Diplomatic Immunity and Territoriality Principle

A few months ago, our PIL professor asked us to review the 2014 Political Law bar exam questions and answer those which fall under the purview of Public International Law course.  Below is what I came up with.  If you have any feedback or opinion as to the accuracy and the way I answered the questions, please feel free to comment on the post.  After all, criticism can be a great teacher.


Ambassador Gaylor is State Juvenus’ diplomatic representative to State Hinterlands. During one of his vacations, Ambassador Gaylor decided to experience for himself the sights and sounds of State Paradise, a country known for its beauty and other attractions. While in State Paradise, Ambassador Gaylor was caught in the company of children under suspicious circumstances. He was arrested for violation of the strict anti-pedophilia statute of State Paradise. He claims that he is immune from arrest and incarceration by virtue of his diplomatic immunity. Does the claim of Ambassador Gaylor hold water? (4%)

No, Ambassador Gaylor does not hold any merit in the case.

While it is true that according to the Diplomatic Convention, a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state, it is subject to the following exceptions: a) a real action relating to private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the sending state for the purposes of the mission; b) an action relating to succession in which the diplomatic agent is involved as an executor, administrator, heir, or legatee as a private person and not on behalf of the sending state; c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions.

The third exception applies in the case. When Ambassador Gaylor was caught, he was not in the process of exercising his official functions; he was merely on vacation and was taking a stroll, and it just so happened that he was suspiciously caught in the company of children. As such, his diplomatic immunity cannot be invoked in this case.


Alienmae is a foreign tourist. She was asked certain questions in regard to a complaint that was filed against her by someone who claimed to have been defrauded by her. Alienmae answered all the questions asked, except in regard to some matters in which she invoked her right against self-incrimination. When she was pressed to elucidate, she said that the questions being asked might tend to elicit incriminating answers insofar as her home state is concerned. Could Alienmae invoke the right against self-incrimination if the fear of incrimination is in regard to her foreign law? (4%)

No. Alienmae cannot invoke her right against self-incrimination even if the fear of incrimination is in regard to her foreign law.

Under the territoriality principle, the general rule is that a state has jurisdiction over all persons and property within its territory. The jurisdiction of the nation within its own territory is necessary, exclusive, and absolute. However, the are a few exceptions on when a state cannot exercise jurisdiction even within its own territory, to wit: 1) foreign states, head of states, diplomatic representatives, and consults to a certain degree; 2) foreign state property; 3) acts of state; 4) foreign merchant vessels exercising rights of innocent passage or arrival under stress; 5) foreign armies passing through or stationed in its territories with its permission; and 6) such other persons or property, including organisations like the United Nations, over which it may, by agreement, waive jurisdiction.

Seeing that the circumstances surrounding Alienmae do not fall under those exceptions, that she is a foreign tourist who received a complaint for fraud, such principle of territoriality can be exercised by the State to get the information it needs to proceed with the case.

Case Brief: In Re Bermudez

G.R. No. 76180 October 24, 1986

In a petition for declaratory relief with no respondents, petitioner asked the court if the provision of the Section 5 Article XVIII of the 1986 Constitution, to wit: “The six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992,” refers to the then-incumbent President Corazon Aquino and Vice-President Salvador Laurel or the previously-elected President Ferdinand E. Marcos and Vice-President Arturo M. Tolentino.

After the election of February 7, 1986 where Marcos and Tolentino were declared the winners, Aquino and Laurel were installed into the position last February 25, 1986 after the infamous People Power Revolution. The next regular election for the President and Vice-President was held last May 2, 1992.

Whether the aforecited article applies to the then-incumbent President and Vice-President, or the previously elected President and Vice-President.

The petition was hereby dismissed outright for:

1. Lack of jurisdiction. Court has no jurisdiction over petition for declaratory relief. Rules of Court states that it is the RTC (Regional Trial Courts) who has the jurisdiction over petitions for declaratory relief. Also, incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure.

2. Lack of cause of action on the part of petitioner. Petitioner had no personality to use, and his allegation was manifestly gratuitous. The legitimacy of the Aquino government was not a justiciable matter. It belongs to the realm of politics where only the people of the Philippines are the judge, and the people have made judgment.

Case Brief: Lozano v Nograles

G.R. No. 187883  June 16, 2009
– versus –
SPEAKER PROSPERO C. NOGRALES, Representative, Majority, House of Representatives, Respondents

x – – – – – – – – – – – – – – – – – – – – – – x
G.R. No.  187910
– versus
SPEAKER PROSPERO C. NOGRALES, Speaker of the House of Representatives, Congress of the Philippines, Respondents.

The two petitions, filed by their respective petitioners in their capacities as concerned citizens and taxpayers, prayed for the nullification of House Resolution No. 1109 entitled “A Resolution Calling upon the Members of Congress to Convene for the Purpose of Considering Proposals to Amend or Revise the Constitution, Upon a Three-fourths Vote of All the Members of Congress,” convening the Congress into a Constituent Assembly to amend the 1987 Constitution. In essence, both petitions seek to trigger a justiciable controversy that would warrant a definitive interpretation by this Court of Section 1, Article XVII, which provides for the procedure for amending or revising the Constitution. The petitioners contend that the House Resolution contradicts the procedures set forth by the 1987 Constitution regarding the amendment or revision of the same as the separate voting of the members of each House (the Senate and the House of Representatives) is deleted and substituted with a vote of three-fourths of all the Members of Congress (i.e., ¾ of the “members of Congress” without distinction as to which institution of Congress they belong to).

Whether the court has the power to review the case of the validity of House Resolution No. 1109.

No. The Supreme Court cannot indulge petitioners’ supplications. While some may interpret petitioners’ moves as vigilance in preserving the rule of law, a careful perusal of their petitions would reveal that they cannot hurdle the bar of justiciability set by the Court before it will assume jurisdiction over cases involving constitutional disputes.

The Court’s power of review may be awesome, but it is limited to actual cases and controversies dealing with parties having adversely legal claims, to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. The “case-or-controversy” requirement bans this court from deciding “abstract, hypothetical or contingent questions,” lest the court give opinions in the nature of advice concerning legislative or executive action

An aspect of the “case-or-controversy” requirement is the requisite of “ripeness.” In the United States, courts are centrally concerned with whether a case involves uncertain contingent future events that may not occur as anticipated, or indeed may not occur at all. Another approach is the evaluation of the twofold aspect of ripeness: first, the fitness of the issues for judicial decision; and second, the hardship to the parties entailed by withholding court consideration. In our jurisdiction, the issue of ripeness is generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. An alternative road to review similarly taken would be to determine whether an action has already been accomplished or performed by a branch of government before the courts may step in.

In the present case, the fitness of petitioners’ case for the exercise of judicial review is grossly lacking. In the first place, petitioners have not sufficiently proven any adverse injury or hardship from the act complained of. In the second place, House Resolution No. 1109 only resolved that the House of Representatives shall convene at a future time for the purpose of proposing amendments or revisions to the Constitution. No actual convention has yet transpired and no rules of procedure have yet been adopted. More importantly, no proposal has yet been made, and hence, no usurpation of power or gross abuse of discretion has yet taken place. In short, House Resolution No. 1109 involves a quintessential example of an uncertain contingent future event that may not occur as anticipated, or indeed may not occur at all. The House has not yet performed a positive act that would warrant an intervention from this Court.

As in the case of Tan v. Macapagal, as long as any proposed amendment is still unacted on by it, there is no room for the interposition of judicial oversight. Only after it has made concrete what it intends to submit for ratification may the appropriate case be instituted. Until then, the courts are devoid of jurisdiction

A party will be allowed to litigate only when he can demonstrate that (1) he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by the remedy being sought. In the cases at bar, petitioners have not shown the elemental injury in fact that would endow them with the standing to sue. Locus standi requires a personal stake in the outcome of a controversy for significant reasons. It assures adverseness and sharpens the presentation of issues for the illumination of the Court in resolving difficult constitutional questions. The lack of petitioners’ personal stake in this case is no more evident than in Lozano’s three-page petition that is devoid of any legal or jurisprudential basis.

Neither can the lack of locus standi be cured by the claim of petitioners that they are instituting the cases at bar as taxpayers and concerned citizens. A taxpayer’s suit requires that the act complained of directly involves the illegal disbursement of public funds derived from taxation. It is undisputed that there has been no allocation or disbursement of public funds in this case as of yet.

The possible consequence of House Resolution No. 1109 is yet unrealized and does not infuse petitioners with locus standi

The rule on locus standi is not a plain procedural rule but a constitutional requirement derived from Section 1, Article VIII of the Constitution, which mandates courts of justice to settle only “actual controversies involving rights which are legally demandable and enforceable.”
Moreover, while the Court has taken an increasingly liberal approach to the rule of locus standi, evolving from the stringent requirements of “personal injury” to the broader “transcendental importance” doctrine, such liberality is not to be abused. It is not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but their cerebral deficit.

IN VIEW WHEREOF, the petitions are dismissed.

Case Brief: Javier v COMELEC

G.R. Nos. L-68379-81  September 22, 1986
EVELIO B. JAVIER, petitioner,
Raul S. Roco and Lorna Patajo-Kapunan for petitioner.

The petitioner and the private respondent were candidates in Antique for the Batasang Pambansa in the May 1984 elections. On May 13, 1984, the eve of the elections, the bitter contest between the two came to a head when several followers of the petitioner were ambushed and killed, allegedly by the latter’s men. Seven suspects, including respondent Pacificador, are now facing trial for these murders.

It was in this atmosphere that the voting was held, and the post-election developments were to run true to form. Owing to what he claimed were attempts to railroad the private respondent’s proclamation, the petitioner went to the Commission on Elections to question the canvass of the election returns. His complaints were dismissed and the private respondent was proclaimed winner by the Second Division of the said body. The petitioner thereupon came to this Court, arguing that the proclamation was void because made only by a division and not by the Commission on Elections en banc as required by the Constitution.

On May 18, 1984, the Second Division of the Commission on Elections directed the provincial board of canvassers of Antique to proceed with the canvass but to suspend the proclamation of the winning candidate until further orders. On June 7, 1984, the same Second Division ordered the board to immediately convene and to proclaim the winner without prejudice to the outcome of the case before the Commission. On certiorari before this Court, the proclamation made by the board of canvassers was set aside as premature, having been made before the lapse of the 5-day period of appeal, which the petitioner had seasonably made. Finally, on July 23, 1984, the Second Division promulgated the decision now subject of this petition which inter alia proclaimed Arturo F. Pacificador the elected assemblyman of the province of Antique. The petitioner then came to this Court, asking to annul the said decision on the basis that it should have been decided by COMELEC en banc.

The case was still being considered when on February 11, 1986, the petitioner was gunned down in cold blood and in broad daylight. And a year later, Batasang Pambansa was abolished with the advent of the 1987 Constitution.

Respondents moved to dismiss the petition, contending it to be moot and academic.

1. Whether it is correct for the court to dismiss the petition due to the petitioner being dead and the respondent missing.
2. Whether the Second Division of the Commission on Elections was authorized to promulgate its decision of July 23, 1984, proclaiming the private respondent the winner in the election?

1. No.

The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the petitioner and the private respondent-both of whom have gone their separate ways-could be a convenient justification for dismissing this case. But there are larger issues involved that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic.

The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future.

2. No.
The applicable provisions are found in Article XII-C, Sections 2 and 3, of the 1973 Constitution.

Section 2 confers on the Commission on Elections the power to:
(2) Be the sole judge of all contests relating to the election, returns and qualifications of all member of the Batasang Pambansa and elective provincial and city officials.

Section 3 provides:
The Commission on Elections may sit en banc or in three divisions. All election cases may be heard and decided by divisions except contests involving members of the Batasang Pambansa, which shall be heard and decided en banc. Unless otherwise provided by law, all election cases shall be decided within ninety days from the date of their submission for decision.

We believe that in making the Commission on Elections the sole judge of all contests involving the election, returns and qualifications of the members of the Batasang Pambansa and elective provincial and city officials, the Constitution intended to give it full authority to hear and decide these cases from beginning to end and on all matters related thereto, including those arising before the proclamation of the winners.

As correctly observed by the petitioner, the purpose of Section 3 in requiring that cases involving members of the Batasang Pambansa be heard and decided by the Commission en banc was to insure the most careful consideration of such cases. Obviously, that objective could not be achieved if the Commission could act en banc only after the proclamation had been made, for it might then be too late already. We are all-too-familiar with the grab-the-proclamation-and-delay-the-protest strategy of many unscrupulous candidates, which has resulted in the frustration of the popular will and the virtual defeat of the real winners in the election. The respondent’s theory would make this gambit possible for the pre- proclamation proceedings, being summary in nature, could be hastily decided by only three members in division, without the care and deliberation that would have otherwise been observed by the Commission en banc.

WHEREFORE, let it be spread in the records of this case that were it not for the supervening events that have legally rendered it moot and academic, this petition would have been granted and the decision of the Commission on Elections dated July 23, 1984, set aside as violative of the Constitution.

Case Brief: Chavez v JBC

G.R. No. 202242  July 17, 2012

The case is in relation to the process of selecting the nominees for the vacant seat of Supreme Court Chief Justice following Renato Corona’s departure.

Originally, the members of the Constitutional Commission saw the need to create a separate, competent and independent body to recommend nominees to the President. Thus, it conceived of a body representative of all the stakeholders in the judicial appointment process and called it the Judicial and Bar Council (JBC).

In particular, Paragraph 1 Section 8, Article VIII of the Constitution states that “(1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.” In compliance therewith, Congress, from the moment of the creation of the JBC, designated one representative from the Congress to sit in the JBC to act as one of the ex officio members.

In 1994 however, the composition of the JBC was substantially altered. Instead of having only seven (7) members, an eighth (8th) member was added to the JBC as two (2) representatives from Congress began sitting in the JBC – one from the House of Representatives and one from the Senate, with each having one-half (1/2) of a vote. During the existence of the case, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas, Jr. (respondents) simultaneously sat in JBC as representatives of the legislature.

It is this practice that petitioner has questioned in this petition.

The respondents claimed that when the JBC was established, the framers originally envisioned a unicameral legislative body, thereby allocating “a representative of the National Assembly” to the JBC. The phrase, however, was not modified to aptly jive with the change to bicameralism which was adopted by the Constitutional Commission on July 21, 1986. The respondents also contend that if the Commissioners were made aware of the consequence of having a bicameral legislature instead of a unicameral one, they would have made the corresponding adjustment in the representation of Congress in the JBC; that if only one house of Congress gets to be a member of JBC would deprive the other house of representation, defeating the principle of balance.

The respondents further argue that the allowance of two (2) representatives of Congress to be members of the JBC does not render JBC’s purpose of providing balance nugatory; that the presence of two (2) members from Congress will most likely provide balance as against the other six (6) members who are undeniably presidential appointees

Supreme Court held that it has the power of review the case herein as it is an object of concern, not just for a nominee to a judicial post, but for all the citizens who have the right to seek judicial intervention for rectification of legal blunders.

Whether the practice of the JBC to perform its functions with eight (8) members, two (2) of whom are members of Congress, defeats the letter and spirit of the 1987 Constitution.

No. The current practice of JBC in admitting two members of the Congress to perform the functions of the JBC is violative of the 1987 Constitution. As such, it is unconstitutional.

One of the primary and basic rules in statutory construction is that where the words of a statute are clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. It is a well-settled principle of constitutional construction that the language employed in the Constitution must be given their ordinary meaning except where technical terms are employed. As such, it can be clearly and unambiguously discerned from Paragraph 1, Section 8, Article VIII of the 1987 Constitution that in the phrase, “a representative of Congress,” the use of the singular letter “a” preceding “representative of Congress” is unequivocal and leaves no room for any other construction. It is indicative of what the members of the Constitutional Commission had in mind, that is, Congress may designate only one (1) representative to the JBC. Had it been the intention that more than one (1) representative from the legislature would sit in the JBC, the Framers could have, in no uncertain terms, so provided.

Moreover, under the maxim noscitur a sociis, where a particular word or phrase is ambiguous in itself or is equally susceptible of various meanings, its correct construction may be made clear and specific by considering the company of words in which it is founded or with which it is associated. Every meaning to be given to each word or phrase must be ascertained from the context of the body of the statute since a word or phrase in a statute is always used in association with other words or phrases and its meaning may be modified or restricted by the latter. Applying the foregoing principle to this case, it becomes apparent that the word “Congress” used in Article VIII, Section 8(1) of the Constitution is used in its generic sense. No particular allusion whatsoever is made on whether the Senate or the House of Representatives is being referred to, but that, in either case, only a singular representative may be allowed to sit in the JBC

Considering that the language of the subject constitutional provision is plain and unambiguous, there is no need to resort extrinsic aids such as records of the Constitutional Commission. Nevertheless, even if the Court should proceed to look into the minds of the members of the Constitutional Commission, it is undeniable from the records thereof that it was intended that the JBC be composed of seven (7) members only. The underlying reason leads the Court to conclude that a single vote may not be divided into half (1/2), between two representatives of Congress, or among any of the sitting members of the JBC for that matter.

With the respondents’ contention that each representative should be admitted from the Congress and House of Representatives, the Supreme Court, after the perusal of the records of Constitutional Commission, held that “Congress,” in the context of JBC representation, should be considered as one body. While it is true that there are still differences between the two houses and that an inter-play between the two houses is necessary in the realization of the legislative powers conferred to them by the Constitution, the same cannot be applied in the case of JBC representation because no liaison between the two houses exists in the workings of the JBC. No mechanism is required between the Senate and the House of Representatives in the screening and nomination of judicial officers. Hence, the term “Congress” must be taken to mean the entire legislative department.

The framers of Constitution, in creating JBC, hoped that the private sector and the three branches of government would have an active role and equal voice in the selection of the members of the Judiciary. Therefore, to allow the Legislature to have more quantitative influence in the JBC by having more than one voice speak, whether with one full vote or one-half (1/2) a vote each, would “negate the principle of equality among the three branches of government which is enshrined in the Constitution.”

It is clear, therefore, that the Constitution mandates that the JBC be composed of seven (7) members only. Thus, any inclusion of another member, whether with one whole vote or half (1/2) of it, goes against that mandate. Section 8(1), Article VIII of the Constitution, providing Congress with an equal voice with other members of the JBC in recommending appointees to the Judiciary is explicit. Any circumvention of the constitutional mandate should not be countenanced for the Constitution is the supreme law of the land. The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer. Constitutional doctrines must remain steadfast no matter what may be the tides of time. It cannot be simply made to sway and accommodate the call of situations and much more tailor itself to the whims and caprices of the government and the people who run it.

Notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its prior official actions are nonetheless valid. In the interest of fair play under the doctrine of operative facts, actions previous to the declaration of unconstitutionality are legally recognized. They are not nullified.

WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar Council IS declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to reconstitute itself so that only one ( 1) member of Congress will sit as a representative in its proceedings, in accordance with Section 8( 1 ), Article VIII of the 1987 Constitution. This disposition is immediately executory.