G.R. No. 85750 September 28, 1990 INTERNATIONAL CATHOLIC IMMIGRATION COMMISSION, petitioner vs HON.

PURA CALLEJA IN HER CAPACITY AS DIRECTOR OF THE BUREAU OF LABOR RELATIONS AND TRADE UNIONS OF THE PHILIPPINES AND ALLIED SERVICES (TUPAS) WFTU respondents. G.R. No. 89331 September 28, 1990 KAPISANAN NG MANGGAGAWA AT TAC SA IRRI-ORGANIZED LABOR ASSOCIATION IN LINE INDUSTRIES AND AGRICULTURE, petitioner, vs SECRETARY OF LABOR AND EMPLOYMENT AND INTERNATIONAL RICE RESEARCH INSTITUTE, INC., respondents. MELENCIO-HERRERA, J.: Consolidated on 11 December 1989, these two cases involve the validity of the claim of immunity by the International Catholic Migration Commission (ICMC) and the International Rice Research Institute, Inc. (IRRI) from the application of Philippine labor laws. I Facts and Issues A. G.R. No. 85750 the International Catholic Migration Commission (ICMC) Case. As an aftermath of the Vietnam War, the plight of Vietnamese refugees fleeing from South Vietnam's communist rule confronted the international community. In response to this crisis, on 23 February 1981, an Agreement was forged between the Philippine Government and the United Nations High Commissioner for Refugees whereby an operating center for processing Indo-Chinese refugees for eventual resettlement to other countries was to be established in Bataan (Annex "A", Rollo, pp. 22-32). ICMC was one of those accredited by the Philippine Government to operate the refugee processing center in Morong, Bataan. It was incorporated in New York, USA, at the request of the Holy See, as a non-profit agency involved in international humanitarian and voluntary work. It is duly registered with the United Nations Economic and Social Council (ECOSOC) and enjoys Consultative Status, Category II. As an international organization rendering voluntary and humanitarian services in the Philippines, its activities are parallel to those of the International Committee for Migration (ICM) and the International Committee of the Red Cross (ICRC) [DOLE Records of BLR Case No. A-2-62-87, ICMC v. Calleja, Vol. 1]. On 14 July 1986, Trade Unions of the Philippines and Allied Services (TUPAS) filed with the then Ministry of Labor and Employment a Petition for Certification Election among the rank and file members employed by ICMC The latter opposed the petition on the ground that it is an international organization registered with the United Nations and, hence, enjoys diplomatic immunity. On 5 February 1987, Med-Arbiter Anastacio L. Bactin sustained ICMC and dismissed the petition for lack of jurisdiction. On appeal by TUPAS, Director Pura Calleja of the Bureau of Labor Relations (BLR), reversed the Med-Arbiter's Decision and ordered the immediate conduct of a certification election. At that time, ICMC's request for recognition as a specialized agency was still pending with the Department of Foreign Affairs (DEFORAF). Subsequently, however, on 15 July 1988, the Philippine Government, through the DEFORAF, granted ICMC the status of a specialized agency with corresponding diplomatic privileges and immunities, as evidenced by a Memorandum of Agreement between the Government and ICMC (Annex "E", Petition, Rollo, pp. 41-43), infra. ICMC then sought the immediate dismissal of the TUPAS Petition for Certification Election invoking the immunity expressly granted but the same was denied by respondent BLR Director who, again, ordered the immediate conduct of a pre-election conference. ICMC's two Motions for Reconsideration were denied despite an opinion rendered by DEFORAF on 17 October 1988 that said BLR Order violated ICMC's diplomatic immunity. Thus, on 24 November 1988, ICMC filed the present Petition for Certiorari with Preliminary Injunction assailing the BLR Order.

On 28 November 1988, the Court issued a Temporary Restraining Order enjoining the holding of the certification election. On 10 January 1989, the DEFORAF, through its Legal Adviser, retired Justice Jorge C. Coquia of the Court of Appeals, filed a Motion for Intervention alleging that, as the highest executive department with the competence and authority to act on matters involving diplomatic immunity and privileges, and tasked with the conduct of Philippine diplomatic and consular relations with foreign governments and UN organizations, it has a legal interest in the outcome of this case. Over the opposition of the Solicitor General, the Court allowed DEFORAF intervention. On 12 July 1989, the Second Division gave due course to the ICMC Petition and required the submittal of memoranda by the parties, which has been complied with. As initially stated, the issue is whether or not the grant of diplomatic privileges and immunites to ICMC extends to immunity from the application of Philippine labor laws. ICMC sustains the affirmative of the proposition citing (1) its Memorandum of Agreement with the Philippine Government giving it the status of a specialized agency, (infra); (2) the Convention on the Privileges and Immunities of Specialized Agencies, adopted by the UN General Assembly on 21 November 1947 and concurred in by the Philippine Senate through Resolution No. 91 on 17 May 1949 (the Philippine Instrument of Ratification was signed by the President on 30 August 1949 and deposited with the UN on 20 March 1950) infra; and (3) Article II, Section 2 of the 1987 Constitution, which declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land. Intervenor DEFORAF upholds ICMC'S claim of diplomatic immunity and seeks an affirmance of the DEFORAF determination that the BLR Order for a certification election among the ICMC employees is violative of the diplomatic immunity of said organization. Respondent BLR Director, on the other hand, with whom the Solicitor General agrees, cites State policy and Philippine labor laws to justify its assailed Order, particularly, Article II, Section 18 and Article III, Section 8 of the 1987 Constitution, infra; and Articles 243 and 246 of the Labor Code, as amended, ibid. In addition, she contends that a certification election is not a litigation but a mere investigation of a non-adversary, factfinding character. It is not a suit against ICMC its property, funds or assets, but is the sole concern of the workers themselves. B. G.R. No. 89331 (The International Rice Research Institute [IRRI] Case). Before a Decision could be rendered in the ICMC Case, the Third Division, on 11 December 1989, resolved to consolidate G.R. No. 89331 pending before it with G.R. No. 85750, the lower-numbered case pending with the Second Division, upon manifestation by the Solicitor General that both cases involve similar issues. The facts disclose that on 9 December 1959, the Philippine Government and the Ford and Rockefeller Foundations signed a Memorandum of Understanding establishing the International Rice Research Institute (IRRI) at Los Baos, Laguna. It was intended to be an autonomous, philanthropic, tax-free, non-profit, non-stock organization designed to carry out the principal objective of conducting "basic research on the rice plant, on all phases of rice production, management, distribution and utilization with a view to attaining nutritive and economic advantage or benefit for the people of Asia and other major rice-growing areas through improvement in quality and quantity of rice." Initially, IRRI was organized and registered with the Securities and Exchange Commission as a private corporation subject to all laws and regulations. However, by virtue of Pres. Decree No. 1620, promulgated on 19 April 1979, IRRI was granted the status, prerogatives, privileges and immunities of an international organization. The Organized Labor Association in Line Industries and Agriculture (OLALIA), is a legitimate labor organization with an existing local union, the Kapisanan ng Manggagawa at TAC sa IRRI (Kapisanan, for short) in respondent IRRI. On 20 April 1987, the Kapisanan filed a Petition for Direct Certification Election with Region IV, Regional Office of the Department of Labor and Employment (DOLE). IRRI opposed the petition invoking Pres. Decree No. 1620 conferring upon it the status of an international organization and granting it immunity from all civil, criminal and administrative proceedings under Philippine laws. On 7 July 1987, Med-Arbiter Leonardo M. Garcia, upheld the opposition on the basis of Pres. Decree No. 1620 and dismissed the Petition for Direct Certification. On appeal, the BLR Director, who is the public respondent in the ICMC Case, set aside the Med-Arbiter's Order and authorized the calling of a certification election among the rank-and-file employees of IRRI. Said Director relied on Article 243 of the Labor Code, as amended, infra and

Article XIII, Section 3 of the 1987 Constitution, and held that "the immunities and privileges granted to IRRI do not include exemption from coverage of our Labor Laws." Reconsideration sought by IRRI was denied. On appeal, the Secretary of Labor, in a Resolution of 5 July 1989, set aside the BLR Director's Order, dismissed the Petition for Certification Election, and held that the grant of specialized agency status by the Philippine Government to the IRRI bars DOLE from assuming and exercising jurisdiction over IRRI Said Resolution reads in part as follows: Presidential Decree No. 1620 which grants to the IRRI the status, prerogatives, privileges and immunities of an international organization is clear and explicit. It provides in categorical terms that: Art. 3 The Institute shall enjoy immunity from any penal, civil and administrative proceedings, except insofar as immunity has been expressly waived by the Director-General of the Institution or his authorized representative. Verily, unless and until the Institute expressly waives its immunity, no summons, subpoena, orders, decisions or proceedings ordered by any court or administrative or quasi-judicial agency are enforceable as against the Institute. In the case at bar there was no such waiver made by the Director-General of the Institute. Indeed, the Institute, at the very first opportunity already vehemently questioned the jurisdiction of this Department by filing an ex-parte motion to dismiss the case. Hence, the present Petition for Certiorari filed by Kapisanan alleging grave abuse of discretion by respondent Secretary of Labor in upholding IRRI's diplomatic immunity. The Third Division, to which the case was originally assigned, required the respondents to comment on the petition. In a Manifestation filed on 4 August 1990, the Secretary of Labor declared that it was "not adopting as his own" the decision of the BLR Director in the ICMC Case as well as the Comment of the Solicitor General sustaining said Director. The last pleading was filed by IRRI on 14 August 1990. Instead of a Comment, the Solicitor General filed a Manifestation and Motion praying that he be excused from filing a comment "it appearing that in the earlier case of International Catholic Migration Commission v. Hon. Pura Calleja, G.R. No. 85750. the Office of the Solicitor General had sustained the stand of Director Calleja on the very same issue now before it, which position has been superseded by respondent Secretary of Labor in G.R. No. 89331," the present case. The Court acceded to the Solicitor General's prayer. The Court is now asked to rule upon whether or not the Secretary of Labor committed grave abuse of discretion in dismissing the Petition for Certification Election filed by Kapisanan. Kapisanan contends that Article 3 of Pres. Decree No. 1620 granting IRRI the status, privileges, prerogatives and immunities of an international organization, invoked by the Secretary of Labor, is unconstitutional in so far as it deprives the Filipino workers of their fundamental and constitutional right to form trade unions for the purpose of collective bargaining as enshrined in the 1987 Constitution. A procedural issue is also raised. Kapisanan faults respondent Secretary of Labor for entertaining IRRI'S appeal from the Order of the Director of the 2 Bureau of Labor Relations directing the holding of a certification election. Kapisanan contends that pursuant to Sections 7, 8, 9 and 10 of Rule V of the Omnibus Rules Implementing the Labor Code, the Order of the BLR Director had become final and unappeable and that, therefore, the Secretary of Labor had no more jurisdiction over the said appeal. On the other hand, in entertaining the appeal, the Secretary of Labor relied on Section 25 of Rep. Act. No. 6715, which took effect on 21 March 1989, providing for the direct filing of appeal from the Med-Arbiter to the Office of the Secretary of Labor and Employment instead of to the Director of the Bureau of Labor Relations in cases involving certification election orders. III Findings in Both Cases. There can be no question that diplomatic immunity has, in fact, been granted ICMC and IRRI. Article II of the Memorandum of Agreement between the Philippine Government and ICMC provides that ICMC shall have a status "similar to that of a specialized agency." Article III, Sections 4 and 5 of the Convention on the Privileges and Immunities of Specialized Agencies, adopted by the UN General Assembly on 21 November 1947 and concurred in by the Philippine Senate through Resolution No. 19 on 17 May 1949, explicitly provides: Art. III, Section 4. The specialized agencies, their property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case they have expressly waived their immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.

Sec. 5. The premises of the specialized agencies shall be inviolable. The property and assets of the specialized agencies, wherever located and by whomsoever held shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action. (Emphasis supplied). IRRI is similarly situated, Pres. Decree No. 1620, Article 3, is explicit in its grant of immunity, thus: Art. 3. Immunity from Legal Process. The Institute shall enjoy immunity from any penal, civil and administrative proceedings, except insofar as that immunity has been expressly waived by the Director-General of the Institute or his authorized representatives. Thus it is that the DEFORAF, through its Legal Adviser, sustained ICMC'S invocation of immunity when in a Memorandum, dated 17 October 1988, it expressed the view that "the Order of the Director of the Bureau of Labor Relations dated 21 September 1988 for the conduct of Certification Election within ICMC violates the diplomatic immunity of the organization." Similarly, in respect of IRRI, the DEFORAF speaking through The Acting Secretary of Foreign Affairs, Jose D. Ingles, in a letter, dated 17 June 1987, to the Secretary of Labor, maintained that "IRRI enjoys immunity from the jurisdiction of DOLE in this particular instance." The foregoing opinions constitute a categorical recognition by the Executive Branch of the Government that ICMC and IRRI enjoy immunities accorded to international organizations, which determination has been held to be a political question conclusive upon the Courts in order not to embarrass a political department of Government. It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government . . . or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction . . . as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that in such cases the judicial department of (this) government follows the 3 action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction. A brief look into the nature of international organizations and specialized agencies is in order. The term "international organization" is generally 4 used to describe an organization set up by agreement between two or more states. Under contemporary international law, such organizations are 5 6 endowed with some degree of international legal personality such that they are capable of exercising specific rights, duties and powers. They are 7 organized mainly as a means for conducting general international business in which the member states have an interest. The United Nations, for instance, is an international organization dedicated to the propagation of world peace. "Specialized agencies" are international organizations having functions in particular fields. The term appears in Articles 57 and 63 of the Charter of the United Nations: The Charter, while it invests the United Nations with the general task of promoting progress and international cooperation in economic, social, health, cultural, educational and related matters, contemplates that these tasks will be mainly fulfilled not by organs of the United Nations itself but by autonomous international organizations established by inter-governmental agreements outside the United Nations. There are now many such international agencies having functions in many different fields, e.g. in posts, telecommunications, railways, canals, rivers, sea transport, civil aviation, meteorology, atomic energy, finance, trade, education and culture, health and refugees. Some are virtually world-wide in their membership, some are regional or otherwise limited in their membership. The Charter provides that those agencies which have "wide international responsibilities" are to be brought into relationship with the United Nations by agreements entered into between them and the 10 Economic and Social Council, are then to be known as "specialized agencies." The rapid growth of international organizations under contemporary international law has paved the way for the development of the concept of international immunities. It is now usual for the constitutions of international organizations to contain provisions conferring certain immunities on the organizations themselves, representatives of their member states and persons acting on behalf of the organizations. A series of conventions, agreements and protocols defining the immunities of various international organizations in relation to their 11 members generally are now widely in force; . . . There are basically three propositions underlying the grant of international immunities to international organizations. These principles, contained in the ILO Memorandum are stated thus: 1) international institutions should have a status which protects them against control or interference by any one government in the performance of functions for the effective discharge of which they are responsible to democratically constituted international bodies in which all the nations concerned are represented; 2) no country should derive any national financial advantage by levying
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fiscal charges on common international funds; and 3) the international organization should, as a collectivity of States members, be accorded the 12 facilities for the conduct of its official business customarily extended to each other by its individual member States. The theory behind all three propositions is said to be essentially institutional in character. "It is not concerned with the status, dignity or privileges of individuals, but with the elements of functional independence necessary to free international institutions from national control and to enable them to discharge their 13 responsibilities impartially on behalf of all their members. The raison d'etre for these immunities is the assurance of unimpeded performance of their functions by the agencies concerned. The grant of immunity from local jurisdiction to ICMC and IRRI is clearly necessitated by their international character and respective purposes. The objective is to avoid the danger of partiality and interference by the host country in their internal workings. The exercise of jurisdiction by the Department of Labor in these instances would defeat the very purpose of immunity, which is to shield the affairs of international organizations, in accordance with international practice, from political pressure or control by the host country to the prejudice of member States of the organization, and to ensure the unhampered performance of their functions. ICMC's and IRRI's immunity from local jurisdiction by no means deprives labor of its basic rights, which are guaranteed by Article II, Section 18, 15 16 Article III, Section 8, and Article XIII, Section 3 (supra), of the 1987 Constitution; and implemented by Articles 243 and 246 of the Labor Code, relied on by the BLR Director and by Kapisanan. For, ICMC employees are not without recourse whenever there are disputes to be settled. Section 31 of the Convention on the Privileges and 17 Immunities of the Specialized Agencies of the United Nations provides that "each specialized agency shall make provision for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of private character to which the specialized agency is a party." Moreover, pursuant to Article IV of the Memorandum of Agreement between ICMC the the Philippine Government, whenever there is any abuse of privilege by ICMC, the Government is free to withdraw the privileges and immunities accorded. Thus: Art. IV. Cooperation with Government Authorities. 1. The Commission shall cooperate at all times with the appropriate authorities of the Government to ensure the observance of Philippine laws, rules and regulations, facilitate the proper administration of justice and prevent the occurrences of any abuse of the privileges and immunities granted its officials and alien employees in Article III of this Agreement to the Commission. 2. In the event that the Government determines that there has been an abuse of the privileges and immunities granted under this Agreement, consultations shall be held between the Government and the Commission to determine whether any such abuse has occurred and, if so, the Government shall withdraw the privileges and immunities granted the Commission and its officials. Neither are the employees of IRRI without remedy in case of dispute with management as, in fact, there had been organized a forum for better management-employee relationship as evidenced by the formation of the Council of IRRI Employees and Management (CIEM) wherein "both management and employees were and still are represented for purposes of maintaining mutual and beneficial cooperation between IRRI and its employees." The existence of this Union factually and tellingly belies the argument that Pres. Decree No. 1620, which grants to IRRI the status, privileges and immunities of an international organization, deprives its employees of the right to self-organization. The immunity granted being "from every form of legal process except in so far as in any particular case they have expressly waived their immunity," it is inaccurate to state that a certification election is beyond the scope of that immunity for the reason that it is not a suit against ICMC. A certification election cannot be viewed as an independent or isolated process. It could tugger off a series of events in the collective bargaining process together with related incidents and/or concerted activities, which could inevitably involve ICMC in the "legal process," which includes "any penal, civil and administrative proceedings." The eventuality of Court litigation is neither remote and from which international organizations are precisely shielded to safeguard them from the disruption of their functions. Clauses on jurisdictional immunity are said to be standard provisions in the constitutions of international Organizations. "The immunity covers the organization concerned, its property and its assets. It is equally 18 applicable to proceedings in personam and proceedings in rem." We take note of a Manifestation, dated 28 September 1989, in the ICMC Case (p. 161, Rollo), wherein TUPAS calls attention to the case entitled "International Catholic Migration Commission v. NLRC, et als., (G.R. No. 72222, 30 January 1989, 169 SCRA 606), and claims that, having taken cognizance of that dispute (on the issue of payment of salary for the unexpired portion of a six-month probationary employment), the Court is now estopped from passing upon the question of DOLE jurisdiction petition over ICMC. We find no merit to said submission. Not only did the facts of said controversy occur between 1983-1985, or before the grant to ICMC on 15 July 1988 of the status of a specialized agency with corresponding immunities, but also because ICMC in that case did not invoke its immunity and, therefore, may be deemed to have waived it, assuming that during that period (1983-1985) it was tacitly recognized as enjoying such immunity. Anent the procedural issue raised in the IRRI Case, suffice it to state that the Decision of the BLR Director, dated 15 February 1989, had not become final because of a Motion for Reconsideration filed by IRRI Said Motion was acted upon only on 30 March 1989 when Rep. Act No. 6715, which provides for direct appeals from the Orders of the Med-Arbiter to the Secretary of Labor in certification election cases either from the order or the results of the election itself, was already in effect, specifically since 21 March 1989. Hence, no grave abuse of discretion may be imputed to
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respondent Secretary of Labor in his assumption of appellate jurisdiction, contrary to Kapisanan's allegations. The pertinent portion of that law provides: Art. 259. Any party to an election may appeal the order or results of the election as determined by the Med-Arbiter directly to the Secretary of Labor and Employment on the ground that the rules and regulations or parts thereof established by the Secretary of Labor and Employment for the conduct of the election have been violated. Such appeal shall be decided within 15 calendar days (Emphasis supplied). En passant, the Court is gratified to note that the heretofore antagonistic positions assumed by two departments of the executive branch of government have been rectified and the resultant embarrassment to the Philippine Government in the eyes of the international community now, hopefully, effaced. WHEREFORE, in G.R. No. 85750 (the ICMC Case), the Petition is GRANTED, the Order of the Bureau of Labor Relations for certification election is SET ASIDE, and the Temporary Restraining Order earlier issued is made PERMANENT. In G.R. No. 89331 (the IRRI Case), the Petition is Dismissed, no grave abuse of discretion having been committed by the Secretary of Labor and Employment in dismissing the Petition for Certification Election. No pronouncement as to costs. SO ORDERED. Footnotes 1 Article XIII, Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations and peaceful concerted activities including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work and a living wage. They shall also participate in policy and decisionmaking processes affecting their rights and benefits as may be provided by law. 2 RULE V. Section 7. Appeal Any aggrieved party may appeal the order of the Med-Arbiter to the Bureau only on the following grounds: a) grave abuse of discretion and b) gross incompetence. The appeal shall specifically state the grounds relied upon by the appellant with supporting memorandum. Section 8. Where to file appeal appellant shall file his appeal which shall be under oath, in the Regional Office where the case originated, copy furnished the appellee. Section 9. Period to Appeal. The appeal shall be filed within ten (10) working days from receipt of the Order by the appellant. Likewise, the appellee shall file his answer thereto within ten (10) working days from receipt of the appeal. The Regional Director shall immediately forward the entire records of the case to the Bureau. Section 10. Decision of the Bureau is final and unappealable. The Bureau shall have twenty (20) working days within which to decide the appeal from receipt of the records of the case. The decision of the Bureau in all cases shall be final and unappealable. 5 The leading judicial authority on the personality of international organizations is the advisory opinion even by the ICJ in the Reparation for Injuries Suffered in the Service of the United Nations Case ([1949] I.C.J. Rep 174) where the Court recognized the UNs international personality. 8 Article 57. 1. The various specialized-agencies, established by inter-governmental agreement and having wide international responsibilities, as defined in their basic instruments, in economic, social, cultural, educational, health, and related fields, shall be brought into relationship with the United Nations in accordance with the provisions of Article 63. 2. Such agencies thus brought into relationship with the United Nations are hereinafter referred to as specialized agencies. 9 Article 63. 1. The Economic and Social Council may enter into agreements with any of the agencies referred to in Article 57, defining the terms on which the agency concerned shall be brought into relationship with the United Nations. Such agreements shall be subject to approval by the General Assembly.

2. It may co-ordinate the activities of the specialized agencies through consultation with and recommendations to such agencies and through recommendations to the General Assembly and to the Members of the United Nations. 14 Article II, Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. 15 Article III, Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. 16 Article 243. Coverage and Employees' Right to Self- Organization. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical or educational institutions whether operating for profit or not, shall have the right to self-organization and to form, join or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self- employed people, rural workers and those without any definite employees may form labor organizations for their mutual aid and protection. Article 246. Non-abridgement of Right to Self-organization. It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. Such right shall include the rignt to form, join, or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose or for their mutual aid and protection, subject to the provisions of Article 264 of this Code. 17 This Convention, adopted by the U.N. General Assembly on November 21, 1947, was concurred in by the Philippine Senate under Senate Resolution No. 21, dated 17 May 1949. The Philippine Instrument of Ratification was signed by the Philippine President on 21 February 1959. (Vol. 1, Phil. Treaty Series, p. 621).

G.R. Nos. 109095-109107 February 23, 1995 ELDEPIO LASCO, RODOLFO ELISAN, URBANO BERADOR, FLORENTINO ESTOBIO, MARCELINO MATURAN, FRAEN BALIBAG, CARMELITO GAJOL, DEMOSTHENES MANTO, SATURNINO BACOL, SATURNINO LASCO, RAMON LOYOLA, JOSENIANO B. ESPINA, all represented by MARIANO R. ESPINA, petitioner, vs. UNITED NATIONS REVOLVING FUND FOR NATURAL RESOURCES EXPLORATION (UNRFNRE) represented by its operations manager, DR. KYRIACOS LOUCA, OSCAR N. ABELLA, LEON G. GONZAGA, JR., MUSIB M. BUAT, Commissioners of National Labor Relations Commission (NLRC), Fifth Division, Cagayan de Oro City and IRVING PETILLA, Labor Arbiter of Butuan City, respondents. QUIASON, J.: This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside the Resolution dated January 25, 1993 of the National Labor Relations Commission (NLRC), Fifth Division, Cagayan de Oro City. We dismiss the petition. I Petitioners were dismissed from their employment with private respondent, the United Nations Revolving Fund for Natural Resources Exploration (UNRFNRE), which is a special fund and subsidiary organ of the United Nations. The UNRFNRE is involved in a joint project of the Philippine Government and the United Nations for exploration work in Dinagat Island. Petitioners are the complainants in NLRC Cases Nos. SRAB 10-03-00067-91 to 10-03-00078-91 and SRAB 10-07-00159-91 for illegal dismissal and damages. In its Motion to Dismiss, private respondent alleged that respondent Labor Arbiter had no jurisdiction over its personality since it enjoyed diplomatic immunity pursuant to the 1946 Convention on the Privileges and Immunities of the United Nations. In support thereof, private respondent attached a letter from the Department of Foreign Affairs dated August 26, 1991, which acknowledged its immunity from suit. The letter confirmed that private respondent, being a special fund administered by the United Nations, was covered by the 1946 Convention on the Privileges and Immunities of the United Nations of which the Philippine Government was an original signatory (Rollo, p. 21). On November 25, 1991, respondent Labor Arbiter issued an order dismissing the complaints on the ground that private respondent was protected by diplomatic immunity. The dismissal was based on the letter of the Foreign Office dated September 10, 1991. Petitioners' motion for reconsideration was denied. Thus, an appeal was filed with the NLRC, which affirmed the dismissal of the complaints in its Resolution dated January 25, 1993. Petitioners filed the instant petition for certiorari without first seeking a reconsideration of the NLRC resolution. II Article 223 of the Labor Code of the Philippines, as amended, provides that decisions of the NLRC are final and executory. Thus, they may only be questioned through certiorari as a special civil action under Rule 65 of the Revised Rules of Court. Ordinarily, certiorari as a special civil action will not lie unless a motion for reconsideration is first filed before the respondent tribunal, to allow it an opportunity to correct its assigned errors (Liberty Insurance Corporation v. Court of Appeals, 222 SCRA 37 [1993]). In the case at bench, petitioners' failure to file a motion for reconsideration is fatal to the instant petition. Moreover, the petition lacks any explanation for such omission, which may merit its being considered as falling under the recognized exceptions to the necessity of filing such motion. Notwithstanding, we deem it wise to give due course to the petition because of the implications of the issue in our international relations. Petitioners argued that the acts of mining exploration and exploitation are outside the official functions of an international agency protected by diplomatic immunity. Even assuming that private respondent was entitled to diplomatic immunity, petitioners insisted that private respondent waived it when it engaged in exploration work and entered into a contract of employment with petitioners.

Petitioners, likewise, invoked the constitutional mandate that the State shall afford full protection to labor and promote full employment and equality of employment opportunities for all (1987 Constitution, Art. XIII, Sec. 3). The Office of the Solicitor General is of the view that private respondent is covered by the mantle of diplomatic immunity. Private respondent is a specialized agency of the United Nations. Under Article 105 of the Charter of the United Nations: 1. The Organization shall enjoy in the territory of its Members such privileges and immunities as are necessary for the fulfillment of its purposes. 2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the organization. Corollary to the cited article is the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations, to which the Philippines was a signatory (Vol. 1, Philippine Treaty Series, p. 621). We quote Sections 4 and 5 of Article III thereof: Sec. 4. The specialized agencies, their property and assets, wherever located and by whomsoever held shall enjoy immunity from every form of legal process except insofar as in any particular case they have expressly waived their immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution (Emphasis supplied). Sec. 5. The premises of the specialized agencies shall be inviolable. The property and assets of the specialized agencies, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action (Emphasis supplied). As a matter of state policy as expressed in the Constitution, the Philippine Government adopts the generally accepted principles of international law (1987 Constitution, Art. II, Sec. 2). Being a member of the United Nations and a party to the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations, the Philippine Government adheres to the doctrine of immunity granted to the United Nations and its specialized agencies. Both treaties have the force and effect of law. In World Health Organization v. Aquino, 48 SCRA 242, (1972), we had occasion to rule that: It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that "in such cases the judicial department of (this) government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction (Emphasis supplied). We recognize the growth of international organizations dedicated to specific universal endeavors, such as health, agriculture, science and technology and environment. It is not surprising that their existence has evolved into the concept of international immunities. The reason behind the grant of privileges and immunities to international organizations, its officials and functionaries is to secure them legal and practical independence in fulfilling their duties (Jenks, International Immunities 17 [1961]). Immunity is necessary to assure unimpeded performance of their functions. The purpose is "to shield the affairs of international organizations, in accordance with international practice, from political pressure or control by the host country to the prejudice of member States of the organization, and to ensure the unhampered performance of their functions" (International Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). In the International Catholic Migration Commission case, we held that there is no conflict between the constitutional duty of the State to protect the rights of workers and to promote their welfare, and the grant of immunity to international organizations. Clauses on jurisdictional immunity are now standard in the charters of the international organizations to guarantee the smooth discharge of their functions. The diplomatic immunity of private respondent was sufficiently established by the letter of the Department of Foreign Affairs, recognizing and confirming the immunity of UNRFNRE in accordance with the 1946 Convention on Privileges and Immunities of the United Nations where the Philippine Government was a party. The issue whether an international organization is entitled to diplomatic immunity is a "political question" and such determination by the executive branch is conclusive on the courts and quasi-judicial agencies (The Holy See v. Hon. Eriberto U. Rosario, Jr., G.R. No. 101949, Dec. 1, 1994; International Catholic Migration Commission v. Calleja, supra).

Our courts can only assume jurisdiction over private respondent if it expressly waived its immunity, which is not so in the case at bench (Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations, Art. III, Sec. 4). Private respondent is not engaged in a commercial venture in the Philippines. Its presence here is by virtue of a joint project entered into by the Philippine Government and the United Nations for mineral exploration in Dinagat Island. Its mission is not to exploit our natural resources and gain pecuniarily thereby but to help improve the quality of life of the people, including that of petitioners. This is not to say that petitioner have no recourse. Section 31 of the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations states that "each specialized agency shall make a provision for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of private character to which the specialized agency is a party." WHEREFORE, the petition is DISMISSED. SO ORDERED.

G.R. No. 113191 September 18, 1996 DEPARTMENT OF FOREIGN AFFAIRS, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, HON. LABOR ARBITER NIEVES V. DE CASTRO and JOSE C. MAGNAYI, respondents. VITUG, J.: The questions raised in the petition for certiorari are a few coincidental matters relative to the diplomatic immunity extended to the Asian Development Bank ("ADB"). On 27 January 1993, private respondent initiated NLRC-NCR Case No. 00-01-0690-93 for his alleged illegal dismissal by ADB and the latter's violation of the "labor-only" contracting law. Two summonses were served, one sent directly to the ADB and the other through the Department of Foreign Affairs ("DFA"), both with a copy of the complaint. Forthwith, the ADB and the DFA notified respondent Labor Arbiter that the ADB, as well as its President and Office, were covered by an immunity from legal process except for borrowings, guaranties or the sale of securities pursuant to Article 50(1) and Article 55 of the Agreement Establishing the Asian Development Bank (the "Charter") in relation to Section 5 and Section 44 of the Agreement Between The Bank And The Government Of The Philippines Regarding The Bank's Headquarters (the "Headquarters Agreement"). The Labor Arbiter took cognizance of the complaint on the impression that the ADB had waived its diplomatic immunity from suit. In time, the Labor Arbiter rendered his decision, dated 31 August 1993, that concluded: WHEREFORE, above premises considered, judgment is hereby rendered declaring the complainant as a regular employee of respondent ADB, and the termination of his services as illegal. Accordingly, respondent Bank is hereby ordered: 1. To immediately reinstate the complainant to his former position effective September 16, 1993; 2. To pay complainant full backwages from December 1, 1992 to September 15, 1993 in the amount of P42,750.00 (P4,500.00 x 9 months); 3. And to pay complainants other benefits and without loss of seniority rights and other privileges and benefits due a regular employee of Asian Development Bank from the time he was terminated on December 31, 1992; 4. To pay 10% attorney's fees of the total entitlements.
1

The ADB did not appeal the decision. Instead, on 03 November 1993, the DFA referred the matter to the National Labor Relations Commission ("NLRC"); in its referral, the DFA sought a "formal vacation of the void judgment." Replying to the letter, the NLRC Chairman. wrote: The undersigned submits that the request for the "investigation" of Labor Arbiter Nieves de Castro, by the National Labor Relations Commission, has been erroneously premised on Art. 218(c) of the Labor Code, as cited in the letter of Secretary Padilla, considering that the provision deals with "a question, matter or controversy within its (the Commission) jurisdiction" obviously referring to a labor dispute within the ambit of Art. 217 (on jurisdiction of Labor Arbiters and the Commission over labor cases). The procedure, in the adjudication of labor cases, including raising of defenses, is prescribed by law. The defense of immunity could have been raised before the Labor Arbiter by a special appearance which, naturally, may not be considered as a waiver of the very defense being raised. Any decision thereafter is subject to legal remedies, including appeals to the appropriate division of the Commission and/or a petition for certiorari with the Supreme Court, under Rule 65 of the Rules of Court. Except where an appeal is seasonably and properly made, neither the Commission nor the undersigned may review, or even question, the property of any decision by a Labor Arbiter. Incidentally, the Commission sits en banc (all fifteen Commissioners) only to promulgate rules of procedure, or to formulate policies (Art. 213, Labor Code). On the other hand, while the undersigned exercises "administrative supervision over the Commission and its regional branches and all its personnel, including the Executive Labor Arbiters and Labor Arbiters" (penultimate paragraph, Art. 213, Labor Code), he does not have the competence to investigate or review any decision of a Labor Arbiter. However, on the purely administrative aspect of the decision-making process, he may cause that an misconduct, malfeasance or misfeasance, upon complaint properly made. If the Department of Foreign Affairs feels that the action of Labor Arbiter Nieves de Castro constitutes misconduct, malfeasance or misfeasance, it is suggested that an appropriate complaint be lodged with the Office of the Ombudsman.

Thank you for kind attention.

Dissatisfied, the DFA lodged the instant petition for certiorari. In this Court's resolution of 31 January 1994, respondents were required to comment. Petitioner was later constrained to make an application for a restraining order and/or writ of preliminary injunction following the issuance, on 16 March 199, by the Labor Arbiter of a writ of execution. In a resolution, dated 07 April 1994, the Court issued the temporary restraining order prayed for. The Office of the Solicitor General ("OSG"), in its comment of 26 May 1994, initially assailed the claim of immunity by the ADB. Subsequently, however, it submitted a Manifestation (dated 20 June 1994) stating, among other things, that "after a thorough review of the case and the records," it became convinced that ADB, indeed, was correct in invoking its immunity from suit under the Charter and the Headquarters Agreement. The Court is of the same view. Article 50(1) of the Charter provides: The Bank shall enjoy immunity from every form of legal process, except in cases arising out of or in connection with the exercise 3 of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities. Under Article 55 thereof All Governors, Directors, alternates, officers and employees of the Bank, including experts performing missions for the Bank: (1) shall be immune from legal process with respect of acts performed by them in their official capacity, except when the Bank 4 waives the immunity. Like provisions are found in the Headquarters Agreement. Thus, its Section 5 reads: The Bank shall enjoy immunity from every form of legal process, except in cases arising out of, or in connection with, the 5 exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities. And, with respect to certain officials of the bank, Section 44 of the agreement states: Governors, other representatives of Members, Directors, the president, Vice-President and executive officers as may be agreed upon between the Government and the Bank shall enjoy, during their stay in the Republic of the Philippines in connection with their official duties with the Bank: xxx xxx xxx (b) Immunity from legal process of every kind in respect of words spoken or written and all acts done by them in their official 6 capacity. The above stipulations of both the Charter and Headquarters Agreement should be able, may well enough, to establish that, except in the specified cases of borrowing and guarantee operations, as well as the purchase, sale and underwriting of securities, the ADB enjoys immunity from legal process of every form. The Bank's officers, on their part, enjoy immunity in respect of all acts performed by them in their official capacity. The Charter and the Headquarters Agreement granting these immunities and privileges are treaty covenants and commitments voluntarily assumed by the Philippines government which must be respected. In World Health Organization vs. Aquino. we have declared: It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government . . . it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government, . . . or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction . . . as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that in "such cases the judicial department of government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction."
7

To the same effect is the decision in International Catholic Migration Commission vs. Calleja, which has similarly deemed the Memoranda of the Legal Adviser of the Department of Foreign Affairs to be "a categorical recognition by the Executive Branch of Government that ICMC . . . enjoy(s) immunities accorded to international organizations" and which determination must be held "conclusive upon the Courts in order not to embarrass a political department of Government." In the instant case, the filing of the petition by the DFA, in behalf of ADB, is itself an affirmance of the government's own recognition of ADB's immunity. Being an international organization that has been extended diplomatic status, the ADB is independent of the municipal law. 11 12 Fisheries Development Center vs. Acosta. The Court has cited with approval the opinion of the Minister of justice; thus
10

In Southeast Asian

One of the basic immunities of an international organization is immunity from local jurisdiction, i.e., that it is immune from the legal writs and processes issued by the tribunals of the country where it is found. (See Jenks, Id., pp. 37-44). The obvious reason for this is that the subjection of such an organization to the authority of the local courts would afford a convenient medium thru which the host government may interfere in their operations or even influence or control its policies and decisions of the organization; besides, such subjection to local jurisdiction would impair the capacity of such body to discharge its 13 responsibilities impartially behalf of its member-states. Contrary to private respondent's assertion, the claim of immunity is not here being raised for the first time, it has been invoked before the forum of origin through communications sent by petitioner and the ADB to the Labor Arbiter, as well as before the NLRC following the rendition of the questioned judgment by the Labor Arbiter, but evidently to no avail. In its communication of 27 May 1993, the DFA, through the Office of legal Affairs, has advised the NLRC: Respectfully returned to the Honorable Domingo B. Mabazza, Labor Arbitration Associate Commission, National Labor Relations Commission, National Capital Judicial Region, Arbitration Branch, Associated Bank Bldg., T.M. Kalaw St., Ermita, Manila, the attached Notice of Hearing addressed to the Asian Development Bank, in connection with the aforestated case, for the reason stated in the Department's 1st Indoresment dated 23 March 1993, copy attached, which is self-explanatory. In view of the fact that the Asian Development Bank (ADB) invokes its immunity which is sustained by the Department of Foreign Affairs, a continuos hearing of this case erodes the credibility of the Philippine government before the international community, let alone the negative implication of such a suit on the official relationship of the Philippine government with the ADB. For the Secretary of Foreign Affairs (Sgd.) SIME D. HIDALGO 14 Assistant Secretary The Office of the President, likewise, has issued on 18 May 1993 a letter to the Secretary of Labor, viz Dear Secretary Confesor, I am writing to draw your attention to a case filed by a certain Jose C. Magnayi against the Asian Development Bank and its President, Kimmasa Tarumizu, before the National Labor Relations Commission, National Capital Region Arbitration Board (NLRC NCR Case No. 00-01690-93). Last March 8, the Labor Arbiter charged with the case, Ms. Nieves V. de Castro, addressed a Notice of Resolution/Order to the Bank which brought it to the attention of the Department of Foreign Affairs on the ground that the service of such notice was in violation of the RP-ADB Headquarters Agreement which provided, inter alia, for the immunity of the Bank, its President and officers from every form of legal process, except only, in cases of borrowings, guarantees or the sale of securities. The Department of Foreign Affairs, in turn, informed Labor Arbiter Nieves V. de Castro of this fact by letter dated March 22, copied to you. Despite this, the labor arbiter in question persited to send summons, the latest dated May 4, herewith attached, regarding the Magnayi case. The Supreme Court has long settled the matter of diplomatic immunities. In WHO vs. Aquino, SCRA 48, it ruled that courts should respect diplomatic immunities of foreign officials recognized by the Supreme Court forms part of the law of the land.

Perhaps you should point out to Labor Arbiter Nieves V. de Castro that ignorance of the law is a ground for dismissal. Very truly yours, (Sgd.) JOSE B. ALEJANDRINO 15 Chairman, PCC-ADB Private respondent argues that, by centering into service contracts with different private companies, ADB has descended to the level of an ordinary 16 party to a commercial transaction giving rise to a waiver of its immunity from suit. In the case of Holy See vs. Hon. Rosario, Jr., the Court has held: There are two conflicting concept of sovereign immunity, each widely held and firmly established. According to the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the Courts of another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not with regard to private act or acts jure gestionis. xxx xxx xxx Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in the activity in regular course of business. If the foreign state is not engaged regularly in a business or trade, the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperit, especially 17 when it is not undertaken for gain or profit. The service contracts referred to by private respondent have not been intended by the ADB for profit or gain but are official acts over which a waiver of immunity would not attack. With regard to the issue of whether or not the DFA has the legal standing to file the present petition, and whether or not petitioner has regarded the basic rule that certiorari can be availed of only when there is no appeal nor plain, speedy and adequate remedy in the ordinary course of law, we hold both in the affirmative. The DFA's function includes, among its other mandates, the determination of persons and institutions covered by diplomatic immunities, a determination which, when challenge, entitles it to seek relief from the court so ass not to seriously impair the conduct of the country's foreign relations. The DFA must be allowed to plead its case whenever necessary or advisable to enable it to help keep the credibility of the Philippine government before the international community. When international agreements are concluded, the parties therto are deemed to have likewise accepted the responsibility of seeing to it that their agreements are duly regarded. In our country, this task falls principally of the DFA as being the 18 highest executive department with the competence and authority to so act in this aspect of the international arena. In Holy See vs. Hon. Rosario, 19 Jr., this Court has explained the matter in good datail; viz: In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to immunity. In the United States, the procedure followed is the process of "suggestion," where the foreign state or the international organization sued in an American court requests the Secretary of State to make a determination as to whether it is entitled to immunity. If the Secretary of State finds that the defendant is immune from suit, he, in turn, asks the attorney General to submit to the court a "suggestion" that the defendant is entitled to immunity. In England, a similar procedure is followed, only the Foreign Office issues a certification to the effect instead of submitting a "suggestion" (O'Connell, In International Law 130 [1965]; Note: Immunity from Suit of Foreign Sovereign Instrumentalities and Obligations 50 Yale Law Journal 1088 [1941]). In the Philippines, the practice is for the foreign government or the international organization to first secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office conveys its endorsement to the courts varies. In International Catholic Migration Commission vs. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment, informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity. In World Health Organization vs. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer vs. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to make, in behalf of the Commander of the United States Naval Base at Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the "suggestion" in a manifestation and memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department to file its memorandum in support of petitioner's claim of sovereign immunity. In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents through their private counsels (Raquiza vs. Bradford, 75 Phil. 50 [1945]; Miquiabas vs. Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America vs. Guinto, 182 SCRA 644 [1990] and companion cases). In cases where the foreign states bypass the Foreign Office, the courts can in quire into the facts and make their own determination as to the nature of the acts and 20 transactions involved. Relative to the property of the extraordinary remedy of certiorari, the Court has, under special circumstances, so allowed and entertained such a 21 petition when (a) the questioned order or decision is issued in excess of or without jurisdiction, or (b) where the order or decision is a patent 22 nullity, which, verily, are the circumstances that can be said to obtain in the present case. When an adjudicator is devoid of jurisdiction on a matter before him, his action that assumes otherwise would be a clear nullity. WHEREFORE, the petition for certiorari is GRANTED, and the decision of the Labor Arbiter, dated 31 August 1993 is VACATED, for being NULL AND VOID. The temporary restraining order issued by this Court on 07 April 1994 is hereby made permanent. No costs. SO ORDERED.

G.R. No. L-35131 November 29, 1972 THE WORLD HEALTH ORGANIZATION and DR. LEONCE VERSTUYFT, petitioners, vs. HON. BENJAMIN H. AQUINO, as Presiding Judge of Branch VIII, Court of First Instance of Rizal, MAJOR WILFREDO CRUZ, MAJOR ANTONIO G. RELLEVE, and CAPTAIN PEDRO S. NAVARRO of the Constabulary Offshore Action Center (COSAC), respondents. TEEHANKEE, J.:p An original action for certiorari and prohibition to set aside respondent judge's refusal to quash a search warrant issued by him at the instance of respondents COSAC (Constabulary Offshore Action Center) officers for the search and seizure of the personal effects of petitioner official of the WHO (World Health Organization) notwithstanding his being entitled to diplomatic immunity, as duly recognized by the executive branch of the Philippine Government and to prohibit respondent judge from further proceedings in the matter. Upon filing of the petition, the Court issued on June 6, 1972 a restraining order enjoining respondents from executing the search warrant in question. Respondents COSAC officers filed their answer joining issue against petitioners and seeking to justify their act of applying for and securing from respondent judge the warrant for the search and seizure of ten crates consigned to petitioner Verstuyft and stored at the Eternit Corporation warehouse on the ground that they "contain large quantities of highly dutiable goods" beyond the official needs of said petitioner "and the only 1 lawful way to reach these articles and effects for purposes of taxation is through a search warrant." The Court thereafter called for the parties' memoranda in lieu of oral argument, which were filed on August 3, 1972 by respondents and on August 21, 1972 by petitioners, and the case was thereafter deemed submitted for decision. It is undisputed in the record that petitioner Dr. Leonce Verstuyft, who was assigned on December 6, 1971 by the WHO from his last station in Taipei to the Regional Office in Manila as Acting Assistant Director of Health Services, is entitled to diplomatic immunity, pursuant to the Host Agreement executed on July 22, 1951 between the Philippine Government and the World Health Organization. Such diplomatic immunity carries with it, among other diplomatic privileges and immunities, personal inviolability, inviolability of the official's properties, exemption from local jurisdiction, and exemption from taxation and customs duties. When petitioner Verstuyft's personal effects contained in twelve (12) crates entered the Philippines as unaccompanied baggage on January 10, 1972, they were accordingly allowed free entry from duties and taxes. The crates were directly stored at the Eternit Corporation's warehouse at Mandaluyong, Rizal, "pending his relocation into permanent quarters upon the offer of Mr. Berg, Vice President of Eternit who was once a patient 2 of Dr. Verstuyft in the Congo." Nevertheless, as above stated, respondent judge issued on March 3, 1972 upon application on the same date of respondents COSAC officers search 3 warrant No. 72-138 for alleged violation of Republic Act 4712 amending section 3601 of the Tariff and Customs Code directing the search and seizure of the dutiable items in said crates. Upon protest of March 6, 1972 of Dr. Francisco Dy, WHO Regional Director for the Western Pacific with station in Manila, Secretary of Foreign Affairs Carlos P. Romulo, personally wired on the same date respondent Judge advising that "Dr. Verstuyft is entitled to immunity from search in respect of his personal baggage as accorded to members of diplomatic missions" pursuant to the Host Agreement and requesting suspension of the search warrant order "pending clarification of the matter from the ASAC." Respondent judge set the Foreign Secretary's request for hearing and heard the same on March 16, 1972, but notwithstanding the official plea of diplomatic immunity interposed by a duly authorized representative of the Department of Foreign Affairs who furnished the respondent judge with a list of the articles brought in by petitioner Verstuyft, respondent judge issued his order of the same date maintaining the effectivity of the search 4 warrant issued by him, unless restrained by a higher court. Petitioner Verstuyft's special appearance on March 24, 1972 for the limited purpose of pleading his diplomatic immunity and motion to quash search warrant of April 12, 1972 failed to move respondent judge. At the hearing thereof held on May 8, 1972, the Office of the Solicitor General appeared and filed an extended comment stating the official position of the executive branch of the Philippine Government that petitioner Verstuyft is entitled to diplomatic immunity, he did not abuse his 5 diplomatic immunity, and that court proceedings in the receiving or host State are not the proper remedy in the case of abuse of diplomatic 6 immunity.

The Solicitor General accordingly joined petitioner Verstuyft's prayer for the quashal of the search warrant. Respondent judge nevertheless summarily denied quashal of the search warrant per his order of May 9, 1972 "for the same reasons already stated in (his) aforesaid order of March 16, 1972" disregarding Foreign Secretary Romulo's plea of diplomatic immunity on behalf of Dr. Verstuyft. Hence, the petition at bar. Petitioner Verstuyft has in this Court been joined by the World Health Organization (WHO) itself in full assertion of petitioner Verstuyft's being entitled "to all privileges and immunities, exemptions and facilities accorded to diplomatic envoys in accordance with international law" under section 24 of the Host Agreement. The writs of certiorari and prohibition should issue as prayed for. 1. The executive branch of the Philippine Government has expressly recognized that petitioner Verstuyft is entitled to diplomatic immunity, pursuant to the provisions of the Host Agreement. The Department of Foreign Affairs formally advised respondent judge of the Philippine Government's official position that accordingly "Dr. Verstuyft cannot be the subject of a Philippine court summons without violating an obligation in international law of the Philippine Government" and asked for the quashal of the search warrant, since his personal effects and baggages after having been allowed free entry from all customs duties and taxes, may not be baselessly claimed to have been "unlawfully imported" in violation of 7 the tariff and customs code as claimed by respondents COSAC officers. The Solicitor-General, as principal law officer of the Government, likewise expressly affirmed said petitioner's right to diplomatic immunity and asked for the quashal of the search warrant. It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political 8 question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General in this case, or other officer 9 acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that "in such cases the judicial department of (this) government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic 10 jurisdiction." 2. The unfortunate fact that respondent judge chose to rely on the suspicion of respondents COSAC officers "that the other remaining crates 11 unopened contain contraband items" rather than on the categorical assurance of the Solicitor-General that petitioner Verstuyft did not abuse his 12 diplomatic immunity, which was based in turn on the official positions taken by the highest executive officials with competence and authority to act on the matter, namely, the Secretaries of Foreign Affairs and of Finance, could not justify respondent judge's denial of the quashal of the search warrant. As already stated above, and brought to respondent court's attention, the Philippine Government is bound by the procedure laid down in Article 14 VII of the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations for consultations between the Host State and the United Nations agency concerned to determine, in the first instance the fact of occurrence of the abuse alleged, and if so, to ensure that no repetition occurs and for other recourses. This is a treaty commitment voluntarily assumed by the Philippine Government and as such, has the force and effect of law. Hence, even assuming arguendo as against the categorical assurance of the executive branch of government that respondent judge had some ground to prefer respondents COSAC officers' suspicion that there had been an abuse of diplomatic immunity, the continuation of the search warrant proceedings before him was not the proper remedy. He should, nevertheless, in deference to the exclusive competence and jurisdiction of the executive branch of government to act on the matter, have acceded to the quashal of the search warrant, and forwarded his findings or grounds to believe that there had been such abuse of diplomatic immunity to the Department of Foreign Affairs for it to deal with, in accordance with the aforementioned Convention, if so warranted. 3. Finally, the Court has noted with concern the apparent lack of coordination between the various departments involved in the subject-matter of the case at bar, which made it possible for a small unit, the COSAC, to which respondents officers belong, seemingly to disregard and go against the authoritative determination and pronouncements of both the Secretaries of Foreign Affairs and of Finance that petitioner Verstuyft is entitled to diplomatic immunity, as confirmed by the Solicitor-General as the principal law officer of the Government. Such executive determination properly implemented should have normally constrained respondents officers themselves to obtain the quashal of the search warrant secured by them rather than oppose such quashal up to this Court, to the embarrassment of said department heads, if not of the Philippine Government itself vis a 15 vis the petitioners. The seriousness of the matter is underscored when the provisions of Republic Act 75 enacted since October 21, 1946 to safeguard the jurisdictional immunity of diplomatic officials in the Philippines are taken into account. Said Act declares as null and void writs or processes sued out or prosecuted whereby inter alia the person of an ambassador or public minister is arrested or imprisoned or his goods or chattels are seized or attached and makes it a penal offense for "every person by whom the same is obtained or prosecuted, whether as party or as attorney, and every 16 officer concerned in executing it" to obtain or enforce such writ or process.
13

The Court, therefore, holds that respondent judge acted without jurisdiction and with grave abuse of discretion in not ordering the quashal of the search warrant issued by him in disregard of the diplomatic immunity of petitioner Verstuyft. ACCORDINGLY, the writs of certiorari and prohibition prayed for are hereby granted, and the temporary restraining order heretofore issued against execution or enforcement of the questioned search warrant, which is hereby declared null and void, is hereby made permanent. The respondent court is hereby commanded to desist from further proceedings in the matter. No costs, none having been prayed for. The clerk of court is hereby directed to furnish a copy of this decision to the Secretary of Justice for such action as he may find appropriate with regard to the matters mentioned in paragraph 3 hereof. So ordered. Footnotes 3 This penal provision of the tariff & customs code imposes a penalty of a fine of not less than P600.00 nor more than P5000.00 and imprisonment for not less than 6 months nor more than two years for unlawful importation and illegal possession of goods imported contrary to law, upon "Any person who shall fraudulently import or bring into the Philippines, or assist in so doing, any article, contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such article after importation, knowing the same to have been imported contrary to law," and states that "(W)hen, upon trial for a violation of this section, the defendant is shown to have or to have had possession of the article in question, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the court...." 4 Respondent judge's justification in his said order reads in part as follows: "... From the reply submitted by Captains Pedro S. Navarro and Antonio G. Relleve of the COSAC, it appears that the articles contained in the two baggages allegedly belonging to Dr. Verstuyft so far opened by them, are 120 bottles of assorted foreign wine and 15 tins of PX goods which are said to be dutiable under the Customs and Tariff Code of the Philippines. The two COSAC officers further manifested that they positively believe that there are more contraband items in the nine other huge crates which are still unopened.... The articles so far found in the two crates opened by Capt. Navarro and Relleve are not mentioned in the list of articles brought in by Dr. Verstuyft and are highly dutiable under the Customs and Tariff Code and according to said officers they have strong reasons to believe that the other remaining crates unopened contain contraband items. The Court is certain that the World Health Organization would not tolerate violations of local laws by its officials and/or representatives under a claim of immunity granted to them by the host agreement. Since the right of immunity invoked by the Department of Foreign Affairs is admittedly relative and not absolute, and there are strong and positive indications of violation of local laws, the Court declines to suspend the effectivity of the search warrant issued in the case at bar...." 5 Aside from the Foreign Affairs Department's certification that the importation of 120 bottles of wine is "ordinary in diplomatic practice," the Solicitor General took pains to inform the lower court that the packing of Dr. Verstuyft's baggages and personal effects was done "by a packing company in Taipei ... (and) Dr. Verstuyft had no hand in the preparation of the packing list of his personal effects which has been assailed by ASAC agents. Also implicit from the foregoing is the fact that Dr. Verstuyft had no intention to violate Philippine laws by selling the 120 bottles of foreign wine and 15 tins of PX goods in the Philippines. Otherwise, he need not have stored the same at the Eternit Corporation where they may be subject to the probing eyes of government agents." 6 The Solicitor General cites that the Convention on the Privileges and Immunities of the Specialized Agencies of the U.N. adopted on Nov. 21, 1947, and made applicable by ratification to the WHO contains Article VII on abuse of privilege, calling for consultations between the Host State and the U.S. agency concerned and in case no satisfactory result is reached for submittal to the International Court of Justice for determination whether "such an abuse has occurred," and providing for the customary procedure of requiring the offending official's departure in certain instances. 14 This Convention was adopted by the U. N. General Assembly on Nov. 21, 1947; it was concurred in by the Philippine Senate under Sen. Resolution No. 21, May 17, 1949; and the Philippine Instrument of Ratification was signed by the President of the Republic on Feb. 21, 1959 applying the Convention to the WHO. See 45 0. G. 3187 (1949) and Vol. I, Phil. Treaty series, p. 621. 15 In their answer to petition, respondents COSAC officers insist on their "belief and contention" that the 120 bottles of foreign wine found by them "are far in excess, considered by any reasonable standard of taste and elegance in the diplomatic world of the official mission and needs of a diplomat, much more of the status of (petitioner), hence, they should be taxed" and on their "conviction that the articles and effects ... are not in fact and in truth personal effects so as to be comprehended within the privileges and immunities accorded representatives of (WHO)." Rollo, pp. 138-139.

16 The pertinent section of Rep. Act 75, entitled "An act to penalize acts which would impair the proper observance by the Republic and inhabitants of the Philippines of the immunities, rights and privileges of duly accredited foreign diplomatic and consular agents in the Philippines," reads: "Any writ or process sued out or prosecuted by any person in any court of the Republic of the Philippines, or by any judge or justice, whereby the person of any ambassador or public minister of any foreign State, authorized and received as such by the President, or any domestic or domestic servant of any such ambassador or minister is arrested or imprisoned, or his goods or chattels are distrained, seized, or attacked, shall be deemed void, and every person by whom the same is obtained or prosecuted, whether as party or as attorney, and every officer concerned in executing it, shall upon conviction, be punished by imprisonment for not more than three years and a fine of not exceeding two hundred pesos in the discretion of the court." (Section 4, emphasis supplied) As to whether this Act may be invoked on behalf of petitioner (who does not pertain to the foreign diplomatic corps), quaere.

G.R. No. 125865

January 28, 2000

JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. YNARES-SANTIAGO, J.: Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before the Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral defamation docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant issued by the MeTC. After fixing petitioner's bail at P2,400.00 per criminal charge, the MeTC released him to the custody of the Security Officer of ADB. The next day, the MeTC judge received an "office of protocol" from the Department of Foreign Affairs (DFA) stating that petitioner is covered by immunity from legal process under Section 45 of the Agreement between the ADB and the Philippine Government regarding the Headquarters of the ADB (hereinafter Agreement) in the country. Based on the said protocol communication that petitioner is immune from suit, the MeTC judge without notice to the prosecution dismissed the two criminal cases. The latter filed a motion for reconsideration which was opposed by the DFA. When its motion was denied, the prosecution filed a petition for certiorari and mandamus with the Regional Trial Court (RTC) of Pasig City which set aside the MeTC rulings and ordered the latter court to enforce the warrant of arrest it earlier issued. After the motion for reconsideration was denied, petitioner elevated the case to this Court via a petition for review arguing that he is covered by immunity under the Agreement and that no preliminary investigation was held before the criminal cases were filed in court.1wphi1.nt The petition is not impressed with merit. First, courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is covered by any immunity. The DFA's determination that a certain person is covered by immunity is only preliminary which has no binding effect in courts. In receiving ex-parte the DFA's advice and in motu propio dismissing the two criminal cases without notice to the prosecution, the latter's right to due process was violated. It should be noted that due process is a right of the accused as much as it is of the prosecution. The needed inquiry in what capacity petitioner was 1 acting at the time of the alleged utterances requires for its resolution evidentiary basis that has yet to be presented at the proper time. At any 2 rate, it has been ruled that the mere invocation of the immunity clause does not ipso facto result in the dropping of the charges. Second, under Section 45 of the Agreement which provides: Officers and staff of the Bank including for the purpose of this Article experts and consultants performing missions for the Bank shall enjoy the following privileges and immunities: a.) immunity from legal process with respect to acts performed by them in their official capacity except when the Bank waives the immunity. the immunity mentioned therein is not absolute, but subject to the exception that the acts was done in "official capacity." It is therefore necessary to determine if petitioner's case falls within the ambit of Section 45(a). Thus, the prosecution should have been given the chance to rebut the DFA protocol and it must be accorded the opportunity to present its controverting evidence, should it so desire. Third, slandering a person could not possibly be covered by the immunity agreement because our laws do not allow the commission of a crime, 3 such as defamation, in the name of official duty. The imputation of theft is ultra vires and cannot be part of official functions. It is well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with 4 malice or in bad faith or beyond the scope of his authority or jurisdiction. It appears that even the government's chief legal counsel, the Solicitor General, does not support the stand taken by petitioner and that of the DFA. Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action relating to any professional or commercial activity exercised by the diplomatic 5 agent in the receiving state outside his official functions. As already mentioned above, the commission of a crime is not part of official duty. Finally, on the contention that there was no preliminary investigation conducted, suffice it to say that preliminary investigation is not a matter of 6 right in cases cognizable by the MeTC such as the one at bar. Being purely a statutory right, preliminary investigation may be invoked only when 7 specifically granted by law. The rule on the criminal procedure is clear that no preliminary investigation is required in cases falling within the 8 jurisdiction of the MeTC. Besides the absence of preliminary investigation does not affect the court's jurisdiction nor does it impair the validity of 9 the information or otherwise render it defective. WHEREFORE, the petition is DENIED.SO ORDERED.