SECOND DIVISION

[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. Meville Hussey for respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; VALIDITY OF
EXECUTIVE ORDER NO. 68 ESTABLISHING A
NATIONAL WAR CRIMES OFFICE. Executive Order
No. 68 which was issued by the President of the
Philippines on the 29th day of July, 1947, is valid 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 law
of the nation."
2. INTERNATIONAL LAW; VIOLATORS OF
THE LAWS AND CUSTOMS OF WAR, OF HUMANITY
AND CIVILIZATION, LIABILITY AND RESPONSIBILITY
OF. In accordance with the generally accepted
principles of international law of the present day, including
the Hague Convention, the Geneva Convention and
significant precedents of international jurisprudence
established by the United Nations, all those persons,
military of 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.
3. ID.; POWER OF THE PRESIDENT OF THE
PHILIPPINES. IN the promulgation and enforcement of
Executive Order No. 68, the President of the Philippines
has acted in conformity with the generally accepted
principles and policies and international law which are
part of our constitution.
4. CONSTITUTIONAL LAW; POWER OF
PRESIDENT AS COMMANDER IN CHIEF OR ARMED
FORCES OF THE PHILIPPINES. The promulgation of
said executive order is an exercise by the President of his
powers as Commander in Chief of all our armed forces.
5. ID.; ID.; The President as Commander in
Chief is fully empowered to consummate this unfinished
aspects of war, namely, the trial and punishment of war
criminals, through the issuance and enforcement of
Executive Order No. 68.
6. INTERNATIONAL LAW; HAGUE AND
GENEVA CONVENTION FORM PART OF THE LAW OF
THE PHILIPPINES; EVEN IF THE PHILIPPINES WAS
NOT SIGNATORY THEREOF, PROVISIONS OF
PHILIPPINE
CONSTITUTION
HAS
BEEN
COMPREHENSIVE TO THAT EFFECT. The rules and
regulations of the Hague and Geneva Conventions form
part of and are wholly based on the generally accepted
principles of international law. In fact, these rules and
principles were accepted by the two belligerent nations,
the United States and Japan, who were signatories to the
two Conventions. Such rules 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 rules and principles of international law as
contained in treaties to which our government may have
been or shall be a signatory.
7. id.; rights and obligations of a nation were
not erased by assumption of full sovereignty RIGHT TO
TRY
AND
PUNISH
CRIMES
THERETOFORE
COMMITTED. When the crimes charged against
petitioner were allegedly committed, the Philippines was
under the sovereignty of the United States, and thus we
were equally bound together with the United Sates and
with Japan, to the rights and obligations contained in the
treaties between the belligerent countries. These rights
and obligations were not erased by our assumption of full
sovereignty. If at right, on our own, of trying and punishing
those who committed crimes against our people.
8. ID.; ID.; ID.; War crimes committed
against our people and our government while we are a
Commonwealth, are triable and punishable by our present
Republic.
9. MILITARY COMMISSION GOVERNED BY
SPECIAL LAW. Military Commission is a special
military tribunal governed by a special law and not by the
Rules of Court which govern ordinary civil courts.
10. MILITARY
COMMISSION;
COUNSEL
APPEARING BEFORE IT NOT NECESSARILY A
MEMBER OF THE PHILIPPINE BAR. There is nothing
in Executive Order No. 68 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 fact, 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.
11. ID.; TRIAL OF WAR CRIMES BEFORE
PHILIPPINE COURTS; ALLOWANCE OF AMERICAN
ATTORNEYS TO REPRESENT UNITED STATES. The
appointment of the two American attorneys is not violative
of our national sovereignty. It is only fair and proper that
the 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 by the United States 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.
12. ID.; ID.; ID. It is of common knowledge
that the United States 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.
13. ID.; JURISDICTION; SUPREME COURT
WILL NOT INTERFERE WITH DUE PROCESSES OF
MILITARY COMMISSION. 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
jurisdiction over the person of the petitioner by having
said petitioner in its custody, this court will not interfere
with the due processes of such Military Commission.
Per PERFECTO, J., dissenting:
14. ATTORNEYS AT LAW; ALIENS CANNOT
PRACTICE LAW. It appearing that Attys. Hussey and
Port are aliens and have not been authorized by the
Supreme Court to practice law, they cannot appear as

prosecutors in a case pending before the War Crimes

Commission.
15. CONSTITUTIONAL LAW; LEGISLATIVE
POWER VESTED IN CONGRESS; EXCEPTION.
While there is no express provision in the fundamental
law prohibiting the exercise of legislative power by
agencies other than Congress, a reading of the whole
context of the Constitution would dispel any doubt as to
the constitutional intent that the legislative power is to be
exercised exclusively by Congress, subject only to the
veto power of the President, to his to suspend the writ
ofhabeas corpus, to place any part of the Philippines
under martial law, to the rule-making power expressly
vested by the Constitution in the Supreme Court.
16. ID.; ID.; SCOPE OF POWERS OF
DIFFERENT GOVERNMENTAL DEPARTMENTS.
Because the powers vested by our Constitution to the
several departments of the government are in the nature
of grants, not a recognition of pre-existing powers, no
department of the government may exercise any power or
authority not expressly granted by the Constitution or by
law by virtue of express authority of the Constitution.
17. ID.; ID.; POWER OF PRESIDENT TO
PROMULGATE EXECUTIVE ORDER DEFINING AND
ALLOCATING JURISDICTION FOR PROSECUTION OF
WAR CRIMES ON MILITARY COMMISSION. The
provision in Executive Order No. 68 (series of 1947) of
the President of the Philippines, that persons accused as
war criminals shall be tried by military commission, is
clearly legislative in nature and intends to confer upon
military commission jurisdiction to try all persons charged
with war crimes. But, the power to define and allocate
jurisdiction for the prosecution of persons accused of
crimes is exclusively vested by the Constitution in
Congress.
18. ID.; ID.; POWER TO ESTABLISH
GOVERNMENT OFFICE. Executive Order No.
establishes a National War Crimes Office; but, the power
to establish government offices is essentially legislative.
19. ID.;
RULE-MAKING
POWER
OF
SUPREME COURT; PRESIDENT HAS NO POWER,
MUCH LESS DELEGATE SUCH A POWER, TO
PROVIDE RULES OF PROCEDURE FOR CONDUCT
OF TRIALS. Executive Order No. 68 provides rules of
procedure for the conduct of trials before the War Crimes
Office. This provision on procedural subject constitutes a
usurpation of the rule-making power vested by the
Constitution in the Supreme Court. It further authorizes
military commissions to adopt additional rules of
procedure. If the President of the Philippines cannot
exercise the rule making power vested by the Constitution
in the Supreme Court, he cannot, with more reason,
delegate that power to military commissions.
20. ID.; LEGISLATIVE POWER VESTED IN
CONGRESS;
USURPATION
OF
POWER
TO
APPROPRIATE FUNDS. Executive Order No. 68
appropriates funds for the expenses of the National War
Crimes Office. This constitutes another usurpation of
legislative power, as the power to vote appropriations
belongs to Congress.
21. ID.;
EMERGENCY
POWERS
OF
PRESIDENT UNDER COMMONWEALTH ACTS NOS.
600, 620 AND 671. Commonwealth Acts Nos. 600, 620
and 671, granting the President of the Philippines
emergency powers to promulgate rules and regulations
during national emergency has ceased to have effect
since the liberation of the Philippines, or at latest, upon
the surrender of Japan on September 2, 1945. The
absurdity of the contention that these emergency acts
continued in effect even after the surrender of Japan
cannot be gainsaid. Only a few months after liberation,
and even before the surrender of Japan, the Congress

started to function normally. To let the hypothesis on

continuance prevail will result in the existence of two
distinct, separate and independent legislative organs.
the Congress and the President of the Philippines. Should
there be any disagreement between Congress and the
President, a possibility that no one can dispute, the
President may take advantage of the long recess of
Congress (two-thirds of every year) to repeal and overrule
legislative enactments of Congress, and may set up a
veritable system of dictatorship, absolutely repugnant to
the letter and spirit of the Constitution.
22. STATUTORY
CONSTRUCTION;
PRESUMPTION THAT LEGISLATIVE BODY DID NOT
INTEND TO VIOLATE CONSTITUTION. It has never
been the purpose of the National Assembly to extend the
delegation (embodied in Commonwealth Acts Nos. 600,
620 and 671) beyond the emergency created by war, as
to extent it farther would be violate of the express
provisions of the Constitution. We are of the opinion that
there is no doubt on this question; but, if there could still
be any, the same should be resolved in favor of the
presumption that the National Assembly did not intend to
violate the fundamental law.
23. CONSTITUTIONAL LAW; DUE PROCESS
AND EQUAL PROTECTION OF LAW. Executive Order
No. 68 violates the fundamental guarantees of due
process and equal protection of the law, because it
permits the admission of many kinds of evidence by
which no innocent person can afford to get acquittal, and
by which it is impossible to determine whether an
accused is guilt or not beyond all reasonable doubt.
DECISION
MORAN, C. J p:
Shigenori Kuroda, formerly a LieutenantGeneral of the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in the
Philippines during a period covering 1943 and 1944, 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 commander to control the
operations of members of his 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 petitioner.
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 provisions 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,
petitioner is charged of 'crimes' not based on law, national
and international." Hence, petitioner argues "That in
view of the fact that this commission has been
empanelled by virtue of an unconstitutional law and 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 States 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 appointments as
prosecutors 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 prosecutors, the United States not being
a party in interest in the case.
Executive Order No. 68, establishing a National
War Crimes Office and prescribing rules and regulations
governing the trial of accused war criminals, was issued
by the President of the Philippines on the 29th day 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 law of the nation."
In accordance with the generally accepted principles of
international law of the present day, including the Hague
Convention, the Geneva Convention and significant
precedents of international jurisprudence established by
the United Nations, all those persons, 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 Executive Order
No. 68, the President of the Philippines has acted in
conformity with the generally accepted principles and
policies of international law which are part of our
Constitution.
The promulgation of said executive order is an
exercise by the President of his powers 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.,
654) 1 when we said
"War is not ended simply
because hostilities have ceased. After
cessation of armed hostilities, incidents
of war may remain pending which
should be disposed of as in time of war.
'An important incident to a conduct of
war is the adoption of measures by the
military command not only to repel and
defeat the enemies but to seize and
subject to disciplinary measures 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
date of a treaty of peace, and may
extend beyond, by treaty agreement.'
(Cowls, Trial of War Criminals by
Military
Tribunals,
American
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

criminals, 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 regulations of the
Hague and Geneva conventions form part of and are
wholly based on the generally accepted principles of
international law. In fact, these rules and principles were
accepted by the two belligerent nations, the United States
and Japan, who were signatories to the two Conventions.
Such rules 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 rules and principles of
international law as contained in 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 the United States, and thus we
were equally bound together with the United States and
with Japan, to the rights and obligations contained in the
treaties between the belligerent countries. These rights
and obligations were not erased by our assumption of full
sovereignty. If at all, our emergence as a free state
entitles us to enforce the right, on our own, of trying and
punishing those who committed 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
of government from Commonwealth to
Republic
does
not
affect
the
prosecution of those charged with the
crime of treason committed during the
Commonwealth, because it is an
offense against the same government
and 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 attorneys are not qualified to practice law in the
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 courts. It has already been shown that
Executive Order No. 68 which provides for the
organization of such military commissions is a valid and
constitutional law. There is nothing in said executive order
which requires that counsel appearing before said
commissions must be attorneys qualified to practice law
in the Philippines in accordance with the Rules of Court.
In fact, 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 national sovereignty. It is
only fair and proper that the 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 States 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 States 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 States 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 jurisdiction over the
person of the petitioner by having said petitioner in its
custody, this Court will not interfere with the due
processes of such Military Commission.
Paras, Feria, Pablo, Bengzon, Briones,
Tuason, Montemayor and Reyes, JJ., concur.
Separate Opinions
PERFECTO. J., dissenting:
A military commission was empaneled on
December 1, 1948, to try Lt. Gen. Shigenori Kuroda for
violation of the laws and customs of land warfare.
Melville S. Hussey and Robert Port, American
citizens and not authorized by the Supreme Court to
practice law, were appointed prosecutors representing the
American CIC in the trial of the case.
The commission was empaneled under the
authority of Executive Order No. 68 of the President of the
Philippines, the validity of which is challenged by
petitioner on constitutional grounds. Petitioner has also
challenged the personality of Attorneys Hussey and Port
to appear as prosecutors before the commission.
The charges against petitioner has been filed
since June 26, 1948, in the name of the People of the
Philippines as accusers.
We will consider briefly the challenge against
the appearance of Attorneys Hussey and Port. It
appearing that they are aliens and have not been
authorized by the Supreme Court to practice law, there
could not be any question that said persons cannot
appear as prosecutors in petitioner's case, as with such
appearance they would be practicing law against the law.
Said violation vanishes, however, into
insignificance at the side of the momentous questions
involved in the challenge against the validity of Executive
Order No. 68. Said order is challenged on several
constitutional grounds. To get a clear idea of the
questions raised, it is necessary to read the whole context
of said order which is reproduced as follows:
"EXECUTIVE ORDER No. 68
"ESTABLISHING
A
NATIONAL WAR CRIMES OFFICE
AND PRESCRIBING RULES AND
REGULATIONS GOVERNING THE
TRIAL
OF
ACCUSED
WAR
CRIMINALS.
"I, Manuel Roxas, President
of the Philippines, by virtue of the
powers vested in me by the Constitution
and laws of the Philippines, do hereby
establish a National War Crimes Office
charged with the responsibility of
accomplishing the speedy trial of all

Japanese accused of war crimes

committed in the Philippines, and
prescribe the rules and regulations
governing such trial.
"The National War Crimes
Office is established within the Office of
the Judge Advocate General of the
Army of the Philippines and shall
function under the direction, supervision
and control of the Judge Advocate
General. It shall proceed to collect from
all available sources evidence of war
crimes committed in the Philippines
from the commencement of hostilities
by Japan in December, 1941, maintain
a record thereof, and bring about the
prompt trial of the accused.
"The National War Crimes
Office shall maintain direct liaison with
the
Legal
Section,
General
Headquarters, Supreme Commander
for the Allied Powers, and shall
exchange with the said Office
information and evidence of war crimes.
"The following rules and
regulations shall govern the trial of
persons accused as war criminals:
"I. ESTABLISHMENT OF MILITARY
COMMISSIONS
"(a) General.
Persons
accused as war criminals shall be tried
by military commissions to be convened
by, or under the authority of, the
President of the Philippines.
"II. JURISDICTION
"(a) Over Persons. The
military
commissions
appointed
hereunder shall have jurisdiction over
all persons charged with war crimes
who are in the custody of the convening
authority at the time of the trial.
"(b) Over Offenses. The
military
commissions
established
hereunder shall have jurisdiction over
all offenses including, but not limited to,
the following:
"(1) The
planning,
preparation, initiation or waging of a war
of aggression or a war in violation of
international treaties, agreements or
assurances, or participation in a
common plan or conspiracy for the
accomplishment of any of the foregoing.
"(2) Violations of the laws or
customs of war. Such violations shall
include, but not be limited to, murder, illtreatment or deportation to slave labor
or for any other purpose of civilian
population of or in occupied territory;
murder or ill-treatment of prisoners of
war or internees or persons on the seas
or elsewhere; improper treatment of
hostages; plunder of public or private
property; wanton destruction of cities,
towns or villages; or devastation not
justified by military necessity.
"(3) Murder,
extermination,
enslavement, deportation and other
inhuman acts committed against civilian
populations before or during the war, or
persecutions on political, racial or

religious grounds in execution of, or in

connection with, any crime defined
herein, whether or not in violation of the
local laws.
"III. MEMBERSHIP OF COMMISSIONS
"(a) Appointment.
The
members of each military commission
shall be appointed by the President of
the Philippines, or under authority
delegated by him. Alternates may be
appointed by the convening authority.
Such alternates shall attend all sessions
of the commission, and in case of
illness or other incapacity of any
principal member, an alternate shall
take the place of that member. Any
vacancy among the members or
alternates, occurring after a trial has
begun, may be filed by the convening
authority, but the substance of all
proceedings had and evidence taken in
that case shall be made known to the
said new member or alternate. This fact
shall be announced by the president of
the commission in open court.
"(b) Number of Members.
Each commission shall consist of not
less than three (3) members.
"(c) Qualifications.
The
convening authority shall appoint to the
commission
persons
whom
he
determines to be competent to perform
the duties involved and not disqualified
by personal interest or prejudice,
provided that no person shall be
appointed to hear a case in which he
personally investigated, or wherein his
presence as a witness is required. One
specially qualified member shall be
designated as the law member whose
ruling is final in so far as concerns the
commission on an objection to the
admissibility of evidence offered during
the trial.
"(d) Voting. Except as to
the admissibility of evidence, all rulings
and findings of the Commission shall be
by majority vote, except that conviction
and sentence shall be by the affirmative
vote of not less than two-thirds (2/3) of
the members present.
"(e) Presiding Member. In
the event that the convening authority
does not name one of the members as
the presiding member, the senior officer
among the members of the Commission
present shall preside.
"IV. PROSECUTORS
"(a) Appointment. The
convening authority shall designate one
or more persons to conduct the
prosecution before each commission.
"(b) Duties. The duties of
the prosecutors are:
"(1) To prepare and present
charges and specifications for reference
to a commission.
"(2) To prepare cases for trial
and to conduct the prosecution before
the commission of all cases referred for
trial.

V. POWERS AND PROCEDURE OF

COMMISSIONS
"(a) Conduct of the Trial. A
Commission shall:
"(1) Confine each trial strictly
to a fair and expeditious hearing on the
issues raised by the charges, excluding
irrelevant issues or evidence and
preventing any unnecessary delay or
interference.
"(2) Deal summarily with any
contumacy or contempt, imposing any
appropriate punishment therefor.
"(3) Hold public sessions
except when otherwise decided by the
commission.
"(4) Hold each session at
such time and place as it shall
determine, or as may be directed by the
convening authority.
"(b) Rights of the Accused.
The accused shall be entitled:
"(1) To have in advance of the
trial a copy of the charges and
specifications clearly worded so as to
apprise the accused of each offense
charged.
"(2) To be represented, prior
to and during trial, by counsel appointed
by the convening authority or counsel of
his own choice, or to conduct his own
defense.
"(3) To testify in his own
behalf and have his counsel present
relevant evidence at the trial in support
of his defense, and cross- examine
each adverse witness who personally
appears before the commission.
"(4) To have the substance of
the charges and specifications, the
proceedings and any documentary
evidence translated, when he is unable
otherwise to understand them.
"(c) Witnesses.

The
Commission shall have power:
"(1) To summon witnesses
and require their attendance and
testimony; to administer oaths or
affirmations to witnesses and other
persons and to question witnesses.
"(2) To require the production
of documents and other evidentiary
material.
"(3) To delegate to the
Prosecutors
appointed
by
the
convening authority the powers and
duties set forth in (1) and (2) above.
"(4) To have evidence taken
by a special commissioner appointed by
the commission.
"(d) Evidence.
"(1) The commission shall
admit such evidence as in its opinion
shall be of assistance in proving or
disproving the charge, or such as in the
commission's opinion would have
probative value in the mind of a
reasonable man. The commission shall
apply the rules of evidence and
pleading set forth herein with the

greatest liberality to achieve expeditious

procedure. In particular, and without
limiting in any way the scope of the
foregoing general rules, the following
evidence may be admitted:
"(a) Any
document,
irrespective of its classification, which
appears to the commission to have
been signed or issued by any officer,
department, agency or member of the
armed forces of any Government
without proof of the signature or of the
issuance of the document.
"(b) Any report which appears
to the commission to have been signed
or issued by the International Red
Cross or a member thereof, or by a
doctor of medicine or a member of any
medical service personnel, or by any
investigator or intelligence officer, or by
any other person whom the commission
considers as possessing knowledge of
the matters contained in the report.
"(c) Affidavits, depositions or
other signed statements.
"(d) Any diary, letter or other
document, including sworn or unsworn
statements,
appearing
to
the
commission to contain information
relating to the charge.
"(e) A copy of any document
or other secondary evidence of the
contents, if the original is not
immediately available.
"(2) The commission shall
take judicial notice of facts of common
knowledge,
official
government
documents of any nation, and the
proceedings, records and findings of
military or other agencies of any of the
United Nations.
"(3) A
commission
may
require the prosecution and the defense
to make a preliminary offer of proof,
whereupon the commission may rule in
advance on the admissibility of such
evidence.
"(4) The official position of the
accused shall not absolve him from
responsibility, nor be considered in
mitigation of punishment. Further, action
pursuant to an order of the accused's
superior, or of his Government, shall not
constitute a defense, but may be
considered in mitigation of punishment
if the commission determines that
justice so requires.
"(5) All purported confessions
or statements of the accused shall be
admissible in evidence without any
showing that they were voluntarily
made. If it is shown that such
confession or statement was procured
by means which the commission
believes to have been of such a
character that they may have caused
the accused to make a false statement,
the commission may strike out or
disregard any such portion thereof as
was so procured.

"(e) Trial Procedure. The

proceedings of each trial shall be
conducted substantially as follows,
unless modified by the commission to
suit the particular circumstances:
"(1) Each
charge
and
specification shall be read, or its
substance stated, in open court.
"(2) The presiding member
shall ask each accused whether he
pleads 'Guilty' or 'Not guilty.'
"(3) The prosecution shall
make its opening statement.
"(4) The presiding member
may, at this or any other time, require
the prosecutor to state what evidence
he proposes to submit to the
commission and the commission
thereupon
may
rule
upon
the
admissibility of such evidence.
"(5) The witnesses and other
evidence for the prosecution shall be
heard or presented. At the close of the
case
for
the
prosecution,
the
commission may, on motion of the
defense for a finding of not guilty,
consider and rule whether the evidence
before the commission supports the
charges against the accused. The
commission may defer action on any
such motion and permit or require the
prosecution to reopen its case and
produce any further available evidence.
"(6) The defense may make
an opening statement prior to
presenting its case. The presiding
member may, at this or any other time,
require the defense to state what
evidence it proposes to submit to the
commission,
where
upon
the
commission may rule upon the
admissibility of such evidence.
"(7) The witnesses and other
evidence for the defense shall be heard
or
presented.
Thereafter,
the
prosecution and defense may introduce
such evidence in rebuttal as the
commission may rule as being
admissible.
"(8) The
defense,
and
thereafter
the
prosecution,
shall
address the commission.
"(9) The
commission
thereafter shall consider the case in
closed session and unless otherwise
directed by the convening authority,
announce in open court its judgment
and sentence, if any. The commission
may state the reasons on which
judgment is based.
"(f) Record of Proceedings.
Each commission shall make a
separate record of its proceedings in
the trial of each case brought before it.
The record shall be prepared by the
prosecutor under the direction of the
commission and submitted to the
defense counsel. The commission shall
be responsible for its accuracy. Such
record; certified by the presiding
member of the commission or his

successor, shall be delivered to the

convening authority as soon as possible
after the trial.
"(g) Sentence.
The
commission may sentence an accused,
upon conviction, to death by hanging or
shooting, imprisonment for life or for
any less term, fine, or such other
punishment as the commission shall
determine to be proper.
"(h) Approval of Sentence.
No sentence of a military commission
shall be carried into effect until
approved
by
the
Chief
of
Staff: Provided, That no sentence of
death or life imprisonment shall be
carried into execution until confirmed by
the President of the Philippines. For the
purpose of his review, the Chief of Staff
shall create a Board of Review to be
composed of not more than three
officers none of whom shall be on duty
with or assigned to the Judge Advocate
General's Office. The Chief of Staff shall
have the authority to approve, mitigate,
remit in whole or in part, commute,
suspend, reduce or otherwise alter the
sentence imposed, or (without prejudice
to the accused) remand the case for
rehearing before a new military
commission; but he shall not have
authority to increase the severity of the
sentence. Except as herein otherwise
provided, the judgment and sentence of
a commission shall be final and not
subject to review by any other tribunal.
"VI. RULE-MAKING POWER
"Supplementary Rules and
Forms. Each commission shall adopt
rules and forms to govern its procedure,
not inconsistent with the provisions of
this Order, or such rules and forms as
may be prescribed by the convening
authority or by the President of the
Philippines.
"VII. The amount of seven
hundred thousand pesos is hereby set
aside out of the appropriations for the
Army of the Philippines for use by the
National War Crimes Office in the
accomplishment of its mission as
hereinabove set forth, and shall be
expended in accordance with the
recommendations
of
the
Judge
Advocate General as approved by the
President. The buildings, textures,
installations, messing, and billeting
equipment
and
other
property
heretofore used by the Legal Section,
Manila Branch, of the General
Headquarters, Supreme Commander
for the Allied Powers, which will be
turned over by the United States Army
to the Philippine Government through
the Foreign Liquidation Commission
and the Surplus Property Commission
are hereby specifically reserved for use
of the National War Crimes Office.
"Executive Order No. 64,
dated August 16, 1940, is hereby
repealed.

"Done in the City of Manila,

this 29th day of July, in the year of Our
Lord, nineteen hundred and forty-seven,
and of the Independence of the
Philippines, the second.
"MANUEL ROXAS
"President of the Philippines
"By the President:
"EMILIO ABELLO
"Chief of the Executive
Office"
EXECUTIVE LEGISLATION
Executive Order No. 68 is a veritable piece of
legislative measure, without the benefit of congressional
enactment.
The first question that is thrust at our face,
spearheading a group of other no less important
questions, is whether or not the President of the
Philippines may exercise the legislative power expressly
vested in Congress by the Constitution.
The Constitution provides:
"The Legislative powers shall
be vested in a Congress of the
Philippines, which shall consist of a
Senate
and
a
House
of
Representatives." (Section 1, Article VI.)
While there is no express provision in the
fundamental law prohibiting the exercise of legislative
power by agencies other than Congress, a reading of the
whole context of the Constitution would dispel any doubt
as to the constitutional intent that the legislative power is
to be exercised exclusively by Congress, subject only to
the veto power of the President of the Philippines, to the
specific provisions which allow the President of the
Philippines to suspend the privileges of the writ of habeas
corpus and to place any part of the Philippines under
martial law, and to the rule-making power expressly
vested by the Constitution in the Supreme Court.
There cannot be any question that the
members of the Constitutional Convention were believers
in the tripartite system of government as originally
enunciated by Aristotle, further elaborated by
Montesquieu and accepted and practiced by modern
democracies, especially the United States of America,
whose Constitution, after which ours has been patterned,
has allocated the three powers of government
legislative, executive, judicial to distinct and separate
departments of government.
Because the powers vested by our Constitution
to the several departments of the government are in the
nature of grants, not a recognition of pre-existing powers,
no department of government may exercise any power or
authority not expressly granted by the Constitution or by
law by virtue of express authority of the Constitution.
Executive Order No. 68 establishes a National
War Crimes Office, and the power to establish
government office is essentially legislative.
The order provides that persons accused as
war criminals shall be tried by military commissions.
Whether such a provision is substantive or adjective, it is
clearly legislative in nature. It confers upon military
commissions jurisdiction to try all persons charged with
war crimes. The power to define and allocate jurisdiction
for the prosecution of persons accused of any crime is
exclusively vested by the Constitution in Congress.
It provides rules of procedure for the conduct of
trials. This provision on procedural subject constitutes a
usurpation of the rule- making power vested by the
Constitution in the Supreme Court.

It authorizes military commissions to adopt

additional rules of procedure. If the President of the
Philippines cannot exercise the rule-making power vested
by the Constitution in the Supreme Court, he cannot, with
more reason, delegate that power to military
commissions.
It appropriates the sum of P700,000 for the
expenses of the National War Crimes Office established
by the said Executive Order No. 68. This constitutes
another usurpation of legislative power as the power to
vote appropriations belongs to Congress.
Executive Order No. 68, is, therefore, null and
void, because, through it, the President of the Philippines
usurped powers expressly vested by the Constitution in
Congress and in the Supreme Court.
Challenged to show the constitutional or legal
authority under which the President of the Philippines
issued Executive Order No. 68, respondents could not
give any definite answer. They attempted, however, to
suggest that the President of the Philippines issued
Executive Order No. 68 under the emergency powers
granted to him by Commonwealth Act No. 600, as
amended by Commonwealth Act No. 620, and
Commonwealth Act No. 671, both of which are
transcribed below:
"COMMONWEALTH ACT No. 600
"AN ACT DECLARING A
STATE
OF
EMERGENCY
AND
AUTHORIZING THE PRESIDENT TO
PROMULGATE
RULES
AND
REGULATIONS TO SAFEGUARD THE
INTEGRITY OF THE PHILIPPINES
AND TO INSURE THE TRANQUILLITY
OF ITS INHABITANTS.
"Be it enacted by the National
Assembly of the Philippines:
"SECTION 1. The existence
of war in many parts of the world has
created a national emergency which
makes it necessary to invest the
President of the Philippines with
extraordinary powers in order to
safeguard the integrity of the Philippines
and to insure the tranquillity of its
inhabitants, by suppressing espionage,
lawlessness,
and
all
subversive
activities, by preventing or relieving
unemployment, by insuring to the
people adequate shelter and clothing
and sufficient food supply, and by
providing means for the speedy
evacuation of the civilian population, the
establishment of an air protective
service, and the organization of
volunteer guard units, and to adopt
such other measures as he may deem
necessary for the interest of the public.
To carry out this policy the President is
authorized to promulgate rules and
regulations which shall have the force
and effect of law until the date of
adjournment of the next regular session
of the First Congress of the Philippines,
unless sooner amended or repealed by
the Congress of the Philippines. Such
rules and regulations may embrace the
following objects: (1) to suppress
espionage and other subversive
activities; (2) to require all able- bodied
citizens (a) when not engaged in any

lawful occupation, to engage in farming

or other productive activities or (b) to
perform such services as may be
necessary in the public interest; (3) to
take over farm lands in order to prevent
failure or shortage of crops and avert
hunger and destitution; (4) to take over
industrial establishments in order to
insure adequate production, controlling
wages and profits therein; (5) to prohibit
lockouts
and
strikes
whenever
necessary to prevent the unwarranted
suspension of work in productive
enterprises or in the interest of national
security; (6) to regulate the normal
hours of work for wage-earning and
salaried employees in industrial or
business undertakings of all kinds; (7)
to insure an even distribution of labor
among the productive enterprises; (8) to
commander ships and other means of
transportation in order to maintain, as
much as possible, adequate and
continued transportation facilities; (9) to
requisition and take over any public
service or enterprise for use or
operation by the Government; (10) to
regulate rents and the prices of articles
or commodities of prime necessity, both
imported and locally produced or
manufactured; and (11) to prevent,
locally
or
generally,
scarcity,
monopolization, hoarding, injurious
speculations, and private controls
affecting the supply, distribution, and
movement of foods, clothing, fuel,
fertilizers, chemicals, building materials,
implements, machinery, and equipment
required in agriculture and industry, with
power to requisition these commodities
subject to the payment of just
compensation. (As amended by Com.
Act No. 620.)
"SEC. 2. For the purpose of
administering this Act and carrying out
its objectives, the President may
designate any officer, without additional
compensation, or any department,
bureau, office, or instrumentality of the
National Government.
"SEC. 3. Any person, firm, or
corporation found guilty of the violation
of any provision of this Act or of any of
the rules or regulations promulgated by
the President under the authority of
section one of this Act shall be punished
by imprisonment of not more than ten
years or by a fine of not more than ten
thousand pesos, or by both. If such
violation is committed by a firm or
corporation, the manager, managing
director, or person charged with the
management of the business of such
firm, or corporation shall be criminally
responsible therefor.
"SEC. 4. The President shall
report to the National Assembly within
the first ten days from the date of the
opening of its next regular session
whatever action has been taken by him
under the authority herein granted.

"SEC. 5. To carry out the

purposes of this Act, the President is
authorized to spend such amounts as
may be necessary from the sum
appropriated under section five of
Commonwealth Act Numbered Four
hundred and ninety-eight.
"SEC. 6. If any provision of
this Act shall be declared by any court
of competent jurisdiction to be
unconstitutional
and
void,
such
declaration shall not invalidate the
remainder of this Act.
"SEC. 7. This Act shall take
effect upon its approval.
"Approved, August 19, 1940."
"COMMONWEALTH ACT No. 671
"AN ACT DECLARING A
STATE OF TOTAL EMERGENCY AS A
RESULT OF WAR INVOLVING THE
PHILIPPINES AND AUTHORIZING
THE PRESIDENT TO PROMULGATE
RULES AND REGULATIONS TO MEET
SUCH EMERGENCY.
"Be it enacted by the National
Assembly of the Philippines:
"SECTION 1. The existence
of war between the United States and
other countries of Europe and Asia,
which involves the Philippines, makes it
necessary to invest the President with
extraordinary powers in order to meet
the resulting emergency.
"SEC. 2. Pursuant to the
provisions of Article VI, section 16, of
the Constitution, the President is hereby
authorized, during the existence of the
emergency, to promulgate such rules
and regulations as he may deem
necessary to carry out the national
policy declared in section 1 hereof.
Accordingly, he is, among other things,
empowered (a) to transfer the seat of
the Government or any of its
subdivisions, branches, departments,
offices, agencies or instrumentalities;
(b) to reorganize the Government of the
Commonwealth
including
the
determination
of
the
order
of
precedence of the heads of the
Executive Departments; (c) to create
new
subdivisions,
branches,
departments, offices, agencies or
instrumentalities of government and to
abolish any of those already existing;
(d) to continue in force laws and
appropriations which would lapse or
otherwise become inoperative, and to
modify or suspend the operation or
application of those of an administrative
character; (e) to impose new taxes or to
increase, reduce, suspend, or abolish
those in existence; (f) to raise funds
through the issuance of bonds or
otherwise, and to authorize the
expenditure of the proceeds thereof; (g)
to authorize the National, provincial, city
or municipal governments to incur in
overdrafts for purposes that he may
approve; (h) to declare the suspension
of the collection of credits or the

payment of debts; and (i) to exercise

such other powers as he may deem
necessary to enable the Government to
fulfill its responsibilities and to maintain
and enforce its authority.
"SEC. 3. The President of the
Philippines shall as soon as practicable
upon the convening of the Congress of
the Philippines report thereto all the
rules and regulations promulgated by
him under the powers herein granted.
"SEC. 4. This Act shall take
effect upon its approval, and the rules
and regulations promulgated hereunder
shall be in force and effect until the
Congress of the Philippines shall
otherwise provide.
"Approved, December 16,
1941."
The above Acts cannot validly be invoked,
because they ceased to have any effect much
before Executive Order No. 68 was issued on July 29,
1947. Said Acts had elapsed upon the liberation of the
Philippines from the Japanese forces or, at the latest,
when the surrender of Japan was signed in Tokyo on
September 2, 1945.
When both Acts were enacted by the Second
National Assembly, we happened to have taken direct
part in their consideration and passage, not only as one of
the members of said legislative body but as chairman of
the Committee on Third Reading, popularly known as the
"Little Senate." We are, therefore, in a position to state
that said measures were enacted by the Second National
Assembly for the purpose of facing the emergency of an
impending war and of the Pacific War that finally broke
out with the attack of Pearl Harbor on December 7, 1941.
We approved said extraordinary measures, by which,
under the exceptional circumstances then prevailing,
legislative powers were delegated to the President of the
Philippines, by virtue of the following provisions of the
Constitution:
"In times of war or other
national emergency, the Congress may
by law authorize the President, for a
limited period and subject to such
restrictions as it may prescribe, to
promulgate rules and regulations to
carry out a declared national policy."
(Article VI, section 26.)
It has never been the purpose of the National
Assembly to extend the delegation beyond the
emergence created by the war, as to extend it farther
would be violative of the express provisions of the
Constitution. We are of the opinion that there is no doubt
on this question; but if there could still be any, the same
should be resolved in favor of the presumption that the
National Assembly did not intend to violate the
fundamental law.
The absurdity of the contention that the
emergency Acts continued in effect even after the
surrender of Japan can not be gainsaid. Only a few
months after liberation and even before the surrender of
Japan, or since the middle of 1945, the Congress started
to function normally. In the hypothesis that the contention
can prevail, then, since 1945, that is, four years ago, even
after the Commonwealth was already replaced by the
Republic of the Philippines with the proclamation of our
Independence, two distinct, separate and independent
legislative organs, Congress and the President of the
Philippines would have been and would continue
enacting laws, the former to enact laws of every nature

including those of emergent character, and the latter to

enact laws, in the form of executive orders, under the socalled emergency powers. The situation would be
pregnant with dangers to peace and order, to the rights
and liberties of the people, and to Philippine democracy.
Should there be any disagreement between
Congress and the President of the Philippines, a
possibility that no one can dispute, the President of the
Philippines may take advantage of the long recess of
Congress (two-thirds of every year) to repeal and overrule
legislative enactments of Congress, and may set up a
veritable system of dictatorship, absolutely repugnant to
the letter and spirit of the Constitution.
Executive Order No. 68 is equally offensive to
the Constitution because it violates the fundamental
guarantees of the due process and equal protection of the
law. It is especially so, because it permits the admission
of many kinds of evidence by which no innocent person
can afford to get acquittal, and by which it is impossible to
determine whether an accused is guilty or not beyond all
reasonable doubt.
The rules of evidence adopted in Executive
Order No. 68 are a reproduction of the regulations
governing the trial of twelve criminals, issued by General
Douglas MacArthur, Commander in Chief of the United
States Armed Forces in Western Pacific, for the purpose
of trying, among others, Generals Yamashita and
Homma. What we said in our concurring and dissenting
opinion to the decision promulgated on December 19,
1945, in the Yamashita case, L-129, 1 and in our
concurring and dissenting opinion to the resolution of
January 23, 1946, in disposing the Homma case, L244, 2 are perfectly applicable to the offensive rules of
evidence embodied in Executive Order No. 68. Said rules
of evidence are repugnant to conscience as under them
no justice can be expected.
For all the foregoing, conformably with our
position in the Yamashita and Homma cases, we vote to
declare Executive Order No. 68 null and void and to grant
the petition.

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.
SYLLABUS
1. CONSTITUTIONAL LAW; DOCTRINE
OF
STATE
IMMUNITY
FROM
SUIT;
GENERALLY ACCEPTED
PRINCIPLE OF INTERNATIONAL LAW; EMBODIED
IN PHILIPPINE CONSTITUTION. 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.
2. ID., ID., ID., PRINCIPLE DEEMED INCORPORATED IN
THE LAW OF EVERY CIVILIZED STATE; STATE IS
AUTOMATICALLY OBLIGATED TO COMPLY WITH THE
PRINCIPLE. 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.
3. ID.; ID.; BASIS. 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." 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."
4. ID., ID., APPLIES TO OFFICIALS OF THE STATE FOR
ACTS PERFORMED IN THE DISCHARGE OF THEIR
DUTIES. 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. In
such a situation, the state may move to dismiss the complaint
on the ground that it has been filed without its consent.
5. ID., ID., NOT ABSOLUTE AND MAY BE SUED IF STATE
GIVES 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.
6. ID., ID., ID., CONSENT MAY BE GIVEN EXPRESSLY OR
IMPLIEDLY. 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.
7. ID., ID., ID., ID., WAIVER OF IMMUNITY; INSTANCES.
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, 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. Waiver is also
implied when the government files a complaint, thus opening
itself to a counterclaim.
8. ID., ID., ID., ID., ID., ID., EXCEPTIONS. 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. 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. As for the filing of a complaint by the
government, suability will result only where the government is
claiming affirmative relief from the defendant.
9. ID., ID., ID., ID., ID., UNITED STATES OF AMERICA
DEEMED TO HAVE IMPLIEDLY WAIVED ITS NONSUABILITY IF IT HAS ENTERED INTO A CONTRACT IN ITS
PROPRIETARY CAPACITY. 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, 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.
10. ID., ID., ID., ID., ID., CHARGES MAY NOT BE
SUMMARILY DISMISSED ON MERE ASSERTION THAT

ACTS ARE IMPUTABLE TO THE UNITED STATES OF

AMERICA. 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.
11. ID., ID., ID., ID., ID., PETITIONERS CHARGED WITH THE
ENFORCEMENT OF LAW REGARDING PROHIBITED
DRUGS ARE AGENTS OF THE UNITED STATES. 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.
12. ID., ID., ID., ID., ID., SUABILITY AND LIABILITY,
DIFFERENTIATED. 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.
13. ID., ID., ID., ID., ID., ARTICLE 2180 OF THE CIVIL CODE
ESTABLISHES A RULE OF LIABILITY. 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. 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.
14. ID., ID., ID., ID., ID., AN AGENT PERFORMING
REGULAR FUNCTIONS IS NOT A SPECIAL AGENT EVEN IF
SO DENOMINATED; ARTICLE APPLIES ONLY TO
PHILIPPINE GOVERNMENT. 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.
15. ID., ID., ID., ID., ID., EXPRESS WAIVER MUST BE
EFFECTED THROUGH A DULY-ENACTED STATUTE. 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, 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.

16. ID., ID., ID., ID., ID., INQUIRY MUST BE MADE AS TO

WHAT CAPACITY PETITIONERS WERE ACTING. But
even as we are certain that 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.
17. ID., ID., ID., ID., ID., DOCTRINE CANNOT BE INVOKED
WHERE THE STATE ENTERED INTO A CONTRACT IN THE
DISCHARGE OF ITS PROPRIETARY FUNCTION; CASE AT
BAR. From the 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.
18. LABOR AND SOCIAL LEGISLATION; TERMINATION OF
EMPLOYMENT; DISMISSAL FOR THE UNBELIEVABLY
NAUSEATING ACT IS PROPER. 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.
19. ID.; ID.; BARBERSHOPS ARE NOT AGENCIES OF THE
UNITED STATES ARMED FORCES; IMMUNITY FROM SUIT
CANNOT BE INVOKED. 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 persons. They are not
agencies of the United States Armed Forces nor are their
facilities demandable as a matter of right by the American
servicemen. 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.
DECISION
CRUZ, J p:
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. cdll
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 barbering 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. LLjur
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. Cdpr
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 officials/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 m 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 his 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. Cdpr
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 RPUS 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. prcd
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 individuallynamed 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 PhilippineAmerican 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 `action
must be considered as one against the
U.S. Government.' The opinion of
Justice Montemayor continued: `It is
clear that the courts of the Philippines
including the Municipal Court of Manila
have no jurisdiction over the present
case for unlawful detainer. The question
of lack of jurisdiction was raised and
interposed at the very beginning of the
action. The U.S. Government has not
given its consent to the filing of this suit
which is essentially against her, though
not in name. Moreover, this is not only a
case of a citizen filing a suit against his
own Government without the latter's
consent but it is of a citizen filing an
action against a foreign government
without said government's consent,
which renders more obvious the lack of
jurisdiction of the courts of his country.
The principles of law behind this rule
are so elementary and of such general
acceptance
that
we
deem
it
unnecessary to cite authorities in
support thereof.' 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. LLphil
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 nonsuability 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 inUnited 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. Cdpr
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
persons. 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. LibLex
All without any pronouncement as to costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez,
Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.
|| (United States of America v. Guinto, G.R. No. 76607, 79470,
80018, 80258, [February 26, 1990], 261 PHIL 777-802)

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.
DECISION
QUIASON, J p:
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. LLphil
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 Paraaque, 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
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 5D 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. LLjur
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). prLL
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 respondentemployer 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. LLphil
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. PhilippineRyukyus 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 nonsuability 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]). llcd
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 DefensorSantiago, Public International Law 194 [1984]). prLL
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]). LLpr
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. LLjur
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. LLphil
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. cdll
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. cdphil

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.
||| (The Holy See v. Rosario, Jr., G.R. No. 101949,
[December 1, 1994])

EN BANC
[G.R. No. L-65366. November 9, 1983.]
JOSE B.L. REYES, in behalf of the ANTI-BASES
COALITION (ABC), petitioner, vs. RAMON
BAGATSING, as Mayor of the City of
Manila, respondent.
Lorenzo M. Taada, Jose W. Diokno and Haydee B.
Yorac for petitioner.
The Solicitor General for respondent.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF
EXPRESSION AND PEACEFUL ASSEMBLY; LIBERTY TO
DISCUSS AND MEET WITHOUT CENSORSHIP UNLESS
THERE IS CLEAR DANGER OF A SUBSTANTIVE EVIL.
Free speech, like free press, may be identified with the liberty
to discuss publicly and truthfully any matter of public concern
without censorship or punishment. There is to be then no
previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution for
sedition, or action for damages, or contempt proceedings
unless there be a "clear and present danger of a substantive
evil that the State has a right to prevent." Freedom of assembly
connotes the right of the people to meet peaceably for
consultation and discussion of matters of public concern. It is
entitled to be accorded the utmost deference and respect. It is
not to be limited, much less denied, except on a showing, as is
the case with freedom of expression, of a clear and present
danger of a substantive evil that the state has a right to
prevent.
2. ID.; ID.; ID.; INSEPARABLE RIGHTS THE LIMITATION OF
WHICH IS SUBJECT TO JUDICIAL EXAMINATION. In
Thomas v. Collins, 323 US 516 (1945), the American Supreme
Court held that it was not by accident or coincidence that the
rights to freedom of speech and of the press were coupled in a
single guarantee with the rights of the people peaceably to
assemble and to petition the government for redress of
grievances. All these rights, while not identical, are
inseparable. In every case, therefore, where there is a
limitation placed on the exercise of the right, the judiciary is
called upon to examine the effects of the challenged
governmental actuation. The sole justification for a limitation on
the exercise of this right, so fundamental to the maintenance of
democratic institutions, is the danger, of a character both grave
and imminent, of a serious evil to public safety, public morals,
public health, of other legitimate public interest (Cf. Schneider
v. Irvington, 308 US 147 (1939).
3. ID.; ID.; ID.; RIOTOUS CONDUCT MUST BE AVOIDED IN
THE EXERCISE OF THESE CONSTITUTIONAL RIGHTS.
What is guaranteed is peaceable assembly. One may not
advocate disorder in the name of protest, much less preach
rebellion under the cloak of dissent. The Constitution frowns on
disorder or tumult attending a rally or assembly. Resort to force
is ruled out and outbreaks of violence to be avoided. The
utmost calm though is not required. As pointed out in an early
Philippine case, penned in 1907 to be precise, United States v.
Apurado, 7 Phil. 422, "It is rather to be expected that more or
less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because
on such occasions feeling is always wrought to a high pitch of
excitement, and the greater the grievances and the more
intense the feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their irresponsible
followers." It bears repeating that for the constitutional right to
be invoked, riotous conduct, injury to property, and acts of
vandalism must be avoided. To give free rein to one's
destructive urges is to call for condemnation. It is to make a
mockery of the high estate occupied by intellectual liberty its
our scheme of values.
4. ID.; ID.; ID.; NO VALID OBJECTION EXISTS ON THE
CHOICE OF PLACE FOR THE MARCH AND RALLY,

PROCUREMENT OF LICENSE FOR USE OF PUBLIC

STREETS NOT AN UNCONSTITUTIONAL ABRIDGEMENT
OF ONE'S CONSTITUTIONAL RIGHT. There can be no
valid reason why a permit should not be granted for the
proposed march and rally starting from a public park that is the
Luneta. Neither can there be any valid objection to the use of
the streets to the gates of the US Embassy, hardly two blocks
away at the Roxas Boulevard. Primicias v. Fugoso has
resolved any lurking doubt on the matter. In holding that the
then Mayor Fugoso of the City of Manila should grant a permit
for a public meeting at Plaza Miranda in Quiapo, this Court
categorically declared: "Our conclusion finds support in the
decision in the case of Willis Cox vs. State of New Hampshire,
312 U.S. 569. . . ." The Supreme Court of the United States, in
its decision (1941) penned by Chief Justice Hughes affirming
the judgment of the State Supreme Court, held that "a statute
requiring persons using the public streets for a parade or
procession to procure a special license therefor from the local
authorities is not an unconstitutional abridgment of the rights of
assembly or of freedom of speech and press, where, as the
statute is construed by the state courts, the licensing
authorities are strictly limited, in the issuance, to a
consideration of the time, place, and manner of the parade or
procession, with a view to conserving the public convenience
and of affording an opportunity to provide proper policing, and
are not invested with arbitrary discretion to issue or refuse
license, . . . , " 80 Phil, at 78.
5. ID.; ID.; ID.; FREEDOM OF ACCESS TO PUBLIC PARKS
AND
STREETS;
PURPOSE
OF
APPLICANT
DETERMINATIVE OF THE USE THEREOF. It is settled law
that as to public places, especially so as to parks and streets,
there is freedom of access. Nor is their use dependent on who
is the applicant for the permit, whether an individual or a group.
If it were, then the freedom of access becomes discriminatory
access, giving rise to an equal protection question. The
principle under American doctrines was given utterance by
Chief Justice Hughes in these words: "The question, if the
rights of free speech and peaceable assembly are to be
preserved, is not as to the auspices under which the meeting is
held but as to its purpose; not as to the relations of the
speakers, but whether their utterances transcend the bounds
of the freedom of speech which the Constitution protects" (De
Jorge v. Oregon, 299 US 353, 364 (1937).
6. ID.; ID.; ID.; LICENSING AUTHORITIES ARE NOT
INVESTED WITH ARBITRARY DISCRETION TO ISSUE OR
REFUSE LICENSE. There could he danger to public peace
and safety if such a gathering were marked by turbulence.
That would deprive it of its peaceful character. Even then, only
the guilty parties should be held accountable. It is true that the
licensing official, here respondent Mayor, is not devoid of
discretion in determining whether or not a permit would be
granted. White prudence requires that there be a realistic
appraisal not of what may possibly occur but of what may
probably occur, given all the relevant circumstances, still the
assumption especially so where the assembly is scheduled
for a specific public place is that the permit must he for the
assembly being held there. The exercise of such a right, in the
language of Justice Roberta, speaking for the American
Supreme Court, is not to be "abridged on the plea that it may
be exercised in some other place."
7. ID.; ID.; ID.; ID.; NON-EXISTENCE IN CASE AT BAR A
CLEAR AND PRESENT DANGER TO JUSTIFY A DENIAL OF
A PERMIT. While the general rule is that a permit should
recognize the right of the applicants to hold their assembly at a
public place of their choice, another place may be designated
by the licensing authority if it be shown that there is a clear and
present danger of a substantive evil if no such change were
made. In the Navarro and the Pagkakaisa decisions, G.R. No.
L-31687, February 26, 1970 and G.R. No. 60294, April 30,
1982, this Court was persuaded that the clear and present
danger test was satisfied. The present situation is quite
different. Hence the decision reached by the Court. The mere

assertion that subversives may infiltrate the ranks of the

demonstrators does not suffice.
8. ID.; ID.; ID.; ID.; REFUSAL OR MODIFICATION OF
APPLICATION FOR PERMIT SUBJECT TO CLEAR AND
PRESENT DANGER TEST. The applicants for a permit to
hold an assembly should inform the licensing authority of the
date, the public place where and the time when it will take
place. If it were a private place, only the consent of the owner
or the one entitled to its legal possession is required. Such
application should be filed well ahead in time to enable the
public official concerned to appraise whether there may be
valid objections to the grant of the permit or to its grant but at
another public place. It is an indispensable condition to such
refusal or modification that the clear and present danger test
be the standard for the decision reached. If he is of the view
that there is such an imminent sad grave danger of a
substantive evil, the applicants must be heard on the matter.
Thereafter, his decision, whether favorable or adverse, must
be transmitted to them at the earliest opportunity. Thus if so
minded, they can have recourse to the proper judicial authority.
9. ID.; ID.; ID.; RESPECT AND DEFERENCE ACCORDED TO
THESE PREFERRED RIGHTS. Free speech and
peaceable assembly, along with other intellectual freedom, are
highly ranked in our scheme of constitutional values. It cannot
be too strongly stressed that on the judiciary, even more so
than on the other departments rests the grave and delicate
responsibility of assuring respect for and deference to such
preferred rights. No verbal formula, no sanctifying phrase can,
of course, dispense with what has been so felicitiously termed
by Justice Holmes "as the sovereign prerogative of judgment."
Nonetheless, the presumption must be to incline the weight of
the scales of justice on the side of suds rights, enjoying as they
do precedence and primacy.
10. ID.; ID.; ID.; VIOLATION OF ORDINANCE 7295 NEED
NOT BE PASSED UPON. The issue of the applicability of
Ordinance No. 7295 of the City of Manila prohibiting the
holding or staging of rallies or demonstrations within a radius
of five hundred (500) feet from any foreign mission or
chancery; and for other purposes which finds support in Article
22 of the Vienna Convention on Diplomatic Relations need not
be passed upon. There was no showing that the distance
between the chancery and the embassy gate is less than 500
feet. Even if it could be shown that such a condition is
satisfied, it does not follow that respondent Mayor could legally
act the way he did. The validity of his denial of the permit
sought could still be challenged. It could be argued that a case
of unconstitutional application of such ordinance to the
exercise of the right of peaceable assembly presents itself. As
in this case there was no proof that the distance is less than
500 feet, the need to pass on that issue was obviated.
TEEHANKEE, J., concurring:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF
EXPRESSION AND PEACEFUL ASSEMBLY; DOCTRINE OF
PRIMICIAS vz. FUGOSO. The Chief Justice's opinion of the
Court reaffirms the doctrine of Primicias vs. Fugoso, 80 Phil.
71 that "the right to freedom of speech and to peacefully
assemble and petition the government for redress of
grievances are fundamental personal rights of the people
recognized and guaranteed by the constitutions of democratic
countries" and that the city or town mayors are not conferred
"the power to refuse to grant the permit, but only the discretion,
in issuing the permit, to determine or specify the streets or
public places where the parade or procession may pass or the
meeting may be held."
2. ID.; ID.; ID.; CLEAR AND PRESENT DANGER RULE, THE
SOLE JUSTIFICATION FOR A LIMITATION ON THE
EXERCISE THEREOF. The procedure for the securing of
such permits for peaceable assembly is succinctly set forth in
paragraph 8 of the Court's opinion, with the injunction that "the
presumption must be to incline the weight of the scales of
justice on the side of such rights, enjoying as they do,

precedence and primacy." The exception of the clear and

present danger rule, which alone would warrant a limitation of
these fundamental rights is therein restated in paragraph 1,
thus: "The sole justification for a limitation on the exercise of
this right, so fundamental to the maintenance of democratic
institutions, is the danger, of a character both grave and
imminent, of a serious evil to public safety, public morals,
public health, or any other legitimate public interest."
3. ID.; ID.; ID.; ID.; BEFORE DENIAL OF PERMIT,
LICENSING AUTHORITY MUST SHOW EXISTENCE OF
REASONABLE GROUND TO BELIEVE THAT THE DANGER
APPREHENDED IS IMMINENT. The burden to show the
existence of grave and imminent danger that would justify
adverse action on the application lies on the mayor as the
licensing authority. There must be objective and convincing,
not subjective or conjectural, proof of the existence of such
clear and present danger. As stated in the Court's Resolution
of October 25, 1983, which granted the mandatory injunction
as prayed for, "It is essential for the validity of a denial of a
permit which amounts to a previous restraint or censorship that
the licensing authority does not rely solely on his own appraisal
of what public welfare, peace or safety may require. To justify
such a limitation, there must be proof of such weight and
sufficiency to satisfy the clear and present danger test. The
possibility that subversives may infiltrate the ranks of the
demonstrators is not enough."
4. ID.; ID.; ID.; ASSEMBLY LEADERS SHOULD TAKE
NECESSARY MEASURES TO ENSURE PEACEFUL MARCH
AND ASSEMBLY; ISOLATED ACTS OF DISTURBANCE
SHOULD
NOT
CHARACTERIZE
ASSEMBLY
AS
TUMULTUOUS. The leaders of the peaceable assembly
should take all the necessary measure" to ensure a peaceful
much and assembly and to avoid the possibility of infiltrators
and troublemakers disrupting the same, concommitantly with
the duty of the police to extend protection to the participants
"staying at a discreet distance, but ever ready and alert to
perform their duty." But should any disorderly conduct or
incidents occur, whether provoked or otherwise, it is well to
recall former Chief Justice Ricardo Paras` injunction in his
concurring opinion in Fugoso, citing the 1907 case of U.S. vs.
Apurado, 7 Phil. 422, 426, per Carson, J. that such instances
of "disorderly conduct by individual members of a crowd (be
not seized) as an excuse to characterize the assembly as a
seditious and tumultuous rising against the authorities" and
render illusory the right of peaceful assembly.
PLANA, J., separate opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF
EXPRESSION
AND
PEACEFUL
ASSEMBLY;
THE
ORDINANCE BEING UNCONSTITUTIONAL CANNOT BE
VALIDLY INVOKED, THE DISTANCE OF THE CHANCERY
FROM THE SITUS OF THE RALLY BEING IMMATERIAL.
In my view, without saying that the Ordinance is obnoxious per
se to the constitution, it cannot be validly invoked whenever its
application would collide with a constitutionally guaranteed
right such as freedom of assembly and/or expression, as in the
case at bar, regardless of whether the chancery of any foreign
embassy is beyond or within 500 feet from the situs of the rally
or demonstration.
DECISION
FERNANDO, C.J p:
This Court, in this case of first impression, at least as to some
aspects, is called upon to delineate the boundaries of the
protected area of the cognate rights to free speech and
peaceable assembly, 1 against an alleged intrusion by
respondent Mayor Ramon Bagatsing. Petitioner, retired Justice
J.B.L. Reyes, on behalf of the Anti-Bases Coalition, sought a
permit from the City of Manila to hold a peaceful march and
rally on October 26, 1983 from 2:00 to 5:00 in the afternoon,
starting from the Luneta, a public park, to the gates of the
United States Embassy, hardly two blocks away. Once there,
and in an open space of public property, a short program
would be held. 2During the course of the oral argument, 3 it

was stated that after the delivery of two brief speeches, a

petition based on the resolution adopted on the last day by the
International Conference for General Disarmament, World
Peace and the Removal of All Foreign Military Bases held in
Manila, would be presented to a representative of the
Embassy or any of its personnel who may be there so that it
may be delivered to the United States Ambassador. The march
would be attended by the local and foreign participants of such
conference. There was likewise an assurance in the petition
that in the exercise of the constitutional rights to free speech
and assembly, all the necessary steps would be taken by it "to
ensure a peaceful march and rally." 4
The filing of this suit for mandamus with alternative prayer for
writ of preliminary mandatory injunction on October 20, 1983
was due to the fact that as of that date, petitioner had not been
informed of any action taken on his request on behalf of the
organization to hold a rally. On October 25, 1983, the answer
of respondent Mayor was filed on his behalf by Assistant
Solicitor General Eduardo G. Montenegro. 5 It turned out that
on October 19, such permit was denied. Petitioner was
unaware of such a fact as the denial was sent by ordinary mail.
The reason for refusing a permit was due to "police intelligence
reports which strongly militate against the advisability of
issuing such permit at this time and at the place applied
for." 6 To be more specific, reference was made to "persistent
intelligence reports affirm[ing] the plans of subversive/criminal
elements to infiltrate and/or disrupt any assembly or
congregations where a large number of people is expected to
attend." 7 Respondent Mayor suggested, however, in
accordance with the recommendation of the police authorities,
that "a permit may be issued for the rally if it is to be held at the
Rizal Coliseum or any other enclosed area where the safety of
the participants themselves and the general public may be
ensured." 8
The oral argument was heard on October 25, 1983, the very
same day the answer was filed. The Court then deliberated on
the matter. That same afternoon, a minute resolution was
issued by the Court granting the mandatory injunction prayed
for on the ground that there was no showing of the existence of
a clear and present danger of a substantive evil that could
justify the denial of a permit. On this point, the Court was
unanimous, but there was a dissent by Justice Aquino on the
ground that the holding of a rally in front of the US Embassy
would be violative of Ordinance No. 7295 of the City of Manila.
The last sentence of such minute resolution reads: "This
resolution is without prejudice to a more extended
opinion." 9 Hence this detailed exposition of the Court's stand
on the matter.
1. It is thus clear that the Court is called upon to protect the
exercise of the cognate rights to free speech and peaceful
assembly, arising from the denial of a permit.
The Constitution is quite explicit: "No law shall be passed
abridging the freedom of speech, or of the press, or the right of
the people peaceably to assemble and petition the
Government for redress of grievances." 10 Free speech, like
free press, may be identified with the liberty to discuss publicly
and truthfully any matter of public concern without censorship
or punishment. 11 There is to be then no previous restraint on
the communication of views or subsequent liability whether in
libel suits, 12prosecution for sedition, 13 or action for
damages, 14 or contempt proceedings 15 unless there be a
"clear and present danger of a substantive evil that [the State]
has a right to prevent." 16 Freedom of assembly connotes the
right of the people to meet peaceably for consultation and
discussion of matters of public concern. 17 It is entitled to be
accorded the utmost deference and respect. It is not to be
limited, much less denied, except on a showing, as is the case
with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. 18 Even
prior to the 1935 Constitution, Justice Malcolm had occasion to
stress that it is a necessary consequence of our republican
institutions and complements the right of free speech. 19 To
paraphrase the opinion of Justice Rutledge, speaking for the

majority of the American Supreme Court in Thomas v.

Collins, 20 it was not by accident or coincidence that the rights
to freedom of speech and of the press were coupled in a single
guarantee with the rights of the people peaceably to assemble
and to petition the government for redress of grievances. All
these rights, while not identical, are inseparable. In every case,
therefore, where there is a limitation placed on the exercise of
this right, the judiciary is called upon to examine the effects of
the challenged governmental actuation. The sole justification
for a limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger, of a
character both grave and imminent, of a serious evil to public
safety, public morals, public health, or any other legitimate
public interest. 21
2. Nowhere is the rationale that underlies the freedom of
expression and peaceable assembly better expressed than in
this excerpt from an opinion of Justice Frankfurter: "It must
never be forgotten, however, that the Bill of Rights was the
child of the Enlightenment. Back of the guaranty of free speech
lay faith in the power of an appeal to reason by all the peaceful
means for gaining access to the mind. It was in order to avert
force and explosions due to restrictions upon rational modes of
communication that the guaranty of free speech was given a
generous scope. But utterance in a context of violence can
lose its significance as an appeal to reason and become part
of an instrument of force. Such utterance was not meant to be
sheltered by the Constitution." 22 What was rightfully stressed
is the abandonment of reason, the utterance, whether verbal or
printed, being in a context of violence. It must always be
remembered that this right likewise provides for a safety valve,
allowing parties the opportunity to give vent to their views,
even if contrary to the prevailing climate of opinion. For if the
peaceful means of communication cannot be availed of, resort
to non-peaceful means may be the only alternative. Nor is this
the sole reason for the expression of dissent. It means more
than just the right to be heard of the person who feels
aggrieved or who is dissatisfied with things as they are. Its
value may lie in the fact that there may be something worth
hearing from the dissenter. That is to ensure a true ferment of
ideas. There are, of course, well-defined limits. What is
guaranteed is peaceable assembly. One may not advocate
disorder in the name of protest, much less preach rebellion
under the cloak of dissent. The Constitution frowns on disorder
or tumult attending a rally or assembly. Resort to force is ruled
out and outbreaks of violence to be avoided. The utmost calm
though is not required. As pointed out in an early Philippine
case, penned in 1907 to be precise, United States v.
Apurado: 23 "It is rather to be expected that more or less
disorder will mark the public assembly of the people to protest
against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of
excitement, and the greater the grievance and the more
intense the feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their irresponsible
followers." 24 It bears repeating that for the constitutional right
to be invoked, riotous conduct, injury to property, and acts of
vandalism must be avoided. To give free rein to one's
destructive urges is to call for condemnation. It is to make a
mockery of the high estate occupied by intellectual liberty in
our scheme of values.
3. There can be no legal objection, absent the existence of a
clear and present danger of a substantive evil, on the choice of
Luneta as the place where the peace rally would start. The
Philippines is committed to the view expressed in the plurality
opinion, of 1939 vintage, of Justice Roberts in Hague v.
CIO: 25 "Whenever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public
and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and
discussing public questions. Such use of the streets and public
places has, from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The privilege of a

citizen of the United States to use the streets and parks for
communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative,
and must be exercised in subordination to the general comfort
and convenience, and in consonance with peace and good
order; but it must not, in the guise of regulation, be abridged or
denied." 26 The above excerpt was quoted with approval in
Primicias v. Fugoso. 27 Primicias made explicit what was
implicit in Municipality of Cavite v. Rojas, 28 a 1915 decision,
where this Court categorically affirmed that plazas or parks
and streets are outside the commerce of man and thus nullified
a contract that leased Plaza Soledad of plaintiff-municipality.
Reference was made to such plaza "being a promenade for
public use," 29 which certainly is not the only purpose that it
could serve. To repeat, there can be no valid reason why a
permit should not be granted for the proposed march and rally
starting from a public park that is the Luneta.
4. Neither can there be any valid objection to the use of the
streets to the gates of the US Embassy, hardly two blocks
away at the Roxas Boulevard. Primicias v. Fugoso has
resolved any lurking doubt on the matter. In holding that the
then Mayor Fugoso of the City of Manila should grant a permit
for a public meeting at Plaza Miranda in Quiapo, this Court
categorically declared: "Our conclusion finds support in the
decision in the case of Willis Cox vs. State of New Hampshire,
312 U.S., 569. In that case, the statute of New Hampshire P. L.
chap. 145, section 2, providing that `no parade or procession
upon any ground abutting thereon, shall be permitted unless a
special license therefor shall first be obtained from the
selectmen of the town or from licensing committee,' was
construed by the Supreme Court of New Hampshire as not
conferring upon the licensing board unfettered discretion to
refuse to grant the license, and held valid. And the Supreme
Court of the United States, in its decision (1941) penned by
Chief Justice Hughes affirming the judgment of the State
Supreme Court, held that `a statute requiring persons using
the public streets for a parade or procession to procure a
special license therefor from the local authorities is not an
unconstitutional abridgment of the rights of assembly or of
freedom of speech and press, where, as the statute is
construed by the state courts, the licensing authorities are
strictly limited, in the issuance of licenses, to a consideration of
the time, place, and manner of the parade or procession, with
a view to conserving the public convenience and of affording
an opportunity to provide proper policing, and are not invested
with arbitrary discretion to issue or refuse license, . . .'" 30 Nor
should the point made by Chief Justice Hughes in a
subsequent portion of the opinion be ignored. "Civil liberties, as
guaranteed by the Constitution, imply the existence of an
organized society maintaining public order without which liberty
itself would be lost in the excesses of unrestricted abuses. The
authority of a municipality to impose regulations in order to
assure the safety and convenience of the people in the use of
public highways has never been regarded as inconsistent with
civil liberties but rather as one of the means of safeguarding
the good order upon which they ultimately depend. The control
of travel on the streets of cities is the most familiar illustration
of this recognition of social need. Where a restriction of the use
of highways in that relation is desired to promote the public
convenience in the interest of all, it cannot be disregarded by
the attempted exercise of some civil right which in other
circumstances would be entitled to protection." 31
5. There is a novel aspect to this case. If the rally were
confined to Luneta, no question, as noted, would have arisen.
So, too, if the march would end at another park. As previously
mentioned though, there would be a short program upon
reaching the public space between the two gates of the United
States Embassy at Roxas Boulevard. That would be followed
by the handing over of a petition based on the resolution
adopted at the closing session of the Anti-Bases Coalition. The
Philippines is a signatory of the Vienna Convention on
Diplomatic Relations adopted in 1961. It was concurred in by
the then Philippine Senate on May 3, 1965 and the instrument

of ratification was signed by the President on October 11,

1965, and was thereafter deposited with the Secretary General
of the United Nations on November 15. As of that date then, it
was binding on the Philippines. The second paragraph of its
Article 22 reads: "2. The receiving State is under a special duty
to take appropriate steps to protect the premises of the mission
against any intrusion or damage and to prevent any
disturbance of the peace of the mission or impairment of its
dignity." 32 TheConstitution "adopts the generally accepted
principles of international law as part of the law of the
land, . . ." 33 To the extent that the Vienna Convention is a
restatement of the generally accepted principles of
international law, it should be a part of the law of the
land. 34 That being the case, if there were a clear and present
danger of any intrusion or damage, or disturbance of the peace
of the mission, or impairment of its dignity, there would be a
justification for the denial of the permit insofar as the terminal
point would be the Embassy. Moreover, respondent Mayor
relied on Ordinance No. 7295 of the City of Manila prohibiting
the holding or staging of rallies or demonstrations within a
radius of five hundred (500) feet from any foreign mission or
chancery; and for other purposes. Unless the ordinance is
nullified, or declared ultra vires, its invocation as a defense is
understandable but not decisive, in view of the primacy
accorded the constitutional rights of free speech and
peaceable assembly. Even if shown then to be applicable, that
question still confronts this Court.
6. There is merit to the observation that except as to the novel
aspects of a litigation, the judgment must be confined within
the limits of previous decisions. The law declared on past
occasions is, on the whole, a safe guide. So it has been here.
Hence, as noted, on the afternoon of the hearing, October 25,
1983, this Court issued the minute resolution granting the
mandatory injunction allowing the proposed march and rally
scheduled for the next day. That conclusion was inevitable in
the absence of a clear and present danger of a substantive evil
to a legitimate public interest. There was no justification then to
deny the exercise of the constitutional rights of free speech
and peaceable assembly. These rights are assured by
our Constitution and the Universal Declaration of Human
Rights. 35 The participants to such assembly, composed
primarily of those in attendance at the International Conference
for General Disarmament, World Peace and the Removal of All
Foreign Military Bases would start from the Luneta, proceeding
through Roxas Boulevard to the gates of the United States
Embassy located at the same street. To repeat, it is settled law
that as to public places, especially so as to parks and streets,
there is freedom of access. Nor is their use dependent on who
is the applicant for the permit, whether an individual or a group.
If it were, then the freedom of access becomes discriminatory
access, giving rise to an equal protection question. The
principle under American doctrines was given utterance by
Chief Justice Hughes in these words: "The question, if the
rights of free speech and peaceable assembly are to be
preserved, is not as to the auspices under which the meeting is
held but as to its purpose; not as to the relations of the
speakers, but whether their utterances transcend the bounds
of
the
freedom
of
speech
which
the Constitution protects." 36 There could be danger to public
peace and safety if such a gathering were marked by
turbulence. That would deprive it of its peaceful character.
Even then, only the guilty parties should be held accountable.
It is true that the licensing official, here respondent Mayor, is
not devoid of discretion in determining whether or not a permit
would be granted. It is not, however, unfettered discretion.
While prudence requires that there be a realistic appraisal not
of what may possibly occur but of what may probably occur,
given all the relevant circumstances, still the assumption
especially so where the assembly is scheduled for a specific
public place is that the permit must be for the assembly
being held there. The exercise of such a right, in the language
of Justice Roberts, speaking for the American Supreme Court,

is not to be "abridged on the plea that it may be exercised in

some other place." 37
7. In fairness to respondent Mayor, he acted on the belief
that Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang
Pilipino (PMP) v. Bagatsing, 39 called for application. While the
general rule is that a permit should recognize the right of the
applicants to hold their assembly at a public place of their
choice, another place may be designated by the licensing
authority if it be shown that there is a clear and present danger
of a substantive evil if no such change were made. In the
Navarro and the Pagkakaisa decisions, this Court was
persuaded that the clear and present danger test was satisfied.
The present situation is quite different. Hence the decision
reached by the Court. The mere assertion that subversives
may infiltrate the ranks of the demonstrators does not suffice.
Not that it should be overlooked. There was in this case,
however, the assurance of General Narciso Cabrera,
Superintendent, Western Police District, Metropolitan Police
Force, that the police force is in a position to cope with such
emergency should it arise. That is to comply with its duty to
extend protection to the participants of such peaceable
assembly. Also from him came the commendable admission
that there were at least five previous demonstrations at the
Bayview Hotel Area and Plaza Ferguson in front of the United
States Embassy where no untoward event occurred. It was
made clear by petitioner, through counsel, that no act offensive
to the dignity of the United States Mission in the Philippines
would take place and that, as mentioned at the outset of this
opinion, "all the necessary steps would be taken by it `to
ensure a peaceful march and rally.'" 40 Assistant Solicitor
General Montenegro expressed the view that the presence of
policemen may in itself be a provocation. It is a sufficient
answer that they should stay at a discreet distance, but ever
ready and alert to cope with any contingency. There is no need
to repeat what was pointed out by Chief Justice Hughes in Cox
that precisely, it is the duty of the city authorities to provide the
proper police protection to those exercising their right to
peaceable assembly and freedom of expression.
8. By way of a summary. The applicants for a permit to hold an
assembly should inform the licensing authority of the date, the
public place where and the timewhen it will take place. If it
were a private place, only the consent of the owner or the one
entitled to its legal possession is required. Such application
should be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid objections
to the grant of the permit or to its grant but at another public
place. It is an indispensable condition to such refusal or
modification that the clear and present danger test be the
standard for the decision reached. If he is of the view that there
is such an imminent and grave danger of a substantive evil,
the applicants must be heard on the matter. Thereafter, his
decision, whether favorable or adverse, must be transmitted to
them at the earliest opportunity. Thus if so minded, they can
have recourse to the proper judicial authority. Free speech and
peaceable assembly, along with the other intellectual
freedoms, are highly ranked in our scheme of constitutional
values. It cannot be too strongly stressed that on the judiciary,
even more so than on the other departments rests the
grave and delicate responsibility of assuring respect for and
deference to such preferred rights. No verbal formula, no
sanctifying phrase can, of course, dispense with what has
been so felicitiously termed by Justice Holmes "as the
sovereign prerogative of judgment." Nonetheless, the
presumption must be to incline the weight of the scales of
justice on the side of such rights, enjoying as they do
precedence and primacy. Clearly then, to the extent that there
may be inconsistencies between this resolution and that
of Navarro v. Villegas, that case is pro tanto modified. So it
was made clear in the original resolution of October 25, 1983.
9. Respondent Mayor posed the issue of the applicability of
Ordinance No. 7295 of the City of Manila prohibiting the

holding or staging of rallies or demonstrations within a radius

of five hundred (500) feet from any foreign mission or
chancery; and for other purposes. It is to be admitted that it
finds support in the previously quoted Article 22 of the Vienna
Convention on Diplomatic Relations. There was no showing,
however, that the distance between the chancery and the
embassy gate is less than 500 feet. Even if it could be shown
that such a condition is satisfied, it does not follow that
respondent Mayor could legally act the way he did. The validity
of his denial of the permit sought could still be challenged. It
could be argued that a case of unconstitutional application of
such ordinance to the exercise of the right of peaceable
assembly presents itself. As in this case there was no proof
that the distance is less than 500 feet, the need to pass on that
issue was obviated. Should it come, then the qualification and
observation of Justices Makasiar and Plana certainly cannot
be summarily brushed aside. The high estate accorded the
rights to free speech and peaceable assembly demands
nothing less.
10. Ordinarily, the remedy in cases of this character is to set
aside the denial or the modification of the permit sought and
order the respondent official to grant it. Nonetheless, as there
was urgency in this case, the proposed march and rally being
scheduled for the next day after the hearing, this Court, in the
exercise of its conceded authority, granted the mandatory
injunction in the resolution of October 25, 1983. It may be
noted that the peaceful character of the peace march and rally
on October 26 was not marred by any untoward incident. So it
has been in other assemblies held elsewhere. It is quite
reassuring such that both on the part of the national
government and the citizens, reason and moderation have
prevailed. That is as it should be.
WHEREFORE, the mandatory injunction prayed for is granted.
No costs.
Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin,
Relova and Gutierrez, Jr., JJ., concur.
Abad Santos, J., to add anything to the learned opinion of the
Chief Justice is like bringing coal to Newcastle. I just want to
state for the record that I voted for the issuance ex-parte of a
preliminary mandatory injunction.
De Castro, J., is on sick leave.
Separate Opinions
MAKASIAR, J., concurring:
With the justification that in case of conflict, the
Philippine Constitution particularly the Bill of Rights
should prevail over the Vienna Convention.
AQUINO, J., dissenting:
Voted to dismiss the petition on the ground that the holding of
the rally in front of the US Embassy violates Ordinance No.
7295 of the City of Manila.
TEEHANKEE, J., concurring:
The Chief Justice's opinion of the Court reaffirms the doctrine
of Primicias vs. Fugoso 1 that "the right to freedom of
speech and
to peacefully
assemble and petition
the
government for redress of grievances are fundamental
personal rights of the people recognized and guaranteed by
the constitutions of democratic countries" and that the city or
town mayors are not conferred "the power to refuse to grant
the permit, but only the discretion, in issuing the permit, to
determine or specify the streets or public places where the
parade or procession may pass or the meeting may be held."
The most recent graphic demonstration of what this great right
of peaceful assembly and petition for redress of grievances
could accomplish was the civil rights march on Washington
twenty years ago under the late assassinated black leader
Martin Luther King, Jr. (whose birthday has now been declared
an American national holiday) which "subpoenaed the
conscience of the nation," and awakened the conscience of
millions of previously indifferent Americans and eventually
(after many disorders and riots yet to come) was to put an end
to segregation and discrimination against the American Negro.

The procedure for the securing of such permits for peaceable

assembly is succintly set forth in the summary given by the
Chief Justice in paragraph 8 of the Court's opinion, with the
injunction that "the presumption must be to incline the weight
of the scales of justice on the side of such rights, enjoying as
they do, precedence and primacy." The exception of the clear
and present danger rule, which alone would warrant a
limitation of these fundamental rights, is therein restated in
paragraph 1, thus: "The sole justification for a limitation on the
exercise of this right, so fundamental to the maintenance of
democratic institutions, is the danger, of a character both grave
and imminent, of a serious evil to public safety, public morals,
public health, or any other legitimate public interest."
It bears emphasis that the burden to show the existence of
grave and imminent danger that would justify adverse action
on the application lies on the mayor as licensing authority.
There must be objective and convincing, not subjective or
conjectural, proof of the existence of such clear and present
danger. As stated in our Resolution of October 25, 1983, which
granted the mandatory injunction as prayed for, "It
is essential for the validity of a denial of a permit which
amounts to a previous restraint or censorship that the licensing
authority does not rely solely on his own appraisal of what
public welfare, peace or safety may require. To justify such a
limitation, there must be proof of such weight and sufficiency
to satisfy the clear and present danger test. The possibility that
subversives may infiltrate the ranks of the demonstrators is not
enough." As stated by Justice Brandeis in his concurring
opinion in Whitney vs. California 2
"Fear of serious injury cannot alone
justify suppression of free speech and
assembly. Men feared witches and
burned women. It is the function of
speech to free men from the bondage
of irrational fears. To justify suppression
of free speech there must be
reasonable ground to fear that serious
evil will result if free speech is practiced.
There must be reasonable ground to
believe that the danger apprehended
is imminent. There must be reasonable
ground to believe that the evil to be
prevented is a serious one . . .
"Those who won our independence by
revolution were not cowards. They did
not fear political change. They did not
exalt order at the cost of liberty . . .
"Moreover, even imminent danger
cannot justify resort to prohibition of
these functions essential (for) effective
democracy,
unless
the
evil
apprehended is relatively serious.
Prohibition of free speech and assembly
is a measure so stringent that it would
be inappropriate as the means for
averting a relatively trivial harm to a
society . . . The fact that speech is likely
to result in some violence or in
destruction of property is not enough to
justify its suppression. There must be
the probability of serious injury to the
state. Among freemen, the deterrents
ordinarily to be applied to prevent
crimes are education and punishment
for violations of the law, not abridgment
of the rights of free speech and
assembly." (Emphasis supplied)
The Court's opinion underscores that the exercise of the right
is not to be "abridged on the plea that it may be exercised
in some other place" (paragraph 6), and that "it is the duty of
the city authorities to provide the proper police protection to

those exercising their right to peaceable assembly and

freedom of expression," (at page 14) The U.S. Supreme
Court's pronouncement in Hague vs. Committee for Industrial
Organization 3 cited in Fugoso is worth repeating:
". . .Wherever the title of streets and
parks may rest, they have immemorially
been held in trust for the use of the
public and, time out of mind, have been
used for purposes of assembly,
communicating
thoughts
between
citizens,
and
discussing
public
questions. Such use of the streets and
public places has, from ancient times,
been a part of the privileges,
immunities, rights, and liberties of
citizens. The privilege of a citizen . . . to
use the streets and parks for
communication of views on national
questions may be regulated in the
interest of all; it is not absolute, but
relative, and must be exercised in
subordination to the general comfort
and convenience, and in consonance
with peace and good order; but it must
not, in the guise of regulation be
abridged or denied.
"We think the court below was right in
holding the ordinance quoted in Note 1
void upon its face. It does not make
comfort or convenience in the use of
streets or parks the standard of official
action. It enables the Director of Safety
to refuse a permit on his mere opinion
that such refusal will prevent `riots,
disturbances or disorderly assemblage.'
It can thus, as the record discloses, be
made the instrument of arbitrary
suppression of free expression of views
on national affairs for the prohibition of
all speaking will undoubtedly `prevent'
such eventualities. But uncontrolled
official suppression of the privilege
cannot be made a substitute for the
duty to maintain order in connection
with the exercise of the right."
(Emphasis supplied)
Needless to say, the leaders of the peaceable assembly
should take all the necessary measures to ensure a peaceful
march and assembly and to avoid the possibility of infiltrators
and troublemakers disrupting the same, concommitantly with
the duty of the police to extend protection to the participants
"staying at a discreet distance, but ever ready and alert to
perform their duty." But should any disorderly conduct or
incidents occur, whether provoked or otherwise, it is well to
recall former Chief Justice Ricardo Paras' injunction in his
concurring opinion in Fugoso, citing the 1907 case of U.S. vs.
Apurado, 4 that such instances of "disorderly conduct by
individual members of a crowd (be not seized) as an excuse to
characterize the assembly as a seditious and tumultuous rising
against the authorities" and render illusory the right of
peaceable assembly, thus:
"It is rather to be expected that more or
less disorder will mark the public
assembly of the people to protest
against grievances whether real or
imaginary, because on such occasions
feeling is always wrought to a high pitch
of excitement, and the greater the
grievance and the more intense the
feeling, the less perfect, as a rule, will
the disciplinary control of the leaders
over their irresponsible followers. But if

the prosecution be permitted to seize

upon every instance of such disorderly
conduct by individual members of a
crowd as an excuse to characterize the
assembly as a seditious and tumultous
rising against the authorities, then the
right to assemble ,and to petition for
redress of grievances would become
a delusion and snare and the attempt to
exercise it on the most righteous
occasion and in the most peaceable
manner would expose all those who
took part therein to the severest and
most unmerited punishment, if the
purposes which they sought to attain
did not happen to be pleasing to the
prosecuting authorities. If instances of
disorderly conduct occur on such
occasions, the guilty individuals should
be sought out and punished therefor."
(Emphasis supplied)
As it turned out, the demonstration was held on October 26,
1983 peaceably and without any untoward event or evil result,
as pledged by the organizers (like at least five previous
peaceful demonstrations in the area). However, even if there
had been any incidents of disorder, this would in no way show
the Court's mandatory injunction to have been wrongfully

issued. The salutary desire on the part of respondent to

prevent disorder cannot be pursued by the unjustified denial
and suppression of the people's basic rights, which would
thereby turn out to be mere paper rights.
PLANA, J., concurring:
On the whole, I concur in the learned views of the
distinguished Chief Justice. I would like however to voice a
reservation regarding Ordinance No. 7295 of the City of Manila
which has been invoked by the respondent.
The main opinion yields the implication that a rally or
demonstration made within 500 feet from the chancery of a
foreign embassy would be banned for coming within the terms
of the prohibition of the cited Ordinance which was adopted, so
it is said, precisely to implement a treaty obligation of the
Philippines under the 1961 Vienna Convention on Diplomatic
Relations.
In my view, without saying that the Ordinance is obnoxious per
se to the constitution, it cannot be validly invoked whenever its
application would collide with a constitutionally guaranteed
right such as freedom of assembly and/or expression, as in the
case at bar, regardless of whether the chancery of any foreign
embassy is beyond or within 500 feet from the situs of the rally
or demonstration.
||| (Reyes v. Bagatsing, G.R. No. L-65366, [November 9,
1983], 210 PHIL 457-482)