Baer v Tizon

• Jurisdiction: Filipinas
• Court: Supreme Court (Philippines)
• Date: 03 May 1974

Philippines, Supreme Court.

(Fernando, Zaldivar, Antonio, Fernandez and Aquino JJ.)

Baer

and

Tizon

PHILLIPPINES

Sovereign immunity Foreign State Acts of alien armed forces Extent of immunity Preliminary injunction restraining acts of commander of alien military base Writ of certiorari Whether acts of commander imputed to government he represents Military Bases Agreement Effect of treaty provisions The law of the Philippines

Summary: The facts:On 17 November 1964 Edgardo Gener filed a complaint with the Court of First Instance of Bataan against the petitioner, Donald Baer, Commander of the United States Naval Base in Olongapo. Gener alleged that he was engaged in the business of logging, a licence having been issued to him by the Bureau of Forestry in 1962. The licence had been renewed in 1963 and was valid until 30 July 1964. Gener alleged that the American Naval Base authorities had stopped his logging operations within the Naval Base in November 1963. He prayed for a writ of preliminary injunction to restrain the petitioner from interfering with his logging operations.

A restraining order was issued by the respondent, Judge Tito V. Tizon, on 27 November 1964. On 12 December 1964 the petitioner filed a motion to dismiss the application for a writ of preliminary injunction.

The petitioner contested the jursidiction of the respondent judge on the ground of sovereign immunity. The petitioner alleged that he was the head of an agency of the United States of America and that the subject matter of the action consisted of official acts done for and on behalf of the United States of America. The respondent judge issued an order granting the application for the issue of a writ of preliminary injunction.

The petitioner filed a writ of certiorari with the Supreme Court seeking to nullify the orders of the respondent judge and to set aside the writ of preliminary injunction.

Held:The writ of certiorari was granted, nullifying and setting aside the writ of preliminary injunction.

The invocation of the doctrine of sovereign immunity was appropriate. The performance of the duties of the petitioner in the base area was in accordance with the powers possessed by him under the Philippine-American Military Bases Agreement. The action taken by the Commander could therefore be imputed to the government he represented.

The respondent judge in granting the injunction was interfering with acts of a foreign State performed by it pursuant to treaty provisions and thus impressed with a governmental character.

The following is the text of the judgment of the Court, delivered by Fernando J.:

There is nothing novel about the question raised in this certiorari proceeding against the then Judge Tito V. Tizon, filed by petitioner Donald Baer, then Commander of the United States Naval Base, Subic Bay, Olongapo, Zambales, seeking to nullify the orders of respondent Judge denying his motion to dismiss a complaint filed against him by the private respondent, Edgardo Gener, on the ground of sovereign immunity of a foreign power, his contention being that it was in effect a suit against the United States, which had not given its consent. The answer given is supplied by a number of cases coming from this Tribunal starting from a 1945 decision, Raquiza v. BradfordENR1 to Johnson v. TurnerENRENRENRENRENRINTLENRENRENRENR,2 promulgated in 1954. The doctrine of immunity from suit is of undoubted applicability in this jurisdiction. It cannot be otherwise, for under the 1935 Constitution, as now, it is expressly made clear that the Philippines adopts the generally accepted principles of international law as part of the law of the Nation,3 As will subsequently be shown, there was a failure on the part of the lower court to accord deference and respect to such a basic doctrine, a failure compounded by its refusal to take note of the absence of any legal right on the part of petitioner. Hence, certiorari is the proper remedy.

The facts are not in dispute. On 17 November 1964, respondent Edgardo Gener, as plaintiff, filed a complaint for injunction with the Court of First Instance of Bataan against petitioner, Donald Baer, Commander of the United States Naval Base in Olongapo. It was docketed as Civil Case No. 2984 of the Court of First Instance of Bataan. He alleged that he was engaged in the business of logging in an area situated in Barrio Mabayo, Municipality of Morong, Bataan and that the American Naval Base authorities stopped his logging operations. He prayed for a writ of preliminary injunction restraining petitioner from interfering with his logging operations. A restraining order was issued by respondent Judge on 23 November 1964.4 Counsel for petitioner, upon instructions of the American Ambassador to the Philippines, entered their appearance for the purpose of

contesting the jurisdiction of respondent Judge on the ground that the suit was one against a foreign sovereign without its consent.5 Then, on 12 December 1964, petitioner filed a motion to dismiss, wherein such ground was reiterated. It was therein pointed out that he is the chief or head of an agency or instrumentality of the United States of America, with...