Republic of the Philippines consolidated on March 27, 1990 when the memoranda of the parties in the Laurel case
da of the parties in the Laurel case were
SUPREME COURT
Manila
EN BANC
G.R. No. 92013 July 25, 1990
SALVADOR H. LAUREL, petitioner,
vs.
RAMON GARCIA, as head of the Asset Privatization Trust, RAUL MANGLAPUS, as Secretary of
Foreign Affairs, and CATALINO MACARAIG, as Executive Secretary, respondents.
G.R. No. 92047 July 25, 1990
DIONISIO S. OJEDA, petitioner,
vs.
EXECUTIVE SECRETARY MACARAIG, JR., ASSETS PRIVATIZATION TRUST CHAIRMAN RAMON T.
GARCIA, AMBASSADOR RAMON DEL ROSARIO, et al., as members of the PRINCIPAL AND BIDDING
COMMITTEES ON THE UTILIZATION/DISPOSITION PETITION OF PHILIPPINE GOVERNMENT
PROPERTIES IN JAPAN, respondents.
Arturo M. Tolentino for petitioner in 92013.
GUTIERREZ, JR., J.:
These are two petitions for prohibition seeking to enjoin respondents, their representatives and
agents from proceeding with the bidding for the sale of the 3,179 square meters of land at 306
Roppongi, 5-Chome Minato-ku Tokyo, Japan scheduled on February 21, 1990. We granted the
prayer for a temporary restraining order effective February 20, 1990. One of the petitioners (in
G.R. No. 92047) likewise prayes for a writ of mandamus to compel the respondents to fully
disclose to the public the basis of their decision to push through with the sale of the Roppongi
property inspire of strong public opposition and to explain the proceedings which effectively
prevent the participation of Filipino citizens and entities in the bidding process.
The oral arguments in G.R. No. 92013, Laurel v. Garcia, et al. were heard by the Court on March 13,
1990. After G.R. No. 92047, Ojeda v. Secretary Macaraig, et al. was filed, the respondents were
required to file a comment by the Court's resolution dated February 22, 1990. The two petitions were
deliberated upon.
The Court could not act on these cases immediately because the respondents filed a motion for an
extension of thirty (30) days to file comment in G.R. No. 92047, followed by a second motion for an
extension of another thirty (30) days which we granted on May 8, 1990, a third motion for extension of
time granted on May 24, 1990 and a fourth motion for extension of time which we granted on June 5,
1990 but calling the attention of the respondents to the length of time the petitions have been pending.
After the comment was filed, the petitioner in G.R. No. 92047 asked for thirty (30) days to file a reply.
We noted his motion and resolved to decide the two (2) cases.
I
The subject property in this case is one of the four (4) properties in Japan acquired by the Philippine
government under the Reparations Agreement entered into with Japan on May 9, 1956, the other lots
being:
(1) The Nampeidai Property at 11-24 Nampeidai-machi, Shibuya-ku, Tokyo which has an area of
approximately 2,489.96 square meters, and is at present the site of the Philippine Embassy Chancery;
(2) The Kobe Commercial Property at 63 Naniwa-cho, Kobe, with an area of around 764.72 square
meters and categorized as a commercial lot now being used as a warehouse and parking lot for the
consulate staff; and
(3) The Kobe Residential Property at 1-980-2 Obanoyama-cho, Shinohara, Nada-ku, Kobe, a residential
lot which is now vacant.
The properties and the capital goods and services procured from the Japanese government for
national development projects are part of the indemnification to the Filipino people for their losses in
life and property and their suffering during World War II.
The Reparations Agreement provides that reparations valued at $550 million would be payable in
twenty (20) years in accordance with annual schedules of procurements to be fixed by the Philippine
and Japanese governments (Article 2, Reparations Agreement). Rep. Act No. 1789, the Reparations
Law, prescribes the national policy on procurement and utilization of reparations and development
loans. The procurements are divided into those for use by the government sector and those
for private parties in projects as the then National Economic Council shall determine. Those intended
for the private sector shall be made available by sale to Filipino citizens or to one hundred (100%)
percent Filipino-owned entities in national development projects.
The Roppongi property was acquired from the Japanese government under the Second Year Schedule
and listed under the heading "Government Sector", through Reparations Contract No. 300 dated June
27, 1958. The Roppongi property consists of the land and building "for the Chancery of the Philippine
Embassy" (Annex M-D to Memorandum for Petitioner, p. 503). As intended, it became the site of the
Philippine Embassy until the latter was transferred to Nampeidai on July 22, 1976 when the Roppongi
building needed major repairs. Due to the failure of our government to provide necessary funds, the
Roppongi property has remained undeveloped since that time.
A proposal was presented to President Corazon C. Aquino by former Philippine Ambassador to Japan,
Carlos J. Valdez, to make the property the subject of a lease agreement with a Japanese firm - Kajima
Corporation — which shall construct two (2) buildings in Roppongi and one (1) building in Nampeidai
and renovate the present Philippine Chancery in Nampeidai. The consideration of the construction
would be the lease to the foreign corporation of one (1) of the buildings to be constructed in Roppongi
and the two (2) buildings in Nampeidai. The other building in Roppongi shall then be used as the
Philippine Embassy Chancery. At the end of the lease period, all the three leased buildings shall be
occupied and used by the Philippine government. No change of ownership or title shall occur. (See
Annex "B" to Reply to Comment) The Philippine government retains the title all throughout the lease
period and thereafter. However, the government has not acted favorably on this proposal which is
pending approval and ratification between the parties. Instead, on August 11, 1986, President Aquino
created a committee to study the disposition/utilization of Philippine government properties in Tokyo
and Kobe, Japan through Administrative Order No. 3, followed by Administrative Orders Numbered
3-A, B, C and D.
On July 25, 1987, the President issued Executive Order No. 296 entitling non-Filipino citizens or
entities to avail of separations' capital goods and services in the event of sale, lease or disposition.
The four properties in Japan including the Roppongi were specifically mentioned in the first
"Whereas" clause.
Amidst opposition by various sectors, the Executive branch of the government has been pushing,
with great vigor, its decision to sell the reparations properties starting with the Roppongi lot. The
property has twice been set for bidding at a minimum floor price of $225 million. The first bidding was
a failure since only one bidder qualified. The second one, after postponements, has not yet
materialized. The last scheduled bidding on February 21, 1990 was restrained by his Court. Later, the
rules on bidding were changed such that the $225 million floor price became merely a suggested floor
price.
The Court finds that each of the herein petitions raises distinct issues. The petitioner in G.R. No.
92013 objects to the alienation of the Roppongi property to anyone while the petitioner in G.R. No.
92047 adds as a principal objection the alleged unjustified bias of the Philippine government in favor
of selling the property to non-Filipino citizens and entities. These petitions have been consolidated
and are resolved at the same time for the objective is the same - to stop the sale of the Roppongi
property.
The petitioner in G.R. No. 92013 raises the following issues:
(1) Can the Roppongi property and others of its kind be alienated by the Philippine Government?; and
(2) Does the Chief Executive, her officers and agents, have the authority and jurisdiction, to sell the
Roppongi property?
Petitioner Dionisio Ojeda in G.R. No. 92047, apart from questioning the authority of the government to
alienate the Roppongi property assails the constitutionality of Executive Order No. 296 in making the
property available for sale to non-Filipino citizens and entities. He also questions the bidding
procedures of the Committee on the Utilization or Disposition of Philippine Government Properties in
Japan for being discriminatory against Filipino citizens and Filipino-owned entities by denying them
the right to be informed about the bidding requirements.
II
In G.R. No. 92013, petitioner Laurel asserts that the Roppongi property and the related lots were
acquired as part of the reparations from the Japanese government for diplomatic and consular use by
the Philippine government. Vice-President Laurel states that the Roppongi property is classified as
one of public dominion, and not of private ownership under Article 420 of the Civil Code (See infra).
The petitioner submits that the Roppongi property comes under "property intended for public service"
in paragraph 2 of the above provision. He states that being one of public dominion, no ownership by
any one can attach to it, not even by the State. The Roppongi and related properties were acquired for
"sites for chancery, diplomatic, and consular quarters, buildings and other improvements" (Second
Year Reparations Schedule). The petitioner states that they continue to be intended for a necessary
service. They are held by the State in anticipation of an opportune use. (Citing 3 Manresa 65-66).
Hence, it cannot be appropriated, is outside the commerce of man, or to put it in more simple terms, it
cannot be alienated nor be the subject matter of contracts (Citing Municipality of Cavite v. Rojas, 30
Phil. 20 [1915]). Noting the non-use of the Roppongi property at the moment, the petitioner avers that
the same remains property of public dominion so long as the government has not used it for other
purposes nor adopted any measure constituting a removal of its original purpose or use.
The respondents, for their part, refute the petitioner's contention by saying that the subject property is
not governed by our Civil Code but by the laws of Japan where the property is located. They rely upon
the rule of lex situs which is used in determining the applicable law regarding the acquisition, transfer
and devolution of the title to a property. They also invoke Opinion No. 21, Series of 1988, dated
January 27, 1988 of the Secretary of Justice which used the lex situs in explaining the inapplicability
of Philippine law regarding a property situated in Japan.
The respondents add that even assuming for the sake of argument that the Civil Code is applicable,
the Roppongi property has ceased to become property of public dominion. It has become patrimonial
property because it has not been used for public service or for diplomatic purposes for over thirteen
(13) years now (Citing Article 422, Civil Code) and because the intention by the Executive Department
and the Congress to convert it to private use has been manifested by overt acts, such as, among
others: (1) the transfer of the Philippine Embassy to Nampeidai (2) the issuance of administrative
orders for the possibility of alienating the four government properties in Japan; (3) the issuance of
Executive Order No. 296; (4) the enactment by the Congress of Rep. Act No. 6657 [the Comprehensive
Agrarian Reform Law] on June 10, 1988 which contains a provision stating that funds may be taken
from the sale of Philippine properties in foreign countries; (5) the holding of the public bidding of the
Roppongi property but which failed; (6) the deferment by the Senate in Resolution No. 55 of the
bidding to a future date; thus an acknowledgment by the Senate of the government's intention to
remove the Roppongi property from the public service purpose; and (7) the resolution of this Court
dismissing the petition in Ojeda v. Bidding Committee, et al., G.R. No. 87478 which sought to enjoin
the second bidding of the Roppongi property scheduled on March 30, 1989.
III
In G.R. No. 94047, petitioner Ojeda once more asks this Court to rule on the constitutionality of
Executive Order No. 296. He had earlier filed a petition in G.R. No. 87478 which the Court dismissed on
August 1, 1989. He now avers that the executive order contravenes the constitutional mandate to
conserve and develop the national patrimony stated in the Preamble of the 1987 Constitution. It also
allegedly violates:
(1) The reservation of the ownership and acquisition of alienable lands of the public domain to Filipino
citizens. (Sections 2 and 3, Article XII, Constitution; Sections 22 and 23 of Commonwealth Act 141). i •t •c -aü sl
(2) The preference for Filipino citizens in the grant of rights, privileges and concessions covering the
national economy and patrimony (Section 10, Article VI, Constitution);
(3) The protection given to Filipino enterprises against unfair competition and trade practices;
(4) The guarantee of the right of the people to information on all matters of public concern (Section 7,
Article III, Constitution);
(5) The prohibition against the sale to non-Filipino citizens or entities not wholly owned by Filipino
citizens of capital goods received by the Philippines under the Reparations Act (Sections 2 and 12 of
Rep. Act No. 1789); and
(6) The declaration of the state policy of full public disclosure of all transactions involving public
interest (Section 28, Article III, Constitution).
Petitioner Ojeda warns that the use of public funds in the execution of an unconstitutional executive
order is a misapplication of public funds He states that since the details of the bidding for the
Roppongi property were never publicly disclosed until February 15, 1990 (or a few days before the
scheduled bidding), the bidding guidelines are available only in Tokyo, and the accomplishment of
requirements and the selection of qualified bidders should be done in Tokyo, interested Filipino
citizens or entities owned by them did not have the chance to comply with Purchase Offer
Requirements on the Roppongi. Worse, the Roppongi shall be sold for a minimum price of $225
million from which price capital gains tax under Japanese law of about 50 to 70% of the floor price
would still be deducted.
IV
The petitioners and respondents in both cases do not dispute the fact that the Roppongi site and the
three related properties were through reparations agreements, that these were assigned to the
government sector and that the Roppongi property itself was specifically designated under the
Reparations Agreement to house the Philippine Embassy.
The nature of the Roppongi lot as property for public service is expressly spelled out. It is dictated by
the terms of the Reparations Agreement and the corresponding contract of procurement which bind
both the Philippine government and the Japanese government.
There can be no doubt that it is of public dominion unless it is convincingly shown that the property
has become patrimonial. This, the respondents have failed to do.
As property of public dominion, the Roppongi lot is outside the commerce of man. It cannot be
alienated. Its ownership is a special collective ownership for general use and enjoyment, an
application to the satisfaction of collective needs, and resides in the social group. The purpose is not
to serve the State as a juridical person, but the citizens; it is intended for the common and public
welfare and cannot be the object of appropration. (Taken from 3 Manresa, 66-69; cited in Tolentino,
Commentaries on the Civil Code of the Philippines, 1963 Edition, Vol. II, p. 26).
The applicable provisions of the Civil Code are:
ART. 419. Property is either of public dominion or of private ownership.
ART. 420. The following things are property of public dominion
(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, banks shores roadsteads, and others of similar character;
(2) Those which belong to the State, without being for public use, and are intended for some public
service or for the development of the national wealth.
ART. 421. All other property of the State, which is not of the character stated in the preceding article,
is patrimonial property.
The Roppongi property is correctly classified under paragraph 2 of Article 420 of the Civil Code as
property belonging to the State and intended for some public service.
Has the intention of the government regarding the use of the property been changed because the lot
has been Idle for some years? Has it become patrimonial?
The fact that the Roppongi site has not been used for a long time for actual Embassy service does not
automatically convert it to patrimonial property. Any such conversion happens only if the property is
withdrawn from public use (Cebu Oxygen and Acetylene Co. v. Bercilles, 66 SCRA 481 [1975]). A
property continues to be part of the public domain, not available for private appropriation or
ownership until there is a formal declaration on the part of the government to withdraw it from being
such (Ignacio v. Director of Lands, 108 Phil. 335 [1960]).
The respondents enumerate various pronouncements by concerned public officials insinuating a
change of intention. We emphasize, however, that an abandonment of the intention to use the
Roppongi property for public service and to make it patrimonial property under Article 422 of the Civil
Code must be definiteAbandonment cannot be inferred from the non-use alone specially if the
non-use was attributable not to the government's own deliberate and indubitable will but to a lack of
financial support to repair and improve the property (See Heirs of Felino Santiago v. Lazaro, 166 SCRA
368 [1988]). Abandonment must be a certain and positive act based on correct legal premises.
A mere transfer of the Philippine Embassy to Nampeidai in 1976 is not relinquishment of the Roppongi
property's original purpose. Even the failure by the government to repair the building in Roppongi is
not abandonment since as earlier stated, there simply was a shortage of government funds. The
recent Administrative Orders authorizing a study of the status and conditions of government
properties in Japan were merely directives for investigation but did not in any way signify a clear
intention to dispose of the properties.
Executive Order No. 296, though its title declares an "authority to sell", does not have a provision in
its text expressly authorizing the sale of the four properties procured from Japan for the government
sector. The executive order does not declare that the properties lost their public character. It merely
intends to make the properties available to foreigners and not to Filipinos alone in case of a sale,
lease or other disposition. It merely eliminates the restriction under Rep. Act No. 1789 that reparations
goods may be sold only to Filipino citizens and one hundred (100%) percent Filipino-owned entities.
The text of Executive Order No. 296 provides:
Section 1. The provisions of Republic Act No. 1789, as amended, and of other laws to the contrary
notwithstanding, the above-mentioned properties can be made available for sale, lease or any other
manner of disposition to non-Filipino citizens or to entities owned by non-Filipino citizens.
Executive Order No. 296 is based on the wrong premise or assumption that the Roppongi and the
three other properties were earlier converted into alienable real properties. As earlier stated, Rep. Act
No. 1789 differentiates the procurements for the government sector and the private sector (Sections 2
and 12, Rep. Act No. 1789). Only the private sector properties can be sold to end-users who must be
Filipinos or entities owned by Filipinos. It is this nationality provision which was amended by
Executive Order No. 296.
Section 63 (c) of Rep. Act No. 6657 (the CARP Law) which provides as one of the sources of funds for
its implementation, the proceeds of the disposition of the properties of the Government in foreign
countries, did not withdraw the Roppongi property from being classified as one of public dominion
when it mentions Philippine properties abroad. Section 63 (c) refers to properties which are alienable
and not to those reserved for public use or service. Rep Act No. 6657, therefore, does not authorize
the Executive Department to sell the Roppongi property. It merely enumerates possible sources of
future funding to augment (as and when needed) the Agrarian Reform Fund created under Executive
Order No. 299. Obviously any property outside of the commerce of man cannot be tapped as a source
of funds.
The respondents try to get around the public dominion character of the Roppongi property by
insisting that Japanese law and not our Civil Code should apply.
It is exceedingly strange why our top government officials, of all people, should be the ones to insist
that in the sale of extremely valuable government property, Japanese law and not Philippine law
should prevail. The Japanese law - its coverage and effects, when enacted, and exceptions to its
provision — is not presented to the Court It is simply asserted that the lex loci rei sitae or Japanese
law should apply without stating what that law provides. It is a ed on faith that Japanese law would
allow the sale.
We see no reason why a conflict of law rule should apply when no conflict of law situation exists. A
conflict of law situation arises only when: (1) There is a dispute over the title or ownership of an
immovable, such that the capacity to take and transfer immovables, the formalities of conveyance, the
essential validity and effect of the transfer, or the interpretation and effect of a conveyance, are to be
determined (See Salonga, Private International Law, 1981 ed., pp. 377-383); and (2) A foreign law on
land ownership and its conveyance is asserted to conflict with a domestic law on the same matters.
Hence, the need to determine which law should apply.
In the instant case, none of the above elements exists.
The issues are not concerned with validity of ownership or title. There is no question that the property
belongs to the Philippines. The issue is the authority of the respondent officials to validly dispose of
property belonging to the State. And the validity of the procedures adopted to effect its sale. This is
governed by Philippine Law. The rule of lex situs does not apply.
The assertion that the opinion of the Secretary of Justice sheds light on the relevance of the lex
situs rule is misplaced. The opinion does not tackle the alienability of the real properties procured
through reparations nor the existence in what body of the authority to sell them. In discussing who are
capable of acquiring the lots, the Secretary merely explains that it is the foreign law which should
determine who can acquire the properties so that the constitutional limitation on acquisition of lands
of the public domain to Filipino citizens and entities wholly owned by Filipinos is inapplicable. We see
no point in belaboring whether or not this opinion is correct. Why should we discuss who can acquire
the Roppongi lot when there is no showing that it can be sold?
The subsequent approval on October 4, 1988 by President Aquino of the recommendation by the
investigating committee to sell the Roppongi property was premature or, at the very least, conditioned
on a valid change in the public character of the Roppongi property. Moreover, the approval does not
have the force and effect of law since the President already lost her legislative powers. The Congress
had already convened for more than a year.
Assuming for the sake of argument, however, that the Roppongi property is no longer of public
dominion, there is another obstacle to its sale by the respondents.
There is no law authorizing its conveyance.
Section 79 (f) of the Revised Administrative Code of 1917 provides
Section 79 (f ) Conveyances and contracts to which the Government is a party. — In cases in which
the Government of the Republic of the Philippines is a party to any deed or other instrument
conveying the title to real estate or to any other property the value of which is in excess of one
hundred thousand pesos, the respective Department Secretary shall prepare the necessary papers
which, together with the proper recommendations, shall be submitted to the Congress of the
Philippines for approval by the same. Such deed, instrument, or contract shall be executed and
signed by the President of the Philippines on behalf of the Government of the Philippines unless the
Government of the Philippines unless the authority therefor be expressly vested by law in another
officer. (Emphasis supplied)
The requirement has been retained in Section 48, Book I of the Administrative Code of 1987 (Executive
Order No. 292).
SEC. 48. Official Authorized to Convey Real Property. — Whenever real property of the Government
is authorized by law to be conveyed, the deed of conveyance shall be executed in behalf of the
government by the following:
(1) For property belonging to and titled in the name of the Republic of the Philippines, by the President,
unless the authority therefor is expressly vested by law in another officer.
(2) For property belonging to the Republic of the Philippines but titled in the name of any political
subdivision or of any corporate agency or instrumentality, by the executive head of the agency or
instrumentality. (Emphasis supplied)
It is not for the President to convey valuable real property of the government on his or her own sole
will. Any such conveyance must be authorized and approved by a law enacted by the Congress. It
requires executive and legislative concurrence.
Resolution No. 55 of the Senate dated June 8, 1989, asking for the deferment of the sale of the
Roppongi property does not withdraw the property from public domain much less authorize its sale. It
is a mere resolution; it is not a formal declaration abandoning the public character of the Roppongi
property. In fact, the Senate Committee on Foreign Relations is conducting hearings on Senate
Resolution No. 734 which raises serious policy considerations and calls for a fact-finding
investigation of the circumstances behind the decision to sell the Philippine government properties in
Japan.
The resolution of this Court in Ojeda v. Bidding Committee, et al., supra, did not pass upon the
constitutionality of Executive Order No. 296. Contrary to respondents' assertion, we did not uphold
the authority of the President to sell the Roppongi property. The Court stated that the constitutionality
of the executive order was not the real issue and that resolving the constitutional question was
"neither necessary nor finally determinative of the case." The Court noted that "[W]hat petitioner
ultimately questions is the use of the proceeds of the disposition of the Roppongi property." In
emphasizing that "the decision of the Executive to dispose of the Roppongi property to finance the
CARP ... cannot be questioned" in view of Section 63 (c) of Rep. Act No. 6657, the Court did not
acknowledge the fact that the property became alienable nor did it indicate that the President was
authorized to dispose of the Roppongi property. The resolution should be read to mean that in case
the Roppongi property is re-classified to be patrimonial and alienable by authority of law, the
proceeds of a sale may be used for national economic development projects including the CARP.
Moreover, the sale in 1989 did not materialize. The petitions before us question the proposed 1990
sale of the Roppongi property. We are resolving the issues raised in these petitions, not the issues
raised in 1989.
Having declared a need for a law or formal declaration to withdraw the Roppongi property from public
domain to make it alienable and a need for legislative authority to allow the sale of the property, we
see no compelling reason to tackle the constitutional issues raised by petitioner Ojeda.
The Court does not ordinarily pass upon constitutional questions unless these questions are properly
raised in appropriate cases and their resolution is necessary for the determination of the case (People
v. Vera, 65 Phil. 56 [1937]). The Court will not pass upon a constitutional question although properly
presented by the record if the case can be disposed of on some other ground such as the application
of a statute or general law (Siler v. Louisville and Nashville R. Co., 213 U.S. 175, [1909], Railroad
Commission v. Pullman Co., 312 U.S. 496 [1941]).
The petitioner in G.R. No. 92013 states why the Roppongi property should not be sold:
The Roppongi property is not just like any piece of property. It was given to the Filipino people in
reparation for the lives and blood of Filipinos who died and suffered during the Japanese military
occupation, for the suffering of widows and orphans who lost their loved ones and kindred, for the
homes and other properties lost by countless Filipinos during the war. The Tokyo properties are a
monument to the bravery and sacrifice of the Filipino people in the face of an invader; like the
monuments of Rizal, Quezon, and other Filipino heroes, we do not expect economic or financial
benefits from them. But who would think of selling these monuments? Filipino honor and national
dignity dictate that we keep our properties in Japan as memorials to the countless Filipinos who died
and suffered. Even if we should become paupers we should not think of selling them. For it would be
as if we sold the lives and blood and tears of our countrymen. (Rollo- G.R. No. 92013, p.147)
The petitioner in G.R. No. 92047 also states:
Roppongi is no ordinary property. It is one ceded by the Japanese government in atonement for its
past belligerence for the valiant sacrifice of life and limb and for deaths, physical dislocation and
economic devastation the whole Filipino people endured in World War II.
It is for what it stands for, and for what it could never bring back to life, that its significance today
remains undimmed, inspire of the lapse of 45 years since the war ended, inspire of the passage of 32
years since the property passed on to the Philippine government.
Roppongi is a reminder that cannot — should not — be dissipated ... (Rollo-92047, p. 9)
It is indeed true that the Roppongi property is valuable not so much because of the inflated prices
fetched by real property in Tokyo but more so because of its symbolic value to all Filipinos —
veterans and civilians alike. Whether or not the Roppongi and related properties will eventually be
sold is a policy determination where both the President and Congress must concur. Considering the
properties' importance and value, the laws on conversion and disposition of property of public
dominion must be faithfully followed.
WHEREFORE, IN VIEW OF THE FOREGOING, the petitions are GRANTED. A writ of prohibition is
issued enjoining the respondents from proceeding with the sale of the Roppongi property in Tokyo,
Japan. The February 20, 1990 Temporary Restraining Order is made PERMANENT.
SO ORDERED.
Melencio-Herrera, Paras, Bidin, Griño-Aquino and Regalado, JJ., concur.
Separate Opinions
CRUZ, J., concurring:
I concur completely with the excellent ponencia of Mr. Justice Gutierrez and will add the following
observations only for emphasis.
It is clear that the respondents have failed to show the President's legal authority to sell the Roppongi
property. When asked to do so at the hearing on these petitions, the Solicitor General was at best
ambiguous, although I must add in fairness that this was not his fault. The fact is that there is -no such
authority. Legal expertise alone cannot conjure that statutory permission out of thin air.
Exec. Order No. 296, which reads like so much legislative, double talk, does not contain such
authority. Neither does Rep. Act No. 6657, which simply allows the proceeds of the sale of our
properties abroad to be used for the comprehensive agrarian reform program. Senate Res. No. 55 was
a mere request for the deferment of the scheduled sale of tile Roppongi property, possibly to stop the
transaction altogether; and ill any case it is not a law. The sale of the said property may be authorized
only by Congress through a duly enacted statute, and there is no such law.
Once again, we have affirmed the principle that ours is a government of laws and not of men, where
every public official, from the lowest to the highest, can act only by virtue of a valid authorization. I am
happy to note that in the several cases where this Court has ruled against her, the President of the
Philippines has submitted to this principle with becoming grace.
PADILLA, J., concurring:
I concur in the decision penned by Mr. Justice Gutierrez, Jr., I only wish to make a few observations
which could help in further clarifying the issues.
Under our tripartite system of government ordained by the Constitution, it is Congress that lays down
or determines policies. The President executes such policies. The policies determined by Congress
are embodied in legislative enactments that have to be approved by the President to become law. The
President, of course, recommends to Congress the approval of policies but, in the final analysis, it is
Congress that is the policy - determining branch of government.
The judiciary interprets the laws and, in appropriate cases, determines whether the laws enacted by
Congress and approved by the President, and presidential acts implementing such laws, are in
accordance with the Constitution.
The Roppongi property was acquired by the Philippine government pursuant to the reparations
agreement between the Philippine and Japanese governments. Under such agreement, this property
was acquired by the Philippine government for a specific purpose, namely, to serve as the site of the
Philippine Embassy in Tokyo, Japan. Consequently, Roppongi is a property of public dominion and
intended for public service, squarely falling within that class of property under Art. 420 of the Civil
Code, which provides:
Art. 420. The following things are property of public dominion :
(1) ...
(2) Those which belong to the State, without being for public use, and are intended for some public
service or for the development of the national wealth. (339a)
Public dominion property intended for public service cannot be alienated unless the property is first
transformed into private property of the state otherwise known as patrimonial property of the
state. 1 The transformation of public dominion property to state patrimonial property involves, to my
mind, a policy decision. It is a policy decision because the treatment of the property varies according
to its classification. Consequently, it is Congress which can decide and declare the conversion of
Roppongi from a public dominion property to a state patrimonial property. Congress has made no
such decision or declaration.
Moreover, the sale of public property (once converted from public dominion to state patrimonial
property) must be approved by Congress, for this again is a matter of policy (i.e. to keep or dispose of
the property). Sec. 48, Book 1 of the Administrative Code of 1987 provides:
SEC. 48. Official Authorized to Convey Real Property. — Whenever real property of the Government is
authorized by law to be conveyed, the deed of conveyance shall be executed in behalf of the
government by the following:
(1) For property belonging to and titled in the name of the Republic of the Philippines, by the President,
unless the authority therefor is expressly vested by law in another officer.
(2) For property belonging to the Republic of the Philippines but titled in the name of any political
subdivision or of any corporate agency or instrumentality, by the executive head of the agency or
instrumentality. (Emphasis supplied)
But the record is bare of any congressional decision or approval to sell Roppongi. The record is
likewise bare of any congressional authority extended to the President to sell Roppongi thru public
bidding or otherwise.
It is therefore, clear that the President cannot sell or order the sale of Roppongi thru public bidding or
otherwise without a prior congressional approval, first, converting Roppongi from a public dominion
property to a state patrimonial property, and, second, authorizing the President to sell the same.
ACCORDINGLY, my vote is to GRANT the petition and to make PERMANENT the temporary
restraining order earlier issued by this Court.
SARMIENTO, J., concurring:
The central question, as I see it, is whether or not the so-called "Roppongi property' has lost its nature
as property of public dominion, and hence, has become patrimonial property of the State. I
understand that the parties are agreed that it was property intended for "public service" within the
contemplation of paragraph (2), of Article 430, of the Civil Code, and accordingly, land of State
dominion, and beyond human commerce. The lone issue is, in the light of supervening developments,
that is non-user thereof by the National Government (for diplomatic purposes) for the last thirteen
years; the issuance of Executive Order No. 296 making it available for sale to any interested buyer; the
promulgation of Republic Act No. 6657, the Comprehensive Agrarian Reform Law, making available
for the program's financing, State assets sold; the approval by the President of the recommendation
of the investigating committee formed to study the property's utilization; and the issuance of
Resolution No. 55 of the Philippine Senate requesting for the deferment of its disposition it,
"Roppongi", is still property of the public dominion, and if it is not, how it lost that character.
When land of the public dominion ceases to be one, or when the change takes place, is a question our
courts have debated early. In a 1906 decision, 1 it was held that property of the public dominion, a
public plaza in this instance, becomes patrimonial upon use thereof for purposes other than a plaza.
In a later case, 2 this ruling was reiterated. Likewise, it has been held that land, originally private
property, has become of public dominion upon its donation to the town and its conversion and use as
a public plaza. 3 It is notable that under these three cases, the character of the property, and any change
occurring therein, depends on the actual use to which it is dedicated. 4
Much later, however, the Court held that "until a formal declaration on the part of the Government, through the
executive department or the Legislative, to the effect that the land . . . is no longer needed for [public] service-
for public use or for special industries, [it] continue[s] to be part of the public [dominion], not available for
private expropriation or ownership." 5 So also, it was ruled that a political subdivision (the City of Cebu in this
case) alone may declare (under its charter) a city road abandoned and thereafter, to dispose of it. 6
In holding that there is "a need for a law or formal declaration to withdraw the Roppongi property from public
domain to make it alienable and a land for legislative authority to allow the sale of the property" 7 the majority
lays stress to the fact that: (1) An affirmative act — executive or legislative — is necessary to reclassify
property of the public dominion, and (2) a legislative decree is required to make it alienable. It also clears the
uncertainties brought about by earlier interpretations that the nature of property-whether public or patrimonial
is predicated on the manner it is actually used, or not used, and in the same breath, repudiates the
Government's position that the continuous non-use of "Roppongi", among other arguments, for "diplomatic
purposes", has turned it into State patrimonial property.
I feel that this view corresponds to existing pronouncements of this Court, among other things, that: (1)
Property is presumed to be State property in the absence of any showing to the contrary; 8 (2) With respect to
forest lands, the same continue to be lands of the public dominion unless and until reclassified by the
Executive Branch of the Government; 9 and (3) All natural resources, under the Constitution, and subject to
exceptional cases, belong to the State. 10
I am elated that the Court has banished previous uncertainties.
FELICIANO, J., dissenting
With regret, I find myself unable to share the conclusions reached by Mr. Justice Hugo E. Gutierrez, Jr.
For purposes of this separate opinion, I assume that the piece of land located in 306 Roppongi, 5-Chome,
Minato-ku Tokyo, Japan (hereinafter referred to as the "Roppongi property") may be characterized as property
of public dominion, within the meaning of Article 420 (2) of the Civil Code:
[Property] which belong[s] to the State, without being for public use, and are intended for some public service
-.
It might not be amiss however, to note that the appropriateness of trying to bring within the confines of the
simple threefold classification found in Article 420 of the Civil Code ("property for public use property "intended
for some public service" and property intended "for the development of the national wealth") all
property owned by the Republic of the Philippines whether found within the territorial boundaries of the
Republic or located within the territory of another sovereign State, is not self-evident. The first item of the
classification property intended for public use — can scarcely be properly applied to property belonging to the
Republic but found within the territory of another State. The third item of the classification property intended
for the development of the national wealth is illustrated, in Article 339 of the Spanish Civil Code of 1889, by
mines or mineral properties. Again, mineral lands owned by a sovereign State are rarely, if ever, found within
the territorial base of another sovereign State. The task of examining in detail the applicability of the
classification set out in Article 420 of our Civil Code to property that the Philippines happens to own outside its
own boundaries must, however, be left to academicians.
For present purposes, too, I agree that there is no question of conflict of laws that is, at the present time,
before this Court. The issues before us relate essentially to authority to sell the Roppongi property so far as
Philippine law is concerned.
The majority opinion raises two (2) issues: (a) whether or not the Roppongi property has been converted into
patrimonial property or property of the private domain of the State; and (b) assuming an affirmative answer to
(a), whether or not there is legal authority to dispose of the Roppongi property.
I
Addressing the first issue of conversion of property of public dominion intended for some public service, into
property of the private domain of the Republic, it should be noted that the Civil Code does not address the
question of who has authority to effect such conversion. Neither does the Civil Code set out or refer to
any procedure for such conversion.
Our case law, however, contains some fairly explicit pronouncements on this point, as Justice Sarmiento has
pointed out in his concurring opinion. In Ignacio v. Director of Lands (108 Phils. 335 [1960]), petitioner Ignacio
argued that if the land in question formed part of the public domain, the trial court should have declared the
same no longer necessary for public use or public purposes and which would, therefore, have become
disposable and available for private ownership. Mr. Justice Montemayor, speaking for the Court, said:
Article 4 of the Law of Waters of 1866 provides that when a portion of the shore is no longer washed by the
waters of the sea and is not necessary for purposes of public utility, or for the establishment of special
industries, or for coast-guard service, the government shall declare it to be the property of the owners of the
estates adjacent thereto and as an increment thereof. We believe that only the executive and possibly the
legislative departments have the authority and the power to make the declaration that any land so gained by
the sea, is not necessary for purposes of public utility, or for the establishment of special industries, or for
coast-guard service. If no such declaration has been made by said departments, the lot in question forms part
of the public domain. (Natividad v. Director of Lands, supra.)
The reason for this pronouncement, according to this Tribunal in the case of Vicente Joven y Monteverde v.
Director of Lands, 93 Phil., 134 (cited in Velayo's Digest, Vol. 1, p. 52).
... is undoubtedly that the courts are neither primarily called upon, nor indeed in a position to determine
whether any public land are to be used for the purposes specified in Article 4 of the Law of Waters.
Consequently, until a formal declaration on the part of the Government, through the executive department or
the Legislature, to the effect that the land in question is no longer needed for coast-guard service, for public
use or for special industries, they continue to be part of the public domain not available for private
appropriation or ownership. (108 Phil. at 338-339; emphasis supplied)
Thus, under Ignacio, either the Executive Department or the Legislative Department may convert property of
the State of public dominion into patrimonial property of the State. No particular formula or procedure of
conversion is specified either in statute law or in case law. Article 422 of the Civil Code simply states that:
"Property of public dominion, when no longer intended for public use or for public service, shall form part of
the patrimonial property of the State". I respectfully submit, therefore, that the only requirement which is
legitimately imposable is that the intent to convert must be reasonably clear from a consideration of the acts or
acts of the Executive Department or of the Legislative Department which are said to have effected such
conversion.
The same legal situation exists in respect of conversion of property of public dominion belonging to municipal
corporations, i.e., local governmental units, into patrimonial property of such entities. In Cebu Oxygen
Acetylene v. Bercilles (66 SCRA 481 [1975]), the City Council of Cebu by resolution declared a certain portion
of an existing street as an abandoned road, "the same not being included in the city development plan".
Subsequently, by another resolution, the City Council of Cebu authorized the acting City Mayor to sell the land
through public bidding. Although there was no formal and explicit declaration of conversion of property for
public use into patrimonial property, the Supreme Court said:
xxx xxx xxx
(2) Since that portion of the city street subject of petitioner's application for registration of title was withdrawn
from public use, it follows that such withdrawn portion becomes patrimonial property which can be the object
of an ordinary contract.
Article 422 of the Civil Code expressly provides that "Property of public dominion, when no longer intended for
public use of for public service, shall form part of the patrimonial property of the State."
Besides, the Revised Charter of the City of Cebu heretofore quoted, in very clear and unequivocal terms,
states that "Property thus withdrawn from public servitude may be used or conveyed for any purpose for which
other real property belonging to the City may be lawfully used or conveyed."
Accordingly, the withdrawal of the property in question from public use and its subsequent sale to the
petitioner is valid. Hence, the petitioner has a registrable title over the lot in question. (66 SCRA at 484-;
emphasis supplied)
Thus, again as pointed out by Sarmiento J., in his separate opinion, in the case of property owned by
municipal corporations simple non-use or the actual dedication of public property to some use other than
"public use" or some "public service", was sufficient legally to convert such property into patrimonial property
(Municipality of Oas v. Roa, 7 Phil. 20 [1906]- Municipality of Hinunganan v. Director of Lands 24 Phil. 124
[1913]; Province of Zamboanga del Norte v. City of Zamboanga, 22 SCRA 1334 (1968).
I would also add that such was the case not only in respect of' property of municipal corporations but also in
respect of property of the State itself. Manresa in commenting on Article 341 of the 1889 Spanish Civil Code
which has been carried over verbatim into our Civil Code by Article 422 thereof, wrote:
La dificultad mayor en todo esto estriba, naturalmente, en fijar el momento en que los bienes de dominio
publico dejan de serlo. Si la Administracion o la autoridad competente legislative realizan qun acto en virtud
del cual cesa el destino o uso publico de los bienes de que se trata naturalmente la dificultad queda desde el
primer momento resuelta. Hay un punto de partida cierto para iniciar las relaciones juridicas a que pudiera
haber lugar Pero puede ocurrir que no haya taldeclaracion expresa, legislativa or administrativa, y, sin
embargo, cesar de hecho el destino publico de los bienes; ahora bien, en este caso, y para los efectos
juridicos que resultan de entrar la cosa en el comercio de los hombres,' se entedera que se ha verificado la
conversion de los bienes patrimoniales?
El citado tratadista Ricci opina, respecto del antiguo Codigo italiano, por la afirmativa, y por nuestra parte
creemos que tal debe ser la soluciion. El destino de las cosas no depende tanto de una declaracion expresa
como del uso publico de las mismas, y cuanda el uso publico cese con respecto de determinados bienes,
cesa tambien su situacion en el dominio publico. Si una fortaleza en ruina se abandona y no se repara, si un
trozo de la via publica se abandona tambien por constituir otro nuevo an mejores condiciones....ambos bienes
cesan de estar Codigo, y leyes especiales mas o memos administrativas. (3 Manresa, Comentarios al Codigo
Civil Espanol, p. 128 [7a ed.; 1952) (Emphasis supplied)
The majority opinion says that none of the executive acts pointed to by the Government purported, expressly
or definitely, to convert the Roppongi property into patrimonial property — of the Republic. Assuming that to
be the case, it is respectfully submitted that cumulative effect of the executive acts here involved was to
convert property originally intended for and devoted to public service into patrimonial property of the State,
that is, property susceptible of disposition to and appropration by private persons. These executive acts, in
their totality if not each individual act, make crystal clear the intent of the Executive Department to effect such
conversion. These executive acts include:
(a) Administrative Order No. 3 dated 11 August 1985, which created a Committee to study the
disposition/utilization of the Government's property in Japan, The Committee was composed of officials of the
Executive Department: the Executive Secretary; the Philippine Ambassador to Japan; and representatives of
the Department of Foreign Affairs and the Asset Privatization Trust. On 19 September 1988, the Committee
recommended to the President the sale of one of the lots (the lot specifically in Roppongi) through public
bidding. On 4 October 1988, the President approved the recommendation of the Committee.
On 14 December 1988, the Philippine Government by diplomatic note informed the Japanese Ministry of
Foreign Affairs of the Republic's intention to dispose of the property in Roppongi. The Japanese Government
through its Ministry of Foreign Affairs replied that it interposed no objection to such disposition by the Republic.
Subsequently, the President and the Committee informed the leaders of the House of Representatives and of
the Senate of the Philippines of the proposed disposition of the Roppongi property.
(b) Executive Order No. 296, which was issued by the President on 25 July 1987. Assuming that the majority
opinion is right in saying that Executive Order No. 296 is insufficient to authorize the sale of the Roppongi
property, it is here submitted with respect that Executive Order No. 296 is more than sufficient to indicate
an intention to convert the property previously devoted to public service into patrimonial property that is
capable of being sold or otherwise disposed of
(c) Non-use of the Roppongi lot for fourteen (14) years for diplomatic or for any other public purposes.
Assuming (but only arguendo) that non-use does not, by itself, automatically convert the property into
patrimonial property. I respectfully urge that prolonged non-use, conjoined with the other factors here listed,
was legally effective to convert the lot in Roppongi into patrimonial property of the State. Actually, as already
pointed out, case law involving property of municipal corporations is to the effect that simple non-use or the
actual dedication of public property to some use other than public use or public service, was sufficient to
convert such property into patrimonial property of the local governmental entity concerned. Also as pointed
out above, Manresa reached the same conclusion in respect of conversion of property of the public domain of
the State into property of the private domain of the State.
The majority opinion states that "abandonment cannot be inferred from the non-use alone especially if the
non-use was attributable not to the Government's own deliberate and indubitable will but to lack of financial
support to repair and improve the property" (Majority Opinion, p. 13). With respect, it may be stressed that
there is no abandonment involved here, certainly no abandonment of property or of property rights. What is
involved is the charge of the classification of the property from property of the public domain into property of
the private domain of the State. Moreover, if for fourteen (14) years, the Government did not see fit to
appropriate whatever funds were necessary to maintain the property in Roppongi in a condition suitable for
diplomatic representation purposes, such circumstance may, with equal logic, be construed as a
manifestation of the crystalizing intent to change the character of the property.
(d) On 30 March 1989, a public bidding was in fact held by the Executive Department for the sale of the lot in
Roppongi. The circumstance that this bidding was not successful certainly does not argue against an intent to
convert the property involved into property that is disposable by bidding.
The above set of events and circumstances makes no sense at all if it does not, as a whole, show at least the
intent on the part of the Executive Department (with the knowledge of the Legislative Department) to convert
the property involved into patrimonial property that is susceptible of being sold.
II
Having reached an affirmative answer in respect of the first issue, it is necessary to address the second issue
of whether or not there exists legal authority for the sale or disposition of the Roppongi property.
The majority opinion refers to Section 79(f) of the Revised Administrative Code of 1917 which reads as
follows:
SEC. 79 (f). Conveyances and contracts to which the Government is a party. — In cases in which the
Government of the Republic of the Philippines is a party to any deed or other instrument conveying the title to
real estate or to any other property the value of which is in excess of one hundred thousand pesos, the
respective Department Secretary shall prepare the necessary papers which, together with the proper
recommendations, shall be submitted to the Congress of the Philippines for approval by the same. Such deed,
instrument, or contract shall be executed and signed by the President of the Philippines on behalf of the
Government of the Philippines unless the authority therefor be expressly vested by law in another officer.
(Emphasis supplied)
The majority opinion then goes on to state that: "[T]he requirement has been retained in Section 4, Book I of
the Administrative Code of 1987 (Executive Order No. 292)" which reads:
SEC. 48. Official Authorized to Convey Real Property. — Whenever real property of the Government
is authorized by law to be conveyed, the deed of conveyance shall be executed in behalf of the government by
the following:
(1) For property belonging to and titled in the name of the Republic of the Philippines, by the President, unless
the authority therefor is expressly vested by law in another officer.
(2) For property belonging to the Republic of the Philippines but titled in the name of any political subdivision
or of any corporate agency or instrumentality, by the executive head of the agency or instrumentality.
(Emphasis supplied)
Two points need to be made in this connection. Firstly, the requirement of obtaining specific approval of
Congress when the price of the real property being disposed of is in excess of One Hundred Thousand Pesos
(P100,000.00) under the Revised Administrative Code of 1917, has been deleted from Section 48 of the 1987
Administrative Code. What Section 48 of the present Administrative Code refers to is authorization by law for
the conveyance. Section 48 does not purport to be itself a source of legal authority for conveyance of real
property of the Government. For Section 48 merely specifies the official authorized to execute and sign on
behalf of the Government the deed of conveyance in case of such a conveyance.
Secondly, examination of our statute books shows that authorization by law for disposition of real property of
the private domain of the Government, has been granted by Congress both in the form of (a) a general,
standing authorization for disposition of patrimonial property of the Government; and (b) specific legislation
authorizing the disposition of particular pieces of the Government's patrimonial property.
Standing legislative authority for the disposition of land of the private domain of the Philippines is provided by
Act No. 3038, entitled "An Act Authorizing the Secretary of Agriculture and Natural Resources to Sell or
Lease Land of the Private Domain of the Government of the Philippine Islands (now Republic of the
Philippines)", enacted on 9 March 1922. The full text of this statute is as follows:
Be it enacted by the Senate and House of Representatives of the Philippines in Legislature assembled and by
the authority of the same:
SECTION 1. The Secretary of Agriculture and Natural Resources (now Secretary of the Environment and
Natural Resources) is hereby authorized to sell or lease land of the private domain of the Government of the
Philippine Islands, or any part thereof, to such persons, corporations or associations as are, under the
provisions of Act Numbered Twenty-eight hundred and seventy-four, (now Commonwealth Act No. 141, as
amended) known as the Public Land Act, entitled to apply for the purchase or lease or agricultural public land.
SECTION 2. The sale of the land referred to in the preceding section shall, if such land is agricultural, be
made in the manner and subject to the limitations prescribed in chapters five and six, respectively, of said
Public Land Act, and if it be classified differently, in conformity with the provisions of chapter nine of said Act:
Provided, however, That the land necessary for the public service shall be exempt from the provisions of this
Act.
SECTION 3. This Act shall take effect on its approval.
Approved, March 9, 1922. (Emphasis supplied)
Lest it be assumed that Act No. 3038 refers only to agricultural lands of the private domain of the State, it must
be noted that Chapter 9 of the old Public Land Act (Act No. 2874) is now Chapter 9 of the present Public Land
Act (Commonwealth Act No. 141, as amended) and that both statutes refer to: "any tract of land of the public
domain which being neither timber nor mineral land, is intended to be used for residential purposes or
for commercial or industrial purposes other than agricultural" (Emphasis supplied). In other words, the statute
i•t •c-a üsl
covers the sale or lease or residential, commercial or industrial land of the private domain of the State.
Implementing regulations have been issued for the carrying out of the provisions of Act No. 3038. On 21
December 1954, the then Secretary of Agriculture and Natural Resources promulgated Lands Administrative
Orders Nos. 7-6 and 7-7 which were entitled, respectively: "Supplementary Regulations Governing the Sale of
the Lands of the Private Domain of the Republic of the Philippines"; and "Supplementary Regulations
Governing the Lease of Lands of Private Domain of the Republic of the Philippines" (text in 51 O.G. 28-29
[1955]).
It is perhaps well to add that Act No. 3038, although now sixty-eight (68) years old, is still in effect and has not
been repealed. 1
Specific legislative authorization for disposition of particular patrimonial properties of the State is illustrated by
certain earlier statutes. The first of these was Act No. 1120, enacted on 26 April 1904, which provided for the
disposition of the friar lands, purchased by the Government from the Roman Catholic Church, to bona
fide settlers and occupants thereof or to other persons. In Jacinto v. Director of Lands (49 Phil. 853 [1926]),
these friar lands were held to be private and patrimonial properties of the State. Act No. 2360, enacted on -28
February 1914, authorized the sale of the San Lazaro Estate located in the City of Manila, which had also
been purchased by the Government from the Roman Catholic Church. In January 1916, Act No. 2555
amended Act No. 2360 by including therein all lands and buildings owned by the Hospital and the Foundation
of San Lazaro theretofor leased by private persons, and which were also acquired by the Philippine
Government.
After the enactment in 1922 of Act No. 3038, there appears, to my knowledge, to be only one statute
authorizing the President to dispose of a specific piece of property. This statute is Republic Act No. 905,
enacted on 20 June 1953, which authorized the
President to sell an Identified parcel of land of the private domain of the National Government to the National
Press Club of the Philippines, and to other recognized national associations of professionals with academic
standing, for the nominal price of P1.00. It appears relevant to note that Republic Act No. 905 was not an
outright disposition in perpetuity of the property involved- it provided for reversion of the property to the
National Government in case the National Press Club stopped using it for its headquarters. What Republic Act
No. 905 authorized was really a donation, and not a sale.
The basic submission here made is that Act No. 3038 provides standing legislative authorization for
disposition of the Roppongi property which, in my view, has been converted into patrimonial property of the
Republic. 2
To some, the submission that Act No. 3038 applies not only to lands of the private domain of the State located
in the Philippines but also to patrimonial property found outside the Philippines, may appear strange or
unusual. I respectfully submit that such position is not any more unusual or strange than the assumption that
Article 420 of the Civil Code applies not only to property of the Republic located within Philippine territory but
also to property found outside the boundaries of the Republic.
It remains to note that under the well-settled doctrine that heads of Executive Departments are alter egos of
the President (Villena v. Secretary of the Interior, 67 Phil. 451 [1939]), and in view of the constitutional power
of control exercised by the President over department heads (Article VII, Section 17,1987 Constitution), the
President herself may carry out the function or duty that is specifically lodged in the Secretary of the
Department of Environment and Natural Resources (Araneta v. Gatmaitan 101 Phil. 328 [1957]). At the very
least, the President retains the power to approve or disapprove the exercise of that function or duty when
done by the Secretary of Environment and Natural Resources.
It is hardly necessary to add that the foregoing analyses and submissions relate only to the austere question
of existence of legal power or authority. They have nothing to do with much debated questions of wisdom or
propriety or relative desirability either of the proposed disposition itself or of the proposed utilization of the
anticipated proceeds of the property involved. These latter types of considerations He within the sphere of
responsibility of the political departments of government the Executive and the Legislative authorities.
For all the foregoing, I vote to dismiss the Petitions for Prohibition in both G.R. Nos. 92013 and 92047.
Fernan, C.J., Narvasa, Gancayco, Cortes and Medialdea, JJ., concurring.
Separate Opinions
CRUZ, J., concurring:
I concur completely with the excellent ponencia of Mr. Justice Gutierrez and will add the following
observations only for emphasis.
It is clear that the respondents have failed to show the President's legal authority to sell the Roppongi property.
When asked to do so at the hearing on these petitions, the Solicitor General was at best ambiguous, although
I must add in fairness that this was not his fault. The fact is that there is -no such authority. Legal expertise
alone cannot conjure that statutory permission out of thin air.
Exec. Order No. 296, which reads like so much legislative, double talk, does not contain such authority.
Neither does Rep. Act No. 6657, which simply allows the proceeds of the sale of our properties abroad to be
used for the comprehensive agrarian reform program. Senate Res. No. 55 was a mere request for the
deferment of the scheduled sale of tile Roppongi property, possibly to stop the transaction altogether; and ill
any case it is not a law. The sale of the said property may be authorized only by Congress through a duly
enacted statute, and there is no such law.
Once again, we have affirmed the principle that ours is a government of laws and not of men, where every
public official, from the lowest to the highest, can act only by virtue of a valid authorization. I am happy to note
that in the several cases where this Court has ruled against her, the President of the Philippines has submitted
to this principle with becoming grace.
PADILLA, J., concurring:
I concur in the decision penned by Mr. Justice Gutierrez, Jr., I only wish to make a few observations which
could help in further clarifying the issues.
Under our tripartite system of government ordained by the Constitution, it is Congress that lays down or
determines policies. The President executes such policies. The policies determined by Congress are
embodied in legislative enactments that have to be approved by the President to become law. The President,
of course, recommends to Congress the approval of policies but, in the final analysis, it is Congress that is the
policy - determining branch of government.
The judiciary interprets the laws and, in appropriate cases, determines whether the laws enacted by Congress
and approved by the President, and presidential acts implementing such laws, are in accordance with the
Constitution.
The Roppongi property was acquired by the Philippine government pursuant to the reparations agreement
between the Philippine and Japanese governments. Under such agreement, this property was acquired by the
Philippine government for a specific purpose, namely, to serve as the site of the Philippine Embassy in Tokyo,
Japan. Consequently, Roppongi is a property of public dominion and intended for public service, squarely
falling within that class of property under Art. 420 of the Civil Code, which provides:
Art. 420. The following things are property of public dominion :
(1) ...
(2) Those which belong to the State, without being for public use, and are intended for some public service or
for the development of the national wealth. (339a)
Public dominion property intended for public service cannot be alienated unless the property is first
transformed into private property of the state otherwise known as patrimonial property of the state. 1 The
transformation of public dominion property to state patrimonial property involves, to my mind, a policy decision.
It is a policy decision because the treatment of the property varies according to its classification. Consequently,
it is Congress which can decide and declare the conversion of Roppongi from a public dominion property to a
state patrimonial property. Congress has made no such decision or declaration.
Moreover, the sale of public property (once converted from public dominion to state patrimonial property) must
be approved by Congress, for this again is a matter of policy (i.e. to keep or dispose of the property). Sec. 48,
Book 1 of the Administrative Code of 1987 provides:
SEC. 48. Official Authorized to Convey Real Property. — Whenever real property of the Government is
authorized by law to be conveyed, the deed of conveyance shall be executed in behalf of the government by
the following:
(1) For property belonging to and titled in the name of the Republic of the Philippines, by the President, unless
the authority therefor is expressly vested by law in another officer.
(2) For property belonging to the Republic of the Philippines but titled in the name of any political subdivision
or of any corporate agency or instrumentality, by the executive head of the agency or instrumentality.
(Emphasis supplied)
But the record is bare of any congressional decision or approval to sell Roppongi. The record is likewise bare
of any congressional authority extended to the President to sell Roppongi thru public bidding or otherwise.
It is therefore, clear that the President cannot sell or order the sale of Roppongi thru public bidding or
otherwise without a prior congressional approval, first, converting Roppongi from a public dominion property to
a state patrimonial property, and, second, authorizing the President to sell the same.
ACCORDINGLY, my vote is to GRANT the petition and to make PERMANENT the temporary restraining
order earlier issued by this Court.
SARMIENTO, J., concurring:
The central question, as I see it, is whether or not the so-called "Roppongi property' has lost its nature as
property of public dominion, and hence, has become patrimonial property of the State. I understand that the
parties are agreed that it was property intended for "public service" within the contemplation of paragraph (2),
of Article 430, of the Civil Code, and accordingly, land of State dominion, and beyond human commerce. The
lone issue is, in the light of supervening developments, that is non-user thereof by the National Government
(for diplomatic purposes) for the last thirteen years; the issuance of Executive Order No. 296 making it
available for sale to any interested buyer; the promulgation of Republic Act No. 6657, the Comprehensive
Agrarian Reform Law, making available for the program's financing, State assets sold; the approval by the
President of the recommendation of the investigating committee formed to study the property's utilization; and
the issuance of Resolution No. 55 of the Philippine Senate requesting for the deferment of its disposition it,
"Roppongi", is still property of the public dominion, and if it is not, how it lost that character.
When land of the public dominion ceases to be one, or when the change takes place, is a question our courts
have debated early. In a 1906 decision, 1 it was held that property of the public dominion, a public plaza in this
instance, becomes patrimonial upon use thereof for purposes other than a plaza. In a later case, 2 this ruling
was reiterated. Likewise, it has been held that land, originally private property, has become of public dominion
upon its donation to the town and its conversion and use as a public plaza. 3 It is notable that under these
three cases, the character of the property, and any change occurring therein, depends on the actual use to
which it is dedicated. 4
Much later, however, the Court held that "until a formal declaration on the part of the Government, through the
executive department or the Legislative, to the effect that the land . . . is no longer needed for [public] service-
for public use or for special industries, [it] continue[s] to be part of the public [dominion], not available for
private expropriation or ownership." 5 So also, it was ruled that a political subdivision (the City of Cebu in this
case) alone may declare (under its charter) a city road abandoned and thereafter, to dispose of it. 6
In holding that there is "a need for a law or formal declaration to withdraw the Roppongi property from public
domain to make it alienable and a land for legislative authority to allow the sale of the property" 7 the majority
lays stress to the fact that: (1) An affirmative act — executive or legislative — is necessary to reclassify
property of the public dominion, and (2) a legislative decree is required to make it alienable. It also clears the
uncertainties brought about by earlier interpretations that the nature of property-whether public or patrimonial
is predicated on the manner it is actually used, or not used, and in the same breath, repudiates the
Government's position that the continuous non-use of "Roppongi", among other arguments, for "diplomatic
purposes", has turned it into State patrimonial property.
I feel that this view corresponds to existing pronouncements of this Court, among other things, that: (1)
Property is presumed to be State property in the absence of any showing to the contrary; 8 (2) With respect to
forest lands, the same continue to be lands of the public dominion unless and until reclassified by the
Executive Branch of the Government; 9 and (3) All natural resources, under the Constitution, and subject to
exceptional cases, belong to the State. 10
I am elated that the Court has banished previous uncertainties.
FELICIANO, J., dissenting
With regret, I find myself unable to share the conclusions reached by Mr. Justice Hugo E. Gutierrez, Jr.
For purposes of this separate opinion, I assume that the piece of land located in 306 Roppongi, 5-Chome,
Minato-ku Tokyo, Japan (hereinafter referred to as the "Roppongi property") may be characterized as property
of public dominion, within the meaning of Article 420 (2) of the Civil Code:
[Property] which belong[s] to the State, without being for public use, and are intended for some public service
-.
It might not be amiss however, to note that the appropriateness of trying to bring within the confines of the
simple threefold classification found in Article 420 of the Civil Code ("property for public use property "intended
for some public service" and property intended "for the development of the national wealth") all
property owned by the Republic of the Philippines whether found within the territorial boundaries of the
Republic or located within the territory of another sovereign State, is not self-evident. The first item of the
classification property intended for public use — can scarcely be properly applied to property belonging to the
Republic but found within the territory of another State. The third item of the classification property intended
for the development of the national wealth is illustrated, in Article 339 of the Spanish Civil Code of 1889, by
mines or mineral properties. Again, mineral lands owned by a sovereign State are rarely, if ever, found within
the territorial base of another sovereign State. The task of examining in detail the applicability of the
classification set out in Article 420 of our Civil Code to property that the Philippines happens to own outside its
own boundaries must, however, be left to academicians.
For present purposes, too, I agree that there is no question of conflict of laws that is, at the present time,
before this Court. The issues before us relate essentially to authority to sell the Roppongi property so far as
Philippine law is concerned.
The majority opinion raises two (2) issues: (a) whether or not the Roppongi property has been converted into
patrimonial property or property of the private domain of the State; and (b) assuming an affirmative answer to
(a), whether or not there is legal authority to dispose of the Roppongi property.
 I Acetylene v. Bercilles (66 SCRA 481 [1975]), the City Council of Cebu by resolution declared a certain portion
Addressing the first issue of conversion of property of public dominion intended for some public service, into
property of the private domain of the Republic, it should be noted that the Civil Code does not address the
question of who has authority to effect such conversion. Neither does the Civil Code set out or refer to
any procedure for such conversion.
Our case law, however, contains some fairly explicit pronouncements on this point, as Justice Sarmiento has
pointed out in his concurring opinion. In Ignacio v. Director of Lands (108 Phils. 335 [1960]), petitioner Ignacio
argued that if the land in question formed part of the public domain, the trial court should have declared the
same no longer necessary for public use or public purposes and which would, therefore, have become
disposable and available for private ownership. Mr. Justice Montemayor, speaking for the Court, said:
Article 4 of the Law of Waters of 1866 provides that when a portion of the shore is no longer washed by the
waters of the sea and is not necessary for purposes of public utility, or for the establishment of special
industries, or for coast-guard service, the government shall declare it to be the property of the owners of the
estates adjacent thereto and as an increment thereof. We believe that only the executive and possibly the
legislative departments have the authority and the power to make the declaration that any land so gained by
the sea, is not necessary for purposes of public utility, or for the establishment of special industries, or for
coast-guard service. If no such declaration has been made by said departments, the lot in question forms part
of the public domain. (Natividad v. Director of Lands, supra.)
The reason for this pronouncement, according to this Tribunal in the case of Vicente Joven y Monteverde v.
Director of Lands, 93 Phil., 134 (cited in Velayo's Digest, Vol. 1, p. 52).
... is undoubtedly that the courts are neither primarily called upon, nor indeed in a position to determine
whether any public land are to be used for the purposes specified in Article 4 of the Law of Waters.
Consequently, until a formal declaration on the part of the Government, through the executive department or
the Legislature, to the effect that the land in question is no longer needed for coast-guard service, for public
use or for special industries, they continue to be part of the public domain not available for private
appropriation or ownership. (108 Phil. at 338-339; emphasis supplied)
Thus, under Ignacio, either the Executive Department or the Legislative Department may convert property of
the State of public dominion into patrimonial property of the State. No particular formula or procedure of
conversion is specified either in statute law or in case law. Article 422 of the Civil Code simply states that:
"Property of public dominion, when no longer intended for public use or for public service, shall form part of
the patrimonial property of the State". I respectfully submit, therefore, that the only requirement which is
legitimately imposable is that the intent to convert must be reasonably clear from a consideration of the acts or
acts of the Executive Department or of the Legislative Department which are said to have effected such
conversion.
The same legal situation exists in respect of conversion of property of public dominion belonging to municipal
corporations, i.e., local governmental units, into patrimonial property of such entities. In Cebu Oxygen
of an existing street as an abandoned road, "the same not being included in the city development plan".
Subsequently, by another resolution, the City Council of Cebu authorized the acting City Mayor to sell the land
through public bidding. Although there was no formal and explicit declaration of conversion of property for
public use into patrimonial property, the Supreme Court said:
xxx xxx xxx
(2) Since that portion of the city street subject of petitioner's application for registration of title was withdrawn
from public use, it follows that such withdrawn portion becomes patrimonial property which can be the object
of an ordinary contract.
Article 422 of the Civil Code expressly provides that "Property of public dominion, when no longer intended for
public use of for public service, shall form part of the patrimonial property of the State."
Besides, the Revised Charter of the City of Cebu heretofore quoted, in very clear and unequivocal terms,
states that "Property thus withdrawn from public servitude may be used or conveyed for any purpose for which
other real property belonging to the City may be lawfully used or conveyed."
Accordingly, the withdrawal of the property in question from public use and its subsequent sale to the
petitioner is valid. Hence, the petitioner has a registrable title over the lot in question. (66 SCRA at 484-;
emphasis supplied)
Thus, again as pointed out by Sarmiento J., in his separate opinion, in the case of property owned by
municipal corporations simple non-use or the actual dedication of public property to some use other than
"public use" or some "public service", was sufficient legally to convert such property into patrimonial property
(Municipality of Oas v. Roa, 7 Phil. 20 [1906]- Municipality of Hinunganan v. Director of Lands 24 Phil. 124
[1913]; Province of Zamboanga del Norte v. City of Zamboanga, 22 SCRA 1334 (1968).
I would also add that such was the case not only in respect of' property of municipal corporations but also in
respect of property of the State itself. Manresa in commenting on Article 341 of the 1889 Spanish Civil Code
which has been carried over verbatim into our Civil Code by Article 422 thereof, wrote:
La dificultad mayor en todo esto estriba, naturalmente, en fijar el momento en que los bienes de dominio
publico dejan de serlo. Si la Administracion o la autoridad competente legislative realizan qun acto en virtud
del cual cesa el destino o uso publico de los bienes de que se trata naturalmente la dificultad queda desde el
primer momento resuelta. Hay un punto de partida cierto para iniciar las relaciones juridicas a que pudiera
haber lugar Pero puede ocurrir que no haya taldeclaracion expresa, legislativa or administrativa, y, sin
embargo, cesar de hecho el destino publico de los bienes; ahora bien, en este caso, y para los efectos
juridicos que resultan de entrar la cosa en el comercio de los hombres,' se entedera que se ha verificado la
conversion de los bienes patrimoniales?
El citado tratadista Ricci opina, respecto del antiguo Codigo italiano, por la afirmativa, y por nuestra parte
creemos que tal debe ser la soluciion. El destino de las cosas no depende tanto de una declaracion expresa
como del uso publico de las mismas, y cuanda el uso publico cese con respecto de determinados bienes,
cesa tambien su situacion en el dominio publico. Si una fortaleza en ruina se abandona y no se repara, si un
trozo de la via publica se abandona tambien por constituir otro nuevo an mejores condiciones....ambos bienes
cesan de estar Codigo, y leyes especiales mas o memos administrativas. (3 Manresa, Comentarios al Codigo
Civil Espanol, p. 128 [7a ed.; 1952) (Emphasis supplied)
The majority opinion says that none of the executive acts pointed to by the Government purported, expressly
or definitely, to convert the Roppongi property into patrimonial property — of the Republic. Assuming that to
be the case, it is respectfully submitted that cumulative effect of the executive acts here involved was to
convert property originally intended for and devoted to public service into patrimonial property of the State,
that is, property susceptible of disposition to and appropration by private persons. These executive acts, in
their totality if not each individual act, make crystal clear the intent of the Executive Department to effect such
conversion. These executive acts include:
(a) Administrative Order No. 3 dated 11 August 1985, which created a Committee to study the
disposition/utilization of the Government's property in Japan, The Committee was composed of officials of the
Executive Department: the Executive Secretary; the Philippine Ambassador to Japan; and representatives of
the Department of Foreign Affairs and the Asset Privatization Trust. On 19 September 1988, the Committee
recommended to the President the sale of one of the lots (the lot specifically in Roppongi) through public
bidding. On 4 October 1988, the President approved the recommendation of the Committee.
On 14 December 1988, the Philippine Government by diplomatic note informed the Japanese Ministry of
Foreign Affairs of the Republic's intention to dispose of the property in Roppongi. The Japanese Government
through its Ministry of Foreign Affairs replied that it interposed no objection to such disposition by the Republic.
Subsequently, the President and the Committee informed the leaders of the House of Representatives and of
the Senate of the Philippines of the proposed disposition of the Roppongi property.
(b) Executive Order No. 296, which was issued by the President on 25 July 1987. Assuming that the majority
opinion is right in saying that Executive Order No. 296 is insufficient to authorize the sale of the Roppongi
property, it is here submitted with respect that Executive Order No. 296 is more than sufficient to indicate
an intention to convert the property previously devoted to public service into patrimonial property that is
capable of being sold or otherwise disposed of
(c) Non-use of the Roppongi lot for fourteen (14) years for diplomatic or for any other public purposes.
Assuming (but only arguendo) that non-use does not, by itself, automatically convert the property into
patrimonial property. I respectfully urge that prolonged non-use, conjoined with the other factors here listed,
was legally effective to convert the lot in Roppongi into patrimonial property of the State. Actually, as already
pointed out, case law involving property of municipal corporations is to the effect that simple non-use or the
actual dedication of public property to some use other than public use or public service, was sufficient to
convert such property into patrimonial property of the local governmental entity concerned. Also as pointed
out above, Manresa reached the same conclusion in respect of conversion of property of the public domain of
the State into property of the private domain of the State.
The majority opinion states that "abandonment cannot be inferred from the non-use alone especially if the
non-use was attributable not to the Government's own deliberate and indubitable will but to lack of financial
support to repair and improve the property" (Majority Opinion, p. 13). With respect, it may be stressed that
there is no abandonment involved here, certainly no abandonment of property or of property rights. What is
involved is the charge of the classification of the property from property of the public domain into property of
the private domain of the State. Moreover, if for fourteen (14) years, the Government did not see fit to
appropriate whatever funds were necessary to maintain the property in Roppongi in a condition suitable for
diplomatic representation purposes, such circumstance may, with equal logic, be construed as a
manifestation of the crystalizing intent to change the character of the property.
(d) On 30 March 1989, a public bidding was in fact held by the Executive Department for the sale of the lot in
Roppongi. The circumstance that this bidding was not successful certainly does not argue against an intent to
convert the property involved into property that is disposable by bidding.
The above set of events and circumstances makes no sense at all if it does not, as a whole, show at least the
intent on the part of the Executive Department (with the knowledge of the Legislative Department) to convert
the property involved into patrimonial property that is susceptible of being sold.
II
Having reached an affirmative answer in respect of the first issue, it is necessary to address the second issue
of whether or not there exists legal authority for the sale or disposition of the Roppongi property.
The majority opinion refers to Section 79(f) of the Revised Administrative Code of 1917 which reads as
follows:
SEC. 79 (f). Conveyances and contracts to which the Government is a party. — In cases in which the
Government of the Republic of the Philippines is a party to any deed or other instrument conveying the title to
real estate or to any other property the value of which is in excess of one hundred thousand pesos, the
respective Department Secretary shall prepare the necessary papers which, together with the proper
recommendations, shall be submitted to the Congress of the Philippines for approval by the same. Such deed,
instrument, or contract shall be executed and signed by the President of the Philippines on behalf of the
Government of the Philippines unless the authority therefor be expressly vested by law in another officer.
(Emphasis supplied)
The majority opinion then goes on to state that: "[T]he requirement has been retained in Section 4, Book I of
the Administrative Code of 1987 (Executive Order No. 292)" which reads:
SEC. 48. Official Authorized to Convey Real Property. — Whenever real property of the Government
is authorized by law to be conveyed, the deed of conveyance shall be executed in behalf of the government by
the following:
(1) For property belonging to and titled in the name of the Republic of the Philippines, by the President, unless
the authority therefor is expressly vested by law in another officer.
(2) For property belonging to the Republic of the Philippines but titled in the name of any political subdivision
or of any corporate agency or instrumentality, by the executive head of the agency or instrumentality.
(Emphasis supplied)
Two points need to be made in this connection. Firstly, the requirement of obtaining specific approval of
Congress when the price of the real property being disposed of is in excess of One Hundred Thousand Pesos
(P100,000.00) under the Revised Administrative Code of 1917, has been deleted from Section 48 of the 1987
Administrative Code. What Section 48 of the present Administrative Code refers to is authorization by law for
the conveyance. Section 48 does not purport to be itself a source of legal authority for conveyance of real
property of the Government. For Section 48 merely specifies the official authorized to execute and sign on
behalf of the Government the deed of conveyance in case of such a conveyance.
Secondly, examination of our statute books shows that authorization by law for disposition of real property of
the private domain of the Government, has been granted by Congress both in the form of (a) a general,
standing authorization for disposition of patrimonial property of the Government; and (b) specific legislation
authorizing the disposition of particular pieces of the Government's patrimonial property.
Standing legislative authority for the disposition of land of the private domain of the Philippines is provided by
Act No. 3038, entitled "An Act Authorizing the Secretary of Agriculture and Natural Resources to Sell or
Lease Land of the Private Domain of the Government of the Philippine Islands (now Republic of the
Philippines)", enacted on 9 March 1922. The full text of this statute is as follows:
Be it enacted by the Senate and House of Representatives of the Philippines in Legislature assembled and by
the authority of the same:
SECTION 1. The Secretary of Agriculture and Natural Resources (now Secretary of the Environment and
Natural Resources) is hereby authorized to sell or lease land of the private domain of the Government of the
Philippine Islands, or any part thereof, to such persons, corporations or associations as are, under the
provisions of Act Numbered Twenty-eight hundred and seventy-four, (now Commonwealth Act No. 141, as
amended) known as the Public Land Act, entitled to apply for the purchase or lease or agricultural public land.
SECTION 2. The sale of the land referred to in the preceding section shall, if such land is agricultural, be
made in the manner and subject to the limitations prescribed in chapters five and six, respectively, of said
Public Land Act, and if it be classified differently, in conformity with the provisions of chapter nine of said Act:
Provided, however, That the land necessary for the public service shall be exempt from the provisions of this
Act.
SECTION 3. This Act shall take effect on its approval.
Approved, March 9, 1922. (Emphasis supplied)
Lest it be assumed that Act No. 3038 refers only to agricultural lands of the private domain of the State, it must
be noted that Chapter 9 of the old Public Land Act (Act No. 2874) is now Chapter 9 of the present Public Land
Act (Commonwealth Act No. 141, as amended) and that both statutes refer to: "any tract of land of the public
domain which being neither timber nor mineral land, is intended to be used for residential purposes or
for commercial or industrial purposes other than agricultural" (Emphasis supplied). In other words, the statute
covers the sale or lease or residential, commercial or industrial land of the private domain of the State.
Implementing regulations have been issued for the carrying out of the provisions of Act No. 3038. On 21
December 1954, the then Secretary of Agriculture and Natural Resources promulgated Lands Administrative
Orders Nos. 7-6 and 7-7 which were entitled, respectively: "Supplementary Regulations Governing the Sale of
the Lands of the Private Domain of the Republic of the Philippines"; and "Supplementary Regulations
Governing the Lease of Lands of Private Domain of the Republic of the Philippines" (text in 51 O.G. 28-29
[1955]).
It is perhaps well to add that Act No. 3038, although now sixty-eight (68) years old, is still in effect and has not
been repealed. 1
Specific legislative authorization for disposition of particular patrimonial properties of the State is illustrated by
certain earlier statutes. The first of these was Act No. 1120, enacted on 26 April 1904, which provided for the
disposition of the friar lands, purchased by the Government from the Roman Catholic Church, to bona
fide settlers and occupants thereof or to other persons. In Jacinto v. Director of Lands (49 Phil. 853 [1926]),
these friar lands were held to be private and patrimonial properties of the State. Act No. 2360, enacted on -28
February 1914, authorized the sale of the San Lazaro Estate located in the City of Manila, which had also
been purchased by the Government from the Roman Catholic Church. In January 1916, Act No. 2555
amended Act No. 2360 by including therein all lands and buildings owned by the Hospital and the Foundation
of San Lazaro theretofor leased by private persons, and which were also acquired by the Philippine
Government.
After the enactment in 1922 of Act No. 3038, there appears, to my knowledge, to be only one statute
authorizing the President to dispose of a specific piece of property. This statute is Republic Act No. 905,
enacted on 20 June 1953, which authorized the
President to sell an Identified parcel of land of the private domain of the National Government to the National
Press Club of the Philippines, and to other recognized national associations of professionals with academic
standing, for the nominal price of P1.00. It appears relevant to note that Republic Act No. 905 was not an
outright disposition in perpetuity of the property involved- it provided for reversion of the property to the
National Government in case the National Press Club stopped using it for its headquarters. What Republic Act
No. 905 authorized was really a donation, and not a sale.
The basic submission here made is that Act No. 3038 provides standing legislative authorization for
disposition of the Roppongi property which, in my view, has been converted into patrimonial property of the
Republic. 2

To some, the submission that Act No. 3038 applies not only to lands of the private domain of the State located
in the Philippines but also to patrimonial property found outside the Philippines, may appear strange or
unusual. I respectfully submit that such position is not any more unusual or strange than the assumption that
Article 420 of the Civil Code applies not only to property of the Republic located within Philippine territory but
also to property found outside the boundaries of the Republic.

It remains to note that under the well-settled doctrine that heads of Executive Departments are alter egos of
the President (Villena v. Secretary of the Interior, 67 Phil. 451 [1939]), and in view of the constitutional power
of control exercised by the President over department heads (Article VII, Section 17,1987 Constitution), the
President herself may carry out the function or duty that is specifically lodged in the Secretary of the
Department of Environment and Natural Resources (Araneta v. Gatmaitan 101 Phil. 328 [1957]). At the very
least, the President retains the power to approve or disapprove the exercise of that function or duty when
done by the Secretary of Environment and Natural Resources.

It is hardly necessary to add that the foregoing analyses and submissions relate only to the austere question
of existence of legal power or authority. They have nothing to do with much debated questions of wisdom or
propriety or relative desirability either of the proposed disposition itself or of the proposed utilization of the
anticipated proceeds of the property involved. These latter types of considerations He within the sphere of
responsibility of the political departments of government the Executive and the Legislative authorities.

For all the foregoing, I vote to dismiss the Petitions for Prohibition in both G.R. Nos. 92013 and 92047.

Fernan, C.J., Narvasa, Gancayco, Cortes and Medialdea, JJ., concurring.

Footnotes

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23678 June 6, 1967
TESTATE ESTATE OF AMOS G. BELLIS, deceased.
PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of
Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089
therein.
1äw phï1. ñët
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife,
Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who
pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife,
Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and
Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam
Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes,
obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in
the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three
illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c)
after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his
first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman,
Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares. 1äwp hï1. ñët
Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was
admitted to probate in the Court of First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the
amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate
children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00
each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from time to time
according as the lower court approved and allowed the various motions or petitions filed by the latter three
requesting partial advances on account of their respective legacies.
On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's
Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction
of the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the
legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or
a total of P120,000.00. In the project of partition, the executor — pursuant to the "Twelfth" clause of the
testator's Last Will and Testament — divided the residuary estate into seven equal portions for the benefit of
the testator's seven legitimate children by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the
project of partition on the ground that they were deprived of their legitimes as illegitimate children and,
therefore, compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the
registry receipt submitted on April 27, 1964 by the executor.1
After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30,
1964, issued an order overruling the oppositions and approving the executor's final account, report and
administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the
decedent, which in this case is Texas law, which did not provide for legitimes.
Their respective motions for reconsideration having been denied by the lower court on June 11, 1964,
oppositors-appellants appealed to this Court to raise the issue of which law must apply — Texas law or
Philippine law.
In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this
Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the
decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the
decedent was both a national of Texas and a domicile thereof at the time of his death. 2 So that even assuming
Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the
same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law.
Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of
the law of the place where the properties are situated, renvoi would arise, since the properties here involved
are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should
not be presumed different from ours.3 Appellants' position is therefore not rested on the doctrine of renvoi. As
stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls
under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil
Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in
intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of
successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They
provide that —
ART. 16. Real property as well as personal property is subject to the law of the country where it is situated.
However, intestate and testamentary successions, both with respect to the order of succession and to the
amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the
national law of the person whose succession is under consideration, whatever may he the nature of the
property and regardless of the country wherein said property may be found.
ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.
Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that —
Prohibitive laws concerning persons, their acts or property, and those which have for their object public order,
public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country.
prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely,
Congress deleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they
incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without
substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have
been their purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied
in testate and intestate succession. As further indication of this legislative intent, Congress added a new
provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the
decedent.
It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes,
Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically
chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific
provisions must prevail over general ones.
Appellants would also point out that the decedent executed two wills — one to govern his Texas estate and
the other his Philippine estate — arguing from this that he intended Philippine law to govern his Philippine
estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not
alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the
effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is
illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 — now Article
16 — of the Civil Code states said national law should govern.
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that
under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the
provision of the will and the amount of successional rights are to be determined under Texas law, the
Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.
Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-22595 November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,

vs.
ANDRE BRIMO, opponent-appellant.

Ross, Lawrence and Selph for appellant.

Camus and Delgado for appellee.

ROMUALDEZ, J.:

The partition of the estate left by the deceased Joseph G. Brimo is in question in this case.

The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of the
deceased, opposed it. The court, however, approved it.

The errors which the oppositor-appellant assigns are:

(1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the denial of
the motion for reconsideration of the order approving the partition; (4) the approval of the purchase made by
the Pietro Lana of the deceased's business and the deed of transfer of said business; and (5) the declaration
that the Turkish laws are impertinent to this cause, and the failure not to postpone the approval of the scheme
of partition and the delivery of the deceased's business to Pietro Lanza until the receipt of the depositions
requested in reference to the Turkish laws.

The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of
Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality, for which reason
they are void as being in violation or article 10 of the Civil Code which, among other things, provides the
following:
Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the
amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the
national law of the person whose succession is in question, whatever may be the nature of the property or the
country in which it may be situated.
If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein
oppositor who, by his attitude in these proceedings has not respected the will of the testator, as expressed, is
prevented from receiving his legacy.
The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil Code
provides the following:

But the fact is that the oppositor did not prove that said testimentary dispositions are not in accordance with
the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the
matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the
Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he
desires to be given an opportunity to present evidence on this point; so much so that he assigns as an error of
the court in not having deferred the approval of the scheme of partition until the receipt of certain testimony
requested regarding the Turkish laws on the matter.
Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall
not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide.
And said condition is contrary to law because it expressly ignores the testator's national law when, according
to article 10 of the civil Code above quoted, such national law of the testator is the one to govern his
testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution
of legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor.

The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is
discretionary with the trial court, and, taking into consideration that the oppositor was granted ample
opportunity to introduce competent evidence, we find no abuse of discretion on the part of the court in this
particular. There is, therefore, no evidence in the record that the national law of the testator Joseph G. Brimo
was violated in the testamentary dispositions in question which, not being contrary to our laws in force, must
be complied with and executed. l awphil. net
It results from all this that the second clause of the will regarding the law which shall govern it, and to the
condition imposed upon the legatees, is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective
it not appearing that said clauses are contrary to the testator's national law.

Therefore, the approval of the scheme of partition in this respect was not erroneous.
In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee,
inasmuch as he is one of the persons designated as such in will, it must be taken into consideration that such
exclusion is based on the last part of the second clause of the will, which says:
Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made
in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of
partition submitted by the judicial administrator is approved in all other respects, without any pronouncement
as to costs.
So ordered.

Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having been Street, Malcolm, Avanceña, Villamor and Ostrand, JJ., concur.
conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand, having
resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the
property that I now possess, it is my wish that the distribution of my property and everything in connection with
this, my will, be made and disposed of in accordance with the laws in force in the Philippine islands,
requesting all of my relatives to respect this wish, otherwise, I annul and cancel beforehand whatever
disposition found in this will favorable to the person or persons who fail to comply with this request.

The institution of legatees in this will is conditional, and the condition is that the instituted legatees must
respect the testator's will to distribute his property, not in accordance with the laws of his nationality, but in
accordance with the laws of the Philippines.

Republic of the Philippines
SUPREME COURT
FIRST DIVISION
G.R. No. 120077 October 13, 2000
THE MANILA HOTEL CORP. AND MANILA HOTEL INTL. LTD., petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION, ARBITER CEFERINA J. DIOSANA AND MARCELO G.
SANTOS, respondents.
PARDO, J.:
The case before the Court is a petition for certiorari1 to annul the following orders of the National Labor
Relations Commission (hereinafter referred to as "NLRC") for having been issued without or with excess
jurisdiction and with grave abuse of discretion:2
(1) Order of May 31, 1993.3 Reversing and setting aside its earlier resolution of August 28, 1992.4 The
questioned order declared that the NLRC, not the Philippine Overseas Employment Administration
(hereinafter referred to as "POEA"), had jurisdiction over private respondent's complaint;
(2) Decision of December 15, 1994.5 Directing petitioners to jointly and severally pay private respondent
twelve thousand and six hundred dollars (US$ 12,600.00) representing salaries for the unexpired portion of
his contract; three thousand six hundred dollars (US$3,600.00) as extra four months salary for the two (2)
year period of his contract, three thousand six hundred dollars (US$3,600.00) as "14th month pay" or a total of
nineteen thousand and eight hundred dollars (US$19,800.00) or its peso equivalent and attorney's fees
amounting to ten percent (10%) of the total award; and
(3) Order of March 30, 1995.6 Denying the motion for reconsideration of the petitioners.
In May, 1988, private respondent Marcelo Santos (hereinafter referred to as "Santos") was an overseas
worker employed as a printer at the Mazoon Printing Press, Sultanate of Oman. Subsequently, in June 1988,
he was directly hired by the Palace Hotel, Beijing, People's Republic of China and later terminated due to
retrenchment.
Petitioners are the Manila Hotel Corporation (hereinafter referred to as "MHC") and the Manila Hotel
International Company, Limited (hereinafter referred to as "MHICL").
When the case was filed in 1990, MHC was still a government-owned and controlled corporation duly
organized and existing under the laws of the Philippines.
MHICL is a corporation duly organized and existing under the laws of Hong Kong.7 MHC is an "incorporator" of
MHICL, owning 50% of its capital stock.8
By virtue of a "management agreement"9 with the Palace Hotel (Wang Fu Company Limited), MHICL10 trained
the personnel and staff of the Palace Hotel at Beijing, China.
Now the facts.
During his employment with the Mazoon Printing Press in the Sultanate of Oman, respondent Santos received
a letter dated May 2, 1988 from Mr. Gerhard R. Shmidt, General Manager, Palace Hotel, Beijing, China. Mr.
Schmidt informed respondent Santos that he was recommended by one Nestor Buenio, a friend of his.
Mr. Shmidt offered respondent Santos the same position as printer, but with a higher monthly salary and
increased benefits. The position was slated to open on October 1, 1988.11
On May 8, 1988, respondent Santos wrote to Mr. Shmidt and signified his acceptance of the offer.
On May 19, 1988, the Palace Hotel Manager, Mr. Hans J. Henk mailed a ready to sign employment contract to
respondent Santos. Mr. Henk advised respondent Santos that if the contract was acceptable, to return the
same to Mr. Henk in Manila, together with his passport and two additional pictures for his visa to China.
On May 30, 1988, respondent Santos resigned from the Mazoon Printing Press, effective June 30, 1988,
under the pretext that he was needed at home to help with the family's piggery and poultry business.
On June 4, 1988, respondent Santos wrote the Palace Hotel and acknowledged Mr. Henk's letter.
Respondent Santos enclosed four (4) signed copies of the employment contract (dated June 4, 1988) and
notified them that he was going to arrive in Manila during the first week of July 1988.
The employment contract of June 4, 1988 stated that his employment would commence September 1, 1988
for a period of two years.12 It provided for a monthly salary of nine hundred dollars (US$900.00) net of taxes,
payable fourteen (14) times a year.13
On June 30, 1988, respondent Santos was deemed resigned from the Mazoon Printing Press.
On July 1, 1988, respondent Santos arrived in Manila.
On November 5, 1988, respondent Santos left for Beijing, China. He started to work at the Palace Hotel.14
Subsequently, respondent Santos signed an amended "employment agreement" with the Palace Hotel,
effective November 5, 1988. In the contract, Mr. Shmidt represented the Palace Hotel. The Vice President
(Operations and Development) of petitioner MHICL Miguel D. Cergueda signed the employment agreement
under the word "noted".
From June 8 to 29, 1989, respondent Santos was in the Philippines on vacation leave. He returned to China
and reassumed his post on July 17, 1989.
On July 22, 1989, Mr. Shmidt's Executive Secretary, a certain Joanna suggested in a handwritten note that
respondent Santos be given one (1) month notice of his release from employment.
On August 10, 1989, the Palace Hotel informed respondent Santos by letter signed by Mr. Shmidt that his
employment at the Palace Hotel print shop would be terminated due to business reverses brought about by
the political upheaval in China.15 We quote the letter:16
"After the unfortunate happenings in China and especially Beijing (referring to Tiannamen Square incidents),
our business has been severely affected. To reduce expenses, we will not open/operate printshop for the time
being.
"We sincerely regret that a decision like this has to be made, but rest assured this does in no way reflect your
past performance which we found up to our expectations."
"Should a turnaround in the business happen, we will contact you directly and give you priority on future
assignment."
On September 5, 1989, the Palace Hotel terminated the employment of respondent Santos and paid all
benefits due him, including his plane fare back to the Philippines.
On October 3, 1989, respondent Santos was repatriated to the Philippines.
On October 24, 1989, respondent Santos, through his lawyer, Atty. Ednave wrote Mr. Shmidt, demanding full
compensation pursuant to the employment agreement.
On November 11, 1989, Mr. Shmidt replied, to wit:17
His service with the Palace Hotel, Beijing was not abruptly terminated but we followed the one-month notice
clause and Mr. Santos received all benefits due him.
"For your information the Print Shop at the Palace Hotel is still not operational and with a low business outlook,
retrenchment in various departments of the hotel is going on which is a normal management practice to
control costs.
"When going through the latest performance ratings, please also be advised that his performance was below
average and a Chinese National who is doing his job now shows a better approach.
"In closing, when Mr. Santos received the letter of notice, he hardly showed up for work but still enjoyed free
accommodation/laundry/meals up to the day of his departure."
On February 20, 1990, respondent Santos filed a complaint for illegal dismissal with the Arbitration Branch,
National Capital Region, National Labor Relations Commission (NLRC). He prayed for an award of nineteen
thousand nine hundred and twenty three dollars (US$19,923.00) as actual damages, forty thousand pesos
(P40,000.00) as exemplary damages and attorney's fees equivalent to 20% of the damages prayed for. The
complaint named MHC, MHICL, the Palace Hotel and Mr. Shmidt as respondents.
The Palace Hotel and Mr. Shmidt were not served with summons and neither participated in the proceedings
before the Labor Arbiter.18
On June 27, 1991, Labor Arbiter Ceferina J. Diosana, decided the case against petitioners, thus:19
"WHEREFORE, judgment is hereby rendered:
"1. directing all the respondents to pay complainant jointly and severally;
"a) $20,820 US dollars or its equivalent in Philippine currency as unearned salaries;
"b) P50,000.00 as moral damages;
"c) P40,000.00 as exemplary damages; and
"d) Ten (10) percent of the total award as attorney's fees. "SO ORDERED."

"SO ORDERED." On February 2, 1995, petitioners filed a motion for reconsideration arguing that Labor Arbiter de Vera's
recommendation had no basis in law and in fact.28

On July 23, 1991, petitioners appealed to the NLRC, arguing that the POEA, not the NLRC had jurisdiction
over the case. On March 30, 1995, the NLRC denied the motion for reconsideration.29

On August 28, 1992, the NLRC promulgated a resolution, stating:20 Hence, this petition.30

"WHEREFORE, let the appealed Decision be, as it is hereby, declared null and void for want of jurisdiction. On October 9, 1995, petitioners filed with this Court an urgent motion for the issuance of a temporary
Complainant is hereby enjoined to file his complaint with the POEA. restraining order and/or writ of preliminary injunction and a motion for the annulment of the entry of judgment
of the NLRC dated July 31, 1995.31

"SO ORDERED."
On November 20, 1995, the Court denied petitioner's urgent motion. The Court required respondents to file
their respective comments, without giving due course to the petition.32
On September 18, 1992, respondent Santos moved for reconsideration of the afore-quoted resolution. He
argued that the case was not cognizable by the POEA as he was not an "overseas contract worker." 21
On March 8, 1996, the Solicitor General filed a manifestation stating that after going over the petition and its
annexes, they can not defend and sustain the position taken by the NLRC in its assailed decision and orders.
On May 31, 1993, the NLRC granted the motion and reversed itself. The NLRC directed Labor Arbiter The Solicitor General prayed that he be excused from filing a comment on behalf of the NLRC33
Emerson Tumanon to hear the case on the question of whether private respondent was retrenched or
dismissed.22
On April 30,1996, private respondent Santos filed his comment.34

On January 13, 1994, Labor Arbiter Tumanon completed the proceedings based on the testimonial and
documentary evidence presented to and heard by him.23 On June 26, 1996, the Court granted the manifestation of the Solicitor General and required the NLRC to file
its own comment to the petition.35

Subsequently, Labor Arbiter Tumanon was re-assigned as trial Arbiter of the National Capital Region,
Arbitration Branch, and the case was transferred to Labor Arbiter Jose G. de Vera.24 On January 7, 1997, the NLRC filed its comment.

On November 25, 1994, Labor Arbiter de Vera submitted his report.25 He found that respondent Santos was The petition is meritorious.
illegally dismissed from employment and recommended that he be paid actual damages equivalent to his
salaries for the unexpired portion of his contract.26
I. Forum Non-Conveniens

On December 15, 1994, the NLRC ruled in favor of private respondent, to wit:27
The NLRC was a seriously inconvenient forum.

"WHEREFORE, finding that the report and recommendations of Arbiter de Vera are supported by substantial
evidence, judgment is hereby rendered, directing the respondents to jointly and severally pay complainant the We note that the main aspects of the case transpired in two foreign jurisdictions and the case involves purely
following computed contractual benefits: (1) US$12,600.00 as salaries for the unexpired portion of the parties' foreign elements. The only link that the Philippines has with the case is that respondent Santos is a Filipino
contract; (2) US$3,600.00 as extra four (4) months salary for the two (2) years period (sic) of the parties' citizen. The Palace Hotel and MHICL are foreign corporations. Not all cases involving our citizens can be tried
contract; (3) US$3,600.00 as "14th month pay" for the aforesaid two (2) years contract stipulated by the here.
parties or a total of US$19,800.00 or its peso equivalent, plus (4) attorney's fees of 10% of complainant's total
award.
The employment contract. — Respondent Santos was hired directly by the Palace Hotel, a foreign employer,
through correspondence sent to the Sultanate of Oman, where respondent Santos was then employed. He
was hired without the intervention of the POEA or any authorized recruitment agency of the government.36
Under the rule of forum non conveniens, a Philippine court or agency may assume jurisdiction over the case if
it chooses to do so provided: (1) that the Philippine court is one to which the parties may conveniently resort to;
(2) that the Philippine court is in a position to make an intelligent decision as to the law and the facts; and (3)
that the Philippine court has or is likely to have power to enforce its decision.37 The conditions are unavailing in
the case at bar.
Not Convenient. — We fail to see how the NLRC is a convenient forum given that all the incidents of the case
— from the time of recruitment, to employment to dismissal occurred outside the Philippines. The
inconvenience is compounded by the fact that the proper defendants, the Palace Hotel and MHICL are not
nationals of the Philippines. Neither .are they "doing business in the Philippines." Likewise, the main
witnesses, Mr. Shmidt and Mr. Henk are non-residents of the Philippines.
No power to determine applicable law. — Neither can an intelligent decision be made as to the law governing
the employment contract as such was perfected in foreign soil. This calls to fore the application of the principle
of lex loci contractus (the law of the place where the contract was made).38
The employment contract was not perfected in the Philippines. Respondent Santos signified his acceptance
by writing a letter while he was in the Republic of Oman. This letter was sent to the Palace Hotel in the
People's Republic of China.
No power to determine the facts. — Neither can the NLRC determine the facts surrounding the alleged illegal
dismissal as all acts complained of took place in Beijing, People's Republic of China. The NLRC was not in a
position to determine whether the Tiannamen Square incident truly adversely affected operations of the
Palace Hotel as to justify respondent Santos' retrenchment.
Principle of effectiveness, no power to execute decision. — Even assuming that a proper decision could be
reached by the NLRC, such would not have any binding effect against the employer, the Palace Hotel. The
Palace Hotel is a corporation incorporated under the laws of China and was not even served with summons.
Jurisdiction over its person was not acquired.
This is not to say that Philippine courts and agencies have no power to solve controversies involving foreign
employers. Neither are we saying that we do not have power over an employment contract executed in a
foreign country. If Santos were an "overseas contract worker", a Philippine forum, specifically the POEA, not
the NLRC, would protect him.39 He is not an "overseas contract worker" a fact which he admits with
conviction.40
Even assuming that the NLRC was the proper forum, even on the merits, the NLRC's decision cannot be
sustained.
II. MHC Not Liable
Even if we assume two things: (1) that the NLRC had jurisdiction over the case, and (2) that MHICL was liable
for Santos' retrenchment, still MHC, as a separate and distinct juridical entity cannot be held liable.
True, MHC is an incorporator of MHICL and owns fifty percent (50%) of its capital stock. However, this is not
enough to pierce the veil of corporate fiction between MHICL and MHC.
Piercing the veil of corporate entity is an equitable remedy. It is resorted to when the corporate fiction is used
to defeat public convenience, justify wrong, protect fraud or defend a crime. 41 It is done only when a
corporation is a mere alter ego or business conduit of a person or another corporation.
In Traders Royal Bank v. Court of Appeals,42 we held that "the mere ownership by a single stockholder or by
another corporation of all or nearly all of the capital stock of a corporation is not of itself a sufficient reason for
disregarding the fiction of separate corporate personalities."
The tests in determining whether the corporate veil may be pierced are: First, the defendant must have control
or complete domination of the other corporation's finances, policy and business practices with regard to the
transaction attacked. There must be proof that the other corporation had no separate mind, will or existence
with respect the act complained of. Second, control must be used by the defendant to commit fraud or
wrong. Third, the aforesaid control or breach of duty must be the proximate cause of the injury or loss
complained of. The absence of any of the elements prevents the piercing of the corporate veil.43
It is basic that a corporation has a personality separate and distinct from those composing it as well as from
that of any other legal entity to which it may be related.44 Clear and convincing evidence is needed to pierce
the veil of corporate fiction.45 In this case, we find no evidence to show that MHICL and MHC are one and the
same entity.
III. MHICL not Liable
Respondent Santos predicates MHICL's liability on the fact that MHICL "signed" his employment contract with
the Palace Hotel. This fact fails to persuade us.
First, we note that the Vice President (Operations and Development) of MHICL, Miguel D. Cergueda signed
the employment contract as a mere witness. He merely signed under the word "noted".
When one "notes" a contract, one is not expressing his agreement or approval, as a party would.46
In Sichangco v. Board of Commissioners of Immigration,47 the Court recognized that the term "noted" means
that the person so noting has merely taken cognizance of the existence of an act or declaration, without
exercising a judicious deliberation or rendering a decision on the matter.
Mr. Cergueda merely signed the "witnessing part" of the document. The "witnessing part" of the document is
that which, "in a deed or other formal instrument is that part which comes after the recitals, or where there are
no recitals, after the parties (emphasis ours)."48 As opposed to a party to a contract, a witness is simply one
who, "being present, personally sees or perceives a thing; a beholder, a spectator, or eyewitness." 49 One who
"notes" something just makes a "brief written statement"50 a memorandum or observation.
Second, and more importantly, there was no existing employer-employee relationship between Santos and
MHICL. In determining the existence of an employer-employee relationship, the following elements are
considered:51
"(1) the selection and engagement of the employee;
"(2) the payment of wages;
"(3) the power to dismiss; and
"(4) the power to control employee's conduct."
MHICL did not have and did not exercise any of the aforementioned powers. It did not select respondent
Santos as an employee for the Palace Hotel. He was referred to the Palace Hotel by his friend, Nestor Buenio.
MHICL did not engage respondent Santos to work. The terms of employment were negotiated and finalized
through correspondence between respondent Santos, Mr. Schmidt and Mr. Henk, who were officers and
representatives of the Palace Hotel and not MHICL. Neither did respondent Santos adduce any proof that
MHICL had the power to control his conduct. Finally, it was the Palace Hotel, through Mr. Schmidt
and not MHICL that terminated respondent Santos' services.
Neither is there evidence to suggest that MHICL was a "labor-only contractor."52 There is no proof that MHICL
"supplied" respondent Santos or even referred him for employment to the Palace Hotel.
Likewise, there is no evidence to show that the Palace Hotel and MHICL are one and the same entity. The fact
that the Palace Hotel is a member of the "Manila Hotel Group" is not enough to pierce the corporate veil
between MHICL and the Palace Hotel.
IV. Grave Abuse of Discretion
Considering that the NLRC was forum non-conveniens and considering further that no employer-employee
relationship existed between MHICL, MHC and respondent Santos, Labor Arbiter Ceferina J. Diosana clearly
had no jurisdiction over respondent's claim in NLRC NCR Case No. 00-02-01058-90.
Labor Arbiters have exclusive and original jurisdiction only over the following:53
"1. Unfair labor practice cases;
"2. Termination disputes;
"3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of
pay, hours of work and other terms and conditions of employment;
"4. Claims for actual, moral, exemplary and other forms of damages arising from employer-employee
relations;
"5. Cases arising from any violation of Article 264 of this Code, including questions involving legality of strikes
and lockouts; and
"6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other
claims, arising from employer-employee relations, including those of persons in domestic or household
service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied
with a claim for reinstatement."
In all these cases, an employer-employee relationship is an indispensable jurisdictional requirement.
The jurisdiction of labor arbiters and the NLRC under Article 217 of the Labor Code is limited to disputes
arising from an employer-employee relationship which can be resolved by reference to the Labor Code, or
other labor statutes, or their collective bargaining agreements.54
"To determine which body has jurisdiction over the present controversy, we rely on the sound judicial principle
that jurisdiction over the subject matter is conferred by law and is determined by the allegations of the
complaint irrespective of whether the plaintiff is entitled to all or some of the claims asserted therein."55
The lack of jurisdiction of the Labor Arbiter was obvious from the allegations of the complaint. His failure to
dismiss the case amounts to grave abuse of discretion.56
V. The Fallo
WHEREFORE, the Court hereby GRANTS the petition for certiorari and ANNULS the orders and resolutions
of the National Labor Relations Commission dated May 31, 1993, December 15, 1994 and March 30, 1995 in
NLRC NCR CA No. 002101-91 (NLRC NCR Case No. 00-02-01058-90).
No costs.
SO ORDERED. HONGKONG AND SHANGHAI BANKING CORPORATION, petitioner,
vs.
JACK ROBERT SHERMAN, DEODATO RELOJ and THE INTERMEDIATE APPELLATE
Davide, Jr., C .J ., Puno, Kapunan, Pardo and Ynares-Santiago, JJ ., concur. COURT, respondents.

Quiason, Makalintal, Barot & Torres for petitioner.

Footnotes Alejandro, Aranzaso & Associates for private respondents.

MEDIALDEA, J.:

This is a petition for review on certiorari of the decision of the Intermediate Appellate Court (now Court of
Appeals) dated August 2, 1985, which reversed the order of the Regional Trial Court dated February 28,1985
denying the Motion to Dismiss filed by private respondents Jack Robert Sherman and Deodato Reloj.

A complaint for collection of a sum of money (pp. 49-52, Rollo) was filed by petitioner Hongkong and
Shanghai Banking Corporation (hereinafter referred to as petitioner BANK) against private respondents Jack
Robert Sherman and Deodato Reloj, docketed as Civil Case No. Q-42850 before the Regional Trial Court of
Quezon City, Branch 84.

It appears that sometime in 1981, Eastern Book Supply Service PTE, Ltd. (hereinafter referred to as
COMPANY), a company incorporated in Singapore applied with, and was granted by, the Singapore branch of
petitioner BANK an overdraft facility in the maximum amount of Singapore dollars 200,000.00 (which amount
was subsequently increased to Singapore dollars 375,000.00) with interest at 3% over petitioner BANK prime
rate, payable monthly, on amounts due under said overdraft facility; as a security for the repayment by the
COMPANY of sums advanced by petitioner BANK to it through the aforesaid overdraft facility, on October 7,
1982, both private respondents and a certain Robin de Clive Lowe, all of whom were directors of the
COMPANY at such time, executed a Joint and Several Guarantee (p. 53, Rollo) in favor of petitioner BANK
whereby private respondents and Lowe agreed to pay, jointly and severally, on demand all sums owed by the
COMPANY to petitioner BANK under the aforestated overdraft facility.

Republic of the Philippines The Joint and Several Guarantee provides, inter alia, that:
SUPREME COURT
Manila
This guarantee and all rights, obligations and liabilities arising hereunder shall be construed and determined
under and may be enforced in accordance with the laws of the Republic of Singapore. We hereby agree that
FIRST DIVISION the Courts of Singapore shall have jurisdiction over all disputes arising under this guarantee. ... (p.
33-A, Rollo).

G.R. No. 72494 August 11, 1989

The COMPANY failed to pay its obligation. Thus, petitioner BANK demanded payment of the obligation from
private respondents, conformably with the provisions of the Joint and Several Guarantee. Inasmuch as the
private respondents still failed to pay, petitioner BANK filed the above-mentioned complaint.
On December 14,1984, private respondents filed a motion to dismiss (pp 54-56, Rollo) which was opposed by
petitioner BANK (pp. 58-62, Rollo). Acting on the motion, the trial court issued an order dated February 28,
1985 (pp, 64-65, Rollo), which read as follows:
In a Motion to Dismiss filed on December 14, 1984, the defendants seek the dismissal of the complaint on two
grounds, namely:
1. That the court has no jurisdiction over the subject matter of the complaint; and
2. That the court has no jurisdiction over the persons of the defendants.
In the light of the Opposition thereto filed by plaintiff, the Court finds no merit in the motion. "On the first ground,
defendants claim that by virtue of the provision in the Guarantee (the actionable document) which reads —
This guarantee and all rights, obligations and liabilities arising hereunder shall be construed and determined
under and may be enforced in accordance with the laws of the Republic of Singapore. We hereby agree that
the courts in Singapore shall have jurisdiction over all disputes arising under this guarantee,
the Court has no jurisdiction over the subject matter of the case. The Court finds and concludes otherwise.
There is nothing in the Guarantee which says that the courts of Singapore shall have jurisdiction to the
exclusion of the courts of other countries or nations. Also, it has long been established in law and
jurisprudence that jurisdiction of courts is fixed by law; it cannot be conferred by the will, submission or
consent of the parties.
On the second ground, it is asserted that defendant Robert' , Sherman is not a citizen nor a resident of the
Philippines. This argument holds no water. Jurisdiction over the persons of defendants is acquired by service
of summons and copy of the complaint on them. There has been a valid service of summons on both
defendants and in fact the same is admitted when said defendants filed a 'Motion for Extension of Time to File
Responsive Pleading on December 5, 1984.
WHEREFORE, the Motion to Dismiss is hereby DENIED.
SO ORDERED.
A motion for reconsideration of the said order was filed by private respondents which was, however, denied (p.
66,Rollo).
Private respondents then filed before the respondent Intermediate Appellate Court (now Court of Appeals) a
petition for prohibition with preliminary injunction and/or prayer for a restraining order (pp. 39-48, Rollo). On
August 2, 1985, the respondent Court rendered a decision (p. 37, Rollo), the dispositive portion of which
reads:
WHEREFORE, the petition for prohibition with preliminary injuction is hereby GRANTED. The respondent
Court is enjoined from taking further cognizance of the case and to dismiss the same for filing with the proper
court of Singapore which is the proper forum. No costs.
SO ORDERED.
The motion for reconsideration was denied (p. 38, Rollo), hence, the present petition.
The main issue is whether or not Philippine courts have jurisdiction over the suit.
The controversy stems from the interpretation of a provision in the Joint and Several Guarantee, to wit:
(14) This guarantee and all rights, obligations and liabilites arising hereunder shall be construed and
determined under and may be enforced in accordance with the laws of the Republic of Singapore. We hereby
agree that the Courts in Singapore shall have jurisdiction over all disputes arising under this guarantee. ... (p.
53-A, Rollo)
In rendering the decision in favor of private respondents, the Court of Appeals made, the following
observations (pp. 35-36, Rollo):
There are significant aspects of the case to which our attention is invited. The loan was obtained by Eastern
Book Service PTE, Ltd., a company incorporated in Singapore. The loan was granted by
the Singapore Branch of Hongkong and Shanghai Banking Corporation. The Joint and Several Guarantee
was also concluded in Singapore. The loan was in Singaporean dollars and the repayment thereof also in the
same currency. The transaction, to say the least, took place in Singporean setting in which the law of that
country is the measure by which that relationship of the parties will be governed.
xxx xxx xxx
Contrary to the position taken by respondents, the guarantee agreement compliance that any litigation will be
before the courts of Singapore and that the rights and obligations of the parties shall be construed and
determined in accordance with the laws of the Republic of Singapore. A closer examination of paragraph 14 of
the Guarantee Agreement upon which the motion to dismiss is based, employs in clear and unmistakeable
(sic) terms the word 'shall' which under statutory construction is mandatory.
Thus it was ruled that:
... the word 'shall' is imperative, operating to impose a duty which may be enforced (Dizon vs. Encarnacion, 9
SCRA 714). l âwphî 1.ñè t
There is nothing more imperative and restrictive than what the agreement categorically commands that 'all
rights, obligations, and liabilities arising hereunder shall be construed and determined under and may be
enforced in accordance with the laws of the Republic of Singapore.'
While it is true that "the transaction took place in Singaporean setting" and that the Joint and Several
Guarantee contains a choice-of-forum clause, the very essence of due process dictates that the stipulation
that "[t]his guarantee and all rights, obligations and liabilities arising hereunder shall be construed and
determined under and may be enforced in accordance with the laws of the Republic of Singapore. We hereby
agree that the Courts in Singapore shall have jurisdiction over all disputes arising under this guarantee" be
liberally construed. One basic principle underlies all rules of jurisdiction in International Law: a State does not
have jurisdiction in the absence of some reasonable basis for exercising it, whether the proceedings are in
rem quasi in rem or in personam. To be reasonable, the jurisdiction must be based on some minimum
contacts that will not offend traditional notions of fair play and substantial justice (J. Salonga, Private
International Law, 1981, p. 46). Indeed, as pointed-out by petitioner BANK at the outset, the instant case
presents a very odd situation. In the ordinary habits of life, anyone would be disinclined to litigate before a
foreign tribunal, with more reason as a defendant. However, in this case, private respondents are Philippine
residents (a fact which was not disputed by them) who would rather face a complaint against them before a
foreign court and in the process incur considerable expenses, not to mention inconvenience, than to have a
Philippine court try and resolve the case. Private respondents' stance is hardly comprehensible, unless their
ultimate intent is to evade, or at least delay, the payment of a just obligation.
The defense of private respondents that the complaint should have been filed in Singapore is based merely on
technicality. They did not even claim, much less prove, that the filing of the action here will cause them any
unnecessary trouble, damage, or expense. On the other hand, there is no showing that petitioner BANK filed
the action here just to harass private respondents.
In the case of Polytrade Corporation vs. Blanco, G.R. No. L-27033, October 31, 1969, 30 SCRA 187, it was
ruled:
... An accurate reading, however, of the stipulation, 'The parties agree to sue and be sued in the Courts of
Manila,' does not preclude the filing of suits in the residence of plaintiff or defendant. The plain meaning is that
the parties merely consented to be sued in Manila. Qualifying or restrictive words which would indicate that
Manila and Manila alone is the venue are totally absent therefrom. We cannot read into that clause that
plaintiff and defendant bound themselves to file suits with respect to the last two transactions in question only
or exclusively in Manila. For, that agreement did not change or transfer venue. It simply is permissive. The
parties solely agreed to add the courts of Manila as tribunals to which they may resort. They did not waive
their right to pursue remedy in the courts specifically mentioned in Section 2(b) of Rule 4. Renuntiatio non
praesumitur.
This ruling was reiterated in the case of Neville Y. Lamis Ents., et al. v. Lagamon, etc., et al., G.R. No. 57250,
October 30, 1981, 108 SCRA 740, where the stipulation was "[i]n case of litigation, jurisdiction shall be vested
in the Court of Davao City." We held:
Anent the claim that Davao City had been stipulated as the venue, suffice it to say that a stipulation as to
venue does not preclude the filing of suits in the residence of plaintiff or defendant under Section 2 (b), Rule 4,
Rules of Court, in the absence of qualifying or restrictive words in the agreement which would indicate that the
place named is the only venue agreed upon by the parties.
Applying the foregoing to the case at bar, the parties did not thereby stipulate that only the courts of Singapore,
to the exclusion of all the rest, has jurisdiction. Neither did the clause in question operate to divest Philippine
courts of jurisdiction. In International Law, jurisdiction is often defined as the light of a State to exercise
authority over persons and things within its boundaries subject to certain exceptions. Thus, a State does not
assume jurisdiction over travelling sovereigns, ambassadors and diplomatic representatives of other States,
and foreign military units stationed in or marching through State territory with the permission of the latter's
authorities. This authority, which finds its source in the concept of sovereignty, is exclusive within and
throughout the domain of the State. A State is competent to take hold of any judicial matter it sees fit by
making its courts and agencies assume jurisdiction over all kinds of cases brought before them (J. Salonga,
Private International Law, 1981, pp. 37-38). lâwph î1.ñ èt
As regards the issue on improper venue, petitioner BANK avers that the objection to improper venue has been
waived. However, We agree with the ruling of the respondent Court that:
While in the main, the motion to dismiss fails to categorically use with exactitude the words 'improper venue' it
can be perceived from the general thrust and context of the motion that what is meant is improper venue, The
use of the word 'jurisdiction' was merely an attempt to copy-cat the same word employed in the guarantee
agreement but conveys the concept of venue. Brushing aside all technicalities, it would appear that jurisdiction
was used loosely as to be synonymous with venue. It is in this spirit that this Court must view the motion to
dismiss. ... (p. 35, Rollo).
At any rate, this issue is now of no moment because We hold that venue here was properly laid for the same
reasons discussed above.
The respondent Court likewise ruled that (pp. 36-37, Rollo):
... In a conflict problem, a court will simply refuse to entertain the case if it is not authorized by law to exercise
jurisdiction. And even if it is so authorized, it may still refuse to entertain the case by applying the principle
of forum non conveniens. ...
However, whether a suit should be entertained or dismissed on the basis of the principle of forum non
conveniensdepends largely upon the facts of the particular case and is addressed to the sound discretion of
the trial court (J. Salonga, Private International Law, 1981, p. 49). Thus, the respondent Court should not have
lâw phî1 .ñèt

relied on such principle.

Although the Joint and Several Guarantee prepared by petitioner BANK is a contract of adhesion and that
consequently, it cannot be permitted to take a stand contrary to the stipulations of the contract, substantial
bases exist for petitioner Bank's choice of forum, as discussed earlier.

Lastly, private respondents allege that neither the petitioner based at Hongkong nor its Philippine branch is
involved in the transaction sued upon. This is a vain attempt on their part to further thwart the proceedings
below inasmuch as well-known is the rule that a defendant cannot plead any defense that has not been
interposed in the court below.

ACCORDINGLY, the decision of the respondent Court is hereby REVERSED and the decision of the Regional
Trial Court is REINSTATED, with costs against private respondents. This decision is immediately executory.

SO ORDERED.

Narvasa, Cruz, Gancayco and Griñ;o-Aquino, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-23145 November 29, 1968

TESTATE ESTATE OF IDONAH SLADE PERKINS, deceased. RENATO D. TAYAG, ancillary

administrator-appellee,
vs.
BENGUET CONSOLIDATED, INC., oppositor-appellant.

Cirilo F. Asperillo, Jr., for ancillary administrator-appellee.

Ross, Salcedo, Del Rosario, Bito and Misa for oppositor-appellant.

FERNANDO, J.:
Confronted by an obstinate and adamant refusal of the domiciliary administrator, the County Trust Company
of New York, United States of America, of the estate of the deceased Idonah Slade Perkins, who died in New
York City on March 27, 1960, to surrender to the ancillary administrator in the Philippines the stock certificates
owned by her in a Philippine corporation, Benguet Consolidated, Inc., to satisfy the legitimate claims of local
creditors, the lower court, then presided by the Honorable Arsenio Santos, now retired, issued on May 18,
1964, an order of this tenor: "After considering the motion of the ancillary administrator, dated February 11,
1964, as well as the opposition filed by the Benguet Consolidated, Inc., the Court hereby (1) considers as lost
for all purposes in connection with the administration and liquidation of the Philippine estate of Idonah Slade
Perkins the stock certificates covering the 33,002 shares of stock standing in her name in the books of the
Benguet Consolidated, Inc., (2) orders said certificates cancelled, and (3) directs said corporation to issue
new certificates in lieu thereof, the same to be delivered by said corporation to either the incumbent ancillary
administrator or to the Probate Division of this Court."1
From such an order, an appeal was taken to this Court not by the domiciliary administrator, the County Trust
Company of New York, but by the Philippine corporation, the Benguet Consolidated, Inc. The appeal cannot
possibly prosper. The challenged order represents a response and expresses a policy, to paraphrase
Frankfurter, arising out of a specific problem, addressed to the attainment of specific ends by the use of
specific remedies, with full and ample support from legal doctrines of weight and significance.
The facts will explain why. As set forth in the brief of appellant Benguet Consolidated, Inc., Idonah Slade
Perkins, who died on March 27, 1960 in New York City, left among others, two stock certificates covering
33,002 shares of appellant, the certificates being in the possession of the County Trust Company of New York,
which as noted, is the domiciliary administrator of the estate of the deceased. 2 Then came this portion of the
appellant's brief: "On August 12, 1960, Prospero Sanidad instituted ancillary administration proceedings in the
Court of First Instance of Manila; Lazaro A. Marquez was appointed ancillary administrator, and on January 22,
1963, he was substituted by the appellee Renato D. Tayag. A dispute arose between the domiciary
administrator in New York and the ancillary administrator in the Philippines as to which of them was entitled to
the possession of the stock certificates in question. On January 27, 1964, the Court of First Instance of Manila
ordered the domiciliary administrator, County Trust Company, to "produce and deposit" them with the ancillary
administrator or with the Clerk of Court. The domiciliary administrator did not comply with the order, and on
February 11, 1964, the ancillary administrator petitioned the court to "issue an order declaring the certificate or
certificates of stocks covering the 33,002 shares issued in the name of Idonah Slade Perkins by Benguet
Consolidated, Inc., be declared [or] considered as lost." 3
It is to be noted further that appellant Benguet Consolidated, Inc. admits that "it is immaterial" as far as it is
concerned as to "who is entitled to the possession of the stock certificates in question; appellant opposed the
petition of the ancillary administrator because the said stock certificates are in existence, they are today in the
possession of the domiciliary administrator, the County Trust Company, in New York, U.S.A...." 4
It is its view, therefore, that under the circumstances, the stock certificates cannot be declared or considered
as lost. Moreover, it would allege that there was a failure to observe certain requirements of its by-laws before
new stock certificates could be issued. Hence, its appeal.
As was made clear at the outset of this opinion, the appeal lacks merit. The challenged order constitutes an
emphatic affirmation of judicial authority sought to be emasculated by the wilful conduct of the domiciliary
administrator in refusing to accord obedience to a court decree. How, then, can this order be stigmatized as
illegal?
As is true of many problems confronting the judiciary, such a response was called for by the realities of the
situation. What cannot be ignored is that conduct bordering on wilful defiance, if it had not actually reached it,
cannot without undue loss of judicial prestige, be condoned or tolerated. For the law is not so lacking in
flexibility and resourcefulness as to preclude such a solution, the more so as deeper reflection would make
clear its being buttressed by indisputable principles and supported by the strongest policy considerations.
It can truly be said then that the result arrived at upheld and vindicated the honor of the judiciary no less than
that of the country. Through this challenged order, there is thus dispelled the atmosphere of contingent
frustration brought about by the persistence of the domiciliary administrator to hold on to the stock certificates
after it had, as admitted, voluntarily submitted itself to the jurisdiction of the lower court by entering its
appearance through counsel on June 27, 1963, and filing a petition for relief from a previous order of March 15,
1963.
Thus did the lower court, in the order now on appeal, impart vitality and effectiveness to what was decreed.
For without it, what it had been decided would be set at naught and nullified. Unless such a blatant disregard
by the domiciliary administrator, with residence abroad, of what was previously ordained by a court order
could be thus remedied, it would have entailed, insofar as this matter was concerned, not a partial but a
well-nigh complete paralysis of judicial authority.
1. Appellant Benguet Consolidated, Inc. did not dispute the power of the appellee ancillary administrator to
gain control and possession of all assets of the decedent within the jurisdiction of the Philippines. Nor could it.
Such a power is inherent in his duty to settle her estate and satisfy the claims of local creditors. 5 As Justice
Tuason speaking for this Court made clear, it is a "general rule universally recognized" that administration,
whether principal or ancillary, certainly "extends to the assets of a decedent found within the state or country
where it was granted," the corollary being "that an administrator appointed in one state or country has no
power over property in another state or country." 6
It is to be noted that the scope of the power of the ancillary administrator was, in an earlier case, set forth by
Justice Malcolm. Thus: "It is often necessary to have more than one administration of an estate. When a
person dies intestate owning property in the country of his domicile as well as in a foreign country,
administration is had in both countries. That which is granted in the jurisdiction of decedent's last domicile is
termed the principal administration, while any other administration is termed the ancillary administration. The
reason for the latter is because a grant of administration does not ex proprio vigore have any effect beyond
the limits of the country in which it is granted. Hence, an administrator appointed in a foreign state has no
authority in the [Philippines]. The ancillary administration is proper, whenever a person dies, leaving in a
country other than that of his last domicile, property to be administered in the nature of assets of the deceased
liable for his individual debts or to be distributed among his heirs."7
It would follow then that the authority of the probate court to require that ancillary administrator's right to "the
stock certificates covering the 33,002 shares ... standing in her name in the books of [appellant] Benguet
Consolidated, Inc...." be respected is equally beyond question. For appellant is a Philippine corporation owing
full allegiance and subject to the unrestricted jurisdiction of local courts. Its shares of stock cannot therefore be
considered in any wise as immune from lawful court orders.
Our holding in Wells Fargo Bank and Union v. Collector of Internal Revenue 8 finds application. "In the instant
case, the actual situs of the shares of stock is in the Philippines, the corporation being domiciled [here]." To
the force of the above undeniable proposition, not even appellant is insensible. It does not dispute it. Nor could
it successfully do so even if it were so minded.
2. In the face of such incontrovertible doctrines that argue in a rather conclusive fashion for the legality of the
challenged order, how does appellant, Benguet Consolidated, Inc. propose to carry the extremely heavy
burden of persuasion of precisely demonstrating the contrary? It would assign as the basic error allegedly
committed by the lower court its "considering as lost the stock certificates covering 33,002 shares of Benguet
belonging to the deceased Idonah Slade Perkins, ..."9 More specifically, appellant would stress that the "lower
court could not "consider as lost" the stock certificates in question when, as a matter of fact, his Honor the trial
Judge knew, and does know, and it is admitted by the appellee, that the said stock certificates are in existence
and are today in the possession of the domiciliary administrator in New York." 10
There may be an element of fiction in the above view of the lower court. That certainly does not suffice to call
for the reversal of the appealed order. Since there is a refusal, persistently adhered to by the domiciliary
administrator in New York, to deliver the shares of stocks of appellant corporation owned by the decedent to
the ancillary administrator in the Philippines, there was nothing unreasonable or arbitrary in considering them
as lost and requiring the appellant to issue new certificates in lieu thereof. Thereby, the task incumbent under
the law on the ancillary administrator could be discharged and his responsibility fulfilled.
Any other view would result in the compliance to a valid judicial order being made to depend on the
uncontrolled discretion of the party or entity, in this case domiciled abroad, which thus far has shown the
utmost persistence in refusing to yield obedience. Certainly, appellant would not be heard to contend in all
seriousness that a judicial decree could be treated as a mere scrap of paper, the court issuing it being
powerless to remedy its flagrant disregard.
It may be admitted of course that such alleged loss as found by the lower court did not correspond exactly with
the facts. To be more blunt, the quality of truth may be lacking in such a conclusion arrived at. It is to be
remembered however, again to borrow from Frankfurter, "that fictions which the law may rely upon in the
pursuit of legitimate ends have played an important part in its development."11
Speaking of the common law in its earlier period, Cardozo could state fictions "were devices to advance the
ends of justice, [even if] clumsy and at times offensive."12 Some of them have persisted even to the present,
that eminent jurist, noting "the quasi contract, the adopted child, the constructive trust, all of flourishing vitality,
to attest the empire of "as if" today."13 He likewise noted "a class of fictions of another order, the fiction which
is a working tool of thought, but which at times hides itself from view till reflection and analysis have brought it
to the light."14
What cannot be disputed, therefore, is the at times indispensable role that fictions as such played in the law.
There should be then on the part of the appellant a further refinement in the catholicity of its condemnation of
such judicial technique. If ever an occasion did call for the employment of a legal fiction to put an end to the
anomalous situation of a valid judicial order being disregarded with apparent impunity, this is it. What is thus
most obvious is that this particular alleged error does not carry persuasion.
3. Appellant Benguet Consolidated, Inc. would seek to bolster the above contention by its invoking one of the
provisions of its by-laws which would set forth the procedure to be followed in case of a lost, stolen or
destroyed stock certificate; it would stress that in the event of a contest or the pendency of an action regarding
ownership of such certificate or certificates of stock allegedly lost, stolen or destroyed, the issuance of a new
certificate or certificates would await the "final decision by [a] court regarding the ownership [thereof]." 15
Such reliance is misplaced. In the first place, there is no such occasion to apply such by-law. It is admitted that
the foreign domiciliary administrator did not appeal from the order now in question. Moreover, there is likewise
the express admission of appellant that as far as it is concerned, "it is immaterial ... who is entitled to the
possession of the stock certificates ..." Even if such were not the case, it would be a legal absurdity to impart
to such a provision conclusiveness and finality. Assuming that a contrariety exists between the above by-law
and the command of a court decree, the latter is to be followed.
It is understandable, as Cardozo pointed out, that the Constitution overrides a statute, to which, however, the
judiciary must yield deference, when appropriately invoked and deemed applicable. It would be most highly
unorthodox, however, if a corporate by-law would be accorded such a high estate in the jural order that a court
must not only take note of it but yield to its alleged controlling force.
The fear of appellant of a contingent liability with which it could be saddled unless the appealed order be set
aside for its inconsistency with one of its by-laws does not impress us. Its obedience to a lawful court order
certainly constitutes a valid defense, assuming that such apprehension of a possible court action against it
could possibly materialize. Thus far, nothing in the circumstances as they have developed gives substance to
such a fear. Gossamer possibilities of a future prejudice to appellant do not suffice to nullify the lawful exercise
of judicial authority.
4. What is more the view adopted by appellant Benguet Consolidated, Inc. is fraught with implications at war
with the basic postulates of corporate theory.
We start with the undeniable premise that, "a corporation is an artificial being created by operation of
law...."16 It owes its life to the state, its birth being purely dependent on its will. As Berle so aptly stated:
"Classically, a corporation was conceived as an artificial person, owing its existence through creation by a
sovereign power."17 As a matter of fact, the statutory language employed owes much to Chief Justice Marshall,
who in the Dartmouth College decision defined a corporation precisely as "an artificial being, invisible,
intangible, and existing only in contemplation of law." 18
The well-known authority Fletcher could summarize the matter thus: "A corporation is not in fact and in reality
a person, but the law treats it as though it were a person by process of fiction, or by regarding it as an artificial
person distinct and separate from its individual stockholders.... It owes its existence to law. It is an artificial
person created by law for certain specific purposes, the extent of whose existence, powers and liberties is
fixed by its charter."19Dean Pound's terse summary, a juristic person, resulting from an association of human
beings granted legal personality by the state, puts the matter neatly.20
There is thus a rejection of Gierke's genossenchaft theory, the basic theme of which to quote from Friedmann,
"is the reality of the group as a social and legal entity, independent of state recognition and concession." 21 A
corporation as known to Philippine jurisprudence is a creature without any existence until it has received the
imprimatur of the state according to law. It is logically inconceivable therefore that it will have rights and
privileges of a higher priority than that of its creator. More than that, it cannot legitimately refuse to yield
obedience to acts of its state organs, certainly not excluding the judiciary, whenever called upon to do so.
It is bad enough as the Viloria decision made patent for our judiciary to accept as final and conclusive,
determinations made by foreign governmental agencies. It is infinitely worse if through the absence of any
coercive power by our courts over juridical persons within our jurisdiction, the force and effectivity of their
orders could be made to depend on the whim or caprice of alien entities. It is difficult to imagine of a situation
more offensive to the dignity of the bench or the honor of the country.
Yet that would be the effect, even if unintended, of the proposition to which appellant Benguet Consolidated
seems to be firmly committed as shown by its failure to accept the validity of the order complained of; it seeks
its reversal. Certainly we must at all pains see to it that it does not succeed. The deplorable consequences
attendant on appellant prevailing attest to the necessity of negative response from us. That is what appellant
will get.

As a matter of fact, a corporation once it comes into being, following American law still of persuasive authority
in our jurisdiction, comes more often within the ken of the judiciary than the other two coordinate branches. It
institutes the appropriate court action to enforce its right. Correlatively, it is not immune from judicial control in
those instances, where a duty under the law as ascertained in an appropriate legal proceeding is cast upon it.
To assert that it can choose which court order to follow and which to disregard is to confer upon it not
autonomy which may be conceded but license which cannot be tolerated. It is to argue that it may, when so
minded, overrule the state, the source of its very existence; it is to contend that what any of its governmental
organs may lawfully require could be ignored at will. So extravagant a claim cannot possibly merit approval.
That is all then that this case presents. It is obvious why the appeal cannot succeed. It is always easy to
conjure extreme and even oppressive possibilities. That is not decisive. It does not settle the issue. What
carries weight and conviction is the result arrived at, the just solution obtained, grounded in the soundest of
legal doctrines and distinguished by its correspondence with what a sense of realism requires. For through the
appealed order, the imperative requirement of justice according to law is satisfied and national dignity and
honor maintained.
WHEREFORE, the appealed order of the Honorable Arsenio Santos, the Judge of the Court of First Instance,
dated May 18, 1964, is affirmed. With costs against oppositor-appelant Benguet Consolidated, Inc.

5. One last point. In Viloria v. Administrator of Veterans Affairs, 22 it was shown that in a guardianship Makalintal, Zaldivar and Capistrano, JJ., concur.
proceedings then pending in a lower court, the United States Veterans Administration filed a motion for the Concepcion, C.J., Reyes, J.B.L., Dizon, Sanchez and Castro, JJ., concur in the result.
refund of a certain sum of money paid to the minor under guardianship, alleging that the lower court had
previously granted its petition to consider the deceased father as not entitled to guerilla benefits according to a
determination arrived at by its main office in the United States. The motion was denied. In seeking a
reconsideration of such order, the Administrator relied on an American federal statute making his decisions
"final and conclusive on all questions of law or fact" precluding any other American official to examine the
matter anew, "except a judge or judges of the United States court." 23 Reconsideration was denied, and the
Administrator appealed.

In an opinion by Justice J.B.L. Reyes, we sustained the lower court. Thus: "We are of the opinion that the
appeal should be rejected. The provisions of the U.S. Code, invoked by the appellant, make the decisions of
the U.S. Veterans' Administrator final and conclusive when made on claims property submitted to him for
resolution; but they are not applicable to the present case, where the Administrator is not acting as a judge but
as a litigant. There is a great difference between actions against the Administrator (which must be filed strictly
in accordance with the conditions that are imposed by the Veterans' Act, including the exclusive review by
United States courts), and those actions where the Veterans' Administrator seeks a remedy from our courts
and submits to their jurisdiction by filing actions therein. Our attention has not been called to any law or treaty
that would make the findings of the Veterans' Administrator, in actions where he is a party, conclusive on our
courts. That, in effect, would deprive our tribunals of judicial discretion and render them mere subordinate
instrumentalities of the Veterans' Administrator."
 VILLARAMA, JR.,
PEREZ,
ALBERTO ROMULO, in his MENDOZA, and
Republic of the Philippines
capacity as Executive Secretary, SERENO, JJ.
SUPREME COURT
and BLAS F. OPLE, in his capacity
Manila
as Secretary of Foreign Affairs, Promulgated:
Respondents.
EN BANC
February 1, 2011
x-----------------------------------------------------------------------
BAYAN MUNA, as represented by G.R. No. 159618
------------------x
Rep. SATUR OCAMPO, Rep.
CRISPIN BELTRAN, and Rep. Present:
DECISION
LIZA L. MAZA,
VELASCO, JR., J.:
Petitioner, CORONA, C.J.,
CARPIO, The Case
CARPIO MORALES,
VELASCO, JR., This petition[1] for certiorari, mandamus and
NACHURA, prohibition under Rule 65 assails and seeks to nullify the
LEONARDO-DE CASTRO,
Non-Surrender Agreement concluded by and between the
- versus - BRION, Republic of the Philippines (RP) and the United States of
PERALTA, America (USA).
BERSAMIN,
DEL CASTILLO, The Facts
ABAD,
 Petitioner Bayan Muna is a duly registered party-list
group established to represent the marginalized sectors of
society. Respondent Blas F. Ople, now deceased, was the
Secretary of Foreign Affairs during the period material to
this case.Respondent Alberto Romulo was impleaded in his
capacity as then Executive Secretary.[2]
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is
the Rome Statute[3] establishing the International Criminal
Court (ICC) with the power to exercise its jurisdiction over
persons for the most serious crimes of international
concern x x x and shall be complementary to the national
criminal jurisdictions.[4] The serious crimes adverted to
cover those considered grave under international law, such
as genocide, crimes against humanity, war crimes, and
crimes of aggression.[5]
On December 28, 2000, the RP, through Charge
dAffaires Enrique A. Manalo, signed the Rome Statute
which, by its terms, is subject to ratification, acceptance or
approval by the signatory states.[6] As of the filing of the
instant petition, only 92 out of the 139 signatory countries
appear to have completed the ratification, approval and
concurrence process. The Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J.
Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms
of the non-surrender bilateral agreement (Agreement,
hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-03[7] dated
May 13, 2003 (E/N BFO-028-03, hereinafter), the RP,
represented by then DFA Secretary Ople, agreed with and
accepted the US proposals embodied under the US Embassy
Note adverted to and put in effect the Agreement with the
US government. In esse, the Agreement aims to protect
what it refers to and defines as persons of the RP and US
from frivolous and harassment suits that might be brought
against them in international tribunals.[8] It is reflective of
the increasing pace of the strategic security and defense
partnership between the two countries. As of May 2, 2003,
similar bilateral agreements have been effected by and
between the US and 33 other countries.[9]
The Agreement pertinently provides as follows:
1. For purposes of this Agreement,
persons are current or former Government
officials, employees (including contractors), or
military personnel or nationals of one Party.
2. Persons of one Party present in the
territory of the other shall not, absent the
express consent of the first Party,
(a) be surrendered or transferred by any
means to any international tribunal
for any purpose, unless such tribunal
has been established by the UN
Security Council, or
(b) be surrendered or transferred by any
means to any other entity or third
country, or expelled to a third
country, for the purpose of surrender
to or transfer to any international
tribunal, unless such tribunal has
been established by the UN Security
Council.
3. When the [US] extradites, surrenders,
or otherwise transfers a person of the
Philippines to a third country, the [US] will not
agree to the surrender or transfer of that person
by the third country to any international
tribunal, unless such tribunal has been
established by the UN Security Council, absent
the express consent of the Government of the
Republic of the Philippines [GRP].
4. When the [GRP] extradites,
surrenders, or otherwise transfers a person of
the [USA] to a third country, the [GRP] will
not agree to the surrender or transfer of that
person by the third country to any international
tribunal, unless such tribunal has been
established by the UN Security Council, absent
the express consent of the Government of the
[US].
 5. This Agreement shall remain in force being in the nature of an executive agreement, does not
until one year after the date on which one party require Senate concurrence for its efficacy. And for reasons
notifies the other of its intent to terminate the detailed in their comment, respondents assert the
Agreement. The provisions of this Agreement constitutionality of the Agreement.
shall continue to apply with respect to any act
occurring, or any allegation arising, before the The Issues
effective date of termination.
I. WHETHER THE [RP] PRESIDENT AND
THE [DFA] SECRETARY x x x
In response to a query of then Solicitor General
Alfredo L. Benipayo on the status of the non-surrender GRAVELY ABUSED THEIR
agreement, Ambassador Ricciardone replied in his letter of DISCRETION AMOUNTING TO LACK
October 28, 2003 that the exchange of diplomatic notes OR EXCESS OF JURISDICTION FOR
constituted a legally binding agreement under international CONCLUDING THE RP-US NON
law; and that, under US law, the said agreement did not SURRENDER AGREEMENT BY
require the advice and consent of the US Senate.[10] MEANS OF [E/N] BFO-028-03 DATED 13
MAY 2003, WHEN THE PHILIPPINE
In this proceeding, petitioner imputes grave abuse of GOVERNMENT HAS ALREADY
discretion to respondents in concluding and ratifying SIGNED THE ROME STATUTE OF THE
the Agreement and prays that it be struck down as [ICC] ALTHOUGH THIS IS PENDING
unconstitutional, or at least declared as without force and RATIFICATION BY THE PHILIPPINE
effect.
SENATE.
A. Whether by entering into the x x
For their part, respondents question petitioners
standing to maintain a suit and counter that the Agreement, x Agreement Respondents gravely
 abused their discretion when they
capriciously abandoned, waived and
relinquished our only legitimate recourse
through the Rome Statute of the [ICC] to
prosecute and try persons as defined in
the x x x Agreement, x x x or literally
any conduit of American interests, who
have committed crimes of genocide,
crimes against humanity, war crimes and
the crime of aggression, thereby
abdicating Philippine Sovereignty.
B. Whether after the signing and pending
ratification of the Rome Statute of the
[ICC] the [RP] President and the [DFA]
Secretary x x x are obliged by the
principle of good faith to refrain from
doing all acts which would substantially
impair the value of the undertaking as
signed.
C. Whether the x x
x Agreement constitutes an act which
defeats the object and purpose of
the Rome Statute of the International
Criminal Court and contravenes the
obligation of good faith inherent in the
signature of the President affixed on
the Rome Statute of the International
Criminal Court, and if so whether the x
x x Agreement is void and
unenforceable on this ground.
D. Whether the RP-US Non-Surrender
Agreement is void and unenforceable
for grave abuse of discretion amounting
to lack or excess of jurisdiction in
connection with its execution.
II. WHETHER THE RP-US NON
SURRENDER AGREEMENT IS
VOID AB INITIO FOR CONTRACTING
OBLIGATIONS THAT ARE EITHER
IMMORAL OR OTHERWISE AT
VARIANCE WITH UNIVERSALLY
 RECOGNIZED PRINCIPLES OF
INTERNATIONAL LAW. Procedural Issue: Locus Standi of Petitioner

III. WHETHER THE x x x AGREEMENT IS
VALID, BINDING AND
EFFECTIVE WITHOUT THE
CONCURRENCE BY AT LEAST
TWO-THIRDS (2/3) OF ALL THE
MEMBERS OF THE SENATE x x x.[11]
The foregoing issues may be summarized into
two: first, whether or not the Agreement was contracted
validly, which resolves itself into the question of whether or
not respondents gravely abused their discretion in
concluding it; and second, whether or
the Agreement, which has not been submitted to the Senate
for concurrence, contravenes and undermines the Rome
Statute and other treaties. But because respondents
expectedly raised it, we shall first tackle the issue of
petitioners legal standing.
The Courts Ruling
This petition is bereft of merit.
Petitioner, through its three party-list representatives,
contends that the issue of the validity or invalidity of
the Agreement carries with it constitutional significance and
is of paramount importance that justifies its standing. Cited
in this regard is what is usually referred to as the emergency
powers cases,[12] in which ordinary citizens and taxpayers
were accorded the personality to question the
constitutionality of executive issuances.
Locus standi is a right of appearance in a court of
justice on a given question.[13] Specifically, it is a partys
personal and substantial interest in a case where he has
sustained or will sustain direct injury as a result[14] of the act
being challenged, and calls for more than just a generalized
not grievance.[15] The term interest refers to material interest, as
distinguished from one that is merely incidental.[16] The
rationale for requiring a party who challenges the validity of
a law or international agreement to allege such a personal
stake in the outcome of the controversy is to assure the
concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for
illumination of difficult constitutional questions.[17]
 Locus standi, however, is merely a matter of
procedure and it has been recognized that, in some cases,
suits are not brought by parties who have been personally
injured by the operation of a law or any other government
act, but by concerned citizens, taxpayers, or voters who
actually sue in the public interest.[18] Consequently, in
a catena of cases,[19] this Court has invariably adopted a
liberal stance on locus standi.
Going by the petition, petitioners representatives
pursue the instant suit primarily as concerned citizens
raising issues of transcendental importance, both for the
Republic and the citizenry as a whole.
When suing as a citizen to question the validity of a
law or other government action, a petitioner needs to meet
certain specific requirements before he can be clothed with
standing. Francisco, Jr. v. Nagmamalasakit na mga
Manananggol ng mga Manggagawang Pilipino,
Inc.[20] expounded on this requirement, thus:
In a long line of cases, however,
concerned citizens, taxpayers and legislators
when specific requirements have been met
have been given standing by this Court.
When suing as a citizen, the interest of
the petitioner assailing the constitutionality of
a statute must be direct and personal. He must
be able to show, not only that the law or any
government act is invalid, but also that he
sustained or is in imminent danger of
sustaining some direct injury as a result of its
enforcement, and not merely that he suffers
thereby in some indefinite way. It must appear
that the person complaining has been or is
about to be denied some right or privilege to
which he is lawfully entitled or that he is about
to be subjected to some burdens or penalties by
reason of the statute or act complained of. In
fine, when the proceeding involves the
assertion of a public right, the mere fact that he
is a citizen satisfies the requirement of personal
interest.[21]
In the case at bar, petitioners representatives have
complied with the qualifying conditions or specific
requirements exacted under the locus standi rule. As
citizens, their interest in the subject matter of the petition is
direct and personal. At the very least, their assertions
questioning the Agreement are made of a public right, i.e.,
to ascertain that the Agreement did not go against
established national policies, practices, and obligations
bearing on the States obligation to the community of
nations.
At any event, the primordial importance to Filipino
citizens in general of the issue at hand impels the Court to
brush aside the procedural barrier posed by the traditional
requirement of locus standi, as we have done in a long line
of earlier cases, notably in the old but oft-cited emergency
powers cases[22] and Kilosbayan v. Guingona, Jr.[23] In cases
of transcendental importance, we wrote again in Bayan v.
Zamora,[24] The Court may relax the standing requirements
and allow a suit to prosper even where there is no direct
injury to the party claiming the right of judicial review.
Moreover, bearing in mind what the Court said
in Taada v. Angara, that it will not shirk, digress from or
abandon its sacred duty and authority to uphold the
Constitution in matters that involve grave abuse of
discretion brought before it in appropriate cases, committed
by any officer, agency, instrumentality or department of the
government,[25] we cannot but resolve head on the issues
raised before us. Indeed, where an action of any branch of
government is seriously alleged to have infringed the
Constitution or is done with grave abuse of discretion, it
becomes not only the right but in fact the duty of the
judiciary to settle it. As in this petition, issues are precisely
raised putting to the fore the propriety of
the Agreement pending the ratification of the Rome Statute.
Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against
the Agreement relates to form, its threshold posture being
that E/N BFO-028-03 cannot be a valid medium for
concluding the Agreement.
Petitioners contentionperhaps taken unaware of
certain well-recognized international doctrines, practices,
and jargonsis untenable. One of these is the doctrine of
incorporation, as expressed in Section 2, Article II of the
Constitution, wherein the Philippines adopts the generally
accepted principles of international law and international
jurisprudence as part of the law of the land and adheres to
the policy of peace, cooperation, and amity with all
nations.[26] An exchange of notes falls into the category of
inter-governmental agreements,[27] which is an
internationally accepted form of international agreement.
The United Nations Treaty Collections (Treaty Reference agreement that becomes binding through executive
Guide) defines the term as follows: action.[29] On the other hand, executive agreements
concluded by the President sometimes take the form of
exchange of notes and at other times that of more formal
An exchange of notes is a record of a documents denominated agreements or protocols.[30] As
routine agreement, that has many similarities former US High Commissioner to the Philippines Francis B.
with the private law contract. The agreement Sayre observed in his work, The Constitutionality of
consists of the exchange of two documents, Trade Agreement Acts:
The point where ordinary
each of the parties being in the possession of
correspondence between this and other
the one signed by the representative of the
governments ends and agreements whether
other. Under the usual procedure, the accepting
denominated executive agreements or
State repeats the text of the offering State to
exchange of notes or otherwise begin, may
record its assent. The signatories of the letters
sometimes be difficult of ready
may be government Ministers, diplomats or [31]
ascertainment. x x x
departmental heads. The technique of
It is fairly clear from the foregoing disquisition that
exchange of notes is frequently resorted to,
E/N BFO-028-03be it viewed as the Non-Surrender
either because of its speedy procedure, or,
Agreement itself, or as an integral instrument of acceptance
sometimes, to avoid the process of legislative thereof or as consent to be boundis a recognized mode of
approval.[28] concluding a legally binding international written contract
among nations.

In another perspective, the terms exchange of notes Senate Concurrence Not Required
and executive agreements have been used interchangeably,
exchange of notes being considered a form of executive
 Article 2 of the Vienna Convention on the Law of
Treaties defines a treaty as an international agreement
concluded between states in written form and governed by
international law, whether embodied in a single instrument
or in two or more related instruments and whatever its
particular designation.[32] International agreements may be
in the form of (1) treaties that require legislative
concurrence after executive ratification; or (2) executive
agreements that are similar to treaties, except that they do
not require legislative concurrence and are usually less
formal and deal with a narrower range of subject matters
than treaties.[33]
Under international law, there is no difference
between treaties and executive agreements in terms of their
binding effects on the contracting states concerned,[34] as
long as the negotiating functionaries have remained within
their powers.[35]Neither, on the domestic sphere, can one be
held valid if it violates the Constitution.[36] Authorities are,
however, agreed that one is distinct from another for
accepted reasons apart from the concurrence-requirement
aspect.[37] As has been observed by US constitutional
scholars, a treaty has greater dignity than an executive
agreement, because its constitutional efficacy is beyond
doubt, a treaty having behind it the authority of the
President, the Senate, and the people;[38] a ratified treaty,
unlike an executive agreement, takes precedence over any
prior statutory enactment.[39]
Petitioner parlays the notion that the Agreement is of
dubious validity, partaking as it does of the nature of a
treaty; hence, it must be duly concurred in by the
Senate. Petitioner takes a cue from Commissioner of
Customs v. Eastern Sea Trading,in which the Court
reproduced the following observations made by US legal
scholars: [I]nternational agreements involving political
issues or changes of national policy and those involving
international arrangements of a permanent character usually
take the form of treaties [while] those embodying
adjustments of detail carrying out well established national
policies and traditions and those involving arrangements of
a more or less temporary nature take the form of executive
agreements. [40]
Pressing its point, petitioner submits that the subject
of the Agreement does not fall under any of the
subject-categories that are enumerated in the Eastern Sea
Trading case, and that may be covered by an executive
agreement, such as commercial/consular relations,
most-favored nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements
and settlement of claims.
In addition, petitioner foists the applicability to the
instant case of Adolfo v. CFI of Zambales and
Merchant,[41] holding that an executive agreement through
an exchange of notes cannot be used to amend a treaty.
We are not persuaded.
The categorization of subject matters that may be
covered by international agreements mentioned in Eastern
Sea Trading is not cast in stone. There are no hard and fast
rules on the propriety of entering, on a given subject, into a
treaty or an executive agreement as an instrument of
international relations. The primary consideration in the
choice of the form of agreement is the parties intent and
desire to craft an international agreement in the form they
so wish to further their respective interests. Verily, the
matter of form takes a back seat when it comes to
effectiveness and binding effect of the enforcement of a
treaty or an executive agreement, as the parties in either
international agreement each labor under the pacta sunt
servanda[42] principle.
As may be noted, almost half a century has elapsed
since the Court rendered its decision in Eastern Sea
Trading. Since then, the conduct of foreign affairs has
become more complex and the domain of international law
wider, as to include such subjects as human rights, the
environment, and the sea. In fact, in the US alone, the
executive agreements executed by its President from 1980
to 2000 covered subjects such as defense, trade, scientific
cooperation, aviation, atomic energy, environmental
cooperation, peace corps, arms limitation, and nuclear
safety, among others.[43] Surely, the enumeration in Eastern
Sea Trading cannot circumscribe the option of each state on
the matter of which the international agreement format
would be convenient to serve its best interest. As Francis
Sayre said in his work referred to earlier:
x x x It would be useless to undertake to
discuss here the large variety of executive
agreements as such concluded from time to
time. Hundreds of executive agreements, other
than those entered into under the
trade-agreement act, have been negotiated with
foreign governments. x x x They cover such
subjects as the inspection of vessels,
navigation dues, income tax on shipping
profits, the admission of civil air craft, custom
 matters and commercial relations generally,
international claims, postal matters, the
registration of trademarks and copyrights, etc.
xxx
And lest it be overlooked, one type of executive
agreement is a treaty-authorized[44] or a treaty-implementing
executive agreement,[45] which necessarily would cover the
same matters subject of the underlying treaty.
But over and above the foregoing considerations is
the fact thatsave for the situation and matters contemplated
in Sec. 25, Art. XVIII of the Constitution[46]when a treaty is
required, the Constitution does not classify any subject, like
that involving political issues, to be in the form of, and
ratified as, a treaty. What the Constitution merely prescribes
is that treaties need the concurrence of the Senate by a vote
defined therein to complete the ratification process.
Petitioners reliance on Adolfo[47] is misplaced, said
case being inapplicable owing to different factual
milieus. There, the Court held that an executive agreement
cannot be used to amend a duly ratified and existing
treaty, i.e., the Bases Treaty.Indeed, an executive agreement
that does not require the concurrence of the Senate for its
ratification may not be used to amend a treaty that, under
the Constitution, is the product of the ratifying acts of the
Executive and the Senate. The presence of a treaty,
purportedly being subject to amendment by an executive
agreement, does not obtain under the premises.
Considering the above discussion, the Court need not
belabor at length the third main issue raised, referring to the
validity and effectivity of the Agreement without the
concurrence by at least two-thirds of all the members of the
Senate. The Court has, in Eastern Sea Trading,[48] as
reiterated in Bayan,[49] given recognition to the obligatory
effect of executive agreements without the concurrence of
the Senate:
x x x [T]he right of the Executive to
enter into binding agreements without the
necessity of subsequent Congressional
approval has been confirmed by long usage.
From the earliest days of our history, we have
entered executive agreements covering such
subjects as commercial and consular relations,
most favored-nation rights, patent rights,
trademark and copyright protection, postal and
 navigation arrangements and the settlement of
claims. The validity of these has never been
seriously questioned by our courts.
The Agreement Not in Contravention of
the Rome Statute
It is the petitioners next contention that
the Agreement undermines the establishment of the ICC and
is null and void insofar as it unduly restricts the ICCs
jurisdiction and infringes upon the effectivity of the Rome
Statute. Petitioner posits that the Agreement was constituted
solely for the purpose of providing individuals or groups of
individuals with immunity from the jurisdiction of the ICC;
and such grant of immunity through non-surrender
agreements allegedly does not legitimately fall within the
scope of Art. 98 of the Rome Statute. It concludes that state
parties with non-surrender agreements are prevented from
meeting their obligations under the Rome Statute, thereby
constituting a breach of Arts. 27,[50] 86,[51] 89[52] and
90[53] thereof.
Petitioner stresses that the overall object and purpose
of the Rome Statute is to ensure that those responsible for
the worst possible crimes are brought to justice in all cases,
primarily by states, but as a last resort, by the ICC; thus,
any agreementlike the non-surrender agreementthat
precludes the ICC from exercising its complementary
function of acting when a state is unable to or unwilling to
do so, defeats the object and purpose of the Rome Statute.
Petitioner would add that the President and the DFA
Secretary, as representatives of a signatory of the Rome
Statute, are obliged by the imperatives of good faith to
refrain from performing acts that substantially devalue the
purpose and object of the Statute, as signed. Adding a
nullifying ingredient to the Agreement, according to
petitioner, is the fact that it has an immoral purpose or is
otherwise at variance with a priorly executed treaty.
Contrary to petitioners pretense, the Agreement does
not contravene or undermine, nor does it differ from, the
Rome Statute. Far from going against each other, one
complements the other. As a matter of fact, the principle of
complementarity underpins the creation of the ICC. As
aptly pointed out by respondents and admitted by
petitioners, the jurisdiction of the ICC is to be
complementary to national criminal jurisdictions [of the
signatory states].[54] Art. 1 of the Rome Statute pertinently
provides:
 international crimes. This provision indicates that primary
jurisdiction over the so-called international crimes rests, at
the first instance, with the state where the crime was
committed; secondarily, with the ICC in appropriate
situations contemplated under Art. 17, par. 1[55] of
Article 1 the Rome Statute.

Of particular note is the application of the principle

The Court
of ne bis in idem[56] under par. 3 of Art. 20, Rome Statute,
which again underscores the primacy of the jurisdiction of a
An International Crimininal Court (the state vis-a-vis that of the ICC. As far as relevant, the
Court) is hereby established. It x x x shall provision states that no person who has been tried by
have the power to exercise its another court for conduct x x x [constituting crimes within
jurisdiction over persons for the most serious its jurisdiction] shall be tried by the [International Criminal]
crimes of international concern, as referred to Court with respect to the same conduct x x x.
in this Statute, and shall be complementary to
national criminal jurisdictions. The The foregoing provisions of the Rome Statute, taken
jurisdiction and functioning of the Court shall collectively, argue against the idea of jurisdictional conflict
be governed by the provisions of this between the Philippines, as party to the non-surrender
Statute. (Emphasis ours.) agreement, and the ICC; or the idea of
the Agreement substantially impairing the value of the RPs
undertaking under the Rome Statute. Ignoring for a while
the fact that the RP signed the Rome Statute ahead of
Significantly, the sixth preambular paragraph of the the Agreement, it is abundantly clear to us that the Rome
Rome Statute declares that it is the duty of every State to Statute expressly recognizes the primary jurisdiction of
exercise its criminal jurisdiction over those responsible for
states, like the RP, over serious crimes committed within
their respective borders, the complementary jurisdiction of
the ICC coming into play only when the signatory states are
unwilling or unable to prosecute.
Given the above consideration, petitioners
suggestionthat the RP, by entering into the Agreement,
violated its duty required by the imperatives of good faith
and breached its commitment under the Vienna
Convention[57] to refrain from performing any act tending to
impair the value of a treaty, e.g., the Rome Statutehas to be
rejected outright. For nothing in the provisions of
the Agreement, in relation to the Rome Statute, tends to
diminish the efficacy of the Statute, let alone defeats the
purpose of the ICC. Lest it be overlooked, the Rome Statute
contains a proviso that enjoins the ICC from seeking the
surrender of an erring person, should the process require the
requested state to perform an act that would violate some
international agreement it has entered into. We refer to Art.
98(2) of the Rome Statute, which reads:
Article 98
Cooperation with respect to waiver of
immunity
and consent to surrender
xxxx
2. The Court may not proceed with a
request for surrender which would require
the requested State to act inconsistently
with its obligations under international
agreements pursuant to which the consent
of a sending State is required to surrender a
person of that State to the Court, unless the
Court can first obtain the cooperation of the
sending State for the giving of consent for
the surrender.
Moreover, under international law, there is a
considerable difference between a State-Party and a
signatory to a treaty. Under the Vienna Convention on the
Law of Treaties, a signatory state is only obliged to refrain
from acts which would defeat the object and purpose of a
treaty;[58] whereas a State-Party, on the other hand, is legally
obliged to follow all the provisions of a treaty in good faith.
 In the instant case, it bears stressing that
the Philippines is only a signatory to the Rome Statute and
not a State-Party for lack of ratification by the Senate. Thus,
it is only obliged to refrain from acts which would defeat
the object and purpose of the Rome Statute. Any argument
obliging the Philippines to follow any provision in the
treaty would be premature.
As a result, petitioners argument that State-Parties
with non-surrender agreements are prevented from meeting
their obligations under the Rome Statute, specifically Arts.
27, 86, 89 and 90, must fail. These articles are only legally
binding upon State-Parties, not signatories.
Furthermore, a careful reading of said Art. 90 would
show that the Agreement is not incompatible with the Rome
Statute. Specifically, Art. 90(4) provides that [i]f the
requesting State is a State not Party to this Statute the
requested State, if it is not under an international obligation
to extradite the person to the requesting State, shall give
priority to the request for surrender from the Court. x x x In
applying the provision, certain undisputed facts should be
pointed out: first, the US is neither a State-Party nor a
signatory to the Rome Statute; and second, there is an
international agreement between the US and
the Philippines regarding extradition or surrender of persons,
i.e., the Agreement. Clearly, even assuming that the
Philippines is a State-Party, the Rome Statute still
recognizes the primacy of international agreements entered
into between States, even when one of the States is not a
State-Party to the Rome Statute.
Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through
the Agreement, abdicated its sovereignty by bargaining
away the jurisdiction of the ICC to prosecute US nationals,
government officials/employees or military personnel who
commit serious crimes of international concerns in
the Philippines. Formulating petitioners argument a bit
differently, the RP, by entering into the Agreement, does
thereby abdicate its sovereignty, abdication being done by
its waiving or abandoning its right to seek recourse through
the Rome Statute of the ICC for erring Americans
committing international crimes in the country.
We are not persuaded. As it were, the Agreement is
but a form of affirmance and confirmance of
the Philippines national criminal jurisdiction. National
criminal jurisdiction being primary, as explained above, it is
always the responsibility and within the prerogative of the
RP either to prosecute criminal offenses equally covered by
the Rome Statute or to accede to the jurisdiction of the
ICC. Thus, the Philippines may decide to try persons of
the US, as the term is understood in the Agreement, under
our national criminal justice system. Or it may opt not to
exercise its criminal jurisdiction over its erring citizens or
over US persons committing high crimes in the country and
defer to the secondary criminal jurisdiction of the ICC over
them. As to persons of the US whom the Philippines refuses
to prosecute, the country would, in effect, accord discretion
to the US to exercise either its national criminal jurisdiction
over the person concerned or to give its consent to the
referral of the matter to the ICC for trial. In the same breath,
the US must extend the same privilege to
the Philippines with respect to persons of the RP
committing high crimes within US territorial jurisdiction.
In the context of the Constitution, there can be no
serious objection to the Philippines agreeing to undertake
the things set forth in the Agreement. Surely, one State can
agree to waive jurisdictionto the extent agreed uponto
subjects of another State due to the recognition of the
principle of extraterritorial immunity. What the Court wrote
in Nicolas v. Romulo[59]a case involving the implementation
of the criminal jurisdiction provisions of the RP-US
Visiting Forces Agreementis apropos:
Nothing in the Constitution prohibits
such agreements recognizing immunity from
jurisdiction or some aspects of jurisdiction
(such as custody), in relation to
long-recognized subjects of such immunity
like Heads of State, diplomats and members of
the armed forces contingents of a foreign State
allowed to enter another States territory. x x x
To be sure, the nullity of the subject non-surrender
agreement cannot be predicated on the postulate that some
of its provisions constitute a virtual abdication of its
sovereignty. Almost every time a state enters into an
international agreement, it voluntarily sheds off part of its
sovereignty. The Constitution, as drafted, did not envision a
reclusive Philippines isolated from the rest of the world. It
even adheres, as earlier stated, to the policy of cooperation
and amity with all nations.[60]
 By their nature, treaties and international agreements
actually have a limiting effect on the otherwise
encompassing and absolute nature of sovereignty. By their
voluntary act, nations may decide to surrender or waive
some aspects of their state power or agree to limit the
exercise of their otherwise exclusive and absolute
jurisdiction. The usual underlying consideration in this
partial surrender may be the greater benefits derived from a
pact or a reciprocal undertaking of one contracting party to
grant the same privileges or immunities to the other. On the
rationale that the Philippines has adopted the generally
accepted principles of international law as part of the law of
the land, a portion of sovereignty may be waived without
violating the Constitution.[61] Such waiver does not amount
to an unconstitutional diminution or deprivation of
jurisdiction of Philippine courts.[62]
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as
void ab initio for imposing immoral obligations and/or
being at variance with allegedly universally recognized
principles of international law. The immoral aspect
proceeds from the fact that the Agreement, as petitioner
would put it, leaves criminals immune from responsibility
for unimaginable atrocities that deeply shock the conscience
of humanity; x x x it precludes our country from delivering
an American criminal to the [ICC] x x x.[63]
The above argument is a kind of recycling of
petitioners earlier position, which, as already discussed,
contends that the RP, by entering into
the Agreement, virtually abdicated its sovereignty and in the
process undermined its treaty obligations under the Rome
Statute, contrary to international law principles.[64]
The Court is not persuaded. Suffice it to state in this
regard that the non-surrender agreement, as aptly described
by the Solicitor General, is an assertion by
the Philippines of its desire to try and punish crimes under
its national law. x x x The agreement is a recognition of the
primacy and competence of the countrys judiciary to try
offenses under its national criminal laws and dispense
justice fairly and judiciously.
Petitioner, we believe, labors under the erroneous
impression that the Agreement would allow Filipinos and
Americans committing high crimes of international concern
to escape criminal trial and punishment. This is manifestly
incorrect.Persons who may have committed acts penalized
under the Rome Statute can be prosecuted and punished in
the Philippines or in the US; or with the consent of the RP
or the US, before the ICC, assuming, for the nonce, that all
the formalities necessary to bind both countries to the Rome
Statute have been met. For perspective, what
the Agreement contextually prohibits is the surrender by
either party of individuals to international tribunals, like the
ICC, without the consent of the other party, which may
desire to prosecute the crime under its existing laws. With
the view we take of things, there is nothing immoral or
violative of international law concepts in the act of
the Philippines of assuming criminal jurisdiction pursuant
to the non-surrender agreement over an offense considered
criminal by both Philippine laws and the Rome Statute.
No Grave Abuse of Discretion
Petitioners final point revolves around the necessity
of the Senates concurrence in the Agreement. And without
specifically saying so, petitioner would argue that the
non-surrender agreement was executed by the President,
thru the DFA Secretary, in grave abuse of discretion.
The Court need not delve on and belabor the first
portion of the above posture of petitioner, the same having
been discussed at length earlier on. As to the second portion,
We wish to state that petitioner virtually faults the President
for performing, through respondents, a task conferred the
President by the Constitutionthe power to enter into
international agreements.
By constitutional fiat and by the nature of his or her
office, the President, as head of state and government, is the
sole organ and authority in the external affairs of the
country.[65] The Constitution vests in the President the
power to enter into international agreements, subject, in
appropriate cases, to the required concurrence votes of the
Senate. But as earlier indicated, executive agreements may
be validly entered into without such concurrence. As the
President wields vast powers and influence, her conduct in
the external affairs of the nation is, as Bayan would put it,
executive altogether. The right of the President to enter into
or ratify binding executive agreements has been confirmed
by long practice.[66]
In thus agreeing to conclude the Agreement thru E/N
BFO-028-03, then President Gloria Macapagal-Arroyo,
represented by the Secretary of Foreign Affairs, acted
within the scope of the authority and discretion vested in
her by the Constitution.At the end of the day, the
Presidentby ratifying, thru her deputies, the non-surrender
agreementdid nothing more than discharge a constitutional
duty and exercise a prerogative that pertains to her office.
While the issue of ratification of the Rome Statute is
not determinative of the other issues raised herein, it may
perhaps be pertinent to remind all and sundry that about the
time this petition was interposed, such issue of ratification
was laid to rest in Pimentel, Jr. v. Office of the Executive
Secretary.[67] As the Court emphasized in said case, the
power to ratify a treaty, the Statute in that instance, rests
with the President, subject to the concurrence of the Senate,
whose role relative to the ratification of a treaty is limited
merely to concurring in or withholding the ratification. And
concomitant with this treaty-making power of the President
is his or her prerogative to refuse to submit a treaty to the
Senate; or having secured the latters consent to the
ratification of the treaty, refuse to ratify it.[68] This
prerogative, the Court hastened to add, is the Presidents
alone and cannot be encroached upon via a writ of
mandamus. Barring intervening events, then,
the Philippines remains to be just a signatory to the Rome
Statute. Under Art. 125[69] thereof, the final acts required to
complete the treaty process and, thus, bring it into force,
insofar as the Philippines is concerned, have yet to be done.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed
into law Republic Act No. (RA) 9851, otherwise known as
the Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes Against
Humanity. Sec. 17 of RA 9851, particularly the second
paragraph thereof, provides:
Section 17. Jurisdiction. x x x x
In the interest of justice, the relevant
Philippine authorities may dispense with the
investigation or prosecution of a crime
punishable under this Act if another court or
international tribunal is already conducting the
investigation or undertaking the prosecution of
such crime. Instead, the
authorities may surrender or extradite
suspected or accused persons in
the Philippines to the appropriate
international court, if any, or to another
 State pursuant to the applicable extradition
laws and treaties. (Emphasis supplied.)
A view is advanced that the Agreement amends
existing municipal laws on the States obligation in relation
to grave crimes against the law of nations, i.e., genocide,
crimes against humanity and war crimes. Relying on the
above-quoted statutory proviso, the view posits that the
Philippine is required to surrender to the proper
international tribunal those persons accused of the grave
crimes defined under RA 9851, if it does not exercise its
primary jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it
does not decide to prosecute a foreign national for
violations of RA 9851, the Philippines has only two options,
to wit: (1) surrender the accused to the proper international
tribunal; or (2) surrender the accused to another State if
such surrender is pursuant to the applicable extradition laws
and treaties. But the Philippines may exercise these options
only in cases where another court or international tribunal is
already conducting the investigation or undertaking the
prosecution of such crime; otherwise, the Philippines must
prosecute the crime before its own courts pursuant to RA
9851.
Posing the situation of a US national under
prosecution by an international tribunal for any crime under
RA 9851, the Philippines has the option to surrender
such US national to the international tribunal if it decides
not to prosecute such USnational here. The view asserts that
this option of the Philippines under Sec. 17 of RA 9851 is
not subject to the consent of the US, and any derogation of
Sec. 17 of RA 9851, such as requiring the consent of
the US before the Philippines can exercise such option,
requires an amendatory law. In line with this scenario, the
view strongly argues that the Agreement prevents
the Philippineswithout the consent of the USfrom
surrendering to any international tribunal US nationals
accused of crimes covered by RA 9851, and, thus, in effect
amends Sec. 17 of RA 9851. Consequently, the view is
strongly impressed that the Agreement cannot be embodied
in a simple executive agreement in the form of an exchange
of notes but must be implemented through an extradition
law or a treaty with the corresponding formalities.
Moreover, consonant with the foregoing view, citing
Sec. 2, Art. II of the Constitution, where
the Philippines adopts, as a national policy, the generally
accepted principles of international law as part of the
law of the land, the Court is further impressed to
perceive the Rome Statute as declaratory of customary
international law. In other words, the Statute embodies
principles of law which constitute customary international
law or custom and for which reason it assumes the status of
an enforceable domestic law in the context of the aforecited
constitutional provision. As a corollary, it is argued that any
derogation from the Rome Statute principles cannot be
undertaken via a mere executive agreement, which, as an
exclusive act of the executive branch, can only implement,
but cannot amend or repeal, an existing law. The Agreement,
so the argument goes, seeks to frustrate the objects of the
principles of law or alters customary rules embodied in the
Rome Statute.
Prescinding from the foregoing premises, the view
thus advanced considers the Agreement inefficacious,
unless it is embodied in a treaty duly ratified with the
concurrence of the Senate, the theory being that a Senate-
ratified treaty partakes of the nature of a municipal law that
can amend or supersede another law, in this instance Sec.
17 of RA 9851 and the status of the Rome Statute as
constitutive of enforceable domestic law under Sec. 2, Art.
II of the Constitution.
We are unable to lend cogency to the view thus taken.
For one, we find that the Agreement does not amend or is
repugnant to RA 9851. For another, the view does not
clearly state what precise principles of law, if any,
the Agreement alters. And for a third, it does not
demonstrate in the concrete how the Agreement seeks to
frustrate the objectives of the principles of law subsumed in
the Rome Statute.
Far from it, as earlier explained, the Agreement does
not undermine the Rome Statute as the former merely
reinforces the primacy of the national jurisdiction of
the US and the Philippines in prosecuting criminal offenses
committed by their respective citizens and military
personnel, among others. The jurisdiction of the ICC
pursuant to the Rome Statute over high crimes indicated
thereat is clearly and unmistakably complementary to the
national criminal jurisdiction of the signatory states.
Moreover, RA 9851 clearly: (1) defines and
establishes the crimes against international humanitarian
law, genocide and other crimes against humanity;[70] (2)
provides penal sanctions and criminal liability for their
commission;[71] and (3) establishes special courts for the
prosecution of these crimes and for the State to exercise
primary criminal jurisdiction.[72] Nowhere in RA 9851 is
there a proviso that goes against the tenor of the Agreement.
The view makes much of the above quoted second
par. of Sec. 17, RA 9851 as requiring the Philippine State
to surrender to the proper international tribunal those
persons accused of crimes sanctioned under said law if it
does not exercise its primary jurisdiction to prosecute such
persons. This view is not entirely correct, for the above
quoted proviso clearly provides discretion to the Philippine
State on whether to surrender or not a person accused of the
crimes under RA 9851. The statutory proviso uses the
word may. It is settled doctrine in statutory construction that
the word may denotes discretion, and cannot be construed
as having mandatory effect.[73] Thus, the pertinent second
pararagraph of Sec. 17, RA 9851 is simply permissive on
the part of the Philippine State.
Besides, even granting that the surrender of a person
is mandatorily required when the Philippines does not
exercise its primary jurisdiction in cases where another
court or international tribunal is already conducting the
investigation or undertaking the prosecution of such crime,
still, the tenor of the Agreement is not repugnant to Sec. 17
of RA 9851. Said legal proviso aptly provides that the
surrender may be made to another State pursuant to the
applicable extradition laws and treaties. The Agreement can
already be considered a treaty following this Courts
decision in Nicolas v. Romulo[74] which cited Weinberger v.
Rossi.[75] In Nicolas, We held that an executive agreement is
a treaty within the meaning of that word in international law
and constitutes enforceable domestic law vis--vis the United
States.[76]
Likewise, the Philippines and the US already have an
existing extradition treaty, i.e., RP-US Extradition Treaty,
which was executed on November 13, 1994. The pertinent
Philippine law, on the other hand, is Presidential Decree No.
1069, issued on January 13, 1977. Thus, the Agreement, in
conjunction with the RP-US Extradition Treaty, would
neither violate nor run counter to Sec. 17 of RA 9851.
The views reliance on Suplico v. Neda[77] is similarly
improper. In that case, several petitions were filed
questioning the power of the President to enter into foreign
loan agreements. However, before the petitions could be
resolved by the Court, the Office of the Solicitor General
filed a Manifestation and Motion averring that the
Philippine Government decided not to continue with the
ZTE National Broadband Network Project, thus rendering
the petition moot. In resolving the case, the Court took
judicial notice of the act of the executive department of
the Philippines (the President) and found the petition to be
indeed moot. Accordingly, it dismissed the petitions.
In his dissent in the abovementioned case, Justice
Carpio discussed the legal implications of an executive
agreement. He stated that an executive agreement has the
force and effect of law x x x [it] cannot amend or
repeal prior laws.[78] Hence, this argument finds no
application in this case seeing as RA 9851 is a subsequent
law, not a prior one. Notably, this argument cannot be
found in the ratio decidendi of the case, but only in the
dissenting opinion.
The view further contends that the RP-US Extradition
Treaty is inapplicable to RA 9851 for the reason that under
par. 1, Art. 2 of the RP-US Extradition Treaty, [a]n offense
shall be an extraditable offense if it is punishable under
the laws in both Contracting Parties x x x,[79] and thereby
concluding that while the Philippines has criminalized
under RA 9851 the acts defined in the Rome Statute as war
crimes, genocide and other crimes against humanity, there
is no similar legislation in the US. It is further argued that,
citing U.S. v. Coolidge, in the US, a person cannot be tried
in the federal courts for an international crime unless
Congress adopts a law defining and punishing the offense.
This view must fail.
On the contrary, the US has already enacted
legislation punishing the high crimes mentioned earlier. In
fact, as early as October 2006, the US enacted a law
criminalizing war crimes. Section 2441, Chapter 118, Part I,
Title 18 of the United States Code Annotated (USCA)
provides for the criminal offense of war crimes which is
similar to the war crimes found in both the Rome Statute
and RA 9851, thus:
(a) Offense Whoever, whether inside or
outside the United States, commits a war
crime, in any of the circumstances
described in subsection (b), shall be fined
under this title or imprisoned for life or any
term of years, or both, and if death results
to the victim, shall also be subject to the
penalty of death.
(b) Circumstances The circumstances referred
to in subsection (a) are that the person
committing such war crime or the victim of
 such war crime is a member of the Armed
Forces of the United States or a national of
the United States (as defined in Section 101
of the Immigration and Nationality Act).
(c) Definition As used in this Section the
term war crime means any conduct
(1) Defined as a grave breach in any of the
international conventions signed
at Geneva 12 August 1949, or any
protocol to such convention to which
the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28
of the Annex to the Hague Convention
IV, Respecting the Laws and Customs of
War on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of
common Article 3 (as defined in
subsection [d]) when committed in the
context of and in association with an
armed conflict not of an international
character; or
(4) Of a person who, in relation to an
armed conflict and contrary to the
provisions of the Protocol on
Prohibitions or Restrictions on the Use
of Mines, Booby-Traps and Other
Devices as amended at Geneva on 3
May 1996 (Protocol II as amended on 3
May 1996), when the United States is a
party to such Protocol, willfully kills or
causes serious injury to civilians.[80]
Similarly, in December 2009, the US adopted a law
that criminalized genocide, to wit:
1091. Genocide
(a) Basic Offense Whoever,
whether in the time of peace or in time
of war and with specific intent to destroy,
in whole or in substantial part, a national,
ethnic, racial or religious group as such
(1) kills members of that group;
(2) causes serious bodily injury to
members of that group;
(3) causes the permanent
impairment of the mental faculties of
 members of the group through drugs,
torture, or similar techniques;
(4) subjects the group to conditions
of life that are intended to cause the
physical destruction of the group in
whole or in part;
(5) imposes measures intended to
prevent births within the group; or
(6) transfers by force children of the
group to another group;
shall be punished as provided in
subsection (b).[81]
Arguing further, another view has been advanced that
the current US laws do not cover every crime listed within
the jurisdiction of the ICC and that there is a gap between
the definitions of the different crimes under the US laws
versus the Rome Statute. The view used a report written by
Victoria K. Holt and Elisabeth W. Dallas, entitled On Trial:
The US Military and the International Criminal Court, as its
basis.
At the outset, it should be pointed out that the report used
may not have any weight or value under international law.
Article 38 of the Statute of the International Court of Justice
(ICJ) lists the sources of international law, as follows: (1)
international conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states; (2) international custom, as evidence of a general
practice accepted as law; (3) the general principles of law
recognized by civilized nations; and (4) subject to the
provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination
of rules of law. The report does not fall under any of the
foregoing enumerated sources. It cannot even be considered
as the teachings of highly qualified publicists. A highly
qualified publicist is a scholar of public international law
and the term usually refers to legal scholars or academic
writers.[82] It has not been shown that the authors[83] of this
report are highly qualified publicists.
Assuming arguendo that the report has weight, still,
the perceived gaps in the definitions of the crimes
are nonexistent. To highlight, the table below shows the
definitions of genocide and war crimes under the Rome
Statute vis--vis the definitions under US laws:
 Rome Statute
Article 6
Genocide
For the purpose of this
Statute, genocide means any
of the following acts
committed with intent to
destroy, in whole or in part, a
national, ethnical, racial or
religious group, as such:
(a) Killing members of the
group;
(b) Causing serious bodily or
mental harm to members
of the group;
(c) Deliberately inflicting on
the group conditions of life
calculated to bring about
its physical destruction in
whole or in part;
(d) Imposing measures
intended to prevent births
within the group;
US Law
1091. Genocide
(a) Basic Offense
Whoever, whether in the
time of peace or in time of
war and with specific
intent to destroy, in whole
or in substantial part, a
national, ethnic, racial or
religious group as such
(1) kills members of that
group;
(2) causes serious bodily
injury to members of
that group;
(3) causes the permanent
impairment of the
mental faculties of
members of the group
through drugs,
torture, or similar
techniques;
(e) Forcibly transferring (4) subjects the group to
children of the group to
another group.
Article 8
War Crimes
2. For the purpose of this
Statute, war crimes means:
(a) Grave breaches of the
Geneva Conventions of 12
August 1949, namely, any of
conditions of life that
are intended to cause
the physical
destruction of the
group in whole or in
part;
(5) imposes measures
intended to prevent
births within the
group; or
(6) transfers by force
children of the group
to another group;
shall be punished as
provided in subsection (b).
(a) Definition As used in
this Section the term
war crime means any
conduct
(1) Defined as a grave
breach in any of the
international
the following acts against
persons or property protected
under the provisions of the
relevant Geneva Convention:
x x x[84]
(b) Other serious violations of
the laws and customs
applicable in international
armed conflict, within the
established framework of
international law, namely, any
of the following acts:
xxxx
(c) In the case of an armed
conflict not of an international
character, serious violations of
article 3 common to the four
Geneva Conventions of 12
August 1949, namely, any of
the following acts committed
against persons taking no
active part in the hostilities,
including members of armed
conventions signed forces who have laid down armed conflict not of
at Geneva12 August their arms and those placed an international
1949, or any protocol hors de combat by sickness, character; or
to such convention to wounds, detention or any (4) Of a person who, in
which the United other cause: relation to an armed
States is a party; xxxx conflict and contrary
(2) Prohibited by (d) Paragraph 2 (c) applies to to the provisions of
Article 23, 25, 27 or armed conflicts not of an the Protocol on
28 of the Annex international character and Prohibitions or
to the thus does not apply to Restrictions on the
Hague Convention situations of internal Use of Mines,
IV, Respecting the disturbances and tensions, Booby-Traps and
Laws and Customs of such as riots, isolated and Other Devices as
War on Land, signed sporadic acts of violence or amended at Geneva
18 October 1907; other acts of a similar nature. on 3 May 1996
(3) Which constitutes a (e) Other serious violations of (Protocol II as
grave breach of the laws and customs amended on 3 May
common Article 3 (as applicable in armed conflicts 1996), when the
defined in subsection not of an international United States is a
[d][85]) when character, within the party to such
committed in the established framework of Protocol, willfully
context of and in international law, namely, any kills or causes serious
association with an of the following acts: x x x. injury to civilians.[86]

Evidently, the gaps pointed out as to the definition of the
crimes are not present. In fact, the report itself stated as
much, to wit:
Few believed there were wide
differences between the crimes under the
jurisdiction of the Court and crimes within the
Uniform Code of Military Justice that would
expose US personnel to the Court.
Since US military lawyers were instrumental in
drafting the elements of crimes outlined in the
Rome Statute, they ensured that most of the
crimes were consistent with those outlined in
the UCMJ and gave strength to
complementarity for the US. Small areas of
potential gaps between the UCMJ and the
Rome Statute, military experts argued, could
be addressed through existing military
laws.[87] x x x
The report went on further to say that [a]ccording to
those involved, the elements of crimes laid out in the Rome
Statute have been part of US military doctrine for
decades.[88] Thus, the argument proffered cannot stand.
Nonetheless, despite the lack of actual domestic
legislation, the US notably follows the doctrine of
incorporation. As early as 1900, the esteemed Justice Gray
in The Paquete Habana[89] case already held international
law as part of the law of the US, to wit:
International law is part of our law,
and must be ascertained and administered by
the courts of justice of appropriate jurisdiction
as often as questions of right depending upon it
are duly presented for their determination. For
this purpose, where there is no treaty and no
controlling executive or legislative act or
judicial decision, resort must be had to the
customs and usages of civilized nations, and,
as evidence of these, to the works of jurists and
commentators who by years of labor, research,
and experience have made themselves
peculiarly well acquainted with the subjects of
which they treat. Such works are resorted to by
judicial tribunals, not for the speculations of
 their authors concerning what the law ought to
be, but for the trustworthy evidence of what
the law really is.[90] (Emphasis supplied.)
Thus, a person can be tried in the US for an
international crime despite the lack of domestic
legislation. The cited ruling in U.S. v. Coolidge,[91] which in
turn is based on the holding in U.S. v. Hudson,[92] only
applies to common law and not to the law of nations or
international law.[93] Indeed, the Court in U.S. v.
Hudson only considered the question, whether the Circuit
Courts of the United States can exercise a common
law jurisdiction in criminal cases.[94] Stated otherwise, there
is no common law crime in the US but this is considerably
different from international law.
The US doubtless recognizes international law as part
of the law of the land, necessarily including international
crimes, even without any local statute.[95] In fact, years later,
US courts would apply international law as a source of
criminal liability despite the lack of a local statute
criminalizing it as such. So it was that in Ex Parte
Quirin[96] the US Supreme Court noted that [f]rom the very
beginning of its history this Court has recognized and
applied the law of war as including that part of the law of
nations which prescribes, for the conduct of war, the status,
rights and duties of enemy nations as well as of enemy
individuals.[97] It went on further to explain that Congress
had not undertaken the task of codifying the specific
offenses covered in the law of war, thus:
It is no objection that Congress in
providing for the trial of such offenses has not
itself undertaken to codify that branch of
international law or to mark its precise
boundaries, or to enumerate or define by
statute all the acts which that law condemns.
An Act of Congress punishing the crime of
piracy as defined by the law of nations is an
appropriate exercise of its constitutional
authority, Art. I, s 8, cl. 10, to define and
punish the offense since it has adopted by
reference the sufficiently precise definition of
international law. x x x Similarly by the
reference in the 15th Article of War to
offenders or offenses that x x x by the law of
war may be triable by such military
commissions. Congress has incorporated by
 reference, as within the jurisdiction of military
commissions, all offenses which are defined as
such by the law of war x x x, and which may
constitutionally be included within that
jurisdiction.[98] x x x (Emphasis supplied.)
This rule finds an even stronger hold in the case of
crimes against humanity. It has been held that genocide,
war crimes and crimes against humanity have attained the
status of customary international law. Some even go so far
as to state that these crimes have attained the status of jus
cogens.[99]
Customary international law or international custom
is a source of international law as stated in the Statute of the
ICJ.[100] It is defined as the general and consistent practice
of states recognized and followed by them from a sense of
legal obligation.[101] In order to establish the customary
status of a particular norm, two elements must concur: State
practice, the objective element; and opinio juris sive
necessitates, the subjective element.[102]
State practice refers to the continuous repetition of
the same or similar kind of acts or norms by States.[103] It is
demonstrated upon the existence of the following elements:
(1) generality; (2) uniformity and consistency; and (3)
duration.[104]While, opinio juris, the psychological element,
requires that the state practice or norm be carried out in
such a way, as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law
requiring it.[105]
The term jus cogens means the compelling
[106]
law. Corollary, a jus cogens norm holds the highest
hierarchical position among all other customary norms and
principles.[107] As a result, jus cogens norms are deemed
peremptory and non-derogable.[108] When applied to
international crimes, jus cogens crimes have been deemed
so fundamental to the existence of a just international legal
order that states cannot derogate from them, even by
agreement.[109]
These jus cogens crimes relate to the principle of
universal jurisdiction, i.e., any state may exercise
jurisdiction over an individual who commits certain heinous
and widely condemned offenses, even when no other
recognized basis for jurisdiction exists.[110] The rationale
behind this principle is that the crime committed is so
egregious that it is considered to be committed against all
members of the international community[111] and thus
granting every State jurisdiction over the crime.[112]
Therefore, even with the current lack of domestic
legislation on the part of the US, it still has both the
doctrine of incorporation and universal jurisdiction to try
these crimes.
Consequently, no matter how hard one insists, the
ICC, as an international tribunal, found in the Rome Statute
is not declaratory of customary international law.
The first element of customary international law, i.e.,
established, widespread, and consistent practice on the part
of States,[113] does not, under the premises, appear to be
obtaining as reflected in this simple reality: As of October
12, 2010, only 114[114] States have ratified the Rome Statute,
subsequent to its coming into force eight (8) years earlier,
or on July 1, 2002. The fact that 114 States out of a total of
194[115] countries in the world, or roughly 58.76%, have
ratified the Rome Statute casts doubt on whether or not the
perceived principles contained in the Statute have attained
the status of customary law and should be deemed as
obligatory international law. The numbers even tend to
argue against the urgency of establishing international
criminal courts envisioned in the Rome Statute. Lest it be
overlooked, the Philippines, judging by the action or
inaction of its top officials, does not even feel bound by the
Rome Statute. Res ipsa loquitur. More than eight (8) years
have elapsed since the Philippine representative signed the
Statute, but the treaty has not been transmitted to the Senate
for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said
respecting the application of the concurring elements, thus:
Custom or customary international law
means a general and consistent practice of
states followed by them from a sense of legal
obligation [opinio juris] x x x. This statement
contains the two basic elements of custom: the
material factor, that is how the states behave,
and the psychological factor or subjective
factor, that is, why they behave the way they
do.
xxxx
The initial factor for determining the existence
of custom is the actual behavior of
states. This includes several elements: duration,
consistency, and generality of the practice of
states.
The required duration can be either short
or long. x x x
xxxx
Duration therefore is not the most
important element. More important is the
consistency and the generality of the
practice. x x x
xxxx
Once the existence of state practice
has been established, it becomes necessary to
determine why states behave the way they
do. Do states behave the way they do because
they consider it obligatory to behave thus or do
they do it only as a matter of courtesy?Opinio
juris, or the belief that a certain form of
behavior is obligatory, is what makes practice
an international rule. Without it, practice is not
law.[116] (Emphasis added.)
Evidently, there is, as yet, no overwhelming
consensus, let alone prevalent practice, among the different
countries in the world that the prosecution of internationally
recognized crimes of genocide, etc. should be handled by
a particular international criminal court.
Absent the widespread/consistent-practice-of-states
factor, the second or the psychological element must be
deemed non-existent, for an inquiry on why states behave
the way they do presupposes, in the first place, that they are
actually behaving, as a matter of settled and consistent
practice, in a certain manner. This implicitly requires belief
that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.[117] Like the first
element, the second element has likewise not been shown to
be present.
 Further, the Rome Statute itself rejects the concept of
universal jurisdiction over the crimes enumerated therein as
evidenced by it requiring State consent.[118] Even further,
the Rome Statute specifically and unequivocally requires In light of the above consideration, the position or
that: This Statute is subject to ratification, acceptance or view that the challenged RP-US Non-Surrender Agreement
approval by signatory States.[119] These clearly negate the ought to be in the form of a treaty, to be effective, has to be
argument that such has already attained customary status. rejected.

More importantly, an act of the executive branch with WHEREFORE, the petition for certiorari,
a foreign government must be afforded great respect. The mandamus and prohibition is hereby DISMISSED for lack
power to enter into executive agreements has long been of merit. No costs.
recognized to be lodged with the President. As We held
in Neri v. Senate Committee on Accountability of Public SO ORDERED.
Officers and Investigations, [t]he power to enter into an
executive agreement is in essence an executive power. This
authority of the President to enter into executive agreements
without the concurrence of the Legislature has traditionally
been recognized in Philippine jurisprudence.[120] The
rationale behind this principle is the inviolable doctrine of
separation of powers among the legislative, executive and
judicial branches of the government. Thus, absent any clear
contravention of the law, courts should exercise utmost
caution in declaring any executive agreement invalid.

SECOND DIVISION
[G.R. No. 139325. April 12, 2005]
PRISCILLA C. MIJARES, LORETTA ANN P.
ROSALES, HILDA B. NARCISO, SR. MARIANI
DIMARANAN, SFIC, and JOEL C. LAMANGAN
in their behalf and on behalf of the Class
Plaintiffs in Class Action No. MDL 840, United
States District Court of Hawaii, petitioners, vs.
HON. SANTIAGO JAVIER RANADA, in his
capacity as Presiding Judge of Branch 137,
Regional Trial Court, Makati City, and the
ESTATE OF FERDINAND E. MARCOS,
through its court appointed legal
representatives in Class Action MDL 840,
United States District Court of Hawaii, namely:
Imelda R. Marcos and Ferdinand Marcos,
Jr., respondents.
DECISION
TINGA, J.:
Our martial law experience bore strange unwanted
fruits, and we have yet to finish weeding out its bitter
crop. While the restoration of freedom and the
fundamental structures and processes of democracy
have been much lauded, according to a significant
number, the changes, however, have not sufficiently
healed the colossal damage wrought under the
oppressive conditions of the martial law period. The cries
of justice for the tortured, the murdered, and
the desaparecidos arouse outrage and sympathy in the
hearts of the fair-minded, yet the dispensation of the
appropriate relief due them cannot be extended through
the same caprice or whim that characterized the ill-wind
of martial rule. The damage done was not merely
personal but institutional, and the proper rebuke to the
iniquitous past has to involve the award of reparations
due within the confines of the restored rule of law.
The petitioners in this case are prominent victims of
human rights violations who, deprived of the opportunity
[1]
to directly confront the man who once held absolute rule
over this country, have chosen to do battle instead with
the earthly representative, his estate. The clash has
been for now interrupted by a trial court ruling, seemingly
comported to legal logic, that required the petitioners to
pay a whopping filing fee of over Four Hundred
Seventy-Two Million Pesos (P472,000,000.00) in order
that they be able to enforce a judgment awarded them by
a foreign court. There is an understandable temptation to
cast the struggle within the simplistic confines of a
morality tale, and to employ short-cuts to arrive at what
might seem the desirable solution. But easy, reflexive
resort to the equity principle all too often leads to a result
that may be morally correct, but legally wrong.
Nonetheless, the application of the legal principles
involved in this case will comfort those who maintain that
our substantive and procedural laws, for all their
perceived ambiguity and susceptibility to myriad
interpretations, are inherently fair and just. The relief
sought by the petitioners is expressly mandated by our
laws and conforms to established legal principles. The
granting of this petition for certiorari is warranted in order
to correct the legally infirm and unabashedly unjust ruling
of the respondent judge.
The essential facts bear little elaboration. On 9 May
1991, a complaint was filed with the United States
District Court (US District Court), District of Hawaii,
against the Estate of former Philippine President
Ferdinand E. Marcos (Marcos Estate). The action was
brought forth by ten Filipino citizens who each alleged
[2]
having suffered human rights abuses such as arbitrary
detention, torture and rape in the hands of police or
military forces during the Marcos regime. The Alien Tort
[3]
Act was invoked as basis for the US District Courts
jurisdiction over the complaint, as it involved a suit by
aliens for tortious violations of international law. These
[4]
plaintiffs brought the action on their own behalf and on
behalf of a class of similarly situated individuals,
particularly consisting of all current civilian citizens of the Ninth Circuit, in a decision rendered on 17 December
Philippines, their heirs and beneficiaries, who between 1996.[6]

1972 and 1987 were tortured, summarily executed or

On 20 May 1997, the present petitioners
had disappeared while in the custody of military or
filed Complaint with the Regional Trial Court, City of
paramilitary groups. Plaintiffs alleged that the class
Makati (Makati RTC) for the enforcement of the Final
consisted of approximately ten thousand (10,000)
Judgment. They alleged that they are members of the
members; hence, joinder of all these persons was
plaintiff class in whose favor the US District Court
impracticable.
awarded damages. They argued that since the Marcos
[7]

The institution of a class action suit was warranted
under Rule 23(a) and (b)(1)(B) of the US Federal Rules
of Civil Procedure, the provisions of which were invoked
by the plaintiffs. Subsequently, the US District Court
certified the case as a class action and created three (3)
sub-classes of torture, summary execution and
disappearance victims. Trial ensued, and subsequently
[5]
Estate failed to file a petition for certiorari with the US
Supreme Court after the Ninth Circuit Court of Appeals
had affirmed the Final Judgment, the decision of the US
District Court had become final and executory, and
hence should be recognized and enforced in the
Philippines, pursuant to Section 50, Rule 39 of the Rules
of Court then in force. [8]

a jury rendered a verdict and an award of compensatory

On 5 February 1998, the Marcos Estate filed a
and exemplary damages in favor of the plaintiff class.
motion to dismiss, raising, among others, the
Then, on 3 February 1995, the US District Court,
non-payment of the correct filing fees. It alleged that
presided by Judge Manuel L. Real, rendered a Final
petitioners had only paid Four Hundred Ten Pesos
Judgment (Final Judgment) awarding the plaintiff class a
(P410.00) as docket and filing fees, notwithstanding the
total of One Billion Nine Hundred Sixty Four Million Five
fact that they sought to enforce a monetary amount of
Thousand Eight Hundred Fifty Nine Dollars and Ninety
damages in the amount of over Two and a Quarter
Cents ($1,964,005,859.90). The Final Judgment was
Billion US Dollars (US$2.25 Billion). The Marcos Estate
eventually affirmed by the US Court of Appeals for the
cited Supreme Court Circular No. 7, pertaining to the
proper computation and payment of docket fees. In
response, the petitioners claimed that an action for the
enforcement of a foreign judgment is not capable of
pecuniary estimation; hence, a filing fee of only Four
Hundred Ten Pesos (P410.00) was proper, pursuant to
Section 7(c) of Rule 141.[9]
On 9 September 1998, respondent Judge Santiago
Javier Ranada of the Makati RTC issued the
[10]
subject Order dismissing the complaint without prejudice.
Respondent judge opined that contrary to the petitioners
submission, the subject matter of the complaint was
indeed capable of pecuniary estimation, as it involved a
judgment rendered by a foreign court ordering the
payment of definite sums of money, allowing for easy
determination of the value of the foreign judgment. On
that score, Section 7(a) of Rule 141 of the Rules of Civil
Procedure would find application, and the RTC
estimated the proper amount of filing fees was
approximately Four Hundred Seventy Two Million Pesos,
which obviously had not been paid.
Not surprisingly, petitioners filed a Motion for
Reconsideration, which Judge Ranada denied in
an Order dated 28 July 1999. From this denial,
petitioners filed a Petition for Certiorari under Rule 65
assailing the twin orders of respondent judge. They [11]
prayed for the annulment of the questioned orders, and
an order directing the reinstatement of Civil Case No.
97-1052 and the conduct of appropriate proceedings
thereon.
Petitioners submit that their action is incapable of
pecuniary estimation as the subject matter of the suit is
the enforcement of a foreign judgment, and not an action
for the collection of a sum of money or recovery of
damages. They also point out that to require the class
plaintiffs to pay Four Hundred Seventy Two Million
Pesos (P472,000,000.00) in filing fees would negate and
render inutile the liberal construction ordained by the
Rules of Court, as required by Section 6, Rule 1 of the
Rules of Civil Procedure, particularly the inexpensive
disposition of every action.
Petitioners invoke Section 11, Article III of the Bill of
Rights of the Constitution, which provides that Free
access to the courts and quasi-judicial bodies and
adequate legal assistance shall not be denied to any
person by reason of poverty, a mandate which is
essentially defeated by the required exorbitant filing fee.
The adjudicated amount of the filing fee, as arrived at by
the RTC, was characterized as indisputably unfair,
inequitable, and unjust.
The Commission on Human Rights (CHR) was
permitted to intervene in this case. It urged that the
[12]
petition be granted and a judgment rendered, ordering
the enforcement and execution of the District Court
judgment in accordance with Section 48, Rule 39 of the
1997 Rules of Civil Procedure. For the CHR, the Makati
RTC erred in interpreting the action for the execution of a
foreign judgment as a new case, in violation of the
principle that once a case has been decided between the
same parties in one country on the same issue with
finality, it can no longer be relitigated again in another
country. The CHR likewise invokes the principle of
[13]
comity, and of vested rights.
The Courts disposition on the issue of filing fees will
prove a useful jurisprudential guidepost for courts
confronted with actions enforcing foreign judgments,
particularly those lodged against an estate. There is no
basis for the issuance a limited pro hac vice ruling based
on the special circumstances of the petitioners as victims
of martial law, or on the emotionally-charged allegation
of human rights abuses.
An examination of Rule 141 of the Rules of Court
readily evinces that the respondent judge ignored the
clear letter of the law when he concluded that the filing
fee be computed based on the total sum claimed or the
stated value of the property in litigation.
In dismissing the complaint, the respondent judge
relied on Section 7(a), Rule 141 as basis for the
computation of the filing fee of over P472 Million. The
provision states:
SEC. 7. Clerk of Regional Trial Court.-
(a) For filing an action or a permissive
counterclaim or money claim against an estate not
based on judgment, or for filing with leave of court a
third-party, fourth-party, etc., complaint, or a complaint
in intervention, and for all clerical services in the same
time, if the total sum claimed, exclusive of interest, or
the started value of the property in litigation, is:
1. Less than P 100,00.00 P 500.00
2. P 100,000.00 or more - P 800.00
but less than P 150,000.00
3. P 150,000.00 or more but - P 1,000.00
 less than P 200,000.00
4. P 200,000.00 or more but
less than P 250,000.00 - P 1,500.00
5. P 250,000.00 or more but
less than P 300,00.00 - P 1,750.00
6. P 300,000.00 or more but
not more than P 400,000.00 - P 2,000.00
7. P 350,000.00 or more but not
more than P400,000.00 - P 2,250.00
8. For each P 1,000.00 in excess of
P 400,000.00 - P 10.00
...
(Emphasis supplied)
Obviously, the above-quoted provision covers, on
one hand, ordinary actions, permissive counterclaims,
third-party, etc. complaints and
complaints-in-interventions, and on the other, money
claims against estates which are not based on judgment.
Thus, the relevant question for purposes of the present
petition is whether the action filed with the lower court is
a money claim against an estate not based on judgment.
Petitioners complaint may have been lodged against
an estate, but it is clearly based on a judgment, the Final
Judgment of the US District Court. The provision does
not make any distinction between a local judgment and a
foreign judgment, and where the law does not distinguish,
we shall not distinguish.
A reading of Section 7 in its entirety reveals several
instances wherein the filing fee is computed on the basis
of the amount of the relief sought, or on the value of the
property in litigation. The filing fee for requests for
extrajudicial foreclosure of mortgage is based on the
amount of indebtedness or the mortgagees claim. In [14]
special proceedings involving properties such as for the
allowance of wills, the filing fee is again based on the
value of the property. The aforecited rules evidently
[15]
have no application to petitioners complaint.
Petitioners rely on Section 7(b), particularly the
proviso on actions where the value of the subject matter
cannot be estimated. The provision reads in full:
SEC. 7. Clerk of Regional Trial Court.-
(b) For filing
1. Actions where the value damages adjudicated by the US District Court involves
of the subject matter any real property of the Marcos Estate.
cannot be estimated --- P 600.00
Thus, respondent judge was in clear and serious
2. Special civil actions except error when he concluded that the filing fees should be
judicial foreclosure which computed on the basis of the schematic table of Section
shall be governed by 7(a), as the action involved pertains to a claim against an
paragraph (a) above --- P 600.00 estate based on judgment. What provision, if any, then
should apply in determining the filing fees for an action to
3. All other actions not enforce a foreign judgment?
involving property --- P 600.00 To resolve this question, a proper understanding is
required on the nature and effects of a foreign judgment
In a real action, the assessed value of the property, or if there in this jurisdiction.
is none, the estimated value, thereof shall be alleged by the
claimant and shall be the basis in computing the fees. The rules of comity, utility and convenience of
nations have established a usage among civilized states
It is worth noting that the provision also provides that by which final judgments of foreign courts of competent
in real actions, the assessed value or estimated value of jurisdiction are reciprocally respected and rendered
the property shall be alleged by the claimant and shall be efficacious under certain conditions that may vary in
the basis in computing the fees. Yet again, this provision different countries. This principle was prominently
[17]

does not apply in the case at bar. A real action is one affirmed in the leading American case of Hilton v.
where the plaintiff seeks the recovery of real property or Guyot and expressly recognized in our jurisprudence
[18]

an action affecting title to or recovery of possession of beginning with Ingenholl v. Walter E. Olsen & Co. The[19]

real property. Neither the complaint nor the award of

[16] conditions required by the Philippines for recognition and
enforcement of a foreign judgment were originally
contained in Section 311 of the Code of Civil Procedure,
which was taken from the California Code of Civil
Procedure which, in turn, was derived from the California
Act of March 11, 1872. Remarkably, the procedural rule
[20]
now outlined in Section 48, Rule 39 of the Rules of Civil
Procedure has remained unchanged down to the last
word in nearly a century. Section 48 states:
SEC. 48. Effect of foreign judgments. The effect of a
judgment of a tribunal of a foreign country, having
jurisdiction to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment
is conclusive upon the title to the thing;
(b) In case of a judgment against a person, the judgment is
presumptive evidence of a right as between the parties and
their successors in interest by a subsequent title;
In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
There is an evident distinction between a foreign
judgment in an action in rem and one in personam. For
an action in rem, the foreign judgment is deemed
conclusive upon the title to the thing, while in an
action in personam, the foreign judgment is presumptive,
and not conclusive, of a right as between the parties and
their successors in interest by a subsequent
title. However, in both cases, the foreign judgment is
[21]
susceptible to impeachment in our local courts on the
grounds of want of jurisdiction or notice to the
party, collusion, fraud, or clear mistake of law or
[22] [23]
fact. Thus, the party aggrieved by the foreign judgment
[24]
is entitled to defend against the enforcement of such
decision in the local forum. It is essential that there
should be an opportunity to challenge the foreign
judgment, in order for the court in this jurisdiction to
properly determine its efficacy. [25]
It is clear then that it is usually necessary for an
action to be filed in order to enforce a foreign judgment ,
[26]
even if such judgment has conclusive effect as in the
case of in rem actions, if only for the purpose of allowing
the losing party an opportunity to challenge the foreign
judgment, and in order for the court to properly
determine its efficacy. Consequently, the party
[27]
attacking a foreign judgment has the burden of
overcoming the presumption of its validity. [28]
 The rules are silent as to what initiatory procedure
must be undertaken in order to enforce a foreign
judgment in the Philippines. But there is no question that
the filing of a civil complaint is an appropriate measure
for such purpose. A civil action is one by which a party
sues another for the enforcement or protection of a
right, and clearly an action to enforce a foreign
[29]
enforcement of a foreign judgment awarding damages
from the same tortfeasor, for the violation of the same
right through the same manner of action, the cause of
action derives not from the tortious act but from the
foreign judgment itself.
More importantly, the matters for proof are different.

Using the above example, the complainant will have to

judgment is in essence a vindication of a right
establish before the court the tortious act or omission
prescinding either from a conclusive judgment upon title
committed by the tortfeasor, who in turn is allowed to
or the presumptive evidence of a right. Absent perhaps
[30]

rebut these factual allegations or prove extenuating

a statutory grant of jurisdiction to a quasi-judicial body,
circumstances. Extensive litigation is thus conducted on
the claim for enforcement of judgment must be brought
the facts, and from there the right to and amount of
before the regular courts.[31]

damages are assessed. On the other hand, in an action

There are distinctions, nuanced but discernible,
between the cause of action arising from the
enforcement of a foreign judgment, and that arising from
the facts or allegations that occasioned the foreign
judgment. They may pertain to the same set of facts, but
there is an essential difference in the right-duty
correlatives that are sought to be vindicated. For
example, in a complaint for damages against a tortfeasor,
the cause of action emanates from the violation of the
right of the complainant through the act or omission of
to enforce a foreign judgment, the matter left for proof is
the foreign judgment itself, and not the facts from which it
prescinds.
As stated in Section 48, Rule 39, the actionable
issues are generally restricted to a review of jurisdiction
of the foreign court, the service of personal notice,
collusion, fraud, or mistake of fact or law. The limitations
on review is in consonance with a strong and pervasive
policy in all legal systems to limit repetitive litigation on
claims and issues. Otherwise known as the policy of
[32]

the respondent. On the other hand, in a complaint for the

preclusion, it seeks to protect party expectations
resulting from previous litigation, to safeguard against
the harassment of defendants, to insure that the task of
courts not be increased by never-ending litigation of the
same disputes, and in a larger sense to promote what
Lord Coke in the Ferrers Case of 1599 stated to be the
goal of all law: rest and quietness. If every judgment of
[33]
a foreign court were reviewable on the merits, the
plaintiff would be forced back on his/her original cause of
action, rendering immaterial the previously concluded
litigation.
[34]
Petitioners appreciate this distinction, and rely upon it
to support the proposition that the subject matter of the
complaintthe enforcement of a foreign judgmentis
incapable of pecuniary estimation. Admittedly the
proposition, as it applies in this case, is counter-intuitive,
and thus deserves strict scrutiny. For in all practical
intents and purposes, the matter at hand is capable of
pecuniary estimation, down to the last cent. In the
assailed Order, the respondent judge pounced upon this
point without equivocation:
The Rules use the term where the value of the subject matter
cannot be estimated. The subject matter of the present case is
the judgment rendered by the foreign court ordering defendant
to pay plaintiffs definite sums of money, as and for
compensatory damages. The Court finds that the value of the
foreign judgment can be estimated; indeed, it can even be
easily determined. The Court is not minded to distinguish
between the enforcement of a judgment and the amount of
said judgment, and separate the two, for purposes of
determining the correct filing fees. Similarly, a plaintiff suing
on promissory note for P1 million cannot be allowed to pay
only P400 filing fees (sic), on the reasoning that the subject
matter of his suit is not the P1 million, but the enforcement of
the promissory note, and that the value of such enforcement
cannot be estimated. [35]
The jurisprudential standard in gauging whether the
subject matter of an action is capable of pecuniary
estimation is well-entrenched. The Marcos Estate
cites Singsong v. Isabela Sawmill and Raymundo v.
Court of Appeals, which ruled:
[I]n determining whether an action is one the subject matter of
which is not capable of pecuniary estimation this Court has
adopted the criterion of first ascertaining the nature of the
principal action or remedy sought. If it is primarily for the
recovery of a sum of money, the claim is considered capable
of pecuniary estimation, and whether jurisdiction is in the
municipal courts or in the courts of first instance would
depend on the amount of the claim. However, where the basic
issue is something other than the right to recover a sum of
money, where the money claim is purely incidental to, or a
consequence of, the principal relief sought, this Court has
considered such actions as cases where the subject of the
litigation may not be estimated in terms of money, and are
cognizable exclusively by courts of first instance (now
Regional Trial Courts).
On the other hand, petitioners cite the ponencia of
Justice JBL Reyes in Lapitan v. Scandia, from which
[36]
the rule in Singsong and Raymundo actually derives, but
which incorporates this additional nuance omitted in the
latter cases:
xxx However, where the basic issue is something other than
the right to recover a sum of money, where the money claim
is purely incidental to, or a consequence of, the principal relief
sought, like in suits to have the defendant perform his part
of the contract (specific performance) and in actions for
support, or for annulment of judgment or to foreclose a
mortgage, this Court has considered such actions as cases
where the subject of the litigation may not be estimated in
terms of money, and are cognizable exclusively by courts of
first instance. [37]
Petitioners go on to add that among the actions the
Court has recognized as being incapable of pecuniary
estimation include legality of conveyances and money
deposits, validity of a mortgage, the right to
[38] [39]
support, validity
[40]
of documents, rescission
[41]
of
contracts, specific performance, and validity or
[42] [43]
annulment of judgments. It is urged that an action for
[44]
enforcement of a foreign judgment belongs to the same
class.
This is an intriguing argument, but ultimately it is
self-evident that while the subject matter of the action is
undoubtedly the enforcement of a foreign judgment, the
effect of a providential award would be the adjudication
of a sum of money. Perhaps in theory, such an action is
primarily for the enforcement of the foreign judgment, but
there is a certain obtuseness to that sort of argument
since there is no denying that the enforcement of the
foreign judgment will necessarily result in the award of a
definite sum of money.
But before we insist upon this conclusion past
beyond the point of reckoning, we must examine its
possible ramifications. Petitioners raise the point that a
declaration that an action for enforcement of foreign
judgment may be capable of pecuniary estimation might
lead to an instance wherein a first level court such as the
Municipal Trial Court would have jurisdiction to enforce a
foreign judgment. But under the statute defining the
jurisdiction of first level courts, B.P. 129, such courts are
not vested with jurisdiction over actions for the
enforcement of foreign judgments.
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial Courts in civil
cases. Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts shall exercise:
(1) Exclusive original jurisdiction over civil actions and
probate proceedings, testate and intestate, including the
grant of provisional remedies in proper cases, where the
value of the personal property, estate, or amount of the
demand does not exceed One hundred thousand pesos
(P100,000.00) or, in Metro Manila where such personal
property, estate, or amount of the demand does not exceed
Two hundred thousand pesos (P200,000.00) exclusive of
interest damages of whatever kind, attorney's fees, litigation
expenses, and costs, the amount of which must be
specifically alleged: Provided, That where there are several
claims or causes of action between the same or different
parties, embodied in the same complaint, the amount of the
demand shall be the totality of the claims in all the causes of
action, irrespective of whether the causes of action arose out
of the same or different transactions;
(2) Exclusive original jurisdiction over cases of forcible entry
and unlawful detainer: Provided, That when, in such cases,
the defendant raises the question of ownership in his
pleadings and the question of possession cannot be resolved
without deciding the issue of ownership, the issue of
ownership shall be resolved only to determine the issue of
possession.
(3) Exclusive original jurisdiction in all civil actions which
involve title to, or possession of, real property, or any interest
therein where the assessed value of the property or interest
therein does not exceed Twenty thousand pesos
(P20,000.00) or, in civil actions in Metro Manila, where such
assessed value does not exceed Fifty thousand pesos
(P50,000.00) exclusive of interest, damages of whatever kind,
attorney's fees, litigation expenses and costs: Provided, That
value of such property shall be determined by the assessed
value of the adjacent lots.[45]
Section 33 of B.P. 129 refers to instances wherein
the cause of action or subject matter pertains to an
assertion of rights and interests over property or a sum
of money. But as earlier pointed out, the subject matter
of an action to enforce a foreign judgment is the foreign
judgment itself, and the cause of action arising from the
adjudication of such judgment.
An examination of Section 19(6), B.P. 129 reveals
that the instant complaint for enforcement of a foreign
judgment, even if capable of pecuniary estimation, would
fall under the jurisdiction of the Regional Trial Courts,
thus negating the fears of the petitioners. Indeed, an
examination of the provision indicates that it can be
relied upon as jurisdictional basis with respect to actions
for enforcement of foreign judgments, provided that no
other court or office is vested jurisdiction over such
complaint:
Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall
exercise exclusive original jurisdiction:
xxx
(6) In all cases not within the exclusive jurisdiction of any
court, tribunal, person or body exercising jurisdiction or any
court, tribunal, person or body exercising judicial or
quasi-judicial functions.
Thus, we are comfortable in asserting the obvious,
that the complaint to enforce the US District Court
judgment is one capable of pecuniary estimation. But at
the same time, it is also an action based on judgment
against an estate, thus placing it beyond the ambit of
Section 7(a) of Rule 141. What provision then governs
the proper computation of the filing fees over the instant
complaint? For this case and other similarly situated
instances, we find that it is covered by Section 7(b)(3),
involving as it does, other actions not involving property.
Notably, the amount paid as docket fees by the
petitioners on the premise that it was an action incapable
of pecuniary estimation corresponds to the same amount
required for other actions not involving property. The
petitioners thus paid the correct amount of filing fees,
and it was a grave abuse of discretion for respondent
judge to have applied instead a clearly inapplicable rule
and dismissed the complaint.
There is another consideration of supreme relevance
in this case, one which should disabuse the notion that
the doctrine affirmed in this decision is grounded solely
on the letter of the procedural rule. We earlier adverted
to the the internationally recognized policy of
preclusion, as well as the principles of comity, utility
[46]
and convenience of nations as the basis for the
[47]
evolution of the rule calling for the recognition and
enforcement of foreign judgments. The US Supreme thought on the topic. Neither the Philippines nor the
[56]

Court in Hilton v. Guyot relied heavily on the concept of

[48]
United States are signatories to the Convention.
comity, as especially derived from the landmark treatise
Yet even if there is no unanimity as to the applicable
of Justice Story in his Commentaries on the Conflict of
theory behind the recognition and enforcement of foreign
Laws of 1834. Yet the notion of comity has since been
[49]

judgments or a universal treaty rendering it obligatory

criticized as one of dim contours or suffering from a
[50]

force, there is consensus that the viability of such

number of fallacies. Other conceptual bases for the
[51]

recognition and enforcement is essential. Steiner and

recognition of foreign judgments have evolved such as
the vested rights theory or the modern doctrine of
obligation. [52]
There have been attempts to codify through treaties
or multilateral agreements the standards for the
recognition and enforcement of foreign judgments, but
these have not borne fruition. The members of the
European Common Market accede to the Judgments
Convention, signed in 1978, which eliminates as to
participating countries all of such obstacles to
recognition such as reciprocity and rvision au fond. The
[53]
most ambitious of these attempts is the Convention on
the Recognition and Enforcement of Foreign Judgments
Vagts note:
. . . The notion of unconnected bodies of national law on
private international law, each following a quite separate path,
is not one conducive to the growth of a transnational
community encouraging travel and commerce among its
members. There is a contemporary resurgence of writing
stressing the identity or similarity of the values that systems of
public and private international law seek to further a
community interest in common, or at least reasonable, rules
on these matters in national legal systems. And such generic
principles as reciprocity play an important role in both
fields.
[57]

in Civil and Commercial Matters, prepared in 1966 by the

Hague Conference of International Law. While it has
[54]
Salonga, whose treatise on private international law
not received the ratifications needed to have it take is of worldwide renown, points out:
effect, it is recognized as representing current scholarly
[55]
Whatever be the theory as to the basis for recognizing foreign
judgments, there can be little dispute that the end is to protect
the reasonable expectations and demands of the parties.
Where the parties have submitted a matter for adjudication in
the court of one state, and proceedings there are not tainted
with irregularity, they may fairly be expected to submit,
within the state or elsewhere, to the enforcement of the
judgment issued by the court. [58]
There is also consensus as to the requisites for
recognition of a foreign judgment and the defenses
against the enforcement thereof. As earlier discussed,
the exceptions enumerated in Section 48, Rule 39 have
remain unchanged since the time they were adapted in
this jurisdiction from long standing American rules. The
requisites and exceptions as delineated under Section
48 are but a restatement of generally accepted principles
of international law. Section 98 of The Restatement,
Second, Conflict of Laws, states that a valid judgment
rendered in a foreign nation after a fair trial in a
contested proceeding will be recognized in the United
States, and on its face, the term valid brings into play
requirements such notions as valid jurisdiction over the
subject matter and parties. Similarly, the notion that
[59]
fraud or collusion may preclude the enforcement of a
foreign judgment finds affirmation with foreign
jurisprudence and commentators, as well as the[60]
doctrine that the foreign judgment must not constitute a
clear mistake of law or fact. And finally, it has been
[61]
recognized that public policy as a defense to the
recognition of judgments serves as an umbrella for a
variety of concerns in international practice which may
lead to a denial of recognition.[62]
The viability of the public policy defense against the
enforcement of a foreign judgment has been recognized
in this jurisdiction. This defense allows for the
[63]
application of local standards in reviewing the foreign
judgment, especially when such judgment creates only a
presumptive right, as it does in cases wherein the
judgment is against a person. The defense is also
[64]
recognized within the international sphere, as many civil
law nations adhere to a broad public policy exception
which may result in a denial of recognition when the
foreign court, in the light of the choice-of-law rules of the
recognizing court, applied the wrong law to the
case. The public policy defense can safeguard against
[65]
possible abuses to the easy resort to offshore litigation if
it can be demonstrated that the original claim is noxious
to our constitutional values.
 There is no obligatory rule derived from treaties or
conventions that requires the Philippines to recognize
foreign judgments, or allow a procedure for the
enforcement thereof. However, generally accepted
principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the
laws of the land even if they do not derive from treaty
obligations. The classical formulation in international
[66]
law sees those customary rules accepted as binding
result from the combination two elements: the
established, widespread, and consistent practice on the
part of States; and a psychological element known as
the opinion juris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief that
the practice in question is rendered obligatory by the
existence of a rule of law requiring it.
[67]
While the definite conceptual parameters of the
recognition and enforcement of foreign judgments have
not been authoritatively established, the Court can assert
with certainty that such an undertaking is among those
generally accepted principles of international law. As[68]
earlier demonstrated, there is a widespread practice
among states accepting in principle the need for such
recognition and enforcement, albeit subject to limitations
of varying degrees. The fact that there is no binding
universal treaty governing the practice is not indicative of
a widespread rejection of the principle, but only a
disagreement as to the imposable specific rules
governing the procedure for recognition and
enforcement.
Aside from the widespread practice, it is indubitable
that the procedure for recognition and enforcement is
embodied in the rules of law, whether statutory or
jurisprudential, adopted in various foreign jurisdictions. In
the Philippines, this is evidenced primarily by Section 48,
Rule 39 of the Rules of Court which has existed in its
current form since the early 1900s. Certainly, the
Philippine legal system has long ago accepted into its
jurisprudence and procedural rules the viability of an
action for enforcement of foreign judgment, as well as
the requisites for such valid enforcement, as derived
from internationally accepted doctrines. Again, there
may be distinctions as to the rules adopted by each
particular state, but they all prescind from the premise
[69]
that there is a rule of law obliging states to allow for,
however generally, the recognition and enforcement of a
foreign judgment. The bare principle, to our mind, has
attained the status of opinio juris in international practice.
 This is a significant proposition, as it acknowledges
that the procedure and requisites outlined in Section 48,
Rule 39 derive their efficacy not merely from the
procedural rule, but by virtue of the incorporation clause
of the Constitution. Rules of procedure are promulgated
by the Supreme Court, and could very well be
[70]
abrogated or revised by the high court itself. Yet the
Supreme Court is obliged, as are all State components,
to obey the laws of the land, including generally
accepted principles of international law which form part
thereof, such as those ensuring the qualified recognition
and enforcement of foreign judgments. [71]
Thus, relative to the enforcement of foreign
judgments in the Philippines, it emerges that there is a
general right recognized within our body of laws, and
affirmed by the Constitution, to seek recognition and
enforcement of foreign judgments, as well as a right to
defend against such enforcement on the grounds of want
of jurisdiction, want of notice to the party, collusion, fraud,
or clear mistake of law or fact.
The preclusion of an action for enforcement of a
foreign judgment in this country merely due to an
exhorbitant assessment of docket fees is alien to
generally accepted practices and principles in
international law. Indeed, there are grave concerns in
conditioning the amount of the filing fee on the pecuniary
award or the value of the property subject of the foreign
decision. Such pecuniary award will almost certainly be
in foreign denomination, computed in accordance with
the applicable laws and standards of the forum. The [72]
vagaries of inflation, as well as the relative low-income
capacity of the Filipino, to date may very well translate
into an award virtually unenforceable in this country,
despite its integral validity, if the docket fees for the
enforcement thereof were predicated on the amount of
the award sought to be enforced. The theory adopted by
respondent judge and the Marcos Estate may even lead
to absurdities, such as if applied to an award involving
real property situated in places such as the United States
or Scandinavia where real property values are inexorably
high. We cannot very well require that the filing fee be
computed based on the value of the foreign property as
determined by the standards of the country where it is
located.
As crafted, Rule 141 of the Rules of Civil Procedure
avoids unreasonableness, as it recognizes that the
subject matter of an action for enforcement of a foreign
judgment is the foreign judgment itself, and not the
right-duty correlatives that resulted in the foreign
judgment. In this particular circumstance, given that the
complaint is lodged against an estate and is based on
the US District Courts Final Judgment, this foreign
judgment may, for purposes of classification under the
governing procedural rule, be deemed as subsumed
under Section 7(b)(3) of Rule 141, i.e., within the class of
all other actions not involving property. Thus, only the
blanket filing fee of minimal amount is required.
Finally, petitioners also invoke Section 11, Article III
of the Constitution, which states that [F]ree access to the
courts and quasi-judicial bodies and adequate legal
assistance shall not be denied to any person by reason
of poverty. Since the provision is among the guarantees
ensured by the Bill of Rights, it certainly gives rise to a
demandable right. However, now is not the occasion to
elaborate on the parameters of this constitutional right.
Given our preceding discussion, it is not necessary to
utilize this provision in order to grant the relief sought by
the petitioners. It is axiomatic that the constitutionality of
an act will not be resolved by the courts if the
controversy can be settled on other grounds or unless
[73]
the resolution thereof is indispensable for the
determination of the case. [74]
One more word. It bears noting that Section 48, Rule
39 acknowledges that the Final Judgment is not
conclusive yet, but presumptive evidence of a right of the
petitioners against the Marcos Estate. Moreover, the
Marcos Estate is not precluded to present evidence, if
any, of want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact. This
ruling, decisive as it is on the question of filing fees and
no other, does not render verdict on the enforceability of
the Final Judgment before the courts under the
jurisdiction of the Philippines, or for that matter any other
issue which may legitimately be presented before the
trial court. Such issues are to be litigated before the trial
court, but within the confines of the matters for proof as
laid down in Section 48, Rule 39. On the other hand, the
speedy resolution of this claim by the trial court is
encouraged, and contumacious delay of the decision on
the merits will not be brooked by this Court.
WHEREFORE, the petition is GRANTED. The
assailed orders are NULLIFIED and SET ASIDE, and a
new order REINSTATING Civil Case No. 97-1052 is
hereby issued. No costs.
SO ORDERED.