G.R. No.
L-409 January 30, 1947 supreme power which governs a body politic or society which
ANASTACIO LAUREL, petitioner,
vs.
ERIBERTO MISA, respondent.
In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the
Court, acting on the petition for habeas corpus filed by Anastacio
Laurel and based on a theory that a Filipino citizen who adhered
to the enemy giving the latter aid and comfort during the
Japanese occupation cannot be prosecuted for the crime of
treason defined and penalized by article 114 of the Revised Penal
Code, for the reason (1) that the sovereignty of the legitimate
government in the Philippines and, consequently, the correlative
allegiance of Filipino citizens thereto was then suspended; and
(2) that there was a change of sovereignty over these Islands
upon the proclamation of the Philippine Republic:
(1) Considering that a citizen or subject owes, not a qualified and
temporary, but an absolute and permanent allegiance, which
consists in the obligation of fidelity and obedience to his
government or sovereign; and that this absolute and permanent
allegiance should not be confused with the qualified and
temporary allegiance which a foreigner owes to the government
or sovereign of the territory wherein he resides, so long as he
remains there, in return for the protection he receives, and which
consists in the obedience to the laws of the government or
sovereign. (Carlisle vs. Unite States, 21 Law. ed., 429; Secretary
of State Webster Report to the President of the United States in
the case of Thraser, 6 Web. Works, 526);
Considering that the absolute and permanent allegiance of the
inhabitants of a territory occupied by the enemy of their legitimate
government or sovereign is not abrogated or severed by the
enemy occupation, because the sovereignty of the government or
sovereign de jure is not transferred thereby to the occupier, as we
have held in the cases of Co Kim Cham vs. Valdez Tan Keh and
Dizon (75 Phil., 113) and of Peralta vs. Director of Prisons (75
Phil., 285), and if it is not transferred to the occupant it must
necessarily remain vested in the legitimate government; that the
sovereignty vested in the titular government (which is the
constitute the state) must be distinguished from the exercise of
the rights inherent thereto, and may be destroyed, or severed and
transferred to another, but it cannot be suspended because the
existence of sovereignty cannot be suspended without putting it
out of existence or divesting the possessor thereof at least during
the so-called period of suspension; that what may be suspended
is the exercise of the rights of sovereignty with the control and
government of the territory occupied by the enemy passes
temporarily to the occupant; that the subsistence of the
sovereignty of the legitimate government in a territory occupied
by the military forces of the enemy during the war, "although the
former is in fact prevented from exercising the supremacy over
them" is one of the "rules of international law of our times"; (II
Oppenheim, 6th Lauterpacht ed., 1944, p. 482), recognized, by
necessary implication, in articles 23, 44, 45, and 52 of Hague
Regulation; and that, as a corollary of the conclusion that the
sovereignty itself is not suspended and subsists during the enemy
occupation, the allegiance of the inhabitants to their legitimate
government or sovereign subsists, and therefore there is no such
thing as suspended allegiance, the basic theory on which the
whole fabric of the petitioner's contention rests;
Considering that the conclusion that the sovereignty of the United
State was suspended in Castine, set forth in the decision in the
case of United States vs. Rice, 4 Wheaton, 246, 253, decided in
1819, and quoted in our decision in the cases of Co Kim Cham
vs. Valdez Tan Keh and Dizon and Peralta vs. Director of
Prisons, supra, in connection with the question, not of
sovereignty, but of the existence of a government de factotherein
and its power to promulgate rules and laws in the occupied
territory, must have been based, either on the theory adopted
subsequently in the Hague Convention of 1907, that the military
occupation of an enemy territory does not transfer the sovereignty
to the occupant; that, in the first case, the word "sovereignty"
used therein should be construed to mean the exercise of the
rights of sovereignty, because as this remains vested in the
legitimate government and is not transferred to the occupier, it
cannot be suspended without putting it out of existence or
divesting said government thereof; and that in the second case,
that is, if the said conclusion or doctrine refers to the suspension
of the sovereignty itself, it has become obsolete after the adoption
1
of the Hague Regulations in 1907, and therefore it cannot be
applied to the present case;
Considering that even adopting the words "temporarily
allegiance," repudiated by Oppenheim and other publicists, as
descriptive of the relations borne by the inhabitants of the territory
occupied by the enemy toward the military government
established over them, such allegiance may, at most, be
considered similar to the temporary allegiance which a foreigner
owes to the government or sovereign of the territory wherein he
resides in return for the protection he receives as above
described, and does not do away with the absolute and
permanent allegiance which the citizen residing in a foreign
country owes to his own government or sovereign; that just as a
citizen or subject of a government or sovereign may be
prosecuted for and convicted of treason committed in a foreign
country, in the same way an inhabitant of a territory occupied by
the military forces of the enemy may commit treason against his
own legitimate government or sovereign if he adheres to the
enemies of the latter by giving them aid and comfort; and that if
the allegiance of a citizen or subject to his government or
sovereign is nothing more than obedience to its laws in return for
the protection he receives, it would necessarily follow that a
citizen who resides in a foreign country or state would, on one
hand, ipso factoacquire the citizenship thereof since he has
enforce public order and regulate the social and commercial life,
in return for the protection he receives, and would, on the other
hand, lose his original citizenship, because he would not be
bound to obey most of the laws of his own government or
sovereign, and would not receive, while in a foreign country, the
protection he is entitled to in his own;
Considering that, as a corollary of the suspension of the exercise
of the rights of sovereignty by the legitimate government in the
territory occupied by the enemy military forces, because the
authority of the legitimate power to govern has passed into the
hands of the occupant (Article 43, Hague Regulations), the
political laws which prescribe the reciprocal rights, duties and
obligation of government and citizens, are suspended or in
abeyance during military occupation (Co Kim cham vs. Valdez
Tan Keh and dizon, supra), for the only reason that as they
exclusively bear relation to the ousted legitimate government,
they are inoperative or not applicable to the government
established by the occupant; that the crimes against national
security, such as treason and espionage; inciting to war,
correspondence with hostile country, flight to enemy's country, as
well as those against public order, such as rebellion, sedition, and
disloyalty, illegal possession of firearms, which are of political
complexion because they bear relation to, and are penalized by
our Revised Penal Code as crimes against the legitimate
government, are also suspended or become inapplicable as
against the occupant, because they can not be committed against
the latter (Peralta vs. Director of Prisons, supra); and that, while
the offenses against public order to be preserved by the
legitimate government were inapplicable as offenses against the
invader for the reason above stated, unless adopted by him, were
also inoperative as against the ousted government for the latter
was not responsible for the preservation of the public order in the
occupied territory, yet article 114 of the said Revised Penal Code,
was applicable to treason committed against the national security
of the legitimate government, because the inhabitants of the
occupied territory were still bound by their allegiance to the latter
during the enemy occupation;
Considering that, although the military occupant is enjoined to
respect or continue in force, unless absolutely prevented by the
circumstances, those laws that enforce public order and regulate
the social and commercial life of the country,****** LAWS THAT
ENFORCE PUBLIC ORDER AND REGULATE THE SOCIAL
AND COMMERCIAL LIFE OF THE COUNTRY ARE TO BE
CONTINUED AND RESPECTED BY THE MILITARY
OCCUPANT******he has, nevertheless, all the powers of de
facto government and may, at his pleasure, either change the
existing laws or make new ones when the exigencies of the
military service demand such action, that is, when it is necessary
for the occupier to do so for the control of the country and the
protection of his army, subject to the restrictions or limitations
imposed by the Hague Regulations, the usages established by
civilized nations, the laws of humanity and the requirements of
public conscience (Peralta vs.Director of Prisons, supra; 1940
United States Rules of Land Warfare 76, 77); and that,
consequently, all acts of the military occupant dictated within
these limitations are obligatory upon the inhabitants of the
territory, who are bound to obey them, and the laws of the
2
legitimate government which have not been adopted, as well and
those which, though continued in force, are in conflict with such
laws and orders of the occupier, shall be considered as
suspended or not in force and binding upon said inhabitants;
Considering that, since the preservation of the allegiance or the
obligation of fidelity and obedience of a citizen or subject to his
government or sovereign does not demand from him a positive
action, but only passive attitude or forbearance from adhering to
the enemy by giving the latter aid and comfort, the occupant has
no power, as a corollary of the preceding consideration, to repeal
or suspend the operation of the law of treason, essential for the
preservation of the allegiance owed by the inhabitants to their
legitimate government, or compel them to adhere and give aid
and comfort to him; because it is evident that such action is not
demanded by the exigencies of the military service or not
necessary for the control of the inhabitants and the safety and
protection of his army, and because it is tantamount to practically
transfer temporarily to the occupant their allegiance to the titular
government or sovereign; and that, therefore, if an inhabitant of
the occupied territory were compelled illegally by the military
occupant, through force, threat or intimidation, to give him aid and
comfort, the former may lawfully resist and die if necessary as a
hero, or submit thereto without becoming a traitor;
Considering that adoption of the petitioner's theory of suspended
allegiance would lead to disastrous consequences for small and
weak nations or states, and would be repugnant to the laws of
humanity and requirements of public conscience, for it would
allow invaders to legally recruit or enlist the Quisling inhabitants
of the occupied territory to fight against their own government
without the latter incurring the risk of being prosecuted for
treason, and even compel those who are not aid them in their
military operation against the resisting enemy forces in order to
completely subdue and conquer the whole nation, and thus
deprive them all of their own independence or sovereignty —
such theory would sanction the action of invaders in forcing the
people of a free and sovereign country to be a party in the
nefarious task of depriving themselves of their own freedom and
independence and repressing the exercise by them of their own
sovereignty; in other words, to commit a political suicide;
(2) Considering that the crime of treason against the government
of the Philippines defined and penalized in article 114 of the
Penal Code, though originally intended to be a crime against said
government as then organized by authority of the sovereign
people of the United States, exercised through their authorized
representative, the Congress and the President of the United
States, was made, upon the establishment of the Commonwealth
Government in 1935, a crime against the Government of the
Philippines established by authority of the people of the
Philippines, in whom the sovereignty resides according to section
1, Article II, of the Constitution of the Philippines, by virtue of the
provision of section 2, Article XVI thereof, which provides that "All
laws of the Philippine Islands . . . shall remain operative, unless
inconsistent with this Constitution . . . and all references in such
laws to the Government or officials of the Philippine Islands, shall
be construed, in so far as applicable, to refer to the Government
and corresponding officials under this constitution;
Considering that the Commonwealth of the Philippines was a
sovereign government, though not absolute but subject to certain
limitations imposed in the Independence Act and incorporated as
Ordinance appended to our Constitution, was recognized not only
by the Legislative Department or Congress of the United States in
approving the Independence Law above quoted and the
Constitution of the Philippines, which contains the declaration that
"Sovereignty resides in the people and all government authority
emanates from them" (section 1, Article II), but also by the
Executive Department of the United States; that the late
President Roosevelt in one of his messages to Congress said,
among others, "As I stated on August 12, 1943, the United States
in practice regards the Philippines as having now the status as a
government of other independent nations — in fact all the
attributes of complete and respected nationhood" (Congressional
Record, Vol. 29, part 6, page 8173); and that it is a principle
upheld by the Supreme Court of the United States in many cases,
among them in the case of Jones vs. United States (137 U.S.,
202; 34 Law. ed., 691, 696) that the question of sovereignty is "a
purely political question, the determination of which by the
legislative and executive departments of any government
conclusively binds the judges, as well as all other officers, citizens
and subjects of the country.
3
Considering that section I (1) of the Ordinance appended to the
Constitution which provides that pending the final and complete
withdrawal of the sovereignty of the United States "All citizens of
the Philippines shall owe allegiance to the United States", was
one of the few limitations of the sovereignty of the Filipino people
retained by the United States, but these limitations do not away or
are not inconsistent with said sovereignty, in the same way that
the people of each State of the Union preserves its own
sovereignty although limited by that of the United States
conferred upon the latter by the States; that just as to reason may
be committed against the Federal as well as against the State
Government, in the same way treason may have been committed
during the Japanese occupation against the sovereignty of the
United States as well as against the sovereignty of the Philippine
Commonwealth; and that the change of our form of government
from Commonwealth to Republic does not affect the prosecution
of those charged with the crime of treason committed during the
Commonwealth, because it is an offense against the same
government and the same sovereign people, for Article XVIII of
our Constitution provides that "The government established by
this constitution shall be known as the Commonwealth of the
Philippines. Upon the final and complete withdrawal of the
sovereignty of the United States and the proclamation of
Philippine independence, the Commonwealth of the Philippines
shall thenceforth be known as the Republic of the Philippines";

This Court resolves, without prejudice to write later on a more

extended opinion, to deny the petitioner's petition, as it is hereby
denied, for the reasons above set forth and for others to be stated
in the said opinion, without prejudice to concurring opinion
therein, if any. Messrs. Justices Paras and Hontiveros dissent in
a separate opinion. Mr. justice Perfecto concurs in a separate
opinion.

4
 G.R. No. L-533 August 20, 1946
RAMON RUFFY, ET AL., petitioners,
vs.
THE CHIEF OF STAFF, PHILIPPINE ARMY, ET AL., respondents.
This was a petition for prohibition, praying that the respondents, the Chief
of Staff and the General Court Martial of the Philippine Army, be
commanded to desist from further proceedings in the trial of petitioners
before that body. Preliminary injunction having been denied by us and the
General Court Martial having gone ahead with the trial, which eventually
resulted in the acquittal of one of the defendants, Ramon Ruffy, the
dismissal of the case as to another, Victoriano Dinglasan, and the
conviction of Jose L. Garcia, Prudente M. Francisco, Dominador Adeva
and Andres Fortus, the last-named four petitioners now seek in their
memorandum to convert the petition into one for certiorari, with the prayer
that the records of the proceedings before the General Court Martial be
ordered certified to this court for review.
The ground of the petition was that the petitioners were not subject to
military law at the time the offense for which they had been placed on trial
was committed. In their memorandum they have raised an additional
question of law — that the 93d Article of War is unconstitutional.
An outline of the petitioner's previous connection with the Philippine
Army, the Philippine Constabulary, and/or with guerrilla organizations will
presently be made. This outline is based on allegations in the petition and
the answer, and on exhibits attached thereto and to the parties'
memoranda, exhibits which were offered in the course of the oral
argument and admitted without objection. The said exhibits are public
documents certified by the officials who had them in custody in their
official capacity. They are presumed to be authentic, as we have no
doubt they are.
It appears that at the outbreak of war on December 8, 1941, Ramon
Ruffy was the Provincial Commander, Prudente M. Francisco, a junior
officer, and Andres Fortus, a corporal, all of the Philippine Constabulary
garrison stationed in Mindoro. When, on February 27, 1942, the
Japanese forces landed in Mindoro, Major Ruffy retreated to the
mountains instead of surrendering to the enemy, disbanded his company,
and organized and led a guerrilla outfit known as Bolo Combat team of
Bolo Area. Lieutenant Francisco, Corporal Fortus and Jose L. Garcia, the
last then a civilian joined Major Ruffy's organization towards the latter part
of 1942, while Dominador Adeva and Victoriano Dinglasan, then likewise
civilians, became its members some time in 1943..
Meanwhile, Brigadier General Macario Peralta, Jr., then a lieutenant
colonel of the Philippine Army, also took to the hills of Panay and led the
operation of the 6th Military District, one of the districts into which the
Philippine Army had been divided before the war. About November,
1942, Colonel Peralta succeeded in contacting the General Headquarters
of General MacArthur in Australia as the result of which on February 13,
1943, the 6th Military District was recognized by the Headquarters of the
Southwest Pacific Area as a military unit and part of its command.
Even before General MacArthur's recognition of the 6th Military District
Colonel Peralta had extended its sphere of operation to comprise
Mindoro and Marinduque, and had, on January 2, 1943, named Major
Ruffy as Acting Commander for those two provinces and Commanding
Officer of the 3rd Battalion, 66 Infantry 61st Division, Philippine Corps.
After the recognition, 2d Lieut. Prudente M. Francisco, by virtue of
Special Orders No. 99, dated November 2, 1943, and signed by Enrique
L. Jurado, Major, OSE, Commanding, was assigned as S-3 in the Bolo
Area. Major, later Lieut. Col., Jurado, it should be noted, had been
dispatched by the 6th Military District to Mindoro to assume operational
control supervision over the Bolo Area unit and to make and direct the
necessary report to the Headquarters, 6th Military District, in Panay. On
April 26, 1944, by General Orders No. 40 of the 6th Military District, 2d
Lieutenant Francisco was promoted to the rank of 1st Lieutenant
(Brevet), effective April 15, 1944, subject to approval by the President of
the Philippines, and was re-assigned to the Bolo Area. As to Andres
Fortus he was assigned to the same Bolo Area as probationary 3d
lieutenant for two-month probationary training, by the Headquarters of the
6th Military District, as per Special Orders No. 70, dated May 15, 1944.
According to a memorandum of the Chief of Staff, 6th Military District,
dated January 1943, and signed by L.R. Relunia, Lieut. Col., CE, Chief of
Staff, Jose L. Garcia and Dominador Adeva were appointed 3d
lieutenants, infantry as of December 31, 1942. Garcia later was promoted
to the rank of captain, effective March 15, 1943, as per Special Orders
No. 82, issued in the field, 6th Military District, and dated August 28,
1943. On May 24, 1943, Jose L. Garcia took his oath before Captain
5
Esteban P. Beloncio, then Acting Commanding Officer, 3d Battalion, 66th
Infantry Regiment, 61st Division, 6th Military District.
As has been said, the 6th Military District sent Lieut. Col. Enrique L.
Jurado to be Commanding Officer of the Bolo Combat Team in Mindoro
and to undertake other missions of Military character. Pursuant to
instructions, Colonel Jurado on November 2, 1943, assigned Major Ruffy
as Commanding Officer of the Bolo Area with 3d Lieut. Dominador Adeva
and 2d Lieut. Prudente M. Francisco as members of his staff and
Victoriano Dinglasan as Finance Officer, as per Special Orders No. 99
dated November 2, 1943. In a memorandum of Colonel Jurado for Major
Ruffy bearing date 25 June, 1944, it was stated that Captain Garcia had
been given P5,000 for palay and Lieut. Francisco P9,000, P5,000 for
palay and P4,000 for salary of the personnel B. Company.
A change in the command of the Bolo Area was effected by Colonel
Jurado on June 8, 1944: Major Ruffy was relieved of his assignment as
Commanding Officer, Bolo Battalion, and Capt. Esteban P. Beloncio was
put in Ruffy's place. On October 19, 1944, Lieut. Col. Jurado was slain
allegedly by the petitioners. After the commission of this crime, the
petitioners, it is alleged, seceded from the 6th Military District. It was this
murder which gave rise to petitioner's trial, the legality of which is now
being contested.
On July 26, 1941, the President of the United States issued a military
order the pertinent paragraph of which stated: ". . . as Commander in
Chief of the Army and Navy of the United States, I hereby call and order
into the service of the armed forces of the United States Army, for the
period of the existing emergency, and place under the command of the
general officer, United States Army, to be designated by the Secretary of
War, from time to time, all of the organized military forces of the
Government of the Commonwealth." Following the issuance of President
Roosevelt's order General Douglas MacArthur was appointed
Commanding General of the United States Armed Forces in the Far East.
It is contended, in behalf of Captain Francisco and Lieutenant Fortus, that
"by the enemy occupation of the Philippines, the National Defense Act
and all laws and regulations creating and governing the existence of the
Philippine Army including the Articles of War, were suspended and in
abeyance during such belligerent occupation."
The paragraph quoted in the petitioner's memorandum from Winthrop's
Military Law and Precedents and the subsequent paragraph which has
been omitted furnish a complete answer to petitioner's contention that the
military occupation of the Philippines by Japanese forces, the officers and
men of the Philippine Army did not cease to be fully in the service, though
in a measure,' only in a measure, they were not subject to the military
jurisdiction, if they were in not active duty. In the latter case, like officers
and soldiers on leave of absence or held as prisoners of war, they could
not be held guilty of a breach of the discipline of the command or of a
neglect of duty, or disobedience of orders, or mutiny, or subject to a
military trial therefor; but for an act unbecoming an officer and a
gentleman, or an act which constitutes an offense of the class specified in
the 95th Article of War, they may in general be legally held subject to
military jurisdiction and trial. "So a prisoner of war, though not subject,
while held by the enemy, to the discipline of his own army, would, when
exchanged of paroled, be not exempt from liability for such offenses as
criminal acts or injuriuos conduct committed during his captivity against
other officers or soldiers in the same status." (Winthrop's Military Law and
Precedents, 2d Edition, pp. 91, 92.)
The rule invoked by counsel, namely, that laws of political nature or
affecting political relations are considered superseded or in abeyance
during the military occupation, is intended for the governing of the civil
inhabitants of the occupied territory. It is not intended for and does not
bind the enemies in arms. This is self-evident from the very nature of
things. The paradox of a contrary ruling should readily manifest itself.
Under the petitioner's theory the forces of resistance operating in an
occupied territory would have to abide by the outlawing of their own
existence. They would be stripped of the very life-blood of an army, the
right and the ability to maintain order and discipline within the
organization and to try the men guilty of breach thereof.
The surrender by General Wainright of the Fil-American Forces does not
profit the petitioners who were former members of the Philippine
Constabulary any more than does the rule of war or international law they
cite. The fall of Bataan and Corregidor did not end the war. It did not,
legally or otherwise, keep the United States and the Commonwealth of
the Philippines from organizing a new army, regular or irregular, out of
new men and men in the old service who had refused to surrender or
who having surrendered, had decided to carry on the fight through other
diverse means and methods. The fall of Corregidor and Bataan just
marked the beginning of the gigantic preparation for the gigantic drive
6
that was to fight its way to and beyond the Philippines in fulfillment of
General MacArthur's classic promise, "I shall return." The heroic role
which the guerrillas played in that preparation and in the subsequent
liberation of the Philippines is now history.
Independently of their previous connection with the Philippine Army and
the Philippine Constabulary, Captain Francisco and Lieutenant Fortus as
well as Major Garcia and Lieutenant Adeva were subject to military
jurisdiction.
The 2d Article of War defines and enumerates the persons subject to
military law as follows:
Art. 2. Persons Subject to Military Law. — The following persons
are subject to these articles and shall be understood as included
in the term "any person subject to military law" or "persons
subject to military law," whenever used in these articles:
(a) All officers, members of the Nurse Corps and soldiers
belonging to the Regular Force of the Philippine Army; all
reservists, from the dates of their call to active duty and while on
such active duty; all trainees undergoing military instructions; and
all other persons lawfully called, drafted, or order to obey the
same;
(b) Cadets, flying cadets, and probationary third lieutenants;
(c) All retainers to the camp and all persons accompanying or
serving with the Army of the Philippines in the field in time of war
or when martial law is declared though not otherwise subject to
these articles;
(d) All persons under sentences adjudged by courts-martial.
It is our opinion that the petitioners come within the general application of
the clause in sub-paragraph (a); "and all other persons lawfully called,
drafted, or ordered into, or to duty for training in, the said service, from
the dates they are required by the terms of the call, draft, or order to obey
the same." By their acceptance of appointments as officers in the Bolo
Area from the General Headquarters of the 6th Military District, they
became members of the Philippine Army amendable to the Articles of
War. The Bolo Area, as has been seen, was a contigent of the 6th
Military District which, as has also been pointed out, had been recognized
by and placed under the operational control of the United States Army in
the Southwest Pacific. The Bolo Area received supplies and funds for the
salaries of its officers and men from the Southwest Pacific Command. As
officers in the Bolo Area and the 6th Military District, the petitioners
operated under the orders of duly established and duly appointed
commanders of the United States Army.
The attitude of the enemy toward underground movements did not affect
the military status of guerrillas who had been called into the service of the
Philippine Army. If the invaders refused to look upon guerrillas, without
distinctions, as legitimate troops, that did not stop the guerillas who had
been inducted into the service of the Philippine Army from being
component parts thereof, bound to obey military status of guerrillas was
to be judged not by the concept of the army of the country for which they
fought.
The constitutionality of the 93d Article of War is assailed. This article
ordains "that any person subject to military law who commits murder in
time of was shall suffer death or imprisonment for life, as the court martial
may direct." It is argued that since "no review is provided by that law to
be made by the Supreme Court, irrespective of whether the punishment
is for life imprisonment or death", it violates Article VIII, section 2,
paragraph 4, of the Constitution of the Philippines which provides that
"the National Assembly may not deprive the Supreme Court of its original
jurisdiction over all criminal cases in which the penalty imposed is death
or life imprisonment."
We think the petitioners are in error. This error arose from failure to
perceive the nature of courts martial and the sources of the authority for
their creation.
Courts martial are agencies of executive character, and one of the
authorities "for the ordering of courts martial has been held to be attached
to the constitutional functions of the President as Commander in Chief,
independently of legislation." (Winthrop's Military Law and Precedents, 2d
Edition, p. 49.) Unlike courts of law, they are not a portion of the judiciary.
"The Supreme Court of the United States referring to the provisions of the
Constitution authorizing Congress to provide for the government of the
army, excepting military offenses from the civil jurisdiction, and making
7
the President Commander in Chief, observes as follows: "These
provisions show that Congress has the power to provide for the trial and
punishment of military and naval offenses in the manner then and now
practiced by civilized nations, and that the power to do so is given without
any connection between it and the 3d Article of the United States; indeed
that the two powers are entirely independent of each other."

"Not belonging to the judicial branch of the government, it follows that

courts-martial must pertain to the executive department; and they are in
fact simply instrumentalities of the executive power, provided by
Congress for the President as Commander in Chief, to aid him in properly
commanding the army and navy and enforcing discipline therein, and
utilized under his orders or those of his authorized military
representatives." (Winthrop's Military Law and Precedents, 2d Edition, p.
49.) Of equal interest Clode, 2 M. F., 361, says of these courts in the
British law: "It must never be lost sight of that the only legitimate object of
military tribunals is to aid the Crown to maintain the discipline and
government of the Army." (Footnote No. 24, p. 49, Winthrop's Military
Law and Precedents, 2d Edition.)

Our conclusion, therefore, is that the petition has no merit and that it
should be dismissed with costs. It is so ordered.

8
 G.R. No. L-46930 June 10, 1988
DALE SANDERS, AND A.S. MOREAU, JR, petitioners,
vs.
HON. REGINO T. VERIDIANO II, as Presiding Judge, Branch I, Court
of First Instance of Zambales, Olongapo City, ANTHONY M. ROSSI
and RALPH L. WYERS, respondents.
Petitioner Sanders was, at the time the incident in question occurred, the
special services director of the U.S. Naval Station (NAVSTA) in Olongapo
City. 1 Petitioner Moreau was the commanding officer of the Subic Naval
Base, which includes the said station. 2 Private respondent Rossi is an
American citizen with permanent residence in the Philippines,3 as so was
private respondent Wyer, who died two years ago. 4 They were both
employed as gameroom attendants in the special services department of
the NAVSTA, the former having been hired in 1971 and the latter in
1969. 5
On October 3, 1975, the private respondents were advised that their
employment had been converted from permanent full-time to permanent
part-time, effective October 18, 1975. 6 Their reaction was to protest this
conversion and to institute grievance proceedings conformably to the
pertinent rules and regulations of the U.S. Department of Defense. The
result was a recommendation from the hearing officer who conducted the
proceedings for the reinstatement of the private respondents to
permanent full-time status plus backwages. The report on the hearing
contained the observation that "Special Services management practices
an autocratic form of supervision." 7
In a letter addressed to petitioner Moreau on May 17, 1976 (Annex "A" of
the complaint), Sanders disagreed with the hearing officer's report and
asked for the rejection of the abovestated recommendation. The letter
contained the statements that: a ) "Mr. Rossi tends to alienate most co-
workers and supervisors;" b) "Messrs. Rossi and Wyers have proven,
according to their immediate supervisors, to be difficult employees to
supervise;" and c) "even though the grievants were under oath not to
discuss the case with anyone, (they) placed the records in public places
where others not involved in the case could hear."
On November 7, 1975, before the start of the grievance hearings, a letter
(Annex "B" of the complaint) purportedly coming from petitioner Moreau
as the commanding general of the U.S. Naval Station in Subic Bay was
sent to the Chief of Naval Personnel explaining the change of the private
respondent's employment status and requesting concurrence therewith.
The letter did not carry his signature but was signed by W.B. Moore, Jr.
"by direction," presumably of Moreau.
On the basis of these antecedent facts, the private respondent filed in the
Court of First Instance of Olongapo City a for damages against the herein
petitioners on November 8, 1976.8 The plaintiffs claimed that the letters
contained libelous imputations that had exposed them to ridicule and
caused them mental anguish and that the prejudgment of the grievance
proceedings was an invasion of their personal and proprietary rights.
The private respondents made it clear that the petitioners were being
sued in their private or personal capacity. However, in a motion to
dismiss filed under a special appearance, the petitioners argued that the
acts complained of were performed by them in the discharge of their
official duties and that, consequently, the court had no jurisdiction over
them under the doctrine of state immunity.
After extensive written arguments between the parties, the motion was
denied in an order dated March 8, 1977, 9 on the main ground that the
petitioners had not presented any evidence that their acts were official in
nature and not personal torts, moreover, the allegation in the complaint
was that the defendants had acted maliciously and in bad faith. The same
order issued a writ of preliminary attachment, conditioned upon the filing
of a P10,000.00 bond by the plaintiffs, against the properties of petitioner
Moreau, who allegedly was then about to leave the Philippines.
Subsequently, to make matters worse for the defendants, petitioner
Moreau was declared in a default by the trial court in its order dated
August 9, 1977. The motion to lift the default order on the ground that
Moreau's failure to appear at the pre-trial conference was the result of
some misunderstanding, and the motion for reconsideration of the denial
of the motion to dismiss, which was filed by the petitioner's new lawyers,
were denied by the respondent court on September 7, 1977.
This petition for certiorari, prohibition and preliminary injunction was
thereafter filed before this Court, on the contention that the above-
narrated acts of the respondent court are tainted with grave abuse of
discretion amounting to lack of jurisdiction.
9
We return now to the basic question of whether the petitioners were
acting officially or only in their private capacities when they did the acts
for which the private respondents have sued them for damages.
It is stressed at the outset that the mere allegation that a government
functionary is being sued in his personal capacity will not automatically
remove him from the protection of the law of public officers and, if
appropriate, the doctrine of state immunity. By the same token, the mere
invocation of official character will not suffice to insulate him from suability
and liability for an act imputed to him as a personal tort committed without
or in excess of his authority. These well-settled principles are applicable
not only to the officers of the local state but also where the person sued
in its courts pertains to the government of a foreign state, as in the
present case.
The respondent judge, apparently finding that the complained acts
were prima facie personal and tortious, decided to proceed to trial to
determine inter alia their precise character on the strength of the
evidence to be submitted by the parties. The petitioners have objected,
arguing that no such evidence was needed to substantiate their claim of
jurisdictional immunity. Pending resolution of this question, we issued a
temporary restraining order on September 26, 1977, that has since then
suspended the proceedings in this case in the court a quo.
In past cases, this Court has held that where the character of the act
complained of can be determined from the pleadings exchanged between
the parties before the trial, it is not necessary for the court to require them
to belabor the point at a trial still to be conducted. Such a proceeding
would be superfluous, not to say unfair to the defendant who is subjected
to unnecessary and avoidable inconvenience.
Thus, in Baer v. Tizon, 10 we held that a motion to dismiss a complaint
against the commanding general of the Olongapo Naval Base should not
have been denied because it had been sufficiently shown that the act for
which he was being sued was done in his official capacity on behalf of the
American government. The United States had not given its consent to be
sued. It was the reverse situation in Syquia v. Almeda Lopez," where we
sustained the order of the lower court granting a where we motion to
dismiss a complaint against certain officers of the U.S. armed forces also
shown to be acting officially in the name of the American government.
The United States had also not waived its immunity from suit. Only three
years ago, in United States of America v. Ruiz, 12 we set aside the denial
by the lower court of a motion to dismiss a complaint for damages filed
against the United States and several of its officials, it appearing that the
act complained of was governmental rather than proprietary, and
certainly not personal. In these and several other cases 13 the Court found
it redundant to prolong the other case proceedings after it had become
clear that the suit could not prosper because the acts complained of were
covered by the doctrine of state immunity.
It is abundantly clear in the present case that the acts for which the
petitioners are being called to account were performed by them in the
discharge of their official duties. Sanders, as director of the special
services department of NAVSTA, undoubtedly had supervision over its
personnel, including the private respondents, and had a hand in their
employment, work assignments, discipline, dismissal and other related
matters. It is not disputed that the letter he had written was in fact a reply
to a request from his superior, the other petitioner, for more information
regarding the case of the private respondents.14 Moreover, even in the
absence of such request, he still was within his rights in reacting to the
hearing officer's criticism—in effect a direct attack against him—-that
Special Services was practicing "an autocratic form of supervision."
As for Moreau, what he is claimed to have done was write the Chief of
Naval Personnel for concurrence with the conversion of the private
respondents' type of employment even before the grievance proceedings
had even commenced. Disregarding for the nonce the question of its
timeliness, this act is clearly official in nature, performed by Moreau as
the immediate superior of Sanders and directly answerable to Naval
Personnel in matters involving the special services department of
NAVSTA In fact, the letter dealt with the financial and budgetary
problems of the department and contained recommendations for their
solution, including the re-designation of the private respondents. There
was nothing personal or private about it.
Given the official character of the above-described letters, we have to
conclude that the petitioners were, legally speaking, being sued as
officers of the United States government. As they have acted on behalf of
that government, and within the scope of their authority, it is that
government, and not the petitioners personally, that is responsible for
their acts. Assuming that the trial can proceed and it is proved that the
claimants have a right to the payment of damages, such award will have
to be satisfied not by the petitioners in their personal capacities but by the
10
United States government as their principal. This will require that
government to perform an affirmative act to satisfy the judgment, viz, the
appropriation of the necessary amount to cover the damages awarded,
thus making the action a suit against that government without its consent.
There should be no question by now that such complaint cannot prosper
unless the government sought to be held ultimately liable has given its
consent to' be sued. So we have ruled not only in Baer but in many other
decisions where we upheld the doctrine of state immunity as applicable
not only to our own government but also to foreign states sought to be
subjected to the jurisdiction of our courts. 15
The practical justification for the doctrine, as Holmes put it, is that "there
can be no legal right against the authority which makes the law on which
the right depends.16 In the case of foreign states, the rule is derived from
the principle of the sovereign equality of states which wisely admonishes
that par in parem non habet imperium and that a contrary attitude would
"unduly vex the peace of nations." 17 Our adherence to this precept is
formally expressed in Article II, Section 2, of our Constitution, where we
reiterate from our previous charters that the Philippines "adopts the
generally accepted principles of international law as part of the law of the
land.
All this is not to say that in no case may a public officer be sued as such
without the previous consent of the state. To be sure, there are a number
of well-recognized exceptions. It is clear that a public officer may be sued
as such to compel him to do an act required by law, as where, say, a
register of deeds refuses to record a deed of sale; 18 or to restrain a
Cabinet member, for example, from enforcing a law claimed to be
unconstitutional; 19 or to compel the national treasurer to pay damages
from an already appropriated assurance fund; 20 or the commissioner of
internal revenue to refund tax over-payments from a fund already
available for the purpose; 21 or, in general, to secure a judgment that the
officer impleaded may satisfy by himself without the government itself
having to do a positive act to assist him. We have also held that where
the government itself has violated its own laws, the aggrieved party may
directly implead the government even without first filing his claim with the
Commission on Audit as normally required, as the doctrine of state
immunity "cannot be used as an instrument for perpetrating an
injustice." 22
This case must also be distinguished from such decisions as Festejo v.
Fernando, 23 where the Court held that a bureau director could be sued
for damages on a personal tort committed by him when he acted without
or in excess of authority in forcibly taking private property without paying
just compensation therefor although he did convert it into a public
irrigation canal. It was not necessary to secure the previous consent of
the state, nor could it be validly impleaded as a party defendant, as it was
not responsible for the defendant's unauthorized act.
The case at bar, to repeat, comes under the rule and not under any of the
recognized exceptions. The government of the United States has not
given its consent to be sued for the official acts of the petitioners, who
cannot satisfy any judgment that may be rendered against them. As it is
the American government itself that will have to perform the affirmative
act of appropriating the amount that may be adjudged for the private
respondents, the complaint must be dismissed for lack of jurisdiction.
The Court finds that, even under the law of public officers, the acts of the
petitioners are protected by the presumption of good faith, which has not
been overturned by the private respondents. Even mistakes concededly
committed by such public officers are not actionable as long as it is not
shown that they were motivated by malice or gross negligence amounting
to bad faith.24 This, to, is well settled .25 Furthermore, applying now our
own penal laws, the letters come under the concept of privileged
communications and are not punishable, 26 let alone the fact that the
resented remarks are not defamatory by our standards. It seems the
private respondents have overstated their case.
A final consideration is that since the questioned acts were done in the
Olongapo Naval Base by the petitioners in the performance of their
official duties and the private respondents are themselves American
citizens, it would seem only proper for the courts of this country to refrain
from taking cognizance of this matter and to treat it as coming under the
internal administration of the said base.
The petitioners' counsel have submitted a memorandum replete with
citations of American cases, as if they were arguing before a court of the
United States. The Court is bemused by such attitude. While these
decisions do have persuasive effect upon us, they can at best be invoked
only to support our own jurisprudence, which we have developed and
11
enriched on the basis of our own persuasions as a people, particularly
since we became independent in 1946.

We appreciate the assistance foreign decisions offer us, and not only
from the United States but also from Spain and other countries from
which we have derived some if not most of our own laws. But we should
not place undue and fawning reliance upon them and regard them as
indispensable mental crutches without which we cannot come to our own
decisions through the employment of our own endowments We live in a
different ambience and must decide our own problems in the light of our
own interests and needs, and of our qualities and even idiosyncrasies as
a people, and always with our own concept of law and justice.

The private respondents must, if they are still so-minded, pursue their
claim against the petitioners in accordance with the laws of the United
States, of which they are all citizens and under whose jurisdiction the
alleged offenses were committed. Even assuming that our own laws are
applicable, the United States government has not decided to give its
consent to be sued in our courts, which therefore has not acquired the
competence to act on the said claim,.

WHEREFORE, the petition is GRANTED. The challenged orders dated

March 8,1977, August 9,1977, and September 7, 1977, are SET ASIDE.
The respondent court is directed to DISMISS Civil Case No. 2077-O. Our
Temporary restraining order of September 26,1977, is made
PERMANENT. No costs.

SO ORDERED.

12
G.R. No. 84607 March 19, 1993
REPUBLIC OF THE PHILIPPINES, GEN. RAMON MONTANO, GEN.
ALFREDO LIM, GEN. ALEXANDER AGUIRRE, COL. EDGAR DULA
TORRES, COL. CEZAR NAZARENO, MAJ. FILEMON GASMEN, PAT.
NICANOR ABANDO, PFC SERAFIN CEBU, JR., GEN. BRIGIDO
PAREDES, COL. ROGELIO MONFORTE, PFC ANTONIO LUCERO,
PAT. JOSE MENDIOLA, PAT. NELSON TUASON, POLICE
CORPORAL PANFILO ROGOS, POLICE LT. JUAN B. BELTRAN,
PAT. NOEL MANAGBAO, MARINE THIRD CLASS TRAINEE (3CT)
NOLITO NOGATO, 3CT ALEJANDRO B. NAGUIO, JR., EFREN
ARCILLAS, 3CT AGERICO LUNA, 3CT BASILIO BORJA, 3CT
MANOLITO LUSPO, 3CT CRISTITUTO GERVACIO, 3CT MANUEL
DELA CRUZ, JR., MARINE (CDC) BN., (CIVIL DISTURBANCE
CONTROL), MOBILE DISPERSAL TEAM (MDT), LT. ROMEO
PAQUINTO, LT. LAONGLAANG GOCE, MAJ. DEMETRIO DE LA
CRUZ, POLICE CAPTAIN RODOLFO NAVAL, JOHN DOE, RICHARD
DOE, ROBERTO DOE AND OTHER DOES, petitioners,
vs.
HON. EDILBERTO G. SANDOVAL, Regional Trial Court of Manila,
Branch IX, ERLINDA C. CAYLAO, ANATALIA ANGELES PEREZ,
MYRNA BAUTISTA, CIPRIANA EVANGELIO, ELMA GRAMPA,
AMELIA GUTIERREZ, NEMESIO LAKINDANUM, PURITA YUMUL,
MIGUEL ARABE, TERESITA ARJONA, RONALDO CAMPOMANES
AND CARMENCITA ARDONI VDA. DE CAMPOMANES, ROGELIO
DOMUNICO, in their capacity as heirs of the deceased (ROBERTO C.
CAYLAO, SONNY "BOY" PEREZ, DIONESIO BAUTISTA, DANTE
EVANGELIO, ADELFA ARIBE, DANILO ARJONA, VICENTE
CAMPOMANES, RONILO DOMUNICO) respectively; and (names of
sixty-two injured victims) EDDIE AGUINALDO, FELICISIMO
ALBASIA, NAPOLEON BAUTISTA, DANILO CRUZ, EDDIE
MENSOLA, ALBERT PITALBO, VICENTE ROSEL, RUBEN
CARRIEDO, JOY CRUZ, HONORIO LABAMBA, JR., EFREN
MACARAIG, SOLOMON MANALOTO, ROMEO DURAN, NILO
TAGUBAT, JUN CARSELLAR, JOEY CLEMENTE, GERARDO
COYOCA, LUISITO DACO, BENJAMIN DELA CRUZ, ARTHUR
FONTANILLA, WILSON GARCIA, CARLOS SIRAY, JOSE PERRAS,
TOMAS VALLOS, ARNOLD ENAJE, MARIANITA DIMAPILIS,
FRANCISCO ANGELES, MARCELO ESGUERRA, JOSE FERRER,
RODEL DE GUIA, ELVIS MENDOZA, VICTORIANO QUIJANO, JOEY
ADIME, RESIENO ADUL, ALBERTO TARSONA, CARLOS
ALCANTARA, MAMERTO ALIAS, EMELITO ALMONTE, BENILDA
ALONUEVO, EMMA ABADILLO, REYNALDO CABALLES, JR., JAIME
CALDETO, FABIAN CANTELEJO, RODRIGO CARABARA, ENRIQUE
DELGADO, JUN DELOS SANTOS, MARIO DEMASACA, FRANCISCO
GONZALES, ERNESTO GONZALES, RAMIRO JAMIL, JUAN
LUCENA, PERLITO SALAYSAY, JOHNNY SANTOS, MARCELO
SANTOS, EMIL SAYAO, BAYANI UMALI, REMIGIO MAHALIN, BONG
MANLULO, ARMANDO MATIENZO, CARLO MEDINA, LITO
NOVENARIO, and ROSELLA ROBALE, respondents.
G.R. No. 84645 March 19, 1993
ERLINDA C. CAYLAO, ANATALIA ANGELES PEREZ, MYRNA
BAUTISTA, CIPRIANA EVANGELIO, ELMA GRAMPA, AMELIA
GUTIERREZ, NEMESIO LAKINDANUM, PURITA YUMUL, MIGUEL
ARABE, TERESITA ARJONA, RONALDO CAMPOMANES AND
CARMENCITA ARDONI VDA. DE CAMPOMANES, ROGELIO
DOMUNICO, in their capacity as heirs of the deceased (ROBERTO C.
CAYLAO, SONNY "BOY" PEREZ, DIONESIO GRAMPA, ANGELITO
GUTIERREZ, BERNABE LAKINDANUM, ROBERTO YUMUL,
LEOPOLDO ALONZO, ADELFA ARIBE, DANILO ARJONA, VICENTE
CAMPOMANES, RONILO DOMUNICO) respectively; and (names of
sixty-two injured victims) EDDIE AGUINALDO, FELICISIMO
ALBASIA, NAPOLEON BAUTISTA, DANILO CRUZ, EDDIE
MENSOLA, ALBERT PITALBO, VICENTE ROSEL, RUBEN
CARRIEDO, JOY CRUZ, HONORIO LABAMBA, JR. EFREN
MACARAIG, SOLOMON MANALOTO, ROMEO DURAN, NILO
TAGUBAT, JUN CARSELLAR, JOEY CLEMENTE, GERARDO
COYOCA, LUISITO DACO, BENJAMIN DELA CRUZ, ARTHUR
FONTANILLA, WILSON GARCIA, CARLOS SIRAY, JOSE PERRAS
TOMAS VALLOS, ARNOLD ENAJE, MARIANITA DIMAPILIS,
FRANCISCO ANGELES, MARCELO ESGUERRA, JOSE FERRER,
RODEL DE GUIA, ELVIS MENDOZA, VICTORINO QUIJANO, JOEY
ADIME, RESIENO ADUL, ALBERTO TARSONA, CARLOS
ALCANTARA, MAMERTO ALIAS, EMELITO ALMONTE, BENILDA
ALONUEVO, EMMA ABADILLO, REYNALDO CABALLES, JR., JAIME
CALDETO, FABIAN CANTELEJO, RODRIGO CARABARA, ENRIQUE
DELGADO, JUN DELOS SANTOS, MARIO DEMASACA, FRANCISCO
GONZALES, ERNESTO GONZALES, RAMIRO JAMIL, JUAN
LUCENA, PERLITO SALAYSAY, JOHNNY SANTOS, MARCELO
SANTOS, EMIL SAYAO, BAYANI UMALI, REMIGIO MAHALIN, BONG
MANLULO, ARMANDO MATIENZO, CARLO MEDINA, LITO
NOVENARIO, ROSELLA ROBALE, petitioners,
13
vs.
REPUBLIC OF THE PHILIPPINES, and HONORABLE EDILBERTO G.
SANDOVAL, Regional Trial Court of Manila, Branch 9, respondents.
People may have already forgotten the tragedy that transpired on
January 22, 1987. It is quite ironic that then, some journalists called
it a Black Thursday, as a grim reminder to the nation of the
misfortune that befell twelve (12) rallyists. But for most Filipinos
now, the Mendiola massacre may now just as well be a chapter in
our history books. For those however, who have become widows
and orphans, certainly they would not settle for just that. They seek
retribution for the lives taken that will never be brought back to life
again.
Hence, the heirs of the deceased, together with those injured
(Caylao group), instituted this petition, docketed as G.R. No. 84645,
under Section 1 of Rule 65 of the Rules of Court, seeking the
reversal and setting aside of the Orders of respondent Judge
Sandoval,1 dated May 31 and August 8, 1988, dismissing the complaint
for damages of herein petitioners against the Republic of the Philippines
in Civil Case No. 88-43351.
Petitioner, the Republic of the Philippines, through a similar remedy,
docketed as G.R. No. 84607, seeks to set aside the Order of respondent
Judge dated May 31, 1988, in Civil Case No. 88-43351 entitled "Erlinda
Caylao, et al. vs. Republic of the Philippines, et al."
The pertinent portion of the questioned Order2 dated May 31, 1988, reads
as follows:
With respect however to the other defendants, the
impleaded Military Officers, since they are being charged
in their personal and official capacity, and holding them
liable, if at all, would not result in financial responsibility of
the government, the principle of immunity from suit cannot
conveniently and correspondingly be applied to them.
WHEREFORE, the case as against the defendant
Republic of the Philippines is hereby dismissed. As
against the rest of the defendants the motion to dismiss is
denied. They are given a period of ten (10) days from
receipt of this order within which to file their respective
pleadings.
On the other hand, the Order3 , dated August 8, 1988, denied the motions
filed by both parties, for a reconsideration of the above-cited Order,
respondent Judge finding no cogent reason to disturb the said order.
The massacre was the culmination of eight days and seven nights of
encampment by members of the militant Kilusang Magbubukid sa
Pilipinas (KMP) at the then Ministry (now Department) of Agrarian Reform
(MAR) at the Philippine Tobacco Administration Building along Elliptical
Road in Diliman, Quezon City.
The farmers and their sympathizers presented their demands for what
they called "genuine agrarian reform". The KMP, led by its national
president, Jaime Tadeo, presented their problems and demands, among
which were: (a) giving lands for free to farmers; (b) zero retention of lands
by landlords; and (c) stop amortizations of land payments.
The dialogue between the farmers and the MAR officials began on
January 15, 1987. The two days that followed saw a marked increase in
people at the encampment. It was only on January 19, 1987 that Jaime
Tadeo arrived to meet with then Minister Heherson Alvarez, only to be
informed that the Minister can only meet with him the following day. On
January 20, 1987, the meeting was held at the MAR conference room.
Tadeo demanded that the minimum comprehensive land reform program
be granted immediately. Minister Alvarez, for his part, can only promise to
do his best to bring the matter to the attention of then President Aquino,
during the cabinet meeting on January 21, 1987.
Tension mounted the following day. The farmers, now on their seventh
day of encampment, barricaded the MAR premises and prevented the
employees from going inside their offices. They hoisted the KMP flag
together with the Philippine flag.
At around 6:30 p.m. of the same day, Minister Alvarez, in a meeting with
Tadeo and his leaders, advised the latter to instead wait for the
ratification of the 1987 Constitution and just allow the government to
implement its comprehensive land reform program. Tadeo, however,
countered by saying that he did not believe in the Constitution and that a
genuine land reform cannot be realized under a landlord-controlled
14
Congress. A heated discussion ensued between Tadeo and Minister
Alvarez. This notwithstanding, Minister Alvarez suggested a negotiating
panel from each side to meet again the following day.
On January 22, 1987, Tadeo's group instead decided to march to
Malacañang to air their demands. Before the march started, Tadeo talked
to the press and TV media. He uttered fiery words, the most telling of
which were:
". . . inalis namin ang barikada bilang kahilingan ng ating Presidente, pero
kinakailangan alisin din niya ang barikada sa Mendiola sapagkat
bubutasin din namin iyon at dadanak ang dugo . . . ."4
The farmers then proceeded to march to Malacañang, from Quezon
Memorial Circle, at 10:00 a.m. They were later joined by members of
other sectoral organizations such as the Kilusang Mayo Uno (KMU),
Bagong Alyansang Makabayan (BAYAN), League of Filipino Students
(LFS) and Kongreso ng Pagkakaisa ng Maralitang Lungsod (KPML).
At around 1:00 p.m., the marchers reached Liwasang Bonifacio where
they held a brief program. It was at this point that some of the marchers
entered the eastern side of the Post Office Building, and removed the
steel bars surrounding the garden. Thereafter, they joined the march to
Malacañang. At about 4:30 p.m., they reached C.M. Recto Avenue.
In anticipation of a civil disturbance, and acting upon reports received by
the Capital Regional Command (CAPCOM) that the rallyists would
proceed to Mendiola to break through the police lines and rush towards
Malacañang, CAPCOM Commander General Ramon E. Montaño
inspected the preparations and adequacy of the government forces to
quell impending attacks.
OPLAN YELLOW (Revised) was put into effect. Task Force Nazareno
under the command of Col. Cesar Nazareno was deployed at the vicinity
of Malacañang. The civil disturbance control units of the Western Police
District under Police Brigadier General Alfredo S. Lim were also
activated.
Intelligence reports were also received that the KMP was heavily
infiltrated by CPP/NPA elements and that an insurrection was impending.
The threat seemed grave as there were also reports that San Beda
College and Centro Escolar University would be forcibly occupied.
In its report, the Citizens' Mendiola Commission (a body specifically
tasked to investigate the facts surrounding the incident, Commission for
short) stated that the government anti-riot forces were assembled at
Mendiola in a formation of three phalanges, in the following manner:
(1) The first line was composed of policemen from police
stations Nos. 3, 4, 6, 7, 8, 9 and 10 and the Chinatown
detachment of the Western Police District. Police Colonel
Edgar Dula Torres, Deputy Superintendent of the Western
Police District, was designated as ground commander of
the CDC first line of defense. The WPD CDC elements
were positioned at the intersection of Mendiola and
Legarda Streets after they were ordered to move forward
from the top of Mendiola bridge. The WPD forces were in
khaki uniform and carried the standard CDC equipment —
aluminum shields, truncheons and gas masks.
(2) At the second line of defense about ten (10) yards
behind the WPD policemen were the elements of the
Integrated National Police (INP) Field Force stationed at
Fort Bonifacio from the 61st and 62nd INP Field Force,
who carried also the standard CDC equipment —
truncheons, shields and gas masks. The INP Field Force
was under the command of Police Major Demetrio dela
Cruz.
(3) Forming the third line was the Marine Civil Disturbance
Control Battalion composed of the first and second
companies of the Philippine Marines stationed at Fort
Bonifacio. The marines were all equipped with shields,
truncheons and M-16 rifles (armalites) slung at their
backs, under the command of Major Felimon B. Gasmin.
The Marine CDC Battalion was positioned in line
formation ten (10) yards farther behind the INP Field
Force.
At the back of the marines were four (4) 6 x 6 army trucks,
occupying the entire width of Mendiola street, followed
immediately by two water cannons, one on each side of
the street and eight fire trucks, four trucks on each side of
the street. The eight fire trucks from Fire District I of
15
 Manila under Fire Superintendent Mario C. Tanchanco,
were to supply water to the two water cannons.
Stationed farther behind the CDC forces were the two
Mobile Dispersal Teams (MDT) each composed of two
tear gas grenadiers, two spotters, an assistant grenadier,
a driver and the team leader.
In front of the College of the Holy Spirit near Gate 4 of
Malacañang stood the VOLVO Mobile Communications
Van of the Commanding General of CAPCOM/INP,
General Ramon E. Montaño. At this command post, after
General Montaño had conferred with TF Nazareno
Commander, Colonel Cezar Nazareno, about the
adequacy and readiness of his forces, it was agreed
that Police General Alfredo S. Lim would designate Police
Colonel Edgar Dula Torres and Police Major Conrado
Franciscoas negotiators with the marchers. Police
General Lim then proceeded to the WPD CDC elements
already positioned at the foot of Mendiola bridge to relay
to Police Colonel Torres and Police Major Francisco the
instructions that the latter would negotiate with the
marchers.5 (Emphasis supplied)
The marchers, at around 4:30 p.m., numbered about 10,000 to 15,000.
From C.M. Recto Avenue, they proceeded toward the police lines. No
dialogue took place between the marchers and the anti-riot squad. It was
at this moment that a clash occurred and, borrowing the words of the
Commission "pandemonium broke loose". The Commission stated in its
findings, to wit:
. . . There was an explosion followed by throwing of
pillboxes, stones and bottles. Steel bars, wooden clubs
and lead pipes were used against the police. The police
fought back with their shields and truncheons. The police
line was breached. Suddenly shots were heard. The
demonstrators disengaged from the government forces
and retreated towards C.M. Recto Avenue. But sporadic
firing continued from the government forces.
After the firing ceased, two MDTs headed by Lt. Romeo
Paquinto and Lt. Laonglaan Goce sped towards Legarda
Street and lobbed tear gas at the remaining rallyist still
grouped in the vicinity of Mendiola. After dispersing the
crowd, the two MDTs, together with the two WPD MDTs,
proceeded to Liwasang Bonifacio upon order of General
Montaño to disperse the rallyists assembled thereat.
Assisting the MDTs were a number of policemen from the
WPD, attired in civilian clothes with white head bands,
who were armed with long firearms.6 (Emphasis ours)
After the clash, twelve (12) marchers were officially confirmed dead,
although according to Tadeo, there were thirteen (13) dead, but he was
not able to give the name and address of said victim. Thirty-nine (39)
were wounded by gunshots and twelve (12) sustained minor injuries, all
belonging to the group of the marchers.
Of the police and military personnel, three (3) sustained gunshot wounds
and twenty (20) suffered minor physical injuries such as abrasions,
contusions and the like.
In the aftermath of the confrontation, then President Corazon C. Aquino
issued Administrative Order No. 11,7 (A.O. 11, for brevity) dated January
22, 1987, which created the Citizens' Mendiola Commission. The body
was composed of retired Supreme Court Justice Vicente Abad Santos as
Chairman, retired Supreme Court Justice Jose Y. Feria and Mr. Antonio
U. Miranda, both as members. A.O. 11 stated that the Commission was
created precisely for the "purpose of conducting an investigation of the
disorder, deaths, and casualties that took place in the vicinity of Mendiola
Bridge and Mendiola Street and Claro M. Recto Avenue, Manila, in the
afternoon of January 22, 1987". The Commission was expected to have
submitted its findings not later than February 6, 1987. But it failed to do
so. Consequently, the deadline was moved to February 16, 1987 by
Administrative Order No. 13. Again, the Commission was unable to meet
this deadline. Finally, on February 27, 1987, it submitted its report, in
accordance with Administrative Order No. 17, issued on February 11,
1987.
In its report, the Commission recapitulated its findings, to wit:
16
(1) The march to Mendiola of the KMP led by Jaime
Tadeo, together with the other sectoral groups, was not
covered by any permit as required under Batas
Pambansa Blg. 880, the Public Assembly Act of 1985, in
violation of paragraph (a) Section 13, punishable under
paragraph (a), Section 14 of said law.
(2) The crowd dispersal control units of the police and the
military were armed with .38 and .45 caliber handguns,
and M-16 armalites, which is a prohibited act under
paragraph 4(g), Section 13, and punishable under
paragraph (b), Section 14 of Batas Pambansa Blg. 880.
(3) The security men assigned to protect the WPD, INP
Field Force, the Marines and supporting military units, as
well as the security officers of the police and military
commanders were in civilian attire in violation of
paragraph (a), Section 10, Batas Pambansa 880.
(4) There was unnecessary firing by the police and
military crowd dispersal control units in dispersing the
marchers, a prohibited act under paragraph (e), Section
13, and punishable under paragraph (b), Section 14,
Batas Pambansa Blg. 880.
(5) The carrying and use of steel bars, pillboxes, darts,
lead pipe, wooden clubs with spikes, and guns by the
marchers as offensive weapons are prohibited acts
punishable under paragraph (g), Section 13, and
punishable under paragraph (e), Section 14 of Batas
Pambansa Blg. 880.
(6) The KMP farmers broke off further negotiations with
the MAR officials and were determined to march to
Malacañang, emboldened as they are, by the
inflammatory and incendiary utterances of their leader,
Jaime Tadeo — "bubutasin namin ang barikada . .
Dadanak and dugo . . . Ang nagugutom na magsasaka ay
gagawa ng sariling butas. . .
(7) There was no dialogue between the rallyists and the
government forces. Upon approaching the intersections of
Legarda and Mendiola, the marchers began pushing the
police lines and penetrated and broke through the first line
of the CDC contingent.
(8) The police fought back with their truncheons and
shields. They stood their ground but the CDC line was
breached. There ensued gunfire from both sides. It is not
clear who started the firing.
(9) At the onset of the disturbance and violence, the water
cannons and tear gas were not put into effective use to
disperse the rioting crowd.
(10) The water cannons and fire trucks were not put into
operation because (a) there was no order to use them; (b)
they were incorrectly prepositioned; and (c) they were out
of range of the marchers.
(11) Tear gas was not used at the start of the disturbance
to disperse the rioters. After the crowd had dispersed and
the wounded and dead were being carried away, the
MDTs of the police and the military with their tear gas
equipment and components conducted dispersal
operations in the Mendiola area and proceeded to
Liwasang Bonifacio to disperse the remnants of the
marchers.
(12) No barbed wire barricade was used in Mendiola but
no official reason was given for its absence.8
From the results of the probe, the Commission recommended9 the
criminal prosecution of four unidentified, uniformed individuals, shown
either on tape or in pictures, firing at the direction of the marchers. In
connection with this, it was the Commission's recommendation that the
National Bureau of Investigation (NBI) be tasked to undertake
investigations regarding the identities of those who actually fired their
guns that resulted in the death of or injury to the victims of the incident.
The Commission also suggested that all the commissioned officers of
both the Western Police District and the INP Field Force, who were
17
armed during the incident, be prosecuted for violation of paragraph 4(g) is contrary to both the Constitution and the International Law on Human
of Section 13, Batas Pambansa Blg. 880, the Public Assembly Act of Rights.
1985. The Commission's recommendation also included the prosecution
of the marchers, for carrying deadly or offensive weapons, but whose Respondent Judge Sandoval, in his first questioned Order, dismissed the
identities have yet to be established. As for Jaime Tadeo, the complaint as against the Republic of the Philippines on the ground that
Commission said that he should be prosecuted both for violation of there was no waiver by the State. Petitioners (Caylao group) filed a
paragraph (a), Section 13, Batas Pambansa Blg. 880 for holding the rally Motion for Reconsideration therefrom, but the same was denied by
without a permit and for violation of Article 142, as amended, of the respondent judge in his Order dated August 8, 1988. Consequently,
Revised Penal Code for inciting to sedition. As for the following officers, Caylao and her co-petitioners filed the instant petition.
namely: (1) Gen. Ramon E. Montaño; (2) Police Gen. Alfredo S. Lim; (3)
Police Gen. Edgar Dula Torres; (4) Police Maj. Demetrio dela Cruz; (5) On the other hand, the Republic of the Philippines, together with the
Col. Cezar Nazareno; and (5) Maj. Felimon Gasmin, for their failure to military officers and personnel impleaded as defendants in the court
make effective use of their skill and experience in directing the dispersal below, filed its petition for certiorari.
operations in Mendiola, administrative sanctions were recommended to
be imposed.
Having arisen from the same factual beginnings and raising practically
identical issues, the two (2) petitions were consolidated and will therefore
The last and the most significant recommendation of the Commission be jointly dealt with and resolved in this Decision.
was for the deceased and wounded victims of the Mendiola incident to be
compensated by the government. It was this portion that petitioners
The resolution of both petitions revolves around the main issue of
(Caylao group) invoke in their claim for damages from the government.
whether or not the State has waived its immunity from suit.
Notwithstanding such recommendation, no concrete form of
Petitioners (Caylao group) advance the argument that the State has
compensation was received by the victims. Thus, on July 27, 1987,
impliedly waived its sovereign immunity from suit. It is their considered
herein petitioners, (Caylao group) filed a formal letter of demand for
view that by the recommendation made by the Commission for the
compensation from the Government. 10 This formal demand was indorsed
government to indemnify the heirs and victims of the Mendiola incident
by the office of the Executive Secretary to the Department of Budget and
and by the public addresses made by then President Aquino in the
Management (DBM) on August 13, 1987. The House Committee on
aftermath of the killings, the State has consented to be sued.
Human Rights, on February 10, 1988, recommended the expeditious
payment of compensation to the Mendiola victims. 11
Under our Constitution the principle of immunity of the government from
suit is expressly provided in Article XVI, Section 3. The principle is based
After almost a year, on January 20, 1988, petitioners (Caylao group) were
on the very essence of sovereignty, and on the practical ground that
constrained to institute an action for damages against the Republic of the
there can be no legal right as against the authority that makes the law on
Philippines, together with the military officers, and personnel involved in
which the right depends. 12 It also rests on reasons of public policy — that
the Mendiola incident, before the trial court. The complaint was docketed
public service would be hindered, and the public endangered, if the
as Civil Case No. 88-43351.
sovereign authority could be subjected to law suits at the instance of
every citizen and consequently controlled in the uses and dispositions of
On February 23, 1988, the Solicitor General filed a Motion to Dismiss on the means required for the proper administration of the government. 13
the ground that the State cannot be sued without its consent. Petitioners
opposed said motion on March 16, 1988, maintaining that the State has
This is not a suit against the State with its consent.
waived its immunity from suit and that the dismissal of the instant action

18
Firstly, the recommendation made by the Commission regarding
indemnification of the heirs of the deceased and the victims of the
incident by the government does not in any way mean that liability
automatically attaches to the State. It is important to note that A.O. 11
expressly states that the purpose of creating the Commission was to
have a body that will conduct an "investigation of the disorder, deaths and
casualties that took place." 14 In the exercise of its functions, A.O. 11
provides guidelines, and what is relevant to Our discussion reads:
1 Its conclusions regarding the existence of probable
cause for the commission of any offense and of the
persons probably guilty of the same shall be sufficient
compliance with the rules on preliminary investigation and
the charges arising therefrom may be filed directly with
the proper court. 15
ONEIn effect, whatever may be the findings of the Commission, the same
shall only serve as the cause of action in the event that any party decides
to litigate his/her claim. Therefore, the Commission is merely a
preliminary venue. The Commission is not the end in itself. Whatever
recommendation it makes cannot in any way bind the State immediately,
such recommendation not having become final and, executory. This is
precisely the essence of it being a fact-finding body.
Secondly, whatever acts or utterances that then President Aquino may
have done or said, the same are not tantamount to the State having
waived its immunity from suit. The President's act of joining the marchers,
days after the incident, does not mean that there was an admission by
the State of any liability. In fact to borrow the words of petitioners (Caylao
group), "it was an act of solidarity by the government with the people".
Moreover, petitioners rely on President Aquino's speech promising that
the government would address the grievances of the rallyists. By this
alone, it cannot be inferred that the State has admitted any liability, much
less can it be inferred that it has consented to the suit.
Although consent to be sued may be given impliedly, still it cannot be
maintained that such consent was given considering the circumstances
obtaining in the instant case.
Thirdly, the case does not qualify as a suit against the State.
Some instances when a suit against the State is proper are: 16
(1) When the Republic is sued by name;
(2) When the suit is against an unincorporated government agency;
(3) When the, suit is on its face against a government officer but the case
is such that ultimate liability will belong not to the officer but to the
government.
While the Republic in this case is sued by name, the ultimate liability
does not pertain to the government. Although the military officers and
personnel, then party defendants, were discharging their official functions
when the incident occurred, their functions ceased to be official the
moment they exceeded their authority. Based on the Commission
findings, there was lack of justification by the government forces in the
use of firearms. 17 Moreover, the members of the police and military crowd
dispersal units committed a prohibited act under B.P. Blg. 880 18 as there
was unnecessary firing by them in dispersing the marchers. 19
As early as 1954, this Court has pronounced that an officer cannot
shelter himself by the plea that he is a public agent acting under the color
of his office when his acts are wholly without authority. 20 Until recently in
1991, 21 this doctrine still found application, this Court saying that
immunity from suit cannot institutionalize irresponsibility and non-
accountability nor grant a privileged status not claimed by any other
official of the Republic. The military and police forces were deployed to
ensure that the rally would be peaceful and orderly as well as to
guarantee the safety of the very people that they are duty-bound to
protect. However, the facts as found by the trial court showed that they
fired at the unruly crowd to disperse the latter.
While it is true that nothing is better settled than the general rule that a
sovereign state and its political subdivisions cannot be sued in the courts
except when it has given its consent, it cannot be invoked by both the
military officers to release them from any liability, and by the heirs and
victims to demand indemnification from the government. The principle of
state immunity from suit does not apply, as in this case, when the relief
demanded by the suit requires no affirmative official action on the part of
the State nor the affirmative discharge of any obligation which belongs to
the State in its political capacity, even though the officers or agents who
19
are made defendants claim to hold or act only by virtue of a title of the
state and as its agents and servants. 22 This Court has made it quite clear
that even a "high position in the government does not confer a license to
persecute or recklessly injure another." 23

The inescapable conclusion is that the State cannot be held civilly liable
for the deaths that followed the incident. Instead, the liability should fall
on the named defendants in the lower court. In line with the ruling of this
court in Shauf vs. Court of Appeals, 24 herein public officials, having been
found to have acted beyond the scope of their authority, may be held
liable for damages.

WHEREFORE, finding no reversible error and no grave abuse of

discretion committed by respondent Judge in issuing the questioned
orders, the instant petitions are hereby DISMISSED.

SO ORDERED.

20
G.R. No. L-5156 March 11, 1954
CARMEN FESTEJO, demandante-apelante,
vs.
ISAIAS FERNANDO, Director de Obras Publicas, demandado-
apelado.
Carmen Festejo, owner of some sugar lands, of a total of about 9
hectares and a half of surface, demanding to "Isaias Fernando Director,
Bureau of public Works, that as such Director of Public Works is in
charge of irrigation systems and projects And is the official responsible
for the construction of irrigation systems in the country, "claiming that -
The defendant, as Director of the Bureau of Public Works, without
authority obtained first from the Court of First Instance of Ilocos
Sur, without obtaining first a right of way, and without the consent
and knowledge of the plaintiff, and against her express objection
unlawfully took possession of portions of the three parcels of land
described above, and caused an irrigation canal to be
constructed on the portion of the three parcels of land on or about
the month of February 1951 the aggregate area being 24,179
square meters to the damage and prejudice of the plaintiff. ----- R.
on A., p. 3.
Causing to it varied damages and prejudices. Calls, in
consequence, for a judgment condemning the defendant:
. . . to return or cause to be returned the possession of the
portions of land unlawfully occupied and appropriated in the
aggregate area of 24,179 square meters and to return the land to
its former condition under the expenses of the defendant. . . .
In the remote event that the portions of land unlawfully occupied
and appropriated can not be returned to the plaintiff, then to order
the defendant to pay to the plaintiff the sum of P19,343.20 as
value of the portions totalling an area of 24,179 square meters; ---
- R. on A., p. 5.
And in addition to paying P9,756.19 of damages and P5,000 of lawyer's
fees, with the costs R. on A., pp. 5-6.
The defendant, through the Attorney General, filed a motion to dismiss
the claim on the grounds that the Court does not have jurisdiction to
render a valid judgment against him, since the claim is against the
Republic of the Philippines, and this has not Consent to the application.
The lower court considered the motion and dismissed the claim without
prejudice and without costs.
On appeal, the applicant maintains that it was an error to consider the
claim as one against the Republic and to dismiss the claim in its virtue.
The motion against "Isaias Fernando, Director of Public Works, in charge
and responsible for the construction of irrigation systems in the
Philippines" is a personally directed against him, for acts that he assumed
to execute in his official concept. The law does not exempt you from
liability for any excess that you commit or cause to commit in the
performance of your official duties. A similar case is that of Nelson v.
Bobcock (1933) 18 min. 584, NW 49, 90 ALR 1472. There the Highway
Commissioner, when improving a piece of the road occupied or
appropriated land adjacent to the right-of-way. The Supreme Court of the
State declares that it is personally responsible to the owner of the
damages caused. I further declare that the ratification of what their
subordinates did was equivalent to an order to them. Here is what the
Court said.
We think the evidence and conceded facts permitted the jury in
finding that in the trespass on plaintiff's land defendant committed
acts outside the scope of his authority. When he went outside the
boundaries of the right of way upon plaintiff's land and damaged it
or destroyed its former condition and usefulness, he must be held
to have designedly departed from the duties imposed on him by
law. There can be no claim that he thus invaded plaintiff's land
southeasterly of the right of way innocently. Surveys clearly
marked the limits of the land appropriated for the right of way of
this trunk highway before construction began. . . .
"Ratification may be equivalent to command, and cooperation
may be inferred from acquiescence where there is power to
restrain." It is unnecessary to consider other cases cited, . . ., for
as before suggested, the jury could find or infer that, in so far as
21
there was actual trespass by appropriation of plaintiff's land as a
dumping place for the rock to be removed from the additional
appropriated right of way, defendant planned, approved, and
ratified what was done by his subordinates. —
Nelson vs. Bobcock, 90 A.L.R., 1472, 1476, 1477.
The doctrine on civil liability of civil servants in similar cases is
summarized as follows:
xxx xxx xxx
In any of the cases referred to this article, whether or not the
defendant's acts or omission constitutes a criminal offense, the
aggrieved party has a right ot commence an entirely separate and
distinct civil action for damages, and for other relief. Such civil
action shall proceed independently of any criminal prosecution (if
the latter be instituted), and may be proved by a preponderance
of evidence.

Ordinarily the officer or employee committing the tort is personally The inmdemnity shall include moral damages Exemplary
liable therefor, and may be sued as any other citizen and held damages may also be adjudicated.
answerable for whatever injury or damage results from his
tortious act. — 49 Am. Jur. 289. See also Lung Vs. Aldanese, 45 Phil., 784; Syquia vs. Almeda, No. L-
1648, Aug. 17, 1947; Marquez vs. Nelson, No. L-2412, September 1950.
. . . If an officer, even while acting under color of his office,
exceeds the power conferred on him by law, he cannot shelter The order appealed is revoked and the continuation of the processing of
himself under the plea that he is a public agent. — 43 Am. Jur. the demand is ordered as provided by the regulations.
86.
Without special pronouncement as to costs.
It is a general rule that an officer-executive, administrative quasi- That is how it is commanded.
judicial, ministerial, or otherwise who acts outside the scope of his
jurisdiction and without authorization of law may thereby render
himself amenable to personal liability in a civil suit. If he exceed
the power conferred on him by law, he cannot shelter himself by
the plea that he is a public agent acting under the color of his
office, and not personally. In the eye of the law, his acts then are
wholly without authority. — 43 Am. Jur. 89-90

Article 32 of the Civil Code says:

ART. 32. Any public officer or employee, or any private individual,

who directly or indirectly obstructs, defeats, violates or in any
manner impedes or impairs any of the following rights and
liberties of another person shall be liable to the latter for
damages:

xxx xxx xxx

(6) The right against deprivation of property without due process

of law;
22

G.R. No. 76607 February 26, 1990
UNITED STATES OF AMERICA, FREDERICK M. SMOUSE AND
YVONNE REEVES, petitioners,
vs.
HON. ELIODORO B. GUINTO, Presiding Judge, Branch LVII,
Regional Trial Court, Angeles City, ROBERTO T. VALENCIA,
EMERENCIANA C. TANGLAO, AND PABLO C. DEL
PILAR, respondents.
G.R. No. 79470 February 26, 1990
UNITED STATES OF AMERICA, ANTHONY LAMACHIA, T/SGT.
USAF, WILFREDO BELSA, PETER ORASCION AND ROSE
CARTALLA, petitioners,
vs.
HON. RODOLFO D. RODRIGO, as Presiding Judge of Branch 7,
Regional Trial Court (BAGUIO CITY), La Trinidad, Benguet and
FABIAN GENOVE, respondents.
G.R. No. 80018 February 26, 1990
UNITED STATES OF AMERICA, TOMI J. KINGI, DARREL D. DYE and
STEVEN F. BOSTICK, petitioners,
vs.
HON. JOSEFINA D. CEBALLOS, As Presiding Judge, Regional Trial
Court, Branch 66, Capas, Tarlac, and LUIS BAUTISTA, respondents.
G.R. No. 80258 February 26, 1990
UNITED STATES OF AMERICA, MAJOR GENERAL MICHAEL P. C.
CARNS, AIC ERNEST E. RIVENBURGH, AIC ROBIN BLEVINS, SGT.
NOEL A. GONZALES, SGT. THOMAS MITCHELL, SGT. WAYNE L.
BENJAMIN, ET AL., petitioners,
vs.
HON. CONCEPCION S. ALARCON VERGARA, as Presiding Judge,
Branch 62 REGIONAL TRIAL COURT, Angeles City, and RICKY
SANCHEZ, FREDDIE SANCHEZ AKA FREDDIE RIVERA, EDWIN
MARIANO, AKA JESSIE DOLORES SANGALANG, ET
AL., respondents.
These cases have been consolidated because they all involve the
doctrine of state immunity. The United States of America was not
impleaded in the complaints below but has moved to dismiss on the
ground that they are in effect suits against it to which it has not
consented. It is now contesting the denial of its motions by the
respondent judges.
In G.R. No. 76607, the private respondents are suing several officers of
the U.S. Air Force stationed in Clark Air Base in connection with the
bidding conducted by them for contracts for barber services in the said
base.
On February 24, 1986, the Western Pacific Contracting Office, Okinawa
Area Exchange, U.S. Air Force, solicited bids for such contracts through
its contracting officer, James F. Shaw. Among those who submitted their
bids were private respondents Roberto T. Valencia, Emerenciana C.
Tanglao, and Pablo C. del Pilar. Valencia had been a concessionaire
inside Clark for 34 years; del Pilar for 12 years; and Tanglao for 50 years.
The bidding was won by Ramon Dizon, over the objection of the private
respondents, who claimed that he had made a bid for four facilities,
including the Civil Engineering Area, which was not included in the
invitation to bid.
The private respondents complained to the Philippine Area Exchange
(PHAX). The latter, through its representatives, petitioners Yvonne
Reeves and Frederic M. Smouse explained that the Civil Engineering
concession had not been awarded to Dizon as a result of the February
24, 1986 solicitation. Dizon was already operating this concession, then
known as the NCO club concession, and the expiration of the contract
had been extended from June 30, 1986 to August 31, 1986. They further
explained that the solicitation of the CE barbershop would be available
only by the end of June and the private respondents would be notified.
On June 30, 1986, the private respondents filed a complaint in the court
below to compel PHAX and the individual petitioners to cancel the award
to defendant Dizon, to conduct a rebidding for the barbershop
23
concessions and to allow the private respondents by a writ of preliminary
injunction to continue operating the concessions pending litigation. 1
Upon the filing of the complaint, the respondent court issued an ex
parte order directing the individual petitioners to maintain the status quo.
On July 22, 1986, the petitioners filed a motion to dismiss and opposition
to the petition for preliminary injunction on the ground that the action was
in effect a suit against the United States of America, which had not
waived its non-suability. The individual defendants, as official employees
of the U.S. Air Force, were also immune from suit.
On the same date, July 22, 1986, the trial court denied the application for
a writ of preliminary injunction.
On October 10, 1988, the trial court denied the petitioners' motion to
dismiss, holding in part as follows:
From the pleadings thus far presented to this Court by the
parties, the Court's attention is called by the relationship
between the plaintiffs as well as the defendants, including
the US Government, in that prior to the bidding or
solicitation in question, there was a binding contract
between the plaintiffs as well as the defendants, including
the US Government. By virtue of said contract of
concession it is the Court's understanding that neither the
US Government nor the herein principal defendants would
become the employer/s of the plaintiffs but that the latter
are the employers themselves of the barbers, etc. with the
employer, the plaintiffs herein, remitting the stipulated
percentage of commissions to the Philippine Area
Exchange. The same circumstance would become in
effect when the Philippine Area Exchange opened for
bidding or solicitation the questioned barber shop
concessions. To this extent, therefore, indeed a
commercial transaction has been entered, and for
purposes of the said solicitation, would necessarily be
entered between the plaintiffs as well as the defendants.
The Court, further, is of the view that Article XVIII of the
RP-US Bases Agreement does not cover such kind of
services falling under the concessionaireship, such as a
barber shop concession. 2
On December 11, 1986, following the filing of the herein petition
for certiorari and prohibition with preliminary injunction, we issued a
temporary restraining order against further proceedings in the court
below. 3
In G.R. No. 79470, Fabian Genove filed a complaint for damages against
petitioners Anthony Lamachia, Wilfredo Belsa, Rose Cartalla and Peter
Orascion for his dismissal as cook in the U.S. Air Force Recreation
Center at the John Hay Air Station in Baguio City. It had been
ascertained after investigation, from the testimony of Belsa Cartalla and
Orascion, that Genove had poured urine into the soup stock used in
cooking the vegetables served to the club customers. Lamachia, as club
manager, suspended him and thereafter referred the case to a board of
arbitrators conformably to the collective bargaining agreement between
the Center and its employees. The board unanimously found him guilty
and recommended his dismissal. This was effected on March 5, 1986, by
Col. David C. Kimball, Commander of the 3rd Combat Support Group,
PACAF Clark Air Force Base. Genove's reaction was to file Ms complaint
in the Regional Trial Court of Baguio City against the individual
petitioners. 4
On March 13, 1987, the defendants, joined by the United States of
America, moved to dismiss the complaint, alleging that Lamachia, as an
officer of the U.S. Air Force stationed at John Hay Air Station, was
immune from suit for the acts done by him in his official capacity. They
argued that the suit was in effect against the United States, which had not
given its consent to be sued.
This motion was denied by the respondent judge on June 4, 1987, in an
order which read in part:
It is the understanding of the Court, based on the
allegations of the complaint — which have been
hypothetically admitted by defendants upon the filing of
their motion to dismiss — that although defendants acted
initially in their official capacities, their going beyond what
their functions called for brought them out of the
protective mantle of whatever immunities they may have
24
 had in the beginning. Thus, the allegation that the acts
complained of were illegal, done. with extreme bad faith
and with pre-conceived sinister plan to harass and finally
dismiss the plaintiff, gains significance. 5
The petitioners then came to this Court seeking certiorari and prohibition
with preliminary injunction.
In G.R. No. 80018, Luis Bautista, who was employed as a barracks boy
in Camp O' Donnell, an extension of Clark Air Base, was arrested
following a buy-bust operation conducted by the individual petitioners
herein, namely, Tomi J. King, Darrel D. Dye and Stephen F. Bostick,
officers of the U.S. Air Force and special agents of the Air Force Office of
Special Investigators (AFOSI). On the basis of the sworn statements
made by them, an information for violation of R.A. 6425, otherwise known
as the Dangerous Drugs Act, was filed against Bautista in the Regional
Trial Court of Tarlac. The above-named officers testified against him at
his trial. As a result of the filing of the charge, Bautista was dismissed
from his employment. He then filed a complaint for damages against the
individual petitioners herein claiming that it was because of their acts that
he was removed. 6
During the period for filing of the answer, Mariano Y. Navarro a special
counsel assigned to the International Law Division, Office of the Staff
Judge Advocate of Clark Air Base, entered a special appearance for the
defendants and moved for an extension within which to file an "answer
and/or other pleadings." His reason was that the Attorney General of the
United States had not yet designated counsel to represent the
defendants, who were being sued for their official acts. Within the
extended period, the defendants, without the assistance of counsel or
authority from the U.S. Department of Justice, filed their answer. They
alleged therein as affirmative defenses that they had only done their duty
in the enforcement of the laws of the Philippines inside the American
bases pursuant to the RP-US Military Bases Agreement.
On May 7, 1987, the law firm of Luna, Sison and Manas, having been
retained to represent the defendants, filed with leave of court a motion to
withdraw the answer and dismiss the complaint. The ground invoked was
that the defendants were acting in their official capacity when they did the
acts complained of and that the complaint against them was in effect a
suit against the United States without its consent.
The motion was denied by the respondent judge in his order dated
September 11, 1987, which held that the claimed immunity under the
Military Bases Agreement covered only criminal and not civil cases.
Moreover, the defendants had come under the jurisdiction of the court
when they submitted their answer.7
Following the filing of the herein petition for certiorari and prohibition with
preliminary injunction, we issued on October 14, 1987, a temporary
restraining order. 8
In G.R. No. 80258, a complaint for damages was filed by the private
respondents against the herein petitioners (except the United States of
America), for injuries allegedly sustained by the plaintiffs as a result of the
acts of the defendants. 9 There is a conflict of factual allegations here.
According to the plaintiffs, the defendants beat them up, handcuffed them
and unleashed dogs on them which bit them in several parts of their
bodies and caused extensive injuries to them. The defendants deny this
and claim the plaintiffs were arrested for theft and were bitten by the dogs
because they were struggling and resisting arrest, The defendants stress
that the dogs were called off and the plaintiffs were immediately taken to
the medical center for treatment of their wounds.
In a motion to dismiss the complaint, the United States of America and
the individually named defendants argued that the suit was in effect a suit
against the United States, which had not given its consent to be sued.
The defendants were also immune from suit under the RP-US Bases
Treaty for acts done by them in the performance of their official functions.
The motion to dismiss was denied by the trial court in its order dated
August 10, 1987, reading in part as follows:
The defendants certainly cannot correctly argue that they
are immune from suit. The allegations, of the complaint
which is sought to be dismissed, had to be hypothetically
admitted and whatever ground the defendants may have,
had to be ventilated during the trial of the case on the
merits. The complaint alleged criminal acts against the
individually-named defendants and from the nature of said
acts it could not be said that they are Acts of State, for
which immunity should be invoked. If the Filipinos
themselves are duty bound to respect, obey and submit
25
 themselves to the laws of the country, with more reason,
the members of the United States Armed Forces who are
being treated as guests of this country should respect,
obey and submit themselves to its laws. 10
and so was the motion for reconsideration. The defendants submitted
their answer as required but subsequently filed their petition
for certiorari and prohibition with preliminary injunction with this Court. We
issued a temporary restraining order on October 27, 1987. 11
II
The rule that a state may not be sued without its consent, now expressed
in Article XVI, Section 3, of the 1987 Constitution, is one of the generally
accepted principles of international law that we have adopted as part of
the law of our land under Article II, Section 2. This latter provision merely
reiterates a policy earlier embodied in the 1935 and 1973 Constitutions
and also intended to manifest our resolve to abide by the rules of the
international community.
Even without such affirmation, we would still be bound by the generally
accepted principles of international law under the doctrine of
incorporation. Under this doctrine, as accepted by the majority of states,
such principles are deemed incorporated in the law of every civilized
state as a condition and consequence of its membership in the society of
nations. Upon its admission to such society, the state is automatically
obligated to comply with these principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on
the justification given by Justice Holmes that "there can be no legal right
against the authority which makes the law on which the right
depends." 12 There are other practical reasons for the enforcement of the
doctrine. In the case of the foreign state sought to be impleaded in the
local jurisdiction, the added inhibition is expressed in the maxim par in
parem, non habet imperium. All states are sovereign equals and cannot
assert jurisdiction over one another. A contrary disposition would, in the
language of a celebrated case, "unduly vex the peace of nations." 13
While the doctrine appears to prohibit only suits against the state without
its consent, it is also applicable to complaints filed against officials of the
state for acts allegedly performed by them in the discharge of their duties.
The rule is that if the judgment against such officials will require the state
itself to perform an affirmative act to satisfy the same, such as the
appropriation of the amount needed to pay the damages awarded against
them, the suit must be regarded as against the state itself although it has
not been formally impleaded. 14 In such a situation, the state may move to
dismiss the complaint on the ground that it has been filed without its
consent.
The doctrine is sometimes derisively called "the royal prerogative of
dishonesty" because of the privilege it grants the state to defeat any
legitimate claim against it by simply invoking its non-suability. That is
hardly fair, at least in democratic societies, for the state is not an
unfeeling tyrant unmoved by the valid claims of its citizens. In fact, the
doctrine is not absolute and does not say the state may not be sued
under any circumstance. On the contrary, the rule says that the state may
not be sued without its consent, which clearly imports that it may be sued
if it consents.
The consent of the state to be sued may be manifested expressly or
impliedly. Express consent may be embodied in a general law or a
special law. Consent is implied when the state enters into a contract or it
itself commences litigation.
The general law waiving the immunity of the state from suit is found in Act
No. 3083, under which the Philippine government "consents and submits
to be sued upon any moneyed claim involving liability arising from
contract, express or implied, which could serve as a basis of civil action
between private parties." In Merritt v. Government of the Philippine
Islands, 15 a special law was passed to enable a person to sue the
government for an alleged tort. When the government enters into a
contract, it is deemed to have descended to the level of the other
contracting party and divested of its sovereign immunity from suit with its
implied consent. 16 Waiver is also implied when the government files a
complaint, thus opening itself to a counterclaim. 17
The above rules are subject to qualification. Express consent is effected
only by the will of the legislature through the medium of a duly enacted
statute. 18 We have held that not all contracts entered into by the
government will operate as a waiver of its non-suability; distinction must
be made between its sovereign and proprietary acts. 19 As for the filing of
26
a complaint by the government, suability will result only where the
government is claiming affirmative relief from the defendant. 20
In the case of the United States of America, the customary rule of
international law on state immunity is expressed with more specificity in
the RP-US Bases Treaty. Article III thereof provides as follows:
It is mutually agreed that the United States shall have the
rights, power and authority within the bases which are
necessary for the establishment, use, operation and
defense thereof or appropriate for the control thereof and
all the rights, power and authority within the limits of the
territorial waters and air space adjacent to, or in the
vicinity of, the bases which are necessary to provide
access to them or appropriate for their control.
The petitioners also rely heavily on Baer v. Tizon, 21 along with several
other decisions, to support their position that they are not suable in the
cases below, the United States not having waived its sovereign immunity
from suit. It is emphasized that in Baer, the Court held:
The invocation of the doctrine of immunity from suit of a
foreign state without its consent is appropriate. More
specifically, insofar as alien armed forces is concerned,
the starting point is Raquiza v. Bradford, a 1945 decision.
In dismissing a habeas corpus petition for the release of
petitioners confined by American army authorities, Justice
Hilado speaking for the Court, cited Coleman v.
Tennessee, where it was explicitly declared: 'It is well
settled that a foreign army, permitted to march through a
friendly country or to be stationed in it, by permission of its
government or sovereign, is exempt from the civil and
criminal jurisdiction of the place.' Two years later, in Tubb
and Tedrow v. Griess, this Court relied on the ruling in
Raquiza v. Bradford and cited in support thereof excerpts
from the works of the following authoritative writers:
Vattel, Wheaton, Hall, Lawrence, Oppenheim, Westlake,
Hyde, and McNair and Lauterpacht. Accuracy demands
the clarification that after the conclusion of the Philippine-
American Military Bases Agreement, the treaty provisions
should control on such matter, the assumption being that
there was a manifestation of the submission to jurisdiction
on the part of the foreign power whenever appropriate.
More to the point is Syquia v. Almeda Lopez, where
plaintiffs as lessors sued the Commanding General of the
United States Army in the Philippines, seeking the
restoration to them of the apartment buildings they owned
leased to the United States armed forces stationed in the
Manila area. A motion to dismiss on the ground of non-
suability was filed and upheld by respondent Judge. The
matter was taken to this Court in a mandamus
proceeding. It failed. It was the ruling that respondent
Judge acted correctly considering that the 4 action must
be considered as one against the U.S. Government. The
opinion of Justice Montemayor continued: 'It is clear that
the courts of the Philippines including the Municipal Court
of Manila have no jurisdiction over the present case for
unlawful detainer. The question of lack of jurisdiction was
raised and interposed at the very beginning of the action.
The U.S. Government has not given its consent to the
filing of this suit which is essentially against her, though
not in name. Moreover, this is not only a case of a citizen
filing a suit against his own Government without the
latter's consent but it is of a citizen firing an action against
a foreign government without said government's consent,
which renders more obvious the lack of jurisdiction of the
courts of his country. The principles of law behind this rule
are so elementary and of such general acceptance that
we deem it unnecessary to cite authorities in support
thereof then came Marvel Building Corporation v.
Philippine War Damage Commission, where respondent,
a United States Agency established to compensate
damages suffered by the Philippines during World War II
was held as falling within the above doctrine as the suit
against it would eventually be a charge against or
financial liability of the United States Government
because ... , the Commission has no funds of its own for
the purpose of paying money judgments.' The Syquia
ruling was again explicitly relied upon in Marquez Lim v.
Nelson, involving a complaint for the recovery of a motor
launch, plus damages, the special defense interposed
being 'that the vessel belonged to the United States
Government, that the defendants merely acted as agents
27
 of said Government, and that the United States
Government is therefore the real party in interest.' So it
was in Philippine Alien Property Administration v. Castelo,
where it was held that a suit against Alien Property
Custodian and the Attorney General of the United States
involving vested property under the Trading with the
Enemy Act is in substance a suit against the United
States. To the same effect is Parreno v. McGranery, as
the following excerpt from the opinion of justice Tuazon
clearly shows: 'It is a widely accepted principle of
international law, which is made a part of the law of the
land (Article II, Section 3 of the Constitution), that a
foreign state may not be brought to suit before the courts
of another state or its own courts without its consent.'
Finally, there is Johnson v. Turner, an appeal by the
defendant, then Commanding General, Philippine
Command (Air Force, with office at Clark Field) from a
decision ordering the return to plaintiff of the confiscated
military payment certificates known as scrip money. In
reversing the lower court decision, this Tribunal, through
Justice Montemayor, relied on Syquia v. Almeda Lopez,
explaining why it could not be sustained.
It bears stressing at this point that the above observations do not confer
on the United States of America a blanket immunity for all acts done by it
or its agents in the Philippines. Neither may the other petitioners claim
that they are also insulated from suit in this country merely because they
have acted as agents of the United States in the discharge of their official
functions.
There is no question that the United States of America, like any other
state, will be deemed to have impliedly waived its non-suability if it has
entered into a contract in its proprietary or private capacity. It is only
when the contract involves its sovereign or governmental capacity that no
such waiver may be implied. This was our ruling in UnitedStates of
America v. Ruiz, 22 where the transaction in question dealt with the
improvement of the wharves in the naval installation at Subic Bay. As this
was a clearly governmental function, we held that the contract did not
operate to divest the United States of its sovereign immunity from suit. In
the words of Justice Vicente Abad Santos:
The traditional rule of immunity exempts a State from
being sued in the courts of another State without its
consent or waiver. This rule is a necessary consequence
of the principles of independence and equality of States.
However, the rules of International Law are not petrified;
they are constantly developing and evolving. And
because the activities of states have multiplied, it has
been necessary to distinguish them — between sovereign
and governmental acts (jure imperii) and private,
commercial and proprietary acts (jure gestionis). The
result is that State immunity now extends only to acts jure
imperii The restrictive application of State immunity is now
the rule in the United States, the United kingdom and
other states in Western Europe.
xxx xxx xxx
The restrictive application of State immunity is proper only
when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial
activities or economic affairs. Stated differently, a State
may be said to have descended to the level of an
individual and can thus be deemed to have tacitly given
its consent to be sued only when it enters into business
contracts. It does not apply where the contract relates to
the exercise of its sovereign functions. In this case the
projects are an integral part of the naval base which is
devoted to the defense of both the United States and the
Philippines, indisputably a function of the government of
the highest order; they are not utilized for nor dedicated to
commercial or business purposes.
The other petitioners in the cases before us all aver they have acted in
the discharge of their official functions as officers or agents of the United
States. However, this is a matter of evidence. The charges against them
may not be summarily dismissed on their mere assertion that their acts
are imputable to the United States of America, which has not given its
consent to be sued. In fact, the defendants are sought to be held
answerable for personal torts in which the United States itself is not
involved. If found liable, they and they alone must satisfy the judgment.
28
In Festejo v. Fernando, 23 a bureau director, acting without any authority
whatsoever, appropriated private land and converted it into public
irrigation ditches. Sued for the value of the lots invalidly taken by him, he
moved to dismiss the complaint on the ground that the suit was in effect
against the Philippine government, which had not given its consent to be
sued. This Court sustained the denial of the motion and held that the
doctrine of state immunity was not applicable. The director was being
sued in his private capacity for a personal tort.
With these considerations in mind, we now proceed to resolve the cases
at hand.
III
It is clear from a study of the records of G.R. No. 80018 that the
individually-named petitioners therein were acting in the exercise of their
official functions when they conducted the buy-bust operation against the
complainant and thereafter testified against him at his trial. The said
petitioners were in fact connected with the Air Force Office of Special
Investigators and were charged precisely with the function of preventing
the distribution, possession and use of prohibited drugs and prosecuting
those guilty of such acts. It cannot for a moment be imagined that they
were acting in their private or unofficial capacity when they apprehended
and later testified against the complainant. It follows that for discharging
their duties as agents of the United States, they cannot be directly
impleaded for acts imputable to their principal, which has not given its
consent to be sued. As we observed in Sanders v. Veridiano: 24
Given the official character of the above-described letters,
we have to conclude that the petitioners were, legally
speaking, being sued as officers of the United States
government. As they have acted on behalf of that
government, and within the scope of their authority, it is
that government, and not the petitioners personally, that is
responsible for their acts.
The private respondent invokes Article 2180 of the Civil Code which
holds the government liable if it acts through a special agent. The
argument, it would seem, is premised on the ground that since the
officers are designated "special agents," the United States government
should be liable for their torts.
There seems to be a failure to distinguish between suability and liability
and a misconception that the two terms are synonymous. Suability
depends on the consent of the state to be sued, liability on the applicable
law and the established facts. The circumstance that a state is suable
does not necessarily mean that it is liable; on the other hand, it can never
be held liable if it does not first consent to be sued. Liability is not
conceded by the mere fact that the state has allowed itself to be sued.
When the state does waive its sovereign immunity, it is only giving the
plaintiff the chance to prove, if it can, that the defendant is liable.
The said article establishes a rule of liability, not suability. The
government may be held liable under this rule only if it first allows itself to
be sued through any of the accepted forms of consent.
Moreover, the agent performing his regular functions is not a special
agent even if he is so denominated, as in the case at bar. No less
important, the said provision appears to regulate only the relations of the
local state with its inhabitants and, hence, applies only to the Philippine
government and not to foreign governments impleaded in our courts.
We reject the conclusion of the trial court that the answer filed by the
special counsel of the Office of the Sheriff Judge Advocate of Clark Air
Base was a submission by the United States government to its
jurisdiction. As we noted in Republic v. Purisima, 25 express waiver of
immunity cannot be made by a mere counsel of the government but must
be effected through a duly-enacted statute. Neither does such answer
come under the implied forms of consent as earlier discussed.
But even as we are certain that the individual petitioners in G.R. No.
80018 were acting in the discharge of their official functions, we hesitate
to make the same conclusion in G.R. No. 80258. The contradictory
factual allegations in this case deserve in our view a closer study of what
actually happened to the plaintiffs. The record is too meager to indicate if
the defendants were really discharging their official duties or had actually
exceeded their authority when the incident in question occurred. Lacking
this information, this Court cannot directly decide this case. The needed
inquiry must first be made by the lower court so it may assess and
resolve the conflicting claims of the parties on the basis of the evidence
that has yet to be presented at the trial. Only after it shall have
determined in what capacity the petitioners were acting at the time of the
29
incident in question will this Court determine, if still necessary, if the
doctrine of state immunity is applicable.
In G.R. No. 79470, private respondent Genove was employed as a cook
in the Main Club located at the U.S. Air Force Recreation Center, also
known as the Open Mess Complex, at John Hay Air Station. As manager
of this complex, petitioner Lamachia is responsible for eleven diversified
activities generating an annual income of $2 million. Under his executive
management are three service restaurants, a cafeteria, a bakery, a Class
VI store, a coffee and pantry shop, a main cashier cage, an
administrative office, and a decentralized warehouse which maintains a
stock level of $200,000.00 per month in resale items. He supervises 167
employees, one of whom was Genove, with whom the United States
government has concluded a collective bargaining agreement.
From these circumstances, the Court can assume that the restaurant
services offered at the John Hay Air Station partake of the nature of a
business enterprise undertaken by the United States government in its
proprietary capacity. Such services are not extended to the American
servicemen for free as a perquisite of membership in the Armed Forces
of the United States. Neither does it appear that they are exclusively
offered to these servicemen; on the contrary, it is well known that they
are available to the general public as well, including the tourists in Baguio
City, many of whom make it a point to visit John Hay for this reason. All
persons availing themselves of this facility pay for the privilege like all
other customers as in ordinary restaurants. Although the prices are
concededly reasonable and relatively low, such services are undoubtedly
operated for profit, as a commercial and not a governmental activity.
The consequence of this finding is that the petitioners cannot invoke the
doctrine of state immunity to justify the dismissal of the damage suit
against them by Genove. Such defense will not prosper even if it be
established that they were acting as agents of the United States when
they investigated and later dismissed Genove. For that matter, not even
the United States government itself can claim such immunity. The reason
is that by entering into the employment contract with Genove in the
discharge of its proprietary functions, it impliedly divested itself of its
sovereign immunity from suit.
But these considerations notwithstanding, we hold that the complaint
against the petitioners in the court below must still be dismissed. While
suable, the petitioners are nevertheless not liable. It is obvious that the
claim for damages cannot be allowed on the strength of the evidence
before us, which we have carefully examined.
The dismissal of the private respondent was decided upon only after a
thorough investigation where it was established beyond doubt that he had
polluted the soup stock with urine. The investigation, in fact, did not stop
there. Despite the definitive finding of Genove's guilt, the case was still
referred to the board of arbitrators provided for in the collective
bargaining agreement. This board unanimously affirmed the findings of
the investigators and recommended Genove's dismissal. There was
nothing arbitrary about the proceedings. The petitioners acted quite
properly in terminating the private respondent's employment for his
unbelievably nauseating act. It is surprising that he should still have the
temerity to file his complaint for damages after committing his utterly
disgusting offense.
Concerning G.R. No. 76607, we also find that the barbershops subject of
the concessions granted by the United States government are
commercial enterprises operated by private person's. They are not
agencies of the United States Armed Forces nor are their facilities
demandable as a matter of right by the American servicemen. These
establishments provide for the grooming needs of their customers and
offer not only the basic haircut and shave (as required in most military
organizations) but such other amenities as shampoo, massage, manicure
and other similar indulgences. And all for a fee. Interestingly, one of the
concessionaires, private respondent Valencia, was even sent abroad to
improve his tonsorial business, presumably for the benefit of his
customers. No less significantly, if not more so, all the barbershop
concessionaires are under the terms of their contracts, required to remit
to the United States government fixed commissions in consideration of
the exclusive concessions granted to them in their respective areas.
This being the case, the petitioners cannot plead any immunity from the
complaint filed by the private respondents in the court below. The
contracts in question being decidedly commercial, the conclusion
reached in the United States of America v. Ruiz case cannot be applied
here.
The Court would have directly resolved the claims against the defendants
as we have done in G.R. No. 79470, except for the paucity of the record
30
in the case at hand. The evidence of the alleged irregularity in the grant SO ORDERED.
of the barbershop concessions is not before us. This means that, as in
G.R. No. 80258, the respondent court will have to receive that evidence
first, so it can later determine on the basis thereof if the plaintiffs are
entitled to the relief they seek. Accordingly, this case must also be
remanded to the court below for further proceedings.

IV

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

WHEREFORE, after considering all the above premises, the Court

hereby renders judgment as follows:

1. In G.R. No. 76607, the petition is DISMISSED and the

respondent judge is directed to proceed with the hearing
and decision of Civil Case No. 4772. The temporary
restraining order dated December 11, 1986, is LIFTED.

2. In G.R. No. 79470, the petition is GRANTED and Civil

Case No. 829-R(298) is DISMISSED.

3. In G.R. No. 80018, the petition is GRANTED and Civil

Case No. 115-C-87 is DISMISSED. The temporary
restraining order dated October 14, 1987, is made
permanent.

4. In G.R. No. 80258, the petition is DISMISSED and the

respondent court is directed to proceed with the hearing
and decision of Civil Case No. 4996. The temporary
restraining order dated October 27, 1987, is LIFTED.

All without any pronouncement as to costs.

31

[G.R. No. 91359. September 25, 1992.]
VETERANS MANPOWER AND PROTECTIVE SERVICES, INC., Petitioner,
v. THE COURT OF APPEALS, THE CHIEF OF PHILIPPINE CONSTABULARY
and PHILIPPINE CONSTABULARY SUPERVISORY UNIT FOR SECURITY
AND INVESTIGATION AGENCIES (PC-SUSIA), Respondents.
This is a petition for review on certiorari of the decision dated August 11,
1989, of the Court of Appeals in CA-G.R. SP No. 15990, entitled "The
Chief of Philippine Constabulary (PC) and Philippine Constabulary
Supervisor Unit for Security and Investigation Agencies (PC-SUSIA) v.
Hon. Omar U. Amin and Veterans Manpower and Protective Services,
Inc. (VMPSI)," lifting the writ of preliminary injunction which the Regional
Trial Court had issued to the PC-SUSIA enjoining them from committing
acts that would result in the cancellation or non-renewal of the license of
VMPSI to operate as a security agency.chanrobles virtual lawlibrary
On March 28, 1988, VMPSI filed a complaint in the Regional Trial Court
at Makati, Metro Manila, praying the court to:
"A. Forthwith issue a temporary restraining order to preserve the status
quo, enjoining the defendants, or any one acting in their place or stead, to
refrain from committing acts that would result in the cancellation or non-
renewal of VMPSI’s license;
"B. In due time, issue a writ of preliminary injunction to the same effect;
"C. Render decision and judgment declaring null and void the
amendment of Section 4 of R.A. No. 5487, by PD No. 11 exempting
organizations like PADPAO from the prohibition that no person shall
organize or have an interest in more than one agency, declaring
PADPAO as an illegal organization existing in violation of said prohibition,
without the illegal exemption provided in PD No. 11; declaring null and
void Section 17 of R.A. No. 5487 which provides for the issuance of rules
and regulations in consultation with PADPAO, declaring null and void the
February 1, 1982 directive of Col. Sabas V. Edadas, in the name of the
then PC Chief, requiring all private security agencies/security forces such
as VMPSI to join PADPAO as a prerequisite to secure/renew their
licenses, declaring that VMPSI did not engage in ‘cut-throat competition’
in its contract with MWSS, ordering defendants PC Chief and PC-SUSIA
to renew the license of VMPSI; ordering the defendants to refrain from
further harassing VMPSI and from threatening VMPSI with cancellations
or non-renewal of license, without legal and justifiable cause; ordering the
defendants to pay to VMPSI the sum of P1,000,000.00 as actual and
compensatory damages, P1,000,000.00 as exemplary damages, and
P200,000.00 as attorney’s fees and expenses of litigation; and granting
such further or other reliefs to VMPSI as may be deemed lawful,
equitable and just." (pp. 55-56, Rollo.)
The constitutionality of the following provisions of R.A. 5487 (otherwise
known as the "Private Security Agency Law"), as amended, is questioned
by VMPSI in its complaint:
"SECTION 4. Who may Organize a Security or Watchman Agency. —
Any Filipino citizen or a corporation, partnership, or association, with a
minimum capital of five thousand pesos, one hundred per cent of which is
owned and controlled by Filipino citizens may organize a security or
watchman agency: Provided, That no person shall organize or have an
interest in, more than one such agency except those which are already
existing at the promulgation of this Decree: . . ." (As amended by P.D.
Nos. 11 and 100.)
"SECTION 17. Rules and Regulations by Chief, Philippine Constabulary.
— The Chief of the Philippine Constabulary, in consultation with the
Philippine Association of Detective and Protective Agency Operators, Inc.
and subject to the provision of existing laws, is hereby authorized to issue
the rules and regulations necessary to carry out the purpose of this
Act."cralaw virtua1aw library
VMPSI alleges that the above provisions of R.A. No. 5487 violate the
provisions of the 1987 Constitution against monopolies, unfair
competition and combinations in restraint of trade, and tend to favor and
institutionalize the Philippine Association of Detective and Protective
Agency Operators, Inc. (PADPAO) which is monopolistic because it has
an interest in more than one security agency.
Respondent VMPSI likewise questions the validity of paragraph 3,
subparagraph (g) of the Modifying Regulations on the Issuance of
License to Operate and Private Security Licenses and Specifying
Regulations for the Operation of PADPAO issued by then PC Chief Lt.
Gen. Fidel V. Ramos, through Col. Sabas V. Edades, requiring that "all
private security agencies/company security forces must register as
members of any PADPAO Chapter organized within the Region where
32
their main offices are located . . ." (pp. 5-6, Complaint in Civil Case No.
88-471). As such membership requirement in PADPAO is compulsory in
nature, it allegedly violates legal and constitutional provisions against
monopolies, unfair competition and combinations in restraint of
trade.chanrobles.com : virtual law library
On May 12, 1986, a Memorandum of Agreement was executed by
PADPAO and the PC Chief, which fixed the minimum monthly contract
rate per guard for eight (8) hours of security service per day at P2,255.00
within Metro Manila and P2,215.00 outside of Metro Manila (Annex B,
Petition).
On June 29, 1987, Odin Security Agency (Odin) filed a complaint with
PADPAO accusing VMPSI of cut-throat competition by undercutting its
contract rate for security services rendered to the Metropolitan
Waterworks and Sewerage System (MWSS), charging said customer
lower than the standard minimum rates provided in the Memorandum of
Agreement dated May 12, 1986.
PADPAO found VMPSI guilty of cut-throat competition, hence, the
PADPAO Committee on Discipline recommended the expulsion of VMPSI
from PADPAO and the cancellation of its license to operate a security
agency (Annex D, Petition).
The PC-SUSIA made similar findings and likewise recommended the
cancellation of VMPSI’s license (Annex E, Petition).
As a result, PADPAO refused to issue a clearance/certificate of
membership to VMPSI when it requested one.
VMPSI wrote the PC Chief on March 10, 1988, requesting him to set
aside or disregard the findings of PADPAO and consider VMPSI’s
application for renewal of its license, even without a certificate of
membership from PADPAO (Annex F, Petition).
As the PC Chief did not reply, and VMPSI’s license was expiring on
March 31, 1988, VMPSI filed Civil Case No. 88-471 in the RTC-Makati,
Branch 135, on March 28, 1988 against the PC Chief and PC-SUSIA. On
the same date, the court issued a restraining order enjoining the PC Chief
and PC-SUSIA "from committing acts that would result in the cancellation
or non-renewal of VMPSI’s license" (Annex G, Petition).
The PC chief and PC-SUSIA filed a "Motion to Dismiss, Opposition to the
Issuance of Writ of Preliminary Injunction, and Motion to Quash the
Temporary Restraining Order," on the grounds that the case is against
the State which had not given consent thereto and that VMPSI’s license
already expired on March 31, 1988, hence, the restraining order or
preliminary injunction would not serve any purpose because there was no
more license to be cancelled (Annex H, Petition). Respondent VMPSI
opposed the motion.
On April 18, 1988, the lower court denied VMPSI’s application for a writ of
preliminary injunction for being premature because it "has up to May 31,
1988 within which to file its application for renewal pursuant to Section 2
(e) of Presidential Decree No. 199, . . ." (p. 140, Rollo.).chanrobles.com :
virtual law library
On May 23, 1988, VMPSI reiterated its application for the issuance of a
writ of preliminary injunction because PC-SUSIA had rejected payment of
the penalty for its failure to submit its application for renewal of its license
and the requirements therefor within the prescribed period in Section 2(e)
of the Revised Rules and Regulations Implementing R.A. 5487, as
amended by P.D. 1919 (Annex M, Petition).
On June 10, 1998, the RTC-Makati issued a writ of preliminary injunction
upon a bond of P100,000.00, restraining the defendants, or any one
acting in their behalf, from cancelling or denying renewal of VMPSI’s
license, until further orders from the court.
The PC Chief and PC-SUSIA filed a Motion for Reconsideration of the
above order, but it was denied by the court in its Order of August 10,
1988 (Annex R, Petition).
On November 3, 1988, the PC Chief and PC-SUSIA sought relief by a
petition for certiorari in the Court of Appeals.
On August 11, 1989, the Court of Appeals granted the petition. The
dispositive portion of its decision reads:jgc:chanrobles.com.ph
"WHEREFORE, the petition for certiorari filed by petitioners PC Chief and
PC-SUSIA is hereby GRANTED, and the RTC-Makati, Branch 135, is
ordered to dismiss the complaint filed by respondent VMPSI in Civil Case
No. 88-471, insofar as petitioners PC Chief and PC-SUSIA are
concerned, for lack of jurisdiction. The writ of preliminary injunction
33
issued on June 10, 1988, is dissolved." (pp. 295-296, Rollo.)
VMPSI came to us with this petition for review.
The primary issue in this case is whether or not VMPSI’s complaint
against the PC Chief and PC-SUSIA is a suit against the State without its
consent.
The answer is yes.
The State may not be sued without its consent (Article XVI, Section 3, of
the 1987 Constitution). Invoking this rule, the PC Chief and PC-SUSIA
contend that, being instrumentalities of the national government
exercising a primarily governmental function of regulating the
organization and operation of private detective, watchmen, or security
guard agencies, said official (the PC Chief) and agency (PC-SUSIA) may
not be sued without the Government’s consent, especially in this case
because VMPSI’s complaint seeks not only to compel the public
respondents to act in a certain way, but worse, because VMPSI seeks
actual and compensatory damages in the sum of P1,000,000.00,
exemplary damages in the same amount, and P200,000.00 as attorney’s
fees from said public respondents. Even if its action prospers, the
payment of its monetary claims may not be enforced because the State
did not consent to appropriate the necessary funds for that
purpose.chanroblesvirtualawlibrary
Thus did we hold in Shauf v. Court of Appeals, 191 SCRA
713:jgc:chanrobles.com.ph
"While the doctrine appears to prohibit only suits against the state without
its consent, it is also applicable to complaints filed against officials of the
state for acts allegedly performed by them in the discharge of their duties.
The rule is that if the judgment against such officials will require the state
itself to perform an affirmative act to satisfy the same, such as the
appropriation of the amount needed to pay the damages awarded against
them, the suit must be regarded as against the state itself although it has
not been formally impleaded." (Emphasis supplied.)
A public official may sometimes be held liable in his personal or private
capacity if he acts in bad faith, or beyond the scope of his authority or
jurisdiction (Shauf v. Court of Appeals, supra), however, since the acts for
which the PC Chief and PC-SUSIA are being called to account in this
case, were performed by them as part of their official duties, without
malice, gross negligence, or bad faith, no recovery may be had against
them in their private capacities.
We agree with the observation of the Court of Appeals that the
Memorandum of Agreement dated May 12, 1986 does not constitute an
implied consent by the State to be sued:jgc:chanrobles.com.ph
"The Memorandum of Agreement dated May 12, 1986 was entered into
by the PC Chief in relation to the exercise of a function sovereign in
nature. The correct test for the application of state immunity is not the
conclusion of a contract by the State but the legal nature of the act. This
was clearly enunciated in the case of United States of America v. Ruiz
where the Hon. Supreme Court held:jgc:chanrobles.com.ph
"‘The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic affairs. Stated differently,
a State may be said to have descended to the level of an individual and
can thus be deemed to have tacitly given its consent to be sued only
when it enters into a business contract. It does not apply where the
contract relates to the exercise of its functions.’ (136 SCRA 487, 492.)
"In the instant case, the Memorandum of Agreement entered into by the
PC Chief and PADPAO was intended to professionalize the industry and
to standardize the salaries of security guards as well as the current rates
of security services, clearly, a governmental function. The execution of
the said agreement is incidental to the purpose of R.A. 5487, as
amended, which is to regulate the organization and operation of private
detective, watchmen or security guard agencies. (Emphasis ours.)" (pp.
258-259, Rollo.)
Waiver of the State’s immunity from suit, being a derogation of
sovereignty, will not be lightly inferred, but must be construed strictissimi
juris (Republic v. Feliciano, 148 SCRA 424). The consent of the State to
be sued must emanate from statutory authority, hence, from a legislative
act, not from a mere memorandum. Without such consent, the trial court
did not acquire jurisdiction over the public respondents.
The state immunity doctrine rests upon reasons of public policy and the
inconvenience and danger which would flow from a different rule. "It is
obvious that public service would be hindered, and public safety
34
endangered, if the supreme authority could be subjected to suits at the
instance of every citizen, and, consequently, controlled in the use and
disposition of the means required for the proper administration of the
government" (Siren v. U.S. Wall, 152, 19 L. ed. 129, as cited in 78 SCRA
477). In the same vein, this Court in Republic v. Purisima (78 SCRA 470,
473) rationalized:jgc:chanrobles.com.ph

"Nonetheless, a continued adherence to the doctrine of nonsuability is not

to be deplored for as against the inconvenience that may be cause [by]
private parties, the loss of governmental efficiency and the obstacle to the
performance of its multifarious functions are far greater if such a
fundamental principle were abandoned and the availability of judicial
remedy were not thus restricted. With the well known propensity on the
part of our people to go to court, at the least provocation, the loss of time
and energy required to defend against law suits, in the absence of such a
basic principle that constitutes such an effective obstacles, could very
well be imagined." (citing Providence Washington Insurance Co. v.
Republic, 29 SCRA 598.)cralawnad

WHEREFORE, the petition for review is DENIED and the judgment

appealed from is AFFIRMED in toto. No costs.

35