G.R. No.
L-35131 November 29, 1972 diplomatic immunity, pursuant to the Host Agreement executed on July 22, 1951
THE WORLD HEALTH ORGANIZATION and DR. LEONCE VERSTUYFT, petitioners,
vs.
HON. BENJAMIN H. AQUINO, as Presiding Judge of Branch VIII, Court of First Instance
of Rizal, MAJOR WILFREDO CRUZ, MAJOR ANTONIO G. RELLEVE, and CAPTAIN PEDRO
S. NAVARRO of the Constabulary Offshore Action Center (COSAC), respondents.
Sycip, Salazar, Luna, Manalo and Feliciano for petitioners.
Emilio L. Baldia for respondents.
TEEHANKEE, J.:p
An original action for certiorari and prohibition to set aside respondent judge's
refusal to quash a search warrant issued by him at the instance of respondents
COSAC (Constabulary Offshore Action Center) officers for the search and seizure of
the personal effects of petitioner official of the WHO (World Health Organization)
notwithstanding his being entitled to diplomatic immunity, as duly recognized by the
executive branch of the Philippine Government and to prohibit respondent judge
from further proceedings in the matter.
Upon filing of the petition, the Court issued on June 6, 1972 a restraining order
enjoining respondents from executing the search warrant in question.
Respondents COSAC officers filed their answer joining issue against petitioners and
seeking to justify their act of applying for and securing from respondent judge the
warrant for the search and seizure of ten crates consigned to petitioner Verstuyft
and stored at the Eternit Corporation warehouse on the ground that they "contain
large quantities of highly dutiable goods" beyond the official needs of said petitioner
"and the only lawful way to reach these articles and effects for purposes of taxation
is through a search warrant." 1
The Court thereafter called for the parties' memoranda in lieu of oral argument,
which were filed on August 3, 1972 by respondents and on August 21, 1972 by
petitioners, and the case was thereafter deemed submitted for decision.
It is undisputed in the record that petitioner Dr. Leonce Verstuyft, who was assigned
on December 6, 1971 by the WHO from his last station in Taipei to the Regional
Office in Manila as Acting Assistant Director of Health Services, is entitled to
between the Philippine Government and the World Health Organization.
Such diplomatic immunity carries with it, among other diplomatic privileges and
immunities, personal inviolability, inviolability of the official's properties, exemption
from local jurisdiction, and exemption from taxation and customs duties.
When petitioner Verstuyft's personal effects contained in twelve (12) crates entered
the Philippines as unaccompanied baggage on January 10, 1972, they were
accordingly allowed free entry from duties and taxes. The crates were directly stored
at the Eternit Corporation's warehouse at Mandaluyong, Rizal, "pending his
relocation into permanent quarters upon the offer of Mr. Berg, Vice President of
Eternit who was once a patient of Dr. Verstuyft in the Congo." 2
Nevertheless, as above stated, respondent judge issued on March 3, 1972 upon
application on the same date of respondents COSAC officers search warrant No. 72-
138 for alleged violation of Republic Act 4712 amending section 3601 of the Tariff
and Customs Code 3 directing the search and seizure of the dutiable items in said
crates.
Upon protest of March 6, 1972 of Dr. Francisco Dy, WHO Regional Director for the
Western Pacific with station in Manila, Secretary of Foreign Affairs Carlos P. Romulo,
personally wired on the same date respondent Judge advising that "Dr. Verstuyft is
entitled to immunity from search in respect of his personal baggage as accorded to
members of diplomatic missions" pursuant to the Host Agreement and requesting
suspension of the search warrant order "pending clarification of the matter from the
ASAC."
Respondent judge set the Foreign Secretary's request for hearing and heard the
same on March 16, 1972, but notwithstanding the official plea of diplomatic
immunity interposed by a duly authorized representative of the Department of
Foreign Affairs who furnished the respondent judge with a list of the articles brought
in by petitioner Verstuyft, respondent judge issued his order of the same date
maintaining the effectivity of the search warrant issued by him, unless restrained by
a higher court. 4
Petitioner Verstuyft's special appearance on March 24, 1972 for the limited purpose
of pleading his diplomatic immunity and motion to quash search warrant of April 12,
1972 failed to move respondent judge.
1
At the hearing thereof held on May 8, 1972, the Office of the Solicitor General
appeared and filed an extended comment stating the official position of the
executive branch of the Philippine Government that petitioner Verstuyft is entitled
to diplomatic immunity, he did not abuse his diplomatic immunity, 5 and that court
proceedings in the receiving or host State are not the proper remedy in the case of
abuse of diplomatic immunity. 6
The Solicitor General accordingly joined petitioner Verstuyft's prayer for the quashal
of the search warrant. Respondent judge nevertheless summarily denied quashal of
the search warrant per his order of May 9, 1972 "for the same reasons already
stated in (his) aforesaid order of March 16, 1972" disregarding Foreign Secretary
Romulo's plea of diplomatic immunity on behalf of Dr. Verstuyft.
Hence, the petition at bar. Petitioner Verstuyft has in this Court been joined by the
World Health Organization (WHO) itself in full assertion of petitioner Verstuyft's
being entitled "to all privileges and immunities, exemptions and facilities accorded to
diplomatic envoys in accordance with international law" under section 24 of the Host
Agreement.
The writs of certiorari and prohibition should issue as prayed for.
1. The executive branch of the Philippine Government has expressly recognized that
petitioner Verstuyft is entitled to diplomatic immunity, pursuant to the provisions of
the Host Agreement. The Department of Foreign Affairs formally advised respondent
judge of the Philippine Government's official position that accordingly "Dr. Verstuyft
cannot be the subject of a Philippine court summons without violating an obligation
in international law of the Philippine Government" and asked for the quashal of the
search warrant, since his personal effects and baggages after having been allowed
free entry from all customs duties and taxes, may not be baselessly claimed to have
been "unlawfully imported" in violation of the tariff and customs code as claimed by
respondents COSAC officers. The Solicitor-General, as principal law officer of the
Government, 7 likewise expressly affirmed said petitioner's right to diplomatic
immunity and asked for the quashal of the search warrant.
It is a recognized principle of international law and under our system of separation of
powers that diplomatic immunity is essentially a political question and courts should
refuse to look beyond a determination by the executive branch of the government, 8
and where the plea of diplomatic immunity is recognized and affirmed by the
executive branch of the government as in the case at bar, it is then the duty of the
courts to accept the claim of immunity upon appropriate suggestion by the principal
law officer of the government, the Solicitor General in this case, or other officer
acting under his direction.9 Hence, in adherence to the settled principle that courts
may not so exercise their jurisdiction by seizure and detention of property, as to
embarrass the executive arm of the government in conducting foreign relations, it is
accepted doctrine that "in such cases the judicial department of (this) government
follows the action of the political branch and will not embarrass the latter by
assuming an antagonistic jurisdiction." 10
2. The unfortunate fact that respondent judge chose to rely on the suspicion of
respondents COSAC officers "that the other remaining crates unopened contain
contraband items" 11 rather than on the categorical assurance of the Solicitor-
General that petitioner Verstuyft did not abuse his diplomatic immunity, 12 which
was based in turn on the official positions taken by the highest executive officials
with competence and authority to act on the matter, namely, the Secretaries of
Foreign Affairs and of Finance, could not justify respondent judge's denial of the
quashal of the search warrant.
As already stated above, and brought to respondent court's attention, 13 the
Philippine Government is bound by the procedure laid down in Article VII of the
Convention on the Privileges and Immunities of the Specialized Agencies of the
United Nations 14 for consultations between the Host State and the United Nations
agency concerned to determine, in the first instance the fact of occurrence of the
abuse alleged, and if so, to ensure that no repetition occurs and for other recourses.
This is a treaty commitment voluntarily assumed by the Philippine Government and
as such, has the force and effect of law.
Hence, even assuming arguendo as against the categorical assurance of the
executive branch of government that respondent judge had some ground to prefer
respondents COSAC officers' suspicion that there had been an abuse of diplomatic
immunity, the continuation of the search warrant proceedings before him was not
the proper remedy. He should, nevertheless, in deference to the exclusive
competence and jurisdiction of the executive branch of government to act on the
matter, have acceded to the quashal of the search warrant, and forwarded his
findings or grounds to believe that there had been such abuse of diplomatic
immunity to the Department of Foreign Affairs for it to deal with, in accordance with
the aforementioned Convention, if so warranted.
2
3. Finally, the Court has noted with concern the apparent lack of coordination
between the various departments involved in the subject-matter of the case at bar,
which made it possible for a small unit, the COSAC, to which respondents officers
belong, seemingly to disregard and go against the authoritative determination and
pronouncements of both the Secretaries of Foreign Affairs and of Finance that
petitioner Verstuyft is entitled to diplomatic immunity, as confirmed by the Solicitor-
General as the principal law officer of the Government. Such executive
determination properly implemented should have normally constrained respondents
officers themselves to obtain the quashal of the search warrant secured by them
rather than oppose such quashal up to this Court, to the embarrassment of said
department heads, if not of the Philippine Government itself vis a vis the petitioners.
15

The seriousness of the matter is underscored when the provisions of Republic Act 75
enacted since October 21, 1946 to safeguard the jurisdictional immunity of
diplomatic officials in the Philippines are taken into account. Said Act declares as null
and void writs or processes sued out or prosecuted whereby inter alia the person of
an ambassador or public minister is arrested or imprisoned or his goods or chattels
are seized or attached and makes it a penal offense for "every person by whom the
same is obtained or prosecuted, whether as party or as attorney, and every officer
concerned in executing it" to obtain or enforce such writ or process. 16

The Court, therefore, holds that respondent judge acted without jurisdiction and
with grave abuse of discretion in not ordering the quashal of the search warrant
issued by him in disregard of the diplomatic immunity of petitioner Verstuyft.

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

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

3
G.R. No. 85750 September 28, 1990 In response to this crisis, on 23 February 1981, an Agreement was forged between
the Philippine Government and the United Nations High Commissioner for Refugees
INTERNATIONAL CATHOLIC IMMIGRATION COMMISSION, petitioner whereby an operating center for processing Indo-Chinese refugees for eventual
vs resettlement to other countries was to be established in Bataan (Annex "A", Rollo,
HON. PURA CALLEJA IN HER CAPACITY AS DIRECTOR OF THE BUREAU OF LABOR pp. 22-32).
RELATIONS AND TRADE UNIONS OF THE PHILIPPINES AND ALLIED SERVICES (TUPAS)
WFTU respondents. ICMC was one of those accredited by the Philippine Government to operate the
refugee processing center in Morong, Bataan. It was incorporated in New York, USA,
G.R. No. 89331 September 28, 1990 at the request of the Holy See, as a non-profit agency involved in international
humanitarian and voluntary work. It is duly registered with the United Nations
KAPISANAN NG MANGGAGAWA AT TAC SA IRRI-ORGANIZED LABOR ASSOCIATION IN
Economic and Social Council (ECOSOC) and enjoys Consultative Status, Category II. As
LINE INDUSTRIES AND AGRICULTURE, petitioner,
an international organization rendering voluntary and humanitarian services in the
vs
Philippines, its activities are parallel to those of the International Committee for
SECRETARY OF LABOR AND EMPLOYMENT AND INTERNATIONAL RICE RESEARCH
Migration (ICM) and the International Committee of the Red Cross (ICRC) [DOLE
INSTITUTE, INC., respondents.
Records of BLR Case No. A-2-62-87, ICMC v. Calleja, Vol. 1].
Araullo, Zambrano, Gruba, Chua Law Firm for petitioner in 85750.
On 14 July 1986, Trade Unions of the Philippines and Allied Services (TUPAS) filed
Dominguez, Armamento, Cabana & Associates for petitioner in G.R. No. 89331. with the then Ministry of Labor and Employment a Petition for Certification Election
among the rank and file members employed by ICMC The latter opposed the petition
Jimenez & Associates for IRRI. on the ground that it is an international organization registered with the United
Nations and, hence, enjoys diplomatic immunity.
Alfredo L. Bentulan for private respondent in 85750.
On 5 February 1987, Med-Arbiter Anastacio L. Bactin sustained ICMC and dismissed
the petition for lack of jurisdiction.
MELENCIO-HERRERA, J.:
On appeal by TUPAS, Director Pura Calleja of the Bureau of Labor Relations (BLR),
Consolidated on 11 December 1989, these two cases involve the validity of the claim reversed the Med-Arbiter's Decision and ordered the immediate conduct of a
of immunity by the International Catholic Migration Commission (ICMC) and the certification election. At that time, ICMC's request for recognition as a specialized
International Rice Research Institute, Inc. (IRRI) from the application of Philippine agency was still pending with the Department of Foreign Affairs (DEFORAF).
labor laws.
Subsequently, however, on 15 July 1988, the Philippine Government, through the
I DEFORAF, granted ICMC the status of a specialized agency with corresponding
diplomatic privileges and immunities, as evidenced by a Memorandum of Agreement
Facts and Issues between the Government and ICMC (Annex "E", Petition, Rollo, pp. 41-43), infra.

A. G.R. No. 85750 — the International Catholic Migration Commission (ICMC) Case. ICMC then sought the immediate dismissal of the TUPAS Petition for Certification
Election invoking the immunity expressly granted but the same was denied by
As an aftermath of the Vietnam War, the plight of Vietnamese refugees fleeing from respondent BLR Director who, again, ordered the immediate conduct of a pre-
South Vietnam's communist rule confronted the international community. election conference. ICMC's two Motions for Reconsideration were denied despite

4
an opinion rendered by DEFORAF on 17 October 1988 that said BLR Order violated
ICMC's diplomatic immunity.
Thus, on 24 November 1988, ICMC filed the present Petition for Certiorari with
Preliminary Injunction assailing the BLR Order.
On 28 November 1988, the Court issued a Temporary Restraining Order enjoining
the holding of the certification election.
On 10 January 1989, the DEFORAF, through its Legal Adviser, retired Justice Jorge C.
Coquia of the Court of Appeals, filed a Motion for Intervention alleging that, as the
highest executive department with the competence and authority to act on matters
involving diplomatic immunity and privileges, and tasked with the conduct of
Philippine diplomatic and consular relations with foreign governments and UN
organizations, it has a legal interest in the outcome of this case.
Over the opposition of the Solicitor General, the Court allowed DEFORAF
intervention.
On 12 July 1989, the Second Division gave due course to the ICMC Petition and
required the submittal of memoranda by the parties, which has been complied with.
As initially stated, the issue is whether or not the grant of diplomatic privileges and
immunites to ICMC extends to immunity from the application of Philippine labor
laws.
ICMC sustains the affirmative of the proposition citing (1) its Memorandum of
Agreement with the Philippine Government giving it the status of a specialized
agency, (infra); (2) the Convention on the Privileges and Immunities of Specialized
Agencies, adopted by the UN General Assembly on 21 November 1947 and
concurred in by the Philippine Senate through Resolution No. 91 on 17 May 1949
(the Philippine Instrument of Ratification was signed by the President on 30 August
1949 and deposited with the UN on 20 March 1950) infra; and (3) Article II, Section 2
of the 1987 Constitution, which declares that the Philippines adopts the generally
accepted principles of international law as part of the law of the land.
Intervenor DEFORAF upholds ICMC'S claim of diplomatic immunity and seeks an
affirmance of the DEFORAF determination that the BLR Order for a certification
election among the ICMC employees is violative of the diplomatic immunity of said
organization.
Respondent BLR Director, on the other hand, with whom the Solicitor General
agrees, cites State policy and Philippine labor laws to justify its assailed Order,
particularly, Article II, Section 18 and Article III, Section 8 of the 1987 Constitution,
infra; and Articles 243 and 246 of the Labor Code, as amended, ibid. In addition, she
contends that a certification election is not a litigation but a mere investigation of a
non-adversary, fact-finding character. It is not a suit against ICMC its property, funds
or assets, but is the sole concern of the workers themselves.
B. G.R. No. 89331 — (The International Rice Research Institute [IRRI] Case).
Before a Decision could be rendered in the ICMC Case, the Third Division, on 11
December 1989, resolved to consolidate G.R. No. 89331 pending before it with G.R.
No. 85750, the lower-numbered case pending with the Second Division, upon
manifestation by the Solicitor General that both cases involve similar issues.
The facts disclose that on 9 December 1959, the Philippine Government and the
Ford and Rockefeller Foundations signed a Memorandum of Understanding
establishing the International Rice Research Institute (IRRI) at Los Baños, Laguna. It
was intended to be an autonomous, philanthropic, tax-free, non-profit, non-stock
organization designed to carry out the principal objective of conducting "basic
research on the rice plant, on all phases of rice production, management,
distribution and utilization with a view to attaining nutritive and economic advantage
or benefit for the people of Asia and other major rice-growing areas through
improvement in quality and quantity of rice."
Initially, IRRI was organized and registered with the Securities and Exchange
Commission as a private corporation subject to all laws and regulations. However, by
virtue of Pres. Decree No. 1620, promulgated on 19 April 1979, IRRI was granted the
status, prerogatives, privileges and immunities of an international organization.
The Organized Labor Association in Line Industries and Agriculture (OLALIA), is a
legitimate labor organization with an existing local union, the Kapisanan ng
Manggagawa at TAC sa IRRI (Kapisanan, for short) in respondent IRRI.
On 20 April 1987, the Kapisanan filed a Petition for Direct Certification Election with
Region IV, Regional Office of the Department of Labor and Employment (DOLE).
IRRI opposed the petition invoking Pres. Decree No. 1620 conferring upon it the
status of an international organization and granting it immunity from all civil, criminal
and administrative proceedings under Philippine laws.
5
On 7 July 1987, Med-Arbiter Leonardo M. Garcia, upheld the opposition on the basis
of Pres. Decree No. 1620 and dismissed the Petition for Direct Certification.
On appeal, the BLR Director, who is the public respondent in the ICMC Case, set
aside the Med-Arbiter's Order and authorized the calling of a certification election
among the rank-and-file employees of IRRI. Said Director relied on Article 243 of the
Labor Code, as amended, infra and Article XIII, Section 3 of the 1987 Constitution, 1
and held that "the immunities and privileges granted to IRRI do not include
exemption from coverage of our Labor Laws." Reconsideration sought by IRRI was
denied.
On appeal, the Secretary of Labor, in a Resolution of 5 July 1989, set aside the BLR
Director's Order, dismissed the Petition for Certification Election, and held that the
grant of specialized agency status by the Philippine Government to the IRRI bars
DOLE from assuming and exercising jurisdiction over IRRI Said Resolution reads in
part as follows:
Presidential Decree No. 1620 which grants to the IRRI the status, prerogatives,
privileges and immunities of an international organization is clear and explicit. It
provides in categorical terms that:
Art. 3 — The Institute shall enjoy immunity from any penal, civil and administrative
proceedings, except insofar as immunity has been expressly waived by the Director-
General of the Institution or his authorized representative.
Verily, unless and until the Institute expressly waives its immunity, no summons,
subpoena, orders, decisions or proceedings ordered by any court or administrative
or quasi-judicial agency are enforceable as against the Institute. In the case at bar
there was no such waiver made by the Director-General of the Institute. Indeed, the
Institute, at the very first opportunity already vehemently questioned the jurisdiction
of this Department by filing an ex-parte motion to dismiss the case.
Hence, the present Petition for Certiorari filed by Kapisanan alleging grave abuse of
discretion by respondent Secretary of Labor in upholding IRRI's diplomatic immunity.
The Third Division, to which the case was originally assigned, required the
respondents to comment on the petition. In a Manifestation filed on 4 August 1990,
the Secretary of Labor declared that it was "not adopting as his own" the decision of
the BLR Director in the ICMC Case as well as the Comment of the Solicitor General
sustaining said Director. The last pleading was filed by IRRI on 14 August 1990.
Instead of a Comment, the Solicitor General filed a Manifestation and Motion
praying that he be excused from filing a comment "it appearing that in the earlier
case of International Catholic Migration Commission v. Hon. Pura Calleja, G.R. No.
85750. the Office of the Solicitor General had sustained the stand of Director Calleja
on the very same issue now before it, which position has been superseded by
respondent Secretary of Labor in G.R. No. 89331," the present case. The Court
acceded to the Solicitor General's prayer.
The Court is now asked to rule upon whether or not the Secretary of Labor
committed grave abuse of discretion in dismissing the Petition for Certification
Election filed by Kapisanan.
Kapisanan contends that Article 3 of Pres. Decree No. 1620 granting IRRI the status,
privileges, prerogatives and immunities of an international organization, invoked by
the Secretary of Labor, is unconstitutional in so far as it deprives the Filipino workers
of their fundamental and constitutional right to form trade unions for the purpose of
collective bargaining as enshrined in the 1987 Constitution.
A procedural issue is also raised. Kapisanan faults respondent Secretary of Labor for
entertaining IRRI'S appeal from the Order of the Director of the Bureau of Labor
Relations directing the holding of a certification election. Kapisanan contends that
pursuant to Sections 7, 8, 9 and 10 of Rule V 2 of the Omnibus Rules Implementing
the Labor Code, the Order of the BLR Director had become final and unappeable and
that, therefore, the Secretary of Labor had no more jurisdiction over the said appeal.
On the other hand, in entertaining the appeal, the Secretary of Labor relied on
Section 25 of Rep. Act. No. 6715, which took effect on 21 March 1989, providing for
the direct filing of appeal from the Med-Arbiter to the Office of the Secretary of
Labor and Employment instead of to the Director of the Bureau of Labor Relations in
cases involving certification election orders.
III
Findings in Both Cases.
There can be no question that diplomatic immunity has, in fact, been granted ICMC
and IRRI.
Article II of the Memorandum of Agreement between the Philippine Government
and ICMC provides that ICMC shall have a status "similar to that of a specialized
6
agency." Article III, Sections 4 and 5 of the Convention on the Privileges and
Immunities of Specialized Agencies, adopted by the UN General Assembly on 21
November 1947 and concurred in by the Philippine Senate through Resolution No.
19 on 17 May 1949, explicitly provides:
Art. III, Section 4. The specialized agencies, their property and assets, wherever
located and by whomsoever held, shall enjoy immunity from every form of legal
process except insofar as in any particular case they have expressly waived their
immunity. It is, however, understood that no waiver of immunity shall extend to any
measure of execution.
Sec. 5. — The premises of the specialized agencies shall be inviolable. The property
and assets of the specialized agencies, wherever located and by whomsoever held
shall be immune from search, requisition, confiscation, expropriation and any other
form of interference, whether by executive, administrative, judicial or legislative
action. (Emphasis supplied).
IRRI is similarly situated, Pres. Decree No. 1620, Article 3, is explicit in its grant of
immunity, thus:
Art. 3. Immunity from Legal Process. — The Institute shall enjoy immunity from any
penal, civil and administrative proceedings, except insofar as that immunity has been
expressly waived by the Director-General of the Institute or his authorized
representatives.
Thus it is that the DEFORAF, through its Legal Adviser, sustained ICMC'S invocation of
immunity when in a Memorandum, dated 17 October 1988, it expressed the view
that "the Order of the Director of the Bureau of Labor Relations dated 21 September
1988 for the conduct of Certification Election within ICMC violates the diplomatic
immunity of the organization." Similarly, in respect of IRRI, the DEFORAF speaking
through The Acting Secretary of Foreign Affairs, Jose D. Ingles, in a letter, dated 17
June 1987, to the Secretary of Labor, maintained that "IRRI enjoys immunity from
the jurisdiction of DOLE in this particular instance."
The foregoing opinions constitute a categorical recognition by the Executive Branch
of the Government that ICMC and IRRI enjoy immunities accorded to international
organizations, which determination has been held to be a political question
conclusive upon the Courts in order not to embarrass a political department of
Government.
It is a recognized principle of international law and under our system of separation of
powers that diplomatic immunity is essentially a political question and courts should
refuse to look beyond a determination by the executive branch of the government,
and where the plea of diplomatic immunity is recognized and affirmed by the
executive branch of the government as in the case at bar, it is then the duty of the
courts to accept the claim of immunity upon appropriate suggestion by the principal
law officer of the government . . . or other officer acting under his direction. Hence,
in adherence to the settled principle that courts may not so exercise their jurisdiction
. . . as to embarrass the executive arm of the government in conducting foreign
relations, it is accepted doctrine that in such cases the judicial department of (this)
government follows the action of the political branch and will not embarrass the
latter by assuming an antagonistic jurisdiction. 3
A brief look into the nature of international organizations and specialized agencies is
in order. The term "international organization" is generally used to describe an
organization set up by agreement between two or more states. 4 Under
contemporary international law, such organizations are endowed with some degree
of international legal personality 5 such that they are capable of exercising specific
rights, duties and powers. 6 They are organized mainly as a means for conducting
general international business in which the member states have an interest. 7 The
United Nations, for instance, is an international organization dedicated to the
propagation of world peace.
"Specialized agencies" are international organizations having functions in particular
fields. The term appears in Articles 57 8 and 63 9 of the Charter of the United
Nations:
The Charter, while it invests the United Nations with the general task of promoting
progress and international cooperation in economic, social, health, cultural,
educational and related matters, contemplates that these tasks will be mainly
fulfilled not by organs of the United Nations itself but by autonomous international
organizations established by inter-governmental agreements outside the United
Nations. There are now many such international agencies having functions in many
different fields, e.g. in posts, telecommunications, railways, canals, rivers, sea
transport, civil aviation, meteorology, atomic energy, finance, trade, education and
culture, health and refugees. Some are virtually world-wide in their membership,
some are regional or otherwise limited in their membership. The Charter provides
that those agencies which have "wide international responsibilities" are to be
brought into relationship with the United Nations by agreements entered into
7
between them and the Economic and Social Council, are then to be known as
"specialized agencies." 10
The rapid growth of international organizations under contemporary international
law has paved the way for the development of the concept of international
immunities.
It is now usual for the constitutions of international organizations to contain
provisions conferring certain immunities on the organizations themselves,
representatives of their member states and persons acting on behalf of the
organizations. A series of conventions, agreements and protocols defining the
immunities of various international organizations in relation to their members
generally are now widely in force; . . . 11
There are basically three propositions underlying the grant of international
immunities to international organizations. These principles, contained in the ILO
Memorandum are stated thus: 1) international institutions should have a status
which protects them against control or interference by any one government in the
performance of functions for the effective discharge of which they are responsible to
democratically constituted international bodies in which all the nations concerned
are represented; 2) no country should derive any national financial advantage by
levying fiscal charges on common international funds; and 3) the international
organization should, as a collectivity of States members, be accorded the facilities for
the conduct of its official business customarily extended to each other by its
individual member States. 12 The theory behind all three propositions is said to be
essentially institutional in character. "It is not concerned with the status, dignity or
privileges of individuals, but with the elements of functional independence necessary
to free international institutions from national control and to enable them to
discharge their responsibilities impartially on behalf of all their members. 13 The
raison d'etre for these immunities is the assurance of unimpeded performance of
their functions by the agencies concerned.
The grant of immunity from local jurisdiction to ICMC and IRRI is clearly necessitated
by their international character and respective purposes. The objective is to avoid
the danger of partiality and interference by the host country in their internal
workings. The exercise of jurisdiction by the Department of Labor in these instances
would defeat the very purpose of immunity, which is to shield the affairs of
international organizations, in accordance with international practice, from political
pressure or control by the host country to the prejudice of member States of the
organization, and to ensure the unhampered performance of their functions.
ICMC's and IRRI's immunity from local jurisdiction by no means deprives labor of its
basic rights, which are guaranteed by Article II, Section 18, 14 Article III, Section 8, 15
and Article XIII, Section 3 (supra), of the 1987 Constitution; and implemented by
Articles 243 and 246 of the Labor Code, 16 relied on by the BLR Director and by
Kapisanan.
For, ICMC employees are not without recourse whenever there are disputes to be
settled. Section 31 of the Convention on the Privileges and Immunities of the
Specialized Agencies of the United Nations 17 provides that "each specialized agency
shall make provision for appropriate modes of settlement of: (a) disputes arising out
of contracts or other disputes of private character to which the specialized agency is
a party." Moreover, pursuant to Article IV of the Memorandum of Agreement
between ICMC the the Philippine Government, whenever there is any abuse of
privilege by ICMC, the Government is free to withdraw the privileges and immunities
accorded. Thus:
Art. IV. Cooperation with Government Authorities. — 1. The Commission shall
cooperate at all times with the appropriate authorities of the Government to ensure
the observance of Philippine laws, rules and regulations, facilitate the proper
administration of justice and prevent the occurrences of any abuse of the privileges
and immunities granted its officials and alien employees in Article III of this
Agreement to the Commission.
2. In the event that the Government determines that there has been an abuse of the
privileges and immunities granted under this Agreement, consultations shall be held
between the Government and the Commission to determine whether any such
abuse has occurred and, if so, the Government shall withdraw the privileges and
immunities granted the Commission and its officials.
Neither are the employees of IRRI without remedy in case of dispute with
management as, in fact, there had been organized a forum for better management-
employee relationship as evidenced by the formation of the Council of IRRI
Employees and Management (CIEM) wherein "both management and employees
were and still are represented for purposes of maintaining mutual and beneficial
cooperation between IRRI and its employees." The existence of this Union factually
and tellingly belies the argument that Pres. Decree No. 1620, which grants to IRRI
8
the status, privileges and immunities of an international organization, deprives its specifically since 21 March 1989. Hence, no grave abuse of discretion may be
employees of the right to self-organization. imputed to respondent Secretary of Labor in his assumption of appellate jurisdiction,
contrary to Kapisanan's allegations. The pertinent portion of that law provides:
The immunity granted being "from every form of legal process except in so far as in
any particular case they have expressly waived their immunity," it is inaccurate to Art. 259. — Any party to an election may appeal the order or results of the election
state that a certification election is beyond the scope of that immunity for the reason as determined by the Med-Arbiter directly to the Secretary of Labor and
that it is not a suit against ICMC. A certification election cannot be viewed as an Employment on the ground that the rules and regulations or parts thereof
independent or isolated process. It could tugger off a series of events in the established by the Secretary of Labor and Employment for the conduct of the
collective bargaining process together with related incidents and/or concerted election have been violated. Such appeal shall be decided within 15 calendar days
activities, which could inevitably involve ICMC in the "legal process," which includes (Emphasis supplied).
"any penal, civil and administrative proceedings." The eventuality of Court litigation
is neither remote and from which international organizations are precisely shielded En passant, the Court is gratified to note that the heretofore antagonistic positions
to safeguard them from the disruption of their functions. Clauses on jurisdictional assumed by two departments of the executive branch of government have been
immunity are said to be standard provisions in the constitutions of international rectified and the resultant embarrassment to the Philippine Government in the eyes
Organizations. "The immunity covers the organization concerned, its property and its of the international community now, hopefully, effaced.
assets. It is equally applicable to proceedings in personam and proceedings in rem."
WHEREFORE, in G.R. No. 85750 (the ICMC Case), the Petition is GRANTED, the Order
18
of the Bureau of Labor Relations for certification election is SET ASIDE, and the
We take note of a Manifestation, dated 28 September 1989, in the ICMC Case (p. Temporary Restraining Order earlier issued is made PERMANENT.
161, Rollo), wherein TUPAS calls attention to the case entitled "International Catholic
In G.R. No. 89331 (the IRRI Case), the Petition is Dismissed, no grave abuse of
Migration Commission v. NLRC, et als., (G.R. No. 72222, 30 January 1989, 169 SCRA
discretion having been committed by the Secretary of Labor and Employment in
606), and claims that, having taken cognizance of that dispute (on the issue of
dismissing the Petition for Certification Election.
payment of salary for the unexpired portion of a six-month probationary
employment), the Court is now estopped from passing upon the question of DOLE No pronouncement as to costs.
jurisdiction petition over ICMC.
SO ORDERED.
We find no merit to said submission. Not only did the facts of said controversy occur
between 1983-1985, or before the grant to ICMC on 15 July 1988 of the status of a
specialized agency with corresponding immunities, but also because ICMC in that
case did not invoke its immunity and, therefore, may be deemed to have waived it,
assuming that during that period (1983-1985) it was tacitly recognized as enjoying
such immunity.

Anent the procedural issue raised in the IRRI Case, suffice it to state that the Decision
of the BLR Director, dated 15 February 1989, had not become final because of a
Motion for Reconsideration filed by IRRI Said Motion was acted upon only on 30
March 1989 when Rep. Act No. 6715, which provides for direct appeals from the
Orders of the Med-Arbiter to the Secretary of Labor in certification election cases
either from the order or the results of the election itself, was already in effect,
9
G.R. Nos. 97468-70 September 2, 1993
SOUTHEAST ASIAN FISHERIES DEVELOPMENT CENTER represented by its Chief, DR.
FLOR J. LACANILAO, petitioner,
vs.
DANILO ACOSTA in his capacity as Labor Arbiter of the National Labor Relations
Commission, Regional Arbitration, Branch VI, CORAZON CANTO, DAN BALIAO,
ELIZABETH SUPETRAN, CARMELITA FERRER, CATHRYN CONTRADOR, and DORIC
VELOSO, respondents.
Hector P. Teodosio for petitioner.
Cirilo Ganzon, Jr. for private respondents.
VITUG, J.:
This is an original petition for certiorari and prohibition, with a prayer for the
issuance of a restraining order, to set aside the order of respondent labor arbiter,
dated 20 September 1990, denying herein petitioner's motion to dismiss the cases
subject matter of the petition for lack of jurisdiction.
Two labor cases, docketed as RAB Case No. VI- 0156-86 and RAB case No. VI - 0214-
86, were filed by the herein private respondents against the petitioner, Southeast
Asian Fisheries Development Center (SEAFDEC), before the National Labor Relations
Commission (NLRC), Regional Arbitration Branch, Iloilo City. In these cases, the
private respondents claim having been wrongfully terminated from their
employment by the petitioner.
On 22 August 1990, the petitioner, contending to be an international inter-
government organization, composed of various Southeast Asian countries, filed a
Motion to Dismiss, challenging the jurisdiction of the public respondent in taking
cognizance of the above cases.
On 20 September 1990, the public respondent issued the assailed order denying the
Motion to Dismiss. In due course, a Motion for Reconsideration was interposed but
the same, in an order, dated 07 January 1991, was likewise denied.
Hence, the instant petition. This Court, on 20 March 1991, issued the temporary
restraining order prayed for.
The private respondents, as well as respondent labor arbiter, allege that the
petitioner is not immune from suit and assuming that if, indeed, it is an international
organization, it has, however, impliedly, if not expressly, waived its immunity by
belatedly raising the issue of jurisdiction.
The Solicitor General, on his part, filed a Manifestation and Motion, which the Court
granted, praying that he be excused from filing his comment for respondent Labor
Arbiter, he not being in agreement with the latter's position on this matter.
On 30 March 1992, this Court dismissed the instant petition in a resolution which
reads:
. . . — Considering the allegations, issues and arguments adduced in the petition for
certiorari as well as the separate comments thereon of the public and private
respondents, and the consolidated reply thereto of the petitioner, the Court
RESOLVED to dismiss the petition for failure to sufficiently show that the questioned
judgment is tainted with grave abuse of discretion. The temporary restraining order
issued on March 20, 1991 is hereby LIFTED effective immediately.
In time, the petitioner moved for a reconsideration, arguing that the ground for its
seeking the allowance of the petition is the labor arbiter's lack of jurisdiction over the
dispute.
The court is now asked to rule upon the motion for reconsideration.
We rule for the petitioner.
It is beyond question that petitioner SEAFDEC is an international agency enjoying
diplomatic immunity. This, we have already held in Southeast Asian Fisheries
Development Center-Aquaculture Department vs. National Labor Relations
Commission, G.R. No. 86773, 206 SCRA 283/1992; see also Lacanilao v. de Leon, G.R.
No. 76532, 147 SCRA, 286/1987/, where we
said —
Petitioner Southeast Asian Fisheries Development Center-Aquaculture Department
(SEAFDEC-AQD) is an international agency beyond the jurisdiction of public
respondent NLRC.
10
It was established by the Governments of Burma, Kingdom of Cambodia, Republic of
Indonesia, Japan, Kingdom of Laos, Malaysia, Republic of the Philippines, Republic of
Singapore, Kingdom of Thailand and Republic of Vietnam . . . .
The Republic of the Philippines became a signatory to the Agreement establishing
SEAFDEC on January 16, 1968. Its purpose is as follows:
The purpose of the Center is to contribute to the promotion of the fisheries
development in Southeast Asia by mutual co-operation among the member
governments of the Center, hereinafter called the 'Members', and through
collaboration with international organizations and governments external to the
Center.
(Agreement Establishing the SEAFDEC, Art. 1; . . .).
SEAFDEC-AQD was organized during the Sixth Council Meeting of SEAFDEC on July 3-
7, 1973 in Kuala Lumpur, Malaysia as one of the principal departments of SEAFDEC. .
. . to be established in Iloilo for the promotion of research in aquaculture. Paragraph
1, Article 6 of the Agreement establishing mandates:
1. The Council shall be the supreme organ of the Center and all powers of the Center
shall be vested in the Council.
Being an intergovernmental organization, SEAFDEC including its Departments (AQD),
enjoys functional independence and freedom from control of the state in whose
territory its office is located.
As Senator Jovito R. Salonga and Former Chief Justice Pedro L. Yap stated in their
book, Public International Law (p. 83,1956 ed.):
Permanent international commissions and administrative bodies have been created
by the agreement of a considerable number of States for a variety of international
purposes, economic or social and mainly non-political. Among the notable instances
are the International Labor Organization, the International Institute of Agriculture,
the International Danube Commission. In so far as they are autonomous and beyond
the control of any one State, they have a distinct juridical personality independent of
the municipal law of the State where they are situated. As such, according to one
leading authority they must be deemed to possess a species of international
personality of their own. (Salonga and Yap, Public International Law, 83 [1956 ed.]
Pursuant to its being a signatory to the Agreement, the Republic of the Philippines
agreed to be represented by one Director in governing SEAFDEC Council (Agreement
Establishing SEAFDEC, Art. 5, Par. 1,. . .), and that its national laws and regulations
shall apply only insofar as its contributions to SEAFDEC of "an agreed amount of
money, movable and immovable property and services necessary for the
establishment and operation of the Center" are concerned (Art. 11, ibid). It expressly
waived the application of the Philippine laws on the disbursement of funds of
petitioner SEAFDEC-AQD (Section 2, P.D. No. 292).
The then Minister of Justice likewise opined that Philippine Courts have no
jurisdiction over SEAFDEC-AQD in Opinion No. 139, Series of 1984 —
4. One of the basic immunities of an international organization is immunity from
local jurisdiction, i.e., that it is immune from the legal writs and processes issued by
the tribunals of the country where it is found. (See Jenks, Id., pp. 37-44). The obvious
reason for this is that the subjection of such an organization to the authority of the
local courts would afford a convenient medium thru which the host government may
interfere in their operations or even influence or control its policies and decisions of
the organization; besides, such objection to local jurisdiction would impair the
capacity of such body to discharge its responsibilities impartially on behalf of its
member-states. In the case at bar, for instance, the entertainment by the National
Labor Relations Commission of Mr. Madamba's reinstatement cases would amount
to interference by the Philippine Government in the management decisions of the
SEARCA governing board; even worse, it could compromise the desired impartiality
of the organization since it will have to suit its actuations to the requirements of
Philippine law, which may not necessarily coincide with the interests of the other
member-states. It is precisely to forestall these possibilities that in cases where the
extent of the immunity is specified in the enabling instruments of international
organizations (jurisdictional immunity, is specified in the enabling instruments of
international organizations), jurisdictional immunity from the host country is
invariably among the first accorded. (See Jenks, Id.; See Bowett. The Law of
International Institutions. pp. 284-285).
At its Sixth Meeting held at Kuala Lumpur, Malaysia, on 3 to 7 July 1973, the
SEAFDEC Council approved the formal establishment of its Aquaculture Department
in the province of Iloilo, Philippines, to promote research in Aquaculture as so
expressed in the "Whereas" Clauses of Presidential Decree No. 292 issued on 13
September 1973 1. Furthermore, Section 2 of the same decree had provided for the
autonomous character of SEAFDEC, thus:
11
. . . .All funds received by the Department shall be receipted and disbursed in
accordance with the Agreement establishing the Southeast Asian Fisheries
Development Center and pertinent resolutions duly approved by the SEAFDEC
Council.

As aptly pointed out by Associate Justice Isagani Cruz of this Court—

Certain administrative bodies created by agreement among states may be vested

with international personality when two conditions concur, to wit:, that their
purposes are mainly non-political and that they are autonomous, i.e., not subject to
the control of any state. 2

Anent the issue of waiver of immunity, suffice it to say at the moment that the
petitioner has timely raised the issue of jurisdiction. While the petitioner did not
question the public respondent's lack of jurisdiction at the early stages of the
proceedings, it, nevertheless, did so before it rested its case and certainly well before
the proceedings thereat had terminated.

WHEREFORE, our resolution, dated 30 March 1992, dismissing the petition for
certiorari, is hereby reconsidered, and another is entered (a) granting due course to
the petition; (b) setting aside the order, dated 20 September 1990, of the public
respondent; and (c) enjoining the public respondent from further proceeding with
RAB Case No. VI-0156-86 and RAB Case No. VI-0214-86. No costs.

SO ORDERED.

12
G.R. Nos. 109095-109107 February 23, 1995
ELDEPIO LASCO, RODOLFO ELISAN, URBANO BERADOR, FLORENTINO ESTOBIO,
MARCELINO MATURAN, FRAEN BALIBAG, CARMELITO GAJOL, DEMOSTHENES
MANTO, SATURNINO BACOL, SATURNINO LASCO, RAMON LOYOLA, JOSENIANO B.
ESPINA, all represented by MARIANO R. ESPINA, petitioner,
vs.
UNITED NATIONS REVOLVING FUND FOR NATURAL RESOURCES EXPLORATION
(UNRFNRE) represented by its operations manager, DR. KYRIACOS LOUCA, OSCAR N.
ABELLA, LEON G. GONZAGA, JR., MUSIB M. BUAT, Commissioners of National Labor
Relations Commission (NLRC), Fifth Division, Cagayan de Oro City and IRVING
PETILLA, Labor Arbiter of Butuan City, respondents.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set
aside the Resolution dated January 25, 1993 of the National Labor Relations
Commission (NLRC), Fifth Division, Cagayan de Oro City.
We dismiss the petition.
I reconsideration is first filed before the respondent tribunal, to allow it an
Petitioners were dismissed from their employment with private respondent, the
United Nations Revolving Fund for Natural Resources Exploration (UNRFNRE), which
is a special fund and subsidiary organ of the United Nations. The UNRFNRE is
involved in a joint project of the Philippine Government and the United Nations for
exploration work in Dinagat Island.
Petitioners are the complainants in NLRC Cases Nos. SRAB 10-03-00067-91 to 10-03-
00078-91 and SRAB 10-07-00159-91 for illegal dismissal and damages.
In its Motion to Dismiss, private respondent alleged that respondent Labor Arbiter
had no jurisdiction over its personality since it enjoyed diplomatic immunity pursuant
to the 1946 Convention on the Privileges and Immunities of the United Nations. In
support thereof, private respondent attached a letter from the Department of
Foreign Affairs dated August 26, 1991, which acknowledged its immunity from suit.
The letter confirmed that private respondent, being a special fund administered by
the United Nations, was covered by the 1946 Convention on the Privileges and
Immunities of the United Nations of which the Philippine Government was an
original signatory (Rollo, p. 21).
On November 25, 1991, respondent Labor Arbiter issued an order dismissing the
complaints on the ground that private respondent was protected by diplomatic
immunity. The dismissal was based on the letter of the Foreign Office dated
September 10, 1991.
Petitioners' motion for reconsideration was denied. Thus, an appeal was filed with
the NLRC, which affirmed the dismissal of the complaints in its Resolution dated
January 25, 1993.
Petitioners filed the instant petition for certiorari without first seeking a
reconsideration of the NLRC resolution.
II
Article 223 of the Labor Code of the Philippines, as amended, provides that decisions
of the NLRC are final and executory. Thus, they may only be questioned through
certiorari as a special civil action under Rule 65 of the Revised Rules of Court.
Ordinarily, certiorari as a special civil action will not lie unless a motion for
opportunity to correct its assigned errors (Liberty Insurance Corporation v. Court of
Appeals, 222 SCRA 37 [1993]).
In the case at bench, petitioners' failure to file a motion for reconsideration is fatal to
the instant petition. Moreover, the petition lacks any explanation for such omission,
which may merit its being considered as falling under the recognized exceptions to
the necessity of filing such motion.
Notwithstanding, we deem it wise to give due course to the petition because of the
implications of the issue in our international relations.
Petitioners argued that the acts of mining exploration and exploitation are outside
the official functions of an international agency protected by diplomatic immunity.
Even assuming that private respondent was entitled to diplomatic immunity,
petitioners insisted that private respondent waived it when it engaged in exploration
work and entered into a contract of employment with petitioners.
13
Petitioners, likewise, invoked the constitutional mandate that the State shall afford
full protection to labor and promote full employment and equality of employment
opportunities for all (1987 Constitution, Art. XIII, Sec. 3).
The Office of the Solicitor General is of the view that private respondent is covered
by the mantle of diplomatic immunity. Private respondent is a specialized agency of
the United Nations. Under Article 105 of the Charter of the United Nations:
1. The Organization shall enjoy in the territory of its Members such privileges and
immunities as are necessary for the fulfillment of its purposes.
2. Representatives of the Members of the United Nations and officials of the
Organization shall similarly enjoy such privileges and immunities as are necessary for
the independent exercise of their functions in connection with the organization.
Corollary to the cited article is the Convention on the Privileges and Immunities of
the Specialized Agencies of the United Nations, to which the Philippines was a
signatory (Vol. 1, Philippine Treaty Series, p. 621). We quote Sections 4 and 5 of
Article III thereof:
Sec. 4. The specialized agencies, their property and assets, wherever located and by
whomsoever held shall enjoy immunity from every form of legal process except
insofar as in any particular case they have expressly waived their immunity. It is,
however, understood that no waiver of immunity shall extend to any measure of
execution (Emphasis supplied).
Sec. 5. The premises of the specialized agencies shall be inviolable. The property and
assets of the specialized agencies, wherever located and by whomsoever held, shall
be immune from search, requisition, confiscation, expropriation and any other form
of interference, whether by executive, administrative, judicial or legislative action
(Emphasis supplied).
As a matter of state policy as expressed in the Constitution, the Philippine
Government adopts the generally accepted principles of international law (1987
Constitution, Art. II, Sec. 2). Being a member of the United Nations and a party to the
Convention on the Privileges and Immunities of the Specialized Agencies of the
United Nations, the Philippine Government adheres to the doctrine of immunity
granted to the United Nations and its specialized agencies. Both treaties have the
force and effect of law.
In World Health Organization v. Aquino, 48 SCRA 242, (1972), we had occasion to
rule that:
It is a recognized principle of international law and under our system of separation of
powers that diplomatic immunity is essentially a political question and courts should
refuse to look beyond a determination by the executive branch of the government,
and where the plea of diplomatic immunity is recognized and affirmed by the
executive branch of the government as in the case at bar, it is then the duty of the
courts to accept the claim of immunity upon appropriate suggestion by the principal
law officer of the government, the Solicitor General or other officer acting under his
direction. Hence, in adherence to the settled principle that courts may not so
exercise their jurisdiction by seizure and detention of property, as to embarrass the
executive arm of the government in conducting foreign relations, it is accepted
doctrine that "in such cases the judicial department of (this) government follows the
action of the political branch and will not embarrass the latter by assuming an
antagonistic jurisdiction (Emphasis supplied).
We recognize the growth of international organizations dedicated to specific
universal endeavors, such as health, agriculture, science and technology and
environment. It is not surprising that their existence has evolved into the concept of
international immunities. The reason behind the grant of privileges and immunities
to international organizations, its officials and functionaries is to secure them legal
and practical independence in fulfilling their duties (Jenks, International Immunities
17 [1961]).
Immunity is necessary to assure unimpeded performance of their functions. The
purpose is "to shield the affairs of international organizations, in accordance with
international practice, from political pressure or control by the host country to the
prejudice of member States of the organization, and to ensure the unhampered
performance of their functions" (International Catholic Migration Commission v.
Calleja, 190 SCRA 130 [1990]).
In the International Catholic Migration Commission case, we held that there is no
conflict between the constitutional duty of the State to protect the rights of workers
and to promote their welfare, and the grant of immunity to international
organizations. Clauses on jurisdictional immunity are now standard in the charters of
the international organizations to guarantee the smooth discharge of their functions.
14
The diplomatic immunity of private respondent was sufficiently established by the
letter of the Department of Foreign Affairs, recognizing and confirming the immunity
of UNRFNRE in accordance with the 1946 Convention on Privileges and Immunities
of the United Nations where the Philippine Government was a party. The issue
whether an international organization is entitled to diplomatic immunity is a
"political question" and such determination by the executive branch is conclusive on
the courts and quasi-judicial agencies (The Holy See v. Hon. Eriberto U. Rosario, Jr.,
G.R. No. 101949, Dec. 1, 1994; International Catholic Migration Commission v.
Calleja, supra).

Our courts can only assume jurisdiction over private respondent if it expressly
waived its immunity, which is not so in the case at bench (Convention on the
Privileges and Immunities of the Specialized Agencies of the United Nations, Art. III,
Sec. 4).

Private respondent is not engaged in a commercial venture in the Philippines. Its

presence here is by virtue of a joint project entered into by the Philippine
Government and the United Nations for mineral exploration in Dinagat Island. Its
mission is not to exploit our natural resources and gain pecuniarily thereby but to
help improve the quality of life of the people, including that of petitioners.

This is not to say that petitioner have no recourse. Section 31 of the Convention on
the Privileges and Immunities of the Specialized Agencies of the United Nations
states that "each specialized agency shall make a provision for appropriate modes of
settlement of: (a) disputes arising out of contracts or other disputes of private
character to which the specialized agency is a party."

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

15
[G.R. No. 113191. September 18, 1996]
DEPARTMENT OF FOREIGN AFFAIRS, petitioner, vs. NATIONAL LABOR RELATIONS
COMMISSION, HON. LABOR ARBITER NIEVES V. DE CASTRO and JOSE C. MAGNAYI,
respondents.
DECISION
VITUG, J.:
The questions raised in the petition for certiorari are a few coincidental matters
relative to the diplomatic immunity extended to the Asian Development Bank
("ADB").
On 27 January 1993, private respondent initiated NLRC-NCR Case No. 00-01-0690-93
for his alleged illegal dismissal by ADB and the latter's violation of the "labor-only"
contracting law. Two summonses were served, one sent directly to the ADB and the
other through the Department of Foreign Affairs ("DFA"), both with a copy of the
complaint. Forthwith, the ADB and the DFA notified respondent Labor Arbiter that
the ADB, as well as its President and Officers, were covered by an immunity from
legal process except for borrowings, guaranties or the sale of securities pursuant to
Article 50(1) and Article 55 of the Agreement Establishing the Asian Development
Bank (the "Charter") in relation to Section 5 and Section 44 of the Agreement
Between The Bank And The Government Of The Philippines Regarding The Bank's
Headquarters (the "Headquarters Agreement").
The Labor Arbiter took cognizance of the complaint on the impression that the ADB
had waived its diplomatic immunity from suit. In time, the Labor Arbiter rendered his
decision, dated 31 August 1993, that concluded:
"WHEREFORE, above premises considered, judgment is hereby rendered declaring
the complainant as a regular employee of respondent ADB, and the termination of
his services as illegal. Accordingly, respondent Bank is hereby ordered:
"1. To immediately reinstate the complainant to his former position effective
September 16, 1993;
"2. To pay complainant full backwages from December 1, 1992 to September 15,
1993 in the amount of P42,750.00 (P4,500.00 x 9 months);
"3. And to pay complainants other benefits and without loss of seniority rights and
other privileges and benefits due a regular employee of Asian Development Bank
from the time he was terminated on December 31, 1992;
"4. To pay 10% attorney's fees of the total entitlements."i
The ADB did not appeal the decision. Instead, on 03 November 1993, the DFA
referred the matter to the National Labor Relations Commission ("NLRC"); in its
referral, the DFA sought a "formal vacation of the void judgment." Replying to the
letter, the NLRC Chairman, wrote:
"The undersigned submits that the request for the 'investigation' of Labor Arbiter
Nieves de Castro, by the National Labor Relations Commission, has been erroneously
premised on Art. 218(c) of the Labor Code, as cited in the letter of Secretary Padilla,
considering that the provision deals with 'a question, matter or controversy within its
(the Commission) jurisdiction' obviously referring to a labor dispute within the ambit
of Art. 217 (on jurisdiction of Labor Arbiters and the Commission over labor cases).
"The procedure, in the adjudication of labor cases, including raising of defenses, is
prescribed by law. The defense of immunity could have been raised before the Labor
Arbiter by a special appearance which, naturally, may not be considered as a waiver
of the very defense being raised. Any decision thereafter is subject to legal remedies,
including appeals to the appropriate division of the Commission and/or a petition for
certiorari with the Supreme Court, under Rule 65 of the Rules of Court. Except where
an appeal is seasonably and properly made, neither the Commission nor the
undersigned may review, or even question, the propriety of any decision by a Labor
Arbiter. Incidentally, the Commission sits en banc (all fifteen Commissioners) only to
promulgate rules of procedure or to formulate policies (Art. 213, Labor Code).
"On the other hand, while the undersigned exercises 'administrative supervision over
the Commission and its regional branches and all its personnel, including the
Executive Labor Arbiters and Labor Arbiters' (penultimate paragraph, Art. 213, Labor
Code), he does not have the competence to investigate or review any decision of a
Labor Arbiter. However, on the purely administrative aspect of the decision-making
process, he may cause that an investigation be made of any misconduct,
malfeasance or misfeasance, upon complaint properly made.
16
"If the Department of Foreign Affairs feels that the action of Labor Arbiter Nieves de
Castro constitutes misconduct, malfeasance or misfeasance, it is suggested that an
appropriate complaint be lodged with the Office of the Ombudsman.
"Thank you for your kind attention."ii
Dissatisfied, the DFA lodged the instant petition for certiorari. In this Court's
resolution of 31 January 1994, respondents were required to comment. Petitioner
was later constrained to make an application for a restraining order and/or writ of
preliminary injunction following the issuance, on 16 March 1994, by the Labor
Arbiter of a writ of execution. In a resolution, dated 07 April 1994, the Court issued
the temporary restraining order prayed for.
The Office of the Solicitor General (OSG), in its comment of 26 May 1994, initially
assailed the claim of immunity by the ADB. Subsequently, however, it submitted a
Manifestation (dated 20 June 1994) stating, among other things, that "after a
thorough review of the case and the records," it became convinced that ADB,
indeed, was correct in invoking its immunity from suit under the Charter and the
Headquarters Agreement.
The Court is of the same view.
Article 50(1) of the Charter provides:
The Bank shall enjoy immunity from every form of legal process, except in cases
arising out of or in connection with the exercise of its powers to borrow money, to
guarantee obligations, or to buy and sell or underwrite the sale of securities.iii
Under Article 55 thereof -
All Governors, Directors, alternates, officers and employees of the Bank, including
experts performing missions for the Bank:
(1) shall be immune from legal process with respect of acts performed by them
in their official capacity, except when the Bank waives the immunity.iv
Like provisions are found in the Headquarters Agreement. Thus, its Section 5 reads:
"The Bank shall enjoy immunity from every form of legal process, except in cases
arising out of, or in connection with, the exercise of its powers to borrow money, to
guarantee obligations, or to buy and sell or underwrite the sale of securities.v
And, with respect to certain officials of the bank, Section 44 of the agreement states:
Governors, other representatives of Members, Directors, the President, Vice-
President and executive officers as may be agreed upon between the Government
and the Bank shall enjoy, during their stay in the Republic of the Philippines in
connection with their official duties with the Bank:
xxx xxx xxx
(b) Immunity from legal process of every kind in respect of words spoken or
written and all acts done by them in their official capacity.vi
The above stipulations of both the Charter and Headquarters Agreement should be
able, nay well enough, to establish that, except in the specified cases of borrowing
and guarantee operations, as well as the purchase, sale and underwriting of
securities, the ADB enjoys immunity from legal process of every form. The Banks
officers, on their part, enjoy immunity in respect of all acts performed by them in
their official capacity. The Charter and the Headquarters Agreement granting these
immunities and privileges are treaty covenants and commitments voluntarily
assumed by the Philippine government which must be respected.
In World Health Organization vs. Aquino,vii we have declared:
It is a recognized principle of international law and under our system of separation of
powers that diplomatic immunity is essentially a political question and courts should
refuse to look beyond a determination by the executive branch of the government,
and where the plea of diplomatic immunity is recognized and affirmed by the
executive branch of the government x x x it is then the duty of the courts to accept
the claim of immunity upon appropriate suggestion by the principal law officer of the
government, x x x or other officer acting under his direction. Hence, in adherence to
the settled principle that courts may not so exercise their jurisdiction x x x as to
embarrass the executive arm of the government in conducting foreign relations, it is
accepted doctrine that `in such cases the judicial department of government follows
the action of the political branch and will not embarrass the latter by assuming an
antagonistic jurisdiction.'"viii
To the same effect is the decision in International Catholic Migration Commission vs.
Calleja,ix which has similarly deemed the Memoranda of the Legal Adviser of the
Department of Foreign Affairs to be "a categorical recognition by the Executive
Branch of Government that ICMC x x x enjoy(s) immunities accorded to international
17
organizations" and which determination must be held "conclusive upon the Courts in community, let alone the negative implication of such a suit on the official
order not to embarrass a political department of Government. In the instant case, relationship of the Philippine government with the ADB.
the filing of the petition by the DFA, in behalf of ADB, is itself an affirmance of the
government's own recognition of ADB's immunity. "For the Secretary of Foreign Affairs

Being an international organization that has been extended a diplomatic status, the (Sgd.)
ADB is independent of the municipal law.x In Southeast Asian Fisheries Development
"SIME D. HIDALGO
Center vs. Acosta,xi the Court has cited with approval the opinionxii of the then
Minister of Justice; thus - Assistant Secretary"xiv

"One of the basic immunities of an international organization is immunity from local The Office of the President, likewise, has issued on 18 May 1993 a letter to the
jurisdiction, i.e., that it is immune from the legal writs and processes issued by the Secretary of Labor, viz:
tribunals of the country where it is found. (See Jenks, Id., pp. 37-44). The obvious
reason for this is that the subjection of such an organization to the authority of the "Dear Secretary Confesor,
local courts would afford a convenient medium thru which the host government may
"I am writing to draw your attention to a case filed by a certain Jose C. Magnayi
interfere in their operations or even influence or control its policies and decisions of
against the Asian Development Bank and its President, Kimimasa Tarumizu, before
the organization; besides, such subjection to local jurisdiction would impair the
the National Labor Relations Commission, National Capital Region Arbitration Board
capacity of such body to discharge its responsibilities impartially on behalf of its
(NLRC NCR Case No. 00-01690-93).
member-states."xiii
"Last March 8, the Labor Arbiter charged with the case, Ms. Nieves V. de Castro,
Contrary to private respondent's assertion, the claim of immunity is not here being
addressed a Notice of Resolution/Order to the Bank which brought it to the attention
raised for the first time; it has been invoked before the forum of origin through
of the Department of Foreign Affairs on the ground that the service of such notice
communications sent by petitioner and the ADB to the Labor Arbiter, as well as
was in violation of the RP-ADB Headquarters Agreement which provided, inter-alia,
before the NLRC following the rendition of the questioned judgment by the Labor
for the immunity of the Bank, its President and officers from every form of legal
Arbiter, but evidently to no avail.
process, except only, in cases of borrowings, guarantees or the sale of securities.
In its communication of 27 May 1993, the DFA, through the Office of Legal Affairs,
"The Department of Foreign Affairs, in turn, informed Labor Arbiter Nieves V. de
has advised the NLRC:
Castro of this fact by letter dated March 22, copied to you.
"Respectfully returned to the Honorable Domingo B. Mabazza, Labor Arbitration
"Despite this, the labor arbiter in question persisted to send summons, the latest
Associate, National Labor Relations Commission, National Capital Judicial Region,
dated May 4, herewith attached, regarding the Magnayi case.
Arbitration Branch, Associated bank Bldg., T.M. Kalaw St., Ermita, Manila, the
attached Notice of Hearing addressed to the Asian Development Bank, in connection "The Supreme Court has long settled the matter of diplomatic immunities. In WHO
with the aforestated case, for the reason stated in the Department's 1st vs. Aquino, SCRA 48, it ruled that courts should respect diplomatic immunities of
Indorsement dated 23 March 1993, copy attached, which is self-explanatory. foreign officials recognized by the Philippine government. Such decision by the
Supreme Court forms part of the law of the land.
"In view of the fact that the Asian Development Bank (ADB) invokes its immunity
which is sustained by the Department of Foreign Affairs, a continuous hearing of this "Perhaps you should point out to Labor Arbiter Nieves V. de Castro that ignorance of
case erodes the credibility of the Philippine government before the international the law is a ground for dismissal.

18
"Very truly yours,
(Sgd.)
JOSE B. ALEJANDRINO
Chairman, PCC-ADB"xv
Private respondent argues that, by entering into service contracts with different
private companies, ADB has descended to the level of an ordinary party to a
commercial transaction giving rise to a waiver of its immunity from suit. In the case
of Holy See vs. Hon. Rosario, Jr.,xvi the Court has held:
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 act or acts jure gestionis.
xxx xxx xxx
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.xvii
The service contracts referred to by private respondent have not been intended by
the ADB for profit or gain but are official acts over which a waiver of immunity would
not attach.
With regard to the issue of whether or not the DFA has the legal standing to file the
present petition, and whether or not petitioner has regarded the basic rule that
certiorari can be availed of only when there is no appeal nor plain, speedy and
adequate remedy in the ordinary course of law, we hold both in the affirmative.
The DFA's function includes, among its other mandates, the determination of
persons and institutions covered by diplomatic immunities, a determination which,
when challenged, entitles it to seek relief from the court so as not to seriously impair
the conduct of the country's foreign relations. The DFA must be allowed to plead its
case whenever necessary or advisable to enable it to help keep the credibility of the
Philippine government before the international community. When international
agreements are concluded, the parties thereto are deemed to have likewise
accepted the responsibility of seeing to it that their agreements are duly regarded. In
our country, this task falls principally on the DFA as being the highest executive
department with the competence and authority to so act in this aspect of the
international arena.xviii In Holy See vs. Hon. Rosario, Jr.,xix this Court has explained
the matter in good detail; viz:
"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 vs. 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 vs. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs
sent the trial court a telegram to that effect. In Baer vs. 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
19
City, Zambales, a 'suggestion' to respondent Judge. The Solicitor General embodied
the 'suggestion' in a manifestation and memorandum as amicus curiae.

"In the case at bench, the Department of Foreign Affairs, through the Office of Legal
Affairs moved with this Court to be allowed to intervene on the side of petitioner.
The Court allowed the said Department to file its memorandum in support of
petitioner's claim of sovereign immunity.

"In some cases, the defense of sovereign immunity was submitted directly to the
local courts by the respondents through their private counsels (Raquiza vs. Bradford,
75 Phil. 50 [1945]; Miquiabas vs. Philippine-Ryukyus Command, 80 Phil. 262 [1948];
United States of America vs. Guinto, 182 SCRA 644 [1990] and companion cases). In
cases where the foreign states bypass the Foreign Office, the courts can inquire into
the facts and make their own determination as to the nature of the acts and
transactions involved."xx

Relative to the propriety of the extraordinary remedy of certiorari, the Court has,
under special circumstances, so allowed and entertained such a petition when (a)
the questioned order or decision is issued in excess of or without jurisdiction,xxi or
(b) where the order or decision is a patent nullity,xxii which, verily, are the
circumstances that can be said to obtain in the present case. When an adjudicator is
devoid of jurisdiction on a matter before him, his action that assumes otherwise
would be a clear nullity.

WHEREFORE, the petition for certiorari is GRANTED, and the decision of the Labor
Arbiter, dated 31 August 1993 is VACATED for being NULL AND VOID. The temporary
restraining order issued by this Court on 07 April 1994 is hereby made permanent.
No costs.

SO ORDERED.

20
G.R. No. 125865 March 26, 2001
JEFFREY LIANG (HUEFENG), petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
RESOLUTION
YNARES-SANTIAGO, J.:
This resolves petitioner's Motion for Reconsideration of our Decision dated January
28, 2000, denying the petition for review.
The Motion is anchored on the following arguments:
1) THE DFA'S DETERMINATION OF IMMUNITY IS A POLITICAL QUESTION TO BE MADE
BY THE EXECUTIVE BRANCH OF THE GOVERNMENT AND IS CONCLUSIVE UPON THE
COURTS.
2) THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS ABSOLUTE.
3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN DEVELOPMENT BANK
(ADB).
4) DUE PROCESS WAS FULLY AFFORDED THE COMPLAINANT TO REBUT THE DFA
PROTOCOL.
5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY MADE A FINDING OF FACT
ON THE MERITS, NAMELY, THE SLANDERING OF A PERSON WHICH PREJUDGED
PETITIONER'S CASE BEFORE THE METROPOLITAN TRIAL COURT (MTC)-
MANDALUYONG.
6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT APPLICABLE TO
THIS CASE.
This case has its origin in two criminal Informations1 for grave oral defamation filed
against petitioner, a Chinese national who was employed as an Economist by the
Asian Development Bank (ADB), alleging that on separate occasions on January 28
and January 31, 1994, petitioner allegedly uttered defamatory words to Joyce V.
Cabal, a member of the clerical staff of ADB. On April 13, 1994, the Metropolitan
Trial Court of Mandaluyong City, acting pursuant to an advice from the Department
of Foreign Affairs that petitioner enjoyed immunity from legal processes, dismissed
the criminal Informations against him. On a petition for certiorari and mandamus
filed by the People, the Regional Trial Court of Pasig City, Branch 160, annulled and
set aside the order of the Metropolitan Trial Court dismissing the criminal cases.2
Petitioner, thus, brought a petition for review with this Court. On January 28, 2000,
we rendered the assailed Decision denying the petition for review. We ruled, in
essence, that the immunity granted to officers and staff of the ADB is not absolute; it
is limited to acts performed in an official capacity. Furthermore, we held that the
immunity cannot cover the commission of a crime such as slander or oral defamation
in the name of official duty.
On October 18, 2000, the oral arguments of the parties were heard. This Court also
granted the Motion for Intervention of the Department of Foreign Affairs.
Thereafter, the parties were directed to submit their respective memorandum.
For the most part, petitioner's Motion for Reconsideration deals with the diplomatic
immunity of the ADB, its officials and staff, from legal and judicial processes in the
Philippines, as well as the constitutional and political bases thereof. It should be
made clear that nowhere in the assailed Decision is diplomatic immunity denied,
even remotely. The issue in this case, rather, boils down to whether or not the
statements allegedly made by petitioner were uttered while in the performance of
his official functions, in order for this case to fall squarely under the provisions of
Section 45 (a) of the "Agreement Between the Asian Development Bank and the
Government of the Republic of the Philippines Regarding the Headquarters of the
Asian Development Bank," to wit:
Officers and staff of the Bank, including for the purpose of this Article experts and
consultants performing missions for the Bank, shall enjoy the following privileges and
immunities:
(a) Immunity from legal process with respect to acts performed by them in their
official capacity except when the Bank waives the immunity.
After a careful deliberation of the arguments raised in petitioner's and intervenor's
Motions for Reconsideration, we find no cogent reason to disturb our Decision of
January 28, 2000. As we have stated therein, the slander of a person, by any stretch,
cannot be considered as falling within the purview of the immunity granted to ADB
officers and personnel. Petitioner argues that the Decision had the effect of
21
prejudging the criminal case for oral defamation against him. We wish to stress that
it did not. What we merely stated therein is that slander, in general, cannot be
considered as an act performed in an official capacity. The issue of whether or not
petitioner's utterances constituted oral defamation is still for the trial court to
determine.
WHEREFORE, in view of the foregoing, the Motions for Reconsideration filed by
petitioner and intervenor Department of Foreign Affairs are DENIED with FINALITY.
SO ORDERED.
Concurring Opinions
PUNO, J., concurring:
For resolution is the Motion for Reconsideration filed by petitioner Jeffrey Liang of
this Court's decision dated January 28, 2000 which denied the petition for review.
We there held that: the protocol communication of the Department of Foreign
Affairs to the effect that petitioner Liang is covered by immunity is only preliminary
and has no binding effect in courts; the immunity provided for under Section 45(a) of
the Headquarters Agreement is subject to the condition that the act be done in an
"official capacity"; that slandering a person cannot be said to have been done in an
"official capacity" and, hence, it is not covered by the immunity agreement; under
the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming
petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state
except in the case of an action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving state outside his official functions;
the commission of a crime is not part of official duty; and that a preliminary
investigation is not a matter of right in cases cognizable by the Metropolitan Trial
Court.
Petitioner's motion for reconsideration is anchored on the following arguments:
1. The DFA's determination of immunity is a political question to be made by the
executive branch of the government and is conclusive upon the courts;
2. The immunity of international organizations is absolute;
3. The immunity extends to all staff of the Asian Development Bank (ADB);
4. Due process was fully accorded the complainant to rebut the DFA protocol;
5. The decision of January 28, 2000 erroneously made a finding of fact on the merits,
namely, the slandering of a person which prejudged petitioner's case before the
Metropolitan Trial Court (MTC) Mandaluyong; and
6. The Vienna Convention on diplomatic relations is not applicable to this case.
Petitioner contends that a determination of a person's diplomatic immunity by the
Department of Foreign Affairs is a political question. It is solely within the prerogative
of the executive department and is conclusive upon the courts. In support of his
submission, petitioner cites the following cases: WHO vs. Aquino;1 International
Catholic Migration Commission vs. Calleja;2 The Holy See vs. Rosario, Jr.;3 Lasco vs.
United Nations;4 and DFA vs. NLRC.5
It is further contended that the immunity conferred under the ADB Charter and the
Headquarters Agreement is absolute. It is designed to safeguard the autonomy and
independence of international organizations against interference from any authority
external to the organizations. It is necessary to allow such organizations to discharge
their entrusted functions effectively. The only exception to this immunity is when
there is an implied or express waiver or when the immunity is expressly limited by
statute. The exception allegedly has no application to the case at bar.
Petitioner likewise urges that the international organization's immunity from local
jurisdiction empowers the ADB alone to determine what constitutes "official acts"
and the same cannot be subject to different interpretations by the member states. It
asserts that the Headquarters Agreement provides for remedies to check abuses
against the exercise of the immunity. Thus, Section 49 states that the "Bank shall
waive the immunity accorded to any person if, in its opinion, such immunity would
impede the course of justice and the waiver would not prejudice the purposes for
which the immunities are accorded." Section 51 allows for consultation between the
government and the Bank should the government consider that an abuse has
occurred. The same section provides the mechanism for a dispute settlement
regarding, among others, issues of interpretation or application of the agreement.
Petitioner's argument that a determination by the Department of Foreign Affairs that
he is entitled to diplomatic immunity is a political question binding on the courts, is
anchored on the ruling enunciated in the case of WHO, et al. vs. Aquino, et al.,6 viz:
22
"It is a recognized principle of international law and under our system of separation
of powers that diplomatic immunity is essentially a political question and courts
should refuse to look beyond a determination by the executive branch of the
government, and where the plea of diplomatic immunity is recognized and affirmed
by the executive branch of the government as in the case at bar, it is then the duty of
the courts to accept the claim of immunity upon appropriate suggestion by the
principal law officer of the government, the Solicitor General in this case, or other
officer acting under his direction. Hence, in adherence to the settled principle that
courts may not so exercise their jurisdiction by seizure and detention of property, as
to embarrass the executive arm of the government in conducting foreign relations, it
is accepted doctrine that in such cases the judicial department of the government
follows the action of the political branch and will not embarrass the latter by
assuming an antagonistic jurisdiction."
This ruling was reiterated in the subsequent cases of International Catholic Migration
Commission vs. Calleja;7 The Holy See vs. Rosario, Jr.;8 Lasco vs. UN;9 and DFA vs.
NLRC.10
The case of WHO vs. Aquino involved the search and seizure of personal effects of
petitioner Leonce Verstuyft, an official of the WHO. Verstuyft was certified to be
entitled to diplomatic immunity pursuant to the Host Agreement executed between
the Philippines and the WHO.
ICMC vs. Calleja concerned a petition for certification election filed against ICMC and
IRRI. As international organizations, ICMC and IRRI were declared to possess
diplomatic immunity. It was held that they are not subject to local jurisdictions. It
was ruled that the exercise of jurisdiction by the Department of Labor over the case
would defeat the very purpose of immunity, which is to shield the affairs of
international organizations from political pressure or control by the host country and
to ensure the unhampered performance of their functions.
Holy See v. Rosario, Jr. involved an action for annulment of sale of land against the
Holy See, as represented by the Papal Nuncio. The Court upheld the petitioner's
defense of sovereign immunity. It ruled that where a diplomatic envoy is granted
immunity from the civil and administrative jurisdiction of the receiving state over any
real action relating to private immovable property situated in the territory of the
receiving state, which the envoy holds on behalf of the sending state for the
purposes of the mission, with all the more reason should immunity be recognized as
regards the sovereign itself, which in that case is the Holy See.
In Lasco vs. United Nations, the United Nations Revolving Fund for Natural Resources
Exploration was sued before the NLRC for illegal dismissal. The Court again upheld
the doctrine of diplomatic immunity invoked by the Fund.
Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian
Development Bank. Pursuant to its Charter and the Headquarters Agreement, the
diplomatic immunity of the Asian Development Bank was recognized by the Court.
It bears to stress that all of these cases pertain to the diplomatic immunity enjoyed by
international organizations. Petitioner asserts that he is entitled to the same
diplomatic immunity and he cannot be prosecuted for acts allegedly done in the
exercise of his official functions.
The term "international organizations" —
"is generally used to describe an organization set up by agreement between two or
more states. Under contemporary international law, such organizations are endowed
with some degree of international legal personality such that they are capable of
exercising specific rights, duties and powers. They are organized mainly as a means
for conducting general international business in which the member states have an
interest."11
International public officials have been defined as:
". . . persons who, on the basis of an international treaty constituting a particular
international community, are appointed by this international community, or by an
organ of it, and are under its control to exercise, in a continuous way, functions in
the interest of this particular international community, and who are subject to a
particular personal status."12
"Specialized agencies" are international organizations having functions in particular
fields, such as posts, telecommunications, railways, canals, rivers, sea transport, civil
aviation, meteorology, atomic energy, finance, trade, education and culture, health
and refugees.13
Issues
1. Whether petitioner Liang, as an official of an international organization, is entitled
to diplomatic immunity;
23
2. Whether an international official is immune from criminal jurisdiction for all acts,
whether private or official;
3. Whether the authority to determine if an act is official or private is lodged in the
courts;
4. Whether the certification by the Department of Foreign Affairs that petitioner is
covered by immunity is a political question that is binding and conclusive on the
courts.
Discussion
I
A perusal of the immunities provisions in various international conventions and
agreements will show that the nature and degree of immunities vary depending on
who the recipient is. Thus:
1. Charter of the United Nations
"Article 105 (1): The Organization shall enjoy in the territory of each of its Members
such privileges and immunities as are necessary for the fulfillment of its purposes.
Article 105 (2): Representatives of the Members of the United Nations and officials
of the Organization shall similarly enjoy such privileges and immunities as are
necessary for the independent exercise of their functions in connection with the
Organization."
2. Convention on the Privileges and Immunities of the United Nations
"Section 2: The United Nations, its property and assets wherever located and by
whomsoever held, shall enjoy immunity from every form of legal process except
insofar as in any particular case it has expressly waived its immunity. It is, however,
understood that no waiver of immunity shall extend to any measure of execution.
xxx xxx xxx
Section 11 (a): Representatives of Members to the principal and subsidiary organs of
the United Nations . . shall . . . enjoy . . . immunity from personal arrest or detention
and from seizure of their personal baggage, and, in respect of words spoken or
written and all acts done by them in their capacity as representatives, immunity from
legal process of every kind.
xxx xxx xxx
Section 14: Privileges and immunities are accorded to the representatives of
Members not for the personal benefit of the individuals themselves, but in order to
safeguard the independent exercise of their functions in connection with the United
Nations. Consequently, a Member not only has the right but is under a duty to waive
the immunity of its representative in any case where in the opinion of the Member
the immunity would impede the course of justice, and it can be waived without
prejudice to the purpose for which the immunity is accorded.
xxx xxx xxx
Section 18 (a): Officials of the United Nations shall be immune from legal process in
respect of words spoken or written and all acts performed by them in their official
capacity.
xxx xxx xxx
Section 19: In addition to the immunities and privileges specified in Section 18, the
Secretary-General and all Assistant Secretaries-General shall be accorded in respect
of themselves, their spouses and minor children, the privileges and immunities,
exemptions and facilities accorded to diplomatic envoys, in accordance with
international law.
Section 20: Privileges and immunities are granted to officials in the interest of the
United Nations and not for the personal benefit of the individuals themselves. The
Secretary-General shall have the right and the duty to waive the immunity of any
official in any case where, in his opinion, the immunity would impede the course of
justice and can be waived without prejudice to the interests of the United Nations.
xxx xxx xxx
Section 22: Experts . . . performing missions for the United Nations . . . shall be
accorded: (a) immunity from personal arrest or detention and from seizure of their
personal baggage; (b) in respect of words spoken or written and acts done by them
in the course of the performance of their mission, immunity from legal process of
every kind."
24
3. Vienna Convention on Diplomatic Relations
"Article 29: The person of a diplomatic agent shall be inviolable. He shall not be liable
to any form of arrest or detention. The receiving State shall treat him with due
respect and shall take all appropriate steps to prevent any attack on his person,
freedom, or dignity.
xxx xxx xxx
Article 31 (1): A diplomatic agent shall enjoy immunity from the criminal jurisdiction
of the receiving State. He shall also enjoy immunity from its civil and administrative
jurisdiction, except in certain cases.
xxx xxx xxx
Article 38 (1): Except in so far as additional privileges and immunities may be granted
by the receiving State, a diplomatic agent who is a national of or permanently a
resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in
respect of official acts performed in the exercise of his functions."
4. Vienna Convention on Consular Relations
"Article 41 (1): Consular officials shall not be liable to arrest or detention pending
trial, except in the case of a grave crime and pursuant to a decision by the
competent judicial authority.
xxx xxx xxx
Article 43 (1): Consular officers and consular employees shall not be amenable to the
jurisdiction of the judicial or administrative authorities of the receiving State in
respect of acts performed in the exercise of consular functions.
Article 43 (2): The provisions of paragraph 1 of this Article shall not, however, apply
in respect of a civil action either: (a) arising out of a contract concluded by a consular
officer or a consular employee in which he did not contract expressly or impliedly as
an agent of the sending State; or (b) by a third party for damage arising from an
accident in the receiving State caused by a vehicle, vessel or aircraft."
5. Convention on the Privileges and Immunities of the Specialized Agencies
"Section 4: The specialized agencies, their property and assets, wherever located and
by whomsoever held, shall enjoy immunity from every form of legal process except
in so far as in any particular case they have expressly waived their immunity. It is,
however, understood that no waiver of immunity shall extend to any measure of
execution.
Section 13 (a): Representatives of members at meetings convened by a specialized
agency shall, while exercising their functions and during their journeys to and from
the place of meeting, enjoy immunity from personal arrest or detention and from
seizure of their personal baggage, and in respect of words spoken or written and all
acts done by them in their official capacity, immunity from legal process of every
kind.
xxx xxx xxx
Section 19 (a): Officials of the specialized agencies shall be immune from legal
process in respect of words spoken or written and all acts performed by them in
their official capacity.
xxx xxx xxx
Section 21: In addition to the immunities and privileges specified in sections 19 and
20, the executive head of each specialized agency, including a any official acting on
his behalf during his absence from duty, shall be accorded in respect of himself, his
spouse and minor children, the privileges and immunities, exemptions and facilities
accorded to diplomatic envoys, in accordance with international law."
6. Charter of the ADB
"Article 50 (1): The Bank shall enjoy immunity from every form of legal process,
except in cases arising out of or in connection with the exercise of its powers to
borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of
securities, in which cases actions may be brought against the Bank in a court of
competent jurisdiction in the territory of a country in which the Bank has its principal
or a branch office, or has appointed an agent for the purpose of accepting service or
notice of process, or has issued or guaranteed securities.
xxx xxx xxx
25
Article 55 (i): All Governors, Directors, alternates, officers and employees of the
Bank, including experts performing missions for the Bank shall be immune from legal
process with respect to acts performed by them in their official capacity, except
when the Bank waives the immunity."
7. ADB Headquarters Agreement
"Section 5: The Bank shall enjoy immunity from every form of legal process, except in
cases arising out of or in connection with the exercise of its powers to borrow
money, to guarantee obligations, or to buy and sell or underwrite the sale of
securities, in which cases actions may be brought against the Bank in a court of
competent jurisdiction in the Republic of the Philippines.
xxx xxx xxx
Section 44: Governors, other representatives of Members, Directors, the President,
Vice-President and executive officers as may be agreed upon between the
Government and the Bank shall enjoy, during their stay in the Republic of the
Philippines in connection with their official duties with the Bank: (a) immunity from
personal arrest or detention and from seizure of their personal baggage; (b)
immunity from legal process of every kind in respect of words spoken or written and
all acts done by them in their official capacity; and (c) in respect of other matters not
covered in (a) and (b) above, such other immunities, exemptions, privileges and
facilities as are enjoyed by members of diplomatic missions of comparable rank,
subject to corresponding conditions and obligations.
Section 45 (a): Officers and staff of the Bank, including for the purposes of this Article
experts and consultants performing missions for the Bank, shall enjoy . . . immunity
from legal process with respect to acts performed by them in their official capacity,
except when the Bank waives the immunity."
II
There are three major differences between diplomatic and international immunities.
Firstly, one of the recognized limitations of diplomatic immunity is that members of
the diplomatic staff of a mission may be appointed from among the nationals of the
receiving State only with the express consent of that State; apart from inviolability
and immunity from jurisdiction in respect of official acts performed in the exercise of
their functions, nationals enjoy only such privileges and immunities as may be
granted by the receiving State. International immunities may be specially important
in relation to the State of which the official is a national. Secondly, the immunity of a
diplomatic agent from the jurisdiction of the receiving State does not exempt him
from the jurisdiction of the sending State; in the case of international immunities
there is no sending State and an equivalent for the jurisdiction of the Sending State
therefore has to be found either in waiver of immunity or in some international
disciplinary or judicial procedure. Thirdly, the effective sanctions which secure
respect for diplomatic immunity are the principle of reciprocity and the danger of
retaliation by the aggrieved State; international immunities enjoy no similar
protection.14
The generally accepted principles which are now regarded as the foundation of
international immunities are contained in the ILO Memorandum, which reduced them
in three basic propositions, namely: (1) that international institutions should have a
status which protects them against control or interference by any one government in
the performance of functions for the effective discharge of which they are
responsible to democratically constituted international bodies in which all the
nations concerned are represented; (2) that no country should derive any financial
advantage by levying fiscal charges on common international funds; and (3) that the
international organization should, as a collectivity of States Members, be accorded
the facilities for the conduct of its official business customarily extended to each
other by its individual member States. The thinking underlying these propositions is
essentially institutional in character. It is not concerned with the status, dignity or
privileges of individuals, but with the elements of functional independence necessary
to free international institutions from national control and to enable them to
discharge their responsibilities impartially on behalf of all their members.15
III
Positive international law has devised three methods of granting privileges and
immunities to the personnel of international organizations. The first is by simple
conventional stipulation, as was the case in the Hague Conventions of 1899 and
1907. The second is by internal legislation whereby the government of a state, upon
whose territory the international organization is to carry out its functions, recognizes
the international character of the organization and grants, by unilateral measures,
certain privileges and immunities to better assure the successful functioning of the
organization and its personnel. In this situation, treaty obligation for the state in
question to grant concessions is lacking. Such was the case with the Central
Commission of the Rhine at Strasbourg and the International Institute of Agriculture
at Rome. The third is a combination of the first two. In this third method, one finds a
26
conventional obligation to recognize a certain status of an international organization
and its personnel, but the status is described in broad and general terms. The
specific definition and application of those general terms are determined by an
accord between the organization itself and the state wherein it is located. This is the
case with the League of Nations, the Permanent Court of Justice, and the United
Nations.16
The Asian Development Bank and its Personnel fall under this third category.
There is a connection between diplomatic privileges and immunities and those
extended to international officials. The connection consists in the granting, by
contractual provisions, of the relatively well-established body of diplomatic privileges
and immunities to international functionaries. This connection is purely historical.
Both types of officials find the basis of their special status in the necessity of
retaining functional independence and freedom from interference by the state of
residence. However, the legal relationship between an ambassador and the state to
which he is accredited is entirely different from the relationship between the
international official and those states upon whose territory he might carry out his
functions.17
The privileges and immunities of diplomats and those of international officials rest
upon different legal foundations. Whereas those immunities awarded to diplomatic
agents are a right of the sending state based on customary international law, those
granted to international officials are based on treaty or conventional law. Customary
international law places no obligation on a state to recognize a special status of an
international official or to grant him jurisdictional immunities. Such an obligation can
only result from specific treaty provisions.18
The special status of the diplomatic envoy is regulated by the principle of reciprocity
by which a state is free to treat the envoy of another state as its envoys are treated
by that state. The juridical basis of the diplomat's position is firmly established in
customary international law. The diplomatic envoy is appointed by the sending State
but it has to make certain that the agreement of the receiving State has been given
for the person it proposes to accredit as head of the mission to that State. 19
The staff personnel of an international organization — the international officials —
assume a different position as regards their special status. They are appointed or
elected to their position by the organization itself, or by a competent organ of it;
they are responsible to the organization and their official acts are imputed to it. The
juridical basis of their special position is found in conventional law,20 since there is no
established basis of usage or custom in the case of the international official.
Moreover, the relationship between an international organization and a member-
state does not admit of the principle of reciprocity,21 for it is contradictory to the
basic principle of equality of states. An international organization carries out
functions in the interest of every member state equally. The international official
does not carry out his functions in the interest of any state, but in serving the
organization he serves, indirectly, each state equally. He cannot be, legally, the
object of the operation of the principle of reciprocity between states under such
circumstances. It is contrary to the principle of equality of states for one state
member of an international organization to assert a capacity to extract special
privileges for its nationals from other member states on the basis of a status
awarded by it to an international organization. It is upon this principle of sovereign
equality that international organizations are built.
It follows from this same legal circumstance that a state called upon to admit an
official of an international organization does not have a capacity to declare him
persona non grata.
The functions of the diplomat and those of the international official are quite
different. Those of the diplomat are functions in the national interest. The task of the
ambassador is to represent his state, and its specific interest, at the capital of
another state. The functions of the international official are carried out in the
international interest. He does not represent a state or the interest of any specific
state. He does not usually "represent" the organization in the true sense of that
term. His functions normally are administrative, although they may be judicial or
executive, but they are rarely political or functions of representation, such as those
of the diplomat.
There is a difference of degree as well as of kind. The interruption of the activities of
a diplomatic agent is likely to produce serious harm to the purposes for which his
immunities were granted. But the interruption of the activities of the international
official does not, usually, cause serious dislocation of the functions of an
international secretariat.22
On the other hand, they are similar in the sense that acts performed in an official
capacity by either a diplomatic envoy or an international official are not attributable
to him as an individual but are imputed to the entity he represents, the state in the
case of the diplomat, and the organization in the case of the international official.23
27
IV
Looking back over 150 years of privileges and immunities granted to the personnel of
international organizations, it is clear that they were accorded a wide scope of
protection in the exercise of their functions — The Rhine Treaty of 1804 between the
German Empire and France which provided "all the rights of neutrality" to persons
employed in regulating navigation in the international interest; The Treaty of Berlin
of 1878 which granted the European Commission of the Danube "complete
independence of territorial authorities" in the exercise of its functions; The Covenant
of the League which granted "diplomatic immunities and privileges." Today, the age
of the United Nations finds the scope of protection narrowed. The current tendency
is to reduce privileges and immunities of personnel of international organizations to a
minimum. The tendency cannot be considered as a lowering of the standard but
rather as a recognition that the problem on the privileges and immunities of
international officials is new. The solution to the problem presented by the extension
of diplomatic prerogatives to international functionaries lies in the general reduction
of the special position of both types of agents in that the special status of each agent
is granted in the interest of function. The wide grant of diplomatic prerogatives was
curtailed because of practical necessity and because the proper functioning of the
organization did not require such extensive immunity for its officials. While the
current direction of the law seems to be to narrow the prerogatives of the personnel
of international organizations, the reverse is true with respect to the prerogatives of
the organizations themselves, considered as legal entities. Historically, states have
been more generous in granting privileges and immunities to organizations than they
have to the personnel of these organizations.24
Thus, Section 2 of the General Convention on the Privileges and Immunities of the
United Nations states that the UN shall enjoy immunity from every form of legal
process except insofar as in any particular case it has expressly waived its immunity.
Section 4 of the Convention on the Privileges and Immunities of the Specialized
Agencies likewise provides that the specialized agencies shall enjoy immunity from
every form of legal process subject to the same exception. Finally, Article 50(1) of the
ADB Charter and Section 5 of the Headquarters Agreement similarly provide that the
bank shall enjoy immunity from every form of legal process, except in cases arising
out of or in connection with the exercise of its powers to borrow money, to
guarantee obligations, or to buy and sell or underwrite the sale of securities.
The phrase "immunity from every form of legal process" as used in the UN General
Convention has been interpreted to mean absolute immunity from a state's
jurisdiction to adjudicate or enforce its law by legal process, and it is said that states
have not sought to restrict that immunity of the United Nations by interpretation or
amendment. Similar provisions are contained in the Special Agencies Convention as
well as in the ADB Charter and Headquarters Agreement. These organizations were
accorded privileges and immunities in their charters by language similar to that
applicable to the United Nations. It is clear therefore that these organizations were
intended to have similar privileges and immunities.25 From this, it can be easily
deduced that international organizations enjoy absolute immunity similar to the
diplomatic prerogatives granted to diplomatic envoys.
Even in the United States this theory seems to be the prevailing rule. The Foreign
Sovereign Immunities Act was passed adopting the "restrictive theory" limiting the
immunity of states under international law essentially to activities of a kind not
carried on by private persons. Then the International Organizations Immunities Act
came into effect which gives to designated international organizations the same
immunity from suit and every form of judicial process as is enjoyed by foreign
governments. This gives the impression that the Foreign Sovereign Immunities Act
has the effect of applying the restrictive theory also to international organizations
generally. However, aside from the fact that there was no indication in its legislative
history that Congress contemplated that result, and considering that the Convention
on Privileges and Immunities of the United Nations exempts the United Nations
"from every form of legal process," conflict with the United States obligations under
the Convention was sought to be avoided by interpreting the Foreign Sovereign
Immunities Act, and the restrictive theory, as not applying to suits against the United
Nations.26
On the other hand, international officials are governed by a different rule. Section
18(a) of the General Convention on Privileges and Immunities of the United Nations
states that officials of the United Nations shall be immune from legal process in
respect of words spoken or written and all acts performed by them in their official
capacity. The Convention on Specialized Agencies carries exactly the same provision.
The Charter of the ADB provides under Article 55(i) that officers and employees of
the bank shall be immune from legal process with respect to acts performed by them
in their official capacity except when the Bank waives immunity. Section 45 (a) of the
ADB Headquarters Agreement accords the same immunity to the officers and staff of
the bank. There can be no dispute that international officials are entitled to immunity
only with respect to acts performed in their official capacity, unlike international
organizations which enjoy absolute immunity.
28
Clearly, the most important immunity to an international official, in the discharge of
his international functions, is immunity from local jurisdiction. There is no argument
in doctrine or practice with the principle that an international official is independent
of the jurisdiction of the local authorities for his official acts. Those acts are not his,
but are imputed to the organization, and without waiver the local courts cannot hold
him liable for them. In strict law, it would seem that even the organization itself could
have no right to waive an official's immunity for his official acts. This permits local
authorities to assume jurisdiction over an individual for an act which is not, in the
wider sense of the term, his act at all. It is the organization itself, as a juristic person,
which should waive its own immunity and appear in court, not the individual, except
insofar as he appears in the name of the organization. Provisions for immunity from
jurisdiction for official acts appear, aside from the aforementioned treatises, in the
constitution of most modern international organizations. The acceptance of the
principle is sufficiently widespread to be regarded as declaratory of international
law.27
V final. If the United Nations questions the decision of the Court, it may invoke
What then is the status of the international official with respect to his private acts?
Section 18 (a) of the General Convention has been interpreted to mean that officials
of the specified categories are denied immunity from local jurisdiction for acts of
their private life and empowers local courts to assume jurisdiction in such cases
without the necessity of waiver.28 It has earlier been mentioned that historically,
international officials were granted diplomatic privileges and immunities and were
thus considered immune for both private and official acts. In practice, this wide grant
of diplomatic prerogatives was curtailed because of practical necessity and because
the proper functioning of the organization did not require such extensive immunity
for its officials. Thus, the current status of the law does not maintain that states grant
jurisdictional immunity to international officials for acts of their private lives.29 This
much is explicit from the Charter and Headquarters Agreement of the ADB which
contain substantially similar provisions to that of the General Convention.
VI
Who is competent to determine whether a given act is private or official?
This is an entirely different question. In connection with this question, the current
tendency to narrow the scope of privileges and immunities of international officials
and representatives is most apparent. Prior to the regime of the United Nations, the
determination of this question rested with the organization and its decision was
final. By the new formula, the state itself tends to assume this competence. If the
organization is dissatisfied with the decision, under the provisions of the General
Convention of the United States, or the Special Convention for Specialized Agencies,
the Swiss Arrangement, and other current dominant instruments, it may appeal to
an international tribunal by procedures outlined in those instruments. Thus, the
state assumes this competence in the first instance. It means that, if a local court
assumes jurisdiction over an act without the necessity of waiver from the
organization, the determination of the nature of the act is made at the national
level.30
It appears that the inclination is to place the competence to determine the nature of
an act as private or official in the courts of the state concerned. That the prevalent
notion seems to be to leave to the local courts determination of whether or not a
given act is official or private does not necessarily mean that such determination is
proceedings for settlement of disputes between the organization and the member
states as provided in Section 30 of the General Convention. Thus, the decision as to
whether a given act is official or private is made by the national courts in the first
instance, but it may be subjected to review in the international level if questioned by
the United Nations.31
A similar view is taken by Kunz, who writes that the "jurisdiction of local courts
without waiver for acts of private life empowers the local courts to determine
whether a certain act is an official act or an act of private life," on the rationale that
since the determination of such question, if left in the hands of the organization,
would consist in the execution, or non-execution, of waiver, and since waiver is not
mentioned in connection with the provision granting immunities to international
officials, then the decision must rest with local courts.32
Under the Third Restatement of the Law, it is suggested that since an international
official does not enjoy personal inviolability from arrest or detention and has
immunity only with respect to official acts, he is subject to judicial or administrative
process and must claim his immunity in the proceedings by showing that the act in
question was an official act. Whether an act was performed in the individual's official
capacity is a question for the court in which a proceeding is brought, but if the
international organization disputes the court's finding, the dispute between the
organization and the state of the forum is to be resolved by negotiation, by an
29
agreed mode of settlement or by advisory opinion of the International Court of
Justice.33
Recognizing the difficulty that by reason of the right of a national court to assume
jurisdiction over private acts without a waiver of immunity, the determination of the
official or private character of a particular act may pass from international to national
control, Jenks proposes three ways of avoiding difficulty in the matter. The first
would be for a municipal court before which a question of the official or private
character of a particular act arose to accept as conclusive in the matter any claim by
the international organization that the act was official in character, such a claim
being regarded as equivalent to a governmental claim that a particular act is an act
of State. Such a claim would be in effect a claim by the organization that the
proceedings against the official were a violation of the jurisdictional immunity of the
organization itself which is unqualified and therefore not subject to delimitation in
the discretion of the municipal court. The second would be for a court to accept as
conclusive in the matter a statement by the executive government of the country
where the matter arises certifying the official character of the act. The third would
be to have recourse to the procedure of international arbitration. Jenks opines that it
is possible that none of these three solutions would be applicable in all cases; the
first might be readily acceptable only in the clearest cases and the second is available
only if the executive government of the country where the matter arises concurs in
the view of the international organization concerning the official character of the act.
However, he surmises that taken in combination, these various possibilities may
afford the elements of a solution to the problem.34
One final point. The international official's immunity for official acts may be likened
to a consular official's immunity from arrest, detention, and criminal or civil process
which is not absolute but applies only to acts or omissions in the performance of his
official functions, in the absence of special agreement. Since a consular officer is not
immune from all legal process, he must respond to any process and plead and prove
immunity on the ground that the act or omission underlying the process was in the
performance of his official functions. The issue has not been authoritatively
determined, but apparently the burden is on the consular officer to prove his status
as well as his exemption in the circumstances. In the United States, the US
Department of State generally has left it to the courts to determine whether a
particular act was within a consular officer's official duties.35
Submissions
On the bases of the foregoing disquisitions, I submit the following conclusions:
First, petitioner Liang, a bank official of ADB, is not entitled to diplomatic immunity
and hence his immunity is not absolute.
Under the Vienna Convention on Diplomatic Relations, a diplomatic envoy is immune
from criminal jurisdiction of the receiving State for all acts, whether private or
official, and hence he cannot be arrested, prosecuted and punished for any offense
he may commit, unless his diplomatic immunity is waived.36 On the other hand,
officials of international organizations enjoy "functional" immunities, that is, only
those necessary for the exercise of the functions of the organization and the
fulfillment of its purposes.37 This is the reason why the ADB Charter and
Headquarters Agreement explicitly grant immunity from legal process to bank
officers and employees only with respect to acts performed by them in their official
capacity, except when the Bank waives immunity. In other words, officials and
employees of the ADB are subject to the jurisdiction of the local courts for their
private acts, notwithstanding the absence of a waiver of immunity.
Petitioner cannot also seek relief under the mantle of "immunity from every form of
legal process" accorded to ADB as an international organization. The immunity of
ADB is absolute whereas the immunity of its officials and employees is restricted only
to official acts. This is in consonance with the current trend in international law
which seeks to narrow the scope of protection and reduce the privileges and
immunities granted to personnel of international organizations, while at the same
time aims to increase the prerogatives of international organizations.
Second, considering that bank officials and employees are covered by immunity only
for their official acts, the necessary inference is that the authority of the Department
of Affairs, or even of the ADB for that matter, to certify that they are entitled to
immunity is limited only to acts done in their official capacity. Stated otherwise, it is
not within the power of the DFA, as the agency in charge of the executive
department's foreign relations, nor the ADB, as the international organization vested
with the right to waive immunity, to invoke immunity for private acts of bank officials
and employees, since no such prerogative exists in the first place. If the immunity
does not exist, there is nothing to certify.
As an aside, ADB cannot even claim to have the right to waive immunity for private
acts of its officials and employees. The Charter and the Headquarters Agreement are
clear that the immunity can be waived only with respect to official acts because this
30
is only the extent to which the privilege has been granted. One cannot waive the Finally, it appears from the records of this case that petitioner is a senior economist
right to a privilege which has never been granted or acquired. at ADB and as such he makes country project profiles which will help the bank in
deciding whether to lend money or support a particular project to a particular
Third, I choose to adopt the view that it is the local courts which have jurisdiction to country.41 Petitioner stands charged of grave slander for allegedly uttering
determine whether or not a given act is official or private. While there is a dearth of defamatory remarks against his secretary, the private complainant herein.
cases on the matter under Philippine jurisprudence, the issue is not entirely novel. Considering that the immunity accorded to petitioner is limited only to acts
performed in his official capacity, it becomes necessary to make a factual
The case of M.H. Wylie, et al. vs. Rarang, et al.38 concerns the extent of immunity
determination of whether or not the defamatory utterances were made pursuant
from suit of the officials of a United States Naval Base inside the Philippine territory.
and in relation to his official functions as a senior economist.
Although a motion to dismiss was filed by the defendants therein invoking their
immunity from suit pursuant to the RP-US Military Bases Agreement, the trial court I vote to deny the motion for reconsideration.
denied the same and, after trial, rendered a decision declaring that the defendants
are not entitled to immunity because the latter acted beyond the scope of their Davide, Jr., C.J., concurs.
official duties. The Court likewise applied the ruling enunciated in the case of Chavez
vs. Sandiganbayan39 to the effect that a mere invocation of the immunity clause does
not ipso facto result in the charges being automatically dropped. While it is true that
the Chavez case involved a public official, the Court did not find any substantial
reason why the same rule cannot be made to apply to a US official assigned at the US
Naval Station located in the Philippines. In this case, it was the local courts which
ascertained whether the acts complained of were done in an official or personal
capacity.

In the case of The Holy See vs. Rosario, Jr.,40 a complaint for annulment of contract of
sale, reconveyance, specific performance and damages was filed against petitioner.
Petitioner moved to dismiss on the ground of, among others, lack of jurisdiction
based on sovereign immunity from suit, which was denied by the trial court. A
motion for reconsideration, and subsequently, a "Motion for a Hearing for the Sole
Purpose of Establishing Factual Allegation for Claim of Immunity as a Jurisdictional
Defense" were filed by petitioner. The trial court deferred resolution of said motions
until after trial on the merits. On certiorari, the Court there ruled on the issue of
petitioner's non-suability on the basis of the allegations made in the pleadings filed
by the parties. This is an implicit recognition of the court's jurisdiction to ascertain
the suability or non-suability of the sovereign by assessing the facts of the case. The
Court hastened to add that when a state or international agency wishes to plead
sovereign or diplomatic immunity in a foreign court, in some cases, the defense of
sovereign immunity was submitted directly to the local courts by the respondents
through their private counsels, or where the foreign states bypass the Foreign Office,
the courts can inquire into the facts and make their own determination as to the
nature of the acts and transactions involved.
31
32