G.R. No.

L-46930 June 10, 1988

DALE SANDERS, AND A.S. MOREAU, JR, petitioners,
vs.
HON. REGINO T. VERIDIANO II, as Presiding Judge, Branch I, Court of
First Instance of Zambales, Olongapo City, ANTHONY M. ROSSI and
RALPH L. WYERS, respondents.
CRUZ, J.:
The basic issue to be resolved in this case is whether or not the petitioners
were performing their official duties when they did the acts for which they
have been sued for damages by the private respondents. Once this question
is decided, the other answers will fall into place and this petition need not
detain us any longer than it already has.
Petitioner Sanders was, at the time the incident in question occurred, the
special services director of the U.S. Naval Station (NAVSTA) in Olongapo
City. 1 Petitioner Moreau was the commanding officer of the Subic Naval Base,
which includes the said station. 2 Private respondent Rossi is an American citizen
with permanent residence in the Philippines, 3 as so was private respondent Wyer,
who died two years ago. 4 They were both employed as gameroom attendants in
the special services department of the NAVSTA, the former having been hired in
1971 and the latter in 1969. 5

On October 3, 1975, the private respondents were advised that their

employment had been converted from permanent full-time to permanent parttime, effective October 18, 1975. 6 Their reaction was to protest this conversion
and to institute grievance proceedings conformably to the pertinent rules and
regulations of the U.S. Department of Defense. The result was a recommendation
from the hearing officer who conducted the proceedings for the reinstatement of the
private respondents to permanent full-time status plus backwages. The report on
the hearing contained the observation that "Special Services management
practices an autocratic form of supervision." 7

In a letter addressed to petitioner Moreau on May 17, 1976 (Annex "A" of the
complaint), Sanders disagreed with the hearing officer's report and asked for
the rejection of the abovestated recommendation. The letter contained the
statements that: a ) "Mr. Rossi tends to alienate most co-workers and
supervisors;" b) "Messrs. Rossi and Wyers have proven, according to their
immediate supervisors, to be difficult employees to supervise;" and c) "even
though the grievants were under oath not to discuss the case with anyone,
(they) placed the records in public places where others not involved in the
case could hear."
On November 7, 1975, before the start of the grievance hearings, a-letter
(Annex "B" of the complaint) purportedly corning from petitioner Moreau as
the commanding general of the U.S. Naval Station in Subic Bay was sent to
the Chief of Naval Personnel explaining the change of the private
respondent's employment status and requesting concurrence therewith. The
letter did not carry his signature but was signed by W.B. Moore, Jr. "by
direction," presumably of Moreau.

On the basis of these antecedent facts, the private respondent filed in the
Court of First Instance of Olongapo City a for damages against the herein
petitioners on November 8, 1976. 8 The plaintiffs claimed that the letters
contained libelous imputations that had exposed them to ridicule and caused them
mental anguish and that the prejudgment of the grievance proceedings was an
invasion of their personal and proprietary rights.

The private respondents made it clear that the petitioners were being sued in
their private or personal capacity. However, in a motion to dismiss filed under
a special appearance, the petitioners argued that the acts complained of were
performed by them in the discharge of their official duties and that,
consequently, the court had no jurisdiction over them under the doctrine of
state immunity.
After extensive written arguments between the parties, the motion was denied
in an order dated March 8, 1977, 9 on the main ground that the petitioners had
not presented any evidence that their acts were official in nature and not personal
torts, moreover, the allegation in the complaint was that the defendants had acted
maliciously and in bad faith. The same order issued a writ of preliminary
attachment, conditioned upon the filing of a P10,000.00 bond by the plaintiffs,
against the properties of petitioner Moreau, who allegedly was then about to leave
the Philippines. Subsequently, to make matters worse for the defendants, petitioner
Moreau was declared in a default by the trial court in its order dated August 9,
1977. The motion to lift the default order on the ground that Moreau's failure to
appear at the pre-trial conference was the result of some misunderstanding, and
the motion for reconsideration of the denial of the motion to dismiss, which was filed
by the petitioner's new lawyers, were denied by the respondent court on September
7, 1977.

This petition for certiorari, prohibition and preliminary injunction was thereafter
filed before this Court, on the contention that the above-narrated acts of the
respondent court are tainted with grave abuse of discretion amounting to lack
of jurisdiction.
We return now to the basic question of whether the petitioners were acting
officially or only in their private capacities when they did the acts for which the
private respondents have sued them for damages.
It is stressed at the outset that the mere allegation that a government
functionary is being sued in his personal capacity will not automatically
remove him from the protection of the law of public officers and, if
appropriate, the doctrine of state immunity. By the same token, the mere
invocation of official character will not suffice to insulate him from suability
and liability for an act imputed to him as a personal tort committed without or
in excess of his authority. These well-settled principles are applicable not only
to the officers of the local state but also where the person sued in its courts
pertains to the government of a foreign state, as in the present case.
The respondent judge, apparently finding that the complained acts were
prima facie personal and tortious, decided to proceed to trial to determine
inter alia their precise character on the strength of the evidence to be
submitted by the parties. The petitioners have objected, arguing that no such

evidence was needed to substantiate their claim of jurisdictional immunity.

Pending resolution of this question, we issued a temporary restraining order
on September 26, 1977, that has since then suspended the proceedings in
this case in the court a quo.
In past cases, this Court has held that where the character of the act
complained of can be determined from the pleadings exchanged between the
parties before the trial, it is not necessary for the court to require them to
belabor the point at a trial still to be conducted. Such a proceeding would be
superfluous, not to say unfair to the defendant who is subjected to
unnecessary and avoidable inconvenience.
Thus, in Baer v. Tizon, 10 we held that a motion to dismiss a complaint against the
commanding general of the Olongapo Naval Base should not have been denied
because it had been sufficiently shown that the act for which he was being sued
was done in his official capacity on behalf of the American government. The United
States had not given its consent to be sued. It was the reverse situation in Syquia v.
Almeda Lopez," where we sustained the order of the lower court granting a where
we motion to dismiss a complaint against certain officers of the U.S. armed forces
also shown to be acting officially in the name of the American government. The
United States had also not waived its immunity from suit. Only three years ago, in
United States of America v. Ruiz, 12 we set aside the denial by the lower court of a
motion to dismiss a complaint for damages filed against the United States and
several of its officials, it appearing that the act complained of was governmental
rather than proprietary, and certainly not personal. In these and several other cases
13 the Court found it redundant to prolong the other case proceedings after it had
become clear that the suit could not prosper because the acts complained of were
covered by the doctrine of state immunity.

It is abundantly clear in the present case that the acts for which the
petitioners are being called to account were performed by them in the
discharge of their official duties. Sanders, as director of the special services
department of NAVSTA, undoubtedly had supervision over its personnel,
including the private respondents, and had a hand in their employment, work
assignments, discipline, dismissal and other related matters. It is not disputed
that the letter he had written was in fact a reply to a request from his superior,
the other petitioner, for more information regarding the case of the private
respondents. 14 Moreover, even in the absence of such request, he still was within
his rights in reacting to the hearing officer's criticismin effect a direct attack
against him-that Special Services was practicing "an autocratic form of
supervision."

As for Moreau,what he is claimed to have done was write the Chief of Naval
Personnel for concurrence with the conversion of the private respondents'
type of employment even before the grievance proceedings had even
commenced. Disregarding for the nonce the question of its timeliness, this act
is clearly official in nature, performed by Moreau as the immediate superior of
Sanders and directly answerable to Naval Personnel in matters involving the
special services department of NAVSTA In fact, the letter dealt with the
financial and budgetary problems of the department and contained

recommendations for their solution, including the re-designation of the private

respondents. There was nothing personal or private about it.
Given the official character of the above-described letters, we have to
conclude that the petitioners were, legally speaking, being sued as officers of
the United States government. As they have acted on behalf of that
government, and within the scope of their authority, it is that government, and
not the petitioners personally, that is responsible for their acts. Assuming that
the trial can proceed and it is proved that the claimants have a right to the
payment of damages, such award will have to be satisfied not by the
petitioners in their personal capacities but by the United States government
as their principal. This will require that government to perform an affirmative
act to satisfy the judgment, viz, the appropriation of the necessary amount to
cover the damages awarded, thus making the action a suit against that
government without its consent.
There should be no question by now that such complaint cannot prosper
unless the government sought to be held ultimately liable has given its
consent to' be sued. So we have ruled not only in Baer but in many other
decisions where we upheld the doctrine of state immunity as applicable not
only to our own government but also to foreign states sought to be subjected
to the jurisdiction of our courts. 15
The practical justification for the doctrine, as Holmes put it, is that "there can
be no legal right against the authority which makes the law on which the right
depends. 16 In the case of foreign states, the rule is derived from the principle of the
sovereign equality of states which wisely admonishes that par in parem non habet
imperium and that a contrary attitude would "unduly vex the peace of nations." 17
Our adherence to this precept is formally expressed in Article II, Section 2, of our
Constitution, where we reiterate from our previous charters that the Philippines
"adopts the generally accepted principles of international law as part of the law of
the land.

All this is not to say that in no case may a public officer be sued as such
without the previous consent of the state. To be sure, there are a number of
well-recognized exceptions. It is clear that a public officer may be sued as
such to compel him to do an act required by law, as where, say, a register of
deeds refuses to record a deed of sale; 18 or to restrain a Cabinet member, for
example, from enforcing a law claimed to be unconstitutional; 19 or to compel the
national treasurer to pay damages from an already appropriated assurance fund; 20
or the commissioner of internal revenue to refund tax over-payments from a fund
already available for the purpose; 21 or, in general, to secure a judgment that the
officer impleaded may satisfy by himself without the government itself having to do
a positive act to assist him. We have also held that where the government itself has
violated its own laws, the aggrieved party may directly implead the government
even without first filing his claim with the Commission on Audit as normally required,
as the doctrine of state immunity "cannot be used as an instrument for perpetrating
an injustice." 22

This case must also be distinguished from such decisions as Festejo v.

Fernando, 23 where the Court held that a bureau director could be sued for

damages on a personal tort committed by him when he acted without or in excess

of authority in forcibly taking private property without paying just compensation
therefor although he did convert it into a public irrigation canal. It was not necessary
to secure the previous consent of the state, nor could it be validly impleaded as a
party defendant, as it was not responsible for the defendant's unauthorized act.

The case at bar, to repeat, comes under the rule and not under any of the
recognized exceptions. The government of the United States has not given its
consent to be sued for the official acts of the petitioners, who cannot satisfy
any judgment that may be rendered against them. As it is the American
government itself that will have to perform the affirmative act of appropriating
the amount that may be adjudged for the private respondents, the complaint
must be dismissed for lack of jurisdiction.
The Court finds that, even under the law of public officers, the acts of the
petitioners are protected by the presumption of good faith, which has not
been overturned by the private respondents. Even mistakes concededly
committed by such public officers are not actionable as long as it is not shown
that they were motivated by malice or gross negligence amounting to bad
faith. 24 This, to, is well settled . 25 Furthermore, applying now our own penal laws,
the letters come under the concept of privileged communications and are not
punishable, 26 let alone the fact that the resented remarks are not defamatory by
our standards. It seems the private respondents have overstated their case.

A final consideration is that since the questioned acts were done in the
Olongapo Naval Base by the petitioners in the performance of their official
duties and the private respondents are themselves American citizens, it would
seem only proper for the courts of this country to refrain from taking
cognizance of this matter and to treat it as coming under the internal
administration of the said base.
The petitioners' counsel have submitted a memorandum replete with citations
of American cases, as if they were arguing before a court of the United
States. The Court is bemused by such attitude. While these decisions do
have persuasive effect upon us, they can at best be invoked only to support
our own jurisprudence, which we have developed and enriched on the basis
of our own persuasions as a people, particularly since we became
independent in 1946.
We appreciate the assistance foreign decisions offer us, and not only from
the United States but also from Spain and other countries from which we
have derived some if not most of our own laws. But we should not place
undue and fawning reliance upon them and regard them as indispensable
mental crutches without which we cannot come to our own decisions through
the employment of our own endowments We live in a different ambience and
must decide our own problems in the light of our own interests and needs,
and of our qualities and even idiosyncrasies as a people, and always with our
own concept of law and justice.
The private respondents must, if they are still sominded, pursue their claim
against the petitioners in accordance with the laws of the United States, of
which they are all citizens and under whose jurisdiction the alleged offenses

were committed. Even assuming that our own laws are applicable, the United
States government has not decided to give its consent to be sued in our
courts, which therefore has not acquired the competence to act on the said
claim,.
WHEREFORE, the petition is GRANTED. The challenged orders dated
March 8,1977, August 9,1977, and September 7, 1977, are SET ASIDE. The
respondent court is directed to DISMISS Civil Case No. 2077-O. Our
Temporary restraining order of September 26,1977, is made PERMANENT.
No costs.
SO ORDERED.
Narvasa, Gancayco, Grino-Aquio and Medialdea, JJ., Concur.
G.R. No. 84607 March 19, 1993
REPUBLIC OF THE PHILIPPINES, GEN. RAMON MONTANO, GEN.
ALFREDO LIM, GEN. ALEXANDER AGUIRRE, COL. EDGAR DULA
TORRES, COL. CEZAR NAZARENO, MAJ. FILEMON GASMEN, PAT.
NICANOR ABANDO, PFC SERAFIN CEBU, JR., GEN. BRIGIDO
PAREDES, COL. ROGELIO MONFORTE, PFC ANTONIO LUCERO, PAT.
JOSE MENDIOLA, PAT. NELSON TUASON, POLICE CORPORAL
PANFILO ROGOS, POLICE LT. JUAN B. BELTRAN, PAT. NOEL
MANAGBAO, MARINE THIRD CLASS TRAINEE (3CT) NOLITO NOGATO,
3CT ALEJANDRO B. NAGUIO, JR., EFREN ARCILLAS, 3CT AGERICO
LUNA, 3CT BASILIO BORJA, 3CT MANOLITO LUSPO, 3CT CRISTITUTO
GERVACIO, 3CT MANUEL DELA CRUZ, JR., MARINE (CDC) BN., (CIVIL
DISTURBANCE CONTROL), MOBILE DISPERSAL TEAM (MDT), LT.
ROMEO PAQUINTO, LT. LAONGLAANG GOCE, MAJ. DEMETRIO DE LA
CRUZ, POLICE CAPTAIN RODOLFO NAVAL, JOHN DOE, RICHARD DOE,
ROBERTO DOE AND OTHER DOES, petitioners,
vs.
HON. EDILBERTO G. SANDOVAL, Regional Trial Court of Manila, Branch
IX, ERLINDA C. CAYLAO, ANATALIA ANGELES PEREZ, MYRNA
BAUTISTA, CIPRIANA EVANGELIO, ELMA GRAMPA, AMELIA
GUTIERREZ, NEMESIO LAKINDANUM, PURITA YUMUL, MIGUEL
ARABE, TERESITA ARJONA, RONALDO CAMPOMANES AND
CARMENCITA ARDONI VDA. DE CAMPOMANES, ROGELIO DOMUNICO,
in their capacity as heirs of the deceased (ROBERTO C. CAYLAO,
SONNY "BOY" PEREZ, DIONESIO BAUTISTA, DANTE EVANGELIO,
ADELFA ARIBE, DANILO ARJONA, VICENTE CAMPOMANES, RONILO
DOMUNICO) respectively; and (names of sixty-two injured victims)
EDDIE AGUINALDO, FELICISIMO ALBASIA, NAPOLEON BAUTISTA,
DANILO CRUZ, EDDIE MENSOLA, ALBERT PITALBO, VICENTE ROSEL,
RUBEN CARRIEDO, JOY CRUZ, HONORIO LABAMBA, JR., EFREN
MACARAIG, SOLOMON MANALOTO, ROMEO DURAN, NILO TAGUBAT,
JUN CARSELLAR, JOEY CLEMENTE, GERARDO COYOCA, LUISITO
DACO, BENJAMIN DELA CRUZ, ARTHUR FONTANILLA, WILSON

GARCIA, CARLOS SIRAY, JOSE PERRAS, TOMAS VALLOS, ARNOLD

ENAJE, MARIANITA DIMAPILIS, FRANCISCO ANGELES, MARCELO
ESGUERRA, JOSE FERRER, RODEL DE GUIA, ELVIS MENDOZA,
VICTORIANO QUIJANO, JOEY ADIME, RESIENO ADUL, ALBERTO
TARSONA, CARLOS ALCANTARA, MAMERTO ALIAS, EMELITO
ALMONTE, BENILDA ALONUEVO, EMMA ABADILLO, REYNALDO
CABALLES, JR., JAIME CALDETO, FABIAN CANTELEJO, RODRIGO
CARABARA, ENRIQUE DELGADO, JUN DELOS SANTOS, MARIO
DEMASACA, FRANCISCO GONZALES, ERNESTO GONZALES, RAMIRO
JAMIL, JUAN LUCENA, PERLITO SALAYSAY, JOHNNY SANTOS,
MARCELO SANTOS, EMIL SAYAO, BAYANI UMALI, REMIGIO MAHALIN,
BONG MANLULO, ARMANDO MATIENZO, CARLO MEDINA, LITO
NOVENARIO, and ROSELLA ROBALE, respondents.
G.R. No. 84645 March 19, 1993
ERLINDA C. CAYLAO, ANATALIA ANGELES PEREZ, MYRNA BAUTISTA,
CIPRIANA EVANGELIO, ELMA GRAMPA, AMELIA GUTIERREZ,
NEMESIO LAKINDANUM, PURITA YUMUL, MIGUEL ARABE, TERESITA
ARJONA, RONALDO CAMPOMANES AND CARMENCITA ARDONI VDA.
DE CAMPOMANES, ROGELIO DOMUNICO, in their capacity as heirs of
the deceased (ROBERTO C. CAYLAO, SONNY "BOY" PEREZ, DIONESIO
GRAMPA, ANGELITO GUTIERREZ, BERNABE LAKINDANUM, ROBERTO
YUMUL, LEOPOLDO ALONZO, ADELFA ARIBE, DANILO ARJONA,
VICENTE CAMPOMANES, RONILO DOMUNICO) respectively; and
(names of sixty-two injured victims) EDDIE AGUINALDO, FELICISIMO
ALBASIA, NAPOLEON BAUTISTA, DANILO CRUZ, EDDIE MENSOLA,
ALBERT PITALBO, VICENTE ROSEL, RUBEN CARRIEDO, JOY CRUZ,
HONORIO LABAMBA, JR. EFREN MACARAIG, SOLOMON MANALOTO,
ROMEO DURAN, NILO TAGUBAT, JUN CARSELLAR, JOEY CLEMENTE,
GERARDO COYOCA, LUISITO DACO, BENJAMIN DELA CRUZ, ARTHUR
FONTANILLA, WILSON GARCIA, CARLOS SIRAY, JOSE PERRAS
TOMAS VALLOS, ARNOLD ENAJE, MARIANITA DIMAPILIS, FRANCISCO
ANGELES, MARCELO ESGUERRA, JOSE FERRER, RODEL DE GUIA,
ELVIS MENDOZA, VICTORINO QUIJANO, JOEY ADIME, RESIENO ADUL,
ALBERTO TARSONA, CARLOS ALCANTARA, MAMERTO ALIAS,
EMELITO ALMONTE, BENILDA ALONUEVO, EMMA ABADILLO,
REYNALDO CABALLES, JR., JAIME CALDETO, FABIAN CANTELEJO,
RODRIGO CARABARA, ENRIQUE DELGADO, JUN DELOS SANTOS,
MARIO DEMASACA, FRANCISCO GONZALES, ERNESTO GONZALES,
RAMIRO JAMIL, JUAN LUCENA, PERLITO SALAYSAY, JOHNNY
SANTOS, MARCELO SANTOS, EMIL SAYAO, BAYANI UMALI, REMIGIO
MAHALIN, BONG MANLULO, ARMANDO MATIENZO, CARLO MEDINA,
LITO NOVENARIO, ROSELLA ROBALE, petitioners,
vs.
REPUBLIC OF THE PHILIPPINES, and HONORABLE EDILBERTO G.
SANDOVAL, Regional Trial Court of Manila, Branch 9, respondents.

The Solicitor General for the Republic of the Philippines.

Structural Alternative Legal Assistance for Grassroots for petitioners in
84645 & private respondents in 84607.
CAMPOS, JR., J.:
People may have already forgotten the tragedy that transpired on
January 22, 1987. It is quite ironic that then, some journalists called it a
Black Thursday, as a grim reminder to the nation of the misfortune that
befell twelve (12) rallyists. But for most Filipinos now, the Mendiola
massacre may now just as well be a chapter in our history books. For
those however, who have become widows and orphans, certainly they
would not settle for just that. They seek retribution for the lives taken
that will never be brought back to life again.
Hence, the heirs of the deceased, together with those injured (Caylao
group), instituted this petition, docketed as G.R. No. 84645, under
Section 1 of Rule 65 of the Rules of Court, seeking the reversal and
setting aside of the Orders of respondent Judge Sandoval, 1 dated May 31
and August 8, 1988, dismissing the complaint for damages of herein
petitioners against the Republic of the Philippines in Civil Case No. 88-43351.

Petitioner, the Republic of the Philippines, through a similar remedy,

docketed as G.R. No. 84607, seeks to set aside the Order of respondent
Judge dated May 31, 1988, in Civil Case No. 88-43351 entitled "Erlinda
Caylao, et al. vs. Republic of the Philippines, et al."
The pertinent portion of the questioned Order 2 dated May 31, 1988, reads
as follows:

With respect however to the other defendants, the impleaded Military

Officers, since they are being charged in their personal and official
capacity, and holding them liable, if at all, would not result in financial
responsibility of the government, the principle of immunity from suit
can not conveniently and correspondingly be applied to them.
WHEREFORE, the case as against the defendant Republic of the
Philippines is hereby dismissed. As against the rest of the defendants
the motion to dismiss is denied. They are given a period of ten (10) days
from receipt of this order within which to file their respective pleadings.
On the other hand, the Order 3, dated August 8, 1988, denied the motions
filed by both parties, for a reconsideration of the abovecited Order,
respondent Judge finding no cogent reason to disturb the said order.

The massacre was the culmination of eight days and seven nights of
encampment by members of the militant Kilusang Magbubukid sa
Pilipinas (KMP) at the then Ministry (now Department) of Agrarian
Reform (MAR) at the Philippine Tobacco Administration Building along
Elliptical Road in Diliman, Quezon City.
The farmers and their sympathizers presented their demands for what
they called "genuine agrarian reform". The KMP, led by its national
president, Jaime Tadeo, presented their problems and demands, among

which were: (a) giving lands for free to farmers; (b) zero retention of
lands by landlords; and (c) stop amortizations of land payments.
The dialogue between the farmers and the MAR officials began on
January 15, 1987. The two days that followed saw a marked increase in
people at the encampment. It was only on January 19, 1987 that Jaime
Tadeo arrived to meet with then Minister Heherson Alvarez, only to be
informed that the Minister can only meet with him the following day. On
January 20, 1987, the meeting was held at the MAR conference room.
Tadeo demanded that the minimum comprehensive land reform
program be granted immediately. Minister Alvarez, for his part, can only
promise to do his best to bring the matter to the attention of then
President Aquino, during the cabinet meeting on January 21, 1987.
Tension mounted the following day. The farmers, now on their seventh
day of encampment, barricaded the MAR premises and prevented the
employees from going inside their offices. They hoisted the KMP flag
together with the Philippine flag.
At around 6:30 p.m. of the same day, Minister Alvarez, in a meeting with
Tadeo and his leaders, advised the latter to instead wait for the
ratification of the 1987 Constitution and just allow the government to
implement its comprehensive land reform program. Tadeo, however,
countered by saying that he did not believe in the Constitution and that
a genuine land reform cannot be realized under a landlord-controlled
Congress. A heated discussion ensued between Tadeo and Minister
Alvarez. This notwithstanding, Minister Alvarez suggested a negotiating
panel from each side to meet again the following day.
On January 22, 1987, Tadeo's group instead decided to march to
Malacaang to air their demands. Before the march started, Tadeo
talked to the press and TV media. He uttered fiery words, the most
telling of which were:
". . . inalis namin ang barikada bilang kahilingan ng ating Presidente,
pero kinakailangan alisin din niya ang barikada sa Mendiola sapagkat
bubutasin din namin iyon at dadanak ang dugo . . . ." 4
The farmers then proceeded to march to Malacaang, from Quezon
Memorial Circle, at 10:00 a.m. They were later joined by members of
other sectoral organizations such as the Kilusang Mayo Uno (KMU),
Bagong Alyansang Makabayan (BAYAN), League of Filipino Students
(LFS) and Kongreso ng Pagkakaisa ng Maralitang Lungsod (KPML).
At around 1:00 p.m., the marchers reached Liwasang Bonifacio where
they held a brief program. It was at this point that some of the marchers
entered the eastern side of the Post Office Building, and removed the
steel bars surrounding the garden. Thereafter, they joined the march to
Malacaang. At about 4:30 p.m., they reached C.M. Recto Avenue.
In anticipation of a civil disturbance, and acting upon reports received
by the Capital Regional Command (CAPCOM) that the rallyists would
proceed to Mendiola to break through the police lines and rush towards

Malacaang, CAPCOM Commander General Ramon E. Montao

inspected the preparations and adequacy of the government forces to
quell impending attacks.
OPLAN YELLOW (Revised) was put into effect. Task Force Nazareno
under the command of Col. Cesar Nazareno was deployed at the vicinity
of Malacaang. The civil disturbance control units of the Western Police
District under Police Brigadier General Alfredo S. Lim were also
activated.
Intelligence reports were also received that the KMP was heavily
infiltrated by CPP/NPA elements and that an insurrection was
impending. The threat seemed grave as there were also reports that San
Beda College and Centro Escolar University would be forcibly occupied.
In its report, the Citizens' Mendiola Commission (a body specifically
tasked to investigate the facts surrounding the incident, Commission
for short) stated that the government anti-riot forces were assembled at
Mendiola in a formation of three phalanges, in the following manner:
(1) The first line was composed of policemen from police stations Nos.
3, 4, 6, 7, 8, 9 and 10 and the Chinatown detachment of the Western
Police District. Police Colonel Edgar Dula Torres, Deputy
Superintendent of the Western Police District, was designated as
ground commander of the CDC first line of defense. The WPD CDC
elements were positioned at the intersection of Mendiola and Legarda
Streets after they were ordered to move forward from the top of
Mendiola bridge. The WPD forces were in khaki uniform and carried the
standard CDC equipment aluminum shields, truncheons and gas
masks.
(2) At the second line of defense about ten (10) yards behind the WPD
policemen were the elements of the Integrated National Police (INP)
Field Force stationed at Fort Bonifacio from the 61st and 62nd INP Field
Force, who carried also the standard CDC equipment truncheons,
shields and gas masks. The INP Field Force was under the command of
Police Major Demetrio dela Cruz.
(3) Forming the third line was the Marine Civil Disturbance Control
Battalion composed of the first and second companies of the Philippine
Marines stationed at Fort Bonifacio. The marines were all equipped with
shields, truncheons and M-16 rifles (armalites) slung at their backs,
under the command of Major Felimon B. Gasmin. The Marine CDC
Battalion was positioned in line formation ten (10) yards farther behind
the INP Field Force.
At the back of the marines were four (4) 6 x 6 army trucks, occupying
the entire width of Mendiola street, followed immediately by two water
cannons, one on each side of the street and eight fire trucks, four trucks
on each side of the street. The eight fire trucks from Fire District I of
Manila under Fire Superintendent Mario C. Tanchanco, were to supply
water to the two water cannons.

Stationed farther behind the CDC forces were the two Mobile Dispersal
Teams (MDT) each composed of two tear gas grenadiers, two spotters,
an assistant grenadier, a driver and the team leader.
In front of the College of the Holy Spirit near Gate 4 of Malacaang
stood the VOLVO Mobile Communications Van of the Commanding
General of CAPCOM/INP, General Ramon E. Montao. At this command
post, after General Montao had conferred with TF Nazareno
Commander, Colonel Cezar Nazareno, about the adequacy and
readiness of his forces, it was agreed that Police General Alfredo S. Lim
would designate Police Colonel Edgar Dula Torres and Police Major
Conrado Francisco as negotiators with the marchers. Police General
Lim then proceeded to the WPD CDC elements already positioned at the
foot of Mendiola bridge to relay to Police Colonel Torres and Police
Major Francisco the instructions that the latter would negotiate with the
marchers. 5 (Emphasis supplied)
The marchers, at around 4:30 p.m., numbered about 10,000 to 15,000.
From C.M. Recto Avenue, they proceeded toward the police lines. No
dialogue took place between the marchers and the anti-riot squad. It
was at this moment that a clash occurred and, borrowing the words of
the Commission "pandemonium broke loose". The Commission stated
in its findings, to wit:
. . . There was an explosion followed by throwing of pillboxes, stones
and bottles. Steel bars, wooden clubs and lead pipes were used against
the police. The police fought back with their shields and truncheons.
The police line was breached. Suddenly shots were heard. The
demonstrators disengaged from the government forces and retreated
towards C.M. Recto Avenue. But sporadic firing continued from the
government forces.
After the firing ceased, two MDTs headed by Lt. Romeo Paquinto and Lt.
Laonglaan Goce sped towards Legarda Street and lobbed tear gas at
the remaining rallyist still grouped in the vicinity of Mendiola. After
dispersing the crowd, the two MDTs, together with the two WPD MDTs,
proceeded to Liwasang Bonifacio upon order of General Montao to
disperse the rallyists assembled thereat. Assisting the MDTs were a
number of policemen from the WPD, attired in civilian clothes with white
head bands, who were armed with long firearms. 6 (Emphasis ours)
After the clash, twelve (12) marchers were officially confirmed dead,
although according to Tadeo, there were thirteen (13) dead, but he was
not able to give the name and address of said victim. Thirty-nine (39)
were wounded by gunshots and twelve (12) sustained minor injuries, all
belonging to the group of the marchers.
Of the police and military personnel, three (3) sustained gunshot
wounds and twenty (20) suffered minor physical injuries such as
abrasions, contusions and the like.

In the aftermath of the confrontation, then President Corazon C. Aquino

issued Administrative Order No. 11, 7 (A.O. 11, for brevity) dated January
22, 1987, which created the Citizens' Mendiola Commission. The body was
composed of retired Supreme Court Justice Vicente Abad Santos as
Chairman, retired Supreme Court Justice Jose Y. Feria and Mr. Antonio U.
Miranda, both as members. A.O. 11 stated that the Commission was created
precisely for the "purpose of conducting an investigation of the disorder,
deaths, and casualties that took place in the vicinity of Mendiola Bridge and
Mendiola Street and Claro M. Recto Avenue, Manila, in the afternoon of
January 22, 1987". The Commission was expected to have submitted its
findings not later than February 6, 1987. But it failed to do so. Consequently,
the deadline was moved to February 16, 1987 by Administrative Order No. 13.
Again, the Commission was unable to meet this deadline. Finally, on February
27, 1987, it submitted its report, in accordance with Administrative Order No.
17, issued on February 11, 1987.

In its report, the Commission recapitulated its findings, to wit:

(1) The march to Mendiola of the KMP led by Jaime Tadeo, together with
the other sectoral groups, was not covered by any permit as required
under Batas Pambansa Blg. 880, the Public Assembly Act of 1985, in
violation of paragraph (a) Section 13, punishable under paragraph (a),
Section 14 of said law.
(2) The crowd dispersal control units of the police and the military were
armed with .38 and .45 caliber handguns, and M-16 armalites, which is a
prohibited act under paragraph 4(g), Section 13, and punishable under
paragraph (b), Section 14 of Batas Pambansa Blg. 880.
(3) The security men assigned to protect the WPD, INP Field Force, the
Marines and supporting military units, as well as the security officers of
the police and military commanders were in civilian attire in violation of
paragraph (a), Section 10, Batas Pambansa 880.
(4) There was unnecessary firing by the police and military crowd
dispersal control units in dispersing the marchers, a prohibited act
under paragraph (e), Section 13, and punishable under paragraph (b),
Section 14, Batas Pambansa Blg. 880.
(5) The carrying and use of steel bars, pillboxes, darts, lead pipe,
wooden clubs with spikes, and guns by the marchers as offensive
weapons are prohibited acts punishable under paragraph (g), Section
13, and punishable under paragraph (e), Section 14 of Batas Pambansa
Blg. 880.
(6) The KMP farmers broke off further negotiations with the MAR
officials and were determined to march to Malacaang, emboldened as
they are, by the inflammatory and incendiary utterances of their leader,
Jaime Tadeo "bubutasin namin ang barikada . . Dadanak and
dugo . . . Ang nagugutom na magsasaka ay gagawa ng sariling butas. . .
(7) There was no dialogue between the rallyists and the government
forces. Upon approaching the intersections of Legarda and Mendiola,

the marchers began pushing the police lines and penetrated and broke
through the first line of the CDC contingent.
(8) The police fought back with their truncheons and shields. They
stood their ground but the CDC line was breached. There ensued
gunfire from both sides. It is not clear who started the firing.
(9) At the onset of the disturbance and violence, the water cannons and
tear gas were not put into effective use to disperse the rioting crowd.
(10) The water cannons and fire trucks were not put into operation
because (a) there was no order to use them; (b) they were incorrectly
prepositioned; and (c) they were out of range of the marchers.
(11) Tear gas was not used at the start of the disturbance to disperse the
rioters. After the crowd had dispersed and the wounded and dead were
being carried away, the MDTs of the police and the military with their
tear gas equipment and components conducted dispersal operations in
the Mendiola area and proceeded to Liwasang Bonifacio to disperse the
remnants of the marchers.
(12) No barbed wire barricade was used in Mendiola but no official
reason was given for its absence. 8
From the results of the probe, the Commission recommended 9 the
criminal prosecution of four unidentified, uniformed individuals, shown either
on tape or in pictures, firing at the direction of the marchers. In connection
with this, it was the Commission's recommendation that the National Bureau
of Investigation (NBI) be tasked to undertake investigations regarding the
identities of those who actually fired their guns that resulted in the death of or
injury to the victims of the incident. The Commission also suggested that all
the commissioned officers of both the Western Police District and the INP
Field Force, who were armed during the incident, be prosecuted for violation
of paragraph 4(g) of Section 13, Batas Pambansa Blg. 880, the Public
Assembly Act of 1985. The Commission's recommendation also included the
prosecution of the marchers, for carrying deadly or offensive weapons, but
whose identities have yet to be established. As for Jaime Tadeo, the
Commission said that he should be prosecuted both for violation of
paragraph (a), Section 13, Batas Pambansa Blg. 880 for holding the rally
without a permit and for violation of Article 142, as amended, of the Revised
Penal Code for inciting to sedition. As for the following officers, namely: (1)
Gen. Ramon E. Montao; (2) Police Gen. Alfredo S. Lim; (3) Police Gen. Edgar
Dula Torres; (4) Police Maj. Demetrio dela Cruz; (5) Col. Cezar Nazareno; and
(5) Maj. Felimon Gasmin, for their failure to make effective use of their skill
and experience in directing the dispersal operations in Mendiola,
administrative sanctions were recommended to be imposed.

The last and the most significant recommendation of the Commission

was for the deceased and wounded victims of the Mendiola incident to
be compensated by the government. It was this portion that petitioners
(Caylao group) invoke in their claim for damages from the government.
Notwithstanding such recommendation, no concrete form of
compensation was received by the victims. Thus, on July 27, 1987,

herein petitioners, (Caylao group) filed a formal letter of demand for

compensation from the Government. 10 This formal demand was indorsed
by the office of the Executive Secretary to the Department of Budget and
Management (DBM) on August 13, 1987. The House Committee on Human
Rights, on February 10, 1988, recommended the expeditious payment of
compensation to the Mendiola victims. 11

After almost a year, on January 20, 1988, petitioners (Caylao group)

were constrained to institute an action for damages against the
Republic of the Philippines, together with the military officers, and
personnel involved in the Mendiola incident, before the trial court. The
complaint was docketed as Civil Case No. 88-43351.
On February 23, 1988, the Solicitor General filed a Motion to Dismiss on
the ground that the State cannot be sued without its consent.
Petitioners opposed said motion on March 16, 1988, maintaining that
the State has waived its immunity from suit and that the dismissal of the
instant action is contrary to both the Constitution and the International
Law on Human Rights.
Respondent Judge Sandoval, in his first questioned Order, dismissed
the complaint as against the Republic of the Philippines on the ground
that there was no waiver by the State. Petitioners (Caylao group) filed a
Motion for Reconsideration therefrom, but the same was denied by
respondent judge in his Order dated August 8, 1988. Consequently,
Caylao and her co-petitioners filed the instant petition.
On the other hand, the Republic of the Philippines, together with the
military officers and personnel impleaded as defendants in the court
below, filed its petition for certiorari.
Having arisen from the same factual beginnings and raising practically
identical issues, the two (2) petitions were consolidated and will
therefore be jointly dealt with and resolved in this Decision.
The resolution of both petitions revolves around the main issue of
whether or not the State has waived its immunity from suit.
Petitioners (Caylao group) advance the argument that the State has
impliedly waived its sovereign immunity from suit. It is their considered
view that by the recommendation made by the Commission for the
government to indemnify the heirs and victims of the Mendiola incident
and by the public addresses made by then President Aquino in the
aftermath of the killings, the State has consented to be sued.
Under our Constitution the principle of immunity of the government
from suit is expressly provided in Article XVI, Section 3. The principle is
based on the very essence of sovereignty, and on the practical ground
that there can be no legal right as against the authority that makes the
law on which the right depends. 12 It also rests on reasons of public policy
that public service would be hindered, and the public endangered, if the
sovereign authority could be subjected to law suits at the instance of every
citizen and consequently controlled in the uses and dispositions of the
means required for the proper administration of the government. 13

This is not a suit against the State with its consent.

Firstly, the recommendation made by the Commission regarding
indemnification of the heirs of the deceased and the victims of the
incident by the government does not in any way mean that liability
automatically attaches to the State. It is important to note that A.O. 11
expressly states that the purpose of creating the Commission was to
have a body that will conduct an "investigation of the disorder, deaths
and casualties that took place." 14 In the exercise of its functions, A.O. 11
provides guidelines, and what is relevant to Our discussion reads:

1 Its conclusions regarding the existence of probable cause for the

commission of any offense and of the persons probably guilty of the
same shall be sufficient compliance with the rules on preliminary
investigation and the charges arising therefrom may be filed directly
with the proper court. 15
In effect, whatever may be the findings of the Commission, the same
shall only serve as the cause of action in the event that any party
decides to litigate his/her claim. Therefore, the Commission is merely a
preliminary venue. The Commission is not the end in itself. Whatever
recommendation it makes cannot in any way bind the State immediately,
such recommendation not having become final and, executory. This is
precisely the essence of it being a fact-finding body.
Secondly, whatever acts or utterances that then President Aquino may
have done or said, the same are not tantamount to the State having
waived its immunity from suit. The President's act of joining the
marchers, days after the incident, does not mean that there was an
admission by the State of any liability. In fact to borrow the words of
petitioners (Caylao group), "it was an act of solidarity by the
government with the people". Moreover, petitioners rely on President
Aquino's speech promising that the government would address the
grievances of the rallyists. By this alone, it cannot be inferred that the
State has admitted any liability, much less can it be inferred that it has
consented to the suit.
Although consent to be sued may be given impliedly, still it cannot be
maintained that such consent was given considering the circumstances
obtaining in the instant case.
Thirdly, the case does not qualify as a suit against the State.
Some instances when a suit against the State is proper are: 16
(1) When the Republic is sued by name;
(2) When the suit is against an unincorporated government agency;
(3) When the, suit is on its face against a government officer but the
case is such that ultimate liability will belong not to the officer but to the
government.
While the Republic in this case is sued by name, the ultimate liability
does not pertain to the government. Although the military officers and
personnel, then party defendants, were discharging their official

functions when the incident occurred, their functions ceased to be

official the moment they exceeded their authority. Based on the
Commission findings, there was lack of justification by the government
forces in the use of firearms. 17 Moreover, the members of the police and
military crowd dispersal units committed a prohibited act under B.P. Blg. 880
18 as there was unnecessary firing by them in dispersing the marchers. 19

As early as 1954, this Court has pronounced that an officer cannot

shelter himself by the plea that he is a public agent acting under the
color of his office when his acts are wholly without authority. 20 Until

recently in 1991, 21 this doctrine still found application, this Court saying that
immunity from suit cannot institutionalize irresponsibility and nonaccountability nor grant a privileged status not claimed by any other official
of the Republic. The military and police forces were deployed to ensure that
the rally would be peaceful and orderly as well as to guarantee the safety of
the very people that they are duty-bound to protect. However, the facts as
found by the trial court showed that they fired at the unruly crowd to disperse
the latter.

While it is true that nothing is better settled than the general rule that a
sovereign state and its political subdivisions cannot be sued in the
courts except when it has given its consent, it cannot be invoked by
both the military officers to release them from any liability, and by the
heirs and victims to demand indemnification from the government. The
principle of state immunity from suit does not apply, as in this case,
when the relief demanded by the suit requires no affirmative official
action on the part of the State nor the affirmative discharge of any
obligation which belongs to the State in its political capacity, even
though the officers or agents who are made defendants claim to hold or
act only by virtue of a title of the state and as its agents and servants. 22
This Court has made it quite clear that even a "high position in the
government does not confer a license to persecute or recklessly injure
another." 23

The inescapable conclusion is that the State cannot be held civilly liable
for the deaths that followed the incident. Instead, the liability should fall
on the named defendants in the lower court. In line with the ruling of
this court in Shauf vs. Court of Appeals, 24 herein public officials, having
been found to have acted beyond the scope of their authority, may be held
liable for damages.

WHEREFORE, finding no reversible error and no grave abuse of

discretion committed by respondent Judge in issuing the questioned
orders, the instant petitions are hereby DISMISSED.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado,
Davide, Jr., Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.
Gutierrez, Jr., J., is on leave.

G.R. No. L-5156

March 11, 1954
CARMEN FESTEJO, demandante-apelante,
vs.
ISAIAS FERNANDO, Director de Obras Publicas, demandado-apelado.
D. Eloy B. Bello en representacion de la apelante.
El Procurador General Sr. Pompeyo Diaz y el Procurador Sr. Antonio A.
Torres en representacion del apelado.
DIOKNO, J.:
Carmen Festejo, duea de unos terrenos azucareros, de un total de unas 9
hectareas y media de superfice, demando a "Isaias Fernando Director,
Bureau of public Works, que como tal Director de Obras Publicas tiene a su
cargo los sistemas y proyectos de irrigacion y es el funcionario responsable
de la construccion de los sistemas de irrigacion en el pais," alegando que
The defendant, as Director of the Bureau of Public Works, without authority
obtained first from the Court of First Instance of Ilocos Sur, without obtaining
first a right of way, and without the consent and knowledge of the plaintiff, and
against her express objection unlawfully took possession of portions of the
three parcels of land described above, and caused an irrigation canal to be
constructed on the portion of the three parcels of land on or about the month
of February 1951 the aggregate area being 24,179 square meters to the
damage and prejudice of the plaintiff. ----- R. on A., p. 3.
causando a ella variados daos y perjuicios. Pidio, en su consecuencia,
sentencia condenando el demandado:
. . . to return or cause to be returned the possession of the portions of land
unlawfully occupied and appropriated in the aggregate area of 24,179 square
meters and to return the land to its former condition under the expenses of
the defendant. . . .
In the remote event that the portions of land unlawfully occupied and
appropriated can not be returned to the plaintiff, then to order the defendant
to pay to the plaintiff the sum of P19,343.20 as value of the portions totalling
an area of 24,179 square meters; ---- R. on A., p. 5.
y ademas a pagar P9,756.19 de daos y P5,000 de honorarios de abogado,
con las costas R. on A., pp. 5-6.
El demandado, por medio del Procurador General, presento mocion de
sobreseimiento de la demanda por el fundamento de que el Juzgado no tiene
jurisdiccion para dictar sentencia valida contra el, toda vez que judicialmente
la reclamacion es contra la Republica de Filipinas, y esta no ha presentado
su consentimiento a la demanda. El Juzgado inferior estimo la mocion y
sobreseyo la demanda sin perjuicio y sin costas.
En apelacion, la demandante sostiene que fue un error considerar la
demanda como una contra la Republica y sobreseer en su virtud la demanda.
La mocion contra "Isaias Fernando, Director de Obras Publicas, encargado y
responsable de la construccion de los sistemas de irrigacion en Filipinas" es
una dirigida personalmente contra el, por actos que asumio ejecutar en su
concepto oficial. La ley no le exime de responsabilidad por las

extralimitaciones que cometa o haga cometer en el desempeo de sus

funciones oficiales. Un caso semejante es el de Nelson vs. Bobcock (1933)
18 minn. 584, NW 49, 90 ALR 1472. Alli el Comisionado de Carreteras, al
mejorar un trozo de la carretera ocupo o se apropio de terrenos contiguos al
derecho de paso. El Tribunal Supremo del Estado declaro que es
personalmente responsable al dueo de los daos causados. Declaro
ademas que la ratificacion de lo que hicieron sus subordinados era
equivalente a una orden a los mismos. He aqui lo dijo el Tribunal.
We think the evidence and conceded facts permitted the jury in finding that in
the trespass on plaintiff's land defendant committed acts outside the scope of
his authority. When he went outside the boundaries of the right of way upon
plaintiff's land and damaged it or destroyed its former condition an
dusefulness, he must be held to have designedly departed from the duties
imposed on him by law. There can be no claim that he thus invaded plaintiff's
land southeasterly of the right of way innocently. Surveys clearly marked the
limits of the land appropriated for the right of way of this trunk highway before
construction began. . . .
"Ratification may be equivalent to command, and cooperation may be
inferred from acquiescence where there is power to restrain." It is
unnecessary to consider other cases cited, . . ., for as before suggested, the
jury could find or infer that, in so far as there was actual trespass by
appropriation of plaintiff's land as a dumping place for the rock to be removed
from the additional appropriated right of way, defendant planned, approved,
and ratified what was done by his subordinates. Nelson vs. Bobcock, 90
A.L.R., 1472, 1476, 1477.
La doctrina sobre la responsabilidad civil de los funcionarios en casos
parecidos se resume como sigue:
Ordinarily the officer or employee committing the tort is personally liable
therefor, and may be sued as any other citizen and held answerable for
whatever injury or damage results from his tortious act. 49 Am. Jur. 289.
. . . If an officer, even while acting under color of his office, exceeds the power
conferred on him by law, he cannot shelter himself under the plea that he is a
public agent. 43 Am. Jur. 86.
It is a general rule that an officer-executive, administrative quasi-judicial,
ministerial, or otherwise who acts outside the scope of his jurisdiction and
without authorization of law may thereby render himself amenable to personal
liability in a civil suit. If he exceed the power conferred on him by law, he
cannot shelter himself by the plea that he is a public agent acting under the
color of his office, and not personally. In the eye of the law, his acts then are
wholly without authority. 43 Am. Jur. 89-90.
El articulo 32 del Codigo Civil dice a su vez:
ART. 32. Any public officer or emplyee, or any private individual, who directly
or indirectly obstructs, defeats, violates or in any manner impedes or impairs
any of the following rights and liberties of another person shall be liable to the
latter for damages:

xxx
xxx
xxx
(6) The right against deprivation of property without due process of law;
xxx
xxx
xxx
In any of the cases referred to this article, whether or not the defendant's acts
or omission constitutes a criminal offense, the aggrieved party has a right ot
commence an entirely separate and distinct civil action for damages, and for
other relief. Such civil action shall proceed independently of any criminal
prosecution (if the latter be instituted), and may be proved by a
preponderance of evidence.
The inmdemnity shall include moral damages Exemplary damages may also
be adjudicated.
Veanse tambien Lung vs. Aldanese, 45 Phil., 784; Syquia vs. Almeda, No.
L-1648, Agosto 17, 1947; Marquez vs. Nelson, No. L-2412, Septiembre 1950.
Se revoca la orden apelada y se ordena la continuacion de la tramitacion de
la demanda conforme proveen los reglamentos. Sin especial
pronunciamiento en cuanto a las costas. Asi se ordena.
Padilla, Reyes, Jugo, Bautista Angelo and Labrador, MM., estan conformes.
Separate Opinions
CONCEPCION, J., dissenting:
To my mind, the allegations of the complaint lead to no other conclusion than
that appellee Isaias Fernando is a party in this case, not in his personal
capacity, but as an officer of the Government. According to said pleading the
defendant is "Isaias Fernando, Director, Bureau of Public Works." Moreover,
in paragraphs 4 and 5 of the complaint, it is alleged:
4. That the defendant as Director of the Bureau of Public Works, is in charge
of irrigation projects and systems, and the official responsible for the
construction of irrigation system in the Philippines;
5. That the defendant, as Director of the Bureau of Public Works, without
authority obtained first from the Court of First Instance of Ilocos Sur, without
obtaining first a right of way, and without the consent and knowledge of the
plaintiff, and against her express objection, unlawfully took possession of
portions of the three parcels of land described above, and caused an
irrigation canal to be constructed on the portion of the three parcels of land on
or about the month of February 1951 the aggregate area being 24,179 square
meters to the damage and prejudice of the plaintiff. (Emphasis supplied.)
The emphasis thus placed upon the allegation that the acts complained of
were performed by said defendant "as Director of the Bureau of Public
Works," clearly shows that the designation of his office was included in the
title of the case to indicate that he was being sued in his official capacity. This
conclusion is bolstered up by the fact that, among other things, plaintiff prays,
in the complaint, for a judgment
Ordering the defendant to return or caused to be returned the possession of
the portions of land unlawfully occupied and appropriated in the aggregate

area of 24,179 square meters and to return the land to its former condition
under the expense of the defendant. (Paragraph a, of the complaint).
We take judicial notice of the fact that the irrigation projects and system
reffered to in the complaint of which the defendant, Isaias Fernando,
according to the same pleading, is "in charge" and for which he is
"responsible" as Director of the Bureau of Public Works are established
and operated with public funds, which pursuant to the Constitution, must be
appropriated by law. Irrespective of the manner in which the construction may
have been undertaken by the Bureau of Public Works, the system or canal is,
therefore, a property of the Government. Consequently, in praying that
possession of the portions of land occupied by the irrigation canal involved in
the present case be returned to plaintiff therein, and that said land be
restored to its former condition, plaintiff seeks to divest the Government of its
possession of said irrigation canal, and, what is worse, to cause said property
of the Government to be removed or destroyed. As held in Syquia vs. Lopez
(47 Off. Gaz., 665), the Government is, accordingly, "the real party in interest
as defendant" in the case at bar. In other words, the same partakes of the
nature of a suit against the state and may not be maintained without its
consent.
Hence I am constrained to dissent.
Bengzon, J., concurs.
EN BANC
G.R. No. 76607 February 26, 1990
UNITED STATES OF AMERICA, FREDERICK M. SMOUSE AND YVONNE
REEVES, petitioners,
vs.
HON. ELIODORO B. GUINTO, Presiding Judge, Branch LVII, Regional
Trial Court, Angeles City, ROBERTO T. VALENCIA, EMERENCIANA C.
TANGLAO, AND PABLO C. DEL PILAR, respondents.
G.R. No. 79470 February 26, 1990
UNITED STATES OF AMERICA, ANTHONY LAMACHIA, T/SGT. USAF,
WILFREDO BELSA, PETER ORASCION AND ROSE CARTALLA,
petitioners,
vs.
HON. RODOLFO D. RODRIGO, as Presiding Judge of Branch 7, Regional
Trial Court (BAGUIO CITY), La Trinidad, Benguet and FABIAN GENOVE,
respondents.
G.R. No. 80018 February 26, 1990
UNITED STATES OF AMERICA, TOMI J. KINGI, DARREL D. DYE and
STEVEN F. BOSTICK, petitioners,
vs.
HON. JOSEFINA D. CEBALLOS, As Presiding Judge, Regional Trial
Court, Branch 66, Capas, Tarlac, and LUIS BAUTISTA, respondents.
G.R. No. 80258 February 26, 1990

UNITED STATES OF AMERICA, MAJOR GENERAL MICHAEL P. C.

CARNS, AIC ERNEST E. RIVENBURGH, AIC ROBIN BLEVINS, SGT.
NOEL A. GONZALES, SGT. THOMAS MITCHELL, SGT. WAYNE L.
BENJAMIN, ET AL., petitioners,
vs.
HON. CONCEPCION S. ALARCON VERGARA, as Presiding Judge,
Branch 62 REGIONAL TRIAL COURT, Angeles City, and RICKY
SANCHEZ, FREDDIE SANCHEZ AKA FREDDIE RIVERA, EDWIN
MARIANO, AKA JESSIE DOLORES SANGALANG, ET AL., respondents.
Luna, Sison & Manas Law Office for petitioners.
CRUZ, J.:
These cases have been consolidated because they all involve the
doctrine of state immunity. The United States of America was not
impleaded in the complaints below but has moved to dismiss on the
ground that they are in effect suits against it to which it has not
consented. It is now contesting the denial of its motions by the
respondent judges.
In G.R. No. 76607, the private respondents are suing several officers of
the U.S. Air Force stationed in Clark Air Base in connection with the
bidding conducted by them for contracts for barber services in the said
base.
On February 24, 1986, the Western Pacific Contracting Office, Okinawa
Area Exchange, U.S. Air Force, solicited bids for such contracts through
its contracting officer, James F. Shaw. Among those who submitted
their bids were private respondents Roberto T. Valencia, Emerenciana C.
Tanglao, and Pablo C. del Pilar. Valencia had been a concessionaire
inside Clark for 34 years; del Pilar for 12 years; and Tanglao for 50
years.
The bidding was won by Ramon Dizon, over the objection of the private
respondents, who claimed that he had made a bid for four facilities,
including the Civil Engineering Area, which was not included in the
invitation to bid.
The private respondents complained to the Philippine Area Exchange
(PHAX). The latter, through its representatives, petitioners Yvonne
Reeves and Frederic M. Smouse explained that the Civil Engineering
concession had not been awarded to Dizon as a result of the February
24, 1986 solicitation. Dizon was already operating this concession, then
known as the NCO club concession, and the expiration of the contract
had been extended from June 30, 1986 to August 31, 1986. They further
explained that the solicitation of the CE barbershop would be available
only by the end of June and the private respondents would be notified.
On June 30, 1986, the private respondents filed a complaint in the court
below to compel PHAX and the individual petitioners to cancel the
award to defendant Dizon, to conduct a rebidding for the barbershop

concessions and to allow the private respondents by a writ of

preliminary injunction to continue operating the concessions pending
litigation. 1
Upon the filing of the complaint, the respondent court issued an ex
parte order directing the individual petitioners to maintain the status
quo.
On July 22, 1986, the petitioners filed a motion to dismiss and
opposition to the petition for preliminary injunction on the ground that
the action was in effect a suit against the United States of America,
which had not waived its non-suability. The individual defendants, as
official employees of the U.S. Air Force, were also immune from suit.
On the same date, July 22, 1986, the trial court denied the application
for a writ of preliminary injunction.
On October 10, 1988, the trial court denied the petitioners' motion to
dismiss, holding in part as follows:
From the pleadings thus far presented to this Court by the parties, the
Court's attention is called by the relationship between the plaintiffs as
well as the defendants, including the US Government, in that prior to the
bidding or solicitation in question, there was a binding contract
between the plaintiffs as well as the defendants, including the US
Government. By virtue of said contract of concession it is the Court's
understanding that neither the US Government nor the herein principal
defendants would become the employer/s of the plaintiffs but that the
latter are the employers themselves of the barbers, etc. with the
employer, the plaintiffs herein, remitting the stipulated percentage of
commissions to the Philippine Area Exchange. The same circumstance
would become in effect when the Philippine Area Exchange opened for
bidding or solicitation the questioned barber shop concessions. To this
extent, therefore, indeed a commercial transaction has been entered,
and for purposes of the said solicitation, would necessarily be entered
between the plaintiffs as well as the defendants.
The Court, further, is of the view that Article XVIII of the RP-US Bases
Agreement does not cover such kind of services falling under the
concessionaireship, such as a barber shop concession. 2
On December 11, 1986, following the filing of the herein petition for
certiorari and prohibition with preliminary injunction, we issued a
temporary restraining order against further proceedings in the court
below. 3
In G.R. No. 79470, Fabian Genove filed a complaint for damages against
petitioners Anthony Lamachia, Wilfredo Belsa, Rose Cartalla and Peter
Orascion for his dismissal as cook in the U.S. Air Force Recreation
Center at the John Hay Air Station in Baguio City. It had been
ascertained after investigation, from the testimony of Belsa Cartalla and
Orascion, that Genove had poured urine into the soup stock used in
cooking the vegetables served to the club customers. Lamachia, as club

manager, suspended him and thereafter referred the case to a board of

arbitrators conformably to the collective bargaining agreement between
the Center and its employees. The board unanimously found him guilty
and recommended his dismissal. This was effected on March 5, 1986, by
Col. David C. Kimball, Commander of the 3rd Combat Support Group,
PACAF Clark Air Force Base. Genove's reaction was to file Ms complaint
in the Regional Trial Court of Baguio City against the individual
petitioners. 4
On March 13, 1987, the defendants, joined by the United States of
America, moved to dismiss the complaint, alleging that Lamachia, as an
officer of the U.S. Air Force stationed at John Hay Air Station, was
immune from suit for the acts done by him in his official capacity. They
argued that the suit was in effect against the United States, which had
not given its consent to be sued.
This motion was denied by the respondent judge on June 4, 1987, in an
order which read in part:
It is the understanding of the Court, based on the allegations of the
complaint which have been hypothetically admitted by defendants
upon the filing of their motion to dismiss that although defendants
acted initially in their official capacities, their going beyond what their
functions called for brought them out of the protective mantle of
whatever immunities they may have had in the beginning. Thus, the
allegation that the acts complained of were illegal, done. with extreme
bad faith and with pre-conceived sinister plan to harass and finally
dismiss the plaintiff, gains significance. 5
The petitioners then came to this Court seeking certiorari and
prohibition with preliminary injunction.
In G.R. No. 80018, Luis Bautista, who was employed as a barracks boy
in Camp O' Donnell, an extension of Clark Air Base, was arrested
following a buy-bust operation conducted by the individual petitioners
herein, namely, Tomi J. King, Darrel D. Dye and Stephen F. Bostick,
officers of the U.S. Air Force and special agents of the Air Force Office
of Special Investigators (AFOSI). On the basis of the sworn statements
made by them, an information for violation of R.A. 6425, otherwise
known as the Dangerous Drugs Act, was filed against Bautista in the
Regional Trial Court of Tarlac. The above-named officers testified
against him at his trial. As a result of the filing of the charge, Bautista
was dismissed from his employment. He then filed a complaint for
damages against the individual petitioners herein claiming that it was
because of their acts that he was removed. 6
During the period for filing of the answer, Mariano Y. Navarro a special
counsel assigned to the International Law Division, Office of the Staff
Judge Advocate of Clark Air Base, entered a special appearance for the
defendants and moved for an extension within which to file an "answer
and/or other pleadings." His reason was that the Attorney General of the

United States had not yet designated counsel to represent the

defendants, who were being sued for their official acts. Within the
extended period, the defendants, without the assistance of counsel or
authority from the U.S. Department of Justice, filed their answer. They
alleged therein as affirmative defenses that they had only done their
duty in the enforcement of the laws of the Philippines inside the
American bases pursuant to the RP-US Military Bases Agreement.
On May 7, 1987, the law firm of Luna, Sison and Manas, having been
retained to represent the defendants, filed with leave of court a motion
to withdraw the answer and dismiss the complaint. The ground invoked
was that the defendants were acting in their official capacity when they
did the acts complained of and that the complaint against them was in
effect a suit against the United States without its consent.
The motion was denied by the respondent judge in his order dated
September 11, 1987, which held that the claimed immunity under the
Military Bases Agreement covered only criminal and not civil cases.
Moreover, the defendants had come under the jurisdiction of the court
when they submitted their answer. 7
Following the filing of the herein petition for certiorari and prohibition
with preliminary injunction, we issued on October 14, 1987, a temporary
restraining order. 8
In G.R. No. 80258, a complaint for damages was filed by the private
respondents against the herein petitioners (except the United States of
America), for injuries allegedly sustained by the plaintiffs as a result of
the acts of the defendants. 9 There is a conflict of factual allegations here.
According to the plaintiffs, the defendants beat them up, handcuffed them
and unleashed dogs on them which bit them in several parts of their bodies
and caused extensive injuries to them. The defendants deny this and claim
the plaintiffs were arrested for theft and were bitten by the dogs because they
were struggling and resisting arrest, The defendants stress that the dogs
were called off and the plaintiffs were immediately taken to the medical center
for treatment of their wounds.

In a motion to dismiss the complaint, the United States of America and

the individually named defendants argued that the suit was in effect a
suit against the United States, which had not given its consent to be
sued. The defendants were also immune from suit under the RP-US
Bases Treaty for acts done by them in the performance of their official
functions.
The motion to dismiss was denied by the trial court in its order dated
August 10, 1987, reading in part as follows:
The defendants certainly cannot correctly argue that they are immune
from suit. The allegations, of the complaint which is sought to be
dismissed, had to be hypothetically admitted and whatever ground the
defendants may have, had to be ventilated during the trial of the case on
the merits. The complaint alleged criminal acts against the individuallynamed defendants and from the nature of said acts it could not be said

that they are Acts of State, for which immunity should be invoked. If the
Filipinos themselves are duty bound to respect, obey and submit
themselves to the laws of the country, with more reason, the members
of the United States Armed Forces who are being treated as guests of
this country should respect, obey and submit themselves to its laws. 10
and so was the motion for reconsideration. The defendants submitted
their answer as required but subsequently filed their petition for
certiorari and prohibition with preliminary injunction with this Court. We
issued a temporary restraining order on October 27, 1987. 11
II
The rule that a state may not be sued without its consent, now
expressed in Article XVI, Section 3, of the 1987 Constitution, is one of
the generally accepted principles of international law that we have
adopted as part of the law of our land under Article II, Section 2. This
latter provision merely reiterates a policy earlier embodied in the 1935
and 1973 Constitutions and also intended to manifest our resolve to
abide by the rules of the international community.
Even without such affirmation, we would still be bound by the generally
accepted principles of international law under the doctrine of
incorporation. Under this doctrine, as accepted by the majority of
states, such principles are deemed incorporated in the law of every
civilized state as a condition and consequence of its membership in the
society of nations. Upon its admission to such society, the state is
automatically obligated to comply with these principles in its relations
with other states.
As applied to the local state, the doctrine of state immunity is based on
the justification given by Justice Holmes that "there can be no legal
right against the authority which makes the law on which the right
depends." 12 There are other practical reasons for the enforcement of the
doctrine. In the case of the foreign state sought to be impleaded in the local
jurisdiction, the added inhibition is expressed in the maxim par in parem, non
habet imperium. All states are sovereign equals and cannot assert
jurisdiction over one another. A contrary disposition would, in the language
of a celebrated case, "unduly vex the peace of nations." 13

While the doctrine appears to prohibit only suits against the state
without its consent, it is also applicable to complaints filed against
officials of the state for acts allegedly performed by them in the
discharge of their duties. The rule is that if the judgment against such
officials will require the state itself to perform an affirmative act to
satisfy the same, such as the appropriation of the amount needed to
pay the damages awarded against them, the suit must be regarded as
against the state itself although it has not been formally impleaded. 14 In
such a situation, the state may move to dismiss the complaint on the ground
that it has been filed without its consent.

The doctrine is sometimes derisively called "the royal prerogative of

dishonesty" because of the privilege it grants the state to defeat any

legitimate claim against it by simply invoking its non-suability. That is

hardly fair, at least in democratic societies, for the state is not an
unfeeling tyrant unmoved by the valid claims of its citizens. In fact, the
doctrine is not absolute and does not say the state may not be sued
under any circumstance. On the contrary, the rule says that the state
may not be sued without its consent, which clearly imports that it may
be sued if it consents.
The consent of the state to be sued may be manifested expressly or
impliedly. Express consent may be embodied in a general law or a
special law. Consent is implied when the state enters into a contract or
it itself commences litigation.
The general law waiving the immunity of the state from suit is found in
Act No. 3083, under which the Philippine government "consents and
submits to be sued upon any moneyed claim involving liability arising
from contract, express or implied, which could serve as a basis of civil
action between private parties." In Merritt v. Government of the
Philippine Islands, 15 a special law was passed to enable a person to sue the
government for an alleged tort. When the government enters into a contract,
it is deemed to have descended to the level of the other contracting party and
divested of its sovereign immunity from suit with its implied consent. 16
Waiver is also implied when the government files a complaint, thus opening
itself to a counterclaim. 17

The above rules are subject to qualification. Express consent is effected

only by the will of the legislature through the medium of a duly enacted
statute. 18 We have held that not all contracts entered into by the government
will operate as a waiver of its non-suability; distinction must be made
between its sovereign and proprietary acts. 19 As for the filing of a complaint
by the government, suability will result only where the government is
claiming affirmative relief from the defendant. 20

In the case of the United States of America, the customary rule of

international law on state immunity is expressed with more specificity in
the RP-US Bases Treaty. Article III thereof provides as follows:
It is mutually agreed that the United States shall have the rights, power
and authority within the bases which are necessary for the
establishment, use, operation and defense thereof or appropriate for the
control thereof and all the rights, power and authority within the limits
of the territorial waters and air space adjacent to, or in the vicinity of,
the bases which are necessary to provide access to them or appropriate
for their control.
The petitioners also rely heavily on Baer v. Tizon, 21 along with several
other decisions, to support their position that they are not suable in the cases
below, the United States not having waived its sovereign immunity from suit.
It is emphasized that in Baer, the Court held:

The invocation of the doctrine of immunity from suit of a foreign state

without its consent is appropriate. More specifically, insofar as alien
armed forces is concerned, the starting point is Raquiza v. Bradford, a

1945 decision. In dismissing a habeas corpus petition for the release of

petitioners confined by American army authorities, Justice Hilado
speaking for the Court, cited Coleman v. Tennessee, where it was
explicitly declared: 'It is well settled that a foreign army, permitted to
march through a friendly country or to be stationed in it, by permission
of its government or sovereign, is exempt from the civil and criminal
jurisdiction of the place.' Two years later, in Tubb and Tedrow v. Griess,
this Court relied on the ruling in Raquiza v. Bradford and cited in
support thereof excerpts from the works of the following authoritative
writers: Vattel, Wheaton, Hall, Lawrence, Oppenheim, Westlake, Hyde,
and McNair and Lauterpacht. Accuracy demands the clarification that
after the conclusion of the Philippine-American Military Bases
Agreement, the treaty provisions should control on such matter, the
assumption being that there was a manifestation of the submission to
jurisdiction on the part of the foreign power whenever appropriate. More
to the point is Syquia v. Almeda Lopez, where plaintiffs as lessors sued
the Commanding General of the United States Army in the Philippines,
seeking the restoration to them of the apartment buildings they owned
leased to the United States armed forces stationed in the Manila area. A
motion to dismiss on the ground of non-suability was filed and upheld
by respondent Judge. The matter was taken to this Court in a
mandamus proceeding. It failed. It was the ruling that respondent Judge
acted correctly considering that the 4 action must be considered as one
against the U.S. Government. The opinion of Justice Montemayor
continued: 'It is clear that the courts of the Philippines including the
Municipal Court of Manila have no jurisdiction over the present case for
unlawful detainer. The question of lack of jurisdiction was raised and
interposed at the very beginning of the action. The U.S. Government has
not given its consent to the filing of this suit which is essentially against
her, though not in name. Moreover, this is not only a case of a citizen
filing a suit against his own Government without the latter's consent but
it is of a citizen firing an action against a foreign government without
said government's consent, which renders more obvious the lack of
jurisdiction of the courts of his country. The principles of law behind
this rule are so elementary and of such general acceptance that we
deem it unnecessary to cite authorities in support thereof then came
Marvel Building Corporation v. Philippine War Damage Commission,
where respondent, a United States Agency established to compensate
damages suffered by the Philippines during World War II was held as
falling within the above doctrine as the suit against it would eventually
be a charge against or financial liability of the United States
Government because ... , the Commission has no funds of its own for
the purpose of paying money judgments.' The Syquia ruling was again
explicitly relied upon in Marquez Lim v. Nelson, involving a complaint
for the recovery of a motor launch, plus damages, the special defense

interposed being 'that the vessel belonged to the United States

Government, that the defendants merely acted as agents of said
Government, and that the United States Government is therefore the
real party in interest.' So it was in Philippine Alien Property
Administration v. Castelo, where it was held that a suit against Alien
Property Custodian and the Attorney General of the United States
involving vested property under the Trading with the Enemy Act is in
substance a suit against the United States. To the same effect is
Parreno v. McGranery, as the following excerpt from the opinion of
justice Tuazon clearly shows: 'It is a widely accepted principle of
international law, which is made a part of the law of the land (Article II,
Section 3 of the Constitution), that a foreign state may not be brought to
suit before the courts of another state or its own courts without its
consent.' Finally, there is Johnson v. Turner, an appeal by the
defendant, then Commanding General, Philippine Command (Air Force,
with office at Clark Field) from a decision ordering the return to plaintiff
of the confiscated military payment certificates known as scrip money.
In reversing the lower court decision, this Tribunal, through Justice
Montemayor, relied on Syquia v. Almeda Lopez, explaining why it could
not be sustained.
It bears stressing at this point that the above observations do not
confer on the United States of America a blanket immunity for all acts
done by it or its agents in the Philippines. Neither may the other
petitioners claim that they are also insulated from suit in this country
merely because they have acted as agents of the United States in the
discharge of their official functions.
There is no question that the United States of America, like any other
state, will be deemed to have impliedly waived its non-suability if it has
entered into a contract in its proprietary or private capacity. It is only
when the contract involves its sovereign or governmental capacity that
no such waiver may be implied. This was our ruling in United States of
America v. Ruiz, 22 where the transaction in question dealt with the
improvement of the wharves in the naval installation at Subic Bay. As this
was a clearly governmental function, we held that the contract did not operate
to divest the United States of its sovereign immunity from suit. In the words
of Justice Vicente Abad Santos:

The traditional rule of immunity exempts a State from being sued in the
courts of another State without its consent or waiver. This rule is a
necessary consequence of the principles of independence and equality
of States. However, the rules of International Law are not petrified; they
are constantly developing and evolving. And because the activities of
states have multiplied, it has been necessary to distinguish them
between sovereign and governmental acts (jure imperii) and private,
commercial and proprietary acts (jure gestionis). The result is that State
immunity now extends only to acts jure imperii The restrictive

application of State immunity is now the rule in the United States, the
United kingdom and other states in Western Europe.
xxx xxx xxx
The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic affairs. Stated
differently, a State may be said to have descended to the level of an
individual and can thus be deemed to have tacitly given its consent to
be sued only when it enters into business contracts. It does not apply
where the contract relates to the exercise of its sovereign functions. In
this case the projects are an integral part of the naval base which is
devoted to the defense of both the United States and the Philippines,
indisputably a function of the government of the highest order; they are
not utilized for nor dedicated to commercial or business purposes.
The other petitioners in the cases before us all aver they have acted in
the discharge of their official functions as officers or agents of the
United States. However, this is a matter of evidence. The charges
against them may not be summarily dismissed on their mere assertion
that their acts are imputable to the United States of America, which has
not given its consent to be sued. In fact, the defendants are sought to
be held answerable for personal torts in which the United States itself is
not involved. If found liable, they and they alone must satisfy the
judgment.
In Festejo v. Fernando, 23 a bureau director, acting without any authority
whatsoever, appropriated private land and converted it into public irrigation
ditches. Sued for the value of the lots invalidly taken by him, he moved to
dismiss the complaint on the ground that the suit was in effect against the
Philippine government, which had not given its consent to be sued. This
Court sustained the denial of the motion and held that the doctrine of state
immunity was not applicable. The director was being sued in his private
capacity for a personal tort.

With these considerations in mind, we now proceed to resolve the

cases at hand.
III
It is clear from a study of the records of G.R. No. 80018 that the
individually-named petitioners therein were acting in the exercise of
their official functions when they conducted the buy-bust operation
against the complainant and thereafter testified against him at his trial.
The said petitioners were in fact connected with the Air Force Office of
Special Investigators and were charged precisely with the function of
preventing the distribution, possession and use of prohibited drugs and
prosecuting those guilty of such acts. It cannot for a moment be
imagined that they were acting in their private or unofficial capacity
when they apprehended and later testified against the complainant. It
follows that for discharging their duties as agents of the United States,
they cannot be directly impleaded for acts imputable to their principal,

which has not given its consent to be sued. As we observed in Sanders

v. Veridiano: 24
Given the official character of the above-described letters, we have to
conclude that the petitioners were, legally speaking, being sued as
officers of the United States government. As they have acted on behalf
of that government, and within the scope of their authority, it is that
government, and not the petitioners personally, that is responsible for
their acts.
The private respondent invokes Article 2180 of the Civil Code which
holds the government liable if it acts through a special agent. The
argument, it would seem, is premised on the ground that since the
officers are designated "special agents," the United States government
should be liable for their torts.
There seems to be a failure to distinguish between suability and liability
and a misconception that the two terms are synonymous. Suability
depends on the consent of the state to be sued, liability on the
applicable law and the established facts. The circumstance that a state
is suable does not necessarily mean that it is liable; on the other hand,
it can never be held liable if it does not first consent to be sued. Liability
is not conceded by the mere fact that the state has allowed itself to be
sued. When the state does waive its sovereign immunity, it is only
giving the plaintiff the chance to prove, if it can, that the defendant is
liable.
The said article establishes a rule of liability, not suability. The
government may be held liable under this rule only if it first allows itself
to be sued through any of the accepted forms of consent.
Moreover, the agent performing his regular functions is not a special
agent even if he is so denominated, as in the case at bar. No less
important, the said provision appears to regulate only the relations of
the local state with its inhabitants and, hence, applies only to the
Philippine government and not to foreign governments impleaded in our
courts.
We reject the conclusion of the trial court that the answer filed by the
special counsel of the Office of the Sheriff Judge Advocate of Clark Air
Base was a submission by the United States government to its
jurisdiction. As we noted in Republic v. Purisima, 25 express waiver of
immunity cannot be made by a mere counsel of the government but must be
effected through a duly-enacted statute. Neither does such answer come
under the implied forms of consent as earlier discussed.

But even as we are certain that the individual petitioners in G.R. No.
80018 were acting in the discharge of their official functions, we hesitate
to make the same conclusion in G.R. No. 80258. The contradictory
factual allegations in this case deserve in our view a closer study of
what actually happened to the plaintiffs. The record is too meager to
indicate if the defendants were really discharging their official duties or

had actually exceeded their authority when the incident in question

occurred. Lacking this information, this Court cannot directly decide
this case. The needed inquiry must first be made by the lower court so it
may assess and resolve the conflicting claims of the parties on the
basis of the evidence that has yet to be presented at the trial. Only after
it shall have determined in what capacity the petitioners were acting at
the time of the incident in question will this Court determine, if still
necessary, if the doctrine of state immunity is applicable.
In G.R. No. 79470, private respondent Genove was employed as a cook
in the Main Club located at the U.S. Air Force Recreation Center, also
known as the Open Mess Complex, at John Hay Air Station. As manager
of this complex, petitioner Lamachia is responsible for eleven
diversified activities generating an annual income of $2 million. Under
his executive management are three service restaurants, a cafeteria, a
bakery, a Class VI store, a coffee and pantry shop, a main cashier cage,
an administrative office, and a decentralized warehouse which
maintains a stock level of $200,000.00 per month in resale items. He
supervises 167 employees, one of whom was Genove, with whom the
United States government has concluded a collective bargaining
agreement.
From these circumstances, the Court can assume that the restaurant
services offered at the John Hay Air Station partake of the nature of a
business enterprise undertaken by the United States government in its
proprietary capacity. Such services are not extended to the American
servicemen for free as a perquisite of membership in the Armed Forces
of the United States. Neither does it appear that they are exclusively
offered to these servicemen; on the contrary, it is well known that they
are available to the general public as well, including the tourists in
Baguio City, many of whom make it a point to visit John Hay for this
reason. All persons availing themselves of this facility pay for the
privilege like all other customers as in ordinary restaurants. Although
the prices are concededly reasonable and relatively low, such services
are undoubtedly operated for profit, as a commercial and not a
governmental activity.
The consequence of this finding is that the petitioners cannot invoke
the doctrine of state immunity to justify the dismissal of the damage
suit against them by Genove. Such defense will not prosper even if it be
established that they were acting as agents of the United States when
they investigated and later dismissed Genove. For that matter, not even
the United States government itself can claim such immunity. The
reason is that by entering into the employment contract with Genove in
the discharge of its proprietary functions, it impliedly divested itself of
its sovereign immunity from suit.
But these considerations notwithstanding, we hold that the complaint
against the petitioners in the court below must still be dismissed. While

suable, the petitioners are nevertheless not liable. It is obvious that the
claim for damages cannot be allowed on the strength of the evidence
before us, which we have carefully examined.
The dismissal of the private respondent was decided upon only after a
thorough investigation where it was established beyond doubt that he
had polluted the soup stock with urine. The investigation, in fact, did
not stop there. Despite the definitive finding of Genove's guilt, the case
was still referred to the board of arbitrators provided for in the collective
bargaining agreement. This board unanimously affirmed the findings of
the investigators and recommended Genove's dismissal. There was
nothing arbitrary about the proceedings. The petitioners acted quite
properly in terminating the private respondent's employment for his
unbelievably nauseating act. It is surprising that he should still have the
temerity to file his complaint for damages after committing his utterly
disgusting offense.
Concerning G.R. No. 76607, we also find that the barbershops subject of
the concessions granted by the United States government are
commercial enterprises operated by private person's. They are not
agencies of the United States Armed Forces nor are their facilities
demandable as a matter of right by the American servicemen. These
establishments provide for the grooming needs of their customers and
offer not only the basic haircut and shave (as required in most military
organizations) but such other amenities as shampoo, massage,
manicure and other similar indulgences. And all for a fee. Interestingly,
one of the concessionaires, private respondent Valencia, was even sent
abroad to improve his tonsorial business, presumably for the benefit of
his customers. No less significantly, if not more so, all the barbershop
concessionaires are under the terms of their contracts, required to remit
to the United States government fixed commissions in consideration of
the exclusive concessions granted to them in their respective areas.
This being the case, the petitioners cannot plead any immunity from the
complaint filed by the private respondents in the court below. The
contracts in question being decidedly commercial, the conclusion
reached in the United States of America v. Ruiz case cannot be applied
here.
The Court would have directly resolved the claims against the
defendants as we have done in G.R. No. 79470, except for the paucity of
the record in the case at hand. The evidence of the alleged irregularity
in the grant of the barbershop concessions is not before us. This means
that, as in G.R. No. 80258, the respondent court will have to receive that
evidence first, so it can later determine on the basis thereof if the
plaintiffs are entitled to the relief they seek. Accordingly, this case must
also be remanded to the court below for further proceedings.
IV

There are a number of other cases now pending before us which also
involve the question of the immunity of the United States from the
jurisdiction of the Philippines. This is cause for regret, indeed, as they
mar the traditional friendship between two countries long allied in the
cause of democracy. It is hoped that the so-called "irritants" in their
relations will be resolved in a spirit of mutual accommodation and
respect, without the inconvenience and asperity of litigation and always
with justice to both parties.
WHEREFORE, after considering all the above premises, the Court
hereby renders judgment as follows:
1. In G.R. No. 76607, the petition is DISMISSED and the respondent
judge is directed to proceed with the hearing and decision of Civil Case
No. 4772. The temporary restraining order dated December 11, 1986, is
LIFTED.
2. In G.R. No. 79470, the petition is GRANTED and Civil Case No. 829R(298) is DISMISSED.
3. In G.R. No. 80018, the petition is GRANTED and Civil Case No. 115C-87 is DISMISSED. The temporary restraining order dated October 14,
1987, is made permanent.
4. In G.R. No. 80258, the petition is DISMISSED and the respondent
court is directed to proceed with the hearing and decision of Civil Case
No. 4996. The temporary restraining order dated October 27, 1987, is
LIFTED.
All without any pronouncement as to costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea
and Regalado, JJ., concur.
FIRST DIVISION
[G.R. No. 91359. September 25, 1992.]
VETERANS MANPOWER AND PROTECTIVE SERVICES, INC., Petitioner, v. THE
COURT OF APPEALS, THE CHIEF OF PHILIPPINE CONSTABULARY and
PHILIPPINE CONSTABULARY SUPERVISORY UNIT FOR SECURITY AND
INVESTIGATION AGENCIES (PC-SUSIA), Respondents.
Franciso A. Lava, Jr. and Andresito X. Fornier for Petitioner.
SYLLABUS
1. POLITICAL LAW; IMMUNITY FROM SUIT; THE PHILIPPINE CONSTABULARY CHIEF
AND THE PC-SUSIA MAY NOT BE SUED WITHOUT THE CONSENT OF THE STATE.
The State may not be sued without its consent (Article XVI, Section 3, of the 1987
Constitution). Invoking this rule, the PC Chief and PC-SUSIA contend that, being
instrumentalities of the national government exercising a primarily governmental

function of regulating the organization and operation of private detective, watchmen,

or security guard agencies, said official (the PC Chief) and agency (PC-SUSIA) may
not be sued without the Governments consent, especially in this case because
VMPSIs complaint seeks not only to compel the public respondents to act in a certain
way, but worse, because VMPSI seeks actual and compensatory damages in the sum
of P1,000,000.00, exemplary damages in the same amount, and P200,000.00 as
attorneys fees from said public respondents. Even if its action prospers, the payment
of its monetary claims may not be enforced because the State did not consent to
appropriate the necessary funds for that purpose.
2. ID.; ID.; PUBLIC OFFICIAL MAY BE SUED IN HIS PERSONAL CAPACITY IF HE ACTS,
AMONG OTHERS BEYOND THE SCOPE OF HIS AUTHORITY; CASE AT BAR. A public
official may sometimes be held liable in his personal or private capacity if he acts in
bad faith, or beyond the scope of his authority or jurisdiction (Shauf v. Court of
Appeals, supra), however, since the acts for which the PC Chief and PC-SUSIA are
being called to account in this case, were performed by them as part of their official
duties, without malice, gross negligence, or bad faith, no recovery may be had against
them in their private capacities.
3. ID.; ID.; CONSENT TO BE SUED MUST EMANATE FROM A LEGISLATIVE ACT.
Waiver of the States immunity from suit, being a derogation of sovereignty, will not
be lightly inferred, but must be construed strictissimi juris (Republic v. Feliciano, 148
SCRA 424). The consent of the State to be sued must emanate from statutory
authority, hence, from a legislative act, not from a mere memorandum. Without such
consent, the trial court did not acquire jurisdiction over the public respondents.
4. ID.; ID.; REASONS BEHIND. The state immunity doctrine rests upon reasons of
public policy and the inconvenience and danger which would flow from a different rule.
"It is obvious that public service would be hindered, and public safety endangered, if
the supreme authority could be subjected to suits at the instance of every citizen,
and, consequently, controlled in the use and disposition of the means required for the
proper administration of the government" (Siren v. U.S. Wall, 152, 19 L. ed. 129, as
cited in 78 SCRA 477).
DECISION
GRIO-AQUINO, J.:
This is a petition for review on certiorari of the decision dated August 11, 1989, of the
Court of Appeals in CA-G.R. SP No. 15990, entitled "The Chief of Philippine
Constabulary (PC) and Philippine Constabulary Supervisor Unit for Security and
Investigation Agencies (PC-SUSIA) v. Hon. Omar U. Amin and Veterans Manpower and
Protective Services, Inc. (VMPSI)," lifting the writ of preliminary injunction which the
Regional Trial Court had issued to the PC-SUSIA enjoining them from committing acts
that would result in the cancellation or non-renewal of the license of VMPSI to operate
as a security agency.
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On March 28, 1988, VMPSI filed a complaint in the Regional Trial Court at Makati,
Metro Manila, praying the court to:
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"A. Forthwith issue a temporary restraining order to preserve the status quo, enjoining
the defendants, or any one acting in their place or stead, to refrain from committing
acts that would result in the cancellation or non-renewal of VMPSIs license;

"B. In due time, issue a writ of preliminary injunction to the same effect;
"C. Render decision and judgment declaring null and void the amendment of Section 4
of R.A. No. 5487, by PD No. 11 exempting organizations like PADPAO from the
prohibition that no person shall organize or have an interest in more than one agency,
declaring PADPAO as an illegal organization existing in violation of said prohibition,
without the illegal exemption provided in PD No. 11; declaring null and void Section
17 of R.A. No. 5487 which provides for the issuance of rules and regulations in
consultation with PADPAO, declaring null and void the February 1, 1982 directive of
Col. Sabas V. Edadas, in the name of the then PC Chief, requiring all private security
agencies/security forces such as VMPSI to join PADPAO as a prerequisite to secure/
renew their licenses, declaring that VMPSI did not engage in cut-throat competition
in its contract with MWSS, ordering defendants PC Chief and PC-SUSIA to renew the
license of VMPSI; ordering the defendants to refrain from further harassing VMPSI and
from threatening VMPSI with cancellations or non-renewal of license, without legal
and justifiable cause; ordering the defendants to pay to VMPSI the sum of
P1,000,000.00 as actual and compensatory damages, P1,000,000.00 as exemplary
damages, and P200,000.00 as attorneys fees and expenses of litigation; and granting
such further or other reliefs to VMPSI as may be deemed lawful, equitable and
just." (pp. 55-56, Rollo.)
The constitutionality of the following provisions of R.A. 5487 (otherwise known as the
"Private Security Agency Law"), as amended, is questioned by VMPSI in its
complaint:
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"SECTION 4. Who may Organize a Security or Watchman Agency. Any Filipino

citizen or a corporation, partnership, or association, with a minimum capital of five
thousand pesos, one hundred per cent of which is owned and controlled by Filipino
citizens may organize a security or watchman agency: Provided, That no person shall
organize or have an interest in, more than one such agency except those which are
already existing at the promulgation of this Decree: . . ." (As amended by P.D. Nos. 11
and 100.)
"SECTION 17. Rules and Regulations by Chief, Philippine Constabulary. The Chief of
the Philippine Constabulary, in consultation with the Philippine Association of Detective
and Protective Agency Operators, Inc. and subject to the provision of existing laws, is
hereby authorized to issue the rules and regulations necessary to carry out the
purpose of this Act."
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VMPSI alleges that the above provisions of R.A. No. 5487 violate the provisions of the
1987 Constitution against monopolies, unfair competition and combinations in
restraint of trade, and tend to favor and institutionalize the Philippine Association of
Detective and Protective Agency Operators, Inc. (PADPAO) which is monopolistic
because it has an interest in more than one security agency.
Respondent VMPSI likewise questions the validity of paragraph 3, subparagraph (g) of
the Modifying Regulations on the Issuance of License to Operate and Private Security
Licenses and Specifying Regulations for the Operation of PADPAO issued by then PC
Chief Lt. Gen. Fidel V. Ramos, through Col. Sabas V. Edades, requiring that "all private
security agencies/company security forces must register as members of any PADPAO
Chapter organized within the Region where their main offices are located . . ." (pp.
5-6, Complaint in Civil Case No. 88-471). As such membership requirement in
PADPAO is compulsory in nature, it allegedly violates legal and constitutional
provisions against monopolies, unfair competition and combinations in restraint of
trade.
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On May 12, 1986, a Memorandum of Agreement was executed by PADPAO and the PC
Chief, which fixed the minimum monthly contract rate per guard for eight (8) hours of
security service per day at P2,255.00 within Metro Manila and P2,215.00 outside of
Metro Manila (Annex B, Petition).
On June 29, 1987, Odin Security Agency (Odin) filed a complaint with PADPAO
accusing VMPSI of cut-throat competition by undercutting its contract rate for security
services rendered to the Metropolitan Waterworks and Sewerage System (MWSS),
charging said customer lower than the standard minimum rates provided in the
Memorandum of Agreement dated May 12, 1986.
PADPAO found VMPSI guilty of cut-throat competition, hence, the PADPAO Committee
on Discipline recommended the expulsion of VMPSI from PADPAO and the cancellation
of its license to operate a security agency (Annex D, Petition).
The PC-SUSIA made similar findings and likewise recommended the cancellation of
VMPSIs license (Annex E, Petition).
As a result, PADPAO refused to issue a clearance/certificate of membership to VMPSI
when it requested one.
VMPSI wrote the PC Chief on March 10, 1988, requesting him to set aside or disregard
the findings of PADPAO and consider VMPSIs application for renewal of its license,
even without a certificate of membership from PADPAO (Annex F, Petition).
As the PC Chief did not reply, and VMPSIs license was expiring on March 31, 1988,
VMPSI filed Civil Case No. 88-471 in the RTC-Makati, Branch 135, on March 28, 1988
against the PC Chief and PC-SUSIA. On the same date, the court issued a restraining
order enjoining the PC Chief and PC-SUSIA "from committing acts that would result in
the cancellation or non-renewal of VMPSIs license" (Annex G, Petition).
The PC chief and PC-SUSIA filed a "Motion to Dismiss, Opposition to the Issuance of
Writ of Preliminary Injunction, and Motion to Quash the Temporary Restraining Order,"
on the grounds that the case is against the State which had not given consent thereto
and that VMPSIs license already expired on March 31, 1988, hence, the restraining
order or preliminary injunction would not serve any purpose because there was no
more license to be cancelled (Annex H, Petition). Respondent VMPSI opposed the
motion.
On April 18, 1988, the lower court denied VMPSIs application for a writ of preliminary
injunction for being premature because it "has up to May 31, 1988 within which to file
its application for renewal pursuant to Section 2 (e) of Presidential Decree No. 199, . .
." (p. 140, Rollo.).
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On May 23, 1988, VMPSI reiterated its application for the issuance of a writ of
preliminary injunction because PC-SUSIA had rejected payment of the penalty for its
failure to submit its application for renewal of its license and the requirements
therefor within the prescribed period in Section 2(e) of the Revised Rules and
Regulations Implementing R.A. 5487, as amended by P.D. 1919 (Annex M, Petition).
On June 10, 1998, the RTC-Makati issued a writ of preliminary injunction upon a bond
of P100,000.00, restraining the defendants, or any one acting in their behalf, from
cancelling or denying renewal of VMPSIs license, until further orders from the court.

The PC Chief and PC-SUSIA filed a Motion for Reconsideration of the above order, but
it was denied by the court in its Order of August 10, 1988 (Annex R, Petition).
On November 3, 1988, the PC Chief and PC-SUSIA sought relief by a petition for
certiorari in the Court of Appeals.
On August 11, 1989, the Court of Appeals granted the petition. The dispositive portion
of its decision reads:
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"WHEREFORE, the petition for certiorari filed by petitioners PC Chief and PC-SUSIA is
hereby GRANTED, and the RTC-Makati, Branch 135, is ordered to dismiss the
complaint filed by respondent VMPSI in Civil Case No. 88-471, insofar as petitioners
PC Chief and PC-SUSIA are concerned, for lack of jurisdiction. The writ of preliminary
injunction issued on June 10, 1988, is dissolved." (pp. 295-296, Rollo.)
VMPSI came to us with this petition for review.
The primary issue in this case is whether or not VMPSIs complaint against the PC
Chief and PC-SUSIA is a suit against the State without its consent.
The answer is yes.
The State may not be sued without its consent (Article XVI, Section 3, of the 1987
Constitution). Invoking this rule, the PC Chief and PC-SUSIA contend that, being
instrumentalities of the national government exercising a primarily governmental
function of regulating the organization and operation of private detective, watchmen,
or security guard agencies, said official (the PC Chief) and agency (PC-SUSIA) may
not be sued without the Governments consent, especially in this case because
VMPSIs complaint seeks not only to compel the public respondents to act in a certain
way, but worse, because VMPSI seeks actual and compensatory damages in the sum
of P1,000,000.00, exemplary damages in the same amount, and P200,000.00 as
attorneys fees from said public respondents. Even if its action prospers, the payment
of its monetary claims may not be enforced because the State did not consent to
appropriate the necessary funds for that purpose.
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Thus did we hold in Shauf v. Court of Appeals, 191 SCRA 713:

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"While the doctrine appears to prohibit only suits against the state without its consent,
it is also applicable to complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties. The rule is that if the judgment
against such officials will require the state itself to perform an affirmative act to
satisfy the same, such as the appropriation of the amount needed to pay the damages
awarded against them, the suit must be regarded as against the state itself although
it has not been formally impleaded." (Emphasis supplied.)
A public official may sometimes be held liable in his personal or private capacity if he
acts in bad faith, or beyond the scope of his authority or jurisdiction (Shauf v. Court of
Appeals, supra), however, since the acts for which the PC Chief and PC-SUSIA are
being called to account in this case, were performed by them as part of their official
duties, without malice, gross negligence, or bad faith, no recovery may be had against
them in their private capacities.
We agree with the observation of the Court of Appeals that the Memorandum of
Agreement dated May 12, 1986 does not constitute an implied consent by the State to
be sued:
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"The Memorandum of Agreement dated May 12, 1986 was entered into by the PC
Chief in relation to the exercise of a function sovereign in nature. The correct test for
the application of state immunity is not the conclusion of a contract by the State but
the legal nature of the act. This was clearly enunciated in the case of United States of
America v. Ruiz where the Hon. Supreme Court held:
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"The restrictive application of State immunity is proper only when the proceedings
arise out of commercial transactions of the foreign sovereign, its commercial activities
or economic affairs. Stated differently, a State may be said to have descended to the
level of an individual and can thus be deemed to have tacitly given its consent to be
sued only when it enters into a business contract. It does not apply where the
contract relates to the exercise of its functions. (136 SCRA 487, 492.)
"In the instant case, the Memorandum of Agreement entered into by the PC Chief and
PADPAO was intended to professionalize the industry and to standardize the salaries
of security guards as well as the current rates of security services, clearly, a
governmental function. The execution of the said agreement is incidental to the
purpose of R.A. 5487, as amended, which is to regulate the organization and
operation of private detective, watchmen or security guard agencies. (Emphasis
ours.)" (pp. 258-259, Rollo.)
Waiver of the States immunity from suit, being a derogation of sovereignty, will not
be lightly inferred, but must be construed strictissimi juris (Republic v. Feliciano, 148
SCRA 424). The consent of the State to be sued must emanate from statutory
authority, hence, from a legislative act, not from a mere memorandum. Without such
consent, the trial court did not acquire jurisdiction over the public respondents.
The state immunity doctrine rests upon reasons of public policy and the inconvenience
and danger which would flow from a different rule. "It is obvious that public service
would be hindered, and public safety endangered, if the supreme authority could be
subjected to suits at the instance of every citizen, and, consequently, controlled in the
use and disposition of the means required for the proper administration of the
government" (Siren v. U.S. Wall, 152, 19 L. ed. 129, as cited in 78 SCRA 477). In the
same vein, this Court in Republic v. Purisima (78 SCRA 470, 473) rationalized:
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"Nonetheless, a continued adherence to the doctrine of nonsuability is not to be

deplored for as against the inconvenience that may be cause [by] private parties, the
loss of governmental efficiency and the obstacle to the performance of its multifarious
functions are far greater if such a fundamental principle were abandoned and the
availability of judicial remedy were not thus restricted. With the well known propensity
on the part of our people to go to court, at the least provocation, the loss of time and
energy required to defend against law suits, in the absence of such a basic principle
that constitutes such an effective obstacles, could very well be imagined." (citing
Providence Washington Insurance Co. v. Republic, 29 SCRA 598.)
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WHEREFORE, the petition for review is DENIED and the judgment appealed from is
AFFIRMED in toto. No costs.
SO ORDERED.
Medialdea and Bellosillo, JJ., concur.