What is "Opinio juris sive necessitatis"? How is it applied in international law?

Opinio juris sive necessitatis ("an opinion of law or necessity") or simply opinio juris ("an opinion of law") is the belief that an action was carried out because it was a legal obligation. This is in contrast to an action being the result of different cognitive reaction, or behaviors that were habitual to the individual. This term is frequently used in legal proceedings such as a defense for a case.

Opinio juris is the subjective element of custom as a source of law, both domestic and international, as it refers to beliefs. The other element is state practice, which is more objective as it is readily discernible. To qualify as state practice, the acts must be consistent and general international practice.

State applications

A situation where opinio juris would be feasible is a case concerning self-defense. A condition must be met where the usage of force is limited to the situation at hand. The act of striking an attacker may be done with legal justification; however, legal territory limits the acceptability of such a claim. Even in this case, the usage of force must be acceptable to the conditions of the environment, the attacker, and the physical conditions of the people involved, as well as any weapons or tools used.

International applications

In international law, opinio juris is the subjective element which is used to judge whether the practice of a state is due to a belief that it is legally obliged to do a particular act.^[1] When opinio juris exists and is consistent with nearly all state practice, customary international law emerges. Opinio juris essentially means that states must act in compliance with the norm not merely out of convenience, habit, coincidence, or political expediency, but rather out of a sense of legal obligation.^[2] [1] Article 38(1)(b) of the Statute of the International Court of Justice accepts “international custom” as a source of law, but only where this custom is 1) “evidence of a general practice,” (the objective component) (2) “accepted as law.” (the opinio juris or subjective component)^[3] Thus, for example, while it may be observed that heads of state virtually always shake hands when they first meet, it is highly unlikely that they do so because they believe that a rule of international law requires it. On the other hand, a state would almost certainly expect some form of legal repercussions if it were to prosecute a foreign ambassador without the consent of his or her home state, and in this sense opinio juris does exist for the international law rule of diplomatic immunity.

Because opinio juris refers to the psychological state of the state actor—asking why the state behaved as it did—it can be difficult to identify and to prove. In practice, a variety of sources tend to be used to demonstrate the existence of opinio juris, including evidence such as diplomatic correspondence, press releases and other government statements of policy, opinions of legal advisers, official manuals on legal questions, legislation, national and international judicial decisions, legal briefs endorsed by the state, a pattern of treaties ratified by the state that all include the same obligation(s), resolutions and declarations by the United Nations, and other sources. In the Paquete Habana case (decided by the United States Supreme Court in 1900 on the question of whether small coastal fishing boats are immune from capture during war time under customary international law), evidence of opinio juris included medieval English royal ordinances, agreements between European nations, orders issued to the U.S. Navy in earlier conflicts, and the opinions of legal treatise writers. Finally, the context, circumstances, and manner in which the state practice is carried out can also be used to infer the existence of opinio juris. As the ICJ stated in the North Sea Continental Shelf cases of 1969, “Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.” ^[4] Nonetheless, it should be noted that a state's motives can change over time, and that it is not necessary that opinio juris be a significant impetus for each instance of action. As Judge Lachs noted in a dissenting opinion in the North Sea Continental Shelf cases, “At successive stages in the development of the [customary] rule the motives which have prompted States to accept it have varied from case to case. It could not be otherwise. At all events, to postulate that all States, even those which initiate a given practice, believe themselves to be acting under a legal obligation is to resort to a fiction, and in fact to deny the possibility of developing such rules.”^[5]

As difficult as it can be to prove why an actor did act in a certain way, it is exponentially more difficult to prove why it did not act. For this reason, the necessity of demonstrating that a behavior was prompted by a sense of legal obligation makes it particularly difficult for customary international law to develop around the prohibition of a practice. One important case in the development of modern customary international law theory is the S.S. Lotus case, in which France attempted to protest Turkey's assertion of criminal jurisdiction over a French citizen for acts committed on the high seas (outside of Turkey's territory). France presented a number of historical examples to demonstrate that the state of nationality or the state whose flag the ship had flown had exclusive jurisdiction in cases such as this. However, the Permanent Court of International Justice (a precursor to the ICJ) declared that the evidence showed merely that “States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom.”^[6] This reasoning was cited approvingly in the North Sea Shelf Continental Cases, which similarly declined to find the existence of customary law regarding the proper method to delimit territorial claims to the continental shelf extending from the coastline of states bordering the North Sea.^[7] The ICJ also declined to find evidence of customary international law in an opinion on the legality of the use or threat of nuclear weapons, despite what some argued to be uniform state practice. As in the North Sea Continental Shelf cases, it found that the mere fact that no state had used nuclear weapons against another state since World War II did not reflect opinio juris. Some states had pointed out that a series of U.N. resolutions had been issued “that deal with nuclear weapons and that affirm, with consistent regularity, the illegality of nuclear weapons,” and argued that this signified “the existence of a rule of international customary law which prohibits recourse to those weapons.”^[8] Nonetheless, the ICJ noted that states possessing nuclear weapons had almost always objected to these resolutions, which strongly suggests that those states did not believe that a customary law prohibiting their use existed. Moreover, it noted that the non-use of nuclear weapons could actually provide evidence of their “use” as a deterrent force.^[9]

This logical framework makes sense for existing norms of customary international law, but it becomes problematic in the context of new or emerging customary rules. If a practice is not currently governed by customary international law, then it is illogical to inquire into a state's beliefs about the legality of engaging in or abstaining from that practice, i.e., to ask whether it believed that its practice was in compliance with a law that does not yet exist. This paradox may be resolved to some extent by the idea of “crystallization” of customary international law, in which practice and legal obligation evolve jointly and eventually ripen into law. Under one model, this process occurs in three stages: first, some States engage in a given practice for reasons other than a sense of legal obligation (e.g. political expediency, economic gain, courtesy, etc.); next, States reinforce the practice by engaging in it or making claims based upon it, creating loops of reciprocity and reliance based on expectations that the practice will continue; finally, as these relationships expand in number and complexity, they eventually harden into a general rule. In this final stage, as more States become aware of the conduct and actively participate or at least passively acquiesce to the practice, the States' actions begin to be undergirded by a belief that they are complying with an emerging customary rule.

Is their an obligatory rule that requires the Philippines to recognize foreign judgments? or allow a procedure for the enforcement thereof?

There is no obligatory rule derived from treaties or conventions that requires the Philippines to recognize foreign judgments, or allow a procedure for the enforcement thereof. However, generally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations.^[66] The classical formulation in international law sees those customary rules accepted as binding result from the combination two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.^[67]

While the definite conceptual parameters of the recognition and enforcement of foreign judgments have not been authoritatively established, the Court can assert with certainty that such an undertaking is among those generally accepted principles of international law.^[68] As earlier demonstrated, there is a widespread practice among states accepting in principle the need for such recognition and enforcement, albeit subject to limitations of varying degrees. The fact that there is no binding universal treaty governing the practice is not indicative of a widespread rejection of the principle, but only a disagreement as to the imposable specific rules governing the procedure for recognition and enforcement.

what is the effect of foreign judgment in our court?

The rules of comity, utility and convenience of nations have established a usage among civilized states by which final judgments of foreign courts of competent jurisdiction are reciprocally respected and rendered efficacious under certain conditions that may vary in different countries.^[17] This principle was prominently affirmed in the leading American case of Hilton v. Guyot^[18] and expressly recognized in our jurisprudence beginning with Ingenholl v. Walter E. Olsen & Co.^[19] The conditions required by the Philippines for recognition and enforcement of a foreign judgment were originally contained in Section 311 of the Code of Civil Procedure, which was taken from the California Code of Civil Procedure which, in turn, was derived from the California Act of March 11, 1872.^[20] Remarkably, the procedural rule now outlined in Section 48, Rule 39 of the Rules of Civil Procedure has remained unchanged down to the last word in nearly a century. Section 48 states:

What is the effect of foreign judgment is our local courts?

SEC. 48. Effect of foreign judgments. - The effect of a judgment of a tribunal of a foreign country, having jurisdiction to pronounce the judgment is as follows:

(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the thing;

(b) In case of a judgment against a person, the judgment is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title;

In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.



What is an action in rem? an action in personam? What is the effect of foreign judment on said actions?

There is an evident distinction between a foreign judgment in an action in rem and one in personam. For an action in rem, the foreign judgment is deemed conclusive upon the title to the thing, while in an action in personam, the foreign judgment is presumptive, and not conclusive, of a right as between the parties and their successors in interest by a subsequent title.^[21] However, in both cases, the foreign judgment is susceptible to impeachment in our local courts on the grounds of want of jurisdiction or notice to the party,^[22] collusion, fraud,^[23] or clear mistake of law or fact.^[24] Thus, the party aggrieved by the foreign judgment is entitled to defend against the enforcement of such decision in the local forum. It is essential that there should be an opportunity to challenge the foreign judgment, in order for the court in this jurisdiction to properly determine its efficacy.^[25]

It is clear then that it is usually necessary for an action to be filed in order to enforce a foreign judgment^[26], even if such judgment has conclusive effect as in the case of in rem actions, if only for the purpose of allowing the losing party an opportunity to challenge the foreign judgment, and in order for the court to properly determine its efficacy.^[27] Consequently, the party attacking a foreign judgment has the burden of overcoming the presumption of its validity.^[28]

The rules are silent as to what initiatory procedure must be undertaken in order to enforce a foreign judgment in the Philippines. But there is no question that the filing of a civil complaint is an appropriate measure for such purpose. A civil action is one by which a party sues another for the enforcement or protection of a right,^[29] and clearly an action to enforce a foreign judgment is in essence a vindication of a right prescinding either from a "conclusive judgment upon title" or the "presumptive evidence of a right."^[30] Absent perhaps a statutory grant of jurisdiction to a quasi-judicial body, the claim for enforcement of judgment must be brought before the regular courts.^[31]

There are distinctions, nuanced but discernible, between the cause of action arising from the enforcement of a foreign judgment, and that arising from the facts or allegations that occasioned the foreign judgment. They may pertain to the same set of facts, but there is an essential difference in the right-duty correlatives that are sought to be vindicated. For example, in a complaint for damages against a tortfeasor, the cause of action emanates from the violation of the right of the complainant through the act or omission of the respondent. On the other hand, in a complaint for the enforcement of a foreign judgment awarding damages from the same tortfeasor, for the violation of the same right through the same manner of action, the cause of action derives not from the tortious act but from the foreign judgment itself.

More importantly, the matters for proof are different. Using the above example, the complainant will have to establish before the court the tortious act or omission committed by the tortfeasor, who in turn is allowed to rebut these factual allegations or prove extenuating circumstances. Extensive litigation is thus conducted on the facts, and from there the right to and amount of damages are assessed. On the other hand, in an action to enforce a foreign judgment, the matter left for proof is the foreign judgment itself, and not the facts from which it prescinds.

As stated in Section 48, Rule 39, the actionable issues are generally restricted to a review of jurisdiction of the foreign court, the service of personal notice, collusion, fraud, or mistake of fact or law. The limitations on review is in consonance with a strong and pervasive policy in all legal systems to limit repetitive litigation on claims and issues.^[32] Otherwise known as the policy of preclusion, it seeks to protect party expectations resulting from previous litigation, to safeguard against the harassment of defendants, to insure that the task of courts not be increased by never-ending litigation of the same disputes, and - in a larger sense - to promote what Lord Coke in the Ferrer's Case of 1599 stated to be the goal of all law: "rest and quietness."^[33] If every judgment of a foreign court were reviewable on the merits, the plaintiff would be forced back on his/her original cause of action, rendering immaterial the previously concluded litigation.^[34]

How to prove the divorce obtained abroad?

In Garcia v. Recio, the Court laid down the specific guidelines for pleading and proving foreign law and divorce judgments.
It held that presentation solely of the divorce decree is insufficient and that proof of its authenticity and due execution must be presented.
Under Sections 24 and 25 of Rule 132, a writing or document may be proven as a public or official record of a foreign country by either
(1) an official publication or
(2) a copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be
(a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and
(b) authenticated by the seal of his office.

PRELIMINARY EXAMINATION IN CONFLICT OF LAWS (2012)

PRELIMINARY EXAMINATION IN CONFLICT OF LAWS (2012)

Part I. Selection Type. Choose the letter of your best answer.

1. Even if the Court approves the petition for Naturalization, the decision will not be executory until after (a) five years after promulgation (b) two years after the petition is filed (c) one year after promulgation (d) two years after promulgation of the decision.

2. The last step in the naturalization proceedings is (a) declaration of intention to become a Filipino citizen (b) publication in the official gazette (c) taking the oath of allegiance (d) approval of the petition and rehearing thirty days after the promulgation of judgment of naturalization.

3. Which of the following is NOT a qualification for naturalization ? (a) residence in the Philippines for a continuous period of not less than five years (b) age must be at least 21 years of age (c) must own real estate worth not less than 5t pesos (d) able to speak and write tagalog.

4. Which of the following is NOT characteristic of status? (a) capacity is status (b) status is a social interest (c) it has a universal character (d) it is conferred by the state.

5. According to Falconbridge, there are three important steps in characterization. Which is not among these steps? (a) selection of the proper law (b) characterization of the question (c) application of the proper law (d) characterization of the factual situation.

6. Another word for the “doctrine of qualification ” is (a) characterization (b) conflict resolution (c) selection of foreign law to be applied (d) decision making.

7. Which is true of a Filipino residing in a foreign country? (a) he can make a will only pursuant to Phil law (b) he can make a will in any form established by the law of the country in which he may be (c) if he makes a foreign will it cannot be probate in the Phil (d) he cannot make a will in that foreign country.

8. Capacity to succeed is governed by (a) the national law of the decedent (b) the law where he is domiciled (c) the law where his property is situated (d) the law of the place where he died.

9. Intestate succession is governed by what law? (a) the national law of the decedent (b) the law where he is domiciled (c) the law where his property is situated (d) the law of the place where he died.

10. In the absence of contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of marriage and their residence. Which of the following is an exception to this rule? (a) when one of the spouses is an alien (b) when both spouses are aliens (c) with respect to the intrinsic validity of contracts affecting property not situated in the Phil (d) with respect to the extrinsic validity of the contracts affecting properties situated in the Phil.

PART II. (5 points each) Essay type. Answer the following question briefly and concisely. Explain your answer. A mere yes or no answer earns no points.

1.Hix died with a will allegedly executed in accordance with the formalities of West Virginia Law. TO prove the existence of said foreign law, the proponent of the will presented in evidence a copy of said law found in a book taken from The Philippine National Library.

Questions:

(a)The corresponding certificate was signed by the Director of the National Library. Has the existence of said law been properly proved? (b) If the U.S. consul-general is presented to prove said law, will it suffice? (c) If the foreign law is not well proved, how will the court decide it? (d)What law shall be used pursuant to what principle of international law?

2.A testator, considered a Filipino citizen under our law, and a Chinese under Chinese law, died in France, leaving properties in the Philippines.

Questions: (a) How should a Filipino judge in a Philippine Court determine the successional rights to the estate of the deceased? B) If A is considered a Chinese under Chinese law and a Japanese under Japanese Law but died in Manila leaving properties in the Philippines, but prior to his death, he was domiciled in Japan, what law shall be applied?

3.An illegitimate child of a Chinese father and a Filipino mother was registered in the Civil Registry as Chinese. She filed a petition for the correction of the entry to make her citizenship read as “Filipino” in view of the absence of marriage between her parents.

Question:

Will the petition prosper?

4. A Filipina works as a Flight Stewardess of an Arabian airline which maintains an office in the Philippines. While their plane landed in Indonesia, her co-crew who are citizens of Saudi Arabia attempted to rape her. She filed a case in the Philippines for “attempted rape”.

Questions: (a) Will the suit prosper? (b)If not where should the case be filed? (c) IF she decides to file an action for damages against the airline, will your answer be the same?Explain your answer.

5. On March 30, 1999, petitioner Nippon Engineering Consultants Co., Ltd. (Nippon), a Japanese consultancy firm providing technical and management support in the infrastructure projects of foreign governments,³ entered into an Independent Contractor Agreement (ICA) with respondent Minoru Kitamura, a Japanese national permanently residing in the Philippines.⁴ The agreement provides that respondent was to extend professional services to Nippon for a year starting on April 1, 1999.⁵ Nippon then assigned respondent to work as the project manager of the Southern Tagalog Access Road (STAR) Project in the Philippines, following the company's consultancy contract with the Philippine Government.⁶

When the STAR Project was near completion, the Department of Public Works and Highways (DPWH) engaged the consultancy services of Nippon, on January 28, 2000, this time for the detailed engineering and construction supervision of the Bongabon-Baler Road Improvement (BBRI) Project.⁷ Respondent was named as the project manager in the contract's Appendix 3.1.⁸

On February 28, 2000, petitioner Kazuhiro Hasegawa, Nippon's general manager for its International Division, informed respondent that the company had no more intention of automatically renewing his ICA. His services would be engaged by the company only up to the substantial completion of the STAR Project on March 31, 2000, just in time for the ICA's expiry.⁹

Threatened with impending unemployment, respondent, through his lawyer, requested a negotiation conference and demanded that he be assigned to the BBRI project. Nippon insisted that respondent’s contract was for a fixed term that had already expired, and refused to negotiate for the renewal of the ICA.¹⁰

As he was not able to generate a positive response from the petitioners, respondent consequently initiated on June 1, 2000 Civil Case No. 00-0264 for specific performance and damages with the Regional Trial Court of Lipa City.¹¹

Questions: (a) Will the suit prosper in our local courts? (b)What principles of conflict rules shall be applied on the matter? Explain.

END OF THE EXAMINATION

ALICE REYES V. ROMILLO (1985)

FIRST DIVISION

G.R. No. L-68470 October 8, 1985

ALICE REYES VAN DORN, petitioner,
vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the National Capital Region Pasay City and RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\

In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by respondent Judge, which denied her Motion to Dismiss said case, and her Motion for Reconsideration of the Dismissal Order, respectively.

The basic background facts are that petitioner is a citizen of the Philippines while private respondent is a citizen of the United States; that they were married in Hongkong in 1972; that, after the marriage, they established their residence in the Philippines; that they begot two children born on April 4, 1973 and December 18, 1975, respectively; that the parties were divorced in Nevada, United States, in 1982; and that petitioner has re-married also in Nevada, this time to Theodore Van Dorn.

Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila, (the Galleon Shop, for short), is conjugal property of the parties, and asking that petitioner be ordered to render an accounting of that business, and that private respondent be declared with right to manage the conjugal property. Petitioner moved to dismiss the case on the ground that the cause of action is barred by previous judgment in the divorce proceedings before the Nevada Court wherein respondent had acknowledged that he and petitioner had "no community property" as of June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned case on the ground that the property involved is located in the Philippines so that the Divorce Decree has no bearing in the case. The denial is now the subject of this certiorari proceeding.

Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to appeal. certiorari and Prohibition are neither the remedies to question the propriety of an interlocutory order of the trial Court. However, when a grave abuse of discretion was patently committed, or the lower Court acted capriciously and whimsically, then it devolves upon this Court in a certiorari proceeding to exercise its supervisory authority and to correct the error committed which, in such a case, is equivalent to lack of jurisdiction. ¹ Prohibition would then lie since it would be useless and a waste of time to go ahead with the proceedings. ² Weconsider the petition filed in this case within the exception, and we have given it due course.

For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in the Philippines.

Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property because of the representation he made in the divorce proceedings before the American Court that they had no community of property; that the Galleon Shop was not established through conjugal funds, and that respondent's claim is barred by prior judgment.

For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over the prohibitive laws of the Philippines and its declared national policy; that the acts and declaration of a foreign Court cannot, especially if the same is contrary to public policy, divest Philippine Courts of jurisdiction to entertain matters within its jurisdiction.

For the resolution of this case, it is not necessary to determine whether the property relations between petitioner and private respondent, after their marriage, were upon absolute or relative community property, upon complete separation of property, or upon any other regime. The pivotal fact in this case is the Nevada divorce of the parties.

The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who appeared in person before the Court during the trial of the case. It also obtained jurisdiction over private respondent who, giving his address as No. 381 Bush Street, San Francisco, California, authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to the divorce on the ground of incompatibility in the understanding that there were neither community property nor community obligations. ³ As explicitly stated in the Power of Attorney he executed in favor of the law firm of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce proceedings:

xxx xxx xxx

You are hereby authorized to accept service of Summons, to file an Answer, appear on my behalf and do an things necessary and proper to represent me, without further contesting, subject to the following:

1. That my spouse seeks a divorce on the ground of incompatibility.

2. That there is no community of property to be adjudicated by the Court.

3. 'I'hat there are no community obligations to be adjudicated by the court.

xxx xxx xxx ⁴

There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, ⁵ only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public police and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. ⁶ In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:

The purpose and effect of a decree of divorce from the bond of matrimony by a court of competent jurisdiction are to change the existing status or domestic relation of husband and wife, and to free them both from the bond. The marriage tie when thus severed as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the law. When the law provides, in the nature of a penalty. that the guilty party shall not marry again, that party, as well as the other, is still absolutely freed from the bond of the former marriage.

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country's Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property.

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served.

WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the Complaint filed in Civil Case No. 1075-P of his Court.

Without costs.

SO ORDERED.

Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.

Footnotes

1 Sanchez vs. Zosa, 68 SCRA 171 (1975); Malit vs. People, 114 SCRA 348 (1982).

2 U.S.T. vs. Hon. Villanueva, et al., 106 Phil. 439 (1959).

3 Annex "Y", Petition for Certiorari.

4 p. 98, Rollo.

5 "Art. 15. Laws relating to family rights and duties or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.

6 cf. Recto vs. Harden, 100 Phil. 427 [1956]; Paras, Civil Code, 1971 ed., Vol. I, p. 52; Salonga, Private International Law, 1979 ed., p. 231."

People v. Schneckenburger, ⁶ where it was held that the accused who secured a foreign divorce, and later remarried in the Philippines, in the belief that the foreign divorce was valid, is liable for bigamy.

FIRST DIVISION

A.M. No. RTJ-02-1673 August 11, 2004

EDUARDO P. DIEGO, complainant,
vs.
JUDGE SILVERIO Q. CASTILLO, REGIONAL TRIAL COURT, DAGUPAN CITY, BRANCH 43, respondent.

D E C I S I O N

AZCUNA, J.:

This is an administrative complaint against Regional Trial Court Judge Silverio Q. Castillo for allegedly knowingly rendering an unjust judgment in a criminal case and/or rendering judgment in gross ignorance of the law.

The facts and circumstances of the criminal case are summarized, as follows:

a) On January 9, 1965, accused Lucena Escoto contracted marriage with Jorge de Perio, Jr., solemnized before then Mayor Liberato Reyna of Dagupan City. The couple were both Filipinos. In the marriage contract, the accused used and adopted the name Crescencia Escoto, with a civil status of single;

b) In a document dated February 15, 1978, denominated as a "Decree of Divorce" and purportedly issued to Jorge de Perio as petitioner by the Family District Court of Harris County, Texas (247^th Judicial District), it was "ordered, adjudged and decreed, that the bonds of matrimony heretofore existing between Jorge de Perio and Crescencia de Perio are hereby Dissolved, Cancelled and Annulled and the Petitioner is hereby granted a Divorce."

c) Subsequently, on June 4, 1987, the same Crescencia Escoto contracted marriage with herein complainant’s brother, Manuel P. Diego, solemnized before the Rev. Fr. Clemente T. Godoy, parish priest of Dagupan City. The marriage contract shows that this time, the accused used and adopted the name Lucena Escoto, again, with a civil status of single.¹

After trial of the criminal case for bigamy, respondent Judge promulgated a decision, on February 24, 1999, the dispositive part of which stated:

WHEREFORE, for failure of the STATE to prove accused’s guilt beyond whisper of doubt, the COURT hereby orders her ACQUITTAL with costs de oficio.

SO ORDERED.²

The decision states that the main basis for the acquittal was good faith on the part of the accused. Respondent Judge gave credence to the defense of the accused that she acted without any malicious intent. The combined testimonial and documentary evidence of the defense was aimed at convincing the court that accused Lucena Escoto had sufficient grounds to believe that her previous marriage to Jorge de Perio had been validly dissolved by the divorce decree and that she was legally free to contract the second marriage with Manuel P. Diego.

In rendering the decision, respondent Judge reasoned, thus:

While it is true that in our jurisdiction the matrimonial bond between Jorge de Perio and the accused are not yet annulled, it remains undisputed that cessation of the same was decreed in the Family District Court of Harris County, Texas, 247^th Judicial District, effective February 15, 1978.

x x x

The CHARGE filed against the accused is categorized as Mala en se (sic) which requires the indispensable presence of criminal intent/dolo.

The felony on BIGAMY as defined and penalized by the Revised Penal Code explicitly mandates that it must be committed with criminal intent. In other words, there must be an unquestionable demonstration on the part of the perpetrator that he/she criminally, willfully and unlawfully contracted a second marriage despite knowledge that his/her first marriage is still existing.

As borne out by the evidence adduced, the accused contracted the second marriage after she was informed and furnished of the Divorce Decree which was granted by the Family District Court of Harris County Texas in her favor.

As an ordinary laywoman accused being a recipient of a divorce decree, she entertains the impression that she can contract a subsequent marriage which she did when she married the late Manuel Diego.

To the honest evaluation of the Court the act complained of against the accused is not patently illegal for the reason that she acted in good faith believing that her marriage was already annulled by a foreign judgment.³

Complainant herein alleges that the decision rendered by the respondent Judge is manifestly against the law and contrary to the evidence. He questions the evidentiary weight and admissibility of the divorce decree as a basis for the finding of good faith. In addition, complainant stresses that the evidence on record negates respondent Judge’s finding of good faith on the part of the accused. Thus, complainant urges this Court to impose sanctions upon respondent Judge as, according to complainant, these acts amount to knowingly rendering an unjust judgment and/or gross ignorance of the law.

In his comment, respondent Judge explains that what was in issue was the criminal culpability of the accused under Article 349 of the Revised Penal Code. Respondent Judge does not dispute that the second marriage was bigamous because at the time it was contracted, the first marriage was still subsisting since divorce is not recognized in our country and because the accused’s first husband was still alive. Respondent Judge, however, maintains that what was controlling was whether by virtue of the divorce decree the accused honestly believed, albeit mistakenly, that her first marriage had been severed and she could marry again. According to respondent Judge, the same is a state of mind personal to the accused. He further stressed that knowledge of the law should not be exacted strictly from the accused since she is a lay person, and that ineptitude should not be confused with criminal intent.

By separate manifestations, both parties agreed to submit the case for resolution based on the pleadings.

The Disputed Decision

A careful study of the disputed decision reveals that respondent Judge had been less than circumspect in his study of the law and jurisprudence applicable to the bigamy case.

In his comment, respondent Judge stated: "That the accused married Manuel P. Diego in the honest belief that she was free to do so by virtue of the decree of divorce is a mistake of fact."

This Court, in People v. Bitdu,⁴ carefully distinguished between a mistake of fact, which could be a basis for the defense of good faith in a bigamy case, from a mistake of law, which does not excuse a person, even a lay person, from liability. Bitdu held that even if the accused, who had obtained a divorce under the Mohammedan custom, honestly believed that in contracting her second marriage she was not committing any violation of the law, and that she had no criminal intent, the same does not justify her act. This Court further stated therein that with respect to the contention that the accused acted in good faith in contracting the second marriage, believing that she had been validly divorced from her first husband, it is sufficient to say that everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof.⁵

Moreover, squarely applicable to the criminal case for bigamy, is People v. Schneckenburger, ⁶ where it was held that the accused who secured a foreign divorce, and later remarried in the Philippines, in the belief that the foreign divorce was valid, is liable for bigamy.

These findings notwithstanding, the issue before us is whether or not respondent Judge should be held administratively liable for knowingly rendering an unjust judgment and/or gross ignorance of the law.

Knowingly Rendering an Unjust Judgment

Knowingly rendering an unjust judgment is a criminal offense defined and penalized under Article 204⁷ of the Revised Penal Code. For conviction to lie, it must be proved that the judgment is unjust and that the judge knows that it is unjust. Knowingly means consciously, intelligently, willfully or intentionally. It is firmly established in this jurisdiction that for a judge to be held liable for knowingly rendering an unjust judgment, it must be shown that the judgment is unjust as it is contrary to law or is not supported by the evidence, and that the same was made with conscious and deliberate intent to do an injustice.⁸

The law requires that (a) the offender is a judge; (b) he renders a judgment in a case submitted to him for decision; (c) the judgment is unjust; (d) he knew that said judgment is unjust.⁹ This Court reiterates that in order to hold a judge liable, it must be shown that the judgment is unjust and that it was made with conscious and deliberate intent to do an injustice. That good faith is a defense to the charge of knowingly rendering an unjust judgment remains the law.¹⁰

As held in Alforte v. Santos,¹¹ even assuming that a judge erred in acquitting an accused, she still cannot be administratively charged lacking the element of bad faith, malice or corrupt purpose. Malice or bad faith on the part of the judge in rendering an unjust decision must still be proved and failure on the part of the complainant to prove the same warrants the dismissal of the administrative complaint.¹²

There is, therefore, no basis for the charge of knowingly rendering an unjust judgment.

Gross Ignorance of the Law

Anent the charge of gross ignorance of the law, Mañozca v. Domagas,¹³ is instructive. Therein respondent judge was charged with gross ignorance of the law resulting in a manifestly unjust judgment for granting a demurrer to the evidence in a bigamy case. The grant of the demurrer to the evidence was based on the judge’s finding of good faith on the part of the accused, anchored upon a document denominated as a "Separation of Property with Renunciation of Rights." This Court stated that said act of the judge exhibited ignorance of the law, and accordingly he was fined in the amount of P5,000.

Also, in Guillermo v. Reyes, Jr.,¹⁴ where therein respondent judge was given a reprimand with a stern warning of a more severe penalty should the same or similar act be committed in the future, this Court explained:

We have heretofore ruled that a judge may not be held administratively accountable for every erroneous order or decision he renders. To unjustifiably hold otherwise, assuming that he has erred, would be nothing short of harassment and would make his position doubly unbearable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in his judgment. The error must be gross or patent, malicious, deliberate or in evident bad faith. It is only in this latter instance, when the judge acts fraudulently or with gross ignorance, that administrative sanctions are called for as an imperative duty of this Court.

As a matter of public policy then, the acts of a judge in his official capacity are not subject to disciplinary action, even though such acts are erroneous. Good faith and absence of malice, corrupt motives or improper considerations are sufficient defenses in which a judge charged with ignorance of the law can find refuge. It does not mean, however, that a judge, given the leeway he is accorded in such cases, should not evince due care in the performance of his adjudicatory prerogatives.

Furthermore, in Wingarts v. Mejia,¹⁵ where therein respondent judge, although absolved of any guilt for the charge of knowingly rendering an unjust judgment, was still imposed sanctions by this Court, thus:

In any event, respondent judge deserves to be appropriately penalized for his regrettably erroneous action in connection with Criminal Case No. 2664 of his court. We have repeatedly stressed that a municipal trial judge occupies the forefront of the judicial arm that is closest in reach to the public he serves, and he must accordingly act at all times with great constancy and utmost probity. Any kind of failure in the discharge of this grave responsibility cannot be countenanced, in order to maintain the faith of the public in the judiciary, especially on the level of courts to which most of them resort for redress.¹⁶

Applying these precedents to the present case, the error committed by respondent Judge being gross and patent, the same constitutes ignorance of the law of a nature sufficient to warrant disciplinary action.

Penalty

After evaluation of the merits of the case, the Office of the Court Administrator (OCA) recommended that respondent Judge be reprimanded with a stern warning of a more severe penalty in the future.

The act of respondent Judge in rendering the decision in question took place on February 24, 1999 or before the effectivity, on October 1, 2001, of A.M. No. 01-8-10-SC which classified gross ignorance of the law as a serious charge and penalized the offense with a fine of not less than P20,000 but not more than P40,000.

Applying the rule as then prevailing,¹⁷ and in line with applicable jurisprudence,¹⁸ the sanction on respondent Judge should be a fine in the amount of P10,000.

WHEREFORE, Regional Trial Court Judge Silverio Q. Castillo is hereby FINED in the amount of Ten Thousand Pesos (P10,000) with a STERN WARNING that a repetition of the same or similar acts will be dealt with more severely.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Carpio, JJ., concur.

Footnotes

¹ See, Affidavit-Complaint, pp. 1-2.

² Affidavit-Complaint, Annex "A," p. 10.

³ Affidavit-Complaint, Annex "A," pp. 9-10.

⁴ 58 Phil. 817 (1933).

⁵ Id. at 822.

⁶ 73 Phil. 413 (1941).

⁷ Art. 204. Knowingly rendering unjust judgment. – Any judge who shall knowingly render an unjust judgment in any case submitted to him for decision, shall be punished by prision mayor and perpetual absolute disqualification.

⁸ Ubarra v. Mapalad, 220 SCRA 224, 234 (1993); citing Sta. Maria v. Ubay, 87 SCRA 179 (1978); Rodrigo v. Quijano, 79 SCRA 10 (1977); Pabalan v. Guevarra, 74 SCRA 53 (1976); In re: Rafael C. Climaco, 55 SCRA 107, 119 (1974); and Evangelista v. Baes, 61 SCRA 475 (1974).

⁹ Louis Vuitton S.A. v. Villanueva, 216 SCRA 121, 127 (1992).

¹⁰ Id., at pp. 127-128 & 133.

¹¹ 243 SCRA 514, 518 (1995).

¹² Id.

¹³ 248 SCRA 625 (1995).

¹⁴ 240 SCRA 154, 161 (1995).

¹⁵ 242 SCRA 436 (1995).

¹⁶ Id., at p. 447.

¹⁷ Vileña v. Mapaye, A.M. No. MTJ-02-1424, 381 SCRA 489 (2002).

¹⁸ Marzan-Gelacio v. Flores, A.M. No. RTJ-99-1488, 334 SCRA 1 (2000); Go v. Bongolan, A.M. No. RTJ-99-1464, 311 SCRA 99 (1999); Almeron v. Sardido, A.M. No. MTJ-97-1142, 281 SCRA 415 (1997).

RODOLFO A. SCHNECKENBURGER, petitioner, vs. MANUEL V. MORAN, Judge of First Instance of Manila, respondent.

EN BANC

G.R. No. L-44896 July 31, 1936

RODOLFO A. SCHNECKENBURGER, petitioner,
vs.
MANUEL V. MORAN, Judge of First Instance of Manila, respondent.

Cardenas and Casal for petitioner.
Office of the Solicitor-General Hilado for respondent.

ABAD SANTOS, J.:

The petitioner was duly accredited honorary consul of Uruguay at Manila, Philippine Islands on June 11, 1934. He was subsequently charged in the Court of First Instance of Manila with the crime of falsification of a private document. He objected to the jurisdiction of the court on the ground that both under the Constitution of the United States and the Constitution of the Philippines the court below had no jurisdiction to try him. His objection having been overruled, he filed this petition for a writ of prohibition with a view to preventing the Court of First Instance of Manila from taking cognizance of the criminal action filed against him.

In support of this petition counsel for the petitioner contend (1) That the Court of First Instance of Manila is without jurisdiction to try the case filed against the petitioner for the reason that under Article III, section 2, of the Constitution of the United States, the Supreme Court of the United States has original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, and such jurisdiction excludes the courts of the Philippines; and (2) that even under the Constitution of the Philippines original jurisdiction over cases affecting ambassadors, other public ministers, and consuls, is conferred exclusively upon the Supreme Court of the Philippines.

This case involves no question of diplomatic immunity. It is well settled that a consul is not entitled to the privileges and immunities of an ambassador or minister, but is subject to the laws and regulations of the country to which he is accredited. (Ex parte Baiz, 135 U. S., 403; 34 Law. ed., 222.) A consul is not exempt from criminal prosecution for violations of the laws of the country where he resides. (U. S. vs. Ravara, 2 Dall., 297; 1 Law. ed., 388; Wheaton's International Law [2d ed.], 423.) The substantial question raised in this case is one of jurisdiction.

1. We find no merit in the contention that Article III, section 2, of the Constitution of the United States governs this case. We do not deem it necessary to discuss the question whether the constitutional provision relied upon by the petitioner extended ex propio vigore over the Philippines. Suffice it to say that the inauguration of the Philippine Commonwealth on November 15, 1935, has brought about a fundamental change in the political and legal status of the Philippines. On the date mentioned the Constitution of the Philippines went into full force and effect. This Constitution is the supreme law of the land. Not only the members of this court but all other officers, legislative, executive and judicial, of the Government of the Commonwealth, are bound by oath to support the Constitution. (Article XIII, section 2.) This court owes its own existence to the great instrument, and derives all its powers therefrom. In the exercise of its powers and jurisdiction, this court is bound by the provisions of the Constitution. The Constitution provides that the original jurisdiction of this court "shall include all cases affecting ambassadors, other public ministers, and consuls." In deciding the instant case this court cannot go beyond this constitutional provision.

2. It remains to consider whether the original jurisdiction thus conferred upon this court by the Constitution over cases affecting ambassadors, other public ministers, and consuls, is exclusive. The Constitution does not define the jurisdiction of this court in specific terms, but merely provides that "the Supreme Court shall have such original and appellate jurisdiction as may be possessed and exercised by the Supreme Court of the Philippine Islands at the time of the adoption of this Constitution." It then goes on to provide that the original jurisdiction of this court "shall include all cases affecting ambassadors, other public ministers, and consuls."

In the light of the constitutional provisions above adverted to, the question arises whether the original jurisdiction possessed and exercised by the Supreme Court of the Philippine Islands at the time of the adoption of the Constitution was exclusive.

The original jurisdiction possessed and exercised by the Supreme Court of the Philippine Islands at the time of the adoption of the Constitution was derived from section 17 of Act No. 136, which reads as follows: The Supreme Court shall have original jurisdiction to issue writs of mandamus, certiorari, prohibition, habeas corpus, and quo warranto in the cases and in the manner prescribed in the Code of Civil Procedure, and to hear and determine the controversies thus brought before it, and in other cases provided by law." Jurisdiction to issue writs of quo warranto, certiorari, mandamus, prohibition, and habeas corpus was also conferred on the Courts of First Instance by the Code of Civil Procedure. (Act No. 190, secs. 197, 217, 222, 226, and 525.) It results that the original jurisdiction possessed and exercised by the Supreme Court of the Philippine Islands at the time of the adoption of the Constitution was not exclusive of, but concurrent with, that of the Courts of First Instance. Inasmuch as this is the same original jurisdiction vested in this court by the Constitution and made to include all cases affecting ambassadors, other public ministers, and consuls, it follows that the jurisdiction of this court over such cases is not exclusive.

The conclusion we have reached upon this branch of the case finds support in the pertinent decisions of the Supreme Court of the United States. The Constitution of the United States provides that the Supreme Court shall have "original jurisdiction" in all cases affecting ambassadors, other public ministers, and consuls. In construing this constitutional provision, the Supreme Court of the United States held that the "original jurisdiction thus conferred upon the Supreme Court by the Constitution was not exclusive jurisdiction, and that such grant of original jurisdiction did not prevent Congress from conferring original jurisdiction in cases affecting consuls on the subordinate courts of the Union. (U. S. vs. Ravara, supra; Bors vs. Preston, 111 U. S., 252; 28 Law. ed., 419.)

3. The laws in force in the Philippines prior to the inauguration of the Commonwealth conferred upon the Courts of the First Instance original jurisdiction in all criminal cases to which a penalty of more than six months' imprisonment or a fine exceeding one hundred dollars might be imposed. (Act No. 136, sec. 56.) Such jurisdiction included the trial of criminal actions brought against consuls for, as we have already indicated, consuls, not being entitled to the privileges and immunities of ambassadors or ministers, are subject to the laws and regulations of the country where they reside. By Article XV, section 2, of the Constitution, all laws of the Philippine Islands in force at the time of the adoption of the Constitution were to continue in force until the inauguration of the Commonwealth; thereafter, they were to remain operative, unless inconsistent with the Constitution until amended, altered, modified, or repealed by the National Assembly. The original jurisdiction granted to the Courts of First Instance to try criminal cases was not made exclusively by any, law in force prior to the inauguration of the Commonwealth, and having reached the conclusion that the jurisdiction conferred upon this court by the Constitution over cases affecting ambassadors, other public ministers, and consuls, is not an exclusive jurisdiction, the laws in force at the time of the adoption of the Constitution, granting the Courts of First Instance jurisdiction in such cases, are not inconsistent with the Constitution, and must be deemed to remain operative and in force, subject to the power of the National Assembly to amend alter, modify, or repeal the same. (Asiatic P. Co. vs. Insular Collector of Customs, U. S. Supreme Court [Law. ed.], Adv. Ops., vol. 80, No. 12, pp. 620, 623.)

We conclude, therefore, that the Court of First Instance of Manila has jurisdiction to try the petitioner, an that the petition for a writ of prohibition must be denied. So ordered.

Avanceña, C. J., Villa-Real, Imperial, Diaz, and Recto, JJ., concur.

Separate Opinions

LAUREL, J., concurring:

In my humble opinion, there are three reasons why the jurisdiction of this court over the petitioner in the instant case is concurrent and not exclusive. The strictly legal reason is set forth in the preceding illuminating opinion. The other reasons are (a) historical and based on what I consider is the (b) theory upon which the grant of legislative authority under our Constitution is predicated.

(a) As the provision in our Constitution regarding jurisdiction in cases affecting ambassadors, other public ministers, and consuls, has been taken from the Constitution of the United States, considerable light would be gained by an examination of the history and interpretation thereof in the United States.

The fifth resolution of the New Jersey plan (Paterson resolutions of June 15, 1787) gave the Supreme Court of the United States, the only national court under the plan, authority to hear and determine "by way of appeal, in the dernier resort . . . all cases touching the rights of ambassadors . . . ." This clause, however, was not approved. On July 18, the Convention of 1787 voted an extraordinarily broad jurisdiction to the Supreme Court extending "to cases arising under laws passed by the general legislature, and to such other questions as involve the national peace and harmony." This general proposition was considerably narrowed by Randolph in his draft of May 29 which, however, did not mention anything about ambassadors, other public ministers and consuls. But the Committee of Detail, through Rutledge, reported on August 6 as follows: "Article XI, Section 3. The jurisdiction of the Supreme Court shall extend . . . to all cases affecting ambassadors, other public ministers and consuls; . . . In . . . cases affecting ambassadors, other public ministers and consuls, . . . this jurisdiction shall be original . . . ."On September 12, the Committee on Style reported the provision as follows: "Article III, Section 2. The judicial power shall extend . . . to all cases affecting ambassadors, other public ministers and consuls . . . In (all) cases affecting ambassadors, other public ministers and consuls . . . the Supreme Court shall have original jurisdiction." This provision was approved in the convention with hardly any amendment or debate and is now found in clause 2, section 2 of Article III of the Constitution of the United States. (The Constitution and the Courts, Article on "Growth of the Constitution", by William M. Meigs, New York, 1924, vol. 1, pp. 228, 229. See also Farrand, Records of the Federal Convention of 1787, Yale University Press, 1934, 3 vols.; Warren, The Making of the Constitution, Boston, 1928, pp. 534-537.)

The word "original", however, was early interpreted as not exclusive. Two years after the adoption of the Federal Constitution, or in 1789, the First Judiciary Act (Act of September 24, 1789, 1 Stat., c. 20, 687) was approved by the first Congress creating the United States District and Circuit Courts which were nisi prius courts, or courts of first instance which dealt with different items of litigation. The district courts are now the only federal courts of first instance, the circuit courts having been abolished by the Act of March 3, 1911, otherwise known as the Judicial Code. The Judiciary Act of 1787 invested the district courts with jurisdiction, exclusively of the courts of the several states, of all suits against consuls or vice-consuls and the Supreme Court of the United States with original but not exclusive jurisdiction of all suits in which a consul or vice-consul shall be a party. By the passage of the Act of February 18, 1875 (18 Stat., 470, c. 137), the clause giving the federal courts exclusive jurisdiction was repealed and, since then state courts have had concurrent jurisdiction with the federal courts over civil or criminal proceedings against a consul or vice-consul. At the present time, the federal courts exercise exclusive jurisdiction "of suits or proceedings against ambassadors or other or other public ministers, or their domestics or domestic servants, as a court of law can have consistently with the law of nations; and original, but not exclusive, jurisdiction, of all suits brought by ambassadors or other public ministers, or in which a consul or vice-consul is a party." (Act of March 8, 1911, 36 Stat., 1156, reenacting sec. 687 of the Act of September 24, 1789; 28 U. S. C. A., sec. 341; Hopkins' Federal Judicial Code, 4th ed., by Babbit, 1934, sec. 233.) The district courts now have original jurisdiction of all suits against consuls and vice-consuls." (Act of March 3, 1911, 36 Stat., 1093; 28 U. S. C. A., sec. 41, subsec. 18; Hopkins' Federal Judicial Code, 4th ed., by Babbit, 1934, sec. 24, par. 18.)

The Judiciary Act of 1789 was one of the early and most satisfactory acts passed by the Congress of the United States. It has remained essentially unchanged for more than 145 years. It was prepared chiefly by Oliver Ellsworth of Connecticut (1 Ann. Cong., 18, April 7, 1789) one of the ablest jurists in the Constitutional Convention, who was later Chief Justice of the Supreme Court of the United States (1796-1800). It is interesting to note that 10 of the 18 senators and 8 of the members of the House of the first Congress had been among the 55 delegates who actually attended the Convention that adopted the federal Constitution (Warren, Congress, the Constitution and the Supreme Court [Boston, 1935], p. 99). When, therefore, the first Congress approved the Judiciary Act of 1789 vesting in the Supreme Court original but not exclusive jurisdiction of all suits in which a consul or a vice-consul shall be a party, express legislative interpretation as to the meaning of the word "original" as not being exclusive was definitely made and this interpretation has never been repudiated. As stated by the Supreme Court of the United States in Ames vs. Kansas ([1884], 111 U. S., 449; 4 S. Ct., 437; 28 Law. ed., 482):

In view of the practical construction put on this provision of the Constitution by Congress, at the very moment of the organization of the government, and of the significant fact that, from 1789 until now, no court of the United States has ever in its actual adjudications determined to the contrary, we are unable to say that it is not within the power of Congress to grant to the inferior courts of the United States jurisdiction in cases where the Supreme Court has been vested by the Constitution with original jurisdiction. It rests with the legislative department of the government to say to what extent such grants shall be made, and it may safely be assumed that nothing will ever be done to encroach upon the high privileges of those for whose protection the constitutional provision was intended. At any rate, we are unwilling to say that the power to make the grant does not exist.

Dicta in some earlier cases seem to hold that the word "original" means "exclusive" and as observed by Justice Field in United States vs. Louisiana ([1887], 123 U. S., 36; 8 S. Ct., 17; 31 Law. ed., 69), the question has given rise to some differences of opinion among the earlier members of the Supreme Court of the United States. (See, for instance, dissenting opinion of Iredell, J., in U. S. vs. Ravara [1793], 2 Dall., 297; 1 Law. ed., 388.) Reliance was had on more or less general expressions made by Chief Justice Marshall in the case of Marbury vs. Madison ([1803], 1 Cranch, 137; 2 Law. ed., 60), where it was said:

"If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance." But Chief Justice Marshall who penned the decision in this case in 1803 had occasion later, in 1821, to explain the meaning and extent of the pronouncements made in the Marbury case. He said:

In the case of Marbury vs. Madison ([1803], 1 Cranch [U. S.], 137, 172; 2 Law. ed., 60), the single question before the court, so far as that case can be applied to this, was, whether the legislature could give this court original jurisdiction in a case in which the Constitution had clearly not given it, and in which no doubt respecting the construction of the article could possibly be raised. The court decided, and we think very properly, that the legislature could not give original jurisdiction in such a case. But, in the reasoning of the court in support of this decision, some expressions are used which go far beyond it. The counsel for Marbury had insisted on the unlimited discretion of the legislature in the apportionment of the judicial power; and it is against this argument that the reasoning of the court is directed. They say that, if such had been the intention of the article, "it would certainly have been useless to proceed farther than to define the judicial power, and the tribunals in which it should be vested." The court says, that such a construction would render the clause, dividing the jurisdiction of the court into original and appellate, totally useless; that "affirmative words are often, in their operation, negative of other objects than those which are affirmed; and, in this case (in the case of Marbury vs. Madison), a negative or exclusive sense must be given to them, or they have no operation at all." "It cannot be presumed," adds the court, "that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it." The whole reasoning of the court proceeds upon the idea that the affirmative words of the clause giving one sort of jurisdiction, must imply a negative of any other sort of jurisdiction, because otherwise the words would be totally inoperative, and this reasoning is advanced in a case to which it was strictly applicable. If in that case original jurisdiction could have been exercised, the clause under consideration would have been entirely useless. Having such cases only in its view, the court lays down a principle which is generally correct, in terms much broader than the decision, and not only much broader than the reasoning with which that decision is supported, but in some instances contradictory to its principle. The reasoning sustains the negative operation of the words in that case, because otherwise the clause would have no meaning whatever, and because such operation was necessary to give effect to the intention of the article. The effort now made is, to apply the conclusion to which the court was conducted by that reasoning in the particular case, to one in which the words have their full operation when understood affirmatively, and in which the negative, or exclusive sense, is to be so used as to defeat some of the great objects of the article. To this construction the court cannot give its assent. The general expressions in the case of Marbury vs. Madison must be understood with the limitations which are given to them in this opinion; limitations which in no degree affect the decision in that case, or the tenor of its reasoning. (Cohens vs. Virginia [1821], 6 Wheat., 264, 400; 5 Law. ed., 257.)

What the Supreme Court in the case of Marbury vs. Madison held then was that Congress could not extend its original jurisdiction beyond the cases expressly mentioned in the Constitution, the rule of construction being that affirmative words of the Constitution declaring in what cases the Supreme Court shall have original jurisdiction must be construed negatively as to all other cases. (See Ex parte Vallandigham [1864], 1 Wall., 243, 252; 17 Law. ed., 589; Martin vs. Hunter's Lessee [1816], 1 Wheat., 305, 330; 4 Law. ed., 97; U. S. vs. Haynes [D. C. Mass., 1887], 29 Fed., 691, 696.) That was all.

It should be observed that Chief Justice Marshall concurred in the opinion in the case of Davis vs. Packard (11833], 7 Pet., 276; 8 Law. ed., 684). In this case the jurisdiction of the state court of New York over a civil suit against a foreign consul was denied solely on the ground that jurisdiction had been conferred in such a case upon the district courts of the United States exclusively of the state courts. Such a ground, says Justice Harlan in Bors vs. Preston ([1884], 111 U. S., 252; 4 S. Ct., 407; 28 Law. ed., 419), would probably not have been given had it been believed that the grant of original jurisdiction to the Supreme Court deprived Congress of the power to confer concurrent original jurisdiction in such cases upon subordinate courts of the Union, concluding that the decision in the case "may be regarded, as an affirmance of the constitutionality of the Act of 1789, giving original jurisdiction in such cases, also, to District Courts of the United States." Of the seven justices who concurred in the judgment in the case of Davis, five participated in the decision of Osborn vs. Bank of the United States ([1824], 9 Wheat., 738; 6 Law. ed., 204), also penned by Chief Justice Marshall and relied upon as authority together with Marbury vs. Madison, supra.

The rule enunciated in Bors vs. Preston, supra, is the one followed in the United States. The question involved in that case was whether the Circuit Court then existing had jurisdiction under the Constitution and laws of the United States to hear and determine any suit whatever against the consul of a foreign government. Justice Harlan said:

The Constitution declares that "The judicial power of the United States shall extend . . . to all cases affecting ambassadors or other public ministers and consuls;" to controversies between citizens of a state and foreign citizens or subjects; that "In all cases affecting ambassadors, other public ministers and consuls, . . . the Supreme Court shall have original jurisdiction;" and that in all other cases previously mentioned in the same clause "The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make." The Judiciary Act of 1789 invested the District Courts of the United States with jurisdiction, exclusively of the courts of the several States, of all suits against consuls or vice-consuls, except for offenses of a certain character; this court, with "Original, but not exclusive, jurisdiction of all suits . . . in which a consul or vice-consul shall be a party;" and the circuit courts with jurisdiction of civil suits in which an alien is a party. (l Stat. at L., 76-80.) In this act we have an affirmance, by the first Congress — many of whose members participated in the Convention which adopted the Constitution and were, therefore, conversant with the purposes of its framers — of the principle that the original jurisdiction of this court of cases in which a consul or vice-consul is a party, is not necessarily exclusive, and that the subordinate courts of the Union may be invested with jurisdiction of cases affecting such representatives of foreign governments. On a question of constitutional construction, this fact is entitled to great weight.

In this case of Bors, Justice Harlan adopted the view entertained by Chief Justice Taney in the earlier case of Gittings vs. Crawford (C. C. Md., 1838; Taney's Dec., 1, 10). In that case of Gittings, it was held that neither public policy nor convenience would justify the Supreme Court in implying that Congress is prohibited from giving original jurisdiction in cases affecting consuls to the inferior judicial tribunals of the United States. Chief Justice Taney said:

If the arrangement and classification of the subjects of jurisdiction into appellate and original, as respects the Supreme Court, do not exclude that tribunal from appellate power in the cases where original jurisdiction is granted, can it be right, from the same clause, to imply words of exclusion as respects other courts whose jurisdiction is not there limited or prescribed, but left for the future regulation of Congress? The true rule in this case is, I think, the rule which is constantly applied to ordinary acts of legislation, in which the grant of jurisdiction over a certain subject-matter to one court, does not, of itself, imply that that jurisdiction is to be exclusive. In the clause in question, there is nothing but mere affirmative words of grant, and none that import a design to exclude the subordinate jurisdiction of other courts of the United States on the same subject-matter. (See also U.S. vs. Ravara [1793], 2 Dall., 297; 1 Law. ed., 388; United States vs. Louisiana [1887], 123 U. S., 36; 8 S. Ct., 17; 31 Law. ed., 69; Ex parte Baiz [1890],135 U. S., 403; 10 S. Ct., 854; 34 Law. ed., 222, denying writ of prohibition Hollander vs. Baiz [D. C. N. Y., 1890]; 41 Fed., 732; Iasigi vs. Van de Carr [1897], 166 U.S., 391; 17 S. Ct., 595; 41 Law. ed., 1045; Graham vs. Strucken [C. C. N. Y., 1857]; 4 Blatchf., 58; Lorway vs. Lousada [D. C. Mass., 1866]; Fed. Cas., No. 8517; St. Luke's Hospital vs. Barclay [C. C. N. Y., 1855]; 3 Blatchf., 259; State of Texas vs. Lewis [C. C. Tex., 1882], 14 Fed., 65; State of Alabama vs. Wolffe (C. C. Ala., 1883], 18 Fed., 836, 837; Pooley vs. Luco [D. C. Cal., 1896], 76 Fed., 146.)

It is interesting to note that in the case of St. Luke's Hospital vs. Barclay, supra, the jurisdiction of circuit courts exclusive of state courts over aliens, no exception being made as to those who were consuls, was maintained. (See 1 U. S. Stat. at L., c. 20, sec. 11, pp. 78, 79.)

From the history of, and the judicial interpretation placed on, clause 2, section 2 of Article III of the Constitution of the United States it seems clear that the word "original" in reference to the jurisdiction of Supreme Court of the United States over cases affecting ambassadors, other public ministers and consuls, was never intended to be exclusive as to prevent the Congress from vesting concurrent jurisdiction over cases affecting consuls and vice-consuls in other federal courts.

It should be observed that the Philadelphia Convention of 1787 placed cases affecting the official representatives of foreign powers under the jurisdiction of Federal Supreme Court to prevent the public peace from being jeopardized. Since improper treatment of foreign ambassadors, other public ministers and consuls may be a casus belli, it was thought that the federal government, which is responsible for their treatment under international law, should itself be provided with the means to meet the demands imposed by international duty. (Tucker, The Constitution of the United States [1899], vol. II, 760, 772; vide, The Federalist, No. LXXXI, Ashley's Reprint [1917], 415.) Bearing in mind in the distinction which international law establishes between ambassadors and other public ministers, on the one hand, and consuls and other commercial representatives, on the other, Congress saw it fit to provide in one case a rule different from the other, although as far as consuls and vice-consuls are concerned, the jurisdiction of the Federal Supreme Court, as already observed, though original is not exclusive. But in the United States, there are two judicial systems, independent one from the other, while in the Philippines there is but one judicial system. So that the reason in the United States for excluding certain courts — the state courts — from taking cognizance of cases against foreign representatives stationed in the United States does not obtain in the Philippines where the court of the lowest grade is as much a part of an integrated system as the highest court.

Let us now turn our own laws as they affect the case of the petitioner. Undoubtedly Philippine courts are not federal courts and they are not governed by the Judiciary Acts of the United States. We have a judicial system of our own, standing outside the sphere of the American federal system and possessing powers and exercising jurisdiction pursuant to the provisions of our own Constitution and laws.

The jurisdiction of our courts over consuls is defined and determined by our Constitution and laws which include applicable treaties and accepted rules of the laws of nations. There are no treaties between the United States and Uruguay exempting consuls of either country from the operation of local criminal laws. Under the generally accepted principles of international law, declared by our Constitution as part of the law of the nation (Art. II sec. 3, cl. 2), consuls and vice-consuls and other commercial representatives of foreign nations do not possess the status and can not claim the privilege and immunities accorded to ambassadors and ministers. (Wheaton, International Law, sec. 249; Kent, Commentaries, 44; Story on the Constitution, sec. 1660; Mathews, The American Constitutional System [1932], 204, 205; Gittings vs. Crawford, C. C. Md., 1838; Taney's Dec., 1; Wilcox vs. Luco, 118 Cal., 639; 45 Pac., 676; 2 C. J., 9 R. C. L., 161.) The only provisions touching the subject to which we may refer are those found in the Constitution of the Philippines. Let us trace the history of these provisions.

The report of the committee on the Judicial Power, submitted on September 29, 1934, did not contain any provisions regarding cases affecting ambassadors, other public ministers and consuls. The draft of the sub-committee of seven of the Sponsorship Committee, submitted on October 20, 1934, however, contains the following provision:

Article X, Section 2. The Supreme Court shall have such original jurisdiction as may be possessed and exercised by the present Supreme Court of the Philippine Islands at the time of the adoption of this Constitution, which jurisdiction shall include all cases affecting ambassadors, other foreign ministers and consuls . . . ." The Special Committee on the Judiciary, composed principally of Delegates Vicente J. Francisco and Norberto Romualdez, included in its report the provisions which now appear in sections 2 and 3 of Article VIII of the Constitution. Section 2 provides:

The National Assembly shall have the power to define, prescribed, and apportion the jurisdiction of the various courts, but may not deprive the Supreme Court of its original jurisdiction over cases affecting ambassadors, other ministers and consuls . . . . And the second sentence of section 3 provides:

The original jurisdiction of the Supreme Court shall include all cases affecting ambassadors, other public ministers and consuls.

The provision in our Constitution in so far as it confers upon our Supreme Court "original jurisdiction over cases affecting ambassadors, other public ministers and consuls" is literally the same as that contained in clause 2, section 2 of Article III of the United States Constitution.

In the course of the deliberation of the Constitutional Convention, some doubt was expressed regarding the character of the grant of "original jurisdiction" to our Supreme Court. An examination of the records of the proceedings of the Constitutional convention show that the framers of our Constitution were familiar with the history of, and the judicial construction placed on, the same provision of the United States Constitution. In order to end what would have been a protracted discussion on the subject, a member of the Special Committee on the Judiciary gave the following information to the members of the Convention:

. . . Sr. Presidente, a fin de poder terminar con el Articulo 2, el Comite esta dispuesto a hacer constar que la interpretacion que debe dard a la ultima parte de dicho articulo es la misma interpretacion que siempre se ha dado a semejante disposicion en la Constitucion de los Estados Unidos. (January 16,1935.) Without further discussion, the provision was then and there approved.

It thus appears that the provision in question has been given a well-settled meaning in the United States — the country of its origin. It has there received definite and hitherto unaltered legislative and judicial interpretation. And the same meaning was ascribed to it when incorporated in our own Constitution. To paraphrase Justice Gray of the Supreme Court of the United States, we are justified in interpreting the provision of the Constitution in the light of the principles and history with which its framers were familiar. (United States vs. Wong Kin Ark [1897], 169 U. S., 649; 18 S. Ct., 456; 42 Law. ed., 890, cited with approval in Kepner vs. United States, a case of Philippine origin [1904]; 195 U. S., 100; 49 Law. ed., 114.)

(b) What has been said hereinabove is not unnecessary attachment to history or idolatrous adherence to precedents. In referring to the history of this provision of our Constitution it is realized that historical discussion while valuable is not necessarily decisive. Rationally, however, the philosophical reason for the conclusion announced is not far to seek if certain principles of constitutional government are borne in mind. The constitution is both a grant of, and a limitation upon, governmental powers. In the absence of clear and unequivocal restraint of legislative authority, the power is retained by the people and is exercisable by their representatives in their legislature. The rule is that the legislature possess plenary power for all purposes of civil government. A prohibition to exercise legislative power is the exception. (Denio, C. J., in People vs. Draper, 15 N.Y., 532, 543.) These prohibitions or restrictions are found either in the language used, or in the purpose held in view as well as the circumstances which led to the adoption of the particular provision as part of the fundamental law. (Ex parte Lewis, 45 Tex. Crim. Rep., 1; 73 S. W., 811; 108 Am. St. Rep., 929.)

Subject to certain limitations, the Filipino people, through their delegates, have committed legislative power in a most general way to the National Assembly has plenary legislative power in all matters of legislation except as limited by the constitution. When, therefore, the constitution vests in the Supreme Court original jurisdiction in cases affecting ambassadors, other public ministers and consuls, without specifying the exclusive character of the grant, the National Assembly is not deprived of its authority to make that jurisdiction concurrent. It has been said that popular government lives because of the inexhaustible reservoir of power behind. It is unquestionable that the mass of powers of government is vested in the representatives of the people, and that these representatives are no further restrained under our system than by the express language of the instrument imposing the restraint, or by particular provisions which, by clear intendment, have that effect. (Angara vs. Electoral Commission, p.139, ante.) What the Constitution prohibits is merely the deprivation of the Supreme Court of its original jurisdiction over cases affecting ambassadors, other public ministers and consuls and while it must be admitted that original jurisdiction if made concurrent no longer remains exclusive, it is also true that jurisdiction does not cease to be original merely because it is concurrent.

It is also quite true that concurrent original jurisdiction in this class of cases would mean the sharing of the Supreme Court with the most inferior courts of cases affecting ambassadors, other public ministers and consuls such that the Supreme Court would have concurrent jurisdiction with the lowest courts in our judicial hierarchy, the justice of the peace of the courts, in a petty case for the instance, the violation of a municipal ordinance affecting the parties just mentioned. However, no serious objection to these result can be seen other that the misinterpreted unwillingness to share this jurisdiction with a court pertaining to the lowest category in our judicial organization. Upon the other hand, the fundamental reasoning would apply with equal force if the highest court of the land is made to take recognizance exclusively of a case involving the violation of the municipal ordinance simply because of the character of the parties affected. After alluding to the fact that the position of consul of a foreign government is sometimes filled by a citizen of the United States (and this also true in the Philippines) Chief Justice Taney, in Gittings vs. Crawford, supra, observed:

It could hardly have been the intention of the statesmen who framed our constitution to require that one of our citizens who had a petty claim of even less than five dollars against another citizen, who had been clothed by some foreign government with the consular office, should be compelled to go into the Supreme Court to have a jury summoned in order to enable him to recover it; nor could it have been intended, that the time of that court, with all its high duties to perform, should be taken up with the trial of every petty offense that might be committed by a consul by any part of the United States; that consul, too, being often one of our own citizens.

Probably, the most serious objection to the interpretation herein advocated is, that considering the actual distribution of jurisdiction between the different courts in our jurisdiction, there may be cases where the Supreme Court may not actually exercise either original — whether exclusive or concurrent — or appellate jurisdiction, notwithstanding the grant of original jurisdiction in this class of cases to the Supreme Court. If, for instance, a criminal case is brought either in a justice of the peace court or in a Court of First Instance against a foreign consul and no question of law is involved, it is evident that in case of conviction, the proceedings will terminate in the Court Appeals and will not reach the Supreme Court. In this case, the Supreme Court will be deprived of all jurisdiction in a case affecting a consul notwithstanding the grant thereto in the Constitution of original jurisdiction in all cases affecting consuls. This is a situation, however, created not by the Constitution but by existing legislation, and the remedy is in the hands of the National Assembly. The Constitution cannot deal with every casus omissus, and in the nature of things, must only deal with fundamental principles, leaving the detail of administration and execution to the other branches of the government. It rests with the National Assembly to determine the inferior courts which shall exercise concurrent original jurisdiction with the Supreme Court in cases affecting ambassadors, other public ministers and consuls, considering the nature of the offense and irrespective of the amount of controversy. The National Assembly may as in the United States (Cooley, Constitutional Law, 4th ed. [1931], sec. 4, p. 156), provide for appeal to the Supreme Court in all cases affecting foreign diplomatic and consular representatives.

Before the approval of the Constitution, jurisdiction over consuls was exercisable by our courts. This is more so now that the Independence Law and Constitution framed and adopted pursuant thereto are in force. The fact that the National Assembly has not enacted any law determining what courts of the of the Philippines shall exercise concurrent jurisdiction with the Supreme Court is of no moment. This can not mean and should not be interpreted to mean that the original jurisdiction vested in the Supreme Court by the Constitution is not concurrent with other national courts of inferior category.

The respondent judge of the Court of First Instance of the City of Manila having jurisdiction to take cognizance of the criminal case brought against the petitioner, the writ of prohibition should be denied.