2.

Article 3 of the Hague Rules of 1907 (Convention [IV] respecting

the Laws and Customs of War on Land and its annex: Regulations
concerning the Laws and Customs of War on Land. The Hague, 18
October 1907.)

Convention (IV) respecting the Laws and Customs of War on Land and its
annex: Regulations concerning the Laws and Customs of War on Land. The
Hague, 18 October 1907.

State parties (38) - State signatories (15)

One of the purposes for which the First Hague Peace Conference of 1899 was
convened was "the revision of the declaration concerning the laws and
customs of war elaborated in 1874 by the Conference of Brussels, and not yet
ratified" (Russian circular note of 30 December 1898). The Conference of
1899 succeeded in adopting a Convention on land warfare to which
Regulations are annexed. The Convention and the Regulations were revised
at the Second International Peace Conference in 1907. The two versions of
the Convention and the Regulations differ only slightly from each other.

Seventeen of the States which ratified the 1899 Convention did not ratify the
1907 version (Argentina, Bulgaria, Chile, Columbia, Ecuador, Greece, Italy,
Korea, Montenegro, Paraguay, Persia, Peru, Serbia, Spain, Turkey, Uruguay,
Venezuela). These States or their successor States remain formally bound by
the 1899 Convention in their relations with the other parties thereto. As
between the parties to the 1907 Convention, this Convention has replaced
the 1899 Convention (see Article 4 of the 1907 Convention).

The provisions of the two Conventions on land warfare, like most of the
substantive provisions of the Hague Conventions of 1899 and 1907, are
considered as embodying rules of customary international law. As such they
are also binding on States which are not formally parties to them.

In 1946 the Nüremberg International Military Tribunal stated with regard to

the Hague Convention on land warfare of 1907: "The rules of land warfare
expressed in the Convention undoubtedly represented an advance over
existing International Law at the time of their adoption ... but by 1939 these
rules ... were recognized by all civilized nations and were regarded as being
declaratory of the laws and customs of war" (reprinted in AJIL, Vol. 41, 1947,
pp. 248-249). The International Military Tribunal for the Far East expressed, in
1948, an identical view.

The rules embodied in the Regulations were partly reaffirmed and developed
by the two Protocols Additional to the Geneva Conventions of 1949 adopted
in 1977.

D.Schindler and J.Toman, The Laws of Armed Conflicts, Martinus Nihjoff

Publisher, 1988, pp.69-93.

ART 3 - ???

https://ihl-databases.icrc.org/ihl/INTRO/195

EN BANC

[ GR No. 217456, Nov 24, 2015 ]

MARILOU S. LAUDE v. ROLINE M. GINEZ-JABALDE +

DECISION

LEONEN, J.:

Failure to meet the three-day notice rule for filing motions and to obtain the
concurrence of the Public Prosecutor to move for an interlocutory relief in a
criminal prosecution cannot be excused by general exhortations of human
rights. This Petition fails to show any grave abuse of discretion on the part of
the trial court judge. Furthermore, the accused, while undergoing trial and
before conviction, is already detained in the Philippines in compliance with
the obligations contained in the Agreement Between the Government of the
United States of America and the Government of the Republic of the
Philippines Regarding the Treatment of United States Armed Forces Visiting
the Philippines (Visiting Forces Agreement).

This is a Petition for Certiorari[1] under Rule 65, with prayer for the issuance
of a writ of mandatory injunction filed by Marilou S. Laude and Mesehilda S.
Laude (petitioners).

On October 11, 2014, Jeffrey "Jennifer" Laude (Jennifer) was killed at the
Celzone Lodge on Ramon Magsaysay Drive in Olongapo City allegedly by 19-
year-old US Marine L/CPL Joseph Scott Pemberton (Pemberton).[2] On October
15, 2014, a Complaint for murder was filed by Jennifer's sibling, Marilou S.
Laude, against Pemberton before the Olongapo City Office of the City
Prosecutor.[3] On October 22, 2014, Pemberton was detained in Camp
Aguinaldo, the general headquarters of the Armed Forces of the Philippines.
[4]

On December 15, 2014, the Public Prosecutor filed an Information for murder
against Pemberton before the Regional Trial Court in Olongapo City.[5] The
case was docketed as Case No. 865-14, and was raffled to Branch 74.[6] A
warrant of arrest against Pemberton was issued on December 16, 2014.[7]
Pemberton surrendered personally to Judge Roline M. Ginez-Jabalde[8] (Judge
Ginez-Jabalde) on December 19, 2014, and he was then arraigned.[9]

On the same day, Marilou S. Laude filed an Urgent Motion to Compel the
Armed Forces of the Philippines to Surrender Custody of Accused to the
Olongapo City Jail and a Motion to Allow Media Coverage.[10] "The [M]otion
was [scheduled] for hearing on December 22, 2014, at 2 p.m."[11] According
to petitioners, they were only able to serve the Motion on Pemberton's
counsel through registered mail.[12] In any case, they claim to have also
"furnished a copy of the [M]otion personally ... at the hearing of the
[M]otion."[13]

On December 23, 2014, Judge Ginez-Jabalde denied petitioners' Urgent

Motion for lack of merit, the dispositive portion of which reads:[14]

Wherefore, the . . . UrgentMotion [sic] to Compel the Armed Forces of the

Philippines to Surrender Custody of Accused to the Olongapo City Jail [is]
denied for utter lack of merit.[15] (Emphasis in the original)

Petitioners received a copy of the Order on January 5, 2015.[16] On January 9,

2015, petitioners filed a Motion for Reconsideration.[17] On February 18,
2015, Judge Ginez-Jabalde issued an Order denying petitioners' Motion for
Reconsideration for lack of merit.

In a Resolution[19] dated April 21, 2015, respondents were required to file

their Comment on the Petition. On June 5, 2015, public respondents, as
represented by the Office of the Solicitor General, filed their (First) Motion for
Extension of Time to File Comment[20] for 60 days. On the same day,
Pemberton posted his Motion for Additional Time to File Comment[21] for 10
days. Pemberton filed his Comment by counsel on June 16, 2015,[22] while
public respondents, through the Office of the Solicitor General, filed their
Comment on September 23, 2015.[23]

Petitioners argue that "[Respondent Judge committed grave abuse of

discretion tantamount to an excess or absence of jurisdiction when she
dismissed the Urgent Motion to Compel the Armed Forces of the Philippines to
Surrender Custody o[f] Accused to the Olongapo City Jail [based] on mere
technicalities[.]"[24] In particular, they argue that the three-day rule on
motions under Rule 15, Section 4[25] of the 1997 Rules of Court is not
absolute, and should be liberally interpreted when a case is attended by
exigent circumstances.[26]

Petitioners advance that the rationale behind the three-day notice rule is
satisfied when there is an opportunity to be heard, which was present in this
case since Pemberton's counsel and the Public Prosecutor were present in the
hearing of the two Motions filed by petitioners.[27] Petitioners allege that the
court noted their attendance, and were able to make comments during the
December 22, 2014 Motion hearing.[28] They assert that the rights of
Pemberton were not compromised in any way.[29]

Petitioners also aver that the three-day notice rule should be liberally applied
due to the timing of the arrest and arraignment.[30] "The Urgent Motion was
set for hearing on December 22, 2014[.]"[31] This date preceded a series of
legal holidays beginning on December 24, 2014, where all the courts and
government offices suspended their work.[32] Petitioners point out that a
"murder trial is under a distinctly special circumstance in that Paragraph 6,
Article V of the Visiting Forces Agreement. . . provides for [a] one-year trial
period[,] after which the United States shall be relieved of any obligations
under said paragraph[.]"[33] Petitioners had to file and set the Motion
hearing at the earliest possible date.[34]

Petitioners further argue that Judge Ginez-Jabalde should not have dismissed
the Urgent Motion to Compel the Armed Forces of the Philippines to Surrender
Custody of Accused to the Olongapo City Jail "considering that the Urgent
Motion raised issues that are of transcendental importance and of primordial
public interest."[35] Petitioners aver that under international human rights
law, in particular the International Covenant on Civil and Political Rights and
the United Nations Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power, they have the right to access to justice,[36] which
is "distinct from the power of the Public Prosecutors to prosecute [the]
criminal case."[37]

Furthermore, petitioners advance that Philippine authorities ought to "have

primary jurisdiction over [Respondent Pemberton's person while [he] is being
tried [in] a Philippine Court[,]"[38] in accordance with Article V, paragraph (3)
(b) of the Visiting Forces Agreement,[39] which states:

3. In cases where the right to exercise jurisdiction is concurrent, the following

rules shall apply:

(a) Philippine authorities shall have the primary right to exercise jurisdiction
over all offenses committed by United States personnel . . .

(Emphasis and underscoring in the original)[40]

Petitioners argue that the custody of Pemberton must be ordered transferred

to the Olongapo City Jail, considering that the crime involved is murder, which
is non-bailable.[41] They aver that it is unconstitutional to refuse to put him
"in the custody of Philippine jail authorities[,]" as such refusal "undermines
the Constitutional Powers of [the Court] to hear a jurisdictional matter
brought before it"[42] and to promulgate rules for the practice of law.[43]
Petitioners argue that even though the Visiting Forces Agreement gives the
United States the "sole discretion" to decide whether to surrender custody of
an accused American military personnel to the Philippine authorities, "the
rule is that . . . the Court [still] has control over any proceeding involving a
jurisdictional matter brought before it, even if it may well involve the
country's relations with another foreign power."[44]

As for the nonconformity of the Public Prosecutor, petitioners argue that the
Public Prosecutor's refusal to sign the Urgent Motion to Compel the Armed
Forces of the Philippines to Surrender Custody of Accused to the Olongapo
City Jail rendered the requirement for conformity superfluous.[45] Petitioners
allege that the Public Prosecutor's act is contrary to Department of Justice
Secretary Leila M. De Lima's (Secretary De Lima) position on the matter.[46]
They quote Secretary De Lima as having said the following statement in a
news article dated December 17, 2014:

The Philippines will now insist on the custody (of Pemberton) now that the
(case) is filed in court and especially since the warrant of arrest has been
issued," De Lima told reporters in an ambush interview.[47]

Petitioners also quoted Secretary De Lima as having stated in another news

article dated December 18, 2014 the following:

Justice Secretary Leila De Lima stressed that Pemberton should be under the
custody of Philippine authorities, following the filing of charges.

"There is also a provision in the Visiting Forces Agreement that, in cases of

extraordinary circumstances, the Philippine government can insist on the
custody and for me, there are enough such circumstances, such as cruelty
and treachery, that justified the filing of the murder and not homicide," De
Lima said.[48]

The contrary manifestations made by Secretary De Lima, according to

petitioners, meant that "[t]he conformity of the Public Prosecutor . . . is a
mere superfluity"[49] and was meant "to deny [petitioners' 'quest for
justice[.]'"[50]
Due to the nature of the case, petitioners pray in this Petition that procedural
requirements be set aside.[51]

In his Comment dated June 16, 2015, Pemberton argues that Judge Ginez-
Jabalde did not commit grave abuse of discretion in denying the Urgent
Motion to Compel the Armed Forces of the Philippines to Surrender Custody of
Accused to the Olongapo City Jail since petitioners violated the three-day
notice rule and failed to secure the conformity of the Public Prosecutor
assigned to the case.[52] He claims that he "was not given an opportunity to
be heard"[53] on petitioners' Motion.

In his counterstatement of facts, Pemberton avers that he voluntarily

surrendered to the Regional Trial Court, Branch 74, on December 19, 2014.
[54] On the same day, Marilou S. Laude filed an Urgent Motion to Compel the
Armed Forces of the Philippines to Surrender Custody of the Accused to the
Olongapo City Jail, and setting the Motion hearing for December 22, 2015, but
did not obtain the Public Prosecutor's conformity.[55] Marilou S. Laude also
failed to personally serve a copy of the Urgent Motion on Pemberton at least
three days prior to the hearing thereof.[56]

Pemberton further avers that on December 22, 2014, Judge Ginez-Jabalde

heard the Urgent Motion to Compel the Armed Forces of the Philippines to
Surrender Custody of the Accused to the Olongapo City Jail and a Motion to
Suspend the Proceedings.[57] Counsel for Pemberton was in court to attend
the hearing for the Motion to Suspend the Proceedings, but did not have
knowledge of the Urgent Motion to Compel the Armed Forces of the
Philippines to Surrender Custody of the Accused to the Olongapo City Jail filed
by Marilou S. Laude.[58] Counsel for Pemberton received a copy of the Urgent
Motion only "a few minutes"[59] before it was to be heard.[60]

On December 23, 2014, Judge Ginez-Jabalde denied Marilou S. Laude's

Urgent Motion to Compel the Armed Forces of the Philippines to Surrender
Custody of the Accused to the Olongapo City Jail for being devoid of merit.
[61] Marilou S. Laude filed a Motion for Reconsideration on January 9, 2015,
[62] without conformity of the Public Prosecutor.[63] On January 20, 2015,
Pemberton filed his Ad Cautelam Opposition [To Private Complainant's Motion
for Reconsideration], arguing that Judge Ginez-Jabalde correctly denied
Marilou S. Laude's Urgent Motion due to the latter's "failure to comply with
settled procedure regarding hearing of motions[.]"[64] Pemberton further
argues that the custody over him "rightfully remain[ed] with the [United
States] authorities. . . ." He cites Section 6 of the Visiting Forces Agreement,
which provides that the "custody of any United States personnel over whom
the Philippines is to exercise jurisdiction shall immediately reside with United
States military authorities, if they so request, from the commission of the
offense, until completion of all judicial proceedings."[65]

Pemberton further argues in his Comment that the presence of his counsel
during the Urgent Motion to Compel the Armed Forces of the Philippines to
Surrender Custody of the Accused to the Olongapo City Jail hearing did "not
equate to an opportunity to be heard as to satisfy the purpose of the three-
day notice rule."[66] Citing Preysler, Jr. v. Manila Southcoast Development
Corporation,[67] Cabrera v. Ng,[68] and Jehan Shipping Corporation v.
National Food Authority,[69] Pemberton avers that an opposing party is given
opportunity to be heard when he is "afforded sufficient time to study the
motion and to meaningfully oppose and controvert the same."[70] Even
though his counsel was able to orally comment on the Urgent Motion,[71]
Pemberton was deprived of any meaningful opportunity to study and oppose
it,[72] having been furnished a copy a few minutes before the hearing.[73]
Marilou S. Laude also failed to provide "justifiable reason for . . . failure to
comply with the three-day notice that would warrant a liberal construction of
the rules."[74]

Pemberton likewise argues that Marilou S. Laude, being only the private
complainant, lacks the legal personality to file the Urgent Motion to Compel
the Armed Forces of the Philippines to Surrender Custody of Accused to the
Olongapo City Jail and the subsequent Motion for Reconsideration "without
the conformity of the Public Prosecutor."[75] Quoting Rule 110, Section 5[76]
of the Revised Rules of Criminal Procedure, Pemberton states that the Public
Prosecutor's lack of consent "rendered the Urgent Motion a mere scrap of
paper."[77] He adds that the defect is "not a mere technicality[.]"[78]

Pemberton also argues that Marilou S. Laude cannot rely on the alleged
statements of Secretary De Lima for the following reasons:[79] First,
Secretary De Lima did not direct the Olongapo City Office of the City
Prosecutor to give its approval to the Urgent Motion and Motion for
Reconsideration;[80] second, Secretary De Lima did not state that the Public
Prosecutor should insist on turning over the custody of Pemberton to the
Philippine authorities.[81] Neither was there any such order from Secretary
De Lima.[82] Petitioners' claims are, therefore, without legal basis.[83]

According to Pemberton, petitioners' use of the '"right to access to justice'

under international law did not excuse [petitioner Marilou [S. Laude] from
securing the authority and conformity of the Public Prosecutor[.]"[84] He
argues that both the International Covenant on Civil and Political Rights and
the United Nations Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power "refer to national or domestic legislation in
affording [victims] access to justice."[85] The Rules of Court and
jurisprudence have established procedures for criminal proceedings, and
these require Marilou S. Laude "to obtain authority and consent from the
Public Prosecutor"[86] before filing a Motion in the ongoing criminal
proceeding.[87]

As for the issue of custody under the Visiting Forces Agreement, Pemberton
argues that there is a difference between "jurisdiction" and "custody."[88] He
avers that jurisdiction is "the power and authority of a court to try, hear[,]
and decide a case."[89] Pemberton does not dispute that "Philippine
authorities have the primary right to exercise jurisdiction over offenses
committed by [a] United States personnel[,] [which is] why the case is being
tried [in] a Philippine court."[90] However, custody "pertains to [the] actual
physical control over the person of the accused[,]"[91] and under the Visiting
Forces Agreement, Pemberton argues that custody shall reside with the
United States Military authorities, since the Visiting Forces Agreement
expressly provides that "[t]he custody of any United States personnel . . .
shall immediately reside with [the] United States military authorities . . . from
the commission of the offense until completion of all judicial
proceedings."[92]

Public respondents advance that Judge Ginez-Jabalde did not commit grave
abuse of discretion when she denied the Urgent Motion to Compel the Armed
Forces of the Philippines to Surrender Custody of Accused to the Olongapo
City Jail.[93] Public respondents, through their Comment filed by the Office of
the Solicitor General, argue that "[petitioners are not real parties in
interest[.]"[94] They claim that "the real party in interest is the People [of the
Philippines], represented by the public prosecutor in the lower court and by
the Office of the Solicitor General ... in the Court of Appeals and in the
Supreme Court."[95] While public respondents recognize that petitioners may
intervene as private offended parties, "the active conduct of. . . trial [in a
criminal case] is properly the duty of the public prosecutor."[96] The
nonconformity of the Public Prosecutor in petitioners' Urgent Motion to
Compel the Armed Forces of the Philippines to Surrender Custody of Accused
to the Olongapo City Jail is fatal in light of its nature pertaining to the place of
Pemberton's confinement.[97] The issue of confinement of an accused
pertains to the criminal aspect of the case and "involves the right to
prosecute[,] which [is lodged] exclusively to the People[.]"[98]

Referring to Rule 110, Section 5 of the Rules of Court, public respondents aver
that the requirement for motions to be "filed in the name of and under the
authority of the public prosecutor"[99] is not a mere technical requirement,
but is part of "the essential, inherent, and exclusive power of the State to
prosecute criminals[.]"[100] Public respondents counter petitioners' claim
that the Public Prosecutor's approval is superfluous given the alleged position
of Secretary De Lima in the newspaper articles. Citing Feria v. Court of
Appeals, public respondents argue that newspaper articles are "hearsay
evidence, twice removed"[101] and are "inadmissible" for having no
probative value, "whether objected to or not."[102]

As for the three-day notice rule under the Rules of Court, public respondents
argue that petitioners' failure to comply cannot be excused in light of the
rule's purpose, that is, for the Motion's adverse party not to be surprised,
granting one sufficient time to study the Motion and be able to meet the
arguments contained in it.[103]

Public respondents argue that while the Visiting Forces Agreement "grants
primary jurisdiction to Philippine authorities"[104] in this case, Pemberton's
handover specifically to the Olongapo City Jail is unnecessary.[105] The
Visiting Forces Agreement does not specify the place of an accused American
personnel's confinement. The issue of custody is thus "best left to the
discretion of the trial court."[106] According to public respondents, for so long
as the present arrangement neither renders it difficult for Pemberton to
appear in court when he is required nor impairs Judge Ginez-Jabalde's
authority to try the case, the trial court may validly decide for Pemberton to
remain where he currently is.[107]

Lastly, public respondents maintain that petitioners are not entitled to a

mandatory injunction since they have no "clear and unmistakable right to the
transfer of [respondent Pemberton] from Camp Aguinaldo to the Olongapo
City Jail."[108] They underscore that "petitioners are private offended
parties[,] not the real party in interest in [this] criminal case[.]"[109]

We dismiss the Petition.

The failure of petitioners to comply with the three-day notice rule is

unjustified.

Rule 15, Section 4 of the Rules of Court clearly makes it a mandatory rule that
the adverse party be given notice of hearing on the motion at least three
days prior.

Failure to comply with this notice requirement renders the motion defective
consistent with protecting the adverse party's right to procedural due
process.[110] In Jehan Shipping Corporation:[111]

As an integral component of procedural due process, the three-day notice

required by the Rules is not intended for the benefit of the movant. Rather,
the requirement is for the purpose of avoiding surprises that may be sprung
upon the adverse party, who must be given time to study and meet the
arguments in the motion before a resolution by the court. Principles of natural
justice demand that the right of a party should not be affected without giving
it an opportunity to be heard.[112] (Emphasis supplied, citations omitted)

While the general rule is that a motion that fails to comply with the
requirements of Rule 15 is a mere scrap of paper, an exception may be made
and the motion may still be acted upon by the court, provided doing so will
neither cause prejudice to the other party nor violate his or her due process
rights.[113] The adverse party must be given time to study the motion in
order to enable him or her to prepare properly and engage the arguments of
the movant.[114] In this case, the general rule must apply because
Pemberton was not given sufficient time to study petitioners' Motion, thereby
depriving him of his right to procedural due process.

Petitioners admit that they personally furnished Pemberton a copy of the

Urgent Motion to Compel the Armed Forces of the Philippines to Surrender
Custody of Accused to the Olongapo City Jail only during the hearing.[115]
They attempt to elude the consequences of this belated notice by arguing
that they also served a copy of the Motion by registered mail on Pemberton's
counsel.[116] They also attempt to underscore the urgency of the Motion by
making a reference to the Christmas season and the "series of legal
holidays"[117] where courts would be closed.[118] To compound their
obfuscation, petitioners claim that the hearing held on December 22, 2014,
attended by Pemberton's counsel sufficiently satisfied the rationale of the
three-day notice rule.

These circumstances taken together do not cure the Motion's deficiencies.

Even granting that Pemberton's counsel was able to comment on the motion
orally during the hearing, which incidentally was set for another incident,
[119] it cannot be said that Pemberton was able to study and prepare for his
counterarguments to the issues raised in the Motion. Judge Ginez-Jabalde was
correct to deny the Urgent Motion to Compel the Armed Forces of the
Philippines to Surrender Custody of Accused to the Olongapo City Jail based
on noncompliance of procedural rules. To rule otherwise would be to prejudice
Pemberton's rights as an accused.

II

Petitioners also argue that the Urgent Motion to Compel the Armed Forces of
the Philippines to Surrender Custody of Accused to the Olongapo City Jail is
an assertion of their right to access to justice as recognized by international
law and the 1987 Constitution. They justify the separate filing of the Motion
as a right granted by Article 2, paragraph (3) of the International Covenant on
Civil and Political Rights,[120] independent of "the power of the Public
Prosecutors to prosecute [a] criminal case."[121]

Article 2, paragraph (3) of the International Covenant on Civil and Political

Rights states:
3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized
are violated shall have an effective remedy, notwithstanding that the
violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies
when granted.[122]

There is no need to discuss whether this provision has attained customary

status, since under treaty law, the Philippines, as a State Party,[123] is
obligated to comply with its obligations under the International Covenant on
Civil and Political Rights.[124] However, petitioners went too far in their
interpretation, ignoring completely the nature of the obligation contemplated
by the provision in an attempt to justify their failure to comply with a
domestic procedural rule aimed to protect a human right in a proceeding,
albeit that of the adverse party.

On March 29, 2004, the United Nations Human Rights Committee issued
General Comment No. 31,[125] which pertained to the nature of the general
legal obligations imposed by the International Covenant on Civil and Political
Rights on State Parties. On Article 2, paragraph (3), the General Comment
states:

15. Article 2, paragraph 3, requires that in addition to effective protection of

Covenant rights[,] States Parties must ensure that individuals also have
accessible and effective remedies to vindicate those rights. Such remedies
should be appropriately adapted so as to take account of the special
vulnerability of certain categories of person, including in particular children.
The Committee attaches importance to States Parties' establishing
appropriate judicial and administrative mechanisms for addressing claims of
rights violations under domestic law. The Committee notes that the
enjoyment of the rights recognized under the Covenant can be effectively
assured by the judiciary in many different ways, including direct applicability
of the Covenant, application of comparable constitutional or other provisions
of law, or the interpretive effect of the Covenant in the application of national
law. Administrative mechanisms are particularly required to give effect to the
general obligation to investigate allegations of violations promptly,
thoroughly and effectively through independent and impartial bodies.
National human rights institutions, endowed with appropriate powers, can
contribute to this end. A failure by a State Party to investigate allegations of
violations could in and of itself give rise to a separate breach of the
Covenant. Cessation of an ongoing violation is an essential element of the
right to an effective remedy.

16. Article 2, paragraph 3, requires that States Parties make reparation to

individuals whose Covenant rights have been violated. Without reparation to
individuals whose Covenant rights have been violated, the obligation to
provide an effective remedy, which is central to the efficacy of article 2,
paragraph 3, is not discharged. In addition to the explicit reparation required
by articles 9, paragraph 5, and 14, paragraph 6, the Committee considers
that the Covenant generally entails appropriate compensation. The
Committee notes that, where appropriate, reparation can involve restitution,
rehabilitation and measures of satisfaction, such as public apologies, public
memorials, guarantees of non-repetition and changes in relevant laws and
practices, as well as bringing to justice the perpetrators of human rights
violations.[126] (Emphasis supplied)

The obligation contemplated by Article 2, paragraph (3) is for the State Party
to establish a system of accessible and effective remedies through judicial
and administrative mechanisms. The present trial of Pemberton, to which
petitioner, Marilou S. Laude, is included as a private complainant, indicates
that there is a legal system of redress for violated rights. That petitioners
chose to act on their own, in total disregard of the mechanism for criminal
proceedings established by this court, should not be tolerated under the
guise of a claim to justice. This is especially in light of petitioners' decision to
furnish the accused in the case a copy of her Motion only during the hearing.
Upholding human rights pertaining to access to justice cannot be eschewed
to rectify an important procedural deficiency that was not difficult to comply
with. Human rights are not a monopoly of petitioners. The accused also
enjoys the protection of these rights.

III

The conformity of the Public Prosecutor to the Urgent Motion to Compel the
Armed Forces of the Philippines to Surrender Custody of Accused to the
Olongapo City Jail is not a mere "superfluity."[127] In Jimenez v. Sorongon,
[128] this court held that in criminal cases, the People is the real party in
interest, which means allowing a private complainant to pursue a criminal
action on his own is a rare exception:[129]

Procedural law basically mandates that "[ajll criminal actions commenced by

complaint or by information shall be prosecuted under the direction and
control of a public prosecutor." In appeals of criminal cases before the CA and
before this Court, the OSG is the appellate counsel of the People. . . .

....

The People is the real party in interest in a criminal case and only the OSG
can represent the People in criminal proceedings pending in the CA or in this
Court. This ruling has been repeatedly stressed in several cases and
continues to be the controlling doctrine.

While there may be rare occasions when the offended party may be allowed
to pursue the criminal action on his own behalf (as when there is a denial of
due process), this exceptional circumstance does not apply in the present
case.

In this case, the petitioner has no legal personality to assail the dismissal of
the criminal case since the main issue raised by the petitioner involved the
criminal aspect of the case, i.e., the existence of probable cause. The
petitioner did not appeal to protect his alleged pecuniary interest as an
offended party of the crime, but to cause the reinstatement of the criminal
action against the respondents. This involves the right to prosecute which
pertains exclusively to the People, as represented by the OSG.[130]
(Emphasis supplied, citations omitted)
In this case, petitioners have not shown why the Motion may be allowed to
fall under the exception. The alleged grave abuse of discretion of the Public
Prosecutor was neither clearly pleaded nor argued. The duty and authority to
prosecute the criminal aspects of this case, including the custody issue, are
duly lodged in the Public Prosecutor. Her refusal to give her conforme to the
Motion is an act well within the bounds of her position. That petitioners used
as bases newspaper articles for claiming that the Public Prosecutor acted
contrary to the position of Secretary De Lima cannot be given weight. Public
respondents are correct in asserting that the proper remedy would have been
for petitioners to have the act reversed by Secretary De Lima through proper
legal venues.

IV

Finally, petitioners argue that the Visiting Forces Agreement should be

declared "unconstitutional insofar as it impairs the . . . power of the Supreme
Court[.]"[131] They advance this argument in the context of their Motion to
place Pemberton under the custody of Philippine authorities while the case is
being tried,[132] with their prayer in this Petition phrased thus:

(b) Declare the VFA unconstitutional insofar as it impairs the constitutional

power of the Supreme Court to promulgate rules for practice before it,
including the Rules of Criminal Procedure[.][133]

The constitutionality of an official act may be the subject of judicial review,

provided the matter is not raised collaterally. In Planters Products, Inc. v.
Fertiphil Corporation:[134]

Judicial review of official acts on the ground of unconstitutionality may be

sought or availed of through any of the actions cognizable by courts of
justice, not necessarily in a suit for declaratory relief. . . The constitutional
issue, however, (a) must be properly raised and presented in the case, and
(b) its resolution is necessary to a determination of the case, i.e., the issue of
constitutionality must be the very lis mota presented.[135] (Emphasis
supplied, citation omitted)
The constitutionality of the Visiting Forces Agreement is not the lis mota of
this Petition. Petitioners started their Petition with a claim that their right to
access to justice was violated, but ended it with a prayer for a declaration of
the Visiting Forces Agreement's unconstitutionality. They attempt to create
the connection between the two by asserting that the Visiting Forces
Agreement prevents the transfer of Pemberton to Olongapo City Jail, which
allegedly is tantamount to the impairment of this court's authority.

First, this Petition is not the proper venue to rule on the issue of whether the
Visiting Forces Agreement transgresses the judicial authority of this court to
promulgate rules pertaining to criminal cases. Second, the issues of criminal
jurisdiction and custody during trial as contained in the Visiting Forces
Agreement were discussed in Nicolas v. Secretary Romulo, et al:[136]

The VFA being a valid and binding agreement, the parties are required as a
matter of international law to abide by its terms and provisions.

The VFA provides that in cases of offenses committed by the members of the
US Armed Forces in the Philippines, the following rules apply:

Article V

Criminal Jurisdiction

xxx xxx xxx

6. The custody of any United States personnel over whom the Philippines is to
exercise jurisdiction shall immediately reside with United States military
authorities, if they so request, from the commission of the offense until
completion of all judicial proceedings. United States military authorities shall,
upon formal notification by the Philippine authorities and without delay, make
such personnel available to those authorities in time for any investigative or
judicial proceedings relating to the offense with which the person has been
charged. In extraordinary cases, the Philippine Government shall present its
position to the United States Government regarding custody, which the
United States Government shall take into full account. In the event Philippine
judicial proceedings are not completed within one year, the United States
shall be relieved of any obligations under this paragraph. The one year period
will not include the time necessary to appeal. Also, the one year period will
not include any time during which scheduled trial procedures are delayed
because United States authorities, after timely notification by Philippine
authorities to arrange for the presence of the accused, fail to do so.

Petitioners contend that these undertakings violate another provision of the

Constitution, namely, that providing for the exclusive power of this Court to
adopt rules of procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]).
They argue that to allow the transfer of custody of an accused to a foreign
power is to provide for a different rule of procedure for that accused, which
also violates the equal protection clause of the Constitution (Art. Ill, Sec. 1.
[sic]).

Again, this Court finds no violation of the Constitution.

The equal protection clause is not violated, because there is a substantial

basis for a different treatment of a member of a foreign military armed forces
allowed to enter our territory and all other accused.

The rule in international law is that a foreign armed forces allowed to enter
one's territory is immune from local jurisdiction, except to the extent agreed
upon. The Status of Forces Agreements involving foreign military units around
the world vary in terms and conditions, according to the situation of the
parties involved, and reflect their bargaining power. But the principle
remains, i.e., the receiving State can exercise jurisdiction over the forces of
the sending State only to the extent agreed upon by the parties.

As a result, the situation involved is not one in which the power of this Court
to adopt rules of procedure is curtailed or violated, but rather one in which,
as is normally encountered around the world, the laws (including rules of
procedure) of one State do not extend or apply — except to the extent agreed
upon — to subjects of another State due to the recognition of extraterritorial
immunity given to such bodies as visiting foreign armed forces.

Nothing in the Constitution prohibits such agreements recognizing immunity

from jurisdiction or some aspects of jurisdiction (such as custody), in relation
to long-recognized subjects of such immunity like Heads of State, diplomats
and members of the armed forces contingents of a foreign State allowed to
enter another State's territory. On the contrary, the Constitution states that
the Philippines adopts the generally accepted principles of international law
as part of the law of the land. (Art. II, Sec. 2).

Applying, however, the provisions of VFA, the Court finds that there is a
different treatment when it comes to detention as against custody. The
moment the accused has to be detained, e.g., after conviction, the rule that
governs is the following provision of the VFA:

Article V

Criminal Jurisdiction

xxx xxx xxx

Sec. 10. The confinement or detention by Philippine authorities of United

States personnel shall be carried out in facilities agreed on by appropriate
Philippines and United States authorities. United States personnel serving
sentences in the Philippines shall have the right to visits and material
assistance.

It is clear that the parties to the VFA recognized the difference between
custody during the trial and detention after conviction, because they
provided for a specific arrangement to cover detention. And this specific
arrangement clearly states not only that the detention shall be carried out in
facilities agreed on by authorities of both parties, but also that the detention
shall be "by Philippine authorities."[137] (Emphasis supplied, citations
omitted)

In any case, Pemberton is confined, while undergoing trial, in Camp

Aguinaldo, which by petitioners' own description is the "General Head
Quarters of the Armed Forces of the Philippines[.] "[138] Their claim that the
detention facility is under the "control, supervisionfj and jurisdiction of
American military authorities"[139] is not substantiated.

Petitioners' prayer for the issuance of a writ of mandatory injunction to

compel public respondents to turn over the custody of Pemberton "from
American military authorities to the OLONGAPO CITY JAIL"[140] is likewise
denied for lack of merit. In Semirara Coal Corporation v. HGL Development
Corporation:[141]

It is likewise established that a writ of mandatory injunction is granted upon a

showing that (a) the invasion of the right is material and substantial; (b) the
right of complainant is clear and unmistakable; and (c) there is an urgent and
permanent necessity for the writ to prevent serious damage.[142] (Emphasis
supplied, citation omitted)

Nowhere in their Petition did petitioners discuss the basis for their claim that
they are entitled to the sought writ, let alone mention it in their arguments.
This court cannot consider the issuance of a writ of mandatory injunction or a
temporary restraining order without any legal and factual basis.

Besides, considering the extent of the scope of this court's power to issue a
temporary restraining order, prayers for the issuance of a writ of mandatory
injunction is usually unnecessary.

WHEREFORE, premises considered, the Petition for Certiorari is DISMISSED for

lack of grave abuse of discretion resulting in lack or excess of jurisdiction. The
prayer for the issuance of a writ of mandatory injunction is likewise DENIED
for lack of merit.

SO ORDERED.

Sereno, C.J., Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Bersamin, Del
Castillo, Villarama, Jr., Perez, Mendoza, and Reyes, JJ., concur.

Carpio, and Jardeleza, JJ., on official leave.

Perlas-Bernabe, J., on leave.

NOTICE OF JUDGMENT

Sirs/Mesdames:

Please take notice that on November 24, 2015 a Decision/Resolution, copy

attached herewith, was rendered by the Supreme Court in the above-entitled
case, the original of which was received by this Office on December 29, 2015
at 9:50 a.m.

Very truly yours,

(SGD)

FELIPA G. BORLONGAN-ANAMA

Clerk of Court

[1] Rollo, pp. 3-36.

[2] Id. at 11.

[3] Id.

[4] Id.

[5] Id. at 12.

[6] Id.

[7] Id.

[8] Petitioners spelled Judge Roline M. Ginez-Jabalde's name as "Jinez-

Jabalde" in their Petition. In the Order (Rollo, pp. 58-59) dated December 23,
2014, Judge Ginez-Jabalde affixed her signature above her name with "Ginez-
Jabalde" as her surname. "Ginez-Jabalde" shall be used in this Decision.

[9] Rollo, p. 12.

[10] Id. at 13.

[11] Id.

[12] Id.

[13] Id.

[14] Id. at 14.

[15] Id.

[16] Id.

[17] Id. at 60-80.

[18] Id. at 81.

[19] Id. at 134.

[20] Id. at 86-88.

[21] Id. at 126-129.

[22] Id. at 92-124.

[23] Id. at 155-167.

[24] Id. at 15, Petition.

[25] RULES OF COURT, Rule 15, sec. 4 provides:

SECTION 4. Hearing of Motion. — Except for motions which the court may act
upon without prejudicing the rights of the adverse party, every written
motion shall be set for hearing by the applicant.

Every written motion required to be heard and the notice of the hearing
thereof shall be served in such a manner as to ensure its receipt by the other
party at least three (3) days before the date of hearing, unless the court for
good cause sets the hearing on shorter notice.

[26] Rollo, pp. 61-67, Marilou S. Laude's Motion for Reconsideration.

[27] Id. at 17-19, Petition.

[28] Id. at 19.

[29] Id.

[30] Id. at 20-22.

[31] Id. at 21.

[32] Id.

[33] Id. at 21-22.

[34] Id. at 22.

[35] Id. at 24.

[36] Id. at 24-26.

[37] Id. at 27.

[38] Id. at 28.

[39] Id. at 28-29.

[40] Id. at 29.

[41] Id.

[42] Id. at 31.

[43] Id. at 32.

[44] Id.

[45] Id. at 22-23.

[46] Id. at 23.

[47] Id., citing De Lima will insist on Pemberton custody, THE DAILY TRIBUNE,
December 17, 2014 (visited November 16, 2015).

[48] Id., citing No more Pemberton custody talks for PH and US, says DFA,
ASIAN JOURNAL, December 18, 2014 (visited November 16, 2015).

[49] Id. at 22.

[50] Id. at 24.

[51] Id. at 28.

[52] Id. at 97, Joseph Scott Pemberton's Comment.

[53] Id.

[54] Id. at 93.

[55] Id. at 93-94.

[56] Id.

[57] Id. at 94.

[58] Id.

[59] Id.

[60] Id.

[61] Id.

62] Id. at 60, Marilou S. Laude's Motion for Reconsideration.

[63] Id. at 94, Joseph Scott Pemberton's Comment.

[64] Id.

[65] Id. at 95.

[66] Id. at 97.

[67] 635 Phil. 598 (2010) [Per J. Carpio, Second Division].

[68] G.R. No. 201601, March 12, 2014, 719 SCRA 199 [Per J. Reyes, First
Division].

[69] 514 Phil. 166 (2005) [Per J. Panganiban, Third Division].

[70] Rollo, p. 98, Joseph Scott Pemberton's Comment.

[71] Id. at 99-100.

[72] Id. at 99.

[73] Id.

[74] Id. at 100.

[75] Id. at 101.

[76] RULES OF COURT, Rule 110, sec. 5 provides:

SECTION 5. Who Must Prosecute Criminal Actions. — All criminal actions

commenced by a complaint or information shall be prosecuted under the
direction and control of the prosecutor. However, in Municipal Trial Courts or
Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the
case is not available, the offended party, any peace officer, or public officer
charged with the enforcement of the law violated may prosecute the case.
This authority shall cease upon actual intervention of the prosecutor or upon
elevation of the case to the Regional Trial Court.

[77] Rollo, p. 101, Joseph Scott Pemberton's Comment.

[78] Id.

[79] Id. at 103.

[80] Id.

[81] Id.

[82] Id.

[83] Id.

[84] Id.

[85] Id. at 104.

[86] Id.

[87] Id.
[88] Id. at 108.

[89] Id. at 109.

[90] Id.

[91] Id.

[92] Id. at 110.

[93] Id. at 160, Hon. Roline M. Ginez-Jabalde, et al.'s Comment

[94] Id. at 157.

[95] Id. at 158.

[96] Id.

[97] Id. at 159.

[98] Id.

[99] Id. at 160.

[100] Id.
[101] Id. at 161; See also Feria v. Court of Appeals, 382 Phil. 412, 423 (2000)
[Per J. Quisumbing, Second Division].

[102] Rollo, p. 161, Hon. Roline M. Ginez-Jabalde, et al.'s Comment.

[103] Id.

[104] Id. at 162.

[105] Id.

[106] Id.

[107] Id. at 164.

[108] Id. at 165.

[109] Id.

[110] See Jehan Shipping Corporation v. National Food Authority, 514 Phil.
166, 173-174 (2005) [Per J. Panganiban, Third Division].

[111] 514 Phil. 166 (2005) [Per J. Panganiban, Third Division].

[112] Jehan Shipping Corporation v. National Food Authority, 514 Phil. 166,
173-174 (2005) [Per J. Panganiban, Third Division].
[113] See Anama v. Court of Appeals, et al, 680 Phil. 305, 313 (2012) [Per J.
Mendoza, Third Division].

[114] See Jehan Shipping Corporation v. National Food Authority, 514 Phil.
166, 173-174 (2005) [Per J. Panganiban, Third Division].

[115] Rollo, p. 13, Petition.

[116] Id.

[117] Id. at 21.

[118] Id.

[119] Id. at 94, Joseph Scott Pemberton's Comment. The hearing scheduled
for December 22, 2014 was for Joseph Scott Pemberton's Motion to Suspend
the Proceedings.

[120] Id. at 24-25, Petition.

[121] Id. at 24.

[122] United Nations Office of the High Commissioner for Human Rights,
International Covenant on Civil and Political Rights (visited November 16,
2015).

[123] United Nations Treaty Collection, Chapter IV, Human Rights, 4.

International Covenant on Civil and Political Rights (visited November 16,
2015).
[124] United Nations Office of the High Commissioner for Human Rights,
International Covenant on Civil and Political Rights (visited November 16,
2015): The ICCPR provides in its Preamble that "[t]he States Parties to the
present Covenant. . . [a]gree upon" the mandates in Articles 1-53 of the
Convention.

[125] Human Rights Committee, Eightieth session, General Comment No. 31,
The Nature of the General Legal Obligation Imposed on States Parties to the
Covenant Adopted on 29 March 2004 (2187th meeting),
CCPR/C/21/Rev.1/Add. 13 (visited November 16, 2015).

[126] Id.

[127] Rollo, p. 22. Petition.

[128] G.R. No. 178607, December 5, 2012, 687 SCRA 151 [Per J. Brion,
Second Division].

[129] Id. at 160.

[130] Id. at 159-161.

[131] Rollo, p. 33.

[132] Id. at 28.

[133] Id. at 33.

[134] 572 Phil. 270 (2008) [Per J. R. T. Reyes, Third Division].

[135] Id. at 291.

[136] 598 Phil. 262 (2009) [Per J. Azcuna, En Banc].

[137] Id. at 285-287.

[138] Rollo, p. 11.

[139] Id.

[140] Id. at 33.

[141] 539 Phil. 532 (2006) [Per J. Quisumbing, Third Division].

[142] Id. at 545.

G.R. No. 125865 March 26, 2001

JEFFREY LIANG (HUEFENG), petitioner,

vs.

PEOPLE OF THE PHILIPPINES, respondent.

RESOLUTION
YNARES-SANTIAGO, J.:

This resolves petitioner's Motion for Reconsideration of our Decision dated

January 28, 2000, denying the petition for review.

The Motion is anchored on the following arguments:

1) THE DFA'S DETERMINATION OF IMMUNITY IS A POLITICAL QUESTION TO

BE MADE BY THE EXECUTIVE BRANCH OF THE GOVERNMENT AND IS
CONCLUSIVE UPON THE COURTS.

2) THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS ABSOLUTE.

3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN DEVELOPMENT

BANK (ADB).

4) DUE PROCESS WAS FULLY AFFORDED THE COMPLAINANT TO REBUT

THE DFA PROTOCOL.

5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY MADE A FINDING

OF FACT ON THE MERITS, NAMELY, THE SLANDERING OF A PERSON WHICH
PREJUDGED PETITIONER'S CASE BEFORE THE METROPOLITAN TRIAL COURT
(MTC)-MANDALUYONG.

6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT

APPLICABLE TO THIS CASE.

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

Petitioner, thus, brought a petition for review with this Court. On January 28,
2000, we rendered the assailed Decision denying the petition for review. We
ruled, in essence, that the immunity granted to officers and staff of the ADB
is not absolute; it is limited to acts performed in an official capacity.
Furthermore, we held that the immunity cannot cover the commission of a
crime such as slander or oral defamation in the name of official duty.

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

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

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

After a careful deliberation of the arguments raised in petitioner's and

intervenor's Motions for Reconsideration, we find no cogent reason to disturb
our Decision of January 28, 2000. As we have stated therein, the slander of a
person, by any stretch, cannot be considered as falling within the purview of
the immunity granted to ADB officers and personnel. Petitioner argues that
the Decision had the effect of prejudging the criminal case for oral
defamation against him. We wish to stress that it did not. What we merely
stated therein is that slander, in general, cannot be considered as an act
performed in an official capacity. The issue of whether or not petitioner's
utterances constituted oral defamation is still for the trial court to determine.

WHEREFORE, in view of the foregoing, the Motions for Reconsideration filed

by petitioner and intervenor Department of Foreign Affairs are DENIED with
FINALITY.

SO ORDERED.

Kapunan and Pardo, JJ ., concur.

Davide, Jr., C.J., I also join concurring opinion of Mr. Justice Puno.

Puno, J., Please see concurring opinion.

Concurring Opinions

PUNO, J., concurring:

For resolution is the Motion for Reconsideration filed by petitioner Jeffrey

Liang of this Court's decision dated January 28, 2000 which denied the
petition for review. We there held that: the protocol communication of the
Department of Foreign Affairs to the effect that petitioner Liang is covered by
immunity is only preliminary and has no binding effect in courts; the
immunity provided for under Section 45(a) of the Headquarters Agreement is
subject to the condition that the act be done in an "official capacity"; that
slandering a person cannot be said to have been done in an "official capacity"
and, hence, it is not covered by the immunity agreement; under the Vienna
Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner
is such, enjoys immunity from criminal jurisdiction of the receiving state
except in the case of an action relating to any professional or commercial
activity exercised by the diplomatic agent in the receiving state outside his
official functions; the commission of a crime is not part of official duty; and
that a preliminary investigation is not a matter of right in cases cognizable by
the Metropolitan Trial Court.

Petitioner's motion for reconsideration is anchored on the following

arguments:

1. The DFA's determination of immunity is a political question to be made

by the executive branch of the government and is conclusive upon the courts;

2. The immunity of international organizations is absolute;

3. The immunity extends to all staff of the Asian Development Bank

(ADB);

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

5. The decision of January 28, 2000 erroneously made a finding of fact on

the merits, namely, the slandering of a person which prejudged petitioner's
case before the Metropolitan Trial Court (MTC) Mandaluyong; and

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

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

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

Petitioner likewise urges that the international organization's immunity from

local jurisdiction empowers the ADB alone to determine what constitutes
"official acts" and the same cannot be subject to different interpretations by
the member states. It asserts that the Headquarters Agreement provides for
remedies to check abuses against the exercise of the immunity. Thus, Section
49 states that the "Bank shall waive the immunity accorded to any person if,
in its opinion, such immunity would impede the course of justice and the
waiver would not prejudice the purposes for which the immunities are
accorded." Section 51 allows for consultation between the government and
the Bank should the government consider that an abuse has occurred. The
same section provides the mechanism for a dispute settlement regarding,
among others, issues of interpretation or application of the agreement.

Petitioner's argument that a determination by the Department of Foreign

Affairs that he is entitled to diplomatic immunity is a political question
binding on the courts, is anchored on the ruling enunciated in the case of
WHO, et al. vs. Aquino, et al.,6 viz:

"It is a recognized principle of international law and under our system of

separation of powers that diplomatic immunity is essentially a political
question and courts should refuse to look beyond a determination by the
executive branch of the government, and where the plea of diplomatic
immunity is recognized and affirmed by the executive branch of the
government as in the case at bar, it is then the duty of the courts to accept
the claim of immunity upon appropriate suggestion by the principal law
officer of the government, the Solicitor General in this case, or other officer
acting under his direction. Hence, in adherence to the settled principle that
courts may not so exercise their jurisdiction by seizure and detention of
property, as to embarrass the executive arm of the government in conducting
foreign relations, it is accepted doctrine that in such cases the judicial
department of the government follows the action of the political branch and
will not embarrass the latter by assuming an antagonistic jurisdiction."

This ruling was reiterated in the subsequent cases of International Catholic

Migration Commission vs. Calleja;7 The Holy See vs. Rosario, Jr.;8 Lasco vs.
UN;9 and DFA vs. NLRC.10

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

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

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

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

Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian
Development Bank. Pursuant to its Charter and the Headquarters Agreement,
the diplomatic immunity of the Asian Development Bank was recognized by
the Court.

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

The term "international organizations" —

"is generally used to describe an organization set up by agreement between

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

International public officials have been defined as:

". . . persons who, on the basis of an international treaty constituting a

particular international community, are appointed by this international
community, or by an organ of it, and are under its control to exercise, in a
continuous way, functions in the interest of this particular international
community, and who are subject to a particular personal status."12
"Specialized agencies" are international organizations having functions in
particular fields, such as posts, telecommunications, railways, canals, rivers,
sea transport, civil aviation, meteorology, atomic energy, finance, trade,
education and culture, health and refugees.13

Issues

1. Whether petitioner Liang, as an official of an international organization,

is entitled to diplomatic immunity;

2. Whether an international official is immune from criminal jurisdiction

for all acts, whether private or official;

3. Whether the authority to determine if an act is official or private is

lodged in the courts;

4. Whether the certification by the Department of Foreign Affairs that

petitioner is covered by immunity is a political question that is binding and
conclusive on the courts.

Discussion

A perusal of the immunities provisions in various international conventions

and agreements will show that the nature and degree of immunities vary
depending on who the recipient is. Thus:

1. Charter of the United Nations

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

Article 105 (2): Representatives of the Members of the United Nations and
officials of the Organization shall similarly enjoy such privileges and
immunities as are necessary for the independent exercise of their functions in
connection with the Organization."

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

"Section 2: The United Nations, its property and assets wherever located and
by whomsoever held, shall enjoy immunity from every form of legal process
except insofar as in any particular case it has expressly waived its immunity.
It is, however, understood that no waiver of immunity shall extend to any
measure of execution.

xxx xxx xxx

Section 11 (a): Representatives of Members to the principal and subsidiary

organs of the United Nations . . shall . . . enjoy . . . immunity from personal
arrest or detention and from seizure of their personal baggage, and, in
respect of words spoken or written and all acts done by them in their capacity
as representatives, immunity from legal process of every kind.

xxx xxx xxx

Section 14: Privileges and immunities are accorded to the representatives of

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

xxx xxx xxx

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

xxx xxx xxx

Section 19: In addition to the immunities and privileges specified in Section

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

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

xxx xxx xxx

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

3. Vienna Convention on Diplomatic Relations

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

xxx xxx xxx

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

xxx xxx xxx

Article 38 (1): Except in so far as additional privileges and immunities may be

granted by the receiving State, a diplomatic agent who is a national of or
permanently a resident in that State shall enjoy only immunity from
jurisdiction, and inviolability, in respect of official acts performed in the
exercise of his functions."

4. Vienna Convention on Consular Relations

"Article 41 (1): Consular officials shall not be liable to arrest or detention

pending trial, except in the case of a grave crime and pursuant to a decision
by the competent judicial authority.

xxx xxx xxx

Article 43 (1): Consular officers and consular employees shall not be

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

5. Convention on the Privileges and Immunities of the Specialized

Agencies

"Section 4: The specialized agencies, their property and assets, wherever

located and by whomsoever held, shall enjoy immunity from every form of
legal process except in so far as in any particular case they have expressly
waived their immunity. It is, however, understood that no waiver of immunity
shall extend to any measure of execution.

Section 13 (a): Representatives of members at meetings convened by a

specialized agency shall, while exercising their functions and during their
journeys to and from the place of meeting, enjoy immunity from personal
arrest or detention and from seizure of their personal baggage, and in respect
of words spoken or written and all acts done by them in their official capacity,
immunity from legal process of every kind.

xxx xxx xxx

Section 19 (a): Officials of the specialized agencies shall be immune from

legal process in respect of words spoken or written and all acts performed by
them in their official capacity.

xxx xxx xxx

Section 21: In addition to the immunities and privileges specified in sections

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

6. Charter of the ADB

"Article 50 (1): The Bank shall enjoy immunity from every form of legal
process, except in cases arising out of or in connection with the exercise of its
powers to borrow money, to guarantee obligations, or to buy and sell or
underwrite the sale of securities, in which cases actions may be brought
against the Bank in a court of competent jurisdiction in the territory of a
country in which the Bank has its principal or a branch office, or has
appointed an agent for the purpose of accepting service or notice of process,
or has issued or guaranteed securities.

xxx xxx xxx

Article 55 (i): All Governors, Directors, alternates, officers and employees of

the Bank, including experts performing missions for the Bank shall be
immune from legal process with respect to acts performed by them in their
official capacity, except when the Bank waives the immunity."

7. ADB Headquarters Agreement

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

xxx xxx xxx

Section 44: Governors, other representatives of Members, Directors, the
President, Vice-President and executive officers as may be agreed upon
between the Government and the Bank shall enjoy, during their stay in the
Republic of the Philippines in connection with their official duties with the
Bank: (a) immunity from personal arrest or detention and from seizure of
their personal baggage; (b) immunity from legal process of every kind in
respect of words spoken or written and all acts done by them in their official
capacity; and (c) in respect of other matters not covered in (a) and (b) above,
such other immunities, exemptions, privileges and facilities as are enjoyed by
members of diplomatic missions of comparable rank, subject to
corresponding conditions and obligations.

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

II

There are three major differences between diplomatic and international

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

The generally accepted principles which are now regarded as the foundation
of international immunities are contained in the ILO Memorandum, which
reduced them in three basic propositions, namely: (1) that international
institutions should have a status which protects them against control or
interference by any one government in the performance of functions for the
effective discharge of which they are responsible to democratically
constituted international bodies in which all the nations concerned are
represented; (2) that no country should derive any financial advantage by
levying fiscal charges on common international funds; and (3) that the
international organization should, as a collectivity of States Members, be
accorded the facilities for the conduct of its official business customarily
extended to each other by its individual member States. The thinking
underlying these propositions is essentially institutional in character. It is not
concerned with the status, dignity or privileges of individuals, but with the
elements of functional independence necessary to free international
institutions from national control and to enable them to discharge their
responsibilities impartially on behalf of all their members.15

III

Positive international law has devised three methods of granting privileges

and immunities to the personnel of international organizations. The first is by
simple conventional stipulation, as was the case in the Hague Conventions of
1899 and 1907. The second is by internal legislation whereby the government
of a state, upon whose territory the international organization is to carry out
its functions, recognizes the international character of the organization and
grants, by unilateral measures, certain privileges and immunities to better
assure the successful functioning of the organization and its personnel. In this
situation, treaty obligation for the state in question to grant concessions is
lacking. Such was the case with the Central Commission of the Rhine at
Strasbourg and the International Institute of Agriculture at Rome. The third is
a combination of the first two. In this third method, one finds a conventional
obligation to recognize a certain status of an international organization and
its personnel, but the status is described in broad and general terms. The
specific definition and application of those general terms are determined by
an accord between the organization itself and the state wherein it is located.
This is the case with the League of Nations, the Permanent Court of Justice,
and the United Nations.16

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

The privileges and immunities of diplomats and those of international officials

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

The special status of the diplomatic envoy is regulated by the principle of

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

The staff personnel of an international organization — the international

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

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

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

There is a difference of degree as well as of kind. The interruption of the

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

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

IV
Looking back over 150 years of privileges and immunities granted to the
personnel of international organizations, it is clear that they were accorded a
wide scope of protection in the exercise of their functions — The Rhine Treaty
of 1804 between the German Empire and France which provided "all the
rights of neutrality" to persons employed in regulating navigation in the
international interest; The Treaty of Berlin of 1878 which granted the
European Commission of the Danube "complete independence of territorial
authorities" in the exercise of its functions; The Covenant of the League which
granted "diplomatic immunities and privileges." Today, the age of the United
Nations finds the scope of protection narrowed. The current tendency is to
reduce privileges and immunities of personnel of international organizations
to a minimum. The tendency cannot be considered as a lowering of the
standard but rather as a recognition that the problem on the privileges and
immunities of international officials is new. The solution to the problem
presented by the extension of diplomatic prerogatives to international
functionaries lies in the general reduction of the special position of both types
of agents in that the special status of each agent is granted in the interest of
function. The wide grant of diplomatic prerogatives was curtailed because of
practical necessity and because the proper functioning of the organization did
not require such extensive immunity for its officials. While the current
direction of the law seems to be to narrow the prerogatives of the personnel
of international organizations, the reverse is true with respect to the
prerogatives of the organizations themselves, considered as legal entities.
Historically, states have been more generous in granting privileges and
immunities to organizations than they have to the personnel of these
organizations.24

Thus, Section 2 of the General Convention on the Privileges and Immunities

of the United Nations states that the UN shall enjoy immunity from every
form of legal process except insofar as in any particular case it has expressly
waived its immunity. Section 4 of the Convention on the Privileges and
Immunities of the Specialized Agencies likewise provides that the specialized
agencies shall enjoy immunity from every form of legal process subject to the
same exception. Finally, Article 50(1) of the ADB Charter and Section 5 of the
Headquarters Agreement similarly provide that the bank shall enjoy immunity
from every form of legal process, except in cases arising out of or in
connection with the exercise of its powers to borrow money, to guarantee
obligations, or to buy and sell or underwrite the sale of securities.
The phrase "immunity from every form of legal process" as used in the UN
General Convention has been interpreted to mean absolute immunity from a
state's jurisdiction to adjudicate or enforce its law by legal process, and it is
said that states have not sought to restrict that immunity of the United
Nations by interpretation or amendment. Similar provisions are contained in
the Special Agencies Convention as well as in the ADB Charter and
Headquarters Agreement. These organizations were accorded privileges and
immunities in their charters by language similar to that applicable to the
United Nations. It is clear therefore that these organizations were intended to
have similar privileges and immunities.25 From this, it can be easily deduced
that international organizations enjoy absolute immunity similar to the
diplomatic prerogatives granted to diplomatic envoys.

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

On the other hand, international officials are governed by a different rule.

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

Clearly, the most important immunity to an international official, in the

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

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

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

VI

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

This is an entirely different question. In connection with this question, the

current tendency to narrow the scope of privileges and immunities of
international officials and representatives is most apparent. Prior to the
regime of the United Nations, the determination of this question rested with
the organization and its decision was final. By the new formula, the state
itself tends to assume this competence. If the organization is dissatisfied with
the decision, under the provisions of the General Convention of the United
States, or the Special Convention for Specialized Agencies, the Swiss
Arrangement, and other current dominant instruments, it may appeal to an
international tribunal by procedures outlined in those instruments. Thus, the
state assumes this competence in the first instance. It means that, if a local
court assumes jurisdiction over an act without the necessity of waiver from
the organization, the determination of the nature of the act is made at the
national level.30

It appears that the inclination is to place the competence to determine the

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

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

Under the Third Restatement of the Law, it is suggested that since an

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

Recognizing the difficulty that by reason of the right of a national court to

assume jurisdiction over private acts without a waiver of immunity, the
determination of the official or private character of a particular act may pass
from international to national control, Jenks proposes three ways of avoiding
difficulty in the matter. The first would be for a municipal court before which a
question of the official or private character of a particular act arose to accept
as conclusive in the matter any claim by the international organization that
the act was official in character, such a claim being regarded as equivalent to
a governmental claim that a particular act is an act of State. Such a claim
would be in effect a claim by the organization that the proceedings against
the official were a violation of the jurisdictional immunity of the organization
itself which is unqualified and therefore not subject to delimitation in the
discretion of the municipal court. The second would be for a court to accept
as conclusive in the matter a statement by the executive government of the
country where the matter arises certifying the official character of the act.
The third would be to have recourse to the procedure of international
arbitration. Jenks opines that it is possible that none of these three solutions
would be applicable in all cases; the first might be readily acceptable only in
the clearest cases and the second is available only if the executive
government of the country where the matter arises concurs in the view of the
international organization concerning the official character of the act.
However, he surmises that taken in combination, these various possibilities
may afford the elements of a solution to the problem.34
One final point. The international official's immunity for official acts may be
likened to a consular official's immunity from arrest, detention, and criminal
or civil process which is not absolute but applies only to acts or omissions in
the performance of his official functions, in the absence of special agreement.
Since a consular officer is not immune from all legal process, he must
respond to any process and plead and prove immunity on the ground that the
act or omission underlying the process was in the performance of his official
functions. The issue has not been authoritatively determined, but apparently
the burden is on the consular officer to prove his status as well as his
exemption in the circumstances. In the United States, the US Department of
State generally has left it to the courts to determine whether a particular act
was within a consular officer's official duties.35

Submissions

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

conclusions:

First, petitioner Liang, a bank official of ADB, is not entitled to diplomatic

immunity and hence his immunity is not absolute.

Under the Vienna Convention on Diplomatic Relations, a diplomatic envoy is

immune from criminal jurisdiction of the receiving State for all acts, whether
private or official, and hence he cannot be arrested, prosecuted and punished
for any offense he may commit, unless his diplomatic immunity is waived.36
On the other hand, officials of international organizations enjoy "functional"
immunities, that is, only those necessary for the exercise of the functions of
the organization and the fulfillment of its purposes.37 This is the reason why
the ADB Charter and Headquarters Agreement explicitly grant immunity from
legal process to bank officers and employees only with respect to acts
performed by them in their official capacity, except when the Bank waives
immunity. In other words, officials and employees of the ADB are subject to
the jurisdiction of the local courts for their private acts, notwithstanding the
absence of a waiver of immunity.

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

Second, considering that bank officials and employees are covered by

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

As an aside, ADB cannot even claim to have the right to waive immunity for
private acts of its officials and employees. The Charter and the Headquarters
Agreement are clear that the immunity can be waived only with respect to
official acts because this is only the extent to which the privilege has been
granted. One cannot waive the right to a privilege which has never been
granted or acquired.

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

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

In the case of The Holy See vs. Rosario, Jr.,40 a complaint for annulment of
contract of sale, reconveyance, specific performance and damages was filed
against petitioner. Petitioner moved to dismiss on the ground of, among
others, lack of jurisdiction based on sovereign immunity from suit, which was
denied by the trial court. A motion for reconsideration, and subsequently, a
"Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation
for Claim of Immunity as a Jurisdictional Defense" were filed by petitioner.
The trial court deferred resolution of said motions until after trial on the
merits. On certiorari, the Court there ruled on the issue of petitioner's non-
suability on the basis of the allegations made in the pleadings filed by the
parties. This is an implicit recognition of the court's jurisdiction to ascertain
the suability or non-suability of the sovereign by assessing the facts of the
case. The Court hastened to add that when a state or international agency
wishes to plead sovereign or diplomatic immunity in a foreign court, in some
cases, the defense of sovereign immunity was submitted directly to the local
courts by the respondents through their private counsels, or where the
foreign states bypass the Foreign Office, the courts can inquire into the facts
and make their own determination as to the nature of the acts and
transactions involved.

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

I vote to deny the motion for reconsideration.

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