G.R. No. L-30671 November 28, 1973


HON. GUILLERMO P. VILLASOR, as Judge of the Court of First Instance
Court of First Instance of Cebu, P. J. KIENER CO., LTD., GAVINO

Office of the Solicitor General Felix V. Makasiar and Solicitor Bernardo P. Pardo for petitioner.

Andres T. Velarde and Marcelo B. Fernan for respondents.



The Republic of the Philippines in this certiorari
and prohibition proceeding challenges the validity of an order issued
by respondent Judge Guillermo P. Villasor, then of the Court of First
Instance of Cebu, Branch I,
declaring a decision final and executory and of an alias writ of
execution directed against the funds of the Armed Forces of the
Philippines subsequently issued in pursuance thereof, the alleged
ground being excess of jurisdiction, or at the very least, grave abuse
of discretion. As thus simply and tersely put, with the facts being
undisputed and the principle of law that calls for application
indisputable, the outcome is predictable. The Republic of the
Philippines is entitled to the writs prayed for. Respondent Judge ought
not to have acted thus. The order thus impugned and the alias writ of
execution must be nullified.

the petition filed by the Republic of the Philippines on July 7, 1969,
a summary of facts was set forth thus: “7. On July 3, 1961, a decision
was rendered in Special Proceedings No. 2156-R in favor of respondents
P. J. Kiener Co., Ltd., Gavino Unchuan, and International Construction
Corporation, and against the petitioner herein, confirming the
arbitration award in the amount of P1,712,396.40, subject of Special
Proceedings. 8. On June 24, 1969, respondent Honorable Guillermo P.
Villasor, issued an Order declaring the aforestated decision of July 3,
1961 final and executory, directing the Sheriffs of Rizal Province,
Quezon City [as well as] Manila to execute the said decision. 9.
Pursuant to the said Order dated June 24, 1969, the corresponding Alias
Writ of Execution [was issued] dated June 26, 1969, …. 10. On the
strength of the afore-mentioned Alias Writ of Execution dated June 26,
1969, the Provincial Sheriff of Rizal (respondent herein) served
notices of garnishment dated June 28, 1969 with several Banks,
specially on the “monies due the Armed Forces of the Philippines in the
form of deposits sufficient to cover the amount mentioned in the said
Writ of Execution”; the Philippine Veterans Bank received the same
notice of garnishment on June 30, 1969 …. 11. The funds of the Armed
Forces of the Philippines on deposit with the Banks, particularly, with
the Philippine Veterans Bank and the Philippine National Bank [or]
their branches are public funds duly appropriated and allocated for the
payment of pensions of retirees, pay and allowances of military and
civilian personnel and for maintenance and operations of the Armed
Forces of the Philippines, as per Certification dated July 3, 1969 by
the AFP Controller,…”
The paragraph immediately succeeding in such petition then alleged:
“12. Respondent Judge, Honorable Guillermo P. Villasor, acted in excess
of jurisdiction [or] with grave abuse of discretion amounting to lack
of jurisdiction in granting the issuance of an alias writ of execution
against the properties of the Armed Forces of the Philippines, hence,
the Alias Writ of Execution and notices of garnishment issued pursuant
thereto are null and void.”
In the answer filed by respondents, through counsel Andres T. Velarde
and Marcelo B. Fernan, the facts set forth were admitted with the only
qualification being that the total award was in the amount of

The Republic of the Philippines, as mentioned at the outset, did right in filing this certiorari and prohibition proceeding. What was done by respondent Judge is not in conformity with the dictates of the Constitution. .

is a fundamental postulate of constitutionalism flowing from the
juristic concept of sovereignty that the state as well as its
government is immune from suit unless it gives its consent. It is
readily understandable why it must be so. In the classic formulation of
Holmes: “A sovereign is exempt from suit, not because of any formal
conception or obsolete theory, but on the logical and practical ground
that there can be no legal right as against the authority that makes
the law on which the right depends.”
5 Sociological jurisprudence supplies an answer not dissimilar. So it was indicated in a recent decision, Providence Washington Insurance Co. v. Republic of the Philippines, 6
with its affirmation that “a continued adherence to the doctrine of
non-suability is not to be deplored for as against the inconvenience
that may be caused private parties, the loss of governmental efficiency
and the obstacle to the performance of its multifarious functions are
far greater if such a fundamental principle were abandoned and the
availability of judicial remedy were not thus restricted. With the well
known propensity on the part of our people to go to court, at the least
provocation, the loss of time and energy required to defend against law
suits, in the absence of such a basic principle that constitutes such
an effective obstacle, could very well be imagined.”

fundamental postulate underlying the 1935 Constitution is now made
explicit in the revised charter. It is therein expressly provided: “The
State may not be sued without its consent.”
A corollary, both dictated by logic and sound sense from a basic
concept is that public funds cannot be the object of a garnishment
proceeding even if the consent to be sued had been previously granted
and the state liability adjudged. Thus in the recent case of Commissioner of Public Highways v. San Diego,
such a well-settled doctrine was restated in the opinion of Justice
Teehankee: “The universal rule that where the State gives its consent
to be sued by private parties either by general or special law, it may
limit claimant’s action ‘only up to the completion of proceedings
anterior to the stage of execution’ and that the power of the Courts
ends when the judgment is rendered, since government funds and
properties may not be seized under writs of execution or garnishment to
satisfy such judgments, is based on obvious considerations of public
policy. Disbursements of public funds must be covered by the
corresponding appropriation as required by law. The functions and
public services rendered by the State cannot be allowed to be paralyzed
or disrupted by the diversion of public funds from their legitimate and
specific objects, as appropriated by law.”
10 Such a principle applies even to an attempted garnishment of a salary that had accrued in favor of an employee. Director of Commerce and Industry v. Concepcion, 11
speaks to that effect. Justice Malcolm as ponente left no doubt on that
score. Thus: “A rule which has never been seriously questioned, is that
money in the hands of public officers, although it may be due
government employees, is not liable to the creditors of these employees
in the process of garnishment. One reason is, that the State, by virtue
of its sovereignty, may not be sued in its own courts except by express
authorization by the Legislature, and to subject its officers to
garnishment would be to permit indirectly what is prohibited directly.
Another reason is that moneys sought to be garnished, as long as they
remain in the hands of the disbursing officer of the Government, belong
to the latter, although the defendant in garnishment may be entitled to
a specific portion thereof. And still another reason which covers both
of the foregoing is that every consideration of public policy forbids

the light of the above, it is made abundantly clear why the Republic of
the Philippines could rightfully allege a legitimate grievance.

WHEREFORE, the writs of certiorari
and prohibition are granted, nullifying and setting aside both the
order of June 24, 1969 declaring executory the decision of July 3, 1961
as well as the alias writ of execution issued thereunder. The
preliminary injunction issued by this Court on July 12, 1969 is hereby
made permanent.

Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur.

Barredo, J, took no part.

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