Bar Q and A #3

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YES, the Embassy can invoke immunity from suit. Section 10 of the Maintenance Agreement is not necessarily a waiver of sovereign immunity from suit. It was meant to apply in case the Republic of Kafiristan elects to sue in the local courts or waives its immunity by a subsequent act. The establishment of a diplomatic mission is a sovereign function. This encompasses its maintenance and upkeep. The Maintenance Agreement was in pursuit of a sovereign activity. (Republic of the Indonesia v. Vinzon, G.R. No. 154705, June 26, 2003, 405 SCRA 126)

NO, he is not subject to arrest by Philippines authorities. Under the Vienna Convention on Diplomatic Relations (VCDR), a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. As a consequence, Article 29 of the Vienna Convention on Diplomatic Relations provides: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.

a.) NO. The action by the group of importers will not prosper. The primary function of the Bureau of Customs is governmental, that of assessing and collecting lawful revenues from imported articles and all other tariff and customs duties, fees, charges, fines and penalties. (Mobil Philippines Exploration, Inc. v. Customs Arrastre Service, 18 SCRA 120)

b.) NO. XYZ Corporation cannot sue the Bureau of Customs to collect rentals for the delivered cranes. The contract was a necessary incident to the performance of its governmental function. To properly collect the revenues and customs duties, the Bureau of Customs must check to determine if the declaration of the importers tallies with the landed merchandise. The cranes are needed to haul the landed merchandise to a suitable place for inspection. (Mobil Philippines  Exploration  v. Customs Arrastre Service, supra)

Public officials may be sued if they acted oppressively or illegally in the performance of their duties.  A  suit against a  public officer who acted illegally is not a suit against the state. (Aberca v. Ver, G.R. No. 69866, April 15, 1988, 160 SCRA 590)

A public official may be compelled to act through a writ of mandamus. The main objective of mandamus is to compel the performance of a ministerial duty on the part of the respondent official; however, the writ does not issue to control or review the exercise of discretion or to compel a course of conduct. The writ of prohibition can also be availed of, as it is an extraordinary writ which can be directed against a public officer ordering said officer to desist from further proceedings when said proceedings are without or in excess of said officer’s jurisdiction, or are accompanied with grave abuse of discretion. (Rule 65, Revised Rules of Court)

Lastly, a public officer is by law not immune from damages in his/her personal capacity for acts done in bad faith which, being outside the scope of his authority, are no longer protected by the mantle of immunity for official actions. (Vinzons-Chuto v. Fortune Tobacco Corp., G.R. No. 141309, June 19, 2007, 525 SCRA 11)

A government-owned or controlled corporation may be sued. A suit against it is not a suit against the State, because it has a separate juridical personality. (Social Security Systems v. Court of Appeals, GR. No. L- 41299, February 21, 1983, 120 SORA 707)

The motion of the Republic should be granted. There appears to be no consent on the part of the State to be sued.

In Section 3, Article XVI of the Constitution it is provided that: “The State shall not be sued without its consent.”

That no consent was given by the Republic is shown by the fact that the Bureau or the Government did seem to have complied with the demands of the deed of donation. Compliance with the state immunity is essential for two reasons:

  1. It is required as a provision of the Constitution; and

  2. Immunity is an essential element of state sovereignty.

According to Tanada v. Angara, the sovereignty of the Philippines is subject to restriction by its membership in the family of nations and the limitations imposed of treaty limitations. Section 2, Article II of the Constitution adopts the generally accepted principles of international law as part of the law of the land. One of such principles is pacta sunt servanda. The Constitution did not envision a hermit-like isolation of the country from the rest of the world.

I will rule in favor of the concerned citizens. Section 25, Article XVII of the Constitution prohibits in the absence of a treaty the stationing of troops and facilities of foreign countries in the Philippines. The Supreme Court has already ruled that the provision in Article XVIII, Section 25 of the Constitution requires a treaty even for the mere temporary presence of foreign troops in the Philippines. (Bayan  v.  Zamora, G.R. No. 138570, October 10, 2000, 342 SCRA 499)

Senator Maagap is partly correct. The Executive Agreement allowing the Republic of Kroi Sha to establish its embassy and consular offices within Metro Manila is valid without the need of submitting it to the Senate for ratification as differed from a treaty. However, the second Executive Agreement which allows the Republic of Kroi Sha to bring to the Philippines its military complement, warships, and armaments for a certain period is subject to the provisions of Section 25 of Article XVIII of the Constitution, which provides that “foreign bases, troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the of the contracting state.” Under the same provision, a treaty duly concurred in by the Senate is required even for the temporary presence of foreign troops.

a.) NO, the curfew ordinance does not violate the primary right and duty of parents to rear their children. The principle of parens patriae states that the State has the duty of protecting the rights of persons or individual who because of age or incapacity are in an unfavorable position. Thus, while parents have the primary role in child-rearing, it should be stressed that when actions concerning the child have a relation to the public welfare or the well-being of the child, the State may act to promote these legitimate interests in the exercise of its police power. (SPARK v. Quezon City, G.R. No. 225442, August 08, 2017)

b.) YES, the curfew infringes on the minors’ fundamental rights. The court in SPARK v Quezon City observed that the two ordinances are not narrowly drawn because the exceptions mentioned in the ordinances are inadequate insofar as it does not provide an exception for the right to association, free exercise of religion, rights to peaceably assemble, and of free expression among others. Thus, it can run the risk of overly restricting minors’ fundamental freedoms. (SPARK v. Quezon City, G.R. No. 225442, August 08, 2017)