Republic of the Philippines SUPREME COURT Manila

FIRST DIVISION

G.R. No. L-44059

October 28, 1977

THE INSULAR LIFE ASSURANCE COMPANY, LTD., plaintiff-appellee, vs. CARPONIA T. EBRADO and PASCUALA VDA. DE EBRADO, defendantsappellants.

MARTIN, J.:

This is a novel question in insurance law: Can a common-law wife named as beneficiary in the life insurance policy of a legally married man claim the proceeds thereof in case of death of the latter?

On September 1, 1968, Buenaventura Cristor Ebrado was issued by The Life Assurance Co., Ltd., Policy No. 009929 on a whole-life for P5,882.00 with a, rider for Accidental Death for the same amount Buenaventura C. Ebrado designated T. Ebrado as the revocable beneficiary in his policy. He to her as his wife.

On October 21, 1969, Buenaventura C. Ebrado died as a result of an t when he was hit by a failing branch of a tree. As the policy was in force, The Insular Life Assurance Co., Ltd. liable to pay the coverage in the total amount of P11,745.73, representing the face value of the policy in the amount of P5,882.00 plus the additional benefits for accidental death also in the amount of P5,882.00 and the refund of P18.00 paid for the premium due November, 1969, minus the unpaid premiums and interest thereon due for January and February, 1969, in the sum of P36.27.

Carponia T. Ebrado filed with the insurer a claim for the proceeds of the Policy as the designated beneficiary therein, although she admits that she and the insured Buenaventura C. Ebrado were merely living as husband and wife without the benefit of marriage.

Pascuala Vda. de Ebrado also filed her claim as the widow of the deceased insured. She asserts that she is the one entitled to the insurance proceeds, not the common-law wife, Carponia T. Ebrado.

In doubt as to whom the insurance proceeds shall be paid, the insurer, The Insular Life Assurance Co., Ltd. commenced an action for Interpleader before the Court of First Instance of Rizal on April 29, 1970.

After the issues have been joined, a pre-trial conference was held on July 8, 1972, after which, a pre-trial order was entered reading as follows: +.wph!1

During the pre-trial conference, the parties manifested to the court. that there is no possibility of amicable settlement. Hence, the Court proceeded to have the parties submit their evidence for the purpose of the pre-trial and make admissions

for the purpose of pretrial. During this conference, parties Carponia T. Ebrado and Pascuala Ebrado agreed and stipulated: 1) that the deceased Buenaventura Ebrado was married to Pascuala Ebrado with whom she has six (legitimate) namely; Hernando, Cresencio, Elsa, Erlinda, Felizardo and Helen, all surnamed Ebrado; 2) that during the lifetime of the deceased, he was insured with Insular Life Assurance Co. Under Policy No. 009929 whole life plan, dated September 1, 1968 for the sum of P5,882.00 with the rider for accidental death benefit as evidenced by Exhibits A for plaintiffs and Exhibit 1 for the defendant Pascuala and Exhibit 7 for Carponia Ebrado; 3) that during the lifetime of Buenaventura Ebrado, he was living with his common-wife, Carponia Ebrado, with whom she had 2 children although he was not legally separated from his legal wife; 4) that Buenaventura in accident on October 21, 1969 as evidenced by the death Exhibit 3 and affidavit of the police report of his death Exhibit 5; 5) that complainant Carponia Ebrado filed claim with the Insular Life Assurance Co. which was contested by Pascuala Ebrado who also filed claim for the proceeds of said policy 6) that in view ofthe adverse claims the insurance company filed this action against the two herein claimants Carponia and Pascuala Ebrado; 7) that there is now due from the Insular Life Assurance Co. as proceeds of the policy P11,745.73; 8) that the beneficiary designated by the insured in the policy is Carponia Ebrado and the insured made reservation to change the beneficiary but although the insured made the option to change the beneficiary, same was never changed up to the time of his death and the wife did not have any opportunity to write the company that there was reservation to change the designation of the parties agreed that a decision be rendered based on and stipulation of facts as to who among the two claimants is entitled to the policy.

Upon motion of the parties, they are given ten (10) days to file their simultaneous memoranda from the receipt of this order.

SO ORDERED.

On September 25, 1972, the trial court rendered judgment declaring among others, Carponia T. Ebrado disqualified from becoming beneficiary of the insured Buenaventura Cristor Ebrado and directing the payment of the insurance proceeds to the estate of the deceased insured. The trial court held: +.wph!1

It is patent from the last paragraph of Art. 739 of the Civil Code that a criminal conviction for adultery or concubinage is not essential in order to establish the disqualification mentioned therein. Neither is it also necessary that a finding of such guilt or commission of those acts be made in a separate independent action brought for the purpose. The guilt of the donee (beneficiary) may be proved by preponderance of evidence in the same proceeding (the action brought to declare the nullity of the donation).

It is, however, essential that such adultery or concubinage exists at the time defendant Carponia T. Ebrado was made beneficiary in the policy in question for the disqualification and incapacity to exist and that it is only necessary that such fact be established by preponderance of evidence in the trial. Since it is agreed in their stipulation above-quoted that the deceased insured and defendant Carponia T. Ebrado were living together as husband and wife without being legally married and that the marriage of the insured with the other defendant Pascuala Vda. de Ebrado was valid and still existing at the time the insurance in question was purchased there is no question that defendant Carponia T. Ebrado is disqualified from becoming the beneficiary of the policy in question and as such she is not entitled to the proceeds of the insurance upon the death of the insured.

From this judgment, Carponia T. Ebrado appealed to the Court of Appeals, but on July 11, 1976, the Appellate Court certified the case to Us as involving only questions of law.

We affirm the judgment of the lower court.

1. It is quite unfortunate that the Insurance Act (RA 2327, as amended) or even the new Insurance Code (PD No. 612, as amended) does not contain any specific provision grossly resolutory of the prime question at hand. Section 50 of the Insurance Act which provides that "(t)he insurance shag be applied exclusively to the proper interest of the person in whose name it is made" 1 cannot be validly seized upon to hold that the mm includes the beneficiary. The word "interest" highly suggests that the provision refers only to the "insured" and not to the beneficiary, since a contract of insurance is personal in character. 2 Otherwise, the prohibitory laws against illicit relationships especially on property and descent will be rendered nugatory, as the same could easily be circumvented by modes of insurance. Rather, the general rules of civil law should be applied to resolve this void in the Insurance Law. Article 2011 of the New Civil Code states: "The contract of insurance is governed by special laws. Matters not expressly provided for in such special laws shall be regulated by this Code." When not otherwise specifically provided for by the Insurance Law, the contract of life insurance is governed by the general rules of the civil law regulating contracts. 3 And under Article 2012 of the same Code, "any person who is forbidden from receiving any donation under Article 739 cannot be named beneficiary of a fife insurance policy by the person who cannot make a donation to him. 4 Common-law spouses are, definitely, barred from receiving donations from each other. Article 739 of the new Civil Code provides: +.wph!1

The following donations shall be void:

1. Those made between persons who were guilty of adultery or concubinage at the time of donation;

Those made between persons found guilty of the same criminal offense, in consideration thereof;

3. Those made to a public officer or his wife, descendants or ascendants by reason of his office.

In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donee may be proved by preponderance of evidence in the same action.

2. In essence, a life insurance policy is no different from a civil donation insofar as the beneficiary is concerned. Both are founded upon the same consideration: liberality. A beneficiary is like a donee, because from the premiums of the policy which the insured pays out of liberality, the beneficiary will receive the proceeds or profits of said insurance. As a consequence, the proscription in Article 739 of the new Civil Code should equally operate in life insurance contracts. The mandate of Article 2012 cannot be laid aside: any person who cannot receive a donation cannot be named as beneficiary in the life insurance policy of the person who cannot make the donation. 5 Under American law, a policy of life insurance is considered as a testament and in construing it, the courts will, so far as possible treat it as a will and determine the effect of a clause designating the beneficiary by rules under which wins are interpreted. 6

3. Policy considerations and dictates of morality rightly justify the institution of a barrier between common law spouses in record to Property relations since such hip ultimately encroaches upon the nuptial and filial rights of the legitimate family There is every reason to hold that the bar in donations between legitimate spouses and those between illegitimate ones should be enforced in life insurance policies since the same are based on similar consideration As above pointed out, a beneficiary in a fife insurance policy is no different from a

donee. Both are recipients of pure beneficence. So long as manage remains the threshold of family laws, reason and morality dictate that the impediments imposed upon married couple should likewise be imposed upon extra-marital relationship. If legitimate relationship is circumscribed by these legal disabilities, with more reason should an illicit relationship be restricted by these disabilities. Thus, in Matabuena v. Cervantes, 7 this Court, through Justice Fernando, said: +.wph!1

If the policy of the law is, in the language of the opinion of the then Justice J.B.L. Reyes of that court (Court of Appeals), 'to prohibit donations in favor of the other consort and his descendants because of and undue and improper pressure and influence upon the donor, a prejudice deeply rooted in our ancient law;" por-que no se enganen desponjandose el uno al otro por amor que han de consuno' (According to) the Partidas (Part IV, Tit. XI, LAW IV), reiterating the rationale 'No Mutuato amore invicem spoliarentur' the Pandects (Bk, 24, Titl. 1, De donat, inter virum et uxorem); then there is very reason to apply the same prohibitive policy to persons living together as husband and wife without the benefit of nuptials. For it is not to be doubted that assent to such irregular connection for thirty years bespeaks greater influence of one party over the other, so that the danger that the law seeks to avoid is correspondingly increased. Moreover, as already pointed out by Ulpian (in his lib. 32 ad Sabinum, fr. 1), 'it would not be just that such donations should subsist, lest the condition 6f those who incurred guilt should turn out to be better.' So long as marriage remains the cornerstone of our family law, reason and morality alike demand that the disabilities attached to marriage should likewise attach to concubinage.

It is hardly necessary to add that even in the absence of the above pronouncement, any other conclusion cannot stand the test of scrutiny. It would be to indict the frame of the Civil Code for a failure to apply a laudable rule to a situation which in its essentials cannot be distinguished. Moreover, if it is at all to be differentiated the policy of the law which embodies a

deeply rooted notion of what is just and what is right would be nullified if such irregular relationship instead of being visited with disabilities would be attended with benefits. Certainly a legal norm should not be susceptible to such a reproach. If there is every any occasion where the principle of statutory construction that what is within the spirit of the law is as much a part of it as what is written, this is it. Otherwise the basic purpose discernible in such codal provision would not be attained. Whatever omission may be apparent in an interpretation purely literal of the language used must be remedied by an adherence to its avowed objective.

4. We do not think that a conviction for adultery or concubinage is exacted before the disabilities mentioned in Article 739 may effectuate. More specifically, with record to the disability on "persons who were guilty of adultery or concubinage at the time of the donation," Article 739 itself provides: +.wph!1

In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilty of the donee may be proved by preponderance of evidence in the same action.

The underscored clause neatly conveys that no criminal conviction for the offense is a condition precedent. In fact, it cannot even be from the aforequoted provision that a prosecution is needed. On the contrary, the law plainly states that the guilt of the party may be proved "in the same acting for declaration of nullity of donation. And, it would be sufficient if evidence preponderates upon the guilt of the consort for the offense indicated. The quantum of proof in criminal cases is not demanded.

In the caw before Us, the requisite proof of common-law relationship between the insured and the beneficiary has been

conveniently supplied by the stipulations between the parties in the pre-trial conference of the case. It case agreed upon and stipulated therein that the deceased insured Buenaventura C. Ebrado was married to Pascuala Ebrado with whom she has six legitimate children; that during his lifetime, the deceased insured was living with his common-law wife, Carponia Ebrado, with whom he has two children. These stipulations are nothing less than judicial admissions which, as a consequence, no longer require proof and cannot be contradicted. 8 A fortiori, on the basis of these admissions, a judgment may be validly rendered without going through the rigors of a trial for the sole purpose of proving the illicit liaison between the insured and the beneficiary. In fact, in that pretrial, the parties even agreed "that a decision be rendered based on this agreement and stipulation of facts as to who among the two claimants is entitled to the policy."

ACCORDINGLY, the appealed judgment of the lower court is hereby affirmed. Carponia T. Ebrado is hereby declared disqualified to be the beneficiary of the late Buenaventura C. Ebrado in his life insurance policy. As a consequence, the proceeds of the policy are hereby held payable to the estate of the deceased insured. Costs against Carponia T. Ebrado.

SO ORDERED.

Teehankee (Chairman), Makasiar, Mu;oz Palma, Fernandez and Guerrero, JJ., concur.1wph1.t

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 117472

June 25, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEO ECHEGARAY y PILO, accused-appellant.

PER CURIAM:p

Amidst the endless debates on whether or not the reimposition of the death penalty is indeed a deterrent as far as the commission of heinous crimes is concerned and while the attendant details pertaining to the execution of a death sentence remain as yet another burning issue, we are tasked with providing a clear-cut resolution of whether or not the herein accused-appellant deserves to forfeit his place in human society for the infliction of the primitive and bestial act of incestuous lust on his own blood.

Before us for automatic review is the judgment of conviction, dated September 7, 1994, for the crime of Rape, rendered after marathon hearing by the Regional Trial Court of Quezon City, Branch 104, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered finding accused LEO ECHEGARAY Y PILO guilty beyond reasonable doubt of the crime of RAPE as charged in the complaint, aggravated by the fact that the same was commited by the accused who is the father/stepfather of the complainant, he is hereby sentenced to suffer the penalty of DEATH, as provided for under RA. No. 7659, to pay the complainant Rodessa Echegaray the sum of P50,000.00 as damages, plus all the accessory penalties provided by law, without subsidiary imprisonment in case of insolvency, and to pay the costs. 1

We note, however, that the charge had been formulated in this manner:

C O M P L A I N T

The undersigned accuses LEO ECHEGARAY Y PILO of the crime of RAPE, committed as follows:

That on or about the month of April 1994, in Quezon City, Philippines, the above-named accused, by means of force and intimidation did then and there wilfully, unlawfully and feloniously have carnal knowledge of the undersigned complainant, his daughter, a minor, 10 years of age, all against her will and without her consent, to her damage and prejudice.

CONTRARY TO LAW 2

Upon being arraigned on August 1, 1994, the accused-appellant, assisted by his counsel de oficio, entered the plea of "not guilty."

These are the pertinent facts of the case as summarized by the Solicitor-General in his brief:

This is a case of rape by the father of his ten-year old daughter.

Complainant RODESSA ECHEGARAY is a ten-year old girl and a fifth-grader, born on September 11, 1983. Rodessa is the eldest of five siblings. She has three brothers aged 6, 5 and 2, respectively, and a 3-month old baby sister. Her parents are Rosalie and Leo Echegaray, the latter being the accusedappellant himself. The victim lives with her family in a small house located at No. 199 Fernandez St., Barangay San Antonio, San Francisco Del Monte, Quezon City (pp. 5-9, Aug. 9, 1994, TSN).

Sometime in the afternoon of April 1994, while Rodessa was looking after her three brothers in their house as her mother attended a gambling session in another place, she heard her father, the accused-appellant in this case, order her brothers to go out of the house (pp. 10-11, ibid). As soon as her brothers left, accused-appellant Leo Echegaray approached Rodessa and suddenly dragged her inside the room (p. 12, ibid). Before she could question the appellant, the latter immediately, removed her panty and made her lie on the floor (p. 13, ibid). Thereafter, appellant likewise removed his underwear and immediately placed himself on top of Rodessa. Subsequently, appellant forcefully inserted his penis into Rodessa's organ causing her to suffer intense pain (pp. 14-15, ibid). While appellant was pumping on her, he even uttered. "Masarap ba,

masarap ba?" and to which Rodessa answered: "Tama na Papa, masakit" (p. 16, ibid). Rodessa's plea proved futile as appellant continued with his act. After satisfying his bestial instinct, appellant threatened to kill her mother if she would divulge what had happened. Scared that her mother would be killed by appellant, Rodessa kept to herself the ordeal she suffered. She was very afraid of appellant because the latter, most of the time, was high on drugs (pp. 17-18, ibid.). The same sexual assault happened up to the fifth time and this usually took place when her mother was out of the house (p. 19, ibid.). However, after the fifth time, Rodessa decided to inform her grandmother, Asuncion Rivera, who in turn told Rosalie, Radessa's mother. Rodessa and her mother proceeded to the Barangay Captain where Rodessa confided the sexual assaults she suffered. Thereafter, Rodessa was brought to the precinct where she executed an affidavit (p. 21, ibid.). From there, she was accompanied to the Philippine National Police Crime Laboratory for medical examination (p. 22, ibid.).

Rodessa testified that the said sexual assaults happened only during the time when her mother was pregnant. Rodessa added that at first, her mother was on her side. However, when appellant was detained, her mother kept on telling her. "Kawawa naman ang Tatay mo, nakakulong" (pp. 39-40, ibid.).

When Rodessa was examined by the medico-legal officer in the person of Dra. Ma. Cristina B. Preyna, 3 the complainant was described as physically on a non-virgin state, as evidenced by the presence of laceration of the hymen of said complainant (TSN, Aug. 22, 1995, pp. 8-9). 4

On the other hand, the accused-appellant's brief presents a different story:

. . . the defense presented its first witness, Rosalie Echegaray. She asserted that the RAPE charge against the accused

was only the figment of her mothers dirty mind. That her daughter's complaint was forced upon her by her grandma and the answers in the sworn statement of Rodessa were coached. That the accusation of RAPE was motivated by Rodessa's grandmother's greed over the lot situated at the Madrigal Estate-NHA Project, Barangay San Antonio, San Francisco del Monte, Quezon City, which her grandmother's paramour, Conrado Alfonso gave to the accused in order to persuade the latter to admit that Rodessa executed an affidavit of desistance after it turned out that her complaint of attempted homicide was substituted with the crime of RAPE at the instance of her mother. That when her mother came to know about the affidavit of desistance, she placed her granddaughter under the custody of the Barangay Captain. That her mother was never a real mother to her.

She stated that her complaint against accused was for attempted homicide as her husband poured alcohol on her body and attempted to burn her. She identified the certification issued by the NHA and Tag No. 87-0393 (Exh. 2). That the Certification based on the Masterlist (Exh. 3) indicates that the property is co-owned by accused and Conrado Alfonso. That Rodessa is her daughter sired by Conrado Alfonso, the latter being the paramour of her mother. That Conrado Alfonso waived his right and participation over the lot in favor of the accused in consideration of the latter's accepting the fact that he is the father of Rodessa to simulate the love triangle and to conceal the nauseating sex orgies from Conrado Alfonso's real wife.

Accused testified in his behalf and stated that the grandmother of the complainant has a very strong motive in implicating him to the crime of RAPE since she was interested to become the sole owner of a property awarded to her live-in partner by the Madrigal Estate-NHA Project. That he could not have committed the imputed crime because he considers Rodessa as his own daughter. That he is a painter-contractor and on the date of the alleged commission of the crime, he was painting the house of one Divina Ang of Barangay Vitalis, Paraaque, Metro Manila (Exh. 4). The travel time between his work place to his residence is three (3) hours considering the condition of

traffic. That the painting contract is evidenced by a document denominated "Contract of Services" duly accomplished (see submarkings of Exh. 4). He asserted that he has a big sexual organ which when used to a girl 11 years old like Rodessa, the said female organ will be "mawawarak." That it is abnormal to report the imputed commission of the crime to the grandmother of the victim.

Accused further stated that her (sic) mother-in-law trumped-up a charge of drug pushing earlier and he pleaded guilty to a lesser offense of using drugs. The decretal portion of the judgment of conviction ordering the accused to be confined at the Bicutan Rehabilitation Center irked the grandmother of Rodessa because it was her wish that accused should be meted the death penalty.

Accused remain steadfast in his testimony perorating the strong motive of Rodessa's grandmother in implicating him in this heinous crime because of her greed to become the sole owner of that piece of property at the National Housing AuthorityMadrigal Project, situated at San Francisco del Monte, Quezon City, notwithstanding rigid cross-examination. He asserted that the imputed offense is far from his mind considering that he treated Rodessa as his own daughter. He categorically testified that he was in his painting job site on the date and time of the alleged commission of the crime.

Mrs. Punzalan was presented as third defense witness. She said that she is the laundry woman and part time baby sitter of the family of accused. That at one time, she saw Rodessa reading sex books and the Bulgar newspaper. That while hanging washed clothes on the vacant lot, she saw Rodessa masturbating by tinkering her private parts. The masturbation took sometime.

This sexual fling of Rodessa were corroborated by Silvestra Echegaray, the fourth and last witness for the defense. She stated that she tried hard to correct the flirting tendency of

Rodessa and that she scolded her when she saw Rodessa viewing an X-rated tape. Rodessa according to her was fond of going with friends of ill-repute. That (sic) she corroborated the testimony of Mrs. Punzalan by stating that she herself saw Rodessa masturbating inside the room of her house. 5

In finding the accused-appellant guilty beyond reasonable doubt of the crime of rape, the lower court dismissed the defense of alibi and lent credence to the straightforward testimony of the ten-year old victim to whom no ill motive to testify falsely against accused-appellant can be attributed. The lower court likewise regarded as inconsequential the defense of the accusedappellant that the extraordinary size of his penis could not have insinuated itself into the victim's vagina and that the accused is not the real father of the said victim.

The accused-appellant now reiterates his position in his attempt to seek a reversal of the lower court's verdict through the following assignment of errors:

1. THE LOWER COURT FAILED TO APPRECIATE THE SINISTER MOTIVE OF PRIVATE COMPLAINANT'S GRANDMOTHER? THAT PRECIPITATED THE FILING OF THE CHARGE OF RAPE, HENCE IT ERRED IN HOLDING ACCUSED GUILTY AS CHARGED.

2. THE COURT BELOW OVERLOOKED THE FACT THAT THE HEALED LACERATIONS AT 3 AND 7 O'CLOCK COULD NOT HAVE BEEN DUE TO THE PUMPING OF THE PENIS OF ACCUSED TO THE VAGINA OF PRIVATE COMPLAINANT, HENCE IT ERRED IN HOLDING THAT ACCUSED COMMITTED THE CRIME CHARGED, NOTWITHSTANDING VEHEMENT DENIAL.

3. THE COURT A QUO WHIMSICALLY IGNORED THE DEFENSE OF ALIBI THAT ACCUSED WAS IN PARAAQUE ON THE DATE AND TIME OF THE IMPUTED CRIME HENCE, IT ERRED IN HOLDING THAT ALIBI IS NOT SUSTAINABLE IN THE CASE AT BAR. 6

Considering that a rape charge, in the light of the reimposition of the death penalty, requires a thorough and judicious examination of the circumstances relating thereto, this Court remains guided by the following principles in evaluating evidence in cases of this nature: (a) An accusation for rape can be made with facility; it is difficult to prove but more difficult for the accused though innocent to disprove; (b) In view of the intrinsic nature of the crime of rape where only two persons are involved, the testimony of the complainant must be scrutinized with extreme caution; and (c) The evidence for the prosecution must stand and fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense. 7

Anent the first assigned error, no amount of persuasion can convince this Court to tilt the scales of justice in favor of the accused-appellant notwithstanding that he cries foul insisting that the rape charge was merely concocted and strongly motivated by greed over a certain lot situated at the NHAMadrigal Estate Housing Project, Barangay San Antonio, San Francisco del Monte, Quezon City. The accused-appellant theorizes that prosecution witness Asuncion Rivera, the maternal grandmother of the victim Rodessa, concocted the charge of rape so that, in the event that the accused-appellant shall be meted out a death sentence, title to the lot will be consolidated in her favor. Indeed, the lot in question is co-owned by the accused-appellant and Conrado Alfonso, the live-in partner of Asuncion Rivera, according to the records of the National Housing Authority (Exh. "3"). The accused-appellant would want us to believe that the rape charge was fabricated by Asuncion Rivera in order to eliminate the accused-appellant from being a co-owner. So, the live-in partners would have the property for their own. 8

We believe, as did the Solicitor-General, that no grandmother would be so callous as to instigate her 10-year old

granddaughter to file a rape case against her own father simply on account of her alleged interest over the disputed lot. 9

It is a well-entrenched jurisprudential rule that the testimony of a rape victim is credible where she has no motive to testify against the accused. 10

We find no flaws material enough to discredit the testimony of the ten-year old Rodessa which the trial court found convincing enough and unrebutted by the defense. The trial court not surprisingly noted that Rodessa's narration in detail of her father's monstrous acts had made her cry. 11 Once again, we rule that:

. . . The testimony of the victim who was only 12 years old at the time of the rape as to the circumstances of the rape must be given weight, for testimony of young and immature rape victims are credible (People v. Guibao, 217 SCRA 64 [1993]). No woman especially one of tender age, practically only a girl, would concoct a story of defloration, allow an examination of her private parts and thereafter expose herself to a public trial, if she were not motivated solely by the desire to have the culprit apprehended and punished (People v. Guibao, supra). 12

The accused-appellant points out certain inconsistencies in the testimonies of the prosecution witnesses in his attempt to bolster his claim that the rape accusation against him is malicious and baseless. Firstly, Rodessa's testimony that the accused-appellant was already naked when he dragged her inside the room is inconsistent with her subsequent testimony that the said accused-appellant was still wearing short pants when she was dragged inside the room. Secondly, Rodessa's sworn statement before the police investigator which indicated that, while the accused was executing pumping acts, he uttered the words "Masarap ba?", differ from her testimony in court wherein she related that, when the accused took out his penis from her

vagina, the accused said "Masarap, tapos na." Thirdly, the victim's grandmother, Asuncion Rivera, recounted in her sworn statement that it was the accused who went to see her to apprise her of the rape committed on her granddaughter. However, in her testimony in court , Asuncion Rivera claimed that she was the one who invited the accused-appellant to see her in her house so as to tell her a secret. 13 These alleged discrepancies merely pertain to minor details which in no way pose serious doubt as to the credibility of the prosecution witnesses. Whether or not the accused was naked when he dragged Rodessa inside the room where he sexually assaulted her bears no significant effect on Rodessa's testimony that she was actually raped by the accusedappellant. Moreover, a conflicting account of whatever words were uttered by the accused-appellant after he forcefully inserted his penis into Rodessa's private organ against her will cannot impair the prosecution's evidence as a whole. A determination of which version earmarks the truth as to how the victim's grandmother learned about the rape is inconsequential to the judgment of conviction.

As we have pronounced in the case of People v. Jaymalin: 14

This Court has stated time and again that minor inconsistencies in the narration of the witness do not detract from its essential credibility as long as it is on the whole coherent and intrinsically believable. Inaccuracies may in fact suggest that the witness is telling the truth and has not been rehearsed as it is not to he expected that he will be able to remember every single detail of an incident with perfect or total recall.

After due deliberation, this Court finds that the trial judge's assessment of the credibility of the prosecution witnesses deserves our utmost respect in the absence of arbitrariness.

With respect to the second assigned error, the records of the instant case are bereft of clear and concrete proof of the

accused-appellant's claim as to the size of his penis and that if that be the fact, it could not have merely caused shallow healed lacerations at 3:00 and 7:00 o'clock. 15 In his testimony, the accused-appellant stated that he could not have raped Rodessa because of the size of his penis which could have ruptured her vagina had he actually done so. 16 This Court gives no probative value on the accused-appellant's self-serving statement in the light of our ruling in the case of People v. Melivo, supra, 17 that:

The vaginal wall and the hymenal membrane are elastic organs capable of varying degrees of distensibility. The degree of distensibility of the female reproductive organ is normally limited only by the character and size of the pelvic inlet, other factors being minor. The female reprodructive canal being capable of allowing passage of a regular fetus, there ought to be no difficulty allowing the entry of objects of much lesser size, including the male reproductive organ, which even in its largest dimensions, would still be considerably smaller than the full-term fetus.

xxx

xxx

xxx

In the case at bench, the presence of healed lacerations in various parts of he vaginal wall, though not as extensive as appellant might have expected them to be, indicate traumatic injury to the area within the period when the incidents were supposed to have occurred. (At pp. 13-14, emphasis supplied)

In rape cases, a broken hymen is not an essential element thereof. 18 A mere knocking at the doors of the pudenda, so to speak, by the accused's penis suffices to constitute the crime of rape as full entry into the victim's vagina is not required to sustain a conviction. 19 In the case, Dr. Freyra, the medicolegal examiner, categorically testified that the healed

lacerations of Rodessa on her vagina were consistent with the date of the commission of the rape as narrated by the victim to have taken place in April, 1994. 20

Lastly, the third assigned error deserves scant consideration. The accused-appellant erroneously argues that the Contract of Services (Exhibit 4) offered as evidence in support of the accused-appellant's defense of alibi need not be corroborated because there is no law expressly requiring so. 21 In view of our finding that the prosecution witnesses have no motive to falsely testify against the accused-appellant, the defense of alibi, in this case, uncorroborated by other witnesses, should be completely disregarded. 22 More importantly, the defense of alibi which is inherently weak becomes even weaker in the face of positive identification of the accused-appellant as perpetrator of the crime of rape by his victim, Rodessa. 23

The Contract of Services whereby the accused-appellant obligated himself to do some painting job at the house of one Divina Ang in Paraaque, Metro Manila, within 25 days from April 4, 1994, is not proof of the whereabouts of the accused-appellant at the time of the commission of the offense.

The accused-appellant in this case is charged with Statutory Rape on the basis of the complaint, dated July 14, 1994. The gravamen of the said offense, as stated in paragraph 3, Article 335 of the Revised Penal Code, is the carnal knowledge of a woman below twelve years old. 24 Rodessa positively identified his father accused-appellant, as the culprit of Statutory Rape. Her account of how the accused-appellant succeeded in consummating his grievous and odious sexual assault on her is free from any substantial self-contradiction. It is highly inconceivable that it is rehearsed and fabricated upon instructions from Rodessa's maternal grandmother Asuncion Rivera as asserted by the accused-appellant. The words of Chief Justice Enrique M. Fernando, speaking for the Court, more than two decades ago, are relevant and worth reiterating, thus:

. . . it is manifest in the decisions of this Court that where the offended parties are young and immature girls like the victim in this case, (Cited cases omitted) there is marked receptivity on its, part to tend credence to their version of what transpired. It is not to be wondered at. The state, as parens patria, is under the obligation to minimize the risk of harm to those, who, because of their minority, are as yet unable to take care of themselves fully. Those of tender years deserve its utmost protection. Moreover, the injury in cases of rape is not inflicted on the unfortunate victim alone. The consternation it causes her family must also be taken into account It may reflect a failure to abide by the announced concern in the fundamental law for such institution There is all the more reason then for the rigorous application of the penal law with its severe penalty for this offense, whenever warranted. It has been aptly remarked that with the advance in civilization, the disruption in public peace and order it represents defies explanation, much more so in view of what currently appears to be a tendency for sexual permissiveness. Where the prospects of relationship based on consent are hardly minimal, self-restraint should even be more marked. 25

Under Section 11 of Republic Act No. 7659 often referred to as the Death Penalty Law, Art. 335 of the Revised Penal Code was amended, to wit:

The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:

1. When the victim is under eigthteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.

xxx

xxx

xxx

(Emphasis supplied)

Apparently, as a last glimpse of hope, the accused-appellant questions the penalty imposed by the trial court by declaring that he is neither a father, stepfather or grandfather of Rodessa although he was a confirmed lover of Rodessa's mother. 26 On direct examination, he admitted that before the charge of rape was riled against him, he had treated Rodessa as his real daughter and had provided for her food, clothing, shelter and education. 27 The Court notes that Rodessa uses the surname of the accused-appellant, not Rivera (her mother's maiden name) nor Alfonso (her grandmother's live-in partner). Moreover, Rodessa's mother stated during the cross-examination that she, the accused-appellant, and her five children, including Rodessa, had been residing in one house only. 28 At any rate, even if he were not the father, stepfather or grandfather of Rodessa, this disclaimer cannot save him from the abyss where perpetrators of heinous crimes ought to be, as mandated by law. Considering that the accused-appellant is a confirmed lover of Rodessa's mother, 29 he falls squarely within the aforequoted portion of the Death Penalty Law under the term "common-law spouse of the parent of the victim."

The fact that the ten-year old Rodessa referred to the accusedappellant as "Papa" is reason enough to conclude that accusedappellant is either the father or stepfather of Rodessa. Thus, the act of sexual assault perpetrated by the accused on his young victim has become all the more repulsive and perverse. The victim's tender age and the accused-appellant's moral ascendancy and influence over her are factors which forced Rodessa to succumb to the accused's selfish and bestial craving. The law has made it inevitable under the circumstances of this case that the accused-appellant face the supreme penalty of death. WHEREFORE, we AFFIRM the decision of the Regional Trial Court of Quezon City, Branch 104.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur.

Republic of the Philippines SUPREME COURT Manila

EN BANC

DECISION

July 31, 1936

G.R. No. L-44896 RODOLFO A. SCHNECKENBURGER, petitioner, vs. MANUEL V. MORAN, Judge of First Instance of Manila, respondent.

Cardenas and Casal for petitioner. Office of the Solicitor-General Hilado for respondent.

Abad Santos (Jose), J.:

The petitioner was duly accredited honorary consul of Uruguay at Manila, Philippine Islands on June 11, 1934. He was subsequently charged in the Court of First Instance of Manila with the crime of falsification of a private document. He objected to the jurisdiction of the court on the ground that both under the Constitution of the United States and the Constitution of the Philippines the court below had no jurisdiction to try him. His objection having been overruled, he filed this petition for a

writ of prohibition with a view to preventing the Court of First Instance of Manila from taking cognizance of the criminal action filed against him.

In support of this petition counsel for the petitioner contend (1) That the Court of First Instance of Manila is without jurisdiction to try the case filed against the petitioner for the reason that under Article III, section 2, of the Constitution of the United States, the Supreme Court of the United States has original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, and such jurisdiction excludes the courts of the Philippines; and (2) that even under the Constitution of the Philippines original jurisdiction over cases affecting ambassadors, other public ministers, and consuls, is conferred exclusively upon the Supreme Court of the Philippines.

This case involves no question of diplomatic immunity. It is well settled that a consul is not entitled to the privileges and immunities of an ambassador or minister, but is subject to the laws and regulations of the country to which he is accredited. (Ex parte Baiz, 135 U. S., 403; 34 Law. ed., 222.) A consul is not exempt from criminal prosecution for violations of the laws of the country where he resides. (U. S. vs. Ravara, 2 Dall., 297; 1 Law. ed., 388; Wheatons International Law [2d ed.], 423.) The substantial question raised in this case is one of jurisdiction.

1. We find no merit in the contention that Article III, section 2, of the Constitution of the United States governs this case. We do not deem it necessary to discuss the question whether the constitutional provision relied upon by the petitioner extended ex propio vigore over the Philippines. Suffice it to say that the inauguration of the Philippine Commonwealth on November 15, 1935, has brought about a fundamental change in the political and legal status of the Philippines. On the date mentioned the Constitution of the Philippines went into full force and effect.

This Constitution is the supreme law of the land. Not only the members of this court but all other officers, legislative, executive and judicial, of the Government of the Commonwealth, are bound by oath to support the Constitution. (Article XIII, section 2.) This court owes its own existence to the great instrument, and derives all its powers therefrom. In the exercise of its powers and jurisdiction, this court is bound by the provisions of the Constitution. The Constitution provides that the original jurisdiction of this court shall include all cases affecting ambassadors, other public ministers, and consuls. In deciding the instant case this court cannot go beyond this constitutional provision.

2. It remains to consider whether the original jurisdiction thus conferred upon this court by the Constitution over cases affecting ambassadors, other public ministers, and consuls, is exclusive. The Constitution does not define the jurisdiction of this court in specific terms, but merely provides that the Supreme Court shall have such original and appellate jurisdiction as may be possessed and exercised by the Supreme Court of the Philippine Islands at the time of the adoption of this Constitution. It then goes on to provide that the original jurisdiction of this court shall include all cases affecting ambassadors, other public ministers, and consuls.

In the light of the constitutional provisions above adverted to, the question arises whether the original jurisdiction possessed and exercised by the Supreme Court of the Philippine Islands at the time of the adoption of the Constitution was exclusive.

The original jurisdiction possessed and exercised by the Supreme Court of the Philippine Islands at the time of the adoption of the Constitution was derived from section 17 of Act No. 136, which reads as follows: The Supreme Court shall have original jurisdiction to issue writs of mandamus, certiorari, prohibition, habeas corpus, and quo warranto in the cases and in the manner prescribed in the Code of Civil Procedure, and to

hear and determine the controversies thus brought before it, and in other cases provided by law. Jurisdiction to issue writs of quo warranto, certiorari, mandamus, prohibition, and habeas corpus was also conferred on the Courts of First Instance by the Code of Civil Procedure. (Act No. 190, secs. 197, 217, 222, 226, and 525.) It results that the original jurisdiction possessed and exercised by the Supreme Court of the Philippine Islands at the time of the adoption of the Constitution was not exclusive of, but concurrent with, that of the Courts of First Instance. Inasmuch as this is the same original jurisdiction vested in this court by the Constitution and made to include all cases affecting ambassadors, other public ministers, and consuls, it follows that the jurisdiction of this court over such cases is not exclusive.

The conclusion we have reached upon this branch of the case finds support in the pertinent decisions of the Supreme Court of the United States. The Constitution of the United States provides that the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls. In construing this constitutional provision, the Supreme Court of the United States held that the original jurisdiction thus conferred upon the Supreme Court by the Constitution was not exclusive jurisdiction, and that such grant of original jurisdiction did not prevent Congress from conferring original jurisdiction in cases affecting consuls on the subordinate courts of the Union. (U. S. vs. Ravara, supra; Bors vs. Preston, 111 U. S., 252; 28 Law. ed., 419.)

3. The laws in force in the Philippines prior to the inauguration of the Commonwealth conferred upon the Courts of the First Instance original jurisdiction in all criminal cases to which a penalty of more than six months imprisonment or a fine exceeding one hundred dollars might be imposed. (Act No. 136, sec. 56.) Such jurisdiction included the trial of criminal actions brought against consuls for, as we have already indicated, consuls, not being entitled to the privileges and immunities of ambassadors or ministers, are subject to the laws and regulations of the country where they reside. By Article XV,

section 2, of the Constitution, all laws of the Philippine Islands in force at the time of the adoption of the Constitution were to continue in force until the inauguration of the Commonwealth; thereafter, they were to remain operative, unless inconsistent with the Constitution until amended, altered, modified, or repealed by the National Assembly. The original jurisdiction granted to the Courts of First Instance to try criminal cases was not made exclusively by any, law in force prior to the inauguration of the Commonwealth, and having reached the conclusion that the jurisdiction conferred upon this court by the Constitution over cases affecting ambassadors, other public ministers, and consuls, is not an exclusive jurisdiction, the laws in force at the time of the adoption of the Constitution, granting the Courts of First Instance jurisdiction in such cases, are not inconsistent with the Constitution, and must be deemed to remain operative and in force, subject to the power of the National Assembly to amend alter, modify, or repeal the same. (Asiatic P. Co. vs. Insular Collector of Customs, U. S. Supreme Court [Law. ed.], Adv. Ops., vol. 80, No. 12, pp. 620, 623.)

We conclude, therefore, that the Court of First Instance of Manila has jurisdiction to try the petitioner, an that the petition for a writ of prohibition must be denied. So ordered.

Avancea, C. J., Villa-Real, Imperial, Diaz, and Recto, JJ., concur.

Separate Opinions

LAUREL, J., concurring:

In my humble opinion, there are three reasons why the jurisdiction of this court over the petitioner in the instant case is concurrent and not exclusive. The strictly legal reason

is set forth in the preceding illuminating opinion. The other reasons are (a) historical and based on what I consider is the (b) theory upon which the grant of legislative authority under our Constitution is predicated.

(a) As the provision in our Constitution regarding jurisdiction in cases affecting ambassadors, other public ministers, and consuls, has been taken from the Constitution of the United States, considerable light would be gained by an examination of the history and interpretation thereof in the United States.

The fifth resolution of the New Jersey plan (Paterson resolutions of June 15, 1787) gave the Supreme Court of the United States, the only national court under the plan, authority to hear and determine by way of appeal, in the dernier resort . . . all cases touching the rights of ambassadors . . . . This clause, however, was not approved. On July 18, the Convention of 1787 voted an extraordinarily broad jurisdiction to the Supreme Court extending to cases arising under laws passed by the general legislature, and to such other questions as involve the national peace and harmony. This general proposition was considerably narrowed by Randolph in his draft of May 29 which, however, did not mention anything about ambassadors, other public ministers and consuls. But the Committee of Detail, through Rutledge, reported on August 6 as follows: Article XI, Section 3. The jurisdiction of the Supreme Court shall extend . . . to all cases affecting ambassadors, other public ministers and consuls; . . . In . . . cases affecting ambassadors, other public ministers and consuls, . . . this jurisdiction shall be original . . . .On September 12, the Committee on Style reported the provision as follows: Article III, Section 2. The judicial power shall extend . . . to all cases affecting ambassadors, other public ministers and consuls . . . In (all) cases affecting ambassadors, other public ministers and consuls . . . the Supreme Court shall have original jurisdiction. This provision was approved in the convention with hardly any amendment or debate and is now found in clause 2, section 2 of Article III of the Constitution of the United States. (The Constitution and the Courts, Article on Growth of the

Constitution, by William M. Meigs, New York, 1924, vol. 1, pp. 228, 229. See also Farrand, Records of the Federal Convention of 1787, Yale University Press, 1934, 3 vols.; Warren, The Making of the Constitution, Boston, 1928, pp. 534-537.)

The word original, however, was early interpreted as not exclusive. Two years after the adoption of the Federal Constitution, or in 1789, the First Judiciary Act (Act of September 24, 1789, 1 Stat., c. 20, 687) was approved by the first Congress creating the United States District and Circuit Courts which were nisi prius courts, or courts of first instance which dealt with different items of litigation. The district courts are now the only federal courts of first instance, the circuit courts having been abolished by the Act of March 3, 1911, otherwise known as the Judicial Code. The Judiciary Act of 1787 invested the district courts with jurisdiction, exclusively of the courts of the several states, of all suits against consuls or vice-consuls and the Supreme Court of the United States with original but not exclusive jurisdiction of all suits in which a consul or vice-consul shall be a party. By the passage of the Act of February 18, 1875 (18 Stat., 470, c. 137), the clause giving the federal courts exclusive jurisdiction was repealed and, since then state courts have had concurrent jurisdiction with the federal courts over civil or criminal proceedings against a consul or vice-consul. At the present time, the federal courts exercise exclusive jurisdiction of suits or proceedings against ambassadors or other or other public ministers, or their domestics or domestic servants, as a court of law can have consistently with the law of nations; and original, but not exclusive, jurisdiction, of all suits brought by ambassadors or other public ministers, or in which a consul or vice-consul is a party. (Act of March 8, 1911, 36 Stat., 1156, reenacting sec. 687 of the Act of September 24, 1789; 28 U. S. C. A., sec. 341; Hopkins Federal Judicial Code, 4th ed., by Babbit, 1934, sec. 233.) The district courts now have original jurisdiction of all suits against consuls and viceconsuls. (Act of March 3, 1911, 36 Stat., 1093; 28 U. S. C. A., sec. 41, subsec. 18; Hopkins Federal Judicial Code, 4th ed., by Babbit, 1934, sec. 24, par. 18.)

The Judiciary Act of 1789 was one of the early and most satisfactory acts passed by the Congress of the United States. It has remained essentially unchanged for more than 145 years. It was prepared chiefly by Oliver Ellsworth of Connecticut (1 Ann. Cong., 18, April 7, 1789) one of the ablest jurists in the Constitutional Convention, who was later Chief Justice of the Supreme Court of the United States (1796-1800). It is interesting to note that 10 of the 18 senators and 8 of the members of the House of the first Congress had been among the 55 delegates who actually attended the Convention that adopted the federal Constitution (Warren, Congress, the Constitution and the Supreme Court [Boston, 1935], p. 99). When, therefore, the first Congress approved the Judiciary Act of 1789 vesting in the Supreme Court original but not exclusive jurisdiction of all suits in which a consul or a vice-consul shall be a party, express legislative interpretation as to the meaning of the word original as not being exclusive was definitely made and this interpretation has never been repudiated. As stated by the Supreme Court of the United States in Ames vs. Kansas ([1884], 111 U. S., 449; 4 S. Ct., 437; 28 Law. ed., 482):

In view of the practical construction put on this provision of the Constitution by Congress, at the very moment of the organization of the government, and of the significant fact that, from 1789 until now, no court of the United States has ever in its actual adjudications determined to the contrary, we are unable to say that it is not within the power of Congress to grant to the inferior courts of the United States jurisdiction in cases where the Supreme Court has been vested by the Constitution with original jurisdiction. It rests with the legislative department of the government to say to what extent such grants shall be made, and it may safely be assumed that nothing will ever be done to encroach upon the high privileges of those for whose protection the constitutional provision was intended. At any rate, we are unwilling to say that the power to make the grant does not exist.

Dicta in some earlier cases seem to hold that the word original means exclusive and as observed by Justice Field in United States vs. Louisiana ([1887], 123 U. S., 36; 8 S. Ct., 17; 31 Law. ed., 69), the question has given rise to some differences of opinion among the earlier members of the Supreme Court of the United States. (See, for instance, dissenting opinion of Iredell, J., in U. S. vs. Ravara [1793], 2 Dall., 297; 1 Law. ed., 388.) Reliance was had on more or less general expressions made by Chief Justice Marshall in the case of Marbury vs. Madison ([1803], 1 Cranch, 137; 2 Law. ed., 60), where it was said:

If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance. But Chief Justice Marshall who penned the decision in this case in 1803 had occasion later, in 1821, to explain the meaning and extent of the pronouncements made in the Marbury case. He said:

In the case of Marbury vs. Madison ([1803], 1 Cranch [U. S.], 137, 172; 2 Law. ed., 60), the single question before the court, so far as that case can be applied to this, was, whether the legislature could give this court original jurisdiction in a case in which the Constitution had clearly not given it, and in which no doubt respecting the construction of the article could possibly be raised. The court decided, and we think very properly, that the legislature could not give original jurisdiction in such a case. But, in the reasoning of the court in support of this decision, some expressions are used which go far beyond it. The counsel for Marbury had insisted on the unlimited discretion of the legislature in the apportionment of the judicial power; and it is against this argument that the reasoning of the court is directed. They say that, if such had been the intention of the article, it would certainly have been useless to proceed farther than to define the judicial power, and the tribunals in which it should be vested. The court says,

that such a construction would render the clause, dividing the jurisdiction of the court into original and appellate, totally useless; that affirmative words are often, in their operation, negative of other objects than those which are affirmed; and, in this case (in the case of Marbury vs. Madison), a negative or exclusive sense must be given to them, or they have no operation at all. It cannot be presumed, adds the court, that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it. The whole reasoning of the court proceeds upon the idea that the affirmative words of the clause giving one sort of jurisdiction, must imply a negative of any other sort of jurisdiction, because otherwise the words would be totally inoperative, and this reasoning is advanced in a case to which it was strictly applicable. If in that case original jurisdiction could have been exercised, the clause under consideration would have been entirely useless. Having such cases only in its view, the court lays down a principle which is generally correct, in terms much broader than the decision, and not only much broader than the reasoning with which that decision is supported, but in some instances contradictory to its principle. The reasoning sustains the negative operation of the words in that case, because otherwise the clause would have no meaning whatever, and because such operation was necessary to give effect to the intention of the article. The effort now made is, to apply the conclusion to which the court was conducted by that reasoning in the particular case, to one in which the words have their full operation when understood affirmatively, and in which the negative, or exclusive sense, is to be so used as to defeat some of the great objects of the article. To this construction the court cannot give its assent. The general expressions in the case of Marbury vs. Madison must be understood with the limitations which are given to them in this opinion; limitations which in no degree affect the decision in that case, or the tenor of its reasoning. (Cohens vs. Virginia [1821], 6 Wheat., 264, 400; 5 Law. ed., 257.)

What the Supreme Court in the case of Marbury vs. Madison held then was that Congress could not extend its original jurisdiction beyond the cases expressly mentioned in the

Constitution, the rule of construction being that affirmative words of the Constitution declaring in what cases the Supreme Court shall have original jurisdiction must be construed negatively as to all other cases. (See Ex parte Vallandigham [1864], 1 Wall., 243, 252; 17 Law. ed., 589; Martin vs. Hunters Lessee [1816], 1 Wheat., 305, 330; 4 Law. ed., 97; U. S. vs. Haynes [D. C. Mass., 1887], 29 Fed., 691, 696.) That was all.

It should be observed that Chief Justice Marshall concurred in the opinion in the case of Davis vs. Packard (11833], 7 Pet., 276; 8 Law. ed., 684). In this case the jurisdiction of the state court of New York over a civil suit against a foreign consul was denied solely on the ground that jurisdiction had been conferred in such a case upon the district courts of the United States exclusively of the state courts. Such a ground, says Justice Harlan in Bors vs. Preston ([1884], 111 U. S., 252; 4 S. Ct., 407; 28 Law. ed., 419), would probably not have been given had it been believed that the grant of original jurisdiction to the Supreme Court deprived Congress of the power to confer concurrent original jurisdiction in such cases upon subordinate courts of the Union, concluding that the decision in the case may be regarded, as an affirmance of the constitutionality of the Act of 1789, giving original jurisdiction in such cases, also, to District Courts of the United States. Of the seven justices who concurred in the judgment in the case of Davis, five participated in the decision of Osborn vs. Bank of the United States ([1824], 9 Wheat., 738; 6 Law. ed., 204), also penned by Chief Justice Marshall and relied upon as authority together with Marbury vs. Madison, supra.

The rule enunciated in Bors vs. Preston, supra, is the one followed in the United States. The question involved in that case was whether the Circuit Court then existing had jurisdiction under the Constitution and laws of the United States to hear and determine any suit whatever against the consul of a foreign government. Justice Harlan said:

The Constitution declares that The judicial power of the United States shall extend . . . to all cases affecting ambassadors or other public ministers and consuls; to controversies between citizens of a state and foreign citizens or subjects; that In all cases affecting ambassadors, other public ministers and consuls, . . . the Supreme Court shall have original jurisdiction; and that in all other cases previously mentioned in the same clause The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. The Judiciary Act of 1789 invested the District Courts of the United States with jurisdiction, exclusively of the courts of the several States, of all suits against consuls or vice-consuls, except for offenses of a certain character; this court, with Original, but not exclusive, jurisdiction of all suits . . . in which a consul or vice-consul shall be a party; and the circuit courts with jurisdiction of civil suits in which an alien is a party. (l Stat. at L., 76-80.) In this act we have an affirmance, by the first Congress many of whose members participated in the Convention which adopted the Constitution and were, therefore, conversant with the purposes of its framers of the principle that the original jurisdiction of this court of cases in which a consul or vice-consul is a party, is not necessarily exclusive, and that the subordinate courts of the Union may be invested with jurisdiction of cases affecting such representatives of foreign governments. On a question of constitutional construction, this fact is entitled to great weight.

In this case of Bors, Justice Harlan adopted the view entertained by Chief Justice Taney in the earlier case of Gittings vs. Crawford (C. C. Md., 1838; Taneys Dec., 1, 10). In that case of Gittings, it was held that neither public policy nor convenience would justify the Supreme Court in implying that Congress is prohibited from giving original jurisdiction in cases affecting consuls to the inferior judicial tribunals of the United States. Chief Justice Taney said:

If the arrangement and classification of the subjects of jurisdiction into appellate and original, as respects the Supreme Court, do not exclude that tribunal from appellate power in the cases where original jurisdiction is granted, can it be right, from the same clause, to imply words of exclusion as respects other courts whose jurisdiction is not there limited or prescribed, but left for the future regulation of Congress? The true rule in this case is, I think, the rule which is constantly applied to ordinary acts of legislation, in which the grant of jurisdiction over a certain subject-matter to one court, does not, of itself, imply that that jurisdiction is to be exclusive. In the clause in question, there is nothing but mere affirmative words of grant, and none that import a design to exclude the subordinate jurisdiction of other courts of the United States on the same subject-matter. (See also U.S. vs. Ravara [1793], 2 Dall., 297; 1 Law. ed., 388; United States vs. Louisiana [1887], 123 U. S., 36; 8 S. Ct., 17; 31 Law. ed., 69; Ex parte Baiz [1890],135 U. S., 403; 10 S. Ct., 854; 34 Law. ed., 222, denying writ of prohibition Hollander vs. Baiz [D. C. N. Y., 1890]; 41 Fed., 732; Iasigi vs. Van de Carr [1897], 166 U.S., 391; 17 S. Ct., 595; 41 Law. ed., 1045; Graham vs. Strucken [C. C. N. Y., 1857]; 4 Blatchf., 58; Lorway vs. Lousada [D. C. Mass., 1866]; Fed. Cas., No. 8517; St. Lukes Hospital vs. Barclay [C. C. N. Y., 1855]; 3 Blatchf., 259; State of Texas vs. Lewis [C. C. Tex., 1882], 14 Fed., 65; State of Alabama vs. Wolffe (C. C. Ala., 1883], 18 Fed., 836, 837; Pooley vs. Luco [D. C. Cal., 1896], 76 Fed., 146.)

It is interesting to note that in the case of St. Lukes Hospital vs. Barclay, supra, the jurisdiction of circuit courts exclusive of state courts over aliens, no exception being made as to those who were consuls, was maintained. (See 1 U. S. Stat. at L., c. 20, sec. 11, pp. 78, 79.)

From the history of, and the judicial interpretation placed on, clause 2, section 2 of Article III of the Constitution of the United States it seems clear that the word original in reference to the jurisdiction of Supreme Court of the United States over cases affecting ambassadors, other public ministers

and consuls, was never intended to be exclusive as to prevent the Congress from vesting concurrent jurisdiction over cases affecting consuls and vice-consuls in other federal courts.

It should be observed that the Philadelphia Convention of 1787 placed cases affecting the official representatives of foreign powers under the jurisdiction of Federal Supreme Court to prevent the public peace from being jeopardized. Since improper treatment of foreign ambassadors, other public ministers and consuls may be a casus belli, it was thought that the federal government, which is responsible for their treatment under international law, should itself be provided with the means to meet the demands imposed by international duty. (Tucker, The Constitution of the United States [1899], vol. II, 760, 772; vide, The Federalist, No. LXXXI, Ashleys Reprint [1917], 415.) Bearing in mind in the distinction which international law establishes between ambassadors and other public ministers, on the one hand, and consuls and other commercial representatives, on the other, Congress saw it fit to provide in one case a rule different from the other, although as far as consuls and viceconsuls are concerned, the jurisdiction of the Federal Supreme Court, as already observed, though original is not exclusive. But in the United States, there are two judicial systems, independent one from the other, while in the Philippines there is but one judicial system. So that the reason in the United States for excluding certain courts the state courts from taking cognizance of cases against foreign representatives stationed in the United States does not obtain in the Philippines where the court of the lowest grade is as much a part of an integrated system as the highest court.

Let us now turn our own laws as they affect the case of the petitioner. Undoubtedly Philippine courts are not federal courts and they are not governed by the Judiciary Acts of the United States. We have a judicial system of our own, standing outside the sphere of the American federal system and possessing powers and exercising jurisdiction pursuant to the provisions of our own Constitution and laws.

The jurisdiction of our courts over consuls is defined and determined by our Constitution and laws which include applicable treaties and accepted rules of the laws of nations. There are no treaties between the United States and Uruguay exempting consuls of either country from the operation of local criminal laws. Under the generally accepted principles of international law, declared by our Constitution as part of the law of the nation (Art. II sec. 3, cl. 2), consuls and vice-consuls and other commercial representatives of foreign nations do not possess the status and can not claim the privilege and immunities accorded to ambassadors and ministers. (Wheaton, International Law, sec. 249; Kent, Commentaries, 44; Story on the Constitution, sec. 1660; Mathews, The American Constitutional System [1932], 204, 205; Gittings vs. Crawford, C. C. Md., 1838; Taneys Dec., 1; Wilcox vs. Luco, 118 Cal., 639; 45 Pac., 676; 2 C. J., 9 R. C. L., 161.) The only provisions touching the subject to which we may refer are those found in the Constitution of the Philippines. Let us trace the history of these provisions.

The report of the committee on the Judicial Power, submitted on September 29, 1934, did not contain any provisions regarding cases affecting ambassadors, other public ministers and consuls. The draft of the sub-committee of seven of the Sponsorship Committee, submitted on October 20, 1934, however, contains the following provision:

Article X, Section 2. The Supreme Court shall have such original jurisdiction as may be possessed and exercised by the present Supreme Court of the Philippine Islands at the time of the adoption of this Constitution, which jurisdiction shall include all cases affecting ambassadors, other foreign ministers and consuls . . . . The Special Committee on the Judiciary, composed principally of Delegates Vicente J. Francisco and Norberto Romualdez, included in its report the provisions which now appear in sections 2 and 3 of Article VIII of the Constitution. Section 2 provides:

The National Assembly shall have the power to define, prescribed, and apportion the jurisdiction of the various courts, but may not deprive the Supreme Court of its original jurisdiction over cases affecting ambassadors, other ministers and consuls . . . . And the second sentence of section 3 provides:

The original jurisdiction of the Supreme Court shall include all cases affecting ambassadors, other public ministers and consuls.

The provision in our Constitution in so far as it confers upon our Supreme Court original jurisdiction over cases affecting ambassadors, other public ministers and consuls is literally the same as that contained in clause 2, section 2 of Article III of the United States Constitution.

In the course of the deliberation of the Constitutional Convention, some doubt was expressed regarding the character of the grant of original jurisdiction to our Supreme Court. An examination of the records of the proceedings of the Constitutional convention show that the framers of our Constitution were familiar with the history of, and the judicial construction placed on, the same provision of the United States Constitution. In order to end what would have been a protracted discussion on the subject, a member of the Special Committee on the Judiciary gave the following information to the members of the Convention:

. . . Sr. Presidente, a fin de poder terminar con el Articulo 2, el Comite esta dispuesto a hacer constar que la interpretacion que debe dard a la ultima parte de dicho articulo es la misma interpretacion que siempre se ha dado a semejante disposicion en la Constitucion de los Estados Unidos. (January 16,1935.)

Without further discussion, the provision was then and there approved.

It thus appears that the provision in question has been given a well-settled meaning in the United States the country of its origin. It has there received definite and hitherto unaltered legislative and judicial interpretation. And the same meaning was ascribed to it when incorporated in our own Constitution. To paraphrase Justice Gray of the Supreme Court of the United States, we are justified in interpreting the provision of the Constitution in the light of the principles and history with which its framers were familiar. (United States vs. Wong Kin Ark [1897], 169 U. S., 649; 18 S. Ct., 456; 42 Law. ed., 890, cited with approval in Kepner vs. United States, a case of Philippine origin [1904]; 195 U. S., 100; 49 Law. ed., 114.)

(b) What has been said hereinabove is not unnecessary attachment to history or idolatrous adherence to precedents. In referring to the history of this provision of our Constitution it is realized that historical discussion while valuable is not necessarily decisive. Rationally, however, the philosophical reason for the conclusion announced is not far to seek if certain principles of constitutional government are borne in mind. The constitution is both a grant of, and a limitation upon, governmental powers. In the absence of clear and unequivocal restraint of legislative authority, the power is retained by the people and is exercisable by their representatives in their legislature. The rule is that the legislature possess plenary power for all purposes of civil government. A prohibition to exercise legislative power is the exception. (Denio, C. J., in People vs. Draper, 15 N.Y., 532, 543.) These prohibitions or restrictions are found either in the language used, or in the purpose held in view as well as the circumstances which led to the adoption of the particular provision as part of the fundamental law. (Ex parte Lewis, 45 Tex. Crim. Rep., 1; 73 S. W., 811; 108 Am. St. Rep., 929.)

Subject to certain limitations, the Filipino people, through their delegates, have committed legislative power in a most general way to the National Assembly has plenary legislative power in all matters of legislation except as limited by the constitution. When, therefore, the constitution vests in the Supreme Court original jurisdiction in cases affecting ambassadors, other public ministers and consuls, without specifying the exclusive character of the grant, the National Assembly is not deprived of its authority to make that jurisdiction concurrent. It has been said that popular government lives because of the inexhaustible reservoir of power behind. It is unquestionable that the mass of powers of government is vested in the representatives of the people, and that these representatives are no further restrained under our system than by the express language of the instrument imposing the restraint, or by particular provisions which, by clear intendment, have that effect. (Angara vs. Electoral Commission, p.139, ante.) What the Constitution prohibits is merely the deprivation of the Supreme Court of its original jurisdiction over cases affecting ambassadors, other public ministers and consuls and while it must be admitted that original jurisdiction if made concurrent no longer remains exclusive, it is also true that jurisdiction does not cease to be original merely because it is concurrent.

It is also quite true that concurrent original jurisdiction in this class of cases would mean the sharing of the Supreme Court with the most inferior courts of cases affecting ambassadors, other public ministers and consuls such that the Supreme Court would have concurrent jurisdiction with the lowest courts in our judicial hierarchy, the justice of the peace of the courts, in a petty case for the instance, the violation of a municipal ordinance affecting the parties just mentioned. However, no serious objection to these result can be seen other that the misinterpreted unwillingness to share this jurisdiction with a court pertaining to the lowest category in our judicial organization. Upon the other hand, the fundamental reasoning would apply with equal force if the highest court of the land is made to take recognizance exclusively of a case involving the violation of the municipal ordinance simply because of the

character of the parties affected. After that the position of consul of a foreign filled by a citizen of the United States the Philippines) Chief Justice Taney, in supra, observed:

alluding to the fact government is sometimes (and this also true in Gittings vs. Crawford,

It could hardly have been the intention of the statesmen who framed our constitution to require that one of our citizens who had a petty claim of even less than five dollars against another citizen, who had been clothed by some foreign government with the consular office, should be compelled to go into the Supreme Court to have a jury summoned in order to enable him to recover it; nor could it have been intended, that the time of that court, with all its high duties to perform, should be taken up with the trial of every petty offense that might be committed by a consul by any part of the United States; that consul, too, being often one of our own citizens.

Probably, the most serious objection to the interpretation herein advocated is, that considering the actual distribution of jurisdiction between the different courts in our jurisdiction, there may be cases where the Supreme Court may not actually exercise either original whether exclusive or concurrent or appellate jurisdiction, notwithstanding the grant of original jurisdiction in this class of cases to the Supreme Court. If, for instance, a criminal case is brought either in a justice of the peace court or in a Court of First Instance against a foreign consul and no question of law is involved, it is evident that in case of conviction, the proceedings will terminate in the Court Appeals and will not reach the Supreme Court. In this case, the Supreme Court will be deprived of all jurisdiction in a case affecting a consul notwithstanding the grant thereto in the Constitution of original jurisdiction in all cases affecting consuls. This is a situation, however, created not by the Constitution but by existing legislation, and the remedy is in the hands of the National Assembly. The Constitution cannot deal with every casus omissus, and in the nature of things, must only deal with fundamental principles, leaving the detail of administration and execution to the other branches of the

government. It rests with the National Assembly to determine the inferior courts which shall exercise concurrent original jurisdiction with the Supreme Court in cases affecting ambassadors, other public ministers and consuls, considering the nature of the offense and irrespective of the amount of controversy. The National Assembly may as in the United States (Cooley, Constitutional Law, 4th ed. [1931], sec. 4, p. 156), provide for appeal to the Supreme Court in all cases affecting foreign diplomatic and consular representatives.

Before the approval of the Constitution, jurisdiction over consuls was exercisable by our courts. This is more so now that the Independence Law and Constitution framed and adopted pursuant thereto are in force. The fact that the National Assembly has not enacted any law determining what courts of the of the Philippines shall exercise concurrent jurisdiction with the Supreme Court is of no moment. This can not mean and should not be interpreted to mean that the original jurisdiction vested in the Supreme Court by the Constitution is not concurrent with other national courts of inferior category.

The respondent judge of the Court of First Instance of the City of Manila having jurisdiction to take cognizance of the criminal case brought against the petitioner, the writ of prohibition should be denied.

Republic of the Philippines SUPREME COURT Manila

FIRST DIVISION

G.R. No. 125865

March 26, 2001

JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

R E S O L U T I O N

YNARES-SANTIAGO, J.:

This resolves petitioner's Motion for Reconsideration of our Decision dated January 28, 2000, denying the petition for review.

The Motion is anchored on the following arguments:

1) THE DFA'S DETERMINATION OF IMMUNITY IS A POLITICAL QUESTION TO BE MADE BY THE EXECUTIVE BRANCH OF THE GOVERNMENT AND IS CONCLUSIVE UPON THE COURTS.

2)

THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS ABSOLUTE.

3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN DEVELOPMENT BANK (ADB).

4) DUE PROCESS WAS FULLY AFFORDED THE COMPLAINANT TO REBUT THE DFA PROTOCOL.

5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY MADE A FINDING OF FACT ON THE MERITS, NAMELY, THE SLANDERING OF A PERSON WHICH PREJUDGED PETITIONER'S CASE BEFORE THE METROPOLITAN TRIAL COURT (MTC)-MANDALUYONG.

6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT APPLICABLE TO THIS CASE.

This case has its origin in two criminal Informations1 for grave oral defamation filed against petitioner, a Chinese national who was employed as an Economist by the Asian Development Bank (ADB), alleging that on separate occasions on January 28 and January 31, 1994, petitioner allegedly uttered defamatory words to Joyce V. Cabal, a member of the clerical staff of ADB. On April 13, 1994, the Metropolitan Trial Court of Mandaluyong City, acting pursuant to an advice from the Department of Foreign Affairs that petitioner enjoyed immunity from legal processes, dismissed the criminal Informations against him. On a petition for certiorari and mandamus filed by the People, the Regional Trial Court of Pasig City, Branch 160, annulled and set aside the order of the Metropolitan Trial Court dismissing the criminal cases.2

Petitioner, thus, brought a petition for review with this Court. On January 28, 2000, we rendered the assailed Decision denying the petition for review. We ruled, in essence, that the immunity granted to officers and staff of the ADB is not absolute; it is

limited to acts performed in an official capacity. Furthermore, we held that the immunity cannot cover the commission of a crime such as slander or oral defamation in the name of official duty.

On October 18, 2000, the oral arguments of the parties were heard. This Court also granted the Motion for Intervention of the Department of Foreign Affairs. Thereafter, the parties were directed to submit their respective memorandum.

For the most part, petitioner's Motion for Reconsideration deals with the diplomatic immunity of the ADB, its officials and staff, from legal and judicial processes in the Philippines, as well as the constitutional and political bases thereof. It should be made clear that nowhere in the assailed Decision is diplomatic immunity denied, even remotely. The issue in this case, rather, boils down to whether or not the statements allegedly made by petitioner were uttered while in the performance of his official functions, in order for this case to fall squarely under the provisions of Section 45 (a) of the "Agreement Between the Asian Development Bank and the Government of the Republic of the Philippines Regarding the Headquarters of the Asian Development Bank," to wit:

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.

After a careful deliberation of the arguments raised in petitioner's and intervenor's Motions for Reconsideration, we find no cogent reason to disturb our Decision of January 28, 2000. As we have stated therein, the slander of a person, by any

stretch, cannot be considered as falling within the purview of the immunity granted to ADB officers and personnel. Petitioner argues that the Decision had the effect of prejudging the criminal case for oral defamation against him. We wish to stress that it did not. What we merely stated therein is that slander, in general, cannot be considered as an act performed in an official capacity. The issue of whether or not petitioner's utterances constituted oral defamation is still for the trial court to determine.

WHEREFORE, in view of the foregoing, the Motions for Reconsideration filed by petitioner and intervenor Department of Foreign Affairs are DENIED with FINALITY.

SO ORDERED.

Kapunan and Pardo, JJ ., concur. Davide, Jr., C.J., I also join concurring opinion of Mr. Justice Puno. Puno, J., Please see concurring opinion.

Concurring Opinions

PUNO, J., concurring:

For resolution is the Motion for Reconsideration filed by petitioner Jeffrey Liang of this Court's decision dated January 28, 2000 which denied the petition for review. We there held that: the protocol communication of the Department of Foreign Affairs to the effect that petitioner Liang is covered by

immunity is only preliminary and has no binding effect in courts; the immunity provided for under Section 45(a) of the Headquarters Agreement is subject to the condition that the act be done in an "official capacity"; that slandering a person cannot be said to have been done in an "official capacity" and, hence, it is not covered by the immunity agreement; 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 agent in the receiving state outside his official functions; the commission of a crime is not part of official duty; and that a preliminary investigation is not a matter of right in cases cognizable by the Metropolitan Trial Court.

Petitioner's motion for reconsideration is anchored on the following arguments:

1. The DFA's determination of immunity is a political question to be made by the executive branch of the government and is conclusive upon the courts;

2.

The immunity of international organizations is absolute;

3. The immunity extends to all staff of the Asian Development Bank (ADB);

4. Due process was fully accorded the complainant to rebut the DFA protocol;

5. The decision of January 28, 2000 erroneously made a finding of fact on the merits, namely, the slandering of a person which

prejudged petitioner's case before the Metropolitan Trial Court (MTC) Mandaluyong; and

6. The Vienna Convention on diplomatic relations is not applicable to this case.

Petitioner contends that a determination of a person's diplomatic immunity by the Department of Foreign Affairs is a political question. It is solely within the prerogative of the executive department and is conclusive upon the courts. In support of his submission, petitioner cites the following cases: WHO vs. Aquino;1 International Catholic Migration Commission vs. Calleja;2 The Holy See vs. Rosario, Jr.;3 Lasco vs. United Nations;4 and DFA vs. NLRC.5

It is further contended that the immunity conferred under the ADB Charter and the Headquarters Agreement is absolute. It is designed to safeguard the autonomy and independence of international organizations against interference from any authority external to the organizations. It is necessary to allow such organizations to discharge their entrusted functions effectively. The only exception to this immunity is when there is an implied or express waiver or when the immunity is expressly limited by statute. The exception allegedly has no application to the case at bar.

Petitioner likewise urges that the international organization's immunity from local jurisdiction empowers the ADB alone to determine what constitutes "official acts" and the same cannot be subject to different interpretations by the member states. It asserts that the Headquarters Agreement provides for remedies to check abuses against the exercise of the immunity. Thus, Section 49 states that the "Bank shall waive the immunity accorded to any person if, in its opinion, such immunity would impede the course of justice and the waiver would not prejudice the purposes for which the immunities are accorded." Section 51

allows for consultation between the government and the Bank should the government consider that an abuse has occurred. The same section provides the mechanism for a dispute settlement regarding, among others, issues of interpretation or application of the agreement.

Petitioner's argument that a determination by the Department of Foreign Affairs that he is entitled to diplomatic immunity is a political question binding on the courts, is anchored on the ruling enunciated in the case of WHO, et al. vs. Aquino, et al.,6 viz:

"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 in this case, 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 the government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction."

This ruling was reiterated in the subsequent cases of International Catholic Migration Commission vs. Calleja;7 The Holy See vs. Rosario, Jr.;8 Lasco vs. UN;9 and DFA vs. NLRC.10

The case of WHO vs. Aquino involved the search and seizure of personal effects of petitioner Leonce Verstuyft, an official of the WHO. Verstuyft was certified to be entitled to diplomatic immunity pursuant to the Host Agreement executed between the Philippines and the WHO.

ICMC vs. Calleja concerned a petition for certification election filed against ICMC and IRRI. As international organizations, ICMC and IRRI were declared to possess diplomatic immunity. It was held that they are not subject to local jurisdictions. It was ruled that the exercise of jurisdiction by the Department of Labor over the case would defeat the very purpose of immunity, which is to shield the affairs of international organizations from political pressure or control by the host country and to ensure the unhampered performance of their functions.

Holy See v. Rosario, Jr. involved an action for annulment of sale of land against the Holy See, as represented by the Papal Nuncio. The Court upheld the petitioner's defense of sovereign immunity. It ruled that where a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory of the receiving state, which the envoy holds on behalf of the sending state for the purposes of the mission, with all the more reason should immunity be recognized as regards the sovereign itself, which in that case is the Holy See.

In Lasco vs. United Nations, the United Nations Revolving Fund for Natural Resources Exploration was sued before the NLRC for illegal dismissal. The Court again upheld the doctrine of diplomatic immunity invoked by the Fund.

Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian Development Bank. Pursuant to its Charter and

the Headquarters Agreement, the diplomatic immunity of the Asian Development Bank was recognized by the Court.

It bears to stress that all of these cases pertain to the diplomatic immunity enjoyed by international organizations. Petitioner asserts that he is entitled to the same diplomatic immunity and he cannot be prosecuted for acts allegedly done in the exercise of his official functions.

The term "international organizations"

"is generally used to describe an organization set up by agreement between two or more states. Under contemporary international law, such organizations are endowed with some degree of international legal personality such that they are capable of exercising specific rights, duties and powers. They are organized mainly as a means for conducting general international business in which the member states have an interest."11

International public officials have been defined as:

". . . persons who, on the basis of an international treaty constituting a particular international community, are appointed by this international community, or by an organ of it, and are under its control to exercise, in a continuous way, functions in the interest of this particular international community, and who are subject to a particular personal status."12

"Specialized agencies" are international organizations having functions in particular fields, such as posts, telecommunications, railways, canals, rivers, sea transport,

civil aviation, meteorology, atomic energy, finance, trade, education and culture, health and refugees.13

Issues

1. Whether petitioner Liang, as an official of an international organization, is entitled to diplomatic immunity;

2. Whether an international official is immune from criminal jurisdiction for all acts, whether private or official;

3. Whether the authority to determine if an act is official or private is lodged in the courts;

4. Whether the certification by the Department of Foreign Affairs that petitioner is covered by immunity is a political question that is binding and conclusive on the courts.

Discussion

A perusal of the immunities provisions in various international conventions and agreements will show that the nature and degree of immunities vary depending on who the recipient is. Thus:

1.

Charter of the United Nations

"Article 105 (1): The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes.

Article 105 (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."

2. Convention on the Privileges and Immunities of the United Nations

"Section 2: The United Nations, its 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 it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.

xxx xxx xxx

Section 11 (a): Representatives of Members to the principal and subsidiary organs of the United Nations . . shall . . . enjoy . . . immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind.

xxx xxx xxx

Section 14: Privileges and immunities are accorded to the representatives of Members not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in connection with the United Nations. Consequently, a Member not only has the right but is under a duty to waive the immunity of its representative in any case where in the opinion of the Member the immunity would impede the course of justice, and it can be waived without prejudice to the purpose for which the immunity is accorded.

xxx xxx xxx

Section 18 (a): Officials of the United Nations shall be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity.

xxx xxx xxx

Section 19: In addition to the immunities and privileges specified in Section 18, the Secretary-General and all Assistant Secretaries-General shall be accorded in respect of themselves, their spouses and minor children, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.

Section 20: Privileges and immunities are granted to officials in the interest of the United Nations and not for the personal benefit of the individuals themselves. The Secretary-General shall have the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations.

xxx xxx xxx

Section 22: Experts . . . performing missions for the United Nations . . . shall be accorded: (a) immunity from personal arrest or detention and from seizure of their personal baggage; (b) in respect of words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of every kind."

3.

Vienna Convention on Diplomatic Relations

"Article 29: The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom, or dignity.

xxx xxx xxx

Article 31 (1): A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in certain cases.

xxx xxx xxx

Article 38 (1): Except in so far as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently a resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions."

4.

Vienna Convention on Consular Relations

"Article 41 (1): Consular officials shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

xxx xxx xxx

Article 43 (1): Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.

Article 43 (2): The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil action either: (a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or (b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft."

5. Convention on the Privileges and Immunities of the Specialized Agencies

"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 in so far 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.

Section 13 (a): Representatives of members at meetings convened by a specialized agency shall, while exercising their functions and during their journeys to and from the place of meeting, enjoy immunity from personal arrest or detention and from seizure of their personal baggage, and in respect of words spoken or written and all acts done by them in their official capacity, immunity from legal process of every kind.

xxx xxx xxx

Section 19 (a): Officials of the specialized agencies shall be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity.

xxx xxx xxx

Section 21: In addition to the immunities and privileges specified in sections 19 and 20, the executive head of each specialized agency, including a any official acting on his behalf during his absence from duty, shall be accorded in respect of himself, his spouse and minor children, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law."

6.

Charter of the ADB

"Article 50 (1): The Bank shall enjoy immunity from every form of legal process, except in cases arising out of or in connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities, in which cases actions may be brought against the Bank in a court of competent jurisdiction in the territory of a

country in which the Bank has its principal or a branch office, or has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities.

xxx xxx xxx

Article 55 (i): All Governors, Directors, alternates, officers and employees of the Bank, including experts performing missions for the Bank shall be immune from legal process with respect to acts performed by them in their official capacity, except when the Bank waives the immunity."

7.

ADB Headquarters Agreement

"Section 5: The Bank shall enjoy immunity from every form of legal process, except in cases arising out of or in connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities, in which cases actions may be brought against the Bank in a court of competent jurisdiction in the Republic of the Philippines.

xxx xxx xxx

Section 44: 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: (a) immunity from personal arrest or detention and from seizure of their personal baggage; (b) immunity from legal process of every kind in respect of words spoken or written and all acts done by them in their official capacity; and (c) in respect of other

matters not covered in (a) and (b) above, such other immunities, exemptions, privileges and facilities as are enjoyed by members of diplomatic missions of comparable rank, subject to corresponding conditions and obligations.

Section 45 (a): Officers and staff of the Bank, including for the purposes of this Article experts and consultants performing missions for the Bank, shall enjoy . . . immunity from legal process with respect to acts performed by them in their official capacity, except when the Bank waives the immunity."

II

There are three major differences between diplomatic and international immunities. Firstly, one of the recognized limitations of diplomatic immunity is that members of the diplomatic staff of a mission may be appointed from among the nationals of the receiving State only with the express consent of that State; apart from inviolability and immunity from jurisdiction in respect of official acts performed in the exercise of their functions, nationals enjoy only such privileges and immunities as may be granted by the receiving State. International immunities may be specially important in relation to the State of which the official is a national. Secondly, the immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State; in the case of international immunities there is no sending State and an equivalent for the jurisdiction of the Sending State therefore has to be found either in waiver of immunity or in some international disciplinary or judicial procedure. Thirdly, the effective sanctions which secure respect for diplomatic immunity are the principle of reciprocity and the danger of retaliation by the aggrieved State; international immunities enjoy no similar protection.14

The generally accepted principles which are now regarded as the foundation of international immunities are contained in the ILO Memorandum, which reduced them in three basic propositions, namely: (1) that 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) that no country should derive any financial advantage by levying fiscal charges on common international funds; and (3) that the international organization should, as a collectivity of States Members, be accorded the facilities for the conduct of its official business customarily extended to each other by its individual member States. The thinking underlying these propositions is 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 responsibilities impartially on behalf of all their members.15

III

Positive international law has devised three methods of granting privileges and immunities to the personnel of international organizations. The first is by simple conventional stipulation, as was the case in the Hague Conventions of 1899 and 1907. The second is by internal legislation whereby the government of a state, upon whose territory the international organization is to carry out its functions, recognizes the international character of the organization and grants, by unilateral measures, certain privileges and immunities to better assure the successful functioning of the organization and its personnel. In this situation, treaty obligation for the state in question to grant concessions is lacking. Such was the case with the Central Commission of the Rhine at Strasbourg and the International Institute of Agriculture at Rome. The third is a combination of the first two. In this third method, one finds a conventional

obligation to recognize a certain status of an international organization and its personnel, but the status is described in broad and general terms. The specific definition and application of those general terms are determined by an accord between the organization itself and the state wherein it is located. This is the case with the League of Nations, the Permanent Court of Justice, and the United Nations.16

The Asian Development Bank and its Personnel fall under this third category.

There is a connection between diplomatic privileges and immunities and those extended to international officials. The connection consists in the granting, by contractual provisions, of the relatively well-established body of diplomatic privileges and immunities to international functionaries. This connection is purely historical. Both types of officials find the basis of their special status in the necessity of retaining functional independence and freedom from interference by the state of residence. However, the legal relationship between an ambassador and the state to which he is accredited is entirely different from the relationship between the international official and those states upon whose territory he might carry out his functions.17

The privileges and immunities of diplomats and those of international officials rest upon different legal foundations. Whereas those immunities awarded to diplomatic agents are a right of the sending state based on customary international law, those granted to international officials are based on treaty or conventional law. Customary international law places no obligation on a state to recognize a special status of an international official or to grant him jurisdictional immunities. Such an obligation can only result from specific treaty provisions.18

The special status of the diplomatic envoy is regulated by the principle of reciprocity by which a state is free to treat the envoy of another state as its envoys are treated by that state. The juridical basis of the diplomat's position is firmly established in customary international law. The diplomatic envoy is appointed by the sending State but it has to make certain that the agreement of the receiving State has been given for the person it proposes to accredit as head of the mission to that State.19

The staff personnel of an international organization the international officials assume a different position as regards their special status. They are appointed or elected to their position by the organization itself, or by a competent organ of it; they are responsible to the organization and their official acts are imputed to it. The juridical basis of their special position is found in conventional law,20 since there is no established basis of usage or custom in the case of the international official. Moreover, the relationship between an international organization and a member-state does not admit of the principle of reciprocity,21 for it is contradictory to the basic principle of equality of states. An international organization carries out functions in the interest of every member state equally. The international official does not carry out his functions in the interest of any state, but in serving the organization he serves, indirectly, each state equally. He cannot be, legally, the object of the operation of the principle of reciprocity between states under such circumstances. It is contrary to the principle of equality of states for one state member of an international organization to assert a capacity to extract special privileges for its nationals from other member states on the basis of a status awarded by it to an international organization. It is upon this principle of sovereign equality that international organizations are built.

It follows from this same legal circumstance that a state called upon to admit an official of an international organization does not have a capacity to declare him persona non grata.

The functions of the diplomat and those of the international official are quite different. Those of the diplomat are functions in the national interest. The task of the ambassador is to represent his state, and its specific interest, at the capital of another state. The functions of the international official are carried out in the international interest. He does not represent a state or the interest of any specific state. He does not usually "represent" the organization in the true sense of that term. His functions normally are administrative, although they may be judicial or executive, but they are rarely political or functions of representation, such as those of the diplomat.

There is a difference of degree as well as of kind. The interruption of the activities of a diplomatic agent is likely to produce serious harm to the purposes for which his immunities were granted. But the interruption of the activities of the international official does not, usually, cause serious dislocation of the functions of an international secretariat.22

On the other hand, they are similar in the sense that acts performed in an official capacity by either a diplomatic envoy or an international official are not attributable to him as an individual but are imputed to the entity he represents, the state in the case of the diplomat, and the organization in the case of the international official.23

IV

Looking back over 150 years of privileges and immunities granted to the personnel of international organizations, it is clear that they were accorded a wide scope of protection in the exercise of their functions The Rhine Treaty of 1804 between the German Empire and France which provided "all the rights of

neutrality" to persons employed in regulating navigation in the international interest; The Treaty of Berlin of 1878 which granted the European Commission of the Danube "complete independence of territorial authorities" in the exercise of its functions; The Covenant of the League which granted "diplomatic immunities and privileges." Today, the age of the United Nations finds the scope of protection narrowed. The current tendency is to reduce privileges and immunities of personnel of international organizations to a minimum. The tendency cannot be considered as a lowering of the standard but rather as a recognition that the problem on the privileges and immunities of international officials is new. The solution to the problem presented by the extension of diplomatic prerogatives to international functionaries lies in the general reduction of the special position of both types of agents in that the special status of each agent is granted in the interest of function. The wide grant of diplomatic prerogatives was curtailed because of practical necessity and because the proper functioning of the organization did not require such extensive immunity for its officials. While the current direction of the law seems to be to narrow the prerogatives of the personnel of international organizations, the reverse is true with respect to the prerogatives of the organizations themselves, considered as legal entities. Historically, states have been more generous in granting privileges and immunities to organizations than they have to the personnel of these organizations.24

Thus, Section 2 of the General Convention on the Privileges and Immunities of the United Nations states that the UN shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. Section 4 of the Convention on the Privileges and Immunities of the Specialized Agencies likewise provides that the specialized agencies shall enjoy immunity from every form of legal process subject to the same exception. Finally, Article 50(1) of the ADB Charter and Section 5 of the Headquarters Agreement similarly provide that the bank shall enjoy immunity from every form of legal process, except in cases arising out of or in connection with the exercise of its powers to borrow money, to guarantee

obligations, or to buy and sell or underwrite the sale of securities.

The phrase "immunity from every form of legal process" as used in the UN General Convention has been interpreted to mean absolute immunity from a state's jurisdiction to adjudicate or enforce its law by legal process, and it is said that states have not sought to restrict that immunity of the United Nations by interpretation or amendment. Similar provisions are contained in the Special Agencies Convention as well as in the ADB Charter and Headquarters Agreement. These organizations were accorded privileges and immunities in their charters by language similar to that applicable to the United Nations. It is clear therefore that these organizations were intended to have similar privileges and immunities.25 From this, it can be easily deduced that international organizations enjoy absolute immunity similar to the diplomatic prerogatives granted to diplomatic envoys.

Even in the United States this theory seems to be the prevailing rule. The Foreign Sovereign Immunities Act was passed adopting the "restrictive theory" limiting the immunity of states under international law essentially to activities of a kind not carried on by private persons. Then the International Organizations Immunities Act came into effect which gives to designated international organizations the same immunity from suit and every form of judicial process as is enjoyed by foreign governments. This gives the impression that the Foreign Sovereign Immunities Act has the effect of applying the restrictive theory also to international organizations generally. However, aside from the fact that there was no indication in its legislative history that Congress contemplated that result, and considering that the Convention on Privileges and Immunities of the United Nations exempts the United Nations "from every form of legal process," conflict with the United States obligations under the Convention was sought to be avoided by interpreting the Foreign Sovereign Immunities Act, and the restrictive theory, as not applying to suits against the United Nations.26

On the other hand, international officials are governed by a different rule. Section 18(a) of the General Convention on Privileges and Immunities of the United Nations states that officials of the United Nations shall be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity. The Convention on Specialized Agencies carries exactly the same provision. The Charter of the ADB provides under Article 55(i) that officers and employees of the bank shall be immune from legal process with respect to acts performed by them in their official capacity except when the Bank waives immunity. Section 45 (a) of the ADB Headquarters Agreement accords the same immunity to the officers and staff of the bank. There can be no dispute that international officials are entitled to immunity only with respect to acts performed in their official capacity, unlike international organizations which enjoy absolute immunity.

Clearly, the most important immunity to an international official, in the discharge of his international functions, is immunity from local jurisdiction. There is no argument in doctrine or practice with the principle that an international official is independent of the jurisdiction of the local authorities for his official acts. Those acts are not his, but are imputed to the organization, and without waiver the local courts cannot hold him liable for them. In strict law, it would seem that even the organization itself could have no right to waive an official's immunity for his official acts. This permits local authorities to assume jurisdiction over an individual for an act which is not, in the wider sense of the term, his act at all. It is the organization itself, as a juristic person, which should waive its own immunity and appear in court, not the individual, except insofar as he appears in the name of the organization. Provisions for immunity from jurisdiction for official acts appear, aside from the aforementioned treatises, in the constitution of most modern international organizations. The acceptance of the principle is sufficiently widespread to be regarded as declaratory of international law.27

What then is the status of the international official with respect to his private acts?

Section 18 (a) of the General Convention has been interpreted to mean that officials of the specified categories are denied immunity from local jurisdiction for acts of their private life and empowers local courts to assume jurisdiction in such cases without the necessity of waiver.28 It has earlier been mentioned that historically, international officials were granted diplomatic privileges and immunities and were thus considered immune for both private and official acts. In practice, this wide grant of diplomatic prerogatives was curtailed because of practical necessity and because the proper functioning of the organization did not require such extensive immunity for its officials. Thus, the current status of the law does not maintain that states grant jurisdictional immunity to international officials for acts of their private lives.29 This much is explicit from the Charter and Headquarters Agreement of the ADB which contain substantially similar provisions to that of the General Convention.

VI

Who is competent to determine whether a given act is private or official?

This is an entirely different question. In connection with this question, the current tendency to narrow the scope of privileges and immunities of international officials and representatives is most apparent. Prior to the regime of the United Nations, the determination of this question rested with the organization and its decision was final. By the new formula, the state itself tends to assume this competence. If the organization is

dissatisfied with the decision, under the provisions of the General Convention of the United States, or the Special Convention for Specialized Agencies, the Swiss Arrangement, and other current dominant instruments, it may appeal to an international tribunal by procedures outlined in those instruments. Thus, the state assumes this competence in the first instance. It means that, if a local court assumes jurisdiction over an act without the necessity of waiver from the organization, the determination of the nature of the act is made at the national level.30

It appears that the inclination is to place the competence to determine the nature of an act as private or official in the courts of the state concerned. That the prevalent notion seems to be to leave to the local courts determination of whether or not a given act is official or private does not necessarily mean that such determination is final. If the United Nations questions the decision of the Court, it may invoke proceedings for settlement of disputes between the organization and the member states as provided in Section 30 of the General Convention. Thus, the decision as to whether a given act is official or private is made by the national courts in the first instance, but it may be subjected to review in the international level if questioned by the United Nations.31

A similar view is taken by Kunz, who writes that the "jurisdiction of local courts without waiver for acts of private life empowers the local courts to determine whether a certain act is an official act or an act of private life," on the rationale that since the determination of such question, if left in the hands of the organization, would consist in the execution, or non-execution, of waiver, and since waiver is not mentioned in connection with the provision granting immunities to international officials, then the decision must rest with local courts.32

Under the Third Restatement of the Law, it is suggested that since an international official does not enjoy personal inviolability from arrest or detention and has immunity only with respect to official acts, he is subject to judicial or administrative process and must claim his immunity in the proceedings by showing that the act in question was an official act. Whether an act was performed in the individual's official capacity is a question for the court in which a proceeding is brought, but if the international organization disputes the court's finding, the dispute between the organization and the state of the forum is to be resolved by negotiation, by an agreed mode of settlement or by advisory opinion of the International Court of Justice.33

Recognizing the difficulty that by reason of the right of a national court to assume jurisdiction over private acts without a waiver of immunity, the determination of the official or private character of a particular act may pass from international to national control, Jenks proposes three ways of avoiding difficulty in the matter. The first would be for a municipal court before which a question of the official or private character of a particular act arose to accept as conclusive in the matter any claim by the international organization that the act was official in character, such a claim being regarded as equivalent to a governmental claim that a particular act is an act of State. Such a claim would be in effect a claim by the organization that the proceedings against the official were a violation of the jurisdictional immunity of the organization itself which is unqualified and therefore not subject to delimitation in the discretion of the municipal court. The second would be for a court to accept as conclusive in the matter a statement by the executive government of the country where the matter arises certifying the official character of the act. The third would be to have recourse to the procedure of international arbitration. Jenks opines that it is possible that none of these three solutions would be applicable in all cases; the first might be readily acceptable only in the clearest cases and the second is available only if the executive government of the country where the matter arises concurs in the view of the international organization concerning the official

character of the act. However, he surmises that taken in combination, these various possibilities may afford the elements of a solution to the problem.34

One final point. The international official's immunity for official acts may be likened to a consular official's immunity from arrest, detention, and criminal or civil process which is not absolute but applies only to acts or omissions in the performance of his official functions, in the absence of special agreement. Since a consular officer is not immune from all legal process, he must respond to any process and plead and prove immunity on the ground that the act or omission underlying the process was in the performance of his official functions. The issue has not been authoritatively determined, but apparently the burden is on the consular officer to prove his status as well as his exemption in the circumstances. In the United States, the US Department of State generally has left it to the courts to determine whether a particular act was within a consular officer's official duties.35

Submissions

On the bases of the foregoing disquisitions, I submit the following conclusions:

First, petitioner Liang, a bank official of ADB, is not entitled to diplomatic immunity and hence his immunity is not absolute.

Under the Vienna Convention on Diplomatic Relations, a diplomatic envoy is immune from criminal jurisdiction of the receiving State for all acts, whether private or official, and hence he cannot be arrested, prosecuted and punished for any offense he may commit, unless his diplomatic immunity is waived.36 On the other hand, officials of international organizations enjoy "functional" immunities, that is, only those

necessary for the exercise of the functions of the organization and the fulfillment of its purposes.37 This is the reason why the ADB Charter and Headquarters Agreement explicitly grant immunity from legal process to bank officers and employees only with respect to acts performed by them in their official capacity, except when the Bank waives immunity. In other words, officials and employees of the ADB are subject to the jurisdiction of the local courts for their private acts, notwithstanding the absence of a waiver of immunity.

Petitioner cannot also seek relief under the mantle of "immunity from every form of legal process" accorded to ADB as an international organization. The immunity of ADB is absolute whereas the immunity of its officials and employees is restricted only to official acts. This is in consonance with the current trend in international law which seeks to narrow the scope of protection and reduce the privileges and immunities granted to personnel of international organizations, while at the same time aims to increase the prerogatives of international organizations.

Second, considering that bank officials and employees are covered by immunity only for their official acts, the necessary inference is that the authority of the Department of Affairs, or even of the ADB for that matter, to certify that they are entitled to immunity is limited only to acts done in their official capacity. Stated otherwise, it is not within the power of the DFA, as the agency in charge of the executive department's foreign relations, nor the ADB, as the international organization vested with the right to waive immunity, to invoke immunity for private acts of bank officials and employees, since no such prerogative exists in the first place. If the immunity does not exist, there is nothing to certify.

As an aside, ADB cannot even claim to have the right to waive immunity for private acts of its officials and employees. The

Charter and the Headquarters Agreement are clear that the immunity can be waived only with respect to official acts because this is only the extent to which the privilege has been granted. One cannot waive the right to a privilege which has never been granted or acquired.

Third, I choose to adopt the view that it is the local courts which have jurisdiction to determine whether or not a given act is official or private. While there is a dearth of cases on the matter under Philippine jurisprudence, the issue is not entirely novel.

The case of M.H. Wylie, et al. vs. Rarang, et al.38 concerns the extent of immunity from suit of the officials of a United States Naval Base inside the Philippine territory. Although a motion to dismiss was filed by the defendants therein invoking their immunity from suit pursuant to the RP-US Military Bases Agreement, the trial court denied the same and, after trial, rendered a decision declaring that the defendants are not entitled to immunity because the latter acted beyond the scope of their official duties. The Court likewise applied the ruling enunciated in the case of Chavez vs. Sandiganbayan39 to the effect that a mere invocation of the immunity clause does not ipso facto result in the charges being automatically dropped. While it is true that the Chavez case involved a public official, the Court did not find any substantial reason why the same rule cannot be made to apply to a US official assigned at the US Naval Station located in the Philippines. In this case, it was the local courts which ascertained whether the acts complained of were done in an official or personal capacity.

In the case of The Holy See vs. Rosario, Jr.,40 a complaint for annulment of contract of sale, reconveyance, specific performance and damages was filed against petitioner. Petitioner moved to dismiss on the ground of, among others, lack of jurisdiction based on sovereign immunity from suit, which was denied by the trial court. A motion for reconsideration, and

subsequently, a "Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation for Claim of Immunity as a Jurisdictional Defense" were filed by petitioner. The trial court deferred resolution of said motions until after trial on the merits. On certiorari, the Court there ruled on the issue of petitioner's non-suability on the basis of the allegations made in the pleadings filed by the parties. This is an implicit recognition of the court's jurisdiction to ascertain the suability or non-suability of the sovereign by assessing the facts of the case. The Court hastened to add that when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court, in some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents through their private counsels, or where the foreign states bypass the Foreign Office, the courts can inquire into the facts and make their own determination as to the nature of the acts and transactions involved.

Finally, it appears from the records of this case that petitioner is a senior economist at ADB and as such he makes country project profiles which will help the bank in deciding whether to lend money or support a particular project to a particular country.41 Petitioner stands charged of grave slander for allegedly uttering defamatory remarks against his secretary, the private complainant herein. Considering that the immunity accorded to petitioner is limited only to acts performed in his official capacity, it becomes necessary to make a factual determination of whether or not the defamatory utterances were made pursuant and in relation to his official functions as a senior economist.

I vote to deny the motion for reconsideration.

Davide, Jr., C.J., concurs.