Republic of the Philippines Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by

SUPREME COURT Transfer Certificates of Title Nos. 271108 and 265388 respectively and
Manila registered in the name of the Philippine Realty Corporation (PRC).

EN BANC The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos,
Jr., acting as agent to the sellers. Later, Licup assigned his rights to the sale
to private respondent.

G.R. No. 101949 December 1, 1994 In view of the refusal of the squatters to vacate the lots sold to private
respondent, a dispute arose as to who of the parties has the responsibility of
THE HOLY SEE, petitioner, evicting and clearing the land of squatters. Complicating the relations of the
vs. parties was the sale by petitioner of Lot 5-A to Tropicana Properties and
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of Development Corporation (Tropicana).
the Regional Trial Court of Makati, Branch 61 and STARBRIGHT
SALES ENTERPRISES, INC., respondents. I

Padilla Law Office for petitioner. On January 23, 1990, private respondent filed a complaint with the Regional
Trial Court, Branch 61, Makati, Metro Manila for annulment of the sale of
Siguion Reyna, Montecillo & Ongsiako for private respondent. the three parcels of land, and specific performance and damages against
petitioner, represented by the Papal Nuncio, and three other defendants:
namely, Msgr. Domingo A. Cirilos, Jr., the PRC and Tropicana (Civil Case
No.
90-183).
QUIASON, J.:
The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf
This is a petition for certiorari under Rule 65 of the Revised Rules of Court
of petitioner and the PRC, agreed to sell to Ramon Licup Lots 5-A, 5-B and
to reverse and set aside the Orders dated June 20, 1991 and September 19,
5-D at the price of P1,240.00 per square meters; (2) the agreement to sell
1991 of the Regional Trial Court, Branch 61, Makati, Metro Manila in Civil
was made on the condition that earnest money of P100,000.00 be paid by
Case No. 90-183.
Licup to the sellers, and that the sellers clear the said lots of squatters who
were then occupying the same; (3) Licup paid the earnest money to Msgr.
The Order dated June 20, 1991 denied the motion of petitioner to dismiss Cirilos; (4) in the same month, Licup assigned his rights over the property
the complaint in Civil Case No. 90-183, while the Order dated September to private respondent and informed the sellers of the said assignment; (5)
19, 1991 denied the motion for reconsideration of the June 20,1991 Order. thereafter, private respondent demanded from Msgr. Cirilos that the sellers
fulfill their undertaking and clear the property of squatters; however, Msgr.
Petitioner is the Holy See who exercises sovereignty over the Vatican City in Cirilos informed private respondent of the squatters' refusal to vacate the
Rome, Italy, and is represented in the Philippines by the Papal Nuncio. lots, proposing instead either that private respondent undertake the eviction
or that the earnest money be returned to the latter; (6) private respondent
Private respondent, Starbright Sales Enterprises, Inc., is a domestic counterproposed that if it would undertake the eviction of the squatters, the
corporation engaged in the real estate business. purchase price of the lots should be reduced from P1,240.00 to P1,150.00
per square meter; (7) Msgr. Cirilos returned the earnest money of
This petition arose from a controversy over a parcel of land consisting of P100,000.00 and wrote private respondent giving it seven days from receipt
6,000 square meters (Lot 5-A, Transfer Certificate of Title No. 390440) of the letter to pay the original purchase price in cash; (8) private
located in the Municipality of Parañaque, Metro Manila and registered in respondent sent the earnest money back to the sellers, but later discovered
the name of petitioner. that on March 30, 1989, petitioner and the PRC, without notice to private
respondent, sold the lots to Tropicana, as evidenced by two separate Deeds
of Sale, one over Lot 5-A, and another over Lots 5-B and 5-D; and that the
sellers' transfer certificate of title over the lots were cancelled, transferred outcome of the case as regards the diplomatic immunity of petitioner, and
and registered in the name of Tropicana; (9) Tropicana induced petitioner that it "adopts by reference, the allegations contained in the petition of the
and the PRC to sell the lots to it and thus enriched itself at the expense of Holy See insofar as they refer to arguments relative to its claim of sovereign
private respondent; (10) private respondent demanded the rescission of the immunity from suit" (Rollo, p. 87).
sale to Tropicana and the reconveyance of the lots, to no avail; and (11)
private respondent is willing and able to comply with the terms of the Private respondent opposed the intervention of the Department of Foreign
contract to sell and has actually made plans to develop the lots into a Affairs. In compliance with the resolution of this Court, both parties and the
townhouse project, but in view of the sellers' breach, it lost profits of not less Department of Foreign Affairs submitted their respective memoranda.
than P30,000.000.00.
II
Private respondent thus prayed for: (1) the annulment of the Deeds of Sale
between petitioner and the PRC on the one hand, and Tropicana on the A preliminary matter to be threshed out is the procedural issue of whether
other; (2) the reconveyance of the lots in question; (3) specific performance the petition for certiorari under Rule 65 of the Revised Rules of Court can
of the agreement to sell between it and the owners of the lots; and (4) be availed of to question the order denying petitioner's motion to dismiss.
damages. The general rule is that an order denying a motion to dismiss is not
reviewable by the appellate courts, the remedy of the movant being to file
On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss his answer and to proceed with the hearing before the trial court. But the
the complaint — petitioner for lack of jurisdiction based on sovereign general rule admits of exceptions, and one of these is when it is very clear in
immunity from suit, and Msgr. Cirilos for being an improper party. An the records that the trial court has no alternative but to dismiss the
opposition to the motion was filed by private respondent. complaint (Philippine National Bank v. Florendo, 206 SCRA 582 [1992];
Zagada v. Civil Service Commission, 216 SCRA 114 [1992]. In such a case, it
On June 20, 1991, the trial court issued an order denying, among others, would be a sheer waste of time and energy to require the parties to undergo
petitioner's motion to dismiss after finding that petitioner "shed off [its] the rigors of a trial.
sovereign immunity by entering into the business contract in question"
(Rollo, pp. 20-21). The other procedural question raised by private respondent is the
personality or legal interest of the Department of Foreign Affairs to
On July 12, 1991, petitioner moved for reconsideration of the order. On intervene in the case in behalf of the Holy See (Rollo, pp. 186-190).
August 30, 1991, petitioner filed a "Motion for a Hearing for the Sole
Purpose of Establishing Factual Allegation for claim of Immunity as a In Public International Law, when a state or international agency wishes to
Jurisdictional Defense." So as to facilitate the determination of its defense plead sovereign or diplomatic immunity in a foreign court, it requests the
of sovereign immunity, petitioner prayed that a hearing be conducted to Foreign Office of the state where it is sued to convey to the court that said
allow it to establish certain facts upon which the said defense is based. defendant is entitled to immunity.
Private respondent opposed this motion as well as the motion for
reconsideration. In the United States, the procedure followed is the process of "suggestion,"
where the foreign state or the international organization sued in an
On October 1, 1991, the trial court issued an order deferring the resolution American court requests the Secretary of State to make a determination as
on the motion for reconsideration until after trial on the merits and to whether it is entitled to immunity. If the Secretary of State finds that the
directing petitioner to file its answer (Rollo, p. 22). defendant is immune from suit, he, in turn, asks the Attorney General to
submit to the court a "suggestion" that the defendant is entitled to
Petitioner forthwith elevated the matter to us. In its petition, petitioner immunity. In England, a similar procedure is followed, only the Foreign
invokes the privilege of sovereign immunity only on its own behalf and on Office issues a certification to that effect instead of submitting a
behalf of its official representative, the Papal Nuncio. "suggestion" (O'Connell, I International Law 130 [1965]; Note: Immunity
from Suit of Foreign Sovereign Instrumentalities and Obligations, 50 Yale
On December 9, 1991, a Motion for Intervention was filed before us by the Law Journal 1088 [1941]).
Department of Foreign Affairs, claiming that it has a legal interest in the
In the Philippines, the practice is for the foreign government or the Law. With the loss of the Papal States and the limitation of the territory
international organization to first secure an executive endorsement of its under the Holy See to an area of 108.7 acres, the position of the Holy See in
claim of sovereign or diplomatic immunity. But how the Philippine Foreign International Law became controversial (Salonga and Yap, Public
Office conveys its endorsement to the courts varies. In International International Law 36-37 [1992]).
Catholic Migration Commission v. Calleja, 190 SCRA 130 (1990), the
Secretary of Foreign Affairs just sent a letter directly to the Secretary of In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy
Labor and Employment, informing the latter that the respondent-employer recognized the exclusive dominion and sovereign jurisdiction of the Holy
could not be sued because it enjoyed diplomatic immunity. In World Health See over the Vatican City. It also recognized the right of the Holy See to
Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign receive foreign diplomats, to send its own diplomats to foreign countries,
Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57 and to enter into treaties according to International Law (Garcia, Questions
SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to and Problems In International Law, Public and Private 81 [1948]).
request the Solicitor General to make, in behalf of the Commander of the
United States Naval Base at Olongapo City, Zambales, a "suggestion" to The Lateran Treaty established the statehood of the Vatican City "for the
respondent Judge. The Solicitor General embodied the "suggestion" in a purpose of assuring to the Holy See absolute and visible independence and
Manifestation and Memorandum as amicus curiae. of guaranteeing to it indisputable sovereignty also in the field of
international relations" (O'Connell, I International Law 311 [1965]).
In the case at bench, the Department of Foreign Affairs, through the Office
of Legal Affairs moved with this Court to be allowed to intervene on the side In view of the wordings of the Lateran Treaty, it is difficult to determine
of petitioner. The Court allowed the said Department to file its whether the statehood is vested in the Holy See or in the Vatican City. Some
memorandum in support of petitioner's claim of sovereign immunity. writers even suggested that the treaty created two international persons —
the Holy See and Vatican City (Salonga and Yap, supra, 37).
In some cases, the defense of sovereign immunity was submitted directly to
the local courts by the respondents through their private counsels (Raquiza The Vatican City fits into none of the established categories of states, and
v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus Command, the attribution to it of "sovereignty" must be made in a sense different from
80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644 that in which it is applied to other states (Fenwick, International Law 124-
[1990] and companion cases). In cases where the foreign states bypass the 125 [1948]; Cruz, International Law 37 [1991]). In a community of national
Foreign Office, the courts can inquire into the facts and make their own states, the Vatican City represents an entity organized not for political but
determination as to the nature of the acts and transactions involved. for ecclesiastical purposes and international objects. Despite its size and
object, the Vatican City has an independent government of its own, with the
III Pope, who is also head of the Roman Catholic Church, as the Holy See or
Head of State, in conformity with its traditions, and the demands of its
The burden of the petition is that respondent trial court has no jurisdiction mission in the world. Indeed, the world-wide interests and activities of the
over petitioner, being a foreign state enjoying sovereign immunity. On the Vatican City are such as to make it in a sense an "international state"
other hand, private respondent insists that the doctrine of non-suability is (Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]).
not anymore absolute and that petitioner has divested itself of such a cloak
when, of its own free will, it entered into a commercial transaction for the One authority wrote that the recognition of the Vatican City as a state has
sale of a parcel of land located in the Philippines. significant implication — that it is possible for any entity pursuing objects
essentially different from those pursued by states to be invested with
A. The Holy See international personality (Kunz, The Status of the Holy See in International
Law, 46 The American Journal of International Law 308 [1952]).
Before we determine the issue of petitioner's non-suability, a brief look into
its status as a sovereign state is in order. Inasmuch as the Pope prefers to conduct foreign relations and enter into
transactions as the Holy See and not in the name of the Vatican City, one
Before the annexation of the Papal States by Italy in 1870, the Pope was the can conclude that in the Pope's own view, it is the Holy See that is the
monarch and he, as the Holy See, was considered a subject of International international person.
The Republic of the Philippines has accorded the Holy See the status of a The restrictive theory came about because of the entry of sovereign states
foreign sovereign. The Holy See, through its Ambassador, the Papal Nuncio, into purely commercial activities remotely connected with the discharge of
has had diplomatic representations with the Philippine government since governmental functions. This is particularly true with respect to the
1957 (Rollo, p. 87). This appears to be the universal practice in international Communist states which took control of nationalized business activities and
relations. international trading.

B. Sovereign Immunity This Court has considered the following transactions by a foreign state with
private parties as acts jure imperii: (1) the lease by a foreign government of
As expressed in Section 2 of Article II of the 1987 Constitution, we have apartment buildings for use of its military officers (Syquia v. Lopez, 84 Phil.
adopted the generally accepted principles of International Law. Even 312 [1949]; (2) the conduct of public bidding for the repair of a wharf at a
without this affirmation, such principles of International Law are deemed United States Naval Station (United States of America v. Ruiz, supra.); and
incorporated as part of the law of the land as a condition and consequence (3) the change of employment status of base employees (Sanders v.
of our admission in the society of nations (United States of America v. Veridiano, 162 SCRA 88 [1988]).
Guinto, 182 SCRA 644 [1990]).
On the other hand, this Court has considered the following transactions by
There are two conflicting concepts of sovereign immunity, each widely held a foreign state with private parties as acts jure gestionis: (1) the hiring of a
and firmly established. According to the classical or absolute theory, a cook in the recreation center, consisting of three restaurants, a cafeteria, a
sovereign cannot, without its consent, be made a respondent in the courts bakery, a store, and a coffee and pastry shop at the John Hay Air Station in
of another sovereign. According to the newer or restrictive theory, the Baguio City, to cater to American servicemen and the general public (United
immunity of the sovereign is recognized only with regard to public acts or States of America v. Rodrigo, 182 SCRA 644 [1990]); and (2) the bidding for
acts jure imperii of a state, but not with regard to private acts or acts jure the operation of barber shops in Clark Air Base in Angeles City (United
gestionis States of America v. Guinto, 182 SCRA 644 [1990]). The operation of the
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and restaurants and other facilities open to the general public is undoubtedly for
Defensor-Santiago, Public International Law 194 [1984]). profit as a commercial and not a governmental activity. By entering into the
employment contract with the cook in the discharge of its proprietary
Some states passed legislation to serve as guidelines for the executive or function, the United States government impliedly divested itself of its
judicial determination when an act may be considered as jure gestionis. The sovereign immunity from suit.
United States passed the Foreign Sovereign Immunities Act of 1976, which
defines a commercial activity as "either a regular course of commercial In the absence of legislation defining what activities and transactions shall
conduct or a particular commercial transaction or act." Furthermore, the be considered "commercial" and as constituting acts jure gestionis, we have
law declared that the "commercial character of the activity shall be to come out with our own guidelines, tentative they may be.
determined by reference to the nature of the course of conduct or particular
transaction or act, rather than by reference to its purpose." The Canadian Certainly, the mere entering into a contract by a foreign state with a private
Parliament enacted in 1982 an Act to Provide For State Immunity in party cannot be the ultimate test. Such an act can only be the start of the
Canadian Courts. The Act defines a "commercial activity" as any particular inquiry. The logical question is whether the foreign state is engaged in the
transaction, act or conduct or any regular course of conduct that by reason activity in the regular course of business. If the foreign state is not engaged
of its nature, is of a "commercial character." regularly in a business or trade, the particular act or transaction must then
be tested by its nature. If the act is in pursuit of a sovereign activity, or an
The restrictive theory, which is intended to be a solution to the host of incident thereof, then it is an act jure imperii, especially when it is not
problems involving the issue of sovereign immunity, has created problems undertaken for gain or profit.
of its own. Legal treatises and the decisions in countries which follow the
restrictive theory have difficulty in characterizing whether a contract of a As held in United States of America v. Guinto, (supra):
sovereign state with a private party is an act jure gestionis or an act jure
imperii. There is no question that the United States of America, like
any other state, will be deemed to have impliedly waived its
 non-suability if it has entered into a contract in its conduct of the Philippines' foreign relations (Administrative Code of 1987,
proprietary or private capacity. It is only when the contract Book IV, Title I, Sec. 3), the Department of Foreign Affairs has formally
involves its sovereign or governmental capacity that no such intervened in this case and officially certified that the Embassy of the Holy
waiver may be implied. See is a duly accredited diplomatic mission to the Republic of the
Philippines exempt from local jurisdiction and entitled to all the rights,
In the case at bench, if petitioner has bought and sold lands in the ordinary privileges and immunities of a diplomatic mission or embassy in this
course of a real estate business, surely the said transaction can be country (Rollo, pp. 156-157). The determination of the executive arm of
categorized as an act jure gestionis. However, petitioner has denied that the government that a state or instrumentality is entitled to sovereign or
acquisition and subsequent disposal of Lot 5-A were made for profit but diplomatic immunity is a political question that is conclusive upon the
claimed that it acquired said property for the site of its mission or the courts (International Catholic Migration Commission v. Calleja, 190 SCRA
Apostolic Nunciature in the Philippines. Private respondent failed to 130 [1990]). Where the plea of immunity is recognized and affirmed by the
dispute said claim. executive branch, it is the duty of the courts to accept this claim so as not to
embarrass the executive arm of the government in conducting the country's
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of foreign relations (World Health Organization v. Aquino, 48 SCRA 242
Manila. The donation was made not for commercial purpose, but for the use [1972]). As in International Catholic Migration Commission and in World
of petitioner to construct thereon the official place of residence of the Papal Health Organization, we abide by the certification of the Department of
Nuncio. The right of a foreign sovereign to acquire property, real or Foreign Affairs.
personal, in a receiving state, necessary for the creation and maintenance of
its diplomatic mission, is recognized in the 1961 Vienna Convention on Ordinarily, the procedure would be to remand the case and order the trial
Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the court to conduct a hearing to establish the facts alleged by petitioner in its
Philippine Senate and entered into force in the Philippines on November 15, motion. In view of said certification, such procedure would however be
1965. pointless and unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge
Tirso Velasco, G.R. No. 109645, July 25, 1994).
In Article 31(a) of the Convention, a diplomatic envoy is granted immunity
from the civil and administrative jurisdiction of the receiving state over any IV
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 Private respondent is not left without any legal remedy for the redress of its
for the purposes of the mission. If this immunity is provided for a diplomatic grievances. Under both Public International Law and Transnational Law, a
envoy, with all the more reason should immunity be recognized as regards person who feels aggrieved by the acts of a foreign sovereign can ask his own
the sovereign itself, which in this case is the Holy See. government to espouse his cause through diplomatic channels.

The decision to transfer the property and the subsequent disposal thereof Private respondent can ask the Philippine government, through the Foreign
are likewise clothed with a governmental character. Petitioner did not sell Office, to espouse its claims against the Holy See. Its first task is to persuade
Lot the Philippine government to take up with the Holy See the validity of its
5-A for profit or gain. It merely wanted to dispose off the same because the claims. Of course, the Foreign Office shall first make a determination of the
squatters living thereon made it almost impossible for petitioner to use it impact of its espousal on the relations between the Philippine government
for the purpose of the donation. The fact that squatters have occupied and and the Holy See (Young, Remedies of Private Claimants Against Foreign
are still occupying the lot, and that they stubbornly refuse to leave the States, Selected Readings on Protection by Law of Private Foreign
premises, has been admitted by private respondent in its complaint (Rollo, Investments 905, 919 [1964]). Once the Philippine government decides to
pp. 26, 27). espouse the claim, the latter ceases to be a private cause.

The issue of petitioner's non-suability can be determined by the trial court According to the Permanent Court of International Justice, the forerunner
without going to trial in the light of the pleadings, particularly the admission of the International Court of Justice:
of private respondent. Besides, the privilege of sovereign immunity in this
case was sufficiently established by the Memorandum and Certification of
the Department of Foreign Affairs. As the department tasked with the
 By taking up the case of one of its subjects and by reporting Republic of the Philippines
to diplomatic action or international judicial proceedings on SUPREME COURT
his behalf, a State is in reality asserting its own rights — its Manila
right to ensure, in the person of its subjects, respect for the
rules of international law (The Mavrommatis Palestine EN BANC
Concessions, 1 Hudson, World Court Reports 293, 302
[1924]). G. R. No. 175352 January 18, 2011

WHEREFORE, the petition for certiorari is GRANTED and the complaint DANTE V. LIBAN, REYNALDO M. BERNARDO and SALVADOR
in Civil Case No. 90-183 against petitioner is DISMISSED. M. VIARI, Petitioners,
vs.
As a consequence of the assassination in September 1948, in Jerusalem, of RICHARD J. GORDON, Respondent.
Count Folke Bernadotte, the United Nations Mediator in Palestine, and PHILIPPINE NATIONAL RED CROSS, Intervenor.
other members of the United Nations Mission to Palestine, the General
Assembly asked the Court whether the United Nations had the capacity to RESOLUTION
bring an international claim against the State responsible with a view to
obtaining reparation for damage caused to the Organization and to the LEONARDO-DE CASTRO, J.:
victim. If this question were answered in the affirmative, it was further
asked in what manner the action taken by the United Nations could be
This resolves the Motion for Clarification and/or for Reconsideration1 filed
reconciled with such rights as might be possessed by the State of which the
on August 10, 2009 by respondent Richard J. Gordon (respondent) of the
victim was a national. In its Advisory Opinion of 11 April 1949, the Court
Decision promulgated by this Court on July 15, 2009 (the Decision), the
held that the Organization was intended to exercise functions and rights
Motion for Partial Reconsideration2 filed on August 27, 2009 by movant-
which could only be explained on the basis of the possession of a large
intervenor Philippine National Red Cross (PNRC), and the latter’s
measure of international personality and the capacity to operate upon the
Manifestation and Motion to Admit Attached Position Paper 3 filed on
international plane. It followed that the Organization had the capacity to
December 23, 2009.
bring a claim and to give it the character of an international action for
reparation for the damage that had been caused to it. The Court further
declared that the Organization can claim reparation not only in respect of In the Decision,4 the Court held that respondent did not forfeit his seat in
damage caused to itself, but also in respect of damage suffered by the victim the Senate when he accepted the chairmanship of the PNRC Board of
or persons entitled through him. Although, according to the traditional rule, Governors, as "the office of the PNRC Chairman is not a government office
diplomatic protection had to be exercised by the national State, the or an office in a government-owned or controlled corporation for purposes
Organization should be regarded in international law as possessing the of the prohibition in Section 13, Article VI of the 1987 Constitution."5 The
powers which, even if they are not expressly stated in the Charter, are Decision, however, further declared void the PNRC Charter "insofar as it
conferred upon the Organization as being essential to the discharge of its creates the PNRC as a private corporation" and consequently ruled that "the
functions. The Organization may require to entrust its agents with PNRC should incorporate under the Corporation Code and register with the
important missions in disturbed parts of the world. In such cases, it is Securities and Exchange Commission if it wants to be a private
necessary that the agents should receive suitable support and protection. corporation."6 The dispositive portion of the Decision reads as follows:
The Court therefore found that the Organization has the capacity to claim
appropriate reparation, including also reparation for damage suffered by WHEREFORE, we declare that the office of the Chairman of the
the victim or by persons entitled through him. The risk of possible Philippine National Red Cross is not a government office or an office in a
competition between the Organization and the victim’s national State could government-owned or controlled corporation for purposes of the
be eliminated either by means of a general convention or by a particular prohibition in Section 13, Article VI of the 1987 Constitution. We also
agreement in any individual case.SO ORDERED. declare that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter
of the Philippine National Red Cross, or Republic Act No. 95, as amended
by Presidential Decree Nos. 1264 and 1643, are VOID because they create
the PNRC as a private corporation or grant it corporate powers.7
In his Motion for Clarification and/or for Reconsideration, respondent Recognizing the PNRC as an Independent, Autonomous, Non-
raises the following grounds: (1) as the issue of constitutionality of Republic Governmental Organization Auxiliary to the Authorities of the Republic of
Act (R.A.) No. 95 was not raised by the parties, the Court went beyond the the Philippines in the Humanitarian Field, to be Known as The Philippine
case in deciding such issue; and (2) as the Court decided that Petitioners did Red Cross."11
not have standing to file the instant Petition, the pronouncement of the
Court on the validity of R.A. No. 95 should be considered obiter.8 After a thorough study of the arguments and points raised by the respondent
as well as those of movant-intervenor in their respective motions, we have
Respondent argues that the validity of R.A. No. 95 was a non-issue; reconsidered our pronouncements in our Decision dated July 15, 2009 with
therefore, it was unnecessary for the Court to decide on that question. regard to the nature of the PNRC and the constitutionality of some
Respondent cites Laurel v. Garcia,9 wherein the Court said that it "will not provisions of the PNRC Charter, R.A. No. 95, as amended.
pass upon a constitutional question although properly presented by the
record if the case can be disposed of on some other ground" and goes on to As correctly pointed out in respondent’s Motion, the issue of
claim that since this Court, in the Decision, disposed of the petition on some constitutionality of R.A. No. 95 was not raised by the parties, and was not
other ground, i.e., lack of standing of petitioners, there was no need for it to among the issues defined in the body of the Decision; thus, it was not the
delve into the validity of R.A. No. 95, and the rest of the judgment should be very lis mota of the case. We have reiterated the rule as to when the Court
deemed obiter. will consider the issue of constitutionality in Alvarez v. PICOP Resources,
Inc.,12 thus:
In its Motion for Partial Reconsideration, PNRC prays that the Court sustain
the constitutionality of its Charter on the following grounds: This Court will not touch the issue of unconstitutionality unless it is the
very lis mota. It is a well-established rule that a court should not pass upon
A. THE ASSAILED DECISION DECLARING UNCONSTITUTIONAL a constitutional question and decide a law to be unconstitutional or invalid,
REPUBLIC ACT NO. 95 AS AMENDED DEPRIVED INTERVENOR PNRC unless such question is raised by the parties and that when it is raised, if the
OF ITS CONSTITUTIONAL RIGHT TO DUE PROCESS. record also presents some other ground upon which the court may [rest] its
judgment, that course will be adopted and the constitutional question will
1. INTERVENOR PNRC WAS NEVER A PARTY TO THE INSTANT be left for consideration until such question will be unavoidable.13
CONTROVERSY.
Under the rule quoted above, therefore, this Court should not have
2. THE CONSTITUTIONALITY OF REPUBLIC ACT NO. 95, AS AMENDED declared void certain sections of R.A. No. 95, as amended by Presidential
WAS NEVER AN ISSUE IN THIS CASE. Decree (P.D.) Nos. 1264 and 1643, the PNRC Charter. Instead, the Court
should have exercised judicial restraint on this matter, especially since there
B. THE CURRENT CHARTER OF PNRC IS PRESIDENTIAL DECREE NO. was some other ground upon which the Court could have based its
1264 AND NOT REPUBLIC ACT NO. 95. PRESIDENTIAL DECREE NO. judgment. Furthermore, the PNRC, the entity most adversely affected by
1264 WAS NOT A CREATION OF CONGRESS. this declaration of unconstitutionality, which was not even originally a party
to this case, was being compelled, as a consequence of the Decision, to
C. PNRC’S STRUCTURE IS SUI GENERIS; IT IS A CLASS OF ITS OWN. suddenly reorganize and incorporate under the Corporation Code, after
WHILE IT IS PERFORMING HUMANITARIAN FUNCTIONS AS AN more than sixty (60) years of existence in this country.
AUXILIARY TO GOVERNMENT, IT IS A NEUTRAL ENTITY SEPARATE
AND INDEPENDENT OF GOVERNMENT CONTROL, YET IT DOES NOT Its existence as a chartered corporation remained unchallenged on ground
QUALIFY AS STRICTLY PRIVATE IN CHARACTER. of unconstitutionality notwithstanding that R.A. No. 95 was enacted on
March 22, 1947 during the effectivity of the 1935 Constitution, which
In his Comment and Manifestation10 filed on November 9, 2009, provided for a proscription against the creation of private corporations by
respondent manifests: (1) that he agrees with the position taken by the special law, to wit:
PNRC in its Motion for Partial Reconsideration dated August 27, 2009; and
(2) as of the writing of said Comment and Manifestation, there was pending SEC. 7. The Congress shall not, except by general law, provide for the
before the Congress of the Philippines a proposed bill entitled "An Act formation, organization, or regulation of private corporations, unless such
corporations are owned and controlled by the Government or any a voluntary organization impressed with public interest. Pertinently R.A.
subdivision or instrumentality thereof. (Art. XIV, 1935 Constitution.) No. 95, as amended by P.D. 1264, provides:

Similar provisions are found in Article XIV, Section 4 of the 1973 WHEREAS, during the meeting in Geneva, Switzerland, on 22 August 1894,
Constitution and Article XII, Section 16 of the 1987 Constitution. The latter the nations of the world unanimously agreed to diminish within their power
reads: the evils inherent in war;

SECTION 16. The Congress shall not, except by general law, provide for the WHEREAS, more than one hundred forty nations of the world have ratified
formation, organization, or regulation of private corporations. Government- or adhered to the Geneva Conventions of August 12, 1949 for the
owned or controlled corporations may be created or established by special Amelioration of the Condition of the Wounded and Sick of Armed Forces in
charters in the interest of the common good and subject to the test of the Field and at Sea, The Prisoners of War, and The Civilian Population in
economic viability. Time of War referred to in this Charter as the Geneva Conventions;

Since its enactment, the PNRC Charter was amended several times, WHEREAS, the Republic of the Philippines became an independent nation
particularly on June 11, 1953, August 16, 1971, December 15, 1977, and on July 4, 1946, and proclaimed on February 14, 1947 its adherence to the
October 1, 1979, by virtue of R.A. No. 855, R.A. No. 6373, P.D. No. 1264, and Geneva Conventions of 1929, and by the action, indicated its desire to
P.D. No. 1643, respectively. The passage of several laws relating to the participate with the nations of the world in mitigating the suffering caused
PNRC’s corporate existence notwithstanding the effectivity of the by war and to establish in the Philippines a voluntary organization for that
constitutional proscription on the creation of private corporations by law, is purpose as contemplated by the Geneva Conventions;
a recognition that the PNRC is not strictly in the nature of a private
corporation contemplated by the aforesaid constitutional ban. WHEREAS, there existed in the Philippines since 1917 a chapter of the
American National Red Cross which was terminated in view of the
A closer look at the nature of the PNRC would show that there is none like independence of the Philippines; and
it not just in terms of structure, but also in terms of history, public service
and official status accorded to it by the State and the international WHEREAS, the volunteer organizations established in other countries
community. There is merit in PNRC’s contention that its structure is sui which have ratified or adhered to the Geneva Conventions assist in
generis. promoting the health and welfare of their people in peace and in war, and
through their mutual assistance and cooperation directly and through their
The PNRC succeeded the chapter of the American Red Cross which was in international organizations promote better understanding and sympathy
existence in the Philippines since 1917. It was created by an Act of Congress among the people of the world;
after the Republic of the Philippines became an independent nation on July
6, 1946 and proclaimed on February 14, 1947 its adherence to the NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Convention of Geneva of July 29, 1929 for the Amelioration of the Condition Philippines, by virtue of the powers vested in me by the Constitution as
of the Wounded and Sick of Armies in the Field (the "Geneva Red Cross Commander-in-Chief of all the Armed Forces of the Philippines and
Convention"). By that action the Philippines indicated its desire to pursuant to Proclamation No. 1081 dated September 21, 1972, and General
participate with the nations of the world in mitigating the suffering caused Order No. 1 dated September 22, 1972, do hereby decree and order that
by war and to establish in the Philippines a voluntary organization for that Republic Act No. 95, Charter of the Philippine National Red Cross (PNRC)
purpose and like other volunteer organizations established in other as amended by Republic Acts No. 855 and 6373, be further amended as
countries which have ratified the Geneva Conventions, to promote the follows:
health and welfare of the people in peace and in war.14
Section 1. There is hereby created in the Republic of the Philippines a body
The provisions of R.A. No. 95, as amended by R.A. Nos. 855 and 6373, and corporate and politic to be the voluntary organization officially designated
further amended by P.D. Nos. 1264 and 1643, show the historical to assist the Republic of the Philippines in discharging the obligations set
background and legal basis of the creation of the PNRC by legislative fiat, as forth in the Geneva Conventions and to perform such other duties as are
inherent upon a national Red Cross Society. The national headquarters of
this Corporation shall be located in Metropolitan Manila. (Emphasis in times of armed conflict and other emergencies, to work for the prevention
supplied.) of disease and for the promotion of health and social welfare, to encourage
voluntary service and a constant readiness to give help by the members of
The significant public service rendered by the PNRC can be gleaned from the Movement, and a universal sense of solidarity towards all those in need
Section 3 of its Charter, which provides: of its protection and assistance.15

Section 3. That the purposes of this Corporation shall be as follows: The PNRC works closely with the ICRC and has been involved in
humanitarian activities in the Philippines since 1982. Among others, these
(a) To provide volunteer aid to the sick and wounded of armed forces in time activities in the country include:
of war, in accordance with the spirit of and under the conditions prescribed
by the Geneva Conventions to which the Republic of the Philippines 1. Giving protection and assistance to civilians displaced or otherwise
proclaimed its adherence; affected by armed clashes between the government and armed opposition
groups, primarily in Mindanao;
(b) For the purposes mentioned in the preceding sub-section, to perform all
duties devolving upon the Corporation as a result of the adherence of the 2. Working to minimize the effects of armed hostilities and violence on the
Republic of the Philippines to the said Convention; population;

(c) To act in matters of voluntary relief and in accordance with the 3. Visiting detainees; and
authorities of the armed forces as a medium of communication between
people of the Republic of the Philippines and their Armed Forces, in time of 4. Promoting awareness of international humanitarian law in the public and
peace and in time of war, and to act in such matters between similar national private sectors.16
societies of other governments and the Governments and people and the
Armed Forces of the Republic of the Philippines; National Societies such as the PNRC act as auxiliaries to the public
authorities of their own countries in the humanitarian field and provide a
(d) To establish and maintain a system of national and international relief range of services including disaster relief and health and social
in time of peace and in time of war and apply the same in meeting and programmes.
emergency needs caused by typhoons, flood, fires, earthquakes, and other
natural disasters and to devise and carry on measures for minimizing the The International Federation of Red Cross (IFRC) and Red Crescent
suffering caused by such disasters; Societies (RCS) Position Paper,17 submitted by the PNRC, is instructive with
regard to the elements of the specific nature of the National Societies such
(e) To devise and promote such other services in time of peace and in time as the PNRC, to wit:
of war as may be found desirable in improving the health, safety and welfare
of the Filipino people; National Societies, such as the Philippine National Red Cross and its sister
Red Cross and Red Crescent Societies, have certain specificities deriving
(f) To devise such means as to make every citizen and/or resident of the from the 1949 Geneva Convention and the Statutes of the International Red
Philippines a member of the Red Cross. Cross and Red Crescent Movement (the Movement). They are also guided
by the seven Fundamental Principles of the Red Cross and Red Crescent
The PNRC is one of the National Red Cross and Red Crescent Societies, Movement: Humanity, Impartiality, Neutrality, Independence, Voluntary
which, together with the International Committee of the Red Cross (ICRC) Service, Unity and Universality.
and the IFRC and RCS, make up the International Red Cross and Red
Crescent Movement (the Movement). They constitute a worldwide A National Society partakes of a sui generis character. It is a protected
humanitarian movement, whose mission is: component of the Red Cross movement under Articles 24 and 26 of the First
Geneva Convention, especially in times of armed conflict. These provisions
[T]o prevent and alleviate human suffering wherever it may be found, to require that the staff of a National Society shall be respected and protected
protect life and health and ensure respect for the human being, in particular in all circumstances. Such protection is not ordinarily afforded by an
international treaty to ordinary private entities or even non-governmental In the Decision, the Court, citing Feliciano v. Commission on
organisations (NGOs). This sui generis character is also emphasized by the Audit,19 explained that the purpose of the constitutional provision
Fourth Geneva Convention which holds that an Occupying Power cannot prohibiting Congress from creating private corporations was to prevent the
require any change in the personnel or structure of a National granting of special privileges to certain individuals, families, or groups,
Society. National societies are therefore organizations that are which were denied to other groups. Based on the above discussion, it can be
directly regulated by international humanitarian law, in contrast seen that the PNRC Charter does not come within the spirit of this
to other ordinary private entities, including NGOs. constitutional provision, as it does not grant special privileges to a particular
individual, family, or group, but creates an entity that strives to serve the
xxxx common good.

In addition, National Societies are not only officially recognized by their Furthermore, a strict and mechanical interpretation of Article XII, Section
public authorities as voluntary aid societies, auxiliary to the public 16 of the 1987 Constitution will hinder the State in adopting measures that
authorities in the humanitarian field, but also benefit from recognition at will serve the public good or national interest. It should be noted that a
the International level. This is considered to be an element distinguishing special law, R.A. No. 9520, the Philippine Cooperative Code of 2008, and
National Societies from other organisations (mainly NGOs) and other forms not the general corporation code, vests corporate power and capacities upon
of humanitarian response. cooperatives which are private corporations, in order to implement the
State’s avowed policy.
x x x. No other organisation belongs to a world-wide Movement in which all
Societies have equal status and share equal responsibilities and duties in In the Decision of July 15, 2009, the Court recognized the public service
helping each other. This is considered to be the essence of the Fundamental rendered by the PNRC as the government’s partner in the observance of its
Principle of Universality. international commitments, to wit:

Furthermore, the National Societies are considered to be auxiliaries to the The PNRC is a non-profit, donor-funded, voluntary, humanitarian
public authorities in the humanitarian field. x x x. organization, whose mission is to bring timely, effective, and compassionate
humanitarian assistance for the most vulnerable without consideration of
The auxiliary status of [a] Red Cross Society means that it is at one and nationality, race, religion, gender, social status, or political affiliation. The
the same time a private institution and a public service PNRC provides six major services: Blood Services, Disaster Management,
organization because the very nature of its work implies Safety Services, Community Health and Nursing, Social Services and
cooperation with the authorities, a link with the State. In carrying Voluntary Service.
out their major functions, Red Cross Societies give their humanitarian
support to official bodies, in general having larger resources than the The Republic of the Philippines, adhering to the Geneva Conventions,
Societies, working towards comparable ends in a given sector. established the PNRC as a voluntary organization for the purpose
contemplated in the Geneva Convention of 27 July 1929. x x x.20 (Citations
x x x No other organization has a duty to be its government’s humanitarian omitted.)
partner while remaining independent.18(Emphases ours.)
So must this Court recognize too the country’s adherence to the
It is in recognition of this sui generis character of the PNRC that R.A. No. 95 Geneva Convention and respect the unique status of the PNRC in
has remained valid and effective from the time of its enactment in March consonance with its treaty obligations. The Geneva Convention has
22, 1947 under the 1935 Constitution and during the effectivity of the 1973 the force and effect of law.21 Under the Constitution, the Philippines adopts
Constitution and the 1987 Constitution. the generally accepted principles of international law as part of the law of
the land.22 This constitutional provision must be reconciled and harmonized
The PNRC Charter and its amendatory laws have not been questioned or with Article XII, Section 16 of the Constitution, instead of using the latter to
challenged on constitutional grounds, not even in this case before the Court negate the former.
now.
By requiring the PNRC to organize under the Corporation Code just like any the country’s blood requirements. Its humanitarian work is unparalleled.
other private corporation, the Decision of July 15, 2009 lost sight of the The Court should not shake its existence to the core in an untimely and
PNRC’s special status under international humanitarian law and as an drastic manner that would not only have negative consequences to those
auxiliary of the State, designated to assist it in discharging its obligations who depend on it in times of disaster and armed hostilities but also have
under the Geneva Conventions. Although the PNRC is called to be adverse effects on the image of the Philippines in the international
independent under its Fundamental Principles, it interprets such community. The sections of the PNRC Charter that were declared void must
independence as inclusive of its duty to be the government’s humanitarian therefore stay.
partner. To be recognized in the International Committee, the PNRC must
have an autonomous status, and carry out its humanitarian mission in a WHEREFORE, premises considered, respondent Richard J. Gordon’s
neutral and impartial manner. Motion for Clarification and/or for Reconsideration and movant-intervenor
PNRC’s Motion for Partial Reconsideration of the Decision in G.R. No.
However, in accordance with the Fundamental Principle of Voluntary 175352 dated July 15, 2009 are GRANTED. The constitutionality of R.A. No.
Service of National Societies of the Movement, the PNRC must be 95, as amended, the charter of the Philippine National Red Cross, was not
distinguished from private and profit-making entities. It is the main raised by the parties as an issue and should not have been passed upon by
characteristic of National Societies that they "are not inspired by the desire this Court. The structure of the PNRC is sui generis¸ being neither strictly
for financial gain but by individual commitment and devotion to a private nor public in nature. R.A. No. 95 remains valid and constitutional in
humanitarian purpose freely chosen or accepted as part of the service that its entirety. The dispositive portion of the Decision should therefore be
National Societies through its volunteers and/or members render to the MODIFIED by deleting the second sentence, to now read as follows:
Community."23
WHEREFORE, we declare that the office of the Chairman of the
The PNRC, as a National Society of the International Red Cross and Red Philippine National Red Cross is not a government office or an office in a
Crescent Movement, can neither "be classified as an instrumentality of the government-owned or controlled corporation for purposes of the
State, so as not to lose its character of neutrality" as well as its independence, prohibition in Section 13, Article VI of the 1987 Constitution.
nor strictly as a private corporation since it is regulated by international
humanitarian law and is treated as an auxiliary of the State.24 SO ORDERED.

Based on the above, the sui generis status of the PNRC is now sufficiently Republic of the Philippines
established.1âwphi1 Although it is neither a subdivision, agency, or SUPREME COURT
instrumentality of the government, nor a government-owned or -controlled Manila
corporation or a subsidiary thereof, as succinctly explained in the Decision
of July 15, 2009, so much so that respondent, under the Decision, was EN BANC
correctly allowed to hold his position as Chairman thereof concurrently
while he served as a Senator, such a conclusion does not ipso facto imply G.R. No. L-409 January 30, 1947
that the PNRC is a "private corporation" within the contemplation of the
provision of the Constitution, that must be organized under the Corporation
ANASTACIO LAUREL, petitioner,
Code. As correctly mentioned by Justice Roberto A. Abad, the sui generis
vs.
character of PNRC requires us to approach controversies involving the
ERIBERTO MISA, respondent.
PNRC on a case-to-case basis.
Claro M. Recto and Querube C. Makalintal for petitioner.
In sum, the PNRC enjoys a special status as an important ally and auxiliary
First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for
of the government in the humanitarian field in accordance with its
respondent.
commitments under international law. This Court cannot all of a sudden
refuse to recognize its existence, especially since the issue of the
constitutionality of the PNRC Charter was never raised by the parties. It RESOLUTION
bears emphasizing that the PNRC has responded to almost all national
disasters since 1947, and is widely known to provide a substantial portion of
In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the Court, the conclusion that the sovereignty itself is not suspended and subsists
acting on the petition for habeas corpusfiled by Anastacio Laurel and based during the enemy occupation, the allegiance of the inhabitants to their
on a theory that a Filipino citizen who adhered to the enemy giving the latter legitimate government or sovereign subsists, and therefore there is no such
aid and comfort during the Japanese occupation cannot be prosecuted for thing as suspended allegiance, the basic theory on which the whole fabric of
the crime of treason defined and penalized by article 114 of the Revised the petitioner's contention rests;
Penal Code, for the reason (1) that the sovereignty of the legitimate
government in the Philippines and, consequently, the correlative allegiance Considering that the conclusion that the sovereignty of the United State was
of Filipino citizens thereto was then suspended; and (2) that there was a suspended in Castine, set forth in the decision in the case of United
change of sovereignty over these Islands upon the proclamation of the States vs. Rice, 4 Wheaton, 246, 253, decided in 1819, and quoted in our
Philippine Republic: decision in the cases of Co Kim Cham vs. Valdez Tan Keh and
Dizon and Peralta vs. Director of Prisons, supra, in connection with the
(1) Considering that a citizen or subject owes, not a qualified and temporary, question, not of sovereignty, but of the existence of a government de
but an absolute and permanent allegiance, which consists in the obligation factotherein and its power to promulgate rules and laws in the occupied
of fidelity and obedience to his government or sovereign; and that this territory, must have been based, either on the theory adopted subsequently
absolute and permanent allegiance should not be confused with the in the Hague Convention of 1907, that the military occupation of an enemy
qualified and temporary allegiance which a foreigner owes to the territory does not transfer the sovereignty to the occupant; that, in the first
government or sovereign of the territory wherein he resides, so long as he case, the word "sovereignty" used therein should be construed to mean the
remains there, in return for the protection he receives, and which consists exercise of the rights of sovereignty, because as this remains vested in the
in the obedience to the laws of the government or sovereign. legitimate government and is not transferred to the occupier, it cannot be
(Carlisle vs. Unite States, 21 Law. ed., 429; Secretary of State Webster suspended without putting it out of existence or divesting said government
Report to the President of the United States in the case of Thraser, 6 Web. thereof; and that in the second case, that is, if the said conclusion or doctrine
Works, 526); refers to the suspension of the sovereignty itself, it has become obsolete after
the adoption of the Hague Regulations in 1907, and therefore it can not be
Considering that the absolute and permanent allegiance of the inhabitants applied to the present case;
of a territory occupied by the enemy of their legitimate government or
sovereign is not abrogated or severed by the enemy occupation, because the Considering that even adopting the words "temporarily allegiance,"
sovereignty of the government or sovereign de jure is not transferred repudiated by Oppenheim and other publicists, as descriptive of the
thereby to the occupier, as we have held in the cases of Co Kim Cham vs. relations borne by the inhabitants of the territory occupied by the enemy
Valdez Tan Keh and Dizon (75 Phil., 113) and of Peralta vs. Director of toward the military government established over them, such allegiance may,
Prisons (75 Phil., 285), and if it is not transferred to the occupant it must at most, be considered similar to the temporary allegiance which a foreigner
necessarily remain vested in the legitimate government; that the owes to the government or sovereign of the territory wherein he resides in
sovereignty vested in the titular government (which is the supreme power return for the protection he receives as above described, and does not do
which governs a body politic or society which constitute the state) must be away with the absolute and permanent allegiance which the citizen residing
distinguished from the exercise of the rights inherent thereto, and may be in a foreign country owes to his own government or sovereign; that just as a
destroyed, or severed and transferred to another, but it cannot be suspended citizen or subject of a government or sovereign may be prosecuted for and
because the existence of sovereignty cannot be suspended without putting it convicted of treason committed in a foreign country, in the same way an
out of existence or divesting the possessor thereof at least during the so- inhabitant of a territory occupied by the military forces of the enemy may
called period of suspension; that what may be suspended is the exercise of commit treason against his own legitimate government or sovereign if he
the rights of sovereignty with the control and government of the territory adheres to the enemies of the latter by giving them aid and comfort; and that
occupied by the enemy passes temporarily to the occupant; that the if the allegiance of a citizen or subject to his government or sovereign is
subsistence of the sovereignty of the legitimate government in a territory nothing more than obedience to its laws in return for the protection he
occupied by the military forces of the enemy during the war, "although the receives, it would necessarily follow that a citizen who resides in a foreign
former is in fact prevented from exercising the supremacy over them" is one country or state would, on one hand, ipso factoacquire the citizenship
of the "rules of international law of our times"; (II Oppenheim, 6th thereof since he has enforce public order and regulate the social and
Lauterpacht ed., 1944, p. 482), recognized, by necessary implication, in commercial life, in return for the protection he receives, and would, on the
articles 23, 44, 45, and 52 of Hague Regulation; and that, as a corollary of other hand, lose his original citizenship, because he would not be bound to
obey most of the laws of his own government or sovereign, and would not in conflict with such laws and orders of the occupier, shall be considered as
receive, while in a foreign country, the protection he is entitled to in his own; suspended or not in force and binding upon said inhabitants;

Considering that, as a corollary of the suspension of the exercise of the rights Considering that, since the preservation of the allegiance or the obligation
of sovereignty by the legitimate government in the territory occupied by the of fidelity and obedience of a citizen or subject to his government or
enemy military forces, because the authority of the legitimate power to sovereign does not demand from him a positive action, but only passive
govern has passed into the hands of the occupant (Article 43, Hague attitude or forbearance from adhering to the enemy by giving the latter aid
Regulations), the political laws which prescribe the reciprocal rights, duties and comfort, the occupant has no power, as a corollary of the preceding
and obligation of government and citizens, are suspended or in abeyance consideration, to repeal or suspend the operation of the law of treason,
during military occupation (Co Kim cham vs. Valdez Tan Keh and essential for the preservation of the allegiance owed by the inhabitants to
dizon, supra), for the only reason that as they exclusively bear relation to their legitimate government, or compel them to adhere and give aid and
the ousted legitimate government, they are inoperative or not applicable to comfort to him; because it is evident that such action is not demanded by
the government established by the occupant; that the crimes against the exigencies of the military service or not necessary for the control of the
national security, such as treason and espionage; inciting to war, inhabitants and the safety and protection of his army, and because it is
correspondence with hostile country, flight to enemy's country, as well as tantamount to practically transfer temporarily to the occupant their
those against public order, such as rebellion, sedition, and disloyalty, illegal allegiance to the titular government or sovereign; and that, therefore, if an
possession of firearms, which are of political complexion because they bear inhabitant of the occupied territory were compelled illegally by the military
relation to, and are penalized by our Revised Penal Code as crimes against occupant, through force, threat or intimidation, to give him aid and comfort,
the legitimate government, are also suspended or become inapplicable as the former may lawfully resist and die if necessary as a hero, or submit
against the occupant, because they can not be committed against the latter thereto without becoming a traitor;
(Peralta vs. Director of Prisons, supra); and that, while the offenses against
public order to be preserved by the legitimate government were inapplicable Considering that adoption of the petitioner's theory of suspended allegiance
as offenses against the invader for the reason above stated, unless adopted would lead to disastrous consequences for small and weak nations or states,
by him, were also inoperative as against the ousted government for the latter and would be repugnant to the laws of humanity and requirements of public
was not responsible for the preservation of the public order in the occupied conscience, for it would allow invaders to legally recruit or enlist the
territory, yet article 114 of the said Revised Penal Code, was applicable to Quisling inhabitants of the occupied territory to fight against their own
treason committed against the national security of the legitimate government without the latter incurring the risk of being prosecuted for
government, because the inhabitants of the occupied territory were still treason, and even compel those who are not aid them in their military
bound by their allegiance to the latter during the enemy occupation; operation against the resisting enemy forces in order to completely subdue
and conquer the whole nation, and thus deprive them all of their own
Considering that, although the military occupant is enjoined to respect or independence or sovereignty — such theory would sanction the action of
continue in force, unless absolutely prevented by the circumstances, those invaders in forcing the people of a free and sovereign country to be a party
laws that enforce public order and regulate the social and commercial life of in the nefarious task of depriving themselves of their own freedom and
the country, he has, nevertheless, all the powers of de facto government and independence and repressing the exercise by them of their own sovereignty;
may, at his pleasure, either change the existing laws or make new ones when in other words, to commit a political suicide;
the exigencies of the military service demand such action, that is, when it is
necessary for the occupier to do so for the control of the country and the (2) Considering that the crime of treason against the government of the
protection of his army, subject to the restrictions or limitations imposed by Philippines defined and penalized in article 114 of the Penal Code, though
the Hague Regulations, the usages established by civilized nations, the laws originally intended to be a crime against said government as then organized
of humanity and the requirements of public conscience (Peralta vs.Director by authority of the sovereign people of the United States, exercised through
of Prisons, supra; 1940 United States Rules of Land Warfare 76, 77); and their authorized representative, the Congress and the President of the
that, consequently, all acts of the military occupant dictated within these United States, was made, upon the establishment of the Commonwealth
limitations are obligatory upon the inhabitants of the territory, who are Government in 1935, a crime against the Government of the Philippines
bound to obey them, and the laws of the legitimate government which have established by authority of the people of the Philippines, in whom the
not been adopted, as well and those which, though continued in force, are sovereignty resides according to section 1, Article II, of the Constitution of
the Philippines, by virtue of the provision of section 2, Article XVI thereof,
which provides that "All laws of the Philippine Islands . . . shall remain of the sovereignty of the United States and the proclamation of Philippine
operative, unless inconsistent with this Constitution . . . and all references independence, the Commonwealth of the Philippines shall thenceforth be
in such laws to the Government or officials of the Philippine Islands, shall known as the Republic of the Philippines";
be construed, in so far as applicable, to refer to the Government and
corresponding officials under this constitution; This Court resolves, without prejudice to write later on a more extended
opinion, to deny the petitioner's petition, as it is hereby denied, for the
Considering that the Commonwealth of the Philippines was a sovereign reasons above set forth and for others to be stated in the said opinion,
government, though not absolute but subject to certain limitations imposed without prejudice to concurring opinion therein, if any. Messrs. Justices
in the Independence Act and incorporated as Ordinance appended to our Paras and Hontiveros dissent in a separate opinion. Mr. justice Perfecto
Constitution, was recognized not only by the Legislative Department or concurs in a separate opinion.
Congress of the United States in approving the Independence Law above
quoted and the Constitution of the Philippines, which contains the
declaration that "Sovereignty resides in the people and all government
authority emanates from them" (section 1, Article II), but also by the
Executive Department of the United States; that the late President Separate Opinions
Roosevelt in one of his messages to Congress said, among others, "As I
stated on August 12, 1943, the United States in practice regards the PERFECTO, J., concurring:
Philippines as having now the status as a government of other independent
nations — in fact all the attributes of complete and respected nationhood"
Treason is a war crime. It is not an all-time offense. It cannot be committed
(Congressional Record, Vol. 29, part 6, page 8173); and that it is a principle
in peace time. While there is peace, there are no traitors. Treason may be
upheld by the Supreme Court of the United States in many cases, among
incubated when peace reigns. Treasonable acts may actually be perpetrated
them in the case of Jones vs. United States (137 U.S., 202; 34 Law. ed., 691,
during peace, but there are no traitors until war has started.
696) that the question of sovereignty is "a purely political question, the
determination of which by the legislative and executive departments of any
government conclusively binds the judges, as well as all other officers, As treason is basically a war crime, it is punished by the state as a measure
citizens and subjects of the country. of self-defense and self-preservation. The law of treason is an emergency
measure. It remains dormant until the emergency arises. But as soon as war
starts, it is relentlessly put into effect. Any lukewarm attitude in its
Considering that section I (1) of the Ordinance appended to the Constitution
enforcement will only be consistent with national harakiri. All war efforts
which provides that pending the final and complete withdrawal of the
would be of no avail if they should be allowed to be sabotaged by fifth
sovereignty of the United States "All citizens of the Philippines shall owe
columnists, by citizens who have sold their country out to the enemy, or any
allegiance to the United States", was one of the few limitations of the
other kind of traitors, and this would certainly be the case if he law cannot
sovereignty of the Filipino people retained by the United States, but these
be enforced under the theory of suspension.
limitations do not away or are not inconsistent with said sovereignty, in the
same way that the people of each State of the Union preserves its own
sovereignty although limited by that of the United States conferred upon the Petitioner's thesis that allegiance to our government was suspended during
latter by the States; that just as to reason may be committed against the enemy occupation is advanced in support of the proposition that, since
Federal as well as against the State Government, in the same way treason allegiance is identical with obedience to law, during the enemy occupation,
may have been committed during the Japanese occupation against the the laws of the Commonwealth were suspended. Article 114 of the Revised
sovereignty of the United States as well as against the sovereignty of the Penal Code, the law punishing treason, under the theory, was one of the laws
Philippine Commonwealth; and that the change of our form of government obedience to which was also suspended.
from Commonwealth to Republic does not affect the prosecution of those
charged with the crime of treason committed during the Commonwealth, Allegiance has been defined as the obligation for fidelity and obedience
because it is an offense against the same government and the same which the individual owes to his government or his sovereign in return for
sovereign people, for Article XVIII of our Constitution provides that "The the protection which he receives.
government established by this constitution shall be known as the
Commonwealth of the Philippines. Upon the final and complete withdrawal
"Allegiance", as the return is generally used, means fealty or fidelity to the citizens owing allegiance to the government of a state, for they receive
government of which the person is either a citizen or subject. Murray vs. The protection from the government and are subject to its laws. They are born
Charming Betsy, 6 U.S. (2 Cranch), 64, 120; 2 Law. ed., 208. in allegiance to the government of the state. Jackson vs. Goodell, 20 Johns.,
188, 911. (3 Words and Phrases, Permanent ed., 226-227.)
"Allegiance" was said by Mr. Justice Story to be "nothing more than the tie
or duty of obedience of a subject to the sovereign, under whose protection Allegiance. — Fealty or fidelity to the government of which the person is
he is." United States vs. Wong Kim Ark, 18 S. Ct., 461; 169 U.S., 649; 42 Law. either a citizen or subject; the duty which is due from every citizen to the
ed., 890. state; a political duty, binding on him who enjoys the protection of the
commonwealth, to render service and fealty to the federal government; the
Allegiance is that duty which is due from every citizen to the state, a political obligation of fidelity and obedience which the individual owes to the
duty binding on him who enjoys the protection of the Commonwealth, to government or to the sovereign under which he lives in return for the
render service and fealty to the federal government. It is that duty which is protection he receives; that duty is reciprocal to the right of protection he
reciprocal to the right of protection, arising from the political relations receives; that duty which is reciprocal to the right of protection, arising from
between the government and the citizen. Wallace vs. Harmstad, 44 Pa. (8 the political relations between the government and the citizen.
Wright), 492, 501.
Classification. — Allegiance is of four kinds, namely: (1) Natural allegiance
By "allegiance" is meant the obligation to fidelity and obedience which the — that which arises by nature and birth; (2) acquired allegiance — that
individual owes to the government under which he lives, or to his sovereign, arising through some circumstance or act other than birth, namely, by
in return for the protection which he receives. It may be an absolute and denization or naturalization; (3) local allegiance-- that arising from
permanent obligation, or it may be a qualified and temporary one. A citizen residence simply within the country, for however short a time; and (4) legal
or subject owes an absolute and permanent allegiance to his government or allegiance — that arising from oath, taken usually at the town or leet, for, by
sovereign, or at least until, by some open and distinct act, he renounces it the common law, the oath of allegiance might be tendered to every one upon
and becomes a citizen or subject of another government or sovereign, and attaining the age of twelve years. (3 C.J.S., p.885.)
an alien while domiciled in a country owes it a temporary allegiance, which
is continuous during his residence. Carlisle vs.United States, 83 U.S. (16 Allegiance. — the obligation of fidelity and obedience which the individual
Wall.), 147, 154; 21 Law ed., 426. owes to the government under which he lives, or to his sovereign in return
for the protection he receives. 15 R.C.L., 140. (Ballentine Law Dictionary, p.
"Allegiance," as defined by Blackstone, "is the tie or ligament which binds 68.).
the subject to the King, in return for that protection which the King affords
the subject. Allegiance, both expressed and implied, is of two sorts, the one "Allegiance," as its etymology indicates, is the name for the tie which binds
natural, the other local, the former being perpetual, the latter temporary. the citizen to his state — the obligation of obedience and support which he
Natural allegiance is such as is due from all men born within the King's owes to it. The state is the political person to whom this liege fealty is due.
dominions immediately upon their birth, for immediately upon their birth Its substance is the aggregate of persons owing this allegiance. The
they are under the King's protection. Natural allegiance is perpetual, and for machinery through which it operates is its government. The persons who
this reason, evidently founded on the nature of government. Allegiance is a operate this machinery constitute its magistracy. The rules of conduct which
debt due from the subject upon an implied contract with the prince that so the state utters or enforces are its law, and manifest its will. This will, viewed
long as the one affords protection the other will demean himself faithfully. as legally supreme, is its sovereignty. (W.W. Willoughby, Citizenship and
Natural-born subjects have a great variety of rights which they acquire by Allegiance in Constitutional and International Law, 1 American Journal of
being born within the King's liegance, which can never be forfeited but by International Law, p. 915.).
their own misbehaviour; but the rights of aliens are much more
circumscribed, being acquired only by residence, and lost whenever they The obligations flowing from the relation of a state and its nationals are
remove. If an alien could acquire a permanent property in lands, he must reciprocal in character. This principle had been aptly stated by the Supreme
owe an allegiance equally permanent to the King, which would probably be Court of the United States in its opinion in the case of Luria vs. United
inconsistent with that which he owes his natural liege lord; besides, that States:
thereby the nation might, in time, be subject to foreign influence and feel
many other inconveniences." Indians within the state are not aliens, but
Citizenship is membership in a political society and implies a duty of government stopped to function in the country. But the idea cannot have
allegiance on the part of the member and a duty protection on the part of any place under our Constitution. If sovereignty is an essential attribute of
the society. These are reciprocal obligations, one being a compensation for our people, according to the basic philosophy of Philippine democracy, it
the other. (3 Hackworth, Digest of International Law, 1942 ed., p.6.) could not have been suspended during the enemy occupation. Sovereignty
is the very life of our people, and there is no such thing as "suspended life."
Allegiance. — The tie which binds the citizen to the government, in return There is no possible middle situation between life and death. Sovereignty is
for the protection which the government affords him. The duty which the the very essence of the personality and existence of our people. Can anyone
subject owes to the sovereign, correlative with the protection received. imagine the possibility of "suspended personality" or "suspended existence"
of a people? In no time during enemy occupation have the Filipino people
It is a comparatively modern corruption of ligeance (ligeantia), which is ceased to be what they are.
derived from liege (ligius), meaning absolute or unqualified. It signified
originally liege fealty, i. e., absolute and qualified fealty. 18 L. Q. Rev., 47. The idea of suspended sovereignty or suspended allegiance is incompatible
with our Constitution.
xxx xxx xxx
There is similarity in characteristics between allegiance to the sovereign and
Allegiance may be an absolute and permanent obligation, or it may be a a wife's loyalty to her husband. Because some external and insurmountable
qualified and temporary one; the citizen or subject owes the former to his force precludes the husband from exercising his marital powers, functions,
government or sovereign, until by some act he distinctly renounces it, whilst and duties and the wife is thereby deprived of the benefits of his protection,
the alien domiciled in the country owes a temporary and local allegiance may the wife invoke the theory of suspended loyalty and may she freely
continuing during such residence. (Carlisle vs. United States, 16 Wall. share her bed with the assailant of their home? After giving aid and comfort
[U.S.], 154; 21 Law. ed., 426. (1 Bouvier's Law Dictionary, p. 179.). to the assailant and allowing him to enjoy her charms during the former's
stay in the invaded home, may the wife allege as defense for her adultery the
The above quotations express ideas that do not fit exactly into the Philippine principle of suspended conjugal fidelity?
pattern in view of the revolutionary insertion in our Constitution of the
fundamental principle that "sovereignty resides in the people and all Petitioner's thesis on change of sovereignty at the advent of independence
government authority emanates from them." (Section 1, Article II.) The on July 4, 1946, is unacceptable. We have already decided in Brodett vs. De
authorities above quoted, judges and juridical publicists define allegiance la Rosa and Vda. de Escaler (p. 752, ante) that the Constitution of the
with the idea that sovereignty resides somewhere else, on symbols or Republic is the same as that of the Commonwealth. The advent of
subjects other than the people themselves. Although it is possible that they independence had the effect of changing the name of our Government and
had already discovered that the people and only the people are the true the withdrawal by the United States of her power to exercise functions of
sovereign, their minds were not yet free from the shackles of the tradition sovereignty in the Philippines. Such facts did not change the sovereignty of
that the powers of sovereignty have been exercised by princes and the Filipino people. That sovereignty, following our constitutional
monarchs, by sultans and emperors, by absolute and tyrannical rules whose philosophy, has existed ever since our people began to exist. It has been
ideology was best expressed in the famous words of one of the kings of recognized by the United States of America, at least since 1935, when
France: "L'etat c'est moi," or such other persons or group of persons posing President Roosevelt approved our Constitution. By such act, President
as the government, as an entity different and in opposition to the people Roosevelt, as spokesman of the American people, accepted and recognized
themselves. Although democracy has been known ever since old Greece, and the principle that sovereignty resides in the people that is, that Philippine
modern democracies in the people, nowhere is such principle more sovereignty resides in the Filipino people.
imperative than in the pronouncement embodied in the fundamental law of
our people. The same sovereignty had been internationally recognized long before the
proclamation of independence on July 4, 1946. Since the early part of the
To those who think that sovereignty is an attribute of government, and not Pacific war, President Quezon had been sitting as representative of a
of the people, there may be some plausibility in the proposition that sovereign people in the Allied War Council, and in June, 1945, the same
sovereignty was suspended during the enemy occupation, with the Filipino people took part — outstanding and brilliant, it may be added — in
consequence that allegiance must also have been suspended, because our the drafting and adoption of the charter of the United Nations, the
unmistakable forerunner of the future democratic federal constitution of the
world government envisioned by all those who adhere to the principle of be dissolved if it is not united by the cohesive power of the citizen's
unity of all mankind, the early realization of which is anxiously desired by allegiance. Of course, the citizens are entitled to the protection of their
all who want to be spared the sufferings, misery and disaster of another war. government, but whether or not that government fulfills that duty, is
immaterial to the need of maintaning the loyalty and fidelity of allegiance,
Under our Constitution, the power to suspend laws is of legislative nature in the same way that the physical forces of attraction should be kept
and is lodged in Congress. Sometimes it is delegated to the Chief Executive, unhampered if the life of an individual should continue, irrespective of the
such as the power granted by the Election Code to the President to suspend ability or inability of his mind to choose the most effective measures of
the election in certain districts and areas for strong reasons, such as when personal protection.
there is rebellion, or a public calamity, but it has never been exercised by
tribunals. The Supreme Court has the power to declare null and void all laws After declaring that all legislative, executive, and judicial processes had
violative of the Constitution, but it has no power, authority, or jurisdiction during and under the Japanese regime, whether executed by the Japanese
to suspend or declare suspended any valid law, such as the one on treason themselves or by Filipino officers of the puppet government they had set up,
which petitioner wants to be included among the laws of the Commonwealth are null and void, as we have done in our opinions in Co Kim Cham vs.
which, by his theory of suspended allegiance and suspended sovereignty, he Valdez Tan Keh and Dizon (75 Phil., 113), in Peralta vs. Director of
claims have been suspended during the Japanese occupation. Prison (75, Phil., 285), and in several other cases where the same question
has been mentioned, we cannot consistently accept petitioner's theory.
Suppose President Quezon and his government, instead of going from
Corregidor to Australia, and later to Washington, had fled to the mountains If all laws or legislative acts of the enemy during the occupation were null
of Luzon, and a group of Filipino renegades should have killed them to serve and void, and as we cannot imagine the existence of organized society, such
the interests of the Japanese imperial forces. By petitioner's theory, those as the one constituted by the Filipino people, without laws of the
renegades cannot be prosecuted for treason or for rebellion or sedition, as Commonwealth were the ones in effect during the occupation and the only
the laws punishing them were suspended. Such absurd result betrays the ones that could claim obedience from our citizens.
untenability of the theory.
Petitioner would want us to accept the thesis that during the occupation we
"The defense of the State is a prime duty of Government, and in the owed allegiance to the enemy. To give way to that paradoxical and
fulfillment of that duty all citizens may be required by law to render disconcerting allegiance, it is suggested that we accept that our allegiance to
personal, military or civil service." Thus, section 2 of Article II of the our legitimate government was suspended. Petitioner's proposition has to
Constitution provides: That duty of defense becomes more imperative in fall by its own weight, because of its glaring absurdities. Allegiance, like its
time of war and when the country is invaded by an aggressor nation. How synonyms, loyalty and fidelity, is based on feelings of attraction, love,
can it be fulfilled if the allegiance of the citizens to the sovereign people is sympathy, admiration, respect, veneration, gratitude, amity,
suspended during enemy occupation? The framers of the Constitution understanding, friendliness. These are the feelings or some of the feelings
surely did not entertain even for the moment the absurdity that when the that bind us to our own people, and are the natural roots of the duty of
allegiance of the citizens to the sovereign people is more needed in the allegiance we owe them. The enemy only provokes repelling and repulsive
defense of the survival of the state, the same should be suspended, and that feelings — hate, anger, vexation, chagrin, mortification, resentment,
upon such suspension those who may be required to render personal, contempt, spitefulness. The natural incompatibility of political, social and
military or civil service may claim exemption from the indispensable duty ethical ideologies between our people and the Japanese, making impossible
of serving their country in distress. the existence of any feeling of attraction between them, aside from the initial
fact that the Japanese invaded our country as our enemy, was aggravated by
Petitioner advances the theory that protection in the consideration of the morbid complexities of haughtiness, braggadocio and beastly brutality
allegiance. He argues that the Commonwealth Government having been of the Nippon soldiers and officers in their dealings with even the most
incapacitated during enemy occupation to protect the citizens, the latter inoffensive of our citizens.
were relieved of their allegiance to said government. The proposition is
untenable. Allegiance to the sovereign is an indispensable bond for the Giving bread to our enemy, and, after slapping one side of our face, offer
existence of society. If that bond is dissolved, society has to disintegrate. him the other to be further slapped, may appear to be divinely charitable,
Whether or not the existence of the latter is the result of the social compact but to make them a reality, it is necessary to change human nature. Political
mentioned by Roseau, there can be no question that organized society would actions, legal rules and judicial decisions deal with human relations, taking
man as he is, not as he should be. To love the enemy is not natural. As long value the premise that the theories, urged by petitioner, of suspended
as human pyschology remains as it is, the enemy shall always be hated. Is it allegiance and suspended sovereignty are based on generally accepted
possible to conceive an allegiance based on hatred? principles of international law. As the latter forms part of our laws by virtue
of the provisions of section 3 of Article II of the Constitution, it seems that
The Japanese, having waged against us an illegal war condemned by there is no alternative but to accept the theory. But the theory has the effect
prevailing principles of international law, could not have established in our of suspending the laws, especially those political in nature. There is no law
country any government that can be legally recognized as de facto. They more political in nature than the Constitution of the Philippines. The result
came as bandits and ruffians, and it is inconceivable that banditry and is an inverted reproduction of the Greek myth of Saturn devouring his own
ruffianism can claim any duty of allegiance — even a temporary one — from children. Here, under petitioner's theory, the offspring devours its parent.
a decent people.
Can we conceive of an instance in which the Constitution was suspended
One of the implications of petitioner's theory, as intimated somewhere, is even for a moment?
that the citizens, in case of invasion, are free to do anything not forbidden
by the Hague Conventions. Anybody will notice immediately that the result There is conclusive evidence that the legislature, as policy-determining
will be the doom of small nations and peoples, by whetting the covetousness agency of government, even since the Pacific war started on December 7,
of strong powers prone on imperialistic practices. In the imminence of 1941, intimated that it would not accept the idea that our laws should be
invasion, weak-hearted soldiers of the smaller nations will readily throw suspended during enemy occupation. It must be remembered that in the
away their arms to rally behind the paladium of the invaders. middle of December, 1941, when Manila and other parts of the archipelago
were under constant bombing by Japanese aircraft and enemy forces had
Two of the three great departments of our Government have already already set foot somewhere in the Philippines, the Second National
rejected petitioner's theory since September 25, 1945, the day when Assembly passed Commonwealth Act No. 671, which came into effect on
Commonwealth Act No. 682 took effect. By said act, creating the People's December 16, 1941. When we approved said act, we started from the premise
Court to try and decide all cases of crime against national security that all our laws shall continue in effect during the emergency, and in said
"committed between December 8, 1941 and September 2, 1945," (section 2), act we even went to the extent of authorizing the President "to continue in
the legislative and executive departments have jointly declared that during force laws and appropriations which would lapse or otherwise become
the period above mentioned, including the time of Japanese occupation, all inoperative," (section 2, [d]), and also to "promulgate such rules and
laws punishing crimes against national security, including article 114 of the regulations as he may deem necessary to carry out the national policy,"
Revised Penal Code, punishing treason, had remained in full effect and (section 2), that "the existence of war between the United States and other
should be enforced. countries of Europe and Asia, which involves the Philippines, makes it
necessary to invest the President with extraordinary powers in order to meet
That no one raised a voice in protest against the enactment of said act and the resulting emergency." (Section 1.) To give emphasis to the intimation,
that no one, at the time the act was being considered by the Senate and the we provided that the rules and regulations provided "shall be in force and
House of Representatives, ever dared to expose the uselessness of creating effect until the Congress of the Philippines shall otherwise provide,"
a People's Court to try crime which, as claimed by petitioner, could not have foreseeing the possibility that Congress may not meet as scheduled as a
been committed as the laws punishing them have been suspended, is a result of the emergency, including invasion and occupation by the enemy.
historical fact of which the Supreme Court may take judicial notice. This fact Everybody was then convinced that we did not have available the necessary
shows universal and unanimous agreement of our people that the laws of means of repelling effectivity the enemy invasion.
the Commonwealth were not suspended and that the theory of suspended
allegiance is just an afterthought provoked by a desperate effort to help Maybe it is not out of place to consider that the acceptance of petitioner's
quash the pending treason cases at any cost. theory of suspended allegiance will cause a great injustice to those who,
although innocent, are now under indictment for treason and other crimes
Among the arguments adduced in favor of petitioner's theory is that it is involving disloyalty to their country, because their cases will be dismissed
based on generally accepted principles of international law, although this without the opportunity for them to revindicate themselves. Having been
argument becomes futile by petitioner's admission that the theory is acquitted upon a mere legal technicality which appears to us to be wrong,
advantageous to strong powers but harmful to small and weak nations, thus history will indiscriminality classify them with the other accused who were
hinting that the latter cannot accept it by heart. Suppose we accept at face really traitors to their country. Our conscience revolts against the idea of
allowing the innocent ones to go down in the memory of future generations solemnly subscribe to the now famous Briand-Kellogg Pact in the year 1928.
with the infamous stigma of having betrayed their own people. They should As said by Justice Jackson of the United States Supreme Court, as chief
not be deprived of the opportunity to show through the due process of law counsel for the United States in the prosecution of "Axis war criminals," in
that they are free from all blame and that, if they were really patriots, they his report to President Truman of June 7, 1945:
acted as such during the critical period of test.
International law is not capable of development by legislation, for there is
no continuously sitting international legislature. Innovations and revisions
in international law are brought about by the action of governments
designed to meet a change circumstances. It grows, as did the common law,
HILADO, J., concurring: through decisions reached from time to time in adopting settled principles
to new situations.
I concur in the result reached in the majority opinion to the effect that
during the so-called Japanese occupation of the Philippines (which was xxx xxx xxx
nothing more than the occupation of Manila and certain other specific
regions of the Islands which constituted the minor area of the Archipelago) After the shock to civilization of the war of 1914-1918, however, a marked
the allegiance of the citizens of this country to their legitimate government reversion to the earlier and sounder doctrines of international law took
and to the United States was not suspended, as well as the ruling that during place. By the time the Nazis came to power it was thoroughly established
the same period there was no change of sovereignty here; but my reasons that launching an aggressive war or the institution of war by treachery was
are different and I proceed to set them forth: illegal and that the defense of legitimate warfare was no longer available to
those who engaged in such an enterprise. It is high time that we act on the
I. SUSPENDED ALLEGIANCE. juridical principle that aggressive war-making is illegal and criminal.

(a) Before the horror and atrocities of World War I, which were multiplied The re-establishment of the principle of justifiable war is traceable in many
more than a hundred-fold in World War II, the nations had evolved certain steps. One of the most significant is the Briand-Kellogg Pact of 1928 by
rules and principles which came to be known as International Law, which Germany, Italy, and Japan, in common with the United States and
governing their conduct with each other and toward their respective citizens practically all the nations of the world, renounced war as an instrument of
and inhabitants, in the armed forces or civilian life, in time of peace or in national policy, bound themselves to seek the settlement of disputes only by
time of war. During the ages which preceded that first world conflict the pacific means, and condemned recourse to war for the solution of
civilized governments had no realization of the potential excesses of which international controversies.
"men's inhumanity to man" could be capable. Up to that time war was, at
least under certain conditions, considered as sufficiently justified, and the Unless this Pact altered the legal status of wars of aggression, it has no
nations had not on that account, proscribed nor renounced it as an meaning at all and comes close to being an act of deception. In 1932 Mr.
instrument of national policy, or as a means of settling international Henry L. Stimson, as United States Secretary of State, gave voice to the
disputes. It is not for us now to dwell upon the reasons accounting for this American concept of its effect. He said, "war between nations was
historical fact. Suffice it to recognize its existence in history. renounced by the signatories of the Briand-Kellogg Treaty. This means that
it has become illegal throughout practically the entire world. It is no longer
But when in World War I civilized humanity saw that war could be, as it to be the source and subject of rights. It is no longer to be the principle
actually was, employed for entirely different reasons and from entirely around which the duties, the conduct, and the rights of nations revolve. It
different motives, compared to previous wars, and the instruments and is an illegal thing. . . . By that very act we have made obsolete many legal
methods of warfare had been so materially changed as not only to involve precedents and have given the legal profession the task of re-examining
the contending armed forces on well defined battlefields or areas, on land, many of its Codes and treaties.
in the sea, and in the air, but to spread death and destruction to the innocent
civilian populations and to their properties, not only in the countries This Pact constitutes only one reversal of the viewpoint that all war is legal
engaged in the conflict but also in neutral ones, no less than 61 civilized and has brought international law into harmony with the common sense of
nations and governments, among them Japan, had to formulate and mankind — that unjustifiable war is a crime.
Without attempting an exhaustive catalogue, we may mention the Geneva It is not disputed that the war started by Japan in the Pacific, first, against
Protocol of 1924 for the Pacific Settlement of International Disputes, signed the United States, and later, in rapid succession, against other allied nations,
by the representatives of forty-eight governments, which declared that "a was a war of aggression and utterly unjustifiable. More aggressive still, and
war of aggression constitutes .. an International crime. . . . more unjustifiable, as admitted on all sides, was its attack against the
Philippines and its consequent invasion and occupation of certain areas
The Eight Assembly of the League of Nations in 1927, on unanimous thereof.
resolution of the representatives of forty-eight member-nations, including
Germany, declared that a war of aggression constitutes an international Some of the rules and principles of international law which have been cited
crime. At the Sixth Pan-American Conference of 1928, the twenty-one for petitioner herein in support of his theory of suspended allegiance, have
American Republics unanimously adopted a resolution stating that "war of been evolved and accepted during those periods of the history of nations
aggression constitutes an international crime against the human species." when all war was considered legal, as stated by Justice Jackson, and the
others have reference to military occupation in the course of really
xxx xxx xxx justifiable war.

We therefore propose to change that a war of aggression is a crime, and Japan in subscribing the Briand-Kellogg Pact thirteen years before she
that modern international law has abolished the defense that those who started the aggressive war which threw the entire Pacific area into a seething
incite or wage it are engaged in legitimate business. Thus may the forces of cauldron from the last month of 1941 of the first week of September, 1945,
the law be mobilized on the side of peace. ("U.S.A. — An American Review," expressly agreed to outlaw, proscribe and renounce war as an instrument of
published by the United States Office of War Information, Vol. 2, No. 10; national policy, and bound herself to seek the settlement of her disputes
emphasis supplied.). with other nations only by pacific means. Thus she expressly gave her
consent to that modification of the then existing rules and principles of
When Justice Jackson speaks of "a marked reversion to the earlier and international law governing the matter. With the modification, all the
sounder doctrines of international law" and "the re-establishment of the signatories to the pact necessarily accepted and bound themselves to abide
principle of justifiable war," he has in mind no other than "the doctrine by all its implications, among them the outlawing, prescription and
taught by Grotius, the father of international law, that there is a distinction renunciation of military occupation of another nation's territory in the
between the just and the unjust war — the war of defense and the war of course of a war thus outlawed, proscribed and renounced. This is only one
aggression" to which he alludes in an earlier paragraph of the same report. way of saving that the rules and principles of international law therefore
existing on the subject of military occupation were automatically abrogated
In the paragraph of said report immediately preceding the one last above and rendered ineffective in all future cases of war coming under the ban and
mentioned Justice Jackson says that "international law as taught in the 19th condemnation of the pact.
and the early part of the 20th century generally declared that war-making
was not illegal and no crime at law." But, as he says in one of the paragraphs If an unjustifiable war is a crime; if a war of aggression constitutes an
hereinabove quoted from that report, the Briand-Kellogg Pact constitutes a international crime; if such a war is an international crime against the
reversal of the view-point that all war is legal and has brought international human species: a nation which occupies a foreign territory in the course of
law into harmony with the common sense of mankind — that unjustifiable such a war cannot possibly, under any principle of natural or positive law,
war is a crime. Then he mentions as other reversals of the same viewpoint, acquire or posses any legitimate power or right growing out or incident to
the Geneva Protocol of 1924 for the Pacific Settlement of International such occupation. Concretely, Japan in criminally invading the Philippines
Disputes, declaring that a war of aggression constitutes an international and occupying certain portions of its territory during the Pacific war, could
crime; the 8th assembly of the League of Nations in 1927, declaring that a not have nor exercise, in the legal sense — and only this sense should we
war of aggression constitutes an international crime; and the 6th Pan- speak here — with respect to this country and its citizens, any more than
American conference of 1928, which unanimously adopted a resolution could a burglar breaking through a man's house pretends to have or to
stating that war of aggression constitutes an international crime against the exercise any legal power or right within that house with respect either to the
human species: which enumeration, he says, is not an attempt at an person of the owner or to his property. To recognize in the first instance any
exhaustive catalogue. legal power or right on the part of the invader, and in the second any legal
power or right on the part of the burglar, the same as in case of a military
occupant in the course of a justifiable war, would be nothing short of
legalizing the crime itself. It would be the most monstrous and The Hague Regulations declare that the occupant is forbidden to compel the
unpardonable contradiction to prosecute, condemn and hang the inhabitants to swear allegiance to the hostile power. . . . (III Hyde,
appropriately called war criminals of Germany, Italy, and Japan, and at the International Law, 2d revised ed., pp. 1898-1899.)
same time recognize any lawfulness in their occupation invaded. And let it
not be forgotten that the Philippines is a member of the United Nations who . . . Nor may he (occupant) compel them (inhabitants) to take an oath of
have instituted and conducted the so-called war crimes trials. Neither allegiance. Since the authority of the occupant is not sovereignty, the
should we lose sight of the further fact that this government has a inhabitants owe no temporary allegiance to him. . . . (II Oppenheim,
representative in the international commission currently trying the International Law, pp. 341-344.)
Japanese war criminals in Tokyo. These facts leave no room for doubt that
this government is in entire accord with the other United Nations in The occupant's lack of the authority to exact an oath of allegiance from the
considering the Pacific war started by Japan as a crime. Not only this, but inhabitants of the occupied territory is but a corollary of the continuance of
this country had six years before the outbreak of the Pacific war already their allegiance to their own lawful sovereign. This allegiance does not
renounced war as an instrument of national policy (Constitution, Article II, consist merely in obedience to the laws of the lawful sovereign, but more
section 2), thus in consequence adopting the doctrine of the Briand-Kellogg essentially consists in loyalty or fealty to him. In the same volume and pages
Pact. of Oppenheim's work above cited, after the passage to the effect that the
inhabitants of the occupied territory owe no temporary allegiance to the
Consequently, it is submitted that it would be absolutely wrong and occupant it is said that "On the other hand, he may compel them to take an
improper for this Court to apply to the occupation by Japan of certain areas oath — sometimes called an 'oath of neutrality' — . . . willingly to submit to
of the Philippines during that war the rules and principles of international his 'legitimate commands.' Since, naturally, such "legitimate commands"
law which might be applicable to a military occupation occurring in the include the occupant's laws, it follows that said occupant, where the rule is
course of a justifiable war. How can this Court recognize any lawfulness or applicable, has the right to compel the inhabitants to take an oath of
validity in that occupation when our own government has sent a obedience to his laws; and since according to the same rule, he cannot exact
representative to said international commission in Tokyo trying the from the inhabitants an oath of obedience to his laws; and since, according
Japanese "war criminals" precisely for the "crimes against humanity and to the same rule, he cannot exact from the inhabitants an oath of allegiance,
peace" committed by them during World War II of which said occupation it follows that obedience to his laws, which he can exact from them, does not
was but part and parcel? In such circumstances how could such occupation constitute allegiance.
produce no less an effect than the suspension of the allegiance of our people
to their country and government? (c) The theory of suspended allegiance is unpatriotic to the last degree. To
say that when the one's country is unable to afford him in its protection, he
(b) But even in the hypothesis — and not more than a mere hypothesis — ceases to be bound to it by the sacred ties of allegiance, is to advocate the
that when Japan occupied the City of Manila and certain other areas of the doctrine that precisely when his country is in such distress, and therefore
Philippines she was engaged in a justifiable war, still the theory of most needs his loyalty, he is absolved from the loyalty. Love of country
suspended allegiance would not hold good. The continuance of the should be something permanent and lasting, ending only in death; loyalty
allegiance owed to a notion by its citizens is one of those high privileges of should be its worth offspring. The outward manifestation of one or the other
citizenship which the law of nations denies to the occupant the power to may for a time be prevented or thwarted by the irresistible action of the
interfere with. occupant; but this should not in the least extinguish nor obliterate the
invisible feelings, and promptings of the spirit. And beyond the unavoidable
. . . His (of occupant) rights are not, however, commensurate with his power. consequences of the enemy's irresistible pressure, those invisible feelings
He is thus forbidden to take certain measures which he may be able to apply, and promptings of the spirit of the people should never allow them to act, to
and that irrespective of their efficacy. The restrictions imposed upon him speak, nor even to think a whit contrary to their love and loyalty to the
are in theory designed to protect the individual in the enjoyment of some Fatherland. For them, indicted, to face their country and say to it that,
highly important privileges. These concern his allegiance to the de jure because when it was overrun and vanquished by the barbarous invader and,
sovereign, his family honor and domestic relations, religious convictions, in consequence was disabled from affording them protection, they were
personal service, and connection with or residence in the occupied territory. released from their sacred obligation of allegiance and loyalty, and could
therefore freely adhere to its enemy, giving him aid and comfort, incurring
no criminal responsibility therefor, would only tend to aggravate their "Republic of the Philippines." The most that can be said is that the
crime. sovereignty of the people became complete and absolute after independence
— that they became, politically, fully of age, to use a metaphor. But if the
II. CHANGE OF SOVEREIGNTY responsibility for a crime against a minor is not extinguished by the mere
fact of his becoming of age, why should the responsibility for the crime of
Article II, section 1, of the Constitution provides that "Sovereignty resides in treason committed against the Filipino people when they were not fully
the people and all government authority emanates from them." The Filipino politically independent be extinguished after they acquire this status? The
people are the self-same people before and after Philippine Independence, offended party continues to be the same — only his status has changed.
proclaimed on July 4, 1946. During the life of the Commonwealth
sovereignty resided in them under the Constitution; after the proclamation
of independence that sovereignty remained with them under the very same
fundamental law. Article XVIII of the said Constitution stipulates that the
government established thereby shall be known as the Commonwealth of PARAS, J., dissenting:
the Philippines; and that upon the final and complete withdrawal of the
sovereignty of the United States and the proclamation of Philippine During the long period of Japanese occupation, all the political laws of the
independence, "The Commonwealth of the Philippines shall thenceforth be Philippines were suspended. This is full harmony with the generally
known as the Republic of the Philippines." Under this provision the accepted principles of the international law adopted by our
Government of the Philippines immediately prior to independence was Constitution(Article II, section 3) as a part of the law of the Nation.
essentially to be the identical government thereafter — only the name of that Accordingly, we have on more than one occasion already stated that "laws
government was to be changed. of a political nature or affecting political relations, . . . are considered as
suspended or in abeyance during the military occupation" (Co Kim
Both before and after the adoption of the Philippine Constitution the people Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 113, 124), and that the rule
of the Philippines were and are always the plaintiff in all criminal "that laws of political nature or affecting political relations are considered
prosecutions, the case being entitled: "The People of the Philippines vs. (the suspended or in abeyance during the military occupation, is intended for the
defendant or defendants)." This was already true in prosecutions under the governing of the civil inhabitants of the occupied territory." (Ruffy vs. Chief
Revised Penal Code containing the law of treason. "The Government of the of Staff, Philippine Army, 75, Phil., 875, 881.)
Philippines" spoken of in article 114 of said Code merely represents the
people of the Philippines. Said code was continued, along with the other The principle is recognized by the United States of America, which admits
laws, by Article XVI, section 2, of the Constitution which constitutional that the occupant will naturally suspends all laws of a political nature and
provision further directs that "all references in such laws to the Government all laws which affect the welfare and safety of his command, such action to
or officials of the Philippine Islands shall be construed, in so far as be made known to the inhabitants.(United States Rules of Land Welfare,
applicable, to refer to the Government and corresponding officials under 1940, Article 287.) As allegiance to the United States is an essential element
this Constitution" — of course, meaning the Commonwealth of the in the crime of treason under article 114 of the Revised Penal Code, and in
Philippines before, and the Republic of the Philippines after, independence view of its position in our political structure prior to the independence of the
(Article XVIII). Under both governments sovereignty resided and resides in Philippines, the rule as interpreted and practiced in the United States
the people (Article II, section 1). Said sovereignty was never transferred necessarily has a binding force and effect in the Philippines, to the exclusion
from that people — they are the same people who preserve it to this day. of any other construction followed elsewhere, such as may be inferred,
There has never been any change in its respect. rightly or wrongly, from the isolated cases 1 brought to our attention, which,
moreover, have entirely different factual bases.
If one committed treason againsts the People of the Philippines before July
4, 1946, he continues to be criminally liable for the crime to the same people Corresponding notice was given by the Japanese occupying army, first, in
now. And if, following the literal wording of the Revised Penal Code, as the proclamation of its Commander in chief of January 2, 1942, to the effect
continued by the Constitution, that accused owed allegiance upon the that as a "result of the Japanese Military operations, the sovereignty of the
commission of the crime to the "Government of the Philippines," in the United States of America over the Philippines has completely disappeared
textual words of the Constitution (Article XVI, section 2, and XVIII) that and the Army hereby proclaims the Military Administration under martial
was the same government which after independence became known as the law over the district occupied by the Army;" secondly, in Order No. 3 of the
said Commander in Chief of February 20, 1942, providing that "activities of occupant `is totally independent of the constitution and the laws of the
the administrative organs and judicial courts in the Philippines shall be territory, since occupation is an aim of warfare, and the maintenance and
based upon the existing statutes, orders, ordinances and customs until safety of his forces, and the purpose of war, stand in the foreground of his
further orders provided that they are not inconsistent with the present interest and must be promoted under all circumstances or conditions."
circumstances under the Japanese Military Administration;" and, thirdly, in (Peralta vs. Director of Prisons, 75 Phil., 285, 295), citing United
the explanation to Order No. 3 reminding that "all laws and regulations of States vs. Rice, 4 Wheaton, 246, and quoting Oppenheim, International
the Philippines has been suspended since Japanese occupation," and Law, Vol. II. Sixth Edition, Revised, 1944,p. 432.)
excepting the application of "laws and regulations which are not proper act
under the present situation of the Japanese Military Administration," He would be a bigot who cannot or would refuse to see the cruel result if the
especially those "provided with some political purposes." people in an occupied territory were required to obey two antagonistic and
opposite powers. To emphasize our point, we would adopt the argument, in
The suspension of the political law during enemy occupation is logical, wise a reverse order, of Mr. Justice Hilado in Peralta vs. Director of Prisons (75
and humane. The latter phase outweighs all other aspects of the principle Phil., 285, 358), contained in the following passage:
aimed more or less at promoting the necessarily selfish motives and
purposes of a military occupant. It thus consoling to note that the powers To have bound those of our people who constituted the great majority who
instrumental in the crystallization of the Hague Conventions of 1907 did not never submitted to the Japanese oppressors, by the laws, regulations,
forget to declare that they were "animated by the desire to serve . . . the processes and other acts of those two puppet governments, would not only
interest of the humanity and the over progressive needs of civilization," and have been utterly unjust and downright illegal, but would have placed them
that "in case not included in the Regulations adopted by them, the in the absurd and impossible condition of being simultaneously submitted
inhabitants and the belligerents remain under the protection and the rule of to two mutually hostile governments, with their respective constitutional
the principles of international law, as they result from the usages established and legislative enactments and institutions — on the one hand bound to
among civilized peoples, from the laws of humanity, and the dictates of the continue owing allegiance to the United States and the Commonwealth
public conscience." These saving statements come to the aid of the Government, and, on the other, to owe allegiance, if only temporary, to
inhabitants in the occupied territory in a situation wherein, even before the Japan.
belligerent occupant "takes a further step and by appropriate affirmative
action undertakes to acquire the right of sovereignty for himself, . . . the The only sensible purpose of the treason law — which is of political
occupant is likely to regard to himself as clothed with freedom to endeavor complexion and taken out of the territorial law and penalized as a new
to impregnate the people who inhabit the area concerned with his own offense committed against the belligerent occupant, incident to a state of
political ideology, and to make that endeavor successful by various forms of war and necessary for the control of the occupant (Alcantara vs. Director of
pressure exerted upon enemy officials who are permitted to retain the Prisons, 75 Phil., 494), — must be the preservation of the nation, certainly
exercise of normal governmental functions." (Hyde, International Law, Vol. not its destruction or extermination. And yet the latter is unwittingly wished
III, Second Revised Edition, 1945, p. 1879.) by those who are fond of the theory that what is suspended is merely the
exercise of sovereignty by the de jure government or the latter's authority to
The inhabitants of the occupied territory should necessarily be bound to the impose penal sanctions or that, otherwise stated, the suspension refers only
sole authority of the invading power, whose interest and requirements are to the military occupant. If this were to be the only effect, the rule would be
naturally in conflict with those of the displaced government, if it is a meaningless and superfluous optical illusion, since it is obvious that the
legitimate for the military occupant to demand and enforce from the fleeing or displaced government cannot, even if it should want, physically
inhabitants such obedience as may be necessary for the security of his assert its authority in a territory actually beyond its reach, and that the
forces, for the maintenance of law and order, and for the proper occupant, on the other hand, will not take the absurd step of prosecuting
administration of the country (United States Rules of Land Warfare, 1940, and punishing the inhabitants for adhering to and aiding it. If we were to
article 297), and to demand all kinds of services "of such a nature as not to believe the opponents of the rule in question, we have to accept the absurd
involve the population in the obligation of taking part in military operations proposition that the guerrillas can all be prosecuted with illegal possession
against their own country" (Hague Regulations, article 52);and if, as we of firearms. It should be borne in the mind that "the possession by the
have in effect said, by the surrender the inhabitants pass under a temporary belligerent occupant of the right to control, maintain or modify the laws that
allegiance to the government of the occupant and are bound by such laws, are to obtain within the occupied area is an exclusive one. The territorial
and such only, as it chooses to recognize and impose, and the belligerent sovereign driven therefrom, can not compete with it on an even plane. Thus,
if the latter attempt interference, its action is a mere manifestation of Revised Penal Code, criminal laws shall have a retroactive effect only in so
belligerent effort to weaken the enemy. It has no bearing upon the legal far as they favor the accused. Why did we refuse to enforce the Constitution,
quality of what the occupant exacts, while it retains control. Thus, if the more essential to sovereignty than article 114 of the Revised Penal Code in
absent territorial sovereign, through some quasi-legislative decree, forbids the aforesaid of Peralta vs. Director of Prisons if, as alleged by the majority,
its nationals to comply with what the occupant has ordained obedience to the suspension was good only as to the military occupant?
such command within the occupied territory would not safeguard the
individual from the prosecution by the occupant." (Hyde, International Law, The decision in the United States vs. Rice (4 Wheaton, 246), conclusively
Vol. III, Second Revised Edition, 1945, p. 1886.) supports our position. As analyzed and described in United States vs. Reiter
(27 Fed. Cas., 773), that case "was decided by the Supreme Court of the
As long as we have not outlawed the right of the belligerent occupant to United States — the court of highest human authority on that subject — and
prosecute and punish the inhabitants for "war treason" or "war crimes," as as the decision was against the United States, and in favor of the authority
an incident of the state of war and necessity for the control of the occupied of Great Britain, its enemy in the war, and was made shortly after the
territory and the protection of the army of the occupant, against which occurrence of the war out of which it grew; and while no department of this
prosecution and punishment such inhabitants cannot obviously be Government was inclined to magnify the rights of Great Britain or disparage
protected by their native sovereign, it is hard to understand how we can those of its own government, there can be no suspicion of bias in the mind
justly rule that they may at the same time be prosecuted and punished for of the court in favor of the conclusion at which it arrived, and no doubt that
an act penalized by the Revised Penal Code, but already taken out of the the law seemed to the court to warrant and demand such a decision. That
territorial law and penalized as a new offense committed against the case grew out of the war of 1812, between the United States and Great
belligerent occupant. Britain. It appeared that in September, 1814, the British forces had taken
the port of Castine, in the State of Maine, and held it in military occupation;
In Peralta vs. Director of Prisons, 75 Phil., 285, 296), we held that "the and that while it was so held, foreign goods, by the laws of the United States
Constitution of the Commonwealth Government was suspended during the subject to duty, had been introduced into that port without paying duties to
occupation of the Philippines by the Japanese forces or the belligerent the United States. At the close of the war the place by treaty restored to the
occupant at regular war with the United States," and the meaning of the United States, and after that was done Government of the United States
term "suspended" is very plainly expressed in the following passage (page sought to recover from the persons so introducing the goods there while in
298): possession of the British, the duties to which by the laws of the United
States, they would have been liable. The claim of the United States was that
No objection can be set up to the legality of its provisions in the light of the its laws were properly in force there, although the place was at the time held
precepts of our Commonwealth Constitution relating to the rights of the by the British forces in hostility to the United States, and the laws, therefore,
accused under that Constitution, because the latter was not in force during could not at the time be enforced there; and that a court of the United States
the period of the Japanese military occupation, as we have already stated. (the power of that government there having since been restored) was bound
Nor may said Constitution be applied upon its revival at the time of the re- so to decide. But this illusion of the prosecuting officer there was dispelled
occupation of the Philippines by the virtue of the priciple of postliminium, by the court in the most summary manner. Mr. Justice Story, that great
because "a constitution should operate prospectively only, unless the words luminary of the American bench, being the organ of the court in delivering
employed show a clear intention that it should have a retrospective effect," its opinion, said: 'The single question is whether goods imported into
(Cooley's Constitutional Limitations, seventh edition, page 97, and a case Castine during its occupation by the enemy are liable to the duties imposed
quoted and cited in the foot-note), especially as regards laws of procedure by the revenue laws upon goods imported into the United States.. We are all
applied to cases already terminated completely. of opinion that the claim for duties cannot be sustained. . . . The sovereignty
of the United States over the territory was, of course, suspended, and the
In much the same way, we should hold that no treason could have been laws of the United States could no longer be rightfully enforced there, or be
committed during the Japanese military occupation against the United obligatory upon the inhabitants who remained and submitted to the
States or the Commonwealth Government, because article 114 of the conquerors. By the surrender the inhabitants passed under a temporary
Revised Penal Code was not then in force. Nor may this penal provision be allegiance of the British Government, and were bound by such laws, and
applied upon its revival at the time of the reoccupation of the Philippines by such only, as it chose to recognize and impose. From the nature of the case
virtue of the principle of postliminium, because of the constitutional no other laws could be obligatory upon them. . . . Castine was therefore,
inhibition against any ex post facto law and because, under article 22 of the during this period, as far as respected our revenue laws, to be deemed a
foreign port, and goods imported into it by the inhabitants were subjects to annex such territory to occupying State, but that the inhabitants of the
such duties only as the British Government chose to require. Such goods occupied district, no longer receiving the protection of their native State, for
were in no correct sense imported into the Unites States.' The court then the time being owe no allegiance to it, and, being under the control and
proceeded to say, that the case is the same as if the port of Castine had been protection of the victorious power, owe to that power fealty and obedience.
foreign territory, ceded by treaty to the United States, and the goods had (Willoughby, The Fundamental Concepts of Public Law [1931], p.364.)
been imported there previous to its cession. In this case they say there would
be no pretense to say that American duties could be demanded; and upon The majority have resorted to distinctions, more apparent than real, if not
principles of public or municipal law, the cases are not distinguishable. They immaterial, in trying to argue that the law of treason was obligatory on the
add at the conclusion of the opinion: 'The authorities cited at the bar would, Filipinos during the Japanese occupation. Thus it is insisted that a citizen
if there were any doubt, be decisive of the question. But we think it too clear or subject owes not a qualified and temporary, but an absolute and
to require any aid from authority.' Does this case leave room for a doubt permanent allegiance, and that "temporary allegiance" to the military
whether a country held as this was in armed belligerents occupation, is to occupant may be likened to the temporary allegiance which a foreigner owes
be governed by him who holds it, and by him alone? Does it not so decide in to the government or sovereign to the territory wherein he resides in return
terms as plain as can be stated? It is asserted by the Supreme Court of the for the protection he receives therefrom. The comparison is most
United States with entire unanimity, the great and venerated Marshall unfortunate. Said foreigner is in the territory of a power not hostile to or in
presiding, and the erudite and accomplished Story delivering the opinion of actual war with his own government; he is in the territory of a power which
the court, that such is the law, and it is so adjudged in this case. Nay, more: has not suspended, under the rules of international law, the laws of political
it is even adjudged that no other laws could be obligatory; that such country, nature of his own government; and the protections received by him from
so held, is for the purpose of the application of the law off its former that friendly or neutral power is real, not the kind of protection which the
government to be deemed foreign territory, and that goods imported there inhabitants of an occupied territory can expect from a belligerent army. "It
(and by parity of reasoning other acts done there) are in no correct sense is but reasonable that States, when they concede to other States the right to
done within the territory of its former sovereign, the United States." exercise jurisdiction over such of their own nationals as are within the
territorial limits of such other States, should insist that States should
But it is alleged by the majority that the sovereignty spoken of in the decision provide system of law and of courts, and in actual practice, so administer
of the United States vs. Rice should be construed to refer to the exercise of them, as to furnish substantial legal justice to alien residents. This does not
sovereignty, and that, if sovereignty itself was meant, the doctrine has mean that a State must or should extend to aliens within its borders all the
become obsolete after the adoption of the Hague Regulations in 1907. In civil, or much less, all the political rights or privileges which it grants to its
answer, we may state that sovereignty can have any important significance own citizens; but it does mean that aliens must or should be given adequate
only when it may be exercised; and, to our way of thinking, it is immaterial opportunity to have such legal rights as are granted to them by the local law
whether the thing held in abeyance is the sovereignty itself or its exercise, impartially and judicially determined, and, when thus determined,
because the point cannot nullify, vary, or otherwise vitiate the plain meaning protected." (Willoughby, The Fundamental Concepts of Public Law [1931],
of the doctrinal words "the laws of the United States could no longer be p. 360.)
rightfully enforced there, or be obligatory upon the inhabitants who
remained and submitted to the conquerors." We cannot accept the theory of When it is therefore said that a citizen of a sovereign may be prosecuted for
the majority, without in effect violating the rule of international law, and convicted of treason committed in a foreign country or, in the language
hereinabove adverted to, that the possession by the belligerent occupant of of article 114 of the Revised Penal Code, "elsewhere," a territory other than
the right to control, maintain or modify the laws that are to obtain within one under belligerent occupation must have been contemplated. This would
the occupied area is an exclusive one, and that the territorial sovereign make sense, because treason is a crime "the direct or indirect purpose of
driven therefrom cannot compete with it on an even plane. Neither may the which is the delivery, in whole or in part, of the country to a foreign power,
doctrine in the United States vs. Rice be said to have become obsolete, or to pave the way for the enemy to obtain dominion over the national
without repudiating the actual rule prescribed and followed by the United territory" (Albert, The Revised Penal Code, citing 3 Groizard, 14); and, very
States, allowing the military occupant to suspend all laws of a political evidently, a territory already under occupation can no longer be "delivered."
nature and even require public officials and inhabitants to take an oath of
fidelity (United States Rules of Land Warfare, 1940, article 309). In fact, it The majority likewise argue that the theory of suspended sovereignty or
is a recognized doctrine of American Constitutional Law that mere conquest allegiance will enable the military occupant to legally recruit the inhabitants
or military occupation of a territory of another State does not operate to to fight against their own government, without said inhabitants being liable
for treason. This argument is not correct, because the suspension does not a fact, in spite of the "presence of guerrilla bands in barrios and mountains,
exempt the occupant from complying with the Hague Regulations (article and even in towns of the Philippines whenever these towns were left by
52) that allows it to demand all kinds of services provided that they do not Japanese garrisons or by the detachments of troops sent on patrol to those
involve the population "in the obligation of taking part military operations places." (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 371, 373.)
against their own country." Neither does the suspension prevent the The law of nations accepts belligerent occupation as a fact to be reckoned
inhabitants from assuming a passive attitude, much less from dying and with, regardless of the merits of the occupant's cause. (Hyde, International
becoming heroes if compelled by the occupant to fight against their own Law, Second Revised Edition [1945], Vol. III, p. 1879.)
country. Any imperfection in the present state of international law should
be corrected by such world agency as the United Nations organizations. Those who contend or fear that the doctrine herein adhere to will lead to an
over-production of traitors, have a wrong and low conception of the
It is of common knowledge that even with the alleged cooperation imputed psychology and patriotism of their countrymen. Patriots are such after their
to the collaborators, an alarming number of Filipinos were killed or birth in the first place, and no amount of laws or judicial decisions can make
otherwise tortured by the ruthless, or we may say savage, Japanese Army. or unmake them. On the other hand, the Filipinos are not so base as to be
Which leads to the conclusion that if the Filipinos did not obey the Japanese insensitive to the thought that the real traitor is cursed everywhere and in
commands and feign cooperation, there would not be any Filipino nation all ages. Our patriots who fought and died during the last war, and the brave
that could have been liberated. Assuming that the entire population could guerrillas who have survived, were undoubtedly motivated by their inborn
go to and live in the mountains, or otherwise fight as guerrillas — after the love of country, and not by such a thing as the treason law. The Filipino
formal surrender of our and the American regular fighting forces, — they people as a whole, passively opposed the Japanese regime, not out of fear of
would have faced certain annihilation by the Japanese, considering that the a treason statute but because they preferred and will prefer the democratic
latter's military strength at the time and the long period during which they and civilized way of life and American altruism to Japanese barbaric and
were left military unmolested by America. In this connection, we hate to totalitarian designs. Of course, there are those who might at heart have been
make reference to the atomic bomb as a possible means of destruction. pro-Japanese; but they met and will unavoidably meet the necessary
consequences. The regular soldiers faced the risks of warfare; the spies and
If a substantial number of guerrillas were able to survive and ultimately help informers subjected themselves to the perils of military operations, likely
in the liberation of the Philippines, it was because the feigned cooperation received summary liquidation or punishments from the guerrillas and the
of their countrymen enabled them to get food and other aid necessary in the parties injured by their acts, and may be prosecuted as war spies by the
resistance movement. If they were able to survive, it was because they could military authorities of the returning sovereign; those who committed other
camouflage themselves in the midst of the civilian population in cities and common crimes, directly or through the Japanese army, may be prosecuted
towns. It is easy to argue now that the people could have merely followed under the municipal law, and under this group even the spies and informers,
their ordinary pursuits of life or otherwise be indifferent to the occupant. Makapili or otherwise, are included, for they can be made answerable for
The fundamental defect of this line of thought is that the Japanese assumed any act offensive to person or property; the buy-and-sell opportunists have
to be so stupid and dumb as not to notice any such attitude. During the war profits tax to reckon with. We cannot close our eyes to the
belligerent occupation, "the outstanding fact to be reckoned with is the conspicuous fact that, in the majority of cases, those responsible for the
sharp opposition between the inhabitants of the occupied areas and the death of, or injury to, any Filipino or American at the hands of the Japanese,
hostile military force exercising control over them. At heart they remain at were prompted more by personal motives than by a desire to levy war
war with each other. Fear for their own safety may not serve to deter the against the United States or to adhere to the occupant. The alleged spies and
inhabitants from taking advantage of opportunities to interfere with the informers found in the Japanese occupation the royal road to vengeance
safety and success of the occupant, and in so doing they may arouse its against personal or political enemies. The recent amnesty granted to the
passions and cause to take vengeance in cruel fashion. Again, even when it guerrillas for acts, otherwise criminal, committed in the furtherance of their
is untainted by such conduct, the occupant as a means of attaining ultimate resistance movement has in a way legalized the penal sanctions imposed by
success in its major conflict may, under plea of military necessity, and them upon the real traitors.
regardless of conventional or customary prohibitions, proceed to utilize the
inhabitants within its grip as a convenient means of military achievement." It is only from a realistic, practical and common-sense point of view, and by
(Hyde, International Law, Vol. III, Second Revised Edition [1945], p. 1912.) remembering that the obedience and cooperation of the Filipinos were
It should be stressed that the Japanese occupation was not a matter of a few effected while the Japanese were in complete control and occupation of the
months; it extended over a little more than three years. Said occupation was Philippines, when their mere physical presence implied force and pressure
— and not after the American forces of liberation had restored the Philippine population. The only strong reason for this is undoubtedly the desire of the
Government — that we will come to realize that, apart from any rule of authors of the Conventions to give as much freedom and allowance to the
international law, it was necessary to release the Filipinos temporarily from inhabitants as are necessary for their survival. This is wise and humane,
the old political tie in the sense indicated herein. Otherwise, one is prone to because the people should be in a better position to know what will save
dismiss the reason for such cooperation and obedience. If there were those them during the military occupation than any exile government.
who did not in any wise cooperate or obey, they can be counted by the
fingers, and let their names adorn the pages of Philippine history. "Before he was appointed prosecutor, Justice Jackson made a speech in
Essentially, however, everybody who took advantage, to any extent and which he warned against the use of judicial process for non judicial ends,
degree, of the peace and order prevailing during the occupation, for the and attacked cynics who "see no reason why courts, just like other agencies,
safety and survival of himself and his family, gave aid and comfort to the should not be policy weapons. If we want to shoot Germans as a matter of
enemy. policy, let it be done as such, said he, but don't hide the deed behind a court.
If you are determined to execute a man in any case there is no occasion for
Our great liberator himself, General Douglas MacArthur, had considered a trial; the word yields no respect for courts that are merely organized to
the laws of the Philippines ineffective during the occupation, and restored convict." Mussoloni may have got his just desserts, but nobody supposes he
to their full vigor and force only after the liberation. Thus, in his got a fair trial. . . . Let us bear that in mind as we go about punishing
proclamation of October 23, 1944, he ordained that "the laws now existing criminals. There are enough laws on the books to convict guilty Nazis
on the statute books of the Commonwealth of the Philippines . . . are in full without risking the prestige of our legal system. It is far, far better that some
force and effect and legally binding upon the people in areas of the guilty men escape than that the idea of law be endangered. In the long run
Philippines free of enemy occupation and control," and that "all laws . . . of the idea of law is our best defense against Nazism in all its forms." These
any other government in the Philippines than that of the said passages were taken from the editorial appearing in the Life, May 28, 1945,
Commonwealth are null and void and without legal effect in areas of the page 34, and convey ideas worthy of some reflection.
Philippines free of enemy occupation and control." Repeating what we have
said in Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113, 133), "it If the Filipinos in fact committed any errors in feigning cooperation and
is to be presumed that General Douglas MacArthur, who was acting as an obedience during the Japanese military occupation, they were at most —
agent or a representative of the Government and the President of the United borrowing the famous and significant words of President Roxas — errors of
States, constitutional Commander-in-Chief of the United States Army, did the mind and not of the heart. We advisedly said "feigning" not as an
not intend to act against the principles of the law of nations asserted by the admission of the fallacy of the theory of suspended allegiance or sovereignty,
Supreme Court of the United States from the early period of its existence, but as an affirmation that the Filipinos, contrary to their outward attitude,
applied by the President of the United States, and later embodied in the had always remained loyal by feeling and conscience to their country.
Hague Conventions of 1907."
Assuming that article 114 of the Revised Penal Code was in force during the
The prohibition in the Hague Conventions (Article 45) against "any pressure Japanese military occupation, the present Republic of the Philippines has
on the population to take oath to the hostile power," was inserted for the no right to prosecute treason committed against the former sovereignty
moral protection and benefit of the inhabitants, and does not necessarily existing during the Commonwealth Government which was none other than
carry the implication that the latter continue to be bound to the political the sovereignty of the United States. This court has already held that, upon
laws of the displaced government. The United States, a signatory to the a change of sovereignty, the provisions of the Penal Code having to do with
Hague Conventions, has made the point clear, by admitting that the military such subjects as treason, rebellion and sedition are no longer in force
occupant can suspend all the laws of a political nature and even require (People vs. Perfecto, 43 Phil., 887). It is true that, as contended by the
public officials and the inhabitants to take an oath of fidelity (United States majority, section 1 of Article II of the Constitution of the Philippines
Rules of Land Warfare, 1940, article 309), and as already stated, it is a provides that "sovereignty resides in the people," but this did not make the
doctrine of American Constitutional Law that the inhabitants, no longer Commonwealth Government or the Filipino people sovereign, because said
receiving the protection of their native state, for the time being owe no declaration of principle, prior to the independence of the Philippines, was
allegiance to it, and, being under the control and protection of the victorious subervient to and controlled by the Ordinance appended to the Constitution
power, owe to that power fealty and obedience. Indeed, what is prohibited under which, in addition to its many provisions essentially destructive of the
is the application of force by the occupant, from which it is fair to deduce concept of sovereignty, it is expressly made clear that the sovereignty of the
that the Conventions do not altogether outlaw voluntary submission by the United States over the Philippines had not then been withdrawn. The
framers of the Constitution had to make said declaration of principle organs of particular areas such an amplitude of powers as to create of them
because the document was ultimately intended for the independent bodies-politic endowed with almost all of the characteristics of independent
Philippines. Otherwise, the Preamble should not have announced that one States. In all States, indeed, when of any considerable size, efficiency of
of the purposes of the Constitution is to secure to the Filipino people and administration demands that certain autonomous powers of local self-
their posterity the "blessings of independence." No one, we suppose, will government be granted to particular districts. (Willoughby, The
dare allege that the Philippines was an independent country under the Fundamental Concepts of Public Law [1931], pp. 74, 75.).
Commonwealth Government.
The majority have drawn an analogy between the Commonwealth
The Commonwealth Government might have been more autonomous than Government and the States of the American Union which, it is alleged,
that existing under the Jones Law, but its non-sovereign status nevertheless preserve their own sovereignty although limited by the United States. This
remained unaltered; and what was enjoyed was the exercise of sovereignty is not true for it has been authoritatively stated that the Constituent States
over the Philippines continued to be complete. have no sovereignty of their own, that such autonomous powers as they now
possess are had and exercised by the express will or by the constitutional
The exercise of Sovereignty May be Delegated. — It has already been seen forbearance of the national sovereignty, and that the sovereignty of the
that the exercise of sovereignty is conceived of as delegated by a State to the United States and the non-sovereign status of the individual States is no
various organs which, collectively, constitute the Government. For practical longer contested.
political reasons which can be easily appreciated, it is desirable that the
public policies of a State should be formulated and executed by It is therefore plain that the constituent States have no sovereignty of their
governmental agencies of its own creation and which are not subject to the own, and that such autonomous powers as they now possess are had and
control of other States. There is, however, nothing in a nature of sovereignty exercised by the express will or by the constitutional forbearance of the
or of State life which prevents one State from entrusting the exercise of national sovereignty. The Supreme Court of the United States has held that,
certain powers to the governmental agencies of another State. Theoretically, even when selecting members for the national legislature, or electing the
indeed, a sovereign State may go to any extent in the delegation of the President, or ratifying proposed amendments to the federal constitution,
exercise of its power to the governmental agencies of other States, those the States act, ad hoc, as agents of the National Government. (Willoughby,
governmental agencies thus becoming quoad hoc parts of the governmental the Fundamental Concepts of Public Law [1931], p.250.)
machinery of the State whose sovereignty is exercised. At the same time
these agencies do not cease to be Instrumentalities for the expression of the This is the situation at the present time. The sovereignty of the United States
will of the State by which they were originally created. and the non-sovereign status of the individual States is no longer contested.
(Willoughby, The Fundamental Concepts of Public Law [1931], pp. 251,
By this allegation the agent State is authorized to express the will of the 252.)
delegating State, and the legal hypothesis is that this State possesses the
legal competence again to draw to itself the exercise, through organs of its Article XVIII of the Constitution provides that "The government established
own creation, of the powers it has granted. Thus, States may concede to by this Constitution shall be known as the Commonwealth of the
colonies almost complete autonomy of government and reserve to Philippines. Upon the final and complete withdrawal of the sovereignty of
themselves a right of control of so slight and so negative a character as to the United States and the proclamation of Philippine independence, the
make its exercise a rare and improbable occurence; yet, so long as such right Commonwealth of the Philippines shall thenceforth be known as the
of control is recognized to exist, and the autonomy of the colonies is Republic of the Philippines." From this, the deduction is made that the
conceded to be founded upon a grant and the continuing consent of the Government under the Republic of the Philippines and under the
mother countries the sovereignty of those mother countries over them is Commonwealth is the same. We cannot agree. While the Commonwealth
complete and they are to be considered as possessing only administrative Government possessed administrative autonomy and exercised the
autonomy and not political independence. Again, as will be more fully sovereignty delegated by the United States and did not cease to be an
discussed in a later chapter, in the so-called Confederate or Composite State, instrumentality of the latter (Willoughby, The Fundamental Concepts of
the cooperating States may yield to the central Government the exercise of Public Law [1931], pp. 74, 75), the Republic of the Philippines is an
almost all of their powers of Government and yet retain their several independent State not receiving its power or sovereignty from the United
sovereignties. Or, on the other hand, a State may, without parting with its States. Treason committed against the United States or against its
sovereignty of lessening its territorial application, yield to the governing instrumentality, the Commonwealth Government, which exercised, but did
not possess, sovereignty (id., p. 49), is therefore not treason against the Osmeña who was with him, that proclaimed on October 23, 1944, the
sovereign and independent Republic of the Philippines. Article XVIII was restoration of the Commonwealth Government; (3) the Philippines was not
inserted in order, merely, to make the Constitution applicable to the given official participation in the signing of the Japanese surrender; (4) the
Republic. United States Congress, and not the Commonwealth Government, extended
the tenure of office of the President and Vice-President of the Philippines.
Reliance is also placed on section 2 of the Constitution which provides that
all laws of the Philippines Islands shall remain operative, unless The suggestion that as treason may be committed against the Federal as well
inconsistent therewith, until amended, altered, modified or repealed by the as against the State Government, in the same way treason may have been
Congress of the Philippines, and on section 3 which is to the effect that all committed against the sovereignty of the United States as well as against the
cases pending in courts shall be heard, tried, and determined under the laws sovereignty of the Philippine Commonwealth, is immaterial because, as we
then in force, thereby insinuating that these constitutional provisions have already explained, treason against either is not and cannot be treason
authorize the Republic of the Philippines to enforce article 114 of the Revised against the new and different sovereignty of the Republic of the Philippines.
Penal Code. The error is obvious. The latter article can remain operative
under the present regime if it is not inconsistent with the Constitution. The
fact remains, however, that said penal provision is fundamentally
incompatible with the Constitution, in that those liable for treason
thereunder should owe allegiance to the United States or the government of
the Philippines, the latter being, as we have already pointed out, a mere
instrumentality of the former, whereas under the Constitution of the present
Republic, the citizens of the Philippines do not and are not required to owe
allegiance to the United States. To contend that article 114 must be deemed
to have been modified in the sense that allegiance to the United States is
deleted, and, as thus modified, should be applied to prior acts, would be to EN BANC
sanction the enactment and application of an ex post facto law.
G.R. No. 154705 June 26, 2003
In reply to the contention of the respondent that the Supreme Court of the
United States has held in the case of Bradford vs. Chase National Bank (24 THE REPUBLIC OF INDONESIA, HIS EXCELLENCY
Fed. Supp., 38), that the Philippines had a sovereign status, though with AMBASSADOR SOERATMIN, and MINISTER COUNSELLOR
restrictions, it is sufficient to state that said case must be taken in the light AZHARI KASIM, Petitioners,
of a subsequent decision of the same court in Cincinnati Soap Co. vs. United vs.
States (301 U.S., 308), rendered in May, 1937, wherein it was affirmed that JAMES VINZON, doing business under the name and style of
the sovereignty of the United States over the Philippines had not been VINZON TRADE AND SERVICES, Respondent.
withdrawn, with the result that the earlier case only be interpreted to refer
to the exercise of sovereignty by the Philippines as delegated by the mother DECISION
country, the United States.
AZCUNA, J:
No conclusiveness may be conceded to the statement of President Roosevelt
on August 12, 1943, that "the United States in practice regards the This is a petition for review on certiorari to set aside the Decision of the
Philippines as having now the status as a government of other independent Court of Appeals dated May 30, 2002 and its Resolution dated August 16,
nations--in fact all the attributes of complete and respected nationhood," 2002, in CA-G.R. SP No. 66894 entitled "The Republic of Indonesia, His
since said statement was not meant as having accelerated the date, much Excellency Ambassador Soeratmin and Minister Counselor Azhari Kasim
less as a formal proclamation of, the Philippine Independence as v. Hon. Cesar Santamaria, Presiding Judge, RTC Branch 145, Makati City,
contemplated in the Tydings-McDuffie Law, it appearing that (1) no less also and James Vinzon, doing business under the name and style of Vinzon
than the President of the United States had to issue the proclamation of July Trade and Services."
4, 1946, withdrawing the sovereignty of the United States and recognizing
Philippine Independence; (2) it was General MacArthur, and not President
Petitioner, Republic of Indonesia, represented by its Counsellor, Siti and therefore enjoy diplomatic immunity.4 In turn, respondent filed on
Partinah, entered into a Maintenance Agreement in August 1995 with March 20, 2001, an Opposition to the said motion alleging that the Republic
respondent James Vinzon, sole proprietor of Vinzon Trade and Services. of Indonesia has expressly waived its immunity from suit. He based this
The Maintenance Agreement stated that respondent shall, for a claim upon the following provision in the Maintenance Agreement:
consideration, maintain specified equipment at the Embassy Main Building,
Embassy Annex Building and the Wisma Duta, the official residence of "Any legal action arising out of this Maintenance Agreement shall be settled
petitioner Ambassador Soeratmin. The equipment covered by the according to the laws of the Philippines and by the proper court of Makati
Maintenance Agreement are air conditioning units, generator sets, electrical City, Philippines."
facilities, water heaters, and water motor pumps. It is likewise stated therein
that the agreement shall be effective for a period of four years and will renew Respondent’s Opposition likewise alleged that Ambassador Soeratmin and
itself automatically unless cancelled by either party by giving thirty days Minister Counsellor Kasim can be sued and held liable in their private
prior written notice from the date of expiry.1 capacities for tortious acts done with malice and bad faith.5

Petitioners claim that sometime prior to the date of expiration of the said On May 17, 2001, the trial court denied herein petitioners’ Motion to
agreement, or before August 1999, they informed respondent that the Dismiss. It likewise denied the Motion for Reconsideration subsequently
renewal of the agreement shall be at the discretion of the incoming Chief of filed.
Administration, Minister Counsellor Azhari Kasim, who was expected to
arrive in February 2000. When Minister Counsellor Kasim assumed the The trial court’s denial of the Motion to Dismiss was brought up to the Court
position of Chief of Administration in March 2000, he allegedly found of Appeals by herein petitioners in a petition for certiorari and prohibition.
respondent’s work and services unsatisfactory and not in compliance with Said petition, docketed as CA-G.R. SP No. 66894, alleged that the trial court
the standards set in the Maintenance Agreement. Hence, the Indonesian gravely abused its discretion in ruling that the Republic of Indonesia gave
Embassy terminated the agreement in a letter dated August 31, its consent to be sued and voluntarily submitted itself to the laws and
2000.2 Petitioners claim, moreover, that they had earlier verbally informed jurisdiction of Philippine courts and that petitioners Ambassador Soeratmin
respondent of their decision to terminate the agreement. and Minister Counsellor Kasim waived their immunity from suit.

On the other hand, respondent claims that the aforesaid termination was On May 30, 2002, the Court of Appeals rendered its assailed decision
arbitrary and unlawful. Respondent cites various circumstances which denying the petition for lack of merit.6 On August 16, 2002, it denied herein
purportedly negated petitioners’ alleged dissatisfaction over respondent’s petitioners’ motion for reconsideration.7
services: (a) in July 2000, Minister Counsellor Kasim still requested
respondent to assign to the embassy an additional full-time worker to assist
Hence, this petition.
one of his other workers; (b) in August 2000, Minister Counsellor Kasim
asked respondent to donate a prize, which the latter did, on the occasion of
the Indonesian Independence Day golf tournament; and (c) in a letter dated In the case at bar, petitioners raise the sole issue of whether or not the Court
August 22, 2000, petitioner Ambassador Soeratmin thanked respondent for of Appeals erred in sustaining the trial court’s decision that petitioners have
sponsoring a prize and expressed his hope that the cordial relations happily waived their immunity from suit by using as its basis the abovementioned
existing between them will continue to prosper and be strengthened in the provision in the Maintenance Agreement.
coming years.
The petition is impressed with merit.
Hence, on December 15, 2000, respondent filed a complaint3 against
petitioners docketed as Civil Case No. 18203 in the Regional Trial Court International law is founded largely upon the principles of reciprocity,
(RTC) of Makati, Branch 145. On February 20, 2001, petitioners filed a comity, independence, and equality of States which were adopted as part of
Motion to Dismiss, alleging that the Republic of Indonesia, as a foreign the law of our land under Article II, Section 2 of the 1987 Constitution.8 The
sovereign State, has sovereign immunity from suit and cannot be sued as a rule that a State may not be sued without its consent is a necessary
party-defendant in the Philippines. The said motion further alleged that consequence of the principles of independence and equality of States.9 As
Ambassador Soeratmin and Minister Counsellor Kasim are diplomatic enunciated in Sanders v. Veridiano II,10 the practical justification for the
agents as defined under the Vienna Convention on Diplomatic Relations doctrine of sovereign immunity is that there can be no legal right against the
authority that makes the law on which the right depends. In the case of Submission by a foreign state to local jurisdiction must be clear and
foreign States, the rule is derived from the principle of the sovereign equality unequivocal. It must be given explicitly or by necessary implication. We find
of States, as expressed in the maxim par in parem non habet imperium. All no such waiver in this case.
states are sovereign equals and cannot assert jurisdiction over one
another.11 A contrary attitude would "unduly vex the peace of nations."12 Respondent concedes that the establishment of a diplomatic mission is a
sovereign function.1âwphi1 On the other hand, he argues that the actual
The rules of International Law, however, are neither unyielding nor physical maintenance of the premises of the diplomatic mission, such as the
impervious to change. The increasing need of sovereign States to enter into upkeep of its furnishings and equipment, is no longer a sovereign function
purely commercial activities remotely connected with the discharge of their of the State.18
governmental functions brought about a new concept of sovereign
immunity. This concept, the restrictive theory, holds that the immunity of We disagree. There is no dispute that the establishment of a diplomatic
the sovereign is recognized only with regard to public acts or acts jure mission is an act jure imperii. A sovereign State does not merely establish a
imperii, but not with regard to private acts or acts jure gestionis.13 diplomatic mission and leave it at that; the establishment of a diplomatic
mission encompasses its maintenance and upkeep. Hence, the State may
In United States v. Ruiz,14 for instance, we held that the conduct of public enter into contracts with private entities to maintain the premises,
bidding for the repair of a wharf at a United States Naval Station is an furnishings and equipment of the embassy and the living quarters of its
act jure imperii. On the other hand, we considered as an act jure agents and officials. It is therefore clear that petitioner Republic of
gestionis the hiring of a cook in the recreation center catering to American Indonesia was acting in pursuit of a sovereign activity when it entered into
servicemen and the general public at the John Hay Air Station in Baguio a contract with respondent for the upkeep or maintenance of the air
City,15 as well as the bidding for the operation of barber shops in Clark Air conditioning units, generator sets, electrical facilities, water heaters, and
Base in Angeles City.16 water motor pumps of the Indonesian Embassy and the official residence of
the Indonesian ambassador.
Apropos the present case, the mere entering into a contract by a foreign
State with a private party cannot be construed as the ultimate test of The Solicitor General, in his Comment, submits the view that, "the
whether or not it is an act jure imperii or jure gestionis. Such act is only the Maintenance Agreement was entered into by the Republic of Indonesia in
start of the inquiry. Is the foreign State engaged in the regular conduct of a the discharge of its governmental functions. In such a case, it cannot be
business? If the foreign State is not engaged regularly in a business or deemed to have waived its immunity from suit." As to the paragraph in the
commercial activity, and in this case it has not been shown to be so engaged, agreement relied upon by respondent, the Solicitor General states that it
the particular act or transaction must then be tested by its nature. If the act "was not a waiver of their immunity from suit but a mere stipulation that in
is in pursuit of a sovereign activity, or an incident thereof, then it is an the event they do waive their immunity, Philippine laws shall govern the
act jure imperii.17 resolution of any legal action arising out of the agreement and the proper
court in Makati City shall be the agreed venue thereof.19
Hence, the existence alone of a paragraph in a contract stating that any legal
action arising out of the agreement shall be settled according to the laws of On the matter of whether or not petitioners Ambassador Soeratmin and
the Philippines and by a specified court of the Philippines is not necessarily Minister Counsellor Kasim may be sued herein in their private capacities,
a waiver of sovereign immunity from suit. The aforesaid provision contains Article 31 of the Vienna Convention on Diplomatic Relations provides:
language not necessarily inconsistent with sovereign immunity. On the
other hand, such provision may also be meant to apply where the sovereign xxx
party elects to sue in the local courts, or otherwise waives its immunity by
any subsequent act. The applicability of Philippine laws must be deemed to 1. A diplomatic agent shall enjoy immunity from the criminal jurisidiction
include Philippine laws in its totality, including the principle recognizing of the receiving State. He shall also enjoy immunity from its civil and
sovereign immunity. Hence, the proper court may have no proper action, by administrative jurisdiction, except in the case of:
way of settling the case, except to dismiss it.
(a) a real action relating to private immovable property situated in the
territory of the receiving State, unless he holds it on behalf of the sending
State for the purposes of the mission;

(b) an action relating to succession in which the diplomatic agent is involved

(c) an action relating to any professional or commercial activity exercised by

xxx

The act of petitioners Ambassador Soeratmin and Minister Counsellor

The Solicitor General believes that said act may fall under subparagraph (c)
thereof,20 but said provision clearly applies only to a situation where the
diplomatic agent engages in any professional or commercial activity outside
official functions, which is not the case herein.

WHEREFORE, the petition is hereby GRANTED. The decision and

No costs.

SO ORDERED.