ANASTACIO LAUREL, petitioner,

vs.
ERIBERTO MISA, respondent.
Claro M. Recto and Querube C. Makalintal for petitioner.
First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for respondent.
RESOLUTION
In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the Court, acting on the
petition for habeas corpus filed by Anastacio Laurel and based on a theory that a Filipino
citizen who adhered to the enemy giving the latter aid and comfort during the Japanese
occupation cannot be prosecuted for the crime of treason defined and penalized by
article 114 of the Revised Penal Code, for the reason (1) that the sovereignty of the
legitimate government in the Philippines and, consequently, the correlative allegiance of
Filipino citizens thereto was then suspended; and (2) that there was a change of
sovereignty over these Islands upon the proclamation of the Philippine Republic:
(1) Considering that a citizen or subject owes, not a qualified and temporary, but an
absolute and permanent allegiance, which consists in the obligation of fidelity and
obedience to his government or sovereign; and that this absolute and permanent
allegiance should not be confused with the qualified and temporary allegiance which a
foreigner owes to the government or sovereign of the territory wherein he resides, so
long as he remains there, in return for the protection he receives, and which consists in
the obedience to the laws of the government or sovereign. (Carlisle vs. Unite States, 21
Law. ed., 429; Secretary of State Webster Report to the President of the United States in
the case of Thraser, 6 Web. Works, 526);
Considering that the absolute and permanent allegiance of the inhabitants of a territory
occupied by the enemy of their legitimate government or sovereign is not abrogated or
severed by the enemy occupation, because the sovereignty of the government or
sovereign de jure is not transferred thereby to the occupier, as we have held in the cases
of Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113) and of Peralta vs.
Director of Prisons (75 Phil., 285), and if it is not transferred to the occupant it must
necessarily remain vested in the legitimate government; that the sovereignty vested in
the titular government (which is the supreme power which governs a body politic or
society which constitute the state) must be distinguished from the exercise of the rights
inherent thereto, and may be destroyed, or severed and transferred to another, but it
cannot be suspended because the existence of sovereignty cannot be suspended
without putting it out of existence or divesting the possessor thereof at least during the
so-called period of suspension; that what may be suspended is the exercise of the rights
of sovereignty with the control and government of the territory occupied by the enemy
passes temporarily to the occupant; that the subsistence of the sovereignty of the
legitimate government in a territory occupied by the military forces of the enemy during
the war, "although the former is in fact prevented from exercising the supremacy over
them" is one of the "rules of international law of our times"; (II Oppenheim, 6th
Lauterpacht ed., 1944, p. 482), recognized, by necessary implication, in articles 23, 44,

45, and 52 of Hague Regulation; and that, as a corollary of the conclusion that the
sovereignty itself is not suspended and subsists during the enemy occupation, the
allegiance of the inhabitants to their legitimate government or sovereign subsists, and
therefore there is no such thing as suspended allegiance, the basic theory on which the
whole fabric of the petitioner's contention rests;
Considering that the conclusion that the sovereignty of the United State was suspended
in Castine, set forth in the decision in the case of United States vs. Rice, 4 Wheaton,
246, 253, decided in 1819, and quoted in our decision in the cases of Co Kim Cham vs.
Valdez Tan Keh and Dizon and Peralta vs. Director of Prisons, supra, in connection with
the question, not of sovereignty, but of the existence of a government de facto therein
and its power to promulgate rules and laws in the occupied territory, must have been
based, either on the theory adopted subsequently in the Hague Convention of 1907, that
the military occupation of an enemy territory does not transfer the sovereignty to the
occupant; that, in the first case, the word "sovereignty" used therein should be construed
to mean the exercise of the rights of sovereignty, because as this remains vested in the
legitimate government and is not transferred to the occupier, it cannot be suspended
without putting it out of existence or divesting said government thereof; and that in the
second case, that is, if the said conclusion or doctrine refers to the suspension of the
sovereignty itself, it has become obsolete after the adoption of the Hague Regulations in
1907, and therefore it can not be applied to the present case;
Considering that even adopting the words "temporarily allegiance," repudiated by
Oppenheim and other publicists, as descriptive of the relations borne by the inhabitants
of the territory occupied by the enemy toward the military government established over
them, such allegiance may, at most, be considered similar to the temporary allegiance
which a foreigner owes to the government or sovereign of the territory wherein he
resides in return for the protection he receives as above described, and does not do
away with the absolute and permanent allegiance which the citizen residing in a foreign
country owes to his own government or sovereign; that just as a citizen or subject of a
government or sovereign may be prosecuted for and convicted of treason committed in a
foreign country, in the same way an inhabitant of a territory occupied by the military
forces of the enemy may commit treason against his own legitimate government or
sovereign if he adheres to the enemies of the latter by giving them aid and comfort; and
that if the allegiance of a citizen or subject to his government or sovereign is nothing
more than obedience to its laws in return for the protection he receives, it would
necessarily follow that a citizen who resides in a foreign country or state would, on one
hand, ipso facto acquire the citizenship thereof since he has enforce public order and
regulate the social and commercial life, in return for the protection he receives, and
would, on the other hand, lose his original citizenship, because he would not be bound to
obey most of the laws of his own government or sovereign, and would not receive, while
in a foreign country, the protection he is entitled to in his own;
Considering that, as a corollary of the suspension of the exercise of the rights of
sovereignty by the legitimate government in the territory occupied by the enemy military
forces, because the authority of the legitimate power to govern has passed into the
hands of the occupant (Article 43, Hague Regulations), the political laws which prescribe

the reciprocal rights, duties and obligation of government and citizens, are suspended or
in abeyance during military occupation (Co Kim cham vs. Valdez Tan Keh and
dizon, supra), for the only reason that as they exclusively bear relation to the ousted
legitimate government, they are inoperative or not applicable to the government
established by the occupant; that the crimes against national security, such as treason
and espionage; inciting to war, correspondence with hostile country, flight to enemy's
country, as well as those against public order, such as rebellion, sedition, and disloyalty,
illegal possession of firearms, which are of political complexion because they bear
relation to, and are penalized by our Revised Penal Code as crimes against the
legitimate government, are also suspended or become inapplicable as against the
occupant, because they can not be committed against the latter (Peralta vs.Director of
Prisons, supra); and that, while the offenses against public order to be preserved by the
legitimate government were inapplicable as offenses against the invader for the reason
above stated, unless adopted by him, were also inoperative as against the ousted
government for the latter was not responsible for the preservation of the public order in
the occupied territory, yet article 114 of the said Revised Penal Code, was applicable to
treason committed against the national security of the legitimate government, because
the inhabitants of the occupied territory were still bound by their allegiance to the latter
during the enemy occupation;
Considering that, although the military occupant is enjoined to respect or continue in
force, unless absolutely prevented by the circumstances, those laws that enforce public
order and regulate the social and commercial life of the country, he has, nevertheless, all
the powers of de facto government and may, at his pleasure, either change the existing
laws or make new ones when the exigencies of the military service demand such action,
that is, when it is necessary for the occupier to do so for the control of the country and
the protection of his army, subject to the restrictions or limitations imposed by the Hague
Regulations, the usages established by civilized nations, the laws of humanity and the
requirements of public conscience (Peralta vs. Director of Prisons, supra; 1940 United
States Rules of Land Warfare 76, 77); and that, consequently, all acts of the military
occupant dictated within these limitations are obligatory upon the inhabitants of the
territory, who are bound to obey them, and the laws of the legitimate government which
have not been adopted, as well and those which, though continued in force, are in
conflict with such laws and orders of the occupier, shall be considered as suspended or
not in force and binding upon said inhabitants;
Considering that, since the preservation of the allegiance or the obligation of fidelity and
obedience of a citizen or subject to his government or sovereign does not demand from
him a positive action, but only passive attitude or forbearance from adhering to the
enemy by giving the latter aid and comfort, the occupant has no power, as a corollary of
the preceding consideration, to repeal or suspend the operation of the law of treason,
essential for the preservation of the allegiance owed by the inhabitants to their legitimate
government, or compel them to adhere and give aid and comfort to him; because it is
evident that such action is not demanded by the exigencies of the military service or not
necessary for the control of the inhabitants and the safety and protection of his army,
and because it is tantamount to practically transfer temporarily to the occupant their
allegiance to the titular government or sovereign; and that, therefore, if an inhabitant of

the occupied territory were compelled illegally by the military occupant, through force,
threat or intimidation, to give him aid and comfort, the former may lawfully resist and die
if necessary as a hero, or submit thereto without becoming a traitor;
Considering that adoption of the petitioner's theory of suspended allegiance would lead
to disastrous consequences for small and weak nations or states, and would be
repugnant to the laws of humanity and requirements of public conscience, for it would
allow invaders to legally recruit or enlist the Quisling inhabitants of the occupied territory
to fight against their own government without the latter incurring the risk of being
prosecuted for treason, and even compel those who are not aid them in their military
operation against the resisting enemy forces in order to completely subdue and conquer
the whole nation, and thus deprive them all of their own independence or sovereignty
such theory would sanction the action of invaders in forcing the people of a free and
sovereign country to be a party in the nefarious task of depriving themselves of their own
freedom and independence and repressing the exercise by them of their own
sovereignty; in other words, to commit a political suicide;
(2) Considering that the crime of treason against the government of the Philippines
defined and penalized in article 114 of the Penal Code, though originally intended to be a
crime against said government as then organized by authority of the sovereign people of
the United States, exercised through their authorized representative, the Congress and
the President of the United States, was made, upon the establishment of the
Commonwealth Government in 1935, a crime against the Government of the Philippines
established by authority of the people of the Philippines, in whom the sovereignty
resides according to section 1, Article II, of the Constitution of the Philippines, by virtue
of the provision of section 2, Article XVI thereof, which provides that "All laws of the
Philippine Islands . . . shall remain operative, unless inconsistent with this Constitution . .
. and all references in such laws to the Government or officials of the Philippine Islands,
shall be construed, in so far as applicable, to refer to the Government and corresponding
officials under this constitution;
Considering that the Commonwealth of the Philippines was a sovereign government,
though not absolute but subject to certain limitations imposed in the Independence Act
and incorporated as Ordinance appended to our Constitution, was recognized not only
by the Legislative Department or Congress of the United States in approving the
Independence Law above quoted and the Constitution of the Philippines, which contains
the declaration that "Sovereignty resides in the people and all government authority
emanates from them" (section 1, Article II), but also by the Executive Department of the
United States; that the late President Roosevelt in one of his messages to Congress
said, among others, "As I stated on August 12, 1943, the United States in practice
regards the Philippines as having now the status as a government of other independent
nations in fact all the attributes of complete and respected nationhood"
(Congressional Record, Vol. 29, part 6, page 8173); and that it is a principle upheld by
the Supreme Court of the United States in many cases, among them in the case of
Jones vs. United States (137 U.S., 202; 34 Law. ed., 691, 696) that the question of
sovereignty is "a purely political question, the determination of which by the legislative

and executive departments of any government conclusively binds the judges, as well as
all other officers, citizens and subjects of the country.
Considering that section I (1) of the Ordinance appended to the Constitution which
provides that pending the final and complete withdrawal of the sovereignty of the United
States "All citizens of the Philippines shall owe allegiance to the United States", was one
of the few limitations of the sovereignty of the Filipino people retained by the United
States, but these limitations do not away or are not inconsistent with said sovereignty, in
the same way that the people of each State of the Union preserves its own sovereignty
although limited by that of the United States conferred upon the latter by the States; that
just as to reason may be committed against the Federal as well as against the State
Government, in the same way treason may have been committed during the Japanese
occupation against the sovereignty of the United States as well as against the
sovereignty of the Philippine Commonwealth; and that the change of our form of
government from Commonwealth to Republic does not affect the prosecution of those
charged with the crime of treason committed during the Commonwealth, because it is an
offense against the same government and the same sovereign people, for Article XVIII of
our Constitution provides that "The government established by this constitution shall be
known as the Commonwealth of the Philippines. Upon the final and complete withdrawal
of the sovereignty of the United States and the proclamation of Philippine independence,
the Commonwealth of the Philippines shall thenceforth be known as the Republic of the
Philippines";
This Court resolves, without prejudice to write later on a more extended opinion, to deny
the petitioner's petition, as it is hereby denied, for the reasons above set forth and for
others to be stated in the said opinion, without prejudice to concurring opinion therein, if
any. Messrs. Justices Paras and Hontiveros dissent in a separate opinion. Mr. justice
Perfecto concurs in a separate opinion.
DISSENTING
The inhabitants of the occupied territory should necessarily be bound to the sole authority of the
invading power, whose interest and requirements are naturally in conflict with those of the
displaced government, if it is legitimate for the military occupant to demand and enforce from
the inhabitants such obedience as may be necessary for the security of his forces, for the
maintenance of law and order, and for the proper administration of the country (United States
Rules of Land Warfare, 1940, article 297), and to demand all kinds of services "of such a nature
as not to involve the population in the obligation of taking part in military operations against their
own country" (Hague Regulations, article 52);and if, as we have in effect said, by the surrender
the inhabitants pass under a temporary allegiance to the government of the occupant and are
bound by such laws, and such only, as it chooses to recognize and impose, and the belligerent
occupant `is totally independent of the constitution and the laws of the territory, since occupation
is an aim of warfare, and the maintenance and safety of his forces, and the purpose of war,
stand in the foreground of his interest and must be promoted under all circumstances or
conditions." (Peralta vs. Director of Prisons, 75 Phil., 285, 295), citing United States vs. Rice, 4
Wheaton, 246, and quoting Oppenheim, International Law, Vol. II. Sixth Edition, Revised,
1944,p. 432.)

He would be a bigot who cannot or would refuse to see the cruel result if the people in an
occupied territory were required to obey two antagonistic and opposite powers. To emphasize
our point, we would adopt the argument, in a reverse order, of Mr. Justice Hilado in Peralta vs.
Director of Prisons (75 Phil., 285, 358), contained in the following passage:
To have bound those of our people who constituted the great majority who never
submitted to the Japanese oppressors, by the laws, regulations, processes and other
acts of those two puppet governments, would not only have been utterly unjust and
downright illegal, but would have placed them in the absurd and impossible condition of
being simultaneously submitted to two mutually hostile governments, with their
respective constitutional and legislative enactments and institutions on the one hand
bound to continue owing allegiance to the United States and the Commonwealth
Government, and, on the other, to owe allegiance, if only temporary, to Japan.
The only sensible purpose of the treason law which is of political complexion and taken out of
the territorial law and penalized as a new offense committed against the belligerent occupant,
incident to a state of war and necessary for the control of the occupant (Alcantara vs. Director of
Prisons, 75 Phil., 494), must be the preservation of the nation, certainly not its destruction or
extermination. And yet the latter is unwittingly wished by those who are fond of the theory that
what is suspended is merely the exercise of sovereignty by the de juregovernment or the latter's
authority to impose penal sanctions or that, otherwise stated, the suspension refers only to the
military occupant. If this were to be the only effect, the rule would be a meaningless and
superfluous optical illusion, since it is obvious that the fleeing or displaced government cannot,
even if it should want, physically assert its authority in a territory actually beyond its reach, and
that the occupant, on the other hand, will not take the absurd step of prosecuting and punishing
the inhabitants for adhering to and aiding it. If we were to believe the opponents of the rule in
question, we have to accept the absurd proposition that the guerrillas can all be prosecuted with
illegal possession of firearms. It should be borne in the mind that "the possession by the
belligerent occupant of the right to control, maintain or modify the laws that are to obtain within
the occupied area is an exclusive one. The territorial sovereign driven therefrom, can not
compete with it on an even plane. Thus, if the latter attempt interference, its action is a mere
manifestation of belligerent effort to weaken the enemy. It has no bearing upon the legal quality
of what the occupant exacts, while it retains control. Thus, if the absent territorial sovereign,
through some quasi-legislative decree, forbids its nationals to comply with what the occupant
has ordained obedience to such command within the occupied territory would not safeguard the
individual from the prosecution by the occupant." (Hyde, International Law, Vol. III, Second
Revised Edition, 1945, p. 1886.)
As long as we have not outlawed the right of the belligerent occupant to prosecute and punish
the inhabitants for "war treason" or "war crimes," as an incident of the state of war and necessity
for the control of the occupied territory and the protection of the army of the occupant, against
which prosecution and punishment such inhabitants cannot obviously be protected by their
native sovereign, it is hard to understand how we can justly rule that they may at the same time
be prosecuted and punished for an act penalized by the Revised Penal Code, but already taken
out of the territorial law and penalized as a new offense committed against the belligerent occup

In much the same way, we should hold that no treason could have been committed during the
Japanese military occupation against the United States or the Commonwealth Government,
because article 114 of the Revised Penal Code was not then in force. Nor may this penal
provision be applied upon its revival at the time of the reoccupation of the Philippines by virtue
of the principle of postliminium, because of the constitutional inhibition against any ex post
facto law and because, under article 22 of the Revised Penal Code, criminal laws shall have a
retroactive effect only in so far as they favor the accused. Why did we refuse to enforce the
Constitution, more essential to sovereignty than article 114 of the Revised Penal Code in the
aforesaid of Peralta vs. Director of Prisons if, as alleged by the majority, the suspension was
good only as to the military occupant?

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LORETA GOZO, defendant-appellant.
Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Jaime M. Lantin and
Solicitor Norberto P. Eduardo for plaintiff-appellee.
Jose T. Nery for defendant-appellant.

FERNANDO, J.:
Appellant seeks to set aside a judgment of the Court of First Instance of Zambales, convicting
her of a violation of an ordinance of Olongapo, Zambales, requiring a permit from the municipal
mayor for the construction or erection of a building, as well as any modification, alteration, repair
or demolition thereof. She questions its validity, or at the very least, its applicability to her, by
invoking due process, 1 a contention she would premise on what for her is the teaching
of People v. Fajardo. 2 If such a ground were far from being impressed with solidity, she stands
on quicksand when she would deny the applicability of the ordinance to her, on the pretext that
her house was constructed within the naval base leased to the American armed forces. While
yielding to the well-settled doctrine that it does not thereby cease to be Philippine territory, she
would, in effect, seek to emasculate our sovereign rights by the assertion that we cannot
exercise therein administrative jurisdiction. To state the proposition is to make patent how much
it is tinged with unorthodoxy. Clearly then, the lower court decision must be affirmed with the
sole modification that she is given thirty days from the finality of a judgment to obtain a permit,
failing which, she is required to demolish the same.
The facts are undisputed. As set forth in the decision of the lower court: "The accused bought a
house and lot located inside the United States Naval Reservation within the territorial jurisdiction
of Olongapo City. She demolished the house and built another one in its place, without a
building permit from the City Mayor of Olongapo City, because she was told by one Ernesto
Evalle, an assistant in the City Mayor's office, as well as by her neighbors in the area, that such
building permit was not necessary for the construction of the house. On December 29, 1966,
Juan Malones, a building and lot inspector of the City Engineer's Office, Olongapo City, together

with Patrolman Ramon Macahilas of the Olongapo City police force apprehended four
carpenters working on the house of the accused and they brought the carpenters to the
Olongapo City police headquarters for interrogation. ... After due investigation, Loreta Gozo was
charged with violation of Municipal Ordinance No. 14, S. of 1964 with the City Fiscal's
Office." 3 The City Court of Olongapo City found her guilty of violating Municipal Ordinance No.
14, Series of 1964 and sentenced her to an imprisonment of one month as well as to pay the
costs. The Court of Instance of Zambales, on appeal, found her guilty on the above facts of
violating such municipal ordinance but would sentence her merely to pay a fine of P200.00 and
to demolish the house thus erected. She elevated the case to the Court of Appeals but in her
brief, she would put in issue the validity of such an ordinance on constitutional ground or at the
very least its applicability to her in view of the location of her dwelling within the naval base.
Accordingly, the Court of Appeals, in a resolution of January 29, 1973, noting the constitutional
question raised, certified the case to this Court.
There is, as mentioned in the opening paragraph of this petition, no support in law for the stand
taken by appellant.
1. It would be fruitless for her to assert that local government units are devoid of authority to
require building permits. This Court, from Switzer v. Municipality of
Cebu, 4 decided in 1911, has sanctioned the validity of such measures. It is much too late in the
day to contend that such a requirement cannot be validly imposed. Even appellant, justifiably
concerned about the unfavorable impression that could be created if she were to deny that such
competence is vested in municipal corporations and chartered cities, had to concede in her
brief: "If, at all; the questioned ordinance may be predicated under the general welfare clause ...
." 5 Its scope is wide, well-nigh all embracing, covering every aspect of public health, public
morals, public safety, and the well being and good order of the community. 6
It goes without saying that such a power is subject to limitations. Certainly, if its exercise is
violative of any constitutional right, then its validity could be impugned, or at the very least, its
applicability to the person adversely affected could be questioned. So much is settled law.
Apparently, appellant has adopted the view that a due process question may indeed be raised in
view of what for her is its oppressive character. She is led to such a conclusion, relying
on People v. Fajardo. 7 A more careful scrutiny of such a decision would not have led her astray,
for that case is easily distinguishable. The facts as set forth in the opinion follow: "It appears that
on August 15, 1950, during the incumbency of defendant-appellant Juan F. Fajardo as mayor of
the municipality of Baao, Camarines Sur, the municipal council passed the ordinance in
question providing as follows: "... 1. Any person or persons who will construct or repair a
building should, before constructing or repairing, obtain a written permit from the Municipal
Mayor. ... 2. A fee of not less than P2.00 should be charged for each building permit and P1.00
for each repair permit issued. ... 3. [Penalty]-Any violation of the provisions of the above, this
ordinance, shall make the violator liable to pay a fine of not less than P25 nor more than P50 or
imprisonment of not less than 12 days nor more than 24 days or both, at the discretion of the
court. If said building destroys the view of the Public Plaza or occupies any public property, it
shall be removed at the expense of the owner of the building or house. ... ." Four years later,
after the term of appellant Fajardo as mayor had expired, he and his son-in-law, appellant
Babilonia, filed a written request with the incumbent municipal mayor for a permit to construct a
building adjacent to their gasoline station on a parcel of land registered in Fajardo's name,

located along the national highway and separated from the public plaza by a creek ... . On
January 16, 1954, the request was denied, for the reason among others that the proposed
building would destroy the view or beauty of the public plaza ... . On January 18, 1954,
defendants reiterated their request for a building permit ..., but again the request was turned
down by the mayor. Whereupon, appellants proceeded with the construction of the building
without a permit, because they needed a place of residence very badly, their former house
having been destroyed by a typhoon and hitherto they had been living on leased property." 8
Clearly then, the application of such an ordinance to Fajardo was oppressive. A conviction
therefore for a violation thereof both in the justice of the peace court of Baao, Camarines Sur as
well as in the Court of First Instance could not be sustained. In this case, on the contrary,
appellant never bothered to comply with the ordinance. Perhaps aware of such a crucial
distinction, she would assert in her brief: "The evidence showed that even if the accused were to
secure a permit from the Mayor, the same would not have been granted. To require the accused
to obtain a permit before constructing her house would be an exercise in futility. The law will not
require anyone to perform an impossibility, neither in law or in fact: ... ." 9 It would be from her
own version, at the very least then, premature to anticipate such an adverse result, and thus to
condemn an ordinance which certainly lends itself to an interpretation that is neither oppressive,
unfair, or unreasonable. That kind of interpretation suffices to remove any possible question of
its validity, as was expressly announced in Primicias v. Fugoso. 10 So it appears from this portion
of the opinion of Justice Feria, speaking for the Court: "Said provision is susceptible of two
constructions: one is that the Mayor of the City of Manila is vested with unregulated discretion to
grant or refuse to grant permit for the holding of a lawful assembly or meeting, parade, or
procession in the streets and other public places of the City of Manila; and the other is that the
applicant has the right to a permit which shall be granted by the Mayor, subject only to the
latter's reasonable discretion to determine or specify the streets or public places to be used for
the purpose, with a view to prevent confusion by overlapping, to secure convenient use of the
streets and public places by others, and to provide adequate and proper policing to minimize the
risk of disorder. After a mature deliberation, we have arrived at the conclusion that we must
adopt the second construction, that is, construe the provisions of the said ordinance to mean
that it does not confer upon the Mayor the power to refuse to grant the permit, but only the
discretion, in issuing the permit, to determine or specify the streets or public places where the
parade or procession may pass or the meeting may be held." 11 If, in a case affecting such a
preferred freedom as the right to assembly, this Court could construe an ordinance of the City of
Manila so as to avoid offending against a constitutional provision, there is nothing to preclude it
from a similar mode of approach in order to show the lack of merit of an attack against an
ordinance requiring a permit. Appellant cannot therefore take comfort from any broad statement
in the Fajardo opinion, which incidentally is taken out of context, considering the admitted
oppressive application of the challenged measure in that litigation. So much then for the
contention that she could not have been validly convicted for a violation of such ordinance. Nor
should it be forgotten that she did suffer the same fate twice, once from the City Court and
thereafter from the Court of First Instance. The reason is obvious.Such ordinance applies to her.
2. Much less is a reversal indicated because of the alleged absence of the rather novel concept
of administrative jurisdiction on the part of Olongapo City. Nor is novelty the only thing that may
be said against it. Far worse is the assumption at war with controlling and authoritative doctrines
that the mere existence of military or naval bases of a foreign country cuts deeply into the power

to govern. Two leading cases may be cited to show how offensive is such thinking to the juristic
concept of sovereignty, People v. Acierto, 12 and Reagan v. Commissioner of Internal
Revenue. 13 As was so emphatically set forth by Justice Tuason in Acierto: "By the Agreement, it
should be noted, the Philippine Government merely consents that the United States exercise
jurisdiction in certain cases. The consent was given purely as a matter of comity, courtesy, or
expediency. The Philippine Government has not abdicated its sovereignty over the bases as
part of the Philippine territory or divested itself completely of jurisdiction over offenses
committed therein. Under the terms of the treaty, the United States Government has prior or
preferential but not exclusive jurisdiction of such offenses. The Philippine Government retains
not only jurisdictional rights not granted, but also all such ceded rights as the United States
Military authorities for reasons of their own decline to make use of. The first proposition is
implied from the fact of Philippine sovereignty over the bases; the second from the express
provisions of the treaty." 14 There was a reiteration of such a view in Reagan. Thus: "Nothing is
better settled than that the Philippines being independent and sovereign, its authority may be
exercised over its entire domain. There is no portion thereof that is beyond its power. Within its
limits, its decrees are supreme, its commands paramount. Its laws govern therein, and everyone
to whom it applies must submit to its terms. That is the extent of its jurisdiction, both territorial
and personal. Necessarily, likewise, it has to be exclusive. If it were not thus, there is a
diminution of sovereignty." 15 Then came this paragraph dealing with the principle of autolimitation: "It is to be admitted any state may, by its consent, express or implied, submit to a
restriction of its sovereign rights. There may thus be a curtailment of what otherwise is a power
plenary in character. That is the concept of sovereignty as auto-limitation, which, in the succinct
language of Jellinek, "is the property of a state-force due to which it has the exclusive capacity
of legal self-determination and self-restriction." A state then, if it chooses to, may refrain from the
exercise of what otherwise is illimitable competence." 16 The opinion was at pains to point out
though that even then, there is at the most diminution of jurisdictional rights, not its
disappearance. The words employed follow: "Its laws may as to some persons found within its
territory no longer control. Nor does the matter end there. It is not precluded from allowing
another power to participate in the exercise of jurisdictional right over certain portions of its
territory. If it does so, it by no means follows that such areas become impressed with an alien
character. They retain their status as native soil. They are still subject to its authority. Its
jurisdiction may be diminished, but it does not disappear. So it is with the bases under lease to
the American armed forces by virtue of the military bases agreement of 1947. They are not and
cannot be foreign territory." 17
Can there be anything clearer, therefore, than that only a turnabout, unwarranted and
unjustified, from what is settled and orthodox law can lend the slightest degree of plausibility to
the contention of absence of administrative jurisdiction. If it were otherwise, what was aptly
referred to by Justice Tuason "as a matter of comity, courtesy, or expediency" becomes one of
obeisance and submission. If on a concern purely domestic in its implications, devoid of any
connection with national security, the Military-Bases Agreement could be thus interpreted, then
sovereignty indeed becomes a mockery and an illusion. Nor does appellant's thesis rest on less
shaky foundation by the mere fact that Acierto and Reagan dealt with the competence of the
national government, while what is sought to be emasculated in this case is the so-called
administrative jurisdiction of a municipal corporation. Within the limits of its territory, whatever
statutory powers are vested upon it may be validly exercised. Any residual authority and therein
conferred, whether expressly or impliedly, belongs to the national government, not to an alien
country. What is even more to be deplored in this stand of appellant is that no such claim is

made by the American naval authorities, not that it would do them any good if it were so
asserted. To quote from Acierto anew: "The carrying out of the provisions of the Bases
Agreement is the concern of the contracting parties alone. Whether, therefore, a given case
which by the treaty comes within the United States jurisdiction should be transferred to the
Philippine authorities is a matter about which the accused has nothing to do or say. In other
words, the rights granted to the United States by the treaty insure solely to that country and can
not be raised by the offender." 18 If an accused would suffer from such disability, even if the
American armed forces were the beneficiary of a treaty privilege, what is there for appellant to
take hold of when there is absolutely no showing of any alleged grant of what is quaintly
referred to as administrative jurisdiction? That is all, and it is more than enough, to make
manifest the futility of seeking a reversal.
WHEREFORE, the appealed decision of November 11, 1969 is affirmed insofar as it found the
accused, Loreta Gozo, guilty beyond reasonable doubt of a violation of Municipal Ordinance No.
14, series of 1964 and sentencing her to pay a fine of P200.00 with subsidiary imprisonment in
case of insolvency, and modified insofar as she is required to demolish the house that is the
subject matter of the case, she being given a period of thirty days from the finality of this
decision within which to obtain the required permit. Only upon her failure to do so will that
portion of the appealed decision requiringdemolition be enforced. Costs against the accused.
Makalintal, C.J., Zaldivar, Castro, Teehankee, Makasiar, Antonio and Esguerra, JJ., concur.
Barredo, J., took no part.
WILLIAM C. REAGAN, ETC., petitioner,
vs.
COMMISSIONER OF INTERNAL REVENUE, respondent.
Quasha, Asperilla, Blanco, Zafra and Tayag for petitioner.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Felicisimo R.
Rosete, Solicitor Lolita O. Gal-lang and Special Attorney Gamaliel H. Mantolino for respondent.
FERNANDO, J.:
A question novel in character, the answer to which has far-reaching implications, is raised by
petitioner William C. Reagan, at one time a civilian employee of an American corporation
providing technical assistance to the United States Air Force in the Philippines. He would
dispute the payment of the income tax assessed on him by respondent Commissioner of
Internal Revenue on an amount realized by him on a sale of his automobile to a member of the
United States Marine Corps, the transaction having taken place at the Clark Field Air Base at
Pampanga. It is his contention, seriously and earnestly expressed, that in legal contemplation
the sale was made outside Philippine territory and therefore beyond our jurisdictional power to
tax.
Such a plea, far-fetched and implausible, on its face betraying no kinship with reality, he would
justify by invoking, mistakenly as will hereafter be more fully shown an observation to that effect
in a 1951 opinion, 1 petitioner ignoring that such utterance was made purely as a flourish of

rhetoric and by way of emphasizing the decision reached, that the trading firm as purchaser of
army goods must respond for the sales taxes due from an importer, as the American armed
forces being exempt could not be taxed as such under the National Internal Revenue
Code.2 Such an assumption, inspired by the commendable aim to render unavailing any attempt
at tax evasion on the part of such vendee, found expression anew in a 1962 decision,3 coupled
with the reminder however, to render the truth unmistakable, that "the areas covered by the
United States Military Bases are not foreign territories both in the political and geographical
sense."
As thus clarified, it is manifest that such a view amounts at most to a legal fiction and is
moreover obiter. It certainly cannot control the resolution of the specific question that confronts
us. We declare our stand in an unequivocal manner. The sale having taken place on what
indisputably is Philippine territory, petitioner's liability for the income tax due as a result thereof
was unavoidable. As the Court of Tax Appeals reached a similar conclusion, we sustain its
decision now before us on appeal.
In the decision appealed from, the Court of Tax Appeals, after stating the nature of the case,
started the recital of facts thus: "It appears that petitioner, a citizen of the United States and an
employee of Bendix Radio, Division of Bendix Aviation Corporation, which provides technical
assistance to the United States Air Force, was assigned at Clark Air Base, Philippines, on or
about July 7, 1959 ... . Nine (9) months thereafter and before his tour of duty expired, petitioner
imported on April 22, 1960 a tax-free 1960 Cadillac car with accessories valued at $6,443.83,
including freight, insurance and other charges."4 Then came the following: "On July 11, 1960,
more than two (2) months after the 1960 Cadillac car was imported into the Philippines,
petitioner requested the Base Commander, Clark Air Base, for a permit to sell the car, which
was granted provided that the sale was made to a member of the United States Armed Forces
or a citizen of the United States employed in the U.S. military bases in the Philippines. On the
same date, July 11, 1960, petitioner sold his car for $6,600.00 to a certain Willie Johnson, Jr.
(Private first class), United States Marine Corps, Sangley Point, Cavite, Philippines, as shown
by a Bill of Sale . . . executed at Clark Air Base. On the same date, Pfc. Willie (William)
Johnson, Jr. sold the car to Fred Meneses for P32,000.00 as evidenced by a deed of sale
executed in Manila."5
As a result of the transaction thus made, respondent Commissioner of Internal Revenue, after
deducting the landed cost of the car as well as the personal exemption to which petitioner was
entitled, fixed as his net taxable income arising from such transaction the amount of
P17,912.34, rendering him liable for income tax in the sum of P2,979.00. After paying the sum,
he sought a refund from respondent claiming that he was exempt, but pending action on his
request for refund, he filed the case with the Court of Tax Appeals seeking recovery of the sum
of P2,979.00 plus the legal rate of interest.
As noted in the appealed decision: "The only issue submitted for our resolution is whether or not
the said income tax of P2,979.00 was legally collected by respondent for petitioner."6 After
discussing the legal issues raised, primarily the contention that the Clark Air Base "in legal
contemplation, is a base outside the Philippines" the sale therefore having taken place on
"foreign soil", the Court of Tax Appeals found nothing objectionable in the assessment and
thereafter the payment of P2,979.00 as income tax and denied the refund on the same. Hence,

this appeal predicated on a legal theory we cannot accept. Petitioner cannot make out a case
for reversal.
1. Resort to fundamentals is unavoidable to place things in their proper perspective, petitioner
apparently feeling justified in his refusal to defer to basic postulates of constitutional and
international law, induced no doubt by the weight he would accord to the observation made by
this Court in the two opinions earlier referred to. To repeat, scant comfort, if at all is to be
derived from such an obiter dictum, one which is likewise far from reflecting the fact as it is.
Nothing is better settled than that the Philippines being independent and sovereign, its authority
may be exercised over its entire domain. There is no portion thereof that is beyond its power.
Within its limits, its decrees are supreme, its commands paramount. Its laws govern therein, and
everyone to whom it applies must submit to its terms. That is the extent of its jurisdiction, both
territorial and personal. Necessarily, likewise, it has to be exclusive. If it were not thus, there is a
diminution of its sovereignty.
It is to be admitted that any state may, by its consent, express or implied, submit to a restriction
of its sovereign rights. There may thus be a curtailment of what otherwise is a power plenary in
character. That is the concept of sovereignty as auto-limitation, which, in the succinct language
of Jellinek, "is the property of a state-force due to which it has the exclusive capacity of legal
self-determination and self-restriction."7 A state then, if it chooses to, may refrain from the
exercise of what otherwise is illimitable competence.
Its laws may as to some persons found within its territory no longer control. Nor does the matter
end there. It is not precluded from allowing another power to participate in the exercise of
jurisdictional right over certain portions of its territory. If it does so, it by no means follows that
such areas become impressed with an alien character. They retain their status as native soil.
They are still subject to its authority. Its jurisdiction may be diminished, but it does not disappear.
So it is with the bases under lease to the American armed forces by virtue of the military bases
agreement of 1947. They are not and cannot be foreign territory.
Decisions coming from petitioner's native land, penned by jurists of repute, speak to that effect
with impressive unanimity. We start with the citation from Chief Justice Marshall, announced in
the leading case of Schooner Exchange v. M'Faddon,8 an 1812 decision: "The jurisdiction of the
nation within its own territory is necessarily exclusive and absolute. It is susceptible of no
limitation not imposed by itself. Any restriction upon it, deriving validity from an external source,
would imply a diminution of its sovereignty to the extent of the restriction, and an investment of
that sovereignty to the same extent in that power which could impose such restriction." After
which came this paragraph: "All exceptions, therefore, to the full and complete power of a nation
within its own territories, must be traced up to the consent of the nation itself. They can flow
from no other legitimate source."
Chief Justice Taney, in an 1857 decision,9 affirmed the fundamental principle of everyone within
the territorial domain of a state being subject to its commands: "For undoubtedly every person
who is found within the limits of a government, whether the temporary purposes or as a
resident, is bound by its laws." It is no exaggeration then for Justice Brewer to stress that the

United States government "is one having jurisdiction over every foot of soil within its territory,
and acting directly upon each [individual found therein]; . . ."10
Not too long ago, there was a reiteration of such a view, this time from the pen of Justice Van
Devanter. Thus: "It now is settled in the United States and recognized elsewhere that the
territory subject to its jurisdiction includes the land areas under its dominion and control the
ports, harbors, bays, and other in closed arms of the sea along its coast, and a marginal belt of
the sea extending from the coast line outward a marine league, or 3 geographic miles."11 He
could cite moreover, in addition to many American decisions, such eminent treatise-writers as
Kent, Moore, Hyde, Wilson, Westlake, Wheaton and Oppenheim.
As a matter of fact, the eminent commentator Hyde in his three-volume work on International
Law, as interpreted and applied by the United States, made clear that not even the embassy
premises of a foreign power are to be considered outside the territorial domain of the host state.
Thus: "The ground occupied by an embassy is not in fact the territory of the foreign State to
which the premises belong through possession or ownership. The lawfulness or unlawfulness of
acts there committed is determined by the territorial sovereign. If an attache commits an offense
within the precincts of an embassy, his immunity from prosecution is not because he has not
violated the local law, but rather for the reason that the individual is exempt from prosecution. If
a person not so exempt, or whose immunity is waived, similarly commits a crime therein, the
territorial sovereign, if it secures custody of the offender, may subject him to prosecution, even
though its criminal code normally does not contemplate the punishment of one who commits an
offense outside of the national domain. It is not believed, therefore, that an ambassador himself
possesses the right to exercise jurisdiction, contrary to the will of the State of his sojourn, even
within his embassy with respect to acts there committed. Nor is there apparent at the present
time any tendency on the part of States to acquiesce in his exercise of it."12
2. In the light of the above, the first and crucial error imputed to the Court of Tax Appeals to the
effect that it should have held that the Clark Air Force is foreign soil or territory for purposes of
income tax legislation is clearly without support in law. As thus correctly viewed, petitioner's
hope for the reversal of the decision completely fades away. There is nothing in the Military
Bases Agreement that lends support to such an assertion. It has not become foreign soil or
territory. This country's jurisdictional rights therein, certainly not excluding the power to tax, have
been preserved. As to certain tax matters, an appropriate exemption was provided for.
Petitioner could not have been unaware that to maintain the contrary would be to defy reality
and would be an affront to the law. While his first assigned error is thus worded, he would seek
to impart plausibility to his claim by the ostensible invocation of the exemption clause in the
Agreement by virtue of which a "national of the United States serving in or employed in the
Philippines in connection with the construction, maintenance, operation or defense of the bases
and residing in the Philippines only by reason of such employment" is not to be taxed on his
income unless "derived from Philippine source or sources other than the United States
sources."13 The reliance, to repeat, is more apparent than real for as noted at the outset of this
opinion, petitioner places more faith not on the language of the provision on exemption but on a
sentiment given expression in a 1951 opinion of this Court, which would be made to yield such
an unwarranted interpretation at war with the controlling constitutional and international law

principles. At any rate, even if such a contention were more adequately pressed and insisted
upon, it is on its face devoid of merit as the source clearly was Philippine.
In Saura Import and Export Co. v. Meer,14 the case above referred to, this Court affirmed a
decision rendered about seven months previously,15 holding liable as an importer, within the
contemplation of the National Internal Revenue Code provision, the trading firm that purchased
army goods from a United States government agency in the Philippines. It is easily
understandable why. If it were not thus, tax evasion would have been facilitated. The United
States forces that brought in such equipment later disposed of as surplus, when no longer
needed for military purposes, was beyond the reach of our tax statutes.
Justice Tuason, who spoke for the Court, adhered to such a rationale, quoting extensively from
the earlier opinion. He could have stopped there. He chose not to do so. The transaction having
occurred in 1946, not so long after the liberation of the Philippines, he proceeded to discuss the
role of the American military contingent in the Philippines as a belligerent occupant. In the
course of such a dissertion, drawing on his well-known gift for rhetoric and cognizant that he
was making an as if statement, he did say: "While in army bases or installations within the
Philippines those goods were in contemplation of law on foreign soil."
It is thus evident that the first, and thereafter the controlling, decision as to the liability for sales
taxes as an importer by the purchaser, could have been reached without any need for such
expression as that given utterance by Justice Tuason. Its value then as an authoritative doctrine
cannot be as much as petitioner would mistakenly attach to it. It was clearly obiter not being
necessary for the resolution of the issue before this Court.16It was an opinion "uttered by the
way."17 It could not then be controlling on the question before us now, the liability of the
petitioner for income tax which, as announced at the opening of this opinion, is squarely raised
for the first time.18
On this point, Chief Justice Marshall could again be listened to with profit. Thus: "It is a maxim,
not to be disregarded, that general expressions, in every opinion, are to be taken in connection
with the case in which those expressions are used. If they go beyond the case, they may be
respected, but ought not to control the judgment in a subsequent suit when the very point is
presented for decision."19
Nor did the fact that such utterance of Justice Tuason was cited in Co Po v. Collector of Internal
Revenue,20 a 1962 decision relied upon by petitioner, put a different complexion on the matter.
Again, it was by way of pure embellishment, there being no need to repeat it, to reach the
conclusion that it was the purchaser of army goods, this time from military bases, that must
respond for the advance sales taxes as importer. Again, the purpose that animated the
reiteration of such a view was clearly to emphasize that through the employment of such a
fiction, tax evasion is precluded. What is more, how far divorced from the truth was such
statement was emphasized by Justice Barrera, who penned the Co Po opinion, thus: "It is true
that the areas covered by the United States Military Bases are not foreign territories both in the
political and geographical sense."21
Justice Tuason moreover made explicit that rather than corresponding with reality, what was
said by him was in the way of a legal fiction. Note his stress on "in contemplation of law." To

lend further support to a conclusion already announced, being at that a confirmation of what had
been arrived at in the earlier case, distinguished by its sound appreciation of the issue then
before this Court and to preclude any tax evasion, an observation certainly not to be taken
literally was thus given utterance.
This is not to say that it should have been ignored altogether afterwards. It could be utilized
again, as it undoubtedly was, especially so for the purpose intended, namely to stigmatize as
without support in law any attempt on the part of a taxpayer to escape an obligation incumbent
upon him. So it was quoted with that end in view in the Co Po case. It certainly does not justify
any effort to render futile the collection of a tax legally due, as here. That was farthest from the
thought of Justice Tuason.
What is more, the statement on its face is, to repeat, a legal fiction. This is not to discount the
uses of a fictio jurisin the science of the law. It was Cardozo who pointed out its value as a
device "to advance the ends of justice" although at times it could be "clumsy" and even
"offensive".22 Certainly, then, while far from objectionable as thus enunciated, this observation of
Justice Tuason could be misused or misconstrued in a clumsy manner to reach an offensive
result. To repeat, properly used, a legal fiction could be relied upon by the law, as Frankfurter
noted, in the pursuit of legitimate ends.23 Petitioner then would be well-advised to take to heart
such counsel of care and circumspection before invoking not a legal fiction that would avoid a
mockery of the law by avoiding tax evasion but what clearly is a misinterpretation thereof,
leading to results that would have shocked its originator.
The conclusion is thus irresistible that the crucial error assigned, the only one that calls for
discussion to the effect that for income tax purposes the Clark Air Force Base is outside
Philippine territory, is utterly without merit. So we have said earlier.
3. To impute then to the statement of Justice Tuason the meaning that petitioner would fasten
on it is, to paraphrase Frankfurter, to be guilty of succumbing to the vice of literalness. To so
conclude is, whether by design or inadvertence, to misread it. It certainly is not susceptible of
the mischievous consequences now sought to be fastened on it by petitioner.
That it would be fraught with such peril to the enforcement of our tax statutes on the military
bases under lease to the American armed forces could not have been within the contemplation
of Justice Tuason. To so attribute such a bizarre consequence is to be guilty of a grave
disservice to the memory of a great jurist. For his real and genuine sentiment on the matter in
consonance with the imperative mandate of controlling constitutional and international law
concepts was categorically set forth by him, not as an obiter but as the rationale of the decision,
in People v. Acierto24 thus: "By the [Military Bases] Agreement, it should be noted, the Philippine
Government merely consents that the United States exercise jurisdiction in certain cases. The
consent was given purely as a matter of comity, courtesy, or expediency over the bases as part
of the Philippine territory or divested itself completely of jurisdiction over offenses committed
therein."
Nor did he stop there. He did stress further the full extent of our territorial jurisdiction in words
that do not admit of doubt. Thus: "This provision is not and can not on principle or authority be
construed as a limitation upon the rights of the Philippine Government. If anything, it is an

emphatic recognition and reaffirmation of Philippine sovereignty over the bases and of the truth
that all jurisdictional rights granted to the United States and not exercised by the latter are
reserved by the Philippines for itself."25
It is in the same spirit that we approach the specific question confronting us in this litigation. We
hold, as announced at the outset, that petitioner was liable for the income tax arising from a sale
of his automobile in the Clark Field Air Base, which clearly is and cannot otherwise be other
than, within our territorial jurisdiction to tax.
4. With the mist thus lifted from the situation as it truly presents itself, there is nothing that
stands in the way of an affirmance of the Court of Tax Appeals decision. No useful purpose
would be served by discussing the other assigned errors, petitioner himself being fully aware
that if the Clark Air Force Base is to be considered, as it ought to be and as it is, Philippine soil
or territory, his claim for exemption from the income tax due was distinguished only by its futility.
There is further satisfaction in finding ourselves unable to indulge petitioner in his plea for
reversal. We thus manifest fealty to a pronouncement made time and time again that the law
does not look with favor on tax exemptions and that he who would seek to be thus privileged
must justify it by words too plain to be mistaken and too categorical to be
misinterpreted.26 Petitioner had not done so. Petitioner cannot do so.
WHEREFORE, the decision of the Court of Tax Appeals of May 12, 1966 denying the refund of
P2,979.00 as the income tax paid by petitioner is affirmed. With costs against petitioner.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Teehankee, JJ., concur.
Reyes, J.B.L., J., concurs in the result.
Barredo, J., took no part.

REID V COVERT
Facts of the Case
While residing at an airbase in England as a military dependent, Mrs. Clarice Covert was tried
and convicted by court-martial for the murder of her husband, a sergeant in the United States
Air Force. Mrs. Covert was not a member of the armed forces. Her trial and subsequent
conviction by court martial in the United States was authorized under Article 2(11) of the United
States Code of Military Justice. Mrs. Covert filed a petition for a writ of habeas corpus in federal
district court alleging that her conviction by military authorities had violated her constitutional
rights under the Fifth and Sixth Amendments. The district court, holding that a civilian is entitled
to a civilian trial, granted her petition. The Government appealed directly to the United States
Supreme Court.

In its initial decision of the case (351 U.S. 487), the Court held that Mrs. Coverts military trial
was constitutional, that the Constitutional right to a trial by jury did not apply to American citizens
tried in foreign lands. Congress, the Court held, could provide for trial by any means it saw fit so
long as such means were reasonable and consistent with due process. Justice Felix Frankfurter
issued a lengthy reservation, and Chief Justice Earl Warren together with Justices Hugo L.
Black and William O. Douglas issued a strong dissent. The Court subsequently granted a
petition for rehearing.
Question
Do American citizens abroad retain the rights granted to them by the Bill of Rights thus
rendering Article 2(11) of the United State Code of Military Justice unconstitutional?
Argument
Reid v. Covert - Oral Reargument, Part 2Reid v. Covert - Oral Reargument, Part 1
Conclusion
Decision: 6 votes for Covert, 2 vote(s) against
Legal provision: Uniform Code of Military Justice
Yes. In a plurality opinion written by Justice Hugo L. Black and joined by Chief Justice Earl
Warren, and Justices William O. Douglas and William J. Brennan, Jr., the Court held that
American citizens outside of the territorial jurisdiction of the United States retain the protections
guaranteed by the United States Constitution. Accordingly, the decision below granting Mrs.
Coverts habeas petition was affirmed. Black wrote: [W]e reject the idea that when the United
States acts against citizens abroad it can do so free of the Bill of Rights. The United States is
entirely a creature of the Constitution. Its power and authority have no other source. It can only
act in accordance with all the limitations imposed by the Constitution. When the Government
reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts
of the Constitution provide to protect his life and liberty should not be stripped away just
because he happens to be in another land. Consequently, the plurality asserted that neither a
treaty nor the Necessary and Proper Clause could confer upon Congress the sweeping power
to try civilians by military court martial.
While a majority of the Court agreed with the ultimate result, they did so for different reasons.
Concurring in the decision, Justice Felix Frankfurter rejected the idea that the Necessary and
Proper Clause could prevent Congress from mandating the court martial of civilians in all cases.
He opposed what he termed a recourse to the literal words of the Constitution. Merely to hold
that Mrs. Covert could not stand trial before a military tribunal since she was not a member of
the armed forces signified too narrow a review. In his opinion, that determination required the
Court to assess the Constitution in its entirety and not simply the single provision granting
Congress the power to regulate the nations land and naval forces. He advocated a balancing
test that would require a court to weigh all the factors involved...in order to decide whether
[military dependents] are so closely related to what Congress may allowably deem essential for
the effective...regulation of the land and naval forces that they may be subjected to court-martial
jurisdiction in...capital cases, when the consequence is loss of [their constitutional] protections.

Also concurring in the judgment, Justice John Marshall Harlan II essentially agreed with
Frankfurter. Accordingly, he saw the determination as analogous to issues of due process.
Having first determined that military dependents overseas bear a rational connection to the
armed forces such that they could be validly subjected to court martial, he then asserted that the
analysis turned on a question of what process was due a military dependent under the
particular circumstances of a particular case. While capital cases such as this one certainly
necessitated a full Article III trial, most petty offenses committed by military dependents almost
certainly would not. He thus advocated a case-by-case approach, rejecting the sweeping
conclusion set forth by the plurality. Since Harlan had originally voted with the majority in the
initial decision of this case, his concurrence on rehearing was narrow but significant. Perhaps as
a consequence of his earlier vote in the previous term, his opinion on rehearing was
considerably less at odds with the arguments set forth in the dissent written by Justice Tom C.
Clark and joined by Justice Harold Burton.
In that staunch dissent, Clark gave substantial weight to historical practice. He asserted that the
military has always exercised jurisdiction by court-martial over civilians accompanying armies in
time of war, and that for explicit reasons of policy concerning military morale and discipline,
none of the Courts relevant precedents had ever questioned that authority. He pointed out
several troublesome and practical consequences of the Courts holding. Not least among these
were the vast distances between the United States and its various military instillations around
the world. By setting forth an overly broad standard, the plurality, argued Clark, had opened the
door to a myriad of petty offenses to be tried in the federal court system, thus incurring needless
cost, delay, and disruption.
Justice Charles Whitaker took no part in the decision.
TANADA vs ANGARA

Brief Historical Background

To hasten worldwide recovery from the devastation wrought by the Second World War,
plans for the establishment of three multilateral institutions -- inspired by that grand political
body, the United Nations -- were discussed at Dumbarton Oaks and Bretton
Woods. The first was the World Bank (WB) which was to address the rehabilitation and
reconstruction of war-ravaged and later developing countries; the second, the International
Monetary Fund (IMF) which was to deal with currency problems; and the third, the International
Trade Organization (ITO), which was to foster order and predictability in world trade and to
minimize unilateral protectionist policies that invite challenge, even retaliation, from other
states. However, for a variety of reasons, including its non-ratification by the United States, the
ITO, unlike the IMF and WB, never took off. What remained was only GATT -- the General
Agreement on Tariffs and Trade. GATT was a collection of treaties governing access to the
economies of treaty adherents with no institutionalized body administering the agreements or
dependable system of dispute settlement.
After half a century and several dizzying rounds of negotiations, principally the Kennedy
Round, the Tokyo Round and the Uruguay Round, the world finally gave birth to that

administering body -- the World Trade Organization -- with the signing of the Final Act in
Marrakesh, Morocco and the ratification of the WTO Agreement by its members.[1]
Like many other developing countries, the Philippines joined WTO as a founding member
with the goal, as articulated by President Fidel V. Ramos in two letters to the Senate (infra), of
improving Philippine access to foreign markets, especially its major trading partners, through
the reduction of tariffs on its exports, particularly agricultural and industrial products. The
President also saw in the WTO the opening of new opportunities for the services sector x x x,
(the reduction of) costs and uncertainty associated with exporting x x x, and (the attraction of)
more investments into the country. Although the Chief Executive did not expressly mention it in
his letter, the Philippines - - and this is of special interest to the legal profession - - will benefit
from the WTO system of dispute settlement by judicial adjudication through the independent
WTO settlement bodies called (1) Dispute Settlement Panels and (2) Appellate
Tribunal. Heretofore, trade disputes were settled mainly through negotiations where solutions
were arrived at frequently on the basis of relative bargaining strengths, and where naturally,
weak and underdeveloped countries were at a disadvantage.

The Petition in Brief

Arguing mainly (1) that the WTO requires the Philippines to place nationals and products
of member-countries on the same footing as Filipinos and local products and (2) that the WTO
intrudes, limits and/or impairs the constitutional powers of both Congress and the Supreme
Court, the instant petition before this Court assails the WTO Agreement for violating the
mandate of the 1987 Constitution to develop a self-reliant and independent national economy
effectively controlled by Filipinos x x x (to) give preference to qualified Filipinos (and to) promote
the preferential use of Filipino labor, domestic materials and locally produced goods.
Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide
trade liberalization and economic globalization? Does it prescribe Philippine integration into a
global economy that is liberalized, deregulated and privatized? These are the main questions
raised in this petition for certiorari, prohibition and mandamus under Rule 65 of the Rules of
Court praying (1) for the nullification, on constitutional grounds, of the concurrence of the
Philippine Senate in the ratification by the President of the Philippines of the Agreement
Establishing the World Trade Organization (WTO Agreement, for brevity) and (2) for the
prohibition of its implementation and enforcement through the release and utilization of public
funds, the assignment of public officials and employees, as well as the use of government
properties and resources by respondent-heads of various executive offices concerned
therewith. This concurrence is embodied in Senate Resolution No. 97, dated December 14,
1994.

The Facts
On April
15,
1994,
Respondent
Rizalino
Navarro,
then
Secretary of
the Department of Trade and Industry (Secretary Navarro, for brevity), representing the
Government of the Republic of the Philippines, signed in Marrakesh, Morocco, the Final Act
Embodying the Results of the Uruguay Round of Multilateral Negotiations (Final Act, for brevity).

By signing the Final Act,[2] Secretary Navarro on behalf of the Republic of the Philippines,
agreed:
(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent
authorities, with a view to seeking approval of the Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received a letter dated August
11, 1994 from the President of the Philippines,[3] stating among others that the Uruguay Round
Final Act is hereby submitted to the Senate for its concurrence pursuant to Section 21, Article
VII of the Constitution.
On August 13, 1994, the members of the Philippine Senate received another letter from the
President of the Philippines[4] likewise dated August 11, 1994, which stated among others that
the Uruguay Round Final Act, the Agreement Establishing the World Trade Organization, the
Ministerial Declarations and Decisions, and the Understanding on Commitments in Financial
Services are hereby submitted to the Senate for its concurrence pursuant to Section 21, Article
VII of the Constitution.
On December 9, 1994, the President of the Philippines certified the necessity of the
immediate adoption of P.S. 1083, a resolution entitled Concurring in the Ratification of the
Agreement Establishing the World Trade Organization.[5]
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which Resolved,
as it is hereby resolved, that the Senate concur, as it hereby concurs, in the ratification by the
President of the Philippines of the Agreement Establishing the World Trade Organization.[6] The
text of the WTO Agreement is written on pages 137 et seq. of Volume I of the 36volume Uruguay Round of Multilateral Trade Negotiations and includes various agreements and
associated legal instruments (identified in the said Agreement as Annexes 1, 2 and 3 thereto
and collectively referred to as Multilateral Trade Agreements, for brevity) as follows:
ANNEX 1
Annex 1A:

Multilateral Agreement on Trade in Goods

General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures

Agreement on Implementation of Article VI of the

and Trade 1994

General Agreement on Tariffs

Agreement on Implementation of Article VII of the General on Tariffs and Trade

1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating Measures
Agreement on Safeguards
Annex 1B:

General Agreement on Trade in Services and Annexes

Annex 1C:

Agreement on Trade-Related Aspects of Intellectual Property Rights

ANNEX 2
Understanding on Rules and Procedures Governing the Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism

On December 16, 1994, the President of the Philippines signed [7] the Instrument of
Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of the
Philippines, after having seen and considered the aforementioned Agreement Establishing the World
Trade Organization and the agreements and associated legal instruments included in Annexes one (1), two
(2) and three (3) of that Agreement which are integral parts thereof, signed at Marrakesh, Morocco on 15
April 1994, do hereby ratify and confirm the same and every Article and Clause thereof.
To emphasize, the WTO Agreement ratified by the President of the Philippines is composed
of the Agreement Proper and the associated legal instruments included in Annexes one (1), two
(2) and three (3) of that Agreement which are integral parts thereof.
On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO
Agreement (and its integral annexes aforementioned) but also (1) the Ministerial Declarations
and Decisions and (2) the Understanding on Commitments in Financial Services. In his
Memorandum dated May 13, 1996,[8] the Solicitor General describes these two latter documents
as follows:
The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a wide range
of matters, such as measures in favor of least developed countries, notification procedures, relationship of

WTO with the International Monetary Fund (IMF), and agreements on technical barriers to trade and on
dispute settlement.
The Understanding on Commitments in Financial Services dwell on, among other things, standstill or
limitations and qualifications of commitments to existing non-conforming measures, market access,
national treatment, and definitions of non-resident supplier of financial services, commercial presence and
new financial service.
On December 29, 1994, the present petition was filed. After careful deliberation on
respondents comment and petitioners reply thereto, the Court resolved on December 12, 1995,
to give due course to the petition, and the parties thereafter filed their respective
memoranda. The Court also requested the Honorable Lilia R. Bautista, the Philippine
Ambassador to the United Nations stationed in Geneva, Switzerland, to submit a paper,
hereafter referred to as Bautista Paper, [9] for brevity, (1) providing a historical background of
and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court directed:
(a) the petitioners to submit the (1) Senate Committee Report on the matter in controversy and (2) the
transcript of proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine treaties signed prior to
the Philippine adherence to the WTO Agreement, which derogate from Philippine sovereignty and (2)
copies of the multi-volume WTO Agreement and other documents mentioned in the Final Act, as soon as
possible.
After receipt of the foregoing documents, the Court said it would consider the case
submitted for resolution. In a Compliance dated September 16, 1996, the Solicitor General
submitted a printed copy of the 36-volume Uruguay Round of Multilateral Trade Negotiations,
and in another Compliance dated October 24, 1996, he listed the various bilateral or
multilateral treaties or international instruments involving derogation of Philippine
sovereignty. Petitioners, on the other hand, submitted their Compliance dated January 28,
1997, on January 30, 1997.

The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows:
A. Whether the petition presents a political question or is otherwise not justiciable.
B. Whether the petitioner members of the Senate who participated in the deliberations and voting
leading to the concurrence are estopped from impugning the validity of the Agreement
Establishing the World Trade Organization or of the validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the World Trade Organization contravene
the provisions of Sec. 19, Article II, and Secs. 10 and 12, Article XII, all of the 1987 Philippine
Constitution.

D. Whether provisions of the Agreement Establishing the World Trade Organization unduly limit,
restrict and impair Philippine sovereignty specifically the legislative power which, under Sec. 2,
Article VI, 1987 Philippine Constitution is vested in the Congress of the Philippines;
E. Whether provisions of the Agreement Establishing the World Trade Organization interfere with
the exercise of judicial power.
F. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to
lack or excess of jurisdiction when they voted for concurrence in the ratification of the
constitutionally-infirm Agreement Establishing the World Trade Organization.
G. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to
lack or excess of jurisdiction when they concurred only in the ratification of the Agreement
Establishing the World Trade Organization, and not with the Presidential submission which
included the Final Act, Ministerial Declaration and Decisions, and the Understanding on
Commitments in Financial Services.
On the other hand, the Solicitor General as counsel for respondents synthesized the
several issues raised by petitioners into the following:[10]
1. Whether or not the provisions of the Agreement Establishing the World Trade Organization and the
Agreements and Associated Legal Instruments included in Annexes one (1), two (2) and three (3) of that
agreement cited by petitioners directly contravene or undermine the letter, spirit and intent of Section 19,
Article II and Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of
legislative power by Congress.
3. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this
Honorable Court in promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate in the ratification by the President of the Philippines of
the Agreement establishing the World Trade Organization implied rejection of the treaty embodied in the
Final Act.
By raising and arguing only four issues against the seven presented by petitioners, the
Solicitor General has effectively ignored three, namely: (1) whether the petition presents a
political question or is otherwise not justiciable; (2) whether petitioner-members of the Senate
(Wigberto E. Taada and Anna Dominique Coseteng) are estopped from joining this suit; and (3)
whether the respondent-members of the Senate acted in grave abuse of discretion when they
voted for concurrence in the ratification of the WTO Agreement. The foregoing notwithstanding,
this Court resolved to deal with these three issues thus:
(1) The political question issue -- being very fundamental and vital, and being a matter that probes into
the very jurisdiction of this Court to hear and decide this case -- was deliberated upon by the Court and
will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is waivable and the respondents have
effectively waived it by not pursuing it in any of their pleadings; in any event, this issue, even if ruled in

respondents favor, will not cause the petitions dismissal as there are petitioners other than the two
senators, who are not vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be taken up
as an integral part of the disposition of the four issues raised by the Solicitor General.
During its deliberations on the case, the Court noted that the respondents did not question
the locus standi of petitioners. Hence, they are also deemed to have waived the benefit of such
issue. They probably realized that grave constitutional issues, expenditures of public funds and
serious international commitments of the nation are involved here, and that transcendental
public interest requires that the substantive issues be met head on and decided on the merits,
rather than skirted or deflected by procedural matters.[11]
To recapitulate, the issues that will be ruled upon shortly are:
(1)

DOES
THE
PETITION
PRESENT
A
JUSTICIABLE
CONTROVERSY? OTHERWISE STATED, DOES THE PETITION INVOLVE A
POLITICAL QUESTION OVER WHICH THIS COURT HAS NO JURISDICTION?

(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF
THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT,
RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY
CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE
OF JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES ON
EVIDENCE?

Third Issue: The WTO Agreement and Legislative Power

The WTO Agreement provides that (e)ach Member shall ensure the conformity of its laws,
regulations and administrative procedures with its obligations as provided in the annexed
Agreements.[39] Petitioners maintain that this undertaking unduly limits, restricts and impairs
Philippine sovereignty, specifically the legislative power which under Sec. 2, Article VI of the
1987 Philippine Constitution is vested in the Congress of the Philippines. It is an assault on the
sovereign powers of the Philippines because this means that Congress could not pass
legislation that will be good for our national interest and general welfare if such legislation will
not conform with the WTO Agreement, which not only relates to the trade in goods x x x but also
to the flow of investments and money x x x as well as to a whole slew of agreements on sociocultural matters x x x.[40]
More specifically, petitioners claim that said WTO proviso derogates from the power to tax,
which is lodged in the Congress. [41] And while the Constitution allows Congress to authorize the
President to fix tariff rates, import and export quotas, tonnage and wharfage dues, and other
duties or imposts, such authority is subject to specified limits and x x x such limitations and
restrictions as Congress may provide,[42] as in fact it did under Sec. 401 of the Tariff and
Customs Code.

Sovereignty Limited by International Law and Treaties

This Court notes and appreciates the ferocity and passion by which petitioners stressed
their arguments on this issue. However, while sovereignty has traditionally been deemed
absolute and all-encompassing on the domestic level, it is however subject to restrictions and
limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the
family of nations. Unquestionably, the Constitution did not envision a hermit-type isolation of the
country from the rest of the world. In its Declaration of Principles and State Policies, the
Constitution adopts the generally accepted principles of international law as part of the law of
the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity,
with all nations."[43] By the doctrine of incorporation, the country is bound by generally accepted
principles of international law, which are considered to be automatically part of our own laws.
[44]
One of the oldest and most fundamental rules in international law is pacta sunt servanda -international agreements must be performed in good faith. A treaty engagement is not a mere
moral obligation but creates a legally binding obligation on the parties x x x. A state which has
contracted valid international obligations is bound to make in its legislations such modifications
as may be necessary to ensure the fulfillment of the obligations undertaken.[45]
By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By
their voluntary act, nations may surrender some aspects of their state power in exchange for
greater benefits granted by or derived from a convention or pact. After all, states, like
individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits,
they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties
have been used to record agreements between States concerning such widely diverse matters
as, for example, the lease of naval bases, the sale or cession of territory, the termination of war,
the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial
relations, the settling of claims, the laying down of rules governing conduct in peace and the
establishment of international organizations.[46] The sovereignty of a state therefore cannot in
fact and in reality be considered absolute. Certain restrictions enter into the picture: (1)
limitations imposed by the very nature of membership in the family of nations and (2) limitations
imposed by treaty stipulations. As aptly put by John F. Kennedy, Today, no nation can build its
destiny alone. The age of self-sufficient nationalism is over. The age of interdependence is
here.[47]

UN Charter and Other Treaties Limit Sovereignty

Thus, when the Philippines joined the United Nations as one of its 51 charter members, it
consented to restrict its sovereign rights under the concept of sovereignty as auto-limitation.47A
Under Article 2 of the UN Charter, (a)ll members shall give the United Nations every
assistance in any action it takes in accordance with the present Charter, and shall refrain from
giving assistance to any state against which the United Nations is taking preventive or
enforcement action. Such assistance includes payment of its corresponding share not merely
in administrative expenses but also in expenditures for the peace-keeping operations of the
organization. In its advisory opinion of July 20, 1961, the International Court of Justice held that
money used by the United Nations Emergency Force in the Middle East and in the Congo were
expenses of the United Nations under Article 17, paragraph 2, of the UN Charter. Hence, all its
members must bear their corresponding share in such expenses. In this sense, the Philippine
Congress is restricted in its power to appropriate. It is compelled to appropriate funds whether it

agrees with such peace-keeping expenses or not. So too, under Article 105 of the said Charter,
the UN and its representatives enjoy diplomatic privileges and immunities, thereby limiting again
the exercise of sovereignty of members within their own territory. Another example: although
sovereign equality and domestic jurisdiction of all members are set forth as underlying
principles in the UN Charter, such provisos are however subject to enforcement measures
decided by the Security Council for the maintenance of international peace and security under
Chapter VII of the Charter. A final example: under Article 103, (i)n the event of a conflict
between the obligations of the Members of the United Nations under the present Charter and
their obligations under any other international agreement, their obligation under the present
charter shall prevail, thus unquestionably denying the Philippines -- as a member -- the
sovereign power to make a choice as to which of conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other international
pacts -- both bilateral and multilateral -- that involve limitations on Philippine
sovereignty. These are enumerated by the Solicitor General in his Compliance dated October
24, 1996, as follows:
(a) Bilateral convention with the United States regarding taxes on income, where the Philippines
agreed, among others, to exempt from tax, income received in the Philippines by, among others,
the Federal Reserve Bank of the United States, the Export/Import Bank of the United States, the
Overseas Private Investment Corporation of the United States. Likewise, in said convention,
wages, salaries and similar remunerations paid by the United States to its citizens for labor and
personal services performed by them as employees or officials of the United States are exempt
from income tax by the Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for the avoidance of double taxation
with respect to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double taxation.
(d) Bilateral convention with the French Republic for the avoidance of double taxation.
(e) Bilateral air transport agreement with Korea where the Philippines agreed to exempt from all
customs duties, inspection fees and other duties or taxes aircrafts of South Korea and the regular
equipment, spare parts and supplies arriving with said aircrafts.
(f) Bilateral air service agreement with Japan, where the Philippines agreed to exempt from customs
duties, excise taxes, inspection fees and other similar duties, taxes or charges fuel, lubricating
oils, spare parts, regular equipment, stores on board Japanese aircrafts while on Philippine soil.
(g) Bilateral air service agreement with Belgium where the Philippines granted Belgian air carriers
the same privileges as those granted to Japanese and Korean air carriers under separate air
service agreements.
(h) Bilateral notes with Israel for the abolition of transit and visitor visas where the Philippines
exempted Israeli nationals from the requirement of obtaining transit or visitor visas for a sojourn
in the Philippines not exceeding 59 days.
(I) Bilateral agreement with France exempting French nationals from the requirement of obtaining
transit and visitor visa for a sojourn not exceeding 59 days.

(j) Multilateral Convention on Special Missions, where the Philippines agreed that premises of
Special Missions in the Philippines are inviolable and its agents can not enter said premises
without consent of the Head of Mission concerned. Special Missions are also exempted from
customs duties, taxes and related charges.
(k) Multilateral Convention on the Law of Treaties. In this convention, the Philippines agreed to be
governed by the Vienna Convention on the Law of Treaties.
(l) Declaration of the President of the Philippines accepting compulsory jurisdiction of the
International Court of Justice. The International Court of Justice has jurisdiction in all legal
disputes concerning the interpretation of a treaty, any question of international law, the existence
of any fact which, if established, would constitute a breach of international obligation.
In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its
sovereign powers of taxation, eminent domain and police power. The underlying consideration
in this partial surrender of sovereignty is the reciprocal commitment of the other contracting
states in granting the same privilege and immunities to the Philippines, its officials and its
citizens. The same reciprocity characterizes the Philippine commitments under WTO-GATT.
International treaties, whether relating to nuclear disarmament, human rights, the environment, the law
of the sea, or trade, constrain domestic political sovereignty through the assumption of external
obligations. But unless anarchy in international relations is preferred as an alternative, in most cases we
accept that the benefits of the reciprocal obligations involved outweigh the costs associated with any loss
of political sovereignty. (T)rade treaties that structure relations by reference to durable, well-defined
substantive norms and objective dispute resolution procedures reduce the risks of larger countries
exploiting raw economic power to bully smaller countries, by subjecting power relations to some form of
legal ordering. In addition, smaller countries typically stand to gain disproportionately from trade
liberalization. This is due to the simple fact that liberalization will provide access to a larger set of
potential new trading relationship than in case of the larger country gaining enhanced success to the
smaller countrys market.[48]
The point is that, as shown by the foregoing treaties, a portion of sovereignty may be
waived without violating the Constitution, based on the rationale that the Philippines adopts the
generally accepted principles of international law as part of the law of the land and adheres to
the policy of x x x cooperation and amity with all nations.

Fourth Issue: The WTO Agreement and Judicial Power

Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles
of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)[49]intrudes on
the power of the Supreme Court to promulgate rules concerning pleading, practice and
procedures.[50]
To understand the scope and meaning of Article 34, TRIPS, [51] it will be fruitful to restate its
full text as follows:
Article 34

Process Patents: Burden of Proof

1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner
referred to in paragraph 1(b) of Article 28, if the subject matter of a patent is a process for obtaining
a product, the judicial authorities shall have the authority to order the defendant to prove that the
process to obtain an identical product is different from the patented process. Therefore, Members
shall provide, in at least one of the following circumstances, that any identical product when
produced without the consent of the patent owner shall, in the absence of proof to the contrary, be
deemed to have been obtained by the patented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was made by the process and the
owner of the patent has been unable through reasonable efforts to determine the process
actually used.
2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on
the alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the
condition referred to in subparagraph (b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their
manufacturing and business secrets shall be taken into account.
From the above, a WTO Member is required to provide a rule of disputable (note the words
in the absence of proof to the contrary) presumption that a product shown to be identical to
one produced with the use of a patented process shall be deemed to have been obtained by the
(illegal) use of the said patented process, (1) where such product obtained by the patented
product is new, or (2) where there is substantial likelihood that the identical product was made
with the use of the said patented process but the owner of the patent could not determine the
exact process used in obtaining such identical product. Hence, the burden of proof
contemplated by Article 34 should actually be understood as the duty of the alleged patent
infringer to overthrow such presumption. Such burden, properly understood, actually refers to
the burden of evidence (burden of going forward) placed on the producer of the identical (or
fake) product to show that his product was produced without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the burden of proof since,
regardless of the presumption provided under paragraph 1 of Article 34, such owner still has to
introduce evidence of the existence of the alleged identical product, the fact that it is identical
to the genuine one produced by the patented process and the fact of newness of the genuine
product or the fact of substantial likelihood that the identical product was made by the patented
process.
The foregoing should really present no problem in changing the rules of evidence as the
present law on the subject, Republic Act No. 165, as amended, otherwise known as the Patent
Law, provides a similar presumption in cases of infringement of patented design or utility model,
thus:
SEC. 60. Infringement. - Infringement of a design patent or of a patent for utility model shall consist in
unauthorized copying of the patented design or utility model for the purpose of trade or industry in the
article or product and in the making, using or selling of the article or product copying the patented design

or utility model. Identity or substantial identity with the patented design or utility model shall constitute
evidence of copying. (underscoring supplied)
Moreover, it should be noted that the requirement of Article 34 to provide a disputable
presumption applies only if (1) the product obtained by the patented process is NEW or (2) there
is a substantial likelihood that the identical product was made by the process and the process
owner has not been able through reasonable effort to determine the process used. Where
either of these two provisos does not obtain, members shall be free to determine the
appropriate method of implementing the provisions of TRIPS within their own internal systems
and processes.
By and large, the arguments adduced in connection with our disposition of the third issue -derogation of legislative power - will apply to this fourth issue also. Suffice it to say that the
reciprocity clause more than justifies such intrusion, if any actually exists. Besides, Article 34
does not contain an unreasonable burden, consistent as it is with due process and the concept
of adversarial dispute settlement inherent in our judicial system.
So too, since the Philippine is a signatory to most international conventions on patents,
trademarks and copyrights, the adjustment in legislation and rules of procedure will not be
substantial.[52]

GOVT of US vs PURGANAN

In extradition proceedings, are prospective extraditees entitled to notice and

hearing before warrants for their arrest can be issued? Equally important, are they
entitled to the right to bail and provisional liberty while the extradition proceedings are
pending? In general, the answer to these two novel questions is
No. The explanation of and the reasons for, as well as the exceptions to, this rule are
laid out in this Decision.
The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to
void and set aside the Orders dated May 23, 2001 and July 3, 2001 issued by the
Regional Trial Court (RTC) of Manila, Branch 42. The first assailed Order set for
hearing petitioners application for the issuance of a warrant for the arrest of
Respondent Mark B. Jimenez.
[1]

[2]

[3]

The second challenged Order, on the other hand, directed the issuance of a
warrant, but at the same time granted bail to Jimenez. The dispositive portion of the
Order reads as follows:

WHEREFORE, in the light of the foregoing, the [Court] finds probable cause against
respondent Mark Jimenez. Accordingly let a Warrant for the arrest of the respondent
be issued. Consequently and taking into consideration Section 9, Rule 114 of the
Revised Rules of Criminal Procedure, this Court fixes the reasonable amount of bail
for respondents temporary liberty at ONE MILLION PESOS (Php 1,000,000.00), the
same to be paid in cash.
Furthermore respondent is directed to immediately surrender to this Court his
passport and the Bureau of Immigration and Deportation is likewise directed to
include the name of the respondent in its Hold Departure List.
[4]

Essentially, the Petition prays for the lifting of the bail Order, the cancellation of the
bond, and the taking of Jimenez into legal custody.
The Facts
This Petition is really a sequel to GR No. 139465 entitled Secretary of Justice v.
Ralph C. Lantion.
[5]

Pursuant to the existing RP-US Extradition Treaty, the United States Government,
through diplomatic channels, sent to the Philippine Government Note Verbale No. 0522
dated June 16, 1999, supplemented by Note Nos. 0597, 0720 and 0809 and
accompanied by duly authenticated documents requesting the extradition of Mark B.
Jimenez, also known as Mario Batacan Crespo. Upon receipt of the Notes and
documents, the secretary of foreign affairs (SFA) transmitted them to the secretary of
justice (SOJ) for appropriate action, pursuant to Section 5 of Presidential Decree (PD)
No. 1069, also known as the Extradition Law.
[6]

Upon learning of the request for his extradition, Jimenez sought and was granted a
Temporary Restraining Order (TRO) by the RTC of Manila, Branch 25. The TRO
prohibited the Department of Justice (DOJ) from filing with the RTC a petition for his
extradition. The validity of the TRO was, however, assailed by the SOJ in a Petition
before this Court in the said GR No. 139465. Initially, the Court -- by a vote of 9-6 -dismissed the Petition. The SOJ was ordered to furnish private respondent copies of
the extradition request and its supporting papers and to grant the latter a reasonable
period within which to file a comment and supporting evidence.
[7]

[8]

Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its
October 17, 2000 Resolution. By an identical vote of 9-6 -- after three justices changed
their votes -- it reconsidered and reversed its earlier Decision. It held that private
respondent was bereft of the right to notice and hearing during the evaluation stage of
the extradition process. This Resolution has become final and executory.
[9]

Finding no more legal obstacle, the Government of the United States of America,
represented by the Philippine DOJ, filed with the RTC on May 18, 2001, the appropriate
Petition for Extradition which was docketed as Extradition Case No. 01192061. The
Petition alleged, inter alia, that Jimenez was the subject of an arrest warrant issued by
the United States District Court for the Southern District of Florida on April 15,
1999. The warrant had been issued in connection with the following charges in
Indictment No. 99-00281 CR-SEITZ: (1) conspiracy to defraud the United States and to
commit certain offenses in violation of Title 18 US Code Section 371; (2) tax evasion, in
violation of Title 26 US Code Section 7201; (3) wire fraud, in violation of Title 18 US
Code Sections 1343 and 2; (4) false statements, in violation of Title 18 US Code
Sections 1001 and 2; and (5) illegal campaign contributions, in violation of Title 2 US
Code Sections 441b, 441f and 437g(d) and Title 18 US Code Section 2. In order to
prevent the flight of Jimenez, the Petition prayed for the issuance of an order for his
immediate arrest pursuant to Section 6 of PD No. 1069.
Before the RTC could act on the Petition, Respondent Jimenez filed before it an
Urgent Manifestation/Ex-Parte Motion, which prayed that petitioners application for
an arrest warrant be set for hearing.
[10]

In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set
the case for hearing on June 5, 2001. In that hearing, petitioner manifested its
reservations on the procedure adopted by the trial court allowing the accused in an
extradition case to be heard prior to the issuance of a warrant of arrest.
After the hearing, the court a quo required the parties to submit their respective
memoranda. In his Memorandum, Jimenez sought an alternative prayer: that in case a
warrant should issue, he be allowed to post bail in the amount of P100,000.
The alternative prayer of Jimenez was also set for hearing on June 15,
2001. Thereafter, the court below issued its questioned July 3, 2001 Order, directing
the issuance of a warrant for his arrest and fixing bail for his temporary liberty at one
million pesos in cash. After he had surrendered his passport and posted the required
cash bond, Jimenez was granted provisional liberty via the challenged Order dated July
4, 2001.
[11]

[12]

Hence, this Petition.

[13]

Issues
Petitioner presents the following issues for the consideration of this Court:
I.

The public respondent acted without or in excess of jurisdiction or with grave abuse
of discretion amounting to lack or excess of jurisdiction in adopting a procedure of
first hearing a potential extraditee before issuing an arrest warrant under Section 6 of
PD No. 1069.
II.

The public respondent acted without or in excess of jurisdiction or with grave abuse
of discretion amounting to lack or excess of jurisdiction in granting the prayer for bail
and in allowing Jimenez to go on provisional liberty because:
1. An extradition court has no power to authorize bail, in the absence of any law that
provides for such power.
2. Section 13, Article III (right to bail clause) of the 1987 Philippine Constitution
and Section 4, Rule 114 (Bail) of the Rules of Court, as amended, which [were] relied
upon, cannot be used as bases for allowing bail in extradition proceedings.
3. The presumption is against bail in extradition proceedings or proceedings leading
to extradition.
4. On the assumption that bail is available in extradition proceedings or proceedings
leading to extradition, bail is not a matter of right but only of discretion upon clear
showing by the applicant of the existence of special circumstances.
5. Assuming that bail is a matter of discretion in extradition proceedings, the public
respondent received no evidence of special circumstances which may justify release
on bail.
6. The risk that Jimenez will flee is high, and no special circumstance exists that will
engender a well-founded belief that he will not flee.
7. The conditions attached to the grant of bail are ineffectual and do not ensure
compliance by the Philippines with its obligations under the RP-US Extradition
Treaty.
8. The Court of Appeals Resolution promulgated on May 10, 2001 in the case
entitled Eduardo T. Rodriguez et al. vs. The Hon. Presiding Judge, RTC, Branch 17,
Manila, CA-G.R. SP No. 64589, relied upon by the public respondent in granting
bail, had been recalled before the issuance of the subject bail orders.
[14]

In sum, the substantive questions that this Court will address are: (1) whether
Jimenez is entitled to notice and hearing before a warrant for his arrest can be issued,
and (2) whether he is entitled to bail and to provisional liberty while the extradition
proceedings are pending. Preliminarily, we shall take up the alleged prematurity of the
Petition for Certiorari arising from petitioners failure to file a Motion for Reconsideration
in the RTC and to seek relief in the Court of Appeals (CA), instead of in this Court. We
shall also preliminarily discuss five extradition postulates that will guide us in disposing
of the substantive issues.
[15]

The Courts Ruling

The Petition is meritorious.
Preliminary Matters
Alleged Prematurity of Present Petition
Petitioner submits the following justifications for not filing a Motion for
Reconsideration in the Extradition Court: (1) the issues were fully considered by such
court after requiring the parties to submit their respective memoranda and position
papers on the matter and thus, the filing of a reconsideration motion would serve no
useful purpose; (2) the assailed orders are a patent nullity, absent factual and legal
basis therefor; and (3) the need for relief is extremely urgent, as the passage of
sufficient time would give Jimenez ample opportunity to escape and avoid extradition;
and (4) the issues raised are purely of law.
[16]

For resorting directly to this Court instead of the CA, petitioner submits the following
reasons: (1) even if the petition is lodged with the Court of Appeals and such appellate
court takes cognizance of the issues and decides them, the parties would still bring the
matter to this Honorable Court to have the issues resolved once and for all [and] to have
a binding precedent that all lower courts ought to follow; (2) the Honorable Court of
Appeals had in one case ruled on the issue by disallowing bail but the court below
refused to recognize the decision as a judicial guide and all other courts might likewise
adopt the same attitude of refusal; and (3) there are pending issues on bail both in the
extradition courts and the Court of Appeals, which, unless guided by the decision that
this Honorable Court will render in this case, would resolve to grant bail in favor of the
potential extraditees and would give them opportunity to flee and thus, cause adverse
effect on the ability of the Philippines to comply with its obligations under existing
extradition treaties.
[17]

[18]

As a general rule, a petition for certiorari before a higher court will not prosper
unless the inferior court has been given, through a motion for reconsideration, a chance
to correct the errors imputed to it. This rule, though, has certain exceptions: (1) when
the issue raised is purely of law, (2) when public interest is involved, or (3) in case of

urgency. As a fourth exception, the Court has also ruled that the filing of a motion for
reconsideration before availment of the remedy of certiorari is not a sine qua non, when
the questions raised are the same as those that have already been squarely argued and
exhaustively passed upon by the lower court. Aside from being of this nature, the
issues in the present case also involve pure questions of law that are of public
interest. Hence, a motion for reconsideration may be dispensed with.
[19]

[20]

Likewise, this Court has allowed a direct invocation of its original jurisdiction to issue
writs of certiorari when there are special and important reasons therefor. In Fortich v.
Corona we stated:
[21]

[22]

[T]he Supreme Court has the full discretionary power to take cognizance of the
petition filed directly [before] it if compelling reasons, or the nature and importance of
the issues raised, warrant. This has been the judicial policy to be observed and which
has been reiterated in subsequent cases, namely: Uy vs. Contreras, et. al., Torres vs.
Arranz, Bercero vs. De Guzman, and, Advincula vs. Legaspi, et. al. As we have
further stated in Cuaresma:
x x x. A direct invocation of the Supreme Courts original jurisdiction to issue these
writs should be allowed only when there are special and important reasons therefor,
clearly and specifically set out in the petition. This is established policy. x x x.
Pursuant to said judicial policy, we resolve to take primary jurisdiction over the
present petition in the interest of speedy justice and to avoid future litigations so as to
promptly put an end to the present controversy which, as correctly observed by
petitioners, has sparked national interest because of the magnitude of the problem
created by the issuance of the assailed resolution. Moreover, x x x requiring the
petitioners to file their petition first with the Court of Appeals would only result in a
waste of time and money.
That the Court has the power to set aside its own rules in the higher interests of
justice is well-entrenched in our jurisprudence. We reiterate what we said in Piczon
vs. Court of Appeals:
[23]

Be it remembered that rules of procedure are but mere tools designed to facilitate the
attainment of justice. Their strict and rigid application, which would result in
technicalities that tend to frustrate rather than promote substantial justice, must always
be avoided. Time and again, this Court has suspended its own rules and excepted a
particular case from their operation whenever the higher interests of justice so
require. In the instant petition, we forego a lengthy disquisition of the proper

procedure that should have been taken by the parties involved and proceed directly to
the merits of the case.
In a number of other exceptional cases, we held as follows:
[24]

This Court has original jurisdiction, concurrent with that of Regional Trial Courts
and the Court of Appeals, over petitions for certiorari, prohibition, mandamus, quo
warranto and habeas corpus, and we entertain direct resort to us in cases where
special and important reasons or exceptional and compelling circumstances justify the
same.
In the interest of justice and to settle once and for all the important issue of bail in
extradition proceedings, we deem it best to take cognizance of the present case. Such
proceedings constitute a matter of first impression over which there is, as yet, no local
jurisprudence to guide lower courts.
Five Postulates of Extradition
The substantive issues raised in this case require an interpretation or construction
of the treaty and the law on extradition. A cardinal rule in the interpretation of a treaty or
a law is to ascertain and give effect to its intent. Since PD 1069 is intended as a guide
for the implementation of extradition treaties to which the Philippines is a signatory,
understanding certain postulates of extradition will aid us in properly deciding the
issues raised here.
[25]

[26]

1. Extradition Is a Major Instrument for the Suppression of Crime.

First, extradition treaties are entered into for the purpose of suppressing crime by
facilitating the arrest and the custodial transfer of a fugitive from one state to the
other.
[27]

[28]

[29]

With the advent of easier and faster means of international travel, the flight of
affluent criminals from one country to another for the purpose of committing crime and
evading prosecution has become more frequent. Accordingly, governments are
adjusting their methods of dealing with criminals and crimes that transcend international
boundaries.
Today, a majority of nations in the world community have come to look
upon extradition as the major effective instrument of international co-operation in the
suppression of crime. It is the only regular system that has been devised to return
fugitives to the jurisdiction of a court competent to try them in accordance with municipal
and international law.
[30]

[31]

An important practical effect x x x of the recognition of the principle that criminals

should be restored to a jurisdiction competent to try and punish them is that the
number of criminals seeking refuge abroad will be reduced. For to the extent that
efficient means of detection and the threat of punishment play a significant role in the
deterrence of crime within the territorial limits of a State, so the existence of effective
extradition arrangements and the consequent certainty of return to the locus delicti
commissi play a corresponding role in the deterrence of flight abroad in order to
escape the consequence of crime. x x x. From an absence of extradition arrangements
flight abroad by the ingenious criminal receives direct encouragement and thus
indirectly does the commission of crime itself.
[32]

In Secretary v. Lantion we explained:

[33]

The Philippines also has a national interest to help in suppressing crimes and one
way to do it is to facilitate the extradition of persons covered by treaties duly entered
[into] by our government. More and more, crimes are becoming the concern of one
world. Laws involving crimes and crime prevention are undergoing
universalization. One manifest purpose of this trend towards globalization is to deny
easy refuge to a criminal whose activities threaten the peace and progress of civilized
countries. It is to the great interest of the Philippines to be part of this irreversible
movement in light of its vulnerability to crimes, especially transnational crimes.
Indeed, in this era of globalization, easier and faster international travel, and an
expanding ring of international crimes and criminals, we cannot afford to be an
isolationist state. We need to cooperate with other states in order to improve our
chances of suppressing crime in our own country.
2. The Requesting State Will Accord Due Process to the Accused
Second, an extradition treaty presupposes that both parties thereto have examined,
and that both accept and trust, each others legal system and judicial process. More
pointedly, our duly authorized representatives signature on an extradition treaty
signifies our confidence in the capacity and the willingness of the other state to protect
the basic rights of the person sought to be extradited. That signature signifies our full
faith that the accused will be given, upon extradition to the requesting state, all relevant
and basic rights in the criminal proceedings that will take place therein; otherwise, the
treaty would not have been signed, or would have been directly attacked for its
unconstitutionality.
[34]

[35]

3. The Proceedings Are Sui Generis

Third, as pointed out in Secretary of Justice v. Lantion, extradition proceedings are

not criminal in nature. In criminal proceedings, the constitutional rights of the accused
are at fore; in extradition which is sui generis -- in a class by itself -- they are not.
[36]

An extradition [proceeding] is sui generis. It is not a criminal proceeding which will

call into operation all the rights of an accused as guaranteed by the Bill of Rights. To
begin with, the process of extradition does not involve the determination of the guilt
or innocence of an accused. His guilt or innocence will be adjudged in the court of
the state where he will be extradited. Hence, as a rule, constitutional rights that are
only relevant to determine the guilt or innocence of an accused cannot be invoked by
an extraditee x x x.
xxx xxx

xxx

There are other differences between an extradition proceeding and a criminal

proceeding. An extradition proceeding is summary in nature while criminal
proceedings involve a full-blown trial. In contradistinction to a criminal proceeding,
the rules of evidence in an extradition proceeding allow admission of evidence under
less stringent standards. In terms of the quantum of evidence to be satisfied, a
criminal case requires proof beyond reasonable doubt for conviction while a fugitive
may be ordered extradited upon showing of the existence of a prima facie
case. Finally, unlike in a criminal case where judgment becomes executory upon
being rendered final, in an extradition proceeding, our courts may adjudge an
individual extraditable but the President has the final discretion to extradite him. The
United States adheres to a similar practice whereby the Secretary of State exercises
wide discretion in balancing the equities of the case and the demands of the nations
foreign relations before making the ultimate decision to extradite.
Given the foregoing, it is evident that the extradition court is not called upon to
ascertain the guilt or the innocence of the person sought to be extradited. Such
determination during the extradition proceedings will only result in needless duplication
and delay. Extradition is merely a measure of international judicial assistance through
which a person charged with or convicted of a crime is restored to a jurisdiction with the
best claim to try that person. It is not part of the function of the assisting authorities to
enter into questions that are the prerogative of that jurisdiction. The ultimate purpose
of extradition proceedings in court is only to determine whether the extradition request
complies with the Extradition Treaty, and whether the person sought is extraditable.
[37]

[38]

[39]

4. Compliance Shall Be in Good Faith.

Fourth, our executive branch of government voluntarily entered into the Extradition
Treaty, and our legislative branch ratified it. Hence, the Treaty carries the presumption
that its implementation will serve the national interest.
Fulfilling our obligations under the Extradition Treaty promotes comity with the
requesting state. On the other hand, failure to fulfill our obligations thereunder paints a
bad image of our country before the world community. Such failure would discourage
other states from entering into treaties with us, particularly an extradition treaty that
hinges on reciprocity.
[40]

[41]

Verily, we are bound by pacta sunt servanda to comply in good faith with our
obligations under the Treaty. This principle requires that we deliver the accused to the
requesting country if the conditions precedent to extradition, as set forth in the Treaty,
are satisfied. In other words, [t]he demanding government, when it has done all that
the treaty and the law require it to do, is entitled to the delivery of the accused on the
issue of the proper warrant, and the other government is under obligation to make the
surrender. Accordingly, the Philippines must be ready and in a position to deliver the
accused, should it be found proper.
[42]

[43]

5. There Is an Underlying Risk of Flight

Fifth, persons to be extradited are presumed to be flight risks. This prima facie
presumption finds reinforcement in the experience of the executive branch: nothing
short of confinement can ensure that the accused will not flee the jurisdiction of the
requested state in order to thwart their extradition to the requesting state.
[44]

The present extradition case further validates the premise that persons sought to be
extradited have a propensity to flee. Indeed, extradition hearings would not even begin,
if only the accused were willing to submit to trial in the requesting country. Prior acts of
herein respondent -- (1) leaving the requesting state right before the conclusion of his
indictment proceedings there; and (2) remaining in the requested state despite learning
that the requesting state is seeking his return and that the crimes he is charged with
are bailable -- eloquently speak of his aversion to the processes in the requesting state,
as well as his predisposition to avoid them at all cost. These circumstances point to an
ever-present, underlying high risk of flight. He has demonstrated that he has the
capacity and the will to flee. Having fled once, what is there to stop him, given sufficient
opportunity, from fleeing a second time?
[45]

Summation
As we draw to a close, it is now time to summarize and stress these ten points:
1. The ultimate purpose of extradition proceedings is to determine whether the
request expressed in the petition, supported by its annexes and the evidence that may

be adduced during the hearing of the petition, complies with the Extradition Treaty and
Law; and whether the person sought is extraditable. The proceedings are intended
merely to assist the requesting state in bringing the accused -- or the fugitive who has
illegally escaped -- back to its territory, so that the criminal process may proceed
therein.
2. By entering into an extradition treaty, the Philippines is deemed to have reposed
its trust in the reliability or soundness of the legal and judicial system of its treaty
partner, as well as in the ability and the willingness of the latter to grant basic rights to
the accused in the pending criminal case therein.
3. By nature then, extradition proceedings are not equivalent to a criminal case in
which guilt or innocence is determined. Consequently, an extradition case is not one in
which the constitutional rights of the accused are necessarily available. It is more akin,
if at all, to a courts request to police authorities for the arrest of the accused who is at
large or has escaped detention or jumped bail. Having once escaped the jurisdiction of
the requesting state, the reasonable prima facie presumption is that the person would
escape again if given the opportunity.
4. Immediately upon receipt of the petition for extradition and its supporting
documents, the judge shall make a prima facie finding whether the petition is sufficient
in form and substance, whether it complies with the Extradition Treaty and Law, and
whether the person sought is extraditable. The magistrate has discretion to require the
petitioner to submit further documentation, or to personally examine the affiants or
witnesses. If convinced that a prima facie case exists, the judge immediately issues a
warrant for the arrest of the potential extraditee and summons him or her to answer and
to appear at scheduled hearings on the petition.
5. After being taken into custody, potential extraditees may apply for bail. Since the
applicants have a history of absconding, they have the burden of showing that (a) there
is no flight risk and no danger to the community; and (b) there exist special,
humanitarian or compelling circumstances. The grounds used by the highest court in
the requesting state for the grant of bail therein may be considered, under the principle
of reciprocity as a special circumstance. In extradition cases, bail is not a matter of
right; it is subject to judicial discretion in the context of the peculiar facts of each case.
6. Potential extraditees are entitled to the rights to due process and to fundamental
fairness. Due process does not always call for a prior opportunity to be
heard. A subsequentopportunity is sufficient due to the flight risk involved. Indeed,
available during the hearings on the petition and the answer is the full chance to be
heard and to enjoy fundamental fairness that is compatible with the summary nature of
extradition.

7. This Court will always remain a protector of human rights, a bastion of liberty, a
bulwark of democracy and the conscience of society. But it is also well aware of the
limitations of its authority and of the need for respect for the prerogatives of the other
co-equal and co-independent organs of government.
8. We realize that extradition is essentially an executive, not a judicial, responsibility
arising out of the presidential power to conduct foreign relations and to implement
treaties. Thus, the Executive Department of government has broad discretion in its duty
and power of implementation.
9. On the other hand, courts merely perform oversight functions and exercise review
authority to prevent or excise grave abuse and tyranny. They should not allow
contortions, delays and over-due process every little step of the way, lest
these summary extradition proceedings become not only inutile but also sources of
international embarrassment due to our inability to comply in good faith with a treaty
partners simple request to return a fugitive. Worse, our country should not be
converted into a dubious haven where fugitives and escapees can unreasonably delay,
mummify, mock, frustrate, checkmate and defeat the quest for bilateral justice and
international cooperation.
10. At bottom, extradition proceedings should be conducted with all
deliberate speed to determine compliance with the Extradition Treaty and Law;
and,
while
safeguarding
basic
individual
rights,
to
avoid
the
legalistic contortions, delays and technicalities that may negate that purpos
e.
WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23,
2001 is hereby declared NULL and VOID, while the challenged Order dated July 3,
2001 is SET ASIDE insofar as it granted bail to Respondent Mark Jimenez. The bail
bond posted by private respondent is CANCELLED. The Regional Trial Court of Manila
is directed to conduct the extradition proceedings before it, with all deliberate speed
pursuant to the spirit and the letter of our Extradition Treaty with the United States as
well as our Extradition Law. No costs.
SO ORDERED.

HONGKONG v OLALIA
GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the
Philippine Department of Justice, Petitioner,
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUOZ, Respondents.

DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil
Procedure, as amended, seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch
8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773.
These are: (1) the Order dated December 20, 2001 allowing Juan Antonio Muoz, private
respondent, to post bail; and (2) the Order dated April 10, 2002 denying the motion to vacate the
said Order of December 20, 2001 filed by the Government of Hong Kong Special Administrative
Region, represented by the Philippine Department of Justice (DOJ), petitioner. The petition alleges
that both Orders were issued by respondent judge with grave abuse of discretion amounting to lack
or excess of jurisdiction as there is no provision in the Constitution granting bail to a potential
extraditee.
The facts are:
On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong
Kong signed an "Agreement for the Surrender of Accused and Convicted Persons." It took effect on
June 20, 1997.
On July 1, 1997, Hong Kong reverted back to the Peoples Republic of China and became the Hong
Kong Special Administrative Region.
Private respondent Muoz was charged before the Hong Kong Court with three (3) counts of the
offense of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of
Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of
conspiracy to defraud, penalized by the common law of Hong Kong. On August 23, 1997 and
October 25, 1999, warrants of arrest were issued against him. If convicted, he faces a jail term of
seven (7) to fourteen (14) years for each charge.
On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for
the provisional arrest of private respondent. The DOJ then forwarded the request to the National
Bureau of Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application
for the provisional arrest of private respondent.
On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private
respondent. That same day, the NBI agents arrested and detained him.
On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari,
prohibition andmandamus with application for preliminary mandatory injunction and/or writ of habeas
corpus questioning the validity of the Order of Arrest.
On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void.
On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as
G.R. No. 140520, praying that the Decision of the Court of Appeals be reversed.

On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and
sustaining the validity of the Order of Arrest against private respondent. The Decision became final
and executory on April 10, 2001.
Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region
filed with the RTC of Manila a petition for the extradition of private respondent, docketed as Civil
Case No. 99-95733, raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part,
private respondent filed, in the same case,-a petition for bail which was opposed by petitioner.
After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for
bail, holding that there is no Philippine law granting bail in extradition cases and that private
respondent is a high "flight risk."
On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 9995733. It was then raffled off to Branch 8 presided by respondent judge.
On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his
application for bail. This was granted by respondent judge in an Order dated December 20, 2001
allowing private respondent to post bail, thus:
In conclusion, this Court will not contribute to accuseds further erosion of civil liberties. The petition
for bail is granted subject to the following conditions:
1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes
that he will appear and answer the issues raised in these proceedings and will at all times
hold himself amenable to orders and processes of this Court, will further appear for
judgment. If accused fails in this undertaking, the cash bond will be forfeited in favor of the
government;
2. Accused must surrender his valid passport to this Court;
3. The Department of Justice is given immediate notice and discretion of filing its own motion
for hold departure order before this Court even in extradition proceeding; and
4. Accused is required to report to the government prosecutors handling this case or if they
so desire to the nearest office, at any time and day of the week; and if they further desire,
manifest before this Court to require that all the assets of accused, real and personal, be
filed with this Court soonest, with the condition that if the accused flees from his undertaking,
said assets be forfeited in favor of the government and that the corresponding
lien/annotation be noted therein accordingly.
SO ORDERED.
On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was
denied by respondent judge in his Order dated April 10, 2002.
Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion
amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is

nothing in the Constitution or statutory law providing that a potential extraditee has a right to bail, the
right being limited solely to criminal proceedings.
In his comment on the petition, private respondent maintained that the right to bail guaranteed under
the Bill of Rights extends to a prospective extraditee; and that extradition is a harsh process resulting
in a prolonged deprivation of ones liberty.
Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus:
Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released
on recognizance as may be provided by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.
Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first
time that this Court has an occasion to resolve the question of whether a prospective extraditee may
be granted bail.
In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of
Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking
through then Associate Justice Artemio V. Panganiban, later Chief Justice, held that the
constitutional provision on bail does not apply to extradition proceedings. It is "available only in
criminal proceedings," thus:
x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted
above, as well as Section 4, Rule 114 of the Rules of Court, applies only when a person has been
arrested and detained for violation of Philippine criminal laws. It does not apply to extradition
proceedings because extradition courts do not render judgments of conviction or acquittal.
Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every
accused who should not be subjected to the loss of freedom as thereafter he would be entitled to
acquittal, unless his guilt be proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1,
6, September 17, 1971, per Fernando,J., later CJ). It follows that the constitutional provision on bail
will not apply to a case like extradition, where the presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended" does not detract from the rule that the
constitutional right to bail is available only in criminal proceedings. It must be noted that the
suspension of the privilege of the writ of habeas corpusfinds application "only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion" (Sec. 18, Art. VIII,
Constitution). Hence, the second sentence in the constitutional provision on bail merely emphasizes
the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean
that the right is available even in extradition proceedings that are not criminal in nature.
At first glance, the above ruling applies squarely to private respondents case. However, this Court
cannot ignore the following trends in international law: (1) the growing importance of the individual
person in public international law who, in the 20th century, has gradually attained global recognition;
(2) the higher value now being given to human rights in the international sphere; (3) the
corresponding duty of countries to observe these universal human rights in fulfilling their treaty

obligations; and (4) the duty of this Court to balance the rights of the individual under our
fundamental law, on one hand, and the law on extradition, on the other.
The modern trend in public international law is the primacy placed on the worth of the
individual person and the sanctity of human rights. Slowly, the recognition that the individual
person may properly be a subject of international law is now taking root. The vulnerable doctrine that
the subjects of international law are limited only to states was dramatically eroded towards the
second half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted
in the unprecedented spectacle of individual defendants for acts characterized as violations of the
laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg
principle, Serbian leaders have been persecuted for war crimes and crimes against humanity
committed in the former Yugoslavia. These significant events show that the individual person is now
a valid subject of international law.
On a more positive note, also after World War II, both international organizations and states gave
recognition and importance to human rights. Thus, on December 10, 1948, the United Nations
General Assembly adopted the Universal Declaration of Human Rights in which the right to life,
liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the
principles contained in the said Declaration are now recognized as customarily binding upon
the members of the international community. Thus, in Mejoff v. Director of Prisons,2 this Court,
in granting bail to a prospective deportee, held that under the Constitution,3 the principles set
forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also
adopted the International Covenant on Civil and Political Rights which the Philippines signed and
ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty,
and due process.
The Philippines, along with the other members of the family of nations, committed to uphold the
fundamental human rights as well as value the worth and dignity of every person. This commitment
is enshrined in Section II, Article II of our Constitution which provides: "The State values the dignity
of every human person and guarantees full respect for human rights." The Philippines, therefore, has
the responsibility of protecting and promoting the right of every person to liberty and due process,
ensuring that those detained or arrested can participate in the proceedings before a court, to enable
it to decide without delay on the legality of the detention and order their release if justified. In other
words, the Philippine authorities are under obligation to make available to every person under
detention such remedies which safeguard their fundamental right to liberty. These remedies include
the right to be admitted to bail. While this Court in Purganan limited the exercise of the right to bail to
criminal proceedings, however, in light of the various international treaties giving recognition and
protection to human rights, particularly the right to life and liberty, a reexamination of this Courts
ruling in Purganan is in order.
First, we note that the exercise of the States power to deprive an individual of his liberty is
not necessarily limited to criminal proceedings. Respondents in administrative proceedings,
such as deportation and quarantine,4 have likewise been detained.
Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential
history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal
proceedings only. This Court has admitted to bail persons who are not involved in criminal
proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during

the pendency of administrative proceedings, taking into cognizance the obligation of the
Philippines under international conventions to uphold human rights.
The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation for failure
to secure the necessary certificate of registration was granted bail pending his appeal. After noting
that the prospective deportee had committed no crime, the Court opined that "To refuse him bail is to
treat him as a person who has committed the most serious crime known to law;" and that while
deportation is not a criminal proceeding, some of the machinery used "is the machinery of criminal
law." Thus, the provisions relating to bail was applied to deportation proceedings.
In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court ruled that
foreign nationals against whom no formal criminal charges have been filed may be released on bail
pending the finality of an order of deportation. As previously stated, the Court in Mejoff relied upon
the Universal declaration of Human Rights in sustaining the detainees right to bail.
If bail can be granted in deportation cases, we see no justification why it should not also be allowed
in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to
deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both
are administrative proceedings where the innocence or guilt of the person detained is not in issue.
Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the
light of the various treaty obligations of the Philippines concerning respect for the promotion and
protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus,
the Philippines should see to it that the right to liberty of every individual is not impaired.
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines
"extradition" as "the removal of an accused from the Philippines with the object of placing him at the
disposal of foreign authorities to enable the requesting state or government to hold him in connection
with any criminal investigation directed against him or the execution of a penalty imposed on him
under the penal or criminal law of the requesting state or government."
Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand
the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the
correlative duty of the other state to surrender him to the demanding state. 8 It is not a criminal
proceeding.9 Even if the potential extraditee is a criminal, an extradition proceeding is not by its
nature criminal, for it is not punishment for a crime, even though such punishment may follow
extradition.10 It is sui generis, tracing its existence wholly to treaty obligations between different
nations.11 It is not a trial to determine the guilt or innocence of the potential extraditee.12 Nor is
it a full-blown civil action, but one that is merely administrative in character.13 Its object is to prevent
the escape of a person accused or convicted of a crime and to secure his return to the state from
which he fled, for the purpose of trial or punishment.14
But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a
deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain
the purpose of extradition is also "the machinery of criminal law." This is shown by Section 6 of
P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and
temporary detention of the accused" if such "will best serve the interest of justice." We further
note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional
arrest of the accused, pending receipt of the request for extradition;" and that release from

provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for
extradition is received subsequently."
Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal
process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty,
and forced to transfer to the demanding state following the proceedings. "Temporary
detention" may be a necessary step in the process of extradition, but the length of time of the
detention should be reasonable.
Records show that private respondent was arrested on September 23, 1999, and remained
incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In other
words, he had been detained for over two (2) years without having been convicted of any
crime. By any standard, such an extended period of detention is a serious deprivation of his
fundamental right to liberty. In fact, it was this prolonged deprivation of liberty which prompted the
extradition court to grant him bail.
While our extradition law does not provide for the grant of bail to an extraditee, however, there is no
provision prohibiting him or her from filing a motion for bail, a right to due process under the
Constitution.
The applicable standard of due process, however, should not be the same as that in criminal
proceedings. In the latter, the standard of due process is premised on the presumption of innocence
of the accused. As Purganancorrectly points out, it is from this major premise that the ancillary
presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition
proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is
the possibility of flight of the potential extraditee. This is based on the assumption that such
extraditee is a fugitive from justice.15 Given the foregoing, the prospective extraditee thus bears
the onus probandi of showing that he or she is not a flight risk and should be granted bail.
The time-honored principle of pacta sunt servanda demands that the Philippines honor its
obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative
Region. Failure to comply with these obligations is a setback in our foreign relations and defeats the
purpose of extradition. However, it does not necessarily mean that in keeping with its treaty
obligations, the Philippines should diminish a potential extraditees rights to life, liberty, and due
process. More so, where these rights are guaranteed, not only by our Constitution, but also by
international conventions, to which the Philippines is a party. We should not, therefore, deprive an
extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily
met.
An extradition proceeding being sui generis, the standard of proof required in granting or denying
bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of
preponderance of evidence in civil cases. While administrative in character, the standard of
substantial evidence used in administrative cases cannot likewise apply given the object of
extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction. In his
Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno,
proposed that a new standard which he termed "clear and convincing evidence" should be used
in granting bail in extradition cases. According to him, this standard should be lower than proof
beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must

prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders
and processes of the extradition court.
In this case, there is no showing that private respondent presented evidence to show that he is not
a flight risk. Consequently, this case should be remanded to the trial court to determine whether
private respondent may be granted bail on the basis of "clear and convincing evidence."
WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine
whether private respondent is entitled to bail on the basis of "clear and convincing evidence." If not,
the trial court should order the cancellation of his bail bond and his immediate detention; and
thereafter, conduct the extradition proceedings with dispatch.
SO ORDERED.

SANTOS vs NORTHWEST AIRLINES

This case involves the Proper interpretation of Article 28(1) of the Warsaw Convention, reading as follows:
Art. 28. (1) An action for damage must be brought at the option of the plaintiff, in the territory of one
of the High Contracting Parties, either before the court of the domicile of the carrier or of his
principal place of business, or where he has a place of business through which the contract has
been made, or before the court at the place of destination.
The petitioner is a minor and a resident of the Philippines. Private respondent Northwest Orient Airlines (NOA) is a
foreign corporation with principal office in Minnesota, U.S.A. and licensed to do business and maintain a branch office
in the Philippines.
On October 21, 1986, the petitioner purchased from NOA a round-trip ticket in San Francisco. U.S.A., for his flight
from San Francisco to Manila via Tokyo and back. The scheduled departure date from Tokyo was December 20,
1986. No date was specified for his return to San Francisco. 1
On December 19, 1986, the petitioner checked in at the NOA counter in the San Francisco airport for his scheduled
departure to Manila. Despite a previous confirmation and re-confirmation, he was informed that he had no reservation
for his flight from Tokyo to Manila. He therefore had to be wait-listed.
On March 12, 1987, the petitioner sued NOA for damages in the Regional Trial Court of Makati. On April 13, 1987,
NOA moved to dismiss the complaint on the ground of lack of jurisdiction. Citing the above-quoted article, it
contended that the complaint could be instituted only in the territory of one of the High Contracting Parties, before:
1. the court of the domicile of the carrier;
2. the court of its principal place of business;
3. the court where it has a place of business through which the contract had been made;
4. the court of the place of destination.
The private respondent contended that the Philippines was not its domicile nor was this its principal place of
business. Neither was the petitioner's ticket issued in this country nor was his destination Manila but San Francisco in
the United States.

On February 1, 1988, the lower court granted the motion and dismissed the case. 2 The petitioner appealed to the

Court of Appeals, which affirmed the decision of the lower court. 3 On June 26, 1991, the petitioner filed a
motion for reconsideration, but the same was denied. 4 The petitioner then came to this Court, raising
substantially the same issues it submitted in the Court of Appeals.
The assignment of errors may be grouped into two major issues, viz:
(1) the constitutionality of Article 28(1) of the Warsaw Convention; and
(2) the jurisdiction of Philippine courts over the case.
The petitioner also invokes Article 24 of the Civil Code on the protection of minors.
I
THE ISSUE OF CONSTITUTIONALITY
A. The petitioner claims that the lower court erred in not ruling that Article 28(1) of the Warsaw
Convention violates the constitutional guarantees of due process and equal protection.
The Republic of the Philippines is a party to the Convention for the Unification of Certain Rules Relating to
International Transportation by Air, otherwise known as the Warsaw Convention. It took effect on February 13, 1933.
The Convention was concurred in by the Senate, through its Resolution No. 19, on May 16, 1950. The Philippine
instrument of accession was signed by President Elpidio Quirino on October 13, 1950, and was deposited with the
Polish government on November 9, 1950. The Convention became applicable to the Philippines on February 9, 1951.
On September 23, 1955, President Ramon Magsaysay issued Proclamation No. 201, declaring our formal adherence
thereto. "to the end that the same and every article and clause thereof may be observed and fulfilled in good faith by
the Republic of the Philippines and the citizens thereof." 5
The Convention is thus a treaty commitment voluntarily assumed by the Philippine government and, as such, has the
force and effect of law in this country.
The petitioner contends that Article 28(1) cannot be applied in the present case because it is unconstitutional. He
argues that there is no substantial distinction between a person who purchases a ticket in Manila and a person who
purchases his ticket in San Francisco. The classification of the places in which actions for damages may be brought
is arbitrary and irrational and thus violates the due process and equal protection clauses.
It is well-settled that courts will assume jurisdiction over a constitutional question only if it is shown that the essential
requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an actual case or
controversy involving a conflict of legal rights susceptible of judicial determination; the constitutional question must
have been opportunely raised by the proper party; and the resolution of the question is unavoidably necessary to the
decision of the case itself. 6
Courts generally avoid having to decide a constitutional question. This attitude is based on the doctrine of separation
of powers, which enjoins upon the departments of the government a becoming respect for each other's acts.
The treaty which is the subject matter of this petition was a joint legislative-executive act. The presumption is that it
was first carefully studied and determined to be constitutional before it was adopted and given the force of law in this
country.
The petitioner's allegations are not convincing enough to overcome this presumption. Apparently, the Convention
considered the four places designated in Article 28 the most convenient forums for the litigation of any claim that may
arise between the airline and its passenger, as distinguished from all other places. At any rate, we agree with the

respondent court that this case can be decided on other grounds without the necessity of resolving the constitutional
issue.
B. The petitioner claims that the lower court erred in not ruling that Art. 28(1) of the Warsaw
Convention is inapplicable because of a fundamental change in the circumstances that served as
its basis.
The petitioner goes at great lengths to show that the provisions in the Convention were intended to protect airline
companies under "the conditions prevailing then and which have long ceased to exist." He argues that in view of the
significant developments in the airline industry through the years, the treaty has become irrelevant. Hence, to the
extent that it has lost its basis for approval, it has become unconstitutional.
The petitioner is invoking the doctrine of rebus sic stantibus. According to Jessup, "this doctrine constitutes an
attempt to formulate a legal principle which would justify non-performance of a treaty obligation if the conditions with
relation to which the parties contracted have changed so materially and so unexpectedly as to create a situation in
which the exaction of performance would be unreasonable." 7 The key element of this doctrine is the vital

change in the condition of the contracting parties that they could not have foreseen at the time the treaty
was concluded.
The Court notes in this connection the following observation made in Day v. Trans World Airlines, Inc.: 8
The Warsaw drafters wished to create a system of liability rules that would cover all the hazards of
air travel . . . The Warsaw delegates knew that, in the years to come, civil aviation would change in
ways that they could not foresee. They wished to design a system of air law that would be both
durable and flexible enough to keep pace with these changes . . . The ever-changing needs of the
system of civil aviation can be served within the framework they created.
It is true that at the time the Warsaw Convention was drafted, the airline industry was still in its infancy. However, that
circumstance alone is not sufficient justification for the rejection of the treaty at this time. The changes recited by the
petitioner were, realistically, not entirely unforeseen although they were expected in a general sense only. In fact, the
Convention itself, anticipating such developments, contains the following significant provision:
Article 41. Any High Contracting Party shall be entitled not earlier than two years after the coming
into force of this convention to call for the assembling of a new international conference in order to
consider any improvements which may be made in this convention. To this end, it will communicate
with the Government of the French Republic which will take the necessary measures to make
preparations for such conference.
But the more important consideration is that the treaty has not been rejected by the Philippine government. The
doctrine of rebus sic stantibus does not operate automatically to render the treaty inoperative. There is a necessity for
a formal act of rejection, usually made by the head of State, with a statement of the reasons why compliance with the
treaty is no longer required.
In lieu thereof, the treaty may be denounced even without an expressed justification for this action. Such denunciation
is authorized under its Article 39, viz:
Article 39. (1) Any one of the High Contracting Parties may denounce this convention by a
notification addressed to the Government of the Republic of Poland, which shall at once inform the
Government of each of the High Contracting Parties.
(2) Denunciation shall take effect six months after the notification of denunciation, and shall operate
only as regards the party which shall have proceeded to denunciation.
Obviously. rejection of the treaty, whether on the ground of rebus sic stantibus or pursuant to Article 39, is not a
function of the courts but of the other branches of government. This is a political act. The conclusion and renunciation

of treaties is the prerogative of the political departments and may not be usurped by the judiciary. The courts are
concerned only with the interpretation and application of laws and treaties in force and not with their wisdom or
efficacy.
C. The petitioner claims that the lower court erred in ruling that the plaintiff must sue in the United
States, because this would deny him the right to access to our courts.
The petitioner alleges that the expenses and difficulties he will incur in filing a suit in the United States would
constitute a constructive denial of his right to access to our courts for the protection of his rights. He would
consequently be deprived of this vital guaranty as embodied in the Bill of Rights.
Obviously, the constitutional guaranty of access to courts refers only to courts with appropriate jurisdiction as defined
by law. It does not mean that a person can go to any court for redress of his grievances regardless of the nature or
value of his claim. If the petitioner is barred from filing his complaint before our courts, it is because they are not
vested with the appropriate jurisdiction under the Warsaw Convention, which is part of the law of our land.
II
THE ISSUE OF JURISDICTION.
A. The petitioner claims that the lower court erred in not ruling that Article 28(1) of the Warsaw
Convention is a rule merely of venue and was waived by defendant when it did not move to dismiss
on the ground of improper venue.
By its own terms, the Convention applies to all international transportation of persons performed by aircraft for hire.
International transportation is defined in paragraph (2) of Article 1 as follows:
(2) For the purposes of this convention, the expression "international transportation" shall mean
any transportation in which, according to the contract made by the parties, the place of departure
and the place of destination, whether or not there be a break in the transportation or a
transshipment, are situated [either] within the territories of two High Contracting Parties . . .
Whether the transportation is "international" is determined by the contract of the parties, which in the case of
passengers is the ticket. When the contract of carriage provides for the transportation of the passenger between
certain designated terminals "within the territories of two High Contracting Parties," the provisions of the Convention
automatically apply and exclusively govern the rights and liabilities of the airline and its passenger.
Since the flight involved in the case at bar is international, the same being from the United States to the Philippines
and back to the United States, it is subject to the provisions of the Warsaw Convention, including Article 28(1), which
enumerates the four places where an action for damages may be brought.
Whether Article 28(1) refers to jurisdiction or only to venue is a question over which authorities are sharply divided.
While the petitioner cites several cases holding that Article 28(1) refers to venue rather than jurisdiction, 9 there are

later cases cited by the private respondent supporting the conclusion that the provision is jurisdictional.

10

Venue and jurisdiction are entirely distinct matters. Jurisdiction may not be conferred by consent or waiver upon d
court which otherwise would have no jurisdiction over the subject-matter of an action; but the venue of an action as
fixed by statute may be changed by the consent of the parties and an objection that the plaintiff brought his suit in the
wrong county may be waived by the failure of the defendant to make a timely objection. In either case, the court may
render a valid judgment. Rules as to jurisdiction can never be left to the consent or agreement of the parties, whether
or not a prohibition exists against their alteration. 11

A number of reasons tends to support the characterization of Article 28(1) as a jurisdiction and not a venue provision.
First, the wording of Article 32, which indicates the places where the action for damages "must" be brought,
underscores the mandatory nature of Article 28(1). Second, this characterization is consistent with one of the
objectives of the Convention, which is to "regulate in a uniform manner the conditions of international transportation
by air." Third, the Convention does not contain any provision prescribing rules of jurisdiction other than Article 28(1),
which means that the phrase "rules as to jurisdiction" used in Article 32 must refer only to Article 28(1). In fact, the last
sentence of Article 32 specifically deals with the exclusive enumeration in Article 28(1) as "jurisdictions," which, as
such, cannot be left to the will of the parties regardless of the time when the damage occurred.
This issue was analyzed in the leading case of Smith v. Canadian Pacific Airways, Ltd., 12 where it was held:
. . . Of more, but still incomplete, assistance is the wording of Article 28(2), especially when
considered in the light of Article 32. Article 28(2) provides that "questions of procedure shall be
governed by the law of the court to which the case is submitted" (Emphasis supplied). Section (2)
thus may be read to leave for domestic decision questions regarding the suitability and location of a
particular Warsaw Convention case.
In other words, where the matter is governed by the Warsaw Convention, jurisdiction takes on a dual concept.
Jurisdiction in the international sense must be established in accordance with Article 28(1) of the Warsaw
Convention, following which the jurisdiction of a particular court must be established pursuant to the applicable
domestic law. Only after the question of which court has jurisdiction is determined will the issue of venue be taken up.
This second question shall be governed by the law of the court to which the case is submitted.
The petitioner submits that since Article 32 states that the parties are precluded "before the damages occurred" from
amending the rules of Article 28(1) as to the place where the action may be brought, it would follow that the Warsaw
Convention was not intended to preclude them from doing so "after the damages occurred."
Article 32 provides:
Art. 32. Any clause contained in the contract and all special agreements entered into before the
damage occurred by which the parties purport to infringe the rules laid down by this convention,
whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null
and void. Nevertheless for the transportation of goods, arbitration clauses shall be allowed, subject
to this convention, if the arbitration is to take place within one of the jurisdictions referred to in the
first paragraph of Article 28.
His point is that since the requirements of Article 28(1) can be waived "after the damages (shall have) occurred," the
article should be regarded as possessing the character of a "venue" and not of a "jurisdiction" provision. Hence, in
moving to dismiss on the ground of lack of jurisdiction, the private respondent has waived improper venue as a
ground to dismiss.
The foregoing examination of Article 28(1) in relation to Article 32 does not support this conclusion. In any event, we
agree that even granting arguendo that Article 28(1) is a venue and not a jurisdictional provision, dismissal of the
case was still in order. The respondent court was correct in affirming the ruling of the trial court on this matter, thus:
Santos' claim that NOA waived venue as a ground of its motion to dismiss is not correct. True it is
that NOA averred in its MOTION TO DISMISS that the ground thereof is "the Court has no subject
matter jurisdiction to entertain the Complaint" which SANTOS considers as equivalent to "lack of
jurisdiction over the subject matter . . ." However, the gist of NOA's argument in its motion is that
the Philippines is not the proper place where SANTOS could file the action meaning that the
venue of the action is improperly laid. Even assuming then that the specified ground of the motion
is erroneous, the fact is the proper ground of the motion improper venue has been discussed
therein.

Waiver cannot be lightly inferred. In case of doubt, it must be resolved in favor of non-waiver if there are special
circumstances justifying this conclusion, as in the petition at bar. As we observed in Javier vs. Intermediate Court of
Appeals: 13
Legally, of course, the lack of proper venue was deemed waived by the petitioners when they failed
to invoke it in their original motion to dismiss. Even so, the motivation of the private respondent
should have been taken into account by both the trial judge and the respondent court in arriving at
their decisions.
The petitioner also invokes KLM Royal Dutch Airlines v. RTC, 14 a decision of our Court of Appeals, where it was

held that Article 28(1) is a venue provision. However, the private respondent avers that this was in effect
reversed by the case of Aranas v. United Airlines, 15 where the same court held that Article 28(1) is a
jurisdictional provision. Neither of these cases is binding on this Court, of course, nor was either of them
appealed to us. Nevertheless, we here express our own preference for the later case of Aranas insofar as
its pronouncements on jurisdiction conform to the judgment we now make in this petition.
B. The petitioner claims that the lower court erred in not ruling that under Article 28(1) of the
Warsaw Convention, this case was properly filed in the Philippines, because Manila was the
destination of the plaintiff.
The Petitioner contends that the facts of this case are analogous to those in Aanestad v. Air Canada. 16 In that case,

Mrs. Silverberg purchased a round-trip ticket from Montreal to Los Angeles and back to Montreal. The
date and time of departure were specified but not of the return flight. The plane crashed while on route
from Montreal to Los Angeles, killing Mrs. Silverberg. Her administratrix filed an action for damages
against Air Canada in the U.S. District Court of California. The defendant moved to dismiss for lack of
jurisdiction but the motion was denied thus:
. . . It is evident that the contract entered into between Air Canada and Mrs. Silverberg as
evidenced by the ticket booklets and the Flight Coupon No. 1, was a contract for Air Canada to
carry Mrs. Silverberg to Los Angeles on a certain flight, a certain time and a certain class, but that
the time for her to return remained completely in her power. Coupon No. 2 was only a continuing
offer by Air Canada to give her a ticket to return to Montreal between certain dates. . . .
The only conclusion that can be reached then, is that "the place of destination" as used in the
Warsaw Convention is considered by both the Canadian C.T.C. and the United States C.A.B. to
describe at least two "places of destination," viz., the "place of destination" of a particular flight
either an "outward destination" from the "point of origin" or from the "outward point of destination" to
any place in Canada.
Thus the place of destination under Art. 28 and Art. 1 of the Warsaw Convention of the flight on
which Mrs. Silverberg was killed, was Los Angeles according to the ticket, which was the contract
between the parties and the suit is properly filed in this Court which has jurisdiction.
The Petitioner avers that the present case falls squarely under the above ruling because the date and time of his
return flight to San Francisco were, as in the Aanestad case, also left open. Consequently, Manila and not San
Francisco should be considered the petitioner's destination.
The private respondent for its part invokes the ruling in Butz v. British Airways, 17 where the United States District

Court (Eastern District of Pennsylvania) said:

. . . Although the authorities which addressed this precise issue are not extensive, both the cases
and the commentators are almost unanimous in concluding that the "place of destination" referred
to in the Warsaw Convention "in a trip consisting of several parts . . . is the ultimate destination that
is accorded treaty jurisdiction." . . .

But apart from that distinguishing feature, I cannot agree with the Court's analysis in Aanestad;
whether the return portion of the ticket is characterized as an option or a contract, the carrier was
legally bound to transport the passenger back to the place of origin within the prescribed time and.
the passenger for her part agreed to pay the fare and, in fact, did pay the fare. Thus there was
mutuality of obligation and a binding contract of carriage, The fact that the passenger could forego
her rights under the contract does not make it any less a binding contract. Certainly, if the parties
did not contemplate the return leg of the journey, the passenger would not have paid for it and the
carrier would not have issued a round trip ticket.
We agree with the latter case. The place of destination, within the meaning of the Warsaw Convention, is determined
by the terms of the contract of carriage or, specifically in this case, the ticket between the passenger and the carrier.
Examination of the petitioner's ticket shows that his ultimate destination is San Francisco. Although the date of the
return flight was left open, the contract of carriage between the parties indicates that NOA was bound to transport the
petitioner to San Francisco from Manila. Manila should therefore be considered merely an agreed stopping place and
not the destination.
The petitioner submits that the Butz case could not have overruled the Aanestad case because these decisions are
from different jurisdictions. But that is neither here nor there. In fact, neither of these cases is controlling on this Court.
If we have preferred the Butz case, it is because, exercising our own freedom of choice, we have decided that it
represents the better, and correct, interpretation of Article 28(1).
Article 1(2) also draws a distinction between a "destination" and an "agreed stopping place." It is the "destination" and
not an "agreed stopping place" that controls for purposes of ascertaining jurisdiction under the Convention.
The contract is a single undivided operation, beginning with the place of departure and ending with the ultimate
destination. The use of the singular in this expression indicates the understanding of the parties to the Convention
that every contract of carriage has one place of departure and one place of destination. An intermediate place where
the carriage may be broken is not regarded as a "place of destination."
C. The petitioner claims that the lower court erred in not ruling that under Art. 28(1) of the Warsaw
Convention, this case was properly filed in the Philippines because the defendant has its domicile
in the Philippines.
The petitioner argues that the Warsaw Convention was originally written in French and that in interpreting its
provisions, American courts have taken the broad view that the French legal meaning must govern. 18 In French, he

says, the "domicile" of the carrier means every place where it has a branch office.
The private respondent notes, however, that in Compagnie Nationale Air France vs. Giliberto, 19 it was held:
The plaintiffs' first contention is that Air France is domiciled in the United States. They say that the
domicile of a corporation includes any country where the airline carries on its business on "a
regular and substantial basis," and that the United States qualifies under such definition. The
meaning of domicile cannot, however, be so extended. The domicile of a corporation is customarily
regarded as the place where it is incorporated, and the courts have given the meaning to the term
as it is used in article 28(1) of the Convention. (See Smith v. Canadian Pacific Airways, Ltd. (2d Cir.
1971), 452 F2d 798, 802; Nudo v. Societe Anonyme Belge d' Exploitation de la Navigation Aerienne
Sabena Belgian World Airlines (E.D. pa. 1962). 207 F. Supp, 191; Karfunkel v. Compagnie
Nationale Air France (S.D.N.Y. 1977), 427 F. Suppl. 971, 974). Moreover, the structure of article
28(1), viewed as a whole, is also incompatible with the plaintiffs' claim. The article, in stating that
places of business are among the bases of the jurisdiction, sets out two places where an action for
damages may be brought; the country where the carrier's principal place of business is located,
and the country in which it has a place of business through which the particular contract in question
was made, that is, where the ticket was bought, Adopting the plaintiffs' theory would at a minimum
blur these carefully drawn distinctions by creating a third intermediate category. It would obviously
introduce uncertainty into litigation under the article because of the necessity of having to
determine, and without standards or criteria, whether the amount of business done by a carrier in a

particular country was "regular" and "substantial." The plaintiff's request to adopt this basis of
jurisdiction is in effect a request to create a new jurisdictional standard for the Convention.
Furthermore, it was argued in another case 20 that:
. . . In arriving at an interpretation of a treaty whose sole official language is French, are we bound
to apply French law? . . . We think this question and the underlying choice of law issue warrant
some discussion
. . . We do not think this statement can be regarded as a conclusion that internal French law is to
be "applied" in the choice of law sense, to determine the meaning and scope of the Convention's
terms. Of course, French legal usage must be considered in arriving at an accurate English
translation of the French. But when an accurate English translation is made and agreed upon, as
here, the inquiry into meaning does not then revert to a quest for a past or present French law to be
"applied" for revelation of the proper scope of the terms. It does not follow from the fact that the
treaty is written in French that in interpreting it, we are forever chained to French law, either as it
existed when the treaty was written or in its present state of development. There is no suggestion in
the treaty that French law was intended to govern the meaning of Warsaw's terms, nor have we
found any indication to this effect in its legislative history or from our study of its application and
interpretation by other courts. Indeed, analysis of the cases indicates that the courts, in interpreting
and applying the Warsaw Convention, have, not considered themselves bound to apply French law
simply because the Convention is written in French. . . .
We agree with these rulings.
Notably, the domicile of the carrier is only one of the places where the complaint is allowed to be filed under Article
28(1). By specifying the three other places, to wit, the principal place of business of the carrier, its place of business
where the contract was made, and the place of destination, the article clearly meant that these three other places
were not comprehended in the term "domicile."
D. The petitioner claims that the lower court erred in not ruling that Art. 28(1) of the Warsaw
Convention does not apply to actions based on tort.
The petitioner alleges that the gravamen of the complaint is that private respondent acted arbitrarily and in bad faith,
discriminated against the petitioner, and committed a willful misconduct because it canceled his confirmed reservation
and gave his reserved seat to someone who had no better right to it. In short. the private respondent committed a
tort.
Such allegation, he submits, removes the present case from the coverage of the Warsaw Convention. He argues that
in at least two American cases, 21 it was held that Article 28(1) of the Warsaw Convention does not apply if

the action is based on tort.

This position is negated by Husserl v. Swiss Air Transport Company, 22 where the article in question was

interpreted thus:
. . . Assuming for the present that plaintiff's claim is "covered" by Article 17, Article 24 clearly
excludes any relief not provided for in the Convention as modified by the Montreal Agreement. It
does not, however, limit the kind of cause of action on which the relief may be founded; rather it
provides that any action based on the injuries specified in Article 17 "however founded," i.e.,
regardless of the type of action on which relief is founded, can only be brought subject to the
conditions and limitations established by the Warsaw System. Presumably, the reason for the use
of the phrase "however founded," in two-fold: to accommodate all of the multifarious bases on
which a claim might be founded in different countries, whether under code law or common law,
whether under contract or tort, etc.; and to include all bases on which a claim seeking relief for an
injury might be founded in any one country. In other words, if the injury occurs as described in
Article 17, any relief available is subject to the conditions and limitations established by the Warsaw

System, regardless of the particular cause of action which forms the basis on which a plaintiff could
seek
relief . . .
The private respondent correctly contends that the allegation of willful misconduct resulting in a tort is insufficient to
exclude the case from the comprehension of the Warsaw Convention. The petitioner has apparently misconstrued the
import of Article 25(l) of the Convention, which reads as follows:
Art. 25 (1). The carrier shall not be entitled to avail himself of the provisions of this Convention
which exclude or limit his liability. if the damage is caused by his willful misconduct or by such
default on his part as, in accordance with the law of the court to which the case is submitted, is
considered to be equivalent to willful misconduct.
It is understood under this article that the court called upon to determine the applicability of the limitation provision
must first be vested with the appropriate jurisdiction. Article 28(1) is the provision in the Convention which defines that
jurisdiction. Article 22 23 merely fixes the monetary ceiling for the liability of the carrier in cases covered by

the Convention. If the carrier is indeed guilty of willful misconduct, it can avail itself of the limitations set
forth in this article. But this can be done only if the action has first been commenced properly under the
rules on jurisdiction set forth in Article 28(1).

DAMES ans MOORE vs RAEGAN

Ang tanan nga case gi file against IRAN og tanan other monetary issues and claims
kay gi pa annul sa Iran in exchange for the hostages na gi held captive sa Iran sa US
Embassy. Mao to nag release og mga EO c Raegan para to give effect, nya mao na
ni fie cla og case kay ma affected man ilahang rights.

Facts. In response to the seizure of American personnel as hostages at the American Embassy in
Iran, the President issued various Executive Orders and regulations by which the President nullified
attachments and liens on Iranian assets in the United States, directed that theses assets be
transferred to Iran, and suspended claims against Iran that may be presented to an International
Claims Tribunal. On December 19, 1979, Petitioner, Dames & Moore, filed suit in the United Sates
District Court against Defendants, the government of Iran, the Atomic Energy Organization of Iran,
and many Iranian banks, alleging that its subsidiary was a party to a contract with the Atomic Energy
Organization and that the subsidiarys interest had been assigned to Petitioner. Petitioner alleged it
was owed over 3 million dollars. The District Court issued orders of attachment directed against the
Defendants property and the property of certain Iranian banks. In a January 20, 1981 Executive
Agreement, the
President agreed to nullify attachments and ordered the transfer of frozen Iranian assets. On
February 24, 1981, the President ratified an earlier Order wherein he suspended all claims which
may be presented to the Tribunal and provided that such claims shall have no legal effect in any
action now pending in U.S. courts.
Issue. Whether the Presidents acts of nullifying the attachments and ordering the transfer of all
frozen assets are specifically authorized by Congress.
Whether the President has authority to suspend claims pending in American courts.

W] e are here dealing not alone with an authority vested in the President by an exertion
of legislative power, but with such an authority plus the very delicate, plenary and
exclusive power of the President as the sole organ of the federal government in the field
of international relations -- a power which does not require as a basis for its exercise an
act of Congress, but which, of course, like every other governmental power, must be
exercised in subordination to the applicable provisions of the Constitution."
And yet, 16 years later, Justice Jackson, in his concurring opinion in Youngstown,
supra, which both parties agree brings together as much combination of analysis and
common sense as there is in this area, focused not on the "plenary and exclusive
Page 453 U. S. 662
power of the President," but rather responded to a claim of virtually unlimited powers for
the Executive by noting:
"The example of such unlimited executive power that must have most impressed the
forefathers was the prerogative exercised by George III, and the description of its evils in
the Declaration of Independence leads me to doubt that they were creating their new
Executive in his image."
e hostages were not seized out of any refusal to recognize their American citizenship -they were seized precisely because of their American citizenship. The legislative history
is also somewhat ambiguous on the question whether Congress contemplated
Presidential action such as that involved here, or rather simply reprisals directed against
the offending foreign country and its citizens. See, e.g.,Cong.Globe, 40th Cong., 2d
Sess., 4205 (1868); American Int'l Group, Inc. v. Islamic Republic of Iran, supra, at 490491, 657 F.2d at 452-453 (opinion of Mikva, J.).
Concluding that neither the IEEPA nor the Hostage Act constitutes specific authorization
of the President's action suspending claims, however, is not to say that these statutory
provisions are entirely irrelevant to the question of the validity of the President's action.
We think both statutes highly relevant in the looser sense of indicating congressional
acceptance of a broad scope for executive action in circumstances such as those
presented in this case. As noted in Part III, supra, at 453 U. S. 670-672, the IEEPA
delegates broad authority to the President to act in times of national emergency with
respect to property of a foreign country. The Hostage Act similarly indicates

congressional willingness that the President have broad discretion when responding to
the hostile acts of foreign sovereigns. As Senator Williams, draftsman of the language
eventually enacted as the Hostage Act, put it:
"If you propose any remedy at all, you must invest the Executive with some discretion,
so that he may apply the remedy to a case as it may arise. As to England or France, he
might adopt one policy to relieve a citizen imprisoned by either one of those countries;
as to the Barbary powers, he might adopt another policy; as to the islands of the ocean,
another. With different countries that have different systems of government, he might
adopt different means."

AVENA CASE
Violations of US of Vienna Convention on Consular Relations. Accused Mexcicans were
arrested without being given the without delay Miranda Rights. Avena together with the
other accused were convicted and sentenced to execution. Mexico filed the case too
suspend the execution pending the case. US must take the necessary steps to establish
a meaningful remedy at law for violations of the rights afforded to Mexico and its
nationals and guarantee a non repetition of this unlawful acts. Violated Art. 36 of the
Vienna Convention.
It would further observe that violations of ~hc rights of the individual
under Article 36 may entail a violation of the rights of the sending State,
and that violations of the rights of the latter may cntail a violation of' the
rights of the individual. In these special circumslances of interdependence
of the rights of the State: and of individuai rights, Mexico may, in submitling
a claim in its own name, requcst the Court to rule on the violation
of rights which it claims to have suffered both directly and through
the violation of individual rights conferred on Mcxican nationals undcr
Article 36, paragraph 1 (b). Thc duty to exhausl local remedies does not
apply to such a request. Further, for reasons just explained, the Court
does not find it necessary to deal with Mexico's claims of violation under
a distinc~ heading af diplomatic protection. Withoul needing to pronounce

at this juncture on the issues raised by the procedural default

rule, as explained by Mexico in paragraph 39 above, the Court accordingly
finds that the second objection by lhc United States lo adnlissibility
cannot be upheld
55. Both Parties recognize the well-sellled principle in international
law that a litigant seeking to establish the existence of a fact bears the
burden of proving it (cf. Military und Pararniliiary Activilies in and
uguinst Niuarragncc (Nicaragua v. Uniied Slates of Americu), Jurisiliction
and Adwissisibility, Judgnzenl, I. C.J. Rpporls 1984, p. 437, para. 101).
Mexico acknowledges that it has the burden of proor to show that the
52 persons listed in paragraph 16 above were Mexican nationals to whom
Ihc provisions of Article 36, paragraph 1 (b), in principle apply. It claims
it has met this burden by providing to the Court I~C birth certificates of
these nationals, and declarations from 42 of them that they have not
acquired United States nationality. Mexico further contends that the
burden of proof lies on the United States should it wish lo contend that
particular arrested persons of Mexican nationality were, at the relevant
time, also United States nationals.
17. In support of its fourth and fifth submissions, Mexico argues that
"lt is wdl-established that the primary form of reparation available to a
State injured by an internationally wrongful act is rrstirutiu in intrgrum",
and that "Thc United States is therefore obliged to take the necessary
actlon to restore the srarus quo ante in respect of Mexico's nationals
detained, tried, convicted and sentenced in violation of their intcrnalionally
recognized rights." To restore the status quo ante, Mexico contends
that "restitution hcrc must take the form of annulment OF the conv~ctions
and sentences lhat resulted from the proceedings tainted by the Article 36
violations", and that "It follows from the very nature of rrstilutio that,
when a violation of an international obligation is manifested in a judicial
act, that act must be annulled and thereby deprived of any force or effect

in the national legal system." Mexico therefore asks in its submissions

that the convictions and sentences of the 52 Mexican nationals be
annulled, and that, in any Suturc criminal proceedings against these 52
Mexican nationals, evidence obtained in breach of Article 36 of the
Yicnna Convention be excluded.

MEDELLIN v. TEXAS
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS

No. 06984.Argued October 10, 2007Decided March 25, 2008

In the Case Concerning Avena and Other Mexican

Nationals (Mex.v. U. S.), 2004 I. C. J. 12 (Avena), the
International Court of Justice (ICJ) held that the United States
had violated Article 36(1)(b) of the Vienna Convention on
Consular Relations (Vienna Convention or Convention) by
failing to inform 51 named Mexican nationals, including
petitioner Medelln, of their Vienna Convention rights. The ICJ
found that those named individuals were entitled to review
and reconsideration of their U. S. state-court convictions and
sentences regardless of their failure to comply with generally
applicable state rules governing challenges to criminal
convictions. In Sanchez-Llamas v. Oregon, 548 U. S. 331
issued after Avenabut involving individuals who were not
named in the Avenajudgmentthis Court held, contrary to the
ICJs determination, that the Convention did not preclude the
application of state default rules. The President then issued a
memorandum (Presidents Memorandum or Memorandum)
stating that the United States would discharge its
international obligations under Avenaby having State courts
give effect to the decision.
Relying on Avena andthe Presidents Memorandum,
Medelln filed a second Texas state-court habeas application
challenging his state capital murder conviction and death
sentence on the ground that he had not been informed of his
Vienna Convention rights. The Texas Court of Criminal Appeals

dismissed Medellns application as an abuse of the writ,

concluding that neither Avena nor the Presidents Memorandum
was binding federal law that could displace the States
limitations on filing successive habeas applications.
Held: Neither Avena nor the Presidents Memorandum
constitutes directly enforceable federal law that pre-empts
state limitations on the filing of successive habeas petitions.
Pp. 837.
1. The Avena judgment is not directly enforceable as
domestic law in state court. Pp. 827.
(a) While a treaty may constitute an international
commitment, it is not binding domestic law unless Congress
has enacted statutes implementing it or the treaty itself
conveys an intention that it be self-executing and is ratified
on that basis. See, e.g., Foster v. Neilson, 2 Pet. 253, 314.
The Avena judgment creates an international law obligation on
the part of the United States, but it is not automatically
binding domestic law because none of the relevant treaty
sourcesthe Optional Protocol, the U. N. Charter, or the ICJ
Statutecreates binding federal law in the absence of
implementing legislation, and no such legislation has been
enacted.
The most natural reading of the Optional Protocol is that it
is a bare grant of jurisdiction. The Protocol says nothing about
the effect of an ICJ decision, does not commit signatories to
comply therewith, and is silent as to any enforcement
mechanism. The obligation to comply with ICJ judgments is
derived from Article 94 of the U. N. Charter, which provides
that [e]ach Member undertakes to comply with the
[ICJs] decision in any case to which it is a party. The
phrase undertakes to comply is simply a commitment by
member states to take future action through their political
branches. That language does not indicate that the Senate, in
ratifying the Optional Protocol, intended to vest ICJ decisions
with immediate legal effect in domestic courts.
This reading is confirmed by Article 94(2)the enforcement
provisionwhich provides the sole remedy for noncompliance:
referral to the U. N. Security Council by an aggrieved state.

The provision of an express diplomatic rather than judicial

remedy is itself evidence that ICJ judgments were not meant
to be enforceable in domestic courts. See Sanchez-Llamas, 548
U. S., at 347. Even this
quintessentially international remed[y], id., at 355, is not
absolute. It requires a Security Council resolution, and the
President and Senate were undoubtedly aware that the United
States retained the unqualified right to exercise its veto of any
such resolution. Medellns construction would eliminate the
option of noncompliance contemplated by Article 94(2),
undermining the ability of the political branches to determine
whether and how to comply with an ICJ judgment.
The ICJ Statute, by limiting disputes to those involving
nations, not individuals, and by specifying that ICJ decisions
have no binding force except between those nations, provides
further evidence that the Avena judgment does not
automatically constitute federal law enforceable in U. S.
courts. Medelln, an individual, cannot be considered a party to
the Avena decision. Finally, the United States interpretation of
a treaty is entitled to great weight, Sumitomo Shoji
America, Inc. v. Avagliano, 457 U. S., at 184185, and the
Executive Branch has unfailingly adhered to its view that the
relevant treaties do not create domestically enforceable
federal law. Pp. 817.
(b) The foregoing interpretive approachparsing a
treatys text to determine if it is self-executingis hardly
novel. This Court has long looked to the language of a treaty to
determine whether the President who negotiated it and the
Senate that ratified it intended for the treaty to automatically
create domestically enforceable federal law.
See, e.g., Foster, supra. Pp. 1820.
(c) The Courts conclusion that Avena does not by itself
constitute binding federal law is confirmed by the
postratification understanding of signatory countries.
See Zicherman v. Korean Air Lines Co., 516 U. S. 217 . There
are currently 47 nations that are parties to the Optional
Protocol and 171 nations that are parties to the Vienna
Convention. Yet neither Medelln nor his amici have identified a
single nation that treats ICJ judgments as binding in domestic
courts. The lack of any basis for supposing that any other

country would treat ICJ judgments as directly enforceable as a

matter of their domestic law strongly suggests that the treaty
should not be so viewed in our courts. See Sanchez-Llamas, 548
U. S., at 343344, and n. 3.
The Courts conclusion is further supported by general
principles of interpretation. Given that the forum states
procedural rules govern a treatys implementation absent a
clear and express statement to the contrary, see e.g., id., at
351, one would expect the ratifying parties to the relevant
treaties to have clearly stated any intent to give ICJ judgments
such effect. There is no statement in the Optional Protocol,
the U. N. Charter, or the ICJ Statute that supports this notion.
Moreover, the consequences of Medellns argument give pause:
neither Texas nor this Court may look behind an ICJ decision
and quarrel with its reasoning or result, despite this Courts
holding in Sanchez-Llamas that[n]othing in the [ICJs]
structure or purpose suggests that its interpretations were
intended to be conclusive on our courts. id., at 354. Pp. 20
24.
(d) The Courts holding does not call into question the
ordinary enforcement of foreign judgments. An agreement to
abide by the result of an international adjudication can be a
treaty obligation like any other, so long as the agreement is
consistent with the Constitution. In addition, Congress is up to
the task of implementing non-self-executing treaties, even
those involving complex commercial disputes. Medelln
contends that domestic courts generally give effect to foreign
judgments, but the judgment Medelln asks us to enforce is
hardly typical: It would enjoin the operation of state law and
force the State to take action to review and reconside[r] his
case. Foreign judgments awarding injunctive relief against
private parties, let alone sovereign States, are not generally
entitled to enforcement. Restatement (Third) of Foreign
Relations Law of the United States 481, Comment b, p. 595
(1986). Pp. 2427.
2. The Presidents Memorandum does not independently
require the States to provide review and reconsideration of the
claims of the 51 Mexican nationals named in Avena without
regard to state procedural default rules. Pp. 2737.

(a) The President seeks to vindicate plainly compelling

interests in ensuring the reciprocal observance of the Vienna
Convention, protecting relations with foreign governments,
and demonstrating commitment to the role of international
law. But those interests do not allow the Court to set aside
first principles. The Presidents authority to act, as with the
exercise of any governmental power, must stem either from
an act of Congress or from the Constitution itself. Youngstown
Sheet & Tube Co. v.Sawyer, 343 U. S. 579 .
Justice Jacksons familiar tripartite scheme provides the
accepted framework for evaluating executive action in this
area. First, [w]hen the President acts pursuant to an express
or implied authorization of Congress, his authority is at its
maximum, for it includes all that he possesses in his own right
plus all that Congress can delegate. Youngstown, 343 U. S., at
635 (Jackson, J., concurring). Second, [w]hen the President
acts in absence of either a congressional grant or denial of
authority, he can only rely upon his own independent powers,
but there is a zone of twilight in which he and Congress may
have concurrent authority, or in which its distribution is
uncertain. Id., at 637. In such a circumstance, Presidential
authority can derive support from congressional inertia,
indifference or quiescence. Ibid. Finally, [w]hen the
President takes measures incompatible with the expressed or
implied will of Congress, his power is at its lowest ebb, and
the Court can sustain his actions only by disabling the
Congress from acting upon the subject. Id., at 637638.
Pp. 2829.
(b) The United States marshals two principal arguments in
favor of the Presidents authority to establish binding rules of
decision that preempt contrary state law. The United States
argues that the relevant treaties give the President the
authority to implement the Avena judgment and that Congress
has acquiesced in the exercise of such authority. The United
States also relies upon an independent international disputeresolution power. We find these arguments, as well as
Medellns additional argument that the Presidents
Memorandum is a valid exercise of his Take Care power,
unpersuasive. Pp. 2937.

(i) The United States maintains that the Presidents

Memorandum is implicitly authorized by the Optional Protocol
and the U. N. Charter. But the responsibility for transforming
an international obligation arising from a non-self-executing
treaty into domestic law falls to Congress, not the
Executive. Foster, 2 Pet., at 315. It is a fundamental
constitutional principle that [t]he power to make the
necessary laws is in Congress; the power to execute in the
President. Hamdan v. Rumsfeld, 548 U. S. 557 . A non-selfexecuting treaty, by definition, is one that was ratified with
the understanding that it is not to have domestic effect of its
own force. That understanding precludes the assertion that
Congress has implicitly authorized the Presidentacting on his
ownto achieve precisely the same result. Accordingly, the
Presidents Memorandum does not fall within the first category
of the Youngstown framework. Indeed, because the non-selfexecuting character of the relevant treaties not only refutes
the notion that the ratifying parties vested the President with
the authority to unilaterally make treaty obligations binding on
domestic courts, but also implicitly prohibits him from doing
so, the Presidents assertion of authority is within Youngstowns
third category, not the first or even the second.
The United States maintains that congressional
acquiescence requires that the Presidents Memorandum be
given effect as domestic law. But such acquiescence is
pertinent when the Presidents action falls within the
second Youngstown category, not the third. In any event,
congressional acquiescence does not exist here. Congress
failure to act following the Presidents resolution of prior ICJ
controversies does not demonstrate acquiescence because in
none of those prior controversies did the President assert the
authority to transform an international obligation into
domestic law and thereby displace state law. The United
States reliance on the Presidents related statutory
responsibilities and on his established role in litigating
foreign policy concerns is also misplaced. The Presidents
statutory authorization to represent the United States before
the U. N., the ICJ, and the U. N. Security Council speaks to
his internationalresponsibilities, not to any unilateral authority
to create domestic law.

The combination of a non-self-executing treaty and the lack

of implementing legislation does not preclude the President
from acting to comply with an international treaty obligation
by other means, so long as those means are consistent with the
Constitution. But the President may not rely upon a non-selfexecuting treaty to establish binding rules of decision that preempt contrary state law. Pp. 3035.
(ii) The United States also claims thatindependent of
the United States treaty obligationsthe Memorandum is a
valid exercise of the Presidents foreign affairs authority to
resolve claims disputes. See, e.g., American Ins.
Assn. v. Garamendi, 539 U. S. 396 . This Courts claimssettlement cases involve a narrow set of circumstances: the
making of executive agreements to settle civil claims between
American citizens and foreign governments or foreign
nationals. They are based on the view that a systematic,
unbroken, executive practice, long pursued to the knowledge
of the Congress and never before questioned, can raise a
presumption that the [action] had been [taken] in pursuance of
its consent. Dames & Moore v. Regan, 453 U. S. 654 . But
[p]ast practice does not, by itself, create power. Ibid. The
Presidents Memoranduma directive issued to state courts
that would compel those courts to reopen final criminal
judgments and set aside neutrally applicable state lawsis not
supported by a particularly longstanding practice. The
Executives limited authority to settle international claims
disputes pursuant to an executive agreement cannot stretch so
far. Pp. 3537.
(iii) Medellns argument that the Presidents
Memorandum is a valid exercise of his power to Take Care
that the laws be faithfully executed, U. S. Const., Art. II, 3,
fails because the ICJs decision in Avena is not domestic law.
P. 37.

HOLY SEE VS ROSARIO

THE HOLY SEE, petitioner,
vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of
Makati, Branch 61 and STARBRIGHT SALES ENTERPRISES, INC., respondents.

Padilla Law Office for petitioner.

Siguion Reyna, Montecillo & Ongsiako for private respondent.

QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside
the Orders dated June 20, 1991 and September 19, 1991 of the Regional Trial Court, Branch 61,
Makati, Metro Manila in Civil Case No. 90-183.
The Order dated June 20, 1991 denied the motion of petitioner to dismiss the complaint in Civil Case
No. 90-183, while the Order dated September 19, 1991 denied the motion for reconsideration of the
June 20,1991 Order.
Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is
represented in the Philippines by the Papal Nuncio.
Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real
estate business.
This petition arose from a controversy over a parcel of land consisting of 6,000 square meters (Lot 5A, Transfer Certificate of Title No. 390440) located in the Municipality of Paraaque, Metro Manila
and registered in the name of petitioner.
Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title
Nos. 271108 and 265388 respectively and registered in the name of the Philippine Realty
Corporation (PRC).
The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to
the sellers. Later, Licup assigned his rights to the sale to private respondent.
In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose
as to who of the parties has the responsibility of evicting and clearing the land of squatters.
Complicating the relations of the parties was the sale by petitioner of Lot 5-A to Tropicana Properties
and Development Corporation (Tropicana).
I
On January 23, 1990, private respondent filed a complaint with the Regional Trial Court, Branch 61,
Makati, Metro Manila for annulment of the sale of the three parcels of land, and specific performance
and damages against petitioner, represented by the Papal Nuncio, and three other defendants:
namely, Msgr. Domingo A. Cirilos, Jr., the PRC and Tropicana (Civil Case No.
90-183).
The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner and the
PRC, agreed to sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price of P1,240.00 per square
meters; (2) the agreement to sell was made on the condition that earnest money of P100,000.00 be

paid by Licup to the sellers, and that the sellers clear the said lots of squatters who were then
occupying the same; (3) Licup paid the earnest money to Msgr. Cirilos; (4) in the same month, Licup
assigned his rights over the property to private respondent and informed the sellers of the said
assignment; (5) thereafter, private respondent demanded from Msgr. Cirilos that the sellers fulfill
their undertaking and clear the property of squatters; however, Msgr. Cirilos informed private
respondent of the squatters' refusal to vacate the lots, proposing instead either that private
respondent undertake the eviction or that the earnest money be returned to the latter; (6) private
respondent counterproposed that if it would undertake the eviction of the squatters, the purchase
price of the lots should be reduced from P1,240.00 to P1,150.00 per square meter; (7) Msgr. Cirilos
returned the earnest money of P100,000.00 and wrote private respondent giving it seven days from
receipt of the letter to pay the original purchase price in cash; (8) private respondent sent the earnest
money back to the sellers, but later discovered that on March 30, 1989, petitioner and the PRC,
without notice to private respondent, sold the lots to Tropicana, as evidenced by two separate Deeds
of Sale, one over Lot 5-A, and another over Lots 5-B and 5-D; and that the sellers' transfer certificate
of title over the lots were cancelled, transferred and registered in the name of Tropicana; (9)
Tropicana induced petitioner and the PRC to sell the lots to it and thus enriched itself at the expense
of private respondent; (10) private respondent demanded the rescission of the sale to Tropicana and
the reconveyance of the lots, to no avail; and (11) private respondent is willing and able to comply
with the terms of the contract to sell and has actually made plans to develop the lots into a
townhouse project, but in view of the sellers' breach, it lost profits of not less than P30,000.000.00.
Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and
the PRC on the one hand, and Tropicana on the other; (2) the reconveyance of the lots in question;
(3) specific performance of the agreement to sell between it and the owners of the lots; and (4)
damages.
On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the complaint
petitioner for lack of jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for being
an improper party. An opposition to the motion was filed by private respondent.
On June 20, 1991, the trial court issued an order denying, among others, petitioner's motion to
dismiss after finding that petitioner "shed off [its] sovereign immunity by entering into the business
contract in question" (Rollo, pp. 20-21).
On July 12, 1991, petitioner moved for reconsideration of the order. On August 30, 1991, petitioner
filed a "Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation for claim of
Immunity as a Jurisdictional Defense." So as to facilitate the determination of its defense of
sovereign immunity, petitioner prayed that a hearing be conducted to allow it to establish certain
facts upon which the said defense is based. Private respondent opposed this motion as well as the
motion for reconsideration.
On October 1, 1991, the trial court issued an order deferring the resolution on the motion for
reconsideration until after trial on the merits and directing petitioner to file its answer (Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the privilege of
sovereign immunity only on its own behalf and on behalf of its official representative, the Papal
Nuncio.

On December 9, 1991, a Motion for Intervention was filed before us by the Department of Foreign
Affairs, claiming that it has a legal interest in the outcome of the case as regards the diplomatic
immunity of petitioner, and that it "adopts by reference, the allegations contained in the petition of the
Holy See insofar as they refer to arguments relative to its claim of sovereign immunity from suit"
(Rollo, p. 87).
Private respondent opposed the intervention of the Department of Foreign Affairs. In compliance with
the resolution of this Court, both parties and the Department of Foreign Affairs submitted their
respective memoranda.
II
A preliminary matter to be threshed out is the procedural issue of whether the petition
for certiorari under Rule 65 of the Revised Rules of Court can be availed of to question the order
denying petitioner's motion to dismiss. The general rule is that an order denying a motion to dismiss
is not reviewable by the appellate courts, the remedy of the movant being to file his answer and to
proceed with the hearing before the trial court. But the general rule admits of exceptions, and one of
these is when it is very clear in the records that the trial court has no alternative but to dismiss the
complaint (Philippine National Bank v. Florendo, 206 SCRA 582 [1992]; Zagada v. Civil Service
Commission, 216 SCRA 114 [1992]. In such a case, it would be a sheer waste of time and energy to
require the parties to undergo the rigors of a trial.
The other procedural question raised by private respondent is the personality or legal interest of the
Department of Foreign Affairs to intervene in the case in behalf of the Holy See (Rollo, pp. 186-190).
In Public International Law, when a state or international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is sued to
convey to the court that said defendant is entitled to immunity.
In the United States, the procedure followed is the process of "suggestion," where the foreign state
or the international organization sued in an American court requests the Secretary of State to make
a determination as to whether it is entitled to immunity. If the Secretary of State finds that the
defendant is immune from suit, he, in turn, asks the Attorney General to submit to the court a
"suggestion" that the defendant is entitled to immunity. In England, a similar procedure is followed,
only the Foreign Office issues a certification to that effect instead of submitting a "suggestion"
(O'Connell, I International Law 130 [1965]; Note: Immunity from Suit of Foreign Sovereign
Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]).
In the Philippines, the practice is for the foreign government or the international organization to first
secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the
Philippine Foreign Office conveys its endorsement to the courts varies. In International Catholic
Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a
letter directly to the Secretary of Labor and Employment, informing the latter that the respondentemployer could not be sued because it enjoyed diplomatic immunity. In World Health Organization v.
Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that
effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs
to request the Solicitor General to make, in behalf of the Commander of the United States Naval
Base at Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor General
embodied the "suggestion" in a Manifestation and Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved
with this Court to be allowed to intervene on the side of petitioner. The Court allowed the said
Department to file its memorandum in support of petitioner's claim of sovereign immunity.
In some cases, the defense of sovereign immunity was submitted directly to the local courts by the
respondents through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v.
Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA
644 [1990] and companion cases). In cases where the foreign states bypass the Foreign Office, the
courts can inquire into the facts and make their own determination as to the nature of the acts and
transactions involved.
III
The burden of the petition is that respondent trial court has no jurisdiction over petitioner, being a
foreign state enjoying sovereign immunity. On the other hand, private respondent insists that the
doctrine of non-suability is not anymore absolute and that petitioner has divested itself of such a
cloak when, of its own free will, it entered into a commercial transaction for the sale of a parcel of
land located in the Philippines.
A. The Holy See
Before we determine the issue of petitioner's non-suability, a brief look into its status as a sovereign
state is in order.
Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as
the Holy See, was considered a subject of International Law. With the loss of the Papal States and
the limitation of the territory under the Holy See to an area of 108.7 acres, the position of the Holy
See in International Law became controversial (Salonga and Yap, Public International Law 36-37
[1992]).
In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive
dominion and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right
of the Holy See to receive foreign diplomats, to send its own diplomats to foreign countries, and to
enter into treaties according to International Law (Garcia, Questions and Problems In International
Law, Public and Private 81 [1948]).
The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the
Holy See absolute and visible independence and of guaranteeing to it indisputable sovereignty also
in the field of international relations" (O'Connell, I International Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is
vested in the Holy See or in the Vatican City. Some writers even suggested that the treaty created
two international persons the Holy See and Vatican City (Salonga and Yap, supra, 37).
The Vatican City fits into none of the established categories of states, and the attribution to it of
"sovereignty" must be made in a sense different from that in which it is applied to other states
(Fenwick, International Law 124-125 [1948]; Cruz, International Law 37 [1991]). In a community of
national states, the Vatican City represents an entity organized not for political but for ecclesiastical
purposes and international objects. Despite its size and object, the Vatican City has an independent

government of its own, with the Pope, who is also head of the Roman Catholic Church, as the Holy
See or Head of State, in conformity with its traditions, and the demands of its mission in the world.
Indeed, the world-wide interests and activities of the Vatican City are such as to make it in a sense
an "international state" (Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]).
One authority wrote that the recognition of the Vatican City as a state has significant implication
that it is possible for any entity pursuing objects essentially different from those pursued by states to
be invested with international personality (Kunz, The Status of the Holy See in International Law, 46
The American Journal of International Law 308 [1952]).
Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy
See and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the
Holy See that is the international person.
The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The
Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the
Philippine government since 1957 (Rollo, p. 87). This appears to be the universal practice in
international relations.
B. Sovereign Immunity
As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally
accepted principles of International Law. Even without this affirmation, such principles of
International Law are deemed incorporated as part of the law of the land as a condition and
consequence of our admission in the society of nations (United States of America v. Guinto, 182
SCRA 644 [1990]).
There are two conflicting concepts of sovereign immunity, each widely held and firmly established.
According to the classical or absolute theory, a sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign. According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state,
but not with regard to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public
International Law 194 [1984]).
Some states passed legislation to serve as guidelines for the executive or judicial determination
when an act may be considered as jure gestionis. The United States passed the Foreign Sovereign
Immunities Act of 1976, which defines a commercial activity as "either a regular course of
commercial conduct or a particular commercial transaction or act." Furthermore, the law declared
that the "commercial character of the activity shall be determined by reference to the nature of the
course of conduct or particular transaction or act, rather than by reference to its purpose." The
Canadian Parliament enacted in 1982 an Act to Provide For State Immunity in Canadian Courts. The
Act defines a "commercial activity" as any particular transaction, act or conduct or any regular
course of conduct that by reason of its nature, is of a "commercial character."
The restrictive theory, which is intended to be a solution to the host of problems involving the issue
of sovereign immunity, has created problems of its own. Legal treatises and the decisions in
countries which follow the restrictive theory have difficulty in characterizing whether a contract of a
sovereign state with a private party is an act jure gestionis or an act jure imperii.

The restrictive theory came about because of the entry of sovereign states into purely commercial
activities remotely connected with the discharge of governmental functions. This is particularly true
with respect to the Communist states which took control of nationalized business activities and
international trading.
This Court has considered the following transactions by a foreign state with private parties as
acts jure imperii: (1) the lease by a foreign government of apartment buildings for use of its military
officers (Syquia v. Lopez, 84 Phil. 312 [1949]; (2) the conduct of public bidding for the repair of a
wharf at a United States Naval Station (United States of America v. Ruiz, supra.); and (3) the change
of employment status of base employees (Sanders v. Veridiano, 162 SCRA 88 [1988]).
On the other hand, this Court has considered the following transactions by a foreign state with
private parties as acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of
three restaurants, a cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air
Station in Baguio City, to cater to American servicemen and the general public (United States of
America v. Rodrigo, 182 SCRA 644 [1990]); and (2) the bidding for the operation of barber shops in
Clark Air Base in Angeles City (United States of America v. Guinto, 182 SCRA 644 [1990]). The
operation of the restaurants and other facilities open to the general public is undoubtedly for profit as
a commercial and not a governmental activity. By entering into the employment contract with the
cook in the discharge of its proprietary function, the United States government impliedly divested
itself of its sovereign immunity from suit.
In the absence of legislation defining what activities and transactions shall be considered
"commercial" and as constituting acts jure gestionis, we have to come out with our own guidelines,
tentative they may be.
Certainly, the mere entering into a contract by a foreign state with a private party cannot be the
ultimate test. Such an act can only be the start of the inquiry. The logical question is whether the
foreign state is engaged in the activity in the regular course of business. If the foreign state is not
engaged regularly in a business or trade, the particular act or transaction must then be tested by its
nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure
imperii, especially when it is not undertaken for gain or profit.
As held in United States of America v. Guinto, (supra):
There is no question that the United States of America, like any other state, will be
deemed to have impliedly waived its non-suability if it has entered into a contract in
its proprietary or private capacity. It is only when the contract involves its sovereign
or governmental capacity that no such waiver may be implied.
In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate
business, surely the said transaction can be categorized as an act jure gestionis. However, petitioner
has denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but claimed
that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines.
Private respondent failed to dispute said claim.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was
made not for commercial purpose, but for the use of petitioner to construct thereon the official place
of residence of the Papal Nuncio. The right of a foreign sovereign to acquire property, real or

personal, in a receiving state, necessary for the creation and maintenance of its diplomatic mission,
is recognized in the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was
concurred in by the Philippine Senate and entered into force in the Philippines on November 15,
1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and
administrative jurisdiction of the receiving state over any real action relating to private immovable
property situated in the territory of the receiving state which the envoy holds on behalf of the sending
state for the purposes of the mission. If this immunity is provided for a diplomatic envoy, with all the
more reason should immunity be recognized as regards the sovereign itself, which in this case is the
Holy See.
The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a
governmental character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon
made it almost impossible for petitioner to use it for the purpose of the donation. The fact that
squatters have occupied and are still occupying the lot, and that they stubbornly refuse to leave the
premises, has been admitted by private respondent in its complaint (Rollo, pp. 26, 27).
The issue of petitioner's non-suability can be determined by the trial court without going to trial in the
light of the pleadings, particularly the admission of private respondent. Besides, the privilege of
sovereign immunity in this case was sufficiently established by the Memorandum and Certification of
the Department of Foreign Affairs. As the department tasked with the conduct of the Philippines'
foreign relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), the Department of Foreign
Affairs has formally intervened in this case and officially certified that the Embassy of the Holy See is
a duly accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction
and entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this
country (Rollo, pp. 156-157). The determination of the executive arm of government that a state or
instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive
upon the courts (International Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]).
Where the plea of immunity is recognized and affirmed by the executive branch, it is the duty of the
courts to accept this claim so as not to embarrass the executive arm of the government in
conducting the country's foreign relations (World Health Organization v. Aquino, 48 SCRA 242
[1972]). As in International Catholic Migration Commission and in World Health Organization, we
abide by the certification of the Department of Foreign Affairs.
Ordinarily, the procedure would be to remand the case and order the trial court to conduct a hearing
to establish the facts alleged by petitioner in its motion. In view of said certification, such procedure
would however be pointless and unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge Tirso
Velasco, G.R. No. 109645, July 25, 1994).
IV
Private respondent is not left without any legal remedy for the redress of its grievances. Under both
Public International Law and Transnational Law, a person who feels aggrieved by the acts of a
foreign sovereign can ask his own government to espouse his cause through diplomatic channels.
Private respondent can ask the Philippine government, through the Foreign Office, to espouse its
claims against the Holy See. Its first task is to persuade the Philippine government to take up with

the Holy See the validity of its claims. Of course, the Foreign Office shall first make a determination
of the impact of its espousal on the relations between the Philippine government and the Holy See
(Young, Remedies of Private Claimants Against Foreign States, Selected Readings on Protection by
Law of Private Foreign Investments 905, 919 [1964]). Once the Philippine government decides to
espouse the claim, the latter ceases to be a private cause.
According to the Permanent Court of International Justice, the forerunner of the International Court
of Justice:
By taking up the case of one of its subjects and by reporting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own
rights its right to ensure, in the person of its subjects, respect for the rules of
international law (The Mavrommatis Palestine Concessions, 1 Hudson, World Court
Reports 293, 302 [1924]).
WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183
against petitioner is DISMISSED.

Syllabus
1. A citizen of the United States residing in a foreign country continues to owe allegiance
to the United States and is bound by its laws made applicable to his situation. P. 284 U.
S. 436.
2. The power to require the return of absent citizens in the public interest is inherent in
sovereignty, and what in England was the sovereign prerogative in this respect pertains,
under our constitutional system, to the national authority, exercisable by Congress, to
prescribe the duties of the citizens of the United States. P. 284 U. S. 437.
3. One of the duties of such absent citizens to the United States is that of attending its
courts to give testimony when properly summoned, and Congress may provide for the
performance of this duty and prescribe penalties for disobedience. P. 284 U. S. 438.
4. Questions of authority in such cases are not questions of international law, but of
municipal law. P. 284 U. S. 437.
5. The Act of July 3, 1926, provides that, when the testimony of a citizen of the United
States residing in a foreign country is needed by the Government in a criminal case, the
court in which the case is pending may issue a subpoena to be served upon him
personally by an American consul with a tender of money to cover his necessary

expenses of travel to and from, and attendance upon, the court; that, if he refuse or
neglect to appear as directed by the subpoena, the same court, upon proof of service
and default, may issue its order directing him to appear before it at a designated time to
show cause why he should not be adjudged guilty of contempt
Page 284 U. S. 422
and be punished; that this order may direct that property of the witness in the United
States be seized and held to satisfy any judgment that may be rendered in the contempt
proceeding; that, after such seizure, the order to show cause and for sequestration shall
be served on the witness personally by such consul and shall be published in some
newspaper of general circulation in the district where the court sits, and that, on the
return day of the order, or later, proof shall be taken, and if the charge of recusancy shall
be sustained, the court shall adjudge the witness guilty of contempt and impose upon
him a fine not exceeding $100,000, which, with the costs, may be satisfied by sale of the
property levied upon, to be conducted upon notice and in the manner provided for sales
upon execution. In contempt proceedings for failure to obey subpoenas, held:
(1) The absent witness is bound with notice of the statute. P. 284 U. S. 438.
(2) The method provided by the Act for acquiring judicial jurisdiction to render a personal
judgment includes due notice and opportunity to be heard, and satisfies the due process
clause of the Fifth Amendment. Pp. 284 U. S. 438-439.
(3) Service of the subpoena in a foreign country invades no right of the foreign
government, and the citizen has no standing to invoke such supposed right. P. 284 U. S.
439.
(4) The function of a consul in serving the subpoena and the order to show cause is
merely that of an agent of the government for conveying actual notice to one of its
citizens; it need not be sanctioned by a treaty. Pp. 284 U. S. 439-440.
(5) In criminal contempt proceedings, due process does not require that the respondent
be present at the hearing and adjudication if he was duly notified and had adequate
opportunity to appear and be heard. P. 284 U. S. 440.

(6) The contempt proceeding being valid, the provisional remedy of seizing and applying
property to secure payment of the penalty is also constitutional. P. 284 U. S. 441.
(7) The fact that enforcement of the penalty may depend on seizure of property does not
imply unconstitutional discrimination between those contumacious absentee witnesses
who have property in this country and those who have not. Id.
(8) A provisional or final levy on property, as provided in the statute, to satisfy liability of
the owner is not an unreasonable search and seizure. Id.
Page 284 U. S. 423
(9) The question whether the statute grants the right to subpoena foreign residents in
criminal cases to the government only, and thereby violates the provision of the Sixth
Amendment guaranteeing accused persons compulsory process for witnesses, will not
be considered at the instance of a recalcitrant witness. P. 284 U. S. 442.
(10) Where the subpoena served was issued at the request of the government upon a
statement as to the materiality and importance of the expected testimony sufficient to
give the court jurisdiction to issue it, it binds the witness unless set aside upon proper
petition, and the question whether the showing was otherwise sufficient cannot be
raised in defense against proceedings to punish his disobedience as contempt. Id.
(11) It is not necessary that the subpoena issued under the statute show on its face that
it was so issued. Id.
(12) Where a witness has been served with subpoena under the statute, and has
defaulted, service of an order directing him to show cause, at a time and place stated,
why he should not be adjudged guilty of contempt, and providing for seizure of his
property to be held to satisfy any judgment that may be rendered against him in the
proceeding, affords notice sufficient to inform him of the character of the charge and of
the hearing at which he will have opportunity to present his defense. P. 284 U. S. 443.
(13) Where two subpoenas are issued for appearances at different times, a seizure of
property in connection with the first is not vacated by the seizure of the same property in
connection with the second. Id.

(14) A witness subpoenaed to attend on a day named, and not to depart the court
without leave of the court or the district attorney, cannot excuse his refusal to come upon
the ground that the trial did not begin on the day specified in the writ, but on a later day
to which the case was continued. Id.
60 App.D.C. 141, 49 F.2d 523, affirmed.
Certiorari to review decrees sustaining fines imposed on the petitioner Blackmer as
punishment for contemptuous disobedience of two subpoenas in a criminal case. The
judgments provided that the fines be satisfied out of property seized after the
subpoenas were served.
Page 284 U. S. 433

Eeoc VS ARAMCO
Boureslan, a naturalized United States citizen originally from Lebanon, worked in Saudi Arabia. After 5
years of employment he was discharged by his employer, Arabian American Oil Company (Respondent),
a corporation organized in the United States. After filing a complaint with Equal Employment Opportunity
Commission (Petitioner), he instituted suit in District Court, seeking relief under Title VII of the Civil Rights
Act of 1964 on the ground that he had been discriminated against because of his race, religion, and
national origin. In dismissing this claim, the court ruled that it lacked subject matter jurisdiction because
Title VII's protections does not extend to United States citizens employed abroad by American employers.
The Court of Appeals affirmed the lower court's decision and the United States Supreme Court granted
certiorari.

V. THE SUPREME COURT'S DECISION:

"It is a longstanding principle of American law that legislation of Congress, unless a contrary intent
appears, is meant to apply only within the territorial jurisdiction of the United States... [This] is a valid
approach whereby unexpressed congressional intent may be ascertained... It serves to protect against
unintended clashes between our laws and those of other nations which could result in international
discord... We assume that Congress legislates against the backdrop of the presumption against
extraterritoriality. Therefore, unless there is the affirmative intention of the Congress clearly expressed, we
must presume it is primarily concerned with domestic conditions...

The intent of Congress as to the extraterritorial application of this statute must be deduced by inference
from boilerplate language which can be found in any number of congressional acts, none of which have
ever been held to apply overseas... We have repeatedly held that even statutes that contain broad
language in their definitions of 'commerce' that expressly refer to 'foreign commerce' do not apply
abroad...
We are of the view that, even when considered in combination with petitioners' other arguments, the
EEOC's [Equal Employment Opportunity Commission] interpretation is insufficiently weighty to overcome
the presumption against extraterritorial application.
Our conclusion today is buttressed by the fact that '[w]hen it desires to do so, Congress knows how to
place the high seas within the jurisdictional reach of a statute...' Congress's awareness of the need to
make a clear statement that a statute applies overseas is amply demonstrated by the numerous
occasions on which it has expressly legislated the extraterritorial application of a statute.
Petitioners have failed to present sufficient affirmative evidence that Congress intended Title VII to apply
abroad. Accordingly, the judgment of the Court of Appeals is Affirmed.
Held: Title VII does not apply extraterritorially to regulate the employment practices of United States firms
that employ American citizens abroad. Petitioners' evidence, while not totally lacking in probative value,
falls short of demonstrating the clearly expressed affirmative congressional intent that is required to
overcome the well-established presumption against statutory extraterritoriality."

HERBERT BROWNELL, JR., Attorney General of the United States, as successor of the
Philippine Alien Property Administrator, plaintiff-appellant,
vs.
MACARIO BAUTISTA, defendant-appellee,
REPUBLIC OF THE PHILIPPINES, intervenor-appellant.
Dallas S. Townsend, Stanley Gilbert, Juan T. Santos and Lino M. Patajo for appellant.
Primitivo A. Bugarin and Esmeraldo U. Galoy for appellee.
Alfredo Catolico and Fernando Barrion for appellant.
BAUTISTA ANGELO, J.:

On October 6, 1947, the Philippine Alien Property Administrator, hereinafter referred to as

Administrator, issued vesting order No. P-394, which was amended on February 2, and July 14,
1949, vesting in himself, among others, one-half undivided interest in the following properties: (a)
five parcel of land situate in the city of Baguio and one parcel situate in San Clemente, Tarlac; (b)
personal properties consisting of furniture and household equipments; (c) the sum of P5,156.83
representing balance of a saving account with the People's Bank and Trust Company, Baguio
branch; (d) the sum of P1,867.50 representing rents and income of the lands mentioned above; and
(e) the net proceeds of an insurance policy in the amount of $1,451.81.
The vesting was made upon the claim that the one-half undivided interest was owned by Carlos
Teraoka and Marie Dolores Teraoka who were found to be nationals of Japan, an enemy country.
After the vesting, the Administrator demanded from their grandfather, Macario Bautista, who was in
possession of the aforementioned properties, the delivery to him of the possession of one-half
thereof. Macario Bautista refused to comply with the demand claiming to be the sole owner of the
aforementioned properties having inherited them as the only surviving heir of their former owners
who were already dead, including Carlos Teraoka and Marie Dolores. Because of such refusal, the
Administrator filed an action in the Court of First Instance of Mountain Province praying for the
partition of the properties and the delivery of one-half thereof to the plaintiff. As one of the parcels
involved was sold to one Antonio Baluga, the latter was included in the complaint as party defendant.
The Republic of the Philippines moved to intervene as party plaintiff in view of the provision of the
law to the effect that whatever property may be vested in the administrator would be eventually
transferred to the Republic. This motion was granted, and the Republic of the Philippines adopted as
its own the complaint filed by the Administrator.
Defendant Macario Bautista set up special defense that he is the sole owner of the properties in
question with the exception of the lot sold to his co-defendant Antonio Baluga; that as such owner he
has already spent a considerable amount on said properties in the form of taxes, repairs, fines,
penalties, and the like; that Muneo Teraoka was not an enemy national but a naturalized Filipino
citizen; that the children of Muneo Teraoka, including Carlos and Marie Dolores, were Filipino
citizens; that the Philippine Alien Property Administrator cannot vest properties not enemy-owned,
such as the properties in question and, therefore he has no personality to bring the present action for
partition, for such right pertains only to the heirs of the former owners of said properties who are the
only ones who can maintain an action for partition as co-owners thereof pro-indiviso; and that,
assuming that Carlos and Marie Dolores are Japanese nationals, the present action for partition is
premature, since said children are still minors and as such have the right to elect Philippine
citizenship upon reaching the age of majority in accordance with the Philippine constitution.
In reply to the claim that the Administrator had no authority to vest the interest of Carlos and Marie
Dolores because they are not Japanese nationals, the Administrator stated that the determination of
the character of the properties vested and the nationality of their owners by the Administrator under
the law is conclusive and not subject to judicial review; that if the vesting is erroneous, the remedy of
the owners is to file a claim under section 32, or suit under section 9 (a), of the Trading with the
Enemy Act; and that the nationality of Carlos and Marie Dolores cannot be passed upon in the
present action.
After hearing, the court rendered judgment dismissing the complaint, the court holding in effect that
plaintiff failed to prove that Carlos and Marie Dolores are Japanese Nationals; that the evidence in
fact shows that they are Filipino citizens; and that the vesting of their interest in the property in

question was erroneous and, therefore, the vesting order issued by the plaintiff in connection with
said interest is illegal and did not vest ownership thereof in the plaintiff. As to Antonio Baluga, the
court found that he was an innocent purchaser whose title to the property cannot be reviewed.
From this judgment, the Administrator and the Republic of the Philippines have appealed to the
Court of Appeals. After the briefs had been submitted within the reglementary period, the parties took
steps to have the case transferred to this court upon the plea that the issues raised involve purely
questions of law, and this move was granted by the court. In the meantime, the Philippine Alien
Property Administration was terminated by Executive Order No. 10254 of the President of the United
States, effective June 29, 1951, and all its rights, powers, duties, and functions, as well as the
properties vested by it, were transferred to the Attorney General of the United States, and so, on
motion of the Attorney General of the United States, the lower court, in its order of August 13, 1951,
ordered the substitution of this official in lieu of the Philippine Alien Property Administrator.
Inasmuch as this case was transferred to this court upon the plea that the only issues raised by the
parties involve purely question of law, and hence facts as found by the lower court in its decision are
deemed admitted, for the purposes of the issues raised, we would quote hereunder the pertinent
portion of the decision wherein said facts are outlined:
1wphl.nt

In 1924, one Muneo Teraoka, also known as Charles M. Teraoka, then a Japanese subject,
married a native Filipino named Antonina Bautista. Out of this wedlock six children were
born, namely, Victor, Sixto, Carlos, Marie Dolores Catalina, and Eduardo. The couple during
their married life acquired all properties described in the complaint. On August 21, 1941,
Muneo Teraoka died, survived by his widow Antonina Bautista de Teraoka and his six
children by her, above named. An intestate proceedings was instituted in the Court of First
Instance of Baguio, as a result of which the real properties described in the complaint were
divided between the widow Antonina Bautista on one hand, and the six surviving children on
the other, giving to the widow three parcels and to the six children in common another three
(see paragraphs 5 and 6 of the original complaint). The personal properties enumerated in
the complaint, as well as the cash and the insurance policy of Antonina Bautista were not
divided or touched in the said intestate proceedings. Later or in December, 1944, Sixto
Teraoka died single at the age of 17 without leaving any issue, while Victor Teraoka was
taken by the Japanese soldiers on suspicion of being spy and has never been heard of since
then. He was presumably killed by the Japanese soldiers. Victor Teraoka left no issue also
and he died single, at the age of about 19 years. On April 24, 1945, during the bombing of
the City of Baguio by the American forces of liberation, Antonina Bautista and two of her
children, Catalina and Eduardo, were hit by bomb and died, Antonina Bautista died instantly,
while Catalina and Eduardo died later on the same day. After liberation and after the
surrender of Japan to the American forces, Carlos Teraoka and Marie Dolores Teraoka, the
only living members of the ill-fated Teraoka family, these two then being minors, as they are
still minors, being 19 and 16 years old, respectively, were taken by the American army to
Japan. Once in Japan the two went to stay with their grandfather, father of Muneo Teraoka.
They are still in Japan up to date living with their paternal uncle, their grandfather having
died. The evidence is clear, Carlos and Marie Dolores Teraoka, did not want to go to Japan
but they were powerless to resist, of too tender age to protest. They first sought their nearest
relatives once they were landed in Japan. After liberation also, or to be more exact, on July
18, 1945, the Enemy Property Custodian of the U.S. Army took into his custody the
properties described in the complaint on suspicion that these properties were tainted with
enemy interest. Then defendant Macario Bautista, father of Antonina Bautista, believing that
the entire Teraoka family had already died, and being the nearest surviving or relative of the

Teraokas, claimed the said properties from the Enemy Property Custodian. The latter,
ignorant of the existence in Japan of two of the Teraoka, children, granted the petition of
Macario Bautista and released the said properties. Macario Bautista, then, by an affidavit of
adjudication, succeeded in securing the cancellation of the certificates of title in his own
name. Once he had the certificates of title in his name, free of any lien or encumbrance,
Macario Bautista sold one lot (Lot No. 113 MM, now covered by Transfer Certificate of Title
No. T-331, in the name of Antonio Baluga, in favor of third party defendant Eulalio D. Rosete
who, in turn, sold it to defendant Antonio Baluga, hence the said transfer Certificate of Title
No. T-331 is now in his name (Exh. 3-Baluga). On October 1946, the office of the Philippine
Alien Property Administration was established in the Philippines. This new office assumed
and took over the functions and duties of the defunct Enemy Property Custodian of the
United States Army. This new office learned that, contrary to the assertion of Macario
Bautista that the entire Teraoka family had died already, two of the Teraoka children, Carlos
and Marie Dolores, are very much alive and are living in Japan. Then the Philippine Alien
Property Administrator, on the supposition that Carlos Teraoka and Marie Dolores Teraoka
are Japanese nationals, vested and took title to the portion of the said properties belonging,
by right of succession, to said Carlos and Marie Dolores Teraoka, by virtue of Vesting Order
No. P-394, issued on February 2, 1949, which was later supplemented and amended. The
above facts have conclusively established by the evidence. In fact, most of them are directly
admitted or not contradicted by any of the parties. Plaintiff filed this case of judicial partition
on the theory that the vesting order issued by plaintiff himself made him co-owner of the said
property in common with the defendants Macario Bautista and Antonio Baluga.
It is a well-settled rule that the Congress of the United States, in time of war, may authorize and
provide for the seizure and sequestration, through executive channels, of properties believed to be
enemy-owned, if adequate provision be made for a return in case of mistake. (Stoehr vs. Wallace,
255 U.S. 239, 65 L. ed., 604, 612; Central Union Trust Co. vs. Garvan, 254 U.S. 554, 65 L. ed., 403.)
Congress did this with the approval of the Trading with the Enemy Act, which was originally enacted
on October 6, 1917, authorizing the President of the United States, or the officer or agency that may
be designated by him as his representative, to determine the enemy ownership of the properties to
be seized. The agency so designated was the Alien Property Custodian. Section 7 (c) of said act, as
amended, referring more, specially to the scope of the authority granted to the President, provides
as follows: "If the President shall so require any money or other property ... owning or belonging to,
or held for, by or on account of, or on behalf of, or for the benefit of, an enemy ... which the President
after investigation shall determine is so owning or so belonging or is so held, shall be conveyed,
transferred, assigned, delivered, or paid to the Alien Property Custodian, or the same may be seized
by the Alien Property Custodian." (Emphasis supplied).
On July 3, 1946, the Congress of the United States approved Philippine Property Act of 1946
providing in section 3 thereof that the Trading with the Enemy Act, as amended, shall continue in
force in the Philippines after July 4, 1946, and adding that "all powers and authority conferred upon
the President of the United States or the Alien Property Custodian by the terms of said Trading with
the Enemy Act, as amended, with respect to the Philippines shall continue thereafter to be exercised
by the President of the United States or such other officer or agency as he may designate."
Inasmuch as the Philippine Property Act of 1946 was approved only one day before the granting of
Philippine independence, the immediate designation of the Alien Property Custodian of the United
States, who was already the designee of the President, to continue acting thereafter, was considered
most expedient to avoid disrupting the continuity of the vesting program (Executive Order No. 9747).
This was done without prejudice however of establishing an independent agency which may take
charge of the administration and control of enemy properties in the Philippines. So on October 14,

1946, the Philippine Alien Property Administration was formally established having as head an
Administrator to be appointed by the President of the United States, and to this Administrator were
transferred the duties and functions of the Custodian with respect to enemy properties located in the
Philippines (Executive Orders Nos. 9789 and 9818). During the pendency of the present action, the
Philippine Alien Property Administration was in turn terminated effective June 29, 1951 by Executive
Order No. 10254 of the President of the United States, and the functions and duties of the Philippine
Alien Property Administrator were transferred to the Attorney General of the United States.
It was in the exercise of the powers vested in him by the Trading with the Enemy Act, of the
Philippine Property Act of 1946, and Executive Order No. 9818 that the Philippine Alien Property
Administrator vested in himself the properties in question to be held, administered, or otherwise dealt
with in the interest and for the benefit of the United States. Vesting Order No. P-394, which was
issued in vesting said properties, recites that, after proper investigation, the Administrator had found
that Carlos and Marie Dolores Teraoka were nationals of Japan and that the properties were owned
by said nationals.
It is now contended by the immediate effect of the vesting order, from the time the properties were
vested, title to them passed to the United States as "completely as if by conveyance, transfer or
assignment." (Commercial Trust Company vs. Miller, 262, U.S. 51, 57, 61 L. ed., 858, 861). Being
the owner, he contends-the Administrator may obtain possession of the properties vested, or "may
either seize said properties or proceed judicially to compel compliance with his demand for
possession." But, in the present case, he avers although the Administrator could have seized the
properties vested by him, under section 7 (c) of the Trading with the Enemy Act, he preferred to file
suit because "it was more orderly and decent to obtain possession by the aid of the court than to
seize them by violence and the strong hand." Hence, the administrator preferred to institute the
present action under section 3 of the Philippine Property Act 1946 the pertinent portion of which
reads:
. . . Provide further, that the court of first instance of the Republic of the Philippines are hereby given
jurisdiction to make and enter all such rules as to notice or otherwise, and all such orders and
decrees, and to issue such process as may be necessary and proper in the premises to enforce any
orders, rules, and regulations issued by the President of the United States, the Alien Property
Custodian, or such officer or agency designated by the President of the United States pursuant to
the Trading with the Enemy Act, as amended, with such right of appeal therefrom as may be
provided by law.
But, can the Philippine Alien Property Administrator now invoke the Philippine Property Act of 1946
to enforce his vesting order or to compel compliance with the demand for possession of the
properties vested, in spite of the proclamation of our independence on July 4, 1946? Does that act
have extraterritorial effect in the Philippines after Philippine independence? This is the issue now
posed by counsel for the defendants who contends that such an extension of authority cannot be
entertained as it would be in violation of our Constitution, especially section 2, article VIII, which
gives to the Supreme Court jurisdiction to review, revise, reverse, modify, or affirm on appeal final
judgments and decrees of interior courts in all cases involving the constitutionality or validity of any
treaty, law ordinance, executive order, or regulation. Counsel contends that, under this all-embracing
judicial power, that act cannot be given such effect in this jurisdiction that would deprive the
Supreme Court of its power to look into the validity of the vesting order issued by the plaintiff.

Fortunately, the issue posed by counsel is not new, as the same has already been passed upon by
this court in a similar case. Thus in the case of Herbert Brownell, Jr. vs. Sun Life Assurance
Company of Canada, supra, 228 this court held: "It is evident, therefore, that the consent of the
Philippine Government to the application of the Philippine Property Act of 1946 to the Philippines
after independence was given, not only by the Executive Department of the Philippine Government,
but also by the Congress, which enacted the laws that would implement or carry out the benefits
accruing from the operation of the United States law." And in another portion of the decision we also
said: "In the case at bar, our ratification of or concurrence to the agreement for the extension of the
Philippine Property Act of 1946 is clearly implied from the acts of the President of the Philippines and
of the Secretary of Foreign Affairs, as well as by the enactment of Republic Acts Nos. 7, 8, and 477."
It is therefore clear that the Philippine Alien Property Administrator can now invoke section 3 of the
Philippine Property Act of 1946 in order to secure the issuance of any peremptory order from any
court of first instance in this jurisdiction to enforce a vesting order to enable said Administrator to
obtain possession of the properties vested. But, again, the issue that arises is: Is the action taken by
the Administrator, by its nature, substance, and prayer, one that comes under said action section 3 of
the Philippine Property Act of 1946? If it is, then courts can only pass upon the identity of the
property and the question of possession but cannot look into the validity of the vesting order, nor
entertain any adverse claim which would require the determination of ownership of the property.
(Silesian American Corporation vs. Markham, 156 Fed. Supp., 793; In re Miller 281 Fed., 764, 773774; Miller vs. Kaliwerke Aschersleben Aktien-Gesselschaft, 253 Fed., 746, 752; Kahn vs. Garvan,
263 Fed., 909, 916; Garvan vs. Certain Shares of International A. Corp. 276 Fed., 206, 207; In re
Sutherland, 21 Fed. 2d 667, 669.) If otherwise, then the court can look into the ownership of the
property and make the corresponding adjudication. Of course, the vesting may be erroneous, or it
may cover property which does not belong to an alien enemy. If this case arises, then the remedy of
the interested party is to give notice of his claim to the Alien Property Custodian, and if no action is
taken thereon, to bring an action in the proper court under section 9 (a) of the Trading with the
Enemy Act, where the validity of the vesting order can be tested and the question of title adjudicated.
According to the plaintiff this case is the only course now open to the defendants in this case.
After a careful examination of the complaint filed in this case, we are inclined to uphold the
contention of counsel for the defendants to the effect that, "The present action is not one, and could
not be one, under section 3 of the Philippine Property Act of 1946 viewed from the standpoint of its
form, substance and prayer. The present action is clearly an action for petition of real estate, which
incidentally includes personal properties, under Rule 71 of the Rules of Court." This can be gleaned
from the nature both of the interest involved and the relief prayed for in the complaint. It should be
noted that the complaint prays for partition of the properties and not merely for delivery of their
possession. Apparently, this is an action contemplated in Rule 71 wherein the court, before
proceeding with the partition, has to pass upon the rights or the ownership of the parties interested in
the property (Section 2). In an action for partition the determination of ownership is indispensable to
make proper adjudication. In this particular case, this acquires added force considering that the titles
of the properties appear issued in the name of defendants, and the plaintiff contends that they
belong to enemy aliens. By filing this action of partition in the courta quo, the Philippine Alien
Property Administrator has submitted to its jurisdiction and put in issue the legality of his vesting
order. He cannot therefore now dispute this power. It is true that the complaint does not specifically
allege that the Administrator is invoking the authority of the court under section 3 of the Philippine
Property Act of 1946 and that the failure to make mention of that fact should no militate against the
stand of the Administrator. But while we agree with this contention, the fact however remains that the
very averments of the complaint show that the real purpose of the action is not the recovery of

possession but the partition of the properties. This makes this case come, as already said, under
Rule 71 of our Rules of Court.
We are, therefore, persuaded to conclude, and so hold, that the lower court did not err in passing
upon the nationality of Carlos and Marie Dolores Teraoka, or in determining the validity of the vesting
order issued by the Philippine Alien Property Administrator, wherefore we affirm the decision
appealed from, without pronouncement as to costs.
1wphl.nt

UNITED STATES V. SPELAR , 338 U.S. 217 (1949)

338 U.S. 217
UNITED STATES
v.
SPELAR.
No. 42.
Argued Oct. 18, 1949.
Decided Nov. 7, 1949.
Mr. Samuel D. Slade, Washington, D.C., for petitioner.
Mr. Arnold B. Elkind, New York City, for respondent. [ United States v. Spelar 338 U.S. 217 (1949) ] [338
U.S. 217 , 218]
Mr. Justice REED delivered the opinion of the Court.
The Federal Tort Claims Act is inapplicable by its terms to 'any claim arising in a foreign country.'1 The
Court of Appeals for the Second Circuit has held that this provision does not bar suit against the
Government for an allegedly wrongful death occurring at a Newfoundland air base under long-term lease
to the United States. 2We are hwer asked to review that decision.
Flight engineer Mark Spelar, an employee of American Overseas Airlines, was killed on October 3, 1946,
in a take-off crash at Harmon Field, Newfoundland. This airbase is one of the areas leased for ninety- nine
years by Great Britain to the United States pursuant to the same executive agreement and leases discussed
at length in Vermilya-Brown Co., Inc., v. Connell, 335 U.S. 377 . Spelar's administratrix, respondent here,
initiated this action against the United States under the Federal Tort Claims Act in the District Court of
the United States for the Eastern District of New York, the district where she resides. She alleges that the
fatal accident was caused by the Government's negligent operation of Harmon Field. The local law which
underlies her cause of action is Newfoundland's wrongful death statute authorizing the executor or
administrator to bring suit for death arising from negligence. 3 Upon the Government's motion, the

District Court held the claim to be one 'arising in a foreign [338 U.S. 217 , 219] country,' and dismissed
the complaint for want of jurisdiction. The Court of Appeals reversed. Our decision in Vermilya-Brown
that the Fair Labor Standards Act, 29 U.S.C.A. 201 et seq., applies to such leased military bases was
deemed 'persuasive, if not well-nigh conclusive' of the issue here. 4Because of this broad interpretation
put upon our opinion in Vermilya-Brown, and because the decision substantially affects the area of
private suit against the Government, we granted certiorari, 336 U.S. 950 .
We are of the opinion that the court below has erred. Sufficient basis for our conclusion lies in the express
words of the statute. We know of no more accurate phrase in common English usage than 'foreign
country' to denote territory subject to the sovereignty of another nation. 5 By the exclusion of 'claims
arising in a foreign country,' the coverage of the Federal Tort Claims Act was geared to the sovereignty of
the United States. We repeat what was said in Vermilya-Brown, 335 U.S. at page 380, 69 S.Ct. page 142.
'The arrangements under which the leased bases were acquired from Great Britain did not and were not
intended to transfer sovereignty over the leased areas from Great Britain to the United States.' Harmon
Field, where this claim 'arose,' remained subject to the sovereignty of Great Britain and lay within a
'foreign country.' The claim must be barred.
If the words of the statute were not enough, however, to sustain our result, we think the legislative history
behind this provision concludes all doubt. The Federal Tort Claims Act of 1946 was the product of some
twenty-eight years of congressional drafting and redrafting, [338 U.S. 217 , 220] amendment and
counter-amendment. 6 The draft being considered in 1942 by the House Committee on the Judiciary
exempted all claims 'arising in a foreign country in behalf of an alien.'7 At the suggestion of the Attorney
General, the last five words were excised in a revised version of the bill, 8 so that the exemption provision
assumed the form which was ultimately enacted into law. 9 The superseded draft had made the waiver of
the Government's traditional immunity turn upon the fortuitous circumstance of the injured party's
citizenship. The [338 U.S. 217 , 221] amended version identified the coverage of the Act with the scope of
United States sovereignty. The record of the Hearings tells us why. We quote the pertinent colloquy
between Assistant Attorney General Francis M. Shea, who explained the Attorney General's revised
version of the bill to the House Committee on the Judiciary, and Congressman Robsion of that committee.
'Mr. Shea. * * * Claims arising in a foreign country have been exempted from this bill, H.R. 6463, whether
or not the claimant is an alien. Since liability is to be determined by the law of the situs of the wrongful act
or omission it is wise to restrict the bill to claims arising in this country. This seems desirable because the
law of the particular State is being applied. Otherwise, it will lead I think to a good deal of difficulty.
'Mr. Robsion. You mean by that any representative of the United States who committed a tort in England
or some other country could not be reached under this?
'Mr. Shea. That is right. That would have to come to the Committee on Claims in Congress.'10
In brief, though Congress was ready to lay aside a great portion of the sovereign's ancient and
unquestioned immunity from suit, it was unwilling to subject the United States to liabilities depending
upon the laws of a foreign power. The legislative will must be respected. The present suit, premised

entirely upon Newfoundland's law, may not be asserted against the United States in contravention of that
will.
To the extent that Vermilya-Brown Co., Inc., v. Connell has any application to the case at bar, it stands as
authority for our result here, for it postulates that the executive agreement and leases effected no transfer
of sovereignty [338 U.S. 217 , 222] with respect to the military bases concerned. 11 For the rest, we there
held no more than that the word 'possessions' does not necessarily imply sovereignty, and concluded as a
matter of interpretation of the legislative history of the Fair Labor Standards Act that the leased bases, not
in existence at the time the Act was passed, were to be included as 'possessions' in the sense in which that
word was used in that statute. The statutory language and the legislative record relating to the ambit of
the Federal Tort Claims Act differ entirely from those pertinent to the Fair Labor Standards Act; and since
the bases had been leased to the United States prior to the enactment of the statute here involved, the
Vermilya-Brown problem of determining what Congress would have done when faced with a new
situation does not exist at all in the present case.
In Foley Bros. v. Filardo,12 we had occasion to refer to the 'canon of construction which teaches that
legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial
jurisdiction of the United States * * * .' That presumption, far from being overcome here, is doubly
fortified by the language of this statute and the legislative purpose underlying it.
The decision must be reversed.
Reversed.

U.S. Supreme Court

UNITED STATES v. VERDUGO-URQUIDEZ, 494 U.S. 259 (1990)
494 U.S. 259
UNITED STATES v. VERDUGO-URQUIDEZ
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 88-1353.
Argued November 7, 1989
Decided February 28, 1990
After the Government obtained an arrest warrant for respondent - a Mexican citizen and resident believed
to be a leader of an organization that smuggles narcotics into this country - he was apprehended by
Mexican police and transported here, where he was arrested. Following his arrest, Drug Enforcement
Administration (DEA) agents, working with Mexican officials, searched his Mexican residences and seized

certain documents. The District Court granted his motion to suppress the evidence, concluding that the
Fourth Amendment - which protects "the people" against unreasonable searches and seizures - applied to
the searches, and that the DEA agents had failed to justify searching the premises without a warrant. The
Court of Appeals affirmed. Citing Reid v. Covert, 354 U.S. 1 - which held that American citizens tried
abroad by United States military officials were entitled to Fifth and Sixth Amendment protections - the
court concluded that the Constitution imposes substantive constraints on the Federal Government, even
when it operates abroad. Relying on INS v. Lopez-Mendoza, 468 U.S. 1032 - where a majority assumed
that illegal aliens in the United States have Fourth Amendment rights - the court observed that it would be
odd to acknowledge that respondent was entitled to trial-related rights guaranteed by the Fifth and Sixth
Amendments, but not to Fourth Amendment protection.
Held:
The Fourth Amendment does not apply to the search and seizure by United States agents of property
owned by a nonresident alien and located in a foreign country. Pp. 264-275.
(a) If there were a constitutional violation in this case, it occurred solely in Mexico, since a Fourth
Amendment violation is fully accomplished at the time of an unreasonable governmental intrusion
whether or not the evidence seized is sought for use in a criminal trial. Thus, the Fourth Amendment
functions differently from the Fifth Amendment, whose privilege against self-incrimination is a
fundamental trial right of criminal defendants. P. 264.
(b) The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the
Constitution and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth
Amendments regulating criminal procedures. This suggests that "the people" [494 U.S. 259, 260] refers
to a class of persons who are part of a national community or who have otherwise developed sufficient
connection with this country to be considered part of that community. Pp. 264-266.
(c) The Fourth Amendment's drafting history shows that its purpose was to protect the people of the
United States against arbitrary action by their own Government and not to restrain the Federal
Government's actions against aliens outside United States territory. Nor is there any indication that the
Amendment was understood by the Framers' contemporaries to apply to United States activities directed
against aliens in foreign territory or in international waters. Pp. 266-268.
(d) The view that every constitutional provision applies wherever the Government exercises its power is
contrary to this Court's decisions in the Insular Cases, which held that not all constitutional provisions
apply to governmental activity even in territories where the United States has sovereign power. See, e. g.,
Balzac v. Porto Rico, 258 U.S. 298 . Indeed, the claim that extraterritorial aliens are entitled to rights
under the Fifth Amendment - which speaks in the relatively universal term of "person" - has been
emphatically rejected. Johnson v. Eisentrager, 339 U.S. 763, 784 . Pp. 268-269.
(e) Respondent's reliance on Reid, supra, is misplaced, since that case stands only for the proposition that
United States citizens stationed abroad could invoke the protection of the Fifth and Sixth Amendments.
Similarly, those cases in which aliens have been determined to enjoy certain constitutional rights establish
only that aliens receive such protections when they have come within the territory of, and have developed

substantial connections with, this country. See, e. g., Plyler v. Doe, 457 U.S. 202, 212 . Respondent,
however, is an alien with no previous significant voluntary connection with the United States, and his
legal but involuntary presence here does not indicate any substantial connection with this country. The
Court of Appeals' reliance on INS v. Lopez-Mendoza, supra, is also misplaced, since that case assumed
that, but did not expressly address the question whether, the Fourth Amendment applies to illegal aliens
in the United States. Even assuming such aliens - who are in this country voluntarily and presumably have
accepted some societal obligations - would be entitled to Fourth Amendment protections, their situation
differs from that of respondent, who had no voluntary connection with this country that might place him
among "the people." This Court's decisions expressly according differing protection to aliens than to
citizens also undermine respondent's claim that treating aliens differently under the Fourth Amendment
violates the equal protection component of the Fifth Amendment. Pp. 269-273.
(f) The Court of Appeals' rule would have significant and deleterious consequences for the United States
in conducting activities beyond its [494 U.S. 259, 261] borders. The rule would apply not only to law
enforcement operations abroad, but also to other foreign operations - such as Armed Forces actions which might result in "searches and seizures." Under the rule, aliens with no attachment to this country
might bring actions for damages to remedy claimed violations of the Fourth Amendment in foreign
countries or in international waters, and Members of the Executive and Legislative Branches would be
plunged into a sea of uncertainty as to what might be reasonable in the way of searches and seizures
conducted abroad. Any restrictions on searches and seizures incident to American action abroad must be
imposed by the political branches through diplomatic understanding, treaty, or legislation. Pp. 273-275.
856 F.2d 1214, reversed.
REHNQUIST, C. J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and
KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 275. STEVENS, J., filed an
opinion concurring in the judgment, post, p. 279. BRENNAN, J., filed a dissenting opinion, in which
MARSHALL, J., joined, post, p. 279. BLACKMUN, J., filed a dissenting opinion, post, p. 297.
Lawrence S. Robbins argued the cause for the United States. With him on the briefs were Solicitor General
Starr, Assistant Attorney General Dennis, and Deputy Solicitor General Bryson.
Michael Pancer argued the cause for respondent. With him on the brief were Charles L. Goldberg and
Patrick Q. Hall. *
[ Footnote * ] Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae
urging reversal.
John A. Powell, Paul L. Hoffman, and David D. Cole filed a brief for the American Civil Liberties Union et
al. as amici curiae urging affirmance.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

The question presented by this case is whether the Fourth Amendment applies to the search and seizure
by United States agents of property that is owned by a nonresident alien and located in a foreign country.
We hold that it does not. [494 U.S. 259, 262]
Respondent Rene Martin Verdugo-Urquidez is a citizen and resident of Mexico. He is believed by the
United States Drug Enforcement Agency (DEA) to be one of the leaders of a large and violent organization
in Mexico that smuggles narcotics into the United States. Based on a complaint charging respondent with
various narcotics-related offenses, the Government obtained a warrant for his arrest on August 3, 1985. In
January 1986, Mexican police officers, after discussions with United States marshals, apprehended
Verdugo-Urquidez in Mexico and transported him to the United States Border Patrol station in Calexico,
California. There, United States marshals arrested respondent and eventually moved him to a correctional
center in San Diego, California, where he remains incarcerated pending trial.
Following respondent's arrest, Terry Bowen, a DEA agent assigned to the Calexico DEA office, decided to
arrange for searches of Verdugo-Urquidez's Mexican residences located in Mexicali and San Felipe.
Bowen believed that the searches would reveal evidence related to respondent's alleged narcotics
trafficking activities and his involvement in the kidnaping and torture-murder of DEA Special Agent
Enrique Camarena Salazar (for which respondent subsequently has been convicted in a separate
prosecution. See United States v. Verdugo-Urquidez, No. CR-87-422-ER (CD Cal., Nov. 22, 1988)). Bowen
telephoned Walter White, the Assistant Special Agent in charge of the DEA office in Mexico City, and
asked him to seek authorization for the search from the Director General of the Mexican Federal Judicial
Police (MFJP). After several attempts to reach high ranking Mexican officials, White eventually contacted
the Director General, who authorized the searches and promised the cooperation of Mexican authorities.
Thereafter, DEA agents working in concert with officers of the MFJP searched respondent's properties in
Mexicali and San Felipe and seized certain documents. In particular, the search of the Mexicali residence
uncovered a tally sheet, which the Government [494 U.S. 259, 263] believes reflects the quantities of
marijuana smuggled by Verdugo-Urquidez into the United States.
The District Court granted respondent's motion to suppress evidence seized during the searches,
concluding that the Fourth Amendment applied to the searches and that the DEA agents had failed to
justify searching respondent's premises without a warrant. A divided panel of the Court of Appeals for the
Ninth Circuit affirmed. 856 F.2d 1214 (1988). It cited this Court's decision in Reid v. Covert, 354 U.S.
1 (1957), which held that American citizens tried by United States military authorities in a foreign country
were entitled to the protections of the Fifth and Sixth Amendments, and concluded that "[t]he
Constitution imposes substantive constraints on the federal government, even when it operates abroad."
856 F.2d, at 1218. Relying on our decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), where a
majority of Justices assumed that illegal aliens in the United States have Fourth Amendment rights, the
Ninth Circuit majority found it "difficult to conclude that Verdugo-Urquidez lacks these same
protections." 856 F.2d, at 1223. It also observed that persons in respondent's position enjoy certain trialrelated rights, and reasoned that "[i]t would be odd indeed to acknowledge that Verdugo-Urquidez is
entitled to due process under the fifth amendment, and to a fair trial under the sixth amendment, . . . and
deny him the protection from unreasonable searches and seizures afforded under the fourth amendment."
Id., at 1224. Having concluded that the Fourth Amendment applied to the searches of respondent's

properties, the court went on to decide that the searches violated the Constitution because the DEA agents
failed to procure a search warrant. Although recognizing that "an American search warrant would be of no
legal validity in Mexico," the majority deemed it sufficient that a warrant would have "substantial
constitutional value in this country." because it would reflect a magistrate's determination [494 U.S. 259,
264] that there existed probable cause to search and would define the scope of the search. Id., at 1230.
The dissenting judge argued that this Court's statement in United States v. Curtiss-Wright Export
Corp., 299 U.S. 304, 318 (1936), that "[n]either the Constitution nor the laws passed in pursuance of it
have any force in foreign territory unless in respect of our own citizens," foreclosed any claim by
respondent to Fourth Amendment rights. More broadly, he viewed the Constitution as a "compact" among
the people of the United States, and the protections of the Fourth Amendment were expressly limited to
"the people." We granted certiorari, 490 U.S. 1019 (1989).
Before analyzing the scope of the Fourth Amendment, we think it significant to note that it operates in a
different manner than the Fifth Amendment, which is not at issue in this case. The privilege against selfincrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. See
Malloy v. Hogan, 378 U.S. 1 (1964). Although conduct by law enforcement officials prior to trial may
ultimately impair that right, a constitutional violation occurs only at trial. Kastigar v. United States, 406
U.S. 441, 453(1972). The Fourth Amendment functions differently. It prohibits "unreasonable searches
and seizures" whether or not the evidence is sought to be used in a criminal trial, and a violation of the
Amendment is "fully accomplished" at the time of an unreasonable governmental intrusion. United States
v. Calandra, 414 U.S. 338, 354 (1974); United States v. Leon, 468 U.S. 897, 906 (1984). For purposes of
this case, therefore, if there were a constitutional violation, it occurred solely in Mexico. Whether evidence
obtained from respondent's Mexican residences should be excluded at trial in the United States is a
remedial question separate from the existence vel non of the constitutional violation. Calandra, supra, at
354; Leon, supra, at 906.
The Fourth Amendment provides: [494 U.S. 259, 265]
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized."
That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people."
Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an]
awkward rhetorical redundancy," Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4,
"the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble
declares that the Constitution is ordained and established by "the people of the United States." The
Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth
Amendments provide that certain rights and powers are retained by and reserved to "the people." See also
U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to
assemble") (emphasis added); Art. I, 2, cl. 1 ("The House of Representatives shall be composed of
Members chosen every second Year by the people of the several States") (emphasis added). While this
textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth
Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in

the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or
who have otherwise developed sufficient connection with this country to be considered part of that
community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (Excludable alien is not
entitled to First Amendment rights, because "[h]e does not become one of the people to whom these
things are secured by our Constitution by an attempt to enter forbidden by law"). The language of these
Amendments contrasts with the words [494 U.S. 259, 266] "person" and "accused" used in the Fifth and
Sixth Amendments regulating procedure in criminal cases.
What we know of the history of the drafting of the Fourth Amendment also suggests that its purpose was
to restrict searches and seizures which might be conducted by the United States in domestic matters. The
Framers originally decided not to include a provision like the Fourth Amendment, because they believed
the National Government lacked power to conduct searches and seizures. See C. Warren, The Making of
the Constitution 508-509 (1928); The Federalist No. 84, p. 513 (C. Rossiter ed. 1961) (A. Hamilton); 1
Annals of Cong. 437 (1789) (statement of J. Madison). Many disputed the original view that the Federal
Government possessed only narrow delegated powers over domestic affairs, however, and ultimately felt
an Amendment prohibiting unreasonable searches and seizures was necessary. Madison, for example,
argued that "there is a clause granting to Congress the power to make all laws which shall be necessary
and proper for carrying into execution all of the powers vested in the Government of the United States,"
and that general warrants might be considered "necessary" for the purpose of collecting revenue. Id., at
438. The driving force behind the adoption of the Amendment, as suggested by Madison's advocacy, was
widespread hostility among the former colonists to the issuance of writs of assistance empowering
revenue officers to search suspected places for smuggled goods, and general search warrants permitting
the search of private houses, often to uncover papers that might be used to convict persons of libel. See
Boyd v. United States, 116 U.S. 616, 625 -626 (1886). The available historical data show, therefore, that
the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary
action by their own Government; it was never suggested that the provision was intended to restrain the
actions of the Federal Government against aliens outside of the United States territory.[494 U.S. 259,
267]
There is likewise no indication that the Fourth Amendment was understood by contemporaries of the
Framers to apply to activities of the United States directed against aliens in foreign territory or in
international waters. Only seven years after the ratification of the Amendment, French interference with
American commercial vessels engaged in neutral trade triggered what came to be known as the
"undeclared war" with France. In an Act to "protect the Commerce of the United States" in 1798, Congress
authorized President Adams to "instruct the commanders of the public armed vessels which are, or which
shall be employed in the service of the United States, to subdue, seize and take any armed French vessel,
which shall be found within the jurisdictional limits of the United States, or elsewhere, on the high seas." 1
of An Act Further to Protect the Commerce of the United States, ch. 68, 1 Stat. 578. This public naval force
consisted of only 45 vessels, so Congress also gave the President power to grant to the owners of private
armed ships and vessels of the United States "special commissions," which would allow them "the same
license and authority for the subduing, seizing and capturing any armed French vessel, and for the
recapture of the vessels, goods and effects of the people of the United States, as the public armed vessels
of the United States may by law have." 2, 1 Stat. 579; see U.S. Const., Art. I, 8, cl. 11 (Congress has power
to grant letters of marque and reprisal). Under the latter provision, 365 private armed vessels were

commissioned before March 1, 1799, see G. Allen, Our Naval War with France 59 (1967); together, these
enactments resulted in scores of seizures of foreign vessels under congressional authority. See M. Palmer,
Stoddert's War: Naval Operations During the Quasi-War with France, 1798-1801, p. 235 (1987). See also
An Act Further to Suspend the Commercial Intercourse Between the United States and France, ch. 2, 1
Stat. 613. Some commanders were held liable by this Court for unlawful seizures because their actions
were beyond the scope of the congressional [494 U.S. 259, 268] grant of authority, see, e. g., Little v.
Barreme, 2 Cranch 170, 177-178 (1804); cf. Talbot v. Seeman, 1 Cranch 1, 31 (1801) (seizure of neutral ship
lawful where American captain had probable cause to believe vessel was French), but it was never
suggested that the Fourth Amendment restrained the authority of Congress or of United States agents to
conduct operations such as this.
The global view taken by the Court of Appeals of the application of the Constitution is also contrary to this
Court's decisions in the Insular Cases, which held that not every constitutional provision applies to
governmental activity even where the United States has sovereign power. See, e. g., Balzac v. Porto
Rico, 258 U.S. 298 (1922) (Sixth Amendment right to jury trial inapplicable in Puerto Rico); Ocampo v.
United States, 234 U.S. 91 (1914) (Fifth Amendment grand jury provision inapplicable in Philippines);
Dorr v. United States, 195 U.S. 138 (1904) (jury trial provision inapplicable in Philippines); Hawaii v.
Mankichi, 190 U.S. 197 (1903) (provisions on indictment by grand jury and jury trial inapplicable in
Hawaii); Downes v. Bidwell, 182 U.S. 244(1901) (Revenue Clauses of Constitution inapplicable to Puerto
Rico). In Dorr, we declared the general rule that in an unincorporated territory - one not clearly destined
for statehood - Congress was not required to adopt "a system of laws which shall include the right of trial
by jury, and that the Constitution does not, without legislation and of its own force, carry such right to
territory so situated." 195 U.S., at 149 (emphasis added). Only "fundamental" constitutional rights are
guaranteed to inhabitants of those territories. Id., at 148; Balzac, supra, at 312-313; see Examining Board
of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 599 , n. 30 (1976). If that is true
with respect to territories ultimately governed by Congress, respondent's claim that the protections of the
Fourth Amendment extend to aliens in foreign nations is even weaker. And certainly, it is not open to us
in light of the Insular Cases to endorse the [494 U.S. 259, 269] view that every constitutional provision
applies wherever the United States Government exercises its power.
Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the
sovereign territory of the United States. In Johnson v. Eisentrager, 339 U.S. 763 (1950), the Court held
that enemy aliens arrested in China and imprisoned in Germany after World War II could not obtain writs
of habeas corpus in our federal courts on the ground that their convictions for war crimes had violated the
Fifth Amendment and other constitutional provisions. The Eisentrager opinion acknowledged that in
some cases constitutional provisions extend beyond the citizenry; "[t]he alien . . . has been accorded a
generous and ascending scale of rights as he increases his identity with our society." Id., at 770. But our
rejection of extraterritorial application of the Fifth Amendment was emphatic:
"Such extraterritorial application of organic law would have been so significant an innovation in the
practice of governments that, if intended or apprehended, it could scarcely have failed to excite
contemporary comment. Not one word can be cited. No decision of this Court supports such a view. Cf.

Downes v. Bidwell, 182 U.S. 244[(1901)]. None of the learned commentators on our Constitution has even
hinted at it. The practice of every modern government is opposed to it." Id., at 784.
If such is true of the Fifth Amendment, which speaks in the relatively universal term of "person," it would
seem even more true with respect to the Fourth Amendment, which applies only to "the people."
To support his all-encompassing view of the Fourth Amendment, respondent points to language from the
plurality opinion in Reid v. Covert, 354 U.S. 1 (1957). Reid involved an attempt by Congress to subject the
wives of American servicemen to trial by military tribunals without the protection of the Fifth and Sixth
Amendments. The Court held that it was unconstitutional to apply the Uniform Code of Military [494 U.S.
259, 270] Justice to the trials of the American women for capital crimes. Four Justices "reject[ed] the
idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights." Id., at
5 (emphasis added). The plurality went on to say:
"The United States is entirely a creature of the Constitution. Its power and authority have no other source.
It can only act in accordance with all the limitations imposed by the Constitution. When the Government
reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the
Constitution provide to protect his life and liberty should not be stripped away just because he happens to
be in another land." Id., at 5-6 (emphasis added; footnote omitted).
Respondent urges that we interpret this discussion to mean that federal officials are constrained by the
Fourth Amendment wherever and against whomever they act. But the holding of Reid stands for no such
sweeping proposition: it decided that United States citizens stationed abroad could invoke the protection
of the Fifth and Sixth Amendments. The concurrences by Justices Frankfurter and Harlan in Reid
resolved the case on much narrower grounds than the plurality and declined even to hold that United
States citizens were entitled to the full range of constitutional protections in all overseas criminal
prosecutions. See id., at 75 (Harlan, J., concurring in result) ("I agree with my brother FRANKFURTER
that . . . we have before us a question analogous, ultimately, to issues of due process; one can say, in fact,
that the question of which specific safeguards of the Constitution are appropriately to be applied in a
particular context overseas can be reduced to the issue of what process is `due' a defendant in the
particular circumstances of a particular case"). Since respondent is not a United States citizen, he can
derive no comfort from the Reid holding.
Verdugo-Urquidez also relies on a series of cases in which we have held that aliens enjoy certain
constitutional rights. [494 U.S. 259, 271] See, e. g., Plyler v. Doe, 457 U.S. 202, 211 -212 (1982) (illegal
aliens protected by Equal Protection Clause); Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953)
(resident alien is a "person" within the meaning of the Fifth Amendment); Bridges v. Wixon, 326 U.S. 135,
148 (1945) (resident aliens have First Amendment rights); Russian Volunteer Fleet v. United States, 282
U.S. 481 (1931) (Just Compensation Clause of Fifth Amendment); Wong Wing v. United States, 163 U.S.
228, 238 (1896) (resident aliens entitled to Fifth and Sixth Amendment rights); Yick Wo v. Hopkins, 118
U.S. 356, 369 (1886) (Fourteenth Amendment protects resident aliens). These cases, however, establish
only that aliens receive constitutional protections when they have come within the territory of the United
States and developed substantial connections with this country. See, e. g., Plyler, supra, at 212 (The
provisions of the Fourteenth Amendment "`are universal in their application, to all persons within the
territorial jurisdiction . . .'") (quoting Yick Wo, supra, at 369); Kwong Hai Chew, supra, at 596, n. 5("The
Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But

once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed
by the Constitution to all people within our borders") (quoting Bridges, supra, at 161 (concurring opinion)
(emphasis added)). Respondent is an alien who has had no previous significant voluntary connection with
the United States, so these cases avail him not.
JUSTICE STEVENS' concurrence in the judgment takes the view that even though the search took place in
Mexico, it is nonetheless governed by the requirements of the Fourth Amendment because respondent
was "lawfully present in the United States . . . even though he was brought and held here against his will."
Post, at 279. But this sort of presence - lawful but involuntary - is not of the sort to indicate any
substantial connection with our country. The extent to which respondent might claim the protection of the
Fourth Amendment [494 U.S. 259, 272] if the duration of his stay in the United States were to be
prolonged - by a prison sentence, for example - we need not decide. When the search of his house in
Mexico took place, he had been present in the United States for only a matter of days. We do not think the
applicability of the Fourth Amendment to the search of premises in Mexico should turn on the fortuitous
circumstance of whether the custodian of its nonresident alien owner had or had not transported him to
the United States at the time the search was made.
The Court of Appeals found some support for its holding in our decision in INS v. Lopez-Mendoza, 468
U.S. 1032 (1984), where a majority of Justices assumed that the Fourth Amendment applied to illegal
aliens in the United States. We cannot fault the Court of Appeals for placing some reliance on the case, but
our decision did not expressly address the proposition gleaned by the court below. The question presented
for decision in Lopez-Mendoza was limited to whether the Fourth Amendment's exclusionary rule should
be extended to civil deportation proceedings; it did not encompass whether the protections of the Fourth
Amendment extend to illegal aliens in this country. The Court often grants certiorari to decide particular
legal issues while assuming without deciding the validity of antecedent propositions, compare, e. g.,
Maine v. Thiboutot, 448 U.S. 1 (1980) (assuming State is a "person" within the meaning of 42 U.S.C.
1983), with Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989) (State is not a "person"), and such
assumptions - even on jurisdictional issues - are not binding in future cases that directly raise the
questions. Id., at 63, n. 4; Hagans v. Lavine, 415 U.S. 528, 535, n. 5 (1974). Our statements in LopezMendoza are therefore not dispositive of how the Court would rule on a Fourth Amendment claim by
illegal aliens in the United States if such a claim were squarely before us. Even assuming such aliens
would be entitled to Fourth Amendment protections, their situation is [494 U.S. 259, 273] different from
respondent's. The illegal aliens in Lopez-Mendoza were in the United States voluntarily and presumably
had accepted some societal obligations; but respondent had no voluntary connection with this country
that might place him among "the people" of the United States.
Respondent also contends that to treat aliens differently from citizens with respect to the Fourth
Amendment somehow violates the equal protection component of the Fifth Amendment to the United
States Constitution. He relies on Graham v. Richardson, 403 U.S. 365 (1971), and Foley v. Connelie, 435
U.S. 291 (1978), for this proposition. But the very cases previously cited with respect to the protection
extended by the Constitution to aliens undermine this claim. They are constitutional decisions of this
Court expressly according differing protection to aliens than to citizens, based on our conclusion that the
particular provisions in question were not intended to extend to aliens in the same degree as to citizens.

Cf. Mathews v. Diaz, 426 U.S. 67, 79 -80 (1976) ("In the exercise of its broad power over naturalization
and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens").
Not only are history and case law against respondent, but as pointed out in Johnson v. Eisentrager, 393
U.S. 763 (1950), the result of accepting his claim would have significant and deleterious consequences for
the United States in conducting activities beyond its boundaries. The rule adopted by the Court of Appeals
would apply not only to law enforcement operations abroad, but also to other foreign policy operations
which might result in "searches or seizures." The United States frequently employs Armed Forces outside
this country - over 200 times in our history - for the protection of American citizens or national security.
Congressional Research Service, Instances of Use of United States Armed Forces Abroad, 1798-1989 (E.
Collier ed. 1989). Application of the Fourth Amendment to those circumstances could significantly disrupt
the ability of the political [494 U.S. 259, 274] branches to respond to foreign situations involving our
national interest. Were respondent to prevail, aliens with no attachment to this country might well bring
actions for damages to remedy claimed violations of the Fourth Amendment in foreign countries or in
international waters. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971); cf.
Tennessee v. Garner, 471 U.S. 1 (1985); Graham v. Connor,490 U.S. 386 (1989). Perhaps a Bivens action
might be unavailable in some or all of these situations due to "`special factors counselling hesitation,'" see
Chappell v. Wallace, 462 U.S. 296, 298 (1983) (quoting Bivens, supra, at 396), but the Government would
still be faced with case-by-case adjudications concerning the availability of such an action. And even were
Bivens deemed wholly inapplicable in cases of foreign activity, that would not obviate the problems
attending the application of the Fourth Amendment abroad to aliens. The Members of the Executive and
Legislative Branches are sworn to uphold the Constitution, and they presumably desire to follow its
commands. But the Court of Appeals' global view of its applicability would plunge them into a sea of
uncertainty as to what might be reasonable in the way of searches and seizures conducted abroad. Indeed,
the Court of Appeals held that absent exigent circumstances, United States agents could not effect a
"search or seizure" for law enforcement purposes in a foreign country without first obtaining a warrant which would be a dead letter outside the United States - from a magistrate in this country. Even if no
warrant were required, American agents would have to articulate specific facts giving them probable cause
to undertake a search or seizure if they wished to comply with the Fourth Amendment as conceived by the
Court of Appeals.
We think that the text of the Fourth Amendment, its history, and our cases discussing the application of
the Constitution to aliens and extraterritorially require rejection of respondent's claim. At the time of the
search, he was a citizen and resident of Mexico with no voluntary attachment to the [494 U.S. 259,
275] United States, and the place searched was located in Mexico. Under these circumstances, the Fourth
Amendment has no application.
For better or for worse, we live in a world of nation-states in which our Government must be able to
"functio[n] effectively in the company of sovereign nations." Perez v. Brownell, 356 U.S. 44, 57 (1958).
Some who violate our laws may live outside our borders under a regime quite different from that which
obtains in this country. Situations threatening to important American interests may arise halfway around
the globe, situations which in the view of the political branches of our Government require an American
response with armed force. If there are to be restrictions on searches and seizures which occur incident to

such American action, they must be imposed by the political branches through diplomatic understanding,
treaty, or legislation.
The judgment of the Court of Appeals is accordingly
Reversed.