SOUTH-WEST AFRICA CASE (Liberia v.
South Africa) Turning to the basis of its decision in the present proceedings,
The South West Africa cases (Ethiopia v. South Africa;
Liberia v. South Africa), which relate to the continued existence
of the Mandate for South West Africa and the duties and
performance of South Africa as Mandatory thereunder, were
instituted by Applications of the Governments of Ethiopia and
Liberia filed in the Registry on 4 November 1960. By an Order
of 20 May 1961 the Court joined the proceedings in the two
cases. The Government of South Africa raised preliminary
objections to the Court's proceeding to hear the merits of the
case, but these were dismissed by the Court on 21 December
1962, the Court finding that it had jurisdiction to adjudicate
upon the merits of the dispute.
In its Judgment on the second phase of the cases the Court, by
the President's casting vote, the votes being equally divided
(seven-seven), found that the Applicant States could not be
considered to have established any legal right or interest in the
subject matter of their claims and accordingly decided to reject
them.
The President, Sir Percy Spender, has appended a Declaration
to the Judgment. Judge Morelli and Judge ad hoc van Wyk have
appended separate opinions. Vice-President Wellington Koo,
Judges Koretsky, Tanaka, Jessup, Padilla Nervo and Forster and
Judge ad hoc Sor Louis Mbanefo have appended dissenting
opinions.
* decided was whether any legal right or interest was vested in
**
The Applicants, acting in the capacity of States which were
members of the former League of Nations, put forward various
allegations of contraventions of the League of Nations Mandate
for South West Africa by the Republic of South Africa.
The contentions of the Parties covered, inter alia, the following
issues: whether the Mandate for South West Africa was still in
force and, if so, whether the Mandatory's obligation to furnish
annual reports on its administration to the Council of the
League of Nations had become transformed into an obligation
so to report to the General Assembly of the United Nations;
whether the Respondent had, in accordance with the Mandate,
promoted to the utmost the material and moral well-being and
the social progress of the inhabitants of the territory, whether
the Mandatory had contravened the prohibition in the Mandate
of the "military training of the natives" and the establishment
of military or naval bases or the erection of fortifications in the
territory; and whether South Africa had contravened the
provision in the Mandate that it (the Mandate) can only be
modified with the consent of the Council of the League of
Nations, by attempting to modify the Mandate without the
consent of the United Nations General Assembly, which, it was
contended by the Applicants, had replaced the Council of the
League for this and other purposes.
Before dealing with these questions, however, the Court
considered that there were two questions of an antecedent
character, appertaining to the merits of the case, which might
render an enquiry into other aspects of the case unnecessary.
One was whether the Mandate skill subsisted at all and the
other was the question of the Applicants' standing in this phase
of the proceedings - i.e. their legal right or interest regarding
the subject matter of their claims. As the Court based its
Judgment on a finding that the Applicants did not possess such
a legal right or interest, it did not pronounce upon the question
of whether the Mandate was still in force. Moreover, the Court
emphasized that its 1962 decision on the question of
competence was given without prejudice to the question of the
survival of the Mandate - a question appertaining to the merits
of the case, and not in issue in 1962 except in the sense that
survival had to be assumed for the purpose of determining the
purely jurisdictional issue - which was all that was then before
the Court.
the Court recalled that the mandates system was instituted by
Article 22 of the Covenant of the League of Nations. There were
three categories of mandates, 'A', 'B' and 'C' mandates, which
had, however, various features in common as regards their
structure. The principal element of each instrument of
mandate consisted of the articles defining the mandatory's
powers and its obligations in respect of the inhabitants of the
territory and towards the League and its organs. The Court
referred to these as the "conduct" provisions. In addition, each
instrument of mandate contained articles conferring certain
rights relative to the mandated territory directly upon the
members of the League as individual States, or in favour of
their nationals. The Court referred to rights of this kind as
"special interests", embodied in the "special interests"
provisions of the mandates.
In addition, every mandate contained a jurisdictional clause,
which, with a single exception, was in identical terms,
providing for a reference of disputes to the Permanent Court of
International Justice, which, the Court had found in the first
phase of the proceedings, was now, by virtue of Article 37 of
the Court's Statute, to be construed as a reference to the
present Court.
The Court drew a distinction between the "conduct" and the
"special interests" provisions of the mandates, the present
dispute relating exclusively to the former. The question to be
members of the League of Nations individually as regards the
"conduct" clauses of the mandates - i.e., whether the various
mandatories had any direct obligation towards the other
members of the League individually, as regards the carrying
out of the "conduct" provisions of the mandates. If the answer
were that the Applicants could not be regarded as possessing
the legal right or interest claimed, then even if the various
allegations of contraventions of the Mandate for South West
Africa were established, the Applicants would still not be
entitled to the pronouncements and declarations which, in
their final submissions, they asked the Court to make.
It was in their capacity as former members of the League of
Nations that the Applicants appeared before the Court, and the
rights they claimed were those that the members of the League
were said to have been invested with in the time of the League.
Accordingly, in order to determine the rights and obligations of
the Parties relative to the Mandate, the Court had to place itself
at the point in time when the mandates system was instituted.
Any enquiry into the rights and obligations of the Parties must
proceed principally on the basis of considering the texts of the
instruments and provisions in the setting of their period.
Similarly, attention must be paid to the juridical character and
structure of the institution, the League of Nations, within the
framework of which the mandates system was organized. A
fundamental element was that Article 2 of the Covenant
provided that the "action of the League under this Covenant
shall be effected through the instrumentality of an Assembly
and of a Council, with a permanent Secretariat". Individual
member States could not themselves act differently relative to
League matters unless it was otherwise specially so provided
by some article of the Covenant.
It was specified in Article 22 of the Covenant that the "best
method of giving practical effect to [the] principle" that the
"well-being and development" of those peoples in former
enemy colonies "not yet able to stand by themselves" formed
"a sacred trust of civilization" was that "the tutelage of such
peoples should be entrusted to advanced nations . . . who are
willing to accept it" and it specifically added that it was "on
behalf of the League" that "this tutelage should be exercised by
those nations as Mandatories". The mandatories were to be the
agents of the League and not of each and every member of it
individually.
Article 22 of the Covenant provided that "securities for the
performance" of the sacred trust were to be "embodied in this
Covenant". By paragraphs 7 and 9 of Article 22, every
mandatory was to "render to the Council an annual report in
reference to the territory"; and a Permanent Mandates
Commission was to be constituted "to receive and examine"
these annual reports and "to advise the Council on all matters
relating to the observance of the mandates". In addition, it was
provided, in the instruments of mandate themselves, that the
annual reports were to be rendered "to the satisfaction of the
Council".
Individual member States of the League could take part in the
administrative process only through their participation in the
activities of the organs by means of which the League was
entitled to function. They had no right of direct intervention
relative to the mandatories: this was the prerogative of the
League organs.
The manner in which the mandate instruments were drafted
only lends emphasis to the view that the members of the
League generally were not considered as having any direct
concern with the setting up of the various mandates.
Furthermore, while the consent of the Council of the League
was required for any modification of the terms of the mandate,
it was not stated that the consent of individual members of the
League was additionally required. Individual members of the
League were not parties to the various instruments of
mandate, though they did, to a limited extent, and in certain
respects only, derive rights from them. They could draw from
the instruments only such rights as these unequivocally
conferred.
Had individual members of the League possessed the rights
which the Applicants claimed them to have had, the position of
a mandatory caught between the different expressions of view
of some 40 or 50 States would have been untenable.
Furthermore, the normal League voting rule was unanimity,
and as the mandatory was a member of the Council on
questions affecting its mandate, such questions could not be
decided against the mandatory's contrary vote. This system
was inconsistent with the position claimed for individual
League members by the Applicants, and if, as members of the
League, they did not possess the rights contended for, they did
not possess them now.
* which they invoked as to entitle them to the pronouncements
**
It had been attempted to derive a legal right or interest in the
conduct of the Mandate from the simple existence, or principle,
of the "sacred trust". The sacred trust, it was said was a "sacred
trust of civilization" and hence all civilized nations had an
interest in seeing that it was carried out. But in order that this
interest might take on a specifically legal character the sacred
trust itself must be or become something more than a moral or
humanitarian ideal. In order to generate legal rights and
obligations, it must be given juridical expression and be
clothed in legal form. The moral ideal must not be confused
with the legal rules intended to give it effect. The principle of
the "sacred trust" had no residual juridical content which
could, so far as any particular mandate is concerned,
operate per se to give rise to legal rights and obligations
outside the system as a whole.
Nor could the Court accept the suggestion that even if the legal
position of the Applicants and of other individual members of
the League were as the Court held it to be, this was so only
during the lifetime of the League, and that on the latter's
dissolution the rights previously resident in the League itself,
or in its competent organs, devolved upon the individual States
which were members of it at the date of its dissolution.
Although the Court held in 1962 that the members of a
dissolved international organization can be deemed, though no
longer members of it, to retain rights which, as members, they
individually possessed when the organization was in being,
this could not extend to ascribing to them, upon and by reason
of the dissolution, rights which, even previously as members,
they never did individually possess. Nor could anything that
occurred subsequent to the dissolution of the League operate
to invest its members with rights they did not previously have
as members of the League. The Court could not read the
unilateral declarations, or statements of intention, made by the
various mandatories on the occasion of the dissolution of the
League, expressing their willingness to continue to be guided
by the mandates in their administration of the territories
concerned, as conferring on the members of the League
individually any new legal rights or interests of a kind they did
not previously possess.
It might be said that in so far as the Court's view led to the
conclusion that there was now no entity entitled to claim the
due performance of the Mandate, it must be unacceptable, but
if a correct legal reading of a given situation showed certain
alleged rights to be non-existent, the consequences of this must
be accepted. To postulate the existence of such rights in order
to avert those consequences would be to engage in an
essentially legislative task, in the service of political ends.
Turning to the contention that the Applicants' legal right or
interest had been settled by the 1962 Judgment and could not
now be reopened, the Court pointed out that a decision on a
preliminary objection could never be preclusive of a matter
appertaining to the merits, whether or not it had in fact been
dealt with in connection with the preliminary objection. When
preliminary objections were entered by the defendant party in
a case, the proceedings on the merits were suspended, by
virtue of Article 62, paragraph 3, of the Court's Rules.
Thereafter, and until the proceedings on the merits were
resumed, there could be no decision finally determining or
prejudging any issue of merits. A judgment on a preliminary
objection might touch on a point of merits, but this it could do
only in a provisional way, to the extent necessary for deciding
the question raised by the preliminary objection. It could not
rank as a final decision on the point of merits involved.
While the 1962 Judgment decided that the Applicants were
entitled to invoke the jurisdictional clause of the Mandate, it
remained for them, on the merits, to establish that they had
such a right or interest in the carrying out of the provisions
and declarations they were seeking from the Court. There was
no contradiction between a decision that the Applicants had
the capacity to invoke the jurisdictional clause and a decision
that the Applicants had not established the legal basis of their
claim on the merits.
In respect of the contention that the jurisdictional clause of the
Mandate conferred a substantive right to claim from the
Mandatory the carrying out of the "conduct of the Mandate"
provisions, it was to be observed that it would be remarkable if
so important a right had been created in so casual and almost
incidental a fashion. There was nothing about this particular
jurisdictional clause, in fact, to differentiate it from many
others, and it was an almost elementary principle of
procedural law that a distinction had to be made between, on
the one hand, the right to activate a court and the right of a
court to examine the merits of a claim and, on the other, the
plaintiff's legal right in respect of the subject matter of its
claim, which it would have to establish to the satisfaction of the
Court. Jurisdictional clauses were adjectival not substantive in
their nature and effect: they did not determine whether parties
had substantive rights, but only whether, if they had them, they
could vindicate them by recourse to a tribunal.
The Court then considered the rights of members of the League
Council under the jurisdictional clauses of the minorities
treaties signed after the First World War, and distinguished
these clauses from the jurisdictional clauses of the instruments
of mandate. In the case of the mandates the jurisdictional
clause was intended to give the individual members of the
League the means of protecting their "special interests"
relative to the mandated territories; in the case of the
minorities treaties, the right of action of the Members of the
Council under the jurisdictional clause was only intended for
the protection of minority populations. Furthermore, any
"difference of opinion" was characterized in advance in the
minorities treaties as being justiciable, because it was to be
"held to be a dispute of an international character". Hence no
question of any lack of legal right or interest could arise. The
jurisdictional clause of the mandates on the other hand had
none of the special characteristics or effects of those of the
minorities treaties.
The Court next dealt with what had been called the broad and
unambiguous language of the jurisdictional clause - the literal
meaning of its reference to "any dispute whatever" coupled
with the words "between the Mandatory and another Member
of the League of Nations" and the phrase "relating . . . to the
provisions of the Mandate", which, it was said, permitted a
reference to the Court of a dispute about any provision of the
Mandate. The Court was not of the opinion that the word
"whatever" in Article 7, paragraph 2, of the Mandate did
anything more than lend emphasis to a phrase that would have
meant exactly the same without it. The phrase "any dispute"
(whatever) did not mean anything intrinsically different from
"a dispute"; nor did the reference to the "provisions" of the
Mandate, in the plural, have any different effect from what
would have resulted from saying "a provision". A considerable
proportion of the acceptances of the Court's compulsory
jurisdiction under paragraph 2 of Article 36 of its Statute were
couched in language similarly broad and unambiguous and
even wider. It could never be supposed that on the basis of this
wide language the accepting State was absolved from
establishing a legal right or interest in the subject matter of its
claim. The Court could not entertain the proposition that a
jurisdictional clause by conferring competence on the Court
thereby and of itself conferred a substantive right.
The Court next adverted to the question of admissibility. It
observed that the 1962 Judgment had simply found that it had
"jurisdiction to adjudicate upon the merits" and that if any
question of admissibility were involved it would fall to be
decided now, as occurred in the merits phase of
theNottebohm case; if this were so the Court would determine
the question in exactly the same way, i.e., looking at the matter
from the point of view of the capacity of the Applicants to
advance their present claim, the Court would hold that they
had not got such capacity, and hence that the claim was
inadmissible.
Finally, the Court dealt with what had been called the
argument of "necessity". The gist of this was that since the
Council of the League had no means of imposing its views on
the Mandatory, and since no advisory opinion it might obtain
from the Court would be binding on the latter, the Mandate
could have been flouted at will. Hence, it was contended, it was
essential, as an ultimate safeguard or security for the sacred
trust, that each Member of the League should be deemed to
have a legal right or interest in that matter and be able to take
direct action relative to it. But in the functioning of the
mandates system in practice, much trouble was taken to arrive,
by argument, discussion, negotiation and cooperative effort, at
generally acceptable conclusions and to avoid situations in
which the Mandatory would be forced to acquiesce in the
views of the rest of the Council short of casting an adverse
vote. In this context, the existence of substantive rights for
individual members of the League in the conduct of the
mandates exercisable independently of the Council would have
been out of place. Furthermore, leaving aside the improbability
that, had the framers of the mandates system intended that it
should be possible to impose a given policy on a mandatory,
they would have left this to be haphazard and uncertain action
of individual members of the League, it was scarcely likely that
a system which deliberately made it possible for mandatories
to block Council decisions by using their veto (though, so far as
the Court was aware, this had never been done) should
simultaneously invest individual members of the League with a
legal right of complaint if the mandatory made use of this veto.
In the international field, the existence of obligations that could
not be enforced by any legal process had always been the rule
rather than the exception-and this was even more the case in
1920 than today.
Moreover, the argument of "necessity" amounted to a plea that
the Court should allow the equivalent of an actio popularis, or
right resident in any member of a community to take legal
action in vindication of a public interest. But such a right was
not known to international law as it stood at present: and the
Court was unable to regard it as imported by "the general
principles of law" referred to in Article 38, paragraph 1 (c), of
its Statute.
In the final analysis, the whole "necessity" argument appeared
to be based on considerations of an extra-legal character, the
product of a process of after-knowledge. It was events
subsequent to the period of the League, not anything inherent
in the mandates system as it was originally conceived, that
gave rise to the alleged "necessity", which, if it existed, lay in
the political field and did not constitute necessity in the eyes of
the law. The Court was not a legislative body. Parties to a
dispute could always ask the Court to give a decision ex aequo
et bono, in terms of paragraph 2 of Article 38. Failing that, the
duty of the Court was plain: its duty was to apply the law as it
found it, not to make it.
It might be urged that the Court was entitled to "fill in the
gaps", in the application of a teleological principle of
interpretation, according to which instruments must be given
their maximum effect in order to ensure the achievement of
their underlying purposes. This principle was a highly
controversial one and it could, in any event, have no
application to circumstances in which the Court would have to
go beyond what could reasonably be regarded as being a
process of interpretation and would have to engage in a
process of rectification or revision. Rights could not be
presumed to exist merely because it might seem desirable that
they should. The Court could not remedy a deficiency if, in
order to do so, it had to exceed the bounds of normal judicial
action.
It might also be urged that the Court would be entitled to make
good an omission resulting from the failure of those concerned
to foresee what might happen and to have regard to what it
might be presumed the framers of the mandate would have
wished, or would even have made express provision for, had
they had advance knowledge of what was to occur. The Court
could not, however, presume what the wishes and intentions of
those concerned would have been in anticipation of events that
were neither foreseen nor foreseeable; and even if it could, it
would certainly not be possible to make the assumptions
contended for by the Applicants as to what those intentions
were.
For the foregoing reasons, the Court decided to reject the
claims of the Empire of Ethiopia and the Republic of Liberia.
BARCELONA TRACTION CASE (Belgium v. Spain)
FACTS:
The Barcelona Traction, Light and Power Company (BLTPC)
was incorporated in Toronto, Canada for the purpose of creating
and developing an electric power production and distribution
system in Catalonia,Spain.
It formed a number of concession-holding subsidiary
companies, of which some had their registered offices in Canada
and the others in Spain.
Some years after the first world war, the BLTPC’s share capital
came to be very largely held by Belgian nationals.
However, the servicing of the BLTPC bonds was suspended on
account of the Spanish civil war.
After that war the Spanish exchange control authorities refused
to authorize the transfer of the foreign currency necessary for
the resumption of the servicing of the sterling bonds.
Eventually, the company was declared bankrupt.
Belgium then filed an Application with the ICJ against the
Spanish government seeking reparation for damages claimed to
have been caused to the Belgian national shareholders of the
company.
Later however, Belgium gave notice of discontinuance of the
proceedings, with a view to negotiations between the
representatives of the private interests concerned, and the case
was removed from the Court's General List.
The negotiations having failed, the Belgian Government
submitted to the Court a new Application.
SPAIN’S ARGUMENTS:
The Belgian Government gave notice of discontinuance of the
proceedings with a view to negotiations between the
representatives of the private interests concerned.
This was due to the right conferred upon it (Belgium)
by Article 69, paragraph 2, of the Rules of Court. To
this, Spain presented no objection.
This discontinuance precluded Belgium from
bringing the proceedings.
Further, a discontinuance must always be taken as
signifying a renunciation of any further right of
action.
There had already been an understanding between the Parties.
The representatives of the private Belgian interests
had made an approach with a view to opening
negotiations and that the representatives of the
Spanish interests had laid down as a prior condition
the final withdrawal of the claim.
Belgium is estopped from denying the real import of the
discontinuance.
Belgium through its conduct misled Spain about the
import of the discontinuance, for which Spain would
not have agreed to, and would not thereby have
suffered prejudice.
The proceedings are contrary to the Hispano-Belgian Treaty of
Conciliation, Judicial Settlement and Arbitration, as a result the
ICJ lacks jurisdiction.
1 If the other methods of settlement provided for in the
Treaty failed, either party could bering any dispute of
a legal nature before the Permanent Court of
International Justice.
Article 17 (4)1 of the Treaty had already lapsed in
1946, and no substitution of the present for the
former Court had been effected. As such, the Treaty
had ceased to contain any valid jurisdictional clause
when Spain was admitted to the UN and became a
party to the Statue in 1955.
Further, Article 372 applied only between States
which had become parties to the Statute previous to
the dissolution of the Permanent Court.
The Belgian government has no legal capacity to protect the
Belgian interests on behalf of which it had submitted its claim.
International law does not recognize, in respect of
injury caused by a State to the foreign company, any
diplomatic protection of shareholders exercised by a
State other than the national State of the company.
1ST RULING OF THE COURT IN JULY 24 1964
DISCONTINUANCE
Belgium’s notice of discontinuance was confined
strictly to the proceeding instituted by the first
Application thus not waiving its right to institute
proceedings anew.
The obligation of establishing that the
discontinuance meant something more than the
decision to terminate those proceedings was placed
upon Spain.
AGREEMENT BETWEEN PARTIES
No evidence as to the taking place of any such
agreement.
ESTOPPEL
Alleged misrepresentations not clearly established.
Also, the Court did not see what Spain stood to lose
by agreeing to negotiate on the basis of a simple
discontinuance.
If it had not agreed to the discontinuance, the
previous proceedings would simply have continues,
whereas negotiations offered a possibility of finally
settling the dispute.
CONTRARY TO THE TREATY/ICJ JURISDICTION
Treaty processes could not be regarded as exhausted
so long as the right to bring new proceedings
otherwise existed and until the case had been
prosecuted to judgment.
In 1945 the treaty drafters had intended to preserve
as many jurisdictional clauses as possible from
becoming inoperative by reason of the prospective
dissolution of the Permanent Court. It was thus
difficult to suppose that they would willingly have
contemplated that the nullification of the
jurisdictional clauses whose continuation it was
desired to preserve would be brought about by the
2 “Whenever a treaty or convention in force provides
for reference of a matter . . . to the Permanent Court
of International Justice. the matter shall, as between
the parties to the present Statue, be referred to the
ICJ.”
 very event the effects of which Article 37 was
intended to parry.
The 1927 Treaty being in force and containing a
provision for reference to the Permanent Court, and
the parties to the dispute being parties to the Statute,
the matter was one to be referred to the
International Court of Justice which was the
competent forum.
Also, States becoming parties to the Statute after the
dissolution of the Permanent Court must be taken to
have known that one of the results of their admission
would be the reactivation by reason of Article 37 of
certain jurisdictional clauses.
LEGAL CAPACITY OF BELGIUM
Belgium has jus standi.
The question of the jus standi of a government to
protect the interests of shareholders raised an
antecedent question of what was the juridical
situation in respect of shareholding interests, as
recognized by international law.
Belgium thus necessarily invoked rights which, so it
contended, were conferred on it in respect of its
nationals by the rules of international law
concerning the treatment of foreigners.
Hence a finding that it had no jus standi would be
tantamount to a finding that those rights did not exist
and that the claim was not well-founded in
substance.
2ND RULING OF THE COURT IN FEBRUARY 5, 1970
ON RIGHT OF BELGIUM TO TO EXERCISE DIPLOMATIC
PROTECTION OF BELGIAN SHAREHOLDERS IN A COMPANY
INCORPORATED IN CANADA
Municipal law applied to international law
In the field of diplomatic protection, international law was in
continuous evolution and was called upon to recognize
institutions of municipal law. In municipal law, the concept of
the company was founded on a firm distinction between the
rights of the company and those of the shareholder.
Only the company, which was endowed with legal personality,
could take action in respect of matters that were of a corporate
character.
Whenever a shareholder's interests were harmed by an act done
to the company, it was to the latter that he had to look to
institute appropriate action.
An act infringing only the company's rights did not involve
responsibility towards the shareholders, even if their interests
were affected. In order for the situation to be different, the act
complained of must be aimed at the direct rights of the
shareholder as such (which was not the case here since the
Belgian Government had itself admitted that it had not based its
claim on an infringement of the direct rights of the
shareholders).
ON BELGIUM’S JUS STANDI
Belgium has no jus standi!
General Rule: State of the company can seek redress.
International law had to refer to those rules generally accepted
by municipal legal systems.
An injury to the shareholder's interests resulting from an
injury to the rights of the company was insufficient to found a
claim.
Where it was a question of an unlawful act committed against a
company representing foreign capital, the general rule of
international law authorized the national State of the company
alone to exercise diplomatic protection for the purpose of
seeking redress.
No rule of international law expressly conferred such a right on
the shareholder's national State.
It had been maintained that a State could make a claim when
investments by its nationals abroad, such investments being
part of a State's national economic resources, were
prejudicially affected in violation of the right of the State itself
to have its nationals enjoy a certain treatment. But, in the
present state of affairs, such a right could only result from a
treaty or special agreement. And no instrument of such a kind
was in force between Belgium and Spain.
THE RIVER MEUSE CASE (Netherlands v. Belgium, 1937)
A. Facts
1. Diversion of water and cross-border impacts of Canals The
Meuse is an international river, which rises in north-eastern
France, and flows through Belgium and the Netherlands to the
North Sea ( International Watercourses). Two sections of the
river form the boundary between Belgium and the
Netherlands. Since the Meuse is a rain-fed river, river
discharges may vary considerably, and periodic water shortage
has been an important international issue since long. In the
mid of the 19th century, various conflicts over the distribution
of Meuse water arose between Belgium and the Netherlands.
These conflicts were caused by the construction of various new
Canals for irrigating the Campine district in Belgium, which
were linked to the Zuid-Willemsvaart canal. Because the
ZuidWillemsvaart canal is fed with Meuse river, these new
Campine canals were fed with Meuse water as well (Bouman
1996, 161). The digging of the new Campine canals affected the
Netherlands in three ways. First, the large amount of water
needed for feeding the canals caused an excessive current in
the Zuid-Willemsvaart canal, which hindered navigation.
Secondly, the reduced water level in the Meuse impeded
navigation on that river, and finally, the irrigation projects
within the Campine district caused flooding in some parts of
the southern Netherlands.
2. Treaty Regulating the Diversion of Water from the Meuse, 12
May 1863 Belgium and the Netherlands made various attempts
to find a solution of the problem, but it was not until 1863 that
the two countries were able to settle the issue of water
diversions by concluding a Treaty, which established the
regime for taking water from the Meuse (Belgium-Netherlands,
Treaty Regulating the Diversion of Water from the Meuse, The
Hague, 12 May 1863, hereafter the Treaty). Key elements of
this Treaty are the construction of a new intake near
Maestricht, on Dutch territory, which would serve as the feeder
for all canals below that town, the raising of the water level in
the Zuid-Willemsvaart so as to decrease the speed of current,
and the realization of some infrastructure works aimed at
improving the navigability of the joint section of the Meuse.
Finally, the Treaty regulates the amount of water to be taken at
the Treaty feeder depending on both the time of the year and
the water level in the river (Robb 1999, 159).

3. Belgian-Dutch conflicts over the construction of new canals

The Treaty had been helpful in solving bilateral water conflicts
for a few decades. In 1921, however, the Dutch launched plans
for the construction of a lateral canal along the Meuse on Dutch
territory, the Juliana canal, and of the Borgharen barrage. The
Netherlands also contructed a new lock, the Bossche Veld lock,
just below the intake constructed at Maestricht (the Treaty
feeder), which gives access to the Zuid-Willemsvaart canal
from the Meuse. In spite of Belgian objections to these projects
as they would not be in accordance with the Treaty, the Dutch
continued their project. In the meanwhile, Belgium developed
plans for improving communication between Antwerp and
Liege. These plans comprised both digging new canals and
improving various existing canals. Together, these works now
are known as the Albert Canal. Relevant to our case is that
some of the improved canals are situated below Maestricht,
whilst the Albert canal is feeded with water diverted from the
Meuse near Monsin, on Belgian territory. Moreover, the Albert
canal was connected to the ZuidWillemsvaart canal through
the Neerhaeren lock on Belgian territory below Maestricht
(Robb 1999, 160). The Netherlands made various attempts to
stop this project by means of diplomacy, because in their
opinion this project was inconsistent with the Treaty. The
Netherlands, however, did not succeed.

B. History of proceedings

1. Application of the Netherlands in the PCIJ Because Belgium

and the Netherlands were unable to settle the various disputes
on the diversion of water from the Meuse, on 1 August 1936
the Netherlands initiated proceedings against Belgium in the
Permanent Court of International Justice (PCIJ) ( Arbitration,
International Court or Tribunal). The Netherlands claimed
that the construction of various works that enabled Belgium to
feed canals which are situated below Maestricht with water
derived from the Meuse elsewhere than at the Treaty feeder, is
a breach of the Treaty. The Netherlands asked the court to
decide that Belgium should stop all works related to the Albert
canal, to restore the situation before the construction of these
works was commenced, and to ‘refrain in the future from any
feeding contrary to the Treaty’ (Robb, 1999, 161).
2. Counter-Memorial of the Belgian government Belgium
argued that the ‘mere possibility of works being used for
purposes inconsistent with the Treaty of May 12th, 1863,
governing the taking of water from the Meuse, does not suffice
to justify the condemnation of such works and to secure their
demolition, since bad faith may not be presumed’ (Publications
of the Permanent Court of International Justice Series A/BNo.
70, 6). Moreover, Belgium formulated a counter-claim by
arguing that the construction of the Juliana canal and the
Borgharen barrage are inconsistent with the Treaty. According
to Belgium, the Juliana canal is a canal below Maestricht, and
the Treaty regime, including the provisions about water supply
and the obligation to use the Treaty feeder, apply to the Juliana
canal. Finally, Belgium claimed that the Netherlands was never
allowed to construct the Borgharen barrage without Belgian
consent, because this barrage has changed water levels at the
Treaty feeder.
3. The Netherlands Reply In the Reply, the Netherlands argued
that the Borgharen Barrage is not inconsistent with the Treaty,
and that ‘no right or interest on the part of Belgium is thereby
injured’ (Ibid., 7). The Netherlands also argued that the Juliana
canal is situated on the right bank of the river Meuse, and
therefore the Treaty regime does not apply to that canal. The
Netherlands, finally argued that ‘the mere fact that it would be
possible for the Netherlands to use certain locks on this canal
in a manner contrary to the Treaty does not in itself constitute
a breach of that Treaty’ (Ibid.).
C. Findings and reasoning of the PCIJ
1. Reciprocity By ten votes to three the Court takes the
following decisions. First, in spite of some references to
general international law about rivers which were made
during the proceedings, the Court decides that the claims do
not entitle it to go outside the provisions of the Treaty of 1863.
The Court rejects the principal claim of the Netherlands that
the construction of a canal that would render it possible for
Belgium to feed canals situated below Maestricht with water
taken from the Meuse at another place than at the Treaty
feeder, is inconsistent with the Treaty. According to the Court
the fact that the Treaty feeder is situated on Dutch territory
indeed gives the Netherlands, as Territorial Sovereign, a
right of supervision which Belgium can not possess (Robb,
163). This is not to say, however, that this right imposes an
obligation on Belgium not to construct works which could be
used to feed canals below Maestricht with Meuse water
diverted from the Meuse elsewhere than at the Treat feeder,
whereas there is no such obligation for the Netherlands. The
Court is of the opinion that such a right ‘would presumably
have been granted on a reciprocal basis’ (Spiermann, 2005,
374) ( Reciprocity). If the objective of the Treaty was to
create inequality between the contracting parties, this should
have been expressed clearly in the text of the Treaty. In
absence of such a provision, both states should be treated
equally, because the Treaty was ‘an agreement freely
concluded between two States seeking to reconcile their
practical interests with a view to improving an existing
situation rather than to settle a legal dispute concerning
mutually contested rights’ (The Diversion of Water from the
Meuse. Publications of the Permanent Court of International
Justice Series A/B- No. 70, 1925, 20)
2. The importance of an example set in the past As regards the
Dutch objections to the construction of the Neerhaeren Lock,
The Court argued that lock-water indeed is a means of feeding
a canal (Robb, 163), but that the lock is not contrary to the
objections of the Treaty, i.e. it does neither create an excessive
current in the Zuid-Willems Vaart canal, nor does it hinder
navigation on the Meuse. The Court, however, used an
additional argument. It stated that it cannot refrain from
comparing the case of the Neerhearen lock with that of the
Netherlands lock at Bossche Veld, since both of these locks feed
a canal otherwise than through the Treaty feeder. ‘In these
circumstances the Court finds it difficult to admit that the
Netherlands are now warranted in complaining of the
construction and operation of a lock of which they themselves
set an example in the past’ (The Diversion of Water from the
Meuse. Publications of the Permanent Court of International
Justice Series A/B- No. 70, 1925, 25). The Court concluded that
there is no ground for treating the Belgian lock less favourably
than the Netherlands lock. Regarding the Netherlands claim
that the Albert canal, which is feeded at Liege, coincides with
sections of existing canals below Maeastricht, the Court
concludes that each of the two states is free in its own territory
to enlarge canals, to transform them, to fill them, and to
increase the volume of water in them from new sources, if the
water division at the Treaty feeder and the volume of water to
be discharged at the feeder, and the flow of water in the Zuid-
Willemsvaart Canal is not thereby affected (Robb, 164).
3. Decision on Belgian claims
The Court also decided on the Belgian claims. According to the
Court, the construction of the Borgharen barrage had changed
the water level in the Meuse at the Treaty feeder indeed, but
the newly created situation does not affect any of the Treaty
obligations. The volume of water discharged by the feeder does
not exceed the maximum fixed in the Treaty, and the current in
the Zuid-Willemsvaart is not affected. Therefore, this counter-
claim is rejected. As regards the Juliana canal, the Court argues
that clearly a feeder situated on the left bank of the Meuse was
not aimed at feeding canals on the right bank of the Meuse
(Robb, 165). Therefore, the Juliana Canal does not come under
the regime of the Treaty. Just like all Netherlands claims, the
Court rejects all Belgian counter-claims.
D. Assessment
The Meuse, diversion of water case, is an important example of
a Judicial Settlement of International Disputes. Although the
decisions of the Court were primarily aimed at contributing to
the solution of some of the very specific water management
issues at stake between Belgium and the Netherlands, the
relevance of some legal arguments goes beyond that single
case. A first interesting element of the case is that the Court
explicitly decided to base its judgement on an interpretation of
the 1863 Treaty only, and that it did not consider ‘the general
rules of international law’. Spiermann (2005, p. 373) already
observed that this approach was quite different from the PCIJ-
decision in the river Oder case, which was about legal rights for
navigating this river (Case relating to the Territorial
Jurisdiction of the International Commission of the River Oder,
Series A No. 23, 1929) In that case, the Court based its decision
partly on the international law of coexistence. Secondly, the
case represents an application of the principle of Reciprocity
in international law (See section C). Thirdly, the Court’s
conclusion that each of the two states is free in its own
territory to enlarge canals, to transform them, to fill them, and
to increase the volume of water in them from new sources, as
long as the water division at the Treaty feeder, the volume of
water to be discharged at the feeder, and the flow of water in
the Zuid-Willemsvaart Canal are not thereby affected (Robb,
164), is a Treaty interpretation which is in accordance with the
national principle of Self-containedness (Spiermann, 2005, p.
374).
Finally, the additional argument the Court has used in its
decision on the Dutch claim that the construction of the
Neerhaeren lock is contrary to the Treaty, namely that the
Dutch had set an example in the past by the construction of the
Bossche Veld Lock, can be interpreted as an application of the
Principle of Equity in International Law (Wouters, 2005,
p.14-15).
KURODA v, JALANDONI
Shigenori Kuroda, formerly a Lieutenant-General of the
Japanese Imperial Army and Commanding General of the
Japanese Imperial Forces in The Philippines during a period
covering 19433 and 19444 who is now charged before a
military Commission convened by the Chief of Staff of the
Armed forces of the Philippines with having unlawfully
disregarded and failed "to discharge his duties as such
command, permitting them to commit brutal atrocities and
other high crimes against noncombatant civilians and
prisoners of the Imperial Japanese Forces in violation of the
laws and customs of war" — comes before this Court seeking
to establish the illegality of Executive Order No. 68 of the
President of the Philippines: to enjoin and prohibit
respondents Melville S. Hussey and Robert Port from
participating in the prosecution of petitioner's case before the
Military Commission and to permanently prohibit respondents
from proceeding with the case of petitioners.
In support of his case petitioner tenders the following principal
arguments.
First. — "That Executive Order No. 68 is illegal on the ground
that it violates not only the provision of our constitutional law
but also our local laws to say nothing of the fact (that) the
Philippines is not a signatory nor an adherent to the Hague
Convention on Rules and Regulations covering Land Warfare
and therefore petitioners is charged of 'crimes' not based on
law, national and international." Hence petitioner argues —
"That in view off the fact that this commission has been
empanelled by virtue of an unconstitutional law an illegal
order this commission is without jurisdiction to try herein
petitioner."
Second. — That the participation in the prosecution of the case
against petitioner before the Commission in behalf of the
United State of America of attorneys Melville Hussey and
Robert Port who are not attorneys authorized by the Supreme
Court to practice law in the Philippines is a diminution of our
personality as an independent state and their appointment as
prosecutor are a violation of our Constitution for the reason
that they are not qualified to practice law in the Philippines.
Third. — That Attorneys Hussey and Port have no personality
as prosecution the United State not being a party in interest in
the case.
Executive Order No. 68, establishing a National War Crimes
Office prescribing rule and regulation governing the trial of
accused war criminals, was issued by the President of the
Philippines on the 29th days of July, 1947 This Court holds that
this order is valid and constitutional. Article 2 of our
Constitution provides in its section 3, that —
The Philippines renounces war as an instrument of
national policy and adopts the generally accepted
principles of international law as part of the of the
nation.
In accordance with the generally accepted principle of
international law of the present day including the Hague
Convention the Geneva Convention and significant precedents
of international jurisprudence established by the United Nation
all those person military or civilian who have been guilty of
planning preparing or waging a war of aggression and of the
commission of crimes and offenses consequential and
incidental thereto in violation of the laws and customs of war,
of humanity and civilization are held accountable therefor.
Consequently in the promulgation and enforcement of
Execution Order No. 68 the President of the Philippines has
acted in conformity with the generally accepted and policies of
international law which are part of the our Constitution.
The promulgation of said executive order is an exercise by the
President of his power as Commander in chief of all our armed
forces as upheld by this Court in the case of Yamashita vs. Styer
(L-129, 42 Off. Gaz., 664) 1when we said —
War is not ended simply because hostilities have
ceased. After cessation of armed hostilities incident
of war may remain pending which should be
disposed of as in time of war. An importance
incident to a conduct of war is the adoption of
measure by the military command not only to repel
and defeat the enemies but to seize and subject to
disciplinary measure those enemies who in their
attempt to thwart or impede our military effort have
 violated the law of war. (Ex parte Quirin 317 U.S., 1;
63 Sup. Ct., 2.) Indeed the power to create a military
commission for the trial and punishment of war
criminals is an aspect of waging war. And in the
language of a writer a military commission has
jurisdiction so long as a technical state of war
continues. This includes the period of an armistice
or military occupation up to the effective of a treaty
of peace and may extend beyond by treaty
agreement. (Cowles Trial of War Criminals by
Military Tribunals, America Bar Association Journal
June, 1944.)
Consequently, the President as Commander in Chief is fully
empowered to consummate this unfinished aspect of war
namely the trial and punishment of war criminal through the
issuance and enforcement of Executive Order No. 68.
Petitioner argues that respondent Military Commission has no
Jurisdiction to try petitioner for acts committed in violation of
the Hague Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed the second
only in 1947. It cannot be denied that the rules and regulation
of the Hague and Geneva conventions form, part of and are
wholly based on the generally accepted principals of
international law. In facts these rules and principles were
accepted by the two belligerent nation the United State and
Japan who were signatories to the two Convention, Such rule
and principles therefore form part of the law of our nation
even if the Philippines was not a signatory to the conventions
embodying them for our Constitution has been deliberately
general and extensive in its scope and is not confined to the
recognition of rule and principle of international law as
continued inn treaties to which our government may have
been or shall be a signatory.
Furthermore when the crimes charged against petitioner were
allegedly committed the Philippines was under the sovereignty
of United States and thus we were equally bound together with
the United States and with Japan to the right and obligation
contained in the treaties between the belligerent countries.
These rights and obligation were not erased by our assumption
of full sovereignty. If at all our emergency as a free state
entitles us to enforce the right on our own of trying and
punishing those who committed crimes against crimes against
our people. In this connection it is well to remember what we
have said in the case of Laurel vs. Misa (76 Phil., 372):
. . . The change of our form government from
Commonwealth to Republic does not affect the
prosecution of those charged with the crime of
treason committed during then Commonwealth
because it is an offense against the same sovereign
people. . . .
By the same token war crimes committed against our people
and our government while we were a Commonwealth are
triable and punishable by our present Republic.
Petitioner challenges the participation of two American
attorneys namely Melville S. Hussey and Robert Port in the
prosecution of his case on the ground that said attorney's are
not qualified to practice law in Philippines in accordance with
our Rules of court and the appointment of said attorneys as
prosecutors is violative of our national sovereignty.
In the first place respondent Military Commission is a special
military tribunal governed by a special law and not by the
Rules of court which govern ordinary civil court. It has already
been shown that Executive Order No. 68 which provides for
the organization of such military commission is a valid and
constitutional law. There is nothing in said executive order
which requires that counsel appearing before said commission
must be attorneys qualified to practice law in the Philippines in
accordance with the Rules of Court. In facts it is common in
military tribunals that counsel for the parties are usually
military personnel who are neither attorneys nor even
possessed of legal training.
Secondly the appointment of the two American attorneys is not
violative of our nation sovereignty. It is only fair and proper
that United States, which has submitted the vindication of
crimes against her government and her people to a tribunal of
our nation should be allowed representation in the trial of
those very crimes. If there has been any relinquishment of
sovereignty it has not been by our government but by the
United State Government which has yielded to us the trial and
punishment of her enemies. The least that we could do in the
spirit of comity is to allow them representation in said trials.
Alleging that the United State is not a party in interest in the
case petitioner challenges the personality of attorneys Hussey
and Port as prosecutors. It is of common knowledge that the
United State and its people have been equally if not more
greatly aggrieved by the crimes with which petitioner stands
charged before the Military Commission. It can be considered a
privilege for our Republic that a leader nation should submit
the vindication of the honor of its citizens and its government
to a military tribunal of our country.
The Military Commission having been convened by virtue of a
valid law with jurisdiction over the crimes charged which fall
under the provisions of Executive Order No. 68, and having
said petitioner in its custody, this Court will not interfere with
the due process of such Military commission.
For all the foregoing the petition is denied with costs de oficio.
Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes,
JJ., concur.
Separate Opinions
PERFECTO, J., dissenting:
A military commission was empanelled 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 prosecutor representing the American CIC in the
trial of the case.
The commission was empanelled 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 consideration 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
person cannot appear as prosecutors in petitioner 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 question involved in the challenge against
the validity of Executive Order No. 68. Said order is challenged
on several constitutional ground. To get a clear idea of the
question 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 REGULATION GOVERNING
THE TRIAL OF ACCUSED WAR CRIMINAL.
I, Manuel Roxas president of the Philippines by
virtue of the power 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 regulation
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
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 power and shall
exchange with the said Office information and
evidence of war crimes.
The following rules and regulation shall govern the
trial off person accused as war criminals:
ESTABLISHMENT OF MILITARY COMMISSIONS
(a) General. — person accused as war criminal shall
be tried by military commission to be convened by
or under the authority of the Philippines.
II. JURISDICTION
(a) Over Person. — Thee military commission
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 commission
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 agreement or assurance or
participation in a common plan or conspiracy for the
accomplishment of any of the foregoing.
(2) Violation of the laws or customs of war. Such
violation shall include but not be limited to murder
ill-treatment or deportation to slave labor or for
other purpose of civilian population of or in
occupied territory; murder or ill-treatment of
prisoners of war or internees or person on the seas
or elsewhere; improper treatment of hostage;
plunder of public or private property wanton
destruction of cities towns or village; or devastation
not justified by military necessity.
(3) Murder extermination enslavement deportation
and other inhuman acts committed against civilian
population before or during the war or persecution
on political racial or religion ground in executive 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 shall attend all session 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 filled by the convening
authority but the substance of all proceeding had
evidence taken in that case shall be made known to
the said new member or alternate. This facts 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 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 finding of the Commission
shall be by majority vote except that conviction and
sentence shall be by the affirmative vote of not less
than conviction and sentence shall be by the
affirmative vote of not less than two-thirds (2\3) of
the member present.
(e) Presiding Member. — In the event that the
convening authority does not name one of the
member as the presiding member, the senior officer
among the member of the Commission present shall
preside.
IV. PROSECUTORS
(a) Appointment. — The convening authority shall
designate one or more person to conduct the
prosecution before each commission.
(b) Duties. — The duties of the prosecutor 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. POWER AND PROCEDURE OF COMMISSION
(a) Conduct of the Trial. — A Commission shall:
(1) Confine each trial strictly to 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 session 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 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 of any medical service personnel,
or by any investigator or intelligence officer, or by
any other person whom commission considers as
possessing knowledge of the matters contained in
the report.
(c) Affidavits, depositions or other signed
statements.
(d) Any diary, letter to other document, including
sworn 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 Nation.
(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 purposed confessions or statements of the
accused shall bee admissible in evidence without
any showing that they were voluntarily made. If it is
shown that such confession or statement was
procured by mean which the commission believe to
have been of such a character that 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.
(4) 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 he evidence before 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.
(5) The defense may make an opening statement
prior to presenting its case. The presiding member
may, at this 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.
(6) 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.
(7) The defense and thereafter the prosecution shall
address the commission.
(8) 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 reason on which judgment is based.
( f ) Record of Proceedings. — Each commission shall
make a separate record of its proceeding 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 off 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 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 final and not subject
to review by any other tribunal.
VI. RULE-MAKING POWER
 Supplementary Rule and Forms. — Each commission
shall adopt rules and forms to govern its procedure,
not inconsistent with the provision 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 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
recommendation of the Judge Advocate General as
approved by the President. The buildings, fixtures,
installations, messing, and billeting equipment and
other property herefore used by then Legal Section,
Manila Branch, of the General Headquarters,
Supreme Commander for the Allied Power, which
will be turned over by the United States Army to the
Philippines Government through the Foreign
Liquidation Commission and the Surplus Property
Commission are hereby specification reserved for
use off the National War Crimes Office.
Executive Order No. 64, dated August 16, 1945, 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 trust at our face spearheading a group
of other no less important question, 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
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 President of the Philippines, to the specific provision 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 member of the
Constitutional Convention were believers in the tripartite
system of government as originally enunciated by Aristotle,
further elaborated by Montequieu and accepted and practiced
by modern democracies, especially the United State of America,
whose Constitution, after which ours has been patterned, has
allocated the three power of government — legislative,
executive, judicial — to distinct and separate department of
government.
Because the power vested by our Constitution to the several
department of the government are in the nature of grants, not
recognition of pre-existing power, no department of
government may exercise any power or authority not
expressly granted by the Constitution or by law by virtue
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 person 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 charge with war crimes. The power to define and
allocate jurisdiction for the prosecution of person accused of
any crime is exclusively vested by the Constitution in Congress.
.
It provides rules of procedure for the conduct of trial of trial.
This provision on procedural subject constitutes a usurpation
of the rule-making power vested by Constitution in the
Supreme Court.
It authorized military commission to adopt additional rule 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 commission.
It appropriates the sum of P7000,000 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,
though it the President of the Philippines usurped power
expressly vested by the Constitution in Congress and in the
Supreme Court.
Challenged to show the constitutional or legal authority under
which the President issued Executive Order No. 68, respondent
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 power 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 REGULATION TO SAFEGUARD THE
INTEGRITY OF THE PHILIPPINES AND TO
INSURE THE TRANQUILITY OF ITS
INHABITANTS.
necessity, both imported and locally produced or
manufactured; and (11) to prevent, locally or
generally, scarcity, monopolization, hoarding
injurious speculations, and private control affecting
the supply, distribution and movement of foods,
clothing, fuel, fertilizer, chemical, building, material,
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 objective, the President may
designate any officer, without additional
compensation, or any department, bureau, office, or
instrumentality of the National Government.

Be it enacted by the National Assembly of the SEC. 3. Any person, firm, or corporation found guilty
Philippines: of the violation of any provision of this Act or of this
Act or any of the rules or regulations promulgated
by the President under the authority of section one
SECTION 1. The existence of war in many parts of
of this Act shall be punished by imprisonment of not
the world has created a national emergency which
more than ten years or by a fine of not more than
makes it necessary to invest the President of the
ten thousand pesos, or by both. If such violation is
Philippines with extraordinary power in order to
committed by a firm or corporation, the manager,
safeguard the integrity of the Philippines and to
managing director, or person charge with the
insure the tranquility of its inhabitants, by
management of the business of such firm, or
suppressing espionage, lawlessness, and all
corporation shall be criminally responsible therefor.
subversive to the people adequate shelter and
clothing and sufficient food supply, and by providing
means for the speedy evacuation of the civilian SEC. 4. The President shall report to the national
population the establishment of an air protective Assembly within the first ten days from the date of
service and the organization of volunteer guard the opening of its next regular session whatever
units, and to adopt such other measures as he may action has been taken by him under the authority
deem necessary for the interest of the public. To herein granted.
carry out this policy the President is authorized to
promulgate rules and regulations which shall have
SEC. 5. To carry out the purposed of this Act, the
the force and effect off law until the date of
President is authorized to spend such amounts as
adjournment of the next regulation which shall have
may be necessary from the sum appropriated under
the force and effect of law until the date of
section five Commonwealth Act Numbered four
adjournment of the next regular session of the First
hundred and ninety-eight.
Congress of the Philippines, unless sooner amended
or repealed by the Congress of Philippines. Such
rules and regulation may embrace the following SEC. 6. If any province of this Act shall be declared
objects: (1) to suppress espionage and other by any court of competent jurisdiction to be
subversive activities; (2) to require all able-bodied unconstitutional and void, such declaration shall not
citizens (a) when not engaged in any lawful invalidate the remainder of this Act.
occupation, to engage in farming or other productive
activities or (b) to perform such services as may bee
SEC. 7. This Act shall take upon its approval.
necessary in the public interest; (3) to take over
farm lands in order to prevent or shortage of crops
and hunger and destitution; (4) to take over Approved, August 19, 1940.
industrial establishment 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 COMMONWEALTH ACT NO. 671
national security; (6) to regulate the normal hours of
work for wage-earning and salaried employees in
AN ACT DECLARING A STATE OF TOTAL
industrial or business undertakings of all kinds; (7)
EMERGENCY AS A RESULT OF WAR
to insure an even distribution of labor among the
INVOLVING THE PHILIPPINES AND
productive enterprises; (8) to commandership and
AUTHORIZING THE PRESIDENT TO
other means of transportation in order to maintain,
PROMULGATE RULE AND REGULATIONS
as much as possible, adequate and continued
TO MEET SUCH EMERGENCY.
transportation facilities; (9) to requisition and take
over any public service or enterprise for use or
operation by the Government;(10) to regulate rents Be it enacted the National Assembly of the
and the prices of articles or commodities of prime Philippines;
 SECTION 1. The existed of war between the United
State 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 provision of Article VI,
section 16, of the Constitution, the President is
hereby authorized, during the existence of the
emergency, to promulgate such rules and regulation
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, department, 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 Department; (c) to create
new subdivision, branches, departments, offices,
agency or instrumentalities of government and to
abolish any of those already existing; (d) to continue
in force laws and appropriation which would lapse
or otherwise became inoperative, and to modify or
suspend the operation or application of those of an
administrative character; (e) to imposed 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 expensive
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 power 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 report
thereto all the rules and regulation promulgated by
him under the power 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, Executive Order No.
68 was issued on July 29, 1947. Said Acts had elapsed upon the
liberation of the Philippines form 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 as chairman of the Committee on Third
Reading population 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 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 power were delegated to the President of the
Philippines, by virtue of the following provisions of the
Constitution:
In time 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 declared national policy. (Article VI,
section 26.)
It has never been the purpose of the National Assembly to
extend the delegation beyond the emergency created by the
war as to extend it farther would be violative of the express
provision 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 district, separate and independence
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 emergency character, and the latter to enact laws, in the
form of executive orders, under the so-called emergency
powers. The situation would be pregnant with dangers to
peace and order to the rights and liberties of the people and to
Philippines 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
he 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 permit the admission of many kinds 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 regulation governing the trial of twelve
criminal, issued by General Douglas Mac Arthur, Commander in
Chief of the United State Armed Forces in Western Pacific, for
the purpose of trying among other, General 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, and in our concurring and
dissenting opinion to the resolution of January 23, 1946 in
disposing the Homma case, L-244, are perfectly applicable to
the offensive rules of evidence in Executive Order No. 68. Said
rules of evidence are repugnant to conscience as under them
no justice can 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 petition.
USA v. GUINTO
These cases have been consolidated because they all involve
the doctrine of state immunity. The United States of America
was not impleaded in the complaints below but has moved to
dismiss on the ground that they are in effect suits against it to
which it has not consented. It is now contesting the denial of its
motions by the respondent judges.
In G.R. No. 76607, the private respondents are suing several
officers of the U.S. Air Force stationed in Clark Air Base in
connection with the bidding conducted by them for contracts
for barber services in the said base.
On February 24, 1986, the Western Pacific Contracting Office,
Okinawa Area Exchange, U.S. Air Force, solicited bids for such
contracts through its contracting officer, James F. Shaw. Among
those who submitted their bids were private respondents
Roberto T. Valencia, Emerenciana C. Tanglao, and Pablo C. del
Pilar. Valencia had been a concessionaire inside Clark for 34
years; del Pilar for 12 years; and Tanglao for 50 years.
The bidding was won by Ramon Dizon, over the objection of
the private respondents, who claimed that he had made a bid
for four facilities, including the Civil Engineering Area, which
was not included in the invitation to bid.
The private respondents complained to the Philippine Area
Exchange (PHAX). The latter, through its representatives,
petitioners Yvonne Reeves and Frederic M. Smouse explained
that the Civil Engineering concession had not been awarded to
Dizon as a result of the February 24, 1986 solicitation. Dizon
was already operating this concession, then known as the NCO
club concession, and the expiration of the contract had been
extended from June 30, 1986 to August 31, 1986. They further
explained that the solicitation of the CE barbershop would be
available only by the end of June and the private respondents
would be notified.
On June 30, 1986, the private respondents filed a complaint in
the court below to compel PHAX and the individual petitioners
to cancel the award to defendant Dizon, to conduct a rebidding
for the barbershop concessions and to allow the private
respondents by a writ of preliminary injunction to continue
operating the concessions pending litigation. 1
Upon the filing of the complaint, the respondent court issued
an ex parte order directing the individual petitioners to
maintain the status quo.
On July 22, 1986, the petitioners filed a motion to dismiss and
opposition to the petition for preliminary injunction on the
ground that the action was in effect a suit against the United
States of America, which had not waived its non-suability. The
individual defendants, as official employees of the U.S. Air
Force, were also immune from suit.
On the same date, July 22, 1986, the trial court denied the
application for a writ of preliminary injunction.
On October 10, 1988, the trial court denied the petitioners'
motion to dismiss, holding in part as follows:
From the pleadings thus far presented to
this Court by the parties, the Court's
attention is called by the relationship
between the plaintiffs as well as the
defendants, including the US Government,
in that prior to the bidding or solicitation
in question, there was a binding contract
between the plaintiffs as well as the
defendants, including the US Government.
By virtue of said contract of concession it
is the Court's understanding that neither
the US Government nor the herein
principal defendants would become the
employer/s of the plaintiffs but that the
latter are the employers themselves of the
barbers, etc. with the employer, the
plaintiffs herein, remitting the stipulated
percentage of commissions to the
Philippine Area Exchange. The same
circumstance would become in effect
when the Philippine Area Exchange
opened for bidding or solicitation the
questioned barber shop concessions. To
this extent, therefore, indeed a
commercial transaction has been entered,
and for purposes of the said solicitation,
would necessarily be entered between the
plaintiffs as well as the defendants.
The Court, further, is of the view that
Article XVIII of the RP-US Bases
Agreement does not cover such kind of
services falling under the
concessionaireship, such as a barber shop
concession. 2
On December 11, 1986, following the filing of the herein
petition for certiorari and prohibition with preliminary
injunction, we issued a temporary restraining order against
further proceedings in the court below. 3
In G.R. No. 79470, Fabian Genove filed a complaint for damages
against petitioners Anthony Lamachia, Wilfredo Belsa, Rose
Cartalla and Peter Orascion for his dismissal as cook in the U.S.
Air Force Recreation Center at the John Hay Air Station in
Baguio City. It had been ascertained after investigation, from
the testimony of Belsa Cartalla and Orascion, that Genove had
poured urine into the soup stock used in cooking the
vegetables served to the club customers. Lamachia, as club
manager, suspended him and thereafter referred the case to a
board of arbitrators conformably to the collective bargaining
agreement between the Center and its employees. The board
unanimously found him guilty and recommended his dismissal.
This was effected on March 5, 1986, by Col. David C. Kimball,
Commander of the 3rd Combat Support Group, PACAF Clark
Air Force Base. Genove's reaction was to file Ms complaint in
the Regional Trial Court of Baguio City against the individual
petitioners. 4
On March 13, 1987, the defendants, joined by the United States
of America, moved to dismiss the complaint, alleging that
Lamachia, as an officer of the U.S. Air Force stationed at John
Hay Air Station, was immune from suit for the acts done by him
in his official capacity. They argued that the suit was in effect
against the United States, which had not given its consent to be
sued.
This motion was denied by the respondent judge on June 4,
1987, in an order which read in part:
It is the understanding of the Court, based
on the allegations of the complaint —
which have been hypothetically admitted
by defendants upon the filing of their
motion to dismiss — that although
defendants acted initially in their official
capacities, their going beyond what their
functions called for brought them out of
the protective mantle of whatever
immunities they may have had in the
beginning. Thus, the allegation that the
acts complained of were illegal, done.
with extreme bad faith and with pre-
conceived sinister plan to harass and
finally dismiss the plaintiff, gains
significance. 5
The petitioners then came to this Court seeking certiorari and
prohibition with preliminary injunction.
In G.R. No. 80018, Luis Bautista, who was employed as a
barracks boy in Camp O' Donnell, an extension of Clark Air
Base, was arrested following a buy-bust operation conducted
by the individual petitioners herein, namely, Tomi J. King,
Darrel D. Dye and Stephen F. Bostick, officers of the U.S. Air
Force and special agents of the Air Force Office of Special
Investigators (AFOSI). On the basis of the sworn statements
made by them, an information for violation of R.A. 6425,
otherwise known as the Dangerous Drugs Act, was filed against
Bautista in the Regional Trial Court of Tarlac. The above-
named officers testified against him at his trial. As a result of
the filing of the charge, Bautista was dismissed from his
employment. He then filed a complaint for damages against the
individual petitioners herein claiming that it was because of
their acts that he was removed. 6
During the period for filing of the answer, Mariano Y. Navarro a
special counsel assigned to the International Law Division,
Office of the Staff Judge Advocate of Clark Air Base, entered a
special appearance for the defendants and moved for an
extension within which to file an "answer and/or other
pleadings." His reason was that the Attorney General of the
United States had not yet designated counsel to represent the
defendants, who were being sued for their official acts. Within
the extended period, the defendants, without the assistance of
counsel or authority from the U.S. Department of Justice, filed
their answer. They alleged therein as affirmative defenses that
they had only done their duty in the enforcement of the laws of
the Philippines inside the American bases pursuant to the RP-
US Military Bases Agreement.
On May 7, 1987, the law firm of Luna, Sison and Manas, having
been retained to represent the defendants, filed with leave of
court a motion to withdraw the answer and dismiss the
complaint. The ground invoked was that the defendants were
acting in their official capacity when they did the acts
complained of and that the complaint against them was in
effect a suit against the United States without its consent.
The motion was denied by the respondent judge in his order
dated September 11, 1987, which held that the claimed
immunity under the Military Bases Agreement covered only
criminal and not civil cases. Moreover, the defendants had
come under the jurisdiction of the court when they submitted
their answer. 7
Following the filing of the herein petition for certiorari and
prohibition with preliminary injunction, we issued on October
14, 1987, a temporary restraining order. 8
In G.R. No. 80258, a complaint for damages was filed by the
private respondents against the herein petitioners (except the
United States of America), for injuries allegedly sustained by
the plaintiffs as a result of the acts of the defendants. 9 There is
a conflict of factual allegations here. According to the plaintiffs,
the defendants beat them up, handcuffed them and unleashed
dogs on them which bit them in several parts of their bodies
and caused extensive injuries to them. The defendants deny
this and claim the plaintiffs were arrested for theft and were
bitten by the dogs because they were struggling and resisting
arrest, The defendants stress that the dogs were called off and
the plaintiffs were immediately taken to the medical center for
treatment of their wounds.
In a motion to dismiss the complaint, the United States of
America and the individually named defendants argued that
the suit was in effect a suit against the United States, which had
not given its consent to be sued. The defendants were also
immune from suit under the RP-US Bases Treaty for acts done
by them in the performance of their official functions.
The motion to dismiss was denied by the trial court in its order
dated August 10, 1987, reading in part as follows:
The defendants certainly cannot correctly
argue that they are immune from suit.
The allegations, of the complaint which is
sought to be dismissed, had to be
hypothetically admitted and whatever
ground the defendants may have, had to
be ventilated during the trial of the case
on the merits. The complaint alleged
criminal acts against the individually-
named defendants and from the nature of
said acts it could not be said that they are
Acts of State, for which immunity should
be invoked. If the Filipinos themselves are
duty bound to respect, obey and submit
themselves to the laws of the country,
with more reason, the members of the
United States Armed Forces who are
being treated as guests of this country
should respect, obey and submit
themselves to its laws. 10
and so was the motion for reconsideration. The defendants
submitted their answer as required but subsequently filed
their petition for certiorari and prohibition with preliminary
injunction with this Court. We issued a temporary restraining
order on October 27, 1987. 11
II
The rule that a state may not be sued without its consent, now
expressed in Article XVI, Section 3, of the 1987 Constitution, is
one of the generally accepted principles of international law
that we have adopted as part of the law of our land under
Article II, Section 2. This latter provision merely reiterates a
policy earlier embodied in the 1935 and 1973 Constitutions
and also intended to manifest our resolve to abide by the rules
of the international community.
Even without such affirmation, we would still be bound by the
generally accepted principles of international law under the
doctrine of incorporation. Under this doctrine, as accepted by
the majority of states, such principles are deemed incorporated
in the law of every civilized state as a condition and
consequence of its membership in the society of nations. Upon
its admission to such society, the state is automatically
obligated to comply with these principles in its relations with
other states.
As applied to the local state, the doctrine of state immunity is
based on the justification given by Justice Holmes that "there
can be no legal right against the authority which makes the law
on which the right depends." 12 There are other practical
reasons for the enforcement of the doctrine. In the case of the
foreign state sought to be impleaded in the local jurisdiction,
the added inhibition is expressed in the maxim par in parem,
non habet imperium. All states are sovereign equals and cannot
assert jurisdiction over one another. A contrary disposition
would, in the language of a celebrated case, "unduly vex the
peace of nations." 13
While the doctrine appears to prohibit only suits against the
state without its consent, it is also applicable to complaints
filed against officials of the state for acts allegedly performed
by them in the discharge of their duties. The rule is that if the
judgment against such officials will require the state itself to
perform an affirmative act to satisfy the same, such as the
appropriation of the amount needed to pay the damages
awarded against them, the suit must be regarded as against the
state itself although it has not been formally impleaded. 14 In
such a situation, the state may move to dismiss the complaint
on the ground that it has been filed without its consent.
The doctrine is sometimes derisively called "the royal
prerogative of dishonesty" because of the privilege it grants the
state to defeat any legitimate claim against it by simply
invoking its non-suability. That is hardly fair, at least in
democratic societies, for the state is not an unfeeling tyrant
unmoved by the valid claims of its citizens. In fact, the doctrine
is not absolute and does not say the state may not be sued
under any circumstance. On the contrary, the rule says that the
state may not be sued without its consent, which clearly
imports that it may be sued if it consents.
The consent of the state to be sued may be manifested
expressly or impliedly. Express consent may be embodied in a
general law or a special law. Consent is implied when the state
enters into a contract or it itself commences litigation.
The general law waiving the immunity of the state from suit is
found in Act No. 3083, under which the Philippine government
"consents and submits to be sued upon any moneyed claim
involving liability arising from contract, express or implied,
which could serve as a basis of civil action between private
parties." In Merritt v. Government of the Philippine Islands, 15 a
special law was passed to enable a person to sue the
government for an alleged tort. When the government enters
into a contract, it is deemed to have descended to the level of
the other contracting party and divested of its sovereign
immunity from suit with its implied consent.16 Waiver is also
implied when the government files a complaint, thus opening
itself to a counterclaim. 17
The above rules are subject to qualification. Express consent is
effected only by the will of the legislature through the medium
of a duly enacted statute. 18 We have held that not all contracts
entered into by the government will operate as a waiver of its
non-suability; distinction must be made between its sovereign
and proprietary acts. 19 As for the filing of a complaint by the
government, suability will result only where the government is
claiming affirmative relief from the defendant. 20
In the case of the United States of America, the customary rule
of international law on state immunity is expressed with more
specificity in the RP-US Bases Treaty. Article III thereof
provides as follows:
It is mutually agreed that the United
States shall have the rights, power and
authority within the bases which are
necessary for the establishment, use,
operation and defense thereof or
appropriate for the control thereof and all
the rights, power and authority within the
limits of the territorial waters and air
space adjacent to, or in the vicinity of, the
bases which are necessary to provide
access to them or appropriate for their
control.
The petitioners also rely heavily on Baer v. Tizon, 21 along with
several other decisions, to support their position that they are
not suable in the cases below, the United States not having
waived its sovereign immunity from suit. It is emphasized that
in Baer, the Court held:
The invocation of the doctrine of
immunity from suit of a foreign state
without its consent is appropriate. More
specifically, insofar as alien armed forces
is concerned, the starting point is Raquiza
v. Bradford, a 1945 decision. In dismissing
a habeas corpus petition for the release of
petitioners confined by American army
authorities, Justice Hilado speaking for
the Court, cited Coleman v. Tennessee,
where it was explicitly declared: 'It is well
settled that a foreign army, permitted to
march through a friendly country or to be
stationed in it, by permission of its
government or sovereign, is exempt from
the civil and criminal jurisdiction of the
place.' Two years later, in Tubb and
Tedrow v. Griess, this Court relied on the
ruling in Raquiza v. Bradford and cited in
support thereof excerpts from the works
of the following authoritative writers:
Vattel, Wheaton, Hall, Lawrence,
Oppenheim, Westlake, Hyde, and McNair
and Lauterpacht. Accuracy demands the
clarification that after the conclusion of
the Philippine-American Military Bases
Agreement, the treaty provisions should
control on such matter, the assumption
being that there was a manifestation of
the submission to jurisdiction on the part
of the foreign power whenever
appropriate. More to the point is Syquia v.
Almeda Lopez, where plaintiffs as lessors
sued the Commanding General of the
United States Army in the Philippines,
seeking the restoration to them of the
apartment buildings they owned leased to
the United States armed forces stationed
in the Manila area. A motion to dismiss on
the ground of non-suability was filed and
upheld by respondent Judge. The matter
was taken to this Court in a mandamus
proceeding. It failed. It was the ruling that
respondent Judge acted correctly
considering that the 4 action must be
considered as one against the U.S.
Government. The opinion of Justice
Montemayor continued: 'It is clear that
the courts of the Philippines including the
Municipal Court of Manila have no
jurisdiction over the present case for
unlawful detainer. The question of lack of
jurisdiction was raised and interposed at
the very beginning of the action. The U.S.
Government has not given its consent to
the filing of this suit which is essentially
against her, though not in name.
Moreover, this is not only a case of a
citizen filing a suit against his own
Government without the latter's consent
but it is of a citizen firing an action against
a foreign government without said
government's consent, which renders
more obvious the lack of jurisdiction of
the courts of his country. The principles of
law behind this rule are so elementary
and of such general acceptance that we
deem it unnecessary to cite authorities in
support thereof then came Marvel
Building Corporation v. Philippine War
Damage Commission, where respondent, a
United States Agency established to
compensate damages suffered by the
Philippines during World War II was held
as falling within the above doctrine as the
suit against it would eventually be a
charge against or financial liability of the
United States Government because ... , the
Commission has no funds of its own for
the purpose of paying money judgments.'
The Syquia ruling was again explicitly
relied upon in Marquez Lim v. Nelson,
involving a complaint for the recovery of
a motor launch, plus damages, the special
defense interposed being 'that the vessel
belonged to the United States
Government, that the defendants merely
acted as agents of said Government, and
that the United States Government is
therefore the real party in interest.' So it
was in Philippine Alien Property
Administration v. Castelo, where it was
held that a suit against Alien Property
Custodian and the Attorney General of the
United States involving vested property
under the Trading with the Enemy Act is
in substance a suit against the United
States. To the same effect is Parreno v.
McGranery, as the following excerpt from
the opinion of justice Tuazon clearly
shows: 'It is a widely accepted principle of
international law, which is made a part of
the law of the land (Article II, Section 3 of
the Constitution), that a foreign state may
not be brought to suit before the courts of
another state or its own courts without its
consent.' Finally, there is Johnson v.
Turner, an appeal by the defendant, then
Commanding General, Philippine
Command (Air Force, with office at Clark
Field) from a decision ordering the return
to plaintiff of the confiscated military
payment certificates known as scrip
money. In reversing the lower court
decision, this Tribunal, through Justice
Montemayor, relied on Syquia v.
Almeda Lopez, explaining why it could not
be sustained.
It bears stressing at this point that the above observations do
not confer on the United States of America a blanket immunity
for all acts done by it or its agents in the Philippines. Neither
may the other petitioners claim that they are also insulated
from suit in this country merely because they have acted as
agents of the United States in the discharge of their official
functions.
There is no question that the United States of America, like any
other state, will be deemed to have impliedly waived its non-
suability if it has entered into a contract in its proprietary or
private capacity. It is only when the contract involves its
sovereign or governmental capacity that no such waiver may
be implied. This was our ruling in United States of America v.
Ruiz, 22 where the transaction in question dealt with the
improvement of the wharves in the naval installation at Subic
Bay. As this was a clearly governmental function, we held that
the contract did not operate to divest the United States of its
sovereign immunity from suit. In the words of Justice Vicente
Abad Santos:
The traditional rule of immunity exempts
a State from being sued in the courts of
another State without its consent or
waiver. This rule is a necessary
consequence of the principles of
independence and equality of States.
However, the rules of International Law
are not petrified; they are constantly
developing and evolving. And because the
activities of states have multiplied, it has
been necessary to distinguish them —
between sovereign and governmental
 acts (jure imperii) and private,
commercial and proprietary acts (jure
gestionis). The result is that State
immunity now extends only to acts jure
imperii The restrictive application of
State immunity is now the rule in the
United States, the United kingdom and
other states in Western Europe.
xxx xxx xxx
The restrictive application of State
immunity is proper only when the
proceedings arise out of commercial
transactions of the foreign sovereign, its
commercial activities or economic affairs.
Stated differently, a State may be said to
have descended to the level of an
individual and can thus be deemed to
have tacitly given its consent to be sued
only when it enters into business
contracts. It does not apply where the
contract relates to the exercise of its
sovereign functions. In this case the
projects are an integral part of the naval
base which is devoted to the defense of
both the United States and the
Philippines, indisputably a function of the
government of the highest order; they are
not utilized for nor dedicated to
commercial or business purposes.
The other petitioners in the cases before us all aver they have
acted in the discharge of their official functions as officers or
agents of the United States. However, this is a matter of
evidence. The charges against them may not be summarily
dismissed on their mere assertion that their acts are imputable
to the United States of America, which has not given its consent
to be sued. In fact, the defendants are sought to be held
answerable for personal torts in which the United States itself
is not involved. If found liable, they and they alone must satisfy
the judgment.
In Festejo v. Fernando, 23 a bureau director, acting without any
authority whatsoever, appropriated private land and
converted it into public irrigation ditches. Sued for the value of
the lots invalidly taken by him, he moved to dismiss the
complaint on the ground that the suit was in effect against the
Philippine government, which had not given its consent to be
sued. This Court sustained the denial of the motion and held
that the doctrine of state immunity was not applicable. The
director was being sued in his private capacity for a personal
tort.
With these considerations in mind, we now proceed to resolve
the cases at hand.
III
It is clear from a study of the records of G.R. No. 80018 that the
individually-named petitioners therein were acting in the
exercise of their official functions when they conducted the
buy-bust operation against the complainant and thereafter
testified against him at his trial. The said petitioners were in
fact connected with the Air Force Office of Special Investigators
and were charged precisely with the function of preventing the
distribution, possession and use of prohibited drugs and
prosecuting those guilty of such acts. It cannot for a moment be
imagined that they were acting in their private or unofficial
capacity when they apprehended and later testified against the
complainant. It follows that for discharging their duties as
agents of the United States, they cannot be directly impleaded
for acts imputable to their principal, which has not given its
consent to be sued. As we observed in Sanders v. Veridiano: 24
Given the official character of the above-
described letters, we have to conclude
that the petitioners were, legally
speaking, being sued as officers of the
United States government. As they have
acted on behalf of that government, and
within the scope of their authority, it is
that government, and not the petitioners
personally, that is responsible for their
acts.
The private respondent invokes Article 2180 of the Civil Code
which holds the government liable if it acts through a special
agent. The argument, it would seem, is premised on the ground
that since the officers are designated "special agents," the
United States government should be liable for their torts.
There seems to be a failure to distinguish between suability
and liability and a misconception that the two terms are
synonymous. Suability depends on the consent of the state to
be sued, liability on the applicable law and the established
facts. The circumstance that a state is suable does not
necessarily mean that it is liable; on the other hand, it can
never be held liable if it does not first consent to be sued.
Liability is not conceded by the mere fact that the state has
allowed itself to be sued. When the state does waive its
sovereign immunity, it is only giving the plaintiff the chance to
prove, if it can, that the defendant is liable.
The said article establishes a rule of liability, not suability. The
government may be held liable under this rule only if it first
allows itself to be sued through any of the accepted forms of
consent.
Moreover, the agent performing his regular functions is not a
special agent even if he is so denominated, as in the case at bar.
No less important, the said provision appears to regulate only
the relations of the local state with its inhabitants and, hence,
applies only to the Philippine government and not to foreign
governments impleaded in our courts.
We reject the conclusion of the trial court that the answer filed
by the special counsel of the Office of the Sheriff Judge
Advocate of Clark Air Base was a submission by the United
States government to its jurisdiction. As we noted in Republic v.
Purisima, 25 express waiver of immunity cannot be made by a
mere counsel of the government but must be effected through
a duly-enacted statute. Neither does such answer come under
the implied forms of consent as earlier discussed.
But even as we are certain that the individual petitioners in
G.R. No. 80018 were acting in the discharge of their official
functions, we hesitate to make the same conclusion in G.R. No.
80258. The contradictory factual allegations in this case
deserve in our view a closer study of what actually happened
to the plaintiffs. The record is too meager to indicate if the
defendants were really discharging their official duties or had
actually exceeded their authority when the incident in question
occurred. Lacking this information, this Court cannot directly
decide this case. The needed inquiry must first be made by the
lower court so it may assess and resolve the conflicting claims
of the parties on the basis of the evidence that has yet to be
presented at the trial. Only after it shall have determined in
what capacity the petitioners were acting at the time of the
incident in question will this Court determine, if still necessary,
if the doctrine of state immunity is applicable.
In G.R. No. 79470, private respondent Genove was employed as
a cook in the Main Club located at the U.S. Air Force Recreation
Center, also known as the Open Mess Complex, at John Hay Air
Station. As manager of this complex, petitioner Lamachia is
responsible for eleven diversified activities generating an
annual income of $2 million. Under his executive management
are three service restaurants, a cafeteria, a bakery, a Class VI
store, a coffee and pantry shop, a main cashier cage, an
administrative office, and a decentralized warehouse which
maintains a stock level of $200,000.00 per month in resale
items. He supervises 167 employees, one of whom was Genove,
with whom the United States government has concluded a
collective bargaining agreement.
From these circumstances, the Court can assume that the
restaurant services offered at the John Hay Air Station partake
of the nature of a business enterprise undertaken by the United
States government in its proprietary capacity. Such services
are not extended to the American servicemen for free as a
perquisite of membership in the Armed Forces of the United
States. Neither does it appear that they are exclusively offered
to these servicemen; on the contrary, it is well known that they
are available to the general public as well, including the
tourists in Baguio City, many of whom make it a point to visit
John Hay for this reason. All persons availing themselves of this
facility pay for the privilege like all other customers as in
ordinary restaurants. Although the prices are concededly
reasonable and relatively low, such services are undoubtedly
operated for profit, as a commercial and not a governmental
activity.
The consequence of this finding is that the petitioners cannot
invoke the doctrine of state immunity to justify the dismissal of
the damage suit against them by Genove. Such defense will not
prosper even if it be established that they were acting as
agents of the United States when they investigated and later
dismissed Genove. For that matter, not even the United States
government itself can claim such immunity. The reason is that
by entering into the employment contract with Genove in the
discharge of its proprietary functions, it impliedly divested
itself of its sovereign immunity from suit.
But these considerations notwithstanding, we hold that the
complaint against the petitioners in the court below must still
be dismissed. While suable, the petitioners are nevertheless
not liable. It is obvious that the claim for damages cannot be
allowed on the strength of the evidence before us, which we
have carefully examined.
The dismissal of the private respondent was decided upon only
after a thorough investigation where it was established beyond
doubt that he had polluted the soup stock with urine. The
investigation, in fact, did not stop there. Despite the definitive
finding of Genove's guilt, the case was still referred to the
board of arbitrators provided for in the collective bargaining
agreement. This board unanimously affirmed the findings of
the investigators and recommended Genove's dismissal. There
was nothing arbitrary about the proceedings. The petitioners
acted quite properly in terminating the private respondent's
employment for his unbelievably nauseating act. It is
surprising that he should still have the temerity to file his
complaint for damages after committing his utterly disgusting
offense.
Concerning G.R. No. 76607, we also find that the barbershops
subject of the concessions granted by the United States
government are commercial enterprises operated by private
person's. They are not agencies of the United States Armed
Forces nor are their facilities demandable as a matter of right
by the American servicemen. These establishments provide for
the grooming needs of their customers and offer not only the
basic haircut and shave (as required in most military
organizations) but such other amenities as shampoo, massage,
manicure and other similar indulgences. And all for a fee.
Interestingly, one of the concessionaires, private respondent
Valencia, was even sent abroad to improve his tonsorial
business, presumably for the benefit of his customers. No less
significantly, if not more so, all the barbershop concessionaires
are under the terms of their contracts, required to remit to the
United States government fixed commissions in consideration
of the exclusive concessions granted to them in their respective
areas.
This being the case, the petitioners cannot plead any immunity
from the complaint filed by the private respondents in the
court below. The contracts in question being decidedly
commercial, the conclusion reached in the United States of
America v. Ruiz case cannot be applied here.
The Court would have directly resolved the claims against the
defendants as we have done in G.R. No. 79470, except for the
paucity of the record in the case at hand. The evidence of the
alleged irregularity in the grant of the barbershop concessions
is not before us. This means that, as in G.R. No. 80258, the
respondent court will have to receive that evidence first, so it
can later determine on the basis thereof if the plaintiffs are
entitled to the relief they seek. Accordingly, this case must also
be remanded to the court below for further proceedings.
IV
There are a number of other cases now pending before us
which also involve the question of the immunity of the United
States from the jurisdiction of the Philippines. This is cause for
regret, indeed, as they mar the traditional friendship between
two countries long allied in the cause of democracy. It is hoped
that the so-called "irritants" in their relations will be resolved
in a spirit of mutual accommodation and respect, without the
inconvenience and asperity of litigation and always with
justice to both parties.
HOLY SEE v. ROSARIO
This is a petition for certiorari under Rule 65 of the Revised
Rules of Court to reverse and set aside the Orders dated June
20, 1991 and September 19, 1991 of the Regional Trial Court,
Branch 61, Makati, Metro Manila in Civil Case No. 90-183.
The Order dated June 20, 1991 denied the motion of petitioner
to dismiss the complaint in Civil Case No. 90-183, while the
Order dated September 19, 1991 denied the motion for
reconsideration of the June 20,1991 Order.
Petitioner is the Holy See who exercises sovereignty over the
Vatican City in Rome, Italy, and is represented in the
Philippines by the Papal Nuncio.
Private respondent, Starbright Sales Enterprises, Inc., is a
domestic corporation engaged in the real estate business.
This petition arose from a controversy over a parcel of land
consisting of 6,000 square meters (Lot 5-A, Transfer Certificate
of Title No. 390440) located in the Municipality of Parañaque,
Metro Manila and registered in the name of petitioner.
Said Lot 5-A is contiguous to Lots 5-B and 5-D which are
covered by Transfer Certificates of Title Nos. 271108 and
265388 respectively and registered in the name of the
Philippine Realty Corporation (PRC).
The three lots were sold to Ramon Licup, through Msgr.
Domingo A. Cirilos, Jr., acting as agent to the sellers. Later,
Licup assigned his rights to the sale to private respondent.
In view of the refusal of the squatters to vacate the lots sold to
private respondent, a dispute arose as to who of the parties has
the responsibility of evicting and clearing the land of squatters.
Complicating the relations of the parties was the sale by
petitioner of Lot 5-A to Tropicana Properties and Development
Corporation (Tropicana).
I
On January 23, 1990, private respondent filed a complaint with
the Regional Trial Court, Branch 61, Makati, Metro Manila for
annulment of the sale of the three parcels of land, and specific
performance and damages against petitioner, represented by
the Papal Nuncio, and three other defendants: namely, Msgr.
Domingo A. Cirilos, Jr., the PRC and Tropicana (Civil Case No.
90-183).
The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos,
Jr., on behalf of petitioner and the PRC, agreed to sell to Ramon
Licup Lots 5-A, 5-B and 5-D at the price of P1,240.00 per
square meters; (2) the agreement to sell was made on the
condition that earnest money of P100,000.00 be paid by Licup
to the sellers, and that the sellers clear the said lots of
squatters who were then occupying the same; (3) Licup paid
the earnest money to Msgr. Cirilos; (4) in the same month,
Licup assigned his rights over the property to private
respondent and informed the sellers of the said assignment;
(5) thereafter, private respondent demanded from Msgr.
Cirilos that the sellers fulfill their undertaking and clear the
property of squatters; however, Msgr. Cirilos informed private
respondent of the squatters' refusal to vacate the lots,
proposing instead either that private respondent undertake
the eviction or that the earnest money be returned to the
latter; (6) private respondent counterproposed that if it would
undertake the eviction of the squatters, the purchase price of
the lots should be reduced from P1,240.00 to P1,150.00 per
square meter; (7) Msgr. Cirilos returned the earnest money of
P100,000.00 and wrote private respondent giving it seven days
from receipt of the letter to pay the original purchase price in
cash; (8) private respondent sent the earnest money back to
the sellers, but later discovered that on March 30, 1989,
petitioner and the PRC, without notice to private respondent,
sold the lots to Tropicana, as evidenced by two separate Deeds
of Sale, one over Lot 5-A, and another over Lots 5-B and 5-D;
and that the sellers' transfer certificate of title over the lots
were cancelled, transferred and registered in the name of
Tropicana; (9) Tropicana induced petitioner and the PRC to
sell the lots to it and thus enriched itself at the expense of
private respondent; (10) private respondent demanded the
rescission of the sale to Tropicana and the reconveyance of the
lots, to no avail; and (11) private respondent is willing and able
to comply with the terms of the contract to sell and has actually
made plans to develop the lots into a townhouse project, but in
view of the sellers' breach, it lost profits of not less than
P30,000.000.00.
Private respondent thus prayed for: (1) the annulment of the
Deeds of Sale between petitioner and the PRC on the one hand,
and Tropicana on the other; (2) the reconveyance of the lots in
question; (3) specific performance of the agreement to sell
between it and the owners of the lots; and (4) damages.
On June 8, 1990, petitioner and Msgr. Cirilos separately moved
to dismiss the complaint — petitioner for lack of jurisdiction
based on sovereign immunity from suit, and Msgr. Cirilos for
being an improper party. An opposition to the motion was filed
by private respondent.
On June 20, 1991, the trial court issued an order denying,
among others, petitioner's motion to dismiss after finding that
petitioner "shed off [its] sovereign immunity by entering into
the business contract in question" (Rollo, pp. 20-21).
On July 12, 1991, petitioner moved for reconsideration of the
order. On August 30, 1991, petitioner filed a "Motion for a
Hearing for the Sole Purpose of Establishing Factual Allegation
for claim of Immunity as a Jurisdictional Defense." So as to
facilitate the determination of its defense of sovereign
immunity, petitioner prayed that a hearing be conducted to
allow it to establish certain facts upon which the said defense
is based. Private respondent opposed this motion as well as the
motion for reconsideration.
On October 1, 1991, the trial court issued an order deferring
the resolution on the motion for reconsideration until after
trial on the merits and directing petitioner to file its answer
(Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its petition,
petitioner invokes the privilege of sovereign immunity only on
its own behalf and on behalf of its official representative, the
Papal Nuncio.
On December 9, 1991, a Motion for Intervention was filed
before us by the Department of Foreign Affairs, claiming that it
has a legal interest in the outcome of the case as regards the
diplomatic immunity of petitioner, and that it "adopts by
reference, the allegations contained in the petition of the Holy
See insofar as they refer to arguments relative to its claim of
sovereign immunity from suit" (Rollo, p. 87).
Private respondent opposed the intervention of the
Department of Foreign Affairs. In compliance with the
resolution of this Court, both parties and the Department of
Foreign Affairs submitted their respective memoranda.
II
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.

A preliminary matter to be threshed out is the procedural issue

In some cases, the defense of sovereign immunity was
of whether the petition for certiorari under Rule 65 of the
submitted directly to the local courts by the respondents
Revised Rules of Court can be availed of to question the order
through their private counsels (Raquiza v. Bradford, 75 Phil. 50
denying petitioner's motion to dismiss. The general rule is that
[1945]; Miquiabas v. Philippine-Ryukyus Command, 80 Phil.
an order denying a motion to dismiss is not reviewable by the
262 [1948]; United States of America v. Guinto, 182 SCRA 644
appellate courts, the remedy of the movant being to file his
[1990] and companion cases). In cases where the foreign states
answer and to proceed with the hearing before the trial court.
bypass the Foreign Office, the courts can inquire into the facts
But the general rule admits of exceptions, and one of these is
and make their own determination as to the nature of the acts
when it is very clear in the records that the trial court has no
and transactions involved.
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 III
a sheer waste of time and energy to require the parties to
undergo the rigors of a trial.
The burden of the petition is that respondent trial court has no
jurisdiction over petitioner, being a foreign state enjoying
The other procedural question raised by private respondent is sovereign immunity. On the other hand, private respondent
the personality or legal interest of the Department of Foreign insists that the doctrine of non-suability is not anymore
Affairs to intervene in the case in behalf of the Holy See (Rollo, absolute and that petitioner has divested itself of such a cloak
pp. 186-190). when, of its own free will, it entered into a commercial
transaction for the sale of a parcel of land located in the
Philippines.
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 A. The Holy See
it is sued to convey to the court that said defendant is entitled
to immunity.
Before we determine the issue of petitioner's non-suability, a
brief look into its status as a sovereign state is in order.
In the United States, the procedure followed is the process of
"suggestion," where the foreign state or the international
Before the annexation of the Papal States by Italy in 1870, the
organization sued in an American court requests the Secretary
Pope was the monarch and he, as the Holy See, was considered
of State to make a determination as to whether it is entitled to
a subject of International Law. With the loss of the Papal States
immunity. If the Secretary of State finds that the defendant is
and the limitation of the territory under the Holy See to an area
immune from suit, he, in turn, asks the Attorney General to
of 108.7 acres, the position of the Holy See in International Law
submit to the court a "suggestion" that the defendant is
became controversial (Salonga and Yap, Public International
entitled to immunity. In England, a similar procedure is
Law 36-37 [1992]).
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 In 1929, Italy and the Holy See entered into the Lateran Treaty,
Foreign Sovereign Instrumentalities and Obligations, 50 Yale where Italy recognized the exclusive dominion and sovereign
Law Journal 1088 [1941]). 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
In the Philippines, the practice is for the foreign government or
to enter into treaties according to International Law (Garcia,
the international organization to first secure an executive
Questions and Problems In International Law, Public and
endorsement of its claim of sovereign or diplomatic immunity.
Private 81 [1948]).
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 The Lateran Treaty established the statehood of the Vatican
Foreign Affairs just sent a letter directly to the Secretary of City "for the purpose of assuring to the Holy See absolute and
Labor and Employment, informing the latter that the visible independence and of guaranteeing to it indisputable
respondent-employer could not be sued because it enjoyed sovereignty also in the field of international relations"
diplomatic immunity. In World Health Organization v. Aquino, (O'Connell, I International Law 311 [1965]).
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
In view of the wordings of the Lateran Treaty, it is difficult to
(1974), the U.S. Embassy asked the Secretary of Foreign Affairs
determine whether the statehood is vested in the Holy See or
to request the Solicitor General to make, in behalf of the
in the Vatican City. Some writers even suggested that the treaty
Commander of the United States Naval Base at Olongapo City,
created two international persons — the Holy See and Vatican
Zambales, a "suggestion" to respondent Judge. The Solicitor
City (Salonga and Yap, supra, 37).
General embodied the "suggestion" in a Manifestation and
Memorandum as amicus curiae.
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, Canadian Courts. The Act defines a "commercial activity" as
International Law 37 [1991]). In a community of national any particular transaction, act or conduct or any regular course
states, the Vatican City represents an entity organized not for of conduct that by reason of its nature, is of a "commercial
political but for ecclesiastical purposes and international character."
objects. Despite its size and object, the Vatican City has an
independent government of its own, with the Pope, who is also
The restrictive theory, which is intended to be a solution to the
head of the Roman Catholic Church, as the Holy See or Head of
host of problems involving the issue of sovereign immunity,
State, in conformity with its traditions, and the demands of its
has created problems of its own. Legal treatises and the
mission in the world. Indeed, the world-wide interests and
decisions in countries which follow the restrictive theory have
activities of the Vatican City are such as to make it in a sense an
difficulty in characterizing whether a contract of a sovereign
"international state" (Fenwick, supra., 125; Kelsen, Principles
state with a private party is an act jure gestionis or an act jure
of International Law 160 [1956]).
imperii.

One authority wrote that the recognition of the Vatican City as

The restrictive theory came about because of the entry of
a state has significant implication — that it is possible for any
sovereign states into purely commercial activities remotely
entity pursuing objects essentially different from those
connected with the discharge of governmental functions. This
pursued by states to be invested with international personality
is particularly true with respect to the Communist states which
(Kunz, The Status of the Holy See in International Law, 46 The
took control of nationalized business activities and
American Journal of International Law 308 [1952]).
international trading.

Inasmuch as the Pope prefers to conduct foreign relations and

This Court has considered the following transactions by a
enter into transactions as the Holy See and not in the name of
foreign state with private parties as acts jure imperii: (1) the
the Vatican City, one can conclude that in the Pope's own view,
lease by a foreign government of apartment buildings for use
it is the Holy See that is the international person.
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
The Republic of the Philippines has accorded the Holy See the United States Naval Station (United States of America v.
status of a foreign sovereign. The Holy See, through its Ruiz, supra.); and (3) the change of employment status of base
Ambassador, the Papal Nuncio, has had diplomatic employees (Sanders v. Veridiano, 162 SCRA 88 [1988]).
representations with the Philippine government since 1957
(Rollo, p. 87). This appears to be the universal practice in
On the other hand, this Court has considered the following
international relations.
transactions by a foreign state with private parties as acts jure
gestionis: (1) the hiring of a cook in the recreation center,
B. Sovereign Immunity 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
As expressed in Section 2 of Article II of the 1987 Constitution,
public (United States of America v. Rodrigo, 182 SCRA 644
we have adopted the generally accepted principles of
[1990]); and (2) the bidding for the operation of barber shops
International Law. Even without this affirmation, such
in Clark Air Base in Angeles City (United States of America v.
principles of International Law are deemed incorporated as
Guinto, 182 SCRA 644 [1990]). The operation of the
part of the law of the land as a condition and consequence of
restaurants and other facilities open to the general public is
our admission in the society of nations (United States of
undoubtedly for profit as a commercial and not a
America v. Guinto, 182 SCRA 644 [1990]).
governmental activity. By entering into the employment
contract with the cook in the discharge of its proprietary
There are two conflicting concepts of sovereign immunity, each function, the United States government impliedly divested
widely held and firmly established. According to the classical itself of its sovereign immunity from suit.
or absolute theory, a sovereign cannot, without its consent, be
made a respondent in the courts of another sovereign.
In the absence of legislation defining what activities and
According to the newer or restrictive theory, the immunity of
transactions shall be considered "commercial" and as
the sovereign is recognized only with regard to public acts or
constituting acts jure gestionis, we have to come out with our
acts jure imperii of a state, but not with regard to private acts
own guidelines, tentative they may be.
or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987];
Coquia and Defensor-Santiago, Public International Law 194 Certainly, the mere entering into a contract by a foreign state
[1984]). 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
Some states passed legislation to serve as guidelines for the
of business. If the foreign state is not engaged regularly in a
executive or judicial determination when an act may be
business or trade, the particular act or transaction must then
considered as jure gestionis. The United States passed the
be tested by its nature. If the act is in pursuit of a sovereign
Foreign Sovereign Immunities Act of 1976, which defines a
activity, or an incident thereof, then it is an act jure imperii,
commercial activity as "either a regular course of commercial
especially when it is not undertaken for gain or profit.
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 As held in United States of America v. Guinto, (supra):
the course of conduct or particular transaction or act, rather
than by reference to its purpose." The Canadian Parliament
There is no question that the United
enacted in 1982 an Act to Provide For State Immunity in
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.
courts (International Catholic Migration Commission v. Calleja,
190 SCRA 130 [1990]). Where the plea of immunity is
recognized and affirmed by the executive branch, it is the duty
of the courts to accept this claim so as not to embarrass the
executive arm of the government in conducting the country's
foreign relations (World Health Organization v. Aquino, 48
SCRA 242 [1972]). As in International Catholic Migration
Commission and in World Health Organization, we abide by the
certification of the Department of Foreign Affairs.
Ordinarily, the procedure would be to remand the case and
order the trial court to conduct a hearing to establish the facts
alleged by petitioner in its motion. In view of said certification,
such procedure would however be pointless and unduly
circuitous (Ortigas & Co. Ltd. Partnership v. Judge Tirso
Velasco, G.R. No. 109645, July 25, 1994).

Lot 5-A was acquired by petitioner as a donation from the IV

Archdiocese of Manila. The donation was made not for
commercial purpose, but for the use of petitioner to construct
Private respondent is not left without any legal remedy for the
thereon the official place of residence of the Papal Nuncio. The
redress of its grievances. Under both Public International Law
right of a foreign sovereign to acquire property, real or
and Transnational Law, a person who feels aggrieved by the
personal, in a receiving state, necessary for the creation and
acts of a foreign sovereign can ask his own government to
maintenance of its diplomatic mission, is recognized in the
espouse his cause through diplomatic channels.
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. 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
In Article 31(a) of the Convention, a diplomatic envoy is
government to take up with the Holy See the validity of its
granted immunity from the civil and administrative
claims. Of course, the Foreign Office shall first make a
jurisdiction of the receiving state over any real action relating
determination of the impact of its espousal on the relations
to private immovable property situated in the territory of the
between the Philippine government and the Holy See
receiving state which the envoy holds on behalf of the sending
(Young, Remedies of Private Claimants Against Foreign States,
state for the purposes of the mission. If this immunity is
Selected Readings on Protection by Law of Private Foreign
provided for a diplomatic envoy, with all the more reason
Investments 905, 919 [1964]). Once the Philippine government
should immunity be recognized as regards the sovereign itself,
decides to espouse the claim, the latter ceases to be a private
which in this case is the Holy See.
cause.

The decision to transfer the property and the subsequent

According to the Permanent Court of International Justice, the
disposal thereof are likewise clothed with a governmental
forerunner of the International Court of Justice:
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 By taking up the case of one of its subjects
for petitioner to use it for the purpose of the donation. The fact and by reporting to diplomatic action or
that squatters have occupied and are still occupying the lot, international judicial proceedings on his
and that they stubbornly refuse to leave the premises, has been behalf, a State is in reality asserting its
admitted by private respondent in its complaint (Rollo, pp. 26, own rights — its right to ensure, in the
27). person of its subjects, respect for the
rules of international law (The
Mavrommatis Palestine Concessions, 1
The issue of petitioner's non-suability can be determined by
Hudson, World Court Reports 293, 302
the trial court without going to trial in the light of the
[1924]).
pleadings, particularly the admission of private respondent.
Besides, the privilege of sovereign immunity in this case was
sufficiently established by the Memorandum and Certification WHEREFORE, the petition for certiorari is GRANTED and the
of the Department of Foreign Affairs. As the department tasked complaint in Civil Case No. 90-183 against petitioner is
with the conduct of the Philippines' foreign relations DISMISSED.
(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
REYES v. BAGATSING
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 This Court, in this case of first impression, at least as to some
immunity is a political question that is conclusive upon the 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
JB 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. 2 During 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 Disbarmament, 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, 12 prosecution 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 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 hot to be limited, much less denied,
except on a showing, as 's 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 Maicolm had occasion to stress that it is a necessary
consequence of our republican institutions and complements
the right of free speech. 19 To paraphrase opinion of Justice
Rutledge speaking for the majority of the American Supreme
Court Thomas v. Collins, 20 it was not by accident or coincidence
that the right to freedom of speech and of the press were
toupled in a single guarantee with the and to petition 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. the every case, therefo re 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 or oposed march and rally
starting from a public dark 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 block-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 'De permitted unless a special license
therefor shall first be explained 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 designed 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 the 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 The Constitution "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
the 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 ill
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 tree speech at a discreet distance, but ever ready and alert to cope with any
and peaceable assembly. These rights are assured by our contingency. There is no need to repeat what was pointed out
Constitution and the Universal Declaration of Human by Chief Justice Hughes in Cox that precisely, it is the duty of
Rights. 35 The participants to such assembly, composed the city authorities to provide the proper police protection to
primarily of those in attendance at the International those exercising their right to peaceable assembly and freedom
Conference for General Disbarmament, World Peace and the of expression.
Removal of All Foreign Military Bases would start from the
Luneta. proceeding through Roxas Boulevard to the gates of
8. By way of a summary The applicants for a permit to hold an
the United States Embassy located at the same street. To
assembly should inform the licensing authority of the date, the
repeat, it is settled law that as to public places, especially so as
public place where and the time when it will take place. If it
to parks and streets, there is freedom of access. Nor is their use
were a private place, only the consent of the owner or the one
dependent on who is the applicant for the permit, whether an
entitled to its legal possession is required. Such application
individual or a group. If it were, then the freedom of access
should be filed well ahead in time to enable the public official
becomes discriminatory access, giving rise to an equal
concerned to appraise whether there may be valid objections
protection question. The principle under American doctrines
to the grant of the permit or to its grant but at another public
was given utterance by Chief Justice Hughes in these words:
place. It is an indispensable condition to such refusal or
"The question, if the rights of free speech and peaceable
modification that the clear and present danger test be the
assembly are to be preserved, is not as to the auspices under
standard for the decision reached. If he is of the view that there
which the meeting is held but as to its purpose; not as to The
is such an imminent and grave danger of a substantive evil, the
relations of the speakers, but whether their utterances
applicants must be heard on the matter. Thereafter, his
transcend the bounds of the freedom of speech which the
decision, whether favorable or adverse, must be transmitted to
Constitution protects." 36 There could be danger to public
them at the earliest opportunity. Thus if so minded, then, can
peace and safety if such a gathering were marked by
have recourse to the proper judicial authority. Free speech and
turbulence. That would deprive it of its peaceful character.
peaceable assembly, along with the other intellectual
Even then, only the guilty parties should be held accountable. It
freedoms, are highly ranked in our scheme of constitutional
is true that the licensing official, here respondent Mayor, is not
values. It cannot be too strongly stressed that on the judiciary,
devoid of discretion in determining whether or not a permit
— even more so than on the other departments — rests the
would be granted. It is not, however, unfettered discretion.
grave and delicate responsibility of assuring respect for and
While prudence requires that there be a realistic appraisal not
deference to such preferred rights. No verbal formula, no
of what may possibly occur but of what may probably occur,
sanctifying phrase can, of course, dispense with what has been
given all the relevant circumstances, still the assumption —
so felicitiously termed by Justice Holmes "as the sovereign
especially so where the assembly is scheduled for a specific
prerogative of judgment." Nonetheless, the presumption must
public — place is that the permit must be for the assembly
be to incline the weight of the scales of justice on the side of
being held there. The exercise of such a right, in the language of
such rights, enjoying as they do precedence and primacy.
Justice Roberts, speaking for the American Supreme Court, is
Clearly then, to the extent that there may be inconsistencies
not to be "abridged on the plea that it may be exercised in
between this resolution and that of Navarro v. Villegas, that
some other place." 37
case is pro tantomodified. So it was made clear in the original
resolution of October 25, 1983.
7. In fairness to respondent Mayor, he acted on the belief
that Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang
9. Respondent Mayor posed the issue of the applicability of
Pilipino (PMP.) v. Bagatsing, 39 called for application. While the
Ordinance No. 7295 of the City of Manila prohibiting the
General rule is that a permit should recognize the right of the
holding or staging of rallies or demonstrations within a radius
applicants to hold their assembly at a public place of their
of five hundred (500) feet from any foreign mission or
choice, another place may be designated by the licensing
chancery and for other purposes. It is to be admitted that it
authority if it be shown that there is a clear and present danger
finds support In the previously quoted Article 22 of the Vienna
of a substantive evil if no such change were made. In the
Convention on Diplomatic Relations. There was no showing,
Navarro and the Pagkakaisa decisions, this Court was
however, that the distance between the chancery and the
persuaded that the clear and present danger test was satisfied.
embassy gate is less than 500 feet. Even if it could be shown
The present situation is quite different. Hence the decision
that such a condition is satisfied. it does not follow that
reached by the Court. The mere assertion that subversives may
respondent Mayor could legally act the way he did. The validity
infiltrate the ranks of the demonstrators does not suffice. Not
of his denial of the permit sought could still be challenged. It
that it should be overlooked. There was in this case, however,
could be argued that a case of unconstitutional application of
the assurance of General Narciso Cabrera, Superintendent,
such ordinance to the exercise of the right of peaceable
Western Police District, Metropolitan Police Force, that the
assembly presents itself. As in this case there was no proof that
police force is in a position to cope with such emergency
the distance is less than 500 feet, the need to pass on that issue
should it arise That is to comply with its duty to extend
was obviated, Should it come, then the qualification and
protection to the participants of such peaceable assembly. Also
observation of Justices Makasiar and Plana certainly cannot be
from him came the commendable admission that there were
summarily brushed aside. The high estate accorded the rights
the least five previous demonstrations at the Bayview hotel
to free speech and peaceable assembly demands nothing less.
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 10. Ordinarily, the remedy in cases of this character is to set
of the United States Mission in the Philippines would take place aside the denial or the modification of the permit sought and
and that, as mentioned at the outset of this opinion, "all the order the respondent official, to grant it. Nonetheless, as there
necessary steps would be taken by it 'to ensure a peaceful was urgency in this case, the proposed march and rally being
march and rally.' " 40 Assistant Solicitor General Montenegro scheduled for the next day after the hearing, this Court. in the
expressed the view that the presence of policemen may in itself exercise of its conceded authority, granted the mandatory
be a provocation. It is a sufficient answer that they should stay 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.