On 7 April 1986, in connection with criminal proceedings initiated in the Philippines to locate, sequester and seek restitution of alleged ill-gotten wealth amassed by the Marcoses and other accused from the Philippine Government, the Office of the Solicitor General (OSG) wrote the Federal Office for Police Matters in Berne, Switzerland, requesting assistance for the latter office to: (a) ascertain and provide the OSG with information as to where and in which cantons the ill-gotten fortune of the Marcoses and other accused are located, the names of the depositors and the banks and the amounts involved; and (b) take necessary precautionary measures, such as sequestration, to freeze the assets in order to preserve their existing value and prevent any further transfer thereof (herein referred as the IMAC request).

    On 29 May 1986, the Office of the District Attorney in Zurich, pursuant to the OSG’s request, issued an Order directing the Swiss Banks in Zurich to freeze the accounts of the accused in PCGG I.S. No. 1 and in the “List of Companies and Foundations”. In compliance with said Order, Bankers Trust A.G. (BTAG) of Zurich froze the accounts of Officeco Holdings, N.V. (Officeco).

    Officeco appealed the Order of the District Attorney to the Attorney General of the Canton of Zurich. The Attorney General affirmed the Order of the District Attorney. Officeco further appealed to the Swiss Federal Court which likewise dismissed the appeal on 31 May 1989.

    Officeco made representations with the OSG and the PCGG for them to officially advise the Swiss Federal Office for Police Matters to unfreeze Officeco’s assets. The PCGG required Officeco to present countervailing evidence to support its request, but instead of complying with the PCGG requirement for it to submit countervailing evidence, Officeco filed the complaint with the SB praying for the PCGG and the OSG to officially advise the Swiss government to exclude from the freeze or sequestration order the account of Officeco with BTAG and to unconditionally release the said account to Officeco.

    A motion to dismiss was filed but it was denied hence, a petition was brought to the SC claiming that the civil action in effect seeks a judicial review of the legality or illegality of the acts of the Swiss government since the Sandiganbayan would inevitably examine and review the freeze orders of Swiss officials in resolving the case. This would be in violation of the “act of state” doctrine which states that courts of one country will not sit in judgment on the acts of the government of another in due deference to the independence of sovereignty of every sovereign state.

    Furthermore, if the Sandiganbayan allowed the complaint to prosper, this would place the Philippine government in an uncompromising position as it would be constrained to take a position contrary to that contained in the IMAC request. Is the contention correct?

No. The parameters of the use of the act of state doctrine were clarified in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398; 84 S. Ct. 923 (1964). There, the U.S. Supreme Court held that international law does not require the application of this doctrine nor does it forbid the application of the rule even if it is claimed that the act of state in question violated international law. moreover, due to the doctrine’s peculiar nation-to-nation character, in practice the usual method for an individual to seek relief is to exhaust local remedies and then repair to the executive authorities of his own state to persuade them to champion his claim in diplomacy or before an international tribunal.

    Even assuming that international law requires the application of the act of state doctrine, it bears stressing that the Sandiganbayan will not examine and review the freeze orders of the concerned Swiss officials in Civil Case No. 0164. The Sandiganbayan will not require the Swiss officials to submit to its adjudication nor will it settle a dispute involving said officials. In fact, as prayed for in the complaint, the Sandiganbayan will only review and examine the propriety of maintaining PCGG’s position with respect to Officeco’s accounts with BTAG for the purpose of further determining the propriety of issuing a writ against the PCGG and the OSG. Everything considered, the act of state doctrine finds no application in this case and petitioners’ resort to it is utterly mislaid. (PCGG, et al. v. SB, et al., G.R. No. 124772, August 14, 2007, Tinga, J).

    The classic American statement of the act of state doctrine, which appears to have taken root in England as early as 1674 (Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S. Ct. 923 (1964), citing Blad v. Bamfield, 3 Swans. 604, 36 Eng. Rep. 992), and began to emerge in American jurisprudence in the late eighteenth and early nineteenth centuries, is found in Underhill v. Hernandez, 168 U.S. 250, 18 S. Ct. 83, 42 L. Ed. 456 (1897), where Chief Justice Fuller said for a unanimous Court:

Every sovereign state is bound to respect the independence of every other state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its territory, redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves. (Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S. Ct. 923 (1964), citing Underhill v. Hernandez, 168 U.S. 250, 18 S. Ct. 83, 42 L. Ed. 456 (1897)).

    The act of state doctrine is one of the methods by which States prevent their national courts from deciding disputes which relate to the internal affairs of another State, the other two being immunity and non-justiciability. (EVANS, M.D. (ED.), International Law (First Edition), Oxford University Press, p. 357). It is an avoidance technique that is directly related to a State’s obligation to respect the independence and equality of other States by not requiring them to submit to adjudication in a national court or to settlement of their disputes without their consent. It requires the forum court to exercise restraint in the adjudication of disputes relating to legislative or other governmental acts which a foreign State has performed within its territorial limits.