Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 79253 March 1, 1993

UNITED STATES OF AMERICA and MAXINE BRADFORD, petitioners, 

vs.
HON. LUIS R. REYES, as Presiding Judge of Branch 22, Regional Trial Court of Cavite, and
NELIA T. MONTOYA, respondents.

Luna, Sison & Manas for petitioners.

Evelyn R. Dominguez for private respondent.

DAVIDE, JR., J.:

This is a petition for certiorari and prohibition under Rule 65 of the Rules of Court. Petitioners would
have Us annul and set aside, for having been issued with grave abuse of discretion amounting to lack of
jurisdiction, the Resolution of 17 July 1987 of Branch 22 of the Regional Trial Court (RTC) of Cavite in
Civil Case No. 224-87. The said resolution denied, for lack of merit, petitioners' motion to dismiss the
said case and granted the private respondent's motion for the issuance of a writ of preliminary attachment.
Likewise sought to be set aside is the writ of attachment subsequently issued by the RTC on 28 July 1987.

The doctrine of state immunity is at the core of this controversy.

The readings disclose the following material operative facts:

Private respondent, hereinafter referred to as Montoya, is an American citizen who, at the time material to
this case, was employed as an identification (I.D.) checker at the U.S. Navy Exchange (NEX) at the Joint
United States Military Assistance Group (JUSMAG) headquarters in Quezon City. She is married to one
Edgardo H. Montoya, a Filipino-American serviceman employed by the U.S. Navy and stationed in San
Francisco, California. Petitioner Maxine Bradford, hereinafter referred to as Bradford, is likewise an
American citizen who was the activity exchange manager at the said JUSMAG Headquarters.

As a consequence of an incident which occurred on 22 January 1987 whereby her body and belongings
were searched after she had bought some items from the retail store of the NEX JUSMAG, where she had
purchasing privileges, and while she was already at the parking area, Montoya filed on
7 May 1987 a complaint1 with the Regional Trial Court of her place of residence — Cavite — against
Bradford for damages due to the oppressive and discriminatory acts committed by the latter in excess of
her authority as store manager of the NEX JUSMAG. The complaint, docketed as Civil Case No. 224-87
and subsequently raffled off to Branch 22 at Imus, Cavite, alleges the following, material operative facts:
 xxx xxx xxx

3. That on January 22, 1987, after working as the duty ID checker from 7:45 to 11:45
a.m., plaintiff went shopping and left the store at l2:00 noon of that day;

4. That on the way to her car while already outside the store, Mrs. Yong Kennedy, also an
ID checker, upon the instruction of the store manager, Ms. Maxine Bradford, approached
plaintiff and informed her that she needed to search her bags;

5. That plaintiff went to defendant, who was then outside the store talking to some men,
to protest the search but she was informed by the defendant that the search is to be made
on all Jusmag employees that day;

6. That the search was thereafter made on the person, car and bags of the plaintiff by Mrs.
Yong Kennedy in the presence of the defendant and numerous curious onlookers;

7. That having found nothing irregular on her person and belongings, plaintiff was
allowed to leave the premises;

8. That feeling aggrieved, plaintiff checked the records and discovered that she was the
only one whose person and belonging was (sic) searched that day contrary to defendant's
allegation as set forth in par. 5 hereof and as evidenced by the memorandum dated
January 30, 1987 made by other Filipino Jusmag employees, a photocopy of which is
hereto attached as ANNEX "A" and made integral (sic) part hereof:

9. That moreover, a check with Navy Exchange Security Manager, R.L. Roynon on
January 27, 1987 was made and she was informed by Mr. Roynon that it is a matter of
policy that customers and employees of NEX Jusmag are not searched outside the store
unless there is a very strong evidence of a wrongdoing;

10. That plaintiff knows of no circumstances sufficient to trigger suspicion of a

wrongdoing on her part but on the other hand, is aware of the propensity of defendant to
lay suspicion on Filipinos for theft and/or shoplifting;

11. That plaintiff formally protested the illegal search on February 14, 1987 in a letter
addressed to Mr. R.L. Roynon, a photocopy of which is hereto attached as ANNEX "B"
and made integral (sic) part hereof; but no action was undertaken by the said officer;

12. That the illegal search on the person and belongings of the plaintiff in front of many
people has subjected the plaintiff to speculations of theft, shoplifting and such other
wrongdoings and has exposed her to contempt and ridicule which was caused her undue
embarrassment and indignity;

13. That since the act could not have been motivated by other (sic) reason than racial
discrimination in our own land, the act constitute (sic) a blow to our national pride and
dignity which has caused the plaintiff a feeling of anger for which she suffers sleepless
nights and wounded feelings;
 14. That considering the above, plaintiff is entitled to be compensated by way of moral
damages in the amount of P500,000.00;

15. That to serve as a deterrent to those inclined to follow the oppressive act of the
defendant, exemplary damages in the amount of P100,000.00 should also be awarded. 2

She then prayed for judgment ordering Bradford to pay her P500,000.00 as moral damages, P100,000.00
as exemplary damages and reasonable attorney's fees plus the costs of the suit. 3

Summons and a copy of the complaint were served on Bradford on 13 May 1987. In response thereto, she
filed two (2) motions for extension of time to file her Answer which were both granted by the trial court.
The first was filed through Atty. Miguel Famularcano, Jr., who asked for a 20-day extension from 28 May
1987. The second, filed through the law firm of Luna, Sison and Manas, sought a 15-day extension from
17 June 1987.4 Thus, Bradford had up to 1 July 1987 to file her Answer. Instead of doing so, however,
she, together with the government of the United States of America (hereinafter referred to as the public
petitioner), filed on 25 June 1987, also through the law firm of Luna, Sison and Manas, a Motion to
Dismiss5 based on the following grounds:

1) (This) action is in effect a suit against the United States of America, a foreign
sovereign immune from suit without its consent for the cause of action pleaded in the
complaint; and

2) Defendant, Maxine Bradford, as manager of the US Navy Exchange Branch at

JUSMAG, Quezon City, is immune from suit for act(s) done by her in the performance of
her official functions under the Philippines-United States Military Assistance Agreement
of 1947 and Military Bases Agreement of 1947, as amended. 6

In support of the motion, the petitioners claimed that JUSMAG, composed of an Army, Navy and Air
Group, had been established under the Philippine-United States Military Assistance Agreement entered
into on 21 March 1947 to implement the United States' program of rendering military assistance to the
Philippines. Its headquarters in Quezon City is considered a temporary installation under the provisions of
Article XXI of the Military Bases Agreement of 1947. Thereunder, "it is mutually agreed that the United
States shall have the rights, power and authority within the bases which are necessary for the
establishment, use and operation and defense thereof or appropriate for the control thereof." The 1979
amendment of the Military Bases Agreement made it clear that the United States shall have "the use of
certain facilities and areas within the bases and shall have effective command and control over such
facilities and over United States personnel, employees, equipment and material." JUSMAG maintains, at
its Quezon City headquarters, a Navy Exchange referred to as the NEX-JUSMAG. Checking of purchases
at the NEX is a routine procedure observed at base retail outlets to protect and safeguard merchandise,
cash and equipment pursuant to paragraphs 2 and 4(b) of NAVRESALEACT SUBIC INST.
5500.1.7 Thus, Bradford's order to have purchases of all employees checked on 22 January 1987 was
made in the exercise of her duties as Manager of the NEX-JUSMAG.

They further claimed that the Navy Exchange (NAVEX), an instrumentality of the U.S. Government, is
considered essential for the performance of governmental functions. Its mission is to provide a convenient
and reliable source, at the lowest practicable cost, of articles and services required for the well-being of
Navy personnel, and of funds to be used for the latter's welfare and recreation. Montoya's complaint,
relating as it does to the mission, functions and responsibilities of a unit of the United States Navy, cannot
then be allowed. To do so would constitute a violation of the military bases agreement. Moreover, the
rights, powers and authority granted by the Philippine government to the United States within the U.S.
installations would be illusory and academic unless the latter has effective command and control over
such facilities and over American personnel, employees, equipment and material. Such rights, power and
authority within the bases can only be exercised by the United States through the officers and officials of
its armed forces, such as Bradford. Baer vs. Tizon8 and United States of America vs. 
Ruiz9 were invoked to support these claims.

On 6 July 1987, Montoya filed a motion for preliminary attachment 10 on the ground that Bradford was
about to depart from the country and was in the process of removing and/or disposing of her properties
with intent to defraud her creditors. On 14 July 1987, Montoya filed her opposition to the motion to
dismiss 11 alleging therein that the grounds proffered in the latter are bereft of merit because (a) Bradford,
in ordering the search upon her person and belongings outside the NEX JUSMAG store in the presence of
onlookers, had committed an improper, unlawful and highly discriminatory act against a Filipino
employee and had exceeded the scope of her authority; (b) having exceeded her authority, Bradford
cannot rely on the sovereign immunity of the public petitioner because her liability is personal; (c)
Philippine courts are vested with jurisdiction over the case because Bradford is a civilian employee who
had committed the challenged act outside the U.S. Military Bases; such act is not one of those exempted
from the jurisdiction of Philippine courts; and (d) Philippine courts can inquire into the factual
circumstances of the case to determine whether or not Bradford had acted within or outside the scope of
her authority.

On 16 July 1987, public petitioner and Bradford filed a reply to Montoya's opposition and an opposition
to the motion for preliminary attachment. 12

On 17 July 1987, 13 the trial court 14 resolved both the motion to dismiss and the motion for preliminary
attachment in this wise:

On the motion to dismiss, the grounds and arguments interposed for the dismissal of this
case are determined to be not indubitable. Hence, the motion is denied for lack of merit.

The motion for preliminary attachment is granted in the interest of justice, upon the
plaintiff's filing of a bond in the sum of P50,000.00.

Upon Montoya's filing of the required bond, the trial court issued on 28 July 1987 an Order 15 decreeing
the issuance of a writ of attachment and directing the sheriff to serve the writ immediately at the expense
of the private respondent. The writ of attachment was issued on that same date. 16

Instead of filing a motion to reconsider the last two (2) orders, or an answer — insofar as Bradford is
concerned — both the latter and the public petitioner filed on 6 August 1987 the instant petition to annul
and set aside the above Resolution of 17 July 1987 and the writ of attachment issued pursuant thereto. As
grounds therefor, they allege that:

10. The respondent judge committed a grave abuse of discretion amounting to lack of
jurisdiction in denying the motion to dismiss the complaint in Civil Case No. 224-87 "for
lack of merit." For the action was in effect a suit against the United States of America, a
foreign sovereign immune from suit without its consent for the cause of action pleaded in
the complaint, while its co-petitioner was immune from suit for act(s) done by her in the
performance of her official functions as manager of the US Navy Exchange Branch at the
Headquarters of JUSMAG, under the Philippines-United States Military Assistance
Agreement of 1947 and Military Bases Agreement of 1947, as amended. 17
On 5 August 1987, the trial court set Civil Case No. 224-87 for pre-trial and trial on 27 August 1987 at
9:30 a.m. 18

On 12 August 1987, this Court resolved to require the respondents to comment on the petition. 19

On 19 August 1987, petitioners filed with the trial court a Motion

to Suspend Proceedings 20 which the latter denied in its Order of 21 August 1987. 21

In the meantime, however, for failure to file an answer, Bradford was declared in default in Civil Case
No. 224-87 and Montoya was allowed to present her evidence ex-parte. 22 She thus took the witness stand
and presented Mrs. Nam Thi Moore and Mrs. Miss Yu as her witnesses.

On 10 September 1987, the trial court rendered its decision 23 in Civil Case No. 224-87, the dispositive
portion of which reads:

Prescinding from the foregoing, it is hereby determined that the unreasonable search on
the plaintiff's person and bag caused (sic) done recklessly and oppressively by the
defendant, violated, impaired and undermined the plaintiff's liberty guaranteed by the
Constitution, entitling her to moral and exemplary damages against the defendant. The
search has unduly subjected the plaintiff to intense humiliation and indignities and had
consequently ridiculed and embarrassed publicly said plaintiff so gravely and
immeasurably.

WHEREFORE, judgment is hereby rendered for the plaintiff and against the defendant
Maxine Bradford assessing the latter to pay unto the former the sums of P300,000.00 for
moral damages, P100,000.00 for exemplary damages and P50,000.00 for actual expenses
and attorney's fees.

No costs.

SO ORDERED. 24

Bradford received a copy of the decision on 21 September 1987. On that same date, she and the public
petitioner filed with this Court a Petition for Restraining Order 25 which sought to have the trial court's
decision vacated and to prevent the execution of the same; it was also prayed that the trial court be
enjoined from continuing with Civil Case No. 224-87. We noted this pleading in the Resolution of 23
September 1987. 26

In the meantime, since no motion for reconsideration or appeal had been interposed by Bradford
challenging the 10 September 1987 Decision which she had received on 21 September 1987, respondent
Judge issued on 14 October 1987 an order directing that an entry of final judgment be made. A copy
thereof was received by Bradford on 21 October, 1987. 27

Also on 14 October 1987, Montoya filed her Comment with Opposition to the Petition for Restraining
Order. 28Respondent Judge had earlier filed his own Comment to the petition on 14 September 1987. 29

On 27 October 1987, Montoya filed before the trial court a motion for the execution of the Decision of 10
September 1987 which petitioners opposed on the ground that although this Court had not yet issued in
this case a temporary restraining order, it had nevertheless resolved to require the respondents to
comment on the petition. It was further averred that execution thereof would cause Bradford grave injury;
moreover, enforcement of a writ of execution may lead to regrettable incidents and unnecessarily
complicate the situation in view of the public petitioner's position on the issue of the immunity of its
employees. In its Resolution of 11 November 1987, the trial court directed the issuance of a writ of
execution. 30

Consequently, the petitioners filed on 4 December 1987, a Manifestation and Motion reciting the
foregoing incidents obtaining before the trial court and praying that their petition for a restraining order
be resolved. 31

On 7 December 1987, this Court issued a Temporary Restraining Order "ENJOINING the respondents
and the Provincial Sheriff of Pasig, Metro Manila, from enforcing the Decision dated September 10,
1987, and the Writs of Attachment and Execution issued in Civil Case No. 224-87." 32

On 28 November 1988, after the private respondent filed a Rejoinder to the Consolidated Reply to the
Comments filed by the petitioners, this Court gave due course to the petition and required the parties to
submit their respective memoranda-Petitioners filed their Memorandum on 8 February
1989 33 while private respondent filed her Memorandum on 14 November
1990. 34

The kernel issue presented in this case is whether or not the trial court committed grave abuse of
discretion in denying the motion to dismiss based on the following grounds: (a) the complaint in Civil
Case No. 224-87 is in effect a suit against the public petitioner, a foreign sovereign immune from suit
which has not given consent to such suit and (b) Bradford is immune from suit for acts done by her in the
performance of her official functions as manager of the U.S. Navy Exchange of JUSMAG pursuant to the
Philippines-United States Military Assistance Agreement of 1947 and the Military Bases Agreement of
1947, as amended.

Aside from maintaining the affirmative view, the public petitioner and Bradford even go further by
asserting that even if the latter's act were ultra vires she would still be immune from suit for the rule that
public officers or employees may be sued in their personal capacity for ultra vires and tortious acts is
"domestic law" and not applicable in International Law. It is claimed that the application of the immunity
doctrine does not turn upon the lawlessness of the act or omission attributable to the foreign national for if
this were the case, the concept of immunity would be meaningless as inquiry into the lawlessness or
illegality of the act or omission would first have to be made before considering the question of immunity;
in other words, immunity will lie only if such act or omission is found to be lawful.

On the other hand, Montoya submits that Bradford is not covered by the protective mantle of the doctrine
of sovereign immunity from suit as the latter is a mere civilian employee of JUSMAG performing non-
governmental and proprietary functions. And even assuming arguendo that Bradford is performing
governmental functions, she would still remain outside the coverage of the doctrine of state immunity
since the act complained of is ultra vires or outside the scope of her authority. What is being questioned
is not the fact of search alone, but also the manner in which the same was conducted as well as the fact of
discrimination against Filipino employees. Bradford's authority to order a search, it is asserted, should
have been exercised with restraint and should have been in accordance with the guidelines and procedures
laid down by the cited "NAVRESALEACT, Subic Inst." Moreover, ultra vires acts of a public officer or
employee, especially tortious and criminal acts, are his private acts and may not be considered as acts of
the State. Such officer or employee alone is answerable for any liability arising therefrom and may thus
be proceeded against in his personal capacity.
Montoya further argues that both the acts and person of Bradford are not exempt from the Philippine
courts' jurisdiction because (a) the search was conducted in a parking lot at Scout Borromeo, Quezon
City, outside the JUSMAG store and, therefore, outside the territorial control of the U.S. Military Bases in
the Philippines; (b) Bradford does not possess diplomatic immunity under Article 16(b) of the 1953
Military Assistance Agreement creating the JUSMAG which provides that only the Chief of the Military
Advisory Group and not more than six (6) other senior members thereof designated by him will be
accorded diplomatic immunity; 35 and (c) the acts complained of do not fall under those offenses where
the U.S. has been given the right to exercise its jurisdiction (per Article 13 of the 1947 Military Bases
Agreement, as amended by the, Mendez-Blair Notes of 10 August 1965). 36

Finally, Montoya maintains that at the very least, Philippine courts may inquire into the factual
circumstances of the case to determine whether petitioner Bradford is immune from suit or exempt from
Philippine jurisdiction. To rule otherwise would render the Philippine courts powerless as they may be
easily divested of their jurisdiction upon the mere invocation of this principle of immunity from suit.

A careful review of the records of this case and a judicious scrutiny of the arguments of both parties yield
nothing but the weakness of the petitioners' stand. While this can be easily demonstrated, We shall first
consider some procedural matters.

Despite the fact that public petitioner was not impleaded as a defendant in Civil Case No. 224-87, it
nevertheless joined Bradford in the motion to dismiss — on the theory that the suit was in effect against it
— without, however, first having obtained leave of court to intervene therein. This was a procedural
lapse, if not a downright improper legal tack. Since it was not impleaded as an original party, the public
petitioner could, on its own volition, join in the case only by intervening therein; such intervention, the
grant of which is discretionary upon the court, 37 may be allowed only upon a prior motion for leave with
notice to all the parties in the action. Of course, Montoya could have also impleaded the public petitioner
as an additional defendant by amending the complaint if she so believed that the latter is an indispensible
or necessary party.

Since the trial court entertained the motion to dismiss and the subsequent pleadings filed by the public
petitioner and Bradford, it may be deemed to have allowed the public petitioner to intervene. Corollarily,
because of its voluntary appearance, the public petitioner must be deemed to have submitted itself to the
jurisdiction of the trial court.

Moreover, the said motion does not specify any of the grounds for a motion to dismiss enumerated in
Section 1, Rule 16 of the Rules of Court. It merely recites state immunity on the part of the public
petitioner and immunity on the part of Bradford for the reason that the act imputed to her was done in the
performance of her official functions. The upshot of this contention is actually lack of cause of action —
a specific ground for dismissal under the aforesaid Rule — because assuming arguendo that Montoya's
rights had been violated by the public petitioner and Bradford, resulting in damage or injury to the former,
both would not be liable therefor, and no action may be maintained thereon, because of the principle of
state immunity.

The test of the sufficiency of the facts to constitute a cause of action is whether or not, admitting the facts
alleged in the complaint, the court could render a valid judgment upon the same, in accordance with the
prayer in the complaint. 38

A motion to dismiss on the ground of failure to state a cause of action hypothetically admits the truth of
the allegations in the complaint.
In deciding a motion to dismiss, a court may grant, deny, allow amendments to the pleadings or defer the
hearing and determination of the same if the ground alleged does not appear to be indubitable. 39 In the
instant case, while the trial court concluded that "the grounds and arguments interposed for the dismissal"
are not "indubitable," it denied the motion for lack of merit. What the trial court should have done was to
defer there solution on the motion instead of denying it for lack of merit.

In any event, whatever may or should have been done, the public petitioner and Bradford were not
expected to accept the verdict, making their recourse to this Court via the instant petition inevitable. Thus,
whether the trial court should have deferred resolution on or denied outright the motion to dismiss for
lack of merit is no longer pertinent or relevant.

The complaint in Civil Case No. 224-87 is for damages arising from what Montoya describes as an
"illegal search" on her "person and belongings" conducted outside the JUSMAG premises in front of
many people and upon the orders of Bradford, who has the propensity for laying suspicion on Filipinos
for theft or shoplifting. It is averred that the said search was directed only against Montoya.

Howsoever viewed, it is beyond doubt that Montoya's cause of action is premised on the theory that the
acts complained of were committed by Bradford not only outside the scope of her authority — or more
specifically, in her private capacity — but also outside the territory where she exercises such authority,
that is, outside the NEX-JUSMAG — particularly, at the parking area which has not been shown to form
part of the facility of which she was the manager. By their motion to dismiss, public petitioner and
Bradford are deemed to have hypothetically admitted the truth of the allegation in the complaint which
support this theory.

The doctrine of state immunity and the exceptions thereto are summarized in Shauf vs. Court of
Appeals, 40 thus:

I. The rule that a state may not be sued without its consent, now expressed in Article XVI
Section 3, of the 1987 Constitution, is one of the generally accepted principles of
international law that we have adopted as part of the law of our land under Article II,
Section 2. This latter provision merely reiterates a policy earlier embodied in the 1935
and 1973 Constitutions and also intended to manifest our resolve to abide by the rules of
the international community. 41

While the doctrine appears to prohibit only suits against the state without its consent, it is
also applicable to complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties. The rule is that if the judgment
against such officials will require the state itself to perform an affirmative act to satisfy
the same, such as the appropriation of the amount needed to pay the damages awarded
against them, the suit must be regarded as against the state itself although it has not been
formally impleaded. 42 It must be noted, however, that the rule is not so all-encompassing
as to be applicable under all circumstances.

It is a different matter where the public official is made to account in his capacity as such
for acts contrary to law and injurious to the rights of plaintiff. As was clearly set forth by
Justice Zaldivar in Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc.,
et al. 43 "Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts
of government officials or officers are not acts of the State, and an action against the
officials or officers by one whose rights have been invaded or violated by such acts, for
the protection of his rights, is not a suit against the State within the rule of immunity of
 the State from suit. In the same tenor, it has been said that an action at law or suit in
equity against a State officer or the director of a State department on the ground that,
while claiming to act or the State, he violates or invades the personal and property rights
of the plaintiff, under an unconstitutional act or under an assumption of authority which
he does not have, is not a suit against the State within
the constitutional provision that the State may not be sued without its consent." 44 The
rationale for this ruling is that the doctrinaire of state immunity cannot be used as an
instrument for perpetrating an injustice. 45

In the case of Baer, etc. vs. Tizon, etc., et al.,  46 it was ruled that:

There should be no misinterpretation of the scope of the decision reached

by this Court. Petitioner, as the Commander of the United States Naval
Base in Olongapo, does not possess diplomatic immunity. He may
therefore be proceeded against in his personal capacity, or when the
action taken by him cannot be imputed to the government which he
represents.

Also, in Animos, et al. vs. Philippine Veterans Affairs Office, et al.,  47 we held that:

. . . it is equally well-settled that where a litigation may have adverse

consequences on the public treasury, whether in the disbursements of
funds or loss of property, the public official proceeded against not being
liable in his personal capacity, then the doctrine of non-suability may
appropriately be invoked. It has no application, however, where the suit
against such a functionary had to be instituted because of his failure to
comply with the duty imposed by statute appropriating public funds for
the benefit of plaintiff or petitioner. . . . .

The aforecited authorities are clear on the matter. They state that the doctrine of
immunity from suit will not apply and may not be invoked where the public official is
being sued in his private and personal capacity as an ordinary citizen. The cloak of
protection afforded the officers and agents of the government is removed the moment
they are sued in their individual capacity. This situation usually arises where the public
official acts without authority or in excess of the powers vested in him. It is a well-settled
principle of law that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done
with malice and in bad faith, or beyond the scope of his authority or jurisdiction. 48

The agents and officials of the United States armed forces stationed in Clark Air Base are
no exception to this rule. In the case of United States of America, et al. vs. Guinto, etc., et
al., ante, 49 we declared:

It bears stressing at this point that the above observations do not confer
on the United States of America Blanket immunity for all acts done by it
or its agents in the Philippines. Neither may the other petitioners claim
that they are also insulated from suit in this country merely because they
have acted as agents of the United States in the discharge of their official
functions.
Since it is apparent from the complaint that Bradford was sued in her private or personal capacity for acts
allegedly done beyond the scope and even beyond her place of official functions, said complaint is not
then vulnerable to a motion to dismiss based on the grounds relied upon by the petitioners because as a
consequence of the hypothetical admission of the truth of the allegations therein, the case falls within the
exception to the doctrine of state immunity.

In the recent cases of Williams vs. Rarang  50 and Minucher vs. Court of Appeals, 51 this Court reiterated
this exception. In the former, this Court observed:

There is no question, therefore, that the two (2) petitioners actively participated in
screening the features and articles in the POD as part of their official functions. Under the
rule that U.S. officials in the performance of their official functions are immune from
suit, then it should follow that petitioners may not be held liable for the questioned
publication.

It is to be noted, however, that the petitioners were sued in their personal capacities for
their alleged tortious acts in publishing a libelous article.

The question, therefore, arises — are American naval officers who commit a crime or
tortious act while discharging official functions still covered by the principle of state
immunity from suit? Pursuing the question further, does the grant of rights, power, and
authority to the United States under the RP-US Bases Treaty cover immunity of its
officers from crimes and torts? Our answer is No.

In the latter, even on the claim of diplomatic immunity — which Bradford does not in fact pretend to
have in the instant case as she is not among those granted diplomatic immunity under Article 16(b) of the
1953 Military Assistance Agreement creating the JUSMAG 52 — this Court ruled:

Even Article 31 of the Vienna Convention on Diplomatic Relations admits of exceptions.

It reads:

1. A diplomatic agent shall enjoy immunity from the criminal

jurisdiction of the receiving State. He shall also enjoy immunity from its
civil and administrative jurisdiction except in the case of:

x x x           x x x          x x x

(c) an action relating to any professional or commercial

activity exercised by the diplomatic agent in the
receiving State outside his official functions (Emphasis
supplied).

There can be no doubt that on the basis of the allegations in the complaint, Montoya has a sufficient and
viable cause of action. Bradford's purported non-suability on the ground of state immunity is then a
defense which may be pleaded in the answer and proven at the trial.

Since Bradford did not file her Answer within the reglementary period, the trial court correctly declared
her in default upon motion of the private respondent. The judgment then rendered against her on 10
September 1987 after the ex parte reception of the evidence for the private respondent and before this
Court issued the Temporary Restraining Order on 7 December 1987 cannot be impugned. The filing of
the instant petition and the knowledge thereof by the trial court did not prevent the latter from proceeding
with Civil Case No.
224-87. "It is elementary that the mere pendency of a special civil action for certiorari, commenced in
relation to a case pending before a lower Court, does not interrupt the course of the latter when there is no
writ of injunction restraining it." 53

WHEREFORE, the instant petition is DENIED for lack of merit. The Temporary Restraining Order of 7
December 1987 is hereby LIFTED.

Costs against petitioner Bradford.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo,
Melo and Campos, Jr., JJ., concur.

Quiason, J., took no part.

Gutierrez, Jr., J., is on leave.