REPUBLIC ACT No.
75 shall be deemed void, and every person by whom the same is obtained
AN ACT TO PENALIZE ACTS WHICH WOULD IMPAIR THE PROPER
OBSERVANCE BY THE REPUBLIC AND INHABITANTS OF THE
PHILIPPINES OF THE IMMUNITIES, RIGHT, AND PRIVILEGES OF
DULY ACCREDITED FOREIGN DIPLOMATIC AND CONSULAR
AGENTS IN THE PHILIPPINES
Section 1. Any person who shall falsely assume and take upon himself
to act as a diplomatic, consular, or any other official of a foreign
government duly accredited as such to the Government of the Republic
of the Philippines with intent to defraud such foreign government or the
Government of the Philippines, or any person, or in such pretended
character shall demand or obtain, or attempt to obtain from person or
from said foreign government or the Government of the Philippines, or
from any officer thereof, any money, paper, document, or other thing, of
value, shall be fined not more than five thousand pesos, or shall be
imprisoned for not more than five years, or both, in addition to the
penalties that may be imposed under the Revised Penal Code.
Section 2. Any person, other than a diplomatic or consular officer or
attaché, who shall act in the Republic of the Philippines as an agent of a
foreign government without prior notification to, and registration with, the
Secretary of Foreign Affairs shall be fined not more than five thousand
pesos, or imprisoned not more than five years, or both, aside from other
penalties that may be imposed by law.
Section 3. Any person, who with intent to deceive or mislead, within the
jurisdiction of the Republic, wear any naval, military, police, or other
official uniform, decoration, or regalia of any foreign State, nation or
government with which the Republic of the Philippines is at peace, or any
uniform, decoration or regalia so nearly resembling the same as to be
calculated to deceive, unless such wearing thereof be authorized by such
State, nation, or government, shall upon conviction, be punished by a fine
not exceeding two hundred pesos or imprisonment not exceeding six
months, or by both such fine and imprisonment. 1awphil-itc-alf
Section 4. Any writ or process sued out or prosecuted by any person in
any court of the Republic of the Philippines, or by any judge or justice,
whereby the person of any ambassador or public minister of any foreign
State, authorized and received as such by the President, or any domestic
or domestic servant of any such ambassador or minister is arrested or
imprisoned, or his goods or chattels are distrained, seized, or attached,
or prosecuted, whether as party or as attorney, and every officer
concerned in executing it, shall upon conviction, be punished by
imprisonment for not more than three years and a fine of not exceeding
two hundred pesos in the discretion of the court.
Section 5. The provisions of section four hereof shall not apply to any
case where the person against whom the process is issued is a citizen or
inhabitant of the Republic of the Philippines, in the service of an
ambassador or a public minister, and the process is founded upon a debt
contracted before he entered upon such service; nor shall the said
section apply to any case where the person against whom the process is
issued is a domestic servant of an ambassador or a public minister,
unless the name of the servant has, before the issuing thereof, been
registered in the Department of Foreign Affairs, and transmitted by the
Secretary of Foreign Affairs to the Chief of Police of the City of Manila,
who shall upon receipt thereof post the same in some public place in his
office. All persons shall have resort to the list of names so posted in the
office of the Chief of Police, and take copies without fee.
Section 6. Any person who assaults, strikes, wounds, imprisons or in any
other manner offers violence to the person of an ambassador or a public
minister, in violation of the law of nations, shall be imprisoned not more
than three years, and fined not exceeding two hundred pesos, in the
discretion of the court, in addition to the penalties that may be imposed
under the Revised Penal Code.
Section 7. The provisions of this Act shall be applicable only in case
where the country of the diplomatic or consular representative adversely
affected has provided for similar protection to duly accredited diplomatic
or consular representatives of the Republic of the Philippines by
prescribing like or similar penalties for like or similar offenses herein
contained.itc-alf
Section 8. This Act shall take effect upon its approval.
Approved: October 21, 1946
G.R. No. L-65366 November 9, 1983
JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,
vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.
Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for petitioner.
The Solicitor General for respondent.
FERNANDO, C.J.:ñé+.£ªwph!1
This Court, in this case of first impression, at least as to some aspects, is called upon to
delineate the boundaries of the protected area of the cognate rights to free speech and
peaceable assembly, 1 against an alleged intrusion by respondent Mayor Ramon Bagatsing.
Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit
from the City of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00
in the afternoon, starting from the Luneta, a public park, to the gates of the United States
Embassy, hardly two blocks away. Once there, and in an open space of public property, a short
program would be held. 2 During the course of the oral argument, 3 it was stated that after the
delivery of two brief speeches, a petition based on the resolution adopted on the last day by the
International Conference for General Disbarmament, World Peace and the Removal of All
Foreign Military Bases held in Manila, would be presented to a representative of the Embassy or
any of its personnel who may be there so that it may be delivered to the United States
Ambassador. The march would be attended by the local and foreign participants of such
conference. There was likewise an assurance in the petition that in the exercise of the
constitutional rights to free speech and assembly, all the necessary steps would be taken by it
"to ensure a peaceful march and rally." 4
The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory
injunction on October 20, 1983 was due to the fact that as of that date, petitioner had not been
informed of any action taken on his request on behalf of the organization to hold a rally. On
October 25, 1983, the answer of respondent Mayor was filed on his behalf by Assistant Solicitor
General Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was denied.
Petitioner was unaware of such a fact as the denial was sent by ordinary mail. The reason for
refusing a permit was due to police intelligence reports which strongly militate against the
advisability of issuing such permit at this time and at the place applied for." 6 To be more
specific, reference was made to persistent intelligence reports affirm[ing] the plans of
subversive/criminal elements to infiltrate and/or disrupt any assembly or congregations where a
large number of people is expected to attend." 7 Respondent Mayor suggested, however, in
accordance with the recommendation of the police authorities, that "a permit may be issued for
the rally if it is to be held at the Rizal Coliseum or any other enclosed area where the safety of
the participants themselves and the general public may be ensured." 8
The oral argument was heard on October 25, 1983, the very same day the answer was filed.
The Court then deliberated on the matter. That same afternoon, a minute resolution was issued
by the Court granting the mandatory injunction prayed for on the ground that there was no
showing of the existence of a clear and present danger of a substantive evil that could justify the
denial of a permit. On this point, the Court was unanimous, but there was a dissent by Justice
Aquino on the ground that the holding of a rally in front of the US Embassy would be violative of
Ordinance No. 7295 of the City of Manila. The last sentence of such minute resolution reads:
"This resolution is without prejudice to a more extended opinion." 9 Hence this detailed
exposition of the Court's stand on the matter.
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free
speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite
explicit: "No law shall be passed abridging the freedom of speech, or of the press, or the right of
the people peaceably to assemble and petition the Government for redress of
grievances." 10 Free speech, like free press, may be Identified with the liberty to discuss publicly
and truthfully any matter of public concern without censorship or punishment. 11 There is to be
then no previous restraint on the communication of views or subsequent liability whether in libel
suits, 12 prosecution for sedition, 13 or action for damages, 14 or contempt proceedings 15 unless
there be a clear and present danger of a substantive evil that [the State] has a right to
prevent." 16 Freedom of assembly connotes the right people to meet peaceably for consultation
and discussion of matters Of public concern.17 It is entitled to be accorded the utmost deference
and respect. It is hot to be limited, much less denied, except on a showing, as 's the case with
freedom of expression, of a clear and present danger of a substantive evil that the state has a
right to prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had occasion to stress
that it is a necessary consequence of our republican institutions and complements the right of
free speech. 19 To paraphrase opinion of Justice Rutledge speaking for the majority of
the American Supreme Court Thomas v. Collins, 20 it was not by accident or coincidence that the
right to freedom of speech and of the press were toupled in a single guarantee with the and to
petition the rights of the people peaceably to assemble and to petition the government for
redress of grievances. All these rights, while not Identical, are inseparable. the every case,
therefo re there is a limitation placed on the exercise of this right, the judiciary is called upon to
examine the effects of the challenged governmental actuation. The sole justification for a
limitation on the exercise of this right, so fundamental to the maintenance of democratic
institutions, is the danger, of a character both grave and imminent, of a serious evil to public
safety, public morals, public health, or any other legitimate public interest. 21
2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly
better expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be
forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the
guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means
for gaining access to the mind. It was in order to avert force and explosions due to restrictions
upon rational modes of communication that the guaranty of free speech was given a generous
scope. But utterance in a context of violence can lose its significance as an appeal to reason
and become part of an instrument of force. Such utterance was not meant to be sheltered by the
Constitution." 22 What was rightfully stressed is the abandonment of reason, the utterance,
whether verbal or printed, being in a context of violence. It must always be remembered that this
right likewise provides for a safety valve, allowing parties the opportunity to give vent to their-
views, even if contrary to the prevailing climate of opinion. For if the peaceful means of
communication cannot be availed of, resort to non-peaceful means may be the only alternative.
Nor is this the sole reason for the expression of dissent. It means more than just the right to be
heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value
may lie in the fact that there may be something worth hearing from the dissenter. That is to
ensure a true ferment of Ideas. There are, of course, well-defined limits. What is guaranteed is
peaceable assembly. One may not advocate disorder in the name of protest, much less preach
rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a
rally or assembly. resort to force is ruled out and outbreaks of violence to be avoided. The
utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to
be precise, United States v. Apurado: 23 "It is rather to be expected that more or less disorder will
mark the public assembly of the people to protest against grievances whether real or imaginary,
because on such occasions feeling is always wrought to a high pitch of excitement, and the
greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their irresponsible followers." 24 It bears repeating that for
the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism
must be avoided, To give free rein to one's destructive urges is to call for condemnation. It is to handing over of a petition based on the resolution adopted at the closing session of the Anti-
make a mockery of the high estate occupied by intellectual liberty in our scheme of values. Bases Coalition. The Philippines is a signatory of the Vienna Convention on Diplomatic
Relations adopted in 1961. It was concurred in by the then Philippine Senate on May 3, 1965
and the instrument of ratification was signed by the President on October 11, 1965, and was
3. There can be no legal objection, absent the existence of a clear and present danger of a
thereafter deposited with the Secretary General of the United Nations on November 15. As of
substantive evil, on the choice of Luneta as the place where the peace rally would start. The
that date then, it was binding on the Philippines. The second paragraph of the Article 22 reads:
Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of
"2. The receiving State is under a special duty to take appropriate steps to protect the premises
Justice Roberts in Hague v. CIO: 25 Whenever the title of streets and parks may rest, they have
of the mission against any intrusion or damage and to prevent any disturbance of the peace of
immemorially been held in trust for the use of the public and, time out of mind, have been used
the mission or impairment of its dignity. " 32 The Constitution "adopts the generally accepted
for purposes of assembly, communicating thoughts between citizens, and discussing public
principles of international law as part of the law of the land. ..." 33 To the extent that the Vienna
questions. Such use of the streets and public places has, from ancient times, been a part of the
Convention is a restatement of the generally accepted principles of international law, it should be
privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United
a part of the law of the land. 34 That being the case, if there were a clear and present danger of
States to use the streets and parks for communication of views on national questions may be
any intrusion or damage, or disturbance of the peace of the mission, or impairment of its dignity,
regulated in the interest of all; it is not absolute, but relative, and must be exercised in
there would be a justification for the denial of the permit insofar as the terminal point would be
subordination to the general comfort and convenience, and in consonance with peace and good
the Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila
order; but it must not, in the guise of regulation, be abridged or denied. 26 The above excerpt
prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred
was quoted with approval in Primicias v. Fugoso. 27 Primicias made explicit what was implicit
(500) feet from any foreign mission or chancery and for other purposes. Unless the ordinance is
in Municipality of Cavite v. Rojas," 28 a 1915 decision, where this Court categorically affirmed
nullified, or declared ultra vires, its invocation as a defense is understandable but not decisive, in
that plazas or parks and streets are outside the commerce of man and thus nullified a contract
view of the primacy accorded the constitutional rights of free speech and peaceable assembly.
that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a
Even if shown then to be applicable, that question the confronts this Court.
promenade for public use," 29 which certainly is not the only purpose that it could serve. To
repeat, there can be no valid reason why a permit should not be granted for the or oposed
march and rally starting from a public dark that is the Luneta. 6. There is merit to the observation that except as to the novel aspects of a litigation, the
judgment must be confined within the limits of previous decisions. The law declared on past
occasions is, on the whole, a safe guide, So it has been here. Hence, as noted, on the afternoon
4. Neither can there be any valid objection to the use of the streets, to the gates of the US
of the hearing, October 25, 1983, this Court issued the minute resolution granting the mandatory
Embassy, hardly two block-away at the Roxas Boulevard. Primicias v. Fugoso has resolved any
injunction allowing the proposed march and rally scheduled for the next day. That conclusion
lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila should
was inevitable ill the absence of a clear and present danger of a substantive, evil to a legitimate
grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared:
public interest. There was no justification then to deny the exercise of the constitutional rights of
"Our conclusion finds support in the decision in the case of Willis Cox vs. State of New
tree speech and peaceable assembly. These rights are assured by our Constitution and the
Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P. L. chap. 145, section
Universal Declaration of Human Rights. 35 The participants to such assembly, composed
2, providing that 'no parade or procession upon any ground abutting thereon, shall 'De permitted
primarily of those in attendance at the International Conference for General Disbarmament,
unless a special license therefor shall first be explained from the selectmen of the town or from
World Peace and the Removal of All Foreign Military Bases would start from the Luneta.
licensing committee,' was construed by the Supreme Court of New Hampshire as not conferring
proceeding through Roxas Boulevard to the gates of the United States Embassy located at the
upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And
same street. To repeat, it is settled law that as to public places, especially so as to parks and
the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes
streets, there is freedom of access. Nor is their use dependent on who is the applicant for the
affirming the judgment of the State Supreme Court, held that 'a statute requiring persons using
permit, whether an individual or a group. If it were, then the freedom of access becomes
the public streets for a parade or procession to procure a special license therefor from the local
discriminatory access, giving rise to an equal protection question. The principle under American
authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of
doctrines was given utterance by Chief Justice Hughes in these words: "The question, if the
speech and press, where, as the statute is construed by the state courts, the licensing
rights of free speech and peaceable assembly are to be preserved, is not as to the auspices
authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place,
under which the meeting is held but as to its purpose; not as to The relations of the speakers,
and manner of the parade or procession, with a view to conserving the public convenience and
but whether their utterances transcend the bounds of the freedom of speech which the
of affording an opportunity to provide proper policing, and are not invested with arbitrary
Constitution protects." 36 There could be danger to public peace and safety if such a gathering
discretion to issue or refuse license, ... " 30 Nor should the point made by Chief Justice Hughes in
were marked by turbulence. That would deprive it of its peaceful character. Even then, only the
a subsequent portion of the opinion be ignored, "Civil liberties, as guaranteed by the
guilty parties should be held accountable. It is true that the licensing official, here respondent
Constitution, imply the existence of an organized society maintaining public order without which
Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is
liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality
not, however, unfettered discretion. While prudence requires that there be a realistic appraisal
to impose regulations in order to assure the safety and convenience of the people in the use of
not of what may possibly occur but of what may probably occur, given all the relevant
public highways has never been regarded as inconsistent with civil liberties but rather as one of
circumstances, still the assumption — especially so where the assembly is scheduled for a
the means of safeguarding the good order upon which they ultimately depend. The control of
specific public — place is that the permit must be for the assembly being held there. The
travel on the streets of cities is the most familiar illustration of this recognition of social need.
exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme
Where a restriction of the use of highways in that relation is designed to promote the public
Court, is not to be "abridged on the plea that it may be exercised in some other place." 37
convenience in the interest of all, it cannot be disregarded by the attempted exercise of some
civil right which in other circumstances would be entitled to protection." 31
7. In fairness to respondent Mayor, he acted on the belief that Navarro v.
Villegas 38 and Pagkakaisa ng Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for
5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as
application. While the General rule is that a permit should recognize the right of the applicants to
noted, would have arisen. So, too, if the march would end at another park. As previously
hold their assembly at a public place of their choice, another place may be designated by the
mentioned though, there would be a short program upon reaching the public space between the
licensing authority if it be shown that there is a clear and present danger of a substantive evil if
two gates of the United States Embassy at Roxas Boulevard. That would be followed by the
no such change were made. In the Navarro and the Pagkakaisa decisions, this Court was
persuaded that the clear and present danger test was satisfied. The present situation is quite
different. Hence the decision reached by the Court. The mere assertion that subversives may
infiltrate the ranks of the demonstrators does not suffice. Not that it should be overlooked. There
was in this case, however, the assurance of General Narciso Cabrera, Superintendent, Western
Police District, Metropolitan Police Force, that the police force is in a position to cope with such
emergency should it arise That is to comply with its duty to extend protection to the participants
of such peaceable assembly. Also from him came the commendable admission that there were
the least five previous demonstrations at the Bayview hotel Area and Plaza Ferguson in front of
the United States Embassy where no untoward event occurred. It was made clear by petitioner,
through counsel, that no act offensive to the dignity of the United States Mission in the
Philippines would take place and that, as mentioned at the outset of this opinion, "all the
necessary steps would be taken by it 'to ensure a peaceful march and rally.' " 40 Assistant
Solicitor General Montenegro expressed the view that the presence of policemen may in itself be
a provocation. It is a sufficient answer that they should stay at a discreet distance, but ever
ready and alert to cope with any contingency. There is no need to repeat what was pointed out
by Chief Justice Hughes in Cox that precisely, it is the duty of the city authorities to provide the
proper police protection to those exercising their right to peaceable assembly and freedom of
expression.
8. By way of a summary The applicants for a permit to hold an assembly should inform the
licensing authority of the date, the public place where and the time when it will take place. If it
were a private place, only the consent of the owner or the one entitled to its legal possession is
required. Such application should be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the grant of the permit or to its
grant but at another public place. It is an indispensable condition to such refusal or modification
that the clear and present danger test be the standard for the decision reached. If he is of the
view that there is such an imminent and grave danger of a substantive evil, the applicants must
be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so minded, then, can have recourse to the
proper judicial authority. Free speech and peaceable assembly, along with the other intellectual
freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly
stressed that on the judiciary, — even more so than on the other departments — rests the grave
and delicate responsibility of assuring respect for and deference to such preferred rights. No
verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously
termed by Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the
presumption must be to incline the weight of the scales of justice on the side of such rights,
enjoying as they do precedence and primacy. Clearly then, to the extent that there may be
inconsistencies between this resolution and that of Navarro v. Villegas, that case is pro
tanto modified. So it was made clear in the original resolution of October 25, 1983.
9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of
Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five
hundred (500) feet from any foreign mission or chancery and for other purposes. It is to be
admitted that it finds support In the previously quoted Article 22 of the Vienna Convention on
Diplomatic Relations. There was no showing, however, that the distance between the chancery
and the embassy gate is less than 500 feet. Even if it could be shown that such a condition is
satisfied. it does not follow that respondent Mayor could legally act the way he did. The validity
of his denial of the permit sought could still be challenged. It could be argued that a case of
unconstitutional application of such ordinance to the exercise of the right of peaceable assembly
presents itself. As in this case there was no proof that the distance is less than 500 feet, the
need to pass on that issue was obviated, Should it come, then the qualification and observation
of Justices Makasiar and Plana certainly cannot be summarily brushed aside. The high estate
accorded the rights to free speech and peaceable assembly demands nothing less.
10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification
of the permit sought and order the respondent official, to grant it. Nonetheless, as there was
urgency in this case, the proposed march and rally being scheduled for the next day after the
hearing, this Court. in the exercise of its conceded authority, granted the mandatory injunction in
the resolution of October 25, 1983. It may be noted that the peaceful character of the peace
march and rally on October 26 was not marred by any untoward incident. So it has been in other
assemblies held elsewhere. It is quite reassuring such that both on the part of the national
government and the citizens, reason and moderation have prevailed. That is as it should be.
WHEREFORE, the mandatory injunction prayed for is granted. No costs.
Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ., concur.
De Castro, J, is on leave.
Separate Opinions
TEEHANKEE, J., concurring:
The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso 1 that "the
right to freedom of speech and to peacefully assemble and petition the government for redress
of grievances are fundamental personal rights of the people recognized and guaranteed by the
constitutions of democratic countries" and that the city or town mayors are not conferred "the
power to refuse to grant the permit, but only the discretion, in issuing the permit, to determine or
specify the streets or public places where the parade or procession may pass or the meeting
may be held." The most recent graphic demonstration of what this great right of peaceful
assembly and petition for redress of grievances could accomplish was the civil rights march on
Washington twenty years ago under the late assassinated black leader Martin Luther King, Jr.
(whose birthday has now been declared an American national holiday) which subpoenaed the
conscience of the nation," and awakened the conscience of millions of previously indifferent
Americans and eventually (after many disorders and riots yet to come) was to put an end to
segregation and discrimination against the American Negro.
The procedure for the securing of such permits for peaceable assembly is succintly set forth in
the summary given by the Court Justice in paragraph 8 of the Court's opinion, with the injunction
that "the presumption must be to incline the weight of the scales of justice on the side of such
rights, enjoying as they do, precedence and primacy," The exception of the clear and present
danger rule, which alone would warrant a limitation of these fundamental rights, is therein
restated in paragraph 1, thus: "The sole justification for a limitation on the exercise of this right,
so fundamental to the maintenance of democratic institutions, is the danger, of a character both
grave and imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest. "
It bears emphasis that the burden to show the existence of grave and imminent danger that
would justify adverse action on the application lies on the mayor as licensing authority. There
must be objective and convincing, not subjective or conjectural proof of the existence of such
clear and present danger. As stated in our Resolution of October 25, 1983, which granted the
mandatory injunction as prayed for, "It is essential for the validity of a denial of a permit which
amounts to a previous restraint or censorship that the licensing authority does not rely solely on
his own appraisal of what public welfare, peace or safety may require. To justify such a limitation
there must be proof of such weight and sufficiency to satisfy the clear and present danger test.
The possibility that subversives may infiltrate the ranks of the demonstrators is not enough." As
stated by Justice Brandeis in his concurring opinion in Whitney vs. California. 2 têñ.£îhqwâ£
Fear of serious injury cannot alone justify suppression of free speech and
assembly. Men feared witches and burned women. It is the function of
speech to free men from the bondage of irrational fears. To justify
suppression of free speech there must be reasonable ground to fear that
serious evil will result if free speech is practiced. There must be reasonable
ground to believe that the danger apprehended is imminent. There must be
reasonable ground to believe that the evil to be prevented is a serious one *
* *.
Those who won our independence by revolution were not cowards. They did
not fear political change. They did not exalt order at the cost of liberty. * * *
Moreover, even imminent danger cannot justify resort to prohibition of these
functions essential (for) effective democracy, unless the evil apprehended is
relatively serious. Prohibition of free speech and assembly is a measure so
stringent that it would be inappropriate as the means for averting a relatively
trivial harm to a society. * * * The fact that speech is likely to result in some
violence or in destruction of property is not enough to justify its suppression.
There must be the probability of serious injury to the state. Among freemen
the deterrents ordinarily to be applied to prevent crimes are education and
punishment for violations of the law, not abridgment of the rights of free
speech and assembly. (Emphasis supplied)
The Court's opinion underscores that the exercise of the right is not to be "abridged on the plea
that it may be exercised in some other place" (paragraph 6), and that "it is the duty of the city
authorities to provide the proper police protection to those exercising their right to peaceable
assembly and freedom of expression," (at page 14) The U.S. Supreme Court's pronouncement
in Hague vs. Committee for Industrial Organization 3 cited in Fugoso is worth
repeating: têñ.£îhqwâ£
* * * Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out of
mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions. Such use of the streets
and public places has, from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The privilege of a citizen * * * to
use the streets and parks for communication of views on national questions
may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience,
and in consonance with peace and good order; but it must not, in the guise
of regulation, be abridged or denied.
We think the court below was right in holding the ordinance quoted in Note I
void upon its face. It does not make comfort or convenience in the use of
streets or parks the standard of official action. It enables the Director of
Safety to refuse a permit on his mere opinion that such refusal will prevent
'riots, disturbances or disorderly assemblage. It can thus, as the record
discloses, be made the instrument of arbitrary suppression of free
expression of views on national affairs for the prohibition of all speaking will
undoubtedly 'prevent' such eventualities. But uncontrolled official
suppression of the privilege cannot be made a substitute for the duty to
maintain order in connection with the exercise of the right. (Emphasis
supplied)
Needless to say, the leaders of the peaceable assembly should take all the necessary measures
to ensure a peaceful march and assembly and to avoid the possibility of infiltrators and
troublemakers disrupting the same, concommitantly with the duty of the police to extend
protection to the participants "staying at a discreet distance, but ever ready and alert to perform
their duty." But should any disorderly conduct or incidents occur, whether provoked or otherwise,
it is well to recall former Chief Justice Ricardo Paras' injunction in his concurring opinion
in Fugoso, citing the 1907 case of U.S. vs. Apurado, 4 that such instances of "disorderly conduct
by individual members of a crowd (be not seized) as an excuse to characterize the assembly as
a seditious and tumultuous rising against the authorities" and render illusory the right of
peaceable assembly, thus: têñ.£îhqwâ£
It is rather to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real or
imaginary, because on such occasions feeling is always wrought to a high
pitch of excitement, and the greater the grievance and the more intense the
feeling, the less perfect, as a rule, will the disciplinary control of the leaders
over their irresponsible followers. But if the prosecution be permitted to
seize upon every instance of such disorderly conduct by individual members
of a crowd as an excuse to characterize the assembly as a seditious and
tumultous rising against the authorities, 'then the right to assemble and to
petition for redress of grievances would become a delusion and snare and
the attempt to exercise it on the most righteous occasion and in the most
peaceable manner would expose all those who took part therein to the
severest and most unmerited punishment, if the purposes which they sought
to attain did not happen to be pleasing to the prosecuting authorities. If
instances of disorderly conduct occur on such occasions, the guilty
individuals should be sought out and punished therefor. (Emphasis
supplied).
As it turned out, the demonstration was held on October 26, 1983 peaceably and without any
untoward event or evil result, as pledged by the organizers (like at least five previous peaceful
demonstrations in the area). However, even if there had been any incidents of disorder, this
would in no way show the Court's mandatory injunction to have been wrongfully issued. The
salutary desire on the part of respondent to prevent disorder cannot be pursued by the
unjustified denial and suppression of the people's basic rights, which would thereby turn out to
be mere paper rights.
MAKASIAR, J., concurring:
With the justification that in case of conflict, the Philippine Constitution — particularly the Bill of
Rights — should prevail over the Vienna Convention.
ABAD SANTOS, J., concurring:
To add anything to the learned opinion of the Chief Justice is like bringing coal to Newcastle, I
just want to state for the record that I voted for the issuance ex-parte of a preliminary mandatory
injunction.
PLANA, J., concurring:
On the whole, I concur in the learned views of the distinguished Chief Justice. I would like
however to voice a reservation regarding Ordinance No. 7295 of the City of Manila which has
been invoked by the respondent.
The main opinion yields the implication that a rally or demonstration made within 500 feet from
the chancery of a foreign embassy would be banned for coming within the terms of the
prohibition of the cited Ordinance which was adopted, so it is said, precisely to implement a
treaty obligation of the Philippines under the 1961 Vienna Convention on Diplomatic Relations.
In my view, without saying that the Ordinance is obnoxious per se to the constitution, it cannot
be validly invoked whenever its application would collide with a constitutionally guaranteed right
such as freedom of assembly and/or expression, as in the case at bar, regardless of whether the
chancery of any foreign embassy is beyond or within 500 feet from the situs of the rally or
demonstration.
AQUINO, J., dissenting:
Voted to dismiss the petition on the ground that the holding of the rally in front of the US
Embassy violates Ordinance No. 7295 of the City of Manila.
Separate Opinions
TEEHANKEE, J., concurring:
The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso 1 that "the
right to freedom of speech and to peacefully assemble and petition the government for redress
of grievances are fundamental personal rights of the people recognized and guaranteed by the
constitutions of democratic countries" and that the city or town mayors are not conferred "the
power to refuse to grant the permit, but only the discretion, in issuing the permit, to determine or
specify the streets or public places where the parade or procession may pass or the meeting
may be held." The most recent graphic demonstration of what this great right of peaceful
assembly and petition for redress of grievances could accomplish was the civil rights march on
Washington twenty years ago under the late assassinated black leader Martin Luther King, Jr.
(whose birthday has now been declared an American national holiday) which subpoenaed the
conscience of the nation," and awakened the conscience of millions of previously indifferent
Americans and eventually (after many disorders and riots yet to come) was to put an end to
segregation and discrimination against the American Negro.
The procedure for the securing of such permits for peaceable assembly is succintly set forth in
the summary given by the Court Justice in paragraph 8 of the Court's opinion, with the injunction
that "the presumption must be to incline the weight of the scales of justice on the side of such
rights, enjoying as they do, precedence and primacy," The exception of the clear and present
danger rule, which alone would warrant a limitation of these fundamental rights, is therein
restated in paragraph 1, thus: "The sole justification for a limitation on the exercise of this right,
so fundamental to the maintenance of democratic institutions, is the danger, of a character both
grave and imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest. "
It bears emphasis that the burden to show the existence of grave and imminent danger that
would justify adverse action on the application lies on the mayor as licensing authority. There
must be objective and convincing, not subjective or conjectural proof of the existence of such
clear and present danger. As stated in our Resolution of October 25, 1983, which granted the
mandatory injunction as prayed for, "It is essential for the validity of a denial of a permit which
amounts to a previous restraint or censorship that the licensing authority does not rely solely on
his own appraisal of what public welfare, peace or safety may require. To justify such a limitation
there must be proof of such weight and sufficiency to satisfy the clear and present danger test.
The possibility that subversives may infiltrate the ranks of the demonstrators is not enough." As
stated by Justice Brandeis in his concurring opinion in Whitney vs. California. 2 têñ.£îhqwâ£
Fear of serious injury cannot alone justify suppression of free speech and
assembly. Men feared witches and burned women. It is the function of
speech to free men from the bondage of irrational fears. To justify
suppression of free speech there must be reasonable ground to fear that
serious evil will result if free speech is practiced. There must be reasonable
ground to believe that the danger apprehended is imminent. There must be
reasonable ground to believe that the evil to be prevented is a serious one *
* *.
Those who won our independence by revolution were not cowards. They did
not fear political change. They did not exalt order at the cost of liberty. * * *
Moreover, even imminent danger cannot justify resort to prohibition of these
functions essential (for) effective democracy, unless the evil apprehended is
relatively serious. Prohibition of free speech and assembly is a measure so
stringent that it would be inappropriate as the means for averting a relatively
trivial harm to a society. * * * The fact that speech is likely to result in some
violence or in destruction of property is not enough to justify its suppression.
There must be the probability of serious injury to the state. Among freemen
the deterrents ordinarily to be applied to prevent crimes are education and
punishment for violations of the law, not abridgment of the rights of free
speech and assembly. (Emphasis supplied)
The Court's opinion underscores that the exercise of the right is not to be "abridged on the plea
that it may be exercised in some other place" (paragraph 6), and that "it is the duty of the city
authorities to provide the proper police protection to those exercising their right to peaceable
assembly and freedom of expression," (at page 14) The U.S. Supreme Court's pronouncement
in Hague vs. Committee for Industrial Organization 3 cited in Fugoso is worth
repeating: têñ.£îhqwâ£
* * * Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out of
mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions. Such use of the streets
 and public places has, from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The privilege of a citizen * * * to
use the streets and parks for communication of views on national questions
may be regulated in the interest of all; it is not absolute, but relative, and
MAKASIAR, J., concurring:
must be exercised in subordination to the general comfort and convenience,
and in consonance with peace and good order; but it must not, in the guise
of regulation, be abridged or denied. With the justification that in case of conflict, the Philippine Constitution — particularly the Bill of
Rights — should prevail over the Vienna Convention.
We think the court below was right in holding the ordinance quoted in Note I
void upon its face. It does not make comfort or convenience in the use of
streets or parks the standard of official action. It enables the Director of
Safety to refuse a permit on his mere opinion that such refusal will prevent
'riots, disturbances or disorderly assemblage. It can thus, as the record
ABAD SANTOS, J., concurring:
discloses, be made the instrument of arbitrary suppression of free
expression of views on national affairs for the prohibition of all speaking will
undoubtedly 'prevent' such eventualities. But uncontrolled official To add anything to the learned opinion of the Chief Justice is like bringing coal to Newcastle, I
suppression of the privilege cannot be made a substitute for the duty to just want to state for the record that I voted for the issuance ex-parte of a preliminary mandatory
maintain order in connection with the exercise of the right. (Emphasis injunction.
supplied)

Needless to say, the leaders of the peaceable assembly should take all the necessary measures
to ensure a peaceful march and assembly and to avoid the possibility of infiltrators and
troublemakers disrupting the same, concommitantly with the duty of the police to extend
protection to the participants "staying at a discreet distance, but ever ready and alert to perform PLANA, J., concurring:
their duty." But should any disorderly conduct or incidents occur, whether provoked or otherwise,
it is well to recall former Chief Justice Ricardo Paras' injunction in his concurring opinion On the whole, I concur in the learned views of the distinguished Chief Justice. I would like
in Fugoso, citing the 1907 case of U.S. vs. Apurado, 4 that such instances of "disorderly conduct however to voice a reservation regarding Ordinance No. 7295 of the City of Manila which has
by individual members of a crowd (be not seized) as an excuse to characterize the assembly as been invoked by the respondent.
a seditious and tumultuous rising against the authorities" and render illusory the right of
peaceable assembly, thus: têñ.£îhqwâ£
The main opinion yields the implication that a rally or demonstration made within 500 feet from
the chancery of a foreign embassy would be banned for coming within the terms of the
It is rather to be expected that more or less disorder will mark the public prohibition of the cited Ordinance which was adopted, so it is said, precisely to implement a
assembly of the people to protest against grievances whether real or treaty obligation of the Philippines under the 1961 Vienna Convention on Diplomatic Relations.
imaginary, because on such occasions feeling is always wrought to a high
pitch of excitement, and the greater the grievance and the more intense the
feeling, the less perfect, as a rule, will the disciplinary control of the leaders In my view, without saying that the Ordinance is obnoxious per se to the constitution, it cannot
over their irresponsible followers. But if the prosecution be permitted to be validly invoked whenever its application would collide with a constitutionally guaranteed right
seize upon every instance of such disorderly conduct by individual members such as freedom of assembly and/or expression, as in the case at bar, regardless of whether the
of a crowd as an excuse to characterize the assembly as a seditious and chancery of any foreign embassy is beyond or within 500 feet from the situs of the rally or
tumultous rising against the authorities, 'then the right to assemble and to demonstration.
petition for redress of grievances would become a delusion and snare and
the attempt to exercise it on the most righteous occasion and in the most
peaceable manner would expose all those who took part therein to the
severest and most unmerited punishment, if the purposes which they sought
to attain did not happen to be pleasing to the prosecuting authorities. If
instances of disorderly conduct occur on such occasions, the guilty AQUINO, J., dissenting:
individuals should be sought out and punished therefor. (Emphasis
supplied). Voted to dismiss the petition on the ground that the holding of the rally in front of the US
Embassy violates Ordinance No. 7295 of the City of Manila.
As it turned out, the demonstration was held on October 26, 1983 peaceably and without any
untoward event or evil result, as pledged by the organizers (like at least five previous peaceful
demonstrations in the area). However, even if there had been any incidents of disorder, this
would in no way show the Court's mandatory injunction to have been wrongfully issued. The
salutary desire on the part of respondent to prevent disorder cannot be pursued by the
unjustified denial and suppression of the people's basic rights, which would thereby turn out to
be mere paper rights.
 [G.R. No. 125865. January 28, 2000]
JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
YNARES-SANTIAGO, J.:
Petitioner is an economist working with the Asian Development Bank (ADB).
Sometime in 1994, for allegedly uttering defamatory words against fellow ADB
worker Joyce Cabal, he was charged before the Metropolitan Trial Court (MeTC) of
Mandaluyong City with two counts of grave oral defamation docketed as Criminal
Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant issued by
the MeTC. After fixing petitioners bail at P2,400.00 per criminal charge, the MeTC
released him to the custody of the Security Officer of ADB. The next day, the MeTC
judge received an "office of protocol" from the Department of Foreign Affairs (DFA)
stating that petitioner is covered by immunity from legal process under Section 45 of
the Agreement between the ADB and the Philippine Government regarding the
Headquarters of the ADB (hereinafter Agreement) in the country. Based on the said
protocol communication that petitioner is immune from suit, the MeTC judge
without notice to the prosecution dismissed the two criminal cases. The latter filed a
motion for reconsideration which was opposed by the DFA. When its motion was
denied, the prosecution filed a petition for certiorari and mandamus with the
Regional Trial Court (RTC) of Pasig City which set aside the MeTC rulings and
ordered the latter court to enforce the warrant of arrest it earlier issued. After the
motion for reconsideration was denied, petitioner elevated the case to this Court via a
petition for review arguing that he is covered by immunity under the Agreement and
that no preliminary investigation was held before the criminal cases were filed in
court.
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the communication from the
DFA that petitioner is covered by any immunity. The DFAs determination that a
certain person is covered by immunity is only preliminary which has no binding
effect in courts. In receiving ex-parte the DFAs advice and in motu
proprio dismissing the two criminal cases without notice to the prosecution, the
latters right to due process was violated. It should be noted that due process is a right
of the accused as much as it is of the prosecution. The needed inquiry in what
capacity petitioner was acting at the time of the alleged utterances requires for its
resolution evidentiary basis that has yet to be presented at the proper time. [1] At any
rate, it has been ruled that the mere invocation of the immunity clause does not ipso
facto result in the dropping of the charges.[2]
Second, under Section 45 of the Agreement which provides:
"Officers and staff of the Bank including for the purpose of this
Article experts and consultants performing missions for the Bank
shall enjoy the following privileges and immunities:
a.).......immunity from legal process with respect to acts
performed by them in their official capacity except when
the Bank waives the immunity."
the immunity mentioned therein is not absolute, but subject to the exception that the
act was done in "official capacity." It is therefore necessary to determine if
petitioners case falls within the ambit of Section 45(a). Thus, the prosecution should
have been given the chance to rebut the DFA protocol and it must be accorded the
opportunity to present its controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by the immunity agreement
because our laws do not allow the commission of a crime, such as defamation, in the
name of official duty.[3] The imputation of theft is ultra vires and cannot be part of
official functions. It is well-settled principle of law that a public official may be
liable in his personal private capacity for whatever damage he may have caused by
his act done with malice or in bad faith or beyond the scope of his authority or
jurisdiction.[4] It appears that even the governments chief legal counsel, the Solicitor
General, does not support the stand taken by petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent,
assuming petitioner is such, enjoys immunity from criminal jurisdiction of the
receiving state except in the case of an action relating to any professional or
commercial activity exercised by the diplomatic agent in the receiving state outside
his official functions.[5] As already mentioned above, the commission of a crime is
not part of official duty.
Finally, on the contention that there was no preliminary investigation conducted,
suffice it to say that preliminary investigation is not a matter of right in cases
cognizable by the MeTC such as the one at bar.[6] Being purely a statutory right,
preliminary investigation may be invoked only when specifically granted by
law.[7] The rule on criminal procedure is clear that no preliminary investigation is
required in cases falling within the jurisdiction of the MeTC. [8] Besides, the absence
of preliminary investigation does not affect the courts jurisdiction nor does it impair
the validity of the information or otherwise render it defective.[9]
WHEREFORE, the petition is DENIED.
SO ORDERED.
 [G.R. No. 113191. September 18, 1996]
DEPARTMENT OF FOREIGN AFFAIRS, petitioner, vs. NATIONAL LABOR RELATIONS
COMMISSION, HON. LABOR ARBITER NIEVES V. DE CASTRO and JOSE C.
MAGNAYI, respondents.
DECISION
VITUG, J.:
The questions raised in the petition for certiorari are a few coincidental matters relative to
the diplomatic immunity extended to the Asian Development Bank ("ADB").
On 27 January 1993, private respondent initiated NLRC-NCR Case No. 00-01-0690-93 for
his alleged illegal dismissal by ADB and the latter's violation of the "labor-only" contracting
law. Two summonses were served, one sent directly to the ADB and the other through the
Department of Foreign Affairs ("DFA"), both with a copy of the complaint. Forthwith, the ADB and
the DFA notified respondent Labor Arbiter that the ADB, as well as its President and Officers, were
covered by an immunity from legal process except for borrowings, guaranties or the sale of
securities pursuant to Article 50(1) and Article 55 of the Agreement Establishing the Asian
Development Bank (the "Charter") in relation to Section 5 and Section 44 of the Agreement
Between The Bank And The Government Of The Philippines Regarding The Bank's
Headquarters (the "Headquarters Agreement").
The Labor Arbiter took cognizance of the complaint on the impression that the ADB had
waived its diplomatic immunity from suit. In time, the Labor Arbiter rendered his decision, dated 31
August 1993, that concluded:
"WHEREFORE, above premises considered, judgment is hereby rendered declaring the complainant as a
regular employee of respondent ADB, and the termination of his services as illegal. Accordingly,
respondent Bank is hereby ordered:
"1. To immediately reinstate the complainant to his former position effective September 16, 1993;
"2. To pay complainant full backwages from December 1, 1992 to September 15, 1993 in the amount
of P42,750.00 (P4,500.00 x 9 months);
"3. And to pay complainants other benefits and without loss of seniority rights and other privileges and
benefits due a regular employee of Asian Development Bank from the time he was terminated on
December 31, 1992;
"4. To pay 10% attorney's fees of the total entitlements."[1]
The ADB did not appeal the decision. Instead, on 03 November 1993, the DFA referred the
matter to the National Labor Relations Commission ("NLRC"); in its referral, the DFA sought a
"formal vacation of the void judgment." Replying to the letter, the NLRC Chairman, wrote:
"The undersigned submits that the request for the 'investigation' of Labor Arbiter Nieves de Castro, by the
National Labor Relations Commission, has been erroneously premised on Art. 218(c) of the Labor Code,
as cited in the letter of Secretary Padilla, considering that the provision deals with 'a question, matter or
controversy within its (the Commission) jurisdiction' obviously referring to a labor dispute within the
ambit of Art. 217 (on jurisdiction of Labor Arbiters and the Commission over labor cases).
"The procedure, in the adjudication of labor cases, including raising of defenses, is prescribed by law. The
defense of immunity could have been raised before the Labor Arbiter by a special appearance which,
naturally, may not be considered as a waiver of the very defense being raised. Any decision thereafter is
subject to legal remedies, including appeals to the appropriate division of the Commission and/or a
petition for certiorari with the Supreme Court, under Rule 65 of the Rules of Court. Except where an
appeal is seasonably and properly made, neither the Commission nor the undersigned may review, or even
question, the propriety of any decision by a Labor Arbiter. Incidentally, the Commission sits en banc (all
fifteen Commissioners) only to promulgate rules of procedure or to formulate policies (Art. 213, Labor
Code).
"On the other hand, while the undersigned exercises 'administrative supervision over the Commission and
its regional branches and all its personnel, including the Executive Labor Arbiters and Labor Arbiters'
(penultimate paragraph, Art. 213, Labor Code), he does not have the competence to investigate or review
any decision of a Labor Arbiter. However, on the purely administrative aspect of the decision-making
process, he may cause that an investigation be made of any misconduct, malfeasance or misfeasance, upon
complaint properly made.
"If the Department of Foreign Affairs feels that the action of Labor Arbiter Nieves de Castro constitutes
misconduct, malfeasance or misfeasance, it is suggested that an appropriate complaint be lodged with the
Office of the Ombudsman.
"Thank you for your kind attention."[2]
Dissatisfied, the DFA lodged the instant petition for certiorari. In this Court's resolution of 31
January 1994, respondents were required to comment. Petitioner was later constrained to make
an application for a restraining order and/or writ of preliminary injunction following the issuance,
on 16 March 1994, by the Labor Arbiter of a writ of execution. In a resolution, dated 07 April 1994,
the Court issued the temporary restraining order prayed for.
The Office of the Solicitor General (OSG), in its comment of 26 May 1994, initially assailed
the claim of immunity by the ADB. Subsequently, however, it submitted a Manifestation (dated 20
June 1994) stating, among other things, that "after a thorough review of the case and the records,"
it became convinced that ADB, indeed, was correct in invoking its immunity from suit under the
Charter and the Headquarters Agreement.
The Court is of the same view.
Article 50(1) of the Charter provides:
The Bank shall enjoy immunity from every form of legal process, except in cases arising out of or in
connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or
underwrite the sale of securities.[3]
Under Article 55 thereof -
All Governors, Directors, alternates, officers and employees of the Bank, including experts performing
missions for the Bank:
(1) shall be immune from legal process with respect of acts performed by them in their official capacity,
except when the Bank waives the immunity.[4]
Like provisions are found in the Headquarters Agreement. Thus, its Section 5 reads: government may interfere in their operations or even influence or control its policies and decisions of the
organization; besides, such subjection to local jurisdiction would impair the capacity of such body to
discharge its responsibilities impartially on behalf of its member-states."[13]
"The Bank shall enjoy immunity from every form of legal process, except in cases arising out of, or in
connection with, the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell
or underwrite the sale of securities.[5] Contrary to private respondent's assertion, the claim of immunity is not here being raised
for the first time; it has been invoked before the forum of origin through communications sent by
petitioner and the ADB to the Labor Arbiter, as well as before the NLRC following the rendition of
And, with respect to certain officials of the bank, Section 44 of the agreement states:
the questioned judgment by the Labor Arbiter, but evidently to no avail.

Governors, other representatives of Members, Directors, the President, Vice-President and executive In its communication of 27 May 1993, the DFA, through the Office of Legal Affairs, has
officers as may be agreed upon between the Government and the Bank shall enjoy, during their stay in the advised the NLRC:
Republic of the Philippines in connection with their official duties with the Bank:
"Respectfully returned to the Honorable Domingo B. Mabazza, Labor Arbitration Associate, National
xxxxxxxxx Labor Relations Commission, National Capital Judicial Region, Arbitration Branch, Associated bank
Bldg., T.M. Kalaw St., Ermita, Manila, the attached Notice of Hearing addressed to the Asian
Development Bank, in connection with the aforestated case, for the reason stated in the Department's 1st
(b) Immunity from legal process of every kind in respect of words spoken or written and all acts done by Indorsement dated 23 March 1993, copy attached, which is self-explanatory.
them in their official capacity.[6]
"In view of the fact that the Asian Development Bank (ADB) invokes its immunity which is sustained by
The above stipulations of both the Charter and Headquarters Agreement should be able, nay well the Department of Foreign Affairs, a continuous hearing of this case erodes the credibility of the
enough, to establish that, except in the specified cases of borrowing and guarantee operations, Philippine government before the international community, let alone the negative implication of such a
as well as the purchase, sale and underwriting of securities, the ADB enjoys immunity from legal suit on the official relationship of the Philippine government with the ADB.
process of every form. The Banks officers, on their part, enjoy immunity in respect of all acts
performed by them in their official capacity. The Charter and the Headquarters Agreement
granting these immunities and privileges are treaty covenants and commitments voluntarily "For the Secretary of Foreign Affairs
assumed by the Philippine government which must be respected.
(Sgd.)
In World Health Organization vs. Aquino,[7] we have declared:
"SIME D. HIDALGO
Assistant Secretary"[14]
It is a recognized principle of international law and under our system of separation of powers that
diplomatic immunity is essentially a political question and courts should refuse to look beyond a
The Office of the President, likewise, has issued on 18 May 1993 a letter to the Secretary of
determination by the executive branch of the government, and where the plea of diplomatic immunity is
Labor, viz:
recognized and affirmed by the executive branch of the government x x x it is then the duty of the courts
to accept the claim of immunity upon appropriate suggestion by the principal law officer of the
government, x x x or other officer acting under his direction. Hence, in adherence to the settled principle "Dear Secretary Confesor,
that courts may not so exercise their jurisdiction x x x as to embarrass the executive arm of the
government in conducting foreign relations, it is accepted doctrine that `in such cases the judicial
"I am writing to draw your attention to a case filed by a certain Jose C. Magnayi against the Asian
department of government follows the action of the political branch and will not embarrass the latter by
Development Bank and its President, Kimimasa Tarumizu, before the National Labor Relations
assuming an antagonistic jurisdiction.'"[8]
Commission, National Capital Region Arbitration Board (NLRC NCR Case No. 00-01690-93).

To the same effect is the decision in International Catholic Migration Commission vs.
"Last March 8, the Labor Arbiter charged with the case, Ms. Nieves V. de Castro, addressed a Notice of
Calleja,[9] which has similarly deemed the Memoranda of the Legal Adviser of the Department of
Resolution/Order to the Bank which brought it to the attention of the Department of Foreign Affairs on the
Foreign Affairs to be "a categorical recognition by the Executive Branch of Government that ICMC
ground that the service of such notice was in violation of the RP-ADB Headquarters Agreement which
x x x enjoy(s) immunities accorded to international organizations" and which determination must
provided, inter-alia, for the immunity of the Bank, its President and officers from every form of legal
be held "conclusive upon the Courts in order not to embarrass a political department of
process, except only, in cases of borrowings, guarantees or the sale of securities.
Government. In the instant case, the filing of the petition by the DFA, in behalf of ADB, is itself an
affirmance of the government's own recognition of ADB's immunity.
"The Department of Foreign Affairs, in turn, informed Labor Arbiter Nieves V. de Castro of this fact by
Being an international organization that has been extended a diplomatic status, the ADB is letter dated March 22, copied to you.
independent of the municipal law.[10] In Southeast Asian Fisheries Development Center vs.
Acosta,[11] the Court has cited with approval the opinion[12] of the then Minister of Justice; thus -
"Despite this, the labor arbiter in question persisted to send summons, the latest dated May 4, herewith
attached, regarding the Magnayi case.
"One of the basic immunities of an international organization is immunity from local jurisdiction, i.e., that
it is immune from the legal writs and processes issued by the tribunals of the country where it is
found. (See Jenks, Id., pp. 37-44). The obvious reason for this is that the subjection of such an
organization to the authority of the local courts would afford a convenient medium thru which the host
"The Supreme Court has long settled the matter of diplomatic immunities. In WHO vs. Aquino, SCRA 48,
it ruled that courts should respect diplomatic immunities of foreign officials recognized by the Philippine
government. Such decision by the Supreme Court forms part of the law of the land.
"Perhaps you should point out to Labor Arbiter Nieves V. de Castro that ignorance of the law is a ground
for dismissal.
"Very truly yours,
(Sgd.)
JOSE B. ALEJANDRINO
Chairman, PCC-ADB"[15]
Private respondent argues that, by entering into service contracts with different private
companies, ADB has descended to the level of an ordinary party to a commercial transaction
giving rise to a waiver of its immunity from suit. In the case of Holy See vs. Hon. Rosario, Jr.,[16] the
Court has held:
There are two conflicting concepts of sovereign immunity, each widely held and firmly
established. According to the classical or absolute theory, a sovereign cannot, without its consent, be made
a respondent in the Courts of another sovereign. According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but
not with regard to private act or acts jure gestionis.
xxxxxxxxx
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.[17]
The service contracts referred to by private respondent have not been intended by the ADB for
profit or gain but are official acts over which a waiver of immunity would not attach.
With regard to the issue of whether or not the DFA has the legal standing to file the present
petition, and whether or not petitioner has regarded the basic rule that certiorari can be availed of
only when there is no appeal nor plain, speedy and adequate remedy in the ordinary course of
law, we hold both in the affirmative.
The DFA's function includes, among its other mandates, the determination of persons and
institutions covered by diplomatic immunities, a determination which, when challenged, entitles it
to seek relief from the court so as not to seriously impair the conduct of the country's foreign
relations. The DFA must be allowed to plead its case whenever necessary or advisable to enable
it to help keep the credibility of the Philippine government before the international
community. When international agreements are concluded, the parties thereto are deemed to
have likewise accepted the responsibility of seeing to it that their agreements are duly regarded. In
our country, this task falls principally on the DFA as being the highest executive department with
the competence and authority to so act in this aspect of the international arena.[18] In Holy See vs.
Hon. Rosario, Jr.,[19] this Court has explained the matter in good detail; viz:
"In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic
immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the
court that said defendant is entitled to immunity.
"In the United States, the procedure followed is the process of 'suggestion,' where the foreign state or the
international organization sued in an American court requests the Secretary of State to make a
determination as to whether it is entitled to immunity. If the Secretary of State finds that the defendant is
immune from suit, he, in turn, asks the Attorney General to submit to the court a 'suggestion' that the
defendant is entitled to immunity.In England, a similar procedure is followed, only the Foreign Office
issues a certification to that effect instead of submitting a 'suggestion' (O'Connell, I International Law 130
[1965]; Note: Immunity from Suit of Foreign Sovereign Instrumentalities and Obligations, 50 Yale Law
Journal 1088 [1941]).
"In the Philippines, the practice is for the foreign government or the international organization to first
secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine
Foreign Office conveys its endorsement to the courts varies. In International Catholic Migration
Commission vs. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly
to the Secretary of Labor and Employment, informing the latter that the respondent-employer could not be
sued because it enjoyed diplomatic immunity. In World Health Organization vs. Aquino, 48 SCRA 242
(1972), the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer vs. Tizon, 57
SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General
to make, in behalf of the Commander of the United States Naval Base at Olongapo City, Zambales, a
'suggestion' to respondent Judge. The Solicitor General embodied the 'suggestion' in a manifestation and
memorandum as amicus curiae.
"In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with
this Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department to
file its memorandum in support of petitioner's claim of sovereign immunity.
"In some cases, the defense of sovereign immunity was submitted directly to the local courts by the
respondents through their private counsels (Raquiza vs. Bradford, 75 Phil. 50 [1945]; Miquiabas vs.
Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America vs. Guinto, 182 SCRA 644
[1990] and companion cases). In cases where the foreign states bypass the Foreign Office, the courts can
inquire into the facts and make their own determination as to the nature of the acts and transactions
involved."[20]
Relative to the propriety of the extraordinary remedy of certiorari, the Court has, under
special circumstances, so allowed and entertained such a petition when (a) the questioned order
or decision is issued in excess of or without jurisdiction,[21] or (b) where the order or decision is a
patent nullity,[22] which, verily, are the circumstances that can be said to obtain in the present
case. When an adjudicator is devoid of jurisdiction on a matter before him, his action that assumes
otherwise would be a clear nullity.
WHEREFORE, the petition for certiorari is GRANTED, and the decision of the Labor Arbiter,
dated 31 August 1993 is VACATED for being NULL AND VOID. The temporary restraining order
issued by this Court on 07 April 1994 is hereby made permanent. No costs.
SO ORDERED.
G.R. No. L-35131 November 29, 1972
THE WORLD HEALTH ORGANIZATION and DR. LEONCE VERSTUYFT, petitioners,
vs.
HON. BENJAMIN H. AQUINO, as Presiding Judge of Branch VIII, Court of First
Instance of Rizal, MAJOR WILFREDO CRUZ, MAJOR ANTONIO G. RELLEVE, and
CAPTAIN PEDRO S. NAVARRO of the Constabulary Offshore Action Center
(COSAC), respondents.
Sycip, Salazar, Luna, Manalo and Feliciano for petitioners.
Emilio L. Baldia for respondents.
TEEHANKEE, J.:p
An original action for certiorari and prohibition to set aside respondent judge's refusal to
quash a search warrant issued by him at the instance of respondents COSAC
(Constabulary Offshore Action Center) officers for the search and seizure of the personal
effects of petitioner official of the WHO (World Health Organization) notwithstanding his
being entitled to diplomatic immunity, as duly recognized by the executive branch of the
Philippine Government and to prohibit respondent judge from further proceedings in the
matter.
Upon filing of the petition, the Court issued on June 6, 1972 a restraining order enjoining
respondents from executing the search warrant in question.
Respondents COSAC officers filed their answer joining issue against petitioners and
seeking to justify their act of applying for and securing from respondent judge the warrant
for the search and seizure of ten crates consigned to petitioner Verstuyft and stored at the
Eternit Corporation warehouse on the ground that they "contain large quantities of highly
dutiable goods" beyond the official needs of said petitioner "and the only lawful way to
reach these articles and effects for purposes of taxation is through a search warrant." 1
The Court thereafter called for the parties' memoranda in lieu of oral argument, which were
filed on August 3, 1972 by respondents and on August 21, 1972 by petitioners, and the
case was thereafter deemed submitted for decision.
It is undisputed in the record that petitioner Dr. Leonce Verstuyft, who was assigned on
December 6, 1971 by the WHO from his last station in Taipei to the Regional Office in
Manila as Acting Assistant Director of Health Services, is entitled to diplomatic immunity,
pursuant to the Host Agreement executed on July 22, 1951 between the Philippine
Government and the World Health Organization.
Such diplomatic immunity carries with it, among other diplomatic privileges and immunities,
personal inviolability, inviolability of the official's properties, exemption from local
jurisdiction, and exemption from taxation and customs duties.
When petitioner Verstuyft's personal effects contained in twelve (12) crates entered the
Philippines as unaccompanied baggage on January 10, 1972, they were accordingly
allowed free entry from duties and taxes. The crates were directly stored at the Eternit
Corporation's warehouse at Mandaluyong, Rizal, "pending his relocation into permanent
quarters upon the offer of Mr. Berg, Vice President of Eternit who was once a patient of Dr.
Verstuyft in the Congo." 2
Nevertheless, as above stated, respondent judge issued on March 3, 1972 upon
application on the same date of respondents COSAC officers search warrant No. 72-138
for alleged violation of Republic Act 4712 amending section 3601 of the Tariff and
Customs Code 3 directing the search and seizure of the dutiable items in said crates.
Upon protest of March 6, 1972 of Dr. Francisco Dy, WHO Regional Director for the
Western Pacific with station in Manila, Secretary of Foreign Affairs Carlos P. Romulo,
personally wired on the same date respondent Judge advising that "Dr. Verstuyft is entitled
to immunity from search in respect of his personal baggage as accorded to members of
diplomatic missions" pursuant to the Host Agreement and requesting suspension of the
search warrant order "pending clarification of the matter from the ASAC."
Respondent judge set the Foreign Secretary's request for hearing and heard the same on
March 16, 1972, but notwithstanding the official plea of diplomatic immunity interposed by
a duly authorized representative of the Department of Foreign Affairs who furnished the
respondent judge with a list of the articles brought in by petitioner Verstuyft, respondent
judge issued his order of the same date maintaining the effectivity of the search warrant
issued by him, unless restrained by a higher court. 4
Petitioner Verstuyft's special appearance on March 24, 1972 for the limited purpose of
pleading his diplomatic immunity and motion to quash search warrant of April 12, 1972
failed to move respondent judge.
At the hearing thereof held on May 8, 1972, the Office of the Solicitor General appeared
and filed an extended comment stating the official position of the executive branch of the
Philippine Government that petitioner Verstuyft is entitled to diplomatic immunity, he did
not abuse his diplomatic immunity, 5 and that court proceedings in the receiving or host
State are not the proper remedy in the case of abuse of diplomatic immunity. 6
The Solicitor General accordingly joined petitioner Verstuyft's prayer for the quashal of the
search warrant. Respondent judge nevertheless summarily denied quashal of the search
warrant per his order of May 9, 1972 "for the same reasons already stated in (his)
aforesaid order of March 16, 1972" disregarding Foreign Secretary Romulo's plea of
diplomatic immunity on behalf of Dr. Verstuyft.
Hence, the petition at bar. Petitioner Verstuyft has in this Court been joined by the World
Health Organization (WHO) itself in full assertion of petitioner Verstuyft's being entitled "to
all privileges and immunities, exemptions and facilities accorded to diplomatic envoys in
accordance with international law" under section 24 of the Host Agreement.
The writs of certiorari and prohibition should issue as prayed for.
1. The executive branch of the Philippine Government has expressly recognized that
petitioner Verstuyft is entitled to diplomatic immunity, pursuant to the provisions of the Host
Agreement. The Department of Foreign Affairs formally advised respondent judge of the
Philippine Government's official position that accordingly "Dr. Verstuyft cannot be the
subject of a Philippine court summons without violating an obligation in international law of
the Philippine Government" and asked for the quashal of the search warrant, since his
personal effects and baggages after having been allowed free entry from all customs
duties and taxes, may not be baselessly claimed to have been "unlawfully imported" in
violation of the tariff and customs code as claimed by respondents COSAC officers. The
Solicitor-General, as principal law officer of the Government, 7 likewise expressly affirmed
said petitioner's right to diplomatic immunity and asked for the quashal of the search
warrant.
It is a recognized principle of international law and under our system of separation of
powers that diplomatic immunity is essentially a political question and courts should refuse
to look beyond a determination by the executive branch of the government, 8 and where
the plea of diplomatic immunity is recognized and affirmed by the executive branch of the
government as in the case at bar, it is then the duty of the courts to accept the claim of
immunity upon appropriate suggestion by the principal law officer of the government, the
Solicitor General in this case, or other officer acting under his direction. 9 Hence, in
adherence to the settled principle that courts may not so exercise their jurisdiction by
seizure and detention of property, as to embarrass the executive arm of the government in
conducting foreign relations, it is accepted doctrine that "in such cases the judicial
department of (this) government follows the action of the political branch and will not
embarrass the latter by assuming an antagonistic jurisdiction." 10
possible for a small unit, the COSAC, to which respondents officers belong, seemingly to
disregard and go against the authoritative determination and pronouncements of both the
Secretaries of Foreign Affairs and of Finance that petitioner Verstuyft is entitled to
diplomatic immunity, as confirmed by the Solicitor-General as the principal law officer of
the Government. Such executive determination properly implemented should have
normally constrained respondents officers themselves to obtain the quashal of the search
warrant secured by them rather than oppose such quashal up to this Court, to the
embarrassment of said department heads, if not of the Philippine Government itself vis a
vis the petitioners. 15
The seriousness of the matter is underscored when the provisions of Republic Act 75
enacted since October 21, 1946 to safeguard the jurisdictional immunity of diplomatic
officials in the Philippines are taken into account. Said Act declares as null and void writs
or processes sued out or prosecuted whereby inter alia the person of an ambassador or
public minister is arrested or imprisoned or his goods or chattels are seized or attached
and makes it a penal offense for "every person by whom the same is obtained or
prosecuted, whether as party or as attorney, and every officer concerned in executing it" to
obtain or enforce such writ or process. 16
The Court, therefore, holds that respondent judge acted without jurisdiction and with grave
abuse of discretion in not ordering the quashal of the search warrant issued by him in
disregard of the diplomatic immunity of petitioner Verstuyft.

2. The unfortunate fact that respondent judge chose to rely on the suspicion of
respondents COSAC officers "that the other remaining crates unopened contain
contraband items" 11 rather than on the categorical assurance of the Solicitor-General that
petitioner Verstuyft did not abuse his diplomatic immunity, 12 which was based in turn on
the official positions taken by the highest executive officials with competence and authority
to act on the matter, namely, the Secretaries of Foreign Affairs and of Finance, could not
justify respondent judge's denial of the quashal of the search warrant.
As already stated above, and brought to respondent court's attention, 13 the Philippine
Government is bound by the procedure laid down in Article VII of the Convention on the
Privileges and Immunities of the Specialized Agencies of the United Nations 14 for
consultations between the Host State and the United Nations agency concerned to
determine, in the first instance the fact of occurrence of the abuse alleged, and if so, to
ensure that no repetition occurs and for other recourses. This is a treaty commitment
voluntarily assumed by the Philippine Government and as such, has the force and effect of
law.
ACCORDINGLY, the writs of certiorari and prohibition prayed for are hereby granted, and
the temporary restraining order heretofore issued against execution or enforcement of the
questioned search warrant, which is hereby declared null and void, is hereby made
permanent. The respondent court is hereby commanded to desist from further proceedings
in the matter. No costs, none having been prayed for.
The clerk of court is hereby directed to furnish a copy of this decision to the Secretary of
Justice for such action as he may find appropriate with regard to the matters mentioned in
paragraph 3 hereof. So ordered.
Concepcion, C.J., Makalintal, Zaldivar, Fernando, Barredo, Makasiar, Antonio and
Esguerra, JJ., concur.
Castro, J., reserves his vote.

Hence, even assuming arguendo as against the categorical assurance of the executive
branch of government that respondent judge had some ground to prefer respondents
COSAC officers' suspicion that there had been an abuse of diplomatic immunity, the
continuation of the search warrant proceedings before him was not the proper remedy. He
should, nevertheless, in deference to the exclusive competence and jurisdiction of the
executive branch of government to act on the matter, have acceded to the quashal of the
search warrant, and forwarded his findings or grounds to believe that there had been such
abuse of diplomatic immunity to the Department of Foreign Affairs for it to deal with, in
accordance with the aforementioned Convention, if so warranted.

3. Finally, the Court has noted with concern the apparent lack of coordination between the
various departments involved in the subject-matter of the case at bar, which made it
PROF. MERLIN M. MAGALLONA, G.R No. 187167 PINEDA, WILLIAM RAGAMAT,

AKBAYAN PARTY-LIST REP. RISA MARICAR RAMOS, ENRIK FORT

HONTIVEROS, PROF. HARRY C. Present: REVILLAS, JAMES MARK TERRY

ROQUE, JR., AND UNIVERSITY OF RIDON, JOHANN FRANTZ RIVERA IV,

THE PHILIPPINES COLLEGE OF CORONA, C.J., CHRISTIAN RIVERO, DIANNE MARIE

LAW STUDENTS, ALITHEA CARPIO, ROA, NICHOLAS SANTIZO, MELISSA

BARBARA ACAS, VOLTAIRE VELASCO, JR., CHRISTINA SANTOS, CRISTINE MAE

ALFERES, CZARINA MAY LEONARDO-DE CASTRO, TABING, VANESSA ANNE TORNO,

ALTEZ, FRANCIS ALVIN ASILO, BRION, MARIA ESTER VANGUARDIA, and

SHERYL BALOT, RUBY AMOR PERALTA, MARCELINO VELOSO III,

BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN, Petitioners,

ROMINA BERNARDO, VALERIE DEL CASTILLO,

- versus -
PAGASA BUENAVENTURA, EDAN ABAD,
HON. EDUARDO ERMITA, IN HIS
MARRI CAETE, VANN ALLEN VILLARAMA, JR.,
CAPACITY AS EXECUTIVE
DELA CRUZ, RENE DELORINO, PEREZ,
SECRETARY, HON. ALBERTO
PAULYN MAY DUMAN, SHARON MENDOZA, and
ROMULO, IN HIS CAPACITY AS
ESCOTO, RODRIGO FAJARDO III, SERENO, JJ.
SECRETARY OF THE DEPARTMENT
GIRLIE FERRER, RAOULLE OSEN
OF FOREIGN AFFAIRS, HON.
FERRER, CARLA REGINA GREPO,
ROLANDO ANDAYA, IN HIS CAPACITY
ANNA MARIE CECILIA GO, IRISH
AS SECRETARY OF THE DEPARTMENT
KAY KALAW, MARY ANN JOY LEE,
OF BUDGET AND MANAGEMENT,
MARIA LUISA MANALAYSAY,
HON. DIONY VENTURA, IN HIS
MIGUEL RAFAEL MUSNGI,
CAPACITY AS ADMINISTRATOR OF
MICHAEL OCAMPO, JAKLYN HANNA
THE NATIONAL MAPPING & The Antecedents

RESOURCE INFORMATION

AUTHORITY, and HON. HILARIO In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of the
Philippines as an archipelagic State.3 This law followed the framing of the Convention on the Territorial Sea and
the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of States parties over
DAVIDE, JR., IN HIS CAPACITY AS their territorial sea, the breadth of which, however, was left undetermined. Attempts to fill this void during the
second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046
REPRESENTATIVE OF THE remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA
5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo.

PERMANENT MISSION OF THE

REPUBLIC OF THE PHILIPPINES Promulgated:

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The change
was prompted by the need to make RA 3046 compliant with the terms of the United Nations Convention on the
TO THE UNITED NATIONS, Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27 February 1984.6 Among others, UNCLOS
III prescribes the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines 7 and
sets the deadline for the filing of application for the extended continental shelf. 8 Complying with these
Respondents. July 16, 2011
requirements, RA 9522 shortened one baseline, optimized the location of some basepoints around the Philippine
archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough
x -----------------------------------------------------------------------------------------x Shoal, as regimes of islands whose islands generate their own applicable maritime zones.

Petitioners, professors of law, law students and a legislator, in their respective capacities as citizens, taxpayers or
x x x legislators,9 as the case may be, assail the constitutionality of RA 9522 on two principal grounds, namely:
(1) RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine states sovereign
DECISION power, in violation of Article 1 of the 1987 Constitution,10embodying the terms of the Treaty of Paris11 and
ancillary treaties,12 and (2) RA 9522 opens the countrys waters landward of the baselines to maritime passage by
all vessels and aircrafts, undermining Philippine sovereignty and national security, contravening the countrys
nuclear-free policy, and damaging marine resources, in violation of relevant constitutional provisions. 13

CARPIO, J.:
In addition, petitioners contend that RA 9522s treatment of the KIG as regime of islands not only
results in the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen.14 To
buttress their argument of territorial diminution, petitioners facially attack RA 9522 for what it excluded and
included its failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS IIIs framework of
regime of islands to determine the maritime zones of the KIG and the Scarborough Shoal.

The Case

This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No.
95221 (RA 9522) adjusting the countrys archipelagic baselines and classifying the baseline regime of nearby
territories.
Commenting on the petition, respondent officials raised threshold issues questioning (1) the petitions compliance
with the case or controversy requirement for judicial review grounded on petitioners alleged lack of locus
standi and (2) the propriety of the writs of certiorari and prohibition to assail the constitutionality of RA 9522. On
the merits, respondents defended RA 9522 as the countrys compliance with the terms of UNCLOS III, preserving
Philippine territory over the KIG or Scarborough Shoal. Respondents add that RA 9522 does not undermine the
countrys security, environment and economic interests or relinquish the Philippines claim over Sabah.

Respondents also question the normative force, under international law, of petitioners assertion that
what Spain ceded to the United States under the Treaty of Paris were the islands and all the waters found within
the boundaries of the rectangular area drawn under the Treaty of Paris.

We left unacted petitioners prayer for an injunctive writ.
Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the petition
alleges neither infringement of legislative prerogative15 nor misuse of public funds,16occasioned by the passage
and implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as citizens with
constitutionally sufficient interest in the resolution of the merits of the case which undoubtedly raises issues of
national significance necessitating urgent resolution. Indeed, owing to the peculiar nature of RA 9522, it is
understandably difficult to find other litigants possessing a more direct and specific interest to bring the suit, thus
satisfying one of the requirements for granting citizenship standing.17

The Issues

The petition raises the following issues:

The Writs of Certiorari and Prohibition

Are Proper Remedies to Test

1. Preliminarily
the Constitutionality of Statutes

1. Whether petitioners possess locus standi to bring this suit; and

2. Whether the writs of certiorari and prohibition are the proper remedies to assail the constitutionality of
RA 9522. In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance of the
offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any showing of grave
abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the part of respondents and
resulting prejudice on the part of petitioners.18

2. On the merits, whether RA 9522 is unconstitutional.

Respondents submission holds true in ordinary civil proceedings. When this Court exercises its constitutional
power of judicial review, however, we have, by tradition, viewed the writs of certiorari and prohibition as proper
remedial vehicles to test the constitutionality of statutes,19 and indeed, of acts of other branches of
government.20 Issues of constitutional import are sometimes crafted out of statutes which, while having no
bearing on the personal interests of the petitioners, carry such relevance in the life of this nation that the Court
The Ruling of the Court inevitably finds itself constrained to take cognizance of the case and pass upon the issues raised, non-compliance
with the letter of procedural rules notwithstanding. The statute sought to be reviewed here is one such law.

On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and (2) the
writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On the merits, we RA 9522 is Not Unconstitutional
find no basis to declare RA 9522 unconstitutional.

On the Threshold Issues

RA 9522 is a Statutory Tool

to Demarcate the Countrys

Petitioners Possess Locus
Maritime Zones and Continental
Standi as Citizens
Shelf Under UNCLOS III, not to
Delineate Philippine Territory
Petitioners submit that RA 9522 dismembers a large portion of the national territory21 because it discards the pre-
UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties, successively
encoded in the definition of national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize
that this constitutional definition trumps any treaty or statutory provision denying the Philippines sovereign
control over waters, beyond the territorial sea recognized at the time of the Treaty of Paris, that Spain supposedly
ceded to the United States. Petitioners argue that from the Treaty of Paris technical description, Philippine
sovereignty over territorial waters extends hundreds of nautical miles around the Philippine archipelago,
embracing the rectangular area delineated in the Treaty of Paris.22
Petitioners theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty
regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from
the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical
miles from the baselines]), and continental shelves that UNCLOS III delimits. 23 UNCLOS III was the
culmination of decades-long negotiations among United Nations members to codify norms regulating the conduct
of States in the worlds oceans and submarine areas, recognizing coastal and archipelagic States graduated
authority over a limited span of waters and submarine lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to
mark-out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to
serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. Article 48
of UNCLOS III on archipelagic States like ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous
zone, the exclusive economic zone and the continental shelf. The breadth of the territorial
sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be
measured from archipelagic baselines drawn in accordance with article 47. (Emphasis
supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit
with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of
the international community of the scope of the maritime space and submarine areas within which States parties
exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the jurisdiction
to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the right to
exploit the living and non-living resources in the exclusive economic zone (Article 56) and continental shelf
(Article 77).
Even under petitioners theory that the Philippine territory embraces the islands and all the
waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still
have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in conformity
with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the rectangular area
delineated in the Treaty of Paris, but from the outermost islands and drying reefs of the archipelago. 24
UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as
petitioners claim, diminution of territory. Under traditional international law typology, States acquire (or
conversely, lose) territory through occupation, accretion, cession and prescription, 25 not by executing multilateral
treaties on the regulations of sea-use rights or enacting statutes to comply with the treatys terms to delimit
maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS III, and are
instead governed by the rules on general international law.26
RA 9522s Use of the Framework
of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines Claim of Sovereignty
Over these Areas
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to draw the baselines,
and to measure the breadth of the applicable maritime zones of the KIG, weakens our territorial claim over that
area.27 Petitioners add that the KIGs (and Scarborough Shoals) exclusion from the Philippine archipelagic
baselines results in the loss of about 15,000 square nautical miles of territorial waters, prejudicing the livelihood
of subsistence fishermen.28 A comparison of the configuration of the baselines drawn under RA 3046 and RA
9522 and the extent of maritime space encompassed by each law, coupled with a reading of the text of RA 9522
and its congressional deliberations, vis--vis the Philippines obligations under UNCLOS III, belie this view.
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the
basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the location
of basepoints and adjust the length of one baseline (and thus comply with UNCLOS IIIs limitation on the
maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie
outside of the baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes the
wind out of petitioners argument branding RA 9522 as a statutory renunciation of the Philippines claim over the
KIG, assuming that baselines are relevant for this purpose.
Petitioners assertion of loss of about 15,000 square nautical miles of territorial waters under RA 9522 is similarly Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of two
provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that [t]he drawing of such baselines
Extent of maritime area using RA 3046, as Extent of maritime area using RA shall not depart to any appreciable extent from the general configuration of the archipelago. Second, Article 47
amended, taking into account the Treaty of 9522, taking into account (2) of UNCLOS III requires that the length of the baselines shall not exceed 100 nautical miles, save for three per
Paris delimitation (in square nautical miles) UNCLOS III (in square nautical cent (3%) of the total number of baselines which can reach up to 125 nautical miles. 31
miles)

Internal or
archipelagic
waters Although the Philippines has consistently claimed sovereignty over the KIG 32 and the Scarborough
166,858 171,435
Shoal for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of
the Philippine archipelago,33 such that any straight baseline loped around them from the nearest basepoint will
inevitably depart to an appreciable extent from the general configuration of the archipelago.

Territorial Sea 274,136 32,106

The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to
emphasize the foregoing during the Senate deliberations:
Exclusive
Economic Zone
382,669 What we call the Kalayaan Island Group or what the rest of the world call[]
the Spratlys and the Scarborough Shoal are outside our archipelagic baseline because if
TOTAL 440,994 586,210 we put them inside our baselines we might be accused of violating the provision of
international law which states: The drawing of such baseline shall not depart to any
unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of appreciable extent from the general configuration of the archipelago. So sa loob ng ating
basepoints, increased the Philippines total maritime space (covering its internal waters, territorial sea and baseline, dapat magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal,
exclusive economic zone) by 145,216 square nautical miles, as shown in the table below:29 hindi natin masasabing malapit sila sa atin although we are still allowed by
international law to claim them as our own.

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even extends
way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of course, where there
are overlapping exclusive economic zones of opposite or adjacent States, there will have to be a delineation of
maritime boundaries in accordance with UNCLOS III.30
Further, petitioners argument that the KIG now lies outside Philippine territory because the baselines that RA
9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the
Philippines continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
This is called contested islands outside our configuration. We see that our archipelago is
defined by the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo
ang maliit na circle doon sa itaas, that is Scarborough Shoal, itong malaking circle sa
ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya
kung ilihis pa natin ang dating archipelagic baselines para lamang masama itong
dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng United
Nations because of the rule that it should follow the natural configuration of the
archipelago.34(Emphasis supplied)

SEC. 2. The baselines in the following areas over which the Philippines
likewise exercises sovereignty and jurisdiction shall be determined as Regime of
Islands under the Republic of the Philippines consistent with Article 121 of the United
Nations Convention on the Law of the Sea (UNCLOS):
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits. The need to
a) The Kalayaan Island Group as constituted under Presidential Decree No. shorten this baseline, and in addition, to optimize the location of basepoints using current maps, became
1596 and imperative as discussed by respondents:

b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)

[T]he amendment of the baselines law was necessary to enable the
Philippines to draw the outer limits of its maritime zones including the extended
continental shelf in the manner provided by Article 47 of [UNCLOS III]. As defined by
R.A. 3046, as amended by R.A. 5446, the baselines suffer from some technical
deficiencies, to wit:
 1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil
Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed under
Article 47(2) of the [UNCLOS III], which states that The length of such baselines shall
not exceed 100 nautical miles, except that up to 3 per cent of the total number of
baselines enclosing any archipelago may exceed that length, up to a maximum length of
125 nautical miles.
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted
from the baselines system. This will enclose an additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not established by
geodetic survey methods. Accordingly, some of the points, particularly along the west
coasts of Luzon down to Palawan were later found to be located either inland or on water,
not on low-water line and drying reefs as prescribed by Article 47.35
Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal,
Congress decision to classify the KIG and the Scarborough Shoal as Regime[s] of Islands under the Republic of
the Philippines consistent with Article 12136 of UNCLOS III manifests the Philippine States responsible
observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any
naturally formed area of land, surrounded by water, which is above water at high tide, such as portions of the
KIG, qualifies under the category of regime of islands, whose islands generate their own applicable maritime
zones.37
Statutory Claim Over Sabah under
RA 5446 Retained
Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines claim over Sabah in
North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for
drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the
Philippine Archipelago as provided in this Act is without prejudice to the delineation
of the baselines of the territorial sea around the territory of Sabah, situated in North
Borneo, over which the Republic of the Philippines has acquired dominion and
sovereignty. (Emphasis supplied)
UNCLOS III and RA 9522 not
Incompatible with the Constitutions
Delineation of Internal Waters
As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally
converts internal waters into archipelagic waters, hence subjecting these waters to the right of innocent and sea
lanes passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage rights
indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in violation of the
Constitution.38
Whether referred to as Philippine internal waters under Article I of the Constitution 39 or as archipelagic waters
under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying landward
of the baselines, including the air space over it and the submarine areas underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over
archipelagic waters and of their bed and subsoil.
1. The sovereignty of an archipelagic State extends to the waters
enclosed by the archipelagic baselines drawn in accordance
with article 47, described as archipelagic waters, regardless of
their depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic
waters, as well as to their bed and subsoil, and the resources
contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this Part shall
not in other respects affect the status of the archipelagic waters, including the sea
lanes, or the exercise by the archipelagic State of its sovereignty over such waters
and their air space, bed and subsoil, and the resources contained therein. (Emphasis
supplied)
The fact of sovereignty, however, does not preclude the operation of municipal and international law norms
subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of
maintaining unimpeded, expeditious international navigation, consistent with the international law principle of
freedom of navigation. Thus, domestically, the political branches of the Philippine government, in the competent
discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to
regulate innocent and sea lanes passage.40 Indeed, bills drawing nautical highways for sea lanes passage are now
pending in Congress.41

RA 9522 and the Philippines Maritime Zones

In the absence of municipal legislation, international law norms, now codified in UNCLOS III,
operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treatys
limitations and conditions for their exercise.42 Significantly, the right of innocent passage is a customary
international law,43 thus automatically incorporated in the corpus of Philippine law.44 No modern State can
validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with
customary international law without risking retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent
passage and sea lanes passage45 does not place them in lesser footing vis--vis continental coastal States which are
subject, in their territorial sea, to the right of innocent passage and the right of transit passage through
international straits. The imposition of these passage rights through archipelagic waters under UNCLOS III was a
concession by archipelagic States, in exchange for their right to claim all the waters landward of their
baselines, regardless of their depth or distance from the coast, as archipelagic waters subject to their territorial
sovereignty. More importantly, the recognition of archipelagic States archipelago and the waters enclosed by their
baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS
III.46 Separate islands generate their own maritime zones, placing the waters between islands separated by more
than 24 nautical miles beyond the States territorial sovereignty, subjecting these waters to the rights of other
States under UNCLOS III.47
Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound
to pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we find petitioners reading
plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to this Court. Moreover,
the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III compliant baselines law,
an archipelagic State like the Philippines will find itself devoid of internationally acceptable baselines from
where the breadth of its maritime zones and continental shelf is measured. This is recipe for a two-fronted
disaster: first, it sends an open invitation to the seafaring powers to freely enter and exploit the resources in the
waters and submarine areas around our archipelago; and second, it weakens the countrys case in any international
dispute over Philippine maritime space. These are consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent
areas, as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the
Philippines maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of the
Philippines in safeguarding its maritime zones, consistent with the Constitution and our national interest.

WHEREFORE, we DISMISS the petition.

Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of
Principles and State Policies)48 must also fail. Our present state of jurisprudence considers the provisions in
Article II as mere legislative guides, which, absent enabling legislation, do not embody judicially enforceable
constitutional rights x x x.49 Article II provisions serve as guides in formulating and interpreting implementing
legislation, as well as in interpreting executory provisions of the Constitution. Although Oposa v.
SO ORDERED.
Factoran50 treated the right to a healthful and balanced ecology under Section 16 of Article II as an exception, the
present petition lacks factual basis to substantiate the claimed constitutional violation. The other provisions
petitioners cite, relating to the protection of marine wealth (Article XII, Section 2, paragraph 2 51) and subsistence
fishermen (Article XIII, Section 752), are not violated by RA 9522.

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic
zone, reserving solely to the Philippines the exploitation of all living and non-living resources within such zone.
Such a maritime delineation binds the international community since the delineation is in strict observance of
UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international community will of course
reject it and will refuse to be bound by it.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui
generis maritime space the exclusive economic zone in waters previously part of the high seas. UNCLOS III
grants new rights to coastal States to exclusively exploit the resources found within this zone up to 200 nautical
miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of other States that attached to
this zone beyond the territorial sea before UNCLOS III.
3.REYES vs BAGATSING
125 SCRA 553
FACTS: This was a petition for mandamus with writ of preliminary injunction to review
the decision of the City of Mayor of Manila Ramon Bagatsing, denying the application for
permit to hold a rally from Luneta to the gates of the United States Embassy.
ISSUE: Whether the contention of mayor Bagatsing as to denying the application for
permit to hold rally was in accordance to the Veinna Convention?
HELD: NO.The Constitution adopts the generally accepted principle of International law
as part of the law of the land.Veinna Convention is a restatement of the generally
accepted principles of international law.It should be a part of the law of the land.That
being a case,If there were clear and present danger of any intrusion or damage or
distribution of the peace of the mission or impairment of its dignity, there would be a
justification for the denial of the permit insofar as the terminal point would be the
Embassy.
Petition is GRANTED. The court found that there was no clear and present danger of a
substantive evil to a legitimate public interest that would justify the denial of the
exercise of the constitutional rights of free speech and peaceble assembly.
J.B.L. Reyes vs Bagatsing , GR No. 65366, October 25, 1983
Facts : Petitioner retired Justice J.B.L Reyes on behalf of the Anti-Bases Coalition sought a permit
from the City of Manila to hold a peaceful march and rally starting from the Luneta Park (public
park) to the gates of the United States Embassy. There was an assurance in the petition that in the
exercise of the constitutional rights to free speech and assembly, all the necessary steps would be
taken “to ensure a peaceful march and rally.”
It turned out that the permit was denied by the respondent Mayor. Petitioner was unaware of such
denial as it was sent through an ordinary mail.
The reason of refusing the permit was due to “police intelligence reports which strongly militate
against the advisability of issuing such permit. To be more specific, reference was made to
“persistent intelligence reports affirming the plans of subversive/criminal elements to infiltrate
and/or disrupt any assembly or congregations where a large number of people are expected to
attend. Mayor suggested, however, that a permit may be issued for the rally if it will be held in Rizal
Coliseum or any other enclosed areas where the safety of the participants and general public may be
assured. The Mayor also posed the applicability of Ordinance No.7925 of the City of Manila
prohibiting the holding and staging of rallies or demonstration within a radius of 500 feet from any
foreign mission or chancery in this case the US Embassy. However, there was no proof that the US
Embassy was indeed 500 feet away.
Issue : Whether or not the denial of permit to rally by the respondent Mayor is valid.
Held : Even if it can be shown that such condition existed (500 feet away), it does not follow that
the respondent could legally act the way he did. Such denial can still be challenged as to the
constitutionality of the ordinance.
The Philippines is a signatory to the Vienna Convention which calls for the protection of the
premises of a diplomatic mission. But, the denial of permit to rally in front of the US Embassy is
only justified in the presence of clear and present danger to life or property of the embassy. This is
binding on the Philippines to take appropriate steps to protect the premises of the mission against
intrusion or damage and prevent any disturbance of peace or impairment of its dignity. To the extent
that the Vienna Convention is a restatement of the generally accepted principles of international
law, it should be part of the law of the land. That being the case, if there were a clear and present
danger of any intrusion or damage or disturbance of peace of the mission or impairment of its
dignity, there would be a justification for the denial of the permit insofar as the terminal point would
be the US Embassy - but there was none.
Respondent official was ordered to grant the permit.
Mandatory injunction prayed for is GRANTED. No cost.
JBL Reyes vs. Bagatsing, 125 SCRA 553; L-65366; 9 NOV 1983
Posted by Pius Morados on November 13, 2011
(Constitutional Law – Right to Free Speech and Assembly, Public Rally, Clear and Present Danger)
FACTS: Petitioners sought a permit to hold a peaceful march and rally, requesting for the removal
of the foreign military bases in Manila, starting from Luneta park to the gates of the US Embassy.
Respondent Mayor denied the request as recommended by the police authorities and suggested
another area where the safety of the participants and the general public may be ensured. Petitioner
contends that said denial was a violation of free speech and assembly.
ISSUE: WON denial of a public rally on a public park and the US Embassy is a violation of
constitutional guarantee to free speech and assembly.
HELD: Yes. The invocation of the right to freedom of peaceable assembly carries with it the
implication that the right to free speech has likewise been disregarded. It is settled law that as to
public places, especially so as to parks and streets, there is freedom of access. Nor is their use
dependent on who is the applicant for the permit, whether an individual or a group. There can be no
legal objection, absent of clear and present danger of a substantive evil, on the choice of Luneta and
US Embassy as the place for the peaceful rally. Time immemorial Luneta has been used for
purposes of assembly, communicating thoughts between citizens, and discussing public questions.
Moreover, denial of permit for a rally in front of the US Embassy is justified only in the presence of
a clear and present danger to life or property of the embassy.
J.B.L. Reyes vs Bagatsing GR No. 65366 October 25, 1983
Facts
Retired Justice Jose B.L. Reyes, in behalf of the Anti-Bases Coalition, sought for a permit from the
City of Manila to hold a peaceful march and rally on October 26, 1983 starting from Luneta to the
gates of the United States embassy. The objective of the rally was to peacefully protest the removal
of all foreign military bases and to present a petition containing such to a representative of the
Embassy so it may be delivered to the United States Ambassador. This petition was to initially
compel the Mayor of the City of Manila to make a decision on the application for a permit but it
was discovered that a denial has already been sent through mail. It also included a provision that if
it be held somewhere else, permit may be issued. The respondent mayor alleges that holding the
rally in front of the US Embassy is a violation of the resolutions during the Vienna Convention on
Diplomatic Relations adopted in 1961 and of which the Philippines is a signatory. In the doctrine of
incorporation, the Philippines has to comply with such generally accepted principles of international
law as part of the law of the land. The petitioner, on the other hand, contends that the denial of the
permit is a violation of the constitutional right of the freedom of speech and expression.
Issue
Whether or not the Anti-Bases Coalition should be allowed to hold a peaceful protest rally in front
of the US Embassy
Ruling
The Supreme Court ruled to allow the rally in front of the US Embassy to protect the exercise of the
rights to free speech and peaceful assembly and on the ground that there was no showing of the
existence of a clear and present danger of a substantive evil that could justify the denial of the
permit. These rights are not only assured by our constitution but also provided for in the Universal
Declaration of Human Rights. Between the two generally accepted principles of diplomatic
relations and human rights, the former takes higher ground. The right of the freedom of expression
and peaceful assembly is highly ranked in the scheme of constitutional values.
Liang vs. People, 323 SCRA 652 (2000)
FACTS: Petitioner is an economist for ADB who was charged by the Metropolitan Trial Court
of Mandaluyong city for allegedly uttering defamatory words against her fellow worker with
two
counts of grave oral defamation. MeTC judge then received an office of protocol from the
Department of Foreign Affairs, stating that petitioner is covered by immunity from legal
process under section 45 of the agreement bet ADB and the government. MeTC judge, without
notice, dismissed the two criminal cases. Prosecution filed writ of mandamus and certiorari
and ordered
the MeTC to enforce the warrant of arrest.
ISSUES: Whether or not the petitioner is covered by immunity under the agreement and that
no preliminary investigation was held before the criminal cases were filed in court.
RULING: He is not covered by immunity because the commission of a crime is part of the
performance of official duty. Courts cannot blindly adhere and take on its face the
communication from the DFA that a certain person is covered by immunity. That
a person is covered by immunity is preliminary. Due process is right of the accused as much as
the prosecution.
Slandering a person is not covered by the agreement because our laws do not allow the
commission of a crime such as defamation in the name of official duty. Under Vienna
convention on Diplomatic Relations, commission of a crime is not part of official duty.
On the contention that there was no preliminary investigation conducted, suffice it to say that
preliminary investigation is not a matter of right in cases cognizable by the MeTC such as the
one at bar. Being purely a statutory right, preliminary investigation may be invoked only when
specifically granted by law. The rule on criminal procedure is clear than no preliminary
investigation is required in cases falling within the jurisdiction of the MeTC. Besides, the
absence of preliminary investigation does not affect the court’s jurisdiction nor does it
impair the validity of the information or otherwise render it
defective.
Liang vs. Peole
FACTS: Petitioner Jeffrey Liang, an economist working with the Asian Development Bank
(ADB) , was charged before the MeTC of Mandaluyong with two counts of grave oral
defamation for allegedly uttering defamatory words against a fellow ADB worker. Liang was
arrested but later released. The next day, the judge received an "office of protocol" from the
Department of Foreign Affairs (DFA) stating that Liang is covered by immunity from legal
process under Section 45 of the Agreement between the ADB and the Philippine Government.
Based on the said protocol communication, the judge, without notice to the prosecution,
dismissed the two criminal cases. The RTC set aside the MeTC ruling and ordered the latter
court to enforce the warrant of arrest it earlier issued. Liang appealed arguing that he is
covered by immunity under the Agreement.
ISSUES:
1. Was the judge correct in dismissing the cases on the basis the protocol communication
without notice to the prosecution?
2. Is Liang covered with immunity from legal process under Section 45 of the Agreement
between the ADB and the Philippine Government?
HELD:
1. No. Courts cannot blindly adhere and take on its face the communication from the DFA that
petitioner is covered by any immunity. The DFA's determination that a certain person is
covered by immunity is only preliminary which has no binding effect in courts. In receiving
ex-parte the DFA's advice and in motu proprio dismissing the two criminal cases without
notice to the prosecution, the latter's right to due process was violated. It should be noted that
due process is a right of the accused as much as it is of the prosecution. The needed inquiry in
what capacity petitioner was acting at the time of the alleged utterances requires for its
resolution evidentiary basis that has yet to be presented at the proper time. At any rate, it has
been ruled that the mere invocation of the immunity clause does not ipso facto result in the
dropping of the charges.
2. No.
Under Section 45 of the Agreement which provides:
"Officers and staff of the Bank including for the purpose of this Article experts and
consultants performing missions for the Bank shall enjoy the following privileges and
immunities:
a.)....... immunity from legal process with respect to acts performed by them in their official
capacity except when the Bank waives the immunity."
the immunity mentioned therein is not absolute, but subject to the exception that the act was
done in "official capacity." It is therefore necessary to determine if petitioners case falls within
the ambit of Section 45(a). Thus, the prosecution should have been given the chance to rebut
the DFA protocol and it must be accorded the opportunity to present its controverting
evidence, should it so desire.
Likewise, slandering a person could not possibly be covered by the immunity agreement
because our laws do not allow the commission of a crime, such as defamation, in the name of
official duty. It is well-settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have caused by his act done with
malice or in bad faith or beyond the scope of his authority or jurisdiction.
Moreover, under the Vienna Convention on Diplomatic Relations, a diplomatic agent,
assuming petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state
except in the case of an action relating to any professional or commercial activity exercised by
the diplomatic agent in the receiving state outside his official functions. As already mentioned
above, the commission of a crime is not part of official duty. (Liang vs People, G.R. No.
125865, January 28, 2000)
LIANG VS PEOPLE OF THE PHILIPPINES GR no. 125865 January 28, 2000
Petitioner: Jeffrey Liang
Respondent: People of the Philippines
FACTS:
Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for
allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before
the MeTC of Mandaluyong City with two counts of oral defamation. Petitioner was arrested by virtue of
a warrant issued by the MeTC. After fixing petitioner’s bail, the MeTC released him to the custody of
the Security Officer of ADB. The next day, the MeTC judge received an “office of protocol” from the
DFA stating that petitioner is covered by immunity from legal process under section 45 of the
Agreement between the ADB and the Philippine Government regarding the Headquarters of the ADB
in the country. Based on the said protocol communication that petitioner is immune from suit, the
MeTC judge without notice to the prosecution dismissed the criminal cases. The latter filed a motion for
reconsideration which was opposed by the DFA. When its motion was denied, the prosecution filed a
petition for certiorari and mandamus with the RTC of Pasig City which set aside the MeTC rulings and
ordered the latter court to enforce the warrant of arrest it earlier issued. After the motion for
reconsideration was denied, the petitioner elevated the case to the SC via a petition for review arguing
that he is covered by immunity under the Agreement and that no preliminary investigation was held
before the criminal case.
ISSUES:
(1) Whether or not the petitioner’s case is covered with immunity from legal process with regard to
Section 45 of the Agreement between the ADB and the Philippine Gov’t.
(2) Whether or not the conduct of preliminary investigation was imperative.
HELD:
(1) NO. The petitioner’s case is not covered by the immunity. Courts cannot blindly adhere to the
communication from the DFA that the petitioner is covered by any immunity. It has no binding effect in
courts. The court needs to protect the right to due process not only of the accused but also of the
prosecution. Secondly, the immunity under Section 45 of the Agreement is not absolute, but subject to
the exception that the acts must be done in “official capacity”. Hence, slandering a person could not
possibly be covered by the immunity agreement because our laws do not allow the commission of a
crime, such as defamation, in the name of official duty.
(2) NO. Preliminary Investigation is not a matter of right in cases cognizable by the MeTC such as this
case. Being purely a statutory right, preliminary investigation may be invoked only when specifically
granted by law. The rule on criminal procedure is clear that no preliminary investigation is required in
cases falling within the jurisdiction of the MeTC.
Hence, SC denied the petition.
Liang V. People
Liang v. People
G.R. No. 125865 March 26, 2001
Lesson: Criminal acts not immune
Laws Applicable: Vienna Convention
FACTS:
 2 criminal informations for for grave oral defamation were filed against Jeffrey Liang,
a Chinese national who was employed as an Economist by the Asian Development
Bank (ADB), by Joyce V. Cabal, a member of the clerical staff of ADB
 MTC: dismissed the complaint stating that Liang enjoyed immunity from legal
processes
 RTC: Upon a petition for certiorari and mandamus filed by the People of the
Philippines annulled and set aside the order of MTC
 SC: Denied petition for review on the ground that the immunity granted to officers
and staff of the ADB is not absolute and is limited on the official capacity and
immunity CANNOT cover the commission of a crime such as slander or oral
defamation in the name of official duty
 A motion of reconsideration is filed
ISSUE: W/N the crime of oral deflamation enjoys immunity
HELD: NO
 slander, in general, cannot be considered as an act performed in an official capacity
 issue of whether or not petitioner's utterances constituted oral defamation is still for
the trial court to determine
PUNO, J., concurring:
 the nature and degree of immunities vary depending on who the recipient is
 Under the Vienna Convention on Diplomatic Relations, a diplomatic envoy is
immune from criminal jurisdiction of the receiving State for all acts, whether private or
official, and hence he cannot be arrested, prosecuted and punished for any offense
he may commit, unless his diplomatic immunity is waived. On the other
hand, officials of international organizations enjoy "functional" immunities, that is, only
those necessary for the exercise of the functions of the organization and the
fulfillment of its purposes.
o officials and employees of the ADB are subject to the jurisdiction of the local courts for
their private acts, notwithstanding the absence of a waiver of immunity
o If the immunity does not exist, there is nothing to certify by the DFA
G.R. No. 113191 September 18, 1996
DEPARTMENT OF FOREIGN AFFAIRS, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION, HON. LABOR ARBITER NIEVES V. DE CASTRO and JOSE C. MAGNAYI,
respondents.
Facts: A complaint for illegal dismissal was filed against the Asian Development Bank ("ADB"). Uponreceipt of
summonses, both the ADB and the DFA notified the Labor Arbiter that the ADB, as well as itsPresident and Officers,
were covered by an immunity from legal process except for borrowings,guaranties or the sale of securities pursuant to
Article 50(1) and Article 55 of the Agreement Establishingthe Asian Development Bank (the "Charter") in relation to
Section 5 and
Section 44 of the AgreementBetween The Bank And The Government Of The Philippines Regarding The Bank's
Headquarters (the"Headquarters Agreement"). The Labor Arbiter took cognizance of the complaint on the impression
thatthe ADB had waived its diplomatic immunity from suit, and issued a judgment in favor of thecomplainant. The ADB
did not file an appeal, but the DFA sought a nullification with the NLRC. The latterdenied the request.Issue: Whether or
not ADB is immune from suit? Ruling: No. Under the Charter and HeadquartersAgreement, the ADB enjoys immunity
from legal process of every form, except in the specified cases of borrowing and guarantee operations, as well as the
purchase, sale and underwriting of securities. The Bank’s officers, on their part, enjoy immunity in respect of all acts
performed by them in their official capacity. The Charter and the Headquarters Agreement granting these immunities
and privileges aretreaty covenants and commitments voluntarily assumed by the Philippine government which must be
respected. Being an international organization that has been extended a diplomatic status, the ADB isindependent of
the municipal law. One of the basic immunities of an international organization is immunity from local jurisdiction, i.e.,
that it is immune from the legal writs and processes issued by the tribunals of the country where it is found. The
obvious reason for this is that the subjection of such an organization to the authority of the local courts would afford a
convenient medium thru which the host government may interfere in their operations or even influence or control its
policies and decisions of the organization; besides, such subjection to local jurisdiction would impair the capacity of
such body to discharge its responsibilities impartially on behalf of its member-states."
The ADB didn't descend to the level of an ordinary party to a commercial transaction, which should have constituted a
waiver of its immunity from suit, by entering into service contracts with different private companies. There are two
conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or
absolute theory, a sovereign cannot, without its consent, be made a respondent in the Courts of another sovereign.
According to the newer or restrictive theory, the immunity of the sovereign is recognized only with regard to public acts
or acts jure imperii of a state, but not with regard to private act or acts jure gestionis. 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 sovereignactivity, or an incident thereof, then it is an act jure imperii, especially when
it is not undertaken for gainor profit. The service contracts referred to by private respondent have not been intended by
the ADB forprofit or gain but are official acts over which a waiver of immunity would not attach.
Issue: Whether or not the DFA has the legal standing to file the present petition?
Ruling: The DFA's function includes, among its other mandates, the determination of persons and institutions covered
by diplomatic immunities, a determination which, when challenged, entitles it to seek relief from the court so as not to
seriously impair the conduct of the country's foreign relations.The DFA must be allowed to plead its case whenever
necessary or advisable to enable it to help keep the credibility of the Philippine government before the international
community. When international agreements are concluded, the parties thereto are deemed to have likewise accepted
the responsibility of seeing to it that their agreements are duly regarded. In our country, this task falls principally on the
DFA as being the highest executive department with the competence and authority to so act in this aspect of the
international arena.
DFA v. NLRC, 262 SCRA 39
FACTS:
The questions raised in this petition for certiorari are a few coincidental matters relative to the
diplomatic immunity extended to the Asian Development Bank ("ADB").
On 27 January 1993, private respondent initiated NLRC-NCR Case No. 00-01-0690-93 for his
alleged illegal dismissal by ADB
Forthwith, the ADB and the DFA notified respondent Labor Arbiter that the ADB, as well as its
President and Officers, were covered by an immunity from legal process except for borrowings,
guaranties or the sale of securities pursuant to Article 50(1) and Article 55 of the Agreement
Establishing the Asian Development Bank (the "Charter") in relation to Section 5 and Section 44
of the Agreement Between The Bank And The Government Of The Philippines Regarding The
Bank's Headquarters (the "Headquarters Agreement").
The Labor Arbiter took cognizance of the complaint and ruled in favor of the private complainant.
The ADB did not appeal the decision. Instead, on 03 November 1993, the DFA referred the matter
to the National Labor Relations Commission ("NLRC"). However, the NLRC instead suggested
that an appropriate complaint be lodged with the Office of the Ombudsman.
Dissatisfied, the DFA lodged the instant petition for certiorari.
ISSUE:
Whether or not ADB is entitled to diplomatic immunity.
RULING:
Yes. The above stipulations of both the Charter and Headquarters Agreement should be able, nay
well enough, to establish that, except in the specified cases of borrowing and guarantee
operations, as well as the purchase, sale and underwriting of securities, the ADB enjoys immunity
from legal process of every form. The Banks officers, on their part, enjoy immunity in respect of
all acts performed by them in their official capacity. The Charter and the Headquarters Agreement
granting these immunities and privileges are treaty covenants and commitments voluntarily
assumed by the Philippine government which must be respected.
In the instant case, the filing of the petition by the DFA, in behalf of ADB, is itself an affirmance of
the government's own recognition of ADB's immunity. 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. Being an international organization that has been extended a
diplomatic status, the ADB is independent of the municipal law.
Private respondent argues that, by entering into service contracts with different private companies,
ADB has descended to the level of an ordinary party to a commercial transaction giving rise to a
waiver of its immunity from suit.
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.
The service contracts referred to by private respondent have not been intended by the ADB for
profit or gain but are official acts over which a waiver of immunity would not attach. Therefore,
ADB is entitled to such immunity and the courts should respect diplomatic immunities of
international organizations recognized by the Philippine government.

World Health Organization v. Aquino 48 SCRA 243
Facts:
Herein petitioner, in behalf of Dr. Verstuyft, was allegedly suspected by the Constabulary
Offshore Action Center (COSAC) officers of carrying dutiable goods under the Customs and
Tariff Code of the Philippines. Respondent Judge then issued a search warrant at the instance
of the COSAC officers for the search and seizure of the personla effects of Dr. Verstuyft
notwithstanding his being entitled to diplomatic immunity, as duly recognized by the
Executive branch of the government.
The Secretary of Foreign Affairs Carlos P. Romulo advised the respondent judge that Dr.
Verstuyft is entitled to immunity from search in respect for his personal baggage as accorded
to members of diplomatic missions pursuant to the Host Agreement and further requested
for the suspension of the search warrant. The Solicitor General accordingly joined the
petitioner for the quashal of the search warrant but respondent judge nevertheless
summarily denied the quashal.
Issue:
Whether or not personal effect of WHO Officer Dr. Verstuyft can be exempted from search
and seizure under the diplomatic immunity.
Ruling:
The executive branch of the Phils has expressly recognized that Verstuyft is entitled to
diplomatic immunity, pursuant to the provisions of the Host Agreement. The DFA formally
advised respondent judge of the Philippine Government's official position. The Solicitor
General, as principal law officer of the gorvernment, likewise expressly affirmed said
petitioner's right to diplomatic immunity and asked for the quashal of the search warrant.
It recognized principle of international law and under our system of separation of powers
that diplomatic immunity is essentially a political question and courts should refuse to look
beyond a determination by the executive branch of government, and where the plea of
diplomatic immunity is recognized by the executive branch of the government as in the case
at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government, the Solicitor General in this case,
or other officer acting under his discretion. Courts may not so exercise their jurisdiction by
seizure and detention of property, as to embarass the executive arm of the government in
conducting foreign relations.
The Court, therefore, holds the respondent judge acted without jurisdiction and with grave
abuse of discretion in not ordering the quashal of the search warrant issued by him in
disregard of the diplomatic immunity of petitioner Verstuyft.
WHO vs Aquino Case Digest
Diplomatic Immunity, Political Question, Suits against International Agencies
Facts:
Dr. Leonce Verstuyft was assigned by WHO to its regional office in Manila as Acting Assistant
Director of Health Services. His personal effects, contained in twelve (12) crates, were
allowed free entry from duties and taxes. Constabulary Offshore Action Center (COSAC)
suspected that the crates “contain large quantities of highly dutiable goods” beyond the
official needs of Verstuyft. Upon application of the COSAC officers, Judge Aquino issued a
search warrant for the search and seizure of the personal effects of Verstuyft.
Secretary of Foreign Affairs Carlos P. Romulo advised Judge Aquino that Dr. Verstuyft is
entitled to immunity from search in respect for his personal baggage as accorded to
members of diplomatic missions pursuant to the Host Agreement and requested that the
search warrant be suspended. The Solicitor General accordingly joined Verstuyft for the
quashal of the search warrant but respondent judge nevertheless summarily denied the
quashal. Verstuyft, thus, filed a petition for certiorari and prohibition with the SC. WHO
joined Verstuyft in asserting diplomatic immunity.
Issue:
Whether or not personal effect of Verstuyft can be exempted from search and seizure under
the diplomatic immunity.
Held:
Yes. The executive branch of the Phils has expressly recognized that Verstuyft is entitled
to diplomatic immunity, pursuant to the provisions of the Host Agreement. The DFA formally
advised respondent judge of the Philippine Government's official position. The Solicitor
General, as principal law officer of the gorvernment, likewise expressly affirmed said
petitioner's right to diplomatic immunity and asked for the quashal of the search warrant.
It is a recognized principle of international law and under our system of separation of
powers that diplomatic immunity is essentially a political question and courts should refuse
to look beyond a determination by the executive branch of the government, and where the
plea of diplomatic immunity is recognized and affirmed by the executive branch of the
government as in the case at bar, it is then the duty of the courts to accept the claim of
immunity upon appropriate suggestion by the principal law officer of the government, the
Solicitor General in this case, or other officer acting under his discretion. Courts may not
so exercise their jurisdiction by seizure and detention of property, as to embarass the
executive arm of the government in conducting foreign relations.
The Court, therefore, holds the respondent judge acted without jurisdiction and with grave
abuse of discretion in not ordering the quashal of the search warrant issued by him in
disregard of the diplomatic immunity of petitioner Verstuyft. (World Health Organization
vs. Aquino, G.R. No. L-35131, November 29, 1972, 48 SCRA 243)