THIRD DIVISION

[G.R. No. 74135. May 28, 1992.]

M. H. WYLIE and CAPT. JAMES WILLIAMS , petitioners, vs. AURORA I.

RARANG and THE HONORABLE INTERMEDIATE APPELLATE COURT ,
respondents.

SYLLABUS

1. POLITICAL LAW; STATE IMMUNITY FROM SUIT; BASIS AND JUSTIFICATION FOR
ENFORCEMENT OF DOCTRINE. — In the case of United States of America v. Guinto (182
SCRA 644 [1990]), we discussed the principle of the state immunity from suit as follows:
"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. . . . Even without such affirmation, we would still be bound by the generally
accepted principles of international law under the doctrine of incorporation. Under this
doctrine, as accepted by the majority of states, such principles are deemed incorporated
in the law of every civilized state as a condition and consequence of its membership in the
society of nations. Upon its admission to such society, the state is automatically obligated
to comply with these principles in its relations with other states. As applied to the local
state, the doctrine of state immunity is based on the justification given by Justice Holmes
that 'there can be no legal right against the authority which makes the law on which the
right depends.' (Kawanakoa v. Polybank, 205 U.S. 349) There are other practical reasons
for the enforcement of the doctrine. In the case of the foreign state sought to be
impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in
parem, non habet imperium. All states are sovereign equals and cannot assert jurisdiction
over one another. A contrary disposition would, in the language of a celebrated case,
'unduly vex the peace of nations.' (Da Haber v. Queen of Portugal, 17 Q.B. 171)
2. ID.; ID.; PROHIBITED SUITS; GENERAL RULE; EXCEPTIONS; QUALIFICATION OF
RULES. — 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. (Garcia v. Chief of Staff, 16 SCRA 120) In such a situation, the
state may move to dismiss the complaint on the ground that it has been filed without its
consent. The doctrine is sometimes derisively called 'the royal prerogative of dishonesty'
because of the privilege it grants the state to defeat any legitimate claim against it by
simply invoking its non-suability. That is hardly fair, at least in democratic societies, for the
state is not an unfeeling tyrant unmoved by the valid claims of its citizens. In fact, the
doctrine is not absolute and does not say the state may not be sued under any
circumstance. On the contrary, the rule says that the state may not be sued without its
consent, which clearly imports that it may be sued if it consents. The consent of the state
to be sued may be manifested expressly or impliedly. Express consent may be embodied
in a general law or a special law. Consent is implied when the state enters into a contract it
itself commences litigation. . . . The above rules are subject to qualification. Express
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 consent is effected only by the will of the legislature through the medium of a duly enacted
statute. (Republic v. Purisima, 78 SCRA 470) We have held that not all contracts entered
into by the government will operate as a waiver of its non-suability; distinction must be
made between its sovereign and proprietary acts. (United States of America v. Ruiz, 136
SCRA 487) As for the filing of a complaint by the government, suability will result only
where the government is claiming affirmative relief from the defendant. (Lim v. Brownell,
107 Phil. 345)"
3. ID.; ID.; IMMUNITY FROM SUIT OF UNITED STATES AND ITS PERSONNEL
STATIONED IN PHILIPPINE TERRITORY; NATURE AND EXTENT; WAIVER OF IMMUNITY. —
"In the case of the United States of America, the customary rule of international law on
state immunity is expressed with more specificity in the RP-US Bases Treaty. Article III
thereof provides as follows: '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, operation and defense thereof or appropriate for the control thereof and all the rights,
power and authority within the limits of the territorial waters and air space adjacent to, or
in the vicinity of, the bases which are necessary to provide access to them or appropriate
for their control.'" . . . It bears stressing at this point that the above observations do not
confer on the United States of America a 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. There is no question that the United
States of America, like any other state, will be deemed to have impliedly waived its non-
suability if it has entered into a contract in its proprietary or private capacity. It is only
when the contract involves its sovereign or governmental capacity that no such waiver may
be implied. This was our ruling in United States of America v. Ruiz, (136 SCRA 487) where
the transaction in question dealt with the improvement of the wharves in the naval
installation at Subic Bay. As this was a clearly governmental function, we held that the
contract did not operate to divest the United States of its sovereign immunity from suit.
4. ID.; ID.; ID.; MERE ASSERTION OF NON-SUABILITY NOT GROUND FOR SUMMARY
DISMISSAL OF CHARGES. — The other petitioners in the cases before us all aver they have
acted in the discharge of their official functions as officers or agents of the United States.
However, this is a matter of evidence. The charges against them may not be summarily
dismissed on their mere assertion that their acts are imputable to the United States of
America, which has not given its consent to be sued. In fact, the defendants are sought to
be held answerable for personal torts in which the United States itself is not involved. If
found liable, they and they alone must satisfy the judgment."
5. ID.; ID.; ID.; TORTS AND CRIMES NOT COVERED BY IMMUNITY AGREEMENT. —
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. Killing a person in cold blood while on patrol duty, running over a child
while driving with reckless imprudence on an official trip, or slandering a person during
office hours could not possibly be covered by the immunity agreement. Our laws and, we
presume, those of the United States do not allow the commission of crimes in the name of
official duty.
6. ID.; ID.; PUBLIC OFFICIALS PERSONALLY ACCOUNTABLE FOR ULTRA VIRES ACTS;
IMMUNITY FROM SUIT NOT GRANT OF PRIVILEGED STATUS. — The case of Chavez v.
Sandiganbayan, 193 SCRA 282 [1991] gives the law on immunity from suit of public
officials: "The general rule is that public officials can be held personally accountable for
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 acts claimed to have been performed in connection with official duties where they have
acted ultra vires or where there is showing of bad faith. . . . "Moreover, the petitioner's
argument that the immunity proviso under Section 4(a) of Executive Order No. 1 also
extends to him is not well-taken. A mere invocation of the immunity clause does not ipso
facto result in the charges being automatically dropped. . . . . "Immunity from suit cannot
institutionalize irresponsibility and non-accountability nor grant a privileged status not
claimed by any other official of the Republic. "Where the petitioner exceeds his authority as
Solicitor General, acts in bad faith, or, as contended by the private respondent, 'maliciously
conspir(es) with the PCGG commissioners in persecuting respondent Enrile by filing
against him an evidently baseless suit in derogation of the latter's constitutional rights and
liberties,' there can be no question that a complaint for damages does not confer a license
to persecute or recklessly injure another. The actions governed by Articles 19, 20, 21, and
32 of the Civil Code on Human Relations may be taken against public officers or private
citizens alike. . . ."
7. CIVIL LAW; DAMAGES; "FAULT" OR NEGLIGENCE INCLUDES CRIMINAL ACTS. —
Article 2176 of the Civil Code prescribes a civil liability for damages caused by a person's
act or omission constituting fault or negligence, to wit: "Article 2176. Whoever by act or
omission, causes damage to another, there being fault or negligence is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the provisions of this
Chapter." "Fault" or "negligence" in this Article covers not only acts "not punishable by law"
but also acts criminal in character, whether intentional or voluntary or negligent." (Andamo
v. Intermediate Appellate Court, 191 SCRA 195 [1990]).
8. ID.; ID.; MORAL DAMAGES RECOVERABLE IN CASE OF LIBEL, SLANDER OR OTHER
DEFAMATION; ALLEGATION OF FORGERY A DEFAMATION. — Article 2219(7) of the Civil
Code provides that moral damages may be recovered in case of libel, slander or any other
form of defamation. In effect, the offended party in these cases is given the right to receive
from the guilty party moral damages for injury to his feelings and reputation in addition to
punitive or exemplary damages. (Occena v. Icamina, 181 SCRA 328 [1990]. In another
case, Heirs of Basilisa Justiva v. Gustilo, 7 SCRA 72 [1963], we ruled that the allegation of
forgery of documents could be a defamation, which in the light of Article 2219(7) of the
Civil Code could by analogy be ground for payment of moral damages, considering the
wounded feelings and besmirched reputation of the defendants.

9. ID.; ID.; DEFAMATION ESTABLISHED IN CASE AT BAR. — Indeed the imputation of

theft contained in the POD dated February 3, 1978 is a defamation against the character
and reputation of the private respondent. Petitioner Wylie himself admitted that the Office
of the Provost Marshal explicitly recommended the deletion of the name Auring if the
article were published. The petitioners, however, were negligent because under their
direction they issued the publication without deleting the name "Auring." Such act or
omission is ultra vires and cannot be part of official duty. It was a tortious act which
ridiculed the private respondent.

DECISION

GUTIERREZ, JR. , J : p

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 The pivotal issue in this petition centers on the extent of the "immunity from suit" of the
officials of a United States Naval Base inside Philippine territory.
In February, 1978, petitioner M. H. Wylie was the assistant administrative officer while
petitioner Capt. James Williams was the commanding officer of the U. S. Naval Base in
Subic Bay, Olongapo City. Private respondent Aurora I. Rarang was an employee in the
Office of the Provost Marshal assigned as merchandise control guard.
M. H. Wylie, in his capacity as assistant administrative officer of the U.S. Naval Station
supervised the publication of the "Plan of the Day" (POD) which was published daily at the
US Naval Base station. The POD featured important announcements, necessary
precautions, and general matters of interest to military personnel. One of the regular
features of the POD was the "action line inquiry." On February 3, 1978, the POD published,
under the "NAVSTA ACTION LINE INQUIRY" the following:
"Question: I have observed that Merchandise Control inspector/inspectress are
(sic) consuming for their own benefit things they have confiscated from Base
Personnel. The observation is even more aggravated by consuming such
confiscated items as cigarettes and food stuffs PUBLICLY. This is not to mention
'Auring' who is in herself, a disgrace to her division and to the Office of the
Provost Marshal. In lieu of this observation, may I therefore, ask if the head of the
Merchandise Control Division is aware of this malpractice? prcd

Answer: Merchandise Control Guards and all other personnel are prohibited from
appropriating confiscated items for their own consumption or use. Two locked
containers are installed at the Main Gate area for deposit of confiscated items
and the OPM evidence custodian controls access to these containers.
Merchandise Control Guards are permitted to eat their meals at their worksite due
to heavy workload. Complaints regarding merchandise control guards procedure
or actions may be made directly at the Office of the Provost Marshal for
immediate and necessary action. Specific dates and time along with details of
suspected violations would be most appreciated. Telephone 4-3430/4-3234 for
further information or to report noted or suspected irregularities. Exhibits E & E-1."
(Rollo, pp. 11-12)

The private respondent was the only one who was named "Auring" in the Office of the
Provost Marshal. That the private respondent was the same "Auring" referred to in the POD
was conclusively proven when on February 7, 1978, petitioner M. H. Wylie wrote her a letter
of apology for the "inadvertent" publication. The private respondent then commenced an
action for damages in the Court of First Instance of Zambales (now Regional Trial Court)
against M. H. Wylie, Capt. James Williams and the U. S. Naval Base. She alleged that the
article constituted false, injurious, and malicious defamation and libel tending to impeach
her honesty, virtue and reputation exposing her to public hatred, contempt and ridicule; and
that the libel was published and circulated in the English language and read by almost all
the U.S. Naval Base personnel. She prayed that she be awarded P300,000.00 as moral
damages exemplary damages which the court may find proper; and P50,000.00 as
attorney's fees.
In response to the complaint, the defendants filed a motion to dismiss anchored on three
grounds: prcd

"1. Defendants M. H. Wylie and Capt. James Williams acted in the

performance of their official functions as officers of the United States Navy and
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 are, therefore, immune from suit;
2. The United States Naval Base is an instrumentality of the US government
which cannot be sued without its consent; and

3. This Court has no jurisdiction over the subject matter as well as the parties
in this case." (Record on Appeal, pp. 133-134)

The motion was, however, denied.

In their answer, the defendants reiterated the lack of jurisdiction of the court over the case.
In its decision, the trial court ruled that the acts of defendants M. H. Wylie and Capt. James
Williams were not official acts of the government of the United States of America in the
operation and control of the Base but personal and tortious acts which are exceptions to
the general rule that a sovereign country cannot be sued in the court of another country
without its consent. In short, the trial court ruled that the acts and omissions of the two US
officials were not imputable against the US government but were done in the individual and
personal capacities of the said officials. The trial court dismissed the suit against the US
Naval Base. The dispositive portion of the decision reads as follows:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against
the defendants jointly and severally, as follows:

1) Ordering defendants M. H. Wylie and Capt. James Williams to pay the

plaintiff Aurora Rarang the sum of one hundred thousand (100,000.00) pesos by
way of moral and exemplary damages;
2) Ordering defendants M. H. Wylie and Capt. James Williams to pay the
plaintiff the sum of thirty thousand (P30,000.00) pesos by way of attorney's fees
and expenses of litigation; and
3) To pay the costs of this suit.

Counterclaims are dismissed.

Likewise, the suit against the U. S. Naval Base is ordered dismissed." (Record on
Appeal, p. 154)

On appeal, the petitioners reiterated their stance that they are immune from suit since the
subject publication was made in their official capacities as officers of the U.S. Navy. They
also maintained that they did not intentionally and maliciously cause the questioned
publication. LexLib

The private respondent, not satisfied with the amount of damages awarded to her, also
appealed the trial court's decision.
Acting on these appeals, the Intermediate Appellate Court, now Court of Appeals, modified
the trial court's decision, to wit:
"WHEREFORE, the judgment of the court below is modified so that the defendants
are ordered to pay the plaintiff, jointly and severally, the sum of P175,000.00 as
moral damages and the sum of P60,000.00 as exemplary damages. The rest of
the judgment appealed from is hereby affirmed in toto. Costs against the
defendants-appellants." (Rollo, p. 44)

The appellate court denied a motion for reconsideration filed by the petitioners.
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 Hence, this petition.
In a resolution dated March 9, 1987, we gave due course to the petition.
The petitioners persist that they made the questioned publication in the performance of
their official functions as administrative assistant, in the case of M. H. Wylie, and
commanding officer, in the case of Capt. James Williams of the US Navy assigned to the U.
S. Naval Station, Subic Bay, Olongapo City and were, therefore, immune from suit for their
official actions.
In the case of United States of America v. Guinto (182 SCRA 644 [1990]), we discussed the
principle of the state immunity from suit as follows:
"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."
xxx xxx xxx
Even without such affirmation, we would still be bound by the generally accepted
principles of international law under the doctrine of incorporation. Under this
doctrine, as accepted by the majority of states, such principles are deemed
incorporated in the law of every civilized state as a condition and consequence of
its membership in the society of nations. Upon its admission to such society, the
state is automatically obligated to comply with these principles in its relations
with other states.

As applied to the local state, the doctrine of state immunity is based on the
justification given by Justice Holmes that 'there can be no legal right against the
authority which makes the law on which the right depends.' (Kawanakoa v.
Polybank, 205 U.S. 349) There are other practical reasons for the enforcement of
the doctrine. In the case of the foreign state sought to be impleaded in the local
jurisdiction, the added inhibition is expressed in the maxim par in parem, non
habet imperium. All states are sovereign equals and cannot assert jurisdiction
over one another. a contrary disposition would, in the language of a celebrated
case, 'unduly vex the peace of nations.' (Da Haber v. Queen of Portugal, 17 Q. B.
171)
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. (Garcia v.
Chief of Staff, 16 SCRA 120) In such a situation, the state may move to dismiss
the complaint on the ground that it has been filed without its consent.
The doctrine is sometimes derisively called 'the royal prerogative of dishonesty'
because of the privilege it grants the state to defeat any legitimate claim against
it by simply invoking its non-suability. That is hardly fair, at least in democratic
societies, for the state is not an unfeeling tyrant unmoved by the valid claims of
its citizens. In fact, the doctrine is not absolute and does not say the state may
not be sued under any circumstance. On the contrary, the rule says that the state
may not be sued without its consent, which clearly imports that it may be sued if
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 it consents. LLjur

The consent of the state to be sued may be manifested expressly or impliedly.

Express consent may be embodied in a general law or a special law. Consent is
implied when the state enters into a contract it itself commences litigation.
xxx xxx xxx
The above rules are subject to qualification. Express consent is effected only by
the will of the legislature through the medium of a duly enacted statute. (Republic
v. Purisima, 78 SCRA 470) We have held that not all contracts entered into by the
government will operate as a waiver of its non-suability; distinction must be made
between its sovereign and proprietary acts. (United States of America v. Ruiz, 136
SCRA 487) As for the filing of a complaint by the government, suability will result
only where the government is claiming affirmative relief from the defendant. (Lim
v. Brownell, 107 Phil. 345)" (at pp. 652-655).

In the same case we had opportunity to discuss extensively the nature and extent of
immunity from suit of United States personnel who are assigned and stationed in
Philippine territory, to wit:
"In the case of the United States of America, the customary rule of international
law on state immunity is expressed with more specificity in the RP-US Bases
Treaty. Article III thereof provides as follows:
'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, operation and defense thereof or appropriate for the
control thereof and all the rights, power and authority within the limits of
the territorial waters and air space adjacent to, or in the vicinity of, the
bases which are necessary to provide access to them or appropriate for
their control.'
The petitioners also rely heavily on Baer v. Tizon, (57 SCRA 1) along with several
other decisions, to support their position that they are not suable in the cases
below, the United States not having waived its sovereign immunity from suit. It is
emphasized that in Baer, the Court held:
'The invocation of the doctrine of immunity from suit of a foreign
state without its consent is appropriate. More specifically, insofar as alien
armed forces is concerned, the starting point is Raquiza v. Bradford, a
1945 decision. In dismissing a habeas corpus petition for the release of
petitioners confined by American army authorities, Justice Hilado,
speaking for the Court, cited Coleman v. Tennessee, where it was explicitly
declared: 'It is well settled that a foreign army, permitted to march through
a friendly country or to be stationed in it, by permission of its government
or sovereign, is exempt from the civil and criminal jurisdiction of the place.'
Two years later, in Tubb and Tedrow v. Griess, this Court relied on the
ruling in Raquiza v. Bradford and cited in support thereof excepts from the
works of the following authoritative writers: Vattel, Wheaton, Hall,
Lawrence, Oppenheim, Westlake, Hyde, and McNair and Lauterpacht.
Accuracy demands the clarification that after the conclusion of the
Philippine-American Military Bases Agreement, the treaty provisions should
control on such matter, the assumption being that there was a
manifestation of the submission to jurisdiction on the part of the foreign
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 power whenever appropriate. More to the point is Syquia v. Almeda Lopez,
where plaintiffs as lessors sued the Commanding General of the United
States Army in the Philippines, seeking the restoration to them of the
apartment buildings they owned leased to the United States armed forces
station in the Manila area. a motion to dismiss on the ground of non-
suability was filed and upheld by respondent Judge. The matter was taken
to this Court in a mandamus proceeding. It failed. It was the ruling that
respondent Judge acted correctly considering that the 'action must be
considered as one against the U.S. Government.' The opinion of Justice
Montemayor continued: 'It is clear that the courts of the Philippines
including the Municipal Court of Manila have no jurisdiction over the
present case for unlawful detainer. The question of lack of jurisdiction was
raised and interposed at the very beginning of the action. The U.S.
Government has not given its consent to the filing of this suit which is
essentially against her, though not in name. Moreover, this is not only a
case of a citizen filing a suit against his own Government without the
latter's consent but it is of a citizen filing an action against a foreign
government without said government's consent, which renders more
obvious the lack of jurisdiction of the courts of his country. The principles
of law behind this rule are so elementary and of such general acceptance
that we deem it unnecessary to cite authorities in support thereof.'
xxx xxx xxx
It bears stressing at this point that the above observations do not confer on the
United States of America a 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. LLjur

There is no question that the United States of America, like any other state, will be
deemed to have impliedly waived its non-suability if it has entered into a contract
in its proprietary or private capacity. It is only when the contract involves its
sovereign or governmental capacity that no such waiver may be implied. This
was our ruling in United States of America v. Ruiz, (136 SCRA 487) where the
transaction in question dealt with the improvement of the wharves in the naval
installation at Subic Bay. As this was a clearly governmental function, we held
that the contract did not operate to divest the United States of its sovereign
immunity from suit. In the words of Justice Vicente Abad Santos:
'The traditional rule of immunity excepts a State from being sued in
the courts of another State without its consent or waiver. This rule is a
necessary consequence of the principles of independence and equality of
States. However, the rules of International Law are not petrified; they are
constantly developing and evolving. And because the activities of states
have multiplied, it has been necessary to distinguish them - between
sovereign and governmental acts (jure imperii) and private, commercial
and proprietary acts (jure gestionis). The result is that State immunity now
extends only to acts jure imperii. The restrictive application of State
immunity is now the rule in the United States, the United Kingdom and
other states in Western Europe.

xxx xxx xxx

The restrictive application of State immunity is proper only when the
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 proceedings arise out of commercial transactions of the foreign sovereign,
its commercial activities or economic affairs. Stated differently, a State
may be said to have descended to the level of an individual and can thus
be deemed to have tacitly given its consent to be sued only when it enters
into business contracts. It does not apply where the contract relates to the
exercise of its sovereign functions. In this case the projects are integral
part of the naval base which is devoted to the defense of both the United
States and the Philippines, indisputably a function of the government of
the highest order; they are not utilized for nor dedicated to commercial or
business purposes.'

The other petitioners in the cases before us all aver they have acted in the
discharge of their official functions as officers or agents of the United States.
However, this is a matter of evidence. The charges against them may not be
summarily dismissed on their mere assertion that their acts are imputable to the
United States of America, which has not given its consent to be sued. In fact, the
defendants are sought to be held answerable for personal torts in which the
United States itself is not involved. If found liable, they and they alone must
satisfy the judgment." (At pp. 655-658)

In the light of these precedents, we proceed to resolve the present case.

The POD was published under the direction and authority of the commanding officer, U.S.
Naval Station Subic Bay. The administrative assistant, among his other duties, is tasked to
prepare and distribute the POD. On February 3, 1978, when the questioned article was
published in the POD, petitioner Capt. James Williams was the commanding officer while
petitioner M.H. Wylie was the administrative assistant of the US Naval Station of Subic bay.
The NAVSTA ACTION LINE INQUIRY is a regular feature of the POD. It is a telephone
answering device in the office of the Administrative Assistant. The Action Line is intended
to provide personnel access to the Commanding Officer on matters they feel should be
brought to his attention for correction or investigation. The matter of inquiry may be
phoned in or mailed to the POD. (TSN, September 9, 1980, pp. 12-13, Jerry Poblon)
According to M. H. Wylie, the action line naming "Auring" was received about three (3)
weeks prior to its being published in the POD on February 3, 1978. It was forwarded to
Rarang's office of employment, the Provost Marshal, for comment. The Provost Marshal
office's response ". . . included a short note stating that if the article was published, to
remove the name." (Exhibit 8-A, p. 5) The Provost Marshal's response was then forwarded
to the executive officer and to the commanding officer for approval. The approval of the
commanding officer was forwarded to the office of the Administrative Assistant for
inclusion in the POD. A certain Mrs. Dologmodin, a clerk typist in the office of the
Administrative Assistant prepared the smooth copy of the POD. Finally, M. H. Wylie, the
administrative assistant signed the smooth copy of the POD but failed to notice the
reference to "Auring" in the action line inquiry. (Exh. 8-A, pp. 4-5, Questions Nos. 14-15)

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 the 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
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 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.
Killing a person in cold blood while on patrol duty, running over a child while driving with
reckless imprudence on an official trip, or slandering a person during office hours could
not possibly be covered by the immunity agreement. Our laws and, we presume, those of
the United States do not allow the commission of crimes in the name of official duty.
The case of Chavez v. Sandiganbayan, 193 SCRA 282 [1991] gives the law on immunity
from suit of public officials:
"The general rule is that public officials can be held personally accountable for
acts claimed to have been performed in connection with official duties where they
have acted ultra vires or where there is showing of bad faith. LLphil

xxx xxx xxx

"Moreover, the petitioner's argument that the immunity proviso under Section 4(a)
of Executive Order No. 1 also extends to him is not well-taken. A mere invocation
of the immunity clause does not ipso facto result in the charges being
automatically dropped.
"In the case of Presidential Commission on Good Government v. Peña (159 SCRA
556 [1988] then Chief Justice Claudio Teehankee, added a clarification of the
immunity accorded PCGG officials under Section 4(a) of Executive Order No. 1 as
follows:
"'With respect to the qualifications expressed by Mr. Justice
Feliciano in his separate opinion, I just wish to point out two things: First,
the main opinion does not claim absolute immunity for he members of the
Commission. The cited section of Executive Order No. 1 provides the
Commission's members immunity from suit thus: 'No civil action shall lie
against the Commission or any member thereof for anything done or
omitted in the discharge of the task contemplated by this order.' No
absolute immunity like that sought by Mr. Marcos in his Constitution for
himself and his subordinates is herein involved. It is understood that the
immunity granted the members of the Commission by virtue of the
unimaginable magnitude of its task to recover the plundered wealth and
the State's exercise of police power was immunity from liability for
damages in the official discharge of the task granted the members of the
Commission much in the same manner that judges are immune from suit
in the official discharge of the functions of their office. . . . (at pp. 581-
582).

xxx xxx xxx

"Immunity from suit cannot institutionalize irresponsibility and non-
accountability nor grant a privileged status not claimed by any other
official of the Republic. (id., at page 586)
"Where the petitioner exceeds his authority as Solicitor General, acts
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 in bad faith, or, as contended by the private respondent, 'maliciously
conspir(es) with the PCGG commissioners in persecuting respondent Enrile
by filing against him an evidently baseless suit in derogation of the latter's
constitutional rights and liberties' (Rollo, p. 417), there can be no question
that a complaint for damages does not confer a license to persecute or
recklessly injure another. The actions governed by Articles 19, 20, 21 and
32 of the Civil Code on Human Relations may be taken against public
officers or private citizens alike. . . ." (pp. 289-291).

We apply the same ruling to this case.

The subject article in US Newsletter POD dated February 3, 1978 mentions a certain
"Auring" as ". . . a disgrace to her division and to the Office of the Provost Marshal." The
same article explicitly implies that Auring was consuming and appropriating for herself
confiscated items like cigarettes and foodstuffs. There is no question that the Auring
alluded to in the Article was the private respondent as she was the only Auring in the Office
of the Provost Marshal. Moreover, as a result of this article, the private respondent was
investigated by her supervisor. Before the article came out, the private respondent had
been the recipient of commendations by her superiors for honesty in the performance of
her duties.
It may be argued that Captain James Williams as commanding officer of the naval base is
far removed in the chain of command from the offensive publication and it would be
asking too much to hold him responsible for everything which goes wrong on the base.
This may be true as a general rule. In this particular case, however, the records show that
the offensive publication was sent to the commanding officer for approval and he
approved it. The factual findings of the two courts below are based on the records. The
petitioners have shown no convincing reasons why our usual respect for the findings of the
trial court and the respondent court should be withheld in this particular case and why their
decisions should be reversed.
Article 2176 of the Civil Code prescribes a civil liability for damages caused by a person's
act or omission constituting fault or negligence, to wit:
"Article 2176. Whoever by act or omission, causes damage to another, there
being fault or negligence is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this Chapter."

"Fault" or "negligence" in this Article covers not only acts "not punishable by law" but also
acts criminal in character, whether intentional or voluntary or negligent." (Andamo v.
Intermediate Appellate Court, 191 SCRA 195 [1990]).
Moreover, Article 2219(7) of the Civil Code provides that moral damages may be
recovered in case of libel, slander or any other form of defamation. In effect, the offended
party in these cases is given the right to receive from the guilty party moral damages for
injury to his feeling and reputation in addition to punitive or exemplary damages. (Occena
v. Icamina, 181 SCRA 328 [1990]. In another case, Heirs of Basilisa Justiva v. Gustilo, 7
SCRA 72 [1963], we ruled that the allegation of forgery of documents could be a
defamation, which in the light of Article 2219(7) of the Civil Code could by analogy be
ground for payment of moral damages, considering the wounded feelings and besmirched
reputation of the defendants. LLjur

Indeed the imputation of theft contained in the POD dated February 3, 1978 is a
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 defamation against the character and reputation of the private respondent. Petitioner
Wylie himself admitted that the Office of the Provost Marshal explicitly recommended the
deletion of the name Auring if the article were to be published. The petitioners, however,
were negligent because under their direction they issued the publication without deleting
the name "Auring". Such act or omission is ultra vires and cannot be part of official duty. it
was a tortious act which ridiculed the private respondent. As a result of the petitioner's act,
the private respondent, according to the record, suffered besmirched reputation, serious
anxiety, wounded feeling and social humiliation, specially so, since the article was baseless
and false. The petitioners, alone, in their personal capacities are liable for the damages
they caused the private respondent.
WHEREFORE, the petition is hereby DISMISSED. The questioned decision and resolution of
the then Intermediate Appellate Court, now Court of Appeals, are AFFIRMED.
Bidin, Davide, Jr. and Romero, JJ., concur.
Feliciano, J., took no part.

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