THE CONCEPT OF THE STATE

Bacani vs. NACOCO [G.R. No. L-9657, November 29, 1956]

FUNCTIONS OF THE GOVERNMENT; CONSTITUENT AND MINISTRANT. - To begin
with, we state that the term "Government" may be defined as "that institution or
aggregate of institutions by which an independent society makes and carries out those
rules of action which are necessary to enable men to live in a social state, or which are
imposed upon the people forming that society by those who possess the power or
authority of prescribing them" (U.S. vs. Dorr, 2 Phil., 332). This institution, when
referring to the national government, has reference to what our Constitution has
established composed of three great departments, the legislative, executive, and the
judicial, through which the powers and functions of government are exercised. These
functions are twofold: constituent and ministrant. The former are those which constitute
the very bonds of society and are compulsory in nature; the latter are those that are
undertaken only by way of advancing the general interests of society, and are merely
optional. President Wilson enumerates the constituent functions as follows:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)

The keeping of order and providing for the protection of persons and
property from violence and robbery.
The fixing of the legal relations between man and wife and between
parents and children.
The regulation of the holding, transmission, and interchange of property,
and the determination of its liabilities for debt or for crime.
The determination of contract rights between individuals.
The definition and punishment of crime.
The administration of justice in civil cases.
The determination of the political duties, privileges, and relations of
citizens.
Dealings of the state with foreign powers: the preservation of the state
from external danger or encroachment and the advancement of its
international interests.'" (Malcolm, The Government of the Philippine
Islands, p. 19.)

The most important of the ministrant functions are: public works, public education,
public charity, health and safety regulations, and regulations of trade and industry. The
principles determining whether or not a government shall exercise certain of these
optional functions are: (1) that a government should do for the public welfare those
things which private capital would not naturally undertake and (2) that a government
should do these things which by its very nature it is better equipped to administer for the
public welfare than is any private individual or group of individuals. (Malcolm, The
Government of the Philippine Islands, pp. 19-20.)
From the above we may infer that, strictly speaking, there are functions which our
government is required to exercise to promote its objectives as expressed in our
Constitution and which are exercised by it as an attribute of sovereignty, and those
which it may exercise to promote merely the welfare, progress and prosperity of the
people. To this latter class belongs the organization of those corporations owned or
controlled by the government to promote certain aspects of the economic life of our
people such as the National Coconut Corporation. These are what we call governmentowned or controlled corporations which may take on the form of a private enterprise or
one organized with powers and formal characteristics of a private corporations under
the Corporation Law.
GOVERNMENT-OWNED AND CONTROLLED CORPORATIONS ARE NOT
GOVERNMENT ENTITIES. - The question that now arises is: Does the fact that these

corporations perform certain functions of government make them a part of the

Government of the Philippines?
The answer is simple: they do not acquire that status for the simple reason that they do
not come under the classification of municipal or public corporation. Take for instance
the National Coconut Corporation. While it was organized with the purpose of "adjusting
the coconut industry to a position independent of trade preferences in the United States"
and of providing "Facilities for the better curing of copra products and the proper
utilization of coconut by-products", a function which our government has chosen to
exercise to promote the coconut industry, however, it was given a corporate power
separate and distinct from our government, for it was made subject to the provisions of
our Corporation Law in so far as its corporate existence and the powers that it may
exercise are concerned (sections 2 and 4, Commonwealth Act No. 518). It may sue and
be sued in the same manner as any other private corporations, and in this sense it is an
entity different from our government. As this Court has aptly said, "The mere fact that
the Government happens to be a majority stockholder does not make it a public
corporation" (National Coal Co. vs. Collector of Internal Revenue, 46 Phil., 586-587).
"By becoming a stockholder in the National Coal Company, the Government divested
itself of its sovereign character so far as respects the transactions of the
corporation. . . . Unlike the Government, the corporation may be sued without its
consent, and is subject to taxation. Yet the National Coal Company remains an agency
or instrumentality of government." (Government of the Philippine Islands vs. Springer,
50 Phil., 288.)
To recapitulate, we may mention that the term "Government of the Republic of the
Philippines" used in section 2 of the Revised Administrative Code refers only to that
government entity through which the functions of the government are exercised as an
attribute of sovereignty, and in this are included those arms through which political
authority is made effective whether they be provincial, municipal or other form of local
government. These are what we call municipal corporations. They do not include
government entities which are given a corporate personality separate and distinct from
the government and which are governed by the Corporation Law. Their powers, duties
and liabilities have to be determined in the light of that law and of their corporate
charters. They do not therefore come within the exemption clause prescribed in section
16, Rule 130 of our Rules of Court.
"Public corporations are those formed or organized for the government of
a portion of the State." (Section 3, Republic Act No. 1459, Corporation
Law).
"'The generally accepted definition of a municipal corporation would only
include organized cities and towns, and like organizations, with political
and legislative powers for the local, civil government and police
regulations of the inhabitants of the particular district included in the
boundaries of the corporation.' Heller vs. Stremmel, 52 Mo. 309, 312."
"In its more general sense the phrase 'municipal corporation' may include
both towns and counties, and other public corporations created by
government for political purposes. In its more common and limited
signification, it embraces only incorporated villages, towns and cities.
Dunn vs. Court of County Revenues, 85 Ala. 144, 146, 4 So. 661."
(McQuillin, Municipal Corporations, 2nd ed., Vol. 1, p. 385.)
"We may, therefore, define a municipal corporation in its historical and
strict sense to be the incorporation, by the authority of the government, of
the inhabitants of a particular place or district, and authorizing them in
their corporate capacity to exercise subordinate specified powers of

legislation and regulation with respect to their local and internal concerns.
This power of local government is the distinctive purpose and the
distinguishing feature of a municipal corporation proper." (Dillon, Municipal
Corporations, 5th ed., Vol. I, p. 59.)
Philippine Virginia Tobacco Adm. vs. CIR [G.R. No. L-32052, July 25, 1975]
THE PROMOTION OF GENERAL WELFARE IS A GOVERNMENT FUNCTION,
REPUDIATION OF THE CONCEPT OF LAISSEZ FAIRE. - The growing complexities of
modern society, however, have rendered this traditional classification of the functions of
government quite unrealistic, not to say obsolete. The areas which used to be left to
private enterprise and initiative and which the government was called upon to enter
optionally, and only 'because it was better equipped to administer for the public welfare
than is any private individual or group of individuals,' continue to lose their well-defined
boundaries and to be absorbed within activities that the government must undertake in
its sovereign capacity if it is to meet the increasing social challenges of the times. Here
as almost everywhere else the tendency is undoubtedly towards a greater socialization
of economic forces. Here of course this development was envisioned, indeed adopted
as a national policy, by the Constitution itself in its declaration of principle concerning
the promotion of social justice." Thus was laid to rest the doctrine in Bacani v. National
Coconut Corporation, based on the Wilsonian classification of the tasks incumbent on
government into constituent and ministrant in accordance with the laissez faire principle.
That concept, then dominant in economics, was carried into the governmental sphere,
as noted in a textbook on political science, the first edition of which was published in
1898, its author being the then Professor, later American President, Woodrow Wilson.
He took pains to emphasize that what was categorized by him as constituent functions
had its basis in a recognition of what was demanded by the "strictest [concept of]
laissez faire, [as they] are indeed the very bonds of society." The other functions he
would minimize as ministrant or optional.
It is a matter of law that in the Philippines, the laissez faire principle hardly commanded
the authoritative position which at one time it held in the United States. As early as
1919, Justice Malcolm in Rubi v. Provincial Board, could affirm: "The doctrines of
laissez faire and of unrestricted freedom of the individual, as axioms of economic and
political theory, are of the past. The modern period has shown a widespread belief in the
amplest possible demonstration of government activity." The 1935 Constitution, as was
indicated earlier, continued that approach. As noted in Edu v. Ericta: "What is more, to
erase any doubts, the Constitutional Convention saw to it that the concept of laissezfaire was rejected. It entrusted to our government the responsibility of coping with social
and economic problems with the commensurate power of control over economic affairs.
Thereby it could live up to its commitment to promote the general welfare through state
action." Nor did the opinion in Edu stop there: "To repeat, our Constitution which took
effect in 1935 erased whatever doubts there might be on that score. Its philosophy is a
repudiation of laissez-faire. One of the leading members of the Constitutional
Convention, Manuel A. Roxas, later the first President of the Republic, made it clear
when he disposed of the objection of Delegate Jose Reyes of Sorsogon, who noted the
'vast extensions in the sphere of governmental functions' and the 'almost unlimited
power to interfere in the affairs of industry and agriculture as well as to compete with
existing business' as 'reflections of the fascination exerted by [the then] current
tendencies' in other jurisdictions. He spoke thus: 'My answer is that this constitution has
a definite and well defined philosophy, not only political but social and economic. . . . If
in this Constitution the gentlemen will find declarations of economic policy they are there
because they are necessary to safeguard the interest and welfare of the Filipino people
because we believe that the days have come when in self-defense, a nation may
provide in its constitution those safeguards, the patrimony, the freedom to grow, the

freedom to develop national aspirations and national interests, not to be hampered by

the artificial boundaries which a constitutional provision automatically imposes."
It would be then to reject what was so emphatically stressed in the Agricultural Credit
Administration decision about which the observation was earlier made that it reflected
the philosophy of the 1935 Constitution and is even more in consonance with the
expanded role of government accorded recognition in the present Charter if the plea of
petitioner that it discharges governmental function were not heeded. That path this
Court is not prepared to take. That would be to go backward, to retreat rather than to
advance. Nothing can thus be clearer than that there is no constitutional obstacle to a
government pursuing lines of endeavor, formerly reserved for private enterprise. This is
one way, in the language of Laski, by which through such activities, "the harsh contract
which [does] obtain between the levels of the rich and the poor" may be minimized. It
is a response to a trend noted by Justice Laurel in Calalang v. Williams for the
humanization of laws and the promotion of the interest of all component elements of
society so that man's innate aspirations, in what was so felicitously termed by the First
Lady as "a compassionate society" be attained.
Gov. of the Philippine Islands vs. Monte de Piedad [G.R. No. 9959, December 13,
1916]
DOCTRINE OF PARENS PATRIAE - In Fontain vs. Ravenel (17 How., 369, 384), Mr.
Justice McLean, delivering the opinion of the court in a charity case, said:
"When this country achieved its independence, the prerogatives of the
crown devolved upon the people of the States. And this power still remains
with them except so far as they have delegated a portion of it to the
Federal Government. The sovereign will is made known to us by
legislative enactment. The State as a sovereign, is the parens partiae."
Chancelor Kent says:
"In this country, the legislature or government of the State, as parens
partiae, has the right to enforce all charities of a public nature, by virtue of
its general superintending authority over the public interests, where no
other person is entrusted with it." (4 Kent Com., 508, note.)
The Supreme Court of the United States in Mormon Church vs. United States, supra,
after approving also the last quotations, said:
"This prerogative of parens partiae is inherent in the supreme power of
every State, whether that power is lodged in a royal person or in the
legislature, and has no affinity to those arbitrary powers which are
sometimes exerted by irresponsible monarch to the great detriment of the
people and the destruction of their liberties. On the contrary, it is a most
beneficent function, and often necessary to be exercised in the interest of
humanity, and for the prevention of injury to those who cannot protect
themselves."
The court in the same case, after quoting from Sohier vs. Mass. General Hospital (3
Cush., 483, 497), wherein the latter court held that it is deemed indispensible that there
should be a power in the legislature to authorize the sale of the estates of infants, idiots,
insane persons, and persons not known, or not in being, who cannot act for themselves,
said:
"These remarks in reference to infants, insane persons and persons not
known, or not in being, apply to the beneficiaries of charities, who are

often incapable of vindicating their rights, and justly look for protection to
the sovereign authority, acting as parens partiae. They show that this
beneficent function has not ceased to exist under the change of
government from a monarchy to a republic; but that it now resides in the
legislative department, ready to be called into exercise whenever required
for the purposes of justice and right, and is as clearly capable of being
exercised in cases of charities as in any other cases whatever."
In People vs. Cogswell (113 Cal. 129, 130), it was urged that the plaintiff was not the
real party in interest; that the Attorney-General had no power to institute the action; and
that there must be an allegation and proof of a distinct right of the people as a whole, as
distinguished from the rights of individuals, before an action could be brought by the
Attorney-General in the name of the people. The court, in overruling these contentions,
held that it was not only the right but the duty of the Attorney-General to prosecute the
action, which related to charities, and approved the following quotation from AttorneyGeneral vs. Compton (1 Young & C. C., 417):
"Where property affected by a trust for public purposes is in the hands of those who
hold it devoted to that trust, it is the privilege of the public that the crown should be
entitled to intervene by its officers for the purpose of asserting, on behalf on the public
generally, the public interest and the public right, which, probably, no individual could be
found effectually to assert, even if the interest were such as to allow it." (2 Kent's
Commentaries, 10th ed., 359; Lewin on Trusts, sec. 665; 1 Daniell's Chancery Practice,
sec. 13; Perry on Trusts, sec. 732.)
It is further urged, as above indicated, that "the only persons who could claim to be
damages by this payment to the Monte, if it was unlawful, are the donor or the cestuis
que trustent, and this Government is neither. Consequently, the plaintiff is not the proper
party to bring the action." The earthquake fund was the result or the accumulation of a
great number of small contributions. The names of the contributors do not appear in the
record. Their whereabouts are unknown. They parted with the title to their respective
contributions. The beneficiaries, consisting of the original sufferers and their heirs, could
have been ascertained. They are quite numerous also. And no doubt a large number of
the original sufferers have died, leaving various heirs. It would be impracticable for them
to institute an action or actions either individually or collectively to recover the $80,000.
The only course that can be satisfactorily pursued is for the Government to against
assume control of the fund and devote it to the object for which it was originally
destined.
The impracticability of pursuing a different course, however, is not the true ground upon
which the right of the Government to maintain the action rests. The true ground is that
the money being given to a charity became, in a measure, public property, only
applicable, it is true, to the specific purposes to which it was intended to be devoted, but
within those limits consecrated to the public use, and became part of the public
resources for promoting the happiness and welfare of the Philippine Government.
(Mormon Church vs. U. S., supra.) To deny the Government's right to maintain this
action would be contrary to sound public policy, as tending to discourage the prompt
exercise of similar acts of humanity and Christian benevolences in like instances in the
future.
Co Kim Cham vs. Valdez Tan Keh [G.R. No. L-5a, November 16, 1945]
DURING BELLIGERENT OCCUPATION, JUDICIAL DECISIONS RENDERED BY THE
INVADER CONTINUE ITS FORCE AND EFFECT EVEN AFTER THE CESSATION OF
INVASION. Suffice it to say that the provisions of the Hague Conventions which
imposes upon a belligerent occupant the duty to continue the courts as well as the
municipal laws in force in the country unless absolutely prevented, in order to
reestablish and insure "I'ordre et la vie publice," that is, the public order and safety, and

the entire social and commercial life of the country, were inserted, not for the benefit of
the invader, but for the protection and benefit of the people or inhabitants of the
occupied territory and of those not in the military service, in order that the ordinary
pursuits and business of society may not be unnecessarily deranged.
This is the opinion of all writers on international law up to date, among them Wheaton
(Vol. II, p. 236) and Oppenheim (Vol. II, p. 338) in their recently revised Treatises on
International Law, edited in the year 1944, and the interpretation of the Supreme Court
of the United States in many cases, specially in the case of Dow vs. Johnson (106 U.
S., 158), in which that Court said: "As a necessary consequence of such occupation and
domination, the political relations of its people to their former government are, for the
time being, severed. But for their protection and benefit, and the protection and benefit
of others not in the ordinary pursuits and business of society may not be unnecessarily
deranged, the municipal laws, that is, such as affect private rights of persons and
property and provide for the punishment of crime, are generally allowed to continue in
force, and to be administered by the ordinary tribunals as they were administered before
the occupation. They are considered as continuing, unless suspended or superseded by
the occupying belligerent." (Dow vs. Johnson, 100 U. S., 158; 25 U. S. [Law, ed.], 632).
The fact that the belligerent occupant is a treacherous aggressor, as Japan was, does
not, therefore, exempt him from complying with said precepts of the Hague
Conventions, nor does it make null and void the judicial acts of the courts continued by
the occupant in the territory occupied. To deny validity to such judicial acts would benefit
the invader or aggressor, who is presumed to be intent upon causing as much harm as
possible to the inhabitants or nationals of the enemy's territory, and prejudice the latter;
it would cause more suffering to the conquered and assist the conqueror or invader in
realizing his nefarious design; in fine, it would result in penalizing the nationals of the
occupied territory, and rewarding the invader or occupant for his acts of treachery and
aggression.
We held in our decision that the word "processes," as used in the proclamation of
General Douglas MacArthur of October 23, 1944, cannot be interpreted to mean judicial
processes; and because of the cogent reasons therein set forth, we did not deem it
necessary to specify the processes to which said proclamation should be construed to
refer. As some doubt still lingers in the minds of person interested in sustaining a
contrary interpretation or construction, we are now constrained to say that the term as
used in the proclamation should be construed to mean legislative and constitutional
processes, by virtue of the maxim "noscitur a sociis." According to this maxim, where a
particular word or phrase is ambiguous in itself or is equally susceptible of various
meaning, its meaning may be made clear and specific by considering the company in
which it is found. (Black on Interpretation of Laws, 2d ed., pp. 194-196.) Since the
proclamation provides that "all laws, regulations and processes of any other government
in the Philippines than that of the said Commonwealth are null and void," the word
"processes" must be interpreted or construed to refer to the Executive Commission,
Ordinances promulgated by the President of the so-called Republic of the Philippines,
and the Constitution itself of said Republic, and others that are of the same class as the
laws and regulations with which the world "processes" is associated.
As the said judicial acts which apply the municipal laws, that is, such as affect private
rights or persons and property and provide for the punishment of crimes, are good and
valid even after occupation has ceased, although it is true that no crucial instances exist
to show that, were they reversed or invalidated by the restored or legitimate
government, international wrong would be committed, it is nonetheless true and evident
that by such abrogation national wrong would be caused to the inhabitants or citizens of
the legitimate government. According to the law of nations and Wheaton himself, said
judicial acts are legal and valid before and after the occupation has ceased and the
legitimate government has been restored. As there are vested rights which have been

acquired by the parties by virtue of such judgments, the restored government or its
representative cannot reverse or abrogate them without causing wrong or injury to the
interested parties, because such reversal would deprive them of their properties without
due process of law.

People vs. Gozo [G.R. No. L-36409, October 26, 1973]

SOVEREIGNTY IS COMPREHENSIVE, BUT ITS EXERCISE MAY BE RESTRICTED. Much less is a reversal indicated because of the alleged absence of the rather novel
concept of administrative jurisdiction on the part of Olongapo City. Nor is novelty the
only thing that may be said against it. Far worse is the assumption at war with
controlling and authoritative doctrines that the mere existence of military or naval bases
of a foreign country cuts deeply into the power to govern. Two leading cases may be
cited to show how offensive is such thinking to the juristic concept of sovereignty,
People v. Acierto,
and Reagan v. Commissioner of Internal Revenue.
As was so
emphatically set forth by Justice Tuason in Acierto: "By the Agree it should be noted, the
Philippine Government merely consents that the United States exercise jurisdiction in
certain cases. The consent was given purely as a matter of comity, courtesy, or
expediency. The Philippine Government has not abdicated its sovereignty over the
bases as part of the Philippine territory or divested itself completely of jurisdiction over
offenses committed therein. Under the terms of the treaty, the United States
Government has prior or preferential but not exclusive jurisdiction of such offenses. The
Philippine Government retains not only jurisdictional rights not granted, but also all such
ceded rights as the United States Military authorities for reasons of their own decline to
make use of. The first proposition is implied from the fact of Philippine sovereignty over
the bases; the second from the express provisions of the treaty."
There was a
reiteration of such a view in Reagan. Thus: "Nothing is better settled than that the
Philippines being independent and sovereign, its authority may be exercised over its
entire domain. There is no portion thereof that is beyond its power. Within its limits, its
decrees are supreme, its commands paramount. Its laws govern therein, and everyone
to whom it applies must submit to its terms. That is the extent of its jurisdiction, both
territorial and personal. Necessarily, likewise, it has to be exclusive. If it were not thus,
there is a diminution of its sovereignty."
Then came this paragraph dealing with the
principle of auto-limitation: "It is to be admitted that any state may, by its consent,
express or implied, submit to a restriction of its sovereign rights. There may thus be a
curtailment of what otherwise is a power plenary in character. That is the concept of
sovereignty as auto-limitation, which, in the succinct language of Jellinek, 'is the
property of a state-force due to which it has the exclusive capacity of legal selfdetermination and self-restriction.' A state then, if it chooses to, may refrain from the
exercise of what otherwise is illimitable competence."
The opinion was at pains to
point out though that even then, there is at the most diminution of jurisdictional rights,
not in appearance. The words employed follow: "Its laws may as to some persons found
within its territory no longer control. Nor does the matter end there. It is not precluded
from allowing another power to participate in the exercise of jurisdictional right over
certain portions of its territory. If it does so, it by no means follows that such areas
become impressed with an alien character. They retain their status as native soil. They
are still subject to its authority. Its jurisdiction may be diminished, but it does not
disappear. So it is with the bases under lease to the American armed forces by virtue of
the military bases agreement of 1947. They are not and cannot be foreign territory."
Laurel vs. Misa [G.R. No. L-409, January 30, 1947]

LAW ON TREASON, THOUGH POLITICAL IN NATURE, IS NOT SUSPENDED

DURING BELLIGERENT OCCUPATION. Considering that the absolute and permanent
allegiance of the inhabitants of a territory occupied by the enemy to their legitimate
government or sovereign is not abrogated or severed by the enemy occupation,
because the sovereignty of the government or sovereign de jure is not transferred
thereby to the occupier, as we have held in the cases of Co Kim Cham v~. Valdez Tan
Keh and Dizon (75 Phil., 113) and of Peralta vs. Director of Prisons (75 Phil., 285), and
if it is not transferred to the occupant it must necessarily remain vested in the legitimate
government; that the sovereignty vested in the titular government (which is the supreme
power which governs a body politic or society which constitute the state) must be
distinguished from the exercise of the rights inherent thereto, and may be destroyed, or
severed and transferred to another, but it cannot be suspended because the existence
of sovereignty cannot be suspended without putting it out of existence or divesting the
possessor thereof at least during the so-called period of suspension; that what may be
suspended is the exercise of the rights of sovereignty with the control and government
of the territory occupied by the enemy passes temporarily to the occupant; that the
subsistence of the sovereignty of the legitimate government in a territory occupied by
the military forces of the enemy during the war, 'although the former is in fact prevented
from exercising the supremacy over them' is one of the 'rules of international law of our
times'; (II Oppenheim, 6th Lauterpach ed., 1944, p. 482), recognized, by necessary
implication, in articles 23, 44, 45, and 52 of Hague Regulation; and that, as a corollary
of the conclusion that the sovereignty itself is not suspended and subsists during the
enemy occupation, the allegiance of the inhabitants to their legitimate government or
sovereign subsists, and therefore there is no such thing as suspended allegiance, the
basic theory on which the whole fabric of the petitioner's contention rests
Considering that even adopting the words 'temporary allegiance,' repudiated by
Oppenheim and other publicists, as descriptive of the relations borne by the inhabitants
of the territory occupied by the enemy toward the military government established over
them, such allegiance may, at most, be considered similar to the temporary allegiance
which a foreigner owes to the government or sovereign of the territory wherein he
resides in return for the protection he receives as above described, and does not do
away with the absolute and permanent allegiance which the citizen residing in a foreign
country owes to his own government or sovereign; that just as a citizen or subject of a
government or sovereign may be prosecuted for and convicted of treason committed in
a foreign country, in the same way an inhabitant of a territory occupied by the military
forces of the enemy may commit treason against his own legitimate government or
sovereign if he adheres to the enemies of the latter by giving them aid comfort; and that
if the allegiance of a citizen or subject to his government or sovereign is nothing more
than obedience to its laws in return for the protection he receives, it would necessarily
follow that a citizen who resides in a foreign country or state would, on one hand, ipso
facto acquire the citizenship thereof since he has to obey, with certain exceptions, the
laws of that country which enforce public order and regulate the social and commercial
life, in return for the protection he receives, and would, on the other hand, lose his
original citizenship, because he would not be bound to obey most of the laws of his own
government or sovereign, and would not receive, while in a foreign country, the
protection he is entitled to in his own;
Considering that, as a corollary of the suspension of the exercise of rights of
sovereignty by the legitimate government in the territory occupied by the enemy military
forces, because the authority of the legitimate power to govern has passed into the
hands of the occupant (Article 43, Hague Regulations), the political laws which
prescribe the reciprocal rights, duties and obligation of government and citizens, are
suspended or in abeyance during military occupation (Co Kim Cham vs. Valdez Tan Keh
and Dizon, supra), for the only reason that as they exclusively bear relation to the
ousted legitimate government, they are inoperative or not applicable to the government
established by the occupant; that the crimes against national security, such as treason

and espionage, inciting to war, correspondence with hostile country, flight to enemy's
country, as well as those against public order, such as rebellion, sedition, and disloyalty,
illegal possession of firearms, which are of political complexion because they bear
relation to, and are penalized by our Revised Penal Code as crimes against the
legitimate government, are also suspended or become inapplicable as against the
occupant, because they can not be committed against the latter (Peralta 1.S. Director of
Prisons, supra); and that, while the offenses against public order to be preserved by the
legitimate government were inapplicable as offenses against the invader for the reason
above stated, unless adopted by him, were also ill operative as against the ousted
government for the latter was not responsible for the preservation of the public order in
the occupied territory, yet article 114 of the said Revised Penal Code, was applicable to
treason committed against the national security of the legitimate government, because
the inhabitants of the occupied territory were still bound by their allegiance to the latter
during the enemy occupation;
Considering that, although the military occupant is enjoined to respect or continue in
force, unless absolutely prevented by the circumstances, those laws that enforce public
order and regulate the social and commercial life of the country, he has, nevertheless,
all the powers of a de facto government and may, at his pleasure, either change the
existing laws or make new ones when the exigencies of the military service demand
such action, that is, when it is necessary for the occupier to do so for the control of the
country and the protection of his army, subject to the restrictions or limitations imposed
by the Hague Regulations, the usages established by civilized nations, the laws of
humanity and the requirements of public conscience ( Peralta vs. Director of Prisons,
supra; 1940 United States Rules of Land Warfare 76, 77); and that, consequently, all
acts of the military occupant dictated within these limitations are obligatory upon the
inhabitants of the territory, who are bound to obey them, and the laws of the legitimate
government which have not been adopted, as well and those which, though continued
in force, are in conflict with such laws and orders of the occupier, shall be considered as
suspended or not in force and binding upon said inhabitants;
Considering that, since the preservation of the allegiance or the obligation of fidelity and
obedience of a citizen or subject to his government or sovereign does not demand from
him a positive action, but only passive attitude or forbearance from adhering to the
enemy by giving the latter aid and comfort, the occupant has no power, as a corollary of
the preceding consideration, to repeal or suspend the operation of the law of treason,
essential for the preservation of the allegiance owed by the inhabitants to their
legitimate government, or compel them to adhere and give aid and comfort to him;
because it is evident that such action is not demanded by the exigencies of the military
service or not necessary for the control of the inhabitants and the safety and protection
of his army, and because it is tantamount to practically transfer temporarily to the
occupant their allegiance to the titular government or sovereign; and that, therefore, if
an inhabitant of the occupied territory were compelled illegally by the military occupant,
through force, threat or intimidation, to give him aid and comfort, the former may lawfully
resist and die if necessary as a hero, or submit thereto without becoming a traitor;
Considering that adoption of the petitioner's theory of suspended allegiance would lead
to disastrous consequences for small and weak nations or states, and would be
repugnant to the laws of humanity and requirements of public conscience, for it would
allow invaders to legally recruit or enlist the Quisling inhabitants of the occupied territory
to fight against their own government without the latter incurring the risk of being
prosecuted for treason, and even compel those who are not to aid them in their military
operation against the resisting enemy forces in order to completely subdue and conquer
the whole nation, and thus deprive them all of their own independence or sovereignty
such theory would sanction the action of invaders in forcing the people of a free and
sovereign country to be a party i n the nefarious task of depriving themselves of their

own freedom and independence and repressing the exercise by them of their own
sovereignty; in other words, to commit a political suicide.
Ruffy vs. Chief of Staff [G.R. No. L-533, August 20, 1946]
THE SUSPENSION OF POLITICAL LAWS DURING BELLIGERENT OCCUPATION
DOES NOT APPLY TO THE ENEMIES IN ARMS. The rule invoked by counsel, namely,
that laws of political nature or affecting political relations are considered superseded or
in abeyance during the military occupation, is intended for the governing of the civil
inhabitants of the occupied territory. It is not intended for and does not bind the enemies
in arms. This is self-evident from the very nature of things. The paradox of a contrary
ruling should readily manifest itself. Under the petitioners' theory the forces of resistance
operating in an occupied territory would have to abide by the outlawing of their own
existence. They would be stripped of the very lifeblood of an army, the right and the
ability to maintain order and discipline within the organization and to try the men guilty of
breach thereof.
THE DOCTRINE OF STATE IMMUNITY
The Holy See vs. Rosario [G.R. No. 101949, December 1, 1994]
PROCEDURE IN INVOKING STATE IMMUNITY BY FOREIGN STATES. - In Public
International Law, when a state or international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it
is sued to convey to the court that said defendant is entitled to immunity.
In the United States, the procedure followed is the process of "suggestion," where the
foreign state or the international organization sued in an American court requests the
Secretary of State to make a determination as to whether it is entitled to immunity. If the
Secretary of State finds that the defendant is immune from suit, he, in turn, asks the
Attorney General to submit to the court a "suggestion" that the defendant is entitled to
immunity. In England, a similar procedure is followed, only the Foreign Office issues a
certification to that effect instead of submitting a "suggestion" (O'Connell, I International
Law 130 [1965]; Note: Immunity from Suit of Foreign Sovereign Instrumentalities and
Obligations, 50 Yale Law Journal 1088 [1941]).
In the Philippines, the practice is for the foreign government or the international
organization to first secure an executive endorsement of its claim of sovereign or
diplomatic immunity. But how the Philippine Foreign Office conveys its endorsement to
the courts varies. In International Catholic Migration Commission v. Calleja, 190 SCRA
130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of
Labor and Employment, informing the latter that the respondent-employer could not be
sued because it enjoyed diplomatic immunity. In World Health Organization v. Aquino,
48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to
that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary
of Foreign Affairs to request the Solicitor General to make, in behalf of the Commander
of the United States Naval Base at Olongapo City, Zambales, a "suggestion" to
respondent Judge. The Solicitor General embodied the "suggestion" in a Manifestation
and Memorandum as amicus curiae.
TWO CONFLICTING CONCEPTS OF SOVEREIGN IMMUNITY. - There are two
conflicting concepts of sovereign immunity, each widely held and firmly established.
According to the classical or absolute theory, a sovereign cannot, without its consent, be
made a respondent in the courts of another sovereign. According to the newer or
restrictive theory, the immunity of the sovereign is recognized only with regard to public
acts or acts jure imperii of a state, but not with regard to private acts or acts jure

gestionis (United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and
Defensor-Santiago, Public International Law 194 [1984]).
In the absence of legislation defining what activities and transactions shall be
considered "commercial" and as constituting acts jure gestionis, we have to come out
with our own guidelines, tentative they may be.
Certainly, the mere entering into a contract by a foreign state with a private party cannot
be the ultimate test. Such an act can only be the start of the inquiry. The logical question
is whether the foreign state is engaged in the activity in the regular course of business.
If the foreign state is not engaged regularly in a business or trade, the particular act or
transaction must then be tested by its nature. If the act is in pursuit of a sovereign
activity, or an incident thereof, then it is an act jure imperii, especially when it is not
undertaken for gain or profit.
REMEDY OF THE COMPLAINANTS WHEN THE STATE IMMUNITY IS INVOKED. Private respondent is not left without any legal remedy for the redress of its grievances.
Under both Public International Law and Transnational Law, a person who feels
aggrieved by the acts of a foreign sovereign can ask his own government to espouse
his cause through diplomatic channels.
Private respondent can ask the Philippine government, through the Foreign Office, to
espouse its claims against the Holy See. Its first task is to persuade the Philippine
government to take up with the Holy See the validity of its claims. Of course, the
Foreign Office shall first make a determination of the impact of its espousal on the
relations between the Philippine government and the Holy See (Young, Remedies of
Private Claimants Against Foreign States, Selected Readings on Protection by Law of
Private Foreign Investments 905, 919 [1964]). Once the Philippine government decides
to espouse the claim, the latter ceases to be a private cause.
According to the Permanent Court of International Justice, the forerunner of the
International Court of Justice:
"By taking up the case of one of its subjects and by reporting to diplomatic
action or international judicial proceedings on his behalf, a State is in
reality asserting its own rights its right to ensure, in the person of its
subjects, respect for the rules of international law (The Mavrommatis
Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).
Sanders vs. Veridiano [G.R. No. L-46930, June 10, 1988]
ACTS COMMITTED BY THE OFFICERS IN THEIR OFFICIAL CAPACITY ARE
COVERED BY STATE IMMUNITY. - It is stressed at the outset that the mere allegation
that a government functionary is being sued in his personal capacity will not
automatically remove him from the protection of the law of public officers and, if
appropriate, the doctrine of state immunity. By the same token, the mere invocation of
official character will not suffice to insulate him from suability and liability for an act
imputed to him as a personal tort committed without or in excess of his authority. These
well-settled principles are applicable not only to the officers of the local state but also
where the person sued in its courts pertains to the government of a foreign state, as in
the present case.
It is abundantly clear in the present case that the acts for which the petitioners are being
called to account were performed by them in the discharge of their official duties.
Sanders, as director of the special services department of NAVSTA, undoubtedly had
supervision over its personnel, including the private respondents, and had a hand in
their employment, work assignments, discipline, dismissal and other related matters. It

is not disputed that the letter written was in fact a reply to a request from his superior,
the other petitioner, for more information regarding the case of the private respondents.
Moreover, even in the absence of such request, he still was within his rights in reacting
to the hearing officer's criticism in effect a direct attack against him that Special
Services was practicing "an autocratic form of supervision."
As for Moreau, what he is claimed to have done was write the Chief of Naval Personnel
for concurrence with the conversion of the private respondents' type of employment
even before the grievance proceedings had even commenced. Disregarding for the
nonce the question of its timeliness, this act is clearly official in nature, performed by
Moreau as the immediate superior of Sanders and directly answerable to Naval
Personnel in matters involving the special services department of NAVSTA. In fact, the
letter dealt with the financial and budgetary problems of the department and contained
recommendations for their solution, including the re-designation of the private
respondents. There was nothing personal or private about it.
Given the official character of the above-described letters, we have to conclude that the
petitioners were, legally speaking, being sued as officers of the United States
government. As they have acted on behalf of that government, and within the scope of
their authority, it is that government, and not the petitioners personally, that is
responsible for their acts. Assuming that the trial can proceed and it is proved that the
claimants have a right to the payment of damages, such award will have to be satisfied
not by the petitioners in their personal capacities but by the United States government
as their principal. This will require that government to perform an affirmative act to
satisfy the judgment, viz., the appropriation of the necessary amount to cover the
damages awarded, thus making the action a suit against that government without its
consent.
THE DOCTRINE OF STATE IMMUNITY APPLIES TO FOREIGN STATES SUED IN
THIS JURISDICTION. - There should be no question by now that such complaint
cannot prosper unless the government sought to be held ultimately liable has given its
consent to be sued. So we have ruled not only in Baer but in many other decisions
where we upheld the doctrine of state immunity as applicable not only to our own
government but also to foreign states sought to be subjected to the jurisdiction of our
courts.
The practical justification for the doctrine, as Holmes put it, is that "there can be no legal
right against the authority which makes the law on which the right depends."
In the
case of foreign states, the rule is derived from the principle of the sovereign equality of
states which wisely admonishes that par in parem non habet imperium and that a
contrary attitude would "unduly vex the peace of nations."
Our adherence to this
precept is formally expressed in Article II, Section 2, of our Constitution, where we
reiterate from our previous charters that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land.
par in parem non habet imperium (meaning, an equal has no authority over an equal)
Republic vs. Sandoval [G.R. No. 84607, March 19, 1993]/Caylao vs Republic G.R.
84645, March 19, 1993
CONCEPT OF STATE IMMUNITY. - Under our Constitution the principle of immunity of
the government from suit is expressly provided in Article XVI, Section 3. The principle is
based on the very essence of sovereignty, and on the practical ground that there can be
no legal right as against the authority that makes the law on which the right depends. It
also rests on reasons of public policy that public service would be hindered, and the
public endangered, if the sovereign authority could be subjected to law suits at the

instance of every citizen and consequently controlled in the uses and dispositions of the
means required for the proper administration of the government.
INSTANCES OF SUITS AGAINST THE STATE. - Some instances when a suit against
the State is proper are:
(1)
(2)
(3)

When the Republic is sued by name;

When the suit is against an unincorporated government agency;
When the suit is on its face against a government officer but the case is
such that ultimate liability will belong not to the officer but to the
government.

While the Republic in this case is sued by name, the ultimate liability does not pertain to
the government. Although the military officers and personnel, then party defendants,
were discharging their official functions when the incident occurred, their functions
ceased to be official the moment they exceeded their authority. Based on the
Commission findings, there was lack of justification by the government forces in the use
of firearms. Moreover, the members of the police and military crowd dispersal units
committed a prohibited act under B.P. Blg. 880 as there was unnecessary firing by them
in dispersing the marchers.
While it is true that nothing is better settled than the general rule that a sovereign state
and its political subdivisions cannot be sued in the courts except when it has given its
consent, it cannot be invoked by both the military officers to release them from any
liability, and by the heirs and victims to demand indemnification from the government.
The principle of state immunity from suit does not apply, as in this case, when the relief
demanded by the suit requires no affirmative official action on the part of the State nor
the affirmative discharge of any obligation which belongs to the State in its political
capacity, even though the officers or agents who are made defendants claim to hold or
act only by virtue of a title of the state and as its agents and servants. This Court has
made it quite clear that even a "high position in the government does not confer a
license to persecute or recklessly injure another."
THE STATE IMMUNITY IS NOT WAIVED ONLY FOR THE REASON THAT THE
PRESIDENT CREATED A COMMISSION TO INVESTIGATE THE INCIDENT, OR BY
THE PRESIDENTS ACT OF JOINING A RALLY OF THE COMPLAINANTS. In effect,
whatever may be the findings of the Commission, the same shall only serve as the
cause of action in the event that any party decides to litigate his/her claim. Therefore,
the Commission is merely a preliminary venue. The Commission is not the end in itself.
Whatever recommendation it makes cannot in any way bind the State immediately, such
recommendation not having become final and executory. This is precisely the essence
of it being a fact-finding body.
Secondly, whatever acts or utterances that then President Aquino may have done or
said, the same are not tantamount to the State having waived its immunity from suit.
The President's act of joining the marchers, days after the incident, does not mean that
there was an admission by the State of any liability. In fact to borrow the words of
petitioners (Caylao group), "it was an act of solidarity by the government with the
people". Moreover, petitioners rely on President Aquino's speech promising that the
government would address the grievances of the rallyists. By this alone, it cannot be
inferred that the State has admitted any liability, much less can it be inferred that it has
consented to the suit.
Although consent to be sued may be given impliedly, still it cannot be maintained that
such consent was given considering the circumstances obtaining in the instant case.
Festejo vs. Fernando [G.R. No. L-5156, March 11, 1954]

ACTS COMMITTED BY OFFICIALS OUTSIDE THEIR AUTHORITY WILL NOT GIVE

RISE TO THE CONCEPT OF STATE IMMUNITY. Ordinarily the officer or employee
committing the tort is personally liable therefor, and may be sued as any other citizen
and held answerable for whatever injury or damage results from his tortious act." 49
Am. Jur. 289. . . If an officer, even while acting under color of his office, exceeds the
power conferred on him by law, he cannot shelter himself under the plea that he is a
public agent." 43 Am. Jur. 86.
It is a general rule that an officer-executive, administrative quasi-judicial, ministerial, or
otherwise who acts outside the scope of his jurisdiction and without authorization of law
may thereby render himself amenable to personal liability in a civil suit. If he exceeds
the power conferred on him by law, he cannot shelter himself by the plea that he is a
public agent acting under color of his office, and not personally. In the eye of the law, his
acts then are wholly without authority." 43 Am. Jur. 89-90.

United States vs. Guinto [G.R. No. 76607, February 26, 1990]
CONCEPT OF STATE IMMUNITY. - The rule that a state may not be sued without its
consent, now expressed in Article XVI, Section 3, of the 1987 Constitution, is one of the
generally accepted principles of international law that we have adopted as part of the
law of our land under Article II, Section 2. This latter provision merely reiterates a policy
earlier embodied in the 1935 and 1973 Constitutions and also intended to manifest our
resolve to abide by the rules of the international community.
Even without such affirmation, we would still be bound by the generally accepted
principles of international law under the doctrine of incorporation. Under this doctrine, as
accepted by the majority of states, such principles are deemed incorporated in the law
of every civilized state as a condition and consequence of its membership in the society
of nations. Upon its admission to such society, the state is automatically obligated to
comply with these principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the justification
given by Justice Holmes that "there can be no legal right against the authority which
makes the law on which the right depends." There are other practical reasons for the
enforcement of the doctrine. In the case of the foreign state sought to be impleaded in
the local jurisdiction, the added inhibition is expressed in the maxim par in parem, non
habet imperium. All states are sovereign equals and cannot assert jurisdiction over one
another. A contrary disposition would, in the language of a celebrated case, "unduly vex
the peace of nations."
While the doctrine appears to prohibit only suits against the state without its consent, it
is also applicable to complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties. The rule is that if the judgment
against such officials will require the state itself to perform an affirmative act to satisfy
the same, such as the appropriation of the amount needed to pay the damages
awarded against them, the suit must be regarded as against the state itself although it
has not been formally impleaded. In such a situation, the state may move to dismiss
the complaint on the ground that it has been filed without its consent.
The doctrine is sometimes derisively called "the royal prerogative of dishonesty"
because of the privilege it grants the state to defeat any legitimate claim against it by
simply invoking its non-suability. That is hardly fair, at least in democratic societies, for
the state is not an unfeeling tyrant unmoved by the valid claims of its citizens. In fact,
the doctrine is not absolute and does not say the state may not be sued under any

circumstance. On the contrary, the rule says that the state may not be sued without its
consent, which clearly imports that it may be sued if it consents.
WAIVER OF STATE IMMUNITY. The consent of the state to be sued may be
manifested expressly or impliedly. Express consent may be embodied in a general law
or a special law. Consent is implied when the state enters into a contract or it itself
commences litigation.
The general law waiving the immunity of the state from suit is found in Act No. 3083,
under which the Philippine government "consents and submits to be sued upon any
moneyed claim involving liability arising from contract, express or implied, which could
serve as a basis of civil action between private parties." In Merritt v. Government of the
Philippine Islands,
a special law was passed to enable a person to sue the
government for an alleged tort. When the government enters into a contract, it is
deemed to have descended to the level of the other contracting party and divested of its
sovereign immunity from suit with its implied consent. Waiver is also implied when the
government files a complaint, thus opening itself to a counterclaim.
The above rules are subject to qualification. Express consent is effected only by the will
of the legislature through the medium of a duly enacted statute. We have held that not
all contracts entered into by the government will operate as a waiver of its non-suability;
distinction must be made between its sovereign and proprietary acts. As for the filing
of a complaint by the government, suability will result only where the government is
claiming affirmative relief from the defendant.
RESTRICTIVE THEORY OF STATE IMMUNITY. - There is no question that the United
States of America, like any other state, will be deemed to have impliedly waived its nonsuability if it has entered into a contract in its proprietary or private capacity. It is only
when the contract involves its sovereign or governmental capacity that no such waiver
may be implied. This was our ruling in United States of America v. Ruiz,
where the
transaction in question dealt with the improvement of the wharves in the naval
installation at Subic Bay. As this was a clearly governmental function, we held that the
contract did not operate to divest the United States of its sovereign immunity from suit.
In the words of Justice Vicente Abad Santos:
The traditional rule of immunity exempts a State from being sued in the
courts of another State without its consent or waiver. This rule is a
necessary consequence of the principles of independence and equality of
States. However, the rules of International Law are not petrified; they are
constantly developing and evolving. And because the activities of states
have multiplied, it has been necessary to distinguish them between
sovereign and governmental acts (jure imperii) and private, commercial
and proprietary acts (jure gestionis). The result is that State immunity now
extends only to acts jure imperii. The restrictive application of State
immunity is now the rule in the United States, the United Kingdom and
other states in Western Europe.
xxx

xxx

xxx

The restrictive application of State immunity is proper only when the

proceedings arise out of commercial transactions of the foreign sovereign,
its commercial activities or economic affairs. Stated differently, a State
may be said to have descended to the level of an individual and can thus
be deemed to have tacitly given its consent to be sued only when it enters
into business contracts. It does not apply where the contract relates to the
exercise of its sovereign functions. In this case the projects are an integral
part of the naval base which is devoted to the defense of both the United

States and the Philippines, indisputably a function of the government of

the highest order; they are not utilized for nor dedicated to commercial or
business purposes.
SUABILITY IS NOT SYNONYMOUS WITH LIABILITY. - The private respondent invokes
Article 2180 of the Civil Code which holds the government liable if it acts through a
special agent. The argument, it would seem, is premised on the ground that since the
officers are designated "special agents," the United States government should be liable
for their torts.
There seems to be a failure to distinguish between suability and liability and a
misconception that the two terms are synonymous. Suability depends on the consent of
the state to be sued, liability on the applicable law and the established facts. The
circumstance that a state is suable does not necessarily mean that it is liable; on the
other hand, it can never be held liable if it does not first consent to be sued. Liability is
not conceded by the mere fact that the state has allowed itself to be sued. When the
state does waive its sovereign immunity, it is only giving the plaintiff the chance to
prove, if it can, that the defendant is liable.
The said article establishes a rule of liability, not suability. The government may be held
liable under this rule only if it first allows itself to be sued through any of the accepted
forms of consent.
Moreover, the agent performing his regular functions is not a special agent even if he is
so denominated, as in the case at bar. No less important, the said provision appears to
regulate only the relations of the local state with its inhabitants and, hence, applies only
to the Philippine government and not to foreign governments impleaded in our courts.
Veterans Manpower & Protective Services, Inc. vs. CA [G.R. No. 91359, September
25, 1992]
WAIVER OF STATE IS CONSTRUED STRICTISSIMI JURIS. - Waiver of the State's
immunity from suit, being a derogation of sovereignty, will not be lightly inferred, but
must be construed strictissimi juris (Republic vs. Feliciano, 148 SCRA 424). The
consent of the State to be sued must emanate from statutory authority, hence, from a
legislative act, not from a mere memorandum. Without such consent, the trial court did
not acquire jurisdiction over the public respondents.
We agree with the observation of the Court of Appeals that the Memorandum of
Agreement dated May 12, 1986 does not constitute an implied consent by the State to
be sued:
"The Memorandum of Agreement dated May 12, 1986 was entered into by
the PC Chief in relation to the exercise of a function sovereign in nature.
The correct test for the application of state immunity is not the conclusion
of a contract by the State but the legal nature of the act. This was clearly
enunciated in the case of United States of America vs. Ruiz where the
Hon. Supreme Court held:
"'The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign sovereign,
its commercial activities or economic affairs. Stated differently, a State
may be said to have descended to the level of an individual and can thus
be deemed to have tacitly given its consent to be sued only when it enters
into a business contract. It does not apply where the contract relates to the
exercise of its functions.' (136 SCRA 487, 492.)

"In the instant case, the Memorandum of Agreement entered into by the
PC Chief and PADPAO was intended to professionalize the industry and to
standardize the salaries of security guards as well as the current rates of
security services, clearly, a governmental function. The execution of the
said agreement is incidental to the purpose of R.A. 5487, as amended,
which is to regulate the organization and operation of private detective,
watchmen or security guard agencies. (Emphasis Ours.)" (pp. 258-259,
Rollo.)
The state immunity doctrine rests upon reasons of public policy and the inconvenience
and danger which would flow from a different rule. "It is obvious that public service
would be hindered, and public safety endangered, if the supreme authority could be
subjected to suits at the instance of every citizen, and, consequently, controlled in the
use and disposition of the means required for the proper administration of the
government" (Siren vs. U.S. Wall, 152, 19 L. ed. 129, as cited in 78 SCRA 477). In the
same vein, this Court in Republic vs. Purisima (78 SCRA 470, 473) rationalized:
"Nonetheless, a continued adherence to the doctrine of nonsuability is not
to be deplored for as against the inconvenience that may be cause [by]
private parties, the loss of governmental efficiency and the obstacle to the
performance of its multifarious functions are far greater if such a
fundamental principle were abandoned and the availability of judicial
remedy were not thus restricted. With the well known propensity on the
part of our people to go to court, at the least provocation, the loss of time
and energy required to defend against law suits, in the absence of such a
basic principle that constitutes such an effective obstacles, could very well
be imagined." (citing Providence Washington Insurance Co. vs. Republic,
29 SCRA 598.)
Merritt vs. Government of Philippine Islands [G.R. No. 11154, March 21, 1916]
SPECIAL LAW WAIVING STATE IMMUNITY. - Act No. 2457, effective February 3, 1915,
reads:
"An act authorizing E. Merritt to bring suit against the Government of the
Philippine Islands and authorizing the Attorney-General of said Islands to
appear in said suit.
"Whereas a claim has been filed against the Government of the Philippine
Islands by Mr. E. Merritt, of Manila, for damages resulting from a collision
between his motorcycle and the ambulance of the General Hospital on
March twenty-fifth, nineteen hundred and thirteen;
"Whereas it is not known who is responsible for the accident nor is it
possible to determine the amount of damages, if any, to which the
claimant is entitled; and
"Whereas the Director of Public Works and the Attorney-General
recommend that an act be passed by the Legislature authorizing Mr. E.
Merritt to bring suit in the courts against the Government, in order that said
questions may be decided: Now, therefore,
"By authority of the United States, be it enacted by the Philippine
Legislature, that:

"SECTION 1. E.
Merritt is hereby authorized to bring suit in the Court
of First Instance of the city of Manila against the Government of the
Philippine Islands in order to fix the responsibility for the collision between
his motorcycle and the ambulance of the General Hospital, and to
determine the amount of the damages, if any, to which Mr. E. Merritt is
entitled on account of said collision, and the attorney-General of the
Philippine Islands is hereby authorized and directed to appear at the trial
on the behalf of the Government of said Islands, to defend said
Government at the same.
"SEC. 2.

This Act shall take effect on its passage.

"Enacted, February 3, 1915."

Did the defendant, in enacting the above quoted act, simply waive its immunity from suit
or did it also concede its liability to the plaintiff? If only the former, then it cannot be held
that the Act created any new cause of action in favor of the plaintiff or extended the
defendant's liability to any case not previously recognized.
All admit that the Insular Government (the defendant) cannot be sued by an individual
without its consent. It is also admitted that the instant case is one against the
Government. As the consent of the Government to be sued by the plaintiff was entirely
voluntary on its part, it is our duty to look carefully into the terms of the consent, and
render judgment accordingly.
The plaintiff was authorized to bring this action against the Government "in order to fix
the responsibility for the collision between his motorcycle and the ambulance of the
General Hospital and to determine the amount of the damages, if any, to which Mr. E.
Merritt is entitled on account of said collision, . . . ." These were the two questions
submitted to the court for determination. The Act was passed "in order that said
questions may be decided." We have "decided" that the accident was due solely to the
negligence of the chauffeur, who was at the time an employee of the defendant, and we
have also fixed the amount of damages sustained by the plaintiff as a result of the
collision. Does the Act authorize us to hold that the Government is legally liable for that
amount? If not, we must look elsewhere for such authority, if it exists.
SUABILITY VS. LIABILITY. - As to the scope of legislative enactments permitting
individuals to sue the state where the cause of action arises out of either tort or contract,
the rule is stated in 36 Cyc., 915, thus:
"By consenting to be sued a state simply waives its immunity from suit. It
does not thereby concede its liability to plaintiff, or create any cause of
action in his favor, or extend its liability to any cause not previously
recognized. It merely gives a remedy to enforce a preexisting liability and
submits itself to the jurisdiction of the court, subject to its right to interpose
any lawful defense."
In Apfelbacher vs. State (152 N. W., 144, advanced sheets), decided April 16, 1915, the
Act of 1913, which authorized the bringing of this suit, read:
"SECTION 1.Authority is hereby given to George Apfelbacher, of the town
of Summit, Waukesha County, Wisconsin, to bring suit in such court or
courts and in such form or forms as he may be advised for the purpose of
settling and determining all controversies which he may now have with the
State of Wisconsin, or its duly authorized officers and agents, relative to
the mill property of said George Apfelbacher, the fish hatchery of the State
Wisconsin on the Bark River, and the mill property of Evan Humphrey at

the lower end of Nagawicka Lake, and relative to the use of the waters of
said Bark River and Nagawicka Lake, all in the county of Waukesha,
Wisconsin."
In determining the scope of this act, the court said;
"Plaintiff claims that by the enactment of this law the legislature admitted
liability on the part of the state for the acts of its officers, and that the suit
now stands just as it would stand between private parties. It is difficult to
see how the act does, or was intended to do, more than remove the
state's immunity from suit. It simply gives authority to commence suit for
the purpose of settling plaintiff's controversies with the state. Nowhere in
the act is there a whisper or suggestion that the court or courts in the
disposition of the suit shall depart from well established principles of law,
or that the amount of damages is the only question to be settled. The act
opened the door of the court to the plaintiff. It did not pass upon the
question of liability, but left the suit just where it would be in the absence of
the state's immunity from suit. If the Legislature had intended to change
the rule that obtained in this state so long and to declare liability on the
part of the state, it would not have left so important a matter to mere
inference but would have done so in express terms. (Murdoc Grate Co. vs.
Commonwealth, 152 Mass., 28; 24 N. E., 854; 8 L. R.A., 399)
It being quite clear that Act No. 2457 does not operate to extend the Government's
liability to any cause not previously recognized, we will now examine the substantive
law touching the defendant's liability for the negligent acts of its officers, agents, and
employees. Paragraph 5 of article 1903 of the civil Code reads:
"The state is liable in this sense when it acts through a special agent, but
not when the damage should have been caused by the official to whom
properly it pertained to do the act performed, in which case the provisions
of the preceding article shall be applicable."
Amigable vs. Cuenca [G.R. No. L-26400, February 29, 1972]
THE DOCTRINE OF STATE IMMUNITY CANNOT BE USED TO PERPETRATE
INJUSTICE. - In the case of Ministerio vs. Court of First Instance of Cebu, 1 involving a
claim for payment of the value of a portion of land used for the widening of the Gorordo
Avenue in Cebu City, this Court, through Mr. Justice Enrique M. Fernando, held that
where the government takes away property from a private landowner for public use
without going through the legal process of expropriation or negotiated sale, the
aggrieved party may properly maintain a suit against the government without thereby
violating the doctrine of governmental immunity from suit without its consent. We there
said:
". . . If the constitutional mandate that the owner be compensated for
property taken for public use were to be respected, as it should, then a
suit of this character should not be summarily dismissed. The doctrine of
governmental immunity from suit cannot serve as an instrument for
perpetrating an injustice on a citizen. Had the government followed the
procedure indicated by the governing law at the time, a complaint would
have been filed by it, and only upon payment of the compensation fixed by
the judgment, or after tender to the party entitled to such payment of the
amount fixed, may it have the right to enter in and upon the land so
condemned, to appropriate the same to the public use defined in the
judgment.' If there were an observance of procedural regularity, petitioners
would not be in the sad plaint they are now. It is unthinkable then that

precisely because there was a failure to abide by what the law requires,
the government would stand to benefit. It is just as important, if not more
so, that there be fidelity to legal norms on the part of officialdom if the rule
of law were to be maintained. It is not too much to say that when the
government takes any property for public use, which is conditioned upon
the payment of just compensation, to be judicially ascertained, it makes
manifest that it submits to the jurisdiction of a court. There is no thought
then that the doctrine of immunity from suit could still be appropriately
invoked."
Republic vs. Sandiganbayan [G.R. No. 90478, November 21, 1991]
STATE IMPLIEDLY WAIVES ITS IMMUNITY WHEN IT COMMENCES LITIGATION. So, too, the PCGG's postulation that none of its members may be "required to testify or
produce evidence in any judicial . . . proceeding concerning matters within its official
cognizance," has no application to a judicial proceeding it has itself initiated. As just
suggested, the act of bringing suit must entail a waiver of the exemption from giving
evidence; by bringing suit it brings itself within the operation and scope of all the rules
governing civil actions, including the rights and duties under the rules of discovery.
Otherwise, the absurd would have to be conceded, that while the parties it has
impleaded as defendants may be required to "disgorge all the facts" within their
knowledge and in their possession, it may not itself be subject to a like compulsion.
The State is, of course, immune from suit in the sense that it cannot, as a rule, be sued
without its consent. But it is axiomatic that in filing an action, it divests itself of its
sovereign character and sheds its immunity from suit, descending to the level of an
ordinary litigant. The PCGG cannot claim a superior or preferred status to the State,
even while assuming to represent or act for the State.
The suggestion that the State makes no implied waiver of immunity by filing suit except
when in so doing it acts in, or in matters concerning, its proprietary or non-governmental
capacity, is unacceptable; it attempts a distinction without support in principle or
precedent. On the contrary
"The consent of the State to be sued may be given expressly or impliedly.
Express consent may be manifested either through a general law or a
special law. Implied consent is given when the State itself commences
litigation or when it enters into a contract."
"The immunity of the State from suits does not deprive it of the right to sue
private parties in its own courts. The state as plaintiff may avail itself of the
different forms of actions open to private litigants. In short, by taking the
initiative in an action against the private parties, the state surrenders its
privileged position and comes down to the level of the defendant. The
latter automatically acquires, within certain limits, the right to set up
whatever claims and other defenses he might have against the state. . . .
(Sinco, Philippine Political Law, Tenth E., pp. 36-37, citing U.S. vs.
Ringgold, 8 Pet. 150, 8 L.ed. 899)'" 51
It can hardly be doubted that in exercising the right of eminent domain, the State
exercises its jus imperii, as distinguished from its proprietary rights or jus gestionis. Yet,
even in that area, it has been held that where private property has been taken in
expropriation without just compensation being paid, the defense of immunity from suit
cannot be set up by the State against an action for payment by the owner.
Republic vs. Feliciano [G.R. No. 70853, March 12, 1987]

We find the petition meritorious. The doctrine of non-suability of the State has proper
application in this case. The plaintiff has impleaded the Republic of the Philippines as
defendant in an action for recovery of ownership and possession of a parcel of land,
bringing the State to court just like any private person who is claimed to be usurping a
piece of property. A suit for the recovery of property is not an action in rem, but an action
in personam.
It is an action directed against a specific party or parties, and any
judgment therein binds only such party or parties. The complaint filed by plaintiff, the
private respondent herein, is directed against the Republic of the Philippines,
represented by the Land Authority, a governmental agency created by Republic Act No.
3844.
By its caption and its allegation and prayer, the complaint is clearly a suit against the
State, which under settled jurisprudence is not permitted, except upon a showing that
the State has consented to be sued, either expressly or by implication through the use
of statutory language too plain to be misinterpreted. There is no such showing in the
instant case. Worse, the complaint itself fails to allege the existence of such consent.
This is a fatal defect, and on this basis alone, the complaint should have been
dismissed.
THE STATE IMMUNITY MAY BE INVOKED AT ANY STAGE OF THE PROCEEDINGS.
- The failure of the petitioner to assert the defense of immunity from suit when the case
was tried before the court a quo, as alleged by private respondent, is not fatal. It is now
settled that such defense "may be invoked by the courts sua sponte at any stage of the
proceedings."
EXPRESS WAIVER OF IMMUNITY MUST BE THROUGH LEGISLATIVE ACT. Private respondent contends that the consent of petitioner may be read from the
Proclamation itself, when it established the reservation "subject to private rights, if any
there be." We do not agree. No such consent can be drawn from the language of the
Proclamation. The exclusion of existing private rights from the reservation established
by Proclamation No. 90 can not be construed as a waiver of the immunity of the State
from suit. Waiver of immunity, being a derogation of sovereignty, will not be inferred
lightly, but must be construed in strictissimi juris. Moreover, the Proclamation is not a
legislative act. The consent of the State to be sued must emanate from statutory
authority. Waiver of State immunity can only be made by an act of the legislative body.
Neither is there merit in respondent's submission. which the respondent appellate court
sustained, on the basis of our decision in the Begosa case, that the present action is
not a suit against the State within the rule of State immunity from suit, because plaintiff
does not seek to divest the Government of any of its lands or its funds. It is contended
that the complaint involves land not owned by the State, but private land belonging to
the plaintiff, hence the Government is not being divested of any of its properties. There
is some sophistry involved in this argument, since the character of the land sought to be
recovered still remains to be established, and the plaintiff's action is directed against the
State precisely to compel the latter to litigate the ownership and possession of the
property. In other words, the plaintiff is out to establish that he is the owner of the land in
question based, incidentally, on an informacion posesoria of dubious value, and he
seeks to establish his claim of ownership by suing the Republic of the Philippines in an
action in personam.
United States vs. Ruiz [G.R. No. L-35645, May 22, 1985]
RESTRICTIVE THEORY OF STATE IMMUNITY. The traditional rule of State immunity
exempts a State from being sued in the courts of another State without its consent or
waiver. This rule is a necessary consequence of the principles of independence and
equality of States. However, the rules of International Law are not petrified; they are

constantly developing and evolving. And because the activities of states have multiplied,
it has been necessary to distinguish them between sovereign and governmental acts
(jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is
that State immunity now extends only to acts jure imperii. The restrictive application of
State immunity is now the rule in the United States, the United Kingdom and other
states in western Europe. (See Coquia and Defensor-Santiago, Public International
Law, pp. 207-209 [1984].)
The restrictive application of State immunity is proper only when the proceedings arise
out of commercial transactions of the foreign sovereign, its commercial activities or
economic affairs. Stated differently, a State may be said to have descended to the level
of an individual and can thus be deemed to have tacitly given its consent to be sued
only when it enters into business contracts. It does not apply where the contract relates
to the exercise of its sovereign functions. In this case the projects are an integral part of
the naval base which is devoted to the defense of both the United States and the
Philippines, indisputably a function of the government of the highest order; they are not
utilized for nor dedicated to commercial or business purposes.
That the correct test for the application of State immunity is not the conclusion of a
contract by a State but the legal nature of the act is shown in Syquia vs. Lopez, 84 Phil.
312 (1949). In that case the plaintiffs leased three apartment buildings to the United
States of America for the use of its military officials. The plaintiffs sued to recover
possession of the premises on the ground that the term of the leases had expired, They
also asked for increased rentals until the apartments shall have been vacated.
Republic vs. Villasor [G.R. No. L-30671, November 28, 1973]
FUNDS OF THE GOVERNMENT ARE NOT SUBJECT TO GARNISHMENT. It is a
fundamental postulate of constitutionalism flowing from the juristic concept of
sovereignty that the state as well as its government is immune from suit unless it gives
its consent. It is readily understandable why it must be so. In the classic formulation of
Holmes: "A sovereign is exempt from suit, not because of any formal conception or
obsolete theory, but on the logical and practical ground that there can be no legal right
as against the authority that makes the law on which the right depends." Sociological
jurisprudence supplies an answer not dissimilar. So it was indicated in a recent decision,
Providence Washington Insurance Co. v. Republic of the Philippines,
with its
affirmation that "a continued adherence to the doctrine of non-suability is not to be
deplored for as against the inconvenience that may be caused private parties, the loss
of governmental efficiency and the obstacle to the performance of its multifarious
functions are far greater if such a fundamental principle were abandoned and the
availability of judicial remedy were not thus restricted. With the well known propensity
on the part of our people to go to court, at the least provocation, the loss of time and
energy required to defend against law suits, in the absence of such a basic principle
that constitutes such an effective obstacle, could very well be imagined."
This fundamental postulate underlying the 1935 Constitution is now made explicit in the
revised charter. It is therein expressly provided: "The State may not be sued without its
consent."
A corollary, both dictated by logic and sound sense from such a basic
concept is that public funds cannot be the object of a garnishment proceeding even if
the consent to be sued had been previously granted and the state liability adjudged.
Thus in the recent case of Commissioner of Public Highways v. San Diego,
such a
well-settled doctrine was restated in the opinion of Justice Teehankee: "The universal
rule that where the State gives its consent to be sued by private parties either by
general or special law, it may limit claimant's action `only up to the completion of
proceedings anterior to the stage of execution' and that the power of the Courts ends
when the judgment is rendered, since government funds and properties may not be
seized under writs of execution or garnishment to satisfy such judgments, is based on

obvious considerations of public policy. Disbursements of public funds must be covered

by the corresponding appropriation as required by law. The functions and public
services rendered by the State cannot be allowed to be paralyzed or disrupted by the
diversion of public funds from their legitimate and specific objects, as appropriated by
law."
Such a principle applies even to an attempted garnishment of a salary that had
accrued in favor of an employee. Director of Commerce and Industry v. Concepcion,
speaks to that effect. Justice Malcolm as ponente left no doubt on that score. Thus: "A
rule, which has never been seriously questioned, is that money in the hands of public
officers, although it may be due government employees, is not liable to the creditors of
these employees in the process of garnishment. One reason is, that the State, by virtue
of its sovereignty, may not be sued in its own courts except by express authorization by
the Legislature, and to subject its officers to garnishment would be to permit indirectly
what is prohibited directly. Another reason is that moneys sought to be garnished, as
long as they remain in the hands of the disbursing officer of the Government, belong to
the latter, although the defendant in garnishment may be entitled to a specific portion
thereof. And still another reason which covers both of the foregoing is that every
consideration of public policy forbids it."
PNB vs. Pabalan [G.R. No. L-33112, June 15, 1978]
DOCTRINE OF STATE IMMUNITY FROM SUIT; A GOVERNMENT OWNED AND
CONTROLLED CORPORATION HAS DISTINCT PERSONALITY OF ITS OWN;
FUNDS OF THE CORPORATE ENTITY MAY BE PROCEEDED AGAINST. The
doctrine of non-suability cannot be legally set forth as a bar or impediment to a notice of
garnishment. In National Shipyard and Steel Corporation v. Court of Industrial Relations,
118 Phil. 782 (1963), it was explicitly stated: "That allegation to the effect that the funds
of the NASSCO are public funds of the government, and that, as such the same may
not be garnished, attached or levied upon, is untenable for, as a government owned and
controlled corporation, the NASSCO has a personality of its own, distinct and separate
from that of the Government. It has pursuant to Section 2 of Executive Order No.
356, dated October 23, 1950 . . ., pursuant to which the NASSCO has been established
"all the powers of a corporation under the Corporation Law . . . " Accordingly, it may
sue and be sued and may be subjected to court processes just like any other
corporation (Section 13, Act No. 1459, as amended.)
ARTICLE II FUNDAMENTAL PRINCIPLES AND STATE POLICIES
Section 2
Kuroda vs. Jalandoni [G.R. No. L-2662, March 26, 1949]
PENALIZING WAR CRIMES IS A GENERALLY ACCEPTED PRINCIPLE OF
INTERNATIONAL LAW. - In accordance with the generally accepted principles of
international law of the present day, including the Hague Convention, the Geneva
Convention and significant precedents of international jurisprudence established by the
United Nations, all those persons, military or civilian, who have been guilty of planning,
preparing or waging a war of aggression and of the commission of crimes and offenses
consequential and incidental thereto, in violation of the laws and customs of war, of
humanity and civilization, are held accountable therefor. Consequently, in the
promulgation and enforcement of Executive Order No. 68, the President of the
Philippines has acted in conformity with the generally accepted principles and policies of
international law which are part of our Constitution.
Petitioner argues that respondent Military Commission has no jurisdiction to try
petitioner for acts committed in violation of the Hague Convention and the Geneva
Convention because the Philippines is not a signatory to the first and signed the second

only in 1947. It cannot be denied that the rules and regulations of the Hague and
Geneva conventions form part of and are wholly based on the generally accepted
principles of international law. In fact, these rules and principles were accepted by the
two belligerent nations, the United States and Japan, who were signatories to the two
Conventions. Such rules and principles, therefore, form part of the law of our nation
even if the Philippines was not a signatory to the conventions embodying them, for our
Constitution has been deliberately general and extensive in its scope and is not
confined to the recognition of rules and principles of international law as contained in
treaties to which our government may have been or shall be a signatory.
Agustin vs. Edu [G.R. No. L-2662, March 26, 1949]
The conclusion reached by this Court that this petition must be dismissed is reinforced
by this consideration. The petition itself quoted these two whereas clauses of the
assailed Letter of Instruction: "[Whereas], the hazards posed by such obstructions to
traffic have been recognized by international bodies concerned with traffic safety, the
1968 Vienna Convention on Road Signs and Signals and the United Nations
Organization (U.N.); [Whereas], the said Vienna Convention, which was ratified by the
Philippine Government under P.D. No. 207, recommended the enactment of local
legislation for the installation of road safety signs and devices; . . ." It cannot be
disputed then that this Declaration of Principle found in the Constitution possesses
relevance: "The Philippines . . . adopts the generally accepted principles of international
law as part of the law of the land, . . ." The 1968 Vienna Convention on Road Signs
and Signals is impressed with such a character. It is not for this country to repudiate a
commitment to which it had pledged its word. The concept of Pacta sunt servanda
stands in the way of such an attitude, which is, moreover, at war with the principle of
international morality.
Ichong vs. Hernandez [G.R. No. L-7995, May 31, 1957]
TREATIES SUBJECT TO QUALIFICATION OR AMENDMENT BY SUBSEQUENT LAW.
The law does not violate international treaties and obligations. The United Nations
Charter imposes no strict or legal obligations regarding the rights and freedom of their
subjects (Jans Kelsen, The Law of the United Nations, 1951 ed., pp. 29-32), and the
Declaration of Human Rights contains nothing more than a mere recommendation, or a
common standard of achievement for all peoples and all nations. The Treaty of Amity
between the Republic of the Philippines and the Republic of China of April 18, 1947
guarantees equality of treatment to the Chinese nationals "upon the same terms as the
nationals of any other country". But the nationals of China are not discriminated against
because nationals of all other countries, except those of the United States, who are
granted special rights by the Constitution, are all Prohibited from engaging in the retail
trade. But even supposing that the law infringes upon the said treaty, the treaty is
always subject to qualification or amendment by a subsequent law (U.S. vs. Thompson,
258, Fed. 257, 260), and the same may never curtail or restrict the scope of the police
power of the State (Palston vs. Pennsylvania 58 L. ed., 539).
Gonzales vs. Hechanova [G.R. No. L-21897, October 22, 1963]
PRESIDENT MAY NOT, BY EXECUTIVE AGREEMENT, ENTER INTO A
TRANSACTION WHICH IS PROHIBITED BY STATUTES ENACTED PRIOR
THERETO. It is lastly contended that the Government of the Philippines has already
entered into two (2) contracts for the purchase of rice, one with the Republic of Vietnam,
and another with the Government of Burma; that these contracts constitute valid
executive agreements under international law; that such agreements became binding
and effective upon signing thereof by representatives of the parties thereto; that in case
of conflict between Republic Acts Nos. 2207 and 3452 on the one hand, and the

aforementioned contracts, on the other, the latter should prevail, because, if a treaty and
a statute are inconsistent with each other, the conflict must be resolved under the
American jurisprudence in favor of the one which is latest in point of time; that
petitioner herein assails the validity of acts of the executive relative to foreign relations
in the conduct of which the Supreme Court cannot interfere; and that the
aforementioned contracts have already been consummated, the Government of the
Philippines having already paid the price of the rice involved therein through irrevocable
letters of credit in favor of the sellers of said commodity. We find no merit in this
pretense.
The Court is not satisfied that the status of said contracts as alleged executive
agreements has been sufficiently established. The parties to said contracts do not
appear to have regarded the same as executive agreements. But, even assuming that
said contracts may properly be considered as executive agreements, the same are
unlawful, as well as null and void, from a constitutional viewpoint, said agreements
being inconsistent with the provisions of Republic Acts Nos. 2207 and 3452. Although
the President may, under the American constitutional system, enter into executive
agreements without previous legislative authority, he may not, by executive agreement,
enter into a transaction which is prohibited by statutes enacted prior thereto. Under the
Constitution, the main function of the Executive is to enforce laws enacted by Congress.
The former may not interfere in the performance of the legislative powers of the latter,
except in the exercise of his veto power. He may not defeat legislative enactments that
have acquired the status of laws, by indirectly repealing the same through an executive
agreement providing for the performance of the very act prohibited by said laws.
The American theory to the effect that, in the event of conflict between a treaty and a
statute, the one which is latest in point of time shall prevail, is not applicable to the case
at bar, for respondents not only admit, but, also, insist that the contracts adverted to are
not treaties. Said theory may be justified upon the ground that treaties to which the
United States is signatory require the advice and consent of its Senate, and, hence, of a
branch of the legislative department. No such justification can be given as regards
executive agreements not authorized by previous legislation, without completely
upsetting the principle of separation of powers and the system of checks and balances
which are fundamental in our constitutional set up and that of the United States.
In Re: Garcia [2 SCRA 984, August 15, 1961]
Article I of the Treaty, in its pertinent part, provides:
"The nationals of both countries who shall have obtained degrees or
diplomas to practice the liberal professions in either of the Contracting
States, issued by competent national authorities, shall be deemed
competent to exercise said professions in the territory of the Other, subject
to the laws and regulations of the latter. . . ."
It is clear, therefore, that the privileges provided in the Treaty invoked by the applicant
are made expressly subject to the laws and regulations of the contracting State in
whose territory it is desired to exercise the legal profession; and Section 1 of Rule 127,
in connection with Sections 2, 9, and 16 thereof, which have the force of law, require
that before anyone can practice the legal profession in the Philippines he must first
successfully pass the required bar examinations; and
The aforementioned Treaty, concluded between the Republic of the Philippines and the
Spanish State could not have been intended to modify the laws and regulations
governing admission to the practice of law in the Philippines, for the reason that the
Executive Department may not encroach upon the constitutional prerogative of the
Supreme Court to promulgate rules for admission to the practice of law in the

Philippines, the power to repeal, alter or supplement such rules being reserved only to
the Congress of the Philippines. (See Sec. 13, Art. VIII, Phil. Constitution).
At any rate, the Treaty was intended to govern Filipino citizens desiring to practice their
profession in Spain, and the citizens of Spain desiring to practice their professions in the
Philippines. Applicant is a Filipino citizen desiring to practice the legal profession in the
Philippines. He is therefore subject to the laws of his own country and is not entitled to
the privileges extended to Spanish nationals desiring to practice in the Philippines.
Section 4
People vs. Lagman [G.R. No. 45892, July 13, 1938]
COMPULSORY MILITARY SERVICE IS CONSTITUTIONAL. The National Defense
Law, in so far as it establishes compulsory military service, does not go against this
constitutional provision but is, on the contrary, in faithful compliance therewith. The duty
of the Government to defend the State cannot be performed except through an army. To
leave the organization of an army to the will of the citizens would be to make this duty of
the Government excusable should there be no sufficient men who volunteer to enlist
therein.
In the United States the courts have held in a series of decisions that the compulsory
military service adopted by reason of the civil war and the world war does not violate the
Constitution, because the power to establish it is derived from that granted to Congress
to declare war and to organize and maintain an army. This is so because the right of the
Government to require compulsory military service is a consequence of its duty to
defend the State and is reciprocal with its duty to defend the life, liberty, and property of
the citizen. In the case of Jacobson vs. Massachusetts (197 U.S., 11; 25 Sup. Ct. Rep.,
385), it was said that, without violating the Constitution, a person may be compelled by
force, if need be, against his will, against his pecuniary interests, and even against his
religious or political convictions, to take his place in the ranks of the army of this country,
and risk the chance of being shot down in its defense. In the case of United States vs.
Olson (253 Feb., 233), it was also said that this is not deprivation of property without
due process of law, because, in its just sense, there is no right of property to an office or
employment. The circumstance that these decisions refer to laws enacted by reason of
the actual existence of war does not make our case any different, inasmuch as, in the
last analysis, what justifies compulsory military service is the defense of the State,
whether actual or whether in preparation to make it more effective, in case of need.
Section 6
Aglipay vs. Ruiz [G.R. No. 45459, March 13, 1937]
THE CONSTITUTION GUARANTEES RELIGIOUS FREEDOM, AND NOT MERE
RELIGIOUS TOLERATION. - The prohibition herein expressed is a direct corollary of
the principle of separation of church and state. Without the necessity of adverting to the
historical background of this principle in our country, it is sufficient to say that our history,
not to speak of the history of mankind, has taught us that the union of church and state
is prejudicial to both, for occasions might arise when the state will use the church, and
the church the state, as a weapon in the furtherance of their respective ends and aims.
The Malolos Constitution recognized this principle of separation of church and state in
the early stages of our constitutional development; it was inserted in the Treaty of Paris
between the United States and Spain of December 10, 1898, reiterated in President
McKinley's Instructions to the Philippine Commission, reaffirmed in the Philippine Bill of
1902 and in the Autonomy Act of August 29, 1916, and finally embodied in the
Constitution of the Philippines as the supreme expression of the Filipino People. It is

almost trite to say now that in this country we enjoy both religious and civil freedom. All
the officers of the Government, from the highest to the lowest, in taking their oath to
support and defend the Constitution, bind themselves to recognize and respect the
constitutional guarantee of religious freedom, with its inherent limitations and
recognized implications. It should be stated that what is guaranteed by our Constitution
is religious liberty, not mere religious toleration.
Religious freedom, however, as a constitutional mandate is not inhibition of profound
reverence for religion and is not a denial of its influence in human affairs. Religion as a
profession of faith to an active power that binds and elevates man to his Creator is
recognized. And, in so far as it instills into the minds the purest principles of morality, its
influence is deeply felt and highly appreciated. When the Filipino people, in the
preamble of their Constitution, implored "the aid of Divine Providence, in order to
establish a government that shall embody their ideals, conserve and develop the
patrimony of the nation, promote the general welfare, and secure to themselves and
their posterity the blessings of independence under a regime of justice, liberty and
democracy," they thereby manifested their intense religious nature and placed
unfaltering reliance upon Him who guides the destinies of men and nations. The
elevating influence of religion in human society is recognized here as elsewhere. In fact,
certain general concessions are indiscriminately accorded to religious sects and
denominations. Our Constitution and laws exempt from taxation properties devoted
exclusively to religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the
Philippines and sec. 1, subsec. Ordinance appended thereto; Assessment Law, sec.
344, par [c], Adm. Code) sectarian aid is not prohibited when a priest, preacher, minister
or other religious teacher or dignitary as such is assigned to the armed forces or to any
penal institution, orphanage or leprosarium (sec. 13, subsec. 3 Art. VI, Constitution of
the Philippines). Optional religious instruction in the public schools is by constitutional
mandate allowed (sec. 5, Art. XIII, Constitution of the Philippines, in relation to sec. 928,
Ad. Code). Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and
Sundays are made legal holidays (sec. 29, Adm. Code) because of the secular idea that
their observance is conducive to beneficial moral results. The law allows divorce but
punishes polygamy and bigamy; and certain crimes against religious worship are
considered crimes against the fundamental laws of the state (see arts. 132 and 133,
Revised Penal Code).
Section 10
Calalang vs. Williams [G.R. No. 47800, December 2, 1940]
SOCIAL JUSTICE. Social justice is "neither communism, nor despotism, nor
atomism, nor anarchy," but the humanization of laws and the equalization of social and
economic forces by the State so that justice in its rational and objectively secular
conception may at least be approximated. Social justice means the promotion of the
welfare of all the people, the adoption by the Government of measures calculated to
insure economic stability of all the component elements of society, through the
maintenance of a proper economic and social equilibrium in the interrelations of the
members of the community, constitutionally, through the adoption of measures legally
justifiable, or extra-constitutionally, through the exercise of powers underlying the
existence of all governments on the time-honored principle of salus populi est suprema
lex. Social justice, therefore, must be founded on the recognition of the necessity of
interdependence among divers and diverse units of a society and of the protection that
should be equally and evenly extended to all groups as a combined force in our social
and economic life, consistent with the fundamental and paramount objective of the state
of promoting the health, comfort, and quiet of all persons, and of bringing about "the
greatest good to the greatest number."
Almeda vs. CA [G.R. No. L-43800, July 29, 1977]

IN THE PROMOTION OF SOCIAL JUSTICE, THE STATE MAY REGULATE

PROPERTY OWNERSHIP. - It is to be noted that under the new Constitution, property
ownership is impressed with social function. Property use must not only be for the
benefit of the owner but of society as well. The State, in the promotion of social justice,
may "regulate the acquisition, ownership, use, enjoyment and disposition of private
property, and equitably diffuse property . . . ownership and profits." 7 One governmental
policy of recent date projects the emancipation of tenants from the bondage of the soil
and the transfer to them of the ownership of the land they till. This is Presidential
Decree No. 27 of October 21, 1972, ordaining that all tenant farmers "of private
agricultural lands devoted to rice and corn under a system of sharecrop or leasetenancy, whether classified as landed estates or not" shall be deemed "owner of a
portion constituting a family-size farm of five (5) hectares if not irrigated and there (3)
hectares if irrigated."
Ondoy vs. Ignacio [G.R. No. L-47178, May 16, 1980]
SOCIAL JUSTICE IS NOT EQUALITY, BUT PROTECTION. - Lastly, to quote from the
opinion therein rendered: "To be more specific, the principle of social justice is in this
sphere strengthened and vitalized. A realistic view is that expressed in Agustin v.
Workmen's Compensation Commission: 'As between a laborer, usually poor and
unlettered, and the employer, who has resources to secure able legal advice, the law
has reason to demand from the latter stricter compliance. Social justice in these cases
is not equality but protection."
Salonga vs. Farrales [G.R. No. L-47088, July 10, 1981]
SOCIAL JUSTICE CANNOT NULLIFY THE LAW ON OBLIGATIONS AND
CONTRACTS. Social Justice provided for in Sec. 6, Article II of the New Constitution
cannot be invoked to trample on the rights of property owners who under the
Constitution and laws are also entitled to protection. The Social justice consecrated in
our constitution was not intended to take away rights from a person and give them to
another who is not entitled thereto. Evidently, the plea for social justice cannot nullify the
law on obligations and contracts, and is, therefore, beyond the power of the Courts to
grant.
Section 16
Oposa vs. Factoran [G.R. No. 101083, July 30, 1993]
THE RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY, THOUGH NOT
INCLUDED IN THE BILL OF RIGHTS, IS A SOURCE OF CIVIL AND POLITICAL
RIGHTS. The complaint focuses on one specific fundamental legal right the right
to a balanced and healthful ecology which, for the first time in our nation's constitutional
history, is solemnly incorporated in the fundamental law. Section 16, Article II of the
1987 Constitution explicitly provides: "SEC. 16. The State shall protect and advance the
right of the people to a balanced and healthful ecology in accord with the rhythm and
harmony of nature." This right unites with the right to health which is provided for in the
preceding section of the same article: "SEC. 15. The State shall protect and promote
the right to health of the people and instill health consciousness among them." While the
right to a balanced and healthful ecology is to be found under the Declaration of
Principles and State Policies and not under the Bill of Rights, it does not follow that it is
less important than any of the civil and political rights enumerated in the latter. Such a
right belongs to a different category of rights altogether for it concerns nothing less than
self-preservation and self-perpetuation aptly and fittingly stressed by the petitioners
the advancement of which may even be said to predate all governments and
constitutions. As a matter of fact, these basic rights need not even be written in the

Constitution for they are assumed to exist from the inception of humankind. If they are
now explicitly mentioned in the fundamental charter, it is because of the well-founded
fear of its framers that unless the rights to a balanced and healthful ecology and to
health are mandated as state policies by the Constitution itself, thereby highlighting their
continuing importance and imposing upon the state a solemn obligation to preserve the
first and protect and advance the second, the day would not be too far when all else
would be lost not only for the present generation, but also for those to come
generations which stand to inherit nothing but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to
refrain from impairing the environment.
Laguna Lake Development Authority vs. CA [G.R. No. 110120, March 16, 1994]
The immediate response to the demands of "the necessities of protecting vital public
interests" gives vitality to the statement on ecology embodied in the Declaration of
Principles and State Policies or the 1987 Constitution. Article II, Section 16 which
provides:
"The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature."
As a constitutionally guaranteed right of every person, it carries the correlative duty of
non-impairment. This is but in consonance with the declared policy of the state "to
protect and promote the right to health of the people and instill health consciousness
among them." It is to be borne in mind that the Philippines is party to the Universal
Declaration of Human Rights and the Alma Conference Declaration of 1978 which
recognize health as a fundamental human right.
The issuance, therefore, of the cease and desist order by the LLDA, as a practical
matter of procedure under the circumstances of the case, is a proper exercise of its
power and authority under its charter and its amendatory laws. Had the cease and
desist order issued by the LLDA been complied with by the City Government of
Caloocan as it did in the first instance, no further legal steps would have been
necessary.
Section 19
Garcia vs. Board of Investments [G.R. No. 92024, November 9, 1990]
In the light of all the clear advantages manifest in the plant's remaining in Bataan,
practically nothing is shown to justify the transfer to Batangas except a near-absolute
discretion given by BOI to investors not only to freely choose the site but to transfer it
from their own first choice for reasons which remain murky to say the least.
And this brings us to a prime consideration which the Court cannot rightly ignore.
Section 1, Article XII of the Constitution provides that:
xxx
xxx
xxx
"The State shall promote industrialization and full employment based on
sound agricultural development and agrarian reform, through industries
that make full and efficient use of human and natural resources, and which
are competitive in both domestic and foreign markets. However, the State
shall protect Filipino enterprises against unfair foreign competition and
trade practices."
xxx
xxx
xxx

Every provision of the Constitution on the national economy and patrimony is infused
with the spirit of national interest. The non-alienation of natural resources, the State's
full control over the development and utilization of our scarce resources, agreements
with foreigners being based on real contributions to the economic growth and general
welfare of the country and the regulation of foreign investments in accordance with
national goals and priorities are too explicit not to be noticed and understood.
A petrochemical industry is not an ordinary investment opportunity. It should not be
treated like a garment or embroidery firm, a shoe-making venture, or even an assembler
of cars or manufacturer of computer chips, where the BOI reasoning may be accorded
fuller faith and credit. The petrochemical industry is essential to the national interest. In
other ASEAN countries like Indonesia and Malaysia, the government superintends the
industry by controlling the upstream or cracker facility.
Section 21
Association of Small Landowners in the Phils. vs. Sec. of DAR [G.R. No. 78742,
July 14, 1989]
The CARP Law and the other enactments also involved in these cases have been the
subject of bitter attack from those who point to the shortcomings of these measures and
ask that they be scrapped entirely. To be sure, these enactments are less than perfect;
indeed, they should be continuously re-examined and rehoned, that they may be
sharper instruments for the better protection of the farmer's rights. But we have to start
somewhere. In the pursuit of agrarian reform, we do not tread on familiar ground but
grope on terrain fraught with pitfalls and expected difficulties. This is inevitable. The
CARP Law is not a tried and tested project. On the contrary, to use Justice Holmes's
words, "it is an experiment, as all life is an experiment," and so we learn as we venture
forward, and, if necessary, by our own mistakes. We cannot expect perfection although
we should strive for it by all means. Meantime, we struggle as best we can in freeing the
farmer from the iron shackles that have unconscionably, and for so long, fettered his
soul to the soil.
By the decision we reach today, all major legal obstacles to the comprehensive agrarian
reform program are removed, to clear the way for the true freedom of the farmer. We
may now glimpse the day he will be released not only from want but also from the
exploitation and disdain of the past and from his own feelings of inadequacy and
helplessness. At last his servitude will be ended forever. At last the farm on which he
toils will be his farm. It will be his portion of the Mother Earth that will give him not only
the staff of life but also the joy of living. And where once it bred for him only deep
despair, now can he see in it the fruition of his hopes for a more fulfilling future. Now at
last can he banish from his small plot of earth his insecurities and dark resentments and
"rebuild in it the music and the dream."
Section 25
Basco vs PAGCOR [G.R. No. 91649, May 14, 1991]
LOCAL AUTONOMY SIMPLY MEANS DECENTRALIZATION. - The power of local
government to "impose taxes and fees" is always subject to "limitations" which
Congress may provide by law. Since PD 1869 remains an "operative" law until
"amended, repealed or revoked" (Sec. 3, Art. XVIII, 1987 Constitution), its "exemption
clause" remains as an exception to the exercise of the power of local governments to
impose taxes and fees. It cannot therefore be violative but rather is consistent with the
principle of local autonomy. Besides, the principle of local autonomy under the 1987
Constitution simply means "decentralization" (III Records of the 1987 Constitutional

Commission, pp. 436-436, as cited in Bernas, The Constitution of the Republic of the
Philippines, Vol. II, First Ed., 1988, p. 374). It does not make local governments
sovereign within the state or an "imperium in imperio." "Local Government has been
described as a political subdivision of a nation or state which is constituted by law and
has substantial control of local affairs. In a unitary system of government, such as the
government under the Philippine Constitution, local governments can only be an intra
sovereign subdivision of one sovereign nation, it cannot be an imperium in imperio.
Local government in such a system can only mean a measure of decentralization of the
function of government. (emphasis supplied) As to what state powers should be
"decentralized" and what may be delegated to local government units remains a matter
of policy, which concerns wisdom. It is therefore a political question. (Citizens Alliance
for Consumer Protection v. Energy Regulatory Board, 162 SCRA 539). What is settled is
that the matter of regulating, taxing or otherwise dealing with gambling is a State
concern and hence, it is the sole prerogative of the State to retain it or delegate it to
local governments.
Section 28
Legaspi vs. Civil Service Commission [G.R. No. 72119, May 29, 1987]
AGENCIES CAN ONLY REGULATE THE MANNER OF INSPECTION, BUT MAY NOT
PROHIBIT ACCESS. - It is clear from the foregoing pronouncements of this Court that
government agencies are without discretion in refusing disclosure of, or access to,
information of public concern. This is not to lose sight of the reasonable regulations
which may be imposed by said agencies in custody of public records on the manner in
which the right to information may be exercised by the public. In the Subido case, We
recognized the authority of the Register of Deeds to regulate the manner in which
persons desiring to do so, may inspect, examine or copy records relating to registered
lands. However, the regulations which the Register of Deeds may promulgate are
confined to:
. . . prescribing the manner and hours of examination to the end that
damage to or loss of, the records may be avoided, that undue interference
with the duties of the custodian of the books and documents and other
employees may be prevented, that the right of other persons entitled to
make inspection may be insured . . . (Subido vs. Ozaeta, 80 Phil. 383,
387).
Applying the Subido ruling by analogy, We recognized a similar authority in a municipal
judge, to regulate the manner of inspection by the public of criminal docket records in
the case of Baldoza vs. Dimaano (Adm. Matter No. 1120-MJ, May 5, 1976, 71 SCRA
14). Said administrative case was filed against the respondent judge for his alleged
refusal to allow examination of the criminal docket records in his sala. Upon a finding by
the Investigating Judge that the respondent had allowed the complainant to open and
view the subject records, We absolved the respondent. In effect, We have also held that
the rules and conditions imposed by him upon the manner of examining the public
records were reasonable.
In both the Subido and the Baldoza cases, We were emphatic in Our statement that the
authority to regulate the manner of examining public records does not carry with it the
power to prohibit. A distinction has to be made between the discretion to refuse outright
the disclosure of or access to a particular information and the authority to regulate the
manner in which the access is to be afforded. The first is a limitation upon the
availability of access to the information sought, which only the Legislature may impose
(Art. III, Sec. 6, 1987 Constitution). The second pertains to the government agency
charged with the custody of public records. Its authority to regulate access is to be
exercised solely to the end that damage to, or loss of, public records may be avoided,

undue interference with the duties of said agencies may be prevented, and more
importantly, that the exercise of the same constitutional right by other persons shall be
assured (Subido vs. Ozaeta, supra).
Thus, while the manner of examining public records may be subject to reasonable
regulation by the government agency in custody thereof, the duty to disclose the
information of public concern, and to afford access to public records cannot be
discretionary on the part of said agencies. Certainly, its performance cannot be made
contingent upon the discretion of such agencies. Otherwise, the enjoyment of the
constitutional right may be rendered nugatory by any whimsical exercise of agency
discretion. The constitutional duty, not being discretionary, its performance may be
compelled by a writ of Mandamus in a proper case.
Valmonte vs. Belmonte [G.R. No. 74930, February 13, 1989]
GOVERNMENT OWNED AND CONTROLLED CORPORATIONS ARE LIKEWISE
SUBJECT TO THE PRINCIPLE OF FULL PUBLIC DISCLOSURE. - Considering the
intent of the framers of the Constitution which, though not binding upon the Court, are
nevertheless persuasive, and considering further that government-owned and controlled
corporations, whether performing proprietary or governmental functions are accountable
to the people, the Court is convinced that transactions entered into by the GSIS, a
government-controlled corporation created by special legislation are within the ambit of
the people's right to be informed pursuant to the constitutional policy of transparency in
government dealings.
In fine, petitioners are entitled to access to the documents evidencing loans granted by
the GSIS, subject to reasonable regulations that the latter may promulgate relating to
the manner and hours of examination, to the end that damage to or loss of the records
may be avoided, that undue interference with the duties of the custodian of the records
may be prevented and that the right of other persons entitled to inspect the records may
be insured [Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido v.
Ozaeta, 80 Phil. 383, 387.] The petition, as to the second and third alternative acts
sought to be done by petitioners, is meritorious.
THE RIGHT TO INFORMATION ON MATTERS OF PUBLIC CONCERN DOES NOT
CARRY WITH IT THE RIGHT TO DEMAND COPIES OF THE DOCUMENTS SOUGHT
TO BE INSPECTED. - However, the same cannot be said with regard to the first act
sought by petitioners, i.e., "to furnish petitioners the list of the names of the Batasang
Pambansa members belonging to the UNIDO and PDP-Laban who were able to secure
clean loans immediately before the February 7 election thru the intercession/marginal
note of the then First Lady Imelda Marcos."
Although citizens are afforded the right to information and, pursuant thereto, are entitled
to "access to official records," the constitution does not accord them a right to compel
custodians of official records to prepare lists, abstracts, summaries and the like in their
desire to acquire information or matters of public concern.
Aquino-Sarmiento vs. Morato [G.R. No. 92541, November 13, 1991]
RIGHT OF THE PEOPLE TO INFORMATION ON MATTERS OF PUBLIC CONCERN IS
SELF-EXECUTORY. As We held in Legaspi v. Civil Service Commission (150 SCRA
530 [1987]), the constitutional provision "The right of the people to information on
matters of public concern" is self-executory and supplies "the rules by means of which
the right to information may be enjoyed (Cooley, A Treatise on Constitutional Limitations
167 [1927]) by guaranteeing the right and mandating the duty to afford access to
sources of information. Hence, the fundamental right therein recognized may be
asserted by the people upon the ratification of the constitution without need for any

ancillary act of the Legislature. What may be provided for by the Legislature are
reasonable conditions and limitations upon the access to be afforded which must, of
necessity, be consistent with the declared State policy of full public disclosure of all
transactions involving public interest (Constitution, Art. II, Sec. 28)." (See also Taada v.
Tuvera, 136 SCRA 27 [1985]; Valmonte v. Belmonte, Jr., 170 SCRA 256 [1989]).
Respondents contend, however, that what is rendered by the members of the board in
reviewing films and reflected in their individual voting slip is their individual vote of
conscience on the motion picture or television program and as such, makes the
individual voting slip purely private and personal; an exclusive property of the member
concerned.
The term private has been defined as "belonging to or concerning, an individual person,
company, or interest"; whereas, public means "pertaining to, or belonging to, or affecting
a nation, state, or community at large" (People v. Powell, 274 NW 372 [1937]). May the
decisions of respondent Board and the individual members concerned, arrived at in an
official capacity, be considered private? Certainly not. As may be gleaned from the
decree (PD 1986) creating the respondent classification board, there is no doubt that its
very existence is public in character; it is an office created to serve public interest. It
being the case, respondents can lay no valid claim to privacy. The right to privacy
belongs to the individual acting in his private capacity and not to a governmental agency
or officers tasked with, and acting in, the discharge of public duties (See Valmonte v.
Belmonte, Jr., supra.) There can be no invasion of privacy in the case at bar since what
is sought to be divulged is a product of action undertaken in the course of performing
official functions. To declare otherwise would be to clothe every public official with an
impregnable mantle of protection against public scrutiny for their official acts.