Republic of the Philippines The Court could not act on these cases immediately because the

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.
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,

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 consolidated on March 27, 1990 when the memoranda of
the parties in the Laurel case were deliberated upon.
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-aüsl
(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.
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 covers the sale or lease
i•t•c-aüsl
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
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 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 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.

President to sell an Identified parcel of land of the private domain of the For all the foregoing, I vote to dismiss the Petitions for Prohibition in both
National Government to the National Press Club of the Philippines, and G.R. Nos. 92013 and 92047.
to other recognized national associations of professionals with academic
standing, for the nominal price of P1.00. It appears relevant to note that Fernan, C.J., Narvasa, Gancayco, Cortes and Medialdea, JJ., concurring.
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
LAUREL V. GARCIA major repairs. President Aquino created a committee to study the
disposition/utilization of Philippine government properties in Tokyo and
FACTS: Kobe, Japan. The President issued EO 296 entitling non-Filipino citizens or
entities to avail of separations' capital goods and services in the event of sale,
The subject Roppongi property is one of the properties acquired by the lease or disposition.
Philippines from Japan pursuant to a Reparations Agreement. The property
is where the Philippine Embassy was once located, before it transferred to Issues: Whether or not the Chief Executive, her officers and agents, have the
the Nampeidai property. It was decided that the properties would be authority and jurisdiction, to sell the Roppongi property.
available to sale or disposition. One of the first properties opened up for
public auction was the Roppongi property, despite numerous
oppositions from different sectors. Ruling: 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. It is indeed true that the Roppongi
HELD: 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
The Roppongi property was acquired together with the other properties
properties will eventually be sold is a policy determination where both the
through reparation agreements. They were assigned to the government
President and Congress must concur. Considering the properties' importance
sector and that the Roppongi property was specifically designated under
and value, the laws on conversion and disposition of property of public
the agreement to house the Philippine embassy.
dominion must be faithfully followed.
It is of public dominion unless it is convincingly shown that the
property has become patrimonial. The respondents have failed to do so.

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 payment, in application to the satisfaction of
collective needs, and resides in the social group. The purpose is not to
serve the State as the juridical person but the citizens; it is intended for the
common and public welfare and cannot be the object of appropriation.

The fact that the Roppongi site has not been used for a long time for actual
Embassy service doesn’t automatically convert it to patrimonial
property. Any such conversion happens only if the property is withdrawn
from public use. 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.

Facts: The subject property in this case is one of the 4 properties in Japan
acquired by the Philippine government under the Reparations Agreement
entered into with Japan, the Roppongi property. The said property was
acquired from the Japanese government through Reparations Contract No.
300. It consists of the land and building for the Chancery of the Philippine
Embassy. As intended, it became the site of the Philippine Embassy until the
latter was transferred to Nampeidai when the Roppongi building needed
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 101949 December 1, 1994
THE HOLY SEE, petitioner,
vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the
Regional Trial Court of Makati, Branch 61 and STARBRIGHT SALES
ENTERPRISES, INC., respondents.
Padilla Law Office for petitioner.
Siguion Reyna, Montecillo & Ongsiako for private respondent.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of
Court to reverse and set aside the Orders dated June 20, 1991 and
September 19, 1991 of the Regional Trial Court, Branch 61, Makati,
Metro Manila in Civil Case No. 90-183.
The Order dated June 20, 1991 denied the motion of petitioner to dismiss
the complaint in Civil Case No. 90-183, while the Order dated September
19, 1991 denied the motion for reconsideration of the June 20,1991
Order.
Petitioner is the Holy See who exercises sovereignty over the Vatican
City in Rome, Italy, and is represented in the Philippines by the Papal
Nuncio.
Private respondent, Starbright Sales Enterprises, Inc., is a domestic
corporation engaged in the real estate business.
This petition arose from a controversy over a parcel of land consisting of
6,000 square meters (Lot 5-A, Transfer Certificate of Title No. 390440)
located in the Municipality of Parañaque, Metro Manila and registered in
the name of petitioner.
Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by
Transfer Certificates of Title Nos. 271108 and 265388 respectively and
registered in the name of the Philippine Realty Corporation (PRC).
The three lots were sold to Ramon Licup, through Msgr. Domingo A.
Cirilos, Jr., acting as agent to the sellers. Later, Licup assigned his rights
to the sale to private respondent.
In view of the refusal of the squatters to vacate the lots sold to private
respondent, a dispute arose as to who of the parties has the
responsibility of evicting and clearing the land of squatters. Complicating
the relations of the parties was the sale by petitioner of Lot 5-A to
Tropicana Properties and Development Corporation (Tropicana).
I
On January 23, 1990, private respondent filed a complaint with the
Regional Trial Court, Branch 61, Makati, Metro Manila for annulment of
the sale of the three parcels of land, and specific performance and
damages against petitioner, represented by the Papal Nuncio, and three
other defendants: namely, Msgr. Domingo A. Cirilos, Jr., the PRC and
Tropicana (Civil Case No.
90-183).
The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on
behalf of petitioner and the PRC, agreed to sell to Ramon Licup Lots 5-A,
5-B and 5-D at the price of P1,240.00 per square meters; (2) the
agreement to sell was made on the condition that earnest money of
P100,000.00 be paid by Licup to the sellers, and that the sellers clear the
said lots of squatters who were then occupying the same; (3) Licup paid
the earnest money to Msgr. Cirilos; (4) in the same month, Licup
assigned his rights over the property to private respondent and informed
the sellers of the said assignment; (5) thereafter, private respondent
demanded from Msgr. Cirilos that the sellers fulfill their undertaking and
clear the property of squatters; however, Msgr. Cirilos informed private
respondent of the squatters' refusal to vacate the lots, proposing instead
either that private respondent undertake the eviction or that the earnest
money be returned to the latter; (6) private respondent counterproposed
that if it would undertake the eviction of the squatters, the purchase price
of the lots should be reduced from P1,240.00 to P1,150.00 per square
meter; (7) Msgr. Cirilos returned the earnest money of P100,000.00 and
wrote private respondent giving it seven days from receipt of the letter to
pay the original purchase price in cash; (8) private respondent sent the
earnest money back to the sellers, but later discovered that on March 30,
1989, petitioner and the PRC, without notice to private respondent, sold
the lots to Tropicana, as evidenced by two separate Deeds of Sale, one
over Lot 5-A, and another over Lots 5-B and 5-D; and that the sellers'
transfer certificate of title over the lots were cancelled, transferred and
registered in the name of Tropicana; (9) Tropicana induced petitioner and
the PRC to sell the lots to it and thus enriched itself at the expense of
private respondent; (10) private respondent demanded the rescission of
the sale to Tropicana and the reconveyance of the lots, to no avail; and
(11) private respondent is willing and able to comply with the terms of the
contract to sell and has actually made plans to develop the lots into a
townhouse project, but in view of the sellers' breach, it lost profits of not
less than P30,000.000.00.
Private respondent thus prayed for: (1) the annulment of the Deeds of
Sale between petitioner and the PRC on the one hand, and Tropicana on
the other; (2) the reconveyance of the lots in question; (3) specific
performance of the agreement to sell between it and the owners of the
lots; and (4) damages.
On June 8, 1990, petitioner and Msgr. Cirilos separately moved to
dismiss the complaint — petitioner for lack of jurisdiction based on
sovereign immunity from suit, and Msgr. Cirilos for being an improper
party. An opposition to the motion was filed by private respondent.
On June 20, 1991, the trial court issued an order denying, among others,
petitioner's motion to dismiss after finding that petitioner "shed off [its]
sovereign immunity by entering into the business contract in question"
(Rollo, pp. 20-21).
On July 12, 1991, petitioner moved for reconsideration of the order. On
August 30, 1991, petitioner filed a "Motion for a Hearing for the Sole
Purpose of Establishing Factual Allegation for claim of Immunity as a
Jurisdictional Defense." So as to facilitate the determination of its defense
of sovereign immunity, petitioner prayed that a hearing be conducted to
allow it to establish certain facts upon which the said defense is based.
Private respondent opposed this motion as well as the motion for
reconsideration.
On October 1, 1991, the trial court issued an order deferring the
resolution on the motion for reconsideration until after trial on the merits
and directing petitioner to file its answer (Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its petition, petitioner
invokes the privilege of sovereign immunity only on its own behalf and on
behalf of its official representative, the Papal Nuncio.
On December 9, 1991, a Motion for Intervention was filed before us by
the Department of Foreign Affairs, claiming that it has a legal interest in
the outcome of the case as regards the diplomatic immunity of petitioner,
and that it "adopts by reference, the allegations contained in the petition
of the Holy See insofar as they refer to arguments relative to its claim of
sovereign immunity from suit" (Rollo, p. 87).
Private respondent opposed the intervention of the Department of
Foreign Affairs. In compliance with the resolution of this Court, both
parties and the Department of Foreign Affairs submitted their respective
memoranda.
II
A preliminary matter to be threshed out is the procedural issue of whether
the petition for certiorari under Rule 65 of the Revised Rules of Court can
be availed of to question the order denying petitioner's motion to dismiss.
The general rule is that an order denying a motion to dismiss is not
reviewable by the appellate courts, the remedy of the movant being to file
his answer and to proceed with the hearing before the trial court. But the
general rule admits of exceptions, and one of these is when it is very
clear in the records that the trial court has no alternative but to dismiss
the complaint (Philippine National Bank v. Florendo, 206 SCRA 582
[1992]; Zagada v. Civil Service Commission, 216 SCRA 114 [1992]. In
such a case, it would be a sheer waste of time and energy to require the
parties to undergo the rigors of a trial.
The other procedural question raised by private respondent is the
personality or legal interest of the Department of Foreign Affairs to
intervene in the case in behalf of the Holy See (Rollo, pp. 186-190).
In Public International Law, when a state or international agency wishes
to plead sovereign or diplomatic immunity in a foreign court, it requests
the Foreign Office of the state where it is sued to convey to the court that
said defendant is entitled to immunity.
In the United States, the procedure followed is the process of
"suggestion," where the foreign state or the international organization
sued in an American court requests the Secretary of State to make a
determination as to whether it is entitled to immunity. If the Secretary of
State finds that the defendant is immune from suit, he, in turn, asks the
Attorney General to submit to the court a "suggestion" that the defendant
is entitled to immunity. In England, a similar procedure is followed, only
the Foreign Office issues a certification to that effect instead of submitting
a "suggestion" (O'Connell, I International Law 130 [1965]; Note: Immunity
from Suit of Foreign Sovereign Instrumentalities and Obligations, 50 Yale
Law Journal 1088 [1941]).
In the Philippines, the practice is for the foreign government or the
international organization to first secure an executive endorsement of its
claim of sovereign or diplomatic immunity. But how the Philippine Foreign
Office conveys its endorsement to the courts varies. In International
Catholic Migration Commission v. Calleja, 190 SCRA 130 (1990), the
Secretary of Foreign Affairs just sent a letter directly to the Secretary of
Labor and Employment, informing the latter that the respondent-employer
could not be sued because it enjoyed diplomatic immunity. In World
Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of
Foreign Affairs sent the trial court a telegram to that effect. In Baer v.
Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of
Foreign Affairs to request the Solicitor General to make, in behalf of the
Commander of the United States Naval Base at Olongapo City,
Zambales, a "suggestion" to respondent Judge. The Solicitor General
embodied the "suggestion" in a Manifestation and Memorandum
as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the
Office of Legal Affairs moved with this Court to be allowed to intervene on
the side of petitioner. The Court allowed the said Department to file its
memorandum in support of petitioner's claim of sovereign immunity.
In some cases, the defense of sovereign immunity was submitted directly
to the local courts by the respondents through their private counsels
(Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus
Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182
SCRA 644 [1990] and companion cases). In cases where the foreign
states bypass the Foreign Office, the courts can inquire into the facts and
make their own determination as to the nature of the acts and
transactions involved.
III
The burden of the petition is that respondent trial court has no jurisdiction
over petitioner, being a foreign state enjoying sovereign immunity. On the
other hand, private respondent insists that the doctrine of non-suability is
not anymore absolute and that petitioner has divested itself of such a
cloak when, of its own free will, it entered into a commercial transaction
for the sale of a parcel of land located in the Philippines.
A. The Holy See
Before we determine the issue of petitioner's non-suability, a brief look
into its status as a sovereign state is in order.
Before the annexation of the Papal States by Italy in 1870, the Pope was
the monarch and he, as the Holy See, was considered a subject of
International Law. With the loss of the Papal States and the limitation of
the territory under the Holy See to an area of 108.7 acres, the position of
the Holy See in International Law became controversial (Salonga and
Yap, Public International Law 36-37 [1992]).
In 1929, Italy and the Holy See entered into the Lateran Treaty, where
Italy recognized the exclusive dominion and sovereign jurisdiction of the
Holy See over the Vatican City. It also recognized the right of the Holy
See to receive foreign diplomats, to send its own diplomats to foreign
countries, and to enter into treaties according to International Law
(Garcia, Questions and Problems In International Law, Public and Private
81 [1948]).
The Lateran Treaty established the statehood of the Vatican City "for the
purpose of assuring to the Holy See absolute and visible independence
and of guaranteeing to it indisputable sovereignty also in the field of
international relations" (O'Connell, I International Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is difficult to determine
whether the statehood is vested in the Holy See or in the Vatican City.
Some writers even suggested that the treaty created two international
persons — the Holy See and Vatican City (Salonga and Yap, supra, 37).
The Vatican City fits into none of the established categories of states,
and the attribution to it of "sovereignty" must be made in a sense different
from that in which it is applied to other states (Fenwick, International Law
124-125 [1948]; Cruz, International Law 37 [1991]). In a community of
national states, the Vatican City represents an entity organized not for
political but for ecclesiastical purposes and international objects. Despite
its size and object, the Vatican City has an independent government of its
own, with the Pope, who is also head of the Roman Catholic Church, as
the Holy See or Head of State, in conformity with its traditions, and the
demands of its mission in the world. Indeed, the world-wide interests and
activities of the Vatican City are such as to make it in a sense an
"international state" (Fenwick, supra., 125; Kelsen, Principles of
International Law 160 [1956]).
One authority wrote that the recognition of the Vatican City as a state has
significant implication — that it is possible for any entity pursuing objects
essentially different from those pursued by states to be invested with
international personality (Kunz, The Status of the Holy See in
International Law, 46 The American Journal of International Law 308
[1952]).
Inasmuch as the Pope prefers to conduct foreign relations and enter into
transactions as the Holy See and not in the name of the Vatican City, one
can conclude that in the Pope's own view, it is the Holy See that is the
international person.
The Republic of the Philippines has accorded the Holy See the status of
a foreign sovereign. The Holy See, through its Ambassador, the Papal
Nuncio, has had diplomatic representations with the Philippine
government since 1957 (Rollo, p. 87). This appears to be the universal
practice in international relations.
B. Sovereign Immunity
As expressed in Section 2 of Article II of the 1987 Constitution, we have
adopted the generally accepted principles of International Law. Even
without this affirmation, such principles of International Law are deemed
incorporated as part of the law of the land as a condition and
consequence of our admission in the society of nations (United States of
America v. Guinto, 182 SCRA 644 [1990]).
There are two conflicting concepts of sovereign immunity, each widely
held and firmly established. According to the classical or absolute theory,
a sovereign cannot, without its consent, be made a respondent in the
courts of another sovereign. According to the newer or restrictive theory,
the immunity of the sovereign is recognized only with regard to public
acts or acts jure imperii of a state, but not with regard to private acts or
acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and
Defensor-Santiago, Public International Law 194 [1984]).
Some states passed legislation to serve as guidelines for the executive or
judicial determination when an act may be considered as jure gestionis.
The United States passed the Foreign Sovereign Immunities Act of 1976,
which defines a commercial activity as "either a regular course of
commercial conduct or a particular commercial transaction or act."
Furthermore, the law declared that the "commercial character of the
activity shall be determined by reference to the nature of the course of
conduct or particular transaction or act, rather than by reference to its
purpose." The Canadian Parliament enacted in 1982 an Act to Provide
For State Immunity in Canadian Courts. The Act defines a "commercial
activity" as any particular transaction, act or conduct or any regular
course of conduct that by reason of its nature, is of a "commercial
character."
The restrictive theory, which is intended to be a solution to the host of
problems involving the issue of sovereign immunity, has created
problems of its own. Legal treatises and the decisions in countries which
follow the restrictive theory have difficulty in characterizing whether a
contract of a sovereign state with a private party is an act jure
gestionis or an act jure imperii.
The restrictive theory came about because of the entry of sovereign
states into purely commercial activities remotely connected with the
discharge of governmental functions. This is particularly true with respect
to the Communist states which took control of nationalized business
activities and international trading.
This Court has considered the following transactions by a foreign state
with private parties as acts jure imperii: (1) the lease by a foreign
government of apartment buildings for use of its military officers (Syquia
v. Lopez, 84 Phil. 312 [1949]; (2) the conduct of public bidding for the
repair of a wharf at a United States Naval Station (United States of
America v. Ruiz, supra.); and (3) the change of employment status of
base employees (Sanders v. Veridiano, 162 SCRA 88 [1988]).
On the other hand, this Court has considered the following transactions
by a foreign state with private parties as acts jure gestionis: (1) the hiring
of a cook in the recreation center, consisting of three restaurants, a
cafeteria, a bakery, a store, and a coffee and pastry shop at the John
Hay Air Station in Baguio City, to cater to American servicemen and the
general public (United States of America v. Rodrigo, 182 SCRA 644
[1990]); and (2) the bidding for the operation of barber shops in Clark Air
Base in Angeles City (United States of America v. Guinto, 182 SCRA 644
[1990]). The operation of the restaurants and other facilities open to the
general public is undoubtedly for profit as a commercial and not a
governmental activity. By entering into the employment contract with the
cook in the discharge of its proprietary function, the United States
government impliedly divested itself of its sovereign immunity from suit.
In the absence of legislation defining what activities and transactions
shall be considered "commercial" and as constituting acts jure gestionis,
we have to come out with our own guidelines, tentative they may be.
Certainly, the mere entering into a contract by a foreign state with a
private party cannot be the ultimate test. Such an act can only be the
start of the inquiry. The logical question is whether the foreign state is
engaged in the activity in the regular course of business. If the foreign
state is not engaged regularly in a business or trade, the particular act or
transaction must then be tested by its nature. If the act is in pursuit of a
sovereign activity, or an incident thereof, then it is an act jure imperii,
especially when it is not undertaken for gain or profit.
As held in United States of America v. Guinto, (supra):
There is no question that the United States of America,
like any other state, will be deemed to have impliedly
waived its non-suability if it has entered into a contract in
its proprietary or private capacity. It is only when the
contract involves its sovereign or governmental capacity
that no such waiver may be implied.
In the case at bench, if petitioner has bought and sold lands in the
ordinary course of a real estate business, surely the said transaction can
be categorized as an act jure gestionis. However, petitioner has denied
that the acquisition and subsequent disposal of Lot 5-A were made for
profit but claimed that it acquired said property for the site of its mission
or the Apostolic Nunciature in the Philippines. Private respondent failed
to dispute said claim.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of
Manila. The donation was made not for commercial purpose, but for the
use of petitioner to construct thereon the official place of residence of the
Papal Nuncio. The right of a foreign sovereign to acquire property, real or
personal, in a receiving state, necessary for the creation and
maintenance of its diplomatic mission, is recognized in the 1961 Vienna
Convention on Diplomatic Relations (Arts. 20-22). This treaty was
concurred in by the Philippine Senate and entered into force in the
Philippines on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted immunity
from the civil and administrative jurisdiction of the receiving state over
any real action relating to private immovable property situated in the
territory of the receiving state which the envoy holds on behalf of the
sending state for the purposes of the mission. If this immunity is provided
for a diplomatic envoy, with all the more reason should immunity be
recognized as regards the sovereign itself, which in this case is the Holy
See.
The decision to transfer the property and the subsequent disposal thereof
are likewise clothed with a governmental character. Petitioner did not sell
Lot
5-A for profit or gain. It merely wanted to dispose off the same because
the squatters living thereon made it almost impossible for petitioner to
use it for the purpose of the donation. The fact that squatters have
occupied and are still occupying the lot, and that they stubbornly refuse
to leave the premises, has been admitted by private respondent in its
complaint (Rollo, pp. 26, 27).
The issue of petitioner's non-suability can be determined by the trial court
without going to trial in the light of the pleadings, particularly the
admission of private respondent. Besides, the privilege of sovereign
immunity in this case was sufficiently established by the Memorandum
and Certification of the Department of Foreign Affairs. As the department
tasked with the conduct of the Philippines' foreign relations
(Administrative Code of 1987, Book IV, Title I, Sec. 3), the Department of
Foreign Affairs has formally intervened in this case and officially certified
that the Embassy of the Holy See is a duly accredited diplomatic mission
to the Republic of the Philippines exempt from local jurisdiction and
entitled to all the rights, privileges and immunities of a diplomatic mission
or embassy in this country (Rollo, pp. 156-157). The determination of the
executive arm of government that a state or instrumentality is entitled to
sovereign or diplomatic immunity is a political question that is conclusive
upon the courts (International Catholic Migration Commission v. Calleja,
190 SCRA 130 [1990]). Where the plea of immunity is recognized and
affirmed by the executive branch, it is the duty of the courts to accept this
claim so as not to embarrass the executive arm of the government in
conducting the country's foreign relations (World Health Organization v.
Aquino, 48 SCRA 242 [1972]). As in International Catholic Migration
Commission and in World Health Organization, we abide by the
certification of the Department of Foreign Affairs.
Ordinarily, the procedure would be to remand the case and order the trial
court to conduct a hearing to establish the facts alleged by petitioner in its
motion. In view of said certification, such procedure would however be
pointless and unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge
Tirso Velasco, G.R. No. 109645, July 25, 1994).
IV
Private respondent is not left without any legal remedy for the redress of
its grievances. Under both Public International Law and Transnational
Law, a person who feels aggrieved by the acts of a foreign sovereign can
ask his own government to espouse his cause through diplomatic
channels.
Private respondent can ask the Philippine government, through the
Foreign Office, to espouse its claims against the Holy See. Its first task is
to persuade the Philippine government to take up with the Holy See the
validity of its claims. Of course, the Foreign Office shall first make a
determination of the impact of its espousal on the relations between the
Philippine government and the Holy See (Young, Remedies of Private
Claimants Against Foreign States, Selected Readings on Protection by
Law of Private Foreign Investments 905, 919 [1964]). Once the Philippine
government decides to espouse the claim, the latter ceases to be a
private cause.
According to the Permanent Court of International Justice, the forerunner
of the International Court of Justice:
By taking up the case of one of its subjects and by
reporting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality asserting
its own rights — its right to ensure, in the person of its
subjects, respect for the rules of international law (The
Mavrommatis Palestine Concessions, 1 Hudson, World
Court Reports 293, 302 [1924]).
WHEREFORE, the petition for certiorari is GRANTED and the complaint
in Civil Case No. 90-183 against petitioner is DISMISSED.
SO ORDERED.
Holy See vs. Rosario G.R. 101949 (1994)
Facts of the Case:
Petitioner in this case is the Holy See (who exercises sovereignty over
the Vatican City in Rome Italy and is represented in the Philippines by the
Papal Nuncio. Respondent in this case is Hon. Edilberto Rosario in his
capacity as the Presiding Judge of RTC Makati, Branch 61 and Starbright
Sales Enterprises, a domestic corporation engaged in the real estate
business.
The petition started from a controversy over a parcel of land. Lot 5A
registered under the name of the Holy See, is connected to Lot 5B and 5D
under the name of Philippine Realty Corporation. The land was donated by
the Archdiocese of Manila to the Papal Nuncio which represented the Holy
See who exercises sovereignty over the Vatican City, Rome Italy for his
residence.
The said lots were sold to Ramon Licup who assigned his rights to
respondents Starbright Sales, Inc.
When the squatters refused to vacate the lots, a dispute arose
between these two parties because both were unsure as to whose
responsibility was it to evict the squatters from the said lots. Respondent
Starbright insists that the Holy See should clear the property while Holy See
says that Starbright should do it or the earnest money will be returned.
Since Starbright refused to clear the property, Msgr. Cirilios, the
agent, returned P100k earnest money. The same lots were sold to Tropicana
Properties.
Starbright filed a suit for annulment of sale, specific performance
and damages against Msgr. Cirilios, Philippine Realty Corporation and
Tropicana. The Holy See moved to dismiss the petition for lack of jurisdiction
based on sovereign immunity of suit. The RTC denied the motion on the
ground that the petitioner already shed off its sovereign immunity by
entering into a business contract.

Issue:
Can the Holy See invoke sovereign immunity?
Court Ruling:
YES. The Court held that the Holy See may properly invoke sovereign
immunity for its non-suability. In Article 31 (A) of the 1961 Vienna
Convention on Diplomatic Relations, diplomatic envoy (a representative
government who is sent on a special diplomatic mission) shall be granted
immunity from civil and administrative jurisdiction of the receiving state
over any real action relating to private immovable property.
The DFA certified that the Embassy of the Holy See is a duly
accredited diplomatic missionary to the Republic of the Philippines and is
thus exempted from local jurisdiction and is entitled to immunity rights of a
diplomatic mission or embassy in this Court.
While the said lot was acquired and bought in the ordinary cause of
real estate business, its acquisition and disposal were not made for profit but
claimed that it acquired the said property for its mission or the Apostolic
Nunciature of the Philippines.
Besides, the act of selling the land concerned is non-proprietary in
nature, or is not covered by a patent or trademark. The transfer and disposal
of property are likewise clothed with a governmental character as the
petitioner did not buy and sell the land for gain but merely because they
cannot evict the said squatters in the property.
Holy See vs Rosario
Petitioner: The Holy See
Respondent: Hon. Elidberto Rosario, Jr., in his capacity as Presiding Judge
of
RTC Makati, Branch 61 and Starbright Sales Enterprises, Inc.
FACTS:
Petition arose from a controversy over a parcel of land. Lot 5-A,
registered under the name Holy See, was contiguous to Lot 5-B and 5-D
under the name of Philippine Realty Corporation (PRC). The land was
donated by the Archdiocese of Manila to the Papal Nuncio, which represents
the Holy See, who exercises sovereignty over the Vatican City, Rome, Italy,
for his residence.
Said lots were sold through an agent to Ramon Licup who assigned
his rights to respondents Starbright Sales Enterprises, Inc.
When the squatters refuse to vacate the lots, a dispute arose between
the two parties because both were unsure whose responsibility was it to evict
the squatters from said lots. Respondent Starbright Sales Enterprises Inc.
insists that Holy See should clear the property while Holy See says that
respondent corporation should do it or the earnest money will be returned.
With this, Msgr. Cirilios, the agent, subsequently returned the P100,000
earnest money.
The same lots were then sold to Tropicana Properties and
Development Corporation.
Starbright Sales Enterprises, Inc. filed a suit for annulment of the
sale, specific performance and damages against Msgr. Cirilios, PRC as well as
Tropicana Properties and Development Corporation. The Holy See and Msgr.
Cirilos moved to dismiss the petition for lack of jurisdiction based on
sovereign immunity from suit. RTC denied the motion on ground that
petitioner already "shed off" its sovereign immunity by entering into a
business contract. The subsequent Motion for Reconsideration was also
denied hence this special civil action for certiorari was forwarded to the
Supreme Court.
ISSUE: Whether or not Holy See can invoke sovereign immunity.
HELD:
The Court held that Holy See may properly invoke sovereign
immunity for its non-suability. As expressed in Sec. 2 Art II of the 1987
Constitution, generally accepted principles of International Law are adopted
by our Courts and thus shall form part of the laws of the land as a condition
and consequence of our admission in the society of nations.
 It was noted in Article 31(A) of the 1961 Vienna Convention on
Diplomatic Relations that diplomatic envoy shall be granted immunity from
civil and administrative jurisdiction of the receiving state over any real action
relating to private immovable property. The Department of Foreign Affairs
(DFA) certified that the Embassy of the Holy See is a duly accredited
diplomatic missionary to the Republic of the Philippines and is thus
exempted from local jurisdiction and is entitled to the immunity rights of a
diplomatic mission or embassy in this Court.

Furthermore, it shall be understood that in the case at bar, the

petitioner has bought and sold lands in the ordinary course of real estate
business, surely, the said transaction can be categorized as an act jure
gestionis. However, petitioner has denied that the acquisition and
subsequent disposal of the lot were made for profit but claimed that it
acquired said property for the site of its mission or the Apostolic Nunciature
in the Philippines.

The Holy See is immune from suit because the act of selling the lot of
concern is non-propriety in nature. The lot was acquired through a
donation from the Archdiocese of Manila, not for a commercial purpose, but
for the use of petitioner to construct the official place of residence of the
Papal Nuncio thereof. The transfer of the property and its subsequent
disposal are likewise clothed with a governmental (non-proprietal) character
as petitioner sold the lot not for profit or gain rather because it merely cannot
evict the squatters living in said property.

In view of the foregoing, the petition is hereby GRANTED and the

complaints were dismissed accordingly.
 EN BANC
[G.R. No. 94723. August 21, 1997]
KAREN E. SALVACION, minor, thru Federico N. Salvacion, Jr.,
father and Natural Guardian, and Spouses FEDERICO N.
SALVACION, JR., and EVELINA E.
SALVACION, petitioners, vs.CENTRAL BANK OF THE
PHILIPPINES, CHINA BANKING CORPORATION and
GREG BARTELLI y NORTHCOTT, respondents.
DECISION
TORRES, JR., J.:
In our predisposition to discover the original intent of a statute,
courts become the unfeeling pillars of the status quo. Little do we
realize that statutes or even constitutions are bundles of compromises
thrown our way by their framers. Unless we exercise vigilance, the
statute may already be out of tune and irrelevant to our day.
The petition is for declaratory relief. It prays for the following
reliefs:
a.) Immediately upon the filing of this petition, an Order be issued
restraining the respondents from applying and enforcing Section
113 of Central Bank Circular No. 960;
b.) After hearing, judgment be rendered:
1.) Declaring the respective rights and duties of
petitioners and respondents;
2.) Adjudging Section 113 of Central Bank Circular No.
960 as contrary to the provision of the Constitution,
hence void; because its provision that Foreign currency
deposits shall be exempt from attachment, garnishment,
or any other order to process of any court, legislative
body, government agency or any administrative body
whatsoever
i.) has taken away the right of petitioners to have the
bank deposit of defendant Greg Bartelli y Northcott
garnished to satisfy the judgment rendered in
petitioners favor in violation of substantive due
process guaranteed by the Constitution;
ii.) has given foreign currency depositors an undue
favor or a class privilege in violation of the equal
protection clause of the Constitution;
iii.) has provided a safe haven for criminals like the
herein respondent Greg Bartelli y Northcott since
criminals could escape civil liability for their
wrongful acts by merely converting their money to a
foreign currency and depositing it in a foreign
currency deposit account with an authorized bank.
The antecedents facts:
On February 4, 1989, Greg Bartelli y Northcott, an American
tourist, coaxed and lured petitioner Karen Salvacion, then 12 years
old to go with him to his apartment. Therein, Greg Bartelli detained
Karen Salvacion for four days, or up to February 7, 1989 and was
able to rape the child once on February 4, and three times each day
on February 5, 6, and 7, 1989. On February 7, 1989, after policemen
and people living nearby, rescued Karen, Greg Bartelli was arrested
and detained at the Makati Municipal Jail. The policemen recovered
from Bartelli the following items: 1.) Dollar Check No. 368, Control No.
021000678-1166111303, US 3,903.20; 2.) COCOBANK Bank Book
No. 104-108758-8 (Peso Acct.); 3.) Dollar Account China Banking
Corp., US $/A#54105028-2; 4.) ID-122-30-8877; 5.) Philippine Money
(P234.00) cash; 6.) Door Keys 6 pieces; 7.) Stuffed Doll (Teddy Bear)
used in seducing the complainant.
On February 16, 1989, Makati Investigating Fiscal Edwin G.
Condaya filed against Greg Bartelli, Criminal Case No. 801 for
Serious Illegal Detention and Criminal Cases Nos. 802, 803, 804, and
805 for four (4) counts of Rape. On the same day, petitioners filed
with the Regional Trial Court of Makati Civil Case No. 89-3214 for
damages with preliminary attachment against Greg Bartelli. On
February 24, 1989, the day there was a scheduled hearing for
Bartellis petition for bail the latter escaped from jail.
On February 28, 1989, the court granted the fiscals Urgent Ex-
Parte Motion for the Issuance of Warrant of Arrest and Hold Departure
Order. Pending the arrest of the accused Greg Bartelli y Northcott, the
criminal cases were archived in an Order dated February 28, 1989.
Meanwhile, in Civil Case No. 89-3214, the Judge issued an Order
dated February 22, 1989 granting the application of herein petitioners,
for the issuance of the writ of preliminary attachment. After petitioners
gave Bond No. JCL (4) 1981 by FGU Insurance Corporation in the
amount P100,000.00, a Writ of Preliminary Attachment was issued by
the trial court on February 28, 1989.
On March 1, 1989, the Deputy Sheriff of Makati served a Notice
of Garnishment on China Banking Corporation. In a letter dated March
13, 1989 to the Deputy Sheriff of Makati, China Banking Corporation
invoked Republic Act No. 1405 as its answer to the notice of
garnishment served on it. On March 15, 1989, Deputy Sheriff of
Makati Armando de Guzman sent his reply to China Banking
Corporation saying that the garnishment did not violate the secrecy of
bank deposits since the disclosure is merely incidental to a
garnishment properly and legally made by virtue of a court order
which has placed the subject deposits in custodia legis. In answer to
this letter of the Deputy Sheriff of Makati, China Banking Corporation,
in a letter dated March 20, 1989, invoked Section 113 of Central Bank
Circular No. 960 to the effect that the dollar deposits of defendant
Greg Bartelli are exempt from attachment, garnishment, or any other
order or process of any court, legislative body, government agency or
any administrative body, whatsoever.
This prompted the counsel for petitioners to make an inquiry with
the Central Bank in a letter dated April 25, 1989 on whether Section
113 of CB Circular No. 960 has any exception or whether said section
has been repealed or amended since said section has rendered
nugatory the substantive right of the plaintiff to have the claim sought
to be enforced by the civil action secured by way of the writ of
preliminary attachment as granted to the plaintiff under Rule 57 of the
Revised Rules of Court. The Central Bank responded as follows:
May 26, 1989
Ms. Erlinda S. Carolino
12 Pres. Osmea Avenue
South Admiral Village
Paranaque, Metro Manila
Dear Ms. Carolino:
This is in reply to your letter dated April 25, 1989 regarding your
inquiry on Section 113, CB Circular No. 960 (1983).
The cited provision is absolute in application. It does not admit of
any exception, nor has the same been repealed nor amended.
The purpose of the law is to encourage dollar accounts within the
countrys banking system which would help in the development of
the economy. There is no intention to render futile the basic rights
of a person as was suggested in your subject letter. The law may be
harsh as some perceive it, but it is still the law. Compliance is,
therefore, enjoined.
Very truly yours,
(SGD) AGAPITO S. FAJARDO
Director[1]
Meanwhile, on April 10, 1989, the trial court granted petitioners
motion for leave to serve summons by publication in the Civil Case
No. 89-3214 entitled Karen Salvacion. et al. vs. Greg Bartelli y
Northcott. Summons with the complaint was published in the Manila
Times once a week for three consecutive weeks. Greg Bartelli failed
to file his answer to the complaint and was declared in default on
August 7, 1989. After hearing the case ex-parte, the court rendered
judgment in favor of petitioners on March 29, 1990, the dispositive
portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of plaintiffs
and against defendant, ordering the latter:
1. To pay plaintiff Karen E. Salvacion the amount of P500,000.00
as moral damages;
2. To pay her parents, plaintiffs spouses Federico N. Salvacion, Jr.,
and Evelina E. Salvacion the amount of P150,000.00 each or a total
of P300,000.00 for both of them;
3. To pay plaintiffs exemplary damages of P100,000.00; and
4. To pay attorneys fees in an amount equivalent to 25% of the total
amount of damages herein awarded;
5. To pay litigation expenses of P10,000.00; plus
 6. Costs of the suit.
SO ORDERED.
The heinous acts of respondents Greg Bartelli which gave rise to
the award were related in graphic detail by the trial court in its
decision as follows:
The defendant in this case was originally detained in the municipal
jail of Makati but was able to escape therefrom on February 24,
1989 as per report of the Jail Warden of Makati to the Presiding
Judge, Honorable Manuel M. Cosico of the Regional Trial Court of
Makati, Branch 136, where he was charged with four counts of
Rape and Serious Illegal Detention (Crim. Cases Nos. 802 to
805). Accordingly, upon motion of plaintiffs, through counsel,
summons was served upon defendant by publication in the Manila
Times, a newspaper of general circulation as attested by the
Advertising Manager of the Metro Media Times, Inc., the publisher
of the said newspaper. Defendant, however, failed to file his answer
to the complaint despite the lapse of the period of sixty (60) days
from the last publication; hence, upon motion of the plaintiffs
through counsel, defendant was declared in default and plaintiffs
were authorized to present their evidence ex parte.
In support of the complaint, plaintiffs presented as witness the
minor Karen E. Salvacion, her father, Federico N. Salacion, Jr., a
certain Joseph Aguilar and a certain Liberato Mandulio, who gave
the following testimony:
Karen took her first year high school in St. Marys Academy in Pasay City but
has recently transferred to Arellano University for her second year.
In the afternoon of February 4, 1989, Karen was at the Plaza Fair Makati
Cinema Square, with her friend Edna Tangile whiling away her free time. At
about 3:30 p.m. while she was finishing her snack on a concrete bench in
front of Plaza Fair, an American approached her. She was then alone because
Edna Tangile had already left, and she was about to go home. (TSN, Aug. 15,
1989, pp. 2 to 5)
The American asked her name and introduced himself as Greg Bartelli. He
sat beside her when he talked to her. He said he was a Math teacher and told
her that he has a sister who is a nurse in New York. His sister allegedly has a
daughter who is about Karens age and who was with him in his house along
Kalayaan Avenue. (TSN, Aug. 15, 1989, pp. 4-5).
The American asked Karen what was her favorite subject and she told him its
Pilipino. He then invited her to go with him to his house where she could
teach Pilipino to his niece. He even gave her a stuffed toy to persuade her to
teach his niece. (Id., pp.5-6)
They walked from Plaza Fair along Pasong Tamo, turning right to reach the
defendants house along Kalayaan Avenue. (Id., p.6)
When they reached the apartment house, Karen notices that defendants
alleged niece was not outside the house but defendant told her maybe his
niece was inside. When Karen did not see the alleged niece inside the house,
defendant told her maybe his niece was upstairs, and invited Karen to go
upstairs. (Id., p. 7)
Upon entering the bedroom defendant suddenly locked the door. Karen
became nervous because his niece was not there. Defendant got a piece of
cotton cord and tied Karens hands with it, and then he undressed her. Karen
cried for help but defendant strangled her. He took a packing tape and he
covered her mouth with it and he circled it around her head. (Id., p. 7)
Then, defendant suddenly pushed Karen towards the bed which was just near
the door. He tied her feet and hands spread apart to the bed posts. He knelt in
front of her and inserted his finger in her sex organ. She felt severe pain. She
tried to shout but no sound could come out because there were tapes on her
mouth. When defendant withdrew his finger it was full of blood and Karen
felt more pain after the withdrawal of the finger. (Id., p.8)
He then got a Johnsons Baby Oil and he applied it to his sex organ as well as
to her sex organ. After that he forced his sex organ into her but he was not
able to do so. While he was doing it, Karen found it difficult to breathe and
she perspired a lot while feeling severe pain. She merely presumed that he
was able to insert his sex organ a little, because she could not see. Karen
could not recall how long the defendant was in that position. (Id., pp. 8-9)
After that, he stood up and went to the bathroom to wash. He also told Karen
to take a shower and he untied her hands. Karen could only hear the sound of
the water while the defendant, she presumed, was in the bathroom washing
his sex organ. When she took a shower more blood came out from her. In the
meantime, defendant changed the mattress because it was full of blood. After
the shower, Karen was allowed by defendant to sleep. She fell asleep because
she got tired crying. The incident happened at about 4:00 p.m. Karen had no
way of determining the exact time because defendant removed her
watch. Defendant did not care to give her food before she went to
sleep. Karen woke up at about 8:00 oclock the following morning. (Id., pp. 9-
10)
The following day, February 5, 1989, a Sunday, after breakfast of biscuit and
coke at about 8:30 to 9:00 a.m. defendant raped Karen while she was still
bleeding. For lunch, they also took biscuit and coke. She was raped for the
second time at about 12:00 to 2:00 p.m. In the evening, they had rice for
dinner which defendant had stored downstairs; it was he who cooked the rice
that is why it looks like lugaw. For the third time, Karen was raped again
during the night. During those three times defendant succeeded in inserting
his sex organ but she could not say whether the organ was inserted wholly.
Karen did not see any firearm or any bladed weapon. The defendant did not
tie her hands and feet nor put a tape on her mouth anymore but she did not
cry for help for fear that she might be killed; besides, all those windows and
doors were closed. And even if she shouted for help, nobody would hear
her. She was so afraid that if somebody would hear her and would be able to
call a police, it was still possible that as she was still inside the house,
defendant might kill her. Besides, the defendant did not leave that Sunday,
ruling out her chance to call for help. At nighttime he slept with her
again. (TSN, Aug. 15, 1989, pp. 12-14)
On February 6, 1989, Monday, Karen was raped three times, once in the
morning for thirty minutes after breakfast of biscuits; again in the afternoon;
and again in the evening. At first, Karen did not know that there was a
window because everything was covered by a carpet, until defendant opened
the window for around fifteen minutes or less to let some air in, and she
found that the window was covered by styrofoam and plywood. After that, he
again closed the window with a hammer and he put the styrofoam, plywood,
and carpet back. (Id., pp. 14-15)
That Monday evening, Karen had a chance to call for help, although
defendant left but kept the door closed. She went to the bathroom and saw a
small window covered by styrofoam and she also spotted a small hole. She
stepped on the bowl and she cried for help through the hole. She cried:
Maawa na po kayo sa akin. Tulungan nyo akong makalabas dito. Kinidnap
ako! Somebody heard her. It was a woman, probably a neighbor, but she got
angry and said she was istorbo. Karen pleaded for help and the woman told
her to sleep and she will call the police. She finally fell asleep but no
policeman came. (TSN, Aug. 15, 1989, pp. 15-16)
She woke up at 6:00 oclock the following morning, and she saw defendant in
bed, this time sleeping. She waited for him to wake up. When he woke up, he
again got some food but he always kept the door locked. As usual, she was
merely fed with biscuit and coke. On that day, February 7, 1989, she was
again raped three times. The first at about 6:30 to 7:00 a.m., the second at
about 8:30 9:00, and the third was after lunch at 12:00 noon. After he had
raped her for the second time he left but only for a short while. Upon his
return, he caught her shouting for help but he did not understand what she
was shouting about. After she was raped the third time, he left the
house. (TSN, Aug. 15, 1989, pp. 16-17) She again went to the bathroom and
shouted for help. After shouting for about five minutes, she heard many
voices. The voices were asking for her name and she gave her name as Karen
Salvacion. After a while, she heard a voice of a woman saying they will just
call the police. They were also telling her to change her clothes. She went
from the bathroom to the room but she did not change her clothes being
afraid that should the neighbors call the police and the defendant see her in
different clothes, he might kill her. At that time she was wearing a T-shirt of
the American bacause the latter washed her dress. (Id., p. 16)
Afterwards, defendant arrived and opened the door. He asked her if she had
asked for help because there were many policemen outside and she denied
it. He told her to change her clothes, and she did change to the one she was
wearing on Saturday. He instructed her to tell the police that she left home
and willingly; then he went downstairs but he locked the door. She could
hear people conversing but she could not understand what they were
saying. (Id., p. 19)
When she heard the voices of many people who were conversing downstairs,
she knocked repeatedly at the door as hard as she could. She heard somebody
going upstairs and when the door was opened, she saw a policeman. The
policeman asked her name and the reason why she was there. She told him
she was kidnapped. Downstairs, he saw about five policemen in uniform and
the defendant was talking to them. Nakikipag-areglo po sa mga pulis, Karen
added. The policeman told him to just explain at the precinct. (Id., p. 20)
They went out of the house and she saw some of her neighbors in front of the
house. They rode the car of a certain person she called Kuya Boy together
with defendant, the policeman, and two of her neighbors whom she called
Kuya Bong Lacson and one Ate Nita. They were brought to Sub-Station I
and there she was investigated by a policeman. At about 2:00 a.m., her father
arrived, followed by her mother together with some of their neighbors. Then
they were brought to the second floor of the police headquarters. (Id., p. 21)
At the headquarters, she was asked several questions by the investigator. The
written statement she gave to the police was marked Exhibit A. Then they
proceeded to the National Bureau of Investigation together with the
investigator and her parents. At the NBI, a doctor, a medico-legal officer,
examined her private parts. It was already 3:00 in early morning, of the
following day when they reached the NBI, (TSN, Aug. 15, 1989, p. 22) The
findings of the medico-legal officer has been marked as Exhibit B.
She was studying at the St. Marys Academy in Pasay City at the time of the
Incident but she subsequently transferred to Apolinario Mabini, Arellano
University, situated along Taft Avenue, because she was ashamed to be the
subject of conversation in the school. She first applied for transfer to Jose
Abad Santos, Arellano University along Taft Avenue near the Light Rail
Transit Station but she was denied admission after she told the school the
true reason for her transfer. The reason for their denial was that they might be
implicated in the case. (TSN, Aug. 15, 1989, p. 46)
xxx xxx xxx
After the incident, Karen has changed a lot. She does not play with her
brother and sister anymore, and she is always in a state of shock; she has
been absent-minded and is ashamed even to go out of the house. (TSN, Sept.
12, 1989, p. 10) She appears to be restless or sad. (Id., p. 11) The father prays
for P500,000.00 moral damages for Karen for this shocking experience
which probably, she would always recall until she reaches old age, and he is
not sure if she could ever recover from this experience. (TSN, Sept. 24, 1989,
pp. 10-11)
Pursuant to an Order granting leave to publish notice of decision,
said notice was published in the Manila Bulletin once a week for three
consecutive weeks. After the lapse of fifteen (15) days from the date
of the last publication of the notice of judgment and the decision of the
trial court had become final, petitioners tried to execute on Bartellis
dollar deposit with China Banking Corporation. Likewise, the bank
invoked Section 113 of Central Bank Circular No. 960.
Thus, petitioners decided to seek relief from this Court.
The issues raised and the arguments articulated by the parties
boil down to two:
May this Court entertain the instant petition despite the fact that
original jurisdiction in petitions for declaratory relief rests with the
lower court? She Section 113 of Central Bank Circular No. 960 and
Section 8 of R.A. 6426, as amended by P.D. 1246, otherwise known
as the Foreign Currency Deposit Act be made applicable to a foreign
transient?
Petitioners aver as heretofore stated that Section 113 of Central
Bank Circular No. 960 providing that Foreign currency deposits shall
be exempt from attachment, garnishment, or any other order or
process of any court, legislative body, government agency or any
administrative body whatsoever. should be adjudged as
unconstitutional on the grounds that: 1.) it has taken away the right of
petitioners to have the bank deposit of defendant Greg Bartelli y
Northcott garnished to satisfy the judgment rendered in petitioners
favor in violation of substantive due process guaranteed by the
Constitution; 2.) it has given foreign currency depositors an undue
favor or a class privilege n violationof the equal protection clause of
the Constitution; 3.) it has provided a safe haven for criminals like the
herein respondent Greg Bartelli y Northcott since criminal could
escape civil liability for their wrongful acts by merely converting their
money to a foreign currency and depositing it in a foreign currency
deposit account with an authorized bank; and 4.) The Monetary
Board, in issuing Section 113 of Central Bank Circular No. 960 has
exceeded its delegated quasi- legislative power when it took
away: a.) the plaintiffs substantive right to have the claim sought to be
enforced by the civil action secured by way of the writ of preliminary
attachment as granted by Rule 57 of the Revised Rules of
Court; b.) the plaintiffs substantive right to have the judgment credit
satisfied by way of the writ of execution out of the bank deposit of the
judgment debtor as granted to the judgment creditor by Rule 39 of the
Revised Rules of Court, which is beyond its power to do so.
On the other hand, respondent Central Bank, in its Comment
alleges that the Monetary Board in issuing Section 113 of CB Circular
No. 960 did not exceed its power or authority because the subject
Section is copied verbatim from a portion of R.A. No. 6426 as
amended by P.D. 1246. Hence, it was not the Monetary Board that
grants exemption from attachment or garnishment to foreign currency
deposits, but the law (R.A. 6426 as amended) itself; that it does not
violate the substantive due process guaranteed by the Constitution
because a.) it was based on a law; b.) the law seems to be
reasonable; c.) it is enforced according to regular methods of
procedure; and d.) it applies to all members of a class.
 Expanding, the Central Bank said; that one reason for exempting
the foreign currency deposits from attachment, garnishment or any
other order process of any court, is to assure the development and
speedy growth of the Foreign Currency Deposit System and the
Offshore Banking System in the Philippines; that another reason is to
encourage the inflow of foreign currency deposits into the banking
institutions thereby placing such institutions more in a position to
properly channel the same to loans and investments in the
Philippines, thus directly contributing to the economic development of
the country; that the subject section is being enforced according to the
regular methods of procedure; and that it applies to all currency
deposits made by any person and therefore does not violate the equal
protection clause of the Constitution.
Respondent Central Bank further avers that the questioned
provision is needed to promote the public interest and the general
welfare; that the State cannot just stand idly by while a considerable
segment of the society suffers from economic distress; that the State
had to take some measures to encourage economic development;
and that in so doing persons and property may be subjected to some
kinds of restraints or burdens to secure the general welfare or public
interest. Respondent Central Bank also alleges that Rule 39 and Rule
57 of the Revised Rules of Court provide that some properties are
exempted from execution/attachment especially provided by law and
R.A. No. 6426 as amended is such a law, in that it specifically
provides, among others, that foreign currency deposits shall be
exempted from attachment, garnishment, or any other order or
process of any court, legislative body, government agency or any
administrative body whatsoever.
For its part, respondent China Banking Corporation, aside from
giving reasons similar to that of respondent Central Bank, also stated
that respondent China Bank is not unmindful of the inhuman
sufferings experienced by the minor Karen E. Salvacion from the
beastly hands of Greg Bartelli; that it is not only too willing to release
the dollar deposit of Bartelli which may perhaps partly mitigate the
sufferings petitioner has undergone; but it is restrained from doing so
in view of R.A. No. 6426 and Section 113 of Central Bank Circular No.
960; and that despite the harsh effect to these laws on petitioners,
CBC has no other alternative but to follow the same.
This court finds the petition to be partly meritorious.
Petitioner deserves to receive the damages awarded to her by
the court. But this petition for declaratory relief can only be entertained
and treated as a petition for mandamus to require respondents to
honor and comply with the writ of execution in Civil Case No. 89-3214.
The Court has no original and exclusive jurisdiction over a petition
for declatory relief. However, exceptions to this rule have been
[2]
recognized. Thus, where the petition has far-reaching implications and
raises questions that should be resolved, it may be treated as one for
mandamus. [3]
Here is a child, a 12-year old girl, who in her belief that all
Americans are good and in her gesture of kindness by teaching his
alleged niece the Filipino language as requested by the American,
trustingly went with said stranger to his apartment, and there she was
raped by said American tourist Greg Bartelli. Not once, but ten
times. She was detained therein for four (4) days. This American
tourist was able to escape from the jail and avoid punishment. On the
other hand, the child, having received a favorable judgment in the
Civil Case for damages in the amount of more than P1,000,000.00,
which amount could alleviate the humiliation, anxiety, and besmirched
reputation she had suffered and may continue to suffer for a long,
long time; and knowing that this person who had wronged her has the
money, could not, however get the award of damages because of this
unreasonable law. This questioned law, therefore makes futile the
favorable judgment and award of damages that she and her parents
fully deserve. As stated by the trial court in its decision,
Indeed, after hearing the testimony of Karen, the Court believes that
it was indoubtedly a shocking and traumatic experience she had
undergone which could haunt her mind for a long, long time, the
mere recall of which could make her feel so humiliated, as in fact
she had been actually humiliated once when she was refused
admission at the Abad Santos High School, Arellano University,
where she sought to transfer from another school, simply because
the school authorities of the said High School learned about what
happened to her and allegedly feared that they might be implicated
in the case.
xxx
The reason for imposing exemplary or corrective damages is due to
the wanton and bestial manner defendant had committed the acts of
rape during a period of serious illegal detention of his hapless
 victim, the minor Karen Salvacion whose only fault was in her
being so naive and credulous to believe easily that defendant, an
American national, could not have such a bestial desire on her nor
capable of committing such heinous crime. Being only 12 years old
when that unfortunate incident happened, she has never heard of an
old Filipino adage that in every forest there is a snake, xxx.
[4]
If Karens sad fate had happened to anybodys own kin, it would
be difficult for him to fathom how the incentive for foreign currency
deposit could be more important than his childs right to said award of
damages; in this case, the victims claim for damages from this alien
who had the gall to wrong a child of tender years of a country where
he is mere visitor. This further illustrates the flaw in the questioned
provisions.
It is worth mentioning that R.A. No. 6426 was enacted in 1983 or
at a time when the countrys economy was in a shambles; when
foreign investments were minimal and presumably, this was the
reason why said statute was enacted. But the realities of the present
times show that the country has recovered economically; and even if
not, the questioned law still denies those entitled to due process of
law for being unreasonable and oppressive. The intention of the
questioned law may be good when enacted. The law failed to
anticipate the inquitous effects producing outright injustice and
inequality such as as the case before us.
It has thus been said that-
But I also know, that laws and institutions must go hand in hand
[5]
with the progress of the human mind. As that becomes more
developed, more enlightened, as new discoveries are made, new
truths are disclosed and manners and opinions change with the
change of circumstances, institutions must advance also, and keep
pace with the times We might as well require a man to wear still the
coat which fitted him when a boy, as civilized society to remain
ever under the regimen of their barbarous ancestors.
In his comment, the Solicitor General correctly opined, thus:
"The present petition has far-reaching implications on the right of a
national to obtain redress for a wrong committed by an alien who
takes refuge under a law and regulation promulgated for a purpose
which does not contemplate the application thereof envisaged by the
allien. More specifically, the petition raises the question whether the
protection against attachment, garnishment or other court process
accorded to foreign currency deposits PD No. 1246 and CB Circular
No. 960 applies when the deposit does not come from a lender or
investor but from a mere transient who is not expected to maintain
the deposit in the bank for long.
The resolution of this question is important for the protection of
nationals who are victimized in the forum by foreigners who are
merely passing through.
xxx
xxx Respondents China Banking Corporation and Central Bank of
the Philippines refused to honor the writ of execution issued in Civil
Case No. 89-3214 on the strength of the following provision of
Central Bank Circular No. 960:
Sec. 113 Exemption from attachment. Foreign currency
deposits shall be exempt from attachment, garnishment,
or any other order or process of any court, legislative
body, government agency or any administrative body
whatsoever.
Central Bank Circular No. 960 was issued pursuant to Section 7 of Republic
Act No. 6426:
Sec. 7. Rules and Regulations. The Monetary Board of
the Central Bank shall promulgate such rules and
regulations as may be necessary to carry out the
provisions of this Act which shall take effect after the
publication of such rules and regulations in the Official
Gazette and in a newspaper of national circulation for at
least once a week for three consecutive weeks. In case
the Central Bank promulgates new rules and regulations
decreasing the rights of depositors, the rules and
regulations at the time the deposit was made shall
govern.
The aforecited Section 113 was copied from Section 8 of Republic
Act No. 6426. As amended by P.D. 1246, thus:
Sec. 8. Secrecy of Foreign Currency Deposits. -- All
foreign currency deposits authorized under this Act, as
amended by Presidential Decree No. 1035, as well as
foreign currency deposits authorized under Presidential
Decree No. 1034, are hereby declared as and considered
 of an absolutely confidential nature and, except upon the
written permission of the depositor, in no instance shall
such foreign currency deposits be examined, inquired or
looked into by any person, government official, bureau
or office whether judicial or administrative or legislative
or any other entity whether public or private: Provided,
however, that said foreign currency deposits shall be
exempt from attachment, garnishment, or any other order
or process of any court, legislative body, government
agency or any administrative body whatsoever.
The purpose of PD 1246 in according protection against attachment,
garnishment and other court process to foreign currency deposits is
stated in its whereases, viz.:
WHEREAS, under Republic Act No. 6426, as amended
by Presidential Decree No. 1035, certain Philippine
banking institutions and branches of foreign banks are
authorized to accept deposits in foreign currency;
WHEREAS, under provisions of Presidential Decree No.
1034 authorizing the establishment of an offshore
banking system in the Philippines, offshore banking
units are also authorized to receive foreign currency
deposits in certain cases;
WHEREAS, in order to assure the development and
speedy growth of the Foreign Currency Deposit System
and the Offshore Banking System in the Philippines,
certain incentives were provided for under the
two Systems such as confidentiality subject to certain
exceptions and tax exemptions on the interest income of
depositors who are nonresidents and are not engaged in
trade or business in the Philippines;
WHEREAS, making absolute the protective cloak of
confidentiality over such foreign currency deposits,
exempting such deposits from tax, and guaranteeing the
vested right of depositors would better encourage the
inflow of foreign currency deposits into the banking
institutions authorized to accept such deposits in the
Philippines thereby placing such institutions more in a
position to properly channel the same to loans and
investments in the Philippines, thus directly contributing
to the economic development of the country;
Thus, one of the principal purposes of the protection accorded to
foreign currency deposits is to assure the development and speedy
growth of the Foreign Currency Deposit system and the Offshore
Banking in the Philippines (3 Whereas).
rd
The Offshore Banking System was established by PD No. 1034. In
turn, the purposes of PD No. 1034 are as follows:
WHEREAS, conditions conducive to the establishment
of an offshore banking system, such as political stability,
a growing economy and adequate communication
facilities, among others, exist in the Philippines;
WHEREAS, it is in the interest of developing countries
to have as wide access as possible to the sources of
capital funds for economic development;
WHEREAS, an offshore banking system based in the
Philippines will be advantageous and beneficial to the
country by increasing our links with foreign lenders,
facilitating the flow of desired investments into the
Philippines, creating employment opportunities and
expertise in international finance, and contributing to the
national development effort.
WHEREAS, the geographical location, physical and
human resources, and other positive factors provide the
Philippines with the clear potential to develop as another
financial center in Asia;
On the other hand, the Foreign Currency Deposit system was
created by PD No. 1035. Its purpose are as follows:
WHEREAS, the establishment of an offshore banking
system in the Philippines has been authorized under a
separate decree;
WHEREAS, a number of local commercial banks, as
depository bank under the Foreign Currency Deposit Act
(RA No. 6426), have the resources and managerial
competence to more actively engage in foreign exchange
transactions and participate in the grant of foreign
currency loans to resident corporations and firms;
 WHEREAS, it is timely to expand the foreign currency
lending authority of the said depository banks under RA
6426 and apply to their transactions the same taxes as
would be applicable to transaction of the proposed
offshore banking units;
It is evident from the above [Whereas clauses] that the Offshore
Banking System and the Foreign Currency Deposit System were
designed to draw deposits from foreign lenders and investors (Vide
second Whereas of PD No. 1034; third Whereas of PD No. 1035). It
is these depositors that are induced by the two laws and given
protection and incentives by them.
Obviously, the foreign currency deposit made by a transient or a
tourist is not the kind of deposit encourage by PD Nos. 1034 and
1035 and given incentives and protection by said laws because such
depositor stays only for a few days in the country and, therefore,
will maintain his deposit in the bank only for a short time.
Respondent Greg Bartelli, as stated, is just a tourist or a
transient. He deposited his dollars with respondent China Banking
Corporation only for safekeeping during his temporary stay in the
Philippines.
For the reasons stated above, the Solicitor General thus submits that
the dollar deposit of respondent Greg Bartelli is not entitled to the
protection of Section 113 of Central Bank Circular No. 960 and PD
No. 1246 against attachment, garnishment or other court processes. [6]
It would be unthinkable, that the questioned Section 113 of
Central Bank No. 960 would be used as a device by accused Greg
Bartelli for wrongdoing, and in so doing, acquitting the guilty at the
expense of the innocent.
Call it what it may but is there no conflict of legal policy
here? Dollar against Peso? Upholding the final and executory
judgment of the lower court against the Central Bank Circular
protecting the foreign depositor? Shielding or protecting the dollar
deposit of a transient alien depositor against injustice to a national
and victim of a crime? This situation calls for fairness legal tyranny.
We definitely cannot have both ways and rest in the belief that we
have served the ends of justice.
IN VIEW WHEREOF, the provisions of Section 113 of CB Circular
No. 960 and PD No. 1246, insofar as it amends Section 8 of R.A.
6426 are hereby held to be INAPPLICABLE to this case because of
its peculiar circumstances.Respondents are hereby REQUIRED to
COMPLY with the writ of execution issued in Civil Case No. 89-3214,
Karen Salvacion, et al. vs. Greg Bartelli y Northcott, by Branch CXLIV,
RTC Makati and to RELEASE to petitioners the dollar deposit of
respondent Greg Bartelli y Northcott in such amount as would satisfy
the judgment.
SO ORDERED.

In fine, the application of the law depends on the extent of its

justice. Eventually, if we rule that the questioned Section 113 of
Central Bank Circular No. 960 which exempts from attachment,
garnishment, or any other order or process of any court. Legislative
body, government agency or any administrative body whatsoever, is
applicable to a foreign transient, injustice would result especially to a
citizen aggrieved by a foreign guest like accused Greg Bartelli. This
would negate Article 10 of the New Civil Code which provides that in
case of doubt in the interpretation or application of laws, it is
presumed that the lawmaking body intended right and justice to
prevail. Ninguno non deue enriquecerse tortizerzmente con damo de
otro. Simply stated, when the statute is silent or ambiguous, this is
one of those fundamental solutions that would respond to the
vehement urge of conscience. (Padilla vs. Padilla, 74 Phil. 377)
 the country and, therefore, will maintain his deposit in the bank only for a
SALVACION V. CENTRAL BANK OF THE PHILIPPINES (G.R. NO. 94723) short time.
Respondent Greg Bartelli, as stated, is just a tourist or a transient. He
deposited his dollars with respondent China Banking Corporation only for
Facts: safekeeping during his temporary stay in the Philippines.
Greg Bartelli y Northcott, an American tourist, was charged with serious For the reasons stated above, the Solicitor General thus submits that the
Illegal detention and Rape of herein petitioner Karen Salvacion. Upon his dollar deposit of respondent Greg Bartelli is not entitled to the protection of
arrest, it was recovered from him among others, bank books and a dollar Section 113 of Central Bank Circular No. 960 and PD No. 1246 against
account with China Bank Corp. On the day of the hearing of his petition for attachment, garnishment or other court processes.
bail, he was able to escape from jail. Pending his arrest the criminal cases In fine, the application of the law depends on the extent of its justice.
were archived. Meanwhile, in the Civil Case against Bartelli, the Judge Eventually, if we rule that the questioned Section 113 of Central Bank Circular
granted the prayer of attachment and a notice of garnishment was served on
No. 960 which exempts from attachment, garnishment, or any other order or
China Bank. China Bank invoked R.A. No. 1405 and later on, Section 113 process of any court, legislative body, government agency or any
Central Bank Circular No. 960 to the effect that the dollar deposits of Bartelli administrative body whatsoever, is applicable to a foreign transient, injustice
are exempt from attachment, garnishment, or any other order or process of
would result especially to a citizen aggrieved by a foreign guest like accused
any court, legislative body, government agency or any administrative body Greg Bartelli. This would negate Article 10 of the New Civil Code which
whatsoever. This prompted petitioner’s counsel to inquire herein respondent provides that “in case of doubt in the interpretation or application of laws, it
whether the said circular has any exception or has been repealed/amended.
is presumed that the lawmaking body intended right and justice to prevail.
Respondent cited that the provision is absolute in application. Meanwhile, “Ninguno non deue enriquecerse tortizeramente con dano de otro.” Simply
the court has rendered judgment in favor of petitioners. Petitioners tried to stated, when the statute is silent or ambiguous, this is one of those
execute on Bartelli’s dollar deposit with China Bank but the bank invoked the
fundamental solutions that would respond to the vehement urge of
CB Circular. Thus, petitioners decided to seek relief from this Court. conscience.
IN VIEW WHEREOF, the provisions of Section 113 of CB Circular No. 960
Issue: and PD No. 1246, insofar as it amends Section 8 of R.A. No. 6426 are hereby
Whether or not the secrecy of foreign currency deposits should be made held to be INAPPLICABLE to this case because of its peculiar
applicable to a foreign transient? circumstances.
Ruling: NO.
This Court finds the petition to be partly meritorious.
It is worth mentioning that R.A. No. 6426 was enacted in 1983 or at a time
when the country’s economy was in a shambles; when foreign investments
were minimal and presumably, this was the reason why said statute was
enacted. But the realities of the present times show that the country has
recovered economically; and even if not, the questioned law still denies those
entitled to due process of law for being unreasonable and oppressive. The
intention of the questioned law may be good when enacted. The law failed to
anticipate the iniquitous effects producing outright injustice and inequality
such as the case before us.
In his Comment, the Solicitor General correctly opined, thus:
It is evident from the above [Whereas clauses] that the Offshore Banking
System and the Foreign Currency Deposit System were designed to draw
deposits from foreign lenders and investors (Vide second Whereas of PD No.
1034; third Whereas of PD No. 1035). It is these deposits that are induced by
the two laws and given protection and incentives by them. Obviously, the
foreign currency deposit made by a transient or a tourist is not the kind of
deposit encouraged by PD Nos. 1034 and 1035 and given incentives and
protection by said laws because such depositor stays only for a few days in
 developed secondary male characteristics and was diagnosed to have Congenital
Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted
SECOND DIVISION possess both male and female characteristics. She further alleged that she was
diagnosed to have clitoral hyperthropy in her early years and at age six, underwent
REPUBLIC OF THE PHILIPPINES, G.R. No. 166676 an ultrasound where it was discovered that she has small ovaries. At age thirteen,
Petitioner,
Present: tests revealed that her ovarian structures had minimized, she has stopped growing
and she has no breast or menstrual development. She then alleged that for all
QUISUMBING, J., Chairperson, interests and appearances as well as in mind and emotion, she has become a male
- versus - CARPIO MORALES,
TINGA, person. Thus, she prayed that her birth certificate be corrected such that her gender
VELASCO, JR., and be changed from female to male and her first name be changed from Jennifer to Jeff.
BRION, JJ.

Promulgated: The petition was published in a newspaper of general circulation for three
JENNIFER B. CAGANDAHAN,
Respondent. (3) consecutive weeks and was posted in conspicuous places by the sheriff of the
September 12, 2008 court. The Solicitor General entered his appearance and authorized the Assistant
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x Provincial Prosecutor to appear in his behalf.

DECISION
QUISUMBING, J.:
This is a petition for review under Rule 45 of the Rules of Court raising
purely questions of law and seeking a reversal of the Decision[1] dated January 12,
2005 of the Regional Trial Court (RTC), Branch 33 of Siniloan, Laguna, which granted
the Petition for Correction of Entries in Birth Certificate filed by Jennifer B.
Cagandahan and ordered the following changes of entries in Cagandahans birth
certificate: (1) the name Jennifer Cagandahan changed to Jeff Cagandahan and (2)
gender from female to male.
The facts are as follows.
On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for
Correction of Entries in Birth Certificate[2] before the RTC, Branch 33 of Siniloan,
Laguna.
In her petition, she alleged that she was born on January 13, 1981 and was
registered as a female in the Certificate of Live Birth but while growing up, she
To prove her claim, respondent testified and presented the testimony of Dr.
Michael Sionzon of the Department of Psychiatry, University of
the PhilippinesPhilippine General Hospital. Dr. Sionzon issued a medical certificate
stating that respondents condition is known as CAH. He explained that genetically
respondent is female but because her body secretes male hormones, her female
organs did not develop normally and she has two sex organs female and male. He
testified that this condition is very rare, that respondents uterus is not fully developed
because of lack of female hormones, and that she has no monthly period. He further
testified that respondents condition is permanent and recommended the change of
gender because respondent has made up her mind, adjusted to her chosen role as
male, and the gender change would be advantageous to her.
The RTC granted respondents petition in a Decision dated January 12,
2005 which reads:
The Court is convinced that petitioner has satisfactorily shown
that he is entitled to the reliefs prayed [for]. Petitioner has adequately
presented to the Court very clear and convincing proofs for the granting of
his petition. It was medically proven that petitioners body produces male
hormones, and first his body as well as his action and feelings are that of a
 male. He has chosen to be male. He is a normal person and wants to be
acknowledged and identified as a male.
WHEREFORE, premises considered, the Civil Register of Pakil,
Laguna is hereby ordered to make the following corrections in the birth
[c]ertificate of Jennifer Cagandahan upon payment of the prescribed fees:
a) By changing the name from Jennifer Cagandahan to JEFF
CAGANDAHAN; and
b) By changing the gender from female to MALE.
It is likewise ordered that petitioners school records, voters
registry, baptismal certificate, and other pertinent records are hereby
amended to conform with the foregoing corrected data.
SO ORDERED.[3]
Thus, this petition by the Office of the Solicitor General (OSG) seeking a
reversal of the abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE PETITION
CONSIDERING THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF
COURT HAVE NOT BEEN COMPLIED WITH; AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW
CHANGE OF SEX OR GENDER IN THE BIRTH CERTIFICATE,
WHILE RESPONDENTS MEDICAL CONDITION, i.e., CONGENITAL
ADRENAL HYPERPLASIA DOES NOT MAKE HER A MALE.[4]
Simply stated, the issue is whether the trial court erred in ordering the
correction of entries in the birth certificate of respondent to change her sex or gender,
from female to male, on the ground of her medical condition known as CAH, and her
name from Jennifer to Jeff, under Rules 103 and 108 of the Rules of Court.
The OSG contends that the petition below is fatally defective for non-
compliance with Rules 103 and 108 of the Rules of Court because while the local
civil registrar is an indispensable party in a petition for cancellation or correction of
entries under Section 3, Rule 108 of the Rules of Court, respondents petition before
the court a quo did not implead the local civil registrar.[5] The OSG further contends
respondents petition is fatally defective since it failed to state that respondent is
a bona fide resident of the province where the petition was filed for at least three (3)
years prior to the date of such filing as mandated under Section 2(b), Rule 103 of the
Rules of Court.[6] The OSG argues that Rule 108 does not allow change of sex or
gender in the birth certificate and respondents claimed medical condition known as
CAH does not make her a male.[7]
On the other hand, respondent counters that although the Local Civil
Registrar of Pakil, Laguna was not formally named a party in the Petition for
Correction of Birth Certificate, nonetheless the Local Civil Registrar was furnished a
copy of the Petition, the Order to publish on December 16, 2003 and all pleadings,
orders or processes in the course of the proceedings, [8] respondent is actually a male
person and hence his birth certificate has to be corrected to reflect his true
sex/gender,[9] change of sex or gender is allowed under Rule 108, [10] and respondent
substantially complied with the requirements of Rules 103 and 108 of the Rules of
Court.[11]
Rules 103 and 108 of the Rules of Court provide:
Rule 103
CHANGE OF NAME
SECTION 1. Venue. A person desiring to change his name shall present
the petition to the Regional Trial Court of the province in which he
resides, [or, in the City of Manila, to the Juvenile and Domestic Relations
Court].
SEC. 2. Contents of petition. A petition for change of name shall be signed
and verified by the person desiring his name changed, or some other
person on his behalf, and shall set forth:
 (a) That the petitioner has been a bona fide resident of the
province where the petition is filed for at least three (3) years
prior to the date of such filing;
(b) The cause for which the change of the petitioner's name is
sought;
(c) The name asked for.
SEC. 3. Order for hearing. If the petition filed is sufficient in form and
substance, the court, by an order reciting the purpose of the petition, shall
fix a date and place for the hearing thereof, and shall direct that a copy of
the order be published before the hearing at least once a week for three (3)
successive weeks in some newspaper of general circulation published in
the province, as the court shall deem best. The date set for the hearing
shall not be within thirty (30) days prior to an election nor within four (4)
months after the last publication of the notice.
SEC. 4. Hearing. Any interested person may appear at the hearing and
oppose the petition. The Solicitor General or the proper provincial or city
fiscal shall appear on behalf of the Government of the Republic.
SEC. 5. Judgment. Upon satisfactory proof in open court on the date fixed
in the order that such order has been published as directed and that the
allegations of the petition are true, the court shall, if proper and reasonable
cause appears for changing the name of the petitioner, adjudge that such
name be changed in accordance with the prayer of the petition.
SEC. 6. Service of judgment. Judgments or orders rendered in connection
with this rule shall be furnished the civil registrar of the municipality or
city where the court issuing the same is situated, who shall forthwith enter
the same in the civil register.
Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
SECTION 1. Who may file petition. Any person interested in any act,
event, order or decree concerning the civil status of persons which has
been recorded in the civil register, may file a verified petition for the
cancellation or correction of any entry relating thereto, with the Regional
Trial Court of the province where the corresponding civil registry is
located.
SEC. 2. Entries subject to cancellation or correction. Upon good and valid
grounds, the following entries in the civil register may be cancelled or
corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e)
judgments of annulments of marriage; (f) judgments declaring marriages
void from the beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j) naturalization; (k) election, loss
or recovery of citizenship; (l) civil interdiction; (m) judicial determination
of filiation; (n) voluntary emancipation of a minor; and (o) changes of
name.
SEC. 3. Parties. When cancellation or correction of an entry in the civil
register is sought, the civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made parties to the
proceeding.
SEC. 4. Notice and publication. Upon the filing of the petition, the court
shall, by an order, fix the time and place for the hearing of the same, and
cause reasonable notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be published once a week
for three (3) consecutive weeks in a newspaper of general circulation in
the province.
SEC. 5. Opposition. The civil registrar and any person having or claiming
any interest under the entry whose cancellation or correction is sought
may, within fifteen (15) days from notice of the petition, or from the last
date of publication of such notice, file his opposition thereto.
SEC. 6. Expediting proceedings. The court in which the proceedings is
brought may make orders expediting the proceedings, and may also grant
preliminary injunction for the preservation of the rights of the parties
pending such proceedings.
SEC. 7. Order. After hearing, the court may either dismiss the petition or
issue an order granting the cancellation or correction prayed for. In either
case, a certified copy of the judgment shall be served upon the civil
registrar concerned who shall annotate the same in his record.
The OSG argues that the petition below is fatally defective for non-
compliance with Rules 103 and 108 of the Rules of Court because respondents
petition did not implead the local civil registrar. Section 3, Rule 108 provides that the
civil registrar and all persons who have or claim any interest which would be
affected thereby shall be made parties to the proceedings. Likewise, the local civil
registrar is required to be made a party in a proceeding for the correction of name in
the civil registry. He is an indispensable party without whom no final determination
of the case can be had.[12] Unless all possible indispensable parties were duly notified
of the proceedings, the same shall be considered as falling much too short of the
requirements of the rules.[13] The corresponding petition should also implead as
respondents the civil registrar and all other persons who may have or may claim to
have any interest that would be affected thereby.[14] Respondent, however, invokes
Section 6,[15] Rule 1 of the Rules of Court which states that courts shall construe the
Rules liberally to promote their objectives of securing to the parties a just, speedy
and inexpensive disposition of the matters brought before it. We agree that there is
substantial compliance with Rule 108 when respondent furnished a copy of the
petition to the local civil registrar.
The determination of a persons sex appearing in his birth certificate is a
legal issue and the court must look to the statutes. In this connection, Article 412 of
the Civil Code provides:
ART. 412. No entry in a civil register shall be changed or corrected
without a judicial order.
Together with Article 376[16] of the Civil Code, this provision was amended
by Republic Act No. 9048[17] in so far as clerical or typographical errors are
involved. The correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In effect, Rep.
Act No. 9048 removed from the ambit of Rule 108 of the Rules of Court the
correction of such errors. Rule 108 now applies only to substantial changes and
corrections in entries in the civil register.[18]
Under Rep. Act No. 9048, a correction in the civil registry involving the
change of sex is not a mere clerical or typographical error. It is a substantial change
for which the applicable procedure is Rule 108 of the Rules of Court.[19]
The entries envisaged in Article 412 of the Civil Code and correctable
under Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of
the Civil Code:
ART. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments
of marriage; (6) judgments declaring marriages void from the beginning;
(7) legitimations; (8) adoptions; (9) acknowledgments of natural children;
(10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil
interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the
Civil Code include even those that occur after birth.[20]
Respondent undisputedly has CAH. This condition causes the early or
inappropriate appearance of male characteristics. A person, like respondent, with this
condition produces too much androgen, a male hormone. A newborn who has XX
chromosomes coupled with CAH usually has a (1) swollen clitoris with the urethral
opening at the base, an ambiguous genitalia often appearing more male than female;
(2) normal internal structures of the female reproductive tract such as the ovaries,
uterus and fallopian tubes; as the child grows older, some features start to appear
male, such as deepening of the voice, facial hair, and failure to menstruate at
puberty. About 1 in 10,000 to 18,000 children are born with CAH.
CAH is one of many conditions[21] that involve intersex anatomy. During
the twentieth century, medicine adopted the term intersexuality to apply to human
beings who cannot be classified as either male or female. [22] The term is now of
widespread use. According to Wikipedia, intersexuality is the state of a living thing
of a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex
characteristics are determined to be neither exclusively male nor female. An
organism with intersex may have biological characteristics of both male and female
sexes.
Intersex individuals are treated in different ways by different cultures. In
most societies, intersex individuals have been expected to conform to either a male
or female gender role.[23] Since the rise of modern medical science in Western
societies, some intersex people with ambiguous external genitalia have had their
genitalia surgically modified to resemble either male or female genitals. [24] More
commonly, an intersexindividual is considered as suffering from a disorder which is
almost always recommended to be treated, whether by surgery and/or by taking
lifetime medication in order to mold the individual as neatly as possible into the
category of either male or female.
In deciding this case, we consider the compassionate calls for recognition of
the various degrees of intersex as variations which should not be subject to outright
denial. It has been suggested that there is some middle ground between the sexes, a
no-mans land for those individuals who are neither truly male nor truly
female.[25] The current state of Philippine statutes apparently compels that a person
be classified either as a male or as a female, but this Court is not controlled by mere
appearances when nature itself fundamentally negates such rigid classification.
In the instant case, if we determine respondent to be a female, then there is
no basis for a change in the birth certificate entry for gender. But if we determine,
based on medical testimony and scientific development
showing the respondent to be other than female, then a change in the
subjects birth certificate entry is in order.
Biologically, nature endowed respondent with a mixed (neither consistently
and categorically female nor consistently and categorically male)
composition. Respondent has female (XX) chromosomes. However, respondents
body system naturally produces high levels of male hormones (androgen). As a
result, respondent has ambiguous genitalia and the phenotypic features of a male.
Ultimately, we are of the view that where the person is biologically or
naturally intersex the determining factor in his gender classification would be what
the individual, like respondent, having reached the age of majority, with good reason
thinks of his/her sex. Respondent here thinks of himself as a male and considering
that his body produces high levels of male hormones (androgen) there is
preponderant biological support for considering him as being male. Sexual
development in cases of intersex persons makes the gender classification at birth
inconclusive. It is at maturity that the gender of such persons, like respondent, is
fixed.
Respondent here has simply let nature take its course and has not taken
unnatural steps to arrest or interfere with what he was born with. And accordingly,
he has already ordered his life to that of a male.Respondent could have undergone
treatment and taken steps, like taking lifelong medication,[26] to force his body into
the categorical mold of a female but he did not. He chose not to do so. Nature has
instead taken its due course in respondents development to reveal more fully his
male characteristics.
In the absence of a law on the matter, the Court will not dictate on
respondent concerning a matter so innately private as ones sexuality and lifestyle
preferences, much less on whether or not to undergo medical treatment to reverse the
male tendency due to CAH. The Court will not consider respondent as having erred
in not choosing to undergo treatment in order to become or remain as a
female. Neither will the Court force respondent to undergo treatment and to take
medication in order to fit the mold of a female, as society commonly currently knows
this gender of the human species. Respondent is the one who has to live with
his intersexanatomy. To him belongs the human right to the pursuit of happiness and
of health. Thus, to him should belong the primordial choice of what courses of action
to take along the path of his sexual development and maturation. In the absence of
evidence that respondent is an incompetent[27] and in the absence of evidence to
show that classifying respondent as a male will harm other members of society who
are equally entitled to protection under the law, the Court affirms as valid and
justified the respondents position and his personal judgment of being a male.
In so ruling we do no more than give respect to (1) the diversity of nature;
and (2) how an individual deals with what nature has handed out. In other words, we
respect respondents congenital condition and his mature decision to be a male. Life
is already difficult for the ordinary person. We cannot but respect how respondent
deals with his unordinary state and thus help make his life easier, considering the
unique circumstances in this case.
As for respondents change of name under Rule 103, this Court has held that
a change of name is not a matter of right but of judicial discretion, to be exercised in
the light of the reasons adduced and the consequences that will follow. [28] The trial
courts grant of respondents change of name from Jennifer to Jeff implies a change of
a feminine name to a masculine name. Considering the consequence that respondents
change of name merely recognizes his preferred gender, we find merit in respondents
change of name. Such a change will conform with the change of the entry in his birth
certificate from female to male.
WHEREFORE, the Republics petition is DENIED. The Decision
dated January 12, 2005 of the Regional Trial Court, Branch 33 of Siniloan, Laguna,
is AFFIRMED. No pronouncement as to costs.
Republic vs. Cagandahan
GR. No. 166676, September 12, 2008
FACTS:
Jennifer Cagandahan was registered as a female in her Certificate of Live
Birth. During her childhood years, she suffered from clitoral hypertrophy
and was later on diagnosed that her ovarian structures had minimized.
She likewise has no breast nor menstruation. Subsequently, she was
diagnosed of having Congenital Adrenal Hyperplasia (CAH), a condition
where those afflicted possess secondary male characteristics because of
too much secretion of male hormones, androgen. According to her, for
all interests and appearances as well as in mind and emotion, she has
become a male person. She filed a petition at RTC Laguna for Correction
of Entries in her Birth Certificate such that her gender or sex be changed
to male and her first name be changed to Jeff.
ISSUE: WON correction of entries in her birth certificate should be
granted.
HELD:
The Court considered the compassionate calls for recognition of the
various degrees of intersex as variations which should not be subject to
outright denial. SC is of the view that where the person is biologically or
naturally intersex the determining factor in his gender classification
would be what the individual, having reached the age of majority, with
good reason thinks of his/her sex. As in this case, respondent, thinks of
himself as a male and considering that his body produces high levels of
male hormones, there is preponderant biological support for considering
him as being a male. Sexual development in cases of intersex persons
makes the gender classification at birth inconclusive. It is at maturity that
the gender of such persons, like respondent, is fixed.
REPUBLIC OF THE PHILIPPINES vs. JENNIFER CAGANDAHAN
FACTS: Jennifer Cagandahan filed before the Regional Trial
Court Branch 33 of Siniloan, Laguna a Petition for Correction of Entries in
Birth Certificate of her name from Jennifer B. Cagandahan to
Jeff Cagandahan and her gender from female to male. It appearing that
Jennifer Cagandahan is sufferingfrom Congenital Adrenal Hyperplasia which
is a rare medical condition where afflicted persons possess both male and
female characteristics. Jennifer Cagandahan grew up with secondarymale
characteristics. To further her petition, Cagandahan presented in court
the medical certificateevidencing that she is suffering
from Congenital Adrenal Hyperplasia which certificate is issued by Dr.
Michael Sionzon of the Department of Psychiatry, University of the
Philippines-Philippine General Hospital, who, in addition, explained that
“Cagandahan genetically is female but because her body secretes male
hormones, her female organs did not develop normally, thus has organs of
both male and female.” The lower court decided in her favor but the Office of
the Solicitor General appealed before the Supreme Court invoking that the
same was a violation of Rules 103 and 108 of the Rules of Court because the
said petition did not implead the local civil registrar.
ISSUE:
Whether or not Cagandahan’s sex as appearing in her birth certificate be
changed.
RULING:
The Supreme Court affirmed the decision of the lower court. It held that, in
deciding the case, the Supreme Court considered “the compassionate calls for
recognition of the various degrees of intersex as variations which should not
be subject to outright denial.” The Supreme Court made use of the
availale evidence presented in court including the fact that private
respondent thinks of himself as a male and as to the statement made by the
doctor that Cagandahan’s body produces high levels of male hormones
(androgen), which is preponderant biological support for considering him as
being male.”
The Supreme Court further held that they give respect to (1) the diversity of
nature; and (2) how an individual deals with what nature has handed out.
That is, the Supreme Court respects the respondent’s congenital condition
and his mature decision to be a male. Life is already difficult for the ordinary
person. The Court added that a change of name is not a matter of right but of
judicial discretion, to be exercised in the light of the reasons and the
consequences that will follow.

G.R. No. 174689 October 22, 2007
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
When God created man, He made him in the likeness of God; He
created them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she
heard voices coming from inside the bamboo. "Oh North Wind!
North Wind! Please let us out!," the voices said. She pecked the
reed once, then twice. All of a sudden, the bamboo cracked and
slit open. Out came two human beings; one was a male and the
other was a female. Amihan named the man "Malakas" (Strong)
and the woman "Maganda" (Beautiful). (The Legend of Malakas
and Maganda)
When is a man a man and when is a woman a woman? In particular,
does the law recognize the changes made by a physician using scalpel,
drugs and counseling with regard to a person’s sex? May a person
successfully petition for a change of name and sex appearing in the birth
certificate to reflect the result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a
petition for the change of his first name and sex in his birth certificate in
the Regional Trial Court of Manila, Branch 8. The petition, docketed as
SP Case No. 02-105207, impleaded the civil registrar of Manila as
respondent.
Petitioner alleged in his petition that he was born in the City of Manila to
the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4,
1962. His name was registered as "Rommel Jacinto Dantes Silverio" in
his certificate of live birth (birth certificate). His sex was registered as
"male."
He further alleged that he is a male transsexual, that is, "anatomically
male but feels, thinks and acts as a female" and that he had always
identified himself with girls since childhood.1 Feeling trapped in a man’s
body, he consulted several doctors in the United States. He underwent
psychological examination, hormone treatment and breast augmentation.
His attempts to transform himself to a "woman" culminated on January
27, 2001 when he underwent sex reassignment surgery2 in Bangkok,
Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr.,
a plastic and reconstruction surgeon in the Philippines, who issued a
medical certificate attesting that he (petitioner) had in fact undergone the
procedure.
From then on, petitioner lived as a female and was in fact engaged to be
married. He then sought to have his name in his birth certificate changed
from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."
An order setting the case for initial hearing was published in the People’s
Journal Tonight, a newspaper of general circulation in Metro Manila, for
three consecutive weeks.3 Copies of the order were sent to the Office of
the Solicitor General (OSG) and the civil registrar of Manila.
On the scheduled initial hearing, jurisdictional requirements were
established. No opposition to the petition was made.
During trial, petitioner testified for himself. He also presented Dr. Reysio-
Cruz, Jr. and his American fiancé, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision4 in favor of petitioner.
Its relevant portions read:
Petitioner filed the present petition not to evade any law or
judgment or any infraction thereof or for any unlawful motive but
solely for the purpose of making his birth records compatible with
his present sex.
The sole issue here is whether or not petitioner is entitled to the
relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition would
be more in consonance with the principles of justice and equity.
With his sexual [re-assignment], petitioner, who has always felt,
 thought and acted like a woman, now possesses the physique of
a female. Petitioner’s misfortune to be trapped in a man’s body is
not his own doing and should not be in any way taken against
him.
Likewise, the [c]ourt believes that no harm, injury [or] prejudice
will be caused to anybody or the community in granting the
petition. On the contrary, granting the petition would bring the
much-awaited happiness on the part of the petitioner and her
[fiancé] and the realization of their dreams.
Finally, no evidence was presented to show any cause or ground
to deny the present petition despite due notice and publication
thereof. Even the State, through the [OSG] has not seen fit to
interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the
petition and ordering the Civil Registrar of Manila to change the
entries appearing in the Certificate of Birth of [p]etitioner,
specifically for petitioner’s first name from "Rommel Jacinto"
to MELY and petitioner’s gender from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic), thru the
OSG, filed a petition for certiorari in the Court of Appeals.6 It alleged that
there is no law allowing the change of entries in the birth certificate by
reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered a decision8 in
favor of the Republic. It ruled that the trial court’s decision lacked legal
basis. There is no law allowing the change of either name or sex in the
certificate of birth on the ground of sex reassignment through surgery.
Thus, the Court of Appeals granted the Republic’s petition, set aside the
decision of the trial court and ordered the dismissal of SP Case No. 02-
105207. Petitioner moved for reconsideration but it was denied.9 Hence,
this petition.
Petitioner essentially claims that the change of his name and sex in his
birth certificate is allowed under Articles 407 to 413 of the Civil Code,
Rules 103 and 108 of the Rules of Court and RA 9048.10
The petition lacks merit.
A Person’s First Name Cannot Be Changed On the Ground of Sex
Reassignment
Petitioner invoked his sex reassignment as the ground for his petition for
change of name and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law or
judgment or any infraction thereof or for any unlawful motive
but solely for the purpose of making his birth records
compatible with his present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical features of a
female, he became entitled to the civil registry changes sought. We
disagree.
The State has an interest in the names borne by individuals and entities
for purposes of identification.11 A change of name is a privilege, not a
right.12 Petitions for change of name are controlled by statutes.13 In this
connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without
judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law).
In particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error
and Change of First Name or Nickname. – No entry in a civil
register shall be changed or corrected without a judicial order,
except for clerical or typographical errors and change of first
name or nickname which can be corrected or changed by the
concerned city or municipal civil registrar or consul general in
accordance with the provisions of this Act and its implementing
rules and regulations.
RA 9048 now governs the change of first name.14 It vests the power and
authority to entertain petitions for change of first name to the city or
municipal civil registrar or consul general concerned. Under the law,
therefore, jurisdiction over applications for change of first name is now
primarily lodged with the aforementioned administrative officers. The
intent and effect of the law is to exclude the change of first name from the
coverage of Rules 103 (Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the Rules of Court, until and
unless an administrative petition for change of name is first filed and
subsequently denied.15 It likewise lays down the corresponding
venue,16 form17 and procedure. In sum, the remedy and the proceedings
regulating change of first name are primarily administrative in nature, not
judicial.
RA 9048 likewise provides the grounds for which change of first name
may be allowed:
SECTION 4. Grounds for Change of First Name or Nickname. –
The petition for change of first name or nickname may be allowed
in any of the following cases:
(1) The petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult to write or
pronounce;
(2) The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly
known by that first name or nickname in the community; or
(3) The change will avoid confusion.
Petitioner’s basis in praying for the change of his first name was his sex
reassignment. He intended to make his first name compatible with the
sex he thought he transformed himself into through surgery. However, a
change of name does not alter one’s legal capacity or civil status.18 RA
9048 does not sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing petitioner’s first
name for his declared purpose may only create grave complications in
the civil registry and the public interest.
Before a person can legally change his given name, he must present
proper or reasonable cause or any compelling reason justifying such
change.19 In addition, he must show that he will be prejudiced by the use
of his true and official name.20 In this case, he failed to show, or even
allege, any prejudice that he might suffer as a result of using his true and
official name.
In sum, the petition in the trial court in so far as it prayed for the change
of petitioner’s first name was not within that court’s primary jurisdiction as
the petition should have been filed with the local civil registrar concerned,
assuming it could be legally done. It was an improper remedy because
the proper remedy was administrative, that is, that provided under RA
9048. It was also filed in the wrong venue as the proper venue was in the
Office of the Civil Registrar of Manila where his birth certificate is kept.
More importantly, it had no merit since the use of his true and official
name does not prejudice him at all. For all these reasons, the Court of
Appeals correctly dismissed petitioner’s petition in so far as the change of
his first name was concerned.
No Law Allows The Change of Entry In The Birth Certificate As To
Sex On the Ground of Sex Reassignment
The determination of a person’s sex appearing in his birth certificate is a
legal issue and the court must look to the statutes.21 In this connection,
Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or
corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision was amended
by RA 9048 in so far as clerical or typographical errors are involved. The
correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In
effect, RA 9048 removed from the ambit of Rule 108 of the Rules of
Court the correction of such errors.22 Rule 108 now applies only to
substantial changes and corrections in entries in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:
SECTION 2. Definition of Terms. – As used in this Act, the
following terms shall mean:
xxx xxx xxx
(3) "Clerical or typographical error" refers to a mistake
committed in the performance of clerical work in writing,
copying, transcribing or typing an entry in the civil register
that is harmless and innocuous, such as misspelled name
or misspelled place of birth or the like, which is visible to
the eyes or obvious to the understanding, and can be
corrected or changed only by reference to other existing
record or records: Provided, however, That no correction
must involve the change of nationality, age, status
or sex of the petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry involving the change of
sex is not a mere clerical or typographical error. It is a substantial change
for which the applicable procedure is Rule 108 of the Rules of Court.
The entries envisaged in Article 412 of the Civil Code and correctable
under Rule 108 of the Rules of Court are those provided in Articles 407
and 408 of the Civil Code:24
ART. 407. Acts, events and judicial decrees concerning the civil
status of persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void
from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11)
loss, or (12) recovery of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15) voluntary emancipation of a
minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the
Civil Code include even those that occur after birth.25 However, no
reasonable interpretation of the provision can justify the conclusion that it
covers the correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults or
error from" while to change means "to replace something with something
else of the same kind or with something that serves as a
substitute."26 The birth certificate of petitioner contained no error. All
entries therein, including those corresponding to his first name and sex,
were all correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of
certain acts (such as legitimations, acknowledgments of illegitimate
children and naturalization), events (such as births, marriages,
naturalization and deaths) and judicial decrees (such as legal
separations, annulments of marriage, declarations of nullity of marriages,
adoptions, naturalization, loss or recovery of citizenship, civil interdiction,
judicial determination of filiation and changes of name). These acts,
events and judicial decrees produce legal consequences that touch upon
the legal capacity, status and nationality of a person. Their effects are
expressly sanctioned by the laws. In contrast, sex reassignment is not
among those acts or events mentioned in Article 407. Neither is it
recognized nor even mentioned by any law, expressly or impliedly.
"Status" refers to the circumstances affecting the legal situation (that is,
the sum total of capacities and incapacities) of a person in view of his
age, nationality and his family membership.27
The status of a person in law includes all his personal qualities
and relations, more or less permanent in nature, not ordinarily
terminable at his own will, such as his being legitimate or
illegitimate, or his being married or not. The comprehensive
term status… include such matters as the beginning and end of
legal personality, capacity to have rights in general, family
relations, and its various aspects, such as birth, legitimation,
adoption, emancipation, marriage, divorce, and sometimes even
succession.28 (emphasis supplied)
A person’s sex is an essential factor in marriage and family relations. It is
a part of a person’s legal capacity and civil status. In this connection,
Article 413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil
status shall be governed by special laws.
But there is no such special law in the Philippines governing sex
reassignment and its effects. This is fatal to petitioner’s cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. – The declaration
of the physician or midwife in attendance at the birth or, in default
thereof, the declaration of either parent of the newborn child, shall
be sufficient for the registration of a birth in the civil register. Such
declaration shall be exempt from documentary stamp tax and
shall be sent to the local civil registrar not later than thirty days
after the birth, by the physician or midwife in attendance at the
birth or by either parent of the newborn child.
In such declaration, the person above mentioned shall certify to
the following facts: (a) date and hour of birth; (b) sex and
nationality of infant; (c) names, citizenship and religion of parents
or, in case the father is not known, of the mother alone; (d) civil
status of parents; (e) place where the infant was born; and (f)
 such other data as may be required in the regulations to be
issued.
xxx xxx xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a historical record of the
facts as they existed at the time of birth.29Thus, the sex of a person is
determined at birth, visually done by the birth attendant (the physician or
midwife) by examining the genitals of the infant. Considering that there is
no law legally recognizing sex reassignment, the determination of a
person’s sex made at the time of his or her birth, if not attended by
error,30 is immutable.31
When words are not defined in a statute they are to be given their
common and ordinary meaning in the absence of a contrary legislative
intent. The words "sex," "male" and "female" as used in the Civil Register
Law and laws concerning the civil registry (and even all other laws)
should therefore be understood in their common and ordinary usage,
there being no legislative intent to the contrary. In this connection, sex is
defined as "the sum of peculiarities of structure and function that
distinguish a male from a female"32 or "the distinction between male and
female."33Female is "the sex that produces ova or bears young"34 and
male is "the sex that has organs to produce spermatozoa for fertilizing
ova."35 Thus, the words "male" and "female" in everyday understanding
do not include persons who have undergone sex reassignment.
Furthermore, "words that are employed in a statute which had at the time
a well-known meaning are presumed to have been used in that sense
unless the context compels to the contrary."36 Since the statutory
language of the Civil Register Law was enacted in the early 1900s and
remains unchanged, it cannot be argued that the term "sex" as used then
is something alterable through surgery or something that allows a post-
operative male-to-female transsexual to be included in the category
"female."
For these reasons, while petitioner may have succeeded in altering his
body and appearance through the intervention of modern surgery, no law
authorizes the change of entry as to sex in the civil registry for that
reason. Thus, there is no legal basis for his petition for the correction or
change of the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex
Be Changed on the Ground of Equity
The trial court opined that its grant of the petition was in consonance with
the principles of justice and equity. It believed that allowing the petition
would cause no harm, injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and wide-ranging
legal and public policy consequences. First, even the trial court itself
found that the petition was but petitioner’s first step towards his eventual
marriage to his male fiancé. However, marriage, one of the most sacred
social institutions, is a special contract of permanent union between a
man and a woman.37 One of its essential requisites is the legal capacity
of the contracting parties who must be a male and a female.38 To grant
the changes sought by petitioner will substantially reconfigure and greatly
alter the laws on marriage and family relations. It will allow the union of a
man with another man who has undergone sex reassignment (a male-to-
female post-operative transsexual). Second, there are various laws which
apply particularly to women such as the provisions of the Labor Code on
employment of women,39 certain felonies under the Revised Penal
Code40 and the presumption of survivorship in case of calamities under
Rule 131 of the Rules of Court,41 among others. These laws underscore
the public policy in relation to women which could be substantially
affected if petitioner’s petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or court
shall decline to render judgment by reason of the silence, obscurity or
insufficiency of the law." However, it is not a license for courts to engage
in judicial legislation. The duty of the courts is to apply or interpret the
law, not to make or amend it.
In our system of government, it is for the legislature, should it choose to
do so, to determine what guidelines should govern the recognition of the
effects of sex reassignment. The need for legislative guidelines becomes
particularly important in this case where the claims asserted are statute-
based.
To reiterate, the statutes define who may file petitions for change of first
name and for correction or change of entries in the civil registry, where
they may be filed, what grounds may be invoked, what proof must be
presented and what procedures shall be observed. If the legislature
intends to confer on a person who has undergone sex reassignment the
privilege to change his name and sex to conform with his reassigned sex,
it has to enact legislation laying down the guidelines in turn governing the
conferment of that privilege.
It might be theoretically possible for this Court to write a protocol on when
a person may be recognized as having successfully changed his sex.
However, this Court has no authority to fashion a law on that matter, or
on anything else. The Court cannot enact a law where no law exists. It
can only apply or interpret the written word of its co-equal branch of
government, Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life of
happiness, contentment and [the] realization of their dreams." No
argument about that. The Court recognizes that there are people whose
preferences and orientation do not fit neatly into the commonly
recognized parameters of social convention and that, at least for them,
life is indeed an ordeal. However, the remedies petitioner seeks involve
questions of public policy to be addressed solely by the legislature, not by
the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
FACTS:
Rommel Jacinto Dantes Silverio having undergone a sex reassignment
surgery, sought to have his first name changed from Rommel to Mely, and
his sex from male to female. Trial court granted his petition. CA, however,
upon appeal filed by the Republic of the Philippines thru the OSG, reversed
the trial court decision, holding that there is no law allowing the change of
entries of either name or sex in the birth certificate by reason of sex
alteration.
ISSUE:
Whether or not Rommel's first name and sex be changed on the ground of
sex reassignment.
RULING: No. There is no law authorizes the change of entry as of sex and
first name through the intervention of sex reassignment surgery. Article 376
of the Civil Code as amended by RA 9048 (Clerical Error Law), together with
Article 412 of the same Code, change of name or sex in the birth certificate is
allowed by the courts so long as clerical or typographical errors are involved.
Changes sought by Silverio will have serious legal and public policy
consequences. To grant this petition filed by Silverio will greatly alter the laws
on marriage and family relations. Second, there will be major changes in
statutes that underscore the public policy in relation to women.
FACTS:
On November 26, 2002, Silverio field a petition for the change of his first
name “Rommel Jacinto” to “Mely” and his sex from male to female in his
birth certificate in the RTC of Manila, Branch 8, for reason of his sex
reassignment. He alleged that he is a male transsexual, he is anatomically
male but thinks and acts like a female. The Regional Trial Court ruled in
favor of him, explaining that it is consonance with the principle of justice and
equality.
The Republic, through the OSG, filed a petition for certiorari in the Court of
Appeals alleging that there is no law allowing change of name by reason of
sex alteration. Petitioner filed a reconsideration but was denied. Hence, this
petition.
ISSUE:
WON change in name and sex in birth certificate are allowed by reason of sex
reassignment.
HELD:
No. A change of name is a privilege and not a right. It may be allowed in cases
where the name is ridiculous, tainted with dishonor, or difficult to pronounce
or write; a nickname is habitually used; or if the change will avoid confusion.
The petitioner’s basis of the change of his name is that he intends his first
name compatible with the sex he thought he transformed himself into thru
surgery. The Court says that his true name does not prejudice him at all, and
no law allows the change of entry in the birth certificate as to sex on the
ground of sex reassignment. The Court denied the petition.