Digest 11 1

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public international law

UPLAW 2009 B

“…my claim to fame is when I saw Imelda Marcos, I stuck my tongue out at her. And she still remembers!... Honestly, I’d do it again.” This digest compilation wouldn’t have been possible without the help of PJ, Marco, & 5. MOTION FOR HEARING ON ARREST WARRANT. Before the RTC could act on the Vani  Petition, Jimenez filed an "Urgent Manifestation/Ex-Parte Motion,"10 which prayed Government of the USA, represented by the Philippine Department of Justice that petitioner’s application for an arrest warrant be set for hearing. (petitioner) v. Hon. Guillermo Purganan, Presiding Judge RTC and Marc Jimenez 6. ORDER: HEARING SET. In its assailed May 23, 2001 Order, RTC granted the a.k.a. Marcio Batacan Crespo (respondents) (Sept. 24, 2002) Motion & set the case for hearing on June 5, 2001.Petitioner manifested its Ponente: EN BANC. Panganiban, J. reservations on the procedure adopted by the TC allowing the accused in an Nature: Petition for Certiorari under Rule 65, seeking to void & set aside the Orders extradition case to be heard prior to the issuance of a warrant of arrest. dated May 23, 2001 & July 3, 2001 issued by the RTC of Manila, Br. 42. Petition prays for 7. ORDER: WARRANT OF ARREST ISSUED. Jimenez’ Memorandum sought an the lifting of the bail Order, cancellation of the bond, & the taking of Jimenez into legal alternative prayer: that in case a warrant should issue, he be allowed to post bail of custody. (Sequel to GR No. 139465, Secretary of Justice v. Ralph C. Lantion (2000). P100,000. This was also set for hearing on June 15, 2001. TC issued its questioned July 3, 2001 Order, directing the issuance of a warrant for his arrest & fixing bail for 1. RP-US EXTRADITION TREATY. Pursuant to the existing RP-US Extradition Treaty1, his temporary liberty at P1 M in cash. 11 After he had surrendered his passport & the US Government, through diplomatic channels, sent to the Philippine posted the bond, Jimenez was granted provisional liberty via the challenged order Government Note Verbale No. 0522 dated June 16, 1999, supplemented by Note dated July 4, 2001.12 Nos. 0597, 0720 & 0809 & accompanied by duly authenticated documents 8. PETITION TO SC. requesting the extradition of Mark B. Jimenez, a.k.a. Mario Batacan Crespo. Upon receipt of the Notes & documents, the secretary of foreign affairs (SFA) transmitted PRELIMINARY ISSUE: Alleged prematurity of the Petition for Certiorari arising from them to the secretary of justice (SOJ) for appropriate action, pursuant to Sec. 5 of petitioner’s failure to file a Motion for Reconsideration in the RTC & to seek relief in the PD No. 1069, or the Extradition Law. Court of Appeals (CA), instead of in this Court.

2.

TRO AGAINST EXTRADITION. Upon learning of the request for his extradition, Jimenez sought & was granted a Temporary Restraining Order (TRO) by the RTC of Manila, Br. 25. The TRO prohibited the Department of Justice (DOJ) from filing with the RTC a petition for his extradition. The validity of the TRO was assailed by the SOJ in a Petition before this Court in SOJ v. Lantion. Initially, the Court—by a vote of 9-6—dismissed the Petition. The SOJ was ordered to furnish Jimenez copies of the extradition request & its supporting papers & to grant the latter a reasonable period within which to file a comment & supporting evidence.2

3.

MfR: REVERSAL. Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its Oct. 17, 2000 Resolution. 9 By 9-6—after 3 justices changed their votes—it reconsidered & reversed its Decision. It held that private respondent was bereft of the right to notice & hearing during the evaluation stage of the extradition process. This Resolution has become final & executory.

4.

PETITION FOR EXTRADITION. The US Gov’t, represented by the Philippine DOJ, filed with the RTC on May 18, 2001, the Petition for Extradition (Extradition Case No. 01192061). The Petition alleged, inter alia, that Jimenez was the subject of an arrest warrant issued by the US District Court for the Southern District of Florida on Apr. 15, 1999. The warrant had been issued ICOW the following charges in Indictment No. 99-00281 CR-SEITZ: (1) conspiracy to defraud the US & to commit certain offenses in violation of Title 18 US Code, Sec. 371; (2) tax evasion, in violation of Title 26 US Code Sec. 7201; (3) wire fraud, in violation of Title 18 US Code Sec. 1343 & 2; (4) false statements, in violation of Title 18 US Code Sec. 1001 & 2; & (5) illegal campaign contributions, in violation of Title 2 US Code Sec. 441b, 441f & 437g(d) & Title 18 US Code Sec. 2. To prevent the flight of Jimenez, the Petition prayed for the issuance of an order for his "immediate arrest" pursuant to Sec. 6 of PD No. 1069.

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Signed on Nov. 13, 1994, & concurred in by the Philippine Senate on Nov. 29, 1995 The U.S. Bail Reform Act of 1984 does not grant the right to bail in extradition cases

1.

JUSTIFICATIONS FOR NOT FILING A MFR IN EXTRADITION COURT. "1) the issues were fully considered by such court after requiring the parties to submit their memoranda & position papers on the matter, thus, the filing of a reconsideration motion would serve no useful purpose; 2) assailed orders are a patent nullity, absent factual & legal basis therefor; 3) need for relief is extremely urgent, as the passage of sufficient time would give Jimenez ample opportunity to escape & avoid extradition; & 4) the issues raised are purely of law.”

2.

JUSTIFICATION FOR BYPASSING CA. "(1) even if the petition is lodged with the CA & it takes cognizance of the issues & decides them, the parties would still bring the matter to the SC to have the issues resolved once & for all [and] to have a binding precedent that all lower courts ought to follow; (2) CA had in one case3 ruled on the issue by disallowing bail but the court below refused to recognize the decision as a judicial guide & all other courts might likewise adopt the same attitude of refusal; & (3) there are pending issues on bail both in the extradition courts & CA, which, unless guided by the decision that SC will render here, would resolve to grant bail in favor of the potential extraditees & would give them opportunity to flee & thus, cause adverse effect on the ability of the Philippines to comply with its obligations under existing extradition treaties.”

3.

EXCEPTIONAL CASE, MFR DISPENSED WITH. As a general rule, a petition for certiorari before a higher court will not prosper unless the inferior court has been given, through a motion for reconsideration, a chance to correct the errors imputed to it. This rule has certain exceptions: (1) when the issue raised is purely of law, (2) when public interest is involved, or (3) in case of urgency (PALEA v. PAL, Inc., 1982). As a 4TH exception, SC has also ruled that the filing of a motion for reconsideration before availment of the remedy of certiorari is not a sine qua non,

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Government of the USA, represented by the Philippine DOJ v. RTC of Manila, Br.47, &Nelson Marquez, CA-GR SP No. 61079, promulgated on May 7, 2001 Always will B

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when the questions raised are the same as those that have already been squarely argued & exhaustively passed upon by the lower court (Progressive Development Corp., Inc. v. CA, 1999). Aside from being of this nature, herein issues also involve pure questions of law that are of public interest. SC has allowed a direct invocation of its original jurisdiction to issue writs of certiorari when there are special & important reasons therefore (Malonzo v. Zamora, 1999; Fortich v. Corona, 1998).

4.

INTEREST OF JUSTICE. That the Court has the power to set aside its own rules in the higher interests of justice is well-entrenched in our jurisprudence (Piczon v. CA, 1990). In the interest of justice & to settle once & for all the important issue of bail in extradition proceedings, we deem it best to take cognizance of the case. Such proceedings constitute a matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts.

ISSUE: Interpretation of Treaty & Law on Extradition TREATY LAW & LAW ON EXTRADITION. The substantive issues raised require an interpretation or construction of the treaty & the law on extradition. A cardinal rule in the interpretation of a treaty or a law is to ascertain & give effect to its intent (Agpalo, Statutory Construction). Since PD 1069 is intended as a guide for the implementation of extradition treaties to which the Philippines is a signatory (Last "Whereas" clause of PD 1069), understanding certain postulates of extradition will aid us in properly deciding the issues raised here. 1. Extradition Is a Major Instrument for the Suppression of Crime Extradition treaties are entered into for the purpose of suppressing crime 4 by facilitating the arrest & the custodial transfer5 of a fugitive6 from one state to the other. With the advent of easier & faster means of international travel, the flight of affluent criminals from 1 country to another for the purpose of committing crime & evading prosecution has become more frequent. Accordingly, governments are adjusting their methods of dealing with criminals & crimes that transcend international boundaries. Today, "a majority of nations in the world community have come to look upon extradition as the major effective instrument of international cooperation in the suppression of crime.” It is the only regular system that has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with municipal and international law. ((Bassiouni) Shearer: “An important practical effect x x x of the recognition of the principle that criminals should be restored to a jurisdiction competent to try & punish them is that the number of criminals seeking refuge abroad will be reduced. For to the extent that efficient means of detection & the threat of punishment play a significant role in the deterrence of crime within the territorial limits of a State, so the existence of effective extradition arrangements & the consequent certainty of return to the locus delicti commissi play a corresponding role in the deterrence of flight abroad in order to escape the consequence of crime. x x x. From an absence of extradition arrangements flight abroad by the 4 5 6

See "Whereas" clause of PD 1069 and preamble of the RP-US Extradition Treaty Bassiouni, International Extradition, 1987 ed.

In Rodriguez v. Comelec (1996), the Court defined fugitive from justice as one who flees after conviction to avoid punishment or who, after being charged, flees to avoid prosecution.

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ingenious criminal receives direct encouragement & thus indirectly does the commission of crime itself." SOJ v. Lantion (2000): “The Philippines also has a national interest to help in suppressing crimes & one way to do it is to facilitate the extradition of persons covered by treaties duly entered [into] by our government. More & more, crimes are becoming the concern of 1 world. Laws involving crimes & crime prevention are undergoing universalization. One manifest purpose of this trend towards globalization is to deny easy refuge to a criminal whose activities threaten the peace & progress of civilized countries. It is to the great interest of the Philippines to be part of this irreversible movement in light of its vulnerability to crimes, especially transnational crimes." In this era of globalization, easier & faster international travel, & an expanding ring of international crimes & criminals, we cannot afford to be an isolationist state. We need to cooperate with other states in order to improve our chances of suppressing crime in our own country. 2. The Requesting State Will Accord Due Process to the Accused An extradition treaty presupposes that both parties thereto have examined, & that both accept & trust, each other’s legal system & judicial process.7 Our duly authorized representative’s signature on an extradition treaty signifies our confidence in the capacity & the willingness of the other state to protect the basic rights of the person sought to be extradited. (Bassiouni) That signature signifies our full faith that the accused will be given, upon extradition to the requesting state, all relevant & basic rights in the criminal proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been directly attacked for its unconstitutionality. 3. The Proceedings Are Sui Generis As pointed out in SOJ v. Lantion, extradition proceedings are not criminal in nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui generic—in a class by itself—they are not: An extradition [proceeding] is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee x x x. There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the existence of a prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him. The US adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case & the demands of the nation’s foreign relations before making the ultimate decision to extradite." 7

Coquia, "On Implementation of the US-RP Extradition Treaty," Aug. 31, 2000 Always will B

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The extradition court is not called upon to ascertain the guilt or the innocence of the person sought to be extradited. (SOJ v. Lantion) Such determination during the extradition proceedings will only result in needless duplication and delay. EXTRADITION is merely a measure of international judicial assistance through which a person charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that person. It is not part of the function of the assisting authorities to enter into questions that are the prerogative of that jurisdiction. The ultimate purpose of extradition proceedings in court is only to determine whether the extradition request complies with the Extradition Treaty, & whether the person sought is extraditable. 4. Compliance Shall Be in Good Faith Our executive branch of government voluntarily entered into the Extradition Treaty, & our legislative branch ratified it. Hence, the Treaty carries the presumption that its implementation will serve the national interest. Fulfilling our obligations under the Extradition Treaty promotes comity8 with the requesting state. On the other hand, failure to fulfill our obligations thereunder paints a bad image of our country before the world community. Such failure would discourage other states from entering into treaties with us, particularly an extradition treaty that hinges on reciprocity.9 Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty. (SOJ v. Lantion) This principle requires that we deliver the accused to the requesting country if the conditions precedent to extradition, as set forth in the Treaty, are satisfied. "[T]he demanding government, when it has done all that the treaty & the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, & the other government is under obligation to make the surrender.” (Wright v. Henkel, 1903) Accordingly, the Philippines must be ready & in a position to deliver the accused, should it be found proper. 5. There Is an Underlying Risk of Flight Persons to be extradited are presumed to be flight risks. This prima facie presumption finds reinforcement in the experience10 of the executive branch: nothing short of confinement can ensure that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state. The present extradition case further validates the premise that persons sought to be extradited have a propensity to flee. Indeed, extradition hearings would not even begin, if only the accused were willing to submit to trial in the requesting country.11 Prior acts of herein respondent—(1) leaving the requesting state right before the conclusion of his indictment proceedings there; & (2) remaining in the requested state despite learning that the requesting state is seeking his return & that the crimes he is charged with are bailable—eloquently speak of his aversion to the processes in the requesting state, as well as his predisposition to avoid them at all cost. These circumstances point to an ever8

In line with the Philippine policy of cooperation and amity with all nations set forth in Article II, Section 2, Constitution. 9

The US District Court, District of Nevada, Las Vegas, Nevada: "In the Matter of the Extradition of Charlie Atong Ang, a fugitive from the country of the Philippines," [the court] has denied Mr. Ang’s motion for bail, per petitioner’s Manifestation dated June 5, 2002. 10

See footnote no. 41, Petition for Certiorari, p. 18; rollo p. 19; Manifestation dated June 5, 2002 11

Persily, "International Extradition and the Right to Bail," (Summer, 1998).

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present, underlying high risk of flight. He has demonstrated that he has the capacity & the will to flee. SUBSTANTIVE ISSUE 1: Is Respondent Entitled to Notice & Hearing Before the Issuance of a Warrant of Arrest? NO. 1.

US: RTC’s PROCEDURE GIVES CHANCE TO ESCAPE; BAD PRECEDENT. US contends that the procedure adopted by the RTC—informing the accused, a fugitive from justice, that an Extradition Petition has been filed against him, & that petitioner is seeking his arrest—gives him notice to escape & to avoid extradition. Moreover, that such procedure may set a dangerous precedent, in that those sought to be extradited—including terrorists, mass murderers & war criminals—may invoke it in future extradition cases.

2.

JIMENEZ: LACK OF DUE PROCESS; NO LAW ON PROCEDURE, DISCRETIONARY. ARDUMENTS: he should not be hurriedly & arbitrarily deprived of his constitutional right to liberty without due process; there is as yet no specific law or rule setting forth the procedure prior to the issuance of a warrant of arrest, after the petition for extradition has been filed in court; ergo, the formulation of that procedure is within the discretion of the presiding judge.

3.

BASIS: Both parties cite Sec. 6 of PD 1069 in support of their arguments: SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for the immediate arrest of the accused which may be served any where within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of the answer, or should the accused after having received the summons fail to answer within the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof. (2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the case." 4. HEARING INCORRECT. Does this provision sanction RTC Judge Purganan’s act of immediately setting for hearing the issuance of a warrant of arrest? NO. 1) On the Basis of the Extradition Law Sec. 6 of PD 1069, our Extradition Law, uses the word "IMMEDIATE" to qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sending notices to the opposing parties, receiving facts and arguments from them, & giving them time to prepare & present such facts & arguments. Arrest subsequent to a hearing can no longer be considered "immediate." The law could not have intended the word as a mere superfluity but, on the whole, as a means of imparting a sense of urgency & swiftness in the determination of whether a warrant of arrest should be issued. By using the phrase "IF IT APPEARS," the law further conveys that accuracy is not as important as speed at such early stage. TC is not expected to make an exhaustive determination to ferret out the true & actual situation, immediately upon the filing of the petition. From the knowledge & the material then available to it, the court is expected merely to get a good first impression—a prima facie finding—sufficient to make a speedy initial determination as regards the arrest & detention of the accused. EVIDENCE. Attached to the Petition for Extradition, with a Certificate of Authentication among others, were the following: (1) Annex H, the Affidavit executed on Always will B

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May 26, 1999 by Mr. Michael E. Savage—trial attorney in the Campaign Financing Task Force of the Criminal Division of the US DOJ; (2) Annexes H to G, evidentiary Appendices of various exhibits that constituted evidence of the crimes charged in the Indictment, with Exhibits 1-120 (duly authenticated exhibits that constituted evidence of the crimes charged in the Indictment); (3) Annex BB, the Exhibit I "Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Angela Byers" & enclosed Statements in 2 volumes; (4) Annex GG, the Exhibit J "Table of Contents for Supplemental Evidentiary Appendix" with enclosed Exhibits 121-132; & (5) Annex MM, the Exhibit L "Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Betty Steward" & enclosed Statements in 2 volumes. (Petition for Extradition) SUFFICIENT EVIDENCE. Respondent judge could have already gotten an impression from these records adequate for him to make an initial determination of whether the accused was someone who should immediately be arrested in order to "best serve the ends of justice." He could have determined whether such facts & circumstances existed as would lead a reasonably discreet & prudent person to believe that the extradition request was prima facie meritorious. He actually concluded from these supporting documents that "probable cause" did exist. In the 2 ND questioned Order, he stated: “In the instant petition, the documents sent by the US Government in support of [its] request for extradition of herein respondent are enough to convince the Court of the existence of probable cause to proceed with the hearing against the extraditee.” (Order dated July 3, 2001) GRAVE ABUSE OF DISCRETION. The prima facie existence of probable cause for hearing the petition &, a priori, for issuing an arrest warrant was already evident from the Petition itself & its supporting documents. Hence, after having already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez.12 SUMMARY PROCEEDING. Also, the law specifies that the court sets a hearing upon receipt of the answer or upon failure of the accused to answer after receiving the summons. ICOW the matter of immediate arrest, however, the word "hearing" is notably absent from the provision. Evidently, had the holding of a hearing at that stage been intended, the law could have easily so provided. It also bears emphasizing at this point that extradition proceedings are summary (Sec. 9, PD 1069) in nature. The silence of the Law & the Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings. It is taken for granted that the contracting parties intend something reasonable & something not inconsistent with generally recognized principles of International Law, nor with previous treaty obligations towards third States. If, therefore, the meaning of a treaty is ambiguous, the reasonable meaning is to be preferred to the unreasonable, the more reasonable to the less reasonable x x x .” (Bassiouni) CAN’T NOTIFY POSSIBLE EXTRADITEE. Verily, as argued by petitioner, sending to persons sought to be extradited a notice of the request for their arrest & setting it for hearing at some future date would give them ample opportunity to prepare & execute an escape. Neither the Treaty nor the Law could have intended that consequence, for the 12

In the questioned July 3, 2001 Order (p. 4; rollo, p. 125), respondent judge admitted that the Annexes of the Petition for Extradition had been received by the court a quo on May 25, 2001; yet, in its Order dated May 23, 2001 ( rollo, p. 74), it already set for hearing the issuance of the warrant of arrest.

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very purpose of both would have been defeated by the escape of the accused from the requested state. 2. On the Basis of the Constitution NO HEARING REQUIREMENT. Even Sec. 2 of Art. III of our Constitution, which is invoked by Jimenez, does not require a notice or a hearing before the issuance of a warrant of arrest. It provides: Sec. 2. “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.” PROBABLE CAUSE. In Ho v. People, 1997, & in all the cases cited therein, never was a judge required to go to the extent of conducting a hearing just for the purpose of personally determining probable cause for the issuance of a warrant of arrest. All we required was that the "judge must have sufficient supporting documents upon which to make his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause.” RTC PROCEDURE INCORRECT. At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and their witnesses. (Allado v. Diokno, 1994) In the present case, validating the act of respondent judge & instituting the practice of hearing the accused & his witnesses at this early stage would be discordant with the rationale for the entire system. If the accused were allowed to be heard & necessarily to present evidence during the prima facie determination for the issuance of a warrant of arrest, what would stop him from presenting his entire plethora of defenses at this stage—if he so desires—in his effort to negate a prima facie finding? Such a procedure could convert the determination of a prima facie case into a full-blown trial of the entire proceedings and possibly make trial of the main case superfluous. This scenario is also anathema to the summary nature of extraditions. SHOULD BE MORE RESTRICTIVE. That this case is an extradition & not a criminal action is not sufficient to justify the adoption of a set of procedures more protective of the accused. If a different procedure were called for at all, a more restrictive one—not the opposite— would be justified in view of respondent’s demonstrated predisposition to flee. Since this is a matter of first impression, we deem it wise to restate the PROPER PROCEDURE: “Upon receipt of a petition for extradition & its supporting documents, the judge must study them & make, as soon as possible, a prima facie finding whether (a) they are sufficient in form & substance, (b) they show compliance with the Extradition Treaty & Law, & (c) the person sought is extraditable. At his discretion, the judge may require the submission of further documentation or may personally examine the affiants & witnesses of the petitioner. If, in spite of this study & examination, no prima facie finding (not probable cause, since it is extradition, not a criminal case) is possible, the petition may be dismissed at the discretion of the judge. On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately issue a warrant for the arrest of the extraditee, who is at the same time summoned to answer the petition & to appear at scheduled summary hearings. Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition, lest the latter be given the opportunity to escape & frustrate the proceedings. In our opinion, the foregoing procedure will "best serve the ends of justice" in extradition cases.” Always will B

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SUBSTANTIVE ISSUE 2: Is Respondent Entitled to Bail? NO. 1. ART. III, SEC. 13 of the Constitution, is worded as follows: “All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required."

2.

3. 4.

JIMENEZ: RIGHT TO BAIL. He maintains that this constitutional provision secures the right to bail of all persons, including those sought to be extradited. Supposedly, the only exceptions are the ones charged with offenses punishable with reclusion perpetua, when evidence of guilt is strong. He also alleges the relevance to the present case of Sec. 413 of Rule 114 of the Rules of Court which, insofar as practicable & consistent with the summary nature of extradition proceedings, shall also apply according to Sec. 9 of PD 1069. US: NO LAW ON BAIL IN EXTRADITION CASES. US claims that there is no provision in the Philippine Constitution granting the right to bail to a person who is the subject of an extradition request & arrest warrant. COURT HELD THAT: A. EXTRADITION DIFFERENT FROM ORDINARY CRIMINAL PROCEEDINGS. a) N/A TO EXTRADITION. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Sec. 4 of Rule 114 of the RoC, applies only when a person has been arrested & detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal.

b)

c)

BASIS: PRESUMPTION OF INNOCENCE; NONE IN EXTRADITION. Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt.” (De la Camara v. Enage, 1971) The constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. WRT HABEAS CORPUS. The suspension of the privilege of the writ of habeas corpus finds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.” (Sec. 18, Art. VII) Hence, the 2nd sentence in the provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses, not that the right is available even in extradition proceedings that are not criminal in nature.

d)

B.

NO VIOLATION OF DUE PROCESS. Jimenez cites Paretti v. USA, 1997 in arguing that, constitutionally, "[n]o one shall be deprived of x x x liberty x x x without due process of law."

a)

DETENTION NOT VIOLATIVE OF DUE PROCESS. His detention prior to the conclusion of the extradition proceedings does not amount to a violation of his right to due process. The essence of due process is the opportunity to be heard (Paat v. CA, 1997) but, at the same time, the doctrine does not always call for a prior opportunity to be heard. (Central Bank v. CA, 1993) Where the circumstances—such as those present in an extradition case—call for it, a subsequent opportunity to be heard is enough. Here, respondent will be given full opportunity to be heard subsequently, when the extradition court hears the Petition for Extradition. Hence, there is no violation of his right to due process & fundamental fairness.

b)

NOT ARBITRARY. SC finds no arbitrariness in the immediate deprivation of his liberty prior to his being heard. That his arrest & detention will not be arbitrary is sufficiently ensured by (1) the DOJ’s filing in court the Petition with its supporting documents after a determination that the extradition request meets the requirements of the law & the relevant treaty; (2) the extradition judge’s independent prima facie determination that his arrest will best serve the ends of justice before the issuance of a warrant for his arrest; & (3) his opportunity, once he is under the court’s custody, to apply for bail as an exception to the no-initial-bail rule. FUGITIVE. Before the US requested the extradition of respondent, proceedings had already been conducted in that country. But because he left the jurisdiction of the requesting state before those proceedings could be completed, it was hindered from continuing with the due processes prescribed under its laws. His invocation of due process now has thus become hollow. He already had that opportunity in the requesting state; yet, instead of taking it, he ran away. RIGHTS TRUMPED BY OBLIGATION TO FULFILL INT’L OBLIGATIONS. Would it be proper & just for the government to increase the risk of violating its treaty obligations in order to accord Jimenez his personal liberty in the span of time that it takes to resolve the Petition for Extradition? His supposed immediate deprivation of liberty without the due process that he had previously shunned pales against the government’s interest in fulfilling its Extradition Treaty obligations & in cooperating with the world community in the suppression of crime. "[C]onstitutional liberties do not exist in a vacuum; the due process rights accorded to individuals must be carefully balanced against exigent & palpable government interests.” (Coquia) CAN’T PROTECT FUGITIVE. We cannot allow our country to be a haven for fugitives, cowards & weaklings who, instead of facing the consequences of their actions, choose to run and hide. It would not be

c)

d)

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SEC. 4. Bail, a matter of right; exception. All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment."

EXTRADITION PROCEEDINGS DISTINCT FROM TRIAL. That the offenses for which Jimenez is sought to be extradited are bailable in the US is not an argument to grant him one in the present case. Extradition proceedings are separate & distinct from the trial for the offenses for which he is charged. He should apply for bail before the courts trying the criminal cases against him, not before the extradition court.

e)

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good policy to increase the risk of violating our treaty obligations if, through overprotection or excessively liberal treatment, persons sought to be extradited are able to evade arrest or escape from our custody. In the absence of any provision—in the Constitution, the law or the treaty— expressly guaranteeing the right to bail in extradition proceedings, adopting the practice of not granting them bail, as a general rule, would be a step towards deterring fugitives from coming to the Philippines to hide from or evade their prosecutors.

f)

NO BAIL. The denial of bail as a matter of course in extradition cases falls into place with & gives life to Art. 14 14 of the Treaty, since this practice would encourage the accused to voluntarily surrender to the requesting state to cut short their detention here. Their detention pending the resolution of extradition proceedings would fall into place with the emphasis of the Extradition Law on the summary nature of extradition cases & the need for their speedy disposition.

5.

EXCEPTIONS TO THE NO BAIL RULE. The rule is that bail is not a matter of right in extradition cases. But, the judiciary has the constitutional duty to curb grave abuse of discretion (Sec. 1, Art. VIII) & tyranny, as well as the power to promulgate rules to protect & enforce constitutional rights. (Sec. 5, Art. VIII) Also, the right to due process is broad enough to include the grant of basic fairness to extraditees. The right to due process extends to the "life, liberty or property" of every person. It is "dynamic & resilient, adaptable to every situation calling for its application.” (Cruz)

6.

RULE: After a potential extraditee has been arrested or placed under the custody of the law, bail may be applied for & granted as an exception, only upon a clear & convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; & (2) that there exist special, humanitarian & compelling circumstances15 including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein.

7.

EXCEPTION NOT EXPRESS; APPLICANT TO PROVE CIRCUMSTANCE(S). Since this exception has no express or specific statutory basis, & since it is derived essentially from general principles of justice & fairness, the applicant bears the burden of proving the above 2-tiered requirement with clarity, precision & emphatic forcefulness. SC realizes that extradition is basically an executive, not a judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it partakes of the nature of police assistance amongst states, which

14

"If the person sought consents in writing to surrender to the Requesting State, the Requested State may surrender the person as expeditiously as possible without further proceedings." 15

Respondent argues that the following cases -- In re Michell, 1909; US v. Kirby, Brennan & Artt, 1997 & 1998. Beaulieu v. Hartigan, 1977--should be treated as examples of special circumstances. SC: they are not applicable to this case due to factual differences. Hence we refrain from ruling on this argument of Jimenez.

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is not normally a judicial prerogative. Hence, any intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital international & bilateral interests of our country will not be unreasonably impeded or compromised. While this Court is ever protective of "the sporting idea of fair play," it also recognizes the limits of its own prerogatives & the need to fulfill international obligations. 8. JIMENEZ: CIRCUMSTANCES are compelling enough for the Court to grant his request for provisional release on bail. A. ALLEGED DISENFRANCHISEMENT. While his extradition was pending, Jimenez was elected as a member of the House of Representatives. Thus, he claims that his detention will disenfranchise his Manila district of 600,000 residents. We are not persuaded. COURT: In People v. Jalosjos, 2000, SC has already debunked the disenfranchisement argument when it ruled thus: “When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison. To give a more drastic illustration, if voters elect a person with full knowledge that he is suffering from a terminal illness, they do so knowing that at any time, he may no longer serve his full term in office. The Constitution guarantees: “x x x nor shall any person be denied the equal protection of laws.” This simply means that all persons similarly situated shall be treated alike both in rights enjoyed & responsibilities imposed. The organs of government may not show any undue favoritism or hostility to any person. Neither partiality nor prejudice shall be displayed. Does being an elective official result in a substantial distinction that allows different treatment? Is being a Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same class as all persons validly confined under law? The performance of legitimate & even essential duties by public officers has never been an excuse to free a person validly [from] prison. The duties imposed by the “mandate of the people” are multifarious. The accusedappellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only 1 of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of 1 or a few of its members. Depending on the exigency of Government that has to be addressed, the President or the SC can also be deemed the highest for that particular duty. The importance of a function depends on the need for its exercise. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law. A strict scrutiny of classifications is essential lest[,] wittingly or otherwise, insidious discriminations are made in favor of or against groups or types of individuals. Election to the position of Congressman is not a reasonable classification in criminal law enforcement. The functions & duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom & restricted in liberty of movement. Lawful arrest & confinement are germane to the purposes of the law & apply to all those belonging to the same class.” Always will B

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COURT: Even before private respondent ran for & won a congressional seat in Manila, it was already of public knowledge that the US was requesting his extradition. Hence, his constituents were or should have been prepared for the consequences of the extradition case against their representative, including his detention pending the final resolution of the case. Premises considered & in line with Jalosjos, we are constrained to rule against his claim that his election to public office is by itself a compelling reason to grant him bail.

B.

ANTICIPATED DELAY. Jimenez contends that because the extradition proceedings are lengthy, it would be unfair to confine him during the pendency of the case. Again we are not convinced. COURT: Extradition cases are summary in nature. They are resorted to merely to determine whether the extradition petition & its annexes conform to the Extradition Treaty, not to determine guilt or innocence. Neither is it, as a rule, intended to address issues relevant to the constitutional rights available to the accused in a criminal action. We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings. This is quite another matter that is not at issue here. Thus, any further discussion of this point would be merely anticipatory and academic. However, if the delay is due to maneuverings of respondent, with all the more reason would the grant of bail not be justified. Giving premium to delay by considering it as a special circumstance for the grant of bail would be tantamount to giving him the power to grant bail to himself. It would also encourage him to stretch out & unreasonably delay the extradition proceedings even more.

C.

NOT A FLIGHT RISK? To support this claim, he stresses that he learned of the extradition request in June 1999; yet, he has not fled the country. COURT: True, he has not actually fled during the preliminary stages of the request for his extradition. Yet, this cannot be taken to mean that he will not flee as the process moves forward to its conclusion, as he hears the footsteps of the requesting government inching closer & closer. Bail may be applied for & granted by the TC at anytime after the applicant has been taken into custody & prior to judgment, even after bail has been previously denied. Here, the extradition court may continue hearing evidence on the application for bail, which may be granted in accordance with the guidelines in this Decision. 9.

BRIEF REFUTATION OF DISSENTS: A. PROPOSAL TO REMAND TO RTC: UNNECESSARY, A COP-OUT. The parties —in particular, Jimenez—have been given more than sufficient opportunity both by the TC & SC to discuss fully & exhaustively Jimenez’ claim to bail. RTC: heard petitioner’s application for an arrest warrant & respondent’s prayer for temporary liberty; required memoranda on the arrest, then position papers on the application for bail, both of which were separately filed by the parties. SC: meticulously pored over the Petition, Comment, Reply, Memoranda & Position Papers of both parties; heard Oral Arguments, a procedure not normally observed in the great majority of cases in this Tribunal; after the Memos had been submitted, the parties—particularly Jimenez—have bombarded this Court with additional pleadings, in which the main topic was the plea for bail. A remand would mean that this long, tedious process would be repeated in its entirety. Be it noted, however, that, in all his voluminous pleadings & verbal propositions, respondent has not asked for a remand. Evidently, even he realizes that there is absolutely no need to rehear factual matters. Indeed, the inadequacy lies not in the factual presentation of Jimenez. Rather, it lies in his legal arguments.

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This Court has exhaustively deliberated and carefully passed upon all relevant questions in this case. Thus, a remand will not serve any useful purpose; it will only further delay these already very delayed proceedings, which our Extradition Law requires to be summary in character. What we need now is prudent and deliberate speed, not unnecessary and convoluted delay. What is needed is a firm decision on the merits, not a circuitous cop-out. B. SUGGESTION: SC “DISREGARDING BASIC FREEDOMS WHEN A CASE IS ONE OF EXTRADITION.” This charge is not only baseless, but also unfair. This Decision has taken special cognizance of the rights to due process & fundamental fairness of potential extraditees. 10. SUMMATION. 10 points emphasized. 1) The ultimate PURPOSE of extradition proceedings is to determine whether the request expressed in the petition, supported by its annexes & the evidence that may be adduced during the hearing of the petition, complies with the Extradition Treaty and Law; & whether the person sought is extraditable. The proceedings are intended merely to assist the requesting state in bringing the accused—or the fugitive who has illegally escaped—back to its territory, so that the criminal process may proceed therein. 2) By entering into an EXTRADITION TREATY, RP is deemed to have reposed its trust in the reliability or soundness of the legal & judicial system of its treaty partner, as well as in the ability & the willingness of the latter to grant basic rights to the accused in the pending criminal case therein.

3)

By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined. Consequently, an EXTRADITION CASE is not one in which the constitutional rights of the accused are necessarily available. It is more akin, if at all, to a court’s request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail. Having once escaped the jurisdiction of the requesting state, the reasonable prima facie presumption is that the person would escape again if given the opportunity.

4)

PROCEDURE. Immediately upon receipt of the petition for extradition & its supporting documents, the judge shall make a prima facie finding whether the petition is sufficient in form & substance, whether it complies with the Extradition Treaty and Law, & whether the person sought is extraditable. The magistrate has discretion to require the petitioner to submit further documentation, or to personally examine the affiants or witnesses. If convinced that a prima facie case exists, the judge immediately issues a warrant for the arrest of the potential extraditee & summons him or her to answer & to appear at scheduled hearings on the petition. BAIL. After being taken into custody, potential extraditees may apply for bail. Since the applicants have a history of absconding, they have the burden of showing that (a) there is no flight risk & no danger to the community; and (b) there exist special, humanitarian or compelling circumstances. The grounds used by the highest court in the requesting state for the grant of bail therein may be considered, under the principle of reciprocity as a special circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial discretion in the context of the peculiar facts of each case. RIGHTS. Potential extraditees are entitled to the rights to due process & to fundamental fairness. Due process does not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient due to the flight risk

5)

6)

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involved. Indeed, available during the hearings on the petition & the answer is the full chance to be heard & to enjoy fundamental fairness that is compatible with the summary nature of extradition. 7) SEPARARTION OF POWERS. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of democracy & the conscience of society. But it is also well aware of the limitations of its authority & of the need for respect for the prerogatives of the other co-equal & co-independent organs of government. 8) EXECUTIVE DUTY. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the presidential power to conduct foreign relations & to implement treaties. Thus, the Executive Department of government has broad discretion in its duty & power of implementation. 9) OVERSIGHT DUTY OF COURTS. On the other hand, courts merely perform oversight functions & exercise review authority to prevent or excise grave abuse and tyranny. They should not allow contortions, delays & "over-due process" every little step of the way, lest these summary extradition proceedings become not only inutile but also sources of international embarrassment due to our inability to comply in good faith with a treaty partner’s simple request to return a fugitive. Worse, our country should not be converted into a dubious haven where fugitives & escapees can unreasonably delay, mummify, mock, frustrate, checkmate & defeat the quest for bilateral justice & international cooperation. 10) SPEEDY DISPOSITION. Extradition proceedings should be conducted with all deliberate speed to determine compliance with the Extradition Treaty and Law; &, while safeguarding basic individual rights, to avoid the legalistic contortions, delays & technicalities that may negate that purpose. WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23, 2001 is hereby declared NULL and VOID, while the challenged Order dated July 3, 2001 is SET ASIDE insofar as it granted bail to Respondent Mark Jimenez. The bail bond posted by private respondent is CANCELLED. The Regional Trial Court of Manila is directed to conduct the extradition proceedings before it, with all deliberate speed pursuant to the spirit and the letter of our Extradition Treaty with the United States as well as our Extradition Law16. 5. Vienna Convention on the Law of Treaties

The States Parties to the present Convention, Considering the fundamental role of treaties in the history of international relations, Recognizing the ever-increasing importance of treaties as a source of international law and as a means of developing peaceful co-operation among nations, whatever their 8 constitutional and social systems, Noting that the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognized, Affirming that disputes concerning treaties, like other international disputes, should be settled by peaceful means and in conformity with the principles of justice and international law, Recalling the determination of the peoples of the United Nations to establish conditions under which justice and respect for the obligations arising from treaties can be maintained, Having in mind the principles of international law embodied in the Charter of the United Nations, such as the principles of the equal rights and self-determination of peoples, of the sovereign equality and independence of all States, of non-interference in the domestic affairs of States, of the prohibition of the threat or use of force and of universal respect for, and observance of, human rights and fundamental freedoms for all, Believing that the codification and progressive development of the law of treaties achieved in the present Convention will promote the purposes of the United Nations set forth in the Charter, namely, the maintenance of international peace and security, the development of friendly relations and the achievement of co-operation among nations, Affirming that the rules of customary international law will continue to govern questions not regulated by the provisions of the present Convention, Have agreed as follows: PART I: Introduction ART. 1. Scope of the present Convention: The present Convention applies to treaties between States. ART. 2. Use of terms: 1. For the purposes of the present Convention: (a) “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation; (b) “ratification”, “acceptance”, “approval” and “accession” mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty; (c) “'full powers”' means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty; (d) “'reservation”' means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State; (e) “'negotiating State”' means a State which took part in the drawing up and adoption of the text of the treaty;

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SEPARATE OPINIONS: Bellosillo; Puno; Vitug. DISSENTING OPINION: Ynares-Santiago. CONCURRING OPINION: Carpio. Always will B

* bok * cj * tiff * gem * tin * (f) “'contracting State”' means a State which has consented to be bound by the treaty, whether or not the treaty has entered into force; (g) “'party”' means a State which has consented to be bound by the treaty and for which the treaty is in force; (h) “'third State”' means a State not a party to the treaty; (i) “'international organization”' means an intergovernmental organization. 2. The provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any State. ART. 3. International agreements not within the scope of the present Convention. The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect: (a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention; (c) the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties. ART. 4. Non-retroactivity of the present Convention: Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States. ART. 5. Treaties constituting international organizations and treaties adopted within an international organization: The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization. PART II: Conclusion and Entry into Force of Treaties Sec. 1. Conclusion of Treaties ART. 6. Capacity of States to conclude treaties: Every State possesses capacity to conclude treaties. Art. 7. Full powers: 1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if: (a) he produces appropriate full powers; or (b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers. 2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; (c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.

9 2. The consent of a State confirmation to be bound byofaan treaty expressedwithout by acceptance or ART. 8. Subsequent act is performed authorization: An approval under to conditions similarof to athose apply by to ratification. act relating the conclusion treatywhich performed a person who cannot be ART. 15 Consent to be bound a treatyto expressed accession: consent of considered under ART. 7 as by authorized represent by a State for that The purpose is without a State be bound byafterwards a treaty is confirmed expressedby bythat accession legaltoeffect unless State. when: (a) the treaty provides of that such consent be expressed Statetakes by means ART. 9. Adoption the text: 1. Themay adoption of the textbyofthat a treaty place of by the accession; consent of all the States participating in its drawing up except as provided in paragraph (b) it2.is otherwise established that the negotiating States were agreed that such consent may be expressed by of that means of accession; or 2. The adoption of the text a State treaty by at an international conference takes place by the (c) all the parties have subsequently agreed that such consent may expressed vote of two-thirds of the States present and voting, unless by thebe same majoritybythey that shall Statedecide by means of accession. to apply a different rule. ART. 16 Exchange or deposit instruments of of ratification, ART. 10. Authentication ofof the text: The text a treaty is acceptance, established asapproval authentic or accession: Unless the treaty otherwise provides, instruments of ratification, and definitive: acceptance, approval or accession establish the of aorState to be bound by a (a) by such procedure as may be provided forconsent in the text agreed upon by the States treaty upon: participating in its drawing up; or (a) their exchange between the contracting States; (b) failing such procedure, by the signature, signature ad referendum or initialling by (b) their deposit with theofdepositary; or of the text of the treaty or of the Final Act of a the representatives those States (c) their notification to the contracting conference incorporating the text. States or to the depositary, if so agreed. ART. 17 Consent to of beexpressing bound by part of a treaty and choice differing ART. 11. Means consent to be bound by a of treaty: The consent of a provisions: 1. Without prejudice to ART.s 19 to 23, the consent of a State to of beinstruments bound State to be bound by a treaty may be expressed by signature, exchange by part of a treaty is effective only if the treaty so approval permits ororthe other contracting constituting a treaty, ratification, acceptance, accession, or by anyStates other so agree. means if so agreed. 2. The consent of a State to be bound treatyexpressed which permits a choice between ART. 12. Consent to be bound bybya atreaty by signature: 1. The consent differing provisions effective if itisisexpressed made clear which of the of provisions the of a State to be is bound by aonly treaty bytothe signature its representative consent relates. when: ART. Obligation not tothat defeat the object and purpose of a treaty prior to its (a)18the treaty provides signature shall have that effect; entry into force: A State is obliged to refrain from acts which would defeatthat thesignature object (b) it is otherwise established that the negotiating States were agreed and should purpose of athat treaty when: have effect; or (a) it(c) has the of treaty or hastoexchanged instruments constituting the treaty thesigned intention the State give that effect to the signature appears from subject the full to ratification, acceptance or approval, until it shall have made its intention clear not to powers of its representative or was expressed during the negotiation. become party to the treaty; or 2. Fora the purposes of paragraph 1: (b) it(a) has its aconsent to be bound by the treaty, the entry into force that theexpressed initialling of text constitutes a signature of the pending treaty when it is established of the and provided such entry into force is not unduly delayed. thetreaty negotiating States that so agreed; Sec.(b) 2.the Reservations signature ad referendum of a treaty by a representative, if confirmed by his ART. 19 Formulation reservations: A State may, when signing, ratifying, accepting, State, constitutes aoffull signature of the treaty. approving or formulate a reservation unless: ART. 13. acceding Consent to to abetreaty, bound by a treaty expressed by an exchange of (a) the reservation is prohibited by the treaty; instruments constituting a treaty: The consent of States to be bound by a treaty (b) the treaty provides that onlyexchanged specified reservations, which do not include the constituted by instruments between them is expressed by that exchange reservation when: in question, may be made; or (c) in not falling under sub-paragraphs (a) and (b),have the reservation (a)cases the instruments provide that their exchange shall that effect; is or incompatible with the established object and purpose of the treaty. (b) it is otherwise that those States were agreed that the exchange of ART. 20 Acceptance of and objection to reservations: 1. A reservation expressly instruments should have that effect. authorized byConsent a treaty does require subsequent acceptance by the other ART. 14. to benot bound by any a treaty expressed by ratification, acceptance contracting States1.unless the treaty provides. or approval: The consent of asoState to be bound by a treaty is expressed by 2. When it appears from the limited number of the negotiating States and the object ratification when: and (a) purpose of a provides treaty that application treaty in itsby entirety all the the treaty forthe such consent of to the be expressed meansbetween of ratification; parties is an essential condition of the consent of each one to be bound by the treaty, a (b) it is otherwise established that the negotiating States were agreed that ratification reservation requires acceptance by all the parties. should be required; 3. When a representative treaty is a constituent instrument of an the international organization and unless (c) the of the State has signed treaty subject to ratification; or it otherwise provides, a reservation requires the acceptance of the competent organ (d) the intention of the State to sign the treaty subject to ratification appears fromof the that full organization. powers of its representative or was expressed during the negotiation.

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* bok * cj * tiff * gem * tin * 4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides: (a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States; (b) an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State; (c) an act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation. 5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later. ART. 21 Legal effects of reservations and of objections to reservations: 1. A reservation established with regard to another party in accordance with ART.s 19, 20 and 23: (a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and (b) modifies those provisions to the same extent for that other party in its relations with the reserving State. 2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se. 3. When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation. ART. 22 Withdrawal of reservations and of objections to reservations: 1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a State which has accepted the reservation is not required for its withdrawal. 2. Unless the treaty otherwise provides, an objection to a reservation may be withdrawn at any time. 3. Unless the treaty otherwise provides, or it is otherwise agreed: (a) the withdrawal of a reservation becomes operative in relation to another contracting State only when notice of it has been received by that State; (b) the withdrawal of an objection to a reservation becomes operative only when notice of it has been received by the State which formulated the reservation. ART. 23 Procedure regarding reservations: 1. A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and other States entitled to become parties to the treaty. 2. If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally confirmed by the reserving State when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation. 3. An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation. 4. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing.

10 SEC. 3. ENTRY INTO FORCE AND PROVISIONAL APPLICATION OF TREATIES ART. 24 Entry into force: 1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree. 2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States. 3. When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides. 4. The provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of the adoption of its text. ART. 25 Provisional application: 1. A treaty or a part of a treaty is applied provisionally pending its entry into force if: (a) the treaty itself so provides; or (b) the negotiating States have in some other manner so agreed. 2. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty. PART III OBSERVANCE, APPLICATION AND INTERPRETATION OF TREATIES SEC. 1. OBSERVANCE OF TREATIES ART. 26 Pacta sunt servanda: Every treaty in force is binding upon the parties to it and must be performed by them in good faith. ART. 27 Internal law and observance of treaties: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to ART. 46. SEC 2. APPLICATION OF TREATIES ART. 28 Non-retroactivity of treaties: Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party. ART. 29 Territorial scope of treaties: Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory. ART. 30 Application of successive treaties relating to the same subject-matter 1. Subject to ART. 103 of the Charter of the United Nations, the rights and obligations of States parties to successive treaties relating to the same subject-matter shall be determined in accordance with the following paragraphs. 2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail. 3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under ART. 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the latter treaty. 4. When the parties to the later treaty do not include all the parties to the earlier one: (a) as between States parties to both treaties the same rule applies as in paragraph 3; (b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations. 5. Paragraph 4 is without prejudice to ART. 41, or to any question of the termination or suspension of the operation of a treaty under ART. 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty

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* bok * cj * tiff * gem * tin * 5. Paragraph 4 is without prejudice to ART. 41, or to any question of the termination or suspension of the operation of a treaty under ART. 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another State under another treaty. SEC. 3. INTERPRETATION OF TREATIES ART. 31 General rule of interpretation: 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. ART. 32 Supplementary means of interpretation: Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of ART. 31, or to determine the meaning when the interpretation according to ART. 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. ART. 33 Interpretation of treaties authenticated in two or more languages 1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. 2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree. 3. The terms of the treaty are presumed to have the same meaning in each authentic text. 4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of ART.s 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted. SEC. 4. TREATIES AND THIRD STATES ART. 34 General rule regarding third States: A treaty does not create either obligations or rights for a third State without its consent. ART. 35 Treaties providing for obligations for third States: An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts

11 obligation in writing. ART. 36 Treaties providing for rights for third States: 1. A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides. 2. A State exercising a right in accordance with paragraph 1 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty. ART. 37 Revocation or modification of obligations or rights of third States: 1. When an obligation has arisen for a third State in conformity with ART. 35, the obligation may be revoked or modified only with the consent of the parties to the treaty and of the third State, unless it is established that they had otherwise agreed. 2. When a right has arisen for a third State in conformity with ART. 36, the right may not be revoked or modified by the parties if it is established that the right was intended not to be revocable or subject to modification without the consent of the third State. ART. 38 Rules in a treaty becoming binding on third States through international custom: Nothing in ART.s 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such. PART IV AMENDMENT AND MODIFICATION OF TREATIES ART. 39 General rule regarding the amendment of treaties: A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except in so far as the treaty may otherwise provide. ART. 40 Amendment of multilateral treaties 1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs. 2. Any proposal to amend a multilateral treaty as between all the parties must be notified to all the contracting States, each one of which shall have the right to take part in: (a) the decision as to the action to be taken in regard to such proposal; (b) the negotiation and conclusion of any agreement for the amendment of the treaty. 3. Every State entitled to become a party to the treaty shall also be entitled to become a party to the treaty as amended. 4. The amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement; ART. 30, paragraph 4(b), applies in relation to such State. 5. Any State which becomes a party to the treaty after the entry into force of the amending agreement shall, failing an expression of a different intention by that State: (a) be considered as a party to the treaty as amended; and (b) be considered as a party to the unamended treaty in relation to any party to the treaty not bound by the amending agreement. ART. 41 Agreements to modify multilateral treaties between certain of the parties only: 1. Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if: (a) the possibility of such a modification is provided for by the treaty; or (b) the modification in question is not prohibited by the treaty and: (i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; (ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole. 2. Unless in a case falling under paragraph 1(a) the treaty otherwise provides, the

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* bok * cj * tiff * gem * tin * parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides. PART V INVALIDITY, TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES SEC. 1. GENERAL PROVISIONS ART. 42 Validity and continuance in force of treaties: 1. The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention. 2. The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention. The same rule applies to suspension of the operation of a treaty. ART. 43 Obligations imposed by international law independently of a treaty The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty. ART. 44 Separability of treaty provisions: 1. A right of a party, provided for in a treaty or arising under ART. 56, to denounce, withdraw from or suspend the operation of the treaty may be exercised only with respect to the whole treaty unless the treaty otherwise provides or the parties otherwise agree. 2. A ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty recognized in the present Convention may be invoked only with respect to the whole treaty except as provided in the following paragraphs or in ART. 60. 3. If the ground relates solely to particular clauses, it may be invoked only with respect to those clauses where: (a) the said clauses are separable from the remainder of the treaty with regard to their application; (b) it appears from the treaty or is otherwise established that acceptance of those clauses was not an essential basis of the consent of the other party or parties to be bound by the treaty as a whole; and (c) continued performance of the remainder of the treaty would not be unjust. 4. In cases falling under ART.s 49 and 50 the State entitled to invoke the fraud or corruption may do so with respect either to the whole treaty or, subject to paragraph 3, to the particular clauses alone. 5. In cases falling under ART.s 51, 52 and 53, no separation of the provisions of the treaty is permitted. ART. 45 Loss of a right to invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty: A State may no longer invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty under ART.s 46 to 50 or ART.s 60 and 62 if, after becoming aware of the facts: (a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation, as the case may be; or (b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation, as the case may be. SEC. 2 Invalidity of Treaties ART. 46 Provisions of internal law regarding competence to conclude treaties: 1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and

12 concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. ART. 47 Specific restrictions on authority to express the consent of a State If the authority of a representative to express the consent of a State to be bound by a particular treaty has been made subject to a specific restriction, his omission to observe that restriction may not be invoked as invalidating the consent expressed by him unless the restriction was notified to the other negotiating States prior to his expressing such consent. ART. 48 Error: 1. A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. 2. Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error. 3. An error relating only to the wording of the text of a treaty does not affect its validity; ART. 79 then applies. ART. 49 Fraud: If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty. ART. 50 Corruption of a representative of a State: If the expression of a State's consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State, the State may invoke such corruption as invalidating its consent to be bound by the treaty. ART. 51 Coercion of a representative of a State: The expression of a State's consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect. ART. 52 Coercion of a State by the threat or use of force: A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. ART. 53 Treaties conflicting with a peremptory norm of general international law (jus cogens): A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. SEC. 3. TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES ART. 54 Termination of or withdrawal from a treaty under its provisions or by consent of the parties: The termination of a treaty or the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other contracting States. ART. 55 Reduction of the parties to a multilateral treaty below the number necessary for its entry into force: Unless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of the fact that the number of the parties falls below the number necessary for its entry into force. ART. 56

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* bok * cj * tiff * gem * tin * ART. 56 Denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal: 1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty. 2. A party shall give not less than twelve months' notice of its intention to denounce or withdraw from a treaty under paragraph 1. ART. 57 Suspension of the operation of a treaty under its provisions or by consent of the parties: The operation of a treaty in regard to all the parties or to a particular party may be suspended: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other contracting States. ART. 58 Suspension of the operation of a multilateral treaty by agreement between certain of the parties only: 1. Two or more parties to a multilateral treaty may conclude an agreement to suspend the operation of provisions of the treaty, temporarily and as between themselves alone, if: (a) the possibility of such a suspension is provided for by the treaty; or (b) the suspension in question is not prohibited by the treaty and: (i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; (ii) is not incompatible with the object and purpose of the treaty. 2. Unless in a case falling under paragraph 1(a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of those provisions of the treaty the operation of which they intend to suspend. ART. 59 Termination or suspension of the operation of a treaty implied by conclusion of a later treaty: 1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and: (a) it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty; or (b) the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time. 2. The earlier treaty shall be considered as only suspended in operation if it appears from the later treaty or is otherwise established that such was the intention of the parties. ART. 60 Termination or suspension of the operation of a treaty as a consequence of its breach: 1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. 2. A material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) in the relations between themselves and the defaulting State, or (ii) as between all the parties; (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State; (c) any party other than the defaulting State to invoke the breach as a ground for

13 suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State; (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty. 3. A material breach of a treaty, for the purposes of this ART., consists in: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. 4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach. 5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties. ART. 61 Supervening impossibility of performance: 1. A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty. 2. Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. ART. 62 Fundamental change of circumstances: 1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. 2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) if the treaty establishes a boundary; or (b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. 3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty. ART. 63 Severance of diplomatic or consular relations: The severance of diplomatic or consular relations between parties to a treaty does not affect the legal relations established between them by the treaty except in so far as the existence of diplomatic or consular relations is indispensable for the application of the treaty. ART. 64 Emergence of a new peremptory norm of general international law (jus cogens): If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates. SEC. 4 Procedure ART. 65 Procedure to be followed with respect to invalidity, termination,

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* bok * cj * tiff * gem * tin * withdrawal from or suspension of the operation of a treaty: 1. A party which, under the provisions of the present Convention, invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefor. 2. If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months after the receipt of the notification, no party has raised any objection, the party making the notification may carry out in the manner provided in ART. 67 the measure which it has proposed. 3. If, however, objection has been raised by any other party, the parties shall seek a solution through the means indicated in ART. 33 of the Charter of the United Nations. 4. Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under any provisions in force binding the parties with regard to the settlement of disputes. 5. Without prejudice to ART. 45, the fact that a State has not previously made the notification prescribed in paragraph 1 shall not prevent it from making such notification in answer to another party claiming performance of the treaty or alleging its violation. ART. 66 Procedures for judicial settlement, arbitration and conciliation: If, under paragraph 3 of ART. 65, no solution has been reached within a period of 12 months following the date on which the objection was raised, the following procedures shall be followed: (a) any one of the parties to a dispute concerning the application or the interpretation of ART.s 53 or 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration; (b) any one of the parties to a dispute concerning the application or the interpretation of any of the other ART.s in Part V of the present Convention may set in motion the procedure specified in the Annex to the Convention by submitting a request to that effect to the Secretary-General of the United Nations. ART. 67 Instruments for declaring invalid, terminating, withdrawing from or suspending the operation of a treaty: 1. The notification provided for under ART. 65 paragraph 1 must be made in writing. 2. Any act declaring invalid, terminating, withdrawing from or suspending the operation of a treaty pursuant to the provisions of the treaty or of paragraphs 2 or 3 of ART. 65 shall be carried out through an instrument communicated to the other parties. If the instrument is not signed by the Head of State, Head of Government or Minister for Foreign Affairs, the representative of the State communicating it may be called upon to produce full powers. ART. 68 Revocation of notifications and instruments provided for in ART.s 65 and 67: A notification or instrument provided for in ART.s 65 or 67 may be revoked at any time before it takes effect. SEC. 5. CONSEQUENCES OF THE INVALIDITY, TERMINATION OR SUSPENSION OF THE OPERATION OF A TREATY ART. 69 Consequences of the invalidity of a treaty: 1. A treaty the invalidity of which is established under the present Convention is void. The provisions of a void treaty have no legal force. 2. If acts have nevertheless been performed in reliance on such a treaty: (a) each party may require any other party to establish as far as possible in their mutual relations the position that would have existed if the acts had not been performed; (b) acts performed in good faith before the invalidity was invoked are not rendered

14 unlawful by reason without onlyprejudice of the invalidity to any of obligation the treaty. in relation to a treaty which may arise for an 3. In cases falling aggressor under ART.s State49, in consequence 50, 51 or 52, paragraph of measures 2 does takennot in apply conformity with with the Charter of respect to the party the United to which Nations the fraud, with the reference act of corruption to that State's or the aggression. coercion is imputable. PART VII DEPOSITARIES, NOTIFICATIONS, CORRECTIONS AND REGISTRATION 4. In the case ofART. the invalidity 76 Depositaries of a particular of treaties: State's1. consent The designation to be bound of the by adepositary of a treaty may multilateral treaty, bethe made foregoing by the negotiating rules apply States, in the relations either inbetween the treaty that itself State or in and some the other manner. parties to the treaty. The depositary may be one or more States, an international organization or the chief ART. 70 Consequences administrative of the officer termination of the organization. of a treaty: 1. Unless the treaty otherwise provides or the parties 2. The functions otherwiseofagree, the depositary the termination of a treaty of a treaty are international under its provisions in character and the or in accordancedepositary with the present is underConvention: an obligation to act impartially in their performance. In particular, (a) releases thethe parties fact from that aany treaty obligation has notfurther entered to into perform forcethe between treaty; certain of the parties or that a (b) does not affect difference any right, has obligation appearedorbetween legal situation a Stateofand the aparties depositary created withthrough regard to the the execution ofperformance the treaty prior of the to its latter's termination. functions shall not affect that obligation. 2. If a State denounces ART. 77or Functions withdrawsoffrom depositaries: a multilateral 1. treaty, The functions paragraph of a1depositary, applies in unless otherwise the relations between provided thatinState the treaty and each or agreed of theby other the parties contracting to the States, treaty comprise from the in particular: date when such(a) denunciation keeping custody or withdrawal of the original takes effect. text of the treaty and of any full powers delivered to ART. 71 Consequences the depositary; of the invalidity of a treaty which conflict with a peremptory norm (b) preparing of generalcertified international copies law: of the1.original In the case text and of apreparing treaty which anyisfurther text of the void under ART.treaty 53 theinparties such additional shall: languages as may be required by the treaty and transmitting (a) eliminate as them far astopossible the parties the consequences and to the States of any entitled act performed to become in parties reliance to the on treaty; any provision which (c) receiving conflicts any withsignatures the peremptory to thenorm treatyofand general receiving international and keeping law; custody of any and instruments, notifications and communications relating to it; (b) bring their mutual (d) examining relationswhether into conformity the signature with the orperemptory any instrument, normnotification of general or communication international law.relating to the treaty is in due and proper form and, if need be, bringing the matter to 2. In the case ofthe a treaty attention which of becomes the State in void question; and terminates under ART. 64, the termination of the (e)treaty: informing the parties and the States entitled to become parties to the treaty of acts, (a) releases thenotifications parties fromand any communications obligation furtherrelating to perform to the thetreaty; treaty; (b) does not affect (f) informing any right, the obligation States or entitled legal situation to become of parties the parties to the created treaty through when the number of the execution ofsignatures the treaty prior or of to instruments its termination; of ratification, providedacceptance, that those rights, approval obligations or accession required or situations may forthereafter the entry be intomaintained force of the only treaty to the hasextent been that received their or maintenance deposited; is not in itself in conflict (g) registering with the new the treaty peremptory with the norm Secretariat of general of the international United Nations; law. ART. 72 Consequences (h) performing of thethe suspension functions specified of the operation in other provisions of a treaty of the present Convention. 1. Unless the treaty 2. Inotherwise the event provides of any difference or the parties appearing otherwise between agree, a State the suspension and the depositary as to of the operationthe of aperformance treaty underof itsthe provisions latter's functions, or in accordance the depositary with theshall present bring the question to the Convention: attention of the signatory States and the contracting States or, where appropriate, of (a) releases thethe parties competent between organ which of the the operation international of the organization treaty is suspended concerned.from the obligation toART. perform 78 Notifications the treaty in their andmutual communications: relations during Except the period as the of treaty the or the present suspension; Convention otherwise provide, any notification or communication to be made by any (b) does not otherwise State under affectthe thepresent legal relations Convention between shall:the parties established by the treaty. (a) if there is no depositary, be transmitted direct to the States for which it is intended, 2. During the period or if there of theissuspension a depositary, thetoparties the latter; shall refrain from acts tending to obstruct the resumption (b) be considered of the operation as having of the been treaty. made by the State in question only upon its receipt PART VI MISCELLANEOUS by the State toPROVISIONS which it was transmitted or, as the case may be, upon its receipt by the ART. 73 Cases depositary; of State succession, State responsibility and outbreak of hostilities: The(c) provisions if transmitted of thetopresent a depositary, Convention be considered shall not prejudge as received anyby question the State for which it that may arise inwas regard intended to a treaty only when from athe succession latter State ofhas States been or informed from the international by the depositary in responsibility of accordance a State or from withthe ART. outbreak 77, paragraph of hostilities 1 (e).between States. ART. 74 Diplomatic ART. and 79 Correction consular relations of errorsand in texts the conclusion or in certified of treaties: copies ofThe treaties: 1. Where, severance or absence after the ofauthentication diplomatic or consular of the text relations of a treaty, between the signatory two or more States States and the contracting does not preventStates the conclusion are agreed ofthat treaties it contains between an those error, States. the errorThe shall, conclusion unless they of a decide upon treaty does not in itself affect the situation in regard to diplomatic or consular relations.

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some other means of correction, be corrected: (a) by having the appropriate correction made in the text and causing the correction to be initialled by duly authorized representatives; (b) by executing or exchanging an instrument or instruments setting out the correction which it has been agreed to make; or (c) by executing a corrected text of the whole treaty by the same procedure as in the case of the original text. 2. Where the treaty is one for which there is a depositary, the latter shall notify the signatory States and the contracting States of the error and of the proposal to correct it and shall specify an appropriate time-limit within which objection to the proposed correction may be raised. If, on the expiry of the time-limit: (a) no objection has been raised, the depositary shall make and initial the correction in the text and shall execute a procés-verbal of the rectification of the text and communicate a copy of it to the parties and to the States entitled to become parties to the treaty; (b) an objection has been raised, the depositary shall communicate the objection to the signatory States and to the contracting States. 3. The rules in paragraphs 1 and 2 apply also where the text has been authenticated in two or more languages and it appears that there is a lack of concordance which the signatory States and the contracting States agree should be corrected. 4. The corrected text replaces the defective text ab initio, unless the signatory States and the contracting States otherwise decide. 5. The correction of the text of a treaty that has been registered shall be notified to the Secretariat of the United Nations. 6. Where an error is discovered in a certified copy of a treaty, the depositary shall execute a procés-verbal specifying the rectification and communicate a copy of it to the signatory States and to the contracting States. ART. 80 Registration and publication of treaties: 1. Treaties shall, after their entry into force, be transmitted to the Secretariat of the United Nations for registration or filing and recording, as the case may be, and for publication. 2. The designation of a depositary shall constitute authorization for it to perform the acts specified in the preceding paragraph. PART VIII FINAL PROVISIONS ART. 81 Signature: The present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency or parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a party to the Convention, as follows: until 30 November 1969, at the Federal Ministry for Foreign Affairs of the Republic of Austria, and subsequently, until 30 April 1970, at United Nations Headquarters, New York. ART. 82 Ratification: The present Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations. ART. 83 Accession: The present Convention shall remain open for accession by any State belonging to any of the categories mentioned in ART. 81. The instruments of accession shall be deposited with the Secretary-General of the United Nations. ART. 84 Entry into force: 1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the thirty-fifth instrument of ratification or accession. 2. For each State ratifying or acceding to the Convention after the deposit of the thirtyfifth instrument of ratification or accession, the Convention shall enter into force on the

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thirtieth day after deposit by such State of its instrument of ratification or accession. ART. 85 Authentic texts: The original of the present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations. IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized thereto by their respective Governments, have signed the present Convention. DONE at Vienna, this twenty-third day of May, one thousand nine hundred and sixtynine.

DBM v. KOLONWEL TRADING; VIBAL v. KOLONWEL; DEPED v. KOLONWEL (8 June 2007) [3 consolidated cases] Petitioners: Dept. of Budget and Management Procurement Service (DBM-PS) and the Inter-Agency Bids and Awards Committee (IABAC) Petitioners: Vibal Publishing House, Inc., LG & M Corp., and SD Publications, Inc. Petitioner: Department of Education Respondent: Kolonwel Trading Nature: Petitions for review with a prayer for a temporary restraining order Ponente: Garcia, J. SUBJECT OF THE CONTROVERSY: the bidding and eventual contract awards for the supply and delivery of some 17.5 million copies of Makabayan (social studies) textbooks and teacher’s manuals, a DepEd project which was to be jointly funded by the World Bank (WB)17 and the Asian Development Bank (ADB)18. In the middle of 2005, the DepEd requested the DBM-PS to undertake this project. According to the Exec. Director of the Government Procurement Policy Board (GPPB), “the procurement(s) for MAKABAYAN… textbooks were funds therefore (sic) are sourced from WB Loan shall be governed by the applicable procurement guidelines for the foreign lending institution. The 2005 Call for Submission of Textbooks and Teacher’s Manuals shall be viewed vis-à-vis relevant WB guidelines.” CALL FOR BIDS. On Oct. 27, 2005, the DBM-PS IABAC called for a bidding for the supply of the Makabayan textbooks and manuals, divided into 3 lots19. 11 bidders submitted proposals for the different lots: Watana Phanit Printing & Publishing Co., Ltd., (Thailand); Vibal Publishing House, Inc.; Daewoo International Corporation (South Korea); and Kolonwel. IABAS’S RES. NO. 001-200620 recommended to the WB and ADB the failure of bids for all the lots due to disqualifications, non-compliance, and DepEd’s reservations. The 17

Through the Second Social Expenditure Management Program (SEMP2) of the Philippines – International Bank for Reconstruction and Development (IBRD) Loan Agreement No. 7118-PH (Loan No. 7118-PH) dated Sept. 12, 2002. 18

Through the SEDIP Loan No. 1654-PHI.

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Lot 1, for Sibika Grades 1-3. Lot 2, for HeKaSi Grades 4-6. Lot 3, for Araling Panlipunan Years I-IV. 20

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reasons stated: conflict of interest with respect to Watana and Vibal; failure in cover stock testing for Kolonwel; and DepEd’s reservation. WB21 LETTER TO THE DEPED, DBM-PS, & IABAC: (1) disagreed with the finding of conflict of interest (Vibal and Watana); (2) upheld the other disqualifications; and (3) asked the IABAC to review its evaluation and to provide the WB with the revised Bid Evaluation Report, taking into account the Dec. 31, 2006 RP-IBRD Loan closing date. MAY 11, 2006, KOLONWEL WAS INFORMED OF ITS BID’S FAILURE TO QUALIFY. KOLONWEL ASKED THAT ITS DISQUALIFICATION BE RECONSIDERED AND SET ASIDE VIA LETTERS22. This, and a second request for reconsideration,were denied. IABAC’S RES. NO. 001-2006-A was issued, recommending to the WV the contract award to Vibal23, Watana24, and Daewoo25. The notices of award were issued and the Purchaser-Supplier contracts were executed on Sept. 12, 2006. KOLONWEL FILED WITH THE RTC OF MANILA A SPECIAL CIVIL ACTION FOR CERTIORARI AND PROHIBITION, with a prayer for a temporary restraining order and/or a writ of preliminary injunction, on Oct. 12, 2006, in order to nullify the 2 IABAC resolutions and to set aside the contract awards in favor of Vibal and Watana. To support the TRO application, Kolonwel alleged that the supply-awardees were rushing with the implementation of the void contracts to beat the loan closing-date deadline. A 20-day TRO was granted. MOTIONS TO DISMISS FILED BY VIBAL, DEPED: want of jurisdiction and lack of cause of action for failure to comply with the protest procedure prescribed by RA 9184, the “Government Procurement Reform Act.” RTC FOUND FOR KOLONWEL: “…the court grants the petition for certiorari and prohibition. The IABAC Res. No. 001-2006-A… is annulled and set aside. IABAC Res. No. 001-2006 is declared validly and regularly issued… All subsequent actions of the respondents resulting from the issuance of IABAC Res. 001-2006-A are consequently nullified and set aside. This court grants a final injunction….”

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FOR THE PETITIONERS: RTC erred in assuming jurisdiction despite the failure to observe the protest mechanism under Sec. 5526 in relation to Secs. 5727 and 5828 of RA 9184. FOR KOLONWEL: (1) the judicial window was already opened under the exhaustion of available administrative remedies principle, considering that its request for reconsideration was denied twice; and (2) it was prevented from filing a protest as the government hadn’t yet issued the IRR of RA 9184, to render its protest mechanism operative for foreign-funded projects. ISSUE: WON the RTC lacked jurisdiction due to the failure to comply with the protest mechanism. HELD: YES. 3 PROTEST REQUIREMENTS UNDER SEC. 55: 1) the protest must be in writing, in the form of a verified position paper; 2) the protest must be submitted to the head of the procuring entity; and 3) the payment of a non-refundable protest fee. Under Sec. 58, courts would have jurisdiction only if the protest procedure has already been completed. KOLONWEL’S LETTERS FOR RECONSIDERATION FAILED TO COMPLY WITH SEC. 55: (1) letters weren’t addressed to the head of the procuring entity (the DepEd Sec. or the DBM-PS head), as required by law; (2) these were unverified; and (3) no payment of protest fee. Thus it cannot really be said that Kolonwel availed of the protest procedure prescribed under Sec. 55 before going to the RTC, and its filing of a case was precipitate and should’ve been dismissed for lack of jurisdiction. The protest mechanism is a built-in administrative remedy embodied in the law itself. It was not prescribed by an administrative agency tasked with implementing a statute through the medium of interpretative circulars or bulletins. Ignoring this administrative remedy would be to defy the law itself. LACK OF IRR, MAKING THE PROTEST MECHANISM OPERATIVE FOR FOREIGNFUNDED PROJECTS, WOULDN’T EXCUSE KOLONWEL. As provided by Sec. 55 itself, the IRR (for the protest for foreign-funded projects) was limited to the fixing of the amount of the protest fee and the periods during which the protest may be filed and resolved. The absence of provisions on protest fee and reglementary period wouldn’t lead to the deferment of the implementation of the protest mechanism as a condition sine qua non to resort to judicial relief. There was no need to wait for the prescription of 26

Sec. 55. Protest on Decision of the BAC.- Decisions of the BAC [Bids and Awards Committee] in all stages of procurement may be protested to the head of the procuring entity…. Decisions of the BAC may be protested by filing a verified position paper and paying a non-refundable protest fee. The amount of the protest fee and the periods during which the protest may be filed and resolved shall be specific in the IRR. 27 21 22 23 24 25

Through its Regional Senior Economist, Ms. Rekha Menon. Dated May 18 and June 28. Of Sibika 1 & 3. Sibika 2 and HeKaSi 4 & 5. Sibika 3.

Sec. 57. Non-interruption of the Bidding Process. In no case shall any process taken from any decision treated in this Article stay or delay the bidding process. Protests must first be resolved before any award is made. 28

Sec. 58. Report to Regular Courts; Certiorari.- Court action may be resorted to only after the protests contemplated in this Article shall have been completed. Cases that are filed in violation of the process specified in this article shall be dismissed for lack of jurisdiction. The [RTC] shall have jurisdiction over final decisions of the head of the procuring entity. (Emphasis and words in bracket added.) Always will B

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the specific filing period as protest, as a matter of necessity, has to be lodged before court action. With respect to the protest fee, Kolonwel could’ve proceeded with its protest without paying the fee, remitting the proper amount once the proper amount was fixed by the IRR. “IRR-A” AND ABAYA v. EBDANE. At any rate, there is in fact a set of implementing rules and regulations, the “IRR-A29,” Sec. 55.1 of which provides that prior to a resort to protest, the aggrieved party must first file a motion for reconsideration of the decision of the BAC. It is only after the BAC itself denies reconsideration that the protest, accompanied by a fixed protest fee, shall be filed within the period defined in the IRR. While this applies to “all fully domestically-funded procurement activities,” and that “foreign-funded procurement activities shall be the subject of a subsequent issuance,” ABAYA30 should be considered: Admittedly, IRR-A…expressly stated that IRR-B for foreign-funded procurement activities shall be subject of a subsequent issuance. Nonetheless, there is no reason why the policy behind Sec. 77… cannot be applied to foreign-funded procurement projects…the policy on the prospective or non-retroactive application of RA 9184 with respect to domestically-funded procurement projects cannot be any different with respect to foreign-funded procurement projects…It would be incongruous, even absurd, to provide for the prospective application of RA 9184 with respect to domestically-funded procurement projects and…apply RA 9184 retroactively with respect to foreign-funded procurement projects. To be sure, the lawmakers could not have intended such an absurdity. There is no reason why the policy behind Section 55.l on the procedure for protest cannot be applied to foreign-funded procurement projects and RA 9184 doesn’t show that Congress intended such a variance in the protest procedure. NO SUBSTANTIAL COMPLIANCE OF PROTEST REQUIREMENTS as it wasn’t even clear that Kolonwel was aware of these. What is beyond dispute is that courts are precluded by express legislative command from entertaining protests from decisions of the BAC. What Congress intended was that not only would there be a distinct administrative grievance mechanism to be observed in assailing these decisions, but that courts would be without jurisdiction over actions impugning these unless the protest procedure mandated under Sec. 55 is brought to its logical completion. It is Congress by law, not the courts by discretion, which defines the court’s jurisdiction not otherwise conferred by the Constitution. Sec. 55 could not be any clearer when it mandates the manner of protest. Similarly, it is clear under Sec. 58 that courts do not have jurisdiction over decisions of the BACs unless the appropriate protest has been made and completed. Despite the lack of an IRR, RA 9184 still requires a protest to be filed. Thus the RTC lacked jurisdiction over Kolonwel’s petition. ANOTHER RTC ERROR: NO JURISDICTION OVER WATANA which wasn’t served with summons. Watana is an indispensable party31 to Kolonwel’s petition, which assailed and sought to nullify the contract-award made in Watana’s and Vibal’s favor.

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WRT THE SUPERIORITY OF WB GUIDELINES ON PROCUREMENT UNDER IBRD LOANS OVER LOCAL LAWS: recall that all interested bidders were notified that the DepEd’s procurement project was financed by the proceeds of the RP-IBRD Loan No. 7118-PH, Sec. 1, Schedule 432. The bidding was conducted by IABAC based on the WB Guidelines, particularly the provisions on International Competitive Bidding (ICB). Sec. 433 of RA 9184 expressly recognized this process. The question as to whether or not foreign loan agreements with international financial institutions (Loan No. 7118-PH) partake of an executive or international agreement within the purview of the Sec. 4 has been answered in the affirmative in Abaya, which declared that the RP-JBIC loan agreement was to be of governing application over the project and that the JBIC Procurement Guidelines, as stipulated in the loan agreement, shall primarily govern the procurement of goods necessary to implement the main project. Under the fundamental international law principle of pacta sunt servanda, embodied in Sec. 4 of R.A. No. 9184, the Philippines, as borrower, bound itself to perform in good faith its duties and obligation under Loan No. 7118- PH. Thus the IABAC was legally obliged to comply with, or accord primacy to, the WB Guidelines on the conduct and implementation of the bidding/procurement process in question.

BAYAN v. ZAMORA (October 10, 2000) Buena, J. FACTS. In 1947, the Military Bases Agreement (MBA)was forged, and in 1951, the Mutual Defense Treaty was entered into providing that the Philippines and the US shall respond to any external armed attack on their territory, armed forces, public vessels, and aircraft. In 1991, the MBA expired so the military exercises were held in abeyance. The US and Philippines represented by the US Defense Deputy Assistant Secretary for Asia Pacific and Philippines Foreign Affairs Undersecretary discussed the Visiting Forces Agreement (VFA). A draft text was consolidated and thereafter approved by President Ramos. In 1998, Erap ratified the VFA. The Instrument of Ratification, the letter of the President and the VFA were transmitted to the Senate for concurrence pursuant to Section 21, Article VII of the 1987 Constitution (not Section 25, Article XVII). HELD: Court dismissed the petitions because there was no grave abuse of discretion. THE VISITNG FORCES AGREEMENT. The VFA provides for the mechanism for regulating the circumstances and conditions under which US Armed Forces and defense personnel my be present in the Philippines. 31

Indispensable parties are those with such an interest in the controversy that a final decree would necessarily affect their rights so that courts can’t proceed without their presence. All of them must be included in a suit for an action to prosper or for a final determination to be had. 32

This stipulates that “Goods… shall be procured in accordance with the provisions of Sec. 1 of the Guidelines for Procurement under IBRD Loans.” 33

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Issued on July 11, 2003 by the GPPB and the Joint Congressional Oversight Committee.

Which involved Loan Agreement No. PH-P204 between the Phil. and the Japan Bank for International Cooperation for the implementation of DPWH Contract Package No. 1.

Sec. 4. Scope and application. – This Act shall apply to the Procurement of… Goods and Consulting Services, regardless of source of funds, whether local or foreign by all branches and instrumentalities of government… Any treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be observed. (Emphasis added.) Always will B

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It is an agreement which defines the treatment of US troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the US and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies. 1ST ISSUE: LOCUS STANDI. Petitioners had no legal standing. First, they failed to show that they have sustained, or are in danger of sustaining any direct injury as a result of the enforcement of the VFA. Second, no public funds raised by taxation are involved in this case. Third, Representatives Wigberto Tañada, Agapito Aquino and Joker Arroyo, in the absence of a clear showing of any direct injury to their person or to the institution to which they belong, have no standing. Fourth, the allegations of impairment of legislative power are more apparent than real. NONETHELESS, THE COURT TAKES COGNIZANCE OF THE CASE. This is in view of the paramount importance and the constitutional significance of the issues raised. 2ND ISSUE: WHICH CONSTITUTIONAL PROVISION APPLIES. Both provisions shall apply because far from contradicting each other, actually share some common ground. In any case, the concurrence of the Senate is mandatory to comply with the strict constitutional requirements. The 1987 Philippine Constitution contains 2 provisions requiring the concurrence of the Senate on treaties or international agreements. Section 21, Article VII reads: “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate." Section 25, Article XVIII reads: "After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State." REQUIREMENTS UNDER SECTION 25. This section disallows foreign military bases, troops, or facilities in the country, unless the following conditions are met: [1] must be under a treaty [2] duly concurred in by the Senate [3] recognized as a treaty by the other contracting state. 3RD ISSUE: WON THE US RECOGNIZED VFA AS A TREATY. Practically, yes. First of all, the phrase "recognized as a treaty" means that the other contracting party accepts or acknowledges the agreement as a treaty. US need not submit the VFA to the US Senate for concurrence pursuant to its Constitution, because this is to accord too strict a meaning to the phrase. Secondly, it is inconsequential whether the US treats the VFA merely as an executive agreement (EO) because, under international law, an executive agreement is as binding as a treaty. In international law, there is no difference between treaties and EOs in their

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binding effect upon states, as long as the negotiating functionaries have remained within their powers. Third, in any case, the records reveal that the US Government, through Ambassador Hubbard, has stated that the US government has fully committed to living up to the terms of the VFA. For as long as the US acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is a compliance with the mandate of the Constitution. TREATY; DEFINED. Article 2 of the Vienna Convention on the Law of Treaties, states that it is "an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in 2 or more related instruments, and whatever its particular designation." 4TH ISSUE: WON AN EO IS BINDING. Yes, it is binding. Commissioner of Customs vs. Eastern Sea Trading states that EOs are binding even without concurrence of the Senate or Congress because “the right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage…The validity of these has never been seriously questioned by our courts.” 5TH ISSUE; WON PHILIPPINES IS BOUND BY THE TREATY. Yes. Firstly, and addition to meeting all the constitutional requirements, the Philippines is bound by the treaty because ratification, by the President and the concurrence of the Senate should be taken as a clear and unequivocal expression of our nation's consent to be bound Second, Section 2, Article II of the Constitution declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land. Therefore, Filipinos are responsible to assure that its government, Constitution and laws will carry out the country’s international obligation. The Philippines cannot plead the Constitution as a convenient excuse for non-compliance with its obligations, duties and responsibilities under international law. Third, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 provides: "Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty." Fourth, the principle of pacta sunt servanda preserves the sanctity of treaties. Article 26 of the Convention provides that "Every treaty in force is binding upon the parties to it and must be performed by them in good faith." RATIFICATION; DEFINED. It is an executive act, undertaken by the head of the state or of the government, as the case may be, through which the formal acceptance of the treaty is proclaimed. It is equivalent to final acceptance. THE CONSENT TO BE BOUND IS EXPRESSED BY RATIFICATION WHEN: [1] the treaty provides for such ratification, [2] it is otherwise established that the negotiating States agreed that ratification should be required [3] the representative of the State has signed the treaty subject to ratification, or Always will B

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[4] the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative, or was expressed during the negotiation. PRESIDENT IS THE ONE WHO CONSENTS. The power to ratify is vested in the President and not in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification. SENATE IS THE ONE THAT CONCURS. The role of the Senate in relation to treaties is essentially legislative in character. The Constitution animates, through this treatyconcurring power of the Senate, a healthy system of checks and balances indispensable toward the nation's pursuit of political maturity and growth 6TH ISSUE: WON THERE WAS GRAVE ABUSE OF DISCRETION. No. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of law. The President, as head of State, is the sole organ and authority in the external affairs of the country. The Constitution vests the power to enter into treaties or international agreements with the President. Hence, the negotiation of the VFA is an exclusive act which pertain solely to the President. The Senate and Congress cannot intrude into the field of negotiation. The President acted within the confines and limits of the powers vested in him by the Constitution. Even if he erred in submitting the VFA to the Senate for concurrence under Section 21, instead of Section 25, still, the President may not be faulted or scarred, much less be adjudged guilty of committing an abuse of discretion in some patent, gross, and capricious manner. Matters pertaining to the wisdom of a legislative act are beyond the ambit and province of the courts to inquire.

Lim vs. Executive Secretary DE LEON, JR., J.: This case involves a petition for certiorari and prohibition as well as a petition-inintervention, praying that respondents be restrained from proceeding with the so-called "Balikatan 02-1" and that after due notice and hearing, that judgment be rendered issuing a permanent writ of injunction and/or prohibition against the deployment of U.S. troops in Basilan and Mindanao for being illegal and in violation of the Constitution. BASIC FACTS GI JOE ARRIVES TO KILL TERRORISTS 2002: personnel from the armed forces of the USA started arriving in Mindanao to take part, in conjunction with the Philippine military, in "Balikatan 02-1”; said exercises are the largest combined training operations involving Filipino and American troops. In theory, they are a simulation of joint military maneuvers pursuant to the Mutual Defense

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Treaty (a bilateral defense agreement entered into by the Philippines and the United States in 1951). The last "Balikatan" was held in 1995. This was due to the paucity of any formal agreement relative to the treatment of United States personnel visiting the Philippines. In the meantime, the respective governments of the two countries agreed to hold joint exercises on a reduced scale. The lack of consensus was eventually cured when the two nations concluded the Visiting Forces Agreement (VFA) in 1999. The entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism campaign declared by President George W. Bush in reaction to the tragic events that occurred on September 11, 2001. PETITION FOR CERTIORATI AND PROHIBITION February 1: petitioners Arthur D. Lim and Paulino P. Ersando filed a petition for certiorari and prohibition, attacking the constitutionality of the joint exercise. They were joined subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA. Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO, on the other hand, aver that certain members of their organization are residents of Zamboanga and Sulu, and hence will be directly affected by the operations being conducted in Mindanao. They likewise pray for a relaxation on the rules relative to locus standi citing the unprecedented importance of the issue involved. SENATE Terms of Reference (TOR) The Senate conducted a hearing on the "Balikatan" exercise wherein Vice-President Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign. Affairs, released the following TOR: I. POLICY LEVEL 1. The Exercise shall be consistent with the Philippine Constitution and all its activities shall be in consonance with the laws of the land and the provisions of the RP-US Visiting Forces Agreement (VFA). 2. The conduct of this training Exercise is in accordance with pertinent United Nations resolutions against global terrorism as understood by the respective parties. 3. No permanent US basing and support facilities shall be established. Temporary structures such as those for troop billeting, classroom instruction and messing may be set up for use by RP and US Forces during the Exercise. 4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of the Chief of Staff, AFP. In no instance will US Forces operate independently during field training exercises (FTX). AFP and US Unit Commanders will retain command over their respective forces under the overall authority of the Exercise Co-Directors. RP and US participants shall comply with operational instructions of the AFP during the FTX. 5. The exercise shall be conducted and completed within a period of not more than six months, with the projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and terminate the Exercise and other activities within the six month Exercise period. 6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further advising, assisting and training exercises shall be conducted in Always will B

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Malagutay and the Zamboanga area. Related activities in Cebu will be for support of the Exercise. 7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP field, commanders. The US teams shall remain at the Battalion Headquarters and, when approved, Company Tactical headquarters where they can observe and assess the performance of the AFP Forces. 8. US exercise participants shall not engage in combat, without prejudice to their right of self-defense. 9. These terms of Reference are for purposes of this Exercise only and do not create additional legal obligations between the US Government and the Republic of the Philippines. II. EXERCISE LEVEL 1. TRAINING a. The Exercise shall involve the conduct of mutual military assisting, advising and training of RP and US Forces with the primary objective of enhancing the operational capabilities of both forces to combat terrorism. b. At no time shall US Forces operate independently within RP territory. c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations. 2. ADMINISTRATION & LOGISTICS a. RP and US participants shall be given a country and area briefing at the start of the Exercise. This briefing shall acquaint US Forces on the culture and sensitivities of the Filipinos and the provisions of the VF A. The briefing shall also promote the full cooperation on the part of the RP and US participants for the successful conduct of the Exercise. b. RP and US participating forces may share, in accordance with their respective laws and regulations, in the use of their resources, equipment and other assets. They will use their respective logistics channels. c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and resources. d. Legal liaison officers from each respective party shall be appointed by the Exercise Directors. 3. PUBLIC AFFAIRS a. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon City. b. Local media relations will be the concern of the AFP and all public affairs guidelines shall be jointly developed by RP and US Forces. c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and US Forces in accordance with their respective laws and regulations, and in consultation with community and local government officials. Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and United States Charge d' Affaires Robert Fitts signed the Agreed Minutes of the discussion between the Vice-President and Assistant Secretary Kelly.4 ARGUMENTS OF PETITIONERS 1) The Phil and US signed the Mutual Defense Treaty in 1951 to provide mutual military assistance in accordance with the constitutional processes of each country ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR.  The Abu Sayyaf bandits ARE NOT an external armed force to warrant the US military assistance.

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SOLGEN DEFENDS BALIKATAN 1) SOLGEN questions petitioners standing, prematurity of the action as well as the impropriety of availing of certiorari to ascertain a question of fact. LOCUS STANDI:First, they may not file suit in their capacities as, taxpayers inasmuch as it has not been shown that "Balikatan 02-1 " involves the exercise of Congress' taxing or spending powers. Second, their being lawyers does not invest them with sufficient personality to initiate the case, citing the ruling in Integrated Bar of the Philippines v. Zamora. Third, Lim and Ersando have failed to demonstrate the requisite showing of direct personal injury. NOTE: THE COURT AGREED WITH THE SOLGEN ON THIS PROCEDURAL MATTER. (But still allowed petition on the merits). PREMATURITY: SOLGEN is of the view that since the Terms of Reference are clear as to the extent and duration of "Balikatan 02-1," the issues raised by petitioners are premature, as they are based only on a fear of future violation of the Terms of Reference. Even petitioners' resort to a special civil action for certiorari is assailed on the ground that the writ may only issue on the basis of established facts. MAIN DEFENSE SOLGEN claims that there is actually no question of constitutionality involved. The true object of the instant suit, it is said, is to obtain an interpretation of the V FA. The Solicitor General asks that the SC accord due deference to the executive determination that "Balikatan 02-1" is covered by the VFA, considering the President's monopoly in the field of foreign relations and her role as commander-in-chief of the Philippine armed forces. PROCEDURAL PART COURT: USED TRANSCENDENTAL IMPORTANCE DOCTRINE AND GRANTED STANDING TO PETITIONERS In view of the paramount importance and the constitutional significance of the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases (where the SC “brushed away rules on technicality” and had occasion to rule: 'x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were involving only an indirect and general interest shared in common with the public. The Court dismissed the objection that they were not proper parties and ruled that 'transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure.' We have since then applied the exception in many other cases. [citation omitted] Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases of transcendental importance, the Court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review.

2) The VFA does NOT authorize American soldiers to engage in combat operations in Philippine territory (cannot even fire back if fired upon). Always will B

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Hence, we treat with similar dispatch the general objection to the supposed prematurity of the action. At any rate, petitioners' concerns on the lack of any specific regulation on the latitude of activity US personnel may undertake and the duration of their stay has been addressed in the Terms of Reference. COURT: BALIKATAN MUST BE VIEWED IN THE FRAMEWORK OF THE TREATY THAT PERMITTED SUCH TO OCCUR 1. MUTUAL DEFENSE TREATY The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT has been described as the "core" of the defense relationship between the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and technological capabilities of our armed forces through joint training with its American counterparts; the "Balikatan" is the largest such training exercise directly supporting the MDT's objectives. It is this treaty to which the V FA adverts and the obligations thereunder which it seeks to reaffirm. 2. VISITING FORCES AGREEMENT The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum in US-Philippine defense relations; until it was replaced by the Visiting Forces Agreement. I  note that October 10, 2000, by a vote of eleven to three, the SC upheld the validity of the VFA. The VFA provides the "regulatory mechanism" by which "United States military and civilian personnel [may visit] temporarily in the Philippines in connection with activities approved by the Philippine Government." It contains provisions relative to entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well as the duration of the agreement and its termination. It is the VFA which gives continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate the promotion of optimal cooperation between American and Philippine military forces in the event of an attack by a common foe. MAIN PART OF THE DECISION ISSUE NUMBER 1: WON Balikatan is covered by the VFA -Why yes it is. COURT: Don’t look at the VFA since the terminology itself is the problem. Look at Vienna Convention on the Law of Treaties in order to know HOW TO INTERPRET THE DAMN VFA. To resolve this, it is necessary to refer to the V FA itself: Not much help can be had therefrom, unfortunately, since the terminology employed is itself the source of the problem. The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the Philippine government. The sole encumbrance placed on its definition is couched in the negative, in that United States personnel must "abstain from any activity inconsistent

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with the spirit of this agreement, and in particular, from any political activity." All other activities, in other words, are fair game. The Vienna Convention on the Law of Treaties, which contains provisos governing interpretations of international agreements, state: SECTION 3. INTERPRETATION OF TREATIES Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be given to the tenus of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the party . 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31 : (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd unreasonable. It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which is presumed to verbalize the parties' intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken into account alongside the aforesaid context. As explained by a writer on the Convention , “[t]he Commission's proposals (which were adopted virtually without change by the conference and are now reflected in Articles 31 and 32 of the Convention) were clearly based on the view that the text of a treaty must be presumed to be the authentic expression of the intentions of the parties; the Commission accordingly came down firmly in favour of the view that 'the starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties'. This is Always will B

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not to say that the travauxpreparatoires of a treaty , or the circumstances of its conclusion, are relegated to a subordinate, and wholly ineffective, role. As Professor Briggs points out, no rigid temporal prohibition on resort to travaux preparatoires of a treaty was intended by the use of the phrase 'supplementary means of interpretation' in what is now Article 32 of the Vienna Convention. The distinction between the general rule of interpretation and the supplementary means of interpretation is intended rather to ensure that the supplementary means do not constitute an alternative, autonomous method of interpretation divorced from the general rule.

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

COURT: THE TERMS OF REFERENCE RIGHTLY FALL WITHIN THE CONTEXT OF THE VFA; DELIBERATE AMBIGUITY After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word 'activities" arose from accident. SC has the view that it was deliberately made that way to give both parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the nation's marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the like.

xxx

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise," falls under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual Defense Treaty and the V FA support the conclusion that combat-related activities -as opposed to combat itself -such as the one subject of the instant petition are indeed authorized.

xxx

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COURT: DIFFICULT TO IMPLEMENT “SELF-DEFENSE” RULE The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not engage in combat "except in self-defense." SC notes that this sentiment is admirable in the abstract but difficult in implementation. The target of "Balikatan 02-1 I" the Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to their very doorstep. They cannot be expected to pick and choose their targets for they will not have the luxury of doing so. SC points out that the parties straddle a fine line, observing the honored legal maxim "Nemo potest facere per alium quod non potest facere per directum." The indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1 " is actually a war principally conducted by the United States government, and that the provision on self-defense serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement on this matter thereby becomes crucial. COURT: MDT/VFA DO NOT ALLOW FOREIGN TROOPS TO ENGAGE IN AN OFFENSIVE WAR ON PHILIPPINE TERRITORY (cf UN Charter) Article 2

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4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. xxx

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COURT: READ BOTH TREATIES IN THE CONTEXT OF THE 1987 CONSITUTION Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and international agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution. In particular, the Mutual Defense Treaty was concluded way before the present Charter, though it nevertheless remains in effect as a valid source of international obligation. The present Constitution contains key provisions useful in determining the extent to which foreign military troops are allowed in Philippine territory. Thus, in the Declaration of Principles and State Policies, it is provided that: xxx

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SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. xxx

ISSUE NUMBER 2: MAY US TROOPS ENGAGE IN COMBAT? -Nah. (remember: ligaw tingin kantot hangin lang sila.) Unless the bandits draw first blood (remember rules of engagement?)

xxx

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SEC. 7. The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self- determination. SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in the country. xxx

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The Constitution also regulates the foreign relations powers of the Chief Executive when it provides that "[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate."12 Even more pointedly, the Transitory Provisions state: Sec. 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting state. The aforequoted provisions betray a marked antipathy towards foreign military presence in the country, or of foreign influence in general. Hence, foreign troops are allowed entry Always will B

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into the Philippines only by way of direct exception. Conflict arises then between the fundamental law and our obligations arising from international agreements. COURT: NO PRIMACY OF LAW BETWEEL PIL AND MUNICIPAL LAW In Philip Morris, Inc. v. Court of Appeals it was stated that “the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of international law are given a standing equal, not superior, to national legislation. “ [This is not exactly helpful in solving the problem at hand since in trying to find a middle ground, it favors neither one law nor the other, which only leaves the hapless seeker with an unsolved dilemma. Other more traditional approaches may offer valuable insights.] COURT: CONSTI VS PIL Perspective of public international law: a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith." Further, a party to a treaty is not allowed to "invoke the provisions of its internal law as justification for its failure to perform a treaty." Phil Constitution (stated in section 5 of Article VIII) “The Supreme Court shall have the following powers: xxx

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(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and order of lower courts in: (A) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. xxx

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 In Ichong v. Hernandez, SC ruled that the provisions of a treaty are always subject to qualification or amendment by a subsequent law, or that it is subject to the police power of the State.  The foregoing premises leave no doubt that US forces are prohibited / from engaging in an offensive war on Philippine territory. ISSUE NUMBER 3: Are American troops actively engaged in combat alongside Filipino soldiers under the guise of an alleged training and assistance exercise? COURT: CANNOT TAKE JUDICIAL NOTICE OF THE EVENTS IN THE SOUTH SC cannot take judicial notice of the events transpiring down south, as reported from the saturation coverage of the media. As a rule, SC does not take cognizance of newspaper or electronic reports per se, not because of any issue as to their truth, accuracy, or impartiality, but for the simple reason that facts must be established in accordance with the rules of evidence.

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 SC cannot accept, in the absence of concrete proof, petitioners' allegation that the Arroyo government is engaged in "doublespeak" in trying to pass off as a mere training exercise an offensive effort by foreign troops on native soil. The petitions invites the SC to speculate on what is really happening in Mindanao, to issue I make factual findings on matters well beyond the SC’s immediate perception, and this they are understandably loath to do. COURT: THE PROBLEM IS AN ISSUE OF FACT (SC is not a trier of facts); Certiorary is to correct errors of jurisdiction/grave abuse of discretion. It is all too apparent that the determination thereof involves basically a question of fact. On this point, SC must concur with the Solicitor General that the present subject matter is not a fit topic for a special civil action for certiorari. Jurisprudence has show in too many instances that questions of fact are not entertained in such a remedy. The sole object of the writ is to correct errors of jurisdiction or grave abuse of discretion: The phrase "grave abuse of discretion" has a precise meaning in law, denoting abuse of discretion "too patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or act in contemplation of law, or where the power is exercised in an arbitrary and despotic manner by reason of passion and personal hostility." In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts. Under the expanded concept of judicial power under the Constitution, courts are charged with the duty "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government."21 From the facts obtaining, the court finds that the holding of "Balikatan 02-1" joint military exercise has not intruded into that penumbra of error that would otherwise call for correction on the SC’s part. In other words, respondents in the case at bar have not committed grave abuse of discretion amounting to lack or excess of jurisdiction. WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without prejudice to the filing of a new petition sufficient in form and substance in the proper Regional Trial Court. Salonga Petition Petitioners: Jovito R. Salonga, Wigberto E. Tanada, Jose de la Rama, Emilio C. Capulong, H. Harry L. Roque, Jr., Florin Hilbay and Benjamin Pozon Respondents: Daniel Smith, Sec. Raul Gonzalez, Presidential Legal Counsel Sergio Apostol. Secretary Ronaldo Puno, Secretary Alberto Romulo, Justice Apolinario Bruselas, Jr., Former Special 16th Division of the CA and all persons acting in their behalf, Amended Petition; Petition for Certiorari under Rule 65 January 22, 2007 Prefatory Statement • VFA preamble (par. 3 and 4) “Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951; “Noting that from time to time elements of the United States armed forces may visit the Republic of the Philippines;” Always will B

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• Two questions from these paragraphs: (1) WON the Mutual Defense Treaty (MDT) applies to the VFA; (2) whether the word visit means what it says, as applied in light of the understanding and the assurances made during the ratification by the Senate of the VFA and, more importantly, in the context of current practices of the US armed forces. • As to 1st question: Petitioners maintain that MDT does not apply: Par. 3 of the MDT preamble speaks of an “external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific Area.” Art. I provides that the parties undertake (as set forth in UN Charter) to settle any international dispute by peaceful means and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the UN. (Judicial notice that the US, under President George W. Bush, has openly denied and ignored the UN in its actions against Iraq—to the dismay and consternation of then UN Secretary General Kofi Annan and many other notable personalities in the US, Europe, Africa and Asia.) Art. II speaks of developing their individual and collective capacity to resist armed attack. Art. III provides for mutual consultation through their Foreign Ministers or their deputies whenever in the opinion of either of them the territorial integrity, political independence or security of either of the parties is threatened by external attack in the Pacific. Art. IV (unlike in the NATO which provides that an armed attack on one is considered automatically an armed attack on the others who are parties) declares that either of the Parties “would act to meet common dangers in accordance with its constitutional processes.” (The US used this escape clause when the Philippines asked the former to come to its aid in case of imminent attack by mainland China on Kalayaan Island in the Spratlys.) Art. V says that for the purpose of Art. IV, an armed attack on either of the parties is deemed to include “an attack on the metropolitan territory of either of the parties, or on the island territories under its jurisdiction in the Pacific.” (Again, the US made use of this provision to justify its refusal to come to the aid of the Philippines in the Kalayaan Island in the Spratlys, despite the imminent attack of China on the armed forces and public vessels of the Philippines.) Art. VI provides that “this Treaty does not affect and shall not be interpreted as affecting in any way the rights and obligations of the Parties under the UN Charter or responsibility of the UN for the maintenance of international peace and security.” Clearly, there is no room for application of the MDT in the VFA as there is no external armed attack on the Philippines to speak of.

•

As to 2nd question: US armed forces’ stay, not temporary visits: In the context of the current practices of the US armed forces in the Philippines, it is incumbent upon this Court to inquire as to the actual length of time US military personnel stay in the Philippines, especially those in Mindanao, under the guise of a visit pursuant to the VFA. It appears that US military personnel are in the Philippines the whole year round, without any geographical and time limitations. Such presence could not, by any stretch of imagination, be considered as temporary visits.

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Antecedent Proceedings 1. October 2000. “Bayan et. al. v. Executive Secretary, et. al.—declaring the VFA as not unconstitutional. Puno dissented in favor of granting the petition. 2.

June 2006. Petition for certiorari filed with the SC by Suzette S. Nicolas (“Nicole”) against Judge Benjamin Pozon and Daniel Smith, et. al. (hrough Attys. Evalyn Ursua, Teofisto Guingona, Jr., Rene AV Saguisag, and former UP Law Dean Magallona)

3.

December 2006. Makati RTC found private respondent guilty beyond reasonable doubt of the crime of rape and sentenced him to 40 years imprisonment. Trial court “temporarily committed” private respondent to the Makati City jail pending further negotiations between the governments of the Philippines and the US regarding custody.

4.

December 5, 2006. Private respondent filed an Urgent Motion for Reconsideration with Prayer for Issuance of Stay Order.

5.

December 8, 2006. Public prosecutor filed a Manifestation submitting therewith an “agreement” signed by US Ambassador Kristie Kenney and Chief State Prosecutor (CSP) Jovencito Zuño. The agreement stated that: the Philippine Government and the US Government agree that, in accordance with the VFA Smith, should be returned to US military custody at the US Embassy. Trial Court received letter from DOJ Secretary with the agreement attached.

6. 7.

December 12, 2006.Trial court denied Smith’s motion for reconsideration. The decision stated that Smith shall continue to be committed in Makati City Jail until the appropriate Philippine and US authorities shall have come to a binding agreement as to the proper facilities where said shall carry out his confinement or detention during his appeal.

8.

December 14, 2006. Smith filed a Petition for Certiorari before the CA praying for the annulment of the order denying his Urgent Motion for Reconsideration.

9.

December 18, 2006. Special 16th Division of CA issued resolution denying private respondent’s prayer for TRO.

10. Petitioners Jovito R. Salonga, Wigberto Tañada, et. al. filed a special appearance petition with the CAto transmit the case to the SC in view of the June 2006 (#2) case pending in the latter. At that time, no agreement had yet been reached between US Ambassador and Secretary Romulo and no resolution had yet been promulgated by Justice Bruselas, Jr. of the CA. 11. December 20, 2006, the DFA, through the Sol. Gen., filed a Very Urgent Manifestation and Motion, submitting an Agreement entered into by U.S. Ambassador and respondent Secretary Romulo.

12. December 22, 2006, the DFA, through the Sol. Gen., filed a Very Urgent Supplemental Manifestation and Motion submitting an Agreement dated 22 December 2006 between U.S. Ambassador and respondent Secretary Romulo which stated that the DFA of the Philippines and the US Embassy agree that, in Always will B

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accordance with the VFA signed upon transfer of Smith from the Makati City Jail to US military authorities at the US Embassy in Manila, he will be detained at the 1st Floor, Rowe (JUSMAG) Building, U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be guarded round-the-clock by US military personnel. The Philippine police and jail authorities, under direct supervision of the DILG, will have access to the place of detention to ensure the US is in compliance with the terms of the VFA. 13. December 27, 2006. Respondent Apostol, despite his knowledge of the pendency of Smith’s Petition for Certiorari before the CA, publicly expressed the view that “we (the executive) are the jailers of Smith, we can decide where to detain a convicted criminal. If the President ordered the transfer, then the courts would not be able to do anything except to cite the executive department for contempt.” 14. December 29, 2006 11 pm. Smith was released from the Makati City Jail by Philippine officials and turned over to US authorities. 15. The next day, respondent Puno admitted that it was he and his Department that transferred custody of respondent Smith to US authorities, explaining that the transfer was effected in the late evening to “avoid traffic.”

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an agreement. Conformably with the wise observation – wrongly attributed to Justice Holmes by Justice Bruselas -- that the other branches of government are equally the ultimate guardians of the liberties and welfare of the people, we resolve to consider the matter treated in the petition MOOT.” 21. Petitioner Salonga immediately pointed out, as published by the Philippine Daily Inquirer that “the basis for the appellate court’s January 3 decision declaring “moot” Smith’s appeal to be returned to US custody had been “falsified and altered.” Petitioner Salonga pointed out that “a portion of the quote attributed to the eminent magistrate read: “[The] other branches of the government are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” Petitioner Salonga said that the correct quote is: “Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine and it must be remembered that legislatures are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” It must be noted that, in declaring the Smith petition moot, Justice Bruselas relied on the above-cited premise which is a misquotation of the original text. Hence, it is evident that there is no legal or factual basis for declaring Smith’s petition as moot.

22. In view of the question of unconstitutionality of CERTAIN PROVISIONS THE

16. Respondent Gonzalez publicly admitted that he gave a written legal opinion to the DILG on the legality of the release of Smith from the Makati City Jail to the custody of US officials even without a court order and that this opinion became the basis of the transfer of Smith. 17. January 1, 2007. Respondent Ermita admitted that he and the President “supported” the transfer of Smith. 18. January 2, 2007. Suzette Nicolas, Zenaida Quezon Avancena, Atty. Wigberto Tanada, Dr. Quintin Doromal, Atty. Emilio capulong, Jr., Atty. Jovito Salonga, and Prof. Harry L. Roque, Jr. filed a Petition for Contempt with Motion to Consolidate with CA against Daniel Smith, Secretary Puno, Presidential Legal Counsel Sergio Apostol, executive Secretary Ermita, Secretary Gonzalez and the Makati City Jail Warden. 19. January2, 2007. President issued a statement asking the Filipino people to understand and support the “difficult” decision that she and her officials made regarding the transfer of respondent Smith to the U.S. Embassy.

20. January 3, 2007. CA released its Decision upholding the interpretation of Judge Pozon in his 12 December 2006 Order (#7) that “judicial proceedings” under the VFA refer only to the proceedings at the court a quo and that custody of respondent Smith must be with the Philippine authorities. However, it dismissed the Petition of respondent Smith for having become moot because of the agreement between the US Ambassador and Secretary Romulo. Part of the decision reads: “All the foregoing discussions notwithstanding, we are confronted with the latest agreement executed between Secretary of Foreign Affairs Alberto G. Romulo and Ambassador Kristie Kenney who are the authorized signatories to bind state parties to

VFA, its international law implications and the question of jurisdiction and custody as applied to the specific case of rape adjudged to have been committed by Smith against Suzette Nicolas, IT IS APPROPRIATE AND NECESSARY THAT ALL THESE MATTERS BE RESOLVED BY THE SUPREME COURT. Standing of Petitioners Petitioners have personal standing to file the instant Petition, considering the direct injury to their fundamental rights caused by the enforcement of the patently unconstitutional VFA and patently unconstitutional and illegal agreements entered into by Secretary Romulo, Secretary Gonzalez and CSP Zuño and the US Government. It has been held that legal standing means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the act being challenged.34 For a party to have personal standing, he need only prove, first, injury to his right or interest35, and second, a "fairly traceable" causal connection between the claimed injury and the challenged conduct.36 As to the first requisite, which requires injury in fact,37 there is no rigid rule as to what may constitute such injury. As for the second requisite, it is complied with when the Petitioners show that there is a substantial likelihood that the relief requested will redress 34

Tankiko v. Cezar, G.R. No. 131277, February 2, 1999.

35

Tankiko v. Cezar, G.R. No. 131277, February 2, 1999; CRUZ, Id.,at 25; Duke Power Co. v. Carolina Environmental Study Group, 438 US 59 (1978), quoted in ROTUNDA, infra n.64, at 1050, and cited in NOWAK AND ROTUNDA, infra n.65 at 76 36 Duke Power Co. v. Carolina Environmental Study Group, 438 US 59 (1978). 37 Association of Data Processing Service Organizations v. Comp., 397 US 150 (1970) in RONALD ROTUNDA, MODERN CONSTITUTIONAL LAW: CASES AND NOTES 1054 (3rd ed., 1989)

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the claimed injury.38 Even if the line of causation between the injury and the conduct is attenuated, even the existence of "an identifiable trifle" is sufficient for meeting this requisite.39

4. 5.

Petitioners have the right to ensure that there is an orderly dispensation of justice before the courts.

CA gravely abused its discretion amount to lack or excess of jurisdiction in recognizing the agreement between US Ambassador and Sec. Romulo as binding on the Philippines and declaring the Smith petition moot. Public respondents gravely absued their discretion when they transferred custody of Smith to US authorities without court authority.

Discussion It was grave abuse of discretion amounting to lack or excess of jurisdiction for Justice Bruselas, Jr. to dismiss private respondent’s petition for certiorari for being moot, on the premise that the agreement executed between DFA Secretary Romulo and Ambassador Kenney validly and legally bound the state parties thereto. The provisions of the VFA on detention and confinement, on which the agreements between Secretary Romulo, Secretary Gonzales, CSP Zuño, on one hand, and Ambassador Kenney, on the other, work to amend the rules on criminal procedure pertaining to the arrest of an accused, detention of a convict and the right to post bail, among others. As a consequence, this “amendment” constitutes a violation of Petitioners’ right to ample remedies for the protection of their rights, and of their other fundamental rights, especially the right to due process and equal protection of the laws. The denial of the instant Petition will redress the impending injury that will be inflicted upon Petitioners, especially Nicole, by allowing the furtherance of a process aimed at affirming their rights and entitlements as citizens. As citizens, Petitioners have standing to file the instant Petition, as it involves the enforcement of a public right and raises questions of transcendental importance to the citizenry. Moreover, it was held in Kilosbayan vs. Guingona,40 and reiterated in Tatad v. Secretary,41 that procedural technicalities may be set aside by the Court in cases of transcendental importance in view of the importance of the issues involved. The petition involves matters of public interest and transcendental importance that would justify a relaxation of procedural requirements for constitutional adjudication. Grounds 1. MDT does not apply to the VFA/ contrary to the clear intent of the VFA, US military forces do not merely visit the Philippines but stay on indefinitely. 2. Respondents committed GADALEJ in entering into patently unconstitutional agreements with US Ambassador and transferring custody over Smith the US Authorities, considering that: a. VFA derogates and infringes on the exclusive power of the SC to promulgate rules of procedure (Art. VIII Sec. 5 par. 5 1987 Constitution) b. VFA violates petitioners’ rights to due process and equal protection. 3. VFA is unconstitutional as it violates Sec. 25 Art. XVIII of the Constitution. It cannot be used to justify the transfer of custody of Smith. 38

NOWAK & ROTUNDA, supra note 11, at 76, Duke Power Co. v. Carolina Environmental Study Group, 438 US 59 (1978). 39 ROTUNDA, supra note 10, at 1055, citing U.S. v. SCRAP, 412 U.S. 669 (1973). 40 232 SCRA 110. 41 G.R. No. 124360, November 5, 1997.

1st GROUND. (in addition to what was stated in the prefatory statement) It seems that the fears expressed by those who opposed the ratification of the VFA are real, after all. In light of the above discussion, it becomes the solemn duty of this Honorable Court to look into the constitutionality of the VFA based on the grounds raised herein. 2nd GROUND (A) In re Garcia,42 :“The aforementioned Treaty (Treaty on Academic Degrees and the Exercise of Professions between the Republic of the Philippines and the Spanish State), could not have been intended to modify the laws and regulations governing admission to the practice of law in the Philippines, for the reason that the Executive Department may not encroach upon the constitutional prerogative of the Supreme Court to promulgate rules for admission to the practice of law in the Philippines, the power to repeal, alter or supplement such rules being reserved only to the Congress of the Philippines.” (Also cited In re Cunanan,43) That the SC has the exclusive power under the 1987 Constitution to promulgate rules and procedure in all courts is beyond dispute. Hence, no other governmental entity may usurp this exclusive power of the Supreme Court without running afoul OF the Constitution. The issue on the custody of an accused and/or convict is a matter of procedure, which under the constitution is exclusively within the realm of judicial power. Jurisdiction in criminal law necessarily includes “custody.” Criminal jurisdiction means jurisdiction means jurisdiction over the place of commission of the offense, jurisdiction over the offense itself, and jurisdiction over the person who commits the offense. Xxx As criminal law concepts, “custody” and “jurisdiction” go hand-in-hand. Where there is “jurisdiction,” there is also “custody;” “custody inheres in “jurisdiction.” However, a close perusal of Section 6, Article 5 of the VFA reveals that it in effect amends the Philippines’ rules on criminal procedure pertaining to arrest, bail, arraignment and plea, among others. Said provision of the VFA, in immediately vesting custody of any United States personnel over whom the Philippines is to exercise jurisdiction, to the United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings, effectively violates and impinges on the power of Philippine courts to acquire custody (read: jurisdiction) over the United States personnel. 42 43

2 SCRA 984 94 Phil. 534

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Under Section 1, Rule 113 of the Rules of Court (ROC), arrest is defined as the taking of a person into custody in order that he may be bound to answer for the commission of the offense. Hence, in cases where Section 6, Article 5 of the VFA is invoked by the United States, Philippine courts are effectively precluded from gaining custody of US personnel in order that the latter may be bound to answer for the commission of an offense. Without acquiring physical jurisdiction over the US personnel, Philippine courts will have no jurisdiction to continue with the proceedings of the case. Needless to say, in the instant controversy, US officials once again use the same provision to thwart the ends of Philippine justice enshrined in the 1987 Charter. Having established that the VFA is in conflict with the Constitution insofar as it infringes on the exclusive power of the Supreme Court to promulgate rules and procedure in all courts, it is inevitable that the VFA must be struck down as being unconstitutional. 2nd GROUND (B) Due process requires that custody over private respondent should be turned over to Philippine courts in order that the he may be bound to answer for the commission of the offense, or that justice may be served against him. This view is supported by the Senate deliberations on the ratification of the VFA Similarly, DOJ Opinion No. 094, s. 199844 says that “the Philippines, in extraordinary cases, may present its position regarding custody to US authorities, which means that the Philippines may deny the US request for custody in some cases and demand to retain custody of the US offender.” The VFA’s denial of such custody to Philippine courts ultimately results in the violation of Petitioners’ right to due process. Under the VFA, Petitioners’ right to the equal protection of the laws is violated when it prescribes a different procedure for the custody of US personnel of a crime properly cognizable by Philippine courts as compared to Filipino citizens similarly situated, who must undergo the procedure prescribed in the Rules of Court. Even granting for the sake of argument that Philippine courts can somehow obtain jurisdiction over concerned US personnel by their voluntary appearance in court for the purpose of arraignment, such does not detract from the fact that the said provision of the VFA creates a privileged class among the criminally on the mere basis that they are “United States military personnel.” Such provision in the VFA creates a privileged class among criminals under the country’s criminal justice system that smacks of unwarranted partiality or undue favoritism, not in favor of Filipinos, but of United States military personnel only. 44

Legal opinion penned by then Secretary of Justice Serafin Cuevas on the constitutionality and criminal jurisdiction provisions of the VFA in response to the request of Senator Rodolfo G. Biazon.

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Whatever maybe the reason for creating such a privileged class, there is no denying the fact that there is no substantial distinction between Filipino and U.S. military personnel charged of a crime in the Philippines. Moreover, there is no reason to extend such privilege to U.S. military personnel only when there are military personnel from other countries aside from the United States that participate in military exercises in the Philippines. Furthermore, the classification is not germane to the purpose of the treaty which governs the conduct of military exercise between the Philippines and the United States of America. Such a privileged treatment of U.S. military personnel does not in anyway promote or facilitate the conduct of military exercises as much as it shields U.S. soldiers from the reach of the Philippines’ criminal justice system. While it is true that the equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification, the groupings must be characterized by substantial distinctions that make real differences, so that one class may be treated and regulated differently from the other.45 In the instant case, there is clearly no substantial distinction between the US personnel and other persons of crimes, as to warrant a different treatment between the two groups. There being no substantial distinction between the two groups as to warrant a different treatment, the VFA must be struck down as unconstitutional for violating petitioners’ right to the equal protection of the laws. 3rd GROUND As correctly held by now Chief Justice Reynato Puno in his dissenting opinion in the above-cited consolidated VFA cases, “This provision lays down three constitutional requisites that must be complied with before foreign military bases, troops, or facilities can be allowed in Philippine territory, namely: (1) their presence should be allowed by a treaty duly concurred in by the Philippine Senate; (2) when Congress so requires, such treaty should be ratified by a majority of the votes cast by the Filipino people in a national referendum held for that purpose; and (3) such treaty should be recognized as a treaty by the other contracting party.”46 Chief Justice Puno further held that the above provision of the Constitution applies to the VFA inasmuch as the “views on the temporary nature of visits of U.S. troops cannot stand for, clearly, the VFA does not provide for a specific and limited period of effectivity. It instead provides an open-ended term in Art. IX, viz: “. . . (t)his agreement shall remain in force until the expiration of 180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement.” No magic of semantics will blur the truth that the VFA could be in force indefinitely.”47 45

Tiu v. Court of Appeals, 301 SCRA 278 (1999).

46

Bayan, et. al. vs. Executive Secretary, et. al., G.R. No. 138572, 10 October 2000 Philippine Constitution Association, Inc., et. al. vs. Executive Secretary, et. al., G.R. No. 138587, 10 October 2000Giungona, et. al. vs. Estrada, et. al., G.R. No. 138680, 10 October 2000Integrated Bar of the Philippines, et. al. vs. Estrada, et. al., G.R. No. 138698, 10 October 2000and Salonga, et. al. vs. Executive Secretary, et. al., G.R. No. 138570, 10 October 2000 47

Ibid.

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In the context of current practices of the ARMED FORCES of the United States in the Philippines, Chief Justice Puno HAS BEEN right all along.

It is undeniable that the VFA grants no authority to public respondents Romulo and Gonzalez to enter into the assailed agreements with Ambassador Kenney.

US military forces are in the Philippines all-year round, “visiting” without any geographical or time limitations. Having established that Section 25, Article XVIII of the Constitution applies to the VFA, it is incumbent upon this Honorable Court to determine whether or not said VFA conforms to the constitutional requirements for its validity.

The assailed agreements, being treaties themselves, were not sent to the Philippine Senate for deliberation and ratification, in accordance with Section 25, Article XVIII and Section 21, Article VII of the Constitution, which provides as follows:

On this issue, Chief Justice Puno had this to say in his dissenting opinion in the abovecited VFA cases, “In ascertaining the VFA’s compliance with the constitutional requirement that it be “recognized as a treaty by the other contracting state,” it is crystal clear from the above exchanges of the Constitutional Commissioners that the yardstick should be U.S. constitutional law. It is therefore apropos to make a more in depth study of the U.S. President’s power to enter into executive agreements under U.S. constitutional law.

4th GROUND Having established that the Romulo-Kenney agreement was not ratified by the Philippine Senate, hence, invalid and ineffective, it follows that the Special 16th Division of the Court of Appeals gravely abused its discretion amounting to lack or excess of jurisdiction in recognizing said agreement as binding on the Philippines and declaring the petition moot on the basis of such agreement.

xxx I respectfully submit that, using these three types of executive agreements as bases for classification, the VFA would not fall under the category of an executive agreement made by the president pursuant to authority conferred in a prior treaty because although the VFA makes reference to the Mutual Defense Treaty in its Preamble, the Mutual Defense Treaty itself does not confer authority upon the U.S. President to enter into executive agreements in implementation of the Treaty. Issues have occasionally arisen about whether an executive agreement was entered into pursuant to a treaty. These issues, however, involved mere treaty interpretation. Xxx In conclusion, after a macro view of the landscape of U.S. foreign relations visa-vis U.S. constitutional law, with special attention on the legal status of sole executive agreements, I respectfully submit that the Court will be standing on unstable ground if it places a sole executive agreement like the VFA on the same constitutional plateau as a treaty. Questions remain and the debate continues on the constitutional basis as well as the legal effects of sole executive agreements under U.S. law. The observation of Louis Henkin, a noted international and U.S. constitutional law scholar, captures the sentiments of the framers of the Philippine Constitution and of the Filipinos in crafting Sec. 25, Art. XVIII of the 1987 Constitution -- “(o)ften the treaty process will be used at the insistence of other parties to an agreement because they believe that a treaty has greater ‘dignity’ than an executive agreement, because its constitutional effectiveness is beyond doubt, because a treaty will ‘commit’ the Senate and the people of the United States and make its subsequent abrogation or violation less likely.”

Hence, the assailed agreements are not binding and enforceable.

Moreover, attention must be given to the fact that the assailed January 3, 2007 decision of public respondent Special 16th Division of the Court of Appeals that “the basis for the appellate court’s January 3 decision declaring “moot” Smith’s appeal to be returned to US custody had been “falsified and altered,” as pointed out by Petitioner Salonga, through an article in the Philippine Daily Inquirer (“Salonga raps CA justice over misquote,” Norman Bordadora, 12 January 2007, p.1). Petitioner Salonga pointed out that “a portion of the quote attributed to the eminent magistrate read: “[The] other branches of the government are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” Further, Petitioner Salonga said that the correct quote is: “Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine and it must be remembered that legislatures are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” IT MUST BE NOTED THAT JUSTICE BRUSELAS PREMISED HIS DECISION TO DECLARE SMITH’S OWN PETITION WITH THE SPECIAL 16TH DIVISION OF THE COURT OF APPEALS MOOT ON SAID MISQUOTED TEXT. LIKEWISE, SAID JUSTICE ADMITTED HIS ERROR IN MISQUOTING JUSTICE HOLMES, CLAIMING HE DID IT IN “PLAIN GOOD FAITH.” (Philippine Daily Inquirer, 14 January 2007, p. 9) Hence, it is evident that there is no legal or factual basis for declaring Smith’s petition as moot. 5th GROUND

“With the cloud of uncertainty still hanging on the exact legal force of sole executive agreements under U.S. constitutional law, this Court must strike a blow for the sovereignty of our country by drawing a bright line between the dignity and status of a treaty in contrast with a sole executive agreement. However we may wish it, the VFA, as a sole executive agreement, cannot climb to the same lofty height that the dignity of a treaty can reach. Consequently, it falls short of the requirement set by Sec. 25, Art. XVIII of the 1987 Constitution that the agreement allowing the presence of foreign military troops on Philippine soil must be “recognized as a treaty by the other contracting state.”

In clear disregard of Honorable Judge Benjamin Pozon’s express directive in his 12 December 2006 Order that Smith shall continue to be temporarily committed at the Makati City Jail “until the appropriate Philippine and United States authorities shall have come to a binding agreement as to the proper facilities where said shall carry out his confinement or detention during his appeal and until further orders from this Court,” public respondents nevertheless transferred the custody over Smith to the US military authorities sans a court order. Always will B

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This, despite public respondents’ knowledge of the pendency of the petition for certiorari pending filed before the Court of Appeals questioning Judge Pozon’s 12 December 2006 Order. This, despite the fact that the DFA submitted several urgent manifestations before the Court of Appeals praying for the transfer of custody over Smith to US authorities by virtue of the Kenney-Romulo Agreement. As a matter of due process and in deference to the judiciary, public respondents should not have transferred custody over Smith to US military authorities without a court order. Clearly, it was grave abuse of discretion amounting to lack or excess jurisdiction for public respondents to have transferred custody over Smith without the proper court authority. Prayer WHEREFORE, premises considered, it is most respectfully prayed that this Honorable Court: DECLARE THE MUTUAL DEFENSE TREATY OF 1951 AS INAPPLICABLE TO THE VFA; DECLARE THE VFA AS UNCONSTITUTIONAL FOR VIOLATING SECTION 25, ARTICLE XVIII OF THE CONSTITUTION; DEROGATING ON THE EXCLUSIVE POWER OF THE SUPREME COURT TO PROMULGATE RULES OF PROCEDURE IN ALL COURTS; AND FOR VIOLATING PETITIONERS’ RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAWS; NULLIFY THE ASSAILED AGREEMENTS ENTERED INTO BY PUBLIC RESPONDENTS ROMULO AND GONZALEZ WITH AMBASSADOR KENNEY FOR BEING UNCONSTITUTIONAL; AND REVERSE AND SET ASIDE THE 3 JANUARY 2007 DECISION OF THE FORMER SPECIAL 16TH DIVISION OF THE COURT OF APPEALS INSOFAR AS IT RECOGNIZED AS VALID AND BINDING THE ASSAILED ROMULO-KENNEY TREATY, WHICH IT ULTIMATELY USED AS BASIS TO DECLARE SMITH’S PETITION MOOT. Other just and equitable relief under the premises are prayed for. Parties Jovito R. Salonga is a former Senator of the Republic of the Philippines and is the founder of Kilosbayan, a people’s organization established in August 1993 in accordance with the 1987 Constitution and its sister organization, Bantay Katarungan, an NGO established on Recto Day, February 8, 2000. He may be served with notices, pleadings and other processes of this Honorable Court through his counsel, Roque & Butuyan Law Offices, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village Makati City.

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Jose de la Rama is a retired Justice of the Court of Appeals. He may be served with notices, pleadings and other processes of this Honorable Court through Roque & Butuyan Law Offices, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village Makati City. Emilio C. Capulong, a law practitioner, is the Executive Director of Bantay Katarungan and one of the founders of Kilosbayan. He may be served with notices, pleadings and other processes of this Honorable Court through Roque & Butuyan Law Offices, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village Makati City. H. Harry L. Roque, Jr. is an international law professor at, and Director of the Institute of International Legal Studies (IILS) of the University of the Philippines College of Law. He may be served with notices, pleadings and other processes of this Honorable Court through his counsel, Roque & Butuyan Law Offices, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village Makati City. Florin Hilbay is a law professor at the University of the Philippines College of Law. He may be served with notices, pleadings and other processes of this Honorable Court through Roque & Butuyan Law Offices, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village Makati City. Benjamin E. Pozon is the Presiding Judge of Makati City RTC Branch 139, who convicted the accused Daniel Smith guilty beyond reasonable doubt of the crime of rape in a decision promulgated on 4 December 2006, which also temporarily committed said accused to the Makati City Jail. He may be served with notices, pleadings and other processes of this Honorable Court at the Makati City RTC, Branch 139. Public respondent JUSTICE APOLINARIO BRUSELAS, JR. OF THE FORMER Special 16th Division of the Court of Appeals rendered the assailed Decision, dated 2 January 2007. It may be served with notices, pleadings and other processes of this Honorable Court at the Court of Appeals, Manila. Private respondent Lance Corporal Daniel Smith has been convicted by the Regional Trial Court of Makati City, Branch 139, of the crime of rape. He may be served with summons, notices, pleadings and other processes of this Honorable Court c/o the DFA 2330 Roxas Boulevard, Pasay City. Respondent Secretary Raul Gonzalez is a Filipino, of legal age and may be served with summons, notices, pleadings and other processes of this Honorable Court at the Department of Justice, Manila. Respondent Presidential Legal Counsel Sergio Apostol is a Filipino, of legal age and may be served with summons, notices, pleadings and other processes of this Honorable Court at Malacañan Palace, Manila.

Wigberto E. Tañada is a former Senator of the Republic of the Philippines who led in the rejection by the Senate on 16 September 1991 of the Treaty of Friendship, Cooperation and Security, thus ending the more than 470 years of foreign military presence in the Philippines. He may be served with notices, pleadings and other processes of this Honorable Court through his counsel, Roque & Butuyan Law Offices, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village Makati City. Always will B