in this case (were) not poor dwellers but independent business
entrepreneurs even this Honorable Office admitted in its resolution of 1 August 1990 that
the complainants are indeed, vendors;

5. that the complainants (were) occupying government land, particularly the sidewalk of
EDSA corner North Avenue, Quezon City; . . . and

6. that the City Mayor of Quezon City (had) the sole and exclusive discretion and
authority whether or not a certain business establishment (should) be allowed to operate
within the jurisdiction of Quezon City, to revoke or cancel a permit, if already issued, upon
grounds clearly specified by law and ordinance.8

During the 12 September 1990 hearing, the petitioners moved for postponement, arguing that the motion
to dismiss set for 21 September 1990 had yet to be resolved. The petitioners likewise manifested that
they would bring the case to the courts.

On 18 September 1990 a supplemental motion to dismiss was filed by the petitioners, stating that the
Commission's authority should be understood as being confined only to the investigation of violations of
civil and political rights, and that "the rights allegedly violated in this case (were) not civil and political
rights, (but) their privilege to engage in business."9

On 21 September 1990, the motion to dismiss was heard and submitted for resolution, along with the
contempt charge that had meantime been filed by the private respondents, albeit vigorously objected to
by petitioners (on the ground that the motion to dismiss was still then unresolved). 10

In an Order,11 dated 25 September 1990, the CHR cited the petitioners in contempt for carrying out the
demolition of the stalls, sari-sari stores and carinderia despite the "order to desist", and it imposed a fine
of P500.00 on each of them.

On 1 March 1991,12 the CHR issued an Order, denying petitioners' motion to dismiss and supplemental
motion to dismiss, in this wise:

Clearly, the Commission on Human Rights under its constitutional mandate had
jurisdiction over the complaint filed by the squatters-vendors who complained of the gross
violations of their human and constitutional rights. The motion to dismiss should be and is
hereby DENIED for lack of merit.13

The CHR opined that "it was not the intention of the (Constitutional) Commission to create only a paper
tiger limited only to investigating civil and political rights, but it (should) be (considered) a quasi-judicial
body with the power to provide appropriate legal measures for the protection of human rights of all
persons within the Philippines . . . ." It added:
 The right to earn a living is a right essential to one's right to development, to life and to
dignity. All these brazenly and violently ignored and trampled upon by respondents with
little regard at the same time for the basic rights of women and children, and their health,
safety and welfare. Their actions have psychologically scarred and traumatized the
children, who were witness and exposed to such a violent demonstration of Man's
inhumanity to man.

In an Order,14 dated 25 April 1991, petitioners' motion for reconsideration was denied.

Hence, this recourse.

The petition was initially dismissed in our resolution15 of 25 June 1991; it was subsequently reinstated,
however, in our resolution16 of 18 June 1991, in which we also issued a temporary restraining order,
directing the CHR to "CEASE and DESIST from further hearing CHR No. 90-1580."17

The petitioners pose the following:

Whether or not the public respondent has jurisdiction:

a) to investigate the alleged violations of the "business rights" of the private respondents whose stalls
were demolished by the petitioners at the instance and authority given by the Mayor of Quezon City;

b) to impose the fine of P500.00 each on the petitioners; and

c) to disburse the amount of P200,000.00 as financial aid to the vendors affected by the demolition.

In the Court's resolution of 10 October 1991, the Solicitor-General was excused from filing his comment
for public respondent CHR. The latter thus filed its own comment,18 through Hon. Samuel Soriano, one of
its Commissioners. The Court also resolved to dispense with the comment of private respondent Roque
Fermo, who had since failed to comply with the resolution, dated 18 July 1991, requiring such comment.

The petition has merit.

The Commission on Human Rights was created by the 1987

Constitution.19 It was formally constituted by then President Corazon Aquino via Executive Order No.
163,20 issued on 5 May 1987, in the exercise of her legislative power at the time. It succeeded, but so
superseded as well, the Presidential Committee on Human Rights.21

The powers and functions22 of the Commission are defined by the 1987 Constitution, thus: to —

(1) Investigate, on its own or on complaint by any party, all forms of human rights
violations involving civil and political rights;

(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for
violations thereof in accordance with the Rules of Court;

(3) Provide appropriate legal measures for the protection of human rights of all persons
within the Philippines, as well as Filipinos residing abroad, and provide for preventive
measures and legal aid services to the underprivileged whose human rights have been
violated or need protection;

(4) Exercise visitorial powers over jails, prisons, or detention facilities;

 (5) Establish a continuing program of research, education, and information to enhance
respect for the primacy of human rights;

(6) Recommend to the Congress effective measures to promote human rights and to
provide for compensation to victims of violations of human rights, or their families;

(7) Monitor the Philippine Government's compliance with international treaty obligations
on human rights;

(8) Grant immunity from prosecution to any person whose testimony or whose
possession of documents or other evidence is necessary or convenient to determine the
truth in any investigation conducted by it or under its authority;

(9) Request the assistance of any department, bureau, office, or agency in the
performance of its functions;

(10) Appoint its officers and employees in accordance with law; and

(11) Perform such other duties and functions as may be provided by law.

In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR theorizes that the intention
of the members of the Constitutional Commission is to make CHR a quasi-judicial body.23 This view,
however, has not heretofore been shared by this Court. In Cariño v. Commission on Human Rights,24 the
Court, through then Associate Justice, now Chief Justice Andres Narvasa, has observed that it is "only
the first of the enumerated powers and functions that bears any resemblance to adjudication or
adjudgment," but that resemblance can in no way be synonymous to the adjudicatory power itself. The
Court explained:

. . . (T)he Commission on Human Rights . . . was not meant by the fundamental law to be
another court or quasi-judicial agency in this country, or duplicate much less take over
the functions of the latter.

The most that may be conceded to the Commission in the way of adjudicative power is
that it may investigate, i.e., receive evidence and make findings of fact as regards
claimed human rights violations involving civil and political rights. But fact finding is not
adjudication, and cannot be likened to the judicial function of a court of justice, or even a
quasi-judicial agency or official. The function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a judicial function, properly speaking. To be
considered such, the faculty of receiving evidence and making factual conclusions in a
controversy must be accompanied by the authority of applying the law to those factual
conclusions to the end that the controversy may be decided or determined authoritatively,
finally and definitively, subject to such appeals or modes of review as may be provided by
law. This function, to repeat, the Commission does not have.

After thus laying down at the outset the above rule, we now proceed to the other kernel of this
controversy and, its is, to determine the extent of CHR's investigative power.

It can hardly be disputed that the phrase "human rights" is so generic a term that any attempt to define it,
albeit not a few have tried, could at best be described as inconclusive. Let us observe. In a symposium on
human rights in the Philippines, sponsored by the University of the Philippines in 1977, one of the
questions that has been propounded is "(w)hat do you understand by "human rights?" The participants,
representing different sectors of the society, have given the following varied answers:
 Human rights are the basic rights which inhere in man by virtue of his humanity. They are
the same in all parts of the world, whether the Philippines or England, Kenya or the
Soviet Union, the United States or Japan, Kenya or Indonesia . . . .

Human rights include civil rights, such as the right to life, liberty, and property; freedom of
speech, of the press, of religion, academic freedom, and the rights of the accused to due
process of law; political rights, such as the right to elect public officials, to be elected to
public office, and to form political associations and engage in politics; and social rights,
such as the right to an education, employment, and social services.25

Human rights are the entitlement that inhere in the individual person from the sheer fact
of his humanity. . . . Because they are inherent, human rights are not granted by the
State but can only be recognized and protected by it.26

(Human rights include all) the civil, political, economic, social, and cultural rights defined
in the Universal Declaration of Human Rights.27

Human rights are rights that pertain to man simply because he is human. They are part of
his natural birth, right, innate and inalienable.28

The Universal Declaration of Human Rights, as well as, or more specifically, the International Covenant
on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights,
suggests that the scope of human rights can be understood to include those that relate to an individual's
social, economic, cultural, political and civil relations. It thus seems to closely identify the term to the
universally accepted traits and attributes of an individual, along with what is generally considered to be
his inherent and inalienable rights, encompassing almost all aspects of life.

Have these broad concepts been equally contemplated by the framers of our 1986 Constitutional
Commission in adopting the specific provisions on human rights and in creating an independent
commission to safeguard these rights? It may of value to look back at the country's experience under the
martial law regime which may have, in fact, impelled the inclusions of those provisions in our fundamental
law. Many voices have been heard. Among those voices, aptly represented perhaps of the sentiments
expressed by others, comes from Mr. Justice J.B.L. Reyes, a respected jurist and an advocate of civil
liberties, who, in his paper, entitled "Present State of Human Rights in the Philippines,"29 observes:

But while the Constitution of 1935 and that of 1973 enshrined in their Bill of Rights most
of the human rights expressed in the International Covenant, these rights became
unavailable upon the proclamation of Martial Law on 21 September 1972. Arbitrary action
then became the rule. Individuals by the thousands became subject to arrest upon
suspicion, and were detained and held for indefinite periods, sometimes for years,
without charges, until ordered released by the Commander-in-Chief or this
representative. The right to petition for the redress of grievances became useless, since
group actions were forbidden. So were strikes. Press and other mass media were
subjected to censorship and short term licensing. Martial law brought with it the
suspension of the writ of habeas corpus, and judges lost independence and security of
tenure, except members of the Supreme Court. They were required to submit letters of
resignation and were dismissed upon the acceptance thereof. Torture to extort
confessions were practiced as declared by international bodies like Amnesty International
and the International Commission of Jurists.

Converging our attention to the records of the Constitutional Commission, we can see the following
discussions during its 26 August 1986 deliberations:
MR. GARCIA . . . , the primacy of its (CHR) task must be made clear in view of the
importance of human rights and also because civil and political rights have been
determined by many international covenants and human rights legislations in the
Philippines, as well as the Constitution, specifically the Bill of Rights and subsequent
legislation. Otherwise, if we cover such a wide territory in area, we might diffuse its
impact and the precise nature of its task, hence, its effectivity would also be curtailed.

So, it is important to delienate the parameters of its tasks so that the commission can be
most effective.

MR. BENGZON. That is precisely my difficulty because civil and political rights are very
broad. The Article on the Bill of Rights covers civil and political rights. Every single right of
an individual involves his civil right or his political right. So, where do we draw the line?

MR. GARCIA. Actually, these civil and political rights have been made clear in the
language of human rights advocates, as well as in the Universal Declaration of Human
Rights which addresses a number of articles on the right to life, the right against torture,
the right to fair and public hearing, and so on. These are very specific rights that are
considered enshrined in many international documents and legal instruments as
constituting civil and political rights, and these are precisely what we want to defend here.

MR. BENGZON. So, would the commissioner say civil and political rights as defined in
the Universal Declaration of Human Rights?

MR. GARCIA. Yes, and as I have mentioned, the International Covenant of Civil and
Political Rights distinguished this right against torture.

MR. BENGZON. So as to distinguish this from the other rights that we have?

MR. GARCIA. Yes, because the other rights will encompass social and economic rights,
and there are other violations of rights of citizens which can be addressed to the proper
courts and authorities.

xxx xxx xxx

MR. BENGZON. So, we will authorize the commission to define its functions, and,
therefore, in doing that the commission will be authorized to take under its wings cases
which perhaps heretofore or at this moment are under the jurisdiction of the ordinary
investigative and prosecutorial agencies of the government. Am I correct?

MR. GARCIA. No. We have already mentioned earlier that we would like to define the
specific parameters which cover civil and political rights as covered by the international
standards governing the behavior of governments regarding the particular political and
civil rights of citizens, especially of political detainees or prisoners. This particular aspect
we have experienced during martial law which we would now like to safeguard.

MR. BENGZON. Then, I go back to that question that I had. Therefore, what we are really
trying to say is, perhaps, at the proper time we could specify all those rights stated in the
Universal Declaration of Human Rights and defined as human rights. Those are the rights
that we envision here?

MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of our
Constitution. They are integral parts of that.
MR. BENGZON. Therefore, is the Gentleman saying that all the rights under the Bill of
Rights covered by human rights?

MR. GARCIA. No, only those that pertain to civil and political rights.

xxx xxx xxx

MR. RAMA. In connection with the discussion on the scope of human rights, I would like
to state that in the past regime, everytime we invoke the violation of human rights, the
Marcos regime came out with the defense that, as a matter of fact, they had defended the
rights of people to decent living, food, decent housing and a life consistent with human
dignity.

So, I think we should really limit the definition of human rights to political rights. Is that the
sense of the committee, so as not to confuse the issue?

MR. SARMIENTO. Yes, Madam President.

MR. GARCIA. I would like to continue and respond also to repeated points raised by the
previous speaker.

There are actually six areas where this Commission on Human Rights could act
effectively: 1) protection of rights of political detainees; 2) treatment of prisoners and the
prevention of tortures; 3) fair and public trials; 4) cases of disappearances; 5) salvagings
and hamletting; and 6) other crimes committed against the religious.

xxx xxx xxx

The PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Thank You Madam President.

I would like to start by saying that I agree with Commissioner Garcia that we should, in
order to make the proposed Commission more effective, delimit as much as possible,
without prejudice to future expansion. The coverage of the concept and jurisdictional area
of the term "human rights". I was actually disturbed this morning when the reference was
made without qualification to the rights embodied in the universal Declaration of Human
Rights, although later on, this was qualified to refer to civil and political rights contained
therein.

If I remember correctly, Madam President, Commissioner Garcia, after mentioning the

Universal Declaration of Human Rights of 1948, mentioned or linked the concept of
human right with other human rights specified in other convention which I do not
remember. Am I correct?

MR. GARCIA. Is Commissioner Guingona referring to the Declaration of Torture of 1985?

MR. GUINGONA. I do not know, but the commissioner mentioned another.

MR. GARCIA. Madam President, the other one is the International Convention on Civil
and Political Rights of which we are signatory.
MR. GUINGONA. I see. The only problem is that, although I have a copy of the Universal
Declaration of Human Rights here, I do not have a copy of the other covenant mentioned.
It is quite possible that there are rights specified in that other convention which may not
be specified here. I was wondering whether it would be wise to link our concept of human
rights to general terms like "convention," rather than specify the rights contained in the
convention.

As far as the Universal Declaration of Human Rights is concerned, the Committee, before
the period of amendments, could specify to us which of these articles in the Declaration
will fall within the concept of civil and political rights, not for the purpose of including these
in the proposed constitutional article, but to give the sense of the Commission as to what
human rights would be included, without prejudice to expansion later on, if the need
arises. For example, there was no definite reply to the question of Commissioner
Regalado as to whether the right to marry would be considered a civil or a social right. It
is not a civil right?

MR. GARCIA. Madam President, I have to repeat the various specific civil and political
rights that we felt must be envisioned initially by this provision — freedom from political
detention and arrest prevention of torture, right to fair and public trials, as well as crimes
involving disappearance, salvagings, hamlettings and collective violations. So, it is limited
to politically related crimes precisely to protect the civil and political rights of a specific
group of individuals, and therefore, we are not opening it up to all of the definite areas.

MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no longer
linking his concept or the concept of the Committee on Human Rights with the so-called
civil or political rights as contained in the Universal Declaration of Human Rights.

MR. GARCIA. When I mentioned earlier the Universal Declaration of Human Rights, I
was referring to an international instrument.

MR. GUINGONA. I know.

MR. GARCIA. But it does not mean that we will refer to each and every specific article
therein, but only to those that pertain to the civil and politically related, as we understand
it in this Commission on Human Rights.

MR. GUINGONA. Madam President, I am not even clear as to the distinction between
civil and social rights.

MR. GARCIA. There are two international covenants: the International Covenant and
Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights. The second covenant contains all the different rights-the rights of labor to
organize, the right to education, housing, shelter, et cetera.

MR. GUINGONA. So we are just limiting at the moment the sense of the committee to
those that the Gentlemen has specified.

MR. GARCIA. Yes, to civil and political rights.

MR. GUINGONA. Thank you.

xxx xxx xxx

 SR. TAN. Madam President, from the standpoint of the victims of human rights, I cannot
stress more on how much we need a Commission on Human Rights. . . .

. . . human rights victims are usually penniless. They cannot pay and very few lawyers
will accept clients who do not pay. And so, they are the ones more abused and
oppressed. Another reason is, the cases involved are very delicate — torture, salvaging,
picking up without any warrant of arrest, massacre — and the persons who are allegedly
guilty are people in power like politicians, men in the military and big shots. Therefore,
this Human Rights Commission must be independent.

I would like very much to emphasize how much we need this commission, especially for
the little Filipino, the little individual who needs this kind of help and cannot get it. And I
think we should concentrate only on civil and political violations because if we open this
to land, housing and health, we will have no place to go again and we will not receive any
response. . . .30 (emphasis supplied)

The final outcome, now written as Section 18, Article XIII, of the 1987 Constitution, is a provision
empowering the Commission on Human Rights to "investigate, on its own or on complaint by any party,
all forms of human rights violations involving civil and political rights" (Sec. 1).

The term "civil rights,"31 has been defined as referring —

(t)o those (rights) that belong to every citizen of the state or country, or, in wider sense, to
all its inhabitants, and are not connected with the organization or administration of the
government. They include the rights of property, marriage, equal protection of the laws,
freedom of contract, etc. Or, as otherwise defined civil rights are rights appertaining to a
person by virtue of his citizenship in a state or community. Such term may also refer, in
its general sense, to rights capable of being enforced or redressed in a civil action.

Also quite often mentioned are the guarantees against involuntary servitude, religious persecution,
unreasonable searches and seizures, and imprisonment for debt.32

Political rights,33 on the other hand, are said to refer to the right to participate, directly or indirectly, in the
establishment or administration of government, the right of suffrage, the right to hold public office, the
right of petition and, in general, the rights appurtenant to citizenship vis-a-vis the management of
government.34

Recalling the deliberations of the Constitutional Commission, aforequoted, it is readily apparent that the
delegates envisioned a Commission on Human Rights that would focus its attention to the more severe
cases of human rights violations. Delegate Garcia, for instance, mentioned such areas as the "(1)
protection of rights of political detainees, (2) treatment of prisoners and the prevention of tortures, (3) fair
and public trials, (4) cases of disappearances, (5) salvagings and hamletting, and (6) other crimes
committed against the religious." While the enumeration has not likely been meant to have any preclusive
effect, more than just expressing a statement of priority, it is, nonetheless, significant for the tone it has
set. In any event, the delegates did not apparently take comfort in peremptorily making a conclusive
delineation of the CHR's scope of investigatorial jurisdiction. They have thus seen it fit to resolve, instead,
that "Congress may provide for other cases of violations of human rights that should fall within the
authority of the Commission, taking into account its recommendation."35

In the particular case at hand, there is no cavil that what are sought to be demolished are the stalls, sari-
sari stores and carinderia, as well as temporary shanties, erected by private respondents on a land which
is planned to be developed into a "People's Park". More than that, the land adjoins the North EDSA of
Quezon City which, this Court can take judicial notice of, is a busy national highway. The consequent
danger to life and limb is not thus to be likewise simply ignored. It is indeed paradoxical that a right which
is claimed to have been violated is one that cannot, in the first place, even be invoked, if it is, in fact,
extant. Be that as it may, looking at the standards hereinabove discoursed vis-a-vis the circumstances
obtaining in this instance, we are not prepared to conclude that the order for the demolition of the
stalls, sari-sari stores and carinderia of the private respondents can fall within the compartment of "human
rights violations involving civil and political rights" intended by the Constitution.

On its contempt powers, the CHR is constitutionally authorized to "adopt its operational guidelines and
rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court."
Accordingly, the CHR acted within its authority in providing in its revised rules, its power "to cite or hold
any person in direct or indirect contempt, and to impose the appropriate penalties in accordance with the
procedure and sanctions provided for in the Rules of Court." That power to cite for contempt, however,
should be understood to apply only to violations of its adopted operational guidelines and rules of
procedure essential to carry out its investigatorial powers. To exemplify, the power to cite for contempt
could be exercised against persons who refuse to cooperate with the said body, or who unduly withhold
relevant information, or who decline to honor summons, and the like, in pursuing its investigative work.
The "order to desist" (a semantic interplay for a restraining order) in the instance before us, however, is
not investigatorial in character but prescinds from an adjudicative power that it does not possess.
In Export Processing Zone Authority vs. Commission on Human Rights,36 the Court, speaking through
Madame Justice Carolina Griño-Aquino, explained:

The constitutional provision directing the CHR to "provide for preventive measures and
legal aid services to the underprivileged whose human rights have been violated or need
protection" may not be construed to confer jurisdiction on the Commission to issue a
restraining order or writ of injunction for, it that were the intention, the Constitution would
have expressly said so. "Jurisdiction is conferred only by the Constitution or by law". It is
never derived by implication.

Evidently, the "preventive measures and legal aid services" mentioned in the Constitution
refer to extrajudicial and judicial remedies (including a writ of preliminary injunction) which
the CHR may seek from proper courts on behalf of the victims of human rights violations.
Not being a court of justice, the CHR itself has no jurisdiction to issue the writ, for a writ of
preliminary injunction may only be issued "by the judge of any court in which the action is
pending [within his district], or by a Justice of the Court of Appeals, or of the Supreme
Court. . . . A writ of preliminary injunction is an ancillary remedy. It is available only in a
pending principal action, for the preservation or protection of the rights and interests of a
party thereto, and for no other purpose." (footnotes omitted).

The Commission does have legal standing to indorse, for appropriate action, its findings and
recommendations to any appropriate agency of government.37

The challenge on the CHR's disbursement of the amount of P200,000.00 by way of financial aid to the
vendors affected by the demolition is not an appropriate issue in the instant petition. Not only is there lack
of locus standi on the part of the petitioners to question the disbursement but, more importantly, the
matter lies with the appropriate administrative agencies concerned to initially consider.

The public respondent explains that this petition for prohibition filed by the petitioners has become moot
and academic since the case before it (CHR Case No. 90-1580) has already been fully heard, and that
the matter is merely awaiting final resolution. It is true that prohibition is a preventive remedy to restrain
the doing of an act about to be done, and not intended to provide a remedy for an act already
accomplished. 38 Here, however, said Commission admittedly has yet to promulgate its resolution in CHR
Case No. 90-1580. The instant petition has been intended, among other things, to also prevent CHR from
precisely doing that.39
WHEREFORE, the writ prayed for in this petition is GRANTED. The Commission on Human Rights is
hereby prohibited from further proceeding with CHR Case No. 90-1580 and from implementing the
P500.00 fine for contempt. The temporary restraining order heretofore issued by this Court is made
permanent. No costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-2662 March 26, 1949

SHIGENORI KURODA, petitioner,

vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO
TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO
ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents.

Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.

Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey for
respondents.

MORAN, C.J.:

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in The Philippines during a period covering 19433 and 19444
who is now charged before a military Commission convened by the Chief of Staff of the Armed forces of
the Philippines with having unlawfully disregarded and failed "to discharge his duties as such command,
permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and
prisoners of the Imperial Japanese Forces in violation of the laws and customs of war" — comes before
this Court seeking to establish the illegality of Executive Order No. 68 of the President of the Philippines:
to enjoin and prohibit respondents Melville S. Hussey and Robert Port from participating in the
prosecution of petitioner's case before the Military Commission and to permanently prohibit respondents
from proceeding with the case of petitioners.

In support of his case petitioner tenders the following principal arguments.

First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of our
constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a signatory
nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and therefore
petitioners is charged of 'crimes' not based on law, national and international." Hence petitioner argues —
"That in view off the fact that this commission has been empanelled by virtue of an unconstitutional law an
illegal order this commission is without jurisdiction to try herein petitioner."

Second. — That the participation in the prosecution of the case against petitioner before the Commission
in behalf of the United State of America of attorneys Melville Hussey and Robert Port who are not
attorneys authorized by the Supreme Court to practice law in the Philippines is a diminution of our
personality as an independent state and their appointment as prosecutor are a violation of our
Constitution for the reason that they are not qualified to practice law in the Philippines.

Third. — That Attorneys Hussey and Port have no personality as prosecution the United State not being a
party in interest in the case.

Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation
governing the trial of accused war criminals, was issued by the President of the Philippines on the 29th
days of July, 1947 This Court holds that this order is valid and constitutional. Article 2 of our Constitution
provides in its section 3, that —
 The Philippines renounces war as an instrument of national policy and adopts the generally
accepted principles of international law as part of the of the nation.

In accordance with the generally accepted principle of international law of the present day including the
Hague Convention the Geneva Convention and significant precedents of international jurisprudence
established by the United Nation all those person military or civilian who have been guilty of planning
preparing or waging a war of aggression and of the commission of crimes and offenses consequential
and incidental thereto in violation of the laws and customs of war, of humanity and civilization are held
accountable therefor. Consequently in the promulgation and enforcement of Execution Order No. 68 the
President of the Philippines has acted in conformity with the generally accepted and policies of
international law which are part of the our Constitution.

The promulgation of said executive order is an exercise by the President of his power as Commander in
chief of all our armed forces as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off.
Gaz., 664) 1 when we said —

War is not ended simply because hostilities have ceased. After cessation of armed hostilities
incident of war may remain pending which should be disposed of as in time of war. An importance
incident to a conduct of war is the adoption of measure by the military command not only to repel
and defeat the enemies but to seize and subject to disciplinary measure those enemies who in
their attempt to thwart or impede our military effort have violated the law of war. (Ex parte Quirin
317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a military commission for the trial and
punishment of war criminals is an aspect of waging war. And in the language of a writer a military
commission has jurisdiction so long as a technical state of war continues. This includes the period
of an armistice or military occupation up to the effective of a treaty of peace and may extend
beyond by treaty agreement. (Cowles Trial of War Criminals by Military Tribunals, America Bar
Association Journal June, 1944.)

Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished
aspect of war namely the trial and punishment of war criminal through the issuance and enforcement of
Executive Order No. 68.

Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts
committed in violation of the Hague Convention and the Geneva Convention because the Philippines is
not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and
regulation of the Hague and Geneva conventions form, part of and are wholly based on the generally
accepted principals of international law. In facts these rules and principles were accepted by the two
belligerent nation the United State and Japan who were signatories to the two Convention, Such rule and
principles therefore form part of the law of our nation even if the Philippines was not a signatory to the
conventions embodying them for our Constitution has been deliberately general and extensive in its
scope and is not confined to the recognition of rule and principle of international law as continued inn
treaties to which our government may have been or shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was
under the sovereignty of United States and thus we were equally bound together with the United States
and with Japan to the right and obligation contained in the treaties between the belligerent countries.
These rights and obligation were not erased by our assumption of full sovereignty. If at all our emergency
as a free state entitles us to enforce the right on our own of trying and punishing those who committed
crimes against crimes against our people. In this connection it is well to remember what we have said in
the case of Laurel vs. Misa (76 Phil., 372):

. . . The change of our form government from Commonwealth to Republic does not affect the
prosecution of those charged with the crime of treason committed during then Commonwealth
because it is an offense against the same sovereign people. . . .
By the same token war crimes committed against our people and our government while we were a
Commonwealth are triable and punishable by our present Republic.

Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert
Port in the prosecution of his case on the ground that said attorney's are not qualified to practice law in
Philippines in accordance with our Rules of court and the appointment of said attorneys as prosecutors is
violative of our national sovereignty.

In the first place respondent Military Commission is a special military tribunal governed by a special law
and not by the Rules of court which govern ordinary civil court. It has already been shown that Executive
Order No. 68 which provides for the organization of such military commission is a valid and constitutional
law. There is nothing in said executive order which requires that counsel appearing before said
commission must be attorneys qualified to practice law in the Philippines in accordance with the Rules of
Court. In facts it is common in military tribunals that counsel for the parties are usually military personnel
who are neither attorneys nor even possessed of legal training.

Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is
only fair and proper that United States, which has submitted the vindication of crimes against her
government and her people to a tribunal of our nation should be allowed representation in the trial of
those very crimes. If there has been any relinquishment of sovereignty it has not been by our government
but by the United State Government which has yielded to us the trial and punishment of her enemies. The
least that we could do in the spirit of comity is to allow them representation in said trials.

Alleging that the United State is not a party in interest in the case petitioner challenges the personality of
attorneys Hussey and Port as prosecutors. It is of common knowledge that the United State and its
people have been equally if not more greatly aggrieved by the crimes with which petitioner stands
charged before the Military Commission. It can be considered a privilege for our Republic that a leader
nation should submit the vindication of the honor of its citizens and its government to a military tribunal of
our country.

The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes
charged which fall under the provisions of Executive Order No. 68, and having said petitioner in its
custody, this Court will not interfere with the due process of such Military commission.

For all the foregoing the petition is denied with costs de oficio.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-4254 September 26, 1951

BORIS MEJOFF, petitioner,

vs.
THE DIRECTOR OF PRISONS, respondent.

Ambrosio T. Dollete for petitioner.

First Assistant Solicitor General Roberto A. Gianson and Solicitor Florencio Villamor for respondents.

TUASON, J.:

This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a decision of
this Court of July 30, 1949. The history of the petitioner's detention was thus briefly set forth in that
decision, written by Mr. Justice Bengzon:

The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country from
Shanghai as a secret operative by the Japanese forces during the latter's regime in these Islands.
Upon liberation he was arrested as a Japanese spy, by U.S. Army Counter Intelligence Corps.
Later he was handed to theCommonwealth Government for disposition in accordance with
Commonwealth Act No. 682. Thereafter, the People's Court ordered his release. But the
deportation Board taking his case up, found that having no travel documents Mejoff was illegally
in this country, and consequently referred the matter to the immigration authorities. After the
corresponding investigation, the Board of commissioners of Immigration on April 5, 1948,
declared that Mejoff had entered the Philippines illegally in 1944, without inspection and
admission by the immigration officials at a designation port of entry and, therefore, it ordered that
he be deported on the first available transportation to Russia. The petitioner was then under
custody, he having been arrested on March 18, 1948. In May 1948 he was transferred to the
Cebu Provincial Jail together with three other Russians to await the arrival of some Russian
vessels. In July and August of that year two boats of Russian nationality called at the Cebu Port.
But their masters refused to take petitioner and his companions alleging lack of authority to do so.
In October 1948 after repeated failures to ship this deportee abroad, the authorities removed him
to Bilibid Prison at Muntinglupa where he has been confined up to the present time, inasmuch as
the Commissioner of Immigration believes it is for the best interests of the country to keep him
under detention while arrangements for his departure are being made.

The Court held the petitioner's detention temporary and said that "temporary detention is a necessary
step in the process of exclusion or expulsion of undesirable aliens and that pending arrangements for his
deportation, the Government has the right to hold the undesirable alien under confinement for a
reasonable lenght of time." It took note of the fact, manifested by the Solicitor General's representative in
the course of the of the oral argumment, that "this Government desires to expel the alien, and does not
relish keeping him at the people's expense . . . making efforts to carry out the decree of exclusion by the
highest officer of the land." No period was fixed within which the immigration authorities should carry out
the contemplated deportation beyond the statement that "The meaning of 'reasonable time' depends upon
the circumstances, specially the difficulties of obtaining a passport, the availability of transportation, the
diplomatic arrangements with the governments concerned and the efforts displayed to send the deportee
away;" but the Court warned that "under established precedents, too long a detention may justify the
issuance of a writ of habeas corpus."
Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the writer of this
decision dissented. Mr. Justice Feria and Mr. Justice Perfecto voted for outright discharge of the prisoner
from custody. Mr. Justice Paras qualified his dissent by stating that he might agree "to further detention of
the herein petitioner, provided that he be released if after six months, the Government is still unable to
deport him." This writer joined in the latter dissent but thought that two months constituted reasonable
time.

Over two years having elapsed since the decision aforesaid was promulgated, the Government has not
found way and means of removing the petitioner out of the country, and none are in sight, although it
should be said in justice to the deportation authorities, it was through no fault of theirs that no ship or
country would take the petitioner.

Aliens illegally staying in the Philippines have no right of asylum therein (Sowapadji vs. Wixon, Sept. 18,
1946, 157 F. ed., 289, 290), even if they are "stateless," which the petitioner claims to be. It is no less true
however, as impliedly stated in this Court's decision, supra, that foreign nationals, not enemy against
whom no charge has been made other than that their permission to stay has expired, may not indefinitely
be kept in detention. The protection against deprivation of liberty without due process of law and except
for crimes committed against the laws of the land is not limited to Philippine citizens but extends to all
residents, except enemy aliens, regardless of nationality. Whether an alien who entered the country in
violation of its immigration laws may be detained for as long as the Government is unable to deport him,
is a point we need not decide. The petitioner's entry into the Philippines was not unlawful; he was brought
by the armed and belligerent forces of a de facto government whose decrees were law furing the
occupation.

Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted principles of
international law as part of the law of Nation." And in a resolution entitled "Universal Declaration of
Human Rights" and approved by the General Assembly of the United Nations of which the Philippines is a
member, at its plenary meeting on December 10, 1948, the right to life and liberty and all other
fundamental rights as applied to all human beings were proclaimed. It was there resolved that "All human
beings are born free and equal in degree and rights" (Art. 1); that "Everyone is entitled to all the rights and
freedom set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, nationality or social origin, property, birth, or other status" (Art. 2): that
"Every one has the right to an effective remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the Constitution or by law" (Art. 8); that "No one shall be subjected to
arbitrary arrest, detention or exile" (Art. 9); etc.

In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to release from custody
an alien who has been detained an unreasonably long period of time by the Department of Justice after it
has become apparent that although a warrant for his deportation has been issued, the warrant can not be
effectuated;" that "the theory on which the court is given the power to act is that the warrant of
deportation, not having been able to be executed, is functus officio and the alien is being held without any
authority of law." The decision cited several cases which, it said, settled the matter definitely in that
jurisdiction, adding that the same result had reached in innumerable cases elsewhere. The cases referred
to were United States ex rel. Ross vs. Wallis, 2 Cir. 279 F. 401, 404; Caranica vs. Nagle, 9 Cir., 28 F. 2d
955; Saksagansky vs. Weedin, 9 Cir., 53 F. 2d 13, 16 last paragraph; Ex parte Matthews, D.C.W.D.
Wash., 277 F. 857; Moraitis vs. Delany, D.C. Md. Aug. 28, 1942, 46 F. Supp. 425.

The most recent case, as far as we have been able to find, was that of Staniszewski vs. Watkins (1948),
90 Fed. Supp., 132, which is nearly foursquare with the case at hand. In that case a stateless person,
formerly a Polish national, resident in the United States since 1911 and many times serving as a seaman
on American vessels both in peace and in war, was ordered excluded from the United States and
detained at Ellis Island at the expense of the steamship company, when he returned from a voyage on
which he had shipped from New York for one or more European ports and return to the United States.
The grounds for his exclusion were that he had no passport or immigration visa, and that in 1937 had
been convicted of perjury because in certain documents he presented himself to be an American citizen.
Upon his application for release on habeas corpus, the Court released him upon his own recognizance.
Judge Leibell, of the United States District Court for the Southern District of New York, said in part:

When the return to the writ of habeas corpus came before this court, I suggested that all
interested parties . . . make an effort to arrange to have the petitioner ship out of some country
that he would receive him as a resident. He is, a native-born Pole but the Polish Consul has
advised him in writing that he is no longer a Polish subject. This Government does not claim that
he is a Polish citizen. His attorney says he is a stateless. The Government is willing that he go
back to the ship, but if he were sent back aboard a ship and sailed to the Port (Cherbourg,
France) from which he last sailed to the United States, he would probably be denied permission
to land. There is no other country that would take him, without proper documents.

It seems to me that this is a genuine hardship case and that the petitioner should be released
from custody on proper terms. . . .

What is to be done with the petitioner? The government has had him in custody almost seven
months and practically admits it has no place to send him out of this country. The steamship
company, which employed him as one of a group sent to the ship by the Union, with proper
seaman's papers issued by the United States Coast Guard, is paying $3 a day for petitioner's
board at Ellis Island. It is no fault of the steamship company that petitioner is an inadmissible
alien as the immigration officials describe him. . . .

I intend to sustain the writ of habeas corpus and order the release of the petitioner on his own
recognizance. He will be required to inform the immigration officials at Ellis Island by mail on the
15th of each month, stating where he is employed and where he can be reached by mail. If the
government does succeed in arranging for petitioner's deportation to a country that will be ready
to receive him as a resident, it may then advise the petitioner to that effect and arrange for his
deportation in the manner provided by law.

Although not binding upon this Court as a precedent, the case aforecited affords a happy solution to the
quandry in which the parties here finds themselves, solution which we think is sensible, sound and
compatible with law and the Constitution. For this reason, and since the Philippine law on immigration
was patterned after or copied from the American law and practice, we choose to follow and adopt the
reasoning and conclusions in the Staniszewski decision with some modifications which, it is believed, are
in consonance with the prevailing conditions of peace and order in the Philippines.

It was said or insinuated at the hearing ofthe petition at bar, but not alleged in the return, that the
petitioner was engaged in subversive activities, and fear was expressed that he might join or aid the
disloyal elements if allowed to be at large. Bearing in mind the Government's allegation in its answer that
"the herein petitioner was brought to the Philippines by the Japanese forces," and the fact that Japan is
no longer at war with the United States or the Philippines nor identified with the countries allied against
these nations, the possibility of the petitioner's entertaining or committing hostile acts prejudicial to the
interest and security of this country seems remote.

If we grant, for the sake of argument, that such a possibility exists, still the petitioner's unduly prolonged
detention would be unwarranted by law and the Constitution, if the only purpose of the detention be to
eliminate a danger that is by no means actual, present, or uncontrolable. After all, the Government is not
impotent to deal with or prevent any threat by such measure as that just outlined. The thought eloquently
expressed by Mr. Justice Jackson of the United States Supreme Court in connection with the appliccation
for bail of ten Communists convicted by a lower court of advocacy of violent overthrow of the United
States Government is, in principle, pertinent and may be availed of at this juncture. Said the learned
Jurist:
 The Governmet's alternative contention is that defendants, by misbehavior after conviction, have
forfeited their claim to bail. Grave public danger is said to result from what they may be expected
to do, in addition to what they have done since their conviction. If I assume that defendants are
disposed to commit every opportune disloyal to act helpful to Communist countries, it is still
difficult to reconcile with traditional American law the jailing of persons by the courts because of
anticipated but as yet uncommitted crimes. lmprisonment to protect society from predicted but
unconsummated offenses is so unprecedented in this country and so fraught with danger of
excesses and injustice that I am loath to resort it, even as a discretionary judicial technique to
supplement conviction of such offenses as those of which defendants stand convicted.

But the right of every American to equal treatment before the law is wrapped up in the same
constitutional bundle with those of these Communists. If an anger or disgust with these
defendants we throw out the bundle, we alsocast aside protection for the liberties of more worthy
critics who may be in opposition to the government of some future day.

xxx xxx x x x1âwphïl.nêt

If, however, I were to be wrong on all of these abstract or theoretical matters of principle, there is
a very practical aspect of this application which must not be overlooked or underestimated — that
is the disastrous effect on the reputation of American justice if I should now send these men to jail
and the full Court later decide that their conviction is invalid. All experience with litigation teaches
that existence of a substantial question about a conviction implies a more than negligible risk of
reversal. Indeed this experience lies back of our rule permitting and practice of allowing bail
where such questions exist, to avoid the hazard of unjustifiably imprisoning persons with
consequent reproach to our system of justice. If that is prudent judicial practice in the ordinary
case, how much more important to avoid every chance of handing to the Communist world such
an ideological weapon as it would have if this country should imprison this handful of Communist
leaders on a conviction that our highest Court would confess to be illegal. Risks, of course, are
involved in either granting or refusing bail. I am naive enough to underestimate the troublemaking
propensities of the defendants. But, with the Department of Justice alert to the the dangers, the
worst they can accomplish in the short time it will take to end the litigation is preferable to the
possibility of national embarrassment from a celebrated case of unjustified imprisonment of
Communist leaders. Under no circumstances must we permit their symbolization of an evil force
in the world to be hallowed and glorified by any semblance of martyrdom. The way to avoid that
risk is not to jail these men until it is finally decided that they should stay jailed.

If that case is not comparable with ours on the issues presented, its underlying principle is of universal
application. In fact, its ratio decidendi applies with greater force to the present petition, since the right of
accused to bail pending apppeal of his case, as in the case of the ten Communists, depends upon the
discretion of the court, whereas the right to be enlarged before formal charges are instituted is absolute.
As already noted, not only are there no charges pending against the petitioner, but the prospects of
bringing any against him are slim and remote.

Premises considered, the writ will issue commanding the respondents to release the petitioner from
custody upon these terms: The petitioner shall be placed under the surveillance of the immigration
authorities or their agents in such form and manner as may be deemed adequate to insure that he keep
peace and be available when the Government is ready to deport him. The surveillance shall be
reasonable and the question of reasonableness shall be submitted to this Court or to the Court of First
Instance of Manila for decision in case of abuse. He shall also put up a bond for the above purpose in the
amount of P5,000 with sufficient surety or sureties, which bond the Commissioner of Immigration is
authorized to exact by section 40 of Commonwealth Act No. 613.

No costs will be charged.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 76607 February 26, 1990

UNITED STATES OF AMERICA, FREDERICK M. SMOUSE AND YVONNE REEVES, petitioners,

vs.
HON. ELIODORO B. GUINTO, Presiding Judge, Branch LVII, Regional Trial Court, Angeles City,
ROBERTO T. VALENCIA, EMERENCIANA C. TANGLAO, AND PABLO C. DEL PILAR, respondents.

G.R. No. 79470 February 26, 1990

UNITED STATES OF AMERICA, ANTHONY LAMACHIA, T/SGT. USAF, WILFREDO BELSA, PETER
ORASCION AND ROSE CARTALLA, petitioners,
vs.
HON. RODOLFO D. RODRIGO, as Presiding Judge of Branch 7, Regional Trial Court (BAGUIO
CITY), La Trinidad, Benguet and FABIAN GENOVE, respondents.

G.R. No. 80018 February 26, 1990

UNITED STATES OF AMERICA, TOMI J. KINGI, DARREL D. DYE and STEVEN F.

BOSTICK, petitioners,
vs.
HON. JOSEFINA D. CEBALLOS, As Presiding Judge, Regional Trial Court, Branch 66, Capas,
Tarlac, and LUIS BAUTISTA, respondents.

G.R. No. 80258 February 26, 1990

UNITED STATES OF AMERICA, MAJOR GENERAL MICHAEL P. C. CARNS, AIC ERNEST E.

RIVENBURGH, AIC ROBIN BLEVINS, SGT. NOEL A. GONZALES, SGT. THOMAS MITCHELL, SGT.
WAYNE L. BENJAMIN, ET AL., petitioners,
vs.
HON. CONCEPCION S. ALARCON VERGARA, as Presiding Judge, Branch 62 REGIONAL TRIAL
COURT, Angeles City, and RICKY SANCHEZ, FREDDIE SANCHEZ AKA FREDDIE RIVERA, EDWIN
MARIANO, AKA JESSIE DOLORES SANGALANG, ET AL., respondents.

Luna, Sison & Manas Law Office for petitioners.

CRUZ, J.:

These cases have been consolidated because they all involve the doctrine of state immunity. The
United States of America was not impleaded in the complaints below but has moved to dismiss on
the ground that they are in effect suits against it to which it has not consented. It is now
contesting the denial of its motions by the respondent judges.

In G.R. No. 76607, the private respondents are suing several officers of the U.S. Air Force
stationed in Clark Air Base in connection with the bidding conducted by them for contracts for
barber services in the said base.
On February 24, 1986, the Western Pacific Contracting Office, Okinawa Area Exchange, U.S. Air
Force, solicited bids for such contracts through its contracting officer, James F. Shaw. Among
those who submitted their bids were private respondents Roberto T. Valencia, Emerenciana C.
Tanglao, and Pablo C. del Pilar. Valencia had been a concessionaire inside Clark for 34 years; del
Pilar for 12 years; and Tanglao for 50 years.

The bidding was won by Ramon Dizon, over the objection of the private respondents, who claimed
that he had made a bid for four facilities, including the Civil Engineering Area, which was not
included in the invitation to bid.

The private respondents complained to the Philippine Area Exchange (PHAX). The latter, through
its representatives, petitioners Yvonne Reeves and Frederic M. Smouse explained that the Civil
Engineering concession had not been awarded to Dizon as a result of the February 24, 1986
solicitation. Dizon was already operating this concession, then known as the NCO club
concession, and the expiration of the contract had been extended from June 30, 1986 to August
31, 1986. They further explained that the solicitation of the CE barbershop would be available only
by the end of June and the private respondents would be notified.

On June 30, 1986, the private respondents filed a complaint in the court below to compel PHAX
and the individual petitioners to cancel the award to defendant Dizon, to conduct a rebidding for
the barbershop concessions and to allow the private respondents by a writ of preliminary
injunction to continue operating the concessions pending litigation. 1

Upon the filing of the complaint, the respondent court issued an ex parte order directing the
individual petitioners to maintain the status quo.

On July 22, 1986, the petitioners filed a motion to dismiss and opposition to the petition for
preliminary injunction on the ground that the action was in effect a suit against the United States
of America, which had not waived its non-suability. The individual defendants, as official
employees of the U.S. Air Force, were also immune from suit.

On the same date, July 22, 1986, the trial court denied the application for a writ of preliminary
injunction.

On October 10, 1988, the trial court denied the petitioners' motion to dismiss, holding in part as
follows:

From the pleadings thus far presented to this Court by the parties, the Court's
attention is called by the relationship between the plaintiffs as well as the
defendants, including the US Government, in that prior to the bidding or
solicitation in question, there was a binding contract between the plaintiffs as well
as the defendants, including the US Government. By virtue of said contract of
concession it is the Court's understanding that neither the US Government nor the
herein principal defendants would become the employer/s of the plaintiffs but that
the latter are the employers themselves of the barbers, etc. with the employer, the
plaintiffs herein, remitting the stipulated percentage of commissions to the
Philippine Area Exchange. The same circumstance would become in effect when
the Philippine Area Exchange opened for bidding or solicitation the questioned
barber shop concessions. To this extent, therefore, indeed a commercial
transaction has been entered, and for purposes of the said solicitation, would
necessarily be entered between the plaintiffs as well as the defendants.
 The Court, further, is of the view that Article XVIII of the RP-US Bases Agreement
does not cover such kind of services falling under the concessionaireship, such as
a barber shop concession. 2

On December 11, 1986, following the filing of the herein petition for certiorari and prohibition with
preliminary injunction, we issued a temporary restraining order against further proceedings in the court
below. 3

In G.R. No. 79470, Fabian Genove filed a complaint for damages against petitioners Anthony Lamachia,
Wilfredo Belsa, Rose Cartalla and Peter Orascion for his dismissal as cook in the U.S. Air Force
Recreation Center at the John Hay Air Station in Baguio City. It had been ascertained after investigation,
from the testimony of Belsa Cartalla and Orascion, that Genove had poured urine into the soup stock
used in cooking the vegetables served to the club customers. Lamachia, as club manager, suspended
him and thereafter referred the case to a board of arbitrators conformably to the collective bargaining
agreement between the Center and its employees. The board unanimously found him guilty and
recommended his dismissal. This was effected on March 5, 1986, by Col. David C. Kimball, Commander
of the 3rd Combat Support Group, PACAF Clark Air Force Base. Genove's reaction was to file Ms
complaint in the Regional Trial Court of Baguio City against the individual petitioners. 4

On March 13, 1987, the defendants, joined by the United States of America, moved to dismiss the
complaint, alleging that Lamachia, as an officer of the U.S. Air Force stationed at John Hay Air Station,
was immune from suit for the acts done by him in his official capacity. They argued that the suit was in
effect against the United States, which had not given its consent to be sued.

This motion was denied by the respondent judge on June 4, 1987, in an order which read in part:

It is the understanding of the Court, based on the allegations of the complaint — which
have been hypothetically admitted by defendants upon the filing of their motion to dismiss
— that although defendants acted initially in their official capacities, their going beyond
what their functions called for brought them out of the protective mantle of whatever
immunities they may have had in the beginning. Thus, the allegation that the acts
complained of were illegal, done. with extreme bad faith and with pre-conceived sinister
plan to harass and finally dismiss the plaintiff, gains significance. 5

The petitioners then came to this Court seeking certiorari and prohibition with preliminary injunction.

In G.R. No. 80018, Luis Bautista, who was employed as a barracks boy in Camp O' Donnell, an extension
of Clark Air Base, was arrested following a buy-bust operation conducted by the individual petitioners
herein, namely, Tomi J. King, Darrel D. Dye and Stephen F. Bostick, officers of the U.S. Air Force and
special agents of the Air Force Office of Special Investigators (AFOSI). On the basis of the sworn
statements made by them, an information for violation of R.A. 6425, otherwise known as the Dangerous
Drugs Act, was filed against Bautista in the Regional Trial Court of Tarlac. The above-named officers
testified against him at his trial. As a result of the filing of the charge, Bautista was dismissed from his
employment. He then filed a complaint for damages against the individual petitioners herein claiming that
it was because of their acts that he was removed. 6

During the period for filing of the answer, Mariano Y. Navarro a special counsel assigned to the
International Law Division, Office of the Staff Judge Advocate of Clark Air Base, entered a special
appearance for the defendants and moved for an extension within which to file an "answer and/or other
pleadings." His reason was that the Attorney General of the United States had not yet designated counsel
to represent the defendants, who were being sued for their official acts. Within the extended period, the
defendants, without the assistance of counsel or authority from the U.S. Department of Justice, filed their
answer. They alleged therein as affirmative defenses that they had only done their duty in the
enforcement of the laws of the Philippines inside the American bases pursuant to the RP-US Military
Bases Agreement.

On May 7, 1987, the law firm of Luna, Sison and Manas, having been retained to represent the
defendants, filed with leave of court a motion to withdraw the answer and dismiss the complaint. The
ground invoked was that the defendants were acting in their official capacity when they did the acts
complained of and that the complaint against them was in effect a suit against the United States without
its consent.

The motion was denied by the respondent judge in his order dated September 11, 1987, which held that
the claimed immunity under the Military Bases Agreement covered only criminal and not civil cases.
Moreover, the defendants had come under the jurisdiction of the court when they submitted their answer.7

Following the filing of the herein petition for certiorari and prohibition with preliminary injunction, we issued
on October 14, 1987, a temporary restraining order. 8

In G.R. No. 80258, a complaint for damages was filed by the private respondents against the herein
petitioners (except the United States of America), for injuries allegedly sustained by the plaintiffs as a
result of the acts of the defendants. 9 There is a conflict of factual allegations here. According to the
plaintiffs, the defendants beat them up, handcuffed them and unleashed dogs on them which bit them in
several parts of their bodies and caused extensive injuries to them. The defendants deny this and claim
the plaintiffs were arrested for theft and were bitten by the dogs because they were struggling and
resisting arrest, The defendants stress that the dogs were called off and the plaintiffs were immediately
taken to the medical center for treatment of their wounds.

In a motion to dismiss the complaint, the United States of America and the individually named defendants
argued that the suit was in effect a suit against the United States, which had not given its consent to be
sued. The defendants were also immune from suit under the RP-US Bases Treaty for acts done by them
in the performance of their official functions.

The motion to dismiss was denied by the trial court in its order dated August 10, 1987, reading in part as
follows:

The defendants certainly cannot correctly argue that they are immune from suit. The
allegations, of the complaint which is sought to be dismissed, had to be hypothetically
admitted and whatever ground the defendants may have, had to be ventilated during the
trial of the case on the merits. The complaint alleged criminal acts against the
individually-named defendants and from the nature of said acts it could not be said that
they are Acts of State, for which immunity should be invoked. If the Filipinos themselves
are duty bound to respect, obey and submit themselves to the laws of the country, with
more reason, the members of the United States Armed Forces who are being treated as
guests of this country should respect, obey and submit themselves to its laws. 10

and so was the motion for reconsideration. The defendants submitted their answer as required but
subsequently filed their petition for certiorari and prohibition with preliminary injunction with this Court. We
issued a temporary restraining order on October 27, 1987. 11

II

The rule that a state may not be sued without its consent, now expressed in Article XVI, Section 3, of the
1987 Constitution, is one of the generally accepted principles of international law that we have adopted as
part of the law of our land under Article II, Section 2. This latter provision merely reiterates a policy earlier
embodied in the 1935 and 1973 Constitutions and also intended to manifest our resolve to abide by the
rules of the international community.
Even without such affirmation, we would still be bound by the generally accepted principles of
international law under the doctrine of incorporation. Under this doctrine, as accepted by the majority of
states, such principles are deemed incorporated in the law of every civilized state as a condition and
consequence of its membership in the society of nations. Upon its admission to such society, the state is
automatically obligated to comply with these principles in its relations with other states.

As applied to the local state, the doctrine of state immunity is based on the justification given by Justice
Holmes that "there can be no legal right against the authority which makes the law on which the right
depends." 12 There are other practical reasons for the enforcement of the doctrine. In the case of the
foreign state sought to be impleaded in the local jurisdiction, the added inhibition is expressed in the
maxim par in parem, non habet imperium. All states are sovereign equals and cannot assert jurisdiction
over one another. A contrary disposition would, in the language of a celebrated case, "unduly vex the
peace of nations." 13

While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable
to complaints filed against officials of the state for acts allegedly performed by them in the discharge of
their duties. The rule is that if the judgment against such officials will require the state itself to perform an
affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages
awarded against them, the suit must be regarded as against the state itself although it has not been
formally impleaded. 14 In such a situation, the state may move to dismiss the complaint on the ground that
it has been filed without its consent.

The doctrine is sometimes derisively called "the royal prerogative of dishonesty" because of the privilege
it grants the state to defeat any legitimate claim against it by simply invoking its non-suability. That is
hardly fair, at least in democratic societies, for the state is not an unfeeling tyrant unmoved by the valid
claims of its citizens. In fact, the doctrine is not absolute and does not say the state may not be sued
under any circumstance. On the contrary, the rule says that the state may not be sued without its
consent, which clearly imports that it may be sued if it consents.

The consent of the state to be sued may be manifested expressly or impliedly. Express consent may be
embodied in a general law or a special law. Consent is implied when the state enters into a contract or it
itself commences litigation.

The general law waiving the immunity of the state from suit is found in Act No. 3083, under which the
Philippine government "consents and submits to be sued upon any moneyed claim involving liability
arising from contract, express or implied, which could serve as a basis of civil action between private
parties." In Merritt v. Government of the Philippine Islands, 15 a special law was passed to enable a
person to sue the government for an alleged tort. When the government enters into a contract, it is
deemed to have descended to the level of the other contracting party and divested of its sovereign
immunity from suit with its implied consent. 16 Waiver is also implied when the government files a
complaint, thus opening itself to a counterclaim. 17

The above rules are subject to qualification. Express consent is effected only by the will of the legislature
through the medium of a duly enacted statute. 18 We have held that not all contracts entered into by the
government will operate as a waiver of its non-suability; distinction must be made between its sovereign
and proprietary acts. 19 As for the filing of a complaint by the government, suability will result only where
the government is claiming affirmative relief from the defendant. 20

In the case of the United States of America, the customary rule of international law on state immunity is
expressed with more specificity in the RP-US Bases Treaty. Article III thereof provides as follows:

It is mutually agreed that the United States shall have the rights, power and authority
within the bases which are necessary for the establishment, use, operation and defense
thereof or appropriate for the control thereof and all the rights, power and authority within
 the limits of the territorial waters and air space adjacent to, or in the vicinity of, the bases
which are necessary to provide access to them or appropriate for their control.

The petitioners also rely heavily on Baer v. Tizon, 21 along with several other decisions, to support their
position that they are not suable in the cases below, the United States not having waived its sovereign
immunity from suit. It is emphasized that in Baer, the Court held:

The invocation of the doctrine of immunity from suit of a foreign state without its consent
is appropriate. More specifically, insofar as alien armed forces is concerned, the starting
point is Raquiza v. Bradford, a 1945 decision. In dismissing a habeas corpus petition for
the release of petitioners confined by American army authorities, Justice Hilado speaking
for the Court, cited Coleman v. Tennessee, where it was explicitly declared: 'It is well
settled that a foreign army, permitted to march through a friendly country or to be
stationed in it, by permission of its government or sovereign, is exempt from the civil and
criminal jurisdiction of the place.' Two years later, in Tubb and Tedrow v. Griess, this
Court relied on the ruling in Raquiza v. Bradford and cited in support thereof excerpts
from the works of the following authoritative writers: Vattel, Wheaton, Hall, Lawrence,
Oppenheim, Westlake, Hyde, and McNair and Lauterpacht. Accuracy demands the
clarification that after the conclusion of the Philippine-American Military Bases
Agreement, the treaty provisions should control on such matter, the assumption being
that there was a manifestation of the submission to jurisdiction on the part of the foreign
power whenever appropriate. More to the point is Syquia v. Almeda Lopez, where
plaintiffs as lessors sued the Commanding General of the United States Army in the
Philippines, seeking the restoration to them of the apartment buildings they owned leased
to the United States armed forces stationed in the Manila area. A motion to dismiss on
the ground of non-suability was filed and upheld by respondent Judge. The matter was
taken to this Court in a mandamus proceeding. It failed. It was the ruling that respondent
Judge acted correctly considering that the 4 action must be considered as one against
the U.S. Government. The opinion of Justice Montemayor continued: 'It is clear that the
courts of the Philippines including the Municipal Court of Manila have no jurisdiction over
the present case for unlawful detainer. The question of lack of jurisdiction was raised and
interposed at the very beginning of the action. The U.S. Government has not given its
consent to the filing of this suit which is essentially against her, though not in name.
Moreover, this is not only a case of a citizen filing a suit against his own Government
without the latter's consent but it is of a citizen firing an action against a foreign
government without said government's consent, which renders more obvious the lack of
jurisdiction of the courts of his country. The principles of law behind this rule are so
elementary and of such general acceptance that we deem it unnecessary to cite
authorities in support thereof then came Marvel Building Corporation v. Philippine War
Damage Commission, where respondent, a United States Agency established to
compensate damages suffered by the Philippines during World War II was held as falling
within the above doctrine as the suit against it would eventually be a charge against or
financial liability of the United States Government because ... , the Commission has no
funds of its own for the purpose of paying money judgments.' The Syquia ruling was
again explicitly relied upon in Marquez Lim v. Nelson, involving a complaint for the
recovery of a motor launch, plus damages, the special defense interposed being 'that the
vessel belonged to the United States Government, that the defendants merely acted as
agents of said Government, and that the United States Government is therefore the real
party in interest.' So it was in Philippine Alien Property Administration v. Castelo, where it
was held that a suit against Alien Property Custodian and the Attorney General of the
United States involving vested property under the Trading with the Enemy Act is in
substance a suit against the United States. To the same effect is Parreno v. McGranery,
as the following excerpt from the opinion of justice Tuazon clearly shows: 'It is a widely
accepted principle of international law, which is made a part of the law of the land (Article
II, Section 3 of the Constitution), that a foreign state may not be brought to suit before the
 courts of another state or its own courts without its consent.' Finally, there is Johnson v.
Turner, an appeal by the defendant, then Commanding General, Philippine Command
(Air Force, with office at Clark Field) from a decision ordering the return to plaintiff of the
confiscated military payment certificates known as scrip money. In reversing the lower
court decision, this Tribunal, through Justice Montemayor, relied on Syquia v.
Almeda Lopez, explaining why it could not be sustained.

It bears stressing at this point that the above observations do not confer on the United States of America
a blanket immunity for all acts done by it or its agents in the Philippines. Neither may the other petitioners
claim that they are also insulated from suit in this country merely because they have acted as agents of
the United States in the discharge of their official functions.

There is no question that the United States of America, like any other state, will be deemed to have
impliedly waived its non-suability if it has entered into a contract in its proprietary or private capacity. It is
only when the contract involves its sovereign or governmental capacity that no such waiver may be
implied. This was our ruling in United States of America v. Ruiz, 22 where the transaction in question dealt
with the improvement of the wharves in the naval installation at Subic Bay. As this was a clearly
governmental function, we held that the contract did not operate to divest the United States of its
sovereign immunity from suit. In the words of Justice Vicente Abad Santos:

The traditional rule of immunity exempts a State from being sued in the courts of another
State without its consent or waiver. This rule is a necessary consequence of the
principles of independence and equality of States. However, the rules of International
Law are not petrified; they are constantly developing and evolving. And because the
activities of states have multiplied, it has been necessary to distinguish them — between
sovereign and governmental acts (jure imperii) and private, commercial and proprietary
acts (jure gestionis). The result is that State immunity now extends only to acts jure
imperii The restrictive application of State immunity is now the rule in the United States,
the United kingdom and other states in Western Europe.

xxx xxx xxx

The restrictive application of State immunity is proper only when the proceedings arise
out of commercial transactions of the foreign sovereign, its commercial activities or
economic affairs. Stated differently, a State may be said to have descended to the level
of an individual and can thus be deemed to have tacitly given its consent to be sued only
when it enters into business contracts. It does not apply where the contract relates to the
exercise of its sovereign functions. In this case the projects are an integral part of the
naval base which is devoted to the defense of both the United States and the Philippines,
indisputably a function of the government of the highest order; they are not utilized for nor
dedicated to commercial or business purposes.

The other petitioners in the cases before us all aver they have acted in the discharge of their official
functions as officers or agents of the United States. However, this is a matter of evidence. The charges
against them may not be summarily dismissed on their mere assertion that their acts are imputable to the
United States of America, which has not given its consent to be sued. In fact, the defendants are sought
to be held answerable for personal torts in which the United States itself is not involved. If found liable,
they and they alone must satisfy the judgment.

In Festejo v. Fernando, 23 a bureau director, acting without any authority whatsoever, appropriated private
land and converted it into public irrigation ditches. Sued for the value of the lots invalidly taken by him, he
moved to dismiss the complaint on the ground that the suit was in effect against the Philippine
government, which had not given its consent to be sued. This Court sustained the denial of the motion
and held that the doctrine of state immunity was not applicable. The director was being sued in his private
capacity for a personal tort.

With these considerations in mind, we now proceed to resolve the cases at hand.

III

It is clear from a study of the records of G.R. No. 80018 that the individually-named petitioners therein
were acting in the exercise of their official functions when they conducted the buy-bust operation against
the complainant and thereafter testified against him at his trial. The said petitioners were in fact
connected with the Air Force Office of Special Investigators and were charged precisely with the function
of preventing the distribution, possession and use of prohibited drugs and prosecuting those guilty of such
acts. It cannot for a moment be imagined that they were acting in their private or unofficial capacity when
they apprehended and later testified against the complainant. It follows that for discharging their duties as
agents of the United States, they cannot be directly impleaded for acts imputable to their principal, which
has not given its consent to be sued. As we observed in Sanders v. Veridiano: 24

Given the official character of the above-described letters, we have to conclude that the
petitioners were, legally speaking, being sued as officers of the United States
government. As they have acted on behalf of that government, and within the scope of
their authority, it is that government, and not the petitioners personally, that is responsible
for their acts.

The private respondent invokes Article 2180 of the Civil Code which holds the government liable if it acts
through a special agent. The argument, it would seem, is premised on the ground that since the officers
are designated "special agents," the United States government should be liable for their torts.

There seems to be a failure to distinguish between suability and liability and a misconception that the two
terms are synonymous. Suability depends on the consent of the state to be sued, liability on the
applicable law and the established facts. The circumstance that a state is suable does not necessarily
mean that it is liable; on the other hand, it can never be held liable if it does not first consent to be sued.
Liability is not conceded by the mere fact that the state has allowed itself to be sued. When the state does
waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant
is liable.

The said article establishes a rule of liability, not suability. The government may be held liable under this
rule only if it first allows itself to be sued through any of the accepted forms of consent.

Moreover, the agent performing his regular functions is not a special agent even if he is so denominated,
as in the case at bar. No less important, the said provision appears to regulate only the relations of the
local state with its inhabitants and, hence, applies only to the Philippine government and not to foreign
governments impleaded in our courts.

We reject the conclusion of the trial court that the answer filed by the special counsel of the Office of the
Sheriff Judge Advocate of Clark Air Base was a submission by the United States government to its
jurisdiction. As we noted in Republic v. Purisima, 25 express waiver of immunity cannot be made by a
mere counsel of the government but must be effected through a duly-enacted statute. Neither does such
answer come under the implied forms of consent as earlier discussed.

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

In G.R. No. 79470, private respondent Genove was employed as a cook in the Main Club located at the
U.S. Air Force Recreation Center, also known as the Open Mess Complex, at John Hay Air Station. As
manager of this complex, petitioner Lamachia is responsible for eleven diversified activities generating an
annual income of $2 million. Under his executive management are three service restaurants, a cafeteria,
a bakery, a Class VI store, a coffee and pantry shop, a main cashier cage, an administrative office, and a
decentralized warehouse which maintains a stock level of $200,000.00 per month in resale items. He
supervises 167 employees, one of whom was Genove, with whom the United States government has
concluded a collective bargaining agreement.

From these circumstances, the Court can assume that the restaurant services offered at the John Hay Air
Station partake of the nature of a business enterprise undertaken by the United States government in its
proprietary capacity. Such services are not extended to the American servicemen for free as a perquisite
of membership in the Armed Forces of the United States. Neither does it appear that they are exclusively
offered to these servicemen; on the contrary, it is well known that they are available to the general public
as well, including the tourists in Baguio City, many of whom make it a point to visit John Hay for this
reason. All persons availing themselves of this facility pay for the privilege like all other customers as in
ordinary restaurants. Although the prices are concededly reasonable and relatively low, such services are
undoubtedly operated for profit, as a commercial and not a governmental activity.

The consequence of this finding is that the petitioners cannot invoke the doctrine of state immunity to
justify the dismissal of the damage suit against them by Genove. Such defense will not prosper even if it
be established that they were acting as agents of the United States when they investigated and later
dismissed Genove. For that matter, not even the United States government itself can claim such
immunity. The reason is that by entering into the employment contract with Genove in the discharge of its
proprietary functions, it impliedly divested itself of its sovereign immunity from suit.

But these considerations notwithstanding, we hold that the complaint against the petitioners in the court
below must still be dismissed. While suable, the petitioners are nevertheless not liable. It is obvious that
the claim for damages cannot be allowed on the strength of the evidence before us, which we have
carefully examined.

The dismissal of the private respondent was decided upon only after a thorough investigation where it
was established beyond doubt that he had polluted the soup stock with urine. The investigation, in fact,
did not stop there. Despite the definitive finding of Genove's guilt, the case was still referred to the board
of arbitrators provided for in the collective bargaining agreement. This board unanimously affirmed the
findings of the investigators and recommended Genove's dismissal. There was nothing arbitrary about the
proceedings. The petitioners acted quite properly in terminating the private respondent's employment for
his unbelievably nauseating act. It is surprising that he should still have the temerity to file his complaint
for damages after committing his utterly disgusting offense.

Concerning G.R. No. 76607, we also find that the barbershops subject of the concessions granted by the
United States government are commercial enterprises operated by private person's. They are not
agencies of the United States Armed Forces nor are their facilities demandable as a matter of right by the
American servicemen. These establishments provide for the grooming needs of their customers and offer
not only the basic haircut and shave (as required in most military organizations) but such other amenities
as shampoo, massage, manicure and other similar indulgences. And all for a fee. Interestingly, one of the
concessionaires, private respondent Valencia, was even sent abroad to improve his tonsorial business,
presumably for the benefit of his customers. No less significantly, if not more so, all the barbershop
concessionaires are under the terms of their contracts, required to remit to the United States government
fixed commissions in consideration of the exclusive concessions granted to them in their respective
areas.

This being the case, the petitioners cannot plead any immunity from the complaint filed by the private
respondents in the court below. The contracts in question being decidedly commercial, the conclusion
reached in the United States of America v. Ruiz case cannot be applied here.

The Court would have directly resolved the claims against the defendants as we have done in G.R. No.
79470, except for the paucity of the record in the case at hand. The evidence of the alleged irregularity in
the grant of the barbershop concessions is not before us. This means that, as in G.R. No. 80258, the
respondent court will have to receive that evidence first, so it can later determine on the basis thereof if
the plaintiffs are entitled to the relief they seek. Accordingly, this case must also be remanded to the court
below for further proceedings.

IV

There are a number of other cases now pending before us which also involve the question of the
immunity of the United States from the jurisdiction of the Philippines. This is cause for regret, indeed, as
they mar the traditional friendship between two countries long allied in the cause of democracy. It is
hoped that the so-called "irritants" in their relations will be resolved in a spirit of mutual accommodation
and respect, without the inconvenience and asperity of litigation and always with justice to both parties.

WHEREFORE, after considering all the above premises, the Court hereby renders judgment as follows:

1. In G.R. No. 76607, the petition is DISMISSED and the respondent judge is directed to
proceed with the hearing and decision of Civil Case No. 4772. The temporary restraining
order dated December 11, 1986, is LIFTED.

2. In G.R. No. 79470, the petition is GRANTED and Civil Case No. 829-R(298) is
DISMISSED.

3. In G.R. No. 80018, the petition is GRANTED and Civil Case No. 115-C-87 is
DISMISSED. The temporary restraining order dated October 14, 1987, is made
permanent.

4. In G.R. No. 80258, the petition is DISMISSED and the respondent court is directed to
proceed with the hearing and decision of Civil Case No. 4996. The temporary restraining
order dated October 27, 1987, is LIFTED.

All without any pronouncement as to costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-49112 February 2, 1979

LEOVILLO C. AGUSTIN, petitioner,

vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner; HON. JUAN PONCE
ENRILE, in his capacity as Minister of National Defense; HON. ALFREDO L. JUINIO, in his capacity
as Minister Of Public Works, Transportation and Communications; and HON: BALTAZAR AQUINO,
in his capacity as Minister of Public Highways, respondents.

Leovillo C. Agustin Law Office for petitioner.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo and Solicitor Amado
D. Aquino for respondents.

FERNANDO, J.:

The validity of a letter of Instruction 1 providing for an early seaming device for motor vehicles is assailed
in this prohibition proceeding as being violative of the constitutional guarantee of due process and, insofar
as the rules and regulations for its implementation are concerned, for transgressing the fundamental
principle of non- delegation of legislative power. The Letter of Instruction is stigmatized by petitioner who
is possessed of the requisite standing, as being arbitrary and oppressive. A temporary restraining order
as issued and respondents Romeo F. Edu, Land Transportation Commissioner Juan Ponce Enrile,
Minister of National Defense; Alfredo L. Juinio, Minister of Public Works, Transportation and
Communications; and Baltazar Aquino, Minister of Public Highways; were to answer. That they did in a
pleading submitted by Solicitor General Estelito P. Mendoza. 2 Impressed with a highly persuasive quality,
it makes devoid clear that the imputation of a constitutional infirmity is devoid of justification The Letter of
Instruction on is a valid police power measure. Nor could the implementing rules and regulations issued
by respondent Edu be considered as amounting to an exercise of legislative power. Accordingly, the
petition must be dismissed.

The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos, issued on
December 2, 1974, reads in full: "[Whereas], statistics show that one of the major causes of fatal or
serious accidents in land transportation is the presence of disabled, stalled or parked motor vehicles
along streets or highways without any appropriate early warning device to signal approaching motorists of
their presence; [Whereas], the hazards posed by such obstructions to traffic have been recognized by
international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and
Signals and the United Nations Organization (U.N.); [Whereas], the said Vienna Convention which was
ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local
legislation for the installation of road safety signs and devices; [Now, therefore, I, Ferdinand E. Marcos],
President of the Philippines, in the interest of safety on all streets and highways, including expressways
or limited access roads, do hereby direct: 1. That all owners, users or drivers of motor vehicles shall have
at all times in their motor vehicles at least one (1) pair of early warning device consisting of triangular,
collapsible reflectorized plates in red and yellow colors at least 15 cms. at the base and 40 cms. at the
sides. 2. Whenever any motor vehicle is stalled or disabled or is parked for thirty (30) minutes or more on
any street or highway, including expressways or limited access roads, the owner, user or driver thereof
shall cause the warning device mentioned herein to be installed at least four meters away to the front and
rear of the motor vehicle staged, disabled or parked. 3. The Land Transportation Commissioner shall
cause Reflectorized Triangular Early Warning Devices, as herein described, to be prepared and issued to
registered owners of motor vehicles, except motorcycles and trailers, charging for each piece not more
than 15 % of the acquisition cost. He shall also promulgate such rules and regulations as are appropriate
to effectively implement this order. 4. All hereby concerned shall closely coordinate and take such
measures as are necessary or appropriate to carry into effect then instruction. 3 Thereafter, on November
15, 1976, it was amended by Letter of Instruction No. 479 in this wise. "Paragraph 3 of Letter of
Instruction No. 229 is hereby amended to read as follows: 3. The Land transportation Commissioner shall
require every motor vehicle owner to procure from any and present at the registration of his vehicle, one
pair of a reflectorized early warning device, as d bed of any brand or make chosen by mid motor vehicle .
The Land Transportation Commissioner shall also promulgate such rule and regulations as are
appropriate to effectively implement this order.'" 4 There was issued accordingly, by respondent Edu, the
implementing rules and regulations on December 10, 1976. 5 They were not enforced as President
Marcos on January 25, 1977, ordered a six-month period of suspension insofar as the installation of early
warning device as a pre-registration requirement for motor vehicle was concerned. 6 Then on June 30,
1978, another Letter of Instruction 7 the lifting of such suspension and directed the immediate
implementation of Letter of Instruction No. 229 as amended. 8 It was not until August 29, 1978 that
respondent Edu issued Memorandum Circular No. 32, worded thus: "In pursuance of Letter of Instruction
No. 716, dated June 30, 1978, the implementation of Letter of Instruction No. 229, as amended by Letter
of Instructions No. 479, requiring the use of Early Warning Devices (EWD) on motor vehicle, the following
rules and regulations are hereby issued: 1. LTC Administrative Order No. 1, dated December 10, 1976;
shall now be implemented provided that the device may come from whatever source and that it shall have
substantially complied with the EWD specifications contained in Section 2 of said administrative order; 2.
In order to insure that every motor vehicle , except motorcycles, is equipped with the device, a pair of
serially numbered stickers, to be issued free of charge by this Commission, shall be attached to each
EWD. The EWD. serial number shall be indicated on the registration certificate and official receipt of
payment of current registration fees of the motor vehicle concerned. All Orders, Circulars, and
Memoranda in conflict herewith are hereby superseded, This Order shall take effect immediately. 9 It was
for immediate implementation by respondent Alfredo L. Juinio, as Minister of Public Works, transportation,
and Communications. 10

Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model 13035, already
properly equipped when it came out from the assembly lines with blinking lights fore and aft, which could
very well serve as an early warning device in case of the emergencies mentioned in Letter of Instructions
No. 229, as amended, as well as the implementing rules and regulations in Administrative Order No. 1
issued by the land transportation Commission," 11 alleged that said Letter of Instruction No. 229, as
amended, "clearly violates the provisions and delegation of police power, [sic] * * *: " For him they are
"oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of
our compassionate New Society." 12 He contended that they are "infected with arbitrariness because it is
harsh, cruel and unconscionable to the motoring public;" 13 are "one-sided, onerous and patently illegal
and immoral because [they] will make manufacturers and dealers instant millionaires at the expense of
car owners who are compelled to buy a set of the so-called early warning device at the rate of P 56.00 to
P72.00 per set." 14 are unlawful and unconstitutional and contrary to the precepts of a compassionate
New Society [as being] compulsory and confiscatory on the part of the motorists who could very well
provide a practical alternative road safety device, or a better substitute to the specified set of
EWD's." 15 He therefore prayed for a judgment both the assailed Letters of Instructions and Memorandum
Circular void and unconstitutional and for a restraining order in the meanwhile.

A resolution to this effect was handed down by this Court on October 19, 1978: "L-49112 (Leovillo C.
Agustin v. Hon. Romeo F. Edu, etc., et al.) — Considering the allegations contained, the issues raised
and the arguments adduced in the petition for prohibition with writ of p prohibitory and/or mandatory
injunction, the Court Resolved to (require) the respondents to file an answer thereto within ton (10) days
from notice and not to move to dismiss the petition. The Court further Resolved to [issue] a [temporary
restraining order] effective as of this date and continuing until otherwise ordered by this Court. 16
Two motions for extension were filed by the Office of the Solicitor General and granted. Then on
November 15, 1978, he Answer for respondents was submitted. After admitting the factual allegations
and stating that they lacked knowledge or information sufficient to form a belief as to petitioner owning a
Volkswagen Beetle car," they "specifically deny the allegations and stating they lacked knowledge or
information sufficient to form a belief as to petitioner owning a Volkswagen Beetle Car, 17 they specifically
deny the allegations in paragraphs X and XI (including its subparagraphs 1, 2, 3, 4) of Petition to the
effect that Letter of Instruction No. 229 as amended by Letters of Instructions Nos. 479 and 716 as well
as Land transportation Commission Administrative Order No. 1 and its Memorandum Circular No. 32
violates the constitutional provisions on due process of law, equal protection of law and undue delegation
of police power, and that the same are likewise oppressive, arbitrary, confiscatory, one-sided, onerous,
immoral unreasonable and illegal the truth being that said allegations are without legal and factual basis
and for the reasons alleged in the Special and Affirmative Defenses of this Answer."18 Unlike petitioner
who contented himself with a rhetorical recital of his litany of grievances and merely invoked the
sacramental phrases of constitutional litigation, the Answer, in demonstrating that the assailed Letter of
Instruction was a valid exercise of the police power and implementing rules and regulations of respondent
Edu not susceptible to the charge that there was unlawful delegation of legislative power, there was in the
portion captioned Special and Affirmative Defenses, a citation of what respondents believed to be the
authoritative decisions of this Tribunal calling for application. They are Calalang v. Williams, 19 Morfe v.
Mutuc, 20 and Edu v. Ericta. 21 Reference was likewise made to the 1968 Vienna Conventions of the
United Nations on road traffic, road signs, and signals, of which the Philippines was a signatory and which
was duly ratified. 22 Solicitor General Mendoza took pains to refute in detail, in language calm and
dispassionate, the vigorous, at times intemperate, accusation of petitioner that the assailed Letter of
Instruction and the implementing rules and regulations cannot survive the test of rigorous scrutiny. To
repeat, its highly-persuasive quality cannot be denied.

This Court thus considered the petition submitted for decision, the issues being clearly joined. As noted at
the outset, it is far from meritorious and must be dismissed.

1. The Letter of Instruction in question was issued in the exercise of the police power. That is conceded
by petitioner and is the main reliance of respondents. It is the submission of the former, however, that
while embraced in such a category, it has offended against the due process and equal protection
safeguards of the Constitution, although the latter point was mentioned only in passing. The broad and
expansive scope of the police power which was originally Identified by Chief Justice Taney of the
American Supreme Court in an 1847 decision as "nothing more or less than the powers of government
inherent in every sovereignty" 23 was stressed in the aforementioned case of Edu v. Ericta thus: "Justice
Laurel, in the first leading decision after the Constitution came into force, Calalang v. Williams, Identified
police power with state authority to enact legislation that may interfere with personal liberty or property in
order to promote the general welfare. Persons and property could thus 'be subjected to all kinds of
restraints and burdens in order to we the general comfort, health and prosperity of the state.' Shortly after
independence in 1948, Primicias v. Fugoso reiterated the doctrine, such a competence being referred to
as 'the power to prescribe regulations to promote the health, morals, peace, education, good order or
safety, and general welfare of the people. The concept was set forth in negative terms by Justice Malcolm
in a pre-Commonwealth decision as 'that inherent and plenary power in the State which enables it to
prohibit all things hurtful to the comfort, safety and welfare of society. In that sense it could be hardly
distinguishable as noted by this Court in Morfe v. Mutuc with the totality of legislative power. It is in the
above sense the greatest and most powerful at. tribute of government. It is, to quote Justice Malcolm
anew, 'the most essential, insistent, and at least table powers, I extending as Justice Holmes aptly
pointed out 'to all the great public needs.' 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. In the language of Justice
Cardozo: 'Needs that were narrow or parochial in the past may be interwoven in the present with the well-
being of the nation. What is critical or urgent changes with the time.' The police power is thus a dynamic
agency, suitably vague and far from precisely defined, 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 communal peace, safety, good order, and welfare." 24

2. It was thus a heavy burden to be shouldered by petitioner, compounded by the fact that the particular
police power measure challenged was clearly intended to promote public safety. It would be a rare
occurrence indeed for this Court to invalidate a legislative or executive act of that character. None has
been called to our attention, an indication of its being non-existent. The latest decision in point, Edu v.
Ericta, sustained the validity of the Reflector Law, 25 an enactment conceived with the same end in
view. Calalang v. Williams found nothing objectionable in a statute, the purpose of which was: "To
promote safe transit upon, and. avoid obstruction on roads and streets designated as national roads * *
*. 26 As a matter of fact, the first law sought to be nullified after the effectivity of the 1935 Constitution, the
National Defense Act, 27 with petitioner failing in his quest, was likewise prompted by the imperative
demands of public safety.

3. The futility of petitioner's effort to nullify both the Letter of Instruction and the implementing rules and
regulations becomes even more apparent considering his failure to lay the necessary factual foundation
to rebut the presumption of validity. So it was held in Ermita-Malate Hotel and Motel Operators
Association, Inc. v. City Mayor of Manila. 28 The rationale was clearly set forth in an excerpt from a
decision of Justice Branders of the American Supreme Court, quoted in the opinion: "The statute here
questioned deals with a subject clearly within the scope of the police power. We are asked to declare it
void on the ground that the specific method of regulation prescribed is unreasonable and hence deprives
the plaintiff of due process of law. As underlying questions of fact may condition the constitutionality of
legislation of this character, the presumption of constitutionality must prevail in the absence of some
factual foundation of record in overthrowing the statute. 29

4. Nor did the Solicitor General as he very well could, rely solely on such rebutted presumption of validity.
As was pointed out in his Answer "The President certainly had in his possession the necessary statistical
information and data at the time he issued said letter of instructions, and such factual foundation cannot
be defeated by petitioner's naked assertion that early warning devices 'are not too vital to the prevention
of nighttime vehicular accidents' because allegedly only 390 or 1.5 per cent of the supposed 26,000 motor
vehicle accidents that in 1976 involved rear-end collisions (p. 12 of petition). Petitioner's statistics is not
backed up by demonstrable data on record. As aptly stated by this Honorable Court: Further: "It admits of
no doubt therefore that there being a presumption of validity, the necessity for evidence to rebut it is
unavoidable, unless the statute or ordinance is void on its face, which is not the case here"' * * *. But even
as g the verity of petitioner's statistics, is that not reason enough to require the installation of early
warning devices to prevent another 390 rear-end collisions that could mean the death of 390 or more
Filipinos and the deaths that could likewise result from head-on or frontal collisions with stalled
vehicles?" 30 It is quite manifest then that the issuance of such Letter of Instruction is encased in the
armor of prior, careful study by the Executive Department. To set it aside for alleged repugnancy to the
due process clause is to give sanction to conjectural claims that exceeded even the broadest permissible
limits of a pleader's well known penchant for exaggeration.

5. The rather wild and fantastic nature of the charge of oppressiveness of this Letter of Instruction was
exposed in the Answer of the Solicitor General thus: "Such early warning device requirement is not
an expensive redundancy, nor oppressive, for car owners whose cars are already equipped with 1)
blinking lights in the fore and aft of said motor vehicles,' 2) "battery-powered blinking lights inside motor
vehicles," 3) "built-in reflectorized tapes on front and rear bumpers of motor vehicles," or 4) "well-lighted
two (2) petroleum lamps (the Kinke) * * * because: Being universal among the signatory countries to the
said 1968 Vienna Conventions, and visible even under adverse conditions at a distance of at least 400
meters, any motorist from this country or from any part of the world, who sees a reflectorized rectangular
early seaming device installed on the roads, highways or expressways, will conclude, without thinking,
that somewhere along the travelled portion of that road, highway, or expressway, there is a motor vehicle
which is stationary, stalled or disabled which obstructs or endangers passing traffic. On the other hand, a
motorist who sees any of the aforementioned other built in warning devices or the petroleum lamps will
not immediately get adequate advance warning because he will still think what that blinking light is all
about. Is it an emergency vehicle? Is it a law enforcement car? Is it an ambulance? Such confusion or
uncertainty in the mind of the motorist will thus increase, rather than decrease, the danger of collision. 31

6. Nor did the other extravagant assertions of constitutional deficiency go unrefuted in the Answer of the
Solicitor General "There is nothing in the questioned Letter of Instruction No. 229, as amended, or in
Administrative Order No. 1, which requires or compels motor vehicle owners to purchase the early
warning device prescribed thereby. All that is required is for motor vehicle owners concerned like
petitioner, to equip their motor vehicles with a pair of this early warning device in question, procuring or
obtaining the same from whatever source. In fact, with a little of industry and practical ingenuity, motor
vehicle owners can even personally make or produce this early warning device so long as the same
substantially conforms with the specifications laid down in said letter of instruction and administrative
order. Accordingly the early warning device requirement can neither be oppressive, onerous, immoral, nor
confiscatory, much less does it make manufacturers and dealers of said devices 'instant millionaires at
the expense of car owners' as petitioner so sweepingly concludes * * *. Petitioner's fear that with the early
warning device requirement 'a more subtle racket may be committed by those called upon to enforce it * *
* is an unfounded speculation. Besides, that unscrupulous officials may try to enforce said requirement in
an unreasonable manner or to an unreasonable degree, does not render the same illegal or immoral
where, as in the instant case, the challenged Letter of Instruction No. 229 and implementing order
disclose none of the constitutional defects alleged against it.32

7 It does appear clearly that petitioner's objection to this Letter of Instruction is not premised on lack of
power, the justification for a finding of unconstitutionality, but on the pessimistic, not to say negative, view
he entertains as to its wisdom. That approach, it put it at its mildest, is distinguished, if that is the
appropriate word, by its unorthodoxy. It bears repeating "that this Court, in the language of Justice Laurel,
'does not pass upon questions of wisdom justice or expediency of legislation.' As expressed by Justice
Tuason: 'It is not the province of the courts to supervise legislation and keep it within the bounds of
propriety and common sense. That is primarily and exclusively a legislative concern.' There can be no
possible objection then to the observation of Justice Montemayor. 'As long as laws do not violate any
Constitutional provision, the Courts merely interpret and apply them regardless of whether or not they are
wise or salutary. For they, according to Justice Labrador, 'are not supposed to override legitimate policy
and * * * never inquire into the wisdom of the law.' It is thus settled, to paraphrase Chief Justice
Concepcion in Gonzales v. Commission on Elections, that only congressional power or competence, not
the wisdom of the action taken, may be the basis for declaring a statute invalid. This is as it ought to be.
The principle of separation of powers has in the main wisely allocated the respective authority of each
department and confined its jurisdiction to such a sphere. There would then be intrusion not allowable
under the Constitution if on a matter left to the discretion of a coordinate branch, the judiciary would
substitute its own. If there be adherence to the rule of law, as there ought to be, the last offender should
be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired the
supremacy of legal norms and prescriptions. The attack on the validity of the challenged provision
likewise insofar as there may be objections, even if valid and cogent on is wisdom cannot be sustained. 33

8. The alleged infringement of the fundamental principle of non-delegation of legislative power is equally
without any support well-settled legal doctrines. Had petitioner taken the trouble to acquaint himself with
authoritative pronouncements from this Tribunal, he would not have the temerity to make such an
assertion. An exempt from the aforecited decision of Edu v. Ericta sheds light on the matter: "To avoid the
taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature
itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of
complete abdication may be hard to repel A standard thus defines legislative policy, marks its maps out
its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the
legislative command is to be effected. It is the criterion by which legislative purpose may be carried out.
Thereafter, the executive or administrative office designated may in pursuance of the above guidelines
promulgate supplemental rules and regulations. The standard may be either express or implied. If the
former, the non-delegation objection is easily met. The standard though does not have to be spelled out
specifically. It could be implied from the policy and purpose of the act considered as a whole. In the
Reflector Law clearly, the legislative objective is public safety. What is sought to be attained as
in Calalang v. Williams is "safe transit upon the roads.' This is to adhere to the recognition given
expression by Justice Laurel in a decision announced not too long after the Constitution came into force
and effect that the principle of non-delegation "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.' He
continued: 'Accordingly, with the growing complexity of modern life, the multiplication of the subjects of
governmental regulation, and the increased difficulty of administering the laws, there is a constantly
growing tendency toward the delegation of greater powers by the legislature and toward the approval of
the practice by the courts.' Consistency with the conceptual approach requires the reminder that what is
delegated is authority non-legislative in character, the completeness of the statute when it leaves the
hands of Congress being assumed." 34

9. The conclusion reached by this Court that this petition must be dismissed is reinforced by this
consideration. The petition itself quoted these two whereas clauses of the assailed Letter of Instruction:
"[Whereas], the hazards posed by such obstructions to traffic have been recognized by international
bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the
United Nations Organization (U.N.); [Whereas], the said Vionna Convention, which was ratified by the
Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the
installation of road safety signs and devices; * * * " 35 It cannot be disputed then that this Declaration of
Principle found in the Constitution possesses relevance: "The Philippines * * * adopts the generally
accepted principles of international law as part of the law of the land * * *." 36 The 1968 Vienna
Convention on Road Signs and Signals is impressed with such a character. It is not for this country to
repudiate a commitment to which it had pledged its word. The concept of Pacta sunt servanda stands in
the way of such an attitude, which is, moreover, at war with the principle of international morality.

10. That is about all that needs be said. The rather court reference to equal protection did not even elicit
any attempt on the Part of Petitioner to substantiate in a manner clear, positive, and categorical why such
a casual observation should be taken seriously. In no case is there a more appropriate occasion for
insistence on what was referred to as "the general rule" in Santiago v. Far Eastern Broadcasting
Co., 37 namely, "that the constitutionality of a law wig not be considered unless the point is specially
pleaded, insisted upon, and adequately argued." 38 "Equal protection" is not a talismanic formula at the
mere invocation of which a party to a lawsuit can rightfully expect that success will crown his efforts. The
law is anything but that.

WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is immediately
executory. No costs.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 101949 December 1, 1994

THE HOLY SEE, petitioner,

vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of Makati,
Branch 61 and STARBRIGHT SALES ENTERPRISES, INC., respondents.

Padilla Law Office for petitioner.

Siguion Reyna, Montecillo & Ongsiako for private respondent.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside the
Orders dated June 20, 1991 and September 19, 1991 of the Regional Trial Court, Branch 61, Makati,
Metro Manila in Civil Case No. 90-183.

The Order dated June 20, 1991 denied the motion of petitioner to dismiss the complaint in Civil Case No.
90-183, while the Order dated September 19, 1991 denied the motion for reconsideration of the June
20,1991 Order.

Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is
represented in the Philippines by the Papal Nuncio.

Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real
estate business.

This petition arose from a controversy over a parcel of land consisting of 6,000 square meters (Lot 5-A,
Transfer Certificate of Title No. 390440) located in the Municipality of Parañaque, Metro Manila and
registered in the name of petitioner.

Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title Nos.
271108 and 265388 respectively and registered in the name of the Philippine Realty Corporation (PRC).

The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the
sellers. Later, Licup assigned his rights to the sale to private respondent.

In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose as to
who of the parties has the responsibility of evicting and clearing the land of squatters. Complicating the
relations of the parties was the sale by petitioner of Lot 5-A to Tropicana Properties and Development
Corporation (Tropicana).
 I

On January 23, 1990, private respondent filed a complaint with the Regional Trial Court, Branch 61,
Makati, Metro Manila for annulment of the sale of the three parcels of land, and specific performance and
damages against petitioner, represented by the Papal Nuncio, and three other defendants: namely, Msgr.
Domingo A. Cirilos, Jr., the PRC and Tropicana (Civil Case No.
90-183).

The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner and the PRC,
agreed to sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price of P1,240.00 per square meters; (2) the
agreement to sell was made on the condition that earnest money of P100,000.00 be paid by Licup to the
sellers, and that the sellers clear the said lots of squatters who were then occupying the same; (3) Licup
paid the earnest money to Msgr. Cirilos; (4) in the same month, Licup assigned his rights over the
property to private respondent and informed the sellers of the said assignment; (5) thereafter, private
respondent demanded from Msgr. Cirilos that the sellers fulfill their undertaking and clear the property of
squatters; however, Msgr. Cirilos informed private respondent of the squatters' refusal to vacate the lots,
proposing instead either that private respondent undertake the eviction or that the earnest money be
returned to the latter; (6) private respondent counterproposed that if it would undertake the eviction of the
squatters, the purchase price of the lots should be reduced from P1,240.00 to P1,150.00 per square
meter; (7) Msgr. Cirilos returned the earnest money of P100,000.00 and wrote private respondent giving it
seven days from receipt of the letter to pay the original purchase price in cash; (8) private respondent
sent the earnest money back to the sellers, but later discovered that on March 30, 1989, petitioner and
the PRC, without notice to private respondent, sold the lots to Tropicana, as evidenced by two separate
Deeds of Sale, one over Lot 5-A, and another over Lots 5-B and 5-D; and that the sellers' transfer
certificate of title over the lots were cancelled, transferred and registered in the name of Tropicana; (9)
Tropicana induced petitioner and the PRC to sell the lots to it and thus enriched itself at the expense of
private respondent; (10) private respondent demanded the rescission of the sale to Tropicana and the
reconveyance of the lots, to no avail; and (11) private respondent is willing and able to comply with the
terms of the contract to sell and has actually made plans to develop the lots into a townhouse project, but
in view of the sellers' breach, it lost profits of not less than P30,000.000.00.

Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and the
PRC on the one hand, and Tropicana on the other; (2) the reconveyance of the lots in question; (3)
specific performance of the agreement to sell between it and the owners of the lots; and (4) damages.

On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the complaint — petitioner for
lack of jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for being an improper party.
An opposition to the motion was filed by private respondent.

On June 20, 1991, the trial court issued an order denying, among others, petitioner's motion to dismiss
after finding that petitioner "shed off [its] sovereign immunity by entering into the business contract in
question" (Rollo, pp. 20-21).

On July 12, 1991, petitioner moved for reconsideration of the order. On August 30, 1991, petitioner filed a
"Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation for claim of Immunity as a
Jurisdictional Defense." So as to facilitate the determination of its defense of sovereign immunity,
petitioner prayed that a hearing be conducted to allow it to establish certain facts upon which the said
defense is based. Private respondent opposed this motion as well as the motion for reconsideration.

On October 1, 1991, the trial court issued an order deferring the resolution on the motion for
reconsideration until after trial on the merits and directing petitioner to file its answer (Rollo, p. 22).

Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the privilege of sovereign
immunity only on its own behalf and on behalf of its official representative, the Papal Nuncio.
On December 9, 1991, a Motion for Intervention was filed before us by the Department of Foreign Affairs,
claiming that it has a legal interest in the outcome of the case as regards the diplomatic immunity of
petitioner, and that it "adopts by reference, the allegations contained in the petition of the Holy See insofar
as they refer to arguments relative to its claim of sovereign immunity from suit" (Rollo, p. 87).

Private respondent opposed the intervention of the Department of Foreign Affairs. In compliance with the
resolution of this Court, both parties and the Department of Foreign Affairs submitted their respective
memoranda.

II

A preliminary matter to be threshed out is the procedural issue of whether the petition for certiorari under
Rule 65 of the Revised Rules of Court can be availed of to question the order denying petitioner's motion
to dismiss. The general rule is that an order denying a motion to dismiss is not reviewable by the
appellate courts, the remedy of the movant being to file his answer and to proceed with the hearing
before the trial court. But the general rule admits of exceptions, and one of these is when it is very clear in
the records that the trial court has no alternative but to dismiss the complaint (Philippine National Bank v.
Florendo, 206 SCRA 582 [1992]; Zagada v. Civil Service Commission, 216 SCRA 114 [1992]. In such a
case, it would be a sheer waste of time and energy to require the parties to undergo the rigors of a trial.

The other procedural question raised by private respondent is the personality or legal interest of the
Department of Foreign Affairs to intervene in the case in behalf of the Holy See (Rollo, pp. 186-190).

In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic
immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the
court that said defendant is entitled to immunity.

In the United States, the procedure followed is the process of "suggestion," where the foreign state or the
international organization sued in an American court requests the Secretary of State to make a
determination as to whether it is entitled to immunity. If the Secretary of State finds that the defendant is
immune from suit, he, in turn, asks the Attorney General to submit to the court a "suggestion" that the
defendant is entitled to immunity. In England, a similar procedure is followed, only the Foreign Office
issues a certification to that effect instead of submitting a "suggestion" (O'Connell, I International Law 130
[1965]; Note: Immunity from Suit of Foreign Sovereign Instrumentalities and Obligations, 50 Yale Law
Journal 1088 [1941]).

In the Philippines, the practice is for the foreign government or the international organization to first
secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine
Foreign Office conveys its endorsement to the courts varies. In International Catholic Migration
Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to
the Secretary of Labor and Employment, informing the latter that the respondent-employer could not be
sued because it enjoyed diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242
(1972), the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57
SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General
to make, in behalf of the Commander of the United States Naval Base at Olongapo City, Zambales, a
"suggestion" to respondent Judge. The Solicitor General embodied the "suggestion" in a Manifestation
and Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with
this Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department to
file its memorandum in support of petitioner's claim of sovereign immunity.

In some cases, the defense of sovereign immunity was submitted directly to the local courts by the
respondents through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v.
Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644
[1990] and companion cases). In cases where the foreign states bypass the Foreign Office, the courts
can inquire into the facts and make their own determination as to the nature of the acts and transactions
involved.

III

The burden of the petition is that respondent trial court has no jurisdiction over petitioner, being a foreign
state enjoying sovereign immunity. On the other hand, private respondent insists that the doctrine of non-
suability is not anymore absolute and that petitioner has divested itself of such a cloak when, of its own
free will, it entered into a commercial transaction for the sale of a parcel of land located in the Philippines.

A. The Holy See

Before we determine the issue of petitioner's non-suability, a brief look into its status as a sovereign state
is in order.

Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the
Holy See, was considered a subject of International Law. With the loss of the Papal States and the
limitation of the territory under the Holy See to an area of 108.7 acres, the position of the Holy See in
International Law became controversial (Salonga and Yap, Public International Law 36-37 [1992]).

In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive
dominion and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right of
the Holy See to receive foreign diplomats, to send its own diplomats to foreign countries, and to enter into
treaties according to International Law (Garcia, Questions and Problems In International Law, Public and
Private 81 [1948]).

The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy
See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field
of international relations" (O'Connell, I International Law 311 [1965]).

In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested in
the Holy See or in the Vatican City. Some writers even suggested that the treaty created two international
persons — the Holy See and Vatican City (Salonga and Yap, supra, 37).

The Vatican City fits into none of the established categories of states, and the attribution to it of
"sovereignty" must be made in a sense different from that in which it is applied to other states (Fenwick,
International Law 124-125 [1948]; Cruz, International Law 37 [1991]). In a community of national states,
the Vatican City represents an entity organized not for political but for ecclesiastical purposes and
international objects. Despite its size and object, the Vatican City has an independent government of its
own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in
conformity with its traditions, and the demands of its mission in the world. Indeed, the world-wide interests
and activities of the Vatican City are such as to make it in a sense an "international state"
(Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]).

One authority wrote that the recognition of the Vatican City as a state has significant implication — that it
is possible for any entity pursuing objects essentially different from those pursued by states to be invested
with international personality (Kunz, The Status of the Holy See in International Law, 46 The American
Journal of International Law 308 [1952]).
Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See
and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See
that is the international person.

The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy
See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine
government since 1957 (Rollo, p. 87). This appears to be the universal practice in international relations.

B. Sovereign Immunity

As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally accepted
principles of International Law. Even without this affirmation, such principles of International Law are
deemed incorporated as part of the law of the land as a condition and consequence of our admission in
the society of nations (United States of America v. Guinto, 182 SCRA 644 [1990]).

There are two conflicting concepts of sovereign immunity, each widely held and firmly established.
According to the classical or absolute theory, a sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign. According to the newer or restrictive theory, the immunity
of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not with
regard to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public
International Law 194 [1984]).

Some states passed legislation to serve as guidelines for the executive or judicial determination when an
act may be considered as jure gestionis. The United States passed the Foreign Sovereign Immunities Act
of 1976, which defines a commercial activity as "either a regular course of commercial conduct or a
particular commercial transaction or act." Furthermore, the law declared that the "commercial character of
the activity shall be determined by reference to the nature of the course of conduct or particular
transaction or act, rather than by reference to its purpose." The Canadian Parliament enacted in 1982 an
Act to Provide For State Immunity in Canadian Courts. The Act defines a "commercial activity" as any
particular transaction, act or conduct or any regular course of conduct that by reason of its nature, is of a
"commercial character."

The restrictive theory, which is intended to be a solution to the host of problems involving the issue of
sovereign immunity, has created problems of its own. Legal treatises and the decisions in countries which
follow the restrictive theory have difficulty in characterizing whether a contract of a sovereign state with a
private party is an act jure gestionis or an act jure imperii.

The restrictive theory came about because of the entry of sovereign states into purely commercial
activities remotely connected with the discharge of governmental functions. This is particularly true with
respect to the Communist states which took control of nationalized business activities and international
trading.

This Court has considered the following transactions by a foreign state with private parties as acts jure
imperii: (1) the lease by a foreign government of apartment buildings for use of its military officers (Syquia
v. Lopez, 84 Phil. 312 [1949]; (2) the conduct of public bidding for the repair of a wharf at a United States
Naval Station (United States of America v. Ruiz, supra.); and (3) the change of employment status of
base employees (Sanders v. Veridiano, 162 SCRA 88 [1988]).

On the other hand, this Court has considered the following transactions by a foreign state with private
parties as acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of three
restaurants, a cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air Station in
Baguio City, to cater to American servicemen and the general public (United States of America v.
Rodrigo, 182 SCRA 644 [1990]); and (2) the bidding for the operation of barber shops in Clark Air Base in
Angeles City (United States of America v. Guinto, 182 SCRA 644 [1990]). The operation of the
restaurants and other facilities open to the general public is undoubtedly for profit as a commercial and
not a governmental activity. By entering into the employment contract with the cook in the discharge of its
proprietary function, the United States government impliedly divested itself of its sovereign immunity from
suit.

In the absence of legislation defining what activities and transactions shall be considered "commercial"
and as constituting acts jure gestionis, we have to come out with our own guidelines, tentative they may
be.

Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate
test. Such an act can only be the start of the inquiry. The logical question is whether the foreign state is
engaged in the activity in the regular course of business. If the foreign state is not engaged regularly in a
business or trade, the particular act or transaction must then be tested by its nature. If the act is in pursuit
of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not
undertaken for gain or profit.

As held in United States of America v. Guinto, (supra):

There is no question that the United States of America, like any other state, will be
deemed to have impliedly waived its non-suability if it has entered into a contract in its
proprietary or private capacity. It is only when the contract involves its sovereign or
governmental capacity that no such waiver may be implied.

In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate
business, surely the said transaction can be categorized as an act jure gestionis. However, petitioner has
denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but claimed that it
acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. Private
respondent failed to dispute said claim.

Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made
not for commercial purpose, but for the use of petitioner to construct thereon the official place of
residence of the Papal Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a
receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in the
1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the
Philippine Senate and entered into force in the Philippines on November 15, 1965.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action relating to private immovable property situated in the
territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the
mission. If this immunity is provided for a diplomatic envoy, with all the more reason should immunity be
recognized as regards the sovereign itself, which in this case is the Holy See.

The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a
governmental character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made
it almost impossible for petitioner to use it for the purpose of the donation. The fact that squatters have
occupied and are still occupying the lot, and that they stubbornly refuse to leave the premises, has been
admitted by private respondent in its complaint (Rollo, pp. 26, 27).

The issue of petitioner's non-suability can be determined by the trial court without going to trial in the light
of the pleadings, particularly the admission of private respondent. Besides, the privilege of sovereign
immunity in this case was sufficiently established by the Memorandum and Certification of the
Department of Foreign Affairs. As the department tasked with the conduct of the Philippines' foreign
relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), the Department of Foreign Affairs has
formally intervened in this case and officially certified that the Embassy of the Holy See is a duly
accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction and entitled
to all the rights, privileges and immunities of a diplomatic mission or embassy in this country (Rollo, pp.
156-157). The determination of the executive arm of government that a state or instrumentality is entitled
to sovereign or diplomatic immunity is a political question that is conclusive upon the courts (International
Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). Where the plea of immunity is
recognized and affirmed by the executive branch, it is the duty of the courts to accept this claim so as not
to embarrass the executive arm of the government in conducting the country's foreign relations (World
Health Organization v. Aquino, 48 SCRA 242 [1972]). As in International Catholic Migration
Commission and in World Health Organization, we abide by the certification of the Department of Foreign
Affairs.

Ordinarily, the procedure would be to remand the case and order the trial court to conduct a hearing to
establish the facts alleged by petitioner in its motion. In view of said certification, such procedure would
however be pointless and unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge Tirso Velasco, G.R.
No. 109645, July 25, 1994).

IV

Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public
International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign
can ask his own government to espouse his cause through diplomatic channels.

Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims
against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See
the validity of its claims. Of course, the Foreign Office shall first make a determination of the impact of its
espousal on the relations between the Philippine government and the Holy See (Young, Remedies of
Private Claimants Against Foreign States, Selected Readings on Protection by Law of Private Foreign
Investments 905, 919 [1964]). Once the Philippine government decides to espouse the claim, the latter
ceases to be a private cause.

According to the Permanent Court of International Justice, the forerunner of the International Court of
Justice:

By taking up the case of one of its subjects and by reporting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own
rights — its right to ensure, in the person of its subjects, respect for the rules of
international law (The Mavrommatis Palestine Concessions, 1 Hudson, World Court
Reports 293, 302 [1924]).

WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183 against
petitioner is DISMISSED.

SO ORDERED.
 EN BANC

G.R. No. 138570 October 10, 2000

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS MILLAMENA
(Iglesia Filipina Independiente), BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.),
DR. REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO,
GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW CENTER, petitioners,
vs.
EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO
SIAZON, DEFENSE SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE,
SENATE PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN DRILON, SENATOR BLAS OPLE,
SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO TATAD, respondents.

x-----------------------x

G.R. No. 138572 October 10, 2000

PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA,

AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners,
vs.
HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as Secretary of
National Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign
Affairs, respondents.

x-----------------------x

G.R. No. 138587 October 10, 2000

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEÑA III, petitioners,
vs.
JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B.
MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G.
BIAZON, respondents.

x-----------------------x

G.R. No. 138680 October 10, 2000

INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila
Grapilon, petitioners,
vs.
JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the Philippines, and HON.
DOMINGO SIAZON, in his capacity as Secretary of Foreign Affairs, respondents.

x-----------------------x

G.R. No. 138698 October 10, 2000

JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA QUEZON-AVENCEÑA, ROLANDO

SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P.
ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF
NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F. OPLE,
SENATOR RODOLFO G. BIAZON, AND ALL OTHER PERSONS ACTING THEIR CONTROL,
SUPERVISION, DIRECTION, AND INSTRUCTION IN RELATION TO THE VISITING FORCES
AGREEMENT (VFA), respondents.

DECISION

BUENA, J.:

Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition are
issues relating to, and borne by, an agreement forged in the turn of the last century between the Republic
of the Philippines and the United States of America -the Visiting Forces Agreement.

The antecedents unfold.

On March 14, 1947, the Philippines and the United States of America forged a Military Bases Agreement
which formalized, among others, the use of installations in the Philippine territory by United States military
personnel. To further strengthen their defense and security relationship, the Philippines and the United
States entered into a Mutual Defense Treaty on August 30, 1951. Under the treaty, the parties agreed to
respond to any external armed attack on their territory, armed forces, public vessels, and aircraft. 1

In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines and
the United States negotiated for a possible extension of the military bases agreement. On September 16,
1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and Security
which, in effect, would have extended the presence of US military bases in the Philippines.2 With the
expiration of the RP-US Military Bases Agreement, the periodic military exercises conducted between the
two countries were held in abeyance. Notwithstanding, the defense and security relationship between the
Philippines and the United States of America continued pursuant to the Mutual Defense Treaty.

On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for Asia
Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo
Severino Jr., to exchange notes on "the complementing strategic interests of the United States and the
Philippines in the Asia-Pacific region." Both sides discussed, among other things, the possible elements
of the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the VFA led to a
consolidated draft text, which in turn resulted to a final series of conferences and negotiations3 that
culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos approved
the VFA, which was respectively signed by public respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard on February 10, 1998.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs,
ratified the VFA.4

On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora,
officially transmitted to the Senate of the Philippines,5 the Instrument of Ratification, the letter of the
President6 and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987 Constitution. The
Senate, in turn, referred the VFA to its Committee on Foreign Relations, chaired by Senator Blas F. Ople,
and its Committee on National Defense and Security, chaired by Senator Rodolfo G. Biazon, for their joint
consideration and recommendation. Thereafter, joint public hearings were held by the two Committees.7

On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 4438 recommending the
concurrence of the Senate to the VFA and the creation of a Legislative Oversight Committee to oversee
its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-thirds
(2/3) vote9 of its members. Senate Resolution No. 443 was then re-numbered as Senate Resolution No.
18.10

On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between respondent
Secretary Siazon and United States Ambassador Hubbard.

The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for regulating
the circumstances and conditions under which US Armed Forces and defense personnel may be present
in the Philippines, and is quoted in its full text, hereunder:

"Article I
Definitions

"As used in this Agreement, ‘United States personnel’ means United States military and civilian personnel
temporarily in the Philippines in connection with activities approved by the Philippine Government.

"Within this definition:

"1. The term ‘military personnel’ refers to military members of the United States Army, Navy,
Marine Corps, Air Force, and Coast Guard.

"2. The term ‘civilian personnel’ refers to individuals who are neither nationals of, nor ordinary
residents in the Philippines and who are employed by the United States armed forces or who are
accompanying the United States armed forces, such as employees of the American Red Cross
and the United Services Organization.

"Article II
Respect for Law

"It is the duty of the United States personnel to respect the laws of the Republic of the Philippines and to
abstain from any activity inconsistent with the spirit of this agreement, and, in particular, from any political
activity in the Philippines. The Government of the United States shall take all measures within its authority
to ensure that this is done.

"Article III
Entry and Departure

"1. The Government of the Philippines shall facilitate the admission of United States personnel
and their departure from the Philippines in connection with activities covered by this agreement.

"2. United States military personnel shall be exempt from passport and visa regulations upon
entering and departing the Philippines.

"3. The following documents only, which shall be presented on demand, shall be required in
respect of United States military personnel who enter the Philippines:

"(a) personal identity card issued by the appropriate United States authority showing full
name, date of birth, rank or grade and service number (if any), branch of service and
photograph;
 "(b) individual or collective document issued by the appropriate United States authority,
authorizing the travel or visit and identifying the individual or group as United States
military personnel; and

"(c) the commanding officer of a military aircraft or vessel shall present a declaration of
health, and when required by the cognizant representative of the Government of the
Philippines, shall conduct a quarantine inspection and will certify that the aircraft or
vessel is free from quarantinable diseases. Any quarantine inspection of United States
aircraft or United States vessels or cargoes thereon shall be conducted by the United
States commanding officer in accordance with the international health regulations as
promulgated by the World Health Organization, and mutually agreed procedures.

"4. United States civilian personnel shall be exempt from visa requirements but shall present,
upon demand, valid passports upon entry and departure of the Philippines.

"5. If the Government of the Philippines has requested the removal of any United States
personnel from its territory, the United States authorities shall be responsible for receiving the
person concerned within its own territory or otherwise disposing of said person outside of the
Philippines.

"Article IV

Driving and Vehicle Registration

"1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license
issued by the appropriate United States authority to United States personnel for the operation of
military or official vehicles.

"2. Vehicles owned by the Government of the United States need not be registered, but shall
have appropriate markings.

"Article V
Criminal Jurisdiction

"1. Subject to the provisions of this article:

(a) Philippine authorities shall have jurisdiction over United States personnel with respect to
offenses committed within the Philippines and punishable under the law of the Philippines.

(b) United States military authorities shall have the right to exercise within the Philippines all
criminal and disciplinary jurisdiction conferred on them by the military law of the United States
over United States personnel in the Philippines.

"2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect to
offenses, including offenses relating to the security of the Philippines, punishable under the laws of the
Philippines, but not under the laws of the United States.

(b) United States authorities exercise exclusive jurisdiction over United States personnel with
respect to offenses, including offenses relating to the security of the United States, punishable
under the laws of the United States, but not under the laws of the Philippines.

(c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating to
security means:
 (1) treason;

(2) sabotage, espionage or violation of any law relating to national defense.

"3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:

(a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses
committed by United States personnel, except in cases provided for in paragraphs 1(b), 2 (b), and
3 (b) of this Article.

(b) United States military authorities shall have the primary right to exercise jurisdiction over
United States personnel subject to the military law of the United States in relation to.

(1) offenses solely against the property or security of the United States or offenses solely
against the property or person of United States personnel; and

(2) offenses arising out of any act or omission done in performance of official duty.

(c) The authorities of either government may request the authorities of the other
government to waive their primary right to exercise jurisdiction in a particular case.

(d) Recognizing the responsibility of the United States military authorities to maintain
good order and discipline among their forces, Philippine authorities will, upon request by
the United States, waive their primary right to exercise jurisdiction except in cases of
particular importance to the Philippines. If the Government of the Philippines determines
that the case is of particular importance, it shall communicate such determination to the
United States authorities within twenty (20) days after the Philippine authorities receive
the United States request.

(e) When the United States military commander determines that an offense charged by
authorities of the Philippines against United states personnel arises out of an act or
omission done in the performance of official duty, the commander will issue a certificate
setting forth such determination. This certificate will be transmitted to the appropriate
authorities of the Philippines and will constitute sufficient proof of performance of official
duty for the purposes of paragraph 3(b)(2) of this Article. In those cases where the
Government of the Philippines believes the circumstances of the case require a review of
the duty certificate, United States military authorities and Philippine authorities shall
consult immediately. Philippine authorities at the highest levels may also present any
information bearing on its validity. United States military authorities shall take full account
of the Philippine position. Where appropriate, United States military authorities will take
disciplinary or other action against offenders in official duty cases, and notify the
Government of the Philippines of the actions taken.

(f) If the government having the primary right does not exercise jurisdiction, it shall notify
the authorities of the other government as soon as possible.

(g) The authorities of the Philippines and the United States shall notify each other of the
disposition of all cases in which both the authorities of the Philippines and the United
States have the right to exercise jurisdiction.

"4. Within the scope of their legal competence, the authorities of the Philippines and United States shall
assist each other in the arrest of United States personnel in the Philippines and in handling them over to
authorities who are to exercise jurisdiction in accordance with the provisions of this article.
"5. United States military authorities shall promptly notify Philippine authorities of the arrest or detention of
United States personnel who are subject of Philippine primary or exclusive jurisdiction. Philippine
authorities shall promptly notify United States military authorities of the arrest or detention of any United
States personnel.

"6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall
immediately reside with United States military authorities, if they so request, from the commission of the
offense until completion of all judicial proceedings. United States military authorities shall, upon formal
notification by the Philippine authorities and without delay, make such personnel available to those
authorities in time for any investigative or judicial proceedings relating to the offense with which the
person has been charged in extraordinary cases, the Philippine Government shall present its position to
the United States Government regarding custody, which the United States Government shall take into full
account. In the event Philippine judicial proceedings are not completed within one year, the United States
shall be relieved of any obligations under this paragraph. The one-year period will not include the time
necessary to appeal. Also, the one-year period will not include any time during which scheduled trial
procedures are delayed because United States authorities, after timely notification by Philippine
authorities to arrange for the presence of the accused, fail to do so.

"7. Within the scope of their legal authority, United States and Philippine authorities shall assist each
other in the carrying out of all necessary investigation into offenses and shall cooperate in providing for
the attendance of witnesses and in the collection and production of evidence, including seizure and, in
proper cases, the delivery of objects connected with an offense.

"8. When United States personnel have been tried in accordance with the provisions of this Article and
have been acquitted or have been convicted and are serving, or have served their sentence, or have had
their sentence remitted or suspended, or have been pardoned, they may not be tried again for the same
offense in the Philippines. Nothing in this paragraph, however, shall prevent United States military
authorities from trying United States personnel for any violation of rules of discipline arising from the act
or omission which constituted an offense for which they were tried by Philippine authorities.

"9. When United States personnel are detained, taken into custody, or prosecuted by Philippine
authorities, they shall be accorded all procedural safeguards established by the law of the Philippines. At
the minimum, United States personnel shall be entitled:

(a) To a prompt and speedy trial;

(b) To be informed in advance of trial of the specific charge or charges made against them and to
have reasonable time to prepare a defense;

(c) To be confronted with witnesses against them and to cross examine such witnesses;

(d) To present evidence in their defense and to have compulsory process for obtaining witnesses;

(e) To have free and assisted legal representation of their own choice on the same basis as
nationals of the Philippines;

(f) To have the service of a competent interpreter; and

(g) To communicate promptly with and to be visited regularly by United States authorities, and to
have such authorities present at all judicial proceedings. These proceedings shall be public
unless the court, in accordance with Philippine laws, excludes persons who have no role in the
proceedings.
"10. The confinement or detention by Philippine authorities of United States personnel shall be carried out
in facilities agreed on by appropriate Philippine and United States authorities. United States Personnel
serving sentences in the Philippines shall have the right to visits and material assistance.

"11. United States personnel shall be subject to trial only in Philippine courts of ordinary jurisdiction, and
shall not be subject to the jurisdiction of Philippine military or religious courts.

"Article VI
Claims

"1. Except for contractual arrangements, including United States foreign military sales letters of
offer and acceptance and leases of military equipment, both governments waive any and all
claims against each other for damage, loss or destruction to property of each other’s armed
forces or for death or injury to their military and civilian personnel arising from activities to which
this agreement applies.

"2. For claims against the United States, other than contractual claims and those to which
paragraph 1 applies, the United States Government, in accordance with United States law
regarding foreign claims, will pay just and reasonable compensation in settlement of meritorious
claims for damage, loss, personal injury or death, caused by acts or omissions of United States
personnel, or otherwise incident to the non-combat activities of the United States forces.

"Article VII
Importation and Exportation

"1. United States Government equipment, materials, supplies, and other property imported into or
acquired in the Philippines by or on behalf of the United States armed forces in connection with
activities to which this agreement applies, shall be free of all Philippine duties, taxes and other
similar charges. Title to such property shall remain with the United States, which may remove
such property from the Philippines at any time, free from export duties, taxes, and other similar
charges. The exemptions provided in this paragraph shall also extend to any duty, tax, or other
similar charges which would otherwise be assessed upon such property after importation into, or
acquisition within, the Philippines. Such property may be removed from the Philippines, or
disposed of therein, provided that disposition of such property in the Philippines to persons or
entities not entitled to exemption from applicable taxes and duties shall be subject to payment of
such taxes, and duties and prior approval of the Philippine Government.

"2. Reasonable quantities of personal baggage, personal effects, and other property for the
personal use of United States personnel may be imported into and used in the Philippines free of
all duties, taxes and other similar charges during the period of their temporary stay in the
Philippines. Transfers to persons or entities in the Philippines not entitled to import privileges may
only be made upon prior approval of the appropriate Philippine authorities including payment by
the recipient of applicable duties and taxes imposed in accordance with the laws of the
Philippines. The exportation of such property and of property acquired in the Philippines by
United States personnel shall be free of all Philippine duties, taxes, and other similar charges.

"Article VIII
Movement of Vessels and Aircraft

"1. Aircraft operated by or for the United States armed forces may enter the Philippines upon
approval of the Government of the Philippines in accordance with procedures stipulated in
implementing arrangements.
 "2. Vessels operated by or for the United States armed forces may enter the Philippines upon
approval of the Government of the Philippines. The movement of vessels shall be in accordance
with international custom and practice governing such vessels, and such agreed implementing
arrangements as necessary.

"3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall not be
subject to the payment of landing or port fees, navigation or over flight charges, or tolls or other
use charges, including light and harbor dues, while in the Philippines. Aircraft operated by or for
the United States armed forces shall observe local air traffic control regulations while in the
Philippines. Vessels owned or operated by the United States solely on United States Government
non-commercial service shall not be subject to compulsory pilotage at Philippine ports.

"Article IX
Duration and Termination

"This agreement shall enter into force on the date on which the parties have notified each other in writing
through the diplomatic channel that they have completed their constitutional requirements for entry into
force. This agreement shall remain in force until the expiration of 180 days from the date on which either
party gives the other party notice in writing that it desires to terminate the agreement."

Via these consolidated11 petitions for certiorari and prohibition, petitioners - as legislators, non-
governmental organizations, citizens and taxpayers - assail the constitutionality of the VFA and impute to
herein respondents grave abuse of discretion in ratifying the agreement.

We have simplified the issues raised by the petitioners into the following:

Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the
constitutionality of the VFA?

II

Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of the
Constitution?

III

Does the VFA constitute an abdication of Philippine sovereignty?

a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by US
military personnel?

b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion
perpetua or higher?

IV

Does the VFA violate:

a. the equal protection clause under Section 1, Article III of the Constitution?
 b. the Prohibition against nuclear weapons under Article II, Section 8?

c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties for
the equipment, materials supplies and other properties imported into or acquired in the
Philippines by, or on behalf, of the US Armed Forces?

LOCUS STANDI

At the outset, respondents challenge petitioner’s standing to sue, on the ground that the latter have not
shown any interest in the case, and that petitioners failed to substantiate that they have sustained, or will
sustain direct injury as a result of the operation of the VFA.12 Petitioners, on the other hand, counter that
the validity or invalidity of the VFA is a matter of transcendental importance which justifies their
standing.13

A party bringing a suit challenging the constitutionality of a law, act, or statute must show "not only that
the law is invalid, but also that he has sustained or in is in immediate, or imminent danger of sustaining
some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite
way." He must show that he has been, or is about to be, denied some right or privilege to which he is
lawfully entitled, or that he is about to be subjected to some burdens or penalties by reason of the statute
complained of.14

In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have sustained,
or are in danger of sustaining any direct injury as a result of the enforcement of the VFA. As taxpayers,
petitioners have not established that the VFA involves the exercise by Congress of its taxing or spending
powers.15 On this point, it bears stressing that a taxpayer’s suit refers to a case where the act complained
of directly involves the illegal disbursement of public funds derived from taxation.16 Thus, in Bugnay
Const. & Development Corp. vs. Laron17 , we held:

"x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured by the
judgment or entitled to the avails of the suit as a real party in interest. Before he can invoke the power of
judicial review, he must specifically prove that he has sufficient interest in preventing the illegal
expenditure of money raised by taxation and that he will sustain a direct injury as a result of the
enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest
common to all members of the public."

Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence of
any allegation by petitioners that public funds are being misspent or illegally expended, petitioners, as
taxpayers, have no legal standing to assail the legality of the VFA.

Similarly, Representatives Wigberto Tañada, Agapito Aquino and Joker Arroyo, as petitioners-legislators,
do not possess the requisite locus standi to maintain the present suit. While this Court, in Phil.
Constitution Association vs. Hon. Salvador Enriquez, 18 sustained the legal standing of a member of
the Senate and the House of Representatives to question the validity of a presidential veto or a condition
imposed on an item in an appropriation bull, we cannot, at this instance, similarly uphold petitioners’
standing as members of Congress, in the absence of a clear showing of any direct injury to their person
or to the institution to which they belong.

Beyond this, the allegations of impairment of legislative power, such as the delegation of the power of
Congress to grant tax exemptions, are more apparent than real. While it may be true that petitioners
pointed to provisions of the VFA which allegedly impair their legislative powers, petitioners failed however
to sufficiently show that they have in fact suffered direct injury.

In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in these cases.
As aptly observed by the Solicitor General, the IBP lacks the legal capacity to bring this suit in the
absence of a board resolution from its Board of Governors authorizing its National President to
commence the present action.19

Notwithstanding, in view of the paramount importance and the constitutional significance of the issues
raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural
barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers
Cases,20 where we had occasion to rule:

"x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive
orders issued by President Quirino although they were involving only an indirect and general interest
shared in common with the public. The Court dismissed the objection that they were not proper parties
and ruled that ‘transcendental importance to the public of these cases demands that they be
settled promptly and definitely, brushing aside, if we must, technicalities of procedure.’ We have
since then applied the exception in many other cases. (Association of Small Landowners in the
Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343)." (Underscoring Supplied)

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,21 Daza vs.
Singson,22 and Basco vs. Phil. Amusement and Gaming Corporation,23 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 and that they have not abused the
discretion given to them, the Court has brushed aside technicalities of procedure and has taken
cognizance of this petition. x x x"

Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,24 thisCourt ruled that in cases of
transcendental importance, the Court may relax the standing requirements and allow a suit to
prosper even where there is no direct injury to the party claiming the right of judicial review.

Although courts generally avoid having to decide a constitutional question based on the doctrine of
separation of powers, which enjoins upon the departments of the government a becoming respect for
each others’ acts,25 this Court nevertheless resolves to take cognizance of the instant petitions.

APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy is the determination of which provision of the Constitution
applies, with regard to the exercise by the senate of its constitutional power to concur with the VFA.
Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA has for its subject
the presence of foreign military troops in the Philippines. Respondents, on the contrary, maintain that
Section 21, Article VII should apply inasmuch as the VFA is not a basing arrangement but an agreement
which involves merely the temporary visits of United States personnel engaged in joint military exercises.

The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on
treaties or international agreements. Section 21, Article VII, which herein respondents invoke, reads:

"No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds
of all the Members of the Senate."

Section 25, Article XVIII, provides:

"After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United
States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in by the senate and, when the Congress
so requires, ratified by a majority of the votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting State."

Section 21, Article VII deals with treatise or international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject
treaty, or international agreement, valid and binding on the part of the Philippines. This provision lays
down the general rule on treatise or international agreements and applies to any form of treaty with a
wide variety of subject matter, such as, but not limited to, extradition or tax treatise or those economic in
nature. All treaties or international agreements entered into by the Philippines, regardless of subject
matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be
valid and effective.

In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the
presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the
concurrence of the Senate is only one of the requisites to render compliance with the constitutional
requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII further
requires that "foreign military bases, troops, or facilities" may be allowed in the Philippines only by virtue
of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national
referendum held for that purpose if so required by Congress, and recognized as such by the other
contracting state.

It is our considered view that both constitutional provisions, far from contradicting each other, actually
share some common ground. These constitutional provisions both embody phrases in the negative and
thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens with the clause
"No treaty x x x," and Section 25 contains the phrase "shall not be allowed." Additionally, in both
instances, the concurrence of the Senate is indispensable to render the treaty or international agreement
valid and effective.

To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and
that the Senate extended its concurrence under the same provision, is immaterial. For in either case,
whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental law is crystalline that
the concurrence of the Senate is mandatory to comply with the strict constitutional requirements.

On the whole, the VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel,
and further defines the rights of the United States and the Philippine government in the matter of criminal
jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and
supplies.

Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military
bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited sense,
however, the provisions of section 21, Article VII will find applicability with regard to the issue and for the
sole purpose of determining the number of votes required to obtain the valid concurrence of the Senate,
as will be further discussed hereunder.

It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a
general one. Lex specialis derogat generali. Thus, where there is in the same statute a particular
enactment and also a general one which, in its most comprehensive sense, would include what is
embraced in the former, the particular enactment must be operative, and the general enactment must be
taken to affect only such cases within its general language which are not within the provision of the
particular enactment.26

In Leveriza vs. Intermediate Appellate Court,27 we enunciated:

"x x x that another basic principle of statutory construction mandates that general legislation must give
way to a special legislation on the same subject, and generally be so interpreted as to embrace only
cases in which the special provisions are not applicable (Sto. Domingo vs. de los Angeles, 96 SCRA
139), that a specific statute prevails over a general statute (De Jesus vs. People, 120 SCRA 760) and
that where two statutes are of equal theoretical application to a particular case, the one designed therefor
specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38)."

Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient
agreements for the reason that there is no permanent placing of structure for the establishment of a
military base. On this score, the Constitution makes no distinction between "transient’ and "permanent".
Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be
stationed or placed permanently in the Philippines.

It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court should not
distinguish- Ubi lex non distinguit nec nos distinguire debemos.

In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling since
no foreign military bases, but merely foreign troops and facilities, are involved in the VFA. Notably, a
perusal of said constitutional provision reveals that the proscription covers "foreign military bases,
troops, or facilities." Stated differently, this prohibition is not limited to the entry of troops and facilities
without any foreign bases being established. The clause does not refer to "foreign military bases,
troops, or facilities" collectively but treats them as separate and independent subjects. The use of comma
and the disjunctive word "or" clearly signifies disassociation and independence of one thing from the
others included in the enumeration,28 such that, the provision contemplates three different situations - a
military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign
facilities - any of the three standing alone places it under the coverage of Section 25, Article XVIII.

To this end, the intention of the framers of the Charter, as manifested during the deliberations of the 1986
Constitutional Commission, is consistent with this interpretation:

"MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.

This formulation speaks of three things: foreign military bases, troops or facilities. My first question is: If
the country does enter into such kind of a treaty, must it cover the three-bases, troops or
facilities-or could the treaty entered into cover only one or two?

FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three, the
requirement will be the same.

MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not
bases but merely troops?

FR. BERNAS. Yes.

MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty covering only
troops.

FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some. We just
want to cover everything."29 (Underscoring Supplied)

Moreover, military bases established within the territory of another state is no longer viable because of
the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided
missiles as well as huge sea vessels that can stay afloat in the sea even for months and years without
returning to their home country. These military warships are actually used as substitutes for a land-home
base not only of military aircraft but also of military personnel and facilities. Besides, vessels are mobile
as compared to a land-based military headquarters.

At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25 were
complied with when the Senate gave its concurrence to the VFA.

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the
following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly
concurred in by the Senate and, when so required by congress, ratified by a majority of the votes cast
by the people in a national referendum; and (c) recognized as a treaty by the other contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence
handed by the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution,
whether under the general requirement in Section 21, Article VII, or the specific mandate mentioned in
Section 25, Article XVIII, the provision in the latter article requiring ratification by a majority of the votes
cast in a national referendum being unnecessary since Congress has not required it.

As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international
agreement, to be valid and effective, must be concurred in by at least two-thirds of all the members
of the Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty be "duly
concurred in by the Senate."

Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is
clearly required so that the concurrence contemplated by law may be validly obtained and deemed
present. While it is true that Section 25, Article XVIII requires, among other things, that the treaty-the
VFA, in the instant case-be "duly concurred in by the Senate," it is very true however that said provision
must be related and viewed in light of the clear mandate embodied in Section 21, Article VII, which in
more specific terms, requires that the concurrence of a treaty, or international agreement, be made by a
two -thirds vote of all the members of the Senate. Indeed, Section 25, Article XVIII must not be treated in
isolation to section 21, Article, VII.

As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in relation to
the provisions of Section 21, Article VII. In a more particular language, the concurrence of the Senate
contemplated under Section 25, Article XVIII means that at least two-thirds of all the members of the
Senate favorably vote to concur with the treaty-the VFA in the instant case.

Under these circumstances, the charter provides that the Senate shall be composed of twenty-four (24)
Senators.30 Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16) members,
favorably acting on the proposal is an unquestionable compliance with the requisite number of votes
mentioned in Section 21 of Article VII. The fact that there were actually twenty-three (23) incumbent
Senators at the time the voting was made,31 will not alter in any significant way the circumstance that
more than two-thirds of the members of the Senate concurred with the proposed VFA, even if the two-
thirds vote requirement is based on this figure of actual members (23). In this regard, the fundamental law
is clear that two-thirds of the 24 Senators, or at least 16 favorable votes, suffice so as to render
compliance with the strict constitutional mandate of giving concurrence to the subject treaty.

Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we shall
now pass upon and delve on the requirement that the VFA should be recognized as a treaty by the United
States of America.

Petitioners content that the phrase "recognized as a treaty," embodied in section 25, Article XVIII, means
that the VFA should have the advice and consent of the United States Senate pursuant to its own
constitutional process, and that it should not be considered merely an executive agreement by the United
States.

In opposition, respondents argue that the letter of United States Ambassador Hubbard stating that the
VFA is binding on the United States Government is conclusive, on the point that the VFA is recognized as
a treaty by the United States of America. According to respondents, the VFA, to be binding, must only be
accepted as a treaty by the United States.

This Court is of the firm view that the phrase "recognized as a treaty" means that the other contracting
party accepts or acknowledges the agreement as a treaty.32 To require the other contracting state, the
United States of America in this case, to submit the VFA to the United States Senate for concurrence
pursuant to its Constitution,33 is to accord strict meaning to the phrase.

Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary
meaning except where technical terms are employed, in which case the significance thus attached to
them prevails. Its language should be understood in the sense they have in common use.34

Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement
because, under international law, an executive agreement is as binding as a treaty.35 To be sure, as long
as the VFA possesses the elements of an agreement under international law, the said agreement is to be
taken equally as a treaty.

A treaty, as defined by the Vienna Convention on the Law of Treaties, is "an international instrument
concluded between States in written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments, and whatever its particular designation."36 There
are many other terms used for a treaty or international agreement, some of which are: act, protocol,
agreement, compromis d’ arbitrage, concordat, convention, declaration, exchange of notes, pact, statute,
charter and modus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or
titles of international agreements included under the general term treaty have little or no legal
significance. Certain terms are useful, but they furnish little more than mere description. 37

Article 2(2) of the Vienna Convention provides that "the provisions of paragraph 1 regarding the use of
terms in the present Convention are without prejudice to the use of those terms, or to the meanings which
may be given to them in the internal law of the State."

Thus, in international law, there is no difference between treaties and executive agreements in their
binding effect upon states concerned, as long as the negotiating functionaries have remained within their
powers.38 International law continues to make no distinction between treaties and executive agreements:
they are equally binding obligations upon nations.39

In our jurisdiction, we have recognized the binding effect of executive agreements even without the
concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea Trading,40 we
had occasion to pronounce:

"x x x the right of the Executive to enter into binding agreements without the necessity of subsequent
congressional approval has been confirmed by long usage. From the earliest days of our history we have
entered into executive agreements covering such subjects as commercial and consular relations, most-
favored-nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of these has never been seriously questioned by
our courts.

"x x x x x x x x x
"Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality
of executive agreements entered into without Senate approval. (39 Columbia Law Review, pp. 753-754)
(See, also, U.S. vs. Curtis Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont,
301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d.
288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on
International Law [revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S.
Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218;
Hackworth, International Law Digest, Vol. V, pp. 390-407). (Italics Supplied)" (Emphasis Ours)

The deliberations of the Constitutional Commission which drafted the 1987 Constitution is enlightening
and highly-instructive:

"MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other state is
concerned, that is entirely their concern under their own laws.

FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done everything to
make it a treaty, then as far as we are concerned, we will accept it as a treaty."41

The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has
stated that the United States government has fully committed to living up to the terms of the VFA. 42 For as
long as the united States of America accepts or acknowledges the VFA as a treaty, and binds itself
further to comply with its obligations under the treaty, there is indeed marked compliance with the
mandate of the Constitution.

Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the
Senate should be taken as a clear an unequivocal expression of our nation’s consent to be bound by said
treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder.

Ratification is generally held to be an executive act, undertaken by the head of the state or of the
government, as the case may be, through which the formal acceptance of the treaty is proclaimed.43 A
State may provide in its domestic legislation the process of ratification of a treaty. The consent of the
State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such
ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be
required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the intention
of the State to sign the treaty subject to ratification appears from the full powers of its representative, or
was expressed during the negotiation.44

In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the
legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to
the ratification.45

With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes
between the Philippines and the United States of America, it now becomes obligatory and incumbent on
our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no
less than Section 2, Article II of the Constitution,46 declares that the Philippines 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.

As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for
the conduct of its international relations. While the international obligation devolves upon the state and
not upon any particular branch, institution, or individual member of its government, the Philippines is
nonetheless responsible for violations committed by any branch or subdivision of its government or any
official thereof. As an integral part of the community of nations, we are responsible to assure that our
government, Constitution and laws will carry out our international obligation.47 Hence, we cannot readily
plead the Constitution as a convenient excuse for non-compliance with our obligations, duties and
responsibilities under international law.

Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law
Commission in 1949 provides: "Every State has the duty to carry out in good faith its obligations arising
from treaties and other sources of international law, and it may not invoke provisions in its constitution or
its laws as an excuse for failure to perform this duty."48

Equally important is Article 26 of the convention which provides that "Every treaty in force is binding upon
the parties to it and must be performed by them in good faith." This is known as the principle of pacta sunt
servanda which preserves the sanctity of treaties and have been one of the most fundamental principles
of positive international law, supported by the jurisprudence of international tribunals.49

NO GRAVE ABUSE OF DISCRETION

In the instant controversy, the President, in effect, is heavily faulted for exercising a power and performing
a task conferred upon him by the Constitution-the power to enter into and ratify treaties. Through the
expediency of Rule 65 of the Rules of Court, petitioners in these consolidated cases impute grave abuse
of discretion on the part of the chief Executive in ratifying the VFA, and referring the same to the Senate
pursuant to the provisions of Section 21, Article VII of the Constitution.

On this particular matter, grave abuse of discretion implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an
evasion of positive duty enjoined or to act at all in contemplation of law.50

By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole
organ and authority in the external affairs of the country. In many ways, the President is the chief architect
of the nation’s foreign policy; his "dominance in the field of foreign relations is (then)
conceded."51 Wielding vast powers an influence, his conduct in the external affairs of the nation, as
Jefferson describes, is "executive altogether."52

As regards the power to enter into treaties or international agreements, the Constitution vests the same in
the President, subject only to the concurrence of at least two-thirds vote of all the members of the Senate.
In this light, the negotiation of the VFA and the subsequent ratification of the agreement are exclusive
acts which pertain solely to the President, in the lawful exercise of his vast executive and diplomatic
powers granted him no less than by the fundamental law itself. Into the field of negotiation the Senate
cannot intrude, and Congress itself is powerless to invade it.53 Consequently, the acts or judgment calls of
the President involving the VFA-specifically the acts of ratification and entering into a treaty and those
necessary or incidental to the exercise of such principal acts - squarely fall within the sphere of his
constitutional powers and thus, may not be validly struck down, much less calibrated by this Court, in the
absence of clear showing of grave abuse of power or discretion.

It is the Court’s considered view that the President, in ratifying the VFA and in submitting the same to the
Senate for concurrence, acted within the confines and limits of the powers vested in him by the
Constitution. It is of no moment that the President, in the exercise of his wide latitude of discretion and in
the honest belief that the VFA falls within the ambit of Section 21, Article VII of the Constitution, referred
the VFA to the Senate for concurrence under the aforementioned provision. Certainly, no abuse of
discretion, much less a grave, patent and whimsical abuse of judgment, may be imputed to the President
in his act of ratifying the VFA and referring the same to the Senate for the purpose of complying with the
concurrence requirement embodied in the fundamental law. In doing so, the President merely performed
a constitutional task and exercised a prerogative that chiefly pertains to the functions of his office. Even if
he erred in submitting the VFA to the Senate for concurrence under the provisions of Section 21 of Article
VII, instead of Section 25 of Article XVIII of the Constitution, still, the President may not be faulted or
scarred, much less be adjudged guilty of committing an abuse of discretion in some patent, gross, and
capricious manner.

For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope of judicial
inquiry into areas normally left to the political departments to decide, such as those relating to national
security, it has not altogether done away with political questions such as those which arise in the field of
foreign relations.54 The High Tribunal’s function, as sanctioned by Article VIII, Section 1, "is merely (to)
check whether or not the governmental branch or agency has gone beyond the constitutional limits of its
jurisdiction, not that it erred or has a different view. In the absence of a showing… (of) grave abuse of
discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its corrective
power…It has no power to look into what it thinks is apparent error."55

As to the power to concur with treaties, the constitution lodges the same with the Senate
alone.1âwphi1 Thus, once the Senate56 performs that power, or exercises its prerogative within the
boundaries prescribed by the Constitution, the concurrence cannot, in like manner, be viewed to
constitute an abuse of power, much less grave abuse thereof. Corollarily, the Senate, in the exercise of
its discretion and acting within the limits of such power, may not be similarly faulted for having simply
performed a task conferred and sanctioned by no less than the fundamental law.

For the role of the Senate in relation to treaties is essentially legislative in character;57 the Senate, as an
independent body possessed of its own erudite mind, has the prerogative to either accept or reject the
proposed agreement, and whatever action it takes in the exercise of its wide latitude of discretion,
pertains to the wisdom rather than the legality of the act. In this sense, the Senate partakes a principal,
yet delicate, role in keeping the principles of separation of powers and of checks and balances alive and
vigilantly ensures that these cherished rudiments remain true to their form in a democratic government
such as ours. The Constitution thus animates, through this treaty-concurring power of the Senate, a
healthy system of checks and balances indispensable toward our nation’s pursuit of political maturity and
growth. True enough, rudimentary is the principle that matters pertaining to the wisdom of a legislative act
are beyond the ambit and province of the courts to inquire.

In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this Court- as
the final arbiter of legal controversies and staunch sentinel of the rights of the people - is then without
power to conduct an incursion and meddle with such affairs purely executive and legislative in character
and nature. For the Constitution no less, maps out the distinct boundaries and limits the metes and
bounds within which each of the three political branches of government may exercise the powers
exclusively and essentially conferred to it by law.

WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby DISMISSED.

SO ORDERED.