G.R. No. 162230. August 12, 2014.* C. GULAPA, SEFERINA S. TURLA, MAXIMA B.

ISABELITA C. VINUYA, VICTORIA C. DELA PEÑA, TURLA, LEONICIA G. GUEVARRA, ROSALINA M.

HERMINIHILDA MANIMBO, LEONOR H. CULALA, CATALINA Y. MANIO, MAMERTA T.
SUMAWANG, CANDELARIA L. SOLIMAN, MARIA L. SAGUM, CARIDAD L. TURLA, et al., in their capacity
QUILANTANG, MARIA L. MAGISA, NATALIA M. and as members of the “Malaya Lolas Organizations,”
ALONZO, LOURDES M. NAVARO, FRANCISCA M. petitioners, vs.
ATENCIO, ERLINDA MANALASTAS, TARCILA M. _______________
* EN BANC.
SAMPANG, ESTER M. PALACIO, MAXIMA R. DELA
CRUZ, BELEN A. SAGUM, FELICIDAD TURLA, THE HONORABLE EXECUTIVE SECRETARY
FLORENCIA M. DELA PEÑA, EUGENIA M. LALU, ALBERTO G. ROMULO, THE HONORABLE
JULIANA G. MAGAT, CECILIA SANGUYO, ANA SECRETARY OF FOREIGN AFFAIRS DELIA
ALONZO, RUFINA P. MALLARI, ROSARIO M. DOMINGO-ALBERT, THE HONORABLE
ALARCON, RUFINA C. GULAPA, ZOILA B. SECRETARY OF JUSTICE MERCEDITAS N.
MANALUS, CORAZON C. CALMA, MARTA A. GUTIERREZ, and THE HONORABLE SOLICITOR
GENERAL ALFREDO L. BENIPAYO, respondents.
GULAPA, TEODORA M. HERNANDEZ, FERMIN B.
DELA PEÑA, MARIA DELA PAZ B. CULALA,
Remedial Law; Special Civil Actions; Certiorari; To
ESPERANZA MANAPOL, JUANITA M. BRIONES,
establish the timeliness of the petition for certiorari, the date
VERGINIA M. GUEVARRA, MAXIMA ANGULO, of receipt of the assailed judgment, final order or resolution
EMILIA SANGIL, TEOFILA R. PUNZALAN, or the denial of the motion for reconsideration or new trial
JANUARIA G. GARCIA, PERLA B. BALINGIT, must be stated in the petition; otherwise, the petition for
BELEN A. CULALA, PILAR Q. GALANG, ROSARIO C. certiorari must be dismissed.—Petitioners did not show that
BUCO, GAUDENCIA C. DELA PEÑA, RUFINA Q. their bringing of the special civil action for certiorari was
CATACUTAN, FRANCIA A. BUCO, PASTORA C. timely, i.e., within the 60-day period provided in Section 4,
GUEVARRA, VICTORIA M. DELA CRUZ, Rule 65 of the Rules of Court, to wit: Section 4. When and
PETRONILA O. DELA CRUZ, ZENAIDA P. DELA where position filed.—The petition shall be filed not later
CRUZ, CORAZON M. SUBA, EMERINCIANA A. than sixty (60) days from notice of judgment, order or
resolution. In case a motion for reconsideration or new trial
VINUYA, LYDIA A. SANCHEZ, ROSALINA M. BUCO,
is timely filed, whether such motion is required or not, the
PATRICIA A. BERNARDO, LUCILA H. PAYAWAL,
sixty (60)-day period shall be counted from notice of the
MAGDALENA LIWAG, ESTER C. BALINGIT, JOVITA denial of said motion. As the rule indicates, the 60-day period
A. DAVID, EMILIA C. MANGILIT, VERGINIA M. starts to run from the date petitioner receives the assailed
BANGIT, GUILERMA S. BALINGIT, TERECITA judgment, final order or resolution, or the denial of the
PANGILINAN, MAMERTA C. PUNO, CRISENCIANA motion for reconsideration or new trial timely filed, whether
such motion is required or not. To establish the timeliness of Constitutional Law; Foreign Relations; The Constitution
the petition for certiorari, the date of receipt of the assailed has entrusted to the Executive Department the conduct of
judgment, final order or resolution or the denial of the motion foreign relations for the Philippines; The Supreme Court (SC)
for reconsideration or new trial must be stated in the cannot interfere with or question the wisdom of the conduct of
petition; otherwise, the petition for certiorari must be foreign relations by the Executive Department.—The
dismissed. The importance of the dates cannot be Constitution has entrusted to the Executive Department the
understated, for such dates determine the timeliness of the conduct of foreign relations for the Philippines. Whether or
filing of the petition for certiorari. not to espouse petitioners’ claim against the Government of
Same; Provisional Remedies; Preliminary Injunction; Japan is left to the exclusive determination and judgment of
Preliminary injunction is provisional because it constitutes a the Executive Department. The Court cannot interfere with
temporary measure availed of during the pendency of the or question the wisdom of the conduct of foreign relations by
action; and it is ancillary because it is a mere incident in and the Executive Department. Accordingly, we cannot direct the
is dependent upon the result of the main action.—Preliminary Executive Department, either by writ of certiorari or
injunction is merely a provisional remedy that is adjunct to injunction, to conduct our foreign relations with Japan in a
the main case, and is subject to the latter’s outcome. It is not certain manner.
a cause of action itself. It is provisional because it constitutes Sereno, CJ., Concurring Opinion:
a temporary measure availed of during the pendency of the Constitutional Law; International Law; Reparations;
action; and it is ancillary because it is a mere incident in and View that the statement in the 2010 ponencia — that the
is dependent upon the result of the main action.597Following “wisdom of such decision [to waive all claims for reparations]
the dismissal of the petition for certiorari, there is no more is not for the courts to question” — must be qualified.—I am
legal basis to issue the writ of injunction sought. As an of the opinion, however, that the statement in the 2010
auxiliary remedy, the writ of preliminary mandatory ponencia — that the “wisdom of such decision [to
injunction cannot be issued independently of the principal waive all claims for reparations] is not for the courts
action. to question” — must be qualified. As party to the 1949
Same; Same; Mandatory Injunction; A mandatory Geneva Conventions, the Philippines has limited discretion
injunction requires the performance of a particular act.—In to waive another state’s reparations obligation arising from
any event, a mandatory injunction requires the performance the commission of grave breaches of the convention. The
of a particular act. Hence, it is an extreme remedy, to be 1949 Geneva
granted only if the following requisites are attendant, 598Convention Relative to the Protection of Civilian
namely: (a) The applicant has a clear and unmistakable Persons in Time of War (Geneva Convention IV) expressly
right, that is, a right in esse; (b) There is a material and states the following: ARTICLE 147 Grave breaches to
substantial invasion of such right; and (c) There is an urgent which the preceding Article relates shall be those involving
need for the writ to prevent irreparable injury to the any of the following acts, if committed against
applicant; and no other ordinary, speedy, and adequate persons or property protected by the present
remedy exists to prevent the infliction of irreparable injury. Convention: wilful killing, torture or inhuman
treatment, including biological experiments, wilfully Geneva Conventions, a state remains responsible — and
causing great suffering or serious injury to body or continues to be liable to pay compensation — for the grave
health, unlawful deportation or transfer or unlawful breaches committed against protected persons.
confinement of a protected person, compelling a 599
protected person to serve in the forces of a hostile Power, or Same; Same; Same; View that I vote to dismiss the
wilfully depriving a protected person of the rights of fair and petition for failure to establish that respondents committed
regular trial prescribed in the present Convention, taking of grave abuse of discretion in declining to espouse the claims of
hostages and extensive destruction and appropriation of petitioners.—In the light of the foregoing context, I vote to
property, not justified by military necessity and carried out dismiss the petition for failure to establish that respondents
unlawfully and wantonly. ARTICLE 148 No High committed grave abuse of discretion in declining to espouse
Contracting Party shall be allowed to absolve itself the claims of petitioners. The dismissal thereof should not,
or any other High Contracting Party of any liability however, be taken as a definitive ruling on the merits of the
incurred by itself or by another High Contracting claims of petitioners, in the event that they bring the same
Party in respect of breaches referred to in the to an appropriate forum or through a proper recourse.
preceding Article. Neither should it be taken to mean that we should forget the
Same; Same; Same; View that a state is precluded from suffering that our people, especially petitioners, bore in the
absolving other states from liability on the ground that the Second World War, or the unfortunate story of our attempts
individual persons who actually perpetrated the grave breach to get the reparation that was due us, and learn. From such
of the convention have already been punished; Pursuant to the understanding, we must forge the elements that will make
1949 Geneva Conventions, a state remains responsible the Philippine state strong, able to protect its people and
— and continues to be liable to pay compensation — for the safeguard their well-being under the aegis of the
grave breaches committed against protected persons.—It is Constitution. Justice demands no less.
said that the non-absolution clause under Article 148 is a
logical consequence of the grave breaches under Article 147 MOTION FOR RECONSIDERATION and
of Geneva Convention IV. A state is precluded from absolving SUPPLEMENTAL MOTION FOR
other states from liability on the ground that the individual RECONSIDERATION of a decision of the Supreme
persons who actually perpetrated the grave breach of the Court.
convention have already been punished. Indeed, it would The facts are stated in the resolution of the Court.
seem unjust for individuals to be punished while the state in
Roque & Butuyan Law Offices for petitioners.
whose name or on whose instructions they acted is released
The Solicitor General for respondents.
from all liability. Article 148 was meant to prevent the
defeated state from being forced into entering into an RESOLUTION
armistice or peace treaty in which it would renounce all BERSAMIN, J.:
reparations for grave breaches committed by persons in the Petitioners filed a Motion for Reconsideration1 and
service of the victorious state. Thus, pursuant to the 1949 a Supplemental Motion for Reconsideration,2 praying
that the Court reverse its decision of April 28, 2010, and signed the Hague Convention on Rules and Regulations
grant their petition for certiorari. covering Land Warfare, the Rules and Regulations
In their Motion for Reconsideration, petitioners formed part of the law of the nation by virtue of the
argue that our constitutional and jurisprudential Incorporation Clause; that such commitment to the
histories have rejected laws of war and humanity has been enshrined in
_______________ Section 2, Article II of the 1987 Constitution, which
1 Rollo, pp. 419-429.
2 Id., at pp. 435-529.
provides “that the Philippines…adopts the generally
600the Court’s ruling that the foreign policy accepted principles of international law as part of the
prerogatives of the Executive Branch are unlimited; law of the land and adheres to the policy of peace,
that under the relevant jurisprudence and equality, justice, freedom, cooperation, and amity with
constitutional provisions, such prerogatives are all nations.”
proscribed by international human rights and The petitioners added that the status and
international conventions of which the Philippines is a applicability of the generally accepted principles of
party; that the Court, in holding that the Chief international law within the Philippine jurisdiction
Executive has the prerogative whether to bring would be uncertain without the
_______________
petitioners’ claims against Japan, has read the foreign 3 75 Phil. 563 (1945).
policy powers of the Office of the President in isolation 4 83 Phil. 171 (1949).
from the rest of the constitutional protections that 601Incorporation Clause, and that the clause implied
expressly textualize international human rights; that that the general international law forms part of
the foreign policy prerogatives are subject to obligations Philippine law only insofar as they are expressly
to promote international humanitarian law as adopted; that in its rulings in The Holy See, v. Rosario,
incorporated into the laws of the land through the Jr.5 and U.S. v. Guinto6 the Court has said that
Incorporation Clause; that the Court must revisit its international law is deemed part of the Philippine law
decisions in Yamashita v. Styer3 and Kuroda v. as a consequence of Statehood; that in Agustin v.
Jalandoni4 which have been noted for their prescient Edu,7 the Court has declared that a treaty, though not
articulation of the import of laws of humanity; that in yet ratified by the Philippines, was part of the law of the
said decision, the Court ruled that the State was bound land through the Incorporation Clause; that by virtue of
to observe the laws of war and humanity; that the Incorporation Clause, the Philippines is bound to
in Yamashita, the Court expressly recognized rape as abide by the erga omnes obligations arising from the jus
an international crime under international cogens norms embodied in the laws of war and
humanitarian law, and in Jalandoni, the Court humanity that include the principle of the
declared that even if the Philippines had not acceded or imprescriptibility of war crimes; that the crimes
committed against petitioners are proscribed under crimes against humanity and war crimes under
international human rights law as there were customary international law; (2) that the Philippines is
undeniable violations of jus cogens norms; that the need not bound by the Treaty of Peace with Japan, insofar as
to punish crimes against the laws of humanity has long the waiver of the claims of the Filipina comfort women
become jus cogens norms, and that international legal against Japan is concerned; (3) that the Secretary of
obligations prevail over national legal norms; that the Foreign Affairs and the Executive Secretary committed
Court’s invocation of the political doctrine in the instant grave abuse of discretion in refusing to espouse the
case is misplaced; and that the Chief Executive has the claims of Filipina comfort women; and (4) that
constitutional duty to afford redress and to give justice petitioners are entitled to the issuance of a writ of
to the victims of the comfort women system in the preliminary injunction against the respondents.
Philippines.8 Petitioners also pray that the Court order the
Petitioners further argue that the Court has Secretary of Foreign Affairs and the Executive
confused diplomatic protection with the broader Secretary to espouse the claims of Filipina comfort
responsibility of states to protect the human rights of women for an official apology, legal compensation and
their citizens, especially where the rights asserted are other forms of reparation from Japan.10
subject of erga omnes obligations and pertain to jus In their Supplemental Motion for Reconsideration,
cogens norms; that the claims raised by petitioners are petitioners stress that it was highly improper for the
not simple private claims that are the usual subject of April 28, 2010 decision to lift commentaries from at
diplomatic protection; that the crimes committed least three sources without proper attribution — an
against petitioners are shocking to the conscience of article published in 2009 in the Yale Law Journal of
humanity; and that the atrocities committed by the International Law; a book published by the Cambridge
Japanese University Press in 2005; and an article published in
_______________ 2006 in the Western Reserve Journal of International
5 G.R. No. 101949, December 1, 1994, 238 SCRA 524.
6 G.R. No. 76607, February 26, 1990, 182 SCRA 644.
Law — and make it appear that such commentaries
7 No. L-49112, February 2, 1979, 88 SCRA 195. supported its arguments for dismissing the petition,
8 Supra note 1. when in truth the plagiarized sources even made a
602soldiers against petitioners are not subject to the strong case in favour of petitioners’ claims.11
statute of limitations under international law. 9 _______________
9 Id., at pp. 426-427.
Petitioners pray that the Court reconsider its April
10 Id., at pp. 427-428.
28, 2010 decision, and declare: (1) that the rapes, sexual 11 Id., at p. 436.
slavery, torture and other forms of sexual violence 603 In their Comment,12
respondents disagree with
committed against the Filipina comfort women are petitioners, maintaining that aside from the statements
on plagiarism, the arguments raised by petitioners 14 Id., at pp. 686-690.
15 Id., at pp. 690-702.
merely rehashed those made in their June 7,
604where such remedies are provided by an
2005 Memorandum; that they already refuted such
arguments in their Memorandum of June 6, 2005 that international agreement. Herein, neither of the Treaty
the Court resolved through its April 28, 2010 decision, of Peace and the Reparations Agreement, the relevant
agreements affecting herein petitioners, provided for
specifically as follows:
1. The contentions pertaining to the alleged the reparation of petitioners’ claims. Respondents aver
plagiarism were then already lodged with the that the formal apology by the Government of Japan
Committee on Ethics and Ethical Standards of the and the reparation the Government of Japan has
Court; hence, the matter of alleged plagiarism should provided through the Asian Women’s Fund (AWF) are
not be discussed or resolved herein.13 sufficient to recompense petitioners on their claims,
2. A writ of certiorari did not lie in the absence of specifically:
grave abuse of discretion amounting to lack or excess of a. About 700 million yen would be paid from the
jurisdiction. Hence, in view of the failure of petitioners national treasury over the next 10 years as welfare and
medical services;
to show any arbitrary or despotic act on the part of
respondents, the relief of the writ of certiorari was not b. Instead of paying the money directly to the
warranted.14 former comfort women, the services would be provided
3. Respondents hold that the Waiver Clause in the through organizations delegated by governmental
Treaty of Peace with Japan, being valid, bound the bodies in the recipient countries (i.e., the Philippines,
Republic of the Philippines pursuant to the the Republic of Korea, and Taiwan); and
international law principle of pacta sunt servanda. The c. Compensation would consist of assistance for
validity of the Treaty of Peace was the result of the nursing services (like home helpers), housing,
ratification by two mutually consenting parties. environmental development, medical expenses, and
Consequently, the obligations embodied in the Treaty of medical goods.16
Peace must be carried out in accordance with the Ruling
common and real intention of the parties at the time the The Court DENIES the Motion for Reconsideration
treaty was concluded.15 and Supplemental Motion for Reconsideration for being
4. Respondents assert that individuals did not have devoid of merit.
direct international remedies against any State that 1.
violated their human rights except Petitioners did not show that their resort
_______________ was timely under the Rules of Court.
12 Id., at pp. 665-709.
13 Id., at pp. 684-685.
 Petitioners did not show that their bringing of the denial thereof was received. Failure of petitioner to
special civil action for certiorari was timely, i.e., within comply with this requirement shall be sufficient
the 60-day ground for the dismissal of the petition. Substantial
_______________ compliance will not suffice in a matter involving strict
16 Id., at pp. 703-706. observance with the Rules. (Emphasis supplied)
605period provided in Section 4, Rule 65 of the Rules of _______________
17 G.R. No. 146068, August 31, 2006, 500 SCRA 399, 403-404.
Court, to wit:
606
Section 4. When and where position filed.—The petition
The Court has further said in Santos v. Court of
shall be filed not later than sixty (60) days from notice of
judgment, order or resolution. In case a motion for
Appeals:18
reconsideration or new trial is timely filed, whether such The requirement of setting forth the three (3) dates in a
motion is required or not, the sixty (60)-day period shall be petition for certiorari under Rule 65 is for the purpose of
counted from notice of the denial of said motion. determining its timeliness. Such a petition is required to be
filed not later than sixty (60) days from notice of the
As the rule indicates, the 60-day period starts to
judgment, order or Resolutionsought to be assailed.
run from the date petitioner receives the assailed Therefore, that the petition for certiorari was filed forty-one
judgment, final order or resolution, or the denial of the (41) days from receipt of the denial of the motion for
motion for reconsideration or new trial timely filed, reconsideration is hardly relevant. The Court of Appeals was
whether such motion is required or not. To establish the not in any position to determine when this period commenced
timeliness of the petition for certiorari, the date of to run and whether the motion for reconsideration itself was
receipt of the assailed judgment, final order or filed on time since the material dates were not stated. It
resolution or the denial of the motion for should not be assumed that in no event would the motion be
reconsideration or new trial must be stated in the filed later than fifteen (15) days. Technical rules of procedure
petition; otherwise, the petition for certiorari must be are not designed to frustrate the ends of justice. These are
dismissed. The importance of the dates cannot be provided to effect the proper and orderly disposition of cases
and thus effectively prevent the clogging of court dockets.
understated, for such dates determine the timeliness of
Utter disregard of the Rules cannot justly be rationalized by
the filing of the petition for certiorari. As the Court has harking on the policy of liberal construction.19
emphasized in Tambong v. R. Jorge Development The petition for certiorari contains the following
Corporation:17 averments, viz.:
There are three essential dates that must be stated in a 82. Since 1998, petitioners and other victims of the
petition for certiorari brought under Rule 65. First, the date “comfort women system,” approached the Executive
when notice of the judgment or final order or resolution was
Department through the Department of Justice in order to
received; second, when a motion for new trial or request for assistance to file a claim against the Japanese
reconsideration was filed; and third, when notice of the
officials and military officers who ordered the establishment that obviates arbitrariness, caprice, despotism, or
of the “comfort women” stations in the Philippines; whimsicality in the settlement of disputes. Hence, it is a
83. Officials of the Executive Department ignored their mistake to suppose that substantive law and procedural law
request and refused to file a claim against the said Japanese are contradictory to each other, or as often suggested, that
officials and military officers; enforcement of procedural rules should never be permitted if
_______________ it would result in prejudice to the substantive rights of the
18 G.R. No. 141947, July 5, 2001, 360 SCRA 521, 527-528. litigants.
19 Id.
607 As we have repeatedly stressed, the right to file a special
84. Undaunted, the Petitioners in turn approached the civil action of certiorari is neither a natural right
_______________
Department of Foreign Affairs, Department of Justice and 20 Rollo, p. 18.
Office of the of the Solicitor General to file their claim against 21 G.R. No. 152336, June 9, 2005, 460 SCRA 55, 66.
the responsible Japanese officials and military officers, but 608nor an essential element of due process; a writ
their efforts were similarly and carelessly disregarded.20 of certiorari is a prerogative writ, never demandable
The petition thus mentions the year 1998 only as as a matter of right, and never issued except in the
the time when petitioners approached the Department exercise of judicial discretion. Hence, he who seeks a
of Justice for assistance, but does not specifically state writ of certiorari must apply for it only in the manner
when they received the denial of their request for and strictly in accordance with the provisions of the
assistance by the Executive Department of the law and the Rules.
Government. This alone warranted the outright Herein petitioners have not shown any compelling reason
for us to relax the rule and the requirements under current
dismissal of the petition.
jurisprudence. x x x. (Emphasis supplied)
Even assuming that petitioners received the notice of
the denial of their request for assistance in 1998, their 2.
filing of the petition only on March 8, 2004 was still way Petitioners did not show that the assailed act
beyond the 60-day period. Only the most compelling was either judicial or quasi-judicial
reasons could justify the Court’s acts of disregarding on the part of respondents.
and lifting the strictures of the rule on the period. As we
pointed out in MTM Garment Mfg., Inc. v. Court of Petitioners were required to show in their petition
Appeals:21 for certiorari that the assailed act was either judicial or
All these do not mean, however, that procedural rules are quasi-judicial in character. Section 1, Rule 65 of
to be ignored or disdained at will to suit the convenience of a the Rules of Court requires such showing, to wit:
party. Procedural law has its own rationale in the orderly Section 1. Petition for certiorari.—When any tribunal,
administration of justice, namely: to ensure the effective board or officer exercising judicial or quasi-judicial functions
enforcement of substantive rights by providing for a system has acted without or in excess of its or his jurisdiction, or
with grave abuse of discretion amounting to lack or excess of In any event, a mandatory injunction requires the
jurisdiction, and there is no appeal, nor any plain, speedy, performance of a particular act. Hence, it is an extreme
and adequate remedy in the ordinary course of law, a person remedy,25 to be granted only if the following requisites
aggrieved thereby may file a verified petition in the proper are attendant, namely:
court, alleging the facts with certainty and praying that
(a) The applicant has a clear and unmistakable right,
judgment be rendered annulling or modifying the
that is, a right in esse;
proceedings of such tribunal, board or officer, and granting
such incidental reliefs as law and justice may require. (b) There is a material and substantial invasion of
The petition shall be accompanied by a certified true copy such right; and
_______________
of the judgment, order, or resolution subject thereof, copies
22 Buyco v. Baraquia, G.R. No. 177486, December 21, 2009, 608
of all pleadings and documents relevant and pertinent SCRA 699, 703-704.
thereto, and a sworn certification of nonforum shopping as 23 Id., at p. 704.
provided in the third paragraph of Section 3, Rule 46. 24 Bangko Sentral ng Pilipinas Monetary Board v. Antonio-
609 Valenzuela, G.R. No. 184778, October 2, 2009, 602 SCRA 698, 715,
However, petitioners did not make such a showing. citing Lim v. Court of Appeals, G.R. No. 134617, February 13, 2006,
3. 482 SCRA 326, 331.
25 Regalado, Remedial Law Compendium, Vol. I, p. 638, Seventh
Petitioners were not entitled Revised Edition.
to the injunction. 610
The Court cannot grant petitioners’ prayer for the (c) There is an urgent need for the writ to prevent
writ of preliminary mandatory injunction. irreparable injury to the applicant; and no other
Preliminary injunction is merely a provisional ordinary, speedy, and adequate remedy exists to
remedy that is adjunct to the main case, and is subject prevent the infliction of irreparable injury.26
to the latter’s outcome. It is not a cause of action In Marquez v. The Presiding Judge (Hon. Ismael B.
itself.22 It is provisional because it constitutes a Sanchez), RTC Br. 58, Lucena City,27 we expounded as
temporary measure availed of during the pendency of follows:
the action; and it is ancillary because it is a mere It is basic that the issuance of a writ of preliminary
incident in and is dependent upon the result of the main injunction is addressed to the sound discretion of the trial
action.23 Following the dismissal of the petition court, conditioned on the existence of a clear and positive
for certiorari, there is no more legal basis to issue the right of the applicant which should be protected. It is an
extraordinary, peremptory remedy available only on the
writ of injunction sought. As an auxiliary remedy, the
grounds expressly provided by law, specifically Section 3,
writ of preliminary mandatory injunction cannot be
Rule 58 of the Rules of Court. Moreover, extreme caution
issued independently of the principal action.24 must be observed in the exercise of such discretion. It should
be granted only when the court is fully satisfied that the law
permits it and the emergency demands it. The very CONCURRING OPINION
foundation of the jurisdiction to issue a writ of injunction SERENO, CJ.:
rests in the existence of a cause of action and in the [T]he phrase “comfort women” does not in the
probability of irreparable injury, inadequacy of pecuniary least reflect the suffering, such as multiple rapes on
compensation, and the prevention of multiplicity of suits.
an everyday basis and severe physical abuse, that
Where facts are not shown to bring the case within these
women victims had to endure during their forced
conditions, the relief of injunction should be refused.28
Here, the Constitution has entrusted to the prostitution and sexual subjugation and abuse in
Executive Department the conduct of foreign relations wartime. The Special Rapporteur, therefore,
for the Philippines. Whether or not to espouse considers with conviction that the phrase “military
sexual slaves” represents a much more accurate and
petitioners’ claim against the Government of Japan is
left to the exclusive determination and judgment of the appropriate terminology.1
Executive Department. The Court cannot interfere with Ms. Radhika Coomaraswamy
or question the wisdom of the conduct of foreign Special Rapporteur on
relations by the Executive Department. Accordingly, Violence Against Women
_______________
26 Philippine Leisure and Retirement Authority v. 1 Special Rapporteur on Violence Against Women, its Causes and
Court of Appeals, G.R. No. 156303, December 19, 2007, Consequences, Rep. on the Mission to the Democratic People’s
541 SCRA 85, 99-100. Republic of Korea, the Republic of Korea and Japan on the Issue of
Military Sexual Slavery in Wartime, Comm’n. on Human Rights, UN
27 G.R. No. 141849, February 13, 2007, 515 SCRA Doc. E/CN.4/1996/53/Add.l, at 4 (4 January 1996)(by Radhika
577. Coomaraswamy).
28 Id., at p. 589. 612
611we cannot direct the Executive Department, either This Petition is a reminder to all public officials of
by writ of certiorari or injunction, to conduct our foreign the trust the Filipino people have reposed in them to
relations with Japan in a certain manner. ensure their well-being, address their sufferings, and
WHEREFORE, the Court DENIES the Motion for promote the rule of law within the national and
Reconsideration and Supplemental Motion for international sphere.2Our history as a nation and our
Reconsideration for their lack of merit. brutal experiences at the hands of colonialists and
SO ORDERED. authoritarians have impelled us to ensure, through the
Sereno (CJ.), Carpio, Velasco, Jr., Leonardo-De Constitution, that every Filipino will attain justice and
Castro, Brion, Peralta, Villarama, Jr., Perez, Mendoza, will be guaranteed full respect for human rights.3 This
Reyes and Perlas-Bernabe, JJ., concur. is one of the core duties imposed by our organic law on
Del Castillo, J., No part. public officials.
Leonen, J., No part.
 Nevertheless, I concur with the Resolution holding committed against persons or property protected by the
that there is basis to dismiss the petition on various present Convention: wilful killing, torture or inhuman
technical grounds. I also fully agree with this Court’s treatment, including biological experiments, wilfully
Decision4 dated 28 April 2010, which ruled that the causing great suffering or serious injury to body or
health, unlawful deportation or transfer or unlawful
matter of exercising diplomatic protection is within the
confinement of a protected person, compelling a
sphere of discretion of the executive department.
protected person to serve in the forces of a hostile Power, or
I am of the opinion, however, that the statement in wilfully depriving a protected person of the rights of fair and
the 2010 ponencia — that the “wisdom of such regular trial prescribed in the present Convention, taking of
decision [to waive all claims for reparations] is hostages and extensive destruction and appropriation of
not for the courts to question”5 — must be property, not justified by military necessity and carried out
qualified. As party to the 1949 Geneva unlawfully and wantonly.
Conventions,6 the Philippines has limited discretion ARTICLE 148
_______________ No High Contracting Party shall be allowed to
2 See: E.O. 292–Administrative Code of the Philippines, Book IV, absolveitself or any other High Contracting Party of
Title III, Chap. 12, Sec. 34, pars. 10 & 11. any liability incurred by itself or by another High
3 Constitution, Art. II, Sec. 11; Art. XIII, Secs. 1 & 18(3).
4 Vinuya v. Romulo, G.R. No. 162230, 28 April 2010, 619 SCRA
Contracting Party in respect of breaches referred to in
533. the preceding Article. (Emphases supplied)
5 Id., at p. 560. _______________
6 Geneva Convention for the Amelioration of the Condition of the Persons in Time of War, 12 August 1949, 75 U.N.T.S. 287
Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 (hereinafter Geneva “Convention IV”).
U.N.T.S. 31 (hereinafter “Geneva Convention I”); Geneva Convention 614
for the Amelioration of the Condition of the Wounded, Sick and Legal commentators stress that Article 148 should be
Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 related to Article 3 of the 1907 Hague Convention
U.N.T.S. 85 (hereinafter “Geneva Convention II”); Geneva Convention
IV,7which reads:
Relative to the Treatment of Prisoners of War, 12 August 1949, 75
U.N.T.S. 135 (hereinafter “Geneva Convention III”); and Geneva A belligerent Party which violates the provisions of the
Convention Relative to the Protection of Civilian said Regulations shall, if the case demands, be liable to pay
613to waive another state’s reparations obligation compensation. It shall be responsible for all acts
arising from the commission of grave breaches of the committed by persons forming part of its armed
forces. (Emphases supplied)
convention. The 1949 Geneva Convention Relative to
the Protection of Civilian Persons in Time of War It is said that the non-absolution clause under
(Geneva Convention IV) expressly states the following: Article 148 is a logical consequence of the grave
ARTICLE 147 breaches under Article 147 of Geneva Convention IV.8 A
Grave breaches to which the preceding Article relates state is precluded from absolving other states from
shall be those involving any of the following acts, if liability on the ground that the individual persons who
actually perpetrated the grave breach of the convention Japan by the Allied Forces. At the time, the initial
have already been punished.9 Indeed, it would seem reparations policy that had been put forward by the
unjust for individuals to be punished while the state in U.S. was to utilize reparations for rehabilitating the
whose name or on whose instructions they acted is war-devastated countries, particularly countries in Asia
released from all liability.10Article 148 was meant to and the Pacific.13 The plan was also envisioned as a
prevent the defeated state from being forced into “vital integral means” for Japan’s economic demili-
entering into an armistice or peace treaty in which it tarization.14 The U.S. supported an “early and just share
would renounce all reparations for grave breaches of reparations” in favor of the Philippines and pledged
committed by persons in the service of the victorious that “Japan will be reduced to the level of a small power
state.11 Thus, pursuant to the 1949 Geneva and her people will not be permitted to have in the
Conventions, a state remains responsible — and future a living standard higher than those nations
continues to be liable to pay compensation — for the which she has overrun x x x.”15 It is said that an interim
grave breaches committed against protected persons.12 reparations removal policy was also adopted with the
Nevertheless, I am of the opinion that respondents objective of transferring the industrial capacity of
cannot be found entirely guilty of a whimsical or Japan to the Philippines.16 Under this policy, Japan’s
capricious exercise of judgment, or a patent and gross industrial plants and facilities would be handed over to
abuse of discretion. Their the Philippines as war reparations in order to aid its
_______________ rehabilitation and agricultural development needs.17
7 Oscar M. Uhler & Henri Coursier, Commentary: Geneva Convention Relative to the Projection of Civilian Persons in Time of War IV, pp. 602-603 (Jean _______________
S. Pictet ed., 1958).

8 Id.
13 Takushi Ohno, War Reparations & Peace Settlement:
9 Id. Philippines-Japan Relations 1945-1956, p. 8 (1986); Yang
Zhihui, From War Reparation to Postwar Reparation (Louisa
10 Id.
Rubinfien trans.), in Toward a History Beyond Borders: Contentious
11 Id.
Issues in Sino-Japanese Relations, pp. 374-375 (Daqing Yang, Jie Liu,
12 Id.
Hiroshi Mitani & Andrew Gordon eds., 2012).
615reliance on the Treaty of Peace with Japan (1951 14 OHNO, id.
Peace Treaty) and the Reparations Agreement Between 15 OHNO, id., at p. 19.
the Republic of the Philippines and Japan (1956 16 OHNO, id., at p. 11.
17 OHNO, id.; Yang Zhihui, supra.
Reparations Agreement) as bases for declining to
616However, due to the opposition of the former Soviet
espouse petitioners’ claims against Japan was not
without reason, especially if the treaties are analyzed in Union, the proposals did not materialize.18
the light of the events leading to their conclusion. American reparations policy shifted in 1947.19 As the
The subject of reparations for damages suffered Cold War developed, the U.S. initiated the drafting of a
during the war was discussed during the occupation of peace treaty with Japan.20 On the issue of reparations,
the U.S. negotiated for a complete waiver of all claims spread of communism in Asia,26 it remained firm that
arising from Japan’s war acts.21 The alleged rationale Japan should “sufficiently x x x repair the injuries they
for this “peace formula” rested on the U.S. assumption inflicted in a war of aggression x x x.”27 The U.S. tried to
that if Japan were to be lured into the communist persuade the Philippine government. It pointed out that
influence, the strength of the Sino-Soviet camp would the problem of reparations was “not merely a matter of
significantly increase, and the resulting change in the justice,” but also a “matter of economics.”28 It argued
power balance in Asia would be “dangerously that they could not see “any effective way” of demanding
formidable.”22 According to the U.S., Japan must be reparations from an economically depressed Japan.29 In
given a chance to recover full economic self-sufficiency a last effort to convince the Philippines to accept a no-
“by not placing upon her any heavy economic or reparations peace arrangement, the U.S. emphasized
financial burdens or major commercial liabilities.”23 The the usually “intimate” relations between both
peace treaty was to be “brief, liberal, and nonpunitive.”24 countries.30
_______________ The U.S. was unsuccessful; the Philippines
18 OHNO, id., at p. 13.
19 OHNO, id., at pp. 18-26; John F. Dulles, a Peace Treaty in the
maintained an irrevocable stance on the matter of
Making (Addresses and Remarks Regarding the Making of the reparations.31Former Undersecretary of Foreign Affairs
Japanese Peace Treaty and the Cause of World freedom) pp. 3-7 (1951); Felino Neri criticized the American peace policy and
Yang Zhihui, supra note 13 at pp. 375-377. remarked: “Reparations is first a matter of justice and
20 OHNO, id., at p. 36.
21 OHNO, id., at pp. 37-38 (citing United States Memorandum to
the realities of economics are, in our view, a secondary
the Government on the Far Eastern Commission, in Royal Institute of consideration. In our case, reparations from Japan is a
International Affairs, Documents on International Affairs, 1947-1949, matter of absolute necessity.”32 The Philippines’
pp. 615-616 [1952]); Yang Zhihui, id., at p. 376. condemnation of the American peace formula
22 OHNO, id., at p. 38; See also Dulles, supra at pp. 40-42; Yang
Zhihui, id.
intensified when the U.S. government made available
23 OHNO, id., at p. 37 (citing John Foster Dulles, “Peace May Be its draft of the
Won,” U.S.A. Department of State, DSB, Vol. 24 No. 605, at p. 255 _______________
[1951]); See Dulles, id., at pp. 19-21. 25 OHNO, id., at p. 40; Yang Zhihui, supra note 13 at p. 376.
24 OHNO, id. (citing U.S.A., Department of State, “An Estimate of 26 OHNO, id., at p. 39.
Conditions in Asia and the Pacific at the Close of the War in the Far 27 OHNO, id., at p. 40 (citing The President’s Inaugural Address,
East and the Objectives and Policies of the United States,” Diplomatic December 30, 1949, Official Gazette, Vol. 45, No. 12, at p. 5384 [1949]).
Papers, Vol. VI, pp. 556-580, 1945 [1969]); See Dulles, id. 28 OHNO, id., at p. 42 (citing Truman’s Envoy has long conference
617 The Philippines rejected the U.S. proposal of on Jap pact with EQ, the Manila Times, February 12, 1951, pp. 1-2).
29 OHNO, id.
total waiver of reparations claims against 30 Id.
Japan.25 While the Philippine government had full 31 Id., at pp. 42-43; See also Dulles, supra note 19 at p. 48; Yang
appreciation of the international political reality of the Zhihui, supra at p. 376.
 32 OHNO, id., at p. 43 (citing Neri assails Dulles stand, the Manila 35 Id.
Times, 3 March 1951, pp. 1, 12). 36 Id., at p. 52.
618treaty, which provided for the absolute 37 Id., at p. 54.
38 Id.
abandonment of reparations claims on the ground that 39 Id., at pp. 54-55 (citing Acheson’s Speech, delivered on
Japan lacked the “capacity to make payments” in any September 8, 1951, in U.S. Dep’t of State Publications, Record of
form.33 The Philippines refused such claims.34 It Proceedings of the Conference for the Conclusion and Signature of the
repeatedly declared that Japan was solvent, and that Treaty of Peace with Japan, pp. 175-177 [1951]).
40 Id., at pp. 55-56.
the Philippines would never withdraw its claims.35
619most aspect of the country’s peace settlement with
At the height of the developing Cold War, the U.S.
Japan.41They also demanded the inclusion in the peace
and the U.K. initiated a conference on the Japanese
treaty of a more categorical statement of Japan’s guilt
peace treaty.36 During the discussions, the Philippines,
and reparations obligation.42 The government defended
through then Foreign Affairs Secretary Carlos P.
its decision to sign the peace treaty on the basis of its
Romulo, expressed that it had yet to be satisfied with
“security first policy.”43It explained that security threats
the reparations provisions of the proposed
of the aggressive communist expansion impelled it to
treaty.37 Secretary Romulo voiced out a reservation on
act swiftly in the ratification of the peace treaty.44 The
an “inflexible restriction” on the form of reparations
opposition countered that the Philippines was
payment, asserting that the Philippines could not
sufficiently safeguarded by its Mutual Defense Treaty
accept that reparations be made only through the
with the U.S.45
“services” of the Japanese people in the processing of
The negotiations for reparations dragged on for
raw materials that would be supplied by the injured
almost five years after the signing of the 1951 Peace
countries.38However, the reservation was neither
Treaty.46From the initial demand of USD8 billion, the
accepted nor recorded.39 Faced with the dilemma of
final reparations agreed upon amounted to a mere
supporting its allies in winning over Japan at the
USD550 million,47 which was to be paid in the form of
expense of fully satisfying security and reparations
capital goods, cash, and services.48 A note sent by
claims, the Philippines reluctantly signed the 1951
President Magsaysay to the Senate reads as follows:
Peace Treaty.40
Considering the losses and suffering the Philippines
The decision of the Philippine government to sustained as a result of the Pacific War, these terms do not
eventually sign the peace treaty was met with strong come up to the generally-accepted concept of
resistance. The opposition insisted that the reparations reparations as compensation for damage done and
issue was the fore- injury suffered.
_______________
33 Id.; See also Dulles, supra note 19 at p. 48.
34 OHNO, id.
 Judged, however, from the point of view of the were occupied by Japanese forces and damaged by
requirements of our national interest and viewed in the light Japan, with a view to assisting to compensate those
of the practical realities posed by the political and countries for the cost of repairing the damage done,
_______________ by making available the services of the Japanese
41 Id., at pp. 58, 80. people in production, salvaging and other work for
42 Id., at p. 58.
43 Id., at pp. 75-80. the Allied Powers in question. Such arrangements
44 Id. shall avoid the imposition of additional liabilities on other
45 Id., at p. 80. Allied Powers, and, where the manufacturing of raw
46 Id., at pp. 64-134. materials is called for, they shall be supplied by the
47 Id., at p. 121. _______________
48 President’s Letter of Transmittal, reproduced in Philippine Senate, 49 Id., at p. 4.
Reparations Agreement, the Annex Thereto, the Exchange Notes and the
621Allied Powers in question, so as not to throw any foreign
Other Supporting Documents: Treaty of Peace with Japan, Understanding
of the Senate on Certain Provisions of the Reparations Agreement, p. 3 exchange burden upon Japan.
(1956). 2. x x x x
620economic situation obtaining in both countries as well as (b) Except as otherwise provided in the present Treaty,
in their part of the world, I subscribe to the conclusion the Allied Powers waive all reparation claims of the
reached by the Philippine Panel of Negotiators that this Allied Powers,other claims of the Allied Powers and
settlement is the best that can be obtained under the their nationals arising out of any actions taken by
circumstances x x x.49 Japan and nationals in the course of the prosecution
After a heated debate, the 1951 Peace Treaty and of the war, and claims of the Allied Powers for direct
the 1956 Reparations Agreement were ratified on 16 military costs of occupation. (Emphases supplied)
July 1956. The pertinent provision of the 1951 Peace On the other hand, the relevant provisions of the
Treaty is reproduced below: 1956 Reparations Agreement are quoted as follows:
ARTICLE 14 ARTICLE 1
(a) It is recognized that Japan should pay reparations Japan, by way of reparations, shall supply the
to the Allied Powers for the damage and suffering Republic of the Philippines with the services of the
caused by it during the war. Nevertheless it is also Japanese people and the products of Japan in the
recognized that the resources of Japan are not form of capital goods, the total value of which will be so
presently sufficient if it is to maintain a viable much in yen as shall be equivalent to five hundred fifty
economy, to make complete reparations for all such million United States dollars ($550,000,000) at present
damage and suffering and at the same time meet its other computed at one hundred ninety-eight billion yen
obligations. (Y198,000,000,000), within the period and in the manner
Therefore, hereinafter prescribed.
1. Japan will promptly enter into negotiations with ARTICLE 2
Allied Powers so desiring, whose present territories
 The supply of the services and products referred to in the declining to espouse the claims of petitioners. The
preceding Article shall be made on an annual average of so dismissal thereof should not, however, be taken as a
much in yen as shall be equivalent to twenty-five million definitive ruling on the merits of the claims of
United States dollars ($25,000,000) at present computed at petitioners, in the event that they bring the same to an
nine billion yen (Y9,000,000,000), during the ten-year period
appropriate forum or through a proper recourse.
from the date of coming into force of the present Agreement;
Neither should it be taken to mean that we should
and on an annual average of so much in yen as shall be
equivalent to thirty million United States dollars forget the suffering that our people, especially
($30,000,000) at present computed at ten billion eight petitioners, bore in the Second World War, or the
hundred million yen (Y10,800,000,000), during the unfortunate story of our attempts to get the reparation
succeeding ten-year period. However, by that was due us, and learn. From such understanding,
622agreement between the two Governments, this latter we must forge the elements that will make the
period may be reduced to a period shorter than ten years, Philippine state strong, able to protect its people and
provided the outstanding balance is settled in full within the safeguard their well-being under the aegis of the
remainder of the reduced period. Constitution. Justice demands no less.
ARTICLE 6 623
1. In the discharge of the reparations obligation under Motion for Reconsideration and Supplemental
Article 1 of the present Agreement, the Government of Japan Motion for Reconsideration denied.
shall, through procedures to be determined under Article 11,
make payments to cover the obligations incurred by the
Notes.—It is worth stressing that the assessment
Mission under Reparations Contracts and the expenses for
the supply of services and products referred to in Article 5, and evaluation of evidence in the issuance of the writ of
paragraph 4 of the present Agreement. These payments shall preliminary injunction involves findings of facts
be made in Japanese yen. ordinarily left to the trial court for its conclusive
2. By and upon making a payment in yen under the determination. (Dela Rosa vs. Heirs of Juan Valdez, 654
preceding paragraph, Japan shall be deemed to have SCRA 467 [2011])
supplied the Republic of the Philippines with the A preliminary mandatory injunction is more
services and products thus paid for and shall be cautiously regarded than a mere prohibitive injunction
released from its reparations obligation to the extent of since, more than its function of preserving the status
the equivalent value in United States dollars of such yen quo between the parties, it also commands the
payment in accordance with Articles 1 and 2 of the present performance of an act. (Id.)
Agreement. (Emphases supplied)
——o0o——
In the light of the foregoing context, I vote to
dismiss the petition for failure to establish that
respondents committed grave abuse of discretion in
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