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Proclamation No. 1 Proclaiming that President Corazon C. Aquino and Vice President Salvador H.

Laurel are Taking Powers of the Government in the Name and by Will of the Filipino People Sovereignty resides in the people and all government authority emanates from them. On the basis of the peoples mandate clearly manifested last February 7, I and Salvador H. Laurel are taking power in the name and by the will of the Filipino people as President and Vice-President, respectively. By the powers vested in me by the people, I ask all those in the civil service to stay in place. Those who have not done anything against the interests of the people have nothing to fear. I ask that they preserve all records with scrupulous care. The people expect a reorganization of government. Merit will be rewarded. As a first step to restore confidence in public administration, I expect all appointive public officials to submit their courtesy resignation beginning with the members of the Supreme Court. I pledge to do justice to the numerous victims of human rights violations. Consistent with the demands of the sovereign people, we pledge a government dedicated to upheld truth and justice, morality and decency in government, freedom and democracy. To help me run the government, I have issued Executive Order No. 1 dated February 25, 1986 appointing key cabinet ministers and creating certain task forces. I ask our people not to relax but to be even more vigilant in this one moment of triumph. The motherland cannot thank them enough. Yet, we all realize that more is required of each and everyone of us to redeem our promises and prove to create a truly just society for our people. This is just the beginning. The same spirit which animated our campaign, and has led to our triumph, will once more prevail, by the power of the people and by the grace of God. Approved: February 25, 1986 .The 1986 Provisional "Freedom" Constitution Of The Republic Of The Philippines Full Text Proclamation No. 3 . DECLARING A NATIONAL POLICY TO IMPLEMENT THE REFORMS MANDATED BY THE PEOPLE, PROTECTING THEIR BASIC RIGHTS, ADOPTING A PROVISIONAL CONSTITUTION, AND PROVIDING FOR AN ORDERLY TRANSITION TO A GOVERNMENT UNDER A NEW CONSTITUTION. WHEREAS, the new government was installed through a direct exercise of the power of the Filipino people assisted by units of the New Armed Forces of the Philippines; .chan robles virtual law library WHEREAS, the heroic action of the people was done in defiance of the provisions of the 1973 Constitution, as amended; WHEREAS, the direct mandate of the people as manifested by their extraordinary action demands the complete reorganization of the government, restoration of democracy, protection of basic rights, rebuilding of confidence in the entire governmental system, eradication of graft and corruption, restoration of peace and order, maintenance of the supremacy of civilian authority over the military, and the transition to a government under a New Constitution in the shortest time possible; .chan robles virtual law library WHEREAS, during the period of transition to a New Constitution it must be guaranteed that the government will respect basic human rights and fundamental freedoms;.chan robles virtual law library

WHEREFORE, I, CORAZON C. AQUINO, President of the Philippines, by virtue of the powers vested in me by the sovereign mandate of the people, do hereby promulgate the following Provisional Constitution:.chan robles virtual law library PROVISIONAL CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES ARTICLE I ADOPTION OF CERTAIN PROVISIONS OF THE 1973 CONSTITUTION, AS AMENDED Section 1. The provisions of ARTICLE I (National Territory), ARTICLE III (Citizenship), ARTICLE IV (Bill of Rights), ARTICLE V (Duties and Obligations of Citizens), and ARTICLE VI (Suffrage) of the 1973 Constitution, as amended, remain in force and effect and are hereby adopted in toto as part of this Provisional Constitution..chan robles virtual law library Section 2. The provisions of ARTICLE II (Declaration of Principles and State Policies), ARTICLE VII (The President), ARTICLE X (The Judiciary), ARTICLE XI (Local Government), ARTICLE XII (The Constitutional Commissions), ARTICLE XIII (Accountability of Public Officers), ARTICLE XIV (The National Economy and Patrimony of the Nation), ARTICLE XV (General Provisions) of the 1973 Constitution, as amended, are hereby adopted as part of this Provisional Constitution, insofar as they are not inconsistent with the provisions of this Proclamation..chan robles virtual law library Section 3. ARTICLE VIII (The Batasang Pambansa), ARTICLE IX (The Prime Minister and the Cabinet), ARTICLE XVI (Amendments), ARTICLE XVII (Transitory Provisions) and all amendments thereto are deemed superseded by this Proclamation. .chan robles virtual law library ARTICLE II THE PRESIDENT, THE VICE-PRESIDENT, AND THE CABINET Section 1. Until a legislature is elected and convened under a new Constitution, the President shall continue to exercise legislative power. The President shall give priority to measures to achieve the mandate of the people to:.chan robles virtual law library (a) Completely reorganize the government and eradicate unjust and oppressive structures, and all iniquitous vestiges of the previous regime; .chan robles virtual law library (b) Make effective the guarantees of civil, political, human, social, economic and cultural rights and freedoms of the Filipino people, and provide remedies against violations thereof; (c) Rehabilitate the economy and promote the nationalist aspirations of the people;.chan robles virtual law library (d) Recover ill-gotten properties amassed by the leaders and supporters of the previous regime and protect the interest of the people through orders of sequestration or freezing of assets of accounts; (e) Eradicate graft and corruption in government and punish those guilty thereof; and, .chan robles virtual law library (f) Restore peace and order, settle the problem of insurgency, and pursue national reconciliation based on justice. Section 2. The President shall be assisted by a Cabinet which shall be composed of Ministers with or without portfolio who shall be appointed by the President. They shall be accountable to and hold office at the pleasure of the President. Section 3. The President shall have control of and exercise general supervision over all local governments. Section 4. In case of permanent vacancy arising from death, incapacity or resignation of the President, the Vice-President shall become President..chan robles virtual law library In case of death, permanent incapacity, or resignation of the Vice-President, the Cabinet shall choose from among themselves the Minister with portfolio who shall act as President.

Section 5. The Vice-President may be appointed Member of the Cabinet and may perform such other functions as may be assigned to him by the President..chan robles virtual law library Section 6. The President, the Vice-President, and the Members of the Cabinet shall be subject to the disabilities provided for in Section 8, Article VII, and in Sections 6 and 7, Article IX, respectively, of the 1973 Constitution, as amended. ARTICLE III GOVERNMENT REORGANIZATION Section 1. In the reorganization of the government, priority shall be given to measures to promote economy, efficiency, and the eradication of graft and corruption. .chan robles virtual law library .chan robles virtual law library Section 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986. (See Executive Order No. 17, to amend this Section 2). .chan robles virtual law library Section 3. Any public officer or employee separated from the service as a result of the reorganization effected under this Proclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing thereunder. Section 4. The records, equipment, buildings, facilities and other properties of all government offices shall be carefully preserved. In case any office or body is abolished or reorganized pursuant to this Proclamation, its funds and properties shall be transferred to the office or body to which its powers, functions, and responsibilities substantially pertain. ARTICLE IV EXISTING LAWS, TREATIES, AND CONTRACTS Section 1. All existing laws, decrees, executive orders, proclamations, letters of instruction, implementing rules and regulations, and other executive issuances not inconsistent with this Proclamation shall remain operative until amended, modified, or repealed by the President or the regular legislative body to be established under a New Constitution. Section 2. The President may review all contracts, concessions, permits, or other forms of privileges for the exploration, development, exploitation, or utilization of natural resources entered into, granted, issued, or acquired before the date of this Proclamation and when the national interest requires, amend, modify, or revoke them. .chan robles virtual law library ARTICLE V ADOPTION OF A NEW CONSTITUTION Section 1. Within sixty (60) days from date of this Proclamation, a Commission shall be appointed by the President to draft a New Constitution. TheCommission shall be composed of not less than thirty (30) nor more than fifty (50) natural born citizens of the Philippines, of recognized probity, known for their independence, nationalism and patriotism. They shall be chosen by the President after consultation with various sectors of society..chan robles virtual law library Section 2. The Commission shall complete its work within as short a period as may be consistent with the need both to hasten the return of normal constitutional government and to draft a document truly reflective of the ideals and aspirations of the Filipino people..chan robles virtual law library Section 3. The Commission shall conduct public hearings to ensure that the people will have adequate participation in the formulation of the New Constitution..chan robles virtual law library Section 4. The plenary sessions of the Commission shall be public and fully recorded..chan robles virtual law library

Section 5. The New Constitution shall be presented by the Commission to the President who shall fix the date for the holding of a plebiscite. It shall become valid and effective upon ratification by a majority of the votes cast in such plebiscite which shall be held within a period of sixty (60) days following its submission to the President. .chan robles virtual law library ARTICLE VI HOLDING OF ELECTIONS Section 1. National elections shall be held as may be provided by the New Constitution. Section 2. Local elections shall be held on a date to be determined by the President which shall not be earlier than the date of the plebiscite for the ratification of the New Constitution..chan robles virtual law library ARTICLE VII EFFECTIVE DATE Section 1. This Proclamation shall take effect upon its promulgation by the President. .chan robles virtual law library Section 2. Pursuant to the letter and spirit of this Proclamation, a consolidated official text of the Provisional Constitution shall be promulgated by the President and published in English and Pilipino in the Official Gazette and in newspapers of general circulation to insure widespread dissemination.

THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES ARTICLE XVIII TRANSITORY PROVISIONS Section 27. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions. The foregoing proposed Constitution of the Republic of the Philippines was approved by the Constitutional Commission of 1986 on the twelfth day of October, Nineteen hundred and eighty-six, and accordingly signed on the fifteenth day of October, Nineteen hundred and eighty-six at the Plenary Hall, National Government Center, Quezon City, by the Commissioners whose signatures are hereunder affixed. Adopted: Proclamation No. 58 Proclaiming the Ratification of the Constitution of the Republic of the Philippines Adopted by the Constitutional Commission of 1986, including the Ordinance Appended Thereto WHEREAS, the Constitutional Commission of 1986 adopted the Constitution of the Republic of the Philippines on October 15, 1986, together with the Ordinance appended thereto, which shall become valid and effective upon ratification by a majority of the votes cast in a plebiscite called for the purpose; WHEREAS, the Commission on Election, sitting as the national board of canvassers for the February 2, 1987 plebiscite on the proposed Constitution, certified that: 1. The Commission on Election canvassed the returns from 83,288 voting precincts throughout the country involving 21,785,216 votes cast; and

On the basis of the canvass made by the Commission on Elections, the results thereof are as follows: a. Affirmative votes: 16,622,111 b. Negative Votes: 4,953,375 c. Abstentions: 209,730 A copy of the Certificate of Canvass of the Votes Cast in the Plebiscite Held on February 2, 1987, of the Commission on Elections dated February 7, 1987 is hereto attached as Annex A of this Proclamation. NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, by virtue of the powers vested in me by the sovereign mandate of the people, do hereby proclaim that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission of 1986, including the ordinance appended thereto, has been duly ratified by the Filipino people and is therefore effective and in full force and effect. IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed. Done in the City of Manila, this 11th day of February in the year of Our Lord, nineteen hundred and eighty-seven. The Civil Code of the Philippines AN ACT TO ORDAIN AND INSTITUTE THE CIVIL CODE OF THE PHILIPPINES PRELIMINARY TITLE CHAPTER I EFFECT AND APPLICATION OF LAWS Art. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. When the courts declared a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (5a)

2.

G.R. No. 78059 August 31, 1987 ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO, ROGELIO J. DE LA ROSA and JOSE M. RESURRECCION, petitioners, vs. HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Rizal, HON. ROMEO C. DE LEON, in his capacity as OIC Mayor of the Municipality of Taytay, Rizal, FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V. MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents. MELENCIO-HERRERA, J.: An original action for Prohibition instituted by petitioners seeking to enjoin respondents from replacing them from their respective positions as Barangay Captain and Barangay Councilmen of Barangay Dolores, Municipality of Taytay, Province of Rizal. As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their Reply to respondents' Comment. In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected Barangay Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores, Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the Barangay Election Act of 1982. On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December 1, 1986 but signed by respondent OIC Governor Benjamin Esguerra on February 8, 1987 designating respondent Florentino G. Magno as Barangay Captain of Barangay Dolores, Taytay, Rizal. The designation made by the OIC Governor was "by authority of the Minister of Local Government." Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December 1, 1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S. Paz and Teresita L. Tolentino as members of the Barangay Council of the same Barangay and Municipality. That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor, the pertinent portions of which read: xxx xxx xxx That I am the OIC Governor of Rizal having been appointed as such on March 20, 1986; That as being OIC Governor of the Province of Rizal and in the performance of my duties thereof, I among others, have signed as I did sign the unnumbered memorandum ordering the replacement of all the barangay officials of all the barangay(s) in the Municipality of Taytay, Rizal; That the above cited memorandum dated December 1, 1986 was signed by me personally on February 8,1987; That said memorandum was further deciminated (sic) to all concerned the following day, February 9. 1987. FURTHER AFFIANT SAYETH NONE. Pasig, Metro Manila, March 23, 1987. Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null and void and that respondents be prohibited from taking over their positions of Barangay Captain and Barangay Councilmen, respectively. Petitioners maintain that pursuant to Section 3 of the Barangay Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years which shall commence on June 7, 1982 and shall continue until their successors shall have elected and shall have qualified," or up to June 7, 1988. It is also

their position that with the ratification of the 1987 Constitution, respondent OIC Governor no longer has the authority to replace them and to designate their successors. On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution, promulgated on March 25, 1986, which provided: SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such appointment is made within a period of one year from February 25,1986. By reason of the foregoing provision, respondents contend that the terms of office of elective and appointive officials were abolished and that petitioners continued in office by virtue of the aforequoted provision and not because their term of six years had not yet expired; and that the provision in the Barangay Election Act fixing the term of office of Barangay officials to six (6) years must be deemed to have been repealed for being inconsistent with the aforequoted provision of the Provisional Constitution. Examining the said provision, there should be no question that petitioners, as elective officials under the 1973 Constitution, may continue in office but should vacate their positions upon the occurrence of any of the events mentioned. 1 Since the promulgation of the Provisional Constitution, there has been no proclamation or executive order terminating the term of elective Barangay officials. Thus, the issue for resolution is whether or not the designation of respondents to replace petitioners was validly made during the one-year period which ended on February 25, 1987. Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should be considered as the effective date of replacement and not December 1,1986 to which it was ante dated, in keeping with the dictates of justice. But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision in the Provisional Constitution must be deemed to have been overtaken by Section 27, Article XVIII of the 1987 Constitution reading. SECTION 27. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions. The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the Provisional Constitution must be deemed to have been superseded. Having become inoperative, respondent OIC Governor could no longer rely on Section 2, Article III, thereof to designate respondents to the elective positions occupied by petitioners. Petitioners must now be held to have acquired security of tenure specially considering that the Barangay Election Act of 1982 declares it "a policy of the State to guarantee and promote the autonomy of the barangays to ensure their fullest development as self-reliant communities. 2 Similarly, the 1987 Constitution ensures the autonomy of local governments and of political subdivisions of which the barangays form a part, 3 and limits the President's power to "general supervision" over local governments. 4 Relevantly, Section 8, Article X of the same 1987 Constitution further provides in part: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years ... Until the term of office of barangay officials has been determined by law, therefore, the term of office of six (6) years provided for in the Barangay Election Act of 1982 5 should still govern. Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years for elective Barangay officials and the 1987 Constitution, and the same should, therefore, be considered as still operative, pursuant to Section 3, Article XVIII of the 1987 Constitution, reading:

Sec. 3. All existing laws, decrees, executive orders, proclamations letters of instructions, and other executive issuances not inconsistent, with this Constitution shall remain operative until amended, repealed or revoked. WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987 designating respondents as the Barangay Captain and Barangay Councilmen, respectively, of Barangay Dolores, Taytay, Rizal, are both declared to be of no legal force and effect; and (2) the Writ of Prohibition is granted enjoining respondents perpetually from proceeding with the ouster/take-over of petitioners' positions subject of this Petition. Without costs. SO ORDERED. Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ., concur. Separate Opinions TEEHANKEE, CJ., concurring: The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February 2, 1987, the date that the plebiscite for its ratification was held or whether it took effect on February 11, 1987, the date its ratification was proclaimed per Proclamation No. 58 of the President of the Philippines, Corazon C. Aquino. The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision of Article XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987 Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on that same date. The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its ratification shall have been ascertained and not at the time the people cast their votes to approve or reject it." This view was actually proposed at the Constitutional Commission deliberations, but was withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will be effective on the very day of the plebiscite." The record of the proceedings and debates of the Constitutional Commission fully supports the Court's judgment. It shows that the clear, unequivocal and express intent of the Constitutional Conunission in unanimously approving (by thirty-five votes in favor and none against) the aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of ratification is the act of voting by the people. So that is the date of the ratification" and that "the canvass thereafter [of the votes] is merely the mathematical confirmation of what was done during the date of the plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite." The record of the deliberations and the voting is reproduced hereinbelow: 1 MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the committee as indicated in Section 12, unless there are other commissioners who would like to present amendments. MR. DAVIDE. Madam President. THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. May I propose the following amendments. On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after "constitutions," add the following: "AND THEIR AMENDMENTS."

MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose an additional sentence, the committee would suggest that we take up first his amendment to the first sentence as originally formulated. We are now ready to comment on that proposed amendment. The proposed amendment would be to delete the words "its ratification and in lieu thereof insert the words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And the second amendment would be: After the word "constitutions," add the words" AND THEIR AMENDMENTS," The committee accepts the first proposed amendment. However, we regret that we cannot accept the second proposed amendment after the word "constitutions" because the committee feels that when we talk of all previous Constitutions, necessarily it includes "AND THEIR AMENDMENTS." MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam President, may I request that I be allowed to read the second amendment so the Commission would be able to appreciate the change in the first. MR. MAAMBONG. Yes, Madam President, we can now do that. MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHIN FIVE DAYS FOLLOWING THE COMPLETION OF THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE RESULTS OF SUCH PLEBISCITE." MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that the second proposed amendment in the form of a new sentence would not be exactly necessary and the committee feels that it would be too much for us to impose a time frame on the President to make the proclamation. As we would recall, Madam President, in the approved Article on the Executive, there is a provision which says that the President shall make certain that all laws shall be faithfully complied. When we approve this first sentence, and it says that there will be a proclamation by the President that the Constitution has been ratified, the President will naturally comply with the law in accordance with the provisions in the Article on the Executive which we have cited. It would be too much to impose on the President a time frame within which she will make that declaration. It would be assumed that the President would immediately do that after the results shall have been canvassed by the COMELEC. Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is proposing, Madam President. MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an immediate proclamation of the results by the President. MR. MAAMBONG. With that understanding, Madam President. MR. DAVIDE. I will not insist on the second sentence. FR. BERNAS. Madam President. THE PRESIDENT. Commissioner Bernas is recognized. FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment which makes the effectivity of the new Constitution dependent upon the proclamation of the President. The effectivity of the Constitution should commence on the date of the ratification, not on the

date of the proclamation of the President. What is confusing, I think, is what happened in 1976 when the amendments of 1976 were ratified. In that particular case, the reason the amendments of 1976 were effective upon the proclamation of the President was that the draft presented to the people said that the amendment will be effective upon the proclamation made by the President. I have a suspicion that was put in there precisely to give the President some kind of leeway on whether to announce the ratification or not. Therefore, we should not make this dependent on the action of the President since this will be a manifestation of the act of the people to be done under the supervision of the COMELECand it should be the COMELEC who should make the announcement that, in fact, the votes show that the Constitution was ratified and there should be no need to wait for any proclamation on the part of the President. MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions? FR. BERNAS. Willingly, Madam President. MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the Constitution is supposed to be ratified. FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were supposed to have been cast. MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the Constitution to a plebiscite, the people exercise their right to vote, then the votes are canvassed by the Commission on Elections. If we delete the suggested amendment which says: "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED," what would be, in clear terms, the date when the Constitution is supposed to be ratified or not ratified, as the case may be? FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the plebiscite would be held, for instance, on January 19, 1987, then the date for the effectivity of the new Constitution would be January 19, 1987. MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the Commission on Elections which will be doing the canvass? That is immaterial Madam President FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done when one casts his ballot. MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President? FR. BERNAS. Yes, Madam President. MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the proponent, Commissioner Davide, if he is insisting on his amendment. MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot subscribe to the view of Commissioner Bernas, that the date of the ratification is reckoned from the date of the casting of the ballots. That cannot be the date of reckoning because it is a plebiscite all over the country. We do not split the moment of casting by each of the voters. Actually and technically speaking, it would be all right if it would be upon the announcement of the results of the canvass conducted by the COMELEC or the results of the plebiscite held all over the country. But it is necessary that there be a body which will make the

formal announcement of the results of the plebiscite. So it is either the President or the COMELEC itself upon the completion of the canvass of the results of the plebiscite, and I opted for the President. xxx xxx xxx MR. NOLLEDO. Madam President. THE PRESIDENT. Commissioner Nolledo is recognized. MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Davide. I support the stand of Commissioner Bernas because it is really the date of the casting of the "yes" votes that is the date of the ratification of the Constitution The announcement merely confirms the ratification even if the results are released two or three days after. I think it is a fundamental principle in political law, even in civil law, because an announcement is a mere confirmation The act of ratification is the act of voting by the people. So that is the date of the ratification. If there should be any need for presidential proclamation, that proclamation will merely confirm the act of ratification. Thank you, Madam President. THE PRESIDENT. Does Commissioner Regalado want to contribute? MR. REGALADO. Madam President, I was precisely going to state the same support for Commissioner Bernas, because the canvass thereafter is merely the mathematical confirmation of what was done during the date of the plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite. MR. LERUM. Madam President, may I be recognized. THE PRESIDENT. Commissioner Lerum is recognized. MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for the effectivity of the Constitution. Suppose the announcement is delayed by, say, 10 days or a month, what happens to the obligations and rights that accrue upon the approval of the Constitution? So I think we must have a definite date. I am, therefore, in favor of the Davide amendment. MR. MAAMBONG. Madam President. THE PRESIDENT. Commissioner Maambong is recognized. MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for the Commission on Elections to declare the results of the canvass? FR. BERNAS. There would be because it is the Commission on Elections which makes the official announcement of the results. MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has declared the results of the canvass, will there be a necessity for the President to make a proclamation of the results of the canvass as submitted by the Commission on Elections? FR. BERNAS. I would say there would be no necessity, Madam President. MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the Constitution has been ratified or not. FR. BERNAS. I would say that the proclamation made by the President would be immaterial because under the law, the administration of all election laws is under an independent Commission on Elections. It is the Commission on Elections which announces the results.

MR. MAAMBONG. But nevertheless, the President may make the proclamation. FR. BERNAS. Yes, the President may. And if what he says contradicts what the Commission on Elections says, it would have no effect. I would only add that when we say that the date of effectivity is on the day of the casting of the votes, what we mean is that the Constitution takes effect on every single minute and every single second of that day, because the Civil Code says a day has 24 hours.So that even if the votes are cast in the morning, the Constitution is really effective from the previous midnight. So that when we adopted the new rule on citizenship, the children of Filipino mothers or anybody born on the date of effectivity of the 1973 Constitution, which is January 17, 1973, are natural-born citizens, no matter what time of day or night. MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication of the results of the canvass by the COMELEC retroacts to the date of the plebiscite? FR. BERNAS. Yes, Madam President. MR. MAAMBONG. I thank the Commissioner. MR. GUINGONA. Madam President. THE PRESIDENT. Commissioner Guingona is recognized. MR. GUINGONA. Mention was made about the need for having a definite date. I think it is precisely the proposal of Commissioner Bernas which speaks of the date (of ratification that would have a definite date, because there would be no definite date if we depend upon the canvassing by the COMELEC. Thank you, THE PRESIDENT. Commissioner Concepcion is recognized. MR. CONCEPCION. Thank you, Madam President. Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC or the President, would announce that a majority of the votes cast on a given date was in favor of the Constitution. And that is the date when the Constitution takes effect, apart from the fact that the provision on the drafting or amendment of the Constitution provides that a constitution becomes effective upon ratification by a majority of the votes cast, although I would not say from the very beginning of the date of election because as of that time it is impossible to determine whether there is a majority. At the end of the day of election or plebiscite, the determination is made as of that time-the majority of the votes cast in a plebiscite held on such and such a date. So that is the time when the new Constitution will be considered ratified and, therefore, effective. THE PRESIDENT. May we now hear Vice-President Padilla. MR. PADILLA. Madam President, I am against the proposed amendment of Commissioner Davide and I support the view of Commissioner Bernas and the others because the ratification of the Constitution is on the date the people, by a majority vote, have cast their votes in favor of the Constitution. Even in civil law, if there is a contract, say, between an agent and a third person and that contract is confirmed or ratified by the principal, the validity does not begin on the date of ratification but it retroacts from the date the contract was executed. Therefore, the date of the Constitution as ratified should retroact to the date that the people have cast their affirmative votes in favor of the Constitution.

MR. MAAMBONG. Madam President. THE PRESIDENT. Commissioner Maambong is recognized MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on his amendment MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it will be effective on the very day of the plebiscite, I am withdrawing my amendment on the assumption that any of the following bodies the Office of the President or the COMELEC will make the formal announcement of the results. MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the committee. MR. MAAMBONG. The committee will read again the formulation indicated in the original committee report as Section 12. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and shall supersede all previous Constitutions. We ask for a vote, Madam President. VOTING THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members raised their hands.) As many as are against, please raise their hand. (No Member raised his hand.) The results show 35 votes in favor and none against; Section 12 is approved. 2 The Court next holds as a consequence of its declaration at bar that the Constitution took effect on the date of its ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional Constitution promulgated on March 25, 1986 must be deemed to have been superseded by the 1987 Constitution on the same date February 2, 1987 and (2) by and after said date, February 2, 1987, absent any saying clause to the contrary in the Transitory Article of the Constitution, respondent OIC Governor could no longer exercise the power to replace petitioners in their positions as Barangay Captain and Councilmen. Hence, the attempted replacement of petitioners by respondent OIC Governor's designation on February 8, 1987 of their successors could no longer produce any legal force and effect. While the Provisional Constitution provided for a one-year period expiring on March 25, 1987 within which the power of replacement could be exercised, this period was shortened by the ratification and effectivity on February 2, 1987 of the Constitution. Had the intention of the framers of the Constitution been otherwise, they would have so provided for in the Transitory Article, as indeed they provided for multifarious transitory provisions in twenty six sections of Article XVIII, e.g. extension of the six-year term of the incumbent President and Vice-President to noon of June 30, 1992 for purposes of synchronization of elections, the continued exercise of legislative powers by the incumbent President until the convening of the first Congress, etc. A final note of clarification, as to the statement in the dissent that "the appointments of some seven Court of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported extended (by) the President on February 2, 1987 . . . could be open to serious questions," in view of the provisions of Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement thereof by the Judicial and Bar Council created under the Constitution. It should be stated for the record that the reported date of the appointments, February 2, 1987, is incorrect. The official records of the Court show that the appointments of the seven Court of Appeals Justices were transmitted to this Court on February 1, 1987 and they were all appointed on or before January 31, 1987. 3(Similarly, the records of the Department of Justice likewise show that the appointment papers of the last batch of provincial and city fiscals signed by the President in completion of the reorganization of the prosecution service

were made on January 31, 1987 and transmitted to the Department on February 1, 1987.) It is also a matter of record that since February 2, 1987, no appointments to the Judiciary have been extended by the President, pending the constitution of the Judicial and Bar Council, indicating that the Chief Executive has likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly declared by the Court. CRUZ, J., concurring. In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect than the tones of thunder. She has written another persuasive opinion, and I am delighted to concur. I note that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases, where I submitted that the local OICs may no longer be summarily replaced, having acquired security of tenure under the new Constitution. Our difference is that whereas I would make that right commence on February 25, 1987, after the deadline set by the Freedom Constitution, Justice Herrera would opt for February 2, 1987, when the new Constitution was ratified. I yield to that better view and agree with her ponencia completely. SARMIENTO, J., Dissenting. With due respect to the majority I register this dissent. While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution with respect to the tenure of government functionaries, as follows: SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such appointment is made within a period of one year from February 25, 1986. was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that cut-off period began on February 2, 1987, the date of the plebiscite held to approve the new Charter. To my mind the 1987 constitution took effect on February 11, 1987, the date the same was proclaimed ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not February 2, 1987, plebiscite day. I rely, first and foremost, on the language of the 1987 Charter itself, thus: Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions. It is my reading of this provision that the Constitution takes effect on the date its ratification shall have been ascertained, and not at the time the people cast their votes to approve or reject it. For it cannot be logically said that Constitution was ratified during such a plebiscite, when the will of the people as of that time, had not, and could not have been, vet determined. Other than that, pragmatic considerations compel me to take the view. I have no doubt that between February 2, and February 11, 1987 the government performed acts that would have been valid under the Provisional Constitution but would otherwise have been void under the 1987 Charter. I recall, in particular, the appointments of some seven Court of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended on February 2, 1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows: xxx xxx xxx Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex oficio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. xxx xxx xxx

Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy, Such appointments need no confirmation. xxx xxx xxx such appointments could be open to serious questions. Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the amendments thereto from the date it is proclaimed ratified. In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17, 1973, the date Proclamation No. 1102, "Announcing the Ratification by the Filipino People of the Constitution Proposed by the 1971 Constitutional Convention," was issued, although Mr. Justice, now Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our decision in Javellana v. Executive Secretary, 3 became final. And this was so notwithstanding Section 16, Article XVII, of the 1973 Constitution, thus: SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and, except as herein provided, shall supersede the Constitution of nineteen-hundred and thirty- five and all amendments thereto. On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that. By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this certificate as duly ratified by the Filipino people in the referendumplebiscite held Oct. 16-17, 1976 and are therefore effective and in full force and effect as of this date. It shall be noted that under Amendment No. 9 of the said 1976 amendments. These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified by a majority of the votes cast in the referendum-plebiscite. On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the Ratification by the Filipino People of the Amendments of Section 7, Article X of the Constitution" (lengthening the terms of office of judges and justices). The Proclamation provides: [t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the plebiscite held, together with the election for local officials, on January 30, 1980, and that said amendment is hereby declared to take effect immediately. It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment shall take effect on the date the incumbent President/Prime Minister shall proclaim its ratification. On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April 7, 1981 of the Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full Force and Effect." The Proclamation, in declaring the said amendments duly approved, further declared them "[e]ffective and in full force and in effect as of the date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I and 2 of the Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly, which parented these amendments, the same: . . .shall become valid as part of the Constitution when approved by a majority of the votes cast in a plebiscite to be held pursuant to Section 2, Article XVI of the Constitution.

On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for Ratification or Rejection, the Amendment to the Constitution of the Philippines, Proposed by the Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two, and One, and to Appropriate Funds Therefore," provides, as follows: SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the plebiscite using the certificates submitted to it, duly authenticated and certified by the Board of Canvassers of each province or city. We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January 27, 1984, of the Amendments to the Constitution Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments: ....are therefore effective and in full force and effect as of the date of this Proclamation. It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas Blg. 643), which states, that: The proposed amendments shall take effect on the date the President of the Philippines shall proclaim that they have been ratified by a majority of the votes cast in the plebiscite held for the purpose, but not later than three months from the approval of the amendments. albeit Resolutions Nos. 105, 111, and 113 provide, that: These amendments shall be valid as a part of the Constitution when approved by a majority of the votes cast in an election/plebiscite at which it is submitted to the people for their ratification pursuant to Section 2 of Article XVI of the Constitution, as amended. That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at the time of the plebiscite is a view that is not peculiar to the Marcos era. The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no mention of a retroactive application. Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11, 1987, at Malacanang Palace: ... that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission of 1986, including the Ordinance appended thereto, has been duly ratified by the Filipino people and is therefore effective and in full force and effect. 4 the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other time. I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new Charter was ratified on February 2, 1987, does not in any way weaken this dissent. As I stated, the remark was said in passing-we did not resolve the case on account of a categorical holding that the 1987 Constitution came to life on February 2, 1987. In any event, if we did, I now call for its re-examination. I am therefore of the opinion, consistent with the views expressed above, that the challenged dismissals done on February 8, 1987 were valid, the 1987 Constitution not being then as yet in force. Separate Opinions TEEHANKEE, CJ., concurring: The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February 2, 1987, the date that the plebiscite for its ratification was held or whether it

took effect on February 11, 1987, the date its ratification was proclaimed per Proclamation No. 58 of the President of the Philippines, Corazon C. Aquino. The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision of Article XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987 Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on that same date. The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its ratification shall have been ascertained and not at the time the people cast their votes to approve or reject it." This view was actually proposed at the Constitutional Commission deliberations, but was withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will be effective on the very day of the plebiscite." The record of the proceedings and debates of the Constitutional Commission fully supports the Court's judgment. It shows that the clear, unequivocal and express intent of the Constitutional Conunission in unanimously approving (by thirty-five votes in favor and none against) the aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of ratification is the act of voting by the people. So that is the date of the ratification" and that "the canvass thereafter [of the votes] is merely the mathematical confirmation of what was done during the date of the plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite." The record of the deliberations and the voting is reproduced hereinbelow: 1 MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the committee as indicated in Section 12, unless there are other commissioners who would like to present amendments. MR. DAVIDE. Madam President. THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. May I propose the following amendments. On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after "constitutions," add the following: "AND THEIR AMENDMENTS." MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose an additional sentence, the committee would suggest that we take up first his amendment to the first sentence as originally formulated. We are now ready to comment on that proposed amendment. The proposed amendment would be to delete the words "its ratification and in lieu thereof insert the words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And the second amendment would be: After the word "constitutions," add the words" AND THEIR AMENDMENTS," The committee accepts the first proposed amendment. However, we regret that we cannot accept the second proposed amendment after the word "constitutions" because the committee feels that when we talk of all previous Constitutions, necessarily it includes "AND THEIR AMENDMENTS." MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam President, may I request that I be allowed to read the second amendment so the Commission would be able to appreciate the change in the first. MR. MAAMBONG. Yes, Madam President, we can now do that.

MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHIN FIVE DAYS FOLLOWING THE COMPLETION OF THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE RESULTS OF SUCH PLEBISCITE." MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that the second proposed amendment in the form of a new sentence would not be exactly necessary and the committee feels that it would be too much for us to impose a time frame on the President to make the proclamation. As we would recall, Madam President, in the approved Article on the Executive, there is a provision which says that the President shall make certain that all laws shall be faithfully complied. When we approve this first sentence, and it says that there will be a proclamation by the President that the Constitution has been ratified, the President will naturally comply with the law in accordance with the provisions in the Article on the Executive which we have cited. It would be too much to impose on the President a time frame within which she will make that declaration. It would be assumed that the President would immediately do that after the results shall have been canvassed by the COMELEC. Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is proposing, Madam President. MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an immediate proclamation of the results by the President. MR. MAAMBONG. With that understanding, Madam President. MR. DAVIDE. I will not insist on the second sentence. FR. BERNAS. Madam President. THE PRESIDENT. Commissioner Bernas is recognized. FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment which makes the effectivity of the new Constitution dependent upon the proclamation of the President. The effectivity of the Constitution should commence on the date of the ratification, not on the date of the proclamation of the President. What is confusing, I think, is what happened in 1976 when the amendments of 1976 were ratified. In that particular case, the reason the amendments of 1976 were effective upon the proclamation of the President was that the draft presented to the people said that the amendment will be effective upon the proclamation made by the President. I have a suspicion that was put in there precisely to give the President some kind of leeway on whether to announce the ratification or not. Therefore, we should not make this dependent on the action of the President since this will be a manifestation of the act of the people to be done under the supervision of the COMELECand it should be the COMELEC who should make the announcement that, in fact, the votes show that the Constitution was ratified and there should be no need to wait for any proclamation on the part of the President. MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions? FR. BERNAS. Willingly, Madam President. MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the Constitution is supposed to be ratified.

FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were supposed to have been cast. MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the Constitution to a plebiscite, the people exercise their right to vote, then the votes are canvassed by the Commission on Elections. If we delete the suggested amendment which says: "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED," what would be, in clear terms, the date when the Constitution is supposed to be ratified or not ratified, as the case may be? FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the plebiscite would be held, for instance, on January 19, 1987, then the date for the effectivity of the new Constitution would be January 19, 1987. MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the Commission on Elections which will be doing the canvass? That is immaterial Madam President FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done when one casts his ballot. MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President? FR. BERNAS. Yes, Madam President. MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the proponent, Commissioner Davide, if he is insisting on his amendment. MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot subscribe to the view of Commissioner Bernas, that the date of the ratification is reckoned from the date of the casting of the ballots. That cannot be the date of reckoning because it is a plebiscite all over the country. We do not split the moment of casting by each of the voters. Actually and technically speaking, it would be all right if it would be upon the announcement of the results of the canvass conducted by the COMELEC or the results of the plebiscite held all over the country. But it is necessary that there be a body which will make the formal announcement of the results of the plebiscite. So it is either the President or the COMELEC itself upon the completion of the canvass of the results of the plebiscite, and I opted for the President. xxx xxx xxx MR. NOLLEDO. Madam President. THE PRESIDENT. Commissioner Nolledo is recognized. MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Davide. I support the stand of Commissioner Bernas because it is really the date of the casting of the "yes" votes that is the date of the ratification of the Constitution The announcement merely confirms the ratification even if the results are released two or three days after. I think it is a fundamental principle in political law, even in civil law, because an announcement is a mere confirmation The act of ratification is the act of voting by the people. So that is the date of the ratification. If there should be any need for presidential proclamation, that proclamation will merely confirm the act of ratification. Thank you, Madam President. THE PRESIDENT. Does Commissioner Regalado want to contribute?

MR. REGALADO. Madam President, I was precisely going to state the same support for Commissioner Bernas, because the canvass thereafter is merely the mathematical confirmation of what was done during the date of the plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite. MR. LERUM. Madam President, may I be recognized. THE PRESIDENT. Commissioner Lerum is recognized. MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for the effectivity of the Constitution. Suppose the announcement is delayed by, say, 10 days or a month, what happens to the obligations and rights that accrue upon the approval of the Constitution? So I think we must have a definite date. I am, therefore, in favor of the Davide amendment. MR. MAAMBONG. Madam President. THE PRESIDENT. Commissioner Maambong is recognized. MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for the Commission on Elections to declare the results of the canvass? FR. BERNAS. There would be because it is the Commission on Elections which makes the official announcement of the results. MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has declared the results of the canvass, will there be a necessity for the President to make a proclamation of the results of the canvass as submitted by the Commission on Elections? FR. BERNAS. I would say there would be no necessity, Madam President. MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the Constitution has been ratified or not. FR. BERNAS. I would say that the proclamation made by the President would be immaterial because under the law, the administration of all election laws is under an independent Commission on Elections. It is the Commission on Elections which announces the results. MR. MAAMBONG. But nevertheless, the President may make the proclamation. FR. BERNAS. Yes, the President may. And if what he says contradicts what the Commission on Elections says, it would have no effect. I would only add that when we say that the date of effectivity is on the day of the casting of the votes, what we mean is that the Constitution takes effect on every single minute and every single second of that day, because the Civil Code says a day has 24 hours. So that even if the votes are cast in the morning, the Constitution is really effective from the previous midnight. So that when we adopted the new rule on citizenship, the children of Filipino mothers or anybody born on the date of effectivity of the 1973 Constitution, which is January 17, 1973, are natural-born citizens, no matter what time of day or night. MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication of the results of the canvass by the COMELEC retroacts to the date of the plebiscite? FR. BERNAS. Yes, Madam President. MR. MAAMBONG. I thank the Commissioner. MR. GUINGONA. Madam President.

THE PRESIDENT. Commissioner Guingona is recognized. MR. GUINGONA. Mention was made about the need for having a definite date. I think it is precisely the proposal of Commissioner Bernas which speaks of the date (of ratification that would have a definite date, because there would be no definite date if we depend upon the canvassing by the COMELEC. Thank you, THE PRESIDENT. Commissioner Concepcion is recognized. MR. CONCEPCION. Thank you, Madam President. Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC or the President, would announce that a majority of the votes cast on a given date was in favor of the Constitution. And that is the date when the Constitution takes effect, apart from the fact that the provision on the drafting or amendment of the Constitution provides that a constitution becomes effective upon ratification by a majority of the votes cast, although I would not say from the very beginning of the date of election because as of that time it is impossible to determine whether there is a majority. At the end of the day of election or plebiscite, the determination is made as of that time-the majority of the votes cast in a plebiscite held on such and such a date. So that is the time when the new Constitution will be considered ratified and, therefore, effective. THE PRESIDENT. May we now hear Vice-President Padilla. MR. PADILLA. Madam President, I am against the proposed amendment of Commissioner Davide and I support the view of Commissioner Bernas and the others because the ratification of the Constitution is on the date the people, by a majority vote, have cast their votes in favor of the Constitution. Even in civil law, if there is a contract, say, between an agent and a third person and that contract is confirmed or ratified by the principal, the validity does not begin on the date of ratification but it retroacts from the date the contract was executed. Therefore, the date of the Constitution as ratified should retroact to the date that the people have cast their affirmative votes in favor of the Constitution. MR. MAAMBONG. Madam President. THE PRESIDENT. Commissioner Maambong is recognized MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on his amendment MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it will be effective on the very day of the plebiscite, I am withdrawing my amendment on the assumption that any of the following bodies the Office of the President or the COMELEC will make the formal announcement of the results. MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the committee. MR. MAAMBONG. The committee will read again the formulation indicated in the original committee report as Section 12. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and shall supersede all previous Constitutions. We ask for a vote, Madam President. VOTING THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members raised their hands.)

As many as are against, please raise their hand. (No Member raised his hand.) The results show 35 votes in favor and none against; Section 12 is approved. 2 The Court next holds as a consequence of its declaration at bar that the Constitution took effect on the date of its ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional Constitution promulgated on March 25, 1986 must be deemed to have been superseded by the 1987 Constitution on the same date February 2, 1987 and (2) by and after said date, February 2, 1987, absent any saying clause to the contrary in the Transitory Article of the Constitution, respondent OIC Governor could no longer exercise the power to replace petitioners in their positions as Barangay Captain and Councilmen. Hence, the attempted replacement of petitioners by respondent OIC Governor's designation on February 8, 1987 of their successors could no longer produce any legal force and effect. While the Provisional Constitution provided for a one-year period expiring on March 25, 1987 within which the power of replacement could be exercised, this period was shortened by the ratification and effectivity on February 2, 1987 of the Constitution. Had the intention of the framers of the Constitution been otherwise, they would have so provided for in the Transitory Article, as indeed they provided for multifarious transitory provisions in twenty six sections of Article XVIII, e.g. extension of the six-year term of the incumbent President and Vice-President to noon of June 30, 1992 for purposes of synchronization of elections, the continued exercise of legislative powers by the incumbent President until the convening of the first Congress, etc. A final note of clarification, as to the statement in the dissent that "the appointments of some seven Court of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported extended (by) the President on February 2, 1987 . . . could be open to serious questions," in view of the provisions of Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement thereof by the Judicial and Bar Council created under the Constitution. It should be stated for the record that the reported date of the appointments, February 2, 1987, is incorrect. The official records of the Court show that the appointments of the seven Court of Appeals Justices were transmitted to this Court on February 1, 1987 and they were all appointed on or before January 31, 1987. 3(Similarly, the records of the Department of Justice likewise show that the appointment papers of the last batch of provincial and city fiscals signed by the President in completion of the reorganization of the prosecution service were made on January 31, 1987 and transmitted to the Department on February 1, 1987.) It is also a matter of record that since February 2, 1987, no appointments to the Judiciary have been extended by the President, pending the constitution of the Judicial and Bar Council, indicating that the Chief Executive has likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly declared by the Court. CRUZ, J., concurring. In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect than the tones of thunder. She has written another persuasive opinion, and I am delighted to concur. I note that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases, where I submitted that the local OICs may no longer be summarily replaced, having acquired security of tenure under the new Constitution. Our difference is that whereas I would make that right commence on February 25, 1987, after the deadline set by the Freedom Constitution, Justice Herrera would opt for February 2, 1987, when the new Constitution was ratified. I yield to that better view and agree with her ponencia completely. SARMIENTO, J., Dissenting. With due respect to the majority I register this dissent. While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution with respect to the tenure of government functionaries, as follows:

SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such appointment is made within a period of one year from February 25, 1986. was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that cut-off period began on February 2, 1987, the date of the plebiscite held to approve the new Charter. To my mind the 1987 constitution took effect on February 11, 1987, the date the same was proclaimed ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not February 2, 1987, plebiscite day. I rely, first and foremost, on the language of the 1987 Charter itself, thus: Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions. It is my reading of this provision that the Constitution takes effect on the date its ratification shall have been ascertained, and not at the time the people cast their votes to approve or reject it. For it cannot be logically said that Constitution was ratified during such a plebiscite, when the will of the people as of that time, had not, and could not have been, vet determined. Other than that, pragmatic considerations compel me to take the view. I have no doubt that between February 2, and February 11, 1987 the government performed acts that would have been valid under the Provisional Constitution but would otherwise have been void under the 1987 Charter. I recall, in particular, the appointments of some seven Court of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended on February 2, 1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows: xxx xxx xxx Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex oficio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. xxx xxx xxx 2Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy, Such appointments need no confirmation. xxx xxx xxx such appointments could be open to serious questions. Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the amendments thereto from the date it is proclaimed ratified. In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17, 1973, the date Proclamation No. 1102, "Announcing the Ratification by the Filipino People of the Constitution Proposed by the 1971 Constitutional Convention," was issued, although Mr. Justice, now Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our decision in Javellana v. Executive Secretary, 3 became final. And this was so notwithstanding Section 16, Article XVII, of the 1973 Constitution, thus: SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and, except as herein provided, shall supersede the Constitution of nineteen-hundred and thirty- five and all amendments thereto.

On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that. By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this certificate as duly ratified by the Filipino people in the referendum plebiscite held Oct. 16-17, 1976 and are therefore effective and in full force and effect as of this date. It shall be noted that under Amendment No. 9 of the said 1976 amendments. These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified by a majority of the votes cast in the referendum-plebiscite. On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the Ratification by the Filipino People of the Amendments of Section 7, Article X of the Constitution" (lengthening the terms of office of judges and justices). The Proclamation provides: [t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the plebiscite held, together with the election for local officials, on January 30, 1980, and that said amendment is hereby declared to take effect immediately. It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment shall take effect on the date the incumbent President/Prime Minister shall proclaim its ratification. On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April 7, 1981 of the Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full Force and Effect." The Proclamation, in declaring the said amendments duly approved, further declared them "[e]ffective and in full force and in effect as of the date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I and 2 of the Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly, which parented these amendments, the same: ... shall become valid as part of the Constitution when approved by a majority of the votes cast in a plebiscite to be held pursuant to Section 2, Article XVI of the Constitution. On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for Ratification or Rejection, the Amendment to the Constitution of the Philippines, Proposed by the Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two, and One, and to Appropriate Funds Therefore," provides, as follows: SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the plebiscite using the certificates submitted to it, duly authenticated and certified by the Board of Canvassers of each province or city. We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January 27, 1984, of the Amendments to the Constitution Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments: ....are therefore effective and in full force and effect as of the date of this Proclamation. It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas Blg. 643), which states, that: The proposed amendments shall take effect on the date the President of the Philippines shall proclaim that they have been ratified by a majority of the votes cast in the plebiscite held for the purpose, but not later than three months from the approval of the amendments. albeit Resolutions Nos. 105, 111, and 113 provide, that:

These amendments shall be valid as a part of the Constitution when approved by a majority of the votes cast in an election/plebiscite at which it is submitted to the people for their ratification pursuant to Section 2 of Article XVI of the Constitution, as amended. That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at the time of the plebiscite is a view that is not peculiar to the Marcos era. The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no mention of a retroactive application. Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11, 1987, at Malacanang Palace: ... that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission of 1986, including the Ordinance appended thereto, has been duly ratified by the Filipino people and is therefore effective and in full force and effect. 4 the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other time. I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new Charter was ratified on February 2, 1987, does not in any way weaken this dissent. As I stated, the remark was said in passing-we did not resolve the case on account of a categorical holding that the 1987 Constitution came to life on February 2, 1987. In any event, if we did, I now call for its re-examination. I am therefore of the opinion, consistent with the views expressed above, that the challenged dismissals done on February 8, 1987 were valid, the 1987 Constitution not being then as yet in force.

G.R. No. L-9959 December 13, 1916 THE GOVERNMENT OF THE PHILIPPINE ISLANDS, represented by the Treasurer of the Philippine Islands, plaintiff-appellee, vs. EL MONTE DE PIEDAD Y CAJA DE AHORRAS DE MANILA, defendant-appellant. William A. Kincaid and Thomas L. Hartigan for appellant. Attorney-General Avancea for appellee. TRENT, J.: About $400,000, were subscribed and paid into the treasury of the Philippine Islands by the inhabitants of the Spanish Dominions of the relief of those damaged by the earthquake which took place in the Philippine Islands on June 3, 1863. Subsequent thereto and on October 6 of that year, a central relief board was appointed, by authority of the King of Spain, to distribute the moneys thus voluntarily contributed. After a thorough investigation and consideration, the relief board allotted $365,703.50 to the various sufferers named in its resolution, dated September 22, 1866, and, by order of the Governor-General of the Philippine Islands, a list of these allotments, together with the names of those entitled thereto, was published in the Official Gazette of Manila dated April 7, 1870. There was later distributed, inaccordance with the above-mentioned allotments, the sum of $30,299.65, leaving a balance of S365,403.85 for distribution. Upon the petition of the governing body of the Monte de Piedad, dated February 1, 1833, the Philippine Government, by order dated the 1st of that month, directed its treasurer to turn over to the Monte de Piedad the sum of $80,000 of the relief fund in installments of $20,000 each. These amounts were received on the following dates: February 15, March 12, April 14, and June 2, 1883, and are still in the possession of the Monte de Piedad. On account of various petitions of the persons, and heirs of others to whom the above-mentioned allotments were made by the central relief board for the payment of those amounts, the Philippine Islands to bring suit against the Monte de Piedad a recover, "through the Attorney-General and in representation of the Government of the Philippine Islands," the $80.000, together with interest, for the benefit of those persons or their heirs appearing in the list of names published in the Official Gazette instituted on May 3, 1912, by the Government of the Philippine Islands, represented by the Insular Treasurer, and after due trial, judgment was entered in favor of the plaintiff for the sum of $80,000 gold or its equivalent in Philippine currency, together with legal interest from February 28, 1912, and the costs of the cause. The defendant appealed and makes the following assignment of errors: 1. The court erred in not finding that the eighty thousand dollars ($80,000), give to the Monte de Piedad y Caja de Ahorros, were so given as a donation subject to one condition, to wit: the return of such sum of money to the Spanish Government of these Islands, within eight days following the day when claimed, in case the Supreme Government of Spain should not approve the action taken by the former government. 2. The court erred in not having decreed that this donation had been cleared; said eighty thousand dollars ($80,000) being at present the exclusive property of the appellant the Monte de Piedad y Caja de Ahorros. 3. That the court erred in stating that the Government of the Philippine Islands has subrogated the Spanish Government in its rights, as regards an important sum of money resulting from a national subscription opened by reason of the earthquake of June 3, 1863, in these Island. 4. That the court erred in not declaring that Act Numbered 2109, passed by the Philippine Legislature on January 30, 1912, is unconstitutional. 5. That the court erred in holding in its decision that there is no title for the prescription of this suit brought by the Insular Government against the Monte de

Piedad y Caja de Ahorros for the reimbursement of the eighty thousand dollars ($80,000) given to it by the late Spanish Government of these Islands. 6. That the court erred in sentencing the Monte de Piedad y Caja de Ahorros to reimburse the Philippine Government in the sum of eighty thousand dollars ($80,000) gold coin, or the equivalent thereof in the present legal tender currency in circulation, with legal interest thereon from February 28th, 1912, and the costs of this suit. In the royal order of June 29, 1879, the Governor-General of the Philippine Islands was directed to inform the home Government in what manner the indemnity might be paid to which, by virtue of the resolutions of the relief board, the persons who suffered damage by the earthquake might be entitled, in order to perform the sacred obligation which the Government of Spain had assumed toward the donors. The next pertinent document in order is the defendant's petition, dated February 1, 1883, addressed to the Governor-General of the Philippine Islands, which reads: Board of Directors of the Monte de Piedad of Manila Presidencia. Excellency: The Board of Directors of the Monte de Piedad y Caja de Ahorros of Manila informs your Excellency, First: That the funds which it has up to the present been able to dispose of have been exhausted in loans on jewelry, and there only remains the sum of one thousand and odd pesos, which will be expended between to-day and day after tomorrow. Second: That, to maintain the credit of the establishment, which would be greatly injured were its operations suspended, it is necessary to procure money. Third: That your Excellency has proposed to His Majesty's Government to apply to the funds of theMonte de Piedad a part of the funds held in the treasury derived form the national subscription for the relief of the distress caused by the earthquake of 1863. Fourth: That in the public treasury there is held at the disposal of the central earthquake relief board over $1090,000 which was deposited in the said treasury by order of your general Government, it having been transferred thereto from the Spanish-Filipino Bank where it had been held. fifth: That in the straightened circumstances of the moment, your Excellency can, to avert impending disaster to the Monte de Piedad, order that, out of that sum of one hundred thousand pesos held in the Treasury at the disposal of the central relief board, there be transferred to the Monte de Piedad the sum of $80,000, there to be held under the same conditions as at present in the Treasury, to wit, at the disposal of the Relief Board. Sixth: That should this transfer not be approved for any reason, either because of the failure of His Majesty's Government to approve the proposal made by your Excellency relative to the application to the needs of the Monte de Piedad of a pat of the subscription intended to believe the distress caused by the earthquake of 1863, or for any other reason, the board of directors of the Monte de Piedadobligates itself to return any sums which it may have received on account of the eighty thousand pesos, or the whole thereof, should it have received the same, by securing a loan from whichever bank or banks may lend it the money at the cheapest rate upon the security of pawned jewelry. This is an urgent measure to save the Monte de Piedad in the present crisis and the board of directors trusts to secure your Excellency's entire cooperation and that of the other officials who have take part in the transaction. The Governor-General's resolution on the foregoing petition is as follows: GENERAL GOVERNMENT OF THE PHILIPPINES. MANILA, February 1, 1883. In view of the foregoing petition addressed to me by the board of directors of the Monte de Piedad of this city, in which it is stated that the funds which the said institution counted upon are nearly all invested in loans on jewelry and that the small account remaining will scarcely suffice to cover the transactions of the next two days, for which reason it entreats the general Government that, in pursuance

of its telegraphic advice to H. M. Government, the latter direct that there be turned over to said Monte de Piedad $80,000 out of the funds in the public treasury obtained from the national subscription for the relief of the distress caused by the earthquake of 1863, said board obligating itself to return this sum should H. M. Government, for any reason, not approve the said proposal, and for this purpose it will procure funds by means of loans raised on pawned jewelry; it stated further that if the aid so solicited is not furnished, it will be compelled to suspend operations, which would seriously injure the credit of so beneficient an institution; and in view of the report upon the matter made by the Intendencia General de Hacienda; and considering the fact that the public treasury has on hand a much greater sum from the source mentioned than that solicited; and considering that this general Government has submitted for the determination of H. M. Government that the balance which, after strictly applying the proceeds obtained from the subscription referred to, may remain as a surplus should be delivered to the Monte de Piedad, either as a donation, or as a loan upon the security of the credit of the institution, believing that in so doing the wishes of the donors would be faithfully interpreted inasmuch as those wishes were no other than to relieve distress, an act of charity which is exercised in the highest degree by the Monte de Piedad, for it liberates needy person from the pernicious effects of usury; and Considering that the lofty purposes that brought about the creation of the pious institution referred to would be frustrated, and that the great and laudable work of its establishment, and that the great and laudable and valuable if the aid it urgently seeks is not granted, since the suspension of its operations would seriously and regrettably damage the ever-growing credit of the Monte de Piedad; and Considering that if such a thing would at any time cause deep distress in the public mind, it might be said that at the present juncture it would assume the nature of a disturbance of public order because of the extreme poverty of the poorer classes resulting from the late calamities, and because it is the only institution which can mitigate the effects of such poverty; and Considering that no reasonable objection can be made to granting the request herein contained, for the funds in question are sufficiently secured in the unlikely event that H> M. Government does not approve the recommendation mentioned, this general Government, in the exercise of the extraordinary powers conferred upon it and in conformity with the report of the Intendencia de Hacienda, resolves as follows: First. Authority is hereby given to deliver to the Monte de Piedad, out of the sum held in the public treasury of these Islands obtained from the national subscription opened by reason of the earthquakes of 1863, amounts up to the sum $80,000, as its needs may require, in installments of $20,000. Second. The board of directors of the Monte de Piedad is solemnly bound to return, within eight days after demand, the sums it may have so received, if H. M. Government does not approve this resolution. Third. The Intendencia General de Hacienda shall forthwith, and in preference to all other work, proceed to prepare the necessary papers so that with the least possible delay the payment referred to may be made and the danger that menaces the Monte de Piedad of having to suspend its operations may be averted. H. M. Government shall be advised hereof.lawphi1.net (Signed) P. DE RIVERA. By the royal order of December 3, 1892, the Governor-General of the Philippine Islands was ordered to "inform this ministerio what is the total sum available at the present time, taking into consideration the sums delivered to the Monte de Piedad pursuant to the decree issued by your general Government on February 1, 1883," and after the rights of the claimants, whose names were published in the Official Gazette of Manila on April 7, 1870, and their

heirs had been established, as therein provided, as such persons "have an unquestionable right to be paid the donations assigned to them therein, your general Government shall convoke them all within a reasonable period and shall pay their shares to such as shall identify themselves, without regard to their financial status," and finally "that when all the proceedings and operations herein mentioned have been concluded and the Government can consider itself free from all kinds of claims on the part of those interested in the distribution of the funds deposited in the vaults of the Treasury, such action may be taken as the circumstances shall require, after first consulting the relief board and your general Government and taking account of what sums have been delivered to the Monte de Piedad and those that were expended in 1888 to relieve public calamities," and "in order that all the points in connection with the proceedings had as a result of the earthquake be clearly understood, it is indispensable that the offices hereinbefore mentioned comply with the provisions contained in paragraphs 2 and 3 of the royal order of June 25, 1879." On receipt of this Finance order by the Governor-General, the Department of Finance was called upon for a report in reference to the $80,000 turned over to the defendant, and that Department's report to the Governor-General dated June 28, 1893, reads: Intendencia General de Hacienda de Filipinas (General Treasury of the Philippines) Excellency. By Royal Order No. 1044 of December 3, last, it is provided that the persons who sustained losses by the earthquakes that occurred in your capital in the year 1863 shall be paid the amounts allotted to them out of the sums sent from Spain for this purpose, with observance of the rules specified in the said royal order, one of them being that before making the payment to the interested parties the assets shall be reduced to money. These assets, during the long period of time that has elapsed since they were turned over to the Treasury of the Philippine Islands, were used to cover the general needs of the appropriation, a part besides being invested in the relief of charitable institutions and another part to meet pressing needs occasioned by public calamities. On January 30, last, your Excellency was please to order the fulfillment of that sovereign mandate and referred the same to this Intendencia for its information and the purposes desired (that is, for compliance with its directions and, as aforesaid, one of these being the liquidation, recovery, and deposit with the Treasury of the sums paid out of that fund and which were expended in a different way from that intended by the donors) and this Intendencia believed the moment had arrived to claim from the board of directors of the Monte de Piedad y Caja de Ahorros the sum of 80,000 pesos which, by decree of your general Government of the date of February 1, 1883, was loaned to it out of the said funds, the (Monte de Piedad) obligating itself to return the same within the period of eight days if H. M. Government did not approve the delivery. On this Intendencia's demanding from the Monte de Piedad the eighty thousand pesos, thus complying with the provisions of the Royal Order, it was to be supposed that no objection to its return would be made by the Monte de Piedad for, when it received the loan, it formally engaged itself to return it; and, besides, it was indisputable that the moment to do so had arrived, inasmuch as H. M. Government, in ordering that the assets of the earthquake relief fund should he collected, makes express mention of the 80,000 pesos loaned to the Monte de Piedad, without doubt considering as sufficient the period of ten years during which it has been using this large sum which lawfully belongs to their persons. This Intendencia also supposed that the Monte de Piedad no longer needed the amount of that loan, inasmuch as, far from investing it in beneficient transactions, it had turned the whole amount into the voluntary deposit funds bearing 5 per cent interests, the result of this operation being that the debtor loaned to the creditor on interest what the former had gratuitously received. But the Monte de Piedad, instead of fulfilling the promise it made on receiving the sum, after repeated demands refused to return the money on the ground that only

your Excellency, and not the Intendencia (Treasury), is entitled to order the reimbursement, taking no account of the fact that this Intendencia was acting in the discharge of a sovereign command, the fulfillment of which your Excellency was pleased to order; and on the further ground that the sum of 80,000 pesos which it received from the fund intended for the earthquake victims was not received as a loan, but as a donation, this in the opinion of this Intendencia, erroneously interpreting both the last royal order which directed the apportionment of the amount of the subscription raised in the year 1863 and the superior decree which granted the loan, inasmuch as in this letter no donation is made to the Monte de Piedad of the 80,000 pesos, but simply a loan; besides, no donation whatever could be made of funds derived from a private subscription raised for a specific purpose, which funds are already distributed and the names of the beneficiaries have been published in the Gaceta, there being lacking only the mere material act of the delivery, which has been unduly delayed. In view of the unexpected reply made by the Monte de Piedad, and believing it useless to insist further in the matter of the claim for the aforementioned loan, or to argue in support thereof, this Intendencia believes the intervention of your Excellency necessary in this matter, if the royal Order No. 1044 of December 3, last, is to be complied with, and for this purpose I beg your Excellency kindly to order the Monte de Piedad to reimburse within the period of eight days the 80,000 which it owes, and that you give this Intendencia power to carry out the provisions of the said royal order. I must call to the attention of your Excellency that the said pious establishment, during the last few days and after demand was made upon it, has endorsed to the Spanish-Filipino Bank nearly the whole of the sum which it had on deposit in the general deposit funds. The record in the case under consideration fails to disclose any further definite action taken by either the Philippine Government or the Spanish Government in regard to the $80,000 turned over to the Monte de Piedad. In the defendant's general ledger the following entries appear: "Public Treasury: February 15, 1883, $20,000; March 12, 1883, $20,000; April 14, 1883, $20,000; June 2, 1883, $20,000, total $80,000." The book entry for this total is as follows: "To the public Treasury derived from the subscription for the earthquake of 1863, $80,000 received from general Treasury as a returnable loan, and without interest." The account was carried in this manner until January 1, 1899, when it was closed by transferring the amount to an account called "Sagrada Mitra," which latter account was a loan of $15,000 made to the defendant by the Archbishop of Manila, without interest, thereby placing the "Sagrada Mitra" account at $95,000 instead of $15,000. The above-mentioned journal entry for January 1, 1899, reads: "Sagrada Mitra and subscription, balance of these two account which on this date are united in accordance with an order of the Exmo. Sr. Presidente of the Council transmitted verbally to thePresidente Gerente of these institutions, $95,000." On March 16, 1902, the Philippine government called upon the defendant for information concerning the status of the $80,000 and received the following reply: MANILA, March 31, 1902. To the Attorney-General of the Department of Justice of the Philippine Islands. SIR: In reply to your courteous letter of the 16th inst., in which you request information from this office as to when and for what purpose the Spanish Government delivered to the Monte de Piedad eighty thousand pesos obtained from the subscription opened in connection with the earthquake of 1863, as well as any other information that might be useful for the report which your office is called upon to furnish, I must state to your department that the books kept in these Pious Institutions, and which have been consulted for the purpose, show that on the 15th of February, 1883, they received as a reimbursable loan and without

interest, twenty thousand pesos, which they deposited with their own funds. On the same account and on each of the dates of March 12, April 14 and June 2 of the said year, 1883, they also received and turned into their funds a like sum of twenty thousand pesos, making a total of eighty thousand pesos. (Signed) Emilio Moreta. I hereby certify that the foregoing is a literal copy of that found in the letter book No. 2 of those Pious Institutions. Manila, November 19, 1913 (Sgd.) EMILIO LAZCANOTEGUI, Secretary (Sgd.) O. K. EMILIO MORETA, Managing Director. The foregoing documentary evidence shows the nature of the transactions which took place between the Government of Spain and the Philippine Government on the one side and the Monte de Piedad on the other, concerning the $80,000. The Monte de Piedad, after setting forth in its petition to the Governor-General its financial condition and its absolute necessity for more working capital, asked that out of the sum of $100,000 held in the Treasury of the Philippine Islands, at the disposal of the central relief board, there be transferred to it the sum of $80,000 to be held under the same conditions, to wit, "at the disposal of the relief board." The Monte de Piedad agreed that if the transfer of these funds should not be approved by the Government of Spain, the same would be returned forthwith. It did not ask that the $80,000 be given to it as a donation. The Governor-General, after reciting the substance of the petition, stated that "this general Government has submitted for the determination of H. M. Government that the balance which, after strictly applying the proceeds obtained from the subscription referred to, may remain as a surplus, should be delivered to the Monte de Piedad, either as a donation, or as a loan upon the security of the credit of the institution," and "considering that no reasonable objection can be made to granting the request herein contained," directed the transfer of the $80,000 to be made with the understanding that "the Board of Directors of the Monte de Piedad is solemnly bound to return, within eight days after demand, the sums it may have so received, if H. M. Government does not approve this resolution." It will be noted that the first and only time the word "donation" was used in connection with the $80,000 appears in this resolution of the Governor-General. It may be inferred from the royal orders that the Madrid Government did tacitly approve of the transfer of the $80,000 to the Monte de Piedad as a loan without interest, but that Government certainly did not approve such transfer as a donation for the reason that the Governor-General was directed by the royal order of December 3, 1892, to inform the Madrid Government of the total available sum of the earthquake fund, "taking into consideration the sums delivered to the Monte de Piedad pursuant to the decree issued by your general Government on February 1, 1883." This language, nothing else appearing, might admit of the interpretation that the Madrid Government did not intend that the Governor-General of the Philippine Islands should include the $80,000 in the total available sum, but when considered in connection with the report of the Department of Finance there can be no doubt that it was so intended. That report refers expressly to the royal order of December 3d, and sets forth in detail the action taken in order to secure the return of the $80,000. The Department of Finance, acting under the orders of the Governor-General, understood that the $80,000 was transferred to the Monte de Piedad well knew that it received this sum as a loan interest." The amount was thus carried in its books until January, 1899, when it was transferred to the account of the "Sagrada Mitra" and was thereafter known as the "Sagrada Mitra and subscription account." Furthermore, the Monte de Piedad recognized and considered as late as March 31, 1902, that it received the $80,000 "as a returnable loan, and without interest." Therefore, there cannot be the slightest doubt the fact that the Monte de Piedad received the $80,000 as a mere loan or deposit and not as a donation. Consequently, the first alleged error is entirely without foundation.

Counsel for the defendant, in support of their third assignment of error, say in their principal brief that: The Spanish nation was professedly Roman Catholic and its King enjoyed the distinction of being deputy ex officio of the Holy See and Apostolic Vicar-General of the Indies, and as such it was his duty to protect all pious works and charitable institutions in his kingdoms, especially those of the Indies; among the latter was the Monte de Piedad of the Philippines, of which said King and his deputy the Governor-General of the Philippines, as royal vice-patron, were, in a special and peculiar manner, the protectors; the latter, as a result of the cession of the Philippine Islands, Implicitly renounced this high office and tacitly returned it to the Holy See, now represented by the Archbishop of Manila; the national subscription in question was a kind of foundation or pious work, for a charitable purpose in these Islands; and the entire subscription not being needed for its original purpose, the royal vice-patron, with the consent of the King, gave the surplus thereof to an analogous purpose; the fulfillment of all these things involved, in the majority, if not in all cases, faithful compliance with the duty imposed upon him by the Holy See, when it conferred upon him the royal patronage of the Indies, a thing that touched him very closely in his conscience and religion; the cessionary Government though Christian, was not Roman Catholic and prided itself on its policy of non-interference in religious matters, and inveterately maintained a complete separation between the ecclesiastical and civil powers. In view of these circumstances it must be quite clear that, even without the express provisions of the Treaty of Paris, which apparently expressly exclude such an idea, it did not befit the honor of either of the contracting parties to subrogate to the American Government in lieu of the Spanish Government anything respecting the disposition of the funds delivered by the latter to the Monte de Piedad. The same reasons that induced the Spanish Government to take over such things would result in great inconvenience to the American Government in attempting to do so. The question was such a delicate one, for the reason that it affected the conscience, deeply religious, of the King of Spain, that it cannot be believed that it was ever his intention to confide the exercise thereof to a Government like the American. (U. S. vs. Arredondo, 6 Pet. [U. S.], 711.) It is thus seen that the American Government did not subrogate the Spanish Government or rather, the King of Spain, in this regard; and as the condition annexed to the donation was lawful and possible of fulfillment at the time the contract was made, but became impossible of fulfillment by the cession made by the Spanish Government in these Islands, compliance therewith is excused and the contract has been cleared thereof. The contention of counsel, as thus stated, in untenable for two reason, (1) because such contention is based upon the erroneous theory that the sum in question was a donation to the Monte de Piedad and not a loan, and (2) because the charity founded by the donations for the earthquake sufferers is not and never was intended to be an ecclesiastical pious work. The first proposition has already been decided adversely to the defendant's contention. As to the second, the record shows clearly that the fund was given by the donors for a specific and definite purpose the relief of the earthquake sufferers and for no other purpose. The money was turned over to the Spanish Government to be devoted to that purpose. The Spanish Government remitted the money to the Philippine Government to be distributed among the suffers. All officials, including the King of Spain and the Governor-General of the Philippine Islands, who took part in the disposal of the fund, acted in their purely civil, official capacity, and the fact that they might have belonged to a certain church had nothing to do with their acts in this matter. The church, as such, had nothing to do with the fund in any way whatever until the $80,000 reached the coffers of the Monte de Piedad (an

institution under the control of the church) as a loan or deposit. If the charity in question had been founded as an ecclesiastical pious work, the King of Spain and the Governor-General, in their capacities as vicar-general of the Indies and as royal vice-patron, respectively, would have disposed of the fund as such and not in their civil capacities, and such functions could not have been transferred to the present Philippine Government, because the right to so act would have arisen out of the special agreement between the Government of Spain and the Holy See, based on the union of the church and state which was completely separated with the change of sovereignty. And in their supplemental brief counsel say: By the conceded facts the money in question is part of a charitable subscription. The donors were persons in Spain, the trustee was the Spanish Government, the donees, the cestuis que trustent, were certain persons in the Philippine Islands. The whole matter is one of trusteeship. This is undisputed and indisputable. It follows that the Spanish Government at no time was the owner of the fund. Not being the owner of the fund it could not transfer the ownership. Whether or not it could transfer its trusteeship it certainly never has expressly done so and the general terms of property transfer in the Treaty of Paris are wholly insufficient for such a purpose even could Spain have transferred its trusteeship without the consent of the donors and even could the United States, as a Government, have accepted such a trust under any power granted to it by the thirteen original States in the Constitution, which is more than doubtful. It follows further that this Government is not a proper party to the action. The only persons who could claim to be damaged by this payment to the Monte, if it was unlawful, are the donors or the cestuis que trustent, and this Government is neither. If "the whole matter is one of trusteeship," and it being true that the Spanish Government could not, as counsel say, transfer the ownership of the fund to the Monte de Piedad, the question arises, who may sue to recover this loan? It needs no argument to show that the Spanish or Philippine Government, as trustee, could maintain an action for this purpose had there been no change of sovereignty and if the right of action has not prescribed. But those governments were something more than mere common law trustees of the fund. In order to determine their exact status with reference to this fund, it is necessary to examine the law in force at the time there transactions took place, which are the law of June 20, 1894, the royal decree of April 27. 1875, and the instructions promulgated on the latter date. These legal provisions were applicable to the Philippine Islands (Benedicto vs. De la Rama, 3 Phil. Rep., 34) The funds collected as a result of the national subscription opened in Spain by royal order of the Spanish Government and which were remitted to the Philippine Government to be distributed among the earthquake sufferers by the Central Relief Board constituted, under article 1 of the law of June 20, 1894, and article 2 of the instructions of April 27, 1875, a special charity of a temporary nature as distinguished from a permanent public charitable institution. As the Spanish Government initiated the creation of the fund and as the donors turned their contributions over to that Government, it became the duty of the latter, under article 7 of the instructions, to exercise supervision and control over the moneys thus collected to the end that the will of the donors should be carried out. The relief board had no power whatever to dispose of the funds confided to its charge for other purposes than to distribute them among the sufferers, because paragraph 3 of article 11 of the instructions conferred the power upon the secretary of the interior of Spain, and no other, to dispose of the surplus funds, should there be any, by assigning them to some other charitable purpose or institution. The secretary could not dispose of any of the funds in this manner so long as they were necessary for the specific purpose for which they were contributed. The secretary had the power, under the law above mentioned to appoint and totally or partially change the personnel of the relief board and to authorize the board to defend the rights of the charity in the courts. The authority of the board consisted only in carrying out the will of the donors as

directed by the Government whose duty it was to watch over the acts of the board and to see that the funds were applied to the purposes for which they were contributed .The secretary of the interior, as the representative of His Majesty's Government, exercised these powers and duties through the Governor-General of the Philippine Islands. The Governments of Spain and of the Philippine Islands in complying with their duties conferred upon them by law, acted in their governmental capacities in attempting to carry out the intention of the contributors. It will this be seen that those governments were something more, as we have said, than mere trustees of the fund. It is further contended that the obligation on the part of the Monte de Piedad to return the $80,000 to the Government, even considering it a loan, was wiped out on the change of sovereignty, or inn other words, the present Philippine Government cannot maintain this action for that reason. This contention, if true, "must result from settled principles of rigid law," as it cannot rest upon any title to the fund in the Monte de Piedad acquired prior to such change. While the obligation to return the $80,000 to the Spanish Government was still pending, war between the United States and Spain ensued. Under the Treaty of Paris of December 10, 1898, the Archipelago, known as the Philippine Islands, was ceded to the United States, the latter agreeing to pay Spain the sum of $20,000,000. Under the first paragraph of the eighth article, Spain relinquished to the United States "all buildings, wharves, barracks, forts, structures, public highways, and other immovable property which, in conformity with law, belonged to the public domain, and as such belonged to the crown of Spain." As the $80,000 were not included therein, it is said that the right to recover this amount did not, therefore, pass to the present sovereign. This, in our opinion, does not follow as a necessary consequence, as the right to recover does not rest upon the proposition that the $80,000 must be "other immovable property" mentioned in article 8 of the treaty, but upon contractual obligations incurred before the Philippine Islands were ceded to the United States. We will not inquire what effect his cession had upon the law of June 20, 1849, the royal decree of April 27, 1875, and the instructions promulgated on the latter date. In Vilas vs. Manila (220 U. S., 345), the court said: That there is a total abrogation of the former political relations of the inhabitants of the ceded region is obvious. That all laws theretofore in force which are in conflict with the political character, constitution, or institutions of the substituted sovereign, lose their force, is also plain. (Alvarez y Sanchez vs. United States, 216 U. S., 167.) But it is equally settled in the same public law that the great body of municipal law which regulates private and domestic rights continues in force until abrogated or changed by the new ruler. If the above-mentioned legal provisions are in conflict with the political character, constitution or institutions of the new sovereign, they became inoperative or lost their force upon the cession of the Philippine Islands to the United States, but if they are among "that great body of municipal law which regulates private and domestic rights," they continued in force and are still in force unless they have been repealed by the present Government. That they fall within the latter class is clear from their very nature and character. They are laws which are not political in any sense of the word. They conferred upon the Spanish Government the right and duty to supervise, regulate, and to some extent control charities and charitable institutions. The present sovereign, in exempting "provident institutions, savings banks, etc.," all of which are in the nature of charitable institutions, from taxation, placed such institutions, in so far as the investment in securities are concerned, under the general supervision of the Insular Treasurer (paragraph 4 of section 111 of Act No. 1189; see also Act No. 701). Furthermore, upon the cession of the Philippine Islands the prerogatives of he crown of Spain devolved upon he United States. In Magill vs. Brown (16 Fed. Cas., 408), quoted with approval in Mormon Charch vs. United States (136 U. S.,1, 57), the court said: The Revolution devolved on the State all the transcendent power of Parliament, and the prerogative of the crown, and gave their Acts the same force and effect.

In Fontain vs. Ravenel (17 Hw., 369, 384), Mr. Justice McLean, delivering the opinion of the court in a charity case, said: When this country achieved its independence, the prerogatives of the crown devolved upon the people of the States. And this power still remains with them except so fact as they have delegated a portion of it to the Federal Government. The sovereign will is made known to us by legislative enactment. The State as a sovereign, is the parens patriae. Chancelor Kent says: In this country, the legislature or government of the State, as parens patriae, has the right to enforce all charities of public nature, by virtue of its general superintending authority over the public interests, where no other person is entrusted with it. (4 Kent Com., 508, note.) The Supreme Court of the United States in Mormon Church vs. United States, supra, after approving also the last quotations, said: This prerogative of parens patriae is inherent in the supreme power of every State, whether that power is lodged in a royal person or in the legislature, and has no affinity to those arbitrary powers which are sometimes exerted by irresponsible monarchs to the great detriment of the people and the destruction of their liberties. On the contrary, it is a most beneficient functions, and often necessary to be exercised in the interest of humanity, and for the prevention of injury to those who cannot protect themselves. The court in the same case, after quoting from Sohier vs. Mass. General Hospital (3 Cush., 483, 497), wherein the latter court held that it is deemed indispensible that there should be a power in the legislature to authorize the same of the estates of in facts, idiots, insane persons, and persons not known, or not in being, who cannot act for themselves, said: These remarks in reference to in facts, insane persons and person not known, or not in being, apply to the beneficiaries of charities, who are often in capable of vindicating their rights, and justly look for protection to the sovereign authority, acting as parens patriae. They show that this beneficient functions has not ceased t exist under the change of government from a monarchy to a republic; but that it now resides in the legislative department, ready to be called into exercise whenever required for the purposes of justice and right, and is a clearly capable of being exercised in cases of charities as in any other cases whatever. In People vs. Cogswell (113 Cal. 129, 130), it was urged that the plaintiff was not the real party in interest; that the Attorney-General had no power to institute the action; and that there must be an allegation and proof of a distinct right of the people as a whole, as distinguished from the rights of individuals, before an action could be brought by the Attorney-General in the name of the people. The court, in overruling these contentions, held that it was not only the right but the duty of the Attorney-General to prosecute the action, which related to charities, and approved the following quotation from AttorneyGeneral vs. Compton (1 Younge & C. C., 417): Where property affected by a trust for public purposes is in the hands of those who hold it devoted to that trust, it is the privilege of the public that the crown should be entitled to intervene by its officers for the purpose of asserting, on behalf on the public generally, the public interest and the public right, which, probably, no individual could be found effectually to assert, even if the interest were such as to allow it. (2 Knet's Commentaries, 10th ed., 359; Lewin on Trusts, sec. 732.) It is further urged, as above indicated, that "the only persons who could claim to be damaged by this payment to the Monte, if it was unlawful, are the donors or the cestuis que trustent, and this Government is neither. Consequently, the plaintiff is not the proper party to bring the action." The earthquake fund was the result or the accumulation of a great number of small contributions. The names of the contributors do not appear in the record. Their whereabouts are unknown. They parted with the title to their respective contributions. The

beneficiaries, consisting of the original sufferers and their heirs, could have been ascertained. They are quite numerous also. And no doubt a large number of the original sufferers have died, leaving various heirs. It would be impracticable for them to institute an action or actions either individually or collectively to recover the $80,000. The only course that can be satisfactorily pursued is for the Government to again assume control of the fund and devote it to the object for which it was originally destined. The impracticability of pursuing a different course, however, is not the true ground upon which the right of the Government to maintain the action rests. The true ground is that the money being given to a charity became, in a measure, public property, only applicable, it is true, to the specific purposes to which it was intended to be devoted, but within those limits consecrated to the public use, and became part of the public resources for promoting the happiness and welfare of the Philippine Government. (Mormon Church vs. U. S., supra.) To deny the Government's right to maintain this action would be contrary to sound public policy, as tending to discourage the prompt exercise of similar acts of humanity and Christian benevolence in like instances in the future. As to the question raised in the fourth assignment of error relating to the constitutionality of Act No. 2109, little need be said for the reason that we have just held that the present Philippine Government is the proper party to the action. The Act is only a manifestation on the part of the Philippine Government to exercise the power or right which it undoubtedly had. The Act is not, as contended by counsel, in conflict with the fifth section of the Act of Congress of July 1, 1902, because it does not take property without due process of law. In fact, the defendant is not the owner of the $80,000, but holds it as a loan subject to the disposal of the central relief board. Therefor, there can be nothing in the Act which transcends the power of the Philippine Legislature. In Vilas vs. Manila, supra, the plaintiff was a creditor of the city of Manila as it existed before the cession of the Philippine Islands to the United States by the Treaty of Paris of December 10, 1898. The action was brought upon the theory that the city, under its present charter from the Government of the Philippine Islands, was the same juristic person, and liable upon the obligations of the old city. This court held that the present municipality is a totally different corporate entity and in no way liable for the debts of the Spanish municipality. The Supreme Court of the United States, in reversing this judgment and in holding the city liable for the old debt, said: The juristic identity of the corporation has been in no wise affected, and, in law, the present city is, in every legal sense, the successor of the old. As such it is entitled to the property and property rights of the predecessor corporation, and is, in law, subject to all of its liabilities. In support of the fifth assignment of error counsel for the defendant argue that as the Monte de Piedad declined to return the $80,000 when ordered to do so by the Department of Finance in June, 1893, the plaintiff's right of action had prescribed at the time this suit was instituted on May 3, 1912, citing and relying upon article 1961, 1964 and 1969 of the Civil Code. While on the other hand, the Attorney-General contends that the right of action had not prescribed (a) because the defense of prescription cannot be set up against the Philippine Government, (b) because the right of action to recover a deposit or trust funds does not prescribe, and (c) even if the defense of prescription could be interposed against the Government and if the action had, in fact, prescribed, the same was revived by Act No. 2109. The material facts relating to this question are these: The Monte de Piedad received the $80,000 in 1883 "to be held under the same conditions as at present in the treasury, to wit, at the disposal of the relief board." In compliance with the provisions of the royal order of December 3, 1892, the Department of Finance called upon theMonte de Piedad in June, 1893, to return the $80,000. The Monte declined to comply with this order upon the ground that only the Governor-General of the Philippine Islands and not the Department of Finance had the right to order the reimbursement. The amount was carried on the books of the Monte

as a returnable loan until January 1, 1899, when it was transferred to the account of the "Sagrada Mitra." On March 31, 1902, the Monte, through its legal representative, stated in writing that the amount in question was received as a reimbursable loan, without interest. Act No. 2109 became effective January 30, 1912, and the action was instituted on May 3rd of that year. Counsel for the defendant treat the question of prescription as if the action was one between individuals or corporations wherein the plaintiff is seeking to recover an ordinary loan. Upon this theory June, 1893, cannot be taken as the date when the statute of limitations began to run, for the reason that the defendant acknowledged in writing on March 31, 1902, that the $80,000 were received as a loan, thereby in effect admitting that it still owed the amount. (Section 50, Code of Civil Procedure.) But if counsels' theory is the correct one the action may have prescribed on May 3, 1912, because more than ten full years had elapsed after March 31, 1902. (Sections 38 and 43, Code of Civil Procedure.) Is the Philippine Government bound by the statute of limitations? The Supreme Court of the United States in U. S.vs. Nashville, Chattanooga & St. Louis Railway Co. (118 U. S., 120, 125), said: It is settled beyond doubt or controversy upon the foundation of the great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided that the United States, asserting rights vested in it as a sovereign government, is not bound by any statute of limitations, unless Congress has clearly manifested its intention that it should be so bound. (Lindsey vs. Miller, 6 Pet. 666; U. S. vs.Knight, 14 Pet., 301; Gibson vs. Chouteau, 13 Wall., 92; U. S. vs. Thompson, 98 U. S., 486; Fink vs. O'Neil, 106 U. S., 272, 281.) In Gibson vs. Choteau, supra, the court said: It is a matter of common knowledge that statutes of limitation do not run against the State. That no laches can be imputed to the King, and that no time can bar his rights, was the maxim of the common laws, and was founded on the principle of public policy, that as he was occupied with the cares of government he ought not to suffer from the negligence of his officer and servants. The principle is applicable to all governments, which must necessarily act through numerous agents, and is essential to a preservation of the interests and property of the public. It is upon this principle that in this country the statutes of a State prescribing periods within which rights must be prosecuted are not held to embrace the State itself, unless it is expressly designated or the mischiefs to be remedied are of such a nature that it must necessarily be included. As legislation of a State can only apply to persons and thing over which the State has jurisdiction, the United States are also necessarily excluded from the operation of such statutes. In 25 Cyc., 1006, the rule, supported by numerous authorities, is stated as follows: In the absence of express statutory provision to the contrary, statute of limitations do not as a general rule run against the sovereign or government, whether state or federal. But the rule is otherwise where the mischiefs to be remedied are of such a nature that the state must necessarily be included, where the state goes into business in concert or in competition with her citizens, or where a party seeks to enforces his private rights by suit in the name of the state or government, so that the latter is only a nominal party. In the instant case the Philippine Government is not a mere nominal party because it, in bringing and prosecuting this action, is exercising its sovereign functions or powers and is seeking to carry out a trust developed upon it when the Philippine Islands were ceded to the United States. The United States having in 1852, purchased as trustee for the Chickasaw Indians under treaty with that tribe, certain bonds of the State of Tennessee, the right of action of the Government on the coupons of such bonds could not be barred by the statute of

limitations of Tennessee, either while it held them in trust for the Indians, or since it became the owner of such coupons. (U. S.vs. Nashville, etc., R. Co., supra.) So where lands are held in trust by the state and the beneficiaries have no right to sue, a statute does not run against the State's right of action for trespass on the trust lands. (Greene Tp. vs.Campbell, 16 Ohio St., 11; see also Atty.-Gen. vs. Midland R. Co., 3 Ont., 511 [following Reg. vs. Williams, 39 U. C. Q. B., 397].) These principles being based "upon the foundation of the great principle of public policy" are, in the very nature of things, applicable to the Philippine Government. Counsel in their argument in support of the sixth and last assignments of error do not question the amount of the judgment nor do they question the correctness of the judgment in so far as it allows interest, and directs its payment in gold coin or in the equivalent in Philippine currency. For the foregoing reasons the judgment appealed from is affirmed, with costs against the appellant. So ordered.

G.R. No. L-25843 July 25, 1974 MELCHORA CABANAS, plaintiff-appellee, vs. FRANCISCO PILAPIL, defendant-appellant. Seno, Mendoza & Associates for plaintiff-appellee. Emilio Benitez, Jr. for defendant-appellant. FERNANDO, J.:p The disputants in this appeal from a question of law from a lower court decision are the mother and the uncle of a minor beneficiary of the proceeds of an insurance policy issued on the life of her deceased father. The dispute centers as to who of them should be entitled to act as trustee thereof. The lower court applying the appropriate Civil Code provisions decided in favor of the mother, the plaintiff in this case. Defendant uncle appealed. As noted, the lower court acted the way it did following the specific mandate of the law. In addition, it must have taken into account the principle that in cases of this nature the welfare of the child is the paramount consideration. It is not an unreasonable assumption that between a mother and an uncle, the former is likely to lavish more care on and pay greater attention to her. This is all the more likely considering that the child is with the mother. There are no circumstances then that did militate against what conforms to the natural order of things, even if the language of the law were not as clear. It is not to be lost sight of either that the judiciary pursuant to its role as an agency of the State as parens patriae, with an even greater stress on family unity under the present Constitution, did weigh in the balance the opposing claims and did come to the conclusion that the welfare of the child called for the mother to be entrusted with such responsibility. We have to affirm. The appealed decision made clear: "There is no controversy as to the facts. " 1 The insured, Florentino Pilapil had a child, Millian Pilapil, with a married woman, the plaintiff, Melchora Cabanas. She was ten years old at the time the complaint was filed on October 10, 1964. The defendant, Francisco Pilapil, is the brother of the deceased. The deceased insured himself and instituted as beneficiary, his child, with his brother to act as trustee during her minority. Upon his death, the proceeds were paid to him. Hence this complaint by the mother, with whom the child is living, seeking the delivery of such sum. She filed the bond required by the Civil Code. Defendant would justify his claim to the retention of the amount in question by invoking the terms of the insurance policy. 2 After trial duly had, the lower court in a decision of May 10, 1965, rendered judgment ordering the defendant to deliver the proceeds of the policy in question to plaintiff. Its main reliance was on Articles 320 and 321 of the Civil Code. The former provides: "The father, or in his absence the mother, is the legal administrator of the property pertaining to the child under parental authority. If the property is worth more than two thousand pesos, the father or mother shall give a bond subject to the approval of the Court of First Instance." 3 The latter states: "The property which the unemancipated child has acquired or may acquire with his work or industry, or by any lucrative title, belongs to the child in ownership, and in usufruct to the father or mother under whom he is under parental authority and whose company he lives; ... 4 Conformity to such explicit codal norm is apparent in this portion of the appealed decision: "The insurance proceeds belong to the beneficiary. The beneficiary is a minor under the custody and parental authority of the plaintiff, her mother. The said minor lives with plaintiff or lives in the company of the plaintiff. The said minor acquired this property by lucrative title. Said property, therefore, belongs to the minor child in ownership, and in usufruct to the plaintiff, her mother. Since under our law the usufructuary is entitled to possession, the plaintiff is entitled to possession of the insurance proceeds. The trust, insofar as it is in conflict with the above quoted provision of law, is pro tanto null and void. In order, however, to protect the rights of the minor, Millian Pilapil, the plaintiff should file an

additional bond in the guardianship proceedings, Sp. Proc. No. 2418-R of this Court to raise her bond therein to the total amount of P5,000.00." 5 It is very clear, therefore, considering the above, that unless the applicability of the two cited Civil Code provisions can be disputed, the decision must stand. There is no ambiguity in the language employed. The words are rather clear. Their meaning is unequivocal. Time and time again, this Court has left no doubt that where codal or statutory norms are cast in categorical language, the task before it is not one of interpretation but of application. 6So it must be in this case. So it was in the appealed decision. 1. It would take more than just two paragraphs as found in the brief for the defendantappellant 7 to blunt the force of legal commands that speak so plainly and so unqualifiedly. Even if it were a question of policy, the conclusion will remain unaltered. What is paramount, as mentioned at the outset, is the welfare of the child. It is in consonance with such primordial end that Articles 320 and 321 have been worded. There is recognition in the law of the deep ties that bind parent and child. In the event that there is less than full measure of concern for the offspring, the protection is supplied by the bond required. With the added circumstance that the child stays with the mother, not the uncle, without any evidence of lack of maternal care, the decision arrived at can stand the test of the strictest scrutiny. It is further fortified by the assumption, both logical and natural, that infidelity to the trust imposed by the deceased is much less in the case of a mother than in the case of an uncle. Manresa, commenting on Article 159 of the Civil Code of Spain, the source of Article 320 of the Civil Code, was of that view: Thus "El derecho y la obligacion de administrar el Patrimonio de los hijos es una consecuencia natural y lgica de la patria potestad y de la presuncin de que nadie cuidar de los bienes de acqullos con mas cario y solicitude que los padres. En nuestro Derecho antiguo puede decirse que se hallaba reconocida de una manera indirecta aquelia doctrina, y asi se desprende de la sentencia del Tribunal Supremeo de 30 de diciembre de 1864, que se refiere a la ley 24, tit. XIII de la Partida 5. De la propia suerte aceptan en general dicho principio los Codigos extranjeros, con las limitaciones y requisitos de que trataremos mis adelante." 8 2. The appealed decision is supported by another cogent consideration. It is buttressed by its adherence to the concept that the judiciary, as an agency of the State acting as parens patriae, is called upon whenever a pending suit of litigation affects one who is a minor to accord priority to his best interest. It may happen, as it did occur here, that family relations may press their respective claims. It would be more in consonance not only with the natural order of things but the tradition of the country for a parent to be preferred. it could have been different if the conflict were between father and mother. Such is not the case at all. It is a mother asserting priority. Certainly the judiciary as the instrumentality of the State in its role of parens patriae, cannot remain insensible to the validity of her plea. In a recent case, 9 there is this quotation from an opinion of the United States Supreme Court: "This prerogative of parens patriae is inherent in the supreme power of every State, whether that power is lodged in a royal person or in the legislature, and has no affinity to those arbitrary powers which are sometimes exerted by irresponsible monarchs to the great detriment of the people and the destruction of their liberties." What is more, there is this constitutional provision vitalizing this concept. It reads: "The State shall strengthen the family as a basic social institution." 10 If, as the Constitution so wisely dictates, it is the family as a unit that has to be strengthened, it does not admit of doubt that even if a stronger case were presented for the uncle, still deference to a constitutional mandate would have led the lower court to decide as it did. WHEREFORE, the decision of May 10, 1965 is affirmed. Costs against defendant-appellant. Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur. Barredo, J., took no part. ANASTACIO LAUREL, petitioner, vs. ERIBERTO MISA, respondent.

Claro M. Recto and Querube C. Makalintal for petitioner. First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for respondent. RESOLUTION In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the Court, acting on the petition for habeas corpus filed by Anastacio Laurel and based on a theory that a Filipino citizen who adhered to the enemy giving the latter aid and comfort during the Japanese occupation cannot be prosecuted for the crime of treason defined and penalized by article 114 of the Revised Penal Code, for the reason (1) that the sovereignty of the legitimate government in the Philippines and, consequently, the correlative allegiance of Filipino citizens thereto was then suspended; and (2) that there was a change of sovereignty over these Islands upon the proclamation of the Philippine Republic: (1) Considering that a citizen or subject owes, not a qualified and temporary, but an absolute and permanent allegiance, which consists in the obligation of fidelity and obedience to his government or sovereign; and that this absolute and permanent allegiance should not be confused with the qualified and temporary allegiance which a foreigner owes to the government or sovereign of the territory wherein he resides, so long as he remains there, in return for the protection he receives, and which consists in the obedience to the laws of the government or sovereign. (Carlisle vs. Unite States, 21 Law. ed., 429; Secretary of State Webster Report to the President of the United States in the case of Thraser, 6 Web. Works, 526); Considering that the absolute and permanent allegiance of the inhabitants of a territory occupied by the enemy of their legitimate government or sovereign is not abrogated or severed by the enemy occupation, because the sovereignty of the government or sovereign de jure is not transferred thereby to the occupier, as we have held in the cases of Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113) and of Peralta vs. Director of Prisons (75 Phil., 285), and if it is not transferred to the occupant it must necessarily remain vested in the legitimate government; that the sovereignty vested in the titular government (which is the supreme power which governs a body politic or society which constitute the state) must be distinguished from the exercise of the rights inherent thereto, and may be destroyed, or severed and transferred to another, but it cannot be suspended because the existence of sovereignty cannot be suspended without putting it out of existence or divesting the possessor thereof at least during the so-called period of suspension; that what may be suspended is the exercise of the rights of sovereignty with the control and government of the territory occupied by the enemy passes temporarily to the occupant; that the subsistence of the sovereignty of the legitimate government in a territory occupied by the military forces of the enemy during the war, "although the former is in fact prevented from exercising the supremacy over them" is one of the "rules of international law of our times"; (II Oppenheim, 6th Lauterpacht ed., 1944, p. 482), recognized, by necessary implication, in articles 23, 44, 45, and 52 of Hague Regulation; and that, as a corollary of the conclusion that the sovereignty itself is not suspended and subsists during the enemy occupation, the allegiance of the inhabitants to their legitimate government or sovereign subsists, and therefore there is no such thing as suspended allegiance, the basic theory on which the whole fabric of the petitioner's contention rests; Considering that the conclusion that the sovereignty of the United State was suspended in Castine, set forth in the decision in the case of United States vs. Rice, 4 Wheaton, 246, 253, decided in 1819, and quoted in our decision in the cases of Co Kim Cham vs. Valdez Tan Keh and Dizon and Peralta vs. Director of Prisons, supra, in connection with the question, not of sovereignty, but of the

existence of a government de factotherein and its power to promulgate rules and laws in the occupied territory, must have been based, either on the theory adopted subsequently in the Hague Convention of 1907, that the military occupation of an enemy territory does not transfer the sovereignty to the occupant; that, in the first case, the word "sovereignty" used therein should be construed to mean the exercise of the rights of sovereignty, because as this remains vested in the legitimate government and is not transferred to the occupier, it cannot be suspended without putting it out of existence or divesting said government thereof; and that in the second case, that is, if the said conclusion or doctrine refers to the suspension of the sovereignty itself, it has become obsolete after the adoption of the Hague Regulations in 1907, and therefore it can not be applied to the present case; Considering that even adopting the words "temporarily allegiance," repudiated by Oppenheim and other publicists, as descriptive of the relations borne by the inhabitants of the territory occupied by the enemy toward the military government established over them, such allegiance may, at most, be considered similar to the temporary allegiance which a foreigner owes to the government or sovereign of the territory wherein he resides in return for the protection he receives as above described, and does not do away with the absolute and permanent allegiance which the citizen residing in a foreign country owes to his own government or sovereign; that just as a citizen or subject of a government or sovereign may be prosecuted for and convicted of treason committed in a foreign country, in the same way an inhabitant of a territory occupied by the military forces of the enemy may commit treason against his own legitimate government or sovereign if he adheres to the enemies of the latter by giving them aid and comfort; and that if the allegiance of a citizen or subject to his government or sovereign is nothing more than obedience to its laws in return for the protection he receives, it would necessarily follow that a citizen who resides in a foreign country or state would, on one hand, ipso facto acquire the citizenship thereof since he has enforce public order and regulate the social and commercial life, in return for the protection he receives, and would, on the other hand, lose his original citizenship, because he would not be bound to obey most of the laws of his own government or sovereign, and would not receive, while in a foreign country, the protection he is entitled to in his own; Considering that, as a corollary of the suspension of the exercise of the rights of sovereignty by the legitimate government in the territory occupied by the enemy military forces, because the authority of the legitimate power to govern has passed into the hands of the occupant (Article 43, Hague Regulations), the political laws which prescribe the reciprocal rights, duties and obligation of government and citizens, are suspended or in abeyance during military occupation (Co Kim cham vs. Valdez Tan Keh and dizon, supra), for the only reason that as they exclusively bear relation to the ousted legitimate government, they are inoperative or not applicable to the government established by the occupant; that the crimes against national security, such as treason and espionage; inciting to war, correspondence with hostile country, flight to enemy's country, as well as those against public order, such as rebellion, sedition, and disloyalty, illegal possession of firearms, which are of political complexion because they bear relation to, and are penalized by our Revised Penal Code as crimes against the legitimate government, are also suspended or become inapplicable as against the occupant, because they can not be committed against the latter (Peralta vs.Director of Prisons, supra); and that, while the offenses against public order to be preserved by the legitimate government were inapplicable as offenses against the invader for the reason above stated, unless adopted by him, were also inoperative as against the ousted government for the latter was not responsible for the preservation of the

public order in the occupied territory, yet article 114 of the said Revised Penal Code, was applicable to treason committed against the national security of the legitimate government, because the inhabitants of the occupied territory were still bound by their allegiance to the latter during the enemy occupation; Considering that, although the military occupant is enjoined to respect or continue in force, unless absolutely prevented by the circumstances, those laws that enforce public order and regulate the social and commercial life of the country, he has, nevertheless, all the powers of de facto government and may, at his pleasure, either change the existing laws or make new ones when the exigencies of the military service demand such action, that is, when it is necessary for the occupier to do so for the control of the country and the protection of his army, subject to the restrictions or limitations imposed by the Hague Regulations, the usages established by civilized nations, the laws of humanity and the requirements of public conscience (Peralta vs. Director of Prisons, supra; 1940 United States Rules of Land Warfare 76, 77); and that, consequently, all acts of the military occupant dictated within these limitations are obligatory upon the inhabitants of the territory, who are bound to obey them, and the laws of the legitimate government which have not been adopted, as well and those which, though continued in force, are in conflict with such laws and orders of the occupier, shall be considered as suspended or not in force and binding upon said inhabitants; Considering that, since the preservation of the allegiance or the obligation of fidelity and obedience of a citizen or subject to his government or sovereign does not demand from him a positive action, but only passive attitude or forbearance from adhering to the enemy by giving the latter aid and comfort, the occupant has no power, as a corollary of the preceding consideration, to repeal or suspend the operation of the law of treason, essential for the preservation of the allegiance owed by the inhabitants to their legitimate government, or compel them to adhere and give aid and comfort to him; because it is evident that such action is not demanded by the exigencies of the military service or not necessary for the control of the inhabitants and the safety and protection of his army, and because it is tantamount to practically transfer temporarily to the occupant their allegiance to the titular government or sovereign; and that, therefore, if an inhabitant of the occupied territory were compelled illegally by the military occupant, through force, threat or intimidation, to give him aid and comfort, the former may lawfully resist and die if necessary as a hero, or submit thereto without becoming a traitor; Considering that adoption of the petitioner's theory of suspended allegiance would lead to disastrous consequences for small and weak nations or states, and would be repugnant to the laws of humanity and requirements of public conscience, for it would allow invaders to legally recruit or enlist the Quisling inhabitants of the occupied territory to fight against their own government without the latter incurring the risk of being prosecuted for treason, and even compel those who are not aid them in their military operation against the resisting enemy forces in order to completely subdue and conquer the whole nation, and thus deprive them all of their own independence or sovereignty such theory would sanction the action of invaders in forcing the people of a free and sovereign country to be a party in the nefarious task of depriving themselves of their own freedom and independence and repressing the exercise by them of their own sovereignty; in other words, to commit a political suicide; (2) Considering that the crime of treason against the government of the Philippines defined and penalized in article 114 of the Penal Code, though originally intended to be a crime against said government as then organized by authority of the sovereign people of the United States, exercised through their authorized representative, the Congress and the President of the United States, was made,

upon the establishment of the Commonwealth Government in 1935, a crime against the Government of the Philippines established by authority of the people of the Philippines, in whom the sovereignty resides according to section 1, Article II, of the Constitution of the Philippines, by virtue of the provision of section 2, Article XVI thereof, which provides that "All laws of the Philippine Islands . . . shall remain operative, unless inconsistent with this Constitution . . . and all references in such laws to the Government or officials of the Philippine Islands, shall be construed, in so far as applicable, to refer to the Government and corresponding officials under this constitution; Considering that the Commonwealth of the Philippines was a sovereign government, though not absolute but subject to certain limitations imposed in the Independence Act and incorporated as Ordinance appended to our Constitution, was recognized not only by the Legislative Department or Congress of the United States in approving the Independence Law above quoted and the Constitution of the Philippines, which contains the declaration that "Sovereignty resides in the people and all government authority emanates from them" (section 1, Article II), but also by the Executive Department of the United States; that the late President Roosevelt in one of his messages to Congress said, among others, "As I stated on August 12, 1943, the United States in practice regards the Philippines as having now the status as a government of other independent nations in fact all the attributes of complete and respected nationhood" (Congressional Record, Vol. 29, part 6, page 8173); and that it is a principle upheld by the Supreme Court of the United States in many cases, among them in the case of Jones vs. United States (137 U.S., 202; 34 Law. ed., 691, 696) that the question of sovereignty is "a purely political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens and subjects of the country. Considering that section I (1) of the Ordinance appended to the Constitution which provides that pending the final and complete withdrawal of the sovereignty of the United States "All citizens of the Philippines shall owe allegiance to the United States", was one of the few limitations of the sovereignty of the Filipino people retained by the United States, but these limitations do not away or are not inconsistent with said sovereignty, in the same way that the people of each State of the Union preserves its own sovereignty although limited by that of the United States conferred upon the latter by the States; that just as to reason may be committed against the Federal as well as against the State Government, in the same way treason may have been committed during the Japanese occupation against the sovereignty of the United States as well as against the sovereignty of the Philippine Commonwealth; and that the change of our form of government from Commonwealth to Republic does not affect the prosecution of those charged with the crime of treason committed during the Commonwealth, because it is an offense against the same government and the same sovereign people, for Article XVIII of our Constitution provides that "The government established by this constitution shall be known as the Commonwealth of the Philippines. Upon the final and complete withdrawal of the sovereignty of the United States and the proclamation of Philippine independence, the Commonwealth of the Philippines shall thenceforth be known as the Republic of the Philippines"; This Court resolves, without prejudice to write later on a more extended opinion, to deny the petitioner's petition, as it is hereby denied, for the reasons above set forth and for others to be stated in the said opinion, without prejudice to concurring opinion therein, if any. Messrs. Justices Paras and Hontiveros dissent in a separate opinion. Mr. justice Perfecto concurs in a separate opinion.

Separate Opinions PERFECTO, J., concurring: Treason is a war crime. It is not an all-time offense. It cannot be committed in peace time. While there is peace, there are no traitors. Treason may be incubated when peace reigns. Treasonable acts may actually be perpetrated during peace, but there are no traitors until war has started. As treason is basically a war crime, it is punished by the state as a measure 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 enforcement will only be consistent with nationalharakiri. All war efforts would be of no avail if they should be allowed to be sabotaged by fifth columnists, by citizens who have sold their country out to the enemy, or any other kind of traitors, and this would certainly be the case if he law cannot be enforced under the theory of suspension. Petitioner's thesis that allegiance to our government was suspended during enemy occupation is advanced in support of the proposition that, since allegiance is identical with obedience to law, during the enemy occupation, the laws of the Commonwealth were suspended. Article 114 of the Revised Penal Code, the law punishing treason, under the theory, was one of the laws obedience to which was also suspended. Allegiance has been defined as the obligation for fidelity and obedience which the individual owes to his government or his sovereign in return for the protection which he receives. "Allegiance", as the return is generally used, means fealty or fidelity to the government of which the person is either a citizen or subject. Murray vs. The Charming Betsy, 6 U.S. (2 Cranch), 64, 120; 2 Law. ed., 208. "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 he is." United States vs. Wong Kim Ark, 18 S. Ct., 461; 169 U.S., 649; 42 Law. ed., 890. Allegiance is that duty which is due from every citizen to the state, a political duty binding on him who enjoys the protection of the Commonwealth, to render service and fealty to the federal government. It is that duty which is reciprocal to the right of protection, arising from the political relations between the government and the citizen. Wallace vs. Harmstad, 44 Pa. (8 Wright), 492, 501. By "allegiance" is meant the obligation to fidelity and obedience which the individual owes to the government under which he lives, or to his sovereign, in return for the protection which he receives. It may be an absolute and permanent obligation, or it may be a qualified and temporary one. A citizen or subject owes an absolute and permanent allegiance to his government or sovereign, or at least until, by some open and distinct act, he renounces it and becomes a citizen or subject of another government or sovereign, and 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 Wall.), 147, 154; 21 Law ed., 426. "Allegiance," as defined by Blackstone, "is the tie or ligament which binds 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 natural, the other local, the former being perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the King's dominions immediately upon their birth, for immediately upon their birth they are under the King's protection. Natural allegiance is perpetual, and for this reason, evidently founded on the nature of government. Allegiance is a debt due from the subject upon an implied contract with the prince that so long as the one affords protection the other will demean himself faithfully. Natural-born subjects have a great variety of rights which they acquire by being born within the King's liegance, which can never be forfeited but by their own misbehaviour; but the rights of aliens are much more circumscribed, being acquired only by residence, and lost whenever they remove.

If an alien could acquire a permanent property in lands, he must owe an allegiance equally permanent to the King, which would probably be inconsistent with that which he owes his natural liege lord; besides, that thereby the nation might, in time, be subject to foreign influence and feel many other inconveniences." Indians within the state are not aliens, but citizens owing allegiance to the government of a state, for they receive protection from the government and are subject to its laws. They are born in allegiance to the government of the state. Jackson vs. Goodell, 20 Johns., 188, 911. (3 Words and Phrases, Permanent ed., 226-227.) Allegiance. Fealty or fidelity to the government of which the person is either a citizen or subject; the duty which is due from every citizen to the state; a political duty, binding on him who enjoys the protection of the commonwealth, to render service and fealty to the federal government; the obligation of fidelity and obedience which the individual owes to the government or to the sovereign under which he lives in return for the protection he receives; that duty is reciprocal to the right of protection he receives; that duty which is reciprocal to the right of protection, arising from the political relations between the government and the citizen. Classification. Allegiance is of four kinds, namely: (1) Natural allegiance that which arises by nature and birth; (2) acquired allegiance that arising through some circumstance or act other than birth, namely, by denization or naturalization; (3) local allegiance-- that arising from residence simply within the country, for however short a time; and (4) legal allegiance that arising from oath, taken usually at the town or leet, for, by the common law, the oath of allegiance might be tendered to every one upon attaining the age of twelve years. (3 C.J.S., p.885.) Allegiance. the obligation of fidelity and obedience which the individual 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. 68.). "Allegiance," as its etymology indicates, is the name for the tie which binds the citizen to his state the obligation of obedience and support which he owes to it. The state is the political person to whom this liege fealty is due. Its substance is the aggregate of persons owing this allegiance. The machinery through which it operates is its government. The persons who operate this machinery constitute its magistracy. The rules of conduct which the state utters or enforces are its law, and manifest its will. This will, viewed as legally supreme, is its sovereignty. (W.W. Willoughby, Citizenship and Allegiance in Constitutional and International Law, 1 American Journal of International Law, p. 915.). The obligations flowing from the relation of a state and its nationals are reciprocal in character. This principle had been aptly stated by the Supreme Court of the United States in its opinion in the case of Luriavs. United States: Citizenship is membership in a political society and implies a duty of allegiance on the part of the member and a duty protection on the part of the society. These are reciprocal obligations, one being a compensation for the other. (3 Hackworth, Digest of International Law, 1942 ed., p.6.) Allegiance. The tie which binds the citizen to the government, in return for the protection which the government affords him. The duty which the subject owes to the sovereign, correlative with the protection received. It is a comparatively modern corruption of ligeance (ligeantia), which is derived from liege (ligius), meaning absolute or unqualified. It signified originally liege fealty, i. e., absolute and qualified fealty. 18 L. Q. Rev., 47. xxx xxx xxx Allegiance may be an absolute and permanent obligation, or it may be a qualified and temporary one; the citizen or subject owes the former to his government or

sovereign, until by some act he distinctly renounces it, whilst the alien domiciled in the country owes a temporary and local allegiance continuing during such residence. (Carlisle vs. United States, 16 Wall. [U.S.], 154; 21 Law. ed., 426. (1 Bouvier's Law Dictionary, p. 179.). The above quotations express ideas that do not fit exactly into the Philippine pattern in view of the revolutionary insertion in our Constitution of the fundamental principle that "sovereignty resides in the people and all government authority emanates from them." (Section 1, Article II.) The authorities above quoted, judges and juridical publicists define allegiance with the idea that sovereignty resides somewhere else, on symbols or subjects other than the people themselves. Although it is possible that they had already discovered that the people and only the people are the true sovereign, their minds were not yet free from the shackles of the tradition that the powers of sovereignty have been exercised by princes and monarchs, by sultans and emperors, by absolute and tyrannical rules whose ideology was best expressed in the famous words of one of the kings of France: "L'etat c'est moi," or such other persons or group of persons posing as the government, as an entity different and in opposition to the people themselves. Although democracy has been known ever since old Greece, and modern democracies in the people, nowhere is such principle more imperative than in the pronouncement embodied in the fundamental law of our people. To those who think that sovereignty is an attribute of government, and not of the people, there may be some plausibility in the proposition that sovereignty was suspended during the enemy occupation, with the consequence that allegiance must also have been suspended, because our government stopped to function in the country. But the idea cannot have any place under our Constitution. If sovereignty is an essential attribute of our people, according to the basic philosophy of Philippine democracy, it 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." There is no possible middle situation between life and death. Sovereignty is the very essence of the personality and existence of our people. Can anyone imagine the possibility of "suspended personality" or "suspended existence" of a people? In no time during enemy occupation have the Filipino people ceased to be what they are. The idea of suspended sovereignty or suspended allegiance is incompatible with our Constitution. There is similarity in characteristics between allegiance to the sovereign and a wife's loyalty to her husband. Because some external and insurmountable force precludes the husband from exercising his marital powers, functions, and duties and the wife is thereby deprived of the benefits of his protection, may the wife invoke the theory of suspended loyalty and may she freely share her bed with the assailant of their home? After giving aid and comfort 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 principle of suspended conjugal fidelity? Petitioner's thesis on change of sovereignty at the advent of independence on July 4, 1946, is unacceptable. We have already decided in Brodett vs. De la Rosa and Vda. de Escaler (p. 752, ante) that the Constitution of the Republic is the same as that of the Commonwealth. The advent of independence had the effect of changing the name of our Government and the withdrawal by the United States of her power to exercise functions of sovereignty in the Philippines. Such facts did not change the sovereignty of the Filipino people. That sovereignty, following our constitutional philosophy, has existed ever since our people began to exist. It has been recognized by the United States of America, at least since 1935, when President Roosevelt approved our Constitution. By such act, President Roosevelt, as spokesman of the American people, accepted and recognized the principle that sovereignty resides in the people that is, that Philippine sovereignty resides in the Filipino people. The same sovereignty had been internationally recognized long before the proclamation of independence on July 4, 1946. Since the early part of the Pacific war, President Quezon had been sitting as representative of a sovereign people in the Allied War Council, and in June, 1945, the same Filipino people took part outstanding and brilliant, it may be added in

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 unity of all mankind, the early realization of which is anxiously desired by all who want to be spared the sufferings, misery and disaster of another war. Under our Constitution, the power to suspend laws is of legislative nature and is lodged in Congress. Sometimes it is delegated to the Chief Executive, such as the power granted by the Election Code to the President to suspend the election in certain districts and areas for strong reasons, such as when 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 violative of the Constitution, but it has no power, authority, or jurisdiction to suspend or declare suspended any valid law, such as the one on treason which petitioner wants to be included among the laws of the Commonwealth which, by his theory of suspended allegiance and suspended sovereignty, he claims have been suspended during the Japanese occupation. Suppose President Quezon and his government, instead of going from Corregidor to Australia, and later to Washington, had fled to the mountains of Luzon, and a group of Filipino renegades should have killed them to serve the interests of the Japanese imperial forces. By petitioner's theory, those renegades cannot be prosecuted for treason or for rebellion or sedition, as the laws punishing them were suspended. Such absurd result betrays the untenability of the theory. "The defense of the State is a prime duty of Government, and in the fulfillment of that duty all citizens may be required by law to render personal, military or civil service." Thus, section 2 of Article II of the Constitution provides: That duty of defense becomes more imperative in time of war and when the country is invaded by an aggressor nation. How can it be fulfilled if the allegiance of the citizens to the sovereign people is suspended during enemy occupation? The framers of the Constitution surely did not entertain even for the moment the absurdity that when the allegiance of the citizens to the sovereign people is more needed in the defense of the survival of the state, the same should be suspended, and that upon such suspension those who may be required to render personal, military or civil service may claim exemption from the indispensable duty of serving their country in distress. Petitioner advances the theory that protection in the consideration of allegiance. He argues that the Commonwealth Government having been incapacitated during enemy occupation to protect the citizens, the latter were relieved of their allegiance to said government. The proposition is untenable. Allegiance to the sovereign is an indispensable bond for the existence of society. If that bond is dissolved, society has to disintegrate. Whether or not the existence of the latter is the result of the social compact mentioned by Roseau, there can be no question that organized society would be dissolved if it is not united by the cohesive power of the citizen's allegiance. Of course, the citizens are entitled to the protection of their government, but whether or not that government fulfills that duty, is immaterial to the need of maintaning the loyalty and fidelity of allegiance, in the same way that the physical forces of attraction should be kept unhampered if the life of an individual should continue, irrespective of the ability or inability of his mind to choose the most effective measures of personal protection. After declaring that all legislative, executive, and judicial processes had during and under the Japanese regime, whether executed by the Japanese themselves or by Filipino officers of the puppet government they had set up, are null and void, as we have done in our opinions in Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113), in Peralta vs. Director of Prison (75, Phil., 285), and in several other cases where the same question has been mentioned, we cannot consistently accept petitioner's theory. If all laws or legislative acts of the enemy during the occupation were null and void, and as we cannot imagine the existence of organized society, such as the one constituted by the

Filipino people, without laws of the Commonwealth were the ones in effect during the occupation and the only ones that could claim obedience from our citizens. Petitioner would want us to accept the thesis that during the occupation we owed allegiance to the enemy. To give way to that paradoxical and disconcerting allegiance, it is suggested that we accept that our allegiance to our legitimate government was suspended. Petitioner's proposition has to fall by its own weight, because of its glaring absurdities. Allegiance, like its synonyms, loyalty and fidelity, is based on feelings of attraction, love, sympathy, admiration, respect, veneration, gratitude, amity, understanding, friendliness. These are the feelings or some of the feelings that bind us to our own people, and are the natural roots of the duty of allegiance we owe them. The enemy only provokes repelling and repulsive feelings hate, anger, vexation, chagrin, mortification, resentment, contempt, spitefulness. The natural incompatibility of political, social and ethical ideologies between our people and the Japanese, making impossible 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 the morbid complexities of haughtiness, braggadocio and beastly brutality of the Nippon soldiers and officers in their dealings with even the most inoffensive of our citizens. Giving bread to our enemy, and, after slapping one side of our face, offer him the other to be further slapped, may appear to be divinely charitable, but to make them a reality, it is necessary to change human nature. Political 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 as human pyschology remains as it is, the enemy shall always be hated. Is it possible to conceive an allegiance based on hatred? The Japanese, having waged against us an illegal war condemned by prevailing principles of international law, could not have established in our country any government that can be legally recognized as de facto. They came as bandits and ruffians, and it is inconceivable that banditry and ruffianism can claim any duty of allegiance even a temporary one from a decent people. One of the implications of petitioner's theory, as intimated somewhere, is 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 will be the doom of small nations and peoples, by whetting the covetousness of strong powers prone on imperialistic practices. In the imminence of invasion, weak-hearted soldiers of the smaller nations will readily throw away their arms to rally behind the paladium of the invaders. Two of the three great departments of our Government have already rejected petitioner's theory since September 25, 1945, the day when Commonwealth Act No. 682 took effect. By said act, creating the People's Court to try and decide all cases of crime against national security "committed between December 8, 1941 and September 2, 1945," (section 2), the legislative and executive departments have jointly declared that during the period above mentioned, including the time of Japanese occupation, all laws punishing crimes against national security, including article 114 of the Revised Penal Code, punishing treason, had remained in full effect and should be enforced. That no one raised a voice in protest against the enactment of said act and that no one, at the time the act was being considered by the Senate and the House of Representatives, ever dared to expose the uselessness of creating a People's Court to try crime which, as claimed by petitioner, could not have been committed as the laws punishing them have been suspended, is a historical fact of which the Supreme Court may take judicial notice. This fact shows universal and unanimous agreement of our people that the laws of the Commonwealth were not suspended and that the theory of suspended allegiance is just an afterthought provoked by a desperate effort to help quash the pending treason cases at any cost. Among the arguments adduced in favor of petitioner's theory is that it is based on generally accepted principles of international law, although this argument becomes futile by petitioner's admission that the theory is advantageous to strong powers but harmful to small

and weak nations, thus hinting that the latter cannot accept it by heart. Suppose we accept at face value the premise that the theories, urged by petitioner, of suspended allegiance and suspended sovereignty are based on generally accepted 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 there is no alternative but to accept the theory. But the theory has the effect of suspending the laws, especially those political in nature. There is no law more political in nature than the Constitution of the Philippines. The result is an inverted reproduction of the Greek myth of Saturn devouring his own children. Here, under petitioner's theory, the offspring devours its parent. Can we conceive of an instance in which the Constitution was suspended even for a moment? There is conclusive evidence that the legislature, as policy-determining agency of government, even since the Pacific war started on December 7, 1941, intimated that it would not accept the idea that our laws should be suspended during enemy occupation. It must be remembered that in the middle of December, 1941, when Manila and other parts of the archipelago were under constant bombing by Japanese aircraft and enemy forces had already set foot somewhere in the Philippines, the Second National Assembly passed Commonwealth Act No. 671, which came into effect on December 16, 1941. When we approved said act, we started from the premise that all our laws shall continue in effect during the emergency, and in said act we even went to the extent of authorizing the President "to continue in force laws and appropriations which would lapse or otherwise become inoperative," (section 2, [d]), and also to "promulgate such rules and regulations as he may deem necessary to carry out the national policy," (section 2), that "the existence of war between the United States and other countries of Europe and Asia, which involves the Philippines, makes it necessary to invest the President with extraordinary powers in order to meet the resulting emergency." (Section 1.) To give emphasis to the intimation, we provided that the rules and regulations provided "shall be in force and effect until the Congress of the Philippines shall otherwise provide," foreseeing the possibility that Congress may not meet as scheduled as a result of the emergency, including invasion and occupation by the enemy. Everybody was then convinced that we did not have available the necessary means of repelling effectivity the enemy invasion. Maybe it is not out of place to consider that the acceptance of petitioner's theory of suspended allegiance will cause a great injustice to those who, although innocent, are now under indictment for treason and other crimes involving disloyalty to their country, because their cases will be dismissed without the opportunity for them to revindicate themselves. Having been acquitted upon a mere legal technicality which appears to us to be wrong, history will indiscriminality classify them with the other accused who were 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 with the infamous stigma of having betrayed their own people. They should not be deprived of the opportunity to show through the due process of law that they are free from all blame and that, if they were really patriots, they acted as such during the critical period of test. HILADO, J., concurring: 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 nothing more than the occupation of Manila and certain other specific regions of the Islands which constituted the minor area of the Archipelago) the allegiance of the citizens of this country to their legitimate government and to the United States was not suspended, as well as the ruling that during the same period there was no change of sovereignty here; but my reasons are different and I proceed to set them forth: I. SUSPENDED ALLEGIANCE.

(a) Before the horror and atrocities of World War I, which were multiplied more than a hundred-fold in World War II, the nations had evolved certain rules and principles which came to be known as International Law, governing their conduct with each other and toward their respective citizens and inhabitants, in the armed forces or civilian life, in time of peace or in time of war. During the ages which preceded that first world conflict the civilized governments had no realization of the potential excesses of which "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 nations had not on that account, proscribed nor renounced it as an instrument of national policy, or as a means of settling international disputes. It is not for us now to dwell upon the reasons accounting for this historical fact. Suffice it to recognize its existence in history. But when in World War I civilized humanity saw that war could be, as it actually was, employed for entirely different reasons and from entirely different motives, compared to previous wars, and the instruments and methods of warfare had been so materially changed as not only to involve the contending armed forces on well defined battlefields or areas, on land, 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 engaged in the conflict but also in neutral ones, no less than 61 civilized nations and governments, among them Japan, had to formulate and solemnly subscribe to the now famous Briand-Kellogg Pact in the year 1928. As said by Justice Jackson of the United States Supreme Court, as chief counsel for the United States in the prosecution of "Axis war criminals," in his report to President Truman of June 7, 1945: 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, through decisions reached from time to time in adopting settled principles to new situations. xxx xxx xxx After the shock to civilization of the war of 1914-1918, however, a marked reversion to the earlier and sounder doctrines of international law took place. By the time the Nazis came to power it was thoroughly established that launching an aggressive war or the institution of war by treachery was 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 juridical principle that aggressive war-making is illegal and criminal. The re-establishment of the principle of justifiable war is traceable in many steps. One of the most significant is the Briand-Kellogg Pact of 1928 by which Germany, Italy, and Japan, in common with the United States and practically all the nations of the world, renounced war as an instrument of national policy, bound themselves to seek the settlement of disputes only by pacific means, and condemned recourse to war for the solution of international controversies. Unless this Pact altered the legal status of wars of aggression, it has no meaning at all and comes close to being an act of deception. In 1932 Mr. Henry L. Stimson, as United States Secretary of State, gave voice to the American concept of its effect. He said, "war between nations was renounced by the signatories of the BriandKellogg Treaty. This means that it has become illegal throughout practically the entire world. It is no longer to be the source and subject of rights. It is no longer to be the principle around which the duties, the conduct, and the rights of nations revolve. It is an illegal thing. . . . By that very act we have made obsolete many legal precedents and have given the legal profession the task of re-examining many of its Codes and treaties.

This Pact constitutes only one reversal of the viewpoint that all war is legal and has brought international law into harmony with the common sense of mankind that unjustifiable war is a crime. Without attempting an exhaustive catalogue, we may mention the Geneva Protocol of 1924 for the Pacific Settlement of International Disputes, signed by the representatives of forty-eight governments, which declared that "a war of aggression constitutes .. an International crime. . . . The Eight Assembly of the League of Nations in 1927, on unanimous resolution of the representatives of forty-eight member-nations, including Germany, declared that a war of aggression constitutes aninternational crime. At the Sixth PanAmerican Conference of 1928, the twenty-one American Republics unanimously adopted a resolution stating that "war of aggression constitutes an international crime against the human species." xxx xxx xxx We therefore propose to change that a war of aggression is a crime, and that modern international law has abolished the defense that those who incite or wage it are engaged in legitimate business. Thus may the forces of the law be mobilized on the side of peace. ("U.S.A. An American Review," published by the United States Office of War Information, Vol. 2, No. 10; emphasis supplied.). When Justice Jackson speaks of "a marked reversion to the earlier and sounder doctrines of international law" and "the re-establishment of the principle of justifiable war," he has in mind no other than "the doctrine taught by Grotius, the father of international law, that there is a distinction between the just and the unjust war the war of defense and the war of aggression" to which he alludes in an earlier paragraph of the same report. In the paragraph of said report immediately preceding the one last above mentioned Justice Jackson says that "international law as taught in the 19th 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 hereinabove quoted from that report, the Briand-Kellogg Pact constitutes a reversal of the view-point that all war is legal and has brought international law into harmony with the common sense of mankind that unjustifiable war is a crime. Then he mentions as other reversals of the same viewpoint, the Geneva Protocol of 1924 for the Pacific Settlement of International Disputes, declaring that a war of aggression constitutes an international crime; the 8th assembly of the League of Nations in 1927, declaring that a war of aggression constitutes an international crime; and the 6th Pan-American conference of 1928, which unanimously adopted a resolution stating that war of aggression constitutes an international crime against the human species: which enumeration, he says, is not an attempt at an exhaustive catalogue. It is not disputed that the war started by Japan in the Pacific, first, against the United States, and later, in rapid succession, against other allied nations, was a war of aggression and utterly unjustifiable. More aggressive still, and more unjustifiable, as admitted on all sides, was its attack against the Philippines and its consequent invasion and occupation of certain areas thereof. Some of the rules and principles of international law which have been cited for petitioner herein in support of his theory of suspended allegiance, have been evolved and accepted during those periods of the history of nations when all war was considered legal, as stated by Justice Jackson, and the others have reference to military occupation in the course of really justifiable war. Japan in subscribing the Briand-Kellogg Pact thirteen years before she started the aggressive war which threw the entire Pacific area into a seething cauldron from the last month of 1941 of the first week of September, 1945, expressly agreed to outlaw, proscribe and renounce war as an instrument of national policy, and bound herself to seek the settlement of her disputes with other nations only by pacific means. Thus she expressly gave her consent to that modification of the then existing rules and principles of international law governing the

matter. With the modification, all the signatories to the pact necessarily accepted and bound themselves to abide by all its implications, among them the outlawing, prescription and renunciation of military occupation of another nation's territory in the course of a war thus outlawed, proscribed and renounced. This is only one way of saving that the rules and principles of international law therefore existing on the subject of military occupation were automatically abrogated and rendered ineffective in all future cases of war coming under the ban and condemnation of the pact. If an unjustifiable war is a crime; if a war of aggression constitutes an international crime; if such a war is an international crime against the human species: a nation which occupies a foreign territory in the course of such a war cannot possibly, under any principle of natural or positive law, acquire or posses any legitimate power or right growing out or incident to such occupation. Concretely, Japan in criminally invading the Philippines and occupying certain portions of its territory during the Pacific war, could not have nor exercise, in the legal sense and only this sense should we speak here with respect to this country and its citizens, any more than could a burglar breaking through a man's house pretends to have or to exercise any legal power or right within that house with respect either to the person of the owner or to his property. To recognize in the first instance any 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 unpardonable contradiction to prosecute, condemn and hang the appropriately called war criminals of Germany, Italy, and Japan, and at the 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 have instituted and conducted the so-called war crimes trials. Neither should we lose sight of the further fact that this government has a representative in the international commission currently trying the 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 considering the Pacific war started by Japan as a crime. Not only this, but this country had six years before the outbreak of the Pacific war already renounced war as an instrument of national policy (Constitution, Article II, section 2), thus in consequence adopting the doctrine of the Briand-Kellogg Pact. Consequently, it is submitted that it would be absolutely wrong and improper for this Court to apply to the occupation by Japan of certain areas of the Philippines during that war the rules and principles of international law which might be applicable to a military occupation occurring in the course of a justifiable war. How can this Court recognize any lawfulness or validity in that occupation when our own government has sent a representative to said international commission in Tokyo trying the Japanese "war criminals" precisely for the "crimes against humanity and peace" committed by them during World War II of which said occupation was but part and parcel? In such circumstances how could such occupation produce no less an effect than the suspension of the allegiance of our people to their country and government? (b) But even in the hypothesis and not more than a mere hypothesis that when Japan occupied the City of Manila and certain other areas of the Philippines she was engaged in a justifiable war, still the theory of suspended allegiance would not hold good. The continuance of the allegiance owed to a notion by its citizens is one of those high privileges of citizenship which the law of nations denies to the occupant the power to interfere with. . . . His (of occupant) rights are not, however, commensurate with his power. He is thus forbidden to take certain measures which he may be able to apply, and that irrespective of their efficacy. The restrictions imposed upon him are in theory designed to protect the individual in the enjoyment of some highly important privileges. These concern his allegiance to the de jure sovereign, his family honor and domestic relations, religious convictions, personal service, and connection with or residence in the occupied territory.

The Hague Regulations declare that the occupant is forbidden to compel the inhabitants to swear allegiance to the hostile power. . . . (III Hyde, International Law, 2d revised ed., pp. 1898-1899.) . . . Nor may he (occupant) compel them (inhabitants) to take an oath of allegiance. Since the authority of the occupant is not sovereignty, the inhabitants owe no temporary allegiance to him. . . . (II Oppenheim, International Law, pp. 341-344.) The occupant's lack of the authority to exact an oath of allegiance from the inhabitants of the occupied territory is but a corollary of the continuance of their allegiance to their own lawful sovereign. This allegiance does not consist merely in obedience to the laws of the lawful sovereign, but more essentially consists in loyalty or fealty to him. In the same volume and pages 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 occupant it is said that "On the other hand, he may compel them to take an oath sometimes called an 'oath of neutrality' . . . willingly to submit to his 'legitimate commands.' Since, naturally, such "legitimate commands" include the occupant's laws, it follows that said occupant, where the rule is applicable, has the right to compel the inhabitants to take an oath of obedience to his laws; and since according to the same rule, he cannot exact from the inhabitants an oath of obedience to his laws; and since, according to the same rule, he cannot exact from the inhabitants an oath of allegiance, it follows that obedience to his laws, which he can exact from them, does not constitute allegiance. (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 ceases to be bound to it by the sacred ties of allegiance, is to advocate the doctrine that precisely when his country is in such distress, and therefore most needs his loyalty, he is absolved from the loyalty. Love of country should be something permanent and lasting, ending only in death; loyalty should be its worth offspring. The outward manifestation of one or the other may for a time be prevented or thwarted by the irresistible action of the occupant; but this should not in the least extinguish nor obliterate the invisible feelings, and promptings of the spirit. And beyond the unavoidable consequences of the enemy's irresistible pressure, those invisible feelings and promptings of the spirit of the people should never allow them to act, to speak, nor even to think a whit contrary to their love and loyalty to the Fatherland. For them, indicted, to face their country and say to it that, because when it was overrun and vanquished by the barbarous invader and, in consequence was disabled from affording them protection, they were 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 crime. II. CHANGE OF SOVEREIGNTY Article II, section 1, of the Constitution provides that "Sovereignty resides in the people and all government authority emanates from them." The Filipino people are the self-same people before and after Philippine Independence, 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 the Philippines; and that upon the final and complete withdrawal of the sovereignty of the United States and the proclamation of Philippine independence, "The Commonwealth of the Philippines shall thenceforth be known as the Republic of the Philippines." Under this provision the Government of the Philippines immediately prior to independence was essentially to be the identical government thereafter only the name of that government was to be changed. Both before and after the adoption of the Philippine Constitution the people of the Philippines were and are always the plaintiff in all criminal prosecutions, the case being entitled: "The People of the Philippines vs. (the defendant or defendants)." This was already true in prosecutions under the Revised Penal Code containing the law of treason. "The

Government of the Philippines" spoken of in article 114 of said Code merely represents the people of the Philippines. Said code was continued, along with the other laws, by Article XVI, section 2, of the Constitution which constitutional provision further directs that "all references in such laws to the Government or officials of the Philippine Islands shall be construed, in so far as applicable, to refer to the Government and corresponding officials under this Constitution" of course, meaning the Commonwealth of the Philippines before, and the Republic of the Philippines after, independence (Article XVIII). Under both governments sovereignty resided and resides in the people (Article II, section 1). Said sovereignty was never transferred from that people they are the same people who preserve it to this day. There has never been any change in its respect. 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 now. And if, following the literal wording of the Revised Penal Code, as continued by the Constitution, that accused owed allegiance upon the commission of the crime to the "Government of the Philippines," in the textual words of the Constitution (Article XVI, section 2, and XVIII) that was the same government which after independence became known as the "Republic of the Philippines." The most that can be said is that the sovereignty of the people became complete and absolute after independence that they became, politically, fully of age, to use a metaphor. But if the 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 treason committed against the Filipino people when they were not fully politically independent be extinguished after they acquire this status? The offended party continues to be the same only his status has changed. PARAS, J., dissenting: During the long period of Japanese occupation, all the political laws of the Philippines were suspended. This is full harmony with the generally accepted principles of the international law adopted by our Constitution(Article II, section 3) as a part of the law of the Nation. Accordingly, we have on more than one occasion already stated that "laws of a political nature or affecting political relations, . . . are considered as suspended or in abeyance during the military occupation" (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 113, 124), and that the rule "that laws of political nature or affecting political relations are considered suspended or in abeyance during the military occupation, is intended for the governing of the civil inhabitants of the occupied territory." (Ruffy vs. Chief of Staff, Philippine Army, 75, Phil., 875, 881.) The principle is recognized by the United States of America, which admits that the occupant will naturally suspends all laws of a political nature and all laws which affect the welfare and safety of his command, such action to be made known to the inhabitants.(United States Rules of Land Welfare, 1940, Article 287.) As allegiance to the United States is an essential element in the crime of treason under article 114 of the Revised Penal Code, and in view of its position in our political structure prior to the independence of the Philippines, the rule as interpreted and practiced in the United States necessarily has a binding force and effect in the Philippines, to the exclusion of any other construction followed elsewhere, such as may be inferred, rightly or wrongly, from the isolated cases 1brought to our attention, which, moreover, have entirely different factual bases. Corresponding notice was given by the Japanese occupying army, first, in the proclamation of its Commander in chief of January 2, 1942, to the effect that as a "result of the Japanese Military operations, the sovereignty of the United States of America over the Philippines has completely disappeared and the Army hereby proclaims the Military Administration under martial 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 the administrative organs and judicial courts in the Philippines shall be based upon the existing statutes, orders, ordinances and customs until further orders provided that they are not inconsistent with the

present circumstances under the Japanese Military Administration;" and, thirdly, in the explanation to Order No. 3 reminding that "all laws and regulations of the Philippines has been suspended since Japanese occupation," and excepting the application of "laws and regulations which are not proper act under the present situation of the Japanese Military Administration," especially those "provided with some political purposes." The suspension of the political law during enemy occupation is logical, wise and humane. The latter phase outweighs all other aspects of the principle aimed more or less at promoting the necessarily selfish motives and purposes of a military occupant. It thus consoling to note that the powers instrumental in the crystallization of the Hague Conventions of 1907 did not forget to declare that they were "animated by the desire to serve . . . the interest of the humanity and the over progressive needs of civilization," and that "in case not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of international law, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience." These saving statements come to the aid of the inhabitants in the occupied territory in a situation wherein, even before the belligerent occupant "takes a further step and by appropriate affirmative action undertakes to acquire the right of sovereignty for himself, . . . the occupant is likely to regard to himself as clothed with freedom to endeavor to impregnate the people who inhabit the area concerned with his own political ideology, and to make that endeavor successful by various forms of pressure exerted upon enemy officials who are permitted to retain the exercise of normal governmental functions." (Hyde, International Law, Vol. III, Second Revised Edition, 1945, p. 1879.) The inhabitants of the occupied territory should necessarily be bound to the sole authority of the invading power, whose interest and requirements are naturally in conflict with those of the displaced government, if it is legitimate for the military occupant to demand and enforce from the inhabitants such obedience as may be necessary for the security of his forces, for the maintenance of law and order, and for the proper administration of the country (United States Rules of Land Warfare, 1940, article 297), and to demand all kinds of services "of such a nature as not to involve the population in the obligation of taking part in military operations against their own country" (Hague Regulations, article 52);and if, as we have in effect said, by the surrender the inhabitants pass under a temporary allegiance to the government of the occupant and are bound by such laws, and such only, as it chooses to recognize and impose, and the belligerent occupant `is totally independent of the constitution and the laws of the territory, since occupation is an aim of warfare, and the maintenance and safety of his forces, and the purpose of war, stand in the foreground of his interest and must be promoted under all circumstances or conditions." (Peraltavs. Director of Prisons, 75 Phil., 285, 295), citing United States vs. Rice, 4 Wheaton, 246, and quoting Oppenheim, International Law, Vol. II. Sixth Edition, Revised, 1944,p. 432.) He would be a bigot who cannot or would refuse to see the cruel result if the people in an occupied territory were required to obey two antagonistic and opposite powers. To emphasize our point, we would adopt the argument, in a reverse order, of Mr. Justice Hilado in Peralta vs. Director of Prisons (75 Phil., 285, 358), contained in the following passage: To have bound those of our people who constituted the great majority who never submitted to the Japanese oppressors, by the laws, regulations, processes and other acts of those two puppet governments, would not only have been utterly unjust and downright illegal, but would have placed them in the absurd and impossible condition of being simultaneously submitted to two mutually hostile governments, with their respective constitutional and legislative enactments and institutions on the one hand bound to continue owing allegiance to the United States and the Commonwealth Government, and, on the other, to owe allegiance, if only temporary, to Japan.

The only sensible purpose of the treason law which is of political complexion and taken out of the territorial law and penalized as a new offense committed against the belligerent occupant, incident to a state of war and necessary for the control of the occupant (Alcantara vs. Director of Prisons, 75 Phil., 494), must be the preservation of the nation, certainly not its destruction or extermination. And yet the latter is unwittingly wished by those who are fond of the theory that what is suspended is merely the exercise of sovereignty by the de juregovernment or the latter's authority to impose penal sanctions or that, otherwise stated, the suspension refers only to the military occupant. If this were to be the only effect, the rule would be a meaningless and superfluous optical illusion, since it is obvious that the fleeing or displaced government cannot, even if it should want, physically assert its authority in a territory actually beyond its reach, and that the occupant, on the other hand, will not take the absurd step of prosecuting and punishing the inhabitants for adhering to and aiding it. If we were to believe the opponents of the rule in question, we have to accept the absurd proposition that the guerrillas can all be prosecuted with illegal possession of firearms. It should be borne in the mind that "the possession by the belligerent occupant of the right to control, maintain or modify the laws that are to obtain within the occupied area is an exclusive one. The territorial 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 belligerent effort to weaken the enemy. It has no bearing upon the legal quality of what the occupant exacts, while it retains control. Thus, if the absent territorial sovereign, through some quasi-legislative decree, forbids its nationals to comply with what the occupant has ordained obedience to such command within the occupied territory would not safeguard the individual from the prosecution by the occupant." (Hyde, International Law, Vol. III, Second Revised Edition, 1945, p. 1886.) As long as we have not outlawed the right of the belligerent occupant to prosecute and punish the inhabitants for "war treason" or "war crimes," as an incident of the state of war and necessity for the control of the occupied territory and the protection of the army of the occupant, against which prosecution and punishment such inhabitants cannot obviously be protected by their native sovereign, it is hard to understand how we can justly rule that they may at the same time be prosecuted and punished for an act penalized by the Revised Penal Code, but already taken out of the territorial law and penalized as a new offense committed against the belligerent occupant. In Peralta vs. Director of Prisons, 75 Phil., 285, 296), we held that "the Constitution of the Commonwealth Government was suspended during the occupation of the Philippines by the Japanese forces or the belligerent occupant at regular war with the United States," and the meaning of the term "suspended" is very plainly expressed in the following passage (page 298): No objection can be set up to the legality of its provisions in the light of the precepts of our Commonwealth Constitution relating to the rights of the accused under that Constitution, because the latter was not in force during the period of the Japanese military occupation, as we have already stated. Nor may said Constitution be applied upon its revival at the time of the re-occupation of the Philippines by the virtue of the priciple of postliminium, because "a constitution should operate prospectively only, unless the words employed show a clear intention that it should have a retrospective effect," (Cooley's Constitutional Limitations, seventh edition, page 97, and a case quoted and cited in the footnote), especially as regards laws of procedure applied to cases already terminated completely. In much the same way, we should hold that no treason could have been committed during the Japanese military occupation against the United States or the Commonwealth Government, because article 114 of the Revised Penal Code was not then in force. Nor may this penal provision be applied upon its revival at the time of the reoccupation of the Philippines by virtue of the principle of postliminium, because of the constitutional

inhibition against any ex post facto law and because, under article 22 of the Revised Penal Code, criminal laws shall have a retroactive effect only in so far as they favor the accused. Why did we refuse to enforce the Constitution, more essential to sovereignty than article 114 of the Revised Penal Code in the aforesaid of Peralta vs. Director of Prisons if, as alleged by the majority, the suspension was good only as to the military occupant? The decision in the United States vs. Rice (4 Wheaton, 246), conclusively 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 United States the court of highest human authority on that subject and as the decision was against the United States, and in favor of the authority of Great Britain, its enemy in the war, and was made shortly after the occurrence of the war out of which it grew; and while no department of this Government was inclined to magnify the rights of Great Britain or disparage those of its own government, there can be no suspicion of bias in the mind of the court in favor of the conclusion at which it arrived, and no doubt that the law seemed to the court to warrant and demand such a decision. That case grew out of the war of 1812, between the United States and Great 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; and that while it was so held, foreign goods, by the laws of the United States subject to duty, had been introduced into that port without paying duties to the United States. At the close of the war the place by treaty restored to the United States, and after that was done Government of the United States sought to recover from the persons so introducing the goods there while in 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 its laws were properly in force there, although the place was at the time held by the British forces in hostility to the United States, and the laws, therefore, could not at the time be enforced there; and that a court of the United States (the power of that government there having since been restored) was bound so to decide. But this illusion of the prosecuting officer there was dispelled by the court in the most summary manner. Mr. Justice Story, that great luminary of the American bench, being the organ of the court in delivering its opinion, said: 'The single question is whether goods imported into Castine during its occupation by the enemy are liable to the duties imposed by the revenue laws upon goods imported into the United States.. We are all 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 laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender the inhabitants passed under a temporary allegiance of the British Government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case no other laws could be obligatory upon them. . . . Castine was therefore, 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 such duties only as the British Government chose to require. Such goods were in no correct sense imported into the Unites States.' The court then proceeded to say, that the case is the same as if the port of Castine had been foreign territory, ceded by treaty to the United States, and the goods had 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 principles of public or municipal law, the cases are not distinguishable. They add at the conclusion of the opinion: 'The authorities cited at the bar would, if there were any doubt, be decisive of the question. But we think it too clear to require any aid from authority.' Does this case leave room for a doubt whether a country held as this was in armed belligerents occupation, is to be governed by him who holds it, and by him alone? Does it not so decide in terms as plain as can be stated? It is asserted by the Supreme Court of the United States with entire unanimity, the great and venerated Marshall presiding, and the erudite and accomplished Story delivering the opinion of the court, that such is the law, and it is so adjudged in this case. Nay, more: it is even adjudged that no other laws could be obligatory; that such country, so held, is for the

purpose of the application of the law off its former government to be deemed foreign territory, and that goods imported there (and by parity of reasoning other acts done there) are in no correct sense done within the territory of its former sovereign, the United States." But it is alleged by the majority that the sovereignty spoken of in the decision of the United States vs. Rice should be construed to refer to the exercise of sovereignty, and that, if sovereignty itself was meant, the doctrine has become obsolete after the adoption of the Hague Regulations in 1907. In answer, we may state that sovereignty can have any important significance only when it may be exercised; and, to our way of thinking, it is immaterial whether the thing held in abeyance is the sovereignty itself or its exercise, because the point cannot nullify, vary, or otherwise vitiate the plain meaning of the doctrinal words "the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors." We cannot accept the theory of the majority, without in effect violating the rule of international law, hereinabove adverted to, that the possession by the belligerent occupant of the right to control, maintain or modify the laws that are to obtain within the occupied area is an exclusive one, and that the territorial sovereign driven therefrom cannot compete with it on an even plane. Neither may the doctrine in the United States vs. Rice be said to have become obsolete, without repudiating the actual rule prescribed and followed by the United States, allowing the military occupant to suspend all laws of a political 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 is a recognized doctrine of American Constitutional Law that mere conquest or military occupation of a territory of another State does not operate to annex such territory to occupying State, but that the inhabitants of the occupied district, no longer receiving the protection of their native State, for the time being owe no allegiance to it, and, being under the control and protection of the victorious power, owe to that power fealty and obedience. (Willoughby, The Fundamental Concepts of Public Law [1931], p.364.) The majority have resorted to distinctions, more apparent than real, if not immaterial, in trying to argue that the law of treason was obligatory on the Filipinos during the Japanese occupation. Thus it is insisted that a citizen or subject owes not a qualified and temporary, but an absolute and permanent allegiance, and that "temporary allegiance" to the military occupant may be likened to the temporary allegiance which a foreigner owes to the government or sovereign to the territory wherein he resides in return for the protection he receives therefrom. The comparison is most unfortunate. Said foreigner is in the territory of a power not hostile to or in actual war with his own government; he is in the territory of a power which has not suspended, under the rules of international law, the laws of political nature of his own government; and the protections received by him from that friendly or neutral power is real, not the kind of protection which the inhabitants of an occupied territory can expect from a belligerent army. "It is but reasonable that States, when they concede to other States the right to exercise jurisdiction over such of their own nationals as are within the territorial limits of such other States, should insist that States should provide system of law and of courts, and in actual practice, so administer them, as to furnish substantial legal justice to alien residents. This does not mean that a State must or should extend to aliens within its borders all the civil, or much less, all the political rights or privileges which it grants to its own citizens; but it does mean that aliens must or should be given adequate opportunity to have such legal rights as are granted to them by the local law impartially and judicially determined, and, when thus determined, protected." (Willoughby, The Fundamental Concepts of Public Law [1931], p. 360.) When it is therefore said that a citizen of a sovereign may be prosecuted for and convicted of treason committed in a foreign country or, in the language of article 114 of the Revised Penal Code, "elsewhere," a territory other than one under belligerent occupation must have been contemplated. This would make sense, because treason is a crime "the direct or indirect purpose of which is the delivery, in whole or in part, of the country to a foreign power, or to

pave the way for the enemy to obtain dominion over the national territory" (Albert, The Revised Penal Code, citing 3 Groizard, 14); and, very evidently, a territory already under occupation can no longer be "delivered." The majority likewise argue that the theory of suspended sovereignty or allegiance will enable the military occupant to legally recruit the inhabitants to fight against their own government, without said inhabitants being liable for treason. This argument is not correct, because the suspension does not exempt the occupant from complying with the Hague Regulations (article 52) that allows it to demand all kinds of services provided that they do not involve the population "in the obligation of taking part military operations against their own country." Neither does the suspension prevent the inhabitants from assuming a passive attitude, much less from dying and becoming heroes if compelled by the occupant to fight against their own country. Any imperfection in the present state of international law should be corrected by such world agency as the United Nations organizations. It is of common knowledge that even with the alleged cooperation imputed to the collaborators, an alarming number of Filipinos were killed or otherwise tortured by the ruthless, or we may say savage, Japanese Army. Which leads to the conclusion that if the Filipinos did not obey the Japanese commands and feign cooperation, there would not be any Filipino nation that could have been liberated. Assuming that the entire population could go to and live in the mountains, or otherwise fight as guerrillas after the formal surrender of our and the American regular fighting forces, they would have faced certain annihilation by the Japanese, considering that the latter's military strength at the time and the long period during which they were left military unmolested by America. In this connection, we hate to make reference to the atomic bomb as a possible means of destruction. If a substantial number of guerrillas were able to survive and ultimately help in the liberation of the Philippines, it was because the feigned cooperation of their countrymen enabled them to get food and other aid necessary in the resistance movement. If they were able to survive, it was because they could camouflage themselves in the midst of the civilian population in cities and towns. It is easy to argue now that the people could have merely followed their ordinary pursuits of life or otherwise be indifferent to the occupant. The fundamental defect of this line of thought is that the Japanese assumed to be so stupid and dumb as not to notice any such attitude. During belligerent occupation, "the outstanding fact to be reckoned with is the sharp opposition between the inhabitants of the occupied areas and the hostile military force exercising control over them. At heart they remain at war with each other. Fear for their own safety may not serve to deter the inhabitants from taking advantage of opportunities to interfere with the safety and success of the occupant, and in so doing they may arouse its passions and cause to take vengeance in cruel fashion. Again, even when it is untainted by such conduct, the occupant as a means of attaining ultimate success in its major conflict may, under plea of military necessity, and regardless of conventional or customary prohibitions, proceed to utilize the inhabitants within its grip as a convenient means of military achievement." (Hyde, International Law, Vol. III, Second Revised Edition [1945], p. 1912.) It should be stressed that the Japanese occupation was not a matter of a few months; it extended over a little more than three years. Said occupation was a fact, in spite of the "presence of guerrilla bands in barrios and mountains, and even in towns of the Philippines whenever these towns were left by Japanese garrisons or by the detachments of troops sent on patrol to those places." (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 371, 373.) The law of nations accepts belligerent occupation as a fact to be reckoned with, regardless of the merits of the occupant's cause. (Hyde, International Law, Second Revised Edition [1945], Vol. III, p. 1879.) 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 psychology and patriotism of their countrymen. Patriots are such after their birth in the first place, and no amount of laws or judicial decisions can make or unmake them. On the other hand, the Filipinos are not so base as to be insensitive to the thought that the real traitor is cursed everywhere and in all ages.

Our patriots who fought and died during the last war, and the brave guerrillas who have survived, were undoubtedly motivated by their inborn love of country, and not by such a thing as the treason law. The Filipino people as a whole, passively opposed the Japanese regime, not out of fear of a treason statute but because they preferred and will prefer the democratic and civilized way of life and American altruism to Japanese barbaric and totalitarian designs. Of course, there are those who might at heart have been pro-Japanese; but they met and will unavoidably meet the necessary consequences. The regular soldiers faced the risks of warfare; the spies and informers subjected themselves to the perils of military operations, likely received summary liquidation or punishments from the guerrillas and the parties injured by their acts, and may be prosecuted as war spies by the military authorities of the returning sovereign; those who committed other common crimes, directly or through the Japanese army, may be prosecuted under the municipal law, and under this group even the spies and informers, Makapili or otherwise, are included, for they can be made answerable for any act offensive to person or property; the buy-and-sell opportunists have the war profits tax to reckon with. We cannot close our eyes to the conspicuous fact that, in the majority of cases, those responsible for the death of, or injury to, any Filipino or American at the hands of the Japanese, were prompted more by personal motives than by a desire to levy war against the United States or to adhere to the occupant. The alleged spies and informers found in the Japanese occupation the royal road to vengeance against personal or political enemies. The recent amnesty granted to the guerrillas for acts, otherwise criminal, committed in the furtherance of their resistance movement has in a way legalized the penal sanctions imposed by them upon the real traitors. It is only from a realistic, practical and common-sense point of view, and by remembering that the obedience and cooperation of the Filipinos were effected while the Japanese were in complete control and occupation of the Philippines, when their mere physical presence implied force and pressure and not after the American forces of liberation had restored the Philippine Government that we will come to realize that, apart from any rule of international law, it was necessary to release the Filipinos temporarily from the old political tie in the sense indicated herein. Otherwise, one is prone to dismiss the reason for such cooperation and obedience. If there were those 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. Essentially, however, everybody who took advantage, to any extent and degree, of the peace and order prevailing during the occupation, for the safety and survival of himself and his family, gave aid and comfort to the enemy. Our great liberator himself, General Douglas MacArthur, had considered the laws of the Philippines ineffective during the occupation, and restored to their full vigor and force only after the liberation. Thus, in his proclamation of October 23, 1944, he ordained that "the laws now existing on the statute books of the Commonwealth of the Philippines . . . are in full force and effect and legally binding upon the people in areas of the Philippines free of enemy occupation and control," and that "all laws . . . of any other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the 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 is to be presumed that General Douglas MacArthur, who was acting as an agent or a representative of the Government and the President of the United States, constitutional Commander-in-Chief of the United States Army, did not intend to act against the principles of the law of nations asserted by the Supreme Court of the United States from the early period of its existence, applied by the President of the United States, and later embodied in the Hague Conventions of 1907." The prohibition in the Hague Conventions (Article 45) against "any pressure on the population to take oath to the hostile power," was inserted for the moral protection and benefit of the inhabitants, and does not necessarily carry the implication that the latter continue to be bound to the political laws of the displaced government. The United States, a

signatory to the Hague Conventions, has made the point clear, by admitting that the military occupant can suspend all the laws of a political nature and even require public officials and the inhabitants to take an oath of fidelity (United States Rules of Land Warfare, 1940, article 309), and as already stated, it is a doctrine of American Constitutional Law that the inhabitants, no longer receiving the protection of their native state, for the time being owe no allegiance to it, and, being under the control and protection of the victorious power, owe to that power fealty and obedience. Indeed, what is prohibited is the application of force by the occupant, from which it is fair to deduce that the Conventions do not altogether outlaw voluntary submission by the population. The only strong reason for this is undoubtedly the desire of the authors of the Conventions to give as much freedom and allowance to the inhabitants as are necessary for their survival. This is wise and humane, because the people should be in a better position to know what will save them during the military occupation than any exile government. "Before he was appointed prosecutor, Justice Jackson made a speech in which he warned against the use of judicial process for non judicial ends, and attacked cynics who "see no reason why courts, just like other agencies, should not be policy weapons. If we want to shoot Germans as a matter of 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 a trial; the word yields no respect for courts that are merely organized to convict." Mussoloni may have got his just desserts, but nobody supposes he got a fair trial. . . . Let us bear that in mind as we go about punishing criminals. There are enough laws on the books to convict guilty Nazis without risking the prestige of our legal system. It is far, far better that some guilty men escape than that the idea of law be endangered. In the long run the idea of law is our best defense against Nazism in all its forms." These passages were taken from the editorial appearing in the Life, May 28, 1945, page 34, and convey ideas worthy of some reflection. If the Filipinos in fact committed any errors in feigning cooperation and obedience during the Japanese military occupation, they were at most borrowing the famous and significant words of President Roxas errors of the mind and not of the heart. We advisedly said "feigning" not as an admission of the fallacy of the theory of suspended allegiance or sovereignty, but as an affirmation that the Filipinos, contrary to their outward attitude, had always remained loyal by feeling and conscience to their country. Assuming that article 114 of the Revised Penal Code was in force during the Japanese military occupation, the present Republic of the Philippines has no right to prosecute treason committed against the former sovereignty existing during the Commonwealth Government which was none other than the sovereignty of the United States. This court has already held that, upon a change of sovereignty, the provisions of the Penal Code having to do with such subjects as treason, rebellion and sedition are no longer in force (People vs. Perfecto, 43 Phil., 887). It is true that, as contended by the majority, section 1 of Article II of the Constitution of the Philippines provides that "sovereignty resides in the people," but this did not make the Commonwealth Government or the Filipino people sovereign, because said declaration of principle, prior to the independence of the Philippines, was subervient to and controlled by the Ordinance appended to the Constitution under which, in addition to its many provisions essentially destructive of the concept of sovereignty, it is expressly made clear that the sovereignty of the United States over the Philippines had not then been withdrawn. The framers of the Constitution had to make said declaration of principle because the document was ultimately intended for the independent Philippines. Otherwise, the Preamble should not have announced that one of the purposes of the Constitution is to secure to the Filipino people and their posterity the "blessings of independence." No one, we suppose, will dare allege that the Philippines was an independent country under the Commonwealth Government.

The Commonwealth Government might have been more autonomous than that existing under the Jones Law, but its non-sovereign status nevertheless remained unaltered; and what was enjoyed was the exercise of sovereignty over the Philippines continued to be complete. The exercise of Sovereignty May be Delegated. It has already been seen that the exercise of sovereignty is conceived of as delegated by a State to the various organs which, collectively, constitute the Government. For practical political reasons which can be easily appreciated, it is desirable that the public policies of a State should be formulated and executed by governmental agencies of its own creation and which are not subject to the control of other States. There is, however, nothing in a nature of sovereignty or of State life which prevents one State from entrusting the exercise of certain powers to the governmental agencies of another State. Theoretically, indeed, a sovereign State may go to any extent in the delegation of the exercise of its power to the governmental agencies of other States, those governmental agencies thus becoming quoad hoc parts of the governmental 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 will of the State by which they were originally created. By this allegation the agent State is authorized to express the will of the 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 own creation, of the powers it has granted. Thus, States may concede to colonies almost complete autonomy of government and reserve to themselves a right of control of so slight and so negative a character as to make its exercise a rare and improbable occurence; yet, so long as such right of control is recognized to exist, and the autonomy of the colonies is conceded to be founded upon a grant and the continuing consent of the mother countries the sovereignty of those mother countries over them is complete and they are to be considered as possessing only administrative autonomy and not political independence. Again, as will be more fully discussed in a later chapter, in the so-called Confederate or Composite State, the cooperating States may yield to the central Government the exercise of almost all of their powers of Government and yet retain their several sovereignties. Or, on the other hand, a State may, without parting with its sovereignty of lessening its territorial application, yield to the governing organs of particular areas such an amplitude of powers as to create of them bodies-politic endowed with almost all of the characteristics of independent States. In all States, indeed, when of any considerable size, efficiency of administration demands that certain autonomous powers of local self-government be granted to particular districts. (Willoughby, The Fundamental Concepts of Public Law [1931], pp. 74, 75.). The majority have drawn an analogy between the Commonwealth Government and the States of the American Union which, it is alleged, preserve their own sovereignty although limited by the United States. This is not true for it has been authoritatively stated that the Constituent States 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 forbearance of the national sovereignty, and that the sovereignty of the United States and the non-sovereign status of the individual States is no longer contested. It is therefore plain that the constituent States have no sovereignty of their own, and that such autonomous powers as they now possess are had and exercised by the express will or by the constitutional forbearance of the national sovereignty. The Supreme Court of the United States has held that, even when selecting members for the national legislature, or electing the President, or ratifying proposed amendments to the federal constitution, the States act, ad hoc, as agents of the National Government. (Willoughby, the Fundamental Concepts of Public Law [1931], p.250.)

This is the situation at the present time. The sovereignty of the United States and the non-sovereign status of the individual States is no longer contested. (Willoughby, The Fundamental Concepts of Public Law [1931], pp. 251, 252.) Article XVIII of the Constitution provides that "The government established by this Constitution shall be known as the Commonwealth of the Philippines. Upon the final and complete withdrawal of the sovereignty of the United States and the proclamation of Philippine independence, the Commonwealth of the Philippines shall thenceforth be known as the Republic of the Philippines." From this, the deduction is made that the Government under the Republic of the Philippines and under the Commonwealth is the same. We cannot agree. While the Commonwealth Government possessed administrative autonomy and exercised the sovereignty delegated by the United States and did not cease to be an instrumentality of the latter (Willoughby, The Fundamental Concepts of Public Law [1931], pp. 74, 75), the Republic of the Philippines is an independent State not receiving its power or sovereignty from the United States. Treason committed against the United States or against its instrumentality, the Commonwealth Government, which exercised, but did not possess, sovereignty (id., p. 49), is therefore not treason against the sovereign and independent Republic of the Philippines. Article XVIII was inserted in order, merely, to make the Constitution applicable to the Republic. Reliance is also placed on section 2 of the Constitution which provides that all laws of the Philippines Islands shall remain operative, unless inconsistent therewith, until amended, altered, modified or repealed by the Congress of the Philippines, and on section 3 which is to the effect that all cases pending in courts shall be heard, tried, and determined under the laws then in force, thereby insinuating that these constitutional provisions authorize the Republic of the Philippines to enforce article 114 of the Revised 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 sanction the enactment and application of an ex post facto law. 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 Fed. Supp., 38), that the Philippines had a sovereign status, though with restrictions, it is sufficient to state that said case must be taken in the light of a subsequent decision of the same court in Cincinnati Soap Co. vs. United States (301 U.S., 308), rendered in May, 1937, wherein it was affirmed that the sovereignty of the United States over the Philippines had not been 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 country, the United States. No conclusiveness may be conceded to the statement of President Roosevelt on August 12, 1943, that "the United States in practice regards the Philippines as having now the status as a government of other independent nations--in fact all the attributes of complete and respected nationhood," since said statement was not meant as having accelerated the date, much less as a formal proclamation of, the Philippine Independence as contemplated in the TydingsMcDuffie Law, it appearing that (1) no less also than the President of the United States had to issue the proclamation of July 4, 1946, withdrawing the sovereignty of the United States and recognizing Philippine Independence; (2) it was General MacArthur, and not President Osmea who was with him, that proclaimed on October 23, 1944, the restoration of the Commonwealth Government; (3) the Philippines was not given official participation in the signing of the Japanese surrender; (4) the United States Congress, and not the

Commonwealth Government, extended the tenure of office of the President and VicePresident of the Philippines. The suggestion that as treason may be committed against the Federal as well as against the State Government, in the same way treason may have been committed against the sovereignty of the United States as well as against the sovereignty of the Philippine Commonwealth, is immaterial because, as we have already explained, treason against either is not and cannot be treason against the new and different sovereignty of the Republic of the Philippines.

G.R. No. L-533 August 20, 1946 RAMON RUFFY, ET AL., petitioners, vs. THE CHIEF OF STAFF, PHILIPPINE ARMY, ET AL., respondents. Placido C. Ramos for petitioners. Lt. Col. Fred Ruiz Castro and Capt. Ramon V. Diaz, JAGS, PA., for respondents. TUASON, J.: This was a petition for prohibition, praying that the respondents, the Chief of Staff and the General Court Martial of the Philippine Army, be commanded to desist from further proceedings in the trial of petitioners before that body. Preliminary injunction having been denied by us and the General Court Martial having gone ahead with the trial, which eventually resulted in the acquittal of one of the defendants, Ramon Ruffy, the dismissal of the case as to another, Victoriano Dinglasan, and the conviction of Jose L. Garcia, Prudente M. Francisco, Dominador Adeva and Andres Fortus, the last-named four petitioners now seek in their memorandum to convert the petition into one for certiorari, with the prayer that the records of the proceedings before the General Court Martial be ordered certified to this court for review. The ground of the petition was that the petitioners were not subject to military law at the time the offense for which they had been placed on trial was committed. In their memorandum they have raised an additional question of law that the 93d Article of War is unconstitutional. An outline of the petitioner's previous connection with the Philippine Army, the Philippine Constabulary, and/or with guerrilla organizations will presently be made. This outline is based on allegations in the petition and the answer, and on exhibits attached thereto and to the parties' memoranda, exhibits which were offered in the course of the oral argument and admitted without objection. The said exhibits are public documents certified by the officials who had them in custody in their official capacity. They are presumed to be authentic, as we have no doubt they are. It appears that at the outbreak of war on December 8, 1941, Ramon Ruffy was the Provincial Commander, Prudente M. Francisco, a junior officer, and Andres Fortus, a corporal, all of the Philippine Constabulary garrison stationed in Mindoro. When, on February 27, 1942, the Japanese forces landed in Mindoro, Major Ruffy retreated to the mountains instead of surrendering to the enemy, disbanded his company, and organized and led a guerrilla outfit known as Bolo Combat team of Bolo Area. Lieutenant Francisco, Corporal Fortus and Jose L. Garcia, the last then a civilian joined Major Ruffy's organization towards the latter part of 1942, while Dominador Adeva and Victoriano Dinglasan, then likewise civilians, became its members some time in 1943.. Meanwhile, Brigadier General Macario Peralta, Jr., then a lieutenant colonel of the Philippine Army, also took to the hills of Panay and led the operation of the 6th Military District, one of the districts into which the Philippine Army had been divided before the war. About November, 1942, Colonel Peralta succeeded in contacting the General Headquarters of General MacArthur in Australia as the result of which on February 13, 1943, the 6th Military District was recognized by the Headquarters of the Southwest Pacific Area as a military unit and part of its command. Even before General MacArthur's recognition of the 6th Military District Colonel Peralta had extended its sphere of operation to comprise Mindoro and Marinduque, and had, on January 2, 1943, named Major Ruffy as Acting Commander for those two provinces and Commanding Officer of the 3rd Battalion, 66 Infantry 61st Division, Philippine Corps. After the recognition, 2d Lieut. Prudente M. Francisco, by virtue of Special Orders No. 99, dated November 2, 1943, and signed by Enrique L. Jurado, Major, OSE, Commanding, was assigned as S-3 in the Bolo Area. Major, later Lieut. Col., Jurado, it should be noted, had been dispatched by the 6th Military District to Mindoro to assume operational control supervision over the Bolo Area unit and to make and direct the necessary report to the

Headquarters, 6th Military District, in Panay. On April 26, 1944, by General Orders No. 40 of the 6th Military District, 2d Lieutenant Francisco was promoted to the rank of 1st Lieutenant (Brevet), effective April 15, 1944, subject to approval by the President of the Philippines, and was re-assigned to the Bolo Area. As to Andres Fortus he was assigned to the same Bolo Area as probationary 3d lieutenant for two-month probationary training, by the Headquarters of the 6th Military District, as per Special Orders No. 70, dated May 15, 1944. According to a memorandum of the Chief of Staff, 6th Military District, dated January 1943, and signed by L.R. Relunia, Lieut. Col., CE, Chief of Staff, Jose L. Garcia and Dominador Adeva were appointed 3d lieutenants, infantry as of December 31, 1942. Garcia later was promoted to the rank of captain, effective March 15, 1943, as per Special Orders No. 82, issued in the field, 6th Military District, and dated August 28, 1943. On May 24, 1943, Jose L. Garcia took his oath before Captain Esteban P. Beloncio, then Acting Commanding Officer, 3d Battalion, 66th Infantry Regiment, 61st Division, 6th Military District. As has been said, the 6th Military District sent Lieut. Col. Enrique L. Jurado to be Commanding Officer of the Bolo Combat Team in Mindoro and to undertake other missions of Military character. Pursuant to instructions, Colonel Jurado on November 2, 1943, assigned Major Ruffy as Commanding Officer of the Bolo Area with 3d Lieut. Dominador Adeva and 2d Lieut. Prudente M. Francisco as members of his staff and Victoriano Dinglasan as Finance Officer, as per Special Orders No. 99 dated November 2, 1943. In a memorandum of Colonel Jurado for Major Ruffy bearing date 25 June, 1944, it was stated that Captain Garcia had been given P5,000 for palay and Lieut. Francisco P9,000, P5,000 for palay and P4,000 for salary of the personnel B. Company. A change in the command of the Bolo Area was effected by Colonel Jurado on June 8, 1944: Major Ruffy was relieved of his assignment as Commanding Officer, Bolo Battalion, and Capt. Esteban P. Beloncio was put in Ruffy's place. On October 19, 1944, Lieut. Col. Jurado was slain allegedly by the petitioners. After the commission of this crime, the petitioners, it is alleged, seceded from the 6th Military District. It was this murder which gave rise to petitioner's trial, the legality of which is now being contested. On July 26, 1941, the President of the Untied States issued a military order the pertinent paragraph of which stated: ". . . as Commander in Chief of the Army and Navy of the United States, I hereby call and order into the service of the armed forces of the United States Army, for the period of the existing emergency, and place under the command of the general officer, United States Army, to be designated by the Secretary of War, from time to time, all of the organized military forces of the Government of the Commonwealth." Following the issuance of President Roosevelt's order General Douglas MacArthur was appointed Commanding General of the United States Armed Forces in the Far East. It is contended, in behalf of Captain Francisco and Lieutenant Fortus, that "by the enemy occupation of the Philippines, the National Defense Act and all laws and regulations creating and governing the existence of the Philippine Army including the Articles of War, were suspended and in abeyance during such belligerent occupation." The paragraph quoted in the petitioner's memorandum from Winthrop's Military Law and Precedents and the subsequent paragraph which has been omitted furnish a complete answer to petitioner's contention of the Philippines by Japanese forces, the officers and men of the Philippine Army did not cease to be fully in the service, though in a measure,' only in a measure, they were not subject to the military jurisdiction, if they were not active duty. In the latter case, like officers and soldiers on leave of absence or held as prisoners of war, they could not be held guilty of a breach of the discipline of the command or of a neglect of duty, or disobedience of orders, or mutiny, or subject to a military trial therefor; but for an act unbecoming an officer and a gentleman, or an act which constitutes an offense of the class specified in the 95th Article of War, they may in general be legally held subject to military jurisdiction and trial. "So a prisoner of war, though not subject, while held by the enemy, to the discipline of his own army, would, when exchanged of paroled, be not exempt from

liability for such offenses as criminal acts or injuriuos conduct committed during his captivity against other officers or soldiers in the same status." (Winthrop's Military Law and Precedents, 2d Edition, pp. 91, 92.) The rule invoked by counsel, namely, that laws of political nature or affecting political relations are considered superseded or in abeyance during the military occupation, is intended for the governing of the civil inhabitants of the occupied territory. It is not intended for and does not bind the enemies in arms. This is self-evident from the very nature of things. The paradox of a contrary ruling should readily manifest itself. Under the petitioner's theory the forces of resistance operating in an occupied territory would have to abide by the outlawing of their own existence. They would be stripped of the very life-blood of an army, the right and the ability to maintain order and discipline within the organization and to try the men guilty of breach thereof. The surrender by General Wainright of the Fil-American Forces does not profit the petitioner's who were former members of the Philippine Constabulary any more than does the rule of war or international law they cite. The fall of Bataan and Corregidor did not end the war. It did not, legally or otherwise, keep the United States and the Commonwealth of the Philippines from organizing a new army, regular or irregular, out of new men and men in the old service who had refused to surrender or who having surrendered, had decided to carry on the fight through other diverse means and methods. The fall of Corregidor and Bataan just marked the beginning of the gigantic preparation for the gigantic drive that was to fight its way to and beyond the Philippines in fulfillment of General MacArthur's classic promise, "I shall return." The heroic role which the guerrillas played in that preparation and in the subsequent liberation of the Philippines is now history. Independently of their previous connection with the Philippine Army and the Philippine Constabulary, Captain Francisco and Lieutenant Fortus as well as Major Garcia and Lieutenant Adeva were subject to military jurisdiction. The 2d Article of War defines and enumerates the persons subject to military law as follows: Art. 2. Persons Subject to Military Law. The following persons are subject to these articles and shall be understood as included in the term "any person subject to military law" or "persons subject to military law," whenever used in these articles: (a) All officers, members of the Nurse Corps and soldiers belonging to the Regular Force of the Philippine Army; all reservists, from the dates of their call to active duty and while on such active duty; all trainees undergoing military instructions; and all other persons lawfully called, drafted, or order to obey the same; (b) Cadets, flying cadets, and probationary third lieutenants; (c) All retainers to the camp and all persons accompanying or serving with the Army of the Philippines in the field in time of war or when martial law is declared though not otherwise subject to these articles; (d) All persons under sentences adjudged by courts-martial. It is our opinion that the petitioners come within the general application of the clause in subparagraph (a); "and all other persons lawfully called, drafted, or ordered into, or to duty for training in, the said service, from the dates they are required by the terms of the call, draft, or order to obey the same." By their acceptance of appointments as officers in the Bolo Area from the General Headquarters of the 6th Military District, they became members of the Philippine Army amendable to the Articles of War. The Bolo Area, as has been seen, was a contigent of the 6th Military District which, as has also been pointed out, had been recognized by and placed under the operational control of the United States Army in the Southwest Pacific. The Bolo Area received supplies and funds for the salaries of its officers and men from the Southwest Pacific Command. As officers in the Bolo Area and the 6th Military District, the petitioners operated under the orders of duly established and duly appointed commanders of the United States Army.

The attitude of the enemy toward underground movements did not affect the military status of guerrillas who had been called into the service of the Philippine Army. If the invaders refused to look upon guerrillas, without distinctions, as legitimate troops, that did not stop the guerillas who had been inducted into the service of the Philippine Army from being component parts thereof, bound to obey military status of guerrillas was to be judged not by the concept of the army of the country for which they fought. The constitutionality of the 93d Article of War is assailed. This article ordains "that any person subject to military law who commits murder in time of was shall suffer death or imprisonment for life, as the court martial may direct." It is argued that since "no review is provided by that law to be made by the Supreme Court, irrespective of whether the punishment is for life imprisonment or death", it violates Article VIII, section 2, paragraph 4, of the Constitution of the Philippines which provides that "the National Assembly may not deprive the Supreme Court of its original jurisdiction over all criminal cases in which the penalty imposed is death or life imprisonment." We think the petitioners are in error. This error arose from failure to perceive the nature of courts martial and the sources of the authority for their creation. Courts martial are agencies of executive character, and one of the authorities "for the ordering of courts martial has been held to be attached to the constitutional functions of the President as Commander in Chief, independently of legislation." (Winthrop's Military Law and Precedents, 2d Edition, p. 49.) Unlike courts of law, they are not a portion of the judiciary. "The Supreme Court of the United States referring to the provisions of the Constitution authorizing Congress to provide for the government of the army, excepting military offenses from the civil jurisdiction, and making the President Commander in Chief, observes as follows: "These provisions show that Congress has the power to provide for the trial and punishment of military and naval offenses in the manner then and now practiced by civilized nations, and that the power to do so is given without any connection between it and the 3d Article of the United States; indeed that the two powers are entirely independent of each other." "Not belonging to the judicial branch of the government, it follows that courts-martial must pertain to the executive department; and they are in fact simply instrumentalities of the executive power, provided by Congress for the President as Commander in Chief, to aid him in properly commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his authorized military representatives." (Winthrop's Military Law and Precedents, 2d Edition, p. 49.) Of equal interest Clode, 2 M. F., 361, says of these courts in the British law: "It must never be lost sight of that the only legitimate object of military tribunals is to aid the Crown to maintain the discipline and government of the Army." (Footnote No. 24, p. 49, Winthrop's Military Law and Precedents, 2d Edition.) Our conclusion, therefore, is that the petition has no merit and that it should be dismissed with costs. It is so ordered. Moran, C.J., Paras, Feria, Pablo, Hilado, Bengzon, Briones and Padilla, JJ., concur. Separate Opinions PERFECTO, J., dissenting: We agree with the rule that laws of political nature or affecting political relations are considered in abeyance during enemy military occupation, although we maintain that the rule must be restricted to laws which are exclusively political in nature. We agree with the theory that the rule is not intended for and does not bind the enemies in arms, but we do not agree with the theory that the rule is intended for the civil inhabitants of the occupied territory without exception. We are of opinion that the rule does not apply to civil government of the occupied territory. Enemy occupation does not relieve them from their sworn official duties. Government officers wield powers and enjoy privileges denied to private citizens. The wielding of powers and enjoyment of privileges impose corresponding responsibilities, and even dangers that must be faced during emergency.

The petitioners assailed the constitutionally of the 93rd Article of War, providing that "any person subject to military law who commits murder in time of war shall suffer death or imprisonment for life, as the court-martial may direct," because no review is provided by said law to be made by the Supreme Court, irrespective of whether the punishment is for life imprisonment or death, such omission being a violation of section 2 (4) , Article VIII, of the Constitution of the Philippines. Petitioners are mistaken. The silence of the law as to the power of the Supreme Court to review the decisions and proceedings of courts-martial, especially when the penalty imposed is death or life imprisonment, should not be understood as negating such power, much more when it is recognized and guaranteed by specific provisions of the fundamental law. At any rate, any doubt in interpreting the silence of the law must be resolved in favor of a construction that will make the law constitutional. Furthermore, it may not be amiss to recall the fact that the National Assembly, in approving the Articles of War (Commonwealth Act No. 408), had never intended to deny or diminish the power of the Supreme Court to review, revise, reverse or modify final judgments and decrees of courts martial created and organized under the Articles of War. On the contrary, it was clearly understood that the decrees and the decisions of said courts-martial are subject to review by the Supreme Court. The last Committee report on the Articles of War was rendered to the National Assembly by its Committee on Third Reading, commonly known as the "Little Senate," which submitted the bill printed in final form. As chairman of the committee and in behalf of the same, we submitted the report recommending the approval of the bill on third reading with the express statement and understanding that it would not deprive the Supreme Court of its constitutional revisionary power on final judgments and decrees of courts-martial proposed to be created, which were and are to be considered as part of the judicial system, being included in the denomination of inferior courts mentioned in section 1, Article VIII, of the constitution. With the said statement and understanding, the National Assembly, without any dissenting vote, approved the Articles of War as recommended by the Committee on third Reading. Consequently, petitioners' contention is untenable, the premise upon which they assailed the constitutionality of the 93rd Article of War being groundless in view of the actuation of the national Assembly. The majority appear to concur in petitioners' premise that, by the silence of the Articles of War, the Supreme Court is deprived of its constitutional power to review final decisions of courts-martial. The majority even go as far as to justify the constitutionality of such deprivation on the theory that courts martial belong, not to the judicial branch of the government, but to the executive department, citing as authority therefor Winthrop's Military Law and Precedents. The majority are in error. In our opinion in Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) and in Homma vs. Styer (L244), we have shown that this Supreme Court enjoys the power to revise the actuations and decisions of military commissions, especially if they act without jurisdiction or violate the law, military commissions being included within the denomination of inferior courts under the provisions of our Constitution. Courts-martial are, likely military commissions, inferior courts. The fact that they are military tribunals does not change their essence as veritable tribunals or courts of justice, as agencies of the government in the administration of justice. Their functions are essentially judicial. Except in cases where judicial functions are specifically entrusted by the Constitution to other agencies such as impeachment to Congress, legislative electoral contests to the Electoral Tribunals all judicial functions are vested in the Supreme Court and in such inferior courts as may be established by law. Courts-martial are inferior courts established by law. The majority's theory is based on an authority which has no bearing or application under the Constitution of the Philippines. Winthrop's Military Law and Precedents has in mind the Constitution of the United States of America, the provisions of which regarding the judicial department are essentially different from those contained in our own Constitution.

Article III of the Constitution of the United States of America is as follows: SECTION 1. The Judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The Judges, both of the Supreme Court and Inferior Courts, shall hold their offices during good behavior, and shall at stated times, received for their services, a compensation, which shall not be diminished during their continuance in office. SEC. 2. The Judicial Power shall extend to all cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority; to all cases affecting Ambassadors, other public Ministers and Consuls; to all cases of admirality and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a States and citizens of another State; between citizens of another State; between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or subjects. In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. The trial of all crimes, except in cases of impeachment, shall be jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed. SEC. 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attached. A comparison of the above provision with that of the Constitution of the Philippines will readily show that the former does not have the negative provision contained in the latter to the effect that our Supreme Court may not be deprived of certain specific judicial functions. Section 2 of Articles VIII of our Constitution is as follows: SEC. 2. The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts, but may not deprive the Supreme Court of its original jurisdiction over cases affecting ambassadors, other public ministers, and consuls, nor of its jurisdiction to review, revise, reverse, modify of affirm on appeal, certiorari, or writ of error, as the law or the rules of court may provide, final judgments and decrees of inferior courts in (1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulations is in question. (2) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (3) All cases in which the jurisdiction of any trial courts is in issue. (4) All criminal cases in which the penalty imposed is death or life imprisonment. (5) All cases in which an error or question of law is involved. It is our considered opinion that the theory maintained in Winthrop's Military Law and Precedents and in the decisions of the Supreme Court of the United States cited therein to the effect that the trial and punishment of military and naval offenses by courts-martial are

executive functions because the only legitimate object of military tribunals "is to aid the Crown to maintain the discipline and government of the Army," as applied in the Philippine, is basically wrong, being rooted in the English monarchial ideology. Military tribunals are tribunals whose functions are judicial in character and in nature. No amount of logodaedaly may change the nature of such functions. The trial and punishment of offenses, whether civil or military naval or aerial, since time immemorial, have always been considered as judicial functions. The fact that such trial and punishment are entrusted to "tribunals or courts-martial" shows the nuclear idea of the nature of the function. Tribunals and courts are the agencies employed by government to administer justice. The very fact that in this case the Supreme Court has given due course to the petition, required respondents to answer, set the case for hearing and, in fact, heard it, instead of ordering the outright dismissal of the petition as soon as it was filed, thus following the same procedure in Reyes vs. Crisologo, (L-54, 41 Off. Gaz., 1096) and in Yamashita vs. Styer (supra), is a conclusive evidence of the fact of that this Supreme Court has the jurisdiction and power to review the proceedings and decision of military tribunals, such as courtsmartials, military commissions, and other similar bodies exercising judicial functions limited to military personnel. It appearing that petitioners impugning the jurisdiction of the court-martial which has tried and convicted them, we are of opinion that the petition must be granted in the sense that the records of the court-martial in question should, be elevated to the Supreme Court for revision, so that we may decide the question on the court-martial's jurisdiction and give petitioners the justice they are claiming for.

Sec. 8. Transmittal of Decision. The Governor-General, 4 at the commencement of each regular session of the Legislature, 5 shall transmit to that body for appropriate action all decisions so received by him, and if said body determine that payment should be made, it shall appropriate the sum which the Government has been sentenced to pay, including the same in the appropriations for the ensuing year. Sec. 9. This Act shall take effect on its approval

ACT NO. 3083 - AN ACT DEFINING THE CONDITIONS UNDER WHICH THE GOVERNMENT OF THE PHILIPPINE ISLANDS MAY BE SUED Section 1. Complaint against Government. Subject to the provisions of this Act, the Government of the Philippine Islands hereby consents and submits to be sued upon any moneyed claim involving liability arising from contract, expressed or implied, which could serve as a basis of civil action between private parties. Sec. 2. A person desiring to avail himself of the privilege herein conferred must show that he has presented his claim to the Insular Auditor 1 and that the latter did not decide the same within two months from the date of its presentation. Sec. 3. Venue. Original actions brought pursuant to the authority conferred in this Act shall be instituted in the Court of First Instance of the City of Manila or of the province were the claimant resides, at the option of the latter, upon which court exclusive original jurisdiction is hereby conferred to hear and determine such actions. Sec. 4. Actions instituted as aforesaid shall be governed by the same rules of procedure, both original and appellate, as if the litigants were private parties. Sec. 5. When the Government of the Philippine Island is plaintiff in an action instituted in any court of original jurisdiction, the defendant shall have the right to assert therein, by way of set-off or counterclaim in a similar action between private parties. Sec. 6. Process in actions brought against the Government of the Philippine Islands pursuant to the authority granted in this Act shall be served upon the AttorneyGeneral 2 whose duty it shall be to appear and make defense, either himself or through delegates. Sec. 7. Execution. No execution shall issue upon any judgment rendered by any court against the Government of the Philippine Islands under the provisions of this Act; but a copy thereof duly certified by the clerk of the Court in which judgment is rendered shall be transmitted by such clerk to the Governor-General, 3 within five days after the same becomes final.

The Civil Code of the Philippines AN ACT TO ORDAIN AND INSTITUTE THE CIVIL CODE OF THE PHILIPPINES BOOK IV OBLIGATIONS AND CONTRACTS Title. I. - OBLIGATIONS CHAPTER 1 GENERAL PROVISIONS Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable. Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. (1903a)

[(Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. (1902a)]

G.R. No. L-46930 June 10, 1988 DALE SANDERS, AND A.S. MOREAU, JR, petitioners, vs. HON. REGINO T. VERIDIANO II, as Presiding Judge, Branch I, Court of First Instance of Zambales, Olongapo City, ANTHONY M. ROSSI and RALPH L. WYERS, respondents. CRUZ, J.: The basic issue to be resolved in this case is whether or not the petitioners were performing their official duties when they did the acts for which they have been sued for damages by the private respondents. Once this question is decided, the other answers will fall into place and this petition need not detain us any longer than it already has. Petitioner Sanders was, at the time the incident in question occurred, the special services director of the U.S. Naval Station (NAVSTA) in Olongapo City. 1 Petitioner Moreau was the commanding officer of the Subic Naval Base, which includes the said station. 2 Private respondent Rossi is an American citizen with permanent residence in the Philippines, 3 as so was private respondent Wyer, who died two years ago. 4 They were both employed as gameroom attendants in the special services department of the NAVSTA, the former having been hired in 1971 and the latter in 1969. 5 On October 3, 1975, the private respondents were advised that their employment had been converted from permanent full-time to permanent part-time, effective October 18, 1975. 6 Their reaction was to protest this conversion and to institute grievance proceedings conformably to the pertinent rules and regulations of the U.S. Department of Defense. The result was a recommendation from the hearing officer who conducted the proceedings for the reinstatement of the private respondents to permanent full-time status plus backwages. The report on the hearing contained the observation that "Special Services management practices an autocratic form of supervision." 7 In a letter addressed to petitioner Moreau on May 17, 1976 (Annex "A" of the complaint), Sanders disagreed with the hearing officer's report and asked for the rejection of the abovestated recommendation. The letter contained the statements that: a ) "Mr. Rossi tends to alienate most co-workers and supervisors;" b) "Messrs. Rossi and Wyers have proven, according to their immediate supervisors, to be difficult employees to supervise;" and c)

"even though the grievants were under oath not to discuss the case with anyone, (they) placed the records in public places where others not involved in the case could hear." On November 7, 1975, before the start of the grievance hearings, a-letter (Annex "B" of the complaint) purportedly corning from petitioner Moreau as the commanding general of the U.S. Naval Station in Subic Bay was sent to the Chief of Naval Personnel explaining the change of the private respondent's employment status and requesting concurrence therewith. The letter did not carry his signature but was signed by W.B. Moore, Jr. "by direction," presumably of Moreau. On the basis of these antecedent facts, the private respondent filed in the Court of First Instance of Olongapo City a for damages against the herein petitioners on November 8, 1976. 8 The plaintiffs claimed that the letters contained libelous imputations that had exposed them to ridicule and caused them mental anguish and that the prejudgment of the grievance proceedings was an invasion of their personal and proprietary rights. The private respondents made it clear that the petitioners were being sued in their private or personal capacity. However, in a motion to dismiss filed under a special appearance, the petitioners argued that the acts complained of were performed by them in the discharge of their official duties and that, consequently, the court had no jurisdiction over them under the doctrine of state immunity. After extensive written arguments between the parties, the motion was denied in an order dated March 8, 1977, 9on the main ground that the petitioners had not presented any evidence that their acts were official in nature and not personal torts, moreover, the allegation in the complaint was that the defendants had acted maliciously and in bad faith. The same order issued a writ of preliminary attachment, conditioned upon the filing of a P10,000.00 bond by the plaintiffs, against the properties of petitioner Moreau, who allegedly was then about to leave the Philippines. Subsequently, to make matters worse for the defendants, petitioner Moreau was declared in a default by the trial court in its order dated August 9, 1977. The motion to lift the default order on the ground that Moreau's failure to appear at the pre-trial conference was the result of some misunderstanding, and the motion for reconsideration of the denial of the motion to dismiss, which was filed by the petitioner's new lawyers, were denied by the respondent court on September 7, 1977. This petition for certiorari, prohibition and preliminary injunction was thereafter filed before this Court, on the contention that the above-narrated acts of the respondent court are tainted with grave abuse of discretion amounting to lack of jurisdiction. We return now to the basic question of whether the petitioners were acting officially or only in their private capacities when they did the acts for which the private respondents have sued them for damages. It is stressed at the outset that the mere allegation that a government functionary is being sued in his personal capacity will not automatically remove him from the protection of the law of public officers and, if appropriate, the doctrine of state immunity. By the same token, the mere invocation of official character will not suffice to insulate him from suability and liability for an act imputed to him as a personal tort committed without or in excess of his authority. These well-settled principles are applicable not only to the officers of the local state but also where the person sued in its courts pertains to the government of a foreign state, as in the present case. The respondent judge, apparently finding that the complained acts were prima facie personal and tortious, decided to proceed to trial to determine inter alia their precise character on the strength of the evidence to be submitted by the parties. The petitioners have objected, arguing that no such evidence was needed to substantiate their claim of jurisdictional immunity. Pending resolution of this question, we issued a temporary restraining order on September 26, 1977, that has since then suspended the proceedings in this case in the courta quo. In past cases, this Court has held that where the character of the act complained of can be determined from the pleadings exchanged between the parties before the trial, it is not

necessary for the court to require them to belabor the point at a trial still to be conducted. Such a proceeding would be superfluous, not to say unfair to the defendant who is subjected to unnecessary and avoidable inconvenience. Thus, in Baer v. Tizon, 10 we held that a motion to dismiss a complaint against the commanding general of the Olongapo Naval Base should not have been denied because it had been sufficiently shown that the act for which he was being sued was done in his official capacity on behalf of the American government. The United States had not given its consent to be sued. It was the reverse situation in Syquia v. Almeda Lopez," where we sustained the order of the lower court granting a where we motion to dismiss a complaint against certain officers of the U.S. armed forces also shown to be acting officially in the name of the American government. The United States had also not waived its immunity from suit. Only three years ago, in United States of America v. Ruiz, 12 we set aside the denial by the lower court of a motion to dismiss a complaint for damages filed against the United States and several of its officials, it appearing that the act complained of was governmental rather than proprietary, and certainly not personal. In these and several other cases 13 the Court found it redundant to prolong the other case proceedings after it had become clear that the suit could not prosper because the acts complained of were covered by the doctrine of state immunity. It is abundantly clear in the present case that the acts for which the petitioners are being called to account were performed by them in the discharge of their official duties. Sanders, as director of the special services department of NAVSTA, undoubtedly had supervision over its personnel, including the private respondents, and had a hand in their employment, work assignments, discipline, dismissal and other related matters. It is not disputed that the letter he had written was in fact a reply to a request from his superior, the other petitioner, for more information regarding the case of the private respondents. 14 Moreover, even in the absence of such request, he still was within his rights in reacting to the hearing officer's criticismin effect a direct attack against him-that Special Services was practicing "an autocratic form of supervision." As for Moreau,what he is claimed to have done was write the Chief of Naval Personnel for concurrence with the conversion of the private respondents' type of employment even before the grievance proceedings had even commenced. Disregarding for the nonce the question of its timeliness, this act is clearly official in nature, performed by Moreau as the immediate superior of Sanders and directly answerable to Naval Personnel in matters involving the special services department of NAVSTA In fact, the letter dealt with the financial and budgetary problems of the department and contained recommendations for their solution, including the re-designation of the private respondents. There was nothing personal or private about it. Given the official character of the above-described letters, we have to conclude that the petitioners were, legally speaking, being sued as officers of the United States government. As they have acted on behalf of that government, and within the scope of their authority, it is that government, and not the petitioners personally, that is responsible for their acts. Assuming that the trial can proceed and it is proved that the claimants have a right to the payment of damages, such award will have to be satisfied not by the petitioners in their personal capacities but by the United States government as their principal. This will require that government to perform an affirmative act to satisfy the judgment, viz, the appropriation of the necessary amount to cover the damages awarded, thus making the action a suit against that government without its consent. There should be no question by now that such complaint cannot prosper unless the government sought to be held ultimately liable has given its consent to' be sued. So we have ruled not only in Baer but in many other decisions where we upheld the doctrine of state immunity as applicable not only to our own government but also to foreign states sought to be subjected to the jurisdiction of our courts. 15 The practical justification for the doctrine, as Holmes put it, is that "there can be no legal right against the authority which makes the law on which the right depends. 16 In the case of

foreign states, the rule is derived from the principle of the sovereign equality of states which wisely admonishes that par in parem non habet imperium and that a contrary attitude would "unduly vex the peace of nations." 17 Our adherence to this precept is formally expressed in Article II, Section 2, of our Constitution, where we reiterate from our previous charters that the Philippines "adopts the generally accepted principles of international law as part of the law of the land. All this is not to say that in no case may a public officer be sued as such without the previous consent of the state. To be sure, there are a number of well-recognized exceptions. It is clear that a public officer may be sued as such to compel him to do an act required by law, as where, say, a register of deeds refuses to record a deed of sale; 18or to restrain a Cabinet member, for example, from enforcing a law claimed to be unconstitutional; 19 or to compel the national treasurer to pay damages from an already appropriated assurance fund; 20 or the commissioner of internal revenue to refund tax over-payments from a fund already available for the purpose; 21 or, in general, to secure a judgment that the officer impleaded may satisfy by himself without the government itself having to do a positive act to assist him. We have also held that where the government itself has violated its own laws, the aggrieved party may directly implead the government even without first filing his claim with the Commission on Audit as normally required, as the doctrine of state immunity "cannot be used as an instrument for perpetrating an injustice." 22 This case must also be distinguished from such decisions as Festejo v. Fernando, 23 where the Court held that a bureau director could be sued for damages on a personal tort committed by him when he acted without or in excess of authority in forcibly taking private property without paying just compensation therefor although he did convert it into a public irrigation canal. It was not necessary to secure the previous consent of the state, nor could it be validly impleaded as a party defendant, as it was not responsible for the defendant's unauthorized act. The case at bar, to repeat, comes under the rule and not under any of the recognized exceptions. The government of the United States has not given its consent to be sued for the official acts of the petitioners, who cannot satisfy any judgment that may be rendered against them. As it is the American government itself that will have to perform the affirmative act of appropriating the amount that may be adjudged for the private respondents, the complaint must be dismissed for lack of jurisdiction. The Court finds that, even under the law of public officers, the acts of the petitioners are protected by the presumption of good faith, which has not been overturned by the private respondents. Even mistakes concededly committed by such public officers are not actionable as long as it is not shown that they were motivated by malice or gross negligence amounting to bad faith. 24 This, to, is well settled . 25 Furthermore, applying now our own penal laws, the letters come under the concept of privileged communications and are not punishable, 26 let alone the fact that the resented remarks are not defamatory by our standards. It seems the private respondents have overstated their case. A final consideration is that since the questioned acts were done in the Olongapo Naval Base by the petitioners in the performance of their official duties and the private respondents are themselves American citizens, it would seem only proper for the courts of this country to refrain from taking cognizance of this matter and to treat it as coming under the internal administration of the said base. The petitioners' counsel have submitted a memorandum replete with citations of American cases, as if they were arguing before a court of the United States. The Court is bemused by such attitude. While these decisions do have persuasive effect upon us, they can at best be invoked only to support our own jurisprudence, which we have developed and enriched on the basis of our own persuasions as a people, particularly since we became independent in 1946. We appreciate the assistance foreign decisions offer us, and not only from the United States but also from Spain and other countries from which we have derived some if not most of our

own laws. But we should not place undue and fawning reliance upon them and regard them as indispensable mental crutches without which we cannot come to our own decisions through the employment of our own endowments We live in a different ambience and must decide our own problems in the light of our own interests and needs, and of our qualities and even idiosyncrasies as a people, and always with our own concept of law and justice. The private respondents must, if they are still sominded, pursue their claim against the petitioners in accordance with the laws of the United States, of which they are all citizens and under whose jurisdiction the alleged offenses were committed. Even assuming that our own laws are applicable, the United States government has not decided to give its consent to be sued in our courts, which therefore has not acquired the competence to act on the said claim,. WHEREFORE, the petition is GRANTED. The challenged orders dated March 8,1977, August 9,1977, and September 7, 1977, are SET ASIDE. The respondent court is directed to DISMISS Civil Case No. 2077-O. Our Temporary restraining order of September 26,1977, is made PERMANENT. No costs. SO ORDERED. Narvasa, Gancayco, Grino-Aquio and Medialdea, JJ., Concur.

G.R. No. 84607 March 19, 1993 REPUBLIC OF THE PHILIPPINES, GEN. RAMON MONTANO, GEN. ALFREDO LIM, GEN. ALEXANDER AGUIRRE, COL. EDGAR DULA TORRES, COL. CEZAR NAZARENO, MAJ. FILEMON GASMEN, PAT. NICANOR ABANDO, PFC SERAFIN CEBU, JR., GEN. BRIGIDO PAREDES, COL. ROGELIO MONFORTE, PFC ANTONIO LUCERO, PAT. JOSE MENDIOLA, PAT. NELSON TUASON, POLICE CORPORAL PANFILO ROGOS, POLICE LT. JUAN B. BELTRAN, PAT. NOEL MANAGBAO, MARINE THIRD CLASS TRAINEE (3CT) NOLITO NOGATO, 3CT ALEJANDRO B. NAGUIO, JR., EFREN ARCILLAS, 3CT AGERICO LUNA, 3CT BASILIO BORJA, 3CT MANOLITO LUSPO, 3CT CRISTITUTO GERVACIO, 3CT MANUEL DELA CRUZ, JR., MARINE (CDC) BN., (CIVIL DISTURBANCE CONTROL), MOBILE DISPERSAL TEAM (MDT), LT. ROMEO PAQUINTO, LT. LAONGLAANG GOCE, MAJ. DEMETRIO DE LA CRUZ, POLICE CAPTAIN RODOLFO NAVAL, JOHN DOE, RICHARD DOE, ROBERTO DOE AND OTHER DOES, petitioners, vs. HON. EDILBERTO G. SANDOVAL, Regional Trial Court of Manila, Branch IX, ERLINDA C. CAYLAO, ANATALIA ANGELES PEREZ, MYRNA BAUTISTA, CIPRIANA EVANGELIO, ELMA GRAMPA, AMELIA GUTIERREZ, NEMESIO LAKINDANUM, PURITA YUMUL, MIGUEL ARABE, TERESITA ARJONA, RONALDO CAMPOMANES AND CARMENCITA ARDONI VDA. DE CAMPOMANES, ROGELIO DOMUNICO, in their capacity as heirs of the deceased (ROBERTO C. CAYLAO, SONNY "BOY" PEREZ, DIONESIO BAUTISTA, DANTE EVANGELIO, ADELFA ARIBE, DANILO ARJONA, VICENTE CAMPOMANES, RONILO DOMUNICO) respectively; and (names of sixty-two injured victims) EDDIE AGUINALDO, FELICISIMO ALBASIA, NAPOLEON BAUTISTA, DANILO CRUZ, EDDIE MENSOLA, ALBERT PITALBO, VICENTE ROSEL, RUBEN CARRIEDO, JOY CRUZ, HONORIO LABAMBA, JR., EFREN MACARAIG, SOLOMON MANALOTO, ROMEO DURAN, NILO TAGUBAT, JUN CARSELLAR, JOEY CLEMENTE, GERARDO COYOCA, LUISITO DACO, BENJAMIN DELA CRUZ, ARTHUR FONTANILLA, WILSON GARCIA, CARLOS SIRAY, JOSE PERRAS, TOMAS VALLOS, ARNOLD ENAJE, MARIANITA DIMAPILIS, FRANCISCO

ANGELES, MARCELO ESGUERRA, JOSE FERRER, RODEL DE GUIA, ELVIS MENDOZA, VICTORIANO QUIJANO, JOEY ADIME, RESIENO ADUL, ALBERTO TARSONA, CARLOS ALCANTARA, MAMERTO ALIAS, EMELITO ALMONTE, BENILDA ALONUEVO, EMMA ABADILLO, REYNALDO CABALLES, JR., JAIME CALDETO, FABIAN CANTELEJO, RODRIGO CARABARA, ENRIQUE DELGADO, JUN DELOS SANTOS, MARIO DEMASACA, FRANCISCO GONZALES, ERNESTO GONZALES, RAMIRO JAMIL, JUAN LUCENA, PERLITO SALAYSAY, JOHNNY SANTOS, MARCELO SANTOS, EMIL SAYAO, BAYANI UMALI, REMIGIO MAHALIN, BONG MANLULO, ARMANDO MATIENZO, CARLO MEDINA, LITO NOVENARIO, and ROSELLA ROBALE, respondents. G.R. No. 84645 March 19, 1993 ERLINDA C. CAYLAO, ANATALIA ANGELES PEREZ, MYRNA BAUTISTA, CIPRIANA EVANGELIO, ELMA GRAMPA, AMELIA GUTIERREZ, NEMESIO LAKINDANUM, PURITA YUMUL, MIGUEL ARABE, TERESITA ARJONA, RONALDO CAMPOMANES AND CARMENCITA ARDONI VDA. DE CAMPOMANES, ROGELIO DOMUNICO, in their capacity as heirs of the deceased (ROBERTO C. CAYLAO, SONNY "BOY" PEREZ, DIONESIO GRAMPA, ANGELITO GUTIERREZ, BERNABE LAKINDANUM, ROBERTO YUMUL, LEOPOLDO ALONZO, ADELFA ARIBE, DANILO ARJONA, VICENTE CAMPOMANES, RONILO DOMUNICO) respectively; and (names of sixty-two injured victims) EDDIE AGUINALDO, FELICISIMO ALBASIA, NAPOLEON BAUTISTA, DANILO CRUZ, EDDIE MENSOLA, ALBERT PITALBO, VICENTE ROSEL, RUBEN CARRIEDO, JOY CRUZ, HONORIO LABAMBA, JR. EFREN MACARAIG, SOLOMON MANALOTO, ROMEO DURAN, NILO TAGUBAT, JUN CARSELLAR, JOEY CLEMENTE, GERARDO COYOCA, LUISITO DACO, BENJAMIN DELA CRUZ, ARTHUR FONTANILLA, WILSON GARCIA, CARLOS SIRAY, JOSE PERRAS TOMAS VALLOS, ARNOLD ENAJE, MARIANITA DIMAPILIS, FRANCISCO ANGELES, MARCELO ESGUERRA, JOSE FERRER, RODEL DE GUIA, ELVIS MENDOZA, VICTORINO QUIJANO, JOEY ADIME, RESIENO ADUL, ALBERTO TARSONA, CARLOS ALCANTARA, MAMERTO ALIAS, EMELITO ALMONTE, BENILDA ALONUEVO, EMMA ABADILLO, REYNALDO CABALLES, JR., JAIME CALDETO, FABIAN CANTELEJO, RODRIGO CARABARA, ENRIQUE DELGADO, JUN DELOS SANTOS, MARIO DEMASACA, FRANCISCO GONZALES, ERNESTO GONZALES, RAMIRO JAMIL, JUAN LUCENA, PERLITO SALAYSAY, JOHNNY SANTOS, MARCELO SANTOS, EMIL SAYAO, BAYANI UMALI, REMIGIO MAHALIN, BONG MANLULO, ARMANDO MATIENZO, CARLO MEDINA, LITO NOVENARIO, ROSELLA ROBALE, petitioners, vs. REPUBLIC OF THE PHILIPPINES, and HONORABLE EDILBERTO G. SANDOVAL, Regional Trial Court of Manila, Branch 9, respondents. The Solicitor General for the Republic of the Philippines. Structural Alternative Legal Assistance for Grassroots for petitioners in 84645 & private respondents in 84607. CAMPOS, JR., J.: People may have already forgotten the tragedy that transpired on January 22, 1987. It is quite ironic that then, some journalists called it a Black Thursday, as a grim reminder to the nation of the misfortune that befell twelve (12) rallyists. But for most Filipinos now, the Mendiola massacre may now just as well be a chapter in our history books. For those however, who have become widows and orphans, certainly they would not settle for just that. They seek retribution for the lives taken that will never be brought back to life again.

Hence, the heirs of the deceased, together with those injured (Caylao group), instituted this petition, docketed as G.R. No. 84645, under Section 1 of Rule 65 of the Rules of Court, seeking the reversal and setting aside of the Orders of respondent Judge Sandoval, 1 dated May 31 and August 8, 1988, dismissing the complaint for damages of herein petitioners against the Republic of the Philippines in Civil Case No. 88-43351. Petitioner, the Republic of the Philippines, through a similar remedy, docketed as G.R. No. 84607, seeks to set aside the Order of respondent Judge dated May 31, 1988, in Civil Case No. 88-43351 entitled "Erlinda Caylao, et al. vs. Republic of the Philippines, et al." The pertinent portion of the questioned Order 2 dated May 31, 1988, reads as follows: With respect however to the other defendants, the impleaded Military Officers, since they are being charged in their personal and official capacity, and holding them liable, if at all, would not result in financial responsibility of the government, the principle of immunity from suit can not conveniently and correspondingly be applied to them. WHEREFORE, the case as against the defendant Republic of the Philippines is hereby dismissed. As against the rest of the defendants the motion to dismiss is denied. They are given a period of ten (10) days from receipt of this order within which to file their respective pleadings. On the other hand, the Order 3, dated August 8, 1988, denied the motions filed by both parties, for a reconsideration of the abovecited Order, respondent Judge finding no cogent reason to disturb the said order. The massacre was the culmination of eight days and seven nights of encampment by members of the militant Kilusang Magbubukid sa Pilipinas (KMP) at the then Ministry (now Department) of Agrarian Reform (MAR) at the Philippine Tobacco Administration Building along Elliptical Road in Diliman, Quezon City. The farmers and their sympathizers presented their demands for what they called "genuine agrarian reform". The KMP, led by its national president, Jaime Tadeo, presented their problems and demands, among which were: (a) giving lands for free to farmers; (b) zero retention of lands by landlords; and (c) stop amortizations of land payments. The dialogue between the farmers and the MAR officials began on January 15, 1987. The two days that followed saw a marked increase in people at the encampment. It was only on January 19, 1987 that Jaime Tadeo arrived to meet with then Minister Heherson Alvarez, only to be informed that the Minister can only meet with him the following day. On January 20, 1987, the meeting was held at the MAR conference room. Tadeo demanded that the minimum comprehensive land reform program be granted immediately. Minister Alvarez, for his part, can only promise to do his best to bring the matter to the attention of then President Aquino, during the cabinet meeting on January 21, 1987. Tension mounted the following day. The farmers, now on their seventh day of encampment, barricaded the MAR premises and prevented the employees from going inside their offices. They hoisted the KMP flag together with the Philippine flag. At around 6:30 p.m. of the same day, Minister Alvarez, in a meeting with Tadeo and his leaders, advised the latter to instead wait for the ratification of the 1987 Constitution and just allow the government to implement its comprehensive land reform program. Tadeo, however, countered by saying that he did not believe in the Constitution and that a genuine land reform cannot be realized under a landlord-controlled Congress. A heated discussion ensued between Tadeo and Minister Alvarez. This notwithstanding, Minister Alvarez suggested a negotiating panel from each side to meet again the following day. On January 22, 1987, Tadeo's group instead decided to march to Malacaang to air their demands. Before the march started, Tadeo talked to the press and TV media. He uttered fiery words, the most telling of which were: ". . . inalis namin ang barikada bilang kahilingan ng ating Presidente, pero kinakailangan alisin din niya ang barikada sa Mendiola sapagkat bubutasin din namin iyon at dadanak ang dugo . . . ." 4

The farmers then proceeded to march to Malacaang, from Quezon Memorial Circle, at 10:00 a.m. They were later joined by members of other sectoral organizations such as the Kilusang Mayo Uno (KMU), Bagong Alyansang Makabayan (BAYAN), League of Filipino Students (LFS) and Kongreso ng Pagkakaisa ng Maralitang Lungsod (KPML). At around 1:00 p.m., the marchers reached Liwasang Bonifacio where they held a brief program. It was at this point that some of the marchers entered the eastern side of the Post Office Building, and removed the steel bars surrounding the garden. Thereafter, they joined the march to Malacaang. At about 4:30 p.m., they reached C.M. Recto Avenue. In anticipation of a civil disturbance, and acting upon reports received by the Capital Regional Command (CAPCOM) that the rallyists would proceed to Mendiola to break through the police lines and rush towards Malacaang, CAPCOM Commander General Ramon E. Montao inspected the preparations and adequacy of the government forces to quell impending attacks. OPLAN YELLOW (Revised) was put into effect. Task Force Nazareno under the command of Col. Cesar Nazareno was deployed at the vicinity of Malacaang. The civil disturbance control units of the Western Police District under Police Brigadier General Alfredo S. Lim were also activated. Intelligence reports were also received that the KMP was heavily infiltrated by CPP/NPA elements and that an insurrection was impending. The threat seemed grave as there were also reports that San Beda College and Centro Escolar University would be forcibly occupied. In its report, the Citizens' Mendiola Commission (a body specifically tasked to investigate the facts surrounding the incident, Commission for short) stated that the government anti-riot forces were assembled at Mendiola in a formation of three phalanges, in the following manner: (1) The first line was composed of policemen from police stations Nos. 3, 4, 6, 7, 8, 9 and 10 and the Chinatown detachment of the Western Police District. Police Colonel Edgar Dula Torres, Deputy Superintendent of the Western Police District, was designated as ground commander of the CDC first line of defense. The WPD CDC elements were positioned at the intersection of Mendiola and Legarda Streets after they were ordered to move forward from the top of Mendiola bridge. The WPD forces were in khaki uniform and carried the standard CDC equipment aluminum shields, truncheons and gas masks. (2) At the second line of defense about ten (10) yards behind the WPD policemen were the elements of the Integrated National Police (INP) Field Force stationed at Fort Bonifacio from the 61st and 62nd INP Field Force, who carried also the standard CDC equipment truncheons, shields and gas masks. The INP Field Force was under the command of Police Major Demetrio dela Cruz. (3) Forming the third line was the Marine Civil Disturbance Control Battalion composed of the first and second companies of the Philippine Marines stationed at Fort Bonifacio. The marines were all equipped with shields, truncheons and M-16 rifles (armalites) slung at their backs, under the command of Major Felimon B. Gasmin. The Marine CDC Battalion was positioned in line formation ten (10) yards farther behind the INP Field Force. At the back of the marines were four (4) 6 x 6 army trucks, occupying the entire width of Mendiola street, followed immediately by two water cannons, one on each side of the street and eight fire trucks, four trucks on each side of the street. The eight fire trucks from Fire District I of Manila under Fire Superintendent Mario C. Tanchanco, were to supply water to the two water cannons.

Stationed farther behind the CDC forces were the two Mobile Dispersal Teams (MDT) each composed of two tear gas grenadiers, two spotters, an assistant grenadier, a driver and the team leader. In front of the College of the Holy Spirit near Gate 4 of Malacaang stood the VOLVO Mobile Communications Van of the Commanding General of CAPCOM/INP, General Ramon E. Montao. At this command post, after General Montao had conferred with TF Nazareno Commander, Colonel Cezar Nazareno, about the adequacy and readiness of his forces, it was agreed that Police General Alfredo S. Lim would designate Police Colonel Edgar Dula Torres and Police Major Conrado Francisco as negotiators with the marchers. Police General Lim then proceeded to the WPD CDC elements already positioned at the foot of Mendiola bridge to relay to Police Colonel Torres and Police Major Francisco the instructions that the latter would negotiate with the marchers. 5(Emphasis supplied) The marchers, at around 4:30 p.m., numbered about 10,000 to 15,000. From C.M. Recto Avenue, they proceeded toward the police lines. No dialogue took place between the marchers and the anti-riot squad. It was at this moment that a clash occurred and, borrowing the words of the Commission "pandemonium broke loose". The Commission stated in its findings, to wit: . . . There was an explosion followed by throwing of pillboxes, stones and bottles. Steel bars, wooden clubs and lead pipes were used against the police. The police fought back with their shields and truncheons. The police line was breached. Suddenly shots were heard. The demonstrators disengaged from the government forces and retreated towards C.M. Recto Avenue. But sporadic firing continued from the government forces. After the firing ceased, two MDTs headed by Lt. Romeo Paquinto and Lt. Laonglaan Goce sped towards Legarda Street and lobbed tear gas at the remaining rallyist still grouped in the vicinity of Mendiola. After dispersing the crowd, the two MDTs, together with the two WPD MDTs, proceeded to Liwasang Bonifacio upon order of General Montao to disperse the rallyists assembled thereat. Assisting the MDTs were a number of policemen from the WPD, attired in civilian clothes with white head bands, who were armed with long firearms. 6 (Emphasis ours) After the clash, twelve (12) marchers were officially confirmed dead, although according to Tadeo, there were thirteen (13) dead, but he was not able to give the name and address of said victim. Thirty-nine (39) were wounded by gunshots and twelve (12) sustained minor injuries, all belonging to the group of the marchers. Of the police and military personnel, three (3) sustained gunshot wounds and twenty (20) suffered minor physical injuries such as abrasions, contusions and the like. In the aftermath of the confrontation, then President Corazon C. Aquino issued Administrative Order No. 11, 7 (A.O. 11, for brevity) dated January 22, 1987, which created the Citizens' Mendiola Commission. The body was composed of retired Supreme Court Justice Vicente Abad Santos as Chairman, retired Supreme Court Justice Jose Y. Feria and Mr. Antonio U. Miranda, both as members. A.O. 11 stated that the Commission was created precisely for the "purpose of conducting an investigation of the disorder, deaths, and casualties that took place in the vicinity of Mendiola Bridge and Mendiola Street and Claro M. Recto Avenue, Manila, in the afternoon of January 22, 1987". The Commission was expected to have submitted its findings not later than February 6, 1987. But it failed to do so. Consequently, the deadline was moved to February 16, 1987 by Administrative Order No. 13. Again, the Commission was unable to meet this deadline. Finally, on February 27, 1987,

it submitted its report, in accordance with Administrative Order No. 17, issued on February 11, 1987. In its report, the Commission recapitulated its findings, to wit: (1) The march to Mendiola of the KMP led by Jaime Tadeo, together with the other sectoral groups, was not covered by any permit as required under Batas Pambansa Blg. 880, the Public Assembly Act of 1985, in violation of paragraph (a) Section 13, punishable under paragraph (a), Section 14 of said law. (2) The crowd dispersal control units of the police and the military were armed with .38 and .45 caliber handguns, and M-16 armalites, which is a prohibited act under paragraph 4(g), Section 13, and punishable under paragraph (b), Section 14 of Batas Pambansa Blg. 880. (3) The security men assigned to protect the WPD, INP Field Force, the Marines and supporting military units, as well as the security officers of the police and military commanders were in civilian attire in violation of paragraph (a), Section 10, Batas Pambansa 880. (4) There was unnecessary firing by the police and military crowd dispersal control units in dispersing the marchers, a prohibited act under paragraph (e), Section 13, and punishable under paragraph (b), Section 14, Batas Pambansa Blg. 880. (5) The carrying and use of steel bars, pillboxes, darts, lead pipe, wooden clubs with spikes, and guns by the marchers as offensive weapons are prohibited acts punishable under paragraph (g), Section 13, and punishable under paragraph (e), Section 14 of Batas Pambansa Blg. 880. (6) The KMP farmers broke off further negotiations with the MAR officials and were determined to march to Malacaang, emboldened as they are, by the inflammatory and incendiary utterances of their leader, Jaime Tadeo "bubutasin namin ang barikada . . Dadanak and dugo . . . Ang nagugutom na magsasaka ay gagawa ng sariling butas. . . (7) There was no dialogue between the rallyists and the government forces. Upon approaching the intersections of Legarda and Mendiola, the marchers began pushing the police lines and penetrated and broke through the first line of the CDC contingent. (8) The police fought back with their truncheons and shields. They stood their ground but the CDC line was breached. There ensued gunfire from both sides. It is not clear who started the firing. (9) At the onset of the disturbance and violence, the water cannons and tear gas were not put into effective use to disperse the rioting crowd. (10) The water cannons and fire trucks were not put into operation because (a) there was no order to use them; (b) they were incorrectly prepositioned; and (c) they were out of range of the marchers. (11) Tear gas was not used at the start of the disturbance to disperse the rioters. After the crowd had dispersed and the wounded and dead were being carried away, the MDTs of the police and the military with their tear gas equipment and components conducted dispersal operations in the Mendiola area and proceeded to Liwasang Bonifacio to disperse the remnants of the marchers. (12) No barbed wire barricade was used in Mendiola but no official reason was given for its absence.8 From the results of the probe, the Commission recommended 9 the criminal prosecution of four unidentified, uniformed individuals, shown either on tape or in pictures, firing at the direction of the marchers. In connection with this, it was the Commission's recommendation

that the National Bureau of Investigation (NBI) be tasked to undertake investigations regarding the identities of those who actually fired their guns that resulted in the death of or injury to the victims of the incident. The Commission also suggested that all the commissioned officers of both the Western Police District and the INP Field Force, who were armed during the incident, be prosecuted for violation of paragraph 4(g) of Section 13, Batas Pambansa Blg. 880, the Public Assembly Act of 1985. The Commission's recommendation also included the prosecution of the marchers, for carrying deadly or offensive weapons, but whose identities have yet to be established. As for Jaime Tadeo, the Commission said that he should be prosecuted both for violation of paragraph (a), Section 13, Batas Pambansa Blg. 880 for holding the rally without a permit and for violation of Article 142, as amended, of the Revised Penal Code for inciting to sedition. As for the following officers, namely: (1) Gen. Ramon E. Montao; (2) Police Gen. Alfredo S. Lim; (3) Police Gen. Edgar Dula Torres; (4) Police Maj. Demetrio dela Cruz; (5) Col. Cezar Nazareno; and (5) Maj. Felimon Gasmin, for their failure to make effective use of their skill and experience in directing the dispersal operations in Mendiola, administrative sanctions were recommended to be imposed. The last and the most significant recommendation of the Commission was for the deceased and wounded victims of the Mendiola incident to be compensated by the government. It was this portion that petitioners (Caylao group) invoke in their claim for damages from the government. Notwithstanding such recommendation, no concrete form of compensation was received by the victims. Thus, on July 27, 1987, herein petitioners, (Caylao group) filed a formal letter of demand for compensation from the Government. 10 This formal demand was indorsed by the office of the Executive Secretary to the Department of Budget and Management (DBM) on August 13, 1987. The House Committee on Human Rights, on February 10, 1988, recommended the expeditious payment of compensation to the Mendiola victims. 11 After almost a year, on January 20, 1988, petitioners (Caylao group) were constrained to institute an action for damages against the Republic of the Philippines, together with the military officers, and personnel involved in the Mendiola incident, before the trial court. The complaint was docketed as Civil Case No. 88-43351. On February 23, 1988, the Solicitor General filed a Motion to Dismiss on the ground that the State cannot be sued without its consent. Petitioners opposed said motion on March 16, 1988, maintaining that the State has waived its immunity from suit and that the dismissal of the instant action is contrary to both the Constitution and the International Law on Human Rights. Respondent Judge Sandoval, in his first questioned Order, dismissed the complaint as against the Republic of the Philippines on the ground that there was no waiver by the State. Petitioners (Caylao group) filed a Motion for Reconsideration therefrom, but the same was denied by respondent judge in his Order dated August 8, 1988. Consequently, Caylao and her co-petitioners filed the instant petition. On the other hand, the Republic of the Philippines, together with the military officers and personnel impleaded as defendants in the court below, filed its petition for certiorari. Having arisen from the same factual beginnings and raising practically identical issues, the two (2) petitions were consolidated and will therefore be jointly dealt with and resolved in this Decision. The resolution of both petitions revolves around the main issue of whether or not the State has waived its immunity from suit. Petitioners (Caylao group) advance the argument that the State has impliedly waived its sovereign immunity from suit. It is their considered view that by the recommendation made by the Commission for the government to indemnify the heirs and victims of the Mendiola incident and by the public addresses made by then President Aquino in the aftermath of the killings, the State has consented to be sued.

Under our Constitution the principle of immunity of the government from suit is expressly provided in Article XVI, Section 3. The principle is based on the very essence of sovereignty, and on the practical ground that there can be no legal right as against the authority that makes the law on which the right depends. 12 It also rests on reasons of public policy that public service would be hindered, and the public endangered, if the sovereign authority could be subjected to law suits at the instance of every citizen and consequently controlled in the uses and dispositions of the means required for the proper administration of the government. 13 This is not a suit against the State with its consent. Firstly, the recommendation made by the Commission regarding indemnification of the heirs of the deceased and the victims of the incident by the government does not in any way mean that liability automatically attaches to the State. It is important to note that A.O. 11 expressly states that the purpose of creating the Commission was to have a body that will conduct an "investigation of the disorder, deaths and casualties that took place." 14 In the exercise of its functions, A.O. 11 provides guidelines, and what is relevant to Our discussion reads: 1 Its conclusions regarding the existence of probable cause for the commission of any offense and of the persons probably guilty of the same shall be sufficient compliance with the rules on preliminary investigation and the charges arising therefrom may be filed directly with the proper court. 15 In effect, whatever may be the findings of the Commission, the same shall only serve as the cause of action in the event that any party decides to litigate his/her claim. Therefore, the Commission is merely a preliminary venue. The Commission is not the end in itself. Whatever recommendation it makes cannot in any way bind the State immediately, such recommendation not having become final and, executory. This is precisely the essence of it being a fact-finding body. Secondly, whatever acts or utterances that then President Aquino may have done or said, the same are not tantamount to the State having waived its immunity from suit. The President's act of joining the marchers, days after the incident, does not mean that there was an admission by the State of any liability. In fact to borrow the words of petitioners (Caylao group), "it was an act of solidarity by the government with the people". Moreover, petitioners rely on President Aquino's speech promising that the government would address the grievances of the rallyists. By this alone, it cannot be inferred that the State has admitted any liability, much less can it be inferred that it has consented to the suit. Although consent to be sued may be given impliedly, still it cannot be maintained that such consent was given considering the circumstances obtaining in the instant case. Thirdly, the case does not qualify as a suit against the State. Some instances when a suit against the State is proper are: 16 (1) When the Republic is sued by name; (2) When the suit is against an unincorporated government agency; (3) When the, suit is on its face against a government officer but the case is such that ultimate liability will belong not to the officer but to the government. While the Republic in this case is sued by name, the ultimate liability does not pertain to the government. Although the military officers and personnel, then party defendants, were discharging their official functions when the incident occurred, their functions ceased to be official the moment they exceeded their authority. Based on the Commission findings, there was lack of justification by the government forces in the use of firearms. 17 Moreover, the members of the police and military crowd dispersal units committed a prohibited act under B.P. Blg. 880 18 as there was unnecessary firing by them in dispersing the marchers. 19 As early as 1954, this Court has pronounced that an officer cannot shelter himself by the plea that he is a public agent acting under the color of his office when his acts are wholly without authority. 20 Until recently in 1991, 21 this doctrine still found application, this Court saying that immunity from suit cannot institutionalize irresponsibility and non-accountability

nor grant a privileged status not claimed by any other official of the Republic. The military and police forces were deployed to ensure that the rally would be peaceful and orderly as well as to guarantee the safety of the very people that they are duty-bound to protect. However, the facts as found by the trial court showed that they fired at the unruly crowd to disperse the latter. While it is true that nothing is better settled than the general rule that a sovereign state and its political subdivisions cannot be sued in the courts except when it has given its consent, it cannot be invoked by both the military officers to release them from any liability, and by the heirs and victims to demand indemnification from the government. The principle of state immunity from suit does not apply, as in this case, when the relief demanded by the suit requires no affirmative official action on the part of the State nor the affirmative discharge of any obligation which belongs to the State in its political capacity, even though the officers or agents who are made defendants claim to hold or act only by virtue of a title of the state and as its agents and servants. 22 This Court has made it quite clear that even a "high position in the government does not confer a license to persecute or recklessly injure another." 23 The inescapable conclusion is that the State cannot be held civilly liable for the deaths that followed the incident. Instead, the liability should fall on the named defendants in the lower court. In line with the ruling of this court in Shauf vs. Court of Appeals, 24 herein public officials, having been found to have acted beyond the scope of their authority, may be held liable for damages. WHEREFORE, finding no reversible error and no grave abuse of discretion committed by respondent Judge in issuing the questioned orders, the instant petitions are hereby DISMISSED. SO ORDERED. Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur. Gutierrez, Jr., J., is on leave.

G.R. No. L-5156 March 11, 1954 CARMEN FESTEJO, demandante-apelante, vs. ISAIAS FERNANDO, Director de Obras Publicas, demandado-apelado. D. Eloy B. Bello en representacion de la apelante. El Procurador General Sr. Pompeyo Diaz y el Procurador Sr. Antonio A. Torres en representacion del apelado. DIOKNO, J.: Carmen Festejo, duea de unos terrenos azucareros, de un total de unas 9 hectareas y media de superfice, demando a "Isaias Fernando Director, Bureau of public Works, que como tal Director de Obras Publicas tiene a su cargo los sistemas y proyectos de irrigacion y es el funcionario responsable de la construccion de los sistemas de irrigacion en el pais," alegando que The defendant, as Director of the Bureau of Public Works, without authority obtained first from the Court of First Instance of Ilocos Sur, without obtaining first a right of way, and without the consent and knowledge of the plaintiff, and against her express objection unlawfully took possession of portions of the three parcels of land described above, and caused an irrigation canal to be constructed on the portion of the three parcels of land on or about the month of February 1951 the aggregate area being 24,179 square meters to the damage and prejudice of the plaintiff. ----- R. on A., p. 3. causando a ella variados daos y perjuicios. Pidio, en su consecuencia, sentencia condenando el demandado: . . . to return or cause to be returned the possession of the portions of land unlawfully occupied and appropriated in the aggregate area of 24,179 square meters and to return the land to its former condition under the expenses of the defendant. . . . In the remote event that the portions of land unlawfully occupied and appropriated can not be returned to the plaintiff, then to order the defendant to pay to the plaintiff the sum of P19,343.20 as value of the portions totalling an area of 24,179 square meters; ---- R. on A., p. 5. y ademas a pagar P9,756.19 de daos y P5,000 de honorarios de abogado, con las costas R. on A., pp. 5-6.

El demandado, por medio del Procurador General, presento mocion de sobreseimiento de la demanda por el fundamento de que el Juzgado no tiene jurisdiccion para dictar sentencia valida contra el, toda vez que judicialmente la reclamacion es contra la Republica de Filipinas, y esta no ha presentado su consentimiento a la demanda. El Juzgado inferior estimo la mocion y sobreseyo la demanda sin perjuicio y sin costas. En apelacion, la demandante sostiene que fue un error considerar la demanda como una contra la Republica y sobreseer en su virtud la demanda. La mocion contra "Isaias Fernando, Director de Obras Publicas, encargado y responsable de la construccion de los sistemas de irrigacion en Filipinas" es una dirigida personalmente contra el, por actos que asumio ejecutar en su concepto oficial. La ley no le exime de responsabilidad por las extralimitaciones que cometa o haga cometer en el desempeo de sus funciones oficiales. Un caso semejante es el de Nelson vs. Bobcock (1933) 18 minn. 584, NW 49, 90 ALR 1472. Alli el Comisionado de Carreteras, al mejorar un trozo de la carretera ocupo o se apropio de terrenos contiguos al derecho de paso. El Tribunal Supremo del Estado declaro que es personalmenteresponsable al dueo de los daos causados. Declaro ademas que la ratificacion de lo que hicieron sus subordinados era equivalente a una orden a los mismos. He aqui lo dijo el Tribunal. We think the evidence and conceded facts permitted the jury in finding that in the trespass on plaintiff's land defendant committed acts outside the scope of his authority. When he went outside the boundaries of the right of way upon plaintiff's land and damaged it or destroyed its former condition an dusefulness, he must be held to have designedly departed from the duties imposed on him by law. There can be no claim that he thus invaded plaintiff's land southeasterly of the right of way innocently. Surveys clearly marked the limits of the land appropriated for the right of way of this trunk highway before construction began. . . . "Ratification may be equivalent to command, and cooperation may be inferred from acquiescence where there is power to restrain." It is unnecessary to consider other cases cited, . . ., for as before suggested, the jury could find or infer that, in so far as there was actual trespass by appropriation of plaintiff's land as a dumping place for the rock to be removed from the additional appropriated right of way, defendant planned, approved, and ratified what was done by his subordinates. Nelson vs. Bobcock, 90 A.L.R., 1472, 1476, 1477. La doctrina sobre la responsabilidad civil de los funcionarios en casos parecidos se resume como sigue: Ordinarily the officer or employee committing the tort is personally liable therefor, and may be sued as any other citizen and held answerable for whatever injury or damage results from his tortious act. 49 Am. Jur. 289. . . . If an officer, even while acting under color of his office, exceeds the power conferred on him by law, he cannot shelter himself under the plea that he is a public agent. 43 Am. Jur. 86. It is a general rule that an officer-executive, administrative quasi-judicial, ministerial, or otherwise who acts outside the scope of his jurisdiction and without authorization of law may thereby render himself amenable to personal liability in a civil suit. If he exceed the power conferred on him by law, he cannot shelter himself by the plea that he is a public agent acting under the color of his office, and not personally. In the eye of the law, his acts then are wholly without authority. 43 Am. Jur. 89-90. El articulo 32 del Codigo Civil dice a su vez: ART. 32. Any public officer or emplyee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: xxx xxx xxx

(6) The right against deprivation of property without due process of law; xxx xxx xxx In any of the cases referred to this article, whether or not the defendant's acts or omission constitutes a criminal offense, the aggrieved party has a right ot commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence. The inmdemnity shall include moral damages Exemplary damages may also be adjudicated. Veanse tambien Lung vs. Aldanese, 45 Phil., 784; Syquia vs. Almeda, No. L1648, Agosto 17, 1947; Marquez vs. Nelson, No. L-2412, Septiembre 1950. Se revoca la orden apelada y se ordena la continuacion de la tramitacion de la demanda conforme proveen los reglamentos. Sin especial pronunciamiento en cuanto a las costas. Asi se ordena. Padilla, Reyes, Jugo, Bautista Angelo and Labrador, MM., estan conformes. Separate Opinions CONCEPCION, J., dissenting: To my mind, the allegations of the complaint lead to no other conclusion than that appellee Isaias Fernando is a party in this case, not in his personal capacity, but as an officer of the Government. According to said pleading the defendant is "Isaias Fernando, Director, Bureau of Public Works." Moreover, in paragraphs 4 and 5 of the complaint, it is alleged: 4. That the defendant as Director of the Bureau of Public Works, is in charge of irrigation projects and systems, and the official responsible for the construction of irrigation system in the Philippines; 5. That the defendant, as Director of the Bureau of Public Works, without authority obtained first from the Court of First Instance of Ilocos Sur, without obtaining first a right of way, and without the consent and knowledge of the plaintiff, and against her express objection, unlawfully took possession of portions of the three parcels of land described above, and caused an irrigation canal to be constructed on the portion of the three parcels of land on or about the month of February 1951 the aggregate area being 24,179 square meters to the damage and prejudice of the plaintiff. (Emphasis supplied.) The emphasis thus placed upon the allegation that the acts complained of were performed by said defendant "as Director of the Bureau of Public Works," clearly shows that the designation of his office was included in the title of the case to indicate that he was being sued in his official capacity. This conclusion is bolstered up by the fact that, among other things, plaintiff prays, in the complaint, for a judgment Ordering the defendant to return or caused to be returned the possession of the portions of land unlawfully occupied and appropriated in the aggregate area of 24,179 square meters and to return the land to its former condition under the expense of the defendant. (Paragraph a, of the complaint). We take judicial notice of the fact that the irrigation projects and system reffered to in the complaint of which the defendant, Isaias Fernando, according to the same pleading, is "in charge" and for which he is "responsible" as Director of the Bureau of Public Works are established and operated with public funds, which pursuant to the Constitution, must be appropriated by law. Irrespective of the manner in which the construction may have been undertaken by the Bureau of Public Works, the system or canal is, therefore, a property of the Government. Consequently, in praying that possession of the portions of land occupied by the irrigation canal involved in the present case be returned to plaintiff therein, and that said land be restored to its former condition, plaintiff seeks to divest the Government of its possession of said irrigation canal, and, what is worse, to cause said property of the Government to be removed or destroyed. As held in Syquia vs. Lopez (47 Off. Gaz., 665),

the Government is, accordingly, "the real party in interest as defendant" in the case at bar. In other words, the same partakes of the nature of a suit against the state and may not be maintained without its consent. Hence I am constrained to dissent. Bengzon, J., concurs.

G.R. No. L-11154 March 21, 1916 E. MERRITT, plaintiff-appellant, vs. GOVERNMENT OF THE PHILIPPINE ISLANDS, defendant-appellant. Crossfield and O'Brien for plaintiff. Attorney-General Avancea for defendant.. TRENT, J.: This is an appeal by both parties from a judgment of the Court of First Instance of the city of Manila in favor of the plaintiff for the sum of P14,741, together with the costs of the cause. Counsel for the plaintiff insist that the trial court erred (1) "in limiting the general damages which the plaintiff suffered to P5,000, instead of P25,000 as claimed in the complaint," and (2) "in limiting the time when plaintiff was entirely disabled to two months and twenty-one days and fixing the damage accordingly in the sum of P2,666, instead of P6,000 as claimed by plaintiff in his complaint." The Attorney-General on behalf of the defendant urges that the trial court erred: (a) in finding that the collision between the plaintiff's motorcycle and the ambulance of the General Hospital was due to the negligence of the chauffeur; (b) in holding that the Government of the Philippine Islands is liable for the damages sustained by the plaintiff as a result of the collision, even if it be true that the collision was due to the negligence of the chauffeur; and (c) in rendering judgment against the defendant for the sum of P14,741. The trial court's findings of fact, which are fully supported by the record, are as follows: It is a fact not disputed by counsel for the defendant that when the plaintiff, riding on a motorcycle, was going toward the western part of Calle Padre Faura, passing along the west side thereof at a speed of ten to twelve miles an hour, upon crossing Taft Avenue and when he was ten feet from the southwestern intersection of said streets, the General Hospital ambulance, upon reaching said avenue, instead of turning toward the south, after passing the center thereof, so that it would be on the left side of said avenue, as is prescribed by the ordinance and the Motor Vehicle Act, turned suddenly and unexpectedly and long before reaching the center of the street, into the right side of Taft Avenue, without having sounded any whistle or horn, by which movement it struck the plaintiff, who was already six feet from the southwestern point or from the post place there.

By reason of the resulting collision, the plaintiff was so severely injured that, according to Dr. Saleeby, who examined him on the very same day that he was taken to the General Hospital, he was suffering from a depression in the left parietal region, a would in the same place and in the back part of his head, while blood issued from his nose and he was entirely unconscious. The marks revealed that he had one or more fractures of the skull and that the grey matter and brain was had suffered material injury. At ten o'clock of the night in question, which was the time set for performing the operation, his pulse was so weak and so irregular that, in his opinion, there was little hope that he would live. His right leg was broken in such a way that the fracture extended to the outer skin in such manner that it might be regarded as double and the would be exposed to infection, for which reason it was of the most serious nature. At another examination six days before the day of the trial, Dr. Saleeby noticed that the plaintiff's leg showed a contraction of an inch and a half and a curvature that made his leg very weak and painful at the point of the fracture. Examination of his head revealed a notable readjustment of the functions of the brain and nerves. The patient apparently was slightly deaf, had a light weakness in his eyes and in his mental condition. This latter weakness was always noticed when the plaintiff had to do any difficult mental labor, especially when he attempted to use his money for mathematical calculations. According to the various merchants who testified as witnesses, the plaintiff's mental and physical condition prior to the accident was excellent, and that after having received the injuries that have been discussed, his physical condition had undergone a noticeable depreciation, for he had lost the agility, energy, and ability that he had constantly displayed before the accident as one of the best constructors of wooden buildings and he could not now earn even a half of the income that he had secured for his work because he had lost 50 per cent of his efficiency. As a contractor, he could no longer, as he had before done, climb up ladders and scaffoldings to reach the highest parts of the building. As a consequence of the loss the plaintiff suffered in the efficiency of his work as a contractor, he had to dissolved the partnership he had formed with the engineer. Wilson, because he was incapacitated from making mathematical calculations on account of the condition of his leg and of his mental faculties, and he had to give up a contract he had for the construction of the Uy Chaco building." We may say at the outset that we are in full accord with the trial court to the effect that the collision between the plaintiff's motorcycle and the ambulance of the General Hospital was due solely to the negligence of the chauffeur. The two items which constitute a part of the P14,741 and which are drawn in question by the plaintiff are (a) P5,000, the award awarded for permanent injuries, and (b) the P2,666, the amount allowed for the loss of wages during the time the plaintiff was incapacitated from pursuing his occupation. We find nothing in the record which would justify us in increasing the amount of the first. As to the second, the record shows, and the trial court so found, that the plaintiff's services as a contractor were worth P1,000 per month. The court, however, limited the time to two months and twenty-one days, which the plaintiff was actually confined in the hospital. In this we think there was error, because it was clearly established that the plaintiff was wholly incapacitated for a period of six months. The mere fact that he remained in the hospital only two months and twenty-one days while the remainder of the six months was spent in his home, would not prevent recovery for the whole time. We, therefore, find that the amount of damages sustained by the plaintiff, without any fault on his part, is P18,075. As the negligence which caused the collision is a tort committed by an agent or employee of the Government, the inquiry at once arises whether the Government is legally-liable for the damages resulting therefrom.

Act No. 2457, effective February 3, 1915, reads: An Act authorizing E. Merritt to bring suit against the Government of the Philippine Islands and authorizing the Attorney-General of said Islands to appear in said suit. Whereas a claim has been filed against the Government of the Philippine Islands by Mr. E. Merritt, of Manila, for damages resulting from a collision between his motorcycle and the ambulance of the General Hospital on March twenty-fifth, nineteen hundred and thirteen; Whereas it is not known who is responsible for the accident nor is it possible to determine the amount of damages, if any, to which the claimant is entitled; and Whereas the Director of Public Works and the Attorney-General recommended that an Act be passed by the Legislature authorizing Mr. E. Merritt to bring suit in the courts against the Government, in order that said questions may be decided: Now, therefore, By authority of the United States, be it enacted by the Philippine Legislature, that: SECTION 1. E. Merritt is hereby authorized to bring suit in the Court of First Instance of the city of Manila against the Government of the Philippine Islands in order to fix the responsibility for the collision between his motorcycle and the ambulance of the General Hospital, and to determine the amount of the damages, if any, to which Mr. E. Merritt is entitled on account of said collision, and the Attorney-General of the Philippine Islands is hereby authorized and directed to appear at the trial on the behalf of the Government of said Islands, to defendant said Government at the same. SEC. 2. This Act shall take effect on its passage. Enacted, February 3, 1915. Did the defendant, in enacting the above quoted Act, simply waive its immunity from suit or did it also concede its liability to the plaintiff? If only the former, then it cannot be held that the Act created any new cause of action in favor of the plaintiff or extended the defendant's liability to any case not previously recognized. All admit that the Insular Government (the defendant) cannot be sued by an individual without its consent. It is also admitted that the instant case is one against the Government. As the consent of the Government to be sued by the plaintiff was entirely voluntary on its part, it is our duty to look carefully into the terms of the consent, and render judgment accordingly. The plaintiff was authorized to bring this action against the Government "in order to fix the responsibility for the collision between his motorcycle and the ambulance of the General Hospital and to determine the amount of the damages, if any, to which Mr. E. Merritt is entitled on account of said collision, . . . ." These were the two questions submitted to the court for determination. The Act was passed "in order that said questions may be decided." We have "decided" that the accident was due solely to the negligence of the chauffeur, who was at the time an employee of the defendant, and we have also fixed the amount of damages sustained by the plaintiff as a result of the collision. Does the Act authorize us to hold that the Government is legally liable for that amount? If not, we must look elsewhere for such authority, if it exists. The Government of the Philippine Islands having been "modeled after the Federal and State Governments in the United States," we may look to the decisions of the high courts of that country for aid in determining the purpose and scope of Act No. 2457. In the United States the rule that the state is not liable for the torts committed by its officers or agents whom it employs, except when expressly made so by legislative enactment, is well settled. "The Government," says Justice Story, "does not undertake to guarantee to any person the fidelity of the officers or agents whom it employs, since that would involve it in all its operations in endless embarrassments, difficulties and losses, which would be subversive of the public interest." (Claussen vs. City of Luverne, 103 Minn., 491, citing U.

S. vs. Kirkpatrick, 9 Wheat, 720; 6 L. Ed., 199; and Beers vs. States, 20 How., 527; 15 L. Ed., 991.) In the case of Melvin vs. State (121 Cal., 16), the plaintiff sought to recover damages from the state for personal injuries received on account of the negligence of the state officers at the state fair, a state institution created by the legislature for the purpose of improving agricultural and kindred industries; to disseminate information calculated to educate and benefit the industrial classes; and to advance by such means the material interests of the state, being objects similar to those sought by the public school system. In passing upon the question of the state's liability for the negligent acts of its officers or agents, the court said: No claim arises against any government is favor of an individual, by reason of the misfeasance, laches, or unauthorized exercise of powers by its officers or agents. (Citing Gibbons vs. U. S., 8 Wall., 269; Clodfelter vs. State, 86 N. C., 51, 53; 41 Am. Rep., 440; Chapman vs. State, 104 Cal., 690; 43 Am. St. Rep., 158; Green vs. State, 73 Cal., 29; Bourn vs. Hart, 93 Cal., 321; 27 Am. St. Rep., 203; Story on Agency, sec. 319.) As to the scope of legislative enactments permitting individuals to sue the state where the cause of action arises out of either fort or contract, the rule is stated in 36 Cyc., 915, thus: By consenting to be sued a state simply waives its immunity from suit. It does not thereby concede its liability to plaintiff, or create any cause of action in his favor, or extend its liability to any cause not previously recognized. It merely gives a remedy to enforce a preexisting liability and submits itself to the jurisdiction of the court, subject to its right to interpose any lawful defense. In Apfelbacher vs. State (152 N. W., 144, advanced sheets), decided April 16, 1915, the Act of 1913, which authorized the bringing of this suit, read: SECTION 1. Authority is hereby given to George Apfelbacher, of the town of Summit, Waukesha County, Wisconsin, to bring suit in such court or courts and in such form or forms as he may be advised for the purpose of settling and determining all controversies which he may now have with the State of Wisconsin, or its duly authorized officers and agents, relative to the mill property of said George Apfelbacher, the fish hatchery of the State of Wisconsin on the Bark River, and the mill property of Evan Humphrey at the lower end of Nagawicka Lake, and relative to the use of the waters of said Bark River and Nagawicka Lake, all in the county of Waukesha, Wisconsin. In determining the scope of this act, the court said: Plaintiff claims that by the enactment of this law the legislature admitted liability on the part of the state for the acts of its officers, and that the suit now stands just as it would stand between private parties. It is difficult to see how the act does, or was intended to do, more than remove the state's immunity from suit. It simply gives authority to commence suit for the purpose of settling plaintiff's controversies with the estate. Nowhere in the act is there a whisper or suggestion that the court or courts in the disposition of the suit shall depart from well established principles of law, or that the amount of damages is the only question to be settled. The act opened the door of the court to the plaintiff. It did not pass upon the question of liability, but left the suit just where it would be in the absence of the state's immunity from suit. If the Legislature had intended to change the rule that obtained in this state so long and to declare liability on the part of the state, it would not have left so important a matter to mere inference, but would have done so in express terms. (Murdock Grate Co. vs. Commonwealth, 152 Mass., 28; 24 N.E., 854; 8 L. R. A., 399.) In Denning vs. State (123 Cal., 316), the provisions of the Act of 1893, relied upon and considered, are as follows: All persons who have, or shall hereafter have, claims on contract or for negligence against the state not allowed by the state board of examiners, are hereby

authorized, on the terms and conditions herein contained, to bring suit thereon against the state in any of the courts of this state of competent jurisdiction, and prosecute the same to final judgment. The rules of practice in civil cases shall apply to such suits, except as herein otherwise provided. And the court said: This statute has been considered by this court in at least two cases, arising under different facts, and in both it was held that said statute did not create any liability or cause of action against the state where none existed before, but merely gave an additional remedy to enforce such liability as would have existed if the statute had not been enacted. (Chapman vs. State, 104 Cal., 690; 43 Am. St. Rep., 158; Melvin vs. State, 121 Cal., 16.) A statute of Massachusetts enacted in 1887 gave to the superior court "jurisdiction of all claims against the commonwealth, whether at law or in equity," with an exception not necessary to be here mentioned. In construing this statute the court, in Murdock Grate Co. vs. Commonwealth (152 Mass., 28), said: The statute we are discussing disclose no intention to create against the state a new and heretofore unrecognized class of liabilities, but only an intention to provide a judicial tribunal where well recognized existing liabilities can be adjudicated. In Sipple vs. State (99 N. Y., 284), where the board of the canal claims had, by the terms of the statute of New York, jurisdiction of claims for damages for injuries in the management of the canals such as the plaintiff had sustained, Chief Justice Ruger remarks: "It must be conceded that the state can be made liable for injuries arising from the negligence of its agents or servants, only by force of some positive statute assuming such liability." It being quite clear that Act No. 2457 does not operate to extend the Government's liability to any cause not previously recognized, we will now examine the substantive law touching the defendant's liability for the negligent acts of its officers, agents, and employees. Paragraph 5 of article 1903 of the Civil Code reads: The state is liable in this sense when it acts through a special agent, but not when the damage should have been caused by the official to whom properly it pertained to do the act performed, in which case the provisions of the preceding article shall be applicable. The supreme court of Spain in defining the scope of this paragraph said: That the obligation to indemnify for damages which a third person causes to another by his fault or negligence is based, as is evidenced by the same Law 3, Title 15, Partida 7, on that the person obligated, by his own fault or negligence, takes part in the act or omission of the third party who caused the damage. It follows therefrom that the state, by virtue of such provisions of law, is not responsible for the damages suffered by private individuals in consequence of acts performed by its employees in the discharge of the functions pertaining to their office, because neither fault nor even negligence can be presumed on the part of the state in the organization of branches of public service and in the appointment of its agents; on the contrary, we must presuppose all foresight humanly possible on its part in order that each branch of service serves the general weal an that of private persons interested in its operation. Between these latter and the state, therefore, no relations of a private nature governed by the civil law can arise except in a case where the state acts as a judicial person capable of acquiring rights and contracting obligations. (Supreme Court of Spain, January 7, 1898; 83 Jur. Civ., 24.) That the Civil Code in chapter 2, title 16, book 4, regulates the obligations which arise out of fault or negligence; and whereas in the first article thereof. No. 1902, where the general principle is laid down that where a person who by an act or omission causes damage to another through fault or negligence, shall be obliged to repair the damage so done, reference is made to acts or omissions of the persons

who directly or indirectly cause the damage, the following articles refers to this persons and imposes an identical obligation upon those who maintain fixed relations of authority and superiority over the authors of the damage, because the law presumes that in consequence of such relations the evil caused by their own fault or negligence is imputable to them. This legal presumption gives way to proof, however, because, as held in the last paragraph of article 1903, responsibility for acts of third persons ceases when the persons mentioned in said article prove that they employed all the diligence of a good father of a family to avoid the damage, and among these persons, called upon to answer in a direct and not a subsidiary manner, are found, in addition to the mother or the father in a proper case, guardians and owners or directors of an establishment or enterprise, the state, but not always, except when it acts through the agency of a special agent, doubtless because and only in this case, the fault or negligence, which is the original basis of this kind of objections, must be presumed to lie with the state. That although in some cases the state might by virtue of the general principle set forth in article 1902 respond for all the damage that is occasioned to private parties by orders or resolutions which by fault or negligence are made by branches of the central administration acting in the name and representation of the state itself and as an external expression of its sovereignty in the exercise of its executive powers, yet said article is not applicable in the case of damages said to have been occasioned to the petitioners by an executive official, acting in the exercise of his powers, in proceedings to enforce the collections of certain property taxes owing by the owner of the property which they hold in sublease. That the responsibility of the state is limited by article 1903 to the case wherein it acts through a special agent (and a special agent, in the sense in which these words are employed, is one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special official) so that in representation of the state and being bound to act as an agent thereof, he executes the trust confided to him. This concept does not apply to any executive agent who is an employee of the acting administration and who on his own responsibility performs the functions which are inherent in and naturally pertain to his office and which are regulated by law and the regulations." (Supreme Court of Spain, May 18, 1904; 98 Jur. Civ., 389, 390.) That according to paragraph 5 of article 1903 of the Civil Code and the principle laid down in a decision, among others, of the 18th of May, 1904, in a damage case, the responsibility of the state is limited to that which it contracts through a special agent, duly empowered by a definite order or commission to perform some act or charged with some definite purpose which gives rise to the claim, and not where the claim is based on acts or omissions imputable to a public official charged with some administrative or technical office who can be held to the proper responsibility in the manner laid down by the law of civil responsibility. Consequently, the trial court in not so deciding and in sentencing the said entity to the payment of damages, caused by an official of the second class referred to, has by erroneous interpretation infringed the provisions of articles 1902 and 1903 of the Civil Code. (Supreme Court of Spain, July 30, 1911; 122 Jur. Civ., 146.) It is, therefore, evidence that the State (the Government of the Philippine Islands) is only liable, according to the above quoted decisions of the Supreme Court of Spain, for the acts of its agents, officers and employees when they act as special agents within the meaning of paragraph 5 of article 1903, supra, and that the chauffeur of the ambulance of the General Hospital was not such an agent. For the foregoing reasons, the judgment appealed from must be reversed, without costs in this instance. Whether the Government intends to make itself legally liable for the amount of damages above set forth, which the plaintiff has sustained by reason of the negligent acts of

one of its employees, by legislative enactment and by appropriating sufficient funds therefor, we are not called upon to determine. This matter rests solely with the Legislature and not with the courts. Arellano, C. J., Torres, Johnson, and Moreland, JJ., concur.

G.R. No. L-26400 February 29, 1972 VICTORIA AMIGABLE, plaintiff-appellant, vs. NICOLAS CUENCA, as Commissioner of Public Highways and REPUBLIC OF THE PHILIPPINES, defendants-appellees. MAKALINTAL, J.:p This is an appeal from the decision of the Court of First Instance of Cebu in its Civil Case No. R-5977, dismissing the plaintiff's complaint. Victoria Amigable, the appellant herein, is the registered owner of Lot No. 639 of the Banilad Estate in Cebu City as shown by Transfer Certificate of Title No. T-18060, which superseded Transfer Certificate of Title No. RT-3272 (T-3435) issued to her by the Register of Deeds of Cebu on February 1, 1924. No annotation in favor of the government of any right or interest in the property appears at the back of the certificate. Without prior expropriation or negotiated sale, the government used a portion of said lot, with an area of 6,167 square meters, for the construction of the Mango and Gorordo Avenues. It appears that said avenues were already existing in 1921 although "they were in bad condition and very narrow, unlike the wide and beautiful avenues that they are now," and "that the tracing of said roads was begun in 1924, and the formal construction in 1925." * On March 27, 1958 Amigable's counsel wrote the President of the Philippines, requesting payment of the portion of her lot which had been appropriated by the government. The claim was indorsed to the Auditor General, who disallowed it in his 9th Indorsement dated December 9, 1958. A copy of said indorsement was transmitted to Amigable's counsel by the Office of the President on January 7, 1959. On February 6, 1959 Amigable filed in the court a quo a complaint, which was later amended on April 17, 1959 upon motion of the defendants, against the Republic of the Philippines and Nicolas Cuenca, in his capacity as Commissioner of Public Highways for the recovery of ownership and possession of the 6,167 square meters of land traversed by the Mango and Gorordo Avenues. She also sought the payment of compensatory damages in the sum of P50,000.00 for the illegal occupation of her land, moral damages in the sum of P25,000.00, attorney's fees in the sum of P5,000.00 and the costs of the suit.

Within the reglementary period the defendants filed a joint answer denying the material allegations of the complaint and interposing the following affirmative defenses, to wit: (1) that the action was premature, the claim not having been filed first with the Office of the Auditor General; (2) that the right of action for the recovery of any amount which might be due the plaintiff, if any, had already prescribed; (3) that the action being a suit against the Government, the claim for moral damages, attorney's fees and costs had no valid basis since as to these items the Government had not given its consent to be sued; and (4) that inasmuch as it was the province of Cebu that appropriated and used the area involved in the construction of Mango Avenue, plaintiff had no cause of action against the defendants. During the scheduled hearings nobody appeared for the defendants notwithstanding due notice, so the trial court proceeded to receive the plaintiff's evidence ex parte. On July 29, 1959 said court rendered its decision holding that it had no jurisdiction over the plaintiff's cause of action for the recovery of possession and ownership of the portion of her lot in question on the ground that the government cannot be sued without its consent; that it had neither original nor appellate jurisdiction to hear, try and decide plaintiff's claim for compensatory damages in the sum of P50,000.00, the same being a money claim against the government; and that the claim for moral damages had long prescribed, nor did it have jurisdiction over said claim because the government had not given its consent to be sued. Accordingly, the complaint was dismissed. Unable to secure a reconsideration, the plaintiff appealed to the Court of Appeals, which subsequently certified the case to Us, there being no question of fact involved. The issue here is whether or not the appellant may properly sue the government under the facts of the case. In the case of Ministerio vs. Court of First Instance of Cebu, 1 involving a claim for payment of the value of a portion of land used for the widening of the Gorordo Avenue in Cebu City, this Court, through Mr. Justice Enrique M. Fernando, held that where the government takes away property from a private landowner for public use without going through the legal process of expropriation or negotiated sale, the aggrieved party may properly maintain a suit against the government without thereby violating the doctrine of governmental immunity from suit without its consent. We there said: . ... . If the constitutional mandate that the owner be compensated for property taken for public use were to be respected, as it should, then a suit of this character should not be summarily dismissed. The doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen. Had the government followed the procedure indicated by the governing law at the time, a complaint would have been filed by it, and only upon payment of the compensation fixed by the judgment, or after tender to the party entitled to such payment of the amount fixed, may it "have the right to enter in and upon the land so condemned, to appropriate the same to the public use defined in the judgment." If there were an observance of procedural regularity, petitioners would not be in the sad plaint they are now. It is unthinkable then that precisely because there was a failure to abide by what the law requires, the government would stand to benefit. It is just as important, if not more so, that there be fidelity to legal norms on the part of officialdom if the rule of law were to be maintained. It is not too much to say that when the government takes any property for public use, which is conditioned upon the payment of just compensation, to be judicially ascertained, it makes manifest that it submits to the jurisdiction of a court. There is no thought then that the doctrine of immunity from suit could still be appropriately invoked. Considering that no annotation in favor of the government appears at the back of her certificate of title and that she has not executed any deed of conveyance of any portion of her

lot to the government, the appellant remains the owner of the whole lot. As registered owner, she could bring an action to recover possession of the portion of land in question at anytime because possession is one of the attributes of ownership. However, since restoration of possession of said portion by the government is neither convenient nor feasible at this time because it is now and has been used for road purposes, the only relief available is for the government to make due compensation which it could and should have done years ago. To determine the due compensation for the land, the basis should be the price or value thereof at the time of the taking. 2 As regards the claim for damages, the plaintiff is entitled thereto in the form of legal interest on the price of the land from the time it was taken up to the time that payment is made by the government. 3 In addition, the government should pay for attorney's fees, the amount of which should be fixed by the trial court after hearing. WHEREFORE, the decision appealed from is hereby set aside and the case remanded to the court a quo for the determination of compensation, including attorney's fees, to which the appellant is entitled as above indicated. No pronouncement as to costs. Concepcion, C.J., Reyes, J.B.L., Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar JJ., concur.

G.R. No. L-35645 May 22, 1985 UNITED STATES OF AMERICA, CAPT. JAMES E. GALLOWAY, WILLIAM I. COLLINS and ROBERT GOHIER,petitioners, vs. HON. V. M. RUIZ, Presiding Judge of Branch XV, Court of First Instance of Rizal and ELIGIO DE GUZMAN & CO., INC., respondents. Sycip, Salazar, Luna & Manalo & Feliciano Law for petitioners. Albert, Vergara, Benares, Perias & Dominguez Law Office for respondents. ABAD SANTOS, J.: This is a petition to review, set aside certain orders and restrain the respondent judge from trying Civil Case No. 779M of the defunct Court of First Instance of Rizal. The factual background is as follows: At times material to this case, the United States of America had a naval base in Subic, Zambales. The base was one of those provided in the Military Bases Agreement between the Philippines and the United States. Sometime in May, 1972, the United States invited the submission of bids for the following projects 1. Repair offender system, Alava Wharf at the U.S. Naval Station Subic Bay, Philippines. 2. Repair typhoon damage to NAS Cubi shoreline; repair typhoon damage to shoreline revetment, NAVBASE Subic; and repair to Leyte Wharf approach, NAVBASE Subic Bay, Philippines. Eligio de Guzman & Co., Inc. responded to the invitation and submitted bids. Subsequent thereto, the company received from the United States two telegrams requesting it to confirm its price proposals and for the name of its bonding company. The company complied with the requests. [In its complaint, the company alleges that the United States had accepted its bids because "A request to confirm a price proposal confirms the acceptance of a bid pursuant to defendant United States' bidding practices." (Rollo, p. 30.) The truth of this allegation has not been tested because the case has not reached the trial stage.] In June, 1972, the company received a letter which was signed by Wilham I. Collins, Director, Contracts Division, Naval Facilities Engineering Command, Southwest Pacific, Department of the Navy of the United States, who is one of the petitioners herein. The letter

said that the company did not qualify to receive an award for the projects because of its previous unsatisfactory performance rating on a repair contract for the sea wall at the boat landings of the U.S. Naval Station in Subic Bay. The letter further said that the projects had been awarded to third parties. In the abovementioned Civil Case No. 779-M, the company sued the United States of America and Messrs. James E. Galloway, William I. Collins and Robert Gohier all members of the Engineering Command of the U.S. Navy. The complaint is to order the defendants to allow the plaintiff to perform the work on the projects and, in the event that specific performance was no longer possible, to order the defendants to pay damages. The company also asked for the issuance of a writ of preliminary injunction to restrain the defendants from entering into contracts with third parties for work on the projects. The defendants entered their special appearance for the purpose only of questioning the jurisdiction of this court over the subject matter of the complaint and the persons of defendants, the subject matter of the complaint being acts and omissions of the individual defendants as agents of defendant United States of America, a foreign sovereign which has not given her consent to this suit or any other suit for the causes of action asserted in the complaint." (Rollo, p. 50.) Subsequently the defendants filed a motion to dismiss the complaint which included an opposition to the issuance of the writ of preliminary injunction. The company opposed the motion. The trial court denied the motion and issued the writ. The defendants moved twice to reconsider but to no avail. Hence the instant petition which seeks to restrain perpetually the proceedings in Civil Case No. 779-M for lack of jurisdiction on the part of the trial court. The petition is highly impressed with merit. The traditional rule of State immunity exempts a State from being sued in the courts of another State without its consent or waiver. This rule is a necessary consequence of the principles of independence and equality of States. However, the rules of International Law are not petrified; they are constantly developing and evolving. And because the activities of states have multiplied, it has been necessary to distinguish them-between sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that State immunity now extends only to acts jure imperil The restrictive application of State immunity is now the rule in the United States, the United Kingdom and other states in western Europe. (See Coquia and Defensor Santiago, Public International Law, pp. 207-209 [1984].) The respondent judge recognized the restrictive doctrine of State immunity when he said in his Order denying the defendants' (now petitioners) motion: " A distinction should be made between a strictly governmental function of the sovereign state from its private, proprietary or non- governmental acts (Rollo, p. 20.) However, the respondent judge also said: "It is the Court's considered opinion that entering into a contract for the repair of wharves or shoreline is certainly not a governmental function altho it may partake of a public nature or character. As aptly pointed out by plaintiff's counsel in his reply citing the ruling in the case of Lyons, Inc., [104 Phil. 594 (1958)], and which this Court quotes with approval, viz.: It is however contended that when a sovereign state enters into a contract with a private person, the state can be sued upon the theory that it has descended to the level of an individual from which it can be implied that it has given its consent to be sued under the contract. ... xxx xxx xxx We agree to the above contention, and considering that the United States government, through its agency at Subic Bay, entered into a contract with appellant for stevedoring and miscellaneous labor services within the Subic Bay Area, a U.S. Naval Reservation, it is evident that it can bring an action before our courts for any contractual liability that that political entity may assume under the contract. The trial court, therefore, has jurisdiction to entertain this case ... (Rollo, pp. 20-21.)

The reliance placed on Lyons by the respondent judge is misplaced for the following reasons: In Harry Lyons, Inc. vs. The United States of America, supra, plaintiff brought suit in the Court of First Instance of Manila to collect several sums of money on account of a contract between plaintiff and defendant. The defendant filed a motion to dismiss on the ground that the court had no jurisdiction over defendant and over the subject matter of the action. The court granted the motion on the grounds that: (a) it had no jurisdiction over the defendant who did not give its consent to the suit; and (b) plaintiff failed to exhaust the administrative remedies provided in the contract. The order of dismissal was elevated to this Court for review. In sustaining the action of the lower court, this Court said: It appearing in the complaint that appellant has not complied with the procedure laid down in Article XXI of the contract regarding the prosecution of its claim against the United States Government, or, stated differently, it has failed to first exhaust its administrative remedies against said Government, the lower court acted properly in dismissing this case.(At p. 598.) It can thus be seen that the statement in respect of the waiver of State immunity from suit was purely gratuitous and, therefore, obiter so that it has no value as an imperative authority. The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a State may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. It does not apply where the contract relates to the exercise of its sovereign functions. In this case the projects are an integral part of the naval base which is devoted to the defense of both the United States and the Philippines, indisputably a function of the government of the highest order; they are not utilized for nor dedicated to commercial or business purposes. That the correct test for the application of State immunity is not the conclusion of a contract by a State but the legal nature of the act is shown in Syquia vs. Lopez, 84 Phil. 312 (1949). In that case the plaintiffs leased three apartment buildings to the United States of America for the use of its military officials. The plaintiffs sued to recover possession of the premises on the ground that the term of the leases had expired. They also asked for increased rentals until the apartments shall have been vacated. The defendants who were armed forces officers of the United States moved to dismiss the suit for lack of jurisdiction in the part of the court. The Municipal Court of Manila granted the motion to dismiss; sustained by the Court of First Instance, the plaintiffs went to this Court for review on certiorari. In denying the petition, this Court said: On the basis of the foregoing considerations we are of the belief and we hold that the real party defendant in interest is the Government of the United States of America; that any judgment for back or Increased rentals or damages will have to be paid not by defendants Moore and Tillman and their 64 co-defendants but by the said U.S. Government. On the basis of the ruling in the case of Land vs. Dollar already cited, and on what we have already stated, the present action must be considered as one against the U.S. Government. It is clear hat the courts of the Philippines including the Municipal Court of Manila have no jurisdiction over the present case for unlawful detainer. The question of lack of jurisdiction was raised and interposed at the very beginning of the action. The U.S. Government has not , given its consent to the filing of this suit which is essentially against her, though not in name. Moreover, this is not only a case of a citizen filing a suit against his own Government without the latter's consent but it is of a citizen filing an

action against a foreign government without said government's consent, which renders more obvious the lack of jurisdiction of the courts of his country. The principles of law behind this rule are so elementary and of such general acceptance that we deem it unnecessary to cite authorities in support thereof. (At p. 323.) In Syquia,the United States concluded contracts with private individuals but the contracts notwithstanding the States was not deemed to have given or waived its consent to be sued for the reason that the contracts were forjure imperii and not for jure gestionis. WHEREFORE, the petition is granted; the questioned orders of the respondent judge are set aside and Civil Case No. is dismissed. Costs against the private respondent. Teehankee, Aquino, Concepcion, Jr., Melencio-Herrera, Plana, * Escolin, Relova, Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ., concur. Fernando, C.J., took no part. Separate Opinions MAKASIAR, J., dissenting: The petition should be dismissed and the proceedings in Civil Case No. 779-M in the defunct CFI (now RTC) of Rizal be allowed to continue therein. In the case of Lyons vs. the United States of America (104 Phil. 593), where the contract entered into between the plaintiff (Harry Lyons, Inc.) and the defendant (U.S. Government) involved stevedoring and labor services within the Subic Bay area, this Court further stated that inasmuch as ". . . the United States Government. through its agency at Subic Bay, entered into a contract with appellant for stevedoring and miscellaneous labor services within the Subic Bay area, a U.S. Navy Reservation, it is evident that it can bring an action before our courts for any contractual liability that that political entity may assume under the contract." When the U.S. Government, through its agency at Subic Bay, confirmed the acceptance of a bid of a private company for the repair of wharves or shoreline in the Subic Bay area, it is deemed to have entered into a contract and thus waived the mantle of sovereign immunity from suit and descended to the level of the ordinary citizen. Its consent to be sued, therefore, is implied from its act of entering into a contract (Santos vs. Santos, 92 Phil. 281, 284). Justice and fairness dictate that a foreign government that commits a breach of its contractual obligation in the case at bar by the unilateral cancellation of the award for the project by the United States government, through its agency at Subic Bay should not be allowed to take undue advantage of a party who may have legitimate claims against it by seeking refuge behind the shield of non-suability. A contrary view would render a Filipino citizen, as in the instant case, helpless and without redress in his own country for violation of his rights committed by the agents of the foreign government professing to act in its name. Appropriate are the words of Justice Perfecto in his dissenting opinion in Syquia vs. Almeda Lopez, 84 Phil. 312, 325: Although, generally, foreign governments are beyond the jurisdiction of domestic courts of justice, such rule is inapplicable to cases in which the foreign government enters into private contracts with the citizens of the court's jurisdiction. A contrary view would simply run against all principles of decency and violative of all tenets of morals. Moral principles and principles of justice are as valid and applicable as well with regard to private individuals as with regard to governments either domestic or foreign. Once a foreign government enters into a private contract with the private citizens of another country, such foreign government cannot shield its non-performance or contravention of the terms of the contract under the cloak of non-jurisdiction. To place such

foreign government beyond the jurisdiction of the domestic courts is to give approval to the execution of unilateral contracts, graphically described in Spanish as 'contratos leoninos', because one party gets the lion's share to the detriment of the other. To give validity to such contract is to sanctify bad faith, deceit, fraud. We prefer to adhere to the thesis that all parties in a private contract, including governments and the most powerful of them, are amenable to law, and that such contracts are enforceable through the help of the courts of justice with jurisdiction to take cognizance of any violation of such contracts if the same had been entered into only by private individuals. Constant resort by a foreign state or its agents to the doctrine of State immunity in this jurisdiction impinges unduly upon our sovereignty and dignity as a nation. Its application will particularly discourage Filipino or domestic contractors from transacting business and entering into contracts with United States authorities or facilities in the Philippines whether naval, air or ground forces-because the difficulty, if not impossibility, of enforcing a validly executed contract and of seeking judicial remedy in our own courts for breaches of contractual obligation committed by agents of the United States government, always, looms large, thereby hampering the growth of Filipino enterprises and creating a virtual monopoly in our own country by United States contractors of contracts for services or supplies with the various U.S. offices and agencies operating in the Philippines. The sanctity of upholding agreements freely entered into by the parties cannot be over emphasized. Whether the parties are nations or private individuals, it is to be reasonably assumed and expected that the undertakings in the contract will be complied with in good faith. One glaring fact of modern day civilization is that a big and powerful nation, like the United States of America, can always overwhelm small and weak nations. The declaration in the United Nations Charter that its member states are equal and sovereign, becomes hollow and meaningless because big nations wielding economic and military superiority impose upon and dictate to small nations, subverting their sovereignty and dignity as nations. Thus, more often than not, when U.S. interest clashes with the interest of small nations, the American governmental agencies or its citizens invoke principles of international law for their own benefit. In the case at bar, the efficacy of the contract between the U.S. Naval authorities at Subic Bay on one hand, and herein private respondent on the other, was honored more in the breach than in the compliance The opinion of the majority will certainly open the floodgates of more violations of contractual obligations. American authorities or any foreign government in the Philippines for that matter, dealing with the citizens of this country, can conveniently seek protective cover under the majority opinion. The result is disastrous to the Philippines. This opinion of the majority manifests a neo-colonial mentality. It fosters economic imperialism and foreign political ascendancy in our Republic. The doctrine of government immunity from suit cannot and should not serve as an instrument for perpetrating an injustice on a citizen (Amigable vs. Cuenca, L-26400, February 29, 1972, 43 SCRA 360; Ministerio vs. Court of First Instance, L-31635, August 31, 1971, 40 SCRA 464). Under the doctrine of implied waiver of its non-suability, the United States government, through its naval authorities at Subic Bay, should be held amenable to lawsuits in our country like any other juristic person. The invocation by the petitioner United States of America is not in accord with paragraph 3 of Article III of the original RP-US Military Bases Agreement of March 14, 1947, which states that "in the exercise of the above-mentioned rights, powers and authority, the United States agrees that the powers granted to it will not be used unreasonably. . ." (Emphasis supplied).

Nor is such posture of the petitioners herein in harmony with the amendment dated May 27, 1968 to the aforesaid RP-US Military Bases Agreement, which recognizes "the need to promote and maintain sound employment practices which will assure equality of treatment of all employees ... and continuing favorable employer-employee relations ..." and "(B)elieving that an agreement will be mutually beneficial and will strengthen the democratic institutions cherished by both Governments, ... the United States Government agrees to accord preferential employment of Filipino citizens in the Bases, thus (1) the U.S. Forces in the Philippines shall fill the needs for civilian employment by employing Filipino citizens, etc." (Par. 1, Art. I of the Amendment of May 27, 1968). Neither does the invocation by petitioners of state immunity from suit express fidelity to paragraph 1 of Article IV of the aforesaid amendment of May 2 7, 1968 which directs that " contractors and concessionaires performing work for the U.S. Armed Forces shall be required by their contract or concession agreements to comply with all applicable Philippine labor laws and regulations, " even though paragraph 2 thereof affirms that "nothing in this Agreement shall imply any waiver by either of the two Governments of such immunity under international law." Reliance by petitioners on the non-suability of the United States Government before the local courts, actually clashes with No. III on respect for Philippine law of the Memorandum of Agreement signed on January 7, 1979, also amending RP-US Military Bases Agreement, which stresses that "it is the duty of members of the United States Forces, the civilian component and their dependents, to respect the laws of the Republic of the Philippines and to abstain from any activity inconsistent with the spirit of the Military Bases Agreement and, in particular, from any political activity in the Philippines. The United States shag take all measures within its authority to insure that they adhere to them (Emphasis supplied). The foregoing duty imposed by the amendment to the Agreement is further emphasized by No. IV on the economic and social improvement of areas surrounding the bases, which directs that "moreover, the United States Forces shall procure goods and services in the Philippines to the maximum extent feasible" (Emphasis supplied). Under No. VI on labor and taxation of the said amendment of January 6, 1979 in connection with the discussions on possible revisions or alterations of the Agreement of May 27, 1968, "the discussions shall be conducted on the basis of the principles of equality of treatment, the right to organize, and bargain collectively, and respect for the sovereignty of the Republic of the Philippines" (Emphasis supplied) The majority opinion seems to mock the provision of paragraph 1 of the joint statement of President Marcos and Vice-President Mondale of the United States dated May 4, 1978 that "the United States re-affirms that Philippine sovereignty extends over the bases and that Its base shall be under the command of a Philippine Base Commander, " which is supposed to underscore the joint Communique of President Marcos and U.S. President Ford of December 7, 1975, under which "they affirm that sovereign equality, territorial integrity and political independence of all States are fundamental principles which both countries scrupulously respect; and that "they confirm that mutual respect for the dignity of each nation shall characterize their friendship as well as the alliance between their two countries. " The majority opinion negates the statement on the delineation of the powers, duties and responsibilities of both the Philippine and American Base Commanders that "in the performance of their duties, the Philippine Base Commander and the American Base Commander shall be guided by full respect for Philippine sovereignty on the one hand and the assurance of unhampered U.S. military operations on the other hand and that "they shall promote cooperation understanding and harmonious relations within the Base and with the general public in the proximate vicinity thereof" (par. 2 & par. 3 of the Annex covered by the exchange of notes, January 7, 1979, between Ambassador Richard W. Murphy and Minister of Foreign Affairs Carlos P. Romulo, Emphasis supplied).

G.R. No. 104269 November 11, 1993 DEPARTMENT OF AGRICULTURE, petitioner, vs. THE NATIONAL LABOR RELATIONS COMMISSION, et al., respondents. Roy Lago Salcedo for private respondents. VITUG, J.: For consideration are the incidents that flow from the familiar doctrine of non-suability of the state. In this petition for certiorari, the Department of Agriculture seeks to nullify the Resolution, 1 dated 27 November 1991, of the National Labor Relations Commission (NLRC), Fifth Division, Cagayan de Oro City, denying the petition for injunction, prohibition and mandamus that prays to enjoin permanently the NLRC's Regional Arbitration Branch X and Cagayan de Oro City Sheriff from enforcing the decision 2 of 31 May 1991 of the Executive Labor Arbiter and from attaching and executing on petitioner's property. The Department of Agriculture (herein petitioner) and Sultan Security Agency entered into a contract 3 on 01 April 1989 for security services to be provided by the latter to the said governmental entity. Save for the increase in the monthly rate of the guards, the same terms and conditions were also made to apply to another contract, dated 01 May 1990, between the same parties. Pursuant to their arrangements, guards were deployed by Sultan Agency in the various premises of the petitioner. On 13 September 1990, several guards of the Sultan Security Agency filed a complaint for underpayment of wages, non-payment of 13th month pay, uniform allowances, night shift differential pay, holiday pay and overtime pay, as well as for damages, 4 before the Regional Arbitration Branch X of Cagayan de Oro City, docketed as NLRC Case No. 10-09-00455-90 (or 10-10-00519-90, its original docket number), against the Department of Agriculture and Sultan Security Agency. The Executive Labor Arbiter rendered a decision on 31 May finding herein petitioner and jointly and severallyliable with Sultan Security Agency for the payment of money claims, aggregating P266,483.91, of the complainant security guards. The petitioner and Sultan Security Agency did not appeal the decision of the Labor Arbiter. Thus, the decision became final and executory. On 18 July 1991, the Labor Arbiter issued a writ of execution. 5 commanding the City Sheriff to enforce and execute the judgment against the property of the two respondents.

Forthwith, or on 19 July 1991, the City Sheriff levied on execution the motor vehicles of the petitioner, i.e. one (1) unit Toyota Hi-Ace, one (1) unit Toyota Mini Cruiser, and one (1) unit Toyota Crown. 6 These units were put under the custody of Zacharias Roa, the property custodian of the petitioner, pending their sale at public auction or the final settlement of the case, whichever would come first. A petition for injunction, prohibition and mandamus, with prayer for preliminary writ of injunction was filed by the petitioner with the National Labor Relations Commission (NLRC), Cagayan de Oro, alleging, inter alia, that the writ issued was effected without the Labor Arbiter having duly acquired jurisdiction over the petitioner, and that, therefore, the decision of the Labor Arbiter was null and void and all actions pursuant thereto should be deemed equally invalid and of no legal, effect. The petitioner also pointed out that the attachment or seizure of its property would hamper and jeopardize petitioner's governmental functions to the prejudice of the public good. On 27 November 1991, the NLRC promulgated its assailed resolution; viz: WHEREFORE, premises considered, the following orders are issued: 1. The enforcement and execution of the judgments against petitioner in NLRC RABX Cases Nos. 10-10-00455-90; 10-10-0481-90 and 10-1000519-90 are temporarily suspended for a period of two (2) months, more or less, but not extending beyond the last quarter of calendar year 1991 to enable petitioner to source and raise funds to satisfy the judgment awards against it; 2. Meantime, petitioner is ordered and directed to source for funds within the period above-stated and to deposit the sums of money equivalent to the aggregate amount. it has been adjudged to pay jointly and severally with respondent Sultan Security Agency with the Regional Arbitration Branch X, Cagayan de Oro City within the same period for proper dispositions; 3. In order to ensure compliance with this order, petitioner is likewise directed to put up and post sufficient surety and supersedeas bond equivalent to at least to fifty (50%) percent of the total monetary award issued by a reputable bonding company duly accredited by the Supreme Court or by the Regional Trial Court of Misamis Oriental to answer for the satisfaction of the money claims in case of failure or default on the part of petitioner to satisfy the money claims; 4. The City Sheriff is ordered to immediately release the properties of petitioner levied on execution within ten (10) days from notice of the posting of sufficient surety or supersedeas bond as specified above. In the meanwhile, petitioner is assessed to pay the costs and/or expenses incurred by the City Sheriff, if any, in connection with the execution of the judgments in the above-stated cases upon presentation of the appropriate claims or vouchers and receipts by the city Sheriff, subject to the conditions specified in the NLRC Sheriff, subject to the conditions specified in the NLRC Manual of Instructions for Sheriffs; 5. The right of any of the judgment debtors to claim reimbursement against each other for any payments made in connection with the satisfaction of the judgments herein is hereby recognized pursuant to the ruling in the Eagle Security case, (supra). In case of dispute between the judgment debtors, the Executive Labor Arbiter of the Branch of origin may upon proper petition by any of the parties conduct arbitration proceedings for the purpose and thereby render his decision after due notice and hearings; 7. Finally, the petition for injunction is Dismissed for lack of basis. The writ of preliminary injunction previously issued is Lifted and Set

Aside and in lieu thereof, a Temporary Stay of Execution is issued for a period of two (2) months but not extending beyond the last quarter of calendar year 1991, conditioned upon the posting of a surety or supersedeas bond by petitioner within ten (10) days from notice pursuant to paragraph 3 of this disposition. The motion to admit the complaint in intervention isDenied for lack of merit while the motion to dismiss the petition filed by Duty Sheriff is Noted SO ORDERED. In this petition for certiorari, the petitioner charges the NLRC with grave abuse of discretion for refusing to quash the writ of execution. The petitioner faults the NLRC for assuming jurisdiction over a money claim against the Department, which, it claims, falls under the exclusive jurisdiction of the Commission on Audit. More importantly, the petitioner asserts, the NLRC has disregarded the cardinal rule on the non-suability of the State. The private respondents, on the other hand, argue that the petitioner has impliedly waived its immunity from suit by concluding a service contract with Sultan Security Agency. The basic postulate enshrined in the constitution that "(t)he State may not be sued without its consent," 7 reflects nothing less than a recognition of the sovereign character of the State and an express affirmation of the unwritten rule effectively insulating it from the jurisdiction of courts. 8 It is based on the very essence of sovereignty. As has been aptly observed, by Justice Holmes, a sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. 9 True, the doctrine, not too infrequently, is derisively called "the royal prerogative of dishonesty" because it grants the state the prerogative to defeat any legitimate claim against it by simply invoking its nonsuability. 10 We have had occasion, to explain in its defense, however, that a continued adherence to the doctrine of non-suability cannot be deplored, for the loss of governmental efficiency and the obstacle to the performance of its multifarious functions would be far greater in severity than the inconvenience that may be caused private parties, if such fundamental principle is to be abandoned and the availability of judicial remedy is not to be accordingly restricted. 11 The rule, in any case, is not really absolute for it does not say that the state may not be sued under any circumstances. On the contrary, as correctly phrased, the doctrine only conveys, "the state may not be sued without its consent;" its clear import then is that the State may at times be sued. 12 The States' consent may be given expressly or impliedly. Express consent may be made through a general law 13 or a special law. 14 In this jurisdiction, the general law waiving the immunity of the state from suit is found in Act No. 3083, where the Philippine government "consents and submits to be sued upon any money claims involving liability arising from contract, express or implied, which could serve as a basis of civil action between private parties." 15 Implied consent, on the other hand, is conceded when the State itself commences litigation, thus opening itself to a counterclaim 16 or when it enters into a contract. 17 In this situation, the government is deemed to have descended to the level of the other contracting party and to have divested itself of its sovereign immunity. This rule, relied upon by the NLRC and the private respondents, is not, however, without qualification. Not all contracts entered into by the government operate as a waiver of its non-suability; distinction must still be made between one which is executed in the exercise of its sovereign function and another which is done in its proprietary capacity. 18 In the Unites States of America vs. Ruiz, 19 where the questioned transaction dealt with improvements on the wharves in the naval installation at Subic Bay, we held: The traditional rule of immunity exempts a State from being sued in the courts of another State without its consent or waiver. This rule is a necessary consequence of the principles of independence and equality of States. However, the rules of International Law are not petrified; they are constantly developing and evolving. And because the activities of

states have multiplied, it has been necessary to distinguish them between sovereign and governmental acts ( jure imperii) and private, commercial and proprietary act ( jure gestionisis). The result is that State immunity now extends only to acts jure imperii. The restrictive application of State immunity is now the rule in the United States, the United Kingdom and other states in Western Europe. xxx xxx xxx The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a state may be said to have descended to the level of an individual and can this be deemed to have actually given its consent to be sued only when it enters into business contracts. It does not apply where the contracts relates to the exercise of its sovereign functions. In this case the projects are an integral part of the naval base which is devoted to the defense of both the United States and the Philippines, indisputably a function of the government of the highest order; they are not utilized for not dedicated to commercial or business purposes. In the instant case, the Department of Agriculture has not pretended to have assumed a capacity apart from its being a governmental entity when it entered into the questioned contract; nor that it could have, in fact, performed any act proprietary in character. But, be that as it may, the claims of private respondents, i.e. for underpayment of wages, holiday pay, overtime pay and similar other items, arising from the Contract for Service, clearly constitute money claims. Act No. 3083, aforecited, gives the consent of the State to be "sued upon any moneyed claim involving liability arising from contract, express or implied, . . . Pursuant, however, to Commonwealth Act ("C.A.") No. 327, as amended by Presidential Decree ("P.D.") No. 1145, the money claim first be brought to the Commission on Audit. Thus, inCarabao, Inc., vs. Agricultural Productivity Commission, 20 we ruled: (C)laimants have to prosecute their money claims against the Government under Commonwealth Act 327, stating that Act 3083 stands now merely as the general law waiving the State's immunity from suit, subject to the general limitation expressed in Section 7 thereof that "no execution shall issue upon any judgment rendered by any Court against the Government of the (Philippines), and that the conditions provided in Commonwealth Act 327 for filing money claims against the Government must be strictly observed." We fail to see any substantial conflict or inconsistency between the provisions of C.A. No. 327 and the Labor Code with respect to money claims against the State. The Labor code, in relation to Act No. 3083, provides the legal basis for the State liability but the prosecution, enforcement or satisfaction thereof must still be pursued in accordance with the rules and procedures laid down in C.A. No. 327, as amended by P.D. 1445. When the state gives its consent to be sued, it does thereby necessarily consent to unrestrained execution against it. tersely put, when the State waives its immunity, all it does, in effect, is to give the other party an opportunity to prove, if it can, that the State has a liability. 21 In Republic vs. Villasor 22 this Court, in nullifying the issuance of an alias writ of execution directed against the funds of the Armed Forces of the Philippines to satisfy a final and executory judgment, has explained, thus The universal rule that where the State gives its consent to be sued by private parties either by general or special law, it may limit the claimant's action "only up to the completion of proceedings anterior to the stage of execution" and that the power of the Courts ends when the judgment is rendered, since government funds and properties may not be seized under writs or execution or garnishment to satisfy such

judgments, is based on obvious considerations of public policy. Disbursements of public funds must be covered by the correspondent appropriation as required by law. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by law. 23 WHEREFORE, the petition is GRANTED. The resolution, dated 27 November 1991, is hereby REVERSED and SET ASIDE. The writ of execution directed against the property of the Department of Agriculture is nullified, and the public respondents are hereby enjoined permanently from doing, issuing and implementing any and all writs of execution issued pursuant to the decision rendered by the Labor Arbiter against said petitioner. SO ORDERED. Feliciano, Bidin, Romero and Melo, JJ., concur.

G.R. No. L-33112 June 15, 1978 PHILIPPINE NATIONAL BANK, petitioner, vs. HON. JUDGE JAVIER PABALAN, Judge of the Court of First Instance, Branch III, La Union, AGOO TOBACCO PLANTERS ASSOCIATION, INC., PHILIPPINE VIRGINIA TOBACCO ADMINISTRATION, and PANFILO P. JIMENEZ, Deputy Sheriff, La Union, respondents. Conrado E. Medina, Edgardo M. Magtalas & Walfrido Climaco for petitioner. Felimon A. Aspirin fit respondent Agoo 'Tobacco Planters Association, Inc. Virgilio C. Abejo for respondent Phil. Virginia Tobacco Administration. FERNANDO, Acting C.J.: The reliance of petitioner Philippine National Bank in this certiorari and prohibition proceeding against respondent Judge Javier Pabalan who issued a writ of execution, 1 followed thereafter by a notice of garnishment of the funds of respondent Philippine Virginia Tobacco Administration, 2 deposited with it, is on the fundamental constitutional law doctrine of non-suability of a state, it being alleged that such funds are public in character. This is not the first time petitioner raised that issue. It did so before in Philippine National Bank v. Court of industrial Relations, 3decided only last January. It did not meet with success, this Court ruling in accordance with the two previous cases of National Shipyard and Steel Corporation 4 and Manila Hotel Employees Association v. Manila Hotel Company, 5that funds of public corporations which can sue and be sued were not exempt from garnishment. As respondent Philippine Virginia Tobacco Administration is likewise a public corporation possessed of the same attributes, 6 a similar outcome is indicated. This petition must be dismissed. It is undisputed that the judgment against respondent Philippine Virginia Tobacco Administration had reached the stage of finality. A writ of execution was, therefore, in order. It was accordingly issued on December 17, 1970. 7There was a notice of garnishment for the full amount mentioned in such writ of execution in the sum of P12,724,66. 8 In view of the objection, however, by petitioner Philippine National Bank on the above ground, coupled with an inquiry as to whether or not respondent Philippine Virginia Tobacco Administration had funds deposited with petitioner's La Union branch, it was not until January 25, 1971 that the order sought to be set aside in this certiorari proceeding was issued by respondent Judge. 9 Its dispositive portion reads as follows: Conformably with the foregoing, it is now ordered, in accordance with law, that sufficient funds of the Philippine Virginia Tobacco

Administration now deposited with the Philippine National Bank, La Union Branch, shall be garnished and delivered to the plaintiff immediately to satisfy the Writ of Execution for onehalf of the amount awarded in the decision of November 16, 1970." 10 Hence this certiorari and prohibition proceeding. As noted at the outset, petitioner Philippine National Bank would invoke the doctrine of non-suability. It is to be admitted that under the present Constitution, what was formerly implicit as a fundamental doctrine in constitutional law has been set forth in express terms: "The State may not be sued without its consent." 11 If the funds appertained to one of the regular departments or offices in the government, then, certainly, such a provision would be a bar to garnishment. Such is not the case here. Garnishment would lie. Only last January, as noted in the opening paragraph of this decision, this Court, in a case brought by the same petitioner precisely invoking such a doctrine, left no doubt that the funds of public corporations could properly be made the object of a notice of garnishment. Accordingly, this petition must fail. 1. The alleged grave abuse of discretion, the basis of this certiorari proceeding, was sought to be justified on the failure of respondent Judge to set aside the notice of garnishment of funds belonging to respondent Philippine Virginia Tobacco Administration. This excerpt from the aforecited decision of Philippine National Bank v. Court of Industrial Relations makes manifest why such an argument is far from persuasive. "The premise that the funds could be spoken as public character may be accepted in the sense that the People Homesite and Housing Corporation was a government-owned entity. It does not follow though that they were exempt. from garnishment. National Shipyard and Steel Corporation v. Court of Industrial Relations is squarely in point. As was explicitly stated in the opinion of the then Justice, later Chief Justice, Concepcion: "The allegation to the effect that the funds of the NASSCO are public funds of the government, and that, as such, the same may not be garnished, attached or levied upon, is untenable for, as a government owned and controlled corporation, the NASSCO has a personality of its own. distinct and separate from that of the Government. It has pursuant to Section 2 of Executive Order No. 356, dated October 23, 1950 ... , pursuant to which The NASSCO has been established all the powers of a corporation under the Corporation Law ... ." Accordingly, it may be sue and be sued and may be subjected to court processes just like any other corporation (Section 13, Act No. 1459, as amended.)" ... To repeat, the ruling was the appropriate remedy for the prevailing party which could proceed against the funds of a corporate entity even if owned or controlled by the government." 12 2. The National Shipyard and Steel Corporation decision was not the first of its kind. The ruling therein could be inferred from the judgment announced in Manila Hotel Employees Association v. Manila Hotel Company, decided as far back as 1941. 13 In the language of its ponente Justice Ozaeta "On the other hand, it is well-settled that when the government enters into commercial business, it abandons its sovereign capacity and is to be treated like any other corporation. (Bank of the United States v. Planters' Bank, 9 Wheat. 904, 6 L.ed. 244). By engaging in a particular business thru the instrumentality of a corporation, the government divests itself pro hac vice of its sovereign character, so as to render the corporation subject to the rules of law governing private corporations." 14It is worth mentioning that Justice Ozaeta could find support for such a pronouncement from the leading American Supreme Court case of united States v. Planters' Bank, 15 with the opinion coming from the illustrious Chief Justice Marshall. It was handed down more than one hundred fifty years ago, 1824 to be exact. It is apparent, therefore, that petitioner Bank could it legally set forth as a bar or impediment to a notice of garnishment the doctrine of nonsuability. WHEREFORE, this petition for certiorari and prohibition is dismissed. No costs. Barredo, Antonio, Aquino, and Santos, JJ., concur. Concepcion, Jr., J., is on leave.

G.R. No. L-23139 December 17, 1966 MOBIL PHILIPPINES EXPLORATION, INC., plaintiff-appellant, vs. CUSTOMS ARRASTRE SERVICE and BUREAU of CUSTOMS, defendants-appellees. Alejandro Basin, Jr. and Associates for plaintiff-appellant. Felipe T. Cuison for defendants-appellees. BENGZON, J.P., J.: Four cases of rotary drill parts were shipped from abroad on S.S. "Leoville" sometime in November of 1962, consigned to Mobil Philippines Exploration, Inc., Manila. The shipment arrived at the Port of Manila on April 10, 1963, and was discharged to the custody of the Customs Arrastre Service, the unit of the Bureau of Customs then handling arrastre operations therein. The Customs Arrastre Service later delivered to the broker of the consignee three cases only of the shipment. On April 4, 1964 Mobil Philippines Exploration, Inc., filed suit in the Court of First Instance of Manila against the Customs Arrastre Service and the Bureau of Customs to recover the value of the undelivered case in the amount of P18,493.37 plus other damages. On April 20, 1964 the defendants filed a motion to dismiss the complaint on the ground that not being persons under the law, defendants cannot be sued. After plaintiff opposed the motion, the court, on April 25, 1964, dismissed the complaint on the ground that neither the Customs Arrastre Service nor the Bureau of Customs is suable. Plaintiff appealed to Us from the order of dismissal. Raised, therefore, in this appeal is the purely legal question of the defendants' suability under the facts stated. Appellant contends that not all government entities are immune from suit; that defendant Bureau of Customs as operator of the arrastre service at the Port of Manila, is discharging proprietary functions and as such, can be sued by private individuals. The Rules of Court, in Section 1, Rule 3, provide: SECTION 1. Who may be parties.Only natural or juridical persons or entities authorized by law may be parties in a civil action. Accordingly, a defendant in a civil suit must be (1) a natural person; (2) a juridical person or (3) an entity authorized by law to be sued. Neither the Bureau of Customs nor (a fortiori) its function unit, the Customs Arrastre Service, is a person. They are merely parts of the machinery of Government. The Bureau of Customs is a bureau under the Department of Finance (Sec. 81, Revised Administrative Code); and as stated, the Customs Arrastre Service is a unit of the Bureau of Custom, set up under Customs Administrative Order No. 8-62 of

November 9, 1962 (Annex "A" to Motion to Dismiss, pp. 13-15, Record an Appeal). It follows that the defendants herein cannot he sued under the first two abovementioned categories of natural or juridical persons. Nonetheless it is urged that by authorizing the Bureau of Customs to engage in arrastre service, the law therebyimpliedly authorizes it to be sued as arrastre operator, for the reason that the nature of this function (arrastre service) is proprietary, not governmental. Thus, insofar as arrastre operation is concerned, appellant would put defendants under the third category of "entities authorized by law" to be sued. Stated differently, it is argued that while there is no law expressly authorizing the Bureau of Customs to sue or be sued, still its capacity to be sued is implied from its very power to render arrastre service at the Port of Manila, which it is alleged, amounts to the transaction of a private business. The statutory provision on arrastre service is found in Section 1213 of Republic Act 1937 (Tariff and Customs Code, effective June 1, 1957), and it states: SEC. 1213. Receiving, Handling, Custody and Delivery of Articles.The Bureau of Customs shall have exclusive supervision and control over the receiving, handling, custody and delivery of articles on the wharves and piers at all ports of entry and in the exercise of its functions it is hereby authorized to acquire, take over, operate and superintend such plants and facilities as may be necessary for the receiving, handling, custody and delivery of articles, and the convenience and comfort of passengers and the handling of baggage; as well as to acquire fire protection equipment for use in the piers: Provided, That whenever in his judgment the receiving, handling, custody and delivery of articles can be carried on by private parties with greater efficiency, the Commissioner may, after public bidding and subject to the approval of the department head, contract with any private party for the service of receiving, handling, custody and delivery of articles, and in such event, the contract may include the sale or lease of government-owned equipment and facilities used in such service. In Associated Workers Union, et al. vs. Bureau of Customs, et al., L-21397, resolution of August 6, 1963, this Court indeed held "that the foregoing statutory provisions authorizing the grant by contract to any private party of the right to render said arrastre services necessarily imply that the same is deemed by Congress to be proprietary or nongovernmental function." The issue in said case, however, was whether laborers engaged in arrastre service fall under the concept of employees in the Government employed in governmental functions for purposes of the prohibition in Section 11, Republic Act 875 to the effect that "employees in the Government . . . shall not strike," but "may belong to any labor organization which does not impose the obligation to strike or to join in strike," which prohibition "shall apply only to employees employed in governmental functions of the Government . . . . Thus, the ruling therein was that the Court of Industrial Relations had jurisdiction over the subject matter of the case, but not that the Bureau of Customs can be sued. Said issue of suability was not resolved, the resolution stating only that "the issue on the personality or lack of personality of the Bureau of Customs to be sued does not affect the jurisdiction of the lower court over the subject matter of the case, aside from the fact that amendment may be made in the pleadings by the inclusion as respondents of the public officers deemed responsible, for the unfair labor practice acts charged by petitioning Unions". Now, the fact that a non-corporate government entity performs a function proprietary in nature does not necessarily result in its being suable. If said non-governmental function is undertaken as an incident to its governmental function, there is no waiver thereby of the sovereign immunity from suit extended to such government entity. This is the doctrine recognized in Bureau of Printing, et al. vs. Bureau of Printing Employees Association, et al., L-15751, January 28, 1961: The Bureau of Printing is an office of the Government created by the Administrative Code of 1916 (Act No. 2657). As such instrumentality of the

Government, it operates under the direct supervision of the Executive Secretary, Office of the President, and is "charged with the execution of all printing and binding, including work incidental to those processes, required by the National Government and such other work of the same character as said Bureau may, by law or by order of the (Secretary of Finance) Executive Secretary, be authorized to undertake . . . ." (Sec. 1644, Rev. Adm. Code.) It has no corporate existence, and its appropriations are provided for in the General Appropriations Act. Designed to meet the printing needs of the Government, it is primarily a service bureau and, obviously, not engaged in business or occupation for pecuniary profit. xxx xxx xxx . . . Clearly, while the Bureau of Printing is allowed to undertake private printing jobs, it cannot be pretended that it is thereby an industrial or business concern. The additional work it executes for private parties is merely incidental to its function, and although such work may be deemed proprietary in character, there is no showing that the employees performing said proprietary function are separate and distinct from those emoloyed in its general governmental functions. xxx xxx xxx Indeed, as an office of the Government, without any corporate or juridical personality, the Bureau of Printing cannot be sued (Sec. 1, Rule 3, Rules of Court.) Any suit, action or proceeding against it, if it were to produce any effect, would actually be a suit, action or proceeding against the Government itself, and the rule is settled that the Government cannot be sued without its consent, much less over its objection. (See Metran vs. Paredes, 45 Off. Gaz. 2835; Angat River Irrigation System, et al. vs. Angat River Workers Union, et al., G.R. Nos. L-10943-44, December 28, 1957.) The situation here is not materially different. The Bureau of Customs, to repeat, is part of the Department of Finance (Sec. 81, Rev. Adm. Code), with no personality of its own apart from that of the national government. Its primary function is governmental, that of assessing and collecting lawful revenues from imported articles and all other tariff and customs duties, fees, charges, fines and penalties (Sec. 602, R.A. 1937). To this function, arrastre service is a necessary incident. For practical reasons said revenues and customs duties can not be assessed and collected by simply receiving the importer's or ship agent's or consignee's declaration of merchandise being imported and imposing the duty provided in the Tariff law. Customs authorities and officers must see to it that the declaration tallies with the merchandise actually landed. And this checking up requires that the landed merchandise be hauled from the ship's side to a suitable place in the customs premises to enable said customs officers to make it, that is, it requires arrastre operations.1 Clearly, therefore, although said arrastre function may be deemed proprietary, it is a necessary incident of the primary and governmental function of the Bureau of Customs, so that engaging in the same does not necessarily render said Bureau liable to suit. For otherwise, it could not perform its governmental function without necessarily exposing itself to suit. Sovereign immunity, granted as to the end, should not be denied as to the necessary means to that end. And herein lies the distinction between the present case and that of National Airports Corporation vs. Teodoro, 91 Phil. 203, on which appellant would rely. For there, the Civil Aeronautics Administration was found have for its prime reason for existence not a governmental but a proprietary function, so that to it the latter was not a mere incidental function: Among the general powers of the Civil Aeronautics Administration are, under Section 3, to execute contracts of any kind, to purchase property, and to grant concessions rights, and under Section 4, to charge landing fees, royalties on sales to aircraft of aviation gasoline, accessories and supplies, and rentals for the use of any property under its management.

These provisions confer upon the Civil Aeronautics Administration, in our opinion, the power to sue and be sued. The power to sue and be sued is implied from the power to transact private business. . . . xxx xxx xxx The Civil Aeronautics Administration comes under the category of a private entity. Although not a body corporate it was created, like the National Airports Corporation, not to maintain a necessary function of government, but to run what is essentially a business, even if revenues be not its prime objective but rather the promotion of travel and the convenience of the travelling public. . . . Regardless of the merits of the claim against it, the State, for obvious reasons of public policy, cannot be sued without its consent. Plaintiff should have filed its present claim to the General Auditing Office, it being for money under the provisions of Commonwealth Act 327, which state the conditions under which money claims against the Government may be filed. It must be remembered that statutory provisions waiving State immunity from suit are strictly construed and that waiver of immunity, being in derogation of sovereignty, will not be lightly inferred. (49 Am. Jur., States, Territories and Dependencies, Sec. 96, p. 314; Petty vs. Tennessee-Missouri Bridge Com., 359 U.S. 275, 3 L. Ed. 804, 79 S. Ct. 785). From the provision authorizing the Bureau of Customs to lease arrastre operations to private parties, We see no authority to sue the said Bureau in the instances where it undertakes to conduct said operation itself. The Bureau of Customs, acting as part of the machinery of the national government in the operation of the arrastre service, pursuant to express legislative mandate and as a necessary incident of its prime governmental function, is immune from suit, there being no statute to the contrary. WHEREFORE, the order of dismissal appealed from is hereby affirmed, with costs against appellant. So ordered. Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Zaldivar and Sanchez, JJ., concur. Makalintal, J., concurs in the result. Castro, J., reserves his vote.

G.R. No. L-52179 April 8, 1991 MUNICIPALITY OF SAN FERNANDO, LA UNION, petitioner vs. HON. JUDGE ROMEO N. FIRME, JUANA RIMANDO-BANIA, IAUREANO BANIA, JR., SOR MARIETA BANIA, MONTANO BANIA, ORJA BANIA, AND LYDIA R. BANIA, respondents. Mauro C. Cabading, Jr. for petitioner. Simeon G. Hipol for private respondent. MEDIALDEA, J.:p This is a petition for certiorari with prayer for the issuance of a writ of preliminary mandatory injunction seeking the nullification or modification of the proceedings and the orders issued by the respondent Judge Romeo N. Firme, in his capacity as the presiding judge of the Court of First Instance of La Union, Second Judicial District, Branch IV, Bauang, La Union in Civil Case No. 107-BG, entitled "Juana Rimando Bania, et al. vs. Macario Nieveras, et al." dated November 4, 1975; July 13, 1976; August 23,1976; February 23, 1977; March 16, 1977; July 26, 1979; September 7, 1979; November 7, 1979 and December 3, 1979 and the decision dated October 10, 1979 ordering defendants Municipality of San Fernando, La Union and Alfredo Bislig to pay, jointly and severally, the plaintiffs for funeral expenses, actual damages consisting of the loss of earning capacity of the deceased, attorney's fees and costs of suit and dismissing the complaint against the Estate of Macario Nieveras and Bernardo Balagot. The antecedent facts are as follows: Petitioner Municipality of San Fernando, La Union is a municipal corporation existing under and in accordance with the laws of the Republic of the Philippines. Respondent Honorable Judge Romeo N. Firme is impleaded in his official capacity as the presiding judge of the Court of First Instance of La Union, Branch IV, Bauang, La Union. While private respondents Juana Rimando-Bania, Laureano Bania, Jr., Sor Marietta Bania, Montano Bania, Orja Bania and Lydia R. Bania are heirs of the deceased Laureano Bania Sr. and plaintiffs in Civil Case No. 107-Bg before the aforesaid court. At about 7 o'clock in the morning of December 16, 1965, a collision occurred involving a passenger jeepney driven by Bernardo Balagot and owned by the Estate of Macario Nieveras, a gravel and sand truck driven by Jose Manandeg and owned by Tanquilino Velasquez and a dump truck of the Municipality of San Fernando, La Union and driven by Alfredo Bislig. Due to the impact, several passengers of the jeepney including Laureano

Bania Sr. died as a result of the injuries they sustained and four (4) others suffered varying degrees of physical injuries. On December 11, 1966, the private respondents instituted a compliant for damages against the Estate of Macario Nieveras and Bernardo Balagot, owner and driver, respectively, of the passenger jeepney, which was docketed Civil Case No. 2183 in the Court of First Instance of La Union, Branch I, San Fernando, La Union. However, the aforesaid defendants filed a Third Party Complaint against the petitioner and the driver of a dump truck of petitioner. Thereafter, the case was subsequently transferred to Branch IV, presided over by respondent judge and was subsequently docketed as Civil Case No. 107-Bg. By virtue of a court order dated May 7, 1975, the private respondents amended the complaint wherein the petitioner and its regular employee, Alfredo Bislig were impleaded for the first time as defendants. Petitioner filed its answer and raised affirmative defenses such as lack of cause of action, non-suability of the State, prescription of cause of action and the negligence of the owner and driver of the passenger jeepney as the proximate cause of the collision. In the course of the proceedings, the respondent judge issued the following questioned orders, to wit: (1) Order dated November 4, 1975 dismissing the cross-claim against Bernardo Balagot; (2) Order dated July 13, 1976 admitting the Amended Answer of the Municipality of San Fernando, La Union and Bislig and setting the hearing on the affirmative defenses only with respect to the supposed lack of jurisdiction; (3) Order dated August 23, 1976 deferring there resolution of the grounds for the Motion to Dismiss until the trial; (4) Order dated February 23, 1977 denying the motion for reconsideration of the order of July 13, 1976 filed by the Municipality and Bislig for having been filed out of time; (5) Order dated March 16, 1977 reiterating the denial of the motion for reconsideration of the order of July 13, 1976; (6) Order dated July 26, 1979 declaring the case deemed submitted for decision it appearing that parties have not yet submitted their respective memoranda despite the court's direction; and (7) Order dated September 7, 1979 denying the petitioner's motion for reconsideration and/or order to recall prosecution witnesses for cross examination. On October 10, 1979 the trial court rendered a decision, the dispositive portion is hereunder quoted as follows: IN VIEW OF ALL OF (sic) THE FOREGOING, judgment is hereby rendered for the plaintiffs, and defendants Municipality of San Fernando, La Union and Alfredo Bislig are ordered to pay jointly and severally, plaintiffs Juana Rimando-Bania, Mrs. Priscilla B. Surell, Laureano Bania Jr., Sor Marietta Bania, Mrs. Fe B. Soriano, Montano Bania, Orja Bania and Lydia B. Bania the sums of P1,500.00 as funeral expenses and P24,744.24 as the lost expected earnings of the late Laureano Bania Sr., P30,000.00 as moral damages, and P2,500.00 as attorney's fees. Costs against said defendants. The Complaint is dismissed as to defendants Estate of Macario Nieveras and Bernardo Balagot. SO ORDERED. (Rollo, p. 30) Petitioner filed a motion for reconsideration and for a new trial without prejudice to another motion which was then pending. However, respondent judge issued another order dated November 7, 1979 denying the motion for reconsideration of the order of September 7, 1979 for having been filed out of time.

Finally, the respondent judge issued an order dated December 3, 1979 providing that if defendants municipality and Bislig further wish to pursue the matter disposed of in the order of July 26, 1979, such should be elevated to a higher court in accordance with the Rules of Court. Hence, this petition. Petitioner maintains that the respondent judge committed grave abuse of discretion amounting to excess of jurisdiction in issuing the aforesaid orders and in rendering a decision. Furthermore, petitioner asserts that while appeal of the decision maybe available, the same is not the speedy and adequate remedy in the ordinary course of law. On the other hand, private respondents controvert the position of the petitioner and allege that the petition is devoid of merit, utterly lacking the good faith which is indispensable in a petition for certiorari and prohibition. (Rollo, p. 42.) In addition, the private respondents stress that petitioner has not considered that every court, including respondent court, has the inherent power to amend and control its process and orders so as to make them conformable to law and justice. (Rollo, p. 43.) The controversy boils down to the main issue of whether or not the respondent court committed grave abuse of discretion when it deferred and failed to resolve the defense of non-suability of the State amounting to lack of jurisdiction in a motion to dismiss. In the case at bar, the respondent judge deferred the resolution of the defense of nonsuability of the State amounting to lack of jurisdiction until trial. However, said respondent judge failed to resolve such defense, proceeded with the trial and thereafter rendered a decision against the municipality and its driver. The respondent judge did not commit grave abuse of discretion when in the exercise of its judgment it arbitrarily failed to resolve the vital issue of non-suability of the State in the guise of the municipality. However, said judge acted in excess of his jurisdiction when in his decision dated October 10, 1979 he held the municipality liable for the quasi-delict committed by its regular employee. The doctrine of non-suability of the State is expressly provided for in Article XVI, Section 3 of the Constitution, to wit: "the State may not be sued without its consent." Stated in simple parlance, the general rule is that the State may not be sued except when it gives consent to be sued. Consent takes the form of express or implied consent. Express consent may be embodied in a general law or a special law. The standing consent of the State to be sued in case of money claims involving liability arising from contracts is found in Act No. 3083. A special law may be passed to enable a person to sue the government for an alleged quasi-delict, as in Merritt v. Government of the Philippine Islands (34 Phil 311). (see United States of America v. Guinto, G.R. No. 76607, February 26, 1990, 182 SCRA 644, 654.) Consent is implied when the government enters into business contracts, thereby descending to the level of the other contracting party, and also when the State files a complaint, thus opening itself to a counterclaim. (Ibid) Municipal corporations, for example, like provinces and cities, are agencies of the State when they are engaged in governmental functions and therefore should enjoy the sovereign immunity from suit. Nevertheless, they are subject to suit even in the performance of such functions because their charter provided that they can sue and be sued. (Cruz, Philippine Political Law, 1987 Edition, p. 39) A distinction should first be made between suability and liability. "Suability depends on the consent of the state to be sued, liability on the applicable law and the established facts. The circumstance that a state is suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it does not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable." (United States of America vs. Guinto, supra, p. 659-660) Anent the issue of whether or not the municipality is liable for the torts committed by its employee, the test of liability of the municipality depends on whether or not the driver,

acting in behalf of the municipality, is performing governmental or proprietary functions. As emphasized in the case of Torio vs. Fontanilla (G. R. No. L-29993, October 23, 1978. 85 SCRA 599, 606), the distinction of powers becomes important for purposes of determining the liability of the municipality for the acts of its agents which result in an injury to third persons. Another statement of the test is given in City of Kokomo vs. Loy, decided by the Supreme Court of Indiana in 1916, thus: Municipal corporations exist in a dual capacity, and their functions are twofold. In one they exercise the right springing from sovereignty, and while in the performance of the duties pertaining thereto, their acts are political and governmental. Their officers and agents in such capacity, though elected or appointed by them, are nevertheless public functionaries performing a public service, and as such they are officers, agents, and servants of the state. In the other capacity the municipalities exercise a private, proprietary or corporate right, arising from their existence as legal persons and not as public agencies. Their officers and agents in the performance of such functions act in behalf of the municipalities in their corporate or individual capacity, and not for the state or sovereign power." (112 N.E., 994-995) (Ibid, pp. 605-606.) It has already been remarked that municipal corporations are suable because their charters grant them the competence to sue and be sued. Nevertheless, they are generally not liable for torts committed by them in the discharge of governmental functions and can be held answerable only if it can be shown that they were acting in a proprietary capacity. In permitting such entities to be sued, the State merely gives the claimant the right to show that the defendant was not acting in its governmental capacity when the injury was committed or that the case comes under the exceptions recognized by law. Failing this, the claimant cannot recover. (Cruz, supra, p. 44.) In the case at bar, the driver of the dump truck of the municipality insists that "he was on his way to the Naguilian river to get a load of sand and gravel for the repair of San Fernando's municipal streets." (Rollo, p. 29.) In the absence of any evidence to the contrary, the regularity of the performance of official duty is presumed pursuant to Section 3(m) of Rule 131 of the Revised Rules of Court. Hence, We rule that the driver of the dump truck was performing duties or tasks pertaining to his office. We already stressed in the case of Palafox, et. al. vs. Province of Ilocos Norte, the District Engineer, and the Provincial Treasurer (102 Phil 1186) that "the construction or maintenance of roads in which the truck and the driver worked at the time of the accident are admittedly governmental activities." After a careful examination of existing laws and jurisprudence, We arrive at the conclusion that the municipality cannot be held liable for the torts committed by its regular employee, who was then engaged in the discharge of governmental functions. Hence, the death of the passenger tragic and deplorable though it may be imposed on the municipality no duty to pay monetary compensation. All premises considered, the Court is convinced that the respondent judge's dereliction in failing to resolve the issue of non-suability did not amount to grave abuse of discretion. But said judge exceeded his jurisdiction when it ruled on the issue of liability. ACCORDINGLY, the petition is GRANTED and the decision of the respondent court is hereby modified, absolving the petitioner municipality of any liability in favor of private respondents. SO ORDERED. Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

G.R. No. L-61744 June 25, 1984 MUNICIPALITY OF SAN MIGUEL, BULACAN, petitioner, vs. HONORABLE OSCAR C. FERNANDEZ, in his capacity as the Presiding Judge, Branch IV, Baliuag, Bulacan, The PROVINCIAL SHERIFF of Bulacan, MARGARITA D. VDA. DE IMPERIO, ADORACION IMPERIO, RODOLFO IMPERIO, CONRADO IMPERIO, ERNESTO IMPERIO, ALFREDO IMPERIO, CARLOS IMPERIO, JR., JUAN IMPERIO and SPOUSES MARCELO PINEDA and LUCILA PONGCO, respondents. Pascual C. Liatchko for petitioner. The Solicitor General and Marcelo Pineda for respondents. RELOVA, J.: In Civil Case No. 604-B, entitled "Margarita D. Vda. de Imperio, et al. vs. Municipal Government of San Miguel, Bulacan, et al.", the then Court of First Instance of Bulacan, on April 28, 1978, rendered judgment holding herein petitioner municipality liable to private respondents, as follows: WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs and against the defendant Municipal Government of San Miguel Bulacan, represented by Mayor Mar Marcelo G. Aure and its Municipal Treasurer: 1. ordering the partial revocation of the Deed of Donation signed by the deceased Carlos Imperio in favor of the Municipality of San Miguel Bulacan, dated October 27, 1947 insofar as Lots Nos. 1, 2, 3, 4 and 5, Block 11 of Subdivision Plan Psd-20831 are concerned, with an aggregate total area of 4,646 square meters, which lots are among those covered and described under TCT No. T-1831 of the Register of Deeds of Bulacan in the name of the Municipal Government of San Miguel Bulacan, 2. ordering the defendant to execute the corresponding Deed of Reconveyance over the aforementioned five lots in favor of the plaintiffs in the proportion of the undivided one-half () share in the name of plaintiffs Margarita D. Vda. de Imperio, Adoracion, Rodolfo, Conrado, Ernesto, Alfredo, Carlos, Jr. and Juan, all surnamed Imperio, and the remaining undivided one-half () share in favor of plaintiffs uses Marcelo E. Pineda and Lucila Pongco;

3. ordering the defendant municipality to pay to the plaintiffs in the proportion mentioned in the immediately preceding paragraph the sum of P64,440.00 corresponding to the rentals it has collected from the occupants for their use and occupation of the premises from 1970 up to and including 1975, plus interest thereon at the legal rate from January 1970 until fully paid; 4. ordering the restoration of ownership and possession over the five lots in question in favor of the plaintiffs in the same proportion aforementioned; 5. ordering the defendant to pay the plaintiffs the sum of P3,000.00 for attomey's fees; and to pay the cost of suit. The counterclaim of the defendant is hereby ordered dismissed for lack of evidence presented to substantiate the same. SO ORDERED. (pp. 11-12, Rollo) The foregoing judgment became final when herein petitioner's appeal was dismissed due to its failure to file the record on appeal on time. The dismissal was affirmed by the then Court of Appeals in CA-G.R. No. SP-12118 and by this Court in G.R. No. 59938. Thereafter, herein private respondents moved for issuance of a writ of execution for the satisfaction of the judgment. Respondent judge, on July 27, 1982, issued an order, to wit: Considering that an entry of judgment had already been made on June 14, 1982 in G. R. No. L-59938 and; Considering further that there is no opposition to plaintiffs' motion for execution dated July 23, 1983; Let a writ of execution be so issued, as prayed for in the aforestated motion. (p. 10, Rollo) Petitioner, on July 30, 1982, filed a Motion to Quash the writ of execution on the ground that the municipality's property or funds are all public funds exempt from execution. The said motion to quash was, however, denied by the respondent judge in an order dated August 23, 1982 and the alias writ of execution stands in full force and effect. On September 13, 1982, respondent judge issued an order which in part, states: It is clear and evident from the foregoing that defendant has more than enough funds to meet its judgment obligation. Municipal Treasurer Miguel C, Roura of San Miguel, Bulacan and Provincial Treasurer of Bulacan Agustin O. Talavera are therefor hereby ordered to comply with the money judgment rendered by Judge Agustin C. Bagasao against said municipality. In like manner, the municipal authorities of San Miguel, Bulacan are likewise ordered to desist from plaintiffs' legal possession of the property already returned to plaintiffs by virtue of the alias writ of execution. Finally, defendants are hereby given an inextendible period of ten (10) days from receipt of a copy of this order by the Office of the Provincial Fiscal of Bulacan within which to submit their written compliance, (p. 24, Rollo) When the treasurers (provincial and municipal) failed to comply with the order of September 13, 1982, respondent judge issued an order for their arrest and that they will be release only upon compliance thereof. Hence, the present petition on the issue whether the funds of the Municipality of San Miguel, Bulacan, in the hands of the provincial and municipal treasurers of Bulacan and San Miguel, respectively, are public funds which are exempt from execution for the satisfaction of the money judgment in Civil Case No. 604-B. Well settled is the rule that public funds are not subject to levy and execution. The reason for this was explained in the case of Municipality of Paoay vs. Manaois, 86 Phil. 629 "that they are held in trust for the people, intended and used for the accomplishment of the purposes for

which municipal corporations are created, and that to subject said properties and public funds to execution would materially impede, even defeat and in some instances destroy said purpose." And, in Tantoco vs. Municipal Council of Iloilo, 49 Phil. 52, it was held that "it is the settled doctrine of the law that not only the public property but also the taxes and public revenues of such corporations Cannot be seized under execution against them, either in the treasury or when in transit to it. Judgments rendered for taxes, and the proceeds of such judgments in the hands of officers of the law, are not subject to execution unless so declared by statute." Thus, it is clear that all the funds of petitioner municipality in the possession of the Municipal Treasurer of San Miguel, as well as those in the possession of the Provincial Treasurer of Bulacan, are also public funds and as such they are exempt from execution. Besides, Presidential Decree No. 477, known as "The Decree on Local Fiscal Administration", Section 2 (a), provides: SEC. 2. Fundamental Principles. Local government financial affairs, transactions, and operations shall be governed by the fundamental principles set forth hereunder: (a) No money shall be paid out of the treasury except in pursuance of a lawful appropriation or other specific statutory authority. xxx xxx xxx Otherwise stated, there must be a corresponding appropriation in the form of an ordinance duly passed by the Sangguniang Bayan before any money of the municipality may be paid out. In the case at bar, it has not been shown that the Sangguniang Bayan has passed an ordinance to this effect. Furthermore, Section 15, Rule 39 of the New Rules of Court, outlines the procedure for the enforcement of money judgment: (a) By levying on all the property of the debtor, whether real or personal, not otherwise exempt from execution, or only on such part of the property as is sufficient to satisfy the judgment and accruing cost, if he has more than sufficient property for the purpose; (b) By selling the property levied upon; (c) By paying the judgment-creditor so much of the proceeds as will satisfy the judgment and accruing costs; and (d) By delivering to the judgment-debtor the excess, if any, unless otherwise, directed by judgment or order of the court. The foregoing has not been followed in the case at bar. ACCORDINGLY, the petition is granted and the order of respondent judge, dated July 27, 1982, granting issuance of a writ of execution; the alias writ of execution, dated July 27, 1982; and the order of respondent judge, dated September 13, 1982, directing the Provincial Treasurer of Bulacan and the Municipal Treasurer of San Miguel, Bulacan to comply with the money judgments, are SET ASIDE; and respondents are hereby enjoined from implementing the writ of execution. SO ORDERED. Teehankee (Chairman), Melencio-Herrera, Plana, Gutierrez, Jr., and De la Fuente, JJ,. concur.

G.R. Nos. 89898-99 October 1, 1990 MUNICIPALITY OF MAKATI, petitioner, vs. THE HONORABLE COURT OF APPEALS, HON. SALVADOR P. DE GUZMAN, JR., as Judge RTC of Makati, Branch CXLII ADMIRAL FINANCE CREDITORS CONSORTIUM, INC., and SHERIFF SILVINO R. PASTRANA,respondents. Defante & Elegado for petitioner. Roberto B. Lugue for private respondent Admiral Finance Creditors' Consortium, Inc. RESOLUTION CORTS, J.: The present petition for review is an off-shoot of expropriation proceedings initiated by petitioner Municipality of Makati against private respondent Admiral Finance Creditors Consortium, Inc., Home Building System & Realty Corporation and one Arceli P. Jo, involving a parcel of land and improvements thereon located at Mayapis St., San Antonio Village, Makati and registered in the name of Arceli P. Jo under TCT No. S-5499. It appears that the action for eminent domain was filed on May 20, 1986, docketed as Civil Case No. 13699. Attached to petitioner's complaint was a certification that a bank account (Account No. S/A 265-537154-3) had been opened with the PNB Buendia Branch under petitioner's name containing the sum of P417,510.00, made pursuant to the provisions of Pres. Decree No. 42. After due hearing where the parties presented their respective appraisal reports regarding the value of the property, respondent RTC judge rendered a decision on June 4, 1987, fixing the appraised value of the property at P5,291,666.00, and ordering petitioner to pay this amount minus the advanced payment of P338,160.00 which was earlier released to private respondent. After this decision became final and executory, private respondent moved for the issuance of a writ of execution. This motion was granted by respondent RTC judge. After issuance of the writ of execution, a Notice of Garnishment dated January 14, 1988 was served by respondent sheriff Silvino R. Pastrana upon the manager of the PNB Buendia Branch. However, respondent sheriff was informed that a "hold code" was placed on the account of petitioner. As a result of this, private respondent filed a motion dated January 27, 1988 praying that an order be issued directing the bank to deliver to respondent sheriff the amount equivalent to the unpaid balance due under the RTC decision dated June 4, 1987. Petitioner filed a motion to lift the garnishment, on the ground that the manner of payment of the expropriation amount should be done in installments which the respondent RTC judge failed to state in his decision. Private respondent filed its opposition to the motion.

Pending resolution of the above motions, petitioner filed on July 20, 1988 a "Manifestation" informing the court that private respondent was no longer the true and lawful owner of the subject property because a new title over the property had been registered in the name of Philippine Savings Bank, Inc. (PSB) Respondent RTC judge issued an order requiring PSB to make available the documents pertaining to its transactions over the subject property, and the PNB Buendia Branch to reveal the amount in petitioner's account which was garnished by respondent sheriff. In compliance with this order, PSB filed a manifestation informing the court that it had consolidated its ownership over the property as mortgagee/purchaser at an extrajudicial foreclosure sale held on April 20, 1987. After several conferences, PSB and private respondent entered into a compromise agreement whereby they agreed to divide between themselves the compensation due from the expropriation proceedings. Respondent trial judge subsequently issued an order dated September 8, 1988 which: (1) approved the compromise agreement; (2) ordered PNB Buendia Branch to immediately release to PSB the sum of P4,953,506.45 which corresponds to the balance of the appraised value of the subject property under the RTC decision dated June 4, 1987, from the garnished account of petitioner; and, (3) ordered PSB and private respondent to execute the necessary deed of conveyance over the subject property in favor of petitioner. Petitioner's motion to lift the garnishment was denied. Petitioner filed a motion for reconsideration, which was duly opposed by private respondent. On the other hand, for failure of the manager of the PNB Buendia Branch to comply with the order dated September 8, 1988, private respondent filed two succeeding motions to require the bank manager to show cause why he should not be held in contempt of court. During the hearings conducted for the above motions, the general manager of the PNB Buendia Branch, a Mr. Antonio Bautista, informed the court that he was still waiting for proper authorization from the PNB head office enabling him to make a disbursement for the amount so ordered. For its part, petitioner contended that its funds at the PNB Buendia Branch could neither be garnished nor levied upon execution, for to do so would result in the disbursement of public funds without the proper appropriation required under the law, citing the case of Republic of the Philippines v. Palacio [G.R. No. L-20322, May 29, 1968, 23 SCRA 899]. Respondent trial judge issued an order dated December 21, 1988 denying petitioner's motion for reconsideration on the ground that the doctrine enunciated in Republic v. Palacio did not apply to the case because petitioner's PNB Account No. S/A 265-537154-3 was an account specifically opened for the expropriation proceedings of the subject property pursuant to Pres. Decree No. 42. Respondent RTC judge likewise declared Mr. Antonio Bautista guilty of contempt of court for his inexcusable refusal to obey the order dated September 8, 1988, and thus ordered his arrest and detention until his compliance with the said order. Petitioner and the bank manager of PNB Buendia Branch then filed separate petitions for certiorari with the Court of Appeals, which were eventually consolidated. In a decision promulgated on June 28, 1989, the Court of Appeals dismissed both petitions for lack of merit, sustained the jurisdiction of respondent RTC judge over the funds contained in petitioner's PNB Account No. 265-537154-3, and affirmed his authority to levy on such funds. Its motion for reconsideration having been denied by the Court of Appeals, petitioner now files the present petition for review with prayer for preliminary injunction. On November 20, 1989, the Court resolved to issue a temporary restraining order enjoining respondent RTC judge, respondent sheriff, and their representatives, from enforcing and/or carrying out the RTC order dated December 21, 1988 and the writ of garnishment issued pursuant thereto. Private respondent then filed its comment to the petition, while petitioner filed its reply. Petitioner not only reiterates the arguments adduced in its petition before the Court of Appeals, but also alleges for the first time that it has actually two accounts with the PNB Buendia Branch, to wit: xxx xxx xxx

(1) Account No. S/A 265-537154-3 exclusively for the expropriation of the subject property, with an outstanding balance of P99,743.94. (2) Account No. S/A 263-530850-7 for statutory obligations and other purposes of the municipal government, with a balance of P170,098,421.72, as of July 12, 1989. xxx xxx xxx [Petition, pp. 6-7; Rollo, pp. 11-12.] Because the petitioner has belatedly alleged only in this Court the existence of two bank accounts, it may fairly be asked whether the second account was opened only for the purpose of undermining the legal basis of the assailed orders of respondent RTC judge and the decision of the Court of Appeals, and strengthening its reliance on the doctrine that public funds are exempted from garnishment or execution as enunciated in Republic v. Palacio[supra.] At any rate, the Court will give petitioner the benefit of the doubt, and proceed to resolve the principal issues presented based on the factual circumstances thus alleged by petitioner. Admitting that its PNB Account No. S/A 265-537154-3 was specifically opened for expropriation proceedings it had initiated over the subject property, petitioner poses no objection to the garnishment or the levy under execution of the funds deposited therein amounting to P99,743.94. However, it is petitioner's main contention that inasmuch as the assailed orders of respondent RTC judge involved the net amount of P4,965,506.45, the funds garnished by respondent sheriff in excess of P99,743.94, which are public funds earmarked for the municipal government's other statutory obligations, are exempted from execution without the proper appropriation required under the law. There is merit in this contention. The funds deposited in the second PNB Account No. S/A 263-530850-7 are public funds of the municipal government. In this jurisdiction, well-settled is the rule that public funds are not subject to levy and execution, unless otherwise provided for by statute [Republic v. Palacio, supra.; The Commissioner of Public Highways v. San Diego, G.R. No. L-30098, February 18, 1970, 31 SCRA 616]. More particularly, the properties of a municipality, whether real or personal, which are necessary for public use cannot be attached and sold at execution sale to satisfy a money judgment against the municipality. Municipal revenues derived from taxes, licenses and market fees, and which are intended primarily and exclusively for the purpose of financing the governmental activities and functions of the municipality, are exempt from execution [See Viuda De Tan Toco v. The Municipal Council of Iloilo, 49 Phil. 52 (1926): The Municipality of Paoay, Ilocos Norte v. Manaois, 86 Phil. 629 (1950); Municipality of San Miguel, Bulacan v. Fernandez, G.R. No. 61744, June 25, 1984, 130 SCRA 56]. The foregoing rule finds application in the case at bar. Absent a showing that the municipal council of Makati has passed an ordinance appropriating from its public funds an amount corresponding to the balance due under the RTC decision dated June 4, 1987, less the sum of P99,743.94 deposited in Account No. S/A 265-537154-3, no levy under execution may be validly effected on the public funds of petitioner deposited in Account No. S/A 263-530850-7. Nevertheless, this is not to say that private respondent and PSB are left with no legal recourse. Where a municipality fails or refuses, without justifiable reason, to effect payment of a final money judgment rendered against it, the claimant may avail of the remedy of mandamus in order to compel the enactment and approval of the necessary appropriation ordinance, and the corresponding disbursement of municipal funds therefor [SeeViuda De Tan Toco v. The Municipal Council of Iloilo, supra; Baldivia v. Lota, 107 Phil. 1099 (1960); Yuviengco v. Gonzales, 108 Phil. 247 (1960)]. In the case at bar, the validity of the RTC decision dated June 4, 1987 is not disputed by petitioner. No appeal was taken therefrom. For three years now, petitioner has enjoyed possession and use of the subject property notwithstanding its inexcusable failure to comply with its legal obligation to pay just compensation. Petitioner has benefited from its possession of the property since the same has been the site of Makati West High School

since the school year 1986-1987. This Court will not condone petitioner's blatant refusal to settle its legal obligation arising from expropriation proceedings it had in fact initiated. It cannot be over-emphasized that, within the context of the State's inherent power of eminent domain, . . . [j]ust compensation means not only the correct determination of the amount to be paid to the owner of the land but also the payment of the land within a reasonable time from its taking. Without prompt payment, compensation cannot be considered "just" for the property owner is made to suffer the consequence of being immediately deprived of his land while being made to wait for a decade or more before actually receiving the amount necessary to cope with his loss [Cosculluela v. The Honorable Court of Appeals, G.R. No. 77765, August 15, 1988, 164 SCRA 393, 400. See also Provincial Government of Sorsogon v. Vda. de Villaroya, G.R. No. 64037, August 27, 1987, 153 SCRA 291]. The State's power of eminent domain should be exercised within the bounds of fair play and justice. In the case at bar, considering that valuable property has been taken, the compensation to be paid fixed and the municipality is in full possession and utilizing the property for public purpose, for three (3) years, the Court finds that the municipality has had more than reasonable time to pay full compensation. WHEREFORE, the Court Resolved to ORDER petitioner Municipality of Makati to immediately pay Philippine Savings Bank, Inc. and private respondent the amount of P4,953,506.45. Petitioner is hereby required to submit to this Court a report of its compliance with the foregoing order within a non-extendible period of SIXTY (60) DAYS from the date of receipt of this resolution. The order of respondent RTC judge dated December 21, 1988, which was rendered in Civil Case No. 13699, is SET ASIDE and the temporary restraining order issued by the Court on November 20, 1989 is MADE PERMANENT. SO ORDERED. Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

G.R. No. L-30671 November 28, 1973 REPUBLIC OF THE PHILIPPINES, petitioner, vs. HON. GUILLERMO P. VILLASOR, as Judge of the Court of First Instance of Cebu, Branch I, THE PROVINCIAL SHERIFF OF RIZAL, THE SHERIFF OF QUEZON CITY, and THE SHERIFF OF THE CITY OF MANILA, THE CLERK OF COURT, Court of First Instance of Cebu, P. J. KIENER CO., LTD., GAVINO UNCHUAN, AND INTERNATIONAL CONSTRUCTION CORPORATION,respondents. Office of the Solicitor General Felix V. Makasiar and Solicitor Bernardo P. Pardo for petitioner. Andres T. Velarde and Marcelo B. Fernan for respondents. FERNANDO, J.: The Republic of the Philippines in this certiorari and prohibition proceeding challenges the validity of an order issued by respondent Judge Guillermo P. Villasor, then of the Court of First Instance of Cebu, Branch I, declaring a decision final and executory and of an alias writ of execution directed against the funds of the Armed Forces of the Philippines subsequently issued in pursuance thereof, the alleged ground being excess of jurisdiction, or at the very least, grave abuse of discretion. As thus simply and tersely put, with the facts being undisputed and the principle of law that calls for application indisputable, the outcome is predictable. The Republic of the Philippines is entitled to the writs prayed for. Respondent Judge ought not to have acted thus. The order thus impugned and the alias writ of execution must be nullified. In the petition filed by the Republic of the Philippines on July 7, 1969, a summary of facts was set forth thus: 7. On July 3, 1961, a decision was rendered in Special Proceedings No. 2156-R in favor of respondents P. J. Kiener Co., Ltd., Gavino Unchuan, and International Construction Corporation, and against the petitioner herein, confirming the arbitration award in the amount of P1,712,396.40, subject of Special Proceedings. 8. On June 24, 1969, respondent Honorable Guillermo P. Villasor, issued an Order declaring the aforestated decision of July 3, 1961 final and executory, directing the Sheriffs of Rizal Province, Quezon City [as well as] Manila to execute the said decision. 9. Pursuant to the said Order dated June 24, 1969, the corresponding Alias Writ of Execution [was issued] dated June 26, 1969, . 10. On the strength of the afore-mentioned Alias Writ of Execution dated June 26,1969, the Provincial Sheriff of Rizal (respondent herein) served notices of garnishment dated June 28, 1969 with

several Banks, specially on the monies due the Armed Forces of the Philippines in the form of deposits sufficient to cover the amount mentioned in the said Writ of Execution; the Philippine Veterans Bank received the same notice of garnishment on June 30, 1969 . 11. The funds of the Armed Forces of the Philippines on deposit with the Banks, particularly, with the Philippine Veterans Bank and the Philippine National Bank [or] their branches are public funds duly appropriated and allocated for the payment of pensions of retirees, pay and allowances of military and civilian personnel and for maintenance and operations of the Armed Forces of the Philippines, as per Certification dated July 3, 1969 by the AFP Controller, . The paragraph immediately succeeding in such petition then alleged: 12. Respondent Judge, Honorable Guillermo P. Villasor, acted in excess of jurisdiction [or] with grave abuse of discretion amounting to lack of jurisdiction in granting the issuance of an alias writ of execution against the properties of the Armed Forces of the Philippines, hence, the Alias Writ of Execution and notices of garnishment issued pursuant thereto are null and void. In the answer filed by respondents, through counsel Andres T. Velarde and Marcelo B. Fernan, the facts set forth were admitted with the only qualification being that the total award was in the amount of P2,372,331.40. The Republic of the Philippines, as mentioned at the outset, did right in filing this certiorari and prohibition proceeding. What was done by respondent Judge is not in conformity with the dictates of the Constitution. . It is a fundamental postulate of constitutionalism flowing from the juristic concept of sovereignty that the state as well as its government is immune from suit unless it gives its consent. It is readily understandable why it must be so. In the classic formulation of Holmes: A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. 5 Sociological jurisprudence supplies an answer not dissimilar. So it was indicated in a recent decision, Providence Washington Insurance Co. v. Republic of the Philippines, with its affirmation that a continued adherence to the doctrine of non-suability is not to be deplored for as against the inconvenience that may be caused private parties, the loss of governmental efficiency and the obstacle to the performance of its multifarious functions are far greater if such a fundamental principle were abandoned and the availability of judicial remedy were not thus restricted. With the well known propensity on the part of our people to go to court, at the least provocation, the loss of time and energy required to defend against law suits, in the absence of such a basic principle that constitutes such an effective obstacle, could very well be imagined. The fundamental postulate underlying the 1935 Constitution is now made explicit in the revised charter. It is therein expressly provided: The State may not be sued without its consent. A corollary, both dictated by logic and sound sense from a basic concept is that public funds cannot be the object of a garnishment proceeding even if the consent to be sued had been previously granted and the state liability adjudged. Thus in the recent case of Commissioner of Public Highways v. San Diego, such a well-settled doctrine was restated in the opinion of Justice Teehankee: The universal rule that where the State gives its consent to be sued by private parties either by general or special law, it may limit claimants action only up to the completion of proceedings anterior to the stage of execution and that the power of the Courts ends when the judgment is rendered, since government funds and properties may not be seized under writs of execution or garnishment to satisfy such judgments, is based on obvious considerations of public policy. Disbursements of public funds must be covered by the corresponding appropriation as required by law. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by law. 10 Such a principle applies even to an attempted garnishment of a salary that had accrued in favor of

an employee. Director of Commerce and Industry v. Concepcion, speaks to that effect. Justice Malcolm as ponente left no doubt on that score. Thus: A rule which has never been seriously questioned, is that money in the hands of public officers, although it may be due government employees, is not liable to the creditors of these employees in the process of garnishment. One reason is, that the State, by virtue of its sovereignty, may not be sued in its own courts except by express authorization by the Legislature, and to subject its officers to garnishment would be to permit indirectly what is prohibited directly. Another reason is that moneys sought to be garnished, as long as they remain in the hands of the disbursing officer of the Government, belong to the latter, although the defendant in garnishment may be entitled to a specific portion thereof. And still another reason which covers both of the foregoing is that every consideration of public policy forbids it. In the light of the above, it is made abundantly clear why the Republic of the Philippines could rightfully allege a legitimate grievance. WHEREFORE, the writs of certiorari and prohibition are granted, nullifying and setting aside both the order of June 24, 1969 declaring executory the decision of July 3, 1961 as well as the alias writ of execution issued thereunder. The preliminary injunction issued by this Court on July 12, 1969 is hereby made permanent. Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur. Barredo, J, took no part.

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