Cases for Recit 10072014

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G.R. No. L-35645 May 22, 1985

UNITED STATES OF AMERICA, CAPT. JAMES E. GALLOWAY, WILLIAM I. COLLINS and ROBERTGOHIER, petitioners,

vs.HON. V. M. RUIZ, Presiding Judge of Branch XV, Court of First Instance of Rizal and ELIGIO DE GUZMAN & CO.,

INC., 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 ofthe 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 ofthose 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; andrepair to Leyte Wharf approach, NAVBASE Subic Bay, Philippines.

Eligio de Guzman & Co., Inc. responded to the invitation and submitted bids. Subsequent thereto, the company receivedfrom 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 itsbids because "A request to confirm a price proposal confirms the acceptance of a bid pursuant to defendant UnitedStates' bidding practices." (Rollo, p. 30.) The truth of this allegation has not been tested because the case has notreached the trial stage.]

In June, 1972, the company received a letter which was signed by Wilham I. Collins, Director, Contracts Division, NavalFacilities 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 itsprevious unsatisfactory performance rating on a repair contract for the sea wall at the boat landings of the U.S. NavalStation in Subic Bay. The letter further said that the projects had been awarded to third parties. In the abovementionedCivil Case No. 779-M, the company sued the United States of America and Messrs. James E. Galloway, William I. Collinsand Robert Gohier all members of the Engineering Command of the U.S. Navy. The complaint is to order the defendantsto allow the plaintiff to perform the work on the projects and, in the event that specific performance was no longerpossible, to order the defendants to pay damages. The company also asked for the issuance of a writ of preliminaryinjunction 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 thesubject matter of the complaint and the persons of defendants, the subject matter of the complaint being acts andomissions of the individual defendants as agents of defendant United States of America, a foreign sovereign which hasnot 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 thewrit of preliminary injunction. The company opposed the motion. The trial court denied the motion and issued the writ. Thedefendants moved twice to reconsider but to no avail. Hence the instant petition which seeks to restrain perpetually theproceedings 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 consentor waiver. This rule is a necessary consequence of the principles of independence and equality of States. However, the

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rules of International Law are not petrified; they are constantly developing and evolving. And because the activities ofstates 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 andother 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 thedefendants' (now petitioners) motion: " A distinction should be made between a strictly governmental function of thesovereign 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 nota governmental function altho it may partake of a public nature or character. As aptly pointed out by plaintiff's counsel inhis 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 statecan be sued upon the theory that it has descended to the level of an individual from which it can beimplied 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 itsagency at Subic Bay, entered into a contract with appellant for stevedoring and miscellaneous laborservices 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. Thetrial 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 Manilato collect several sums of money on account of a contract between plaintiff and defendant. The defendant filed a motion todismiss on the ground that the court had no jurisdiction over defendant and over the subject matter of the action. Thecourt granted the motion on the grounds that: (a) it had no jurisdiction over the defendant who did not give its consent tothe suit; and (b) plaintiff failed to exhaust the administrative remedies provided in the contract. The order of dismissal waselevated 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 XXIof the contract regarding the prosecution of its claim against the United States Government, or, stateddifferently, it has failed to first exhaust its administrative remedies against said Government, the lowercourt 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 ofthe foreign sovereign, its commercial activities or economic affairs. Stated differently, a State may be said to havedescended 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. Inthis case the projects are an integral part of the naval base which is devoted to the defense of both the United States andthe Philippines, indisputably a function of the government of the highest order; they are not utilized for nor dedicated tocommercial 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 natureof the act is shown in Syquia vs. Lopez, 84 Phil. 312 (1949). In that case the plaintiffs leased three apartment buildings tothe United States of America for the use of its military officials. The plaintiffs sued to recover possession of the premiseson the ground that the term of the leases had expired. They also asked for increased rentals until the apartments shallhave been vacated.

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The defendants who were armed forces officers of the United States moved to dismiss the suit for lack of jurisdiction inthe part of the court. The Municipal Court of Manila granted the motion to dismiss; sustained by the Court of FirstInstance, 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 defendantin interest is the Government of the United States of America; that any judgment for back or Increasedrentals or damages will have to be paid not by defendants Moore and Tillman and their 64 co-defendantsbut 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 andinterposed at the very beginning of the action. The U.S. Government has not , given its consent to thefiling of this suit which is essentially against her, though not in name. Moreover, this is not only a case ofa citizen filing a suit against his own Government without the latter's consent but it is of a citizen filing anaction against a foreign government without said government's consent, which renders more obvious thelack of jurisdiction of the courts of his country. The principles of law behind this rule are so elementaryand 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 wasnot deemed to have given or waived its consent to be sued for the reason that the contracts were for jure imperii and notfor jure gestionis.

WHEREFORE, the petition is granted; the questioned orders of the respondent judge are set aside and Civil Case No. isdismissed. 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 beallowed 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 Bayarea, 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 politicalentity 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 forthe repair of wharves or shoreline in the Subic Bay area, it is deemed to have entered into a contract and thus waived themantle 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 barby the unilateral cancellation of the award for the project by the United States government, through its agency at SubicBay should not be allowed to take undue advantage of a party who may have legitimate claims against it by seekingrefuge behind the shield of non-suability. A contrary view would render a Filipino citizen, as in the instant case, helplessand without redress in his own country for violation of his rights committed by the agents of the foreign governmentprofessing 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:

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Although, generally, foreign governments are beyond the jurisdiction of domestic courts of justice, suchrule is inapplicable to cases in which the foreign government enters into private contracts with the citizensof the court's jurisdiction. A contrary view would simply run against all principles of decency and violativeof all tenets of morals.

Moral principles and principles of justice are as valid and applicable as well with regard to privateindividuals as with regard to governments either domestic or foreign. Once a foreign government entersinto a private contract with the private citizens of another country, such foreign government cannot shieldits 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 theexecution of unilateral contracts, graphically described in Spanish as 'contratos leoninos', because oneparty gets the lion's share to the detriment of the other. To give validity to such contract is to sanctify badfaith, deceit, fraud. We prefer to adhere to the thesis that all parties in a private contract, includinggovernments and the most powerful of them, are amenable to law, and that such contracts areenforceable through the help of the courts of justice with jurisdiction to take cognizance of any violation ofsuch 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 uponour sovereignty and dignity as a nation. Its application will particularly discourage Filipino or domestic contractors fromtransacting business and entering into contracts with United States authorities or facilities in the Philippines whethernaval, air or ground forces-because the difficulty, if not impossibility, of enforcing a validly executed contract and ofseeking judicial remedy in our own courts for breaches of contractual obligation committed by agents of the United Statesgovernment, always, looms large, thereby hampering the growth of Filipino enterprises and creating a virtual monopoly inour own country by United States contractors of contracts for services or supplies with the various U.S. offices andagencies operating in the Philippines.

The sanctity of upholding agreements freely entered into by the parties cannot be over emphasized. Whether the partiesare nations or private individuals, it is to be reasonably assumed and expected that the undertakings in thecontract 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 alwaysoverwhelm small and weak nations. The declaration in the United Nations Charter that its member states are equal andsovereign, becomes hollow and meaningless because big nations wielding economic and military superiority impose uponand 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 hereinprivate respondent on the other, was honored more in the breach than in the compliance The opinion of the majority willcertainly open the floodgates of more violations of contractual obligations. American authorities or any foreign governmentin the Philippines for that matter, dealing with the citizens of this country, can conveniently seek protective cover under themajority opinion. The result is disastrous to the Philippines.

This opinion of the majority manifests a neo-colonial mentality. It fosters economic imperialism and foreign politicalascendancy in our Republic.

The doctrine of government immunity from suit cannot and should not serve as an instrument for perpetrating an injusticeon 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 atSubic 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, powersand authority, the United States agrees that the powers granted to it will not be used unreasonably . . ." (Emphasissupplied).

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Nor is such posture of the petitioners herein in harmony with the amendment dated May 27, 1968 to the aforesaid RP-USMilitary Bases Agreement, which recognizes "the need to promote and maintain sound employment practices which willassure 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 bothGovernments, ... the United States Government agrees to accord preferential employment of Filipino citizens in theBases, 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 laborlaws and regulations , " even though paragraph 2 thereof affirms that "nothing in this Agreement shall imply any waiver byeither 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 withNo. III on respect for Philippine law of the Memorandum of Agreement signed on January 7, 1979, also amending RP-USMilitary Bases Agreement, which stresses that " it is the duty of members of the United States Forces, the civiliancomponent and their dependents, to respect the laws of the Republic of the Philippines and to abstain from any activityinconsistent with the spirit of the Military Bases Agreement and, in particular, from any political activity in the PhilippinesThe 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 procuregoods 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 onpossible revisions or alterations of the Agreement of May 27, 1968, " the discussions shall be conducted on the basis ofthe principles of equality of treatment, the right to organize, and bargain collectively, and respect for the sovereignty of theRepublic 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 sovereigntyextends over the bases and that Its base shall be under the command of a Philippine Base Commander, " which issupposed to underscore the joint Communique of President Marcos and U.S. President Ford of December 7, 1975, underwhich " 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 eachnation 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 thePhilippine and American Base Commanders that "in the performance of their duties, the Philippine Base Commander andthe American Base Commander shall be guided by full respect for Philippine sovereignty on the one hand and theassurance of unhampered U.S. military operations on the other hand and that " they shall promote cooperationunderstanding 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. Murphyand Minister of Foreign Affairs Carlos P. Romulo, Emphasis supplied).

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 beallowed 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 Bayarea, 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.

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Navy Reservation, it is evident that it can bring an action before our courts for any contractual liability that that politicalentity 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 forthe repair of wharves or shoreline in the Subic Bay area, it is deemed to have entered into a contract and thus waived themantle 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 SubicBay should not be allowed to take undue advantage of a party who may have legitimate claims against it by seekingrefuge behind the shield of non-suability. A contrary view would render a Filipino citizen, as in the instant case, helplessand without redress in his own country for violation of his rights committed by the agents of the foreign governmentprofessing 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, suchrule is inapplicable to cases in which the foreign government enters into private contracts with the citizensof the court's jurisdiction. A contrary view would simply run against all principles of decency and violativeof all tenets of morals.

Moral principles and principles of justice are as valid and applicable as well with regard to privateindividuals as with regard to governments either domestic or foreign. Once a foreign government entersinto a private contract with the private citizens of another country, such foreign government cannot shieldits non-performance or contravention of the terms of the contract under the cloak of non-jurisdiction. Toplace such foreign government beyond the jurisdiction of the domestic courts is to give approval to theexecution of unilateral contracts, graphically described in Spanish as 'contratos leoninos', because oneparty gets the lion's share to the detriment of the other. To give validity to such contract is to sanctify badfaith, deceit, fraud. We prefer to adhere to the thesis that all parties in a private contract, includinggovernments and the most powerful of them, are amenable to law, and that such contracts areenforceable through the help of the courts of justice with jurisdiction to take cognizance of any violation ofsuch 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 uponour sovereignty and dignity as a nation. Its application will particularly discourage Filipino or domestic contractors fromtransacting business and entering into contracts with United States authorities or facilities in the Philippines whethernaval, air or ground forces-because the difficulty, if not impossibility, of enforcing a validly executed contract and ofseeking judicial remedy in our own courts for breaches of contractual obligation committed by agents of the United Statesgovernment, always, looms large, thereby hampering the growth of Filipino enterprises and creating a virtual monopoly inour own country by United States contractors of contracts for services or supplies with the various U.S. offices andagencies operating in the Philippines.

The sanctity of upholding agreements freely entered into by the parties cannot be over emphasized. Whether the partiesare nations or private individuals, it is to be reasonably assumed and expected that the undertakings in thecontract 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 alwaysoverwhelm small and weak nations. The declaration in the United Nations Charter that its member states are equal andsovereign, becomes hollow and meaningless because big nations wielding economic and military superiority impose uponand 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 ofinternational 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 hereinprivate respondent on the other, was honored more in the breach than in the compliance The opinion of the majority willcertainly open the floodgates of more violations of contractual obligations. American authorities or any foreign government

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in the Philippines for that matter, dealing with the citizens of this country, can conveniently seek protective cover under themajority opinion. The result is disastrous to the Philippines.

This opinion of the majority manifests a neo-colonial mentality. It fosters economic imperialism and foreign politicalascendancy in our Republic.

The doctrine of government immunity from suit cannot and should not serve as an instrument for perpetrating an injusticeon 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 atSubic 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, powersand authority, the United States agrees that the powers granted to it will not be used unreasonably . . ." (Emphasissupplied).

Nor is such posture of the petitioners herein in harmony with the amendment dated May 27, 1968 to the aforesaid RP-USMilitary Bases Agreement, which recognizes "the need to promote and maintain sound employment practices which willassure 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 bothGovernments, ... the United States Government agrees to accord preferential employment of Filipino citizens in theBases, 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 theaforesaid 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 laborlaws and regulations , " even though paragraph 2 thereof affirms that "nothing in this Agreement shall imply any waiver byeither 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 withNo. III on respect for Philippine law of the Memorandum of Agreement signed on January 7, 1979, also amending RP-USMilitary Bases Agreement, which stresses that " it is the duty of members of the United States Forces, the civiliancomponent and their dependents, to respect the laws of the Republic of the Philippines and to abstain from any activityinconsistent with the spirit of the Military Bases Agreement and, in particular, from any political activity in the PhilippinesThe 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 andsocial improvement of areas surrounding the bases, which directs that " moreover, the United States Forces shall procuregoods 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 onpossible revisions or alterations of the Agreement of May 27, 1968, " the discussions shall be conducted on the basis ofthe principles of equality of treatment, the right to organize, and bargain collectively, and respect for the sovereignty of theRepublic 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 sovereigntyextends over the bases and that Its base shall be under the command of a Philippine Base Commander, " which issupposed to underscore the joint Communique of President Marcos and U.S. President Ford of December 7, 1975, underwhich " 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 eachnation shall characterize their friendship as well as the alliance between their two countries. "

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The majority opinion negates the statement on the delineation of the powers, duties and responsibilities of both thePhilippine and American Base Commanders that "in the performance of their duties, the Philippine Base Commander andthe American Base Commander shall be guided by full respect for Philippine sovereignty on the one hand and theassurance of unhampered U.S. military operations on the other hand and that " they shall promote cooperationunderstanding 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. Murphyand Minister of Foreign Affairs Carlos P. Romulo, Emphasis supplied).

G.R. No. L-65366 November 9, 1983

JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,vs.

RAMON BAGATSING, as Mayor of the City of Manila, respondent.

FERNANDO, C.J.: ñé+.£ ªwph!1

This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the boundaries of theprotected area of the cognate rights to free speech and peaceable assembly, 1 against an alleged intrusion by respondentMayor Ramon Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City ofManila to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta, a publicpark, to the gates of the United States Embassy, hardly two blocks away. Once there, and in an open space of public property, a shortprogram would be held. 2 During the course of the oral argument, 3 it was stated that after the delivery of two brief speeches, a petitionbased on the resolution adopted on the last day by the International Conference for General Disbarmament, World Peace and theRemoval of All Foreign Military Bases held in Manila, would be presented to a representative of the Embassy or any of its personnelwho may be there so that it may be delivered to the United States Ambassador. The march would be attended by the local and foreignparticipants of such conference. There was likewise an assurance in the petition that in the exercise of the constitutional rights to freespeech and assembly, all the necessary steps would be taken by it "to ensure a peaceful march and rally." 4

The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on October 20,1983 was due to the fact that as of that date, petitioner had not been informed of any action taken on his request onbehalf of the organization to hold a rally. On October 25, 1983, the answer of respondent Mayor was filed on his behalf by

Assistant Solicitor General Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner wasunaware of such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was due to police intelligence reportswhich strongly militate against the advisability of issuing such permit at this time and at the place applied for." 6 To be more specific,reference was made to persistent intelligence reports affirm[ing] the plans of subversive/criminal elements to infiltrate and/or disrupt anyassembly or congregations where a large number of people is expected to attend." 7 Respondent Mayor suggested, however, inaccordance with the recommendation of the police authorities, that "a permit may be issued for the rally if it is to be held at the RizalColiseum or any other enclosed area where the safety of the participants themselves and the general public may be ensured." 8

The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court then deliberatedon the matter. That same afternoon, a minute resolution was issued by the Court granting the mandatory injunctionprayed for on the ground that there was no showing of the existence of a clear and present danger of a substantive evilthat could justify the denial of a permit. On this point, the Court was unanimous, but there was a dissent by Justice Aquinoon the ground that the holding of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the City ofManila. The last sentence of such minute resolution reads: "This resolution is without prejudice to a more extendedopinion." 9 Hence this detailed exposition of the Court's stand on the matter.

1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peacefulassembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging thefreedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government forredress of grievances." 10 Free speech, like free press, may be Identified with the liberty to discuss publicly and truthfully any matterof public concern without censorship or punishment. 11 There is to be then no previous restraint on the communication of views orsubsequent liability whether in libel suits, 12 prosecution for sedition, 13 or action for damages, 14 or contempt proceedings 15 unless therebe a clear and present danger of a substantive evil that [the State] has a right to prevent." 16 Freedom of assembly connotes the rightpeople to meet peaceably for consultation and discussion of matters Of public concern. 17 It is entitled to be accorded the utmostdeference and respect. It is hot to be limited, much less denied, except on a showing, as 's the case with freedom of expression, of aclear and present danger of a substantive evil that the state has a right to prevent. 18 Even prior to the 1935 Constitution, JusticeMaicolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free

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speech. 19 To paraphrase opinion of Justice Rutledge speaking for the majority of the American Supreme Court Thomas v. Collins , 20 iwas not by accident or coincidence that the right to freedom of speech and of the press were toupled in a single guarantee with the andto petition the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights,while not Identical, are inseparable. the every case, therefo re there is a limitation placed on the exercise of this right, the judiciary iscalled upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the e xercise of thisright, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a seriousevil to public safety, public morals, public health, or any other legitimate public interest. 21

2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than inthis excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the

child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all thepeaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions uponrational modes of communication that the guaranty of free speech was given a generous scope. But utterance in a contextof violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterancewas not meant to be sheltered by the Constitution." 22 What was rightfully stressed is the abandonment of reason, the utterance,whether verbal or printed, being in a context of violence. It must always be remembered that this right likewise provides for a safetyvalve, allowing parties the opportunity to give vent to their-views, even if contrary to the prevailing climate of opinion. For if the peacefulmeans of communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason forthe expression of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is dissatisfied withthings as they are. Its value may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a trueferment of Ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate disorderin the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending arally or assembly. resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. Aspointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado : 23 "It is rather to be expected that more

or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on suchoccasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, theless perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." 24 It bears repeating that for theconstitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided, To give free rein to one'sdestructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme ofvalues.

3. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choiceof Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in theplurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: 25 Whenever the title of streets and parks may rest, theyhave immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly,communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancienttimes, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use thestreets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative,

and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but itmust not, in the guise of regulation, be abridged or denied. 26 The above excerpt was quoted with approval in Primicias v.Fugoso. 27 Primicias made explicit what was implicit in Municipality of Cavite v. Rojas ," 28 a 1915 decision, where this Court categoricallyaffirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad ofplaintiff-municipality. Reference was made to such plaza "being a promenade for public use," 29 which certainly is not the only purposethat it could serve. To repeat, there can be no valid reason why a permit should not be granted for the or oposed march and rallystarting from a public dark that is the Luneta.

4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy, hardly two block-away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the thenMayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Courtcategorically declared: "Our conclusion finds support in the decision in the case of Willis Cox vs. State of New Hampshire312 U.S., 569. In that case, the statute of New Hampshire P. L. chap. 145, section 2, providing that 'no parade orprocession upon any ground abutting thereon, shall 'De permitted unless a special license therefor shall first be explained

from the selectmen of the town or from licensing committee,' was construed by the Supreme Court of New Hampshire asnot conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And theSupreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of theState Supreme Court, held that 'a statute requiring persons using the public streets for a parade or procession to procurea special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or offreedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictlylimited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with aview to conserving the public convenience and of affording an opportunity to provide proper policing, and are not investedwith arbitrary discretion to issue or refuse license, ... " 30 Nor should the point made by Chief Justice Hughes in a subsequentportion of the opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized societymaintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality

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to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never beenregarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimatelydepend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restrictionof the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded bythe attempted exercise of some civil right which in other circumstances would be entitled to protection." 31

5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted, would have arisen. So,too, if the march would end at another park. As previously mentioned though, there would be a short program uponreaching the public space between the two gates of the United States Embassy at Roxas Boulevard. That would befollowed by the handing over of a petition based on the resolution adopted at the closing session of the Anti-BasesCoalition. The Philippines is a signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It wasconcurred in by the then Philippine Senate on May 3, 1965 and the instrument of ratification was signed by the Presidenton October 11, 1965, and was thereafter deposited with the Secretary General of the United Nations on November 15. Asof that date then, it was binding on the Philippines. The second paragraph of the Article 22 reads: "2. The receiving Stateis under a special duty to take appropriate steps to protect the premises of the mission against any intrusion or damageand to prevent any disturbance of the peace of the mission or impairment of its dignity. " 32 The Constitution "adopts thegenerally accepted principles of international law as part of the law of the land. ..." 33 To the extent that the Vienna Convention is arestatement of the generally accepted principles of international law, it should be a part of the law of the land. 34 That being the case, ifthere were a clear and present danger of any intrusion or damage, or disturbance of the peace of the mission, or impairment of itsdignity, there would be a justification for the denial of the permit insofar as the terminal point would be the Embassy. Moreover,respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrationswithin a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. Unless the ordinance is nullif ied,or declared ultra vires, its invocation as a defense is understandable but not decisive, in view of the primacy accorded the c onstitutionalrights of free speech and peaceable assembly. Even if shown then to be applicable, that question the confronts this Court.

6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment must be confinedwithin the limits of previous decisions. The law declared on past occasions is, on the whole, a safe guide, So it has beenhere. Hence, as noted, on the afternoon of the hearing, October 25, 1983, this Court issued the minute resolution grantingthe mandatory injunction allowing the proposed march and rally scheduled for the next day. That conclusion wasinevitable ill the absence of a clear and present danger of a substantive, evil to a legitimate public interest. There was no

justification then to deny the exercise of the constitutional rights of tree speech and peaceable assembly. These rights areassured by our Constitution and the Universal Declaration of Human Rights. 35 The participants to such assembly, composedprimarily of those in attendance at the International Conference for General Disbarmament, World Peace and the Removal of AllForeign Military Bases would start from the Luneta. proceeding through Roxas Boulevard to the gates of the United States Embassylocated at the same street. To repeat, it is settled law that as to public places, especially so as to parks and streets, there is freedom ofaccess. Nor is their use dependent on who is the applicant for the permit, whether an individual or a group. If it were, then the freedomof access becomes discriminatory access, giving rise to an equal protection question. The principle under American doctrines wasgiven utterance by Chief Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly are to bepreserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to The relations of the speakers, butwhether their utterances transcend the bounds of the freedom of speech which the Constitution protects." 36 There could be danger topublic peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, onlythe guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion indetermining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be arealistic appraisal not of what may possibly occur but of what may probably occur , given all the relevant circumstances, still theassumption — especially so where the assembly is scheduled for a specific public — place is that the permit must be for the assemblybeing held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not tobe "abridged on the plea that it may be exercised in some other place." 37

7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa ng ManggagawangPilipino (PMP.) v. Bagatsing, 39 called for application. While the General rule is that a permit should recognize the right of the applicantsto hold their assembly at a public place of their choice, another place may be designated by the licensing authority if it be shown thatthere is a clear and present danger of a substantive evil if no such change were made. In the Navarro and the Pagkakaisa decisions,

this Court was persuaded that the clear and present danger test was satisfied. The present situation is quite different. Hence thedecision reached by the Court. The mere assertion that subversives may infiltrate the ranks of the demonstrators does not suffice. Notthat it should be overlooked. There was in this case, however, the assurance of General Narciso Cabrera, Superintendent, WesternPolice District, Metropolitan Police Force, that the police force is in a position to cope with such emergency should it arise That is tocomply with its duty to extend protection to the participants of such peaceable assembly. Also from him came the commendableadmission that there were the least five previous demonstrations at the Bayview hotel Area and Plaza Ferguson in front of the UnitedStates Embassy where no untoward event occurred. It was made clear by petitioner, through counsel, that no act offensive to thedignity of the United States Mission in the Philippines would take place and that, as mentioned at the outset of this opinion, "all thenecessary steps would be taken by it 'to ensure a peaceful march and rally.' " 40 Assistant Solicitor General Montenegro expressed theview that the presence of policemen may in itself be a provocation. It is a sufficient answer that they should stay at a disc reet distance,but ever ready and alert to cope with any contingency. There is no need to repeat wh at was pointed out by Chief Justice Hughes in Cox

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that precisely, it is the duty of the city authorities to provide the proper police protection to those exercising their right to peaceableassembly and freedom of expression.

8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing authority of the date,the public place where and the time when it will take place. If it were a private place, only the consent of the owner or theone entitled to its legal possession is required. Such application should be filed well ahead in time to enable the publicofficial concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at anotherpublic place. It is an indispensable condition to such refusal or modification that the clear and present danger test be thestandard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantiveevil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must betransmitted to them at the earliest opportunity. Thus if so minded, then, can have recourse to the proper judicial authority.Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme ofconstitutional values. It cannot be too strongly stressed that on the judiciary, — even more so than on the otherdepartments — rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights.No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by JusticeHolmes "as the sovereign prerogative of judgment." Nonetheless, the presumption must be to incline the weight of thescales of justice on the side of such rights, enjoying as they do precedence and primacy. Clearly then, to the extent thatthere may be inconsistencies between this resolution and that of Navarro v. Villegas , that case is pro tanto modified. So itwas made clear in the original resolution of October 25, 1983.

9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila prohibiting theholding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission orchancery and for other purposes. It is to be admitted that it finds support In the previously quoted Article 22 of the ViennaConvention on Diplomatic Relations. There was no showing, however, that the distance between the chancery and theembassy gate is less than 500 feet. Even if it could be shown that such a condition is satisfied. it does not follow thatrespondent Mayor could legally act the way he did. The validity of his denial of the permit sought could still be challenged.It could be argued that a case of unconstitutional application of such ordinance to the exercise of the right of peaceableassembly presents itself. As in this case there was no proof that the distance is less than 500 feet, the need to pass onthat issue was obviated, Should it come, then the qualification and observation of Justices Makasiar and Plana certainlycannot be summarily brushed aside. The high estate accorded the rights to free speech and peaceable assemblydemands nothing less.

10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of the permit sought andorder the respondent official, to grant it. Nonetheless, as there was urgency in this case, the proposed march and rallybeing scheduled for the next day after the hearing, this Court. in the exercise of its conceded authority, granted themandatory injunction in the resolution of October 25, 1983. It may be noted that the peaceful character of the peacemarch and rally on October 26 was not marred by any untoward incident. So it has been in other assemblies heldelsewhere. It is quite reassuring such that both on the part of the national government and the citizens, reason andmoderation have prevailed. That is as it should be.

WHEREFORE, the mandatory injunction prayed for is granted. No costs.

Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ., concur.

De Castro, J, is on leave.

Separate Opinions

TEEHANKEE, J., concurring:

The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso 1 that "the right to freedom of speechand to peacefully assemble and petition the government for redress of grievances are fundamental personal rights of the peoplerecognized and guaranteed by the constitutions of democratic countries" and that the city or town mayors are not conferred "the powerto refuse to grant the permit, but only the discretion, in issuing the permit, to determine or specify the streets or public places where theparade or procession may pass or the meeting may be held." The most recent graphic demonstration of what this great right of peacefulassembly and petition for redress of grievances could accomplish was the civil rights march on Washington twenty years ago under the

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late assassinated black leader Martin Luther King, Jr. (whose birthday has now been declared an American national holiday) whichsubpoenaed the conscience of the nation," and awakened the conscience of millions of previously indifferent Americans and eventually(after many disorders and riots yet to come) was to put an end to segregation and discrimination against the American Negro.

The procedure for the securing of such permits for peaceable assembly is succintly set forth in the summary given by theCourt Justice in paragraph 8 of the Court's opinion, with the injunction that "the presumption must be to incline the weightof the scales of justice on the side of such rights, enjoying as they do, precedence and primacy," The exception of theclear and present danger rule, which alone would warrant a limitation of these fundamental rights, is therein restated inparagraph 1, thus: "The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance ofdemocratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, publicmorals, public health, or any other legitimate public interest. "

It bears emphasis that the burden to show the existence of grave and imminent danger that would justify adverse actionon the application lies on the mayor as licensing authority. There must be objective and convincing, not subjective orconjectural proof of the existence of such clear and present danger . As stated in our Resolution of October 25, 1983,which granted the mandatory injunction as prayed for, "It is essential for the validity of a denial of a permit which amountsto a previous restraint or censorship that the licensing authority does not rely solely on his own appraisal of what publicwelfare, peace or safety may require. To justify such a limitation there must be proof of such weight and sufficiency tosatisfy the clear and present danger test. The possibility that subversives may infiltrate the ranks of the demonstrators isnot enough." As stated by Justice Brandeis in his concurring opinion in Whitney vs. California . 2 têñ.£îhqwâ£

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witchesand burned women. It is the function of speech to free men from the bondage of irrational fears . To justifysuppression of free speech there must be reasonable ground to fear that serious evil will result if freespeech is practiced. There must be reasonable ground to believe that the danger apprehendedis imminent . There must be reasonable ground to believe that the evil to be prevented is a serious one * **.

Those who won our independence by revolution were not cowards. They did not fear political change.They did not exalt order at the cost of liberty. * * *

Moreover, even imminent danger cannot justify resort to prohibition of these functions essential (for)effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech andassembly is a measure so stringent that it would be inappropriate as the means for averting a relativelytrivial harm to a society. * * * The fact that speech is likely to result in some violence or in destruction of

property is not enough to justify its suppression. There must be the probability of serious injury to thestate. Among freemen the deterrents ordinarily to be applied to prevent crimes are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly . (Emphasissupplied)

The Court's opinion underscores that the exercise of the right is not to be "abridged on the plea that it may be exercisedin some other place" (paragraph 6), and that "it is the duty of the city authorities to provide the proper police protection tothose exercising their right to peaceable assembly and freedom of expression," (at page 14) The U.S. Supreme Court'spronouncement in Hague vs. Committee for Industrial Organization 3 cited in Fugoso is worth repeating: têñ.£îhqwâ£

* * * Wherever the title of streets and parks may rest, they have immemorially been held in trust for theuse of the public and, time out of mind, have been used for purposes of assembly, communicatingthoughts between citizens, and discussing public questions. Such use of the streets and public places

has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens . Theprivilege of a citizen * * * to use the streets and parks for communication of views on national questionsmay be regulated in the interest of all; it is not absolute, but relative, and must be exercised insubordination to the general comfort and convenience, and in consonance with peace and good order;but it must not, in the guise of regulation, be abridged or denied .

We think the court below was right in holding the ordinance quoted in Note I void upon its face. It does notmake comfort or convenience in the use of streets or parks the standard of official action. It enables theDirector of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots, disturbancesor disorderly assemblage. It can thus, as the record discloses, be made the instrument of arbitrary

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AQUINO, J., dissenting:

Voted to dismiss the petition on the ground that the holding of the rally in front of the US Embassy violates Ordinance No.7295 of the City of Manila.

Separate Opinions

TEEHANKEE, J., concurring:

The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso 1 that "the right to freedom of speechand to peacefully assemble and petition the government for redress of grievances are fundamental personal rights of the peoplerecognized and guaranteed by the constitutions of democratic countries" and that the city or town mayors are not conferred "the powerto refuse to grant the permit, but only the discretion, in issuing the permit, to determine or specify the streets or public places where theparade or procession may pass or the meeting may be held." The most recent graphic demonstration of what this great right of peacefulassembly and petition for redress of grievances could accomplish was the civil rights march on Washington twenty years ago under thelate assassinated black leader Martin Luther King, Jr. (whose birthday has now been declared an American national holiday) whichsubpoenaed the conscience of the nation," and awakened the conscience of millions of previously indifferent Americans and eventually(after many disorders and riots yet to come) was to put an end to segregation and discrimination against the American Negro.

The procedure for the securing of such permits for peaceable assembly is succintly set forth in the summary given by the

Court Justice in paragraph 8 of the Court's opinion, with the injunction that "the presumption must be to incline the weightof the scales of justice on the side of such rights, enjoying as they do, precedence and primacy," The exception of theclear and present danger rule, which alone would warrant a limitation of these fundamental rights, is therein restated inparagraph 1, thus: "The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance ofdemocratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, publicmorals, public health, or any other legitimate public interest. "

It bears emphasis that the burden to show the existence of grave and imminent danger that would justify adverse actionon the application lies on the mayor as licensing authority. There must be objective and convincing, not subjective orconjectural proof of the existence of such clear and present danger . As stated in our Resolution of October 25, 1983,which granted the mandatory injunction as prayed for, "It is essential for the validity of a denial of a permit which amountsto a previous restraint or censorship that the licensing authority does not rely solely on his own appraisal of what publicwelfare, peace or safety may require. To justify such a limitation there must be proof of such weight and sufficiency tosatisfy the clear and present danger test. The possibility that subversives may infiltrate the ranks of the demonstrators isnot enough." As stated by Justice Brandeis in his concurring opinion in Whitney vs. California . 2 têñ.£îhqwâ£

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witchesand burned women. It is the function of speech to free men from the bondage of irrational fears . To justifysuppression of free speech there must be reasonable ground to fear that serious evil will result if freespeech is practiced. There must be reasonable ground to believe that the danger apprehendedis imminent . There must be reasonable ground to believe that the evil to be prevented is a serious one * **.

Those who won our independence by revolution were not cowards. They did not fear political change.They did not exalt order at the cost of liberty. * * *

Moreover, even imminent danger cannot justify resort to prohibition of these functions essential (for)effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech andassembly is a measure so stringent that it would be inappropriate as the means for averting a relativelytrivial harm to a society. * * * The fact that speech is likely to result in some violence or in destruction ofproperty is not enough to justify its suppression. There must be the probability of serious injury to thestate. Among freemen the deterrents ordinarily to be applied to prevent crimes are education and

punishment for violations of the law, not abridgment of the rights of free speech and assembly . (Emphasissupplied)

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The Court's opinion underscores that the exercise of the right is not to be "abridged on the plea that it may be exercisedin some other place" (paragraph 6), and that "it is the duty of the city authorities to provide the proper police protection tothose exercising their right to peaceable assembly and freedom of expression," (at page 14) The U.S. Supreme Court'spronouncement in Hague vs. Committee for Industrial Organization 3 cited in Fugoso is worth repeating: têñ.£îhqwâ£

* * * Wherever the title of streets and parks may rest, they have immemorially been held in trust for theuse of the public and, time out of mind, have been used for purposes of assembly, communicatingthoughts between citizens, and discussing public questions. Such use of the streets and public placeshas, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens . The

privilege of a citizen * * * to use the streets and parks for communication of views on national questionsmay be regulated in the interest of all; it is not absolute, but relative, and must be exercised insubordination to the general comfort and convenience, and in consonance with peace and good order;but it must not, in the guise of regulation, be abridged or denied .

We think the court below was right in holding the ordinance quoted in Note I void upon its face. It does notmake comfort or convenience in the use of streets or parks the standard of official action. It enables theDirector of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots, disturbancesor disorderly assemblage. It can thus, as the record discloses, be made the instrument of arbitrarysuppression of free expression of views on national affairs for the prohibition of all speaking willundoubtedly 'prevent' such eventualities. But uncontrolled official suppression of the privilege cannot bemade a substitute for the duty to maintain order in connection with the exercise of the right. (Emphasissupplied)

Needless to say, the leaders of the peaceable assembly should take all the necessary measures to ensure a peacefulmarch and assembly and to avoid the possibility of infiltrators and troublemakers disrupting the same, concommitantlywith the duty of the police to extend protection to the participants "staying at a discreet distance, but ever ready and alertto perform their duty." But should any disorderly conduct or incidents occur, whether provoked or otherwise, it is well torecall former Chief Justice Ricardo Paras' injunction in his concurring opinion in Fugoso , citing the 1907 case of U.S. vs.

Apurado , 4 that such instances of "disorderly conduct by individual members of a crowd (be not seized) as an excuse to characterizethe assembly as a seditious and tumultuous rising against the authorities" and render illusory the right of peaceable assembly, thus: têñ.£îhqwâ£

It is rather to be expected that more or less disorder will mark the public assembly of the people to protestagainst grievances whether real or imaginary, because on such occasions feeling is always wrought to ahigh pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect,as a rule, will the disciplinary control of the leaders over their irresponsible followers. But if the prosecution

be permitted to seize upon every instance of such disorderly conduct by individual members of a crowdas an excuse to characterize the assembly as a seditious and tumultous rising against the authorities,'then the right to assemble and to petition for redress of grievances would become a delusion and snareand the attempt to exercise it on the most righteous occasion and in the most peaceable manner wouldexpose all those who took part therein to the severest and most unmerited punishment, if the purposeswhich they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances ofdisorderly conduct occur on such occasions , the guilty individuals should be sought out and punishedtherefor. (Emphasis supplied).

As it turned out, the demonstration was held on October 26, 1983 peaceably and without any untoward event or evilresult, as pledged by the organizers (like at least five previous peaceful demonstrations in the area). However, even ifthere had been any incidents of disorder, this would in no way show the Court's mandatory injunction to have beenwrongfully issued. The salutary desire on the part of respondent to prevent disorder cannot be pursued by the unjustifieddenial and suppression of the people's basic rights, which would thereby turn out to be mere paper rights.

MAKASIAR, J., concurring:

With the justification that in case of conflict, the Philippine Constitution — particularly the Bill of Rights — should prevailover the Vienna Convention.

ABAD SANTOS, J., concurring:

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To add anything to the learned opinion of the Chief Justice is like bringing coal to Newcastle, I just want to state for therecord that I voted for the issuance ex-parte of a preliminary mandatory injunction.

PLANA, J., concurring:

On the whole, I concur in the learned views of the distinguished Chief Justice. I would like however to voice a reservationregarding Ordinance No. 7295 of the City of Manila which has been invoked by the respondent.

The main opinion yields the implication that a rally or demonstration made within 500 feet from the chancery of a foreign

embassy would be banned for coming within the terms of the prohibition of the cited Ordinance which was adopted, so itis said, precisely to implement a treaty obligation of the Philippines under the 1961 Vienna Convention on DiplomaticRelations.

In my view, without saying that the Ordinance is obnoxious per se to the constitution, it cannot be validly invokedwhenever its application would collide with a constitutionally guaranteed right such as freedom of assembly and/orexpression, as in the case at bar, regardless of whether the chancery of any foreign embassy is beyond or within 500 feetfrom the situs of the rally or demonstration.

AQUINO, J., dissenting:

Voted to dismiss the petition on the ground that the holding of the rally in front of the US Embassy violates Ordinance No.7295 of the City of Manila.

G.R. No. L-24294 May 3, 1974

DONALD BAER, Commander U.S. Naval Base, Subic Bay, Olongapo, Zambales, petitioner,vs.

HON. TITO V. TIZON, as Presiding Judge of the Court of First Instance of Bataan, and EDGARDOGENER, respondents.

FERNANDO, J .: p

There is nothing novel about the question raised in this certiorari proceeding against the then Judge Tito V. Tizon, filed bypetitioner Donald Baer, then Commander of the United States Naval Base, Subic Bay, Olongapo, Zambales, seeking tonullify the orders of respondent Judge denying his motion to dismiss a complaint filed against him by the privaterespondent, Edgardo Gener, on the ground of sovereign immunity of a foreign power, his contention being that it was ineffect a suit against the United States, which had not given its consent. The answer given is supplied by a number ofcases coming from this Tribunal starting from a 1945 decision, Raquiza v. Bradford 1 to Johnson v. Turner , 2 promulgated in1954. The doctrine of immunity from suit is of undoubted applicability in this jurisdiction. It cannot be otherwise, for under the 1935Constitution, as now, it is expressly made clear that the Philippines "adopts the generally accepted principles of international law as partof the law of the Nation." 3 As will subsequently be shown, there was a failure on the part of the lower court to accord deference andrespect to such a basic doctrine, a failure compounded by its refusal to take note of the absence of any legal right on the part ofpetitioner. Hence, certiorari is the proper remedy.

The facts are not in dispute. On November 17, 1964, respondent Edgardo Gener, as plaintiff, filed a complaint for

injunction with the Court of First Instance of Bataan against petitioner, Donald Baer, Commander of the United StatesNaval Base in Olongapo. It was docketed as Civil Case No. 2984 of the Court of First Instance of Bataan. He alleged thathe was engaged in the business of logging in an area situated in Barrio Mabayo, Municipality of Morong, Bataan and thatthe American Naval Base authorities stopped his logging operations. He prayed for a writ of preliminary injunctionrestraining petitioner from interfering with his logging operations. A restraining order was issued by respondent Judge onNovember 23, 1964. 4 Counsel for petitioner, upon instructions of the American Ambassador to the Philippines, entered theirappearance for the purpose of contesting the jurisdiction of respondent Judge on the ground that the suit was one against a foreignsovereign without its consent. 5 Then, on December 12, 1964, petitioner filed a motion to dismiss, wherein such ground was reiterated. Itwas therein pointed out that he is the chief or head of an agency or instrumentality of the United States of America, with the subjectmatter of the action being official acts done by him for and in behalf of the United States of America. It was added that in directing thecessation of logging operations by respondent Gener within the Naval Base, petitioner was entirely within the scope of h is authority and

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official duty, the maintenance of the security of the Naval Base and of the installations therein being the first concern and mostimportant duty of the Commander of the Base. 6 There was, on December 14, 1964, an opposition and reply to petitioner's motion todismiss by respondent Gener, relying on the principle that "a private citizen claiming title and right of possession of certain propertymay, to recover possession of said property, sue as individuals, officers and agents of the Government, who are said to be illegallywithholding the same from him, though in doing so, said officers and agents claim that they are acting for the Government." That washis basis for sustaining the jurisdiction of respondent Judge. 7 Petitioner, thereafter, on January 12, 1965, made a written offer ofdocumentary evidence, including certified copies of telegrams of the Forestry Director to Forestry personnel in Balanga, Bataan datedJanuary 8, and January 11, 1965, directing immediate investigation of illegal timber cutting in Bataan and calling attention to the factthat the records of the office show no new renewal of timber license or temporary extension permits. 8 The above notwithstanding,respondent Judge, on January 12, 1965, issued an order granting respondent Gener's application for the issuance of a writ ofpreliminary injunction and denying petitioner's motion to dismiss the opposition to the application for a writ of preliminary injunction. 9

A motion for reconsideration having proved futile, this petition for certiorari was filed with this Court. The prayer was forthe nullification and setting aside of the writ of preliminary injunction issued by respondent Judge in the aforesaid CivilCase No. 2984 of the Court of First Instance of Bataan. A resolution of March 17, 1965 was issued by this Court requiringrespondents to file an answer and upon petitioner's posting a bond of P5,000.00 enjoining them from enforcing such writof preliminary injunction. The answer was duly forthcoming. It sought to meet the judicial question raised by the legalproposition that a private citizen claiming title and right of possession of a certain property may, to recover the same, sueas individuals officers and agents of the government alleged to be illegally withholding such property even if there is anassertion on their part that they are acting for the government. Support for such a view is found in the American SupremeCourt decisions of United States v. Lee 10 and Land v. Dollar . 11 Thus the issue is squarely joined whether or not the doctrine ofimmunity from suit without consent is applicable. Thereafter, extensive memoranda were filed both by petitioner and respondents. Inaddition, there was a manifestation and memorandum of the Republic of the Philippines as amicus curiae where, after a citation of

American Supreme Court decisions going back to Schooner Exchange v. M'faddon , 12 an 1812 decision, to United States v.

Belmont , 13

decided in 1937, the plea was made that the petition for certiorari be granted..

A careful study of the crucial issue posed in this dispute yields the conclusion, as already announced, that petitionershould prevail.

1. The invocation of the doctrine of immunity from suit of a foreign state without its consent is appropriate. Morespecifically, insofar as alien armed forces is concerned, the starting point is Raquiza v. Bradford , a 1945 decision. 14 Indismissing a habeas corpus petition for the release of petitioners confined by American army authorities, Justice Hilado, speaking forthe Court, cited from Coleman v. Tennessee , 15 where it was explicitly declared: "It is well settled that a foreign army, permitted to marchthrough a friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal

jurisdiction of the place." 16 Two years later, in Tubb and Tedrow v. Griess , 17 this Court relied on the ruling in Raquiza v. Bradford andcited in support thereof excerpts from the works of the following authoritative writers: Vattel, Wheaton, Hall, Lawrence, Oppenhein,Westlake, Hyde, and McNair and Lauterpacht. 18 Accuracy demands the clarification that after the conclusion of the Philippine-AmericanMilitary Bases Agreement, the treaty provisions should control on such matter, the assumption being that there was a manifestation ofthe submission to jurisdiction on the part of the foreign power whenever appropriate. 19 More to the point is Syquia v. AlmedaLopez , 20 where plaintiffs as lessors sued the Commanding General of the United States Army in the Philippines, seeking the restorationto them of the apartment buildings they owned leased to United States armed forces stationed in the Manila area. A motion to dismisson the ground of non-suability was filed and upheld by respondent Judge. The matter was taken to this Court in a mandamusproceeding. It failed. It was the ruling that respondent Judge acted correctly considering that the "action must be considered as oneagainst the U.S. Government." 21 The opinion of Justice Montemayor continued: "It is clear that the courts of the Philippines includingthe Municipal Court of Manila have no jurisdiction over the present case for unlawful detainer. The question of lack of jurisdiction wasraised and interposed at the very beginning of the action. The U.S. Government has not given its consent to the filing of this suit whichis essentially against her, though not in name. Moreover, this is not only a case of a citizen filing a suit against his own Governmentwithout the latter's consent but it is of a citizen filing an action against a foreign government without said government's consent, whichrenders more obvious the lack of jurisdiction of the courts of his country. The principles of law behind this rule are so elementary and ofsuch general acceptance that we deem it unnecessary to cite authorities in support thereof." 22 Then came Marvel Building Corporationv. Philippine War Damage Commission , 23 where respondent, a United States agency established to compensate damages suffered bythe Philippines during World War II was held as falling within the above doctrine as the suit against it "would eventually be a chargeagainst or financial liability of the United States Government because ..., the Commission has no funds of its own for the purpose ofpaying money judgments." 24 The Syquia ruling was again explicitly relied upon in Marquez Lim v. Nelson , 25 involving a complaint for therecovery of a motor launch, plus damages, the special defense interposed being "that the vessel belonged to the United StatesGovernment, that the defendants merely acted as agents of said Government, and that the United States Government is therefore thereal party in interest." 26 So it was in Philippine Alien Property Administration v. Castelo ,27 where it was held that a suit against the AlienProperty Custodian and the Attorney General of the United States involving vested property under the Trading with the Enemy Act is insubstance a suit against the United States. To the same effect is Parreno v. McGranery , 28 as the following excerpt from the opinion ofJustice Tuason clearly shows: "It is a widely accepted principle of international law, which is made a part of the law of the land (ArticleII, Section 3 of the Constitution), that a foreign state may not be brought to suit before the courts of another state or its own courtswithout its consent." 29 Finally, there is Johnson v. Turner , 30 an appeal by the defendant, then Commanding General, PhilippineCommand (Air Force, with office at Clark Field) from a decision ordering the return to plaintiff of the confiscated military payment

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certificates known as scrip money. In reversing the lower court decision, this Tribunal, through Justice Montemayor, relied on Syquia v. Almeda Lopez , 31 explaining why it could not be sustained.

The solidity of the stand of petitioner is therefore evident. What was sought by private respondent and what was grantedby respondent Judge amounted to an interference with the performance of the duties of petitioner in the base area inaccordance with the powers possessed by him under the Philippine-American Military Bases Agreement. This point wasmade clear in these words: "Assuming, for purposes of argument, that the Philippine Government, through the Bureau ofForestry, possesses the "authority to issue a Timber License to cut logs" inside a military base, the Bases Agreementsubjects the exercise of rights under a timber license issued by the Philippine Government to the exercise by the UnitedStates of its rights, power and authority of control within the bases; and the findings of the Mutual Defense Board, anagency of both the Philippine and United States Governments, that "continued logging operation by Mr. Gener within theboundaries of the U.S. Naval Base would not be consistent with the security and operation of the Base," is conclusiveupon the respondent Judge. .. The doctrine of state immunity is not limited to cases which would result in a pecuniarycharge against the sovereign or would require the doing of an affirmative act by it. Prevention of a sovereign from doingan affirmative act pertaining directly and immediately to the most important public function of any government - thedefense of the state — is equally as untenable as requiring it to do an affirmative act." 32 That such an appraisal is not opposedto the interpretation of the relevant treaty provision by our government is made clear in the aforesaid manifestation and memorandumas amicus curiae , wherein it joined petitioner for the grant of the remedy prayed for.

2. There should be no misinterpretation of the scope of the decision reached by this Court. Petitioner, as the Commanderof the United States Naval Base in Olongapo, does not possess diplomatic immunity. He may therefore be proceededagainst in his personal capacity, or when the action taken by him cannot be imputed to the government which herepresents. Thus, after the Military Bases Agreement, in Miquiabas v. Commanding General 33 and Dizon v. The CommandingGeneral of the Philippine-Ryukus Command , 34 both of them being habeas corpus petitions, there was no question as to the submissionto jurisdiction of the respondents. As a matter of fact, in Miquiabas v. Commanding General , 35 the immediate release of the petitionerwas ordered, it being apparent that the general court martial appointed by respondent Commanding General was without jurisdiction totry petitioner. Thereafter, in the cited cases of Syquia, Marquez Lim , and Johnson , the parties proceeded against were American armycommanding officers stationed in the Philippines. The insuperable obstacle to the jurisdiction of respondent Judge is that a foreignsovereign without its consent is haled into court in connection with acts performed by it pursuant to treaty provisions and thusimpressed with a governmental character.

3. The infirmity of the actuation of respondent Judge becomes even more glaring when it is considered that privaterespondent had ceased to have any right of entering within the base area. This is made clear in the petition in thesewords: "In 1962, respondent Gener was issued by the Bureau of Forestry an ordinary timber license to cut logs in BarrioMabayo, Morong, Bataan. The license was renewed on July 10, 1963. In 1963, he commenced logging operation insidethe United States Naval Base, Subic Bay, but in November 1963 he was apprehended and stopped by the Baseauthorities from logging inside the Base. The renewal of his license expired on July 30, 1964, and to date his license hasnot been renewed by the Bureau of Forestry. .. In July 1964, the Mutual Defense Board, a joint Philippines-United Statesagency established pursuant to an exchange of diplomatic notes between the Secretary of Foreign Affairs and the UnitedStates Ambassador to provide "direct liaison and consultation between appropriate Philippine and United Statesauthorities on military matters of mutual concern,' advised the Secretary of Foreign Affairs in writing that: "The enclosedmap shows that the area in which Mr. Gener was logging definitely falls within the boundaries of the base. This map alsodepicts certain contiguous and overlapping areas whose functional usage would be interfered with by the loggingoperations.'" 36 Nowhere in the answer of respondents, nor in their memorandum, was this point met. It remained unrefuted.

WHEREFORE, the writ of certiorari prayed for is granted, nullifying and setting aside the writ of preliminary injunctionissued by respondent Judge in Civil Case No. 2984 of the Court of First Instance of Bataan. The injunction issued by thisCourt on March 18, 1965 enjoining the enforcement of the aforesaid writ of preliminary injunction of respondent Judge ishereby made permanent. Costs against private respondent Edgardo Gener.

Zaldivar, Antonio, Fernandez and Aquino, JJ., concur.

Barredo, J., took no part.

G.R. No. L-35131 November 29, 1972

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THE WORLD HEALTH ORGANIZATION and DR. LEONCE VERSTUYFT, petitioners,vs.

HON. BENJAMIN H. AQUINO, as Presiding Judge of Branch VIII, Court of First Instance of Rizal, MAJORWILFREDO CRUZ, MAJOR ANTONIO G. RELLEVE, and CAPTAIN PEDRO S. NAVARRO of the Constabulary

Offshore Action Center (COSAC), respondents.

TEEHANKEE, J .: p

An original action for certiorari and prohibition to set aside respondent judge's refusal to quash a search warrant issued by

him at the instance of respondents COSAC (Constabulary Offshore Action Center) officers for the search and seizure ofthe personal effects of petitioner official of the WHO (World Health Organization) notwithstanding his being entitled todiplomatic immunity, as duly recognized by the executive branch of the Philippine Government and to prohibit respondent

judge from further proceedings in the matter.

Upon filing of the petition, the Court issued on June 6, 1972 a restraining order enjoining respondents from executing thesearch warrant in question.

Respondents COSAC officers filed their answer joining issue against petitioners and seeking to justify their act of applyingfor and securing from respondent judge the warrant for the search and seizure of ten crates consigned to petitionerVerstuyft and stored at the Eternit Corporation warehouse on the ground that they "contain large quantities of highlydutiable goods" beyond the official needs of said petitioner "and the only lawful way to reach these articles and effects forpurposes of taxation is through a search warrant." 1

The Court thereafter called for the parties' memoranda in lieu of oral argument, which were filed on August 3, 1972 byrespondents and on August 21, 1972 by petitioners, and the case was thereafter deemed submitted for decision.

It is undisputed in the record that petitioner Dr. Leonce Verstuyft, who was assigned on December 6, 1971 by the WHOfrom his last station in Taipei to the Regional Office in Manila as Acting Assistant Director of Health Services, is entitled todiplomatic immunity, pursuant to the Host Agreement executed on July 22, 1951 between the Philippine Government andthe World Health Organization.

Such diplomatic immunity carries with it, among other diplomatic privileges and immunities, personal inviolability,inviolability of the official's properties, exemption from local jurisdiction, and exemption from taxation and customs duties.

When petitioner Verstuyft's personal effects contained in twelve (12) crates entered the Philippines as unaccompaniedbaggage on January 10, 1972, they were accordingly allowed free entry from duties and taxes. The crates were directlystored at the Eternit Corporation's warehouse at Mandaluyong, Rizal, "pending his relocation into permanent quartersupon the offer of Mr. Berg, Vice President of Eternit who was once a patient of Dr. Verstuyft in the Congo." 2

Nevertheless, as above stated, respondent judge issued on March 3, 1972 upon application on the same date ofrespondents COSAC officers search warrant No. 72-138 for alleged violation of Republic Act 4712 amending section 3601of the Tariff and Customs Code 3 directing the search and seizure of the dutiable items in said crates.

Upon protest of March 6, 1972 of Dr. Francisco Dy, WHO Regional Director for the Western Pacific with station in Manila,Secretary of Foreign Affairs Carlos P. Romulo, personally wired on the same date respondent Judge advising that "Dr.Verstuyft is entitled to immunity from search in respect of his personal baggage as accorded to members of diplomaticmissions" pursuant to the Host Agreement and requesting suspension of the search warrant order "pending clarification of

the matter from the ASAC."

Respondent judge set the Foreign Secretary's request for hearing and heard the same on March 16, 1972, butnotwithstanding the official plea of diplomatic immunity interposed by a duly authorized representative of the Departmentof Foreign Affairs who furnished the respondent judge with a list of the articles brought in by petitioner Verstuyft,respondent judge issued his order of the same date maintaining the effectivity of the search warrant issued by him, unlessrestrained by a higher court. 4

Petitioner Verstuyft's special appearance on March 24, 1972 for the limited purpose of pleading his diplomatic immunityand motion to quash search warrant of April 12, 1972 failed to move respondent judge.

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At the hearing thereof held on May 8, 1972, the Office of the Solicitor General appeared and filed an extended commentstating the official position of the executive branch of the Philippine Government that petitioner Verstuyft is entitled todiplomatic immunity, he did not abuse his diplomatic immunity, 5 and that court proceedings in the receiving or host State are notthe proper remedy in the case of abuse of diplomatic immunity. 6

The Solicitor General accordingly joined petitioner Verstuyft's prayer for the quashal of the search warrant. Respondent judge nevertheless summarily denied quashal of the search warrant per his order of May 9, 1972 "for the same reasonsalready stated in (his) aforesaid order of March 16, 1972" disregarding Foreign Secretary Romulo's plea of diplomaticimmunity on behalf of Dr. Verstuyft.

Hence, the petition at bar. Petitioner Verstuyft has in this Court been joined by the World Health Organization (WHO) itselfin full assertion of petitioner Verstuyft's being entitled "to all privileges and immunities, exemptions and facilities accordedto diplomatic envoys in accordance with international law" under section 24 of the Host Agreement.

The writs of certiorari and prohibition should issue as prayed for.

1. The executive branch of the Philippine Government has expressly recognized that petitioner Verstuyft is entitled todiplomatic immunity, pursuant to the provisions of the Host Agreement. The Department of Foreign Affairs formallyadvised respondent judge of the Philippine Government's official position that accordingly "Dr. Verstuyft cannot be thesubject of a Philippine court summons without violating an obligation in international law of the Philippine Government"and asked for the quashal of the search warrant, since his personal effects and baggages after having been allowed freeentry from all customs duties and taxes, may not be baselessly claimed to have been "unlawfully imported" in violation of

the tariff and customs code as claimed by respondents COSAC officers. The Solicitor-General, as principal law officer ofthe Government, 7 likewise expressly affirmed said petitioner's right to diplomatic immunity and asked for the quashal of the searchwarrant.

It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity isessentially a political question and courts should refuse to look beyond a determination by the executive branch of thegovernment, 8 and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as inthe case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officerof the government, the Solicitor General in this case, or other officer acting under his direction. 9 Hence, in adherence to the settledprinciple that courts may not so exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of thegovernment in conducting foreign relations, it is accepted doctrine that "in such cases the judicial department of (this) governmentfollows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction." 10

2. The unfortunate fact that respondent judge chose to rely on the suspicion of respondents COSAC officers "that theother remaining crates unopened contain contraband items" 11 rather than on the categorical assurance of the Solicitor-Generalthat petitioner Verstuyft did not abuse his diplomatic immunity, 12 which was based in turn on the official positions taken by the highestexecutive officials with competence and authority to act on the matter, namely, the Secretaries of Foreign Affairs and of Fin ance, couldnot justify respondent judge's denial of the quashal of the search warrant.

As already stated above, and brought to r espondent court 's attention, 13 the Philippine Government is bound by the procedurelaid down in Article VII of the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations 14 foconsultations between the Host State and the United Nations agency concerned to determine, in the first instance the fact ofoccurrence of the abuse alleged, and if so, to ensure that no repetition occurs and for other recourses. This is a treaty commitmentvoluntarily assumed by the Philippine Government and as such, has the force and effect of law.

Hence, even assuming arguendo as against the categorical assurance of the executive branch of government thatrespondent judge had some ground to prefer respondents COSAC officers' suspicion that there had been an abuse of

diplomatic immunity, the continuation of the search warrant proceedings before him was not the proper remedy. Heshould, nevertheless, in deference to the exclusive competence and jurisdiction of the executive branch of government toact on the matter, have acceded to the quashal of the search warrant, and forwarded his findings or grounds to believethat there had been such abuse of diplomatic immunity to the Department of Foreign Affairs for it to deal with, inaccordance with the aforementioned Convention, if so warranted.

3. Finally, the Court has noted with concern the apparent lack of coordination between the various departments involvedin the subject-matter of the case at bar, which made it possible for a small unit, the COSAC, to which respondents officersbelong, seemingly to disregard and go against the authoritative determination and pronouncements of both theSecretaries of Foreign Affairs and of Finance that petitioner Verstuyft is entitled to diplomatic immunity, as confirmed by

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the Solicitor-General as the principal law officer of the Government. Such executive determination properly implementedshould have normally constrained respondents officers themselves to obtain the quashal of the search warrant secured bythem rather than oppose such quashal up to this Court, to the embarrassment of said department heads, if not of thePhilippine Government itself vis a vis the petitioners. 15

The seriousness of the matter is underscored when the provisions of Republic Act 75 enacted since October 21, 1946 tosafeguard the jurisdictional immunity of diplomatic officials in the Philippines are taken into account. Said Act declares asnull and void writs or processes sued out or prosecuted whereby inter alia the person of an ambassador or public ministeris arrested or imprisoned or his goods or chattels are seized or attached and makes it a penal offense for "every person

by whom the same is obtained or prosecuted, whether as party or as attorney, and every officer concerned in executing it"to obtain or enforce such writ or process. 16

The Court, therefore, holds that respondent judge acted without jurisdiction and with grave abuse of discretion in notordering the quashal of the search warrant issued by him in disregard of the diplomatic immunity of petitioner Verstuyft.

ACCORDINGLY, the writs of certiorari and prohibition prayed for are hereby granted, and the temporary restraining orderheretofore issued against execution or enforcement of the questioned search warrant, which is hereby declared null andvoid, is hereby made permanent. The respondent court is hereby commanded to desist from further proceedings in thematter. No costs, none having been prayed for.

The clerk of court is hereby directed to furnish a copy of this decision to the Secretary of Justice for such action as he mayfind appropriate with regard to the matters mentioned in paragraph 3 hereof. So ordered.

Concepcion, C.J., Makalintal, Zaldivar, Fernando, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

Castro, J., reserves his vote.

Footnotes

1 Respondents' Answer, Rollo , p. 138.

2 Citygram of March 6, 1972 of Secretary of Foreign Affairs Carlos P. Romulo to respondent judge,

Annex D, petition.

3 This penal provision of the tariff & customs code imposes a penalty of a fine of not less than P600.00nor more than P5000.00 and imprisonment for not less than 6 months nor more than two years forunlawful importation and illegal possession of goods imported contrary to law, upon "Any person whoshall fraudulently import or bring into the Philippines, or assist in so doing, any article, contrary to law, orshall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale ofsuch article after importation, knowing the same to have been imported contrary to law," and states that"(W)hen, upon trial for a violation of this section, the defendant is shown to have or to have hadpossession of the article in question, such possession shall be deemed sufficient evidence to authorizeconviction, unless the defendant shall explain the possession to the satisfaction of the court...."

4 Respondent judge's justification in his said order reads in part as follows:

"... From the reply submitted by Captains Pedro S. Navarro and Antonio G. Relleve of the COSAC, itappears that the articles contained in the two baggages allegedly belonging to Dr. Verstuyft so far openedby them, are 120 bottles of assorted foreign wine and 15 tins of PX goods which are said to be dutiableunder the Customs and Tariff Code of the Philippines. The two COSAC officers further manifested thatthey positively believe that there are more contraband items in the nine other huge crates which are stillunopened.... The articles so far found in the two crates opened by Capt. Navarro and Relleve are notmentioned in the list of articles brought in by Dr. Verstuyft and are highly dutiable under the Customs andTariff Code and according to said officers they have strong reasons to believe that the other remainingcrates unopened contain contraband items. The Court is certain that the World Health Organization would

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not tolerate violations of local laws by its officials and/or representatives under a claim of immunitygranted to them by the host agreement. Since the right of immunity invoked by the Department of Foreign

Affairs is admittedly relative and not absolute, and there are strong and positive indications of violation oflocal laws, the Court declines to suspend the effectivity of the search warrant issued in the case at bar...."

5 Aside from the Foreign Affairs Department's certification that the importation of 120 bottles of wine is"ordinary in diplomatic practice," the Solicitor General took pains to inform the lower court that the packingof Dr. Verstuyft's baggages and personal effects was done "by a packing company in Taipei ... (and) Dr.Verstuyft had no hand in the preparation of the packing list of his personal effects which has been

assailed by ASAC agents. Also implicit from the foregoing is the fact that Dr. Verstuyft had no intention toviolate Philippine laws by selling the 120 bottles of foreign wine and 15 tins of PX goods in thePhilippines. Otherwise, he need not have stored the same at the Eternit Corporation where they may besubject to the probing eyes of government agents."

6 The Solicitor General cites that the Convention on the Privileges and Immunities of the Specialized Agencies of the U.N. adopted on Nov. 21, 1947, and made applicable by ratification to the WHO contains Article VII on abuse of privilege, calling for consultations between the Host State and the U.S. agencyconcerned and in case no satisfactory result is reached for submittal to the International Court of Justicefor determination whether "such an abuse has occurred," and providing for the customary procedure ofrequiring the offending official's departure in certain instances.

7 Section 1661, Rev. Administrative Code.

8 See Trost vs. Tompkins, 44A, 2b 226.

9 See Ins. Co., 24 N.E. 2d 81, 281 N.Y. 362, reversing 5 N.Y.S. 2d 295, 254 App. Div. 511, reargumentdenied 26 N.E. 2d 808, 282 N.Y. 676, motion denied 29 N.E. 2d 939, 284 N.Y. 633 (27-5th D-1127).

10 See, United States v. Lee, 106 U. S. 196, 209, 1 S. Ct. 240, 27 L. Ed. 171; Ex parte Republic of Peru,318 U.S. 578, 63 S. CT. 793, 87 L. Ed. 1014; Republic of Mexico v. Hoffman, 324, U. S. 30, 35, 65 S. Ct.530, 89 L. Ed. 729; Welleman vs. Chase Manhattan Bank 192 N.Y.S. 2d 469.

11 Supra . fn. 4.

12 Supra , fn. 5.

13 Supra , fn. 6.

14 This Convention was adopted by the U. N. General Assembly on Nov. 21, 1947; it was concurred in bythe Philippine Senate under Sen. Resolution No. 21, May 17, 1949; and the Philippine Instrument ofRatification was signed by the President of the Republic on Feb. 21, 1959 applying the Convention to theWHO. See 45 0. G. 3187 (1949) and Vol. I, Phil. Treaty series, p. 621.

15 In their answer to petition, respondents COSAC officers insist on their "belief and contention" that the120 bottles of foreign wine found by them "are far in excess, considered by any reasonable standard oftaste and elegance in the diplomatic world of the official mission and needs of a diplomat, much more ofthe status of (petitioner), hence, they should be taxed" and on their "conviction that the articles and effects

... are not in fact and in truth personal effects so as to be comprehended within the privileges andimmunities accorded representatives of (WHO)." Rollo , pp. 138-139.

16 The pertinent section of Rep. Act 75, entitled "An act to penalize acts which would impair the properobservance by the Republic and inhabitants of the Philippines of the immunities, rights and privileges ofduly accredited foreign diplomatic and consular agents in the Philippines," reads: " Any writ or

process sued out or prosecuted by any person in any court of the Republic of the Philippines, or by any judge or justice , whereby the person of any ambassador or public minister of any foreign State,authorized and received as such by the President, or any domestic or domestic servant of any suchambassador or minister is arrested or imprisoned , or his goods or chattels are distrained, seized, or

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attacked , shall be deemed void, and every person by whom the same is obtained or prosecuted, whetheras party or as attorney, and every officer concerned in executing it, shall upon conviction, be punished byimprisonment for not more than three years and a fine of not exceeding two hundred pesos in thediscretion of the court." (Section 4, emphasis supplied) As to whether this Act may be invoked on behalfof petitioner (who does not pertain to the foreign diplomatic corps), quaere .

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