Pil 1-13 Digest.docx

TANADA v. ANGARA October 26, 2012 § Leave a comment

officers, make their free Petition is DISMISSED for lack of merit.

choice.

272 SCRA 18, May 2, 1997 Facts : This is a petition seeking to nullify the Philippine ratification of the World Trade Organization (WTO) Agreement. Petitioners question the concurrence of herein respondents acting in their capacities as Senators via signing the said agreement. The WTO opens access to foreign markets, especially its major trading partners, through the reduction of tariffs on its exports, particularly agricultural and industrial products. Thus, provides new opportunities for the service sector cost and uncertainty associated with exporting and more investment in the country. These are the predicted benefits as reflected in the agreement and as viewed by the signatory Senators, a “free market” espoused by WTO. Petitioners on the other hand viewed the WTO agreement as one that limits, restricts and impair Philippine economic sovereignty and legislative power. That the Filipino First policy of the Constitution was taken for granted as it gives foreign trading intervention. Issue : Whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Senate in giving its concurrence of the said WTO agreement. Held: In its Declaration of Principles and state policies, the Constitution “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. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered automatically part of our own laws. Pacta sunt servanda – international agreements must be performed in good faith. A treaty is not a mere moral obligation but creates a legally binding obligation on the parties. Through WTO the sovereignty of the state cannot in fact and reality be considered as absolute because it is a regulation of commercial relations among nations. Such as when Philippines joined the United Nations (UN) it consented to restrict its sovereignty right under the “concept of sovereignty as autolimitation.” What Senate did was a valid exercise of authority. As to determine whether such exercise is wise, beneficial or viable is outside the realm of judicial inquiry and review. The act of signing the said agreement is not a legislative restriction as WTO allows withdrawal of membership should this be the political desire of a member. Also, it should not be viewed as a limitation of economic sovereignty. WTO remains as the only viable structure for multilateral trading and the veritable forum for the development of international trade law. Its alternative is isolation, stagnation if not economic self-destruction. Thus, the people be allowed, through their duly elected

Tañada, et al., v. Angara, et al., G.R. No. 118295, May 2, 1997

DECISION (En Banc)

PANGANIBAN, J.:

I.

THE FACTS

Petitioners Senators Tañada, et al. questioned the constitutionality of the concurrence by the Philippine Senate of the President’s ratification of the international Agreement establishing the World Trade Organization (WTO). They argued that the WTO Agreement violates the mandate of the 1987 Constitution to “develop a selfreliant and independent national economy effectively controlled by Filipinos . . . (to) give preference to qualified Filipinos (and to) promote the preferential use of Filipino labor, domestic materials and locally produced goods.” Further, they contended that the “national treatment” and “parity provisions” of the WTO Agreement “place nationals and products of member countries on the same footing as Filipinos and local products,” in contravention of the “Filipino First” policy of our Constitution, and render meaningless the phrase “effectively controlled by Filipinos.”

II.

THE ISSUE

Does the 1987 Constitution prohibit our country from participating in worldwide trade liberalization and economic globalization and from integrating into a global economy that is liberalized, deregulated and privatized?

III. THE RULING

[The Court DISMISSED the petition. It sustained the concurrence of the Philippine Senate of the President’s ratification of the Agreement establishing the WTO.]

NO, the 1987 Constitution DOES NOT prohibit our country from participating in worldwide trade liberalization and economic globalization and from integrating into a global economy that is liberalized, deregulated and privatized.

There are enough balancing provisions in the Constitution to allow the Senate to ratify the Philippine concurrence in the WTO Agreement.

[W]hile the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign competition and trade practices that are unfair. In other words, the Constitution did not intend to pursue an isolationist policy. It did not shut out foreign investments, goods and services in the development of the Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods, services and investments into the country, it does not prohibit them either.In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign competition that is unfair.

xxx

xxx

xxx

[T]he constitutional policy of a “self-reliant and independent national economy” does not necessarily rule out the entry of foreign investments, goods and services. It contemplates neither “economic seclusion” nor “mendicancy in the international community.” As explained by Constitutional Commissioner Bernardo Villegas, sponsor of this constitutional policy: Economic self-reliance is a primary objective of a developing country that is keenly aware of overdependence on external assistance for even its most basic needs. It does not mean autarky or economic seclusion; rather, it means avoiding mendicancy in the international community. Independence refers to the freedom from undue foreign control of the national economy, especially in such strategic industries as in the development of natural resources and public utilities.

The WTO reliance on “most favored nation,” “national treatment,” and “trade without discrimination” cannot be struck down as unconstitutional as in fact they are rules of equality and reciprocity that apply to all WTO members. Aside from envisioning a trade policy based on “equality and reciprocity,” the fundamental law encourages industries that are “competitive in both domestic and foreign markets,” thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor of the gradual development of robust industries that can compete with the best in the foreign markets. Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity to compete internationally. And given a free trade environment, Filipino entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to grow and to prosper against the best offered under a policy of laissez faire.

xxx

xxx

xxx

It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an independent national economy effectively controlled by Filipinos; and to protect and/or prefer Filipino labor, products, domestic materials and locally produced goods. But it is equally true that such principles — while serving as judicial and legislative guides — are not in themselves sources of causes of action. Moreover, there are other equally fundamental constitutional principles relied upon by the Senate which mandate the pursuit of a “trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity” and the promotion of industries “which are competitive in both domestic and foreign markets,” thereby justifying its acceptance of said treaty. So too, the alleged impairment of sovereignty in the exercise of legislative and judicial powers is balanced by the adoption of the generally accepted principles of international law as part of the law of the land and the adherence of the Constitution to the policy of cooperation and amity with all nations.

That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the WTO Agreement thereby making it “a part of the law of the land” is a legitimate exercise of its sovereign duty and power. We find no “patent and gross” arbitrariness or despotism “by reason of passion or personal hostility” in such exercise. It is not impossible to surmise that this Court, or at least some of its members, may even agree with petitioners that it is more advantageous to the national interest to strike down Senate Resolution No. 97. But that is not a legal reason to attribute grave abuse of discretion to the Senate and to nullify its decision. To do so would constitute grave abuse in the exercise of our own judicial power and duty. Ineludibly, what the Senate did was a valid exercise of its authority. As to whether such exercise was wise, beneficial or viable is outside the realm of judicial inquiry and review. That is a matter between the elected policy makers and the people. As to whether the nation should join the worldwide march toward trade liberalization and economic globalization is a matter that our people should determine in electing their policy makers. After all, the WTO Agreement allows withdrawal of membership, should this be the political desire of a member.

Mijares V. Ranada (2005) G.R.

No.

139325

April

12,

2005

Lessons Applicable: In all civil actions in which the subject of the litigation is incapable of pecuniary estimation Laws

Applicable:

FACTS: May 9 1991: a complaint was filed by ten Filipino citizens representing a class of 10,000 members who each alleged having suffered human rights abuses such as arbitrary detention, torture and rape in the hands of police or military forces during the Marcos regime with the United States District Court (US District Court), District of Hawaii, against the Estate of former Philippine President Ferdinand E. Marcos (Marcos Estate) US District Court and Affirmed by US CA: awarded them $1,964,005,859.90 Petitioners filed Complaint with Makati RTC for the enforcement of the Final Judgment Marcos Estate filed a motion to dismiss, raising, among others, the non-payment of the correct filing fees paying only P410 Petitioners claimed that an action for the enforcement of a foreign judgment is not capable of pecuniary estimation RTC: estimated the proper amount of filing fees was approximately P472 and dismissing the case without prejudice Petition

for

Certiorari

under

Rule

65

ISSUE: W/N the enforcement of a foreign judgment is incapable of pecuniary estimation HELD: NO. (But belongs to "other actions not involving property") petition is GRANTED. There is an evident distinction between a foreign judgment in an action in rem and one in personam. For an action in rem, the foreign judgment is deemed conclusive upon the title to the thing, while in an action in personam, the foreign judgment is presumptive, and not conclusive, of a right as between the parties and their successors in interest by a subsequent title However, in both cases, the foreign judgment is susceptible to impeachment in our local courts on the grounds of want of jurisdiction or notice to the party, collusion, fraud, or clear mistake of law or fact. Thus, the party aggrieved by the foreign judgment is entitled to defend against the enforcement of such decision in the local forum. It is essential that there should be an opportunity to challenge the foreign judgment, in order for the court in this jurisdiction to properly determine its efficacy even if such judgment has conclusive effect as in the case of in rem actions, if only for the purpose of allowing the losing party an opportunity to challenge the foreign judgment. Consequently, the party attacking a foreign judgment has the burden of overcoming the presumption of its validity. Absent perhaps a statutory grant of jurisdiction to a quasi-judicial body, the claim for enforcement of judgment must be brought before the regular courts. There are distinctions, nuanced but discernible, between the cause of action arising from the enforcement of a

foreign judgment, and that arising from the facts or allegations that occasioned the foreign judgment. They may pertain to the same set of facts, but there is an essential difference in the right-duty correlatives that are sought to be vindicated. Extensive litigation is thus conducted on the facts, and from there the right to and amount of damages are assessed. On the other hand, in an action to enforce a foreign judgment, the matter left for proof is the foreign judgment itself, and not the facts from which it prescinds. As stated in Section 48, Rule 39, the actionable issues are generally restricted to a review of jurisdiction of the foreign court, the service of personal notice, collusion, fraud, or mistake of fact or law. The limitations on review is in consonance with a strong and pervasive policy in all legal systems to limit repetitive litigation on claims and issues. Otherwise known as the policy of preclusion, it seeks to protect party expectations resulting from previous litigation, to safeguard against the harassment of defendants, to insure that the task of courts not be increased by never-ending litigation of the same disputes, and in a larger sense to promote what Lord Coke in the Ferrer's Case of 1599 stated to be the goal of all law: "rest and quietness." If every judgment of a foreign court were reviewable on the merits, the plaintiff would be forced back on his/her original cause of action, rendering immaterial the previously concluded litigation. Marcos Estate cites Singsong v. Isabela Sawmill and Raymundo v. Court of Appeals: In determining whether an action is one the subject matter of which is not capable of pecuniary estimation this Court has adopted the criterion of first ascertaining the nature of the principal action or remedy sought. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the municipal courts or in the courts of first instance would depend on the amount of the claim. However, where the basic issue is something other than the right to recover a sum of money, where the money claim is purely incidental to, or a consequence of, the principal relief sought, this Court has considered such actions as cases where the subject of the litigation may not be estimated in terms of money, and are cognizable exclusively by courts of first instance (now Regional Trial Courts). An examination of Section 19(6), B.P. 129 reveals that the instant complaint for enforcement of a foreign judgment, even if capable of pecuniary estimation, would fall under the jurisdiction of the Regional Trial Courts The complaint to enforce the US District Court judgment is one capable of pecuniary estimation. But at the same time, it is also an action based on judgment against an estate, thus placing it beyond the ambit of Section 7(a) of Rule 141. It is covered by Section 7(b)(3), involving as it does, "other actions not involving property." The petitioners thus paid the correct amount of filing fees, and it was a grave abuse of discretion for respondent judge to have applied instead a clearly inapplicable rule and dismissed the complaint.

[G.R. No. 139325. April 12, 2005] PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B. NARCISO, SR. MARIANI DIMARANAN, SFIC, and JOEL C. LAMANGAN in their behalf and on behalf of the Class Plaintiffs in Class Action No. MDL 840, United States District Court of Hawaii, petitioners, vs. HON. SANTIAGO JAVIER RANADA, in his capacity as Presiding Judge of Branch 137, Regional Trial Court, Makati City, and the ESTATE OF FERDINAND E. MARCOS, through its court appointed legal representatives in Class Action MDL 840, United States District Court of Hawaii, namely: Imelda R. Marcos and Ferdinand Marcos, Jr., respondents. Facts:

Invoking the Alien Tort Act, petitioners Mijares, et al.*, all of whom suffered human rights violations during the Marcos era, obtained a Final Judgment in their favor against the Estate of the late Ferdinand Marcos amounting to roughly 1.9 Billion U.S. Dollars in compensatory and exemplary damages for tortuous violations of international law in the US District Court of Hawaii. This Final Judgment was affirmed by the US Court of Appeals.

As a consequence, Petitioners filed a Complaint with the Regional Trial Court of Makati for the enforcement of the Final Judgment, paying Php 410.00 as docket and filing fees based on Rule 141, Section 7(b) where the value of the subject matter is incapable of pecuniary estimation. The Estate of Marcos however, filed a MTD alleging the non-payment of the correct filing fees. The Regional Trial Court of Makati dismissed the Complaint stating that the subject matter was capable of pecuniary estimation as it involved a judgment rendered by a foreign court ordering the payment of a definite sum of money allowing for the easy determination of the value of the foreign judgment. As such, the proper filing fee was 472 Million Philippine pesos, which Petitioners had not paid.

Issue:

Whether or not the amount paid by the Petitioners is the proper filing fee?

Ruling:

Yes, but on a different basis—amount merely corresponds to the same amount required for “other actions not involving property”. The Regional Trial Court of Makati

erred in concluding that the filing fee should be computed on the basis of the total sum claimed or the stated value of the property in litigation. The Petitioner’s Complaint was lodged against the Estate of Marcos but it is clearly based on a judgment, the Final Judgment of the US District Court. However, the Petitioners erred in stating that the Final Judgment is incapable of pecuniary estimation because it is so capable. On this point, Petitioners state that this might lead to an instance wherein a first level court (MTC, MeTC, etc.) would have jurisdiction to enforce a foreign judgment. Under Batasang Pambansa 129, such courts are not vested with such jurisdiction. Section 33 of Batasang Pambansa 129 refers to instances wherein the cause of action or subject matter pertains to an assertion of rights over property or a sum of money. But here, the subject matter is the foreign judgment itself. Section 16 of Batasang Pambansa 129 reveals that the complaint for enforcement of judgment even if capable of pecuniary estimation would fall under the jurisdiction of the Regional Trial Courts. Thus, the Complaint to enforce the US District Court judgment is one capable of pecuniary estimations but at the same time, it is also an action based on judgment against an estate, thus placing it beyond the ambit of Section 7(a) of Rule 141. What governs the proper computation of the filing fees over Complaints for the enforcement of foreign judgments is Section7(b)(3), involving “other actions not involving property.”

Bayan Muna v. Romulo G.R.

No.

159618

:

February

1,

2011

BAYAN MUNA, as represented by REP. SATUR OCAMPO, ET AL., Petitioners, v. ALBERTO ROMULO, in his capacity as Executive Secretary, et al., Respondents. VELASCO,

JR.,J.:

FACTS: Having a key determinative bearing on this case is the Rome Statute establishing the International Criminal Court (ICC) with the power to exercise its jurisdiction over persons for the most serious crimes of international concern and shall be complementary to the national criminal jurisdictions. The serious crimes adverted to cover those considered grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of aggression. On December 28, 2000, the RP, through Charge d'Affaires Enrique A. Manalo, signed the Rome Statute which, by its terms,is subject to ratification, acceptance or approval by the signatory states. As of the filing of the instant petition, only 92 out of the 139 signatory countries appear to have completed the ratification, approval and concurrence process. The Philippines is not among the 92. On May 9, 2003, then Ambassador Francis J. Ricciardone

sent US Embassy Note No. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of the nonsurrender bilateral agreement (Agreement, hereinafter) between the USA and the RP. ViaExchange of Notes No. BFO-028-03 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy Note adverted to and put in effect the Agreement with the US government.Inesse, theAgreementaims to protect what it refers to and defines aspersons of the RP and US from frivolous and harassment suits that might be brought against them in international tribunals.[8]It is reflective of the increasing pace of the strategic security and defense partnership between the two countries. As of May 2, 2003, similar bilateral agreements have been effected by and between the US and 33 other countries. In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic notes constituted a legally binding agreement under international law; and that, under US law, the said agreement did not require the advice and consent of the US Senate. In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared as without force and effect. For their part, respondents question petitioners standing to maintain a suit and counter that the Agreement, being in the nature of an executive agreement, does not require Senate concurrence for its efficacy. And for reasons detailed in their comment, respondents assert the constitutionality of the Agreement. ISSUES:

1) whether or not the Agreement was contracted validly, which resolves itself into the question of whether or not respondents gravely abused their discretion in concluding it; and

2) whether or not the Agreement,which has not been submitted to the Senate for concurrence, contravenes and undermines the Rome Statute and other treaties. But because respondents expectedly raised it, we shall first tackle the issue of petitioners legal standing. HELD:

This

petition

is

bereft

of

merit.

REMEDIAL LAW: locus standi of petitioner Locus standi is a right of appearance in a court of justice on a given question. Specifically, it is a party's personal and substantial interest in a case where he has sustained or will sustain direct injury as a result of the act being

challenged, and calls for more than just a generalized grievance. The term interest refers to material interest, as distinguished from one that is merely incidental.The rationale for requiring a party who challenges the validity of a law or international agreement to allege such a personal stake in the outcome of the controversy is to assure the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. Locus standi, however, is merely a matter of procedure and it has been recognized that, in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act, but by concerned citizens, taxpayers, or voters who actually sue in the public interest.Consequently, in a catena of cases, this Court has invariably adopted a liberal stance on locus standi. Going by the petition, petitioners representatives pursue the instant suit primarily as concerned citizens raising issues of transcendental importance, both for the Republic and the citizenry as a whole. When suing as a citizen to question the validity of a law or other government action, a petitioner needs to meet certain specific requirements before he can be clothed with standing.Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc.expounded on this requirement, thus: In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have been met have been given standing by this Court. When suing as acitizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way.It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.In fine, when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest. In the case at bar, petitioners representatives have complied with the qualifying conditions or specific requirements exacted under the locus standi rule. As citizens, their interest in the subject matter of the petition is direct and personal. At the very least, their assertions questioning the Agreement are made of a public right,i.e., to ascertain that the Agreement did not go against established national policies, practices, and obligations bearing on the States obligation to the community of nations. POLITICAL LAW: Validity of the RP-US Non-

Surrender

Agreement

Petitioners initial challenge against the Agreement relates to form, its threshold posture being that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement. Petitioners contention perhaps taken unaware of certain well-recognized international doctrines, practices, and jargon is untenable. One of these is the doctrine of incorporation, as expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted principles of international law and international jurisprudence as part of the law of the land and adheres to the policy of peace, cooperation, and amity with all nations.An exchange of notes falls into the category of inter-governmental agreements,which is an internationally accepted form of international agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows: An exchange of notes is a record of a routine agreement, that has many similarities with the private law contract.The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent.The signatories of the letters may be government Ministers, diplomats or departmental heads.The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval. In another perspective, the terms exchange of notes and executive agreements have been used interchangeably, exchange of notes being considered a form of executive agreement that becomes binding through executive action. On the other hand, executive agreements concluded by the President sometimes take the form of exchange of notes and at other times that of more formal documents denominated agreements or protocols. As former US High Commissioner to the Philippines Francis B. Sayre observed in his work,The Constitutionality of Trade Agreement Acts: The point where ordinary correspondence between this and other governments ends and agreements whether denominated executive agreements or exchange of notes or otherwise begin, may sometimes be difficult of ready ascertainment. It is fairly clear from the foregoing disquisition that E/NBFO-028-03be it viewed as the NonSurrender Agreement itself, or as an integral instrument of acceptance thereof or as consent to be bound is a recognized mode of concluding a legally binding international written contract among nations. POLITICAL Required;

LAW:

Senate

Concurrence Not treaties

Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as 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 instrumentsand whatever its particular designation.International agreements may be in the form of (1) treaties that require legislative concurrence after executive ratification; or (2) executive agreements that are similar to treaties, except that they do not require legislative concurrence and are usually less formal and deal with a narrower range of subject matters than treaties. Under international law, there is no difference between treaties and executive agreements in terms of their binding effects on the contracting states concerned,as long as the negotiating functionaries have remained within their powers.Neither,on the domestic sphere, can one be held valid if it violates the Constitution.Authorities are, however, agreed that one is distinct from another for accepted reasons apart from the concurrence-requirement aspect. As has been observed by US constitutional scholars, a treaty has greater dignity than an executive agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the authority of the President, the Senate, and the people;a ratified treaty, unlike an executive agreement, takes precedence over any prior statutory enactment. POLITICAL LAW: Contravention of

The Agreement the Rome

Not in Statute

Contrary to petitioners pretense, theAgreementdoes not contravene or undermine, nor does it differ from, the Rome Statute.Far from going against each other, one complements the other.As a matter of fact, the principle of complementarity underpins the creation of the ICC.As aptly pointed out by respondents and admitted by petitioners, the jurisdiction of the ICC is to be complementary to national criminal jurisdictions of the signatory states. Art. 1 of the Rome Statute pertinently provides: Article The

1 Court

AnInternational Crimininal Court(the Court) is hereby established.It x x xshall have the power to exercise its jurisdictionover persons for the most serious crimes of international concern, as referred to in this Statute, andshall be complementary to national criminal jurisdictions.The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute. Significantly, the sixth preambular paragraph of the Rome Statute declares that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.This provision indicates that primary jurisdiction over the so-called international crimes rests, at the first instance, with the state where the crime was committed; secondarily, with the ICC in appropriate situations contemplated under Art. 17, par. 1of theRomeStatute. Of particular note is the application of the principle ofne bis in idemunder par. 3 of Art. 20, Rome Statute, which

again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC.As far as relevant, the provision states that no person who has been tried by another court for conduct [constituting crimes within its jurisdiction] shall be tried by the [International Criminal] Court with respect to the same conduct. The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of jurisdictional conflict between the Philippines, as party to the nonsurrender agreement, and the ICC; or the idea of theAgreementsubstantially impairing the value of the RPs undertaking under the Rome Statute.Ignoring for a while the fact that the RP signed the Rome Statute ahead of the Agreement, it is abundantly clear to us that the Rome Statute expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes committed within their respective borders, the complementary jurisdiction of the ICC coming into play only when the signatory states are unwilling or unable to prosecute. Given the above consideration, petitioners suggestionthat the RP, by entering into theAgreement, violated its duty required by the imperatives of good faith and breached its commitment under the Vienna Conventionto refrain from performing any act tending to impair the value of a treaty, e.g., the Rome Statutehas to be rejected outright.For nothing in the provisions of the Agreement,in relation to the Rome Statute, tends to diminish the efficacy of the Statute, let alone defeats the purpose of the ICC.Lest it be overlooked, the Rome Statute contains a proviso that enjoins the ICC from seeking the surrender of an erring person, should the process require the requested state to perform an act that would violate some international agreement it has entered into.We refer to Art. 98(2) of the Rome Statute, which reads: Article

98

Cooperation with respect to waiver of immunity and consent to surrender 2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender. Moreover, under international law, there is a considerable difference between a State-Party and a signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only obliged to refrain from acts which would defeat the object and purpose of a treaty;whereas a State-Party, on the other hand, is legally obliged to follow all the provisions of a treaty in good faith. In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and not a StateParty for lack of ratification by the Senate. Thus, it is only

obliged to refrain from acts which would defeat the object and purpose of the Rome Statute. Any argument obliging the Philippines to follow any provision in the treaty would be premature. As a result, petitioners argument that State-Parties with non-surrender agreements are prevented from meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles are only legally binding upon State-Parties, not signatories. Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible with the Rome Statute. Specifically, Art. 90(4) provides that if the requesting State is a State not Party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court In applying the provision, certain undisputed facts should be pointed out:first, the US is neither a State-Party nor a signatory to the Rome Statute; and second, there is an international agreement between the US and the Philippines regarding extradition or surrender of persons, i.e., the Agreement. Clearly, even assuming that the Philippines is a State-Party, the Rome Statute still recognizes the primacy of international agreements entered into between States, even when one of the States is not a State-Party to the Rome Statute. POLITICAL International

LAW:

Sovereignty

Limited by Agreements

Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by bargaining away the jurisdiction of the ICC to prosecute US nationals, government officials/employees or military personnel who commit serious crimes of international concerns in the Philippines.Formulating petitioners argument a bit differently, the RP,by entering into the Agreement, does thereby abdicate its sovereignty, abdication being done by its waiving or abandoning its right to seek recourse through the Rome Statute of the ICC for erring Americans committing international crimes in the country. We are not persuaded.As it were, theAgreementis but a form of affirmance and confirmance of thePhilippines national criminal jurisdiction.National criminal jurisdiction being primary, as explained above, it is always the responsibility and within the prerogative of the RP either to prosecute criminal offenses equally covered by the Rome Statute or to accede to the jurisdiction of the ICC.Thus, thePhilippinesmay decide to try persons of theUS, as the term is understood in theAgreement, under our national criminal justice system.Or it may opt not to exercise its criminal jurisdiction over its erring citizens or overUSpersons committing high crimes in the country and defer to the secondary criminal jurisdiction of the ICC over them.As to persons of the US whom the Philippines refuses to prosecute, the country would, in effect, accorddiscretion to the US to exercise either its national criminal jurisdiction over the person concerned or to give its consent to the referral of the matter to the ICC for trial.In the same breath, theUSmust extend the same

privilege to thePhilippineswith respect to persons of the RP committing high crimes withinUSterritorial jurisdiction. To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate that some of its provisions constitute a virtual abdication of its sovereignty.Almost every time a state enters into an international agreement, it voluntarily sheds off part of its sovereignty.The Constitution, as drafted, did not envision a reclusivePhilippinesisolated from the rest of the world.It even adheres, as earlier stated, to the policy of cooperation and amity with all nations. By their nature, treaties and international agreements actually have a limiting effect on the otherwise encompassing and absolute nature of sovereignty.By their voluntary act, nations may decide to surrender or waive some aspects of their state power or agree to limit the exercise of their otherwise exclusive and absolute jurisdiction.The usual underlying consideration in this partial surrender may be the greater benefits derived from a pact or a reciprocal undertaking of one contracting party to grant the same privileges or immunities to the other.On the rationale that the Philippines has adopted the generally accepted principles of international law aspart of the law of the land, a portion of sovereignty may be waived without violating the Constitution. Such waiver does not amount to an unconstitutional diminution or deprivation of jurisdiction of Philippine courts. POLITICAL LAW: Agreement Not Immoral/Not at Variance with Principles of International Law Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations and/or being at variance with allegedly universally recognized principles of international law.The immoral aspect proceeds from the fact that the Agreement, as petitioner would put it, leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the conscience of humanity; it precludes our country from delivering an American criminal to the ICC. The above argument is a kind of recycling of petitioner's earlier position, which, as already discussed, contends that the RP, by entering into the Agreement,virtually abdicated its sovereignty and in the process undermined its treaty obligations under the Rome Statute, contrary to international law principles. The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly described by the Solicitor General, is an assertion by the Philippines of its desire to try and punish crimes under its national law. The agreement is a recognition of the primacy and competence of the country's judiciary to try offenses under its national criminal laws and dispense justice fairly and judiciously. Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos and Americans committing high crimes of international

concern to escape criminal trial and punishment.This is manifestly incorrect.Persons who may have committed acts penalized under the Rome Statute can be prosecuted and punished in the Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind both countries to the Rome Statute have been met.For perspective, what the Agreement contextually prohibits is the surrender by either party of individuals to international tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the crime under its existing laws.With the view we take of things, there is nothing immoral or violative of international law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to the nonsurrender agreement over an offense considered criminal by both Philippine laws and the Rome Statute. REMEDIAL LAW: No Grave Abuse of Discretion Petitioners final point revolves around the necessity of the Senates concurrence in the Agreement.And without specifically saying so, petitioner would argue that the non-surrender agreement was executed by the President, thru the DFA Secretary, in grave abuse of discretion. The Court need not delve on and belabor the first portion of the above posture of petitioner, the same having been discussed at length earlier on.As to the second portion, We wish to state thatpetitioner virtually faults the President for performing, through respondents, a task conferred the President by the Constitutionthe power to enter into international agreements. By constitutional fiat and by the nature of his or her office, the President, as head of state and government, is the sole organ and authority in the external affairs of the country. The Constitution vests in the President the power to enter into international agreements, subject, in appropriate cases, to the required concurrence votes of the Senate.But as earlier indicated, executive agreements may be validly entered into without such concurrence.As the President wields vast powers and influence, her conduct in the external affairs of the nation is, asBayanwould put it, executive altogether.The right of the President to enter into or ratify binding executive agreements has been confirmed by long practice. In thus agreeing to conclude theAgreementthru E/N BFO028-03, then President Gloria Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the authority and discretion vested in her by the Constitution.At the end of the day, the Presidentby ratifying, thru her deputies, the non-surrender agreementdid nothing more than discharge a constitutional duty and exercise a prerogative that pertains to her office. POLITICAL LAW: Agreement Need Not Be in the Form of a Treaty A view is advanced that the Agreement amends existing municipal laws on the States obligation in relation to

grave crimes against the law of nations,i.e., genocide, crimes against humanity and war crimes.Relying on the above-quoted statutory proviso, the view posits that the Philippine is required to surrender to the proper international tribunal those persons accused of the grave crimes defined under RA 9851, if it does not exercise its primary jurisdiction to prosecute them.

is embodied in a treaty duly ratified with the concurrence of the Senate, the theory being that a Senate- ratified treaty partakes of the nature of a municipal law that can amend or supersede another law, in this instance Sec. 17 of RA 9851 and the status of the Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of the Constitution.

The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national for violations of RA 9851, the Philippines has only two options, to wit: (1) surrender the accused to the proper international tribunal; or (2) surrender the accused to another State if such surrender is pursuant to the applicable extradition laws and treaties.But the Philippines may exercise these options only in cases where another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime; otherwise, the Philippines must prosecute the crime before its own courts pursuant to RA 9851.

We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does not amend or is repugnant to RA 9851.For another, the view does not clearly state what precise principles of law, if any, the Agreement alters.And for a third, it does not demonstrate in the concrete how the Agreement seeks to frustrate the objectives of the principles of law subsumed in the Rome Statute.

Posing the situation of a US national under prosecution by an international tribunal for any crime under RA 9851, the Philippines has the option to surrender such US national to the international tribunal if it decides not to prosecute such US national here.The view asserts that this option of the Philippines under Sec. 17 of RA 9851 is not subject to the consent of theUS, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of the US before the Philippines can exercise such option, requires an amendatory law.In line with this scenario, the view strongly argues that theAgreementprevents thePhilippineswithout the consent of theUSfrom surrendering to any international tribunal US nationals accused of crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851.Consequently, the view is strongly impressed that the Agreement cannot be embodied in a simple executive agreement in the form of an exchange of notes but must be implemented through an extradition law or a treaty with the corresponding formalities. Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where thePhilippinesadopts, as a national policy, the generally accepted principles of international law as part of the law of the land, the Court is further impressed to perceivethe Rome Statute as declaratory of customary international law.In other words, the Statute embodies principles of law which constitute customary international law or custom and for which reason it assumes the status of an enforceable domestic law in the context of the aforecited constitutional provision.As a corollary, it is argued that any derogation from the Rome Statute principles cannot be undertaken via a mere executive agreement, which, as an exclusive act of the executive branch, can only implement, but cannot amend or repeal, an existing law.TheAgreement, so the argument goes, seeks to frustrate the objects of the principles of law or alters customary rules embodied in the Rome Statute. Prescinding from the foregoing premises, the view thus advanced considers the Agreement inefficacious, unless it

Nonetheless, despite the lack of actual domestic legislation, theUSnotably follows the doctrine of incorporation.As early as 1900, the esteemed Justice Gray inThe Paquete Habana case already held international law as part of the law of theUS, to wit: International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for the trustworthy evidence of what the law really is. Thus, a person can be tried in the US for an international crime despite the lack of domestic legislation.The cited ruling in U.S. v. Coolidge,which in turn is based on the holding inU.S. v. Hudson, only applies to common law and not to the law of nations or international law.Indeed, the Court inU.S. v. Hudson only considered the question, whether the Circuit Courts of the United States can exercise a common law jurisdiction in criminal cases.Stated otherwise, there is no common law crime in the US but this is considerably different from international law. TheUSdoubtless recognizes international law as part of the law of the land, necessarily including international crimes, even without any local statute.In fact, years later, US courts would apply international law as a source of criminal liability despite the lack of a local statute criminalizing it as such. So it was that in Ex Parte Quir in the US Supreme Court noted that from the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. It went on further to explain that Congress

had not undertaken the task of codifying the specific offenses covered in the law of war, thus:

members of the international community and thus granting every State jurisdiction over the crime.

It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that branch of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that law condemns. An Act of Congress punishing the crime of piracy as defined by the law of nations is an appropriate exercise of its constitutional authority, Art. I, s 8, cl. 10, to define and punish the offense since it has adopted by reference the sufficiently precise definition of international law. Similarly by the reference in the 15th Article of War to offenders or offenses that by the law of war may be triable by such military commissions. Congress has incorporated by reference, as within the jurisdiction of military commissions, all offenses which are defined as such by the law of war, and which may constitutionally be included within that jurisdiction.

Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the doctrine of incorporation and universal jurisdiction to try these crimes.

This rule finds an even stronger hold in the case of crimes against humanity. It has been held that genocide, war crimes and crimes against humanity have attained the status of customary international law.Some even go so far as to state that these crimes have attained the status of jus cogens. Customary international law or international custom is a source of international law as stated in the Statute of the ICJ. It is defined as the general and consistent practice of states recognized and followed by them from a sense of legal obligation.In order to establish the customary status of a particular norm, two elements must concur: State practice, the objective element; andopinio juris sive necessitates, the subjective element. State practice refers to the continuous repetition of the same or similar kind of acts or norms by States.It is demonstrated upon the existence of the following elements: (1) generality; (2) uniformity and consistency; and (3) duration. While,opinio juris, the psychological element, requires that the state practice or norm be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The term jus cogens means the compelling law.Corollary, ajus cogensnorm holds the highest hierarchical position among all other customary norms and principles.As a result,jus cogensnorms are deemed peremptory and nonderogable.When applied to international crimes, jus cogens crimes have been deemed so fundamental to the existence of a just international legal order that states cannot derogate from them, even by agreement. These jus cogens crimes relate to the principle of universal jurisdiction, i.e., any state may exercise jurisdiction over an individual who commits certain heinous and widely condemned offenses, even when no other recognized basis for jurisdiction exists.The rationale behind this principle is that the crime committed is so egregious that it is considered to be committed against all

WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack of merit.

Bayan Muna vs. Romulo - GR No. 159618 Case Digest Facts: Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the period material to this case. Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary. Rome Statute of the International Criminal Court Having a key determinative bearing on this case is the Rome Statute establishing the International Criminal Court (ICC) with “the power to exercise its jurisdiction over persons for the most serious crimes of international concern x x x and shall be complementary to the national criminal jurisdictions.” The serious crimes adverted to cover those considered grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of aggression. On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome Statute which, by its terms, is “subject to ratification, acceptance or approval” by the signatory states. As of the filing of the instant petition, only 92 out of the 139 signatory countries appear to have completed the ratification, approval and concurrence process. The Philippines is not among the 92. RP-US Non-Surrender Agreement On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of the nonsurrender bilateral agreement (Agreement, hereinafter) between the USA and the RP. Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy Note adverted to and put in effect the Agreement with the US government. In esse, the Agreement aims to protect what it refers to and defines as “persons” of the RP and US from frivolous and harassment suits that might be brought against them in international tribunals.8 It is reflective of the increasing pace of the strategic security and defense partnership between the two countries. As of May 2, 2003, similar bilateral agreements have been effected by and between the US and 33 other countries.

The

Agreement

pertinently provides

as

follows:

1. For purposes of this Agreement, “persons” are current or former Government officials, employees (including contractors), or military personnel or nationals of one Party. 2. Persons of one Party present in the territory of the other shall not, absent the express consent of the first Party, (a) be surrendered or transferred by any means to any international tribunal for any purpose, unless such tribunal has been established by the UN Security Council, or (b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of surrender to or transfer to any international tribunal, unless such tribunal has been established by the UN Security Council. 3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third country, the [US] will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the Republic of the Philippines [GRP]. 4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third country, the [GRP] will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the [US]. 5. This Agreement shall remain in force until one year after the date on which one party notifies the other of its intent to terminate the Agreement. The provisions of this Agreement shall continue to apply with respect to any act occurring, or any allegation arising, before the effective date of termination. In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic notes constituted a legally binding agreement under international law; and that, under US law, the said agreement did not require the advice and consent of the US Senate. In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared as without force and effect. Issue: Whether or not the RP-US NON SURRENDER AGREEMENT is void ab initio for contracting obligations that are either immoral or otherwise at variance with universally recognized principles of international law.

Ruling:

The

petition

is

bereft

of

merit.

Validity of the RP-US Non-Surrender Agreement Petitioner’s initial challenge against the Agreement relates to form, its threshold posture being that E/N BFO028-03 cannot be a valid medium for concluding the Agreement. Petitioners’ contention––perhaps taken unaware of certain well-recognized international doctrines, practices, and jargons––is untenable. One of these is the doctrine of incorporation, as expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted principles of international law and international jurisprudence as part of the law of the land and adheres to the policy of peace, cooperation, and amity with all nations. An exchange of notes falls “into the category of inter-governmental agreements,” which is an internationally accepted form of international agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows: An “exchange of notes” is a record of a routine agreement, that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval. In another perspective, the terms “exchange of notes” and “executive agreements” have been used interchangeably, exchange of notes being considered a form of executive agreement that becomes binding through executive action. On the other hand, executive agreements concluded by the President “sometimes take the form of exchange of notes and at other times that of more formal documents denominated ‘agreements’ or ‘protocols.’” As former US High Commissioner to the Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts: The point where ordinary correspondence between this and other governments ends and agreements – whether denominated executive agreements or exchange of notes or otherwise – begin, may sometimes be difficult of ready ascertainment. x x x It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof or as consent to be bound––is a recognized mode of concluding a legally binding international written contract among nations. Agreement Not with Principles

Immoral/Not at Variance of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations and/or being at variance with allegedly universally recognized principles of international law. The immoral aspect proceeds from the fact that the Agreement, as petitioner would put it, “leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the conscience of humanity; x x x it precludes our country from delivering an American criminal to the [ICC] x x x.”63 The above argument is a kind of recycling of petitioner’s earlier position, which, as already discussed, contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the process undermined its treaty obligations under the Rome Statute, contrary to international law principles. The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly described by the Solicitor General, “is an assertion by the Philippines of its desire to try and punish crimes under its national law. x x x The agreement is a recognition of the primacy and competence of the country’s judiciary to try offenses under its national criminal laws and dispense justice fairly and judiciously.” Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos and Americans committing high crimes of international concern to escape criminal trial and punishment. This is manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute can be prosecuted and punished in the Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind both countries to the Rome Statute have been met. For perspective, what the Agreement contextually prohibits is the surrender by either party of individuals to international tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the crime under its existing laws. With the view we take of things, there is nothing immoral or violative of international law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to the nonsurrender agreement over an offense considered criminal by both Philippine laws and the Rome Statute.

VINUYA VS. SEC. ROMULO MARCH 28, 2013 ~ VBDIAZ ISABELITA C. VINUYA, VICTORIA C. DELA PEÑA, HERMINIHILDA, MANIMBO, LEONOR H. SUMAWANG, CANDELARIA L. SOLIMAN, MARIA L. QUILANTANG, MARIA L. MAGISA, NATALIA M. ALONZO, LOURDES M. NAVARO, FRANCISCA M. ATENCIO, ERLINDA MANALASTAS, TARCILA M. SAMPANG, ESTER M. PALACIO MAXIMA R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA, FLORENCIA M. DELA PEÑA, FRANCIA A. BUCO, PASTORA C. GUEVARRA, VICTORIA M. DELA CRUZ, PETRONILA O. DELA CRUZ, ZENAIDA P. DELA CRUZ, CORAZON M. SUBA, EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ, ROSALINA M.BUCO, PATRICIA A. ERNARDO, LUCILA H. PAYAWAL, MAGDALENA LIWAG, ESTER C. BALINGIT, JOVITA A. DAVID, EMILIA C. MANGILIT, VERGINIA M. BANGIT, GUILLERMA S. BALINGIT, TERECITA PANGILINAN, MAMERTA C. PUNO, CRISENCIANA C. GULAPA, SEFERINA S. TURLA, MAXIMA B. TURLA, LEONICIA G. GUEVARRA, ROSALINA M. CULALA, CATALINA Y. MANIO, MAMERTA T. SAGUM, CARIDAD L. TURLA, et al. In their capacity and as members of the “Malaya Lolas Organization”, – versus – THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE HONORABLE SECRETARY OF FOREIGNAFFAIRS DELIA DOMINGO-ALBERT, THE HONORABLE SECRETARY OF JUSTICE MERCEDITAS N. GUTIERREZ, and THE HONORABLE SOLICITOR GENERAL ALFREDO L. BENIPAYO G.R. No. 162230, April 28, 2010 FACTS: This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the issuance of a writ of preliminary mandatory injunction against the Office of the Executive Secretary, the Secretary of the DFA, the Secretary of the DOJ, and the OSG. Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the SEC, established for the purpose of providing aid to the victims of rape by Japanese military forces in the Philippines during the Second World War. Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the Japanese officials and military officers who ordered the

establishment of the “comfort women” stations in the Philippines. But officials of the Executive Department declined to assist the petitioners, and took the position that the individual claims of the comfort women for compensation had already been fully satisfied by Japan’s compliance with the Peace Treaty between the Philippines and Japan. Hence, this petition where petitioners pray for this court to (a) declare that respondents committed grave abuse of discretion amounting to lack or excess of discretion in refusing to espouse their claims for the crimes against humanity and war crimes committed against them; and (b) compel the respondents to espouse their claims for official apology and other forms of reparations against Japan before the International Court of Justice (ICJ) and other international tribunals. Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956. On January 15, 1997, the Asian Women’s Fund and the Philippine government signed a Memorandum of Understanding for medical and welfare support programs for former comfort women. Over the next five years, these were implemented by the Department of Social Welfare and Development. ISSUE: WON the Executive Department committed grave abuse of discretion in not espousing petitioners’ claims for official apology and other forms of reparations against Japan. RULING: Petition lacks merit. From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to determine whether to espouse petitioners’ claims against Japan. Political questions refer “to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure.” One type of case of political questions involves questions of foreign relations. It is well-established that “the conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative–‘the political’–departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.” are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. But not all cases implicating foreign relations present political questions, and courts certainly possess the authority to construe or invalidate treaties and executive

agreements. However, the question whether the Philippine government should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the political branches. In this case, the Executive Department has already decided that it is to the best interest of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question. The President, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. The Executive Department has determined that taking up petitioners’ cause would be inimical to our country’s foreign policy interests, and could disrupt our relations with Japan, thereby creating serious implications for stability in this region. For the to overturn the Executive Department’s determination would mean an assessment of the foreign policy judgments by a coordinate political branch to which authority to make that judgment has been constitutionally committed. From a municipal law perspective, certiorari will not lie. As a general principle, where such an extraordinary length of time has lapsed between the treaty’s conclusion and our consideration – the Executive must be given ample discretion to assess the foreign policy considerations of espousing a claim against Japan, from the standpoint of both the interests of the petitioners and those of the Republic, and decide on that basis if apologies are sufficient, and whether further steps are appropriate or necessary. In the international sphere, traditionally, the only means available for individuals to bring a claim within the international legal system has been when the individual is able to persuade a government to bring a claim on the individual’s behalf. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects, respect for the rules of international law. Within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal person on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they can do is resort to national law, if means are available, with a view to furthering their cause or obtaining redress. All these questions remain within the province of municipal law and do not affect the position internationally. Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Petitioners have not shown that the crimes committed by the Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute

perpetrators of international crimes is an erga omnes obligation or has attained the status of jus cogens. The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term describing obligations owed by States towards the community of states as a whole. Essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising visà-vis another State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. The term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority WHEREFORE, the Petition is hereby DISMISSED.

G.R.

No.

162230

:

April

28,

2010

ISABELITA C. VINUYA, ET AL., Petitioners, v. THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE HONORABLE SECRETARY OF FOREIGN AFFAIRS DELIA DOMINGO- ALBERT, THE HONORABLE SECRETARY OF JUSTICE MERCEDITAS N. GUTIERREZ, and THE HONORABLE SOLICITOR GENERAL ALFREDO L. BENIPAYO, Respondents. DELCASTILLO,

J.:

FACTS: Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization established for the purpose of providing aid to the victims of rape by Japanese military forces in the Philippines during the Second World War.Petitioners narrate that during the Second World War, the Japanese army attacked villages and systematically raped the women as part of the destruction of the village. Their communities were bombed, houses were looted and burned, and civilians were publicly tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the women and held them in houses or cells, where they were repeatedly raped, beaten, and abused by Japanese soldiers. As a result of the actions of their Japanese tormentors, the petitioners have spent their lives in misery, having endured physical injuries, pain and disability, and mental and emotional suffering. Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the Japanese officials and military officers who ordered the establishment of the comfort women stations in the Philippines.However, officials of the Executive Department declined to assist the petitioners, and took the position that the individual claims of the comfort women for compensation had already been fully satisfied by Japans compliance with the Peace Treaty between the Philippines and Japan. ISSUE: Whether or not respondents committed grave abuse of discretion amounting to lack or excess of discretion in refusing to espouse their claims for the crimes against humanity and war crimes committed against them. HELD: There is no grave abuse of discretion. POLITICAL

LAW:

political

questions

Political questions refer "to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure." Certain types of cases

often have been found to present political questions.One such category involves questions of foreign relations.It is well-established that "the conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative--'the political'--departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision." Not all cases implicating foreign relations present political questions, and courts certainly possess the authority to construe or invalidate treaties and executive agreements. However, the question whether the Philippine government should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the political branches.In this case, the Executive Department has already decided that it is to the best interest of the country to waive all claims of its nationals for reparations againstJapanin the Treaty of Peace of 1951.The wisdom of such decision is not for the courts to question.Neither could petitioners herein assail the said determination by the Executive Departmentviathe instant petition for certiorari. The Executive Department has determined that taking up petitioners cause would be inimical to our country's foreign policy interests, and could disrupt our relations withJapan, thereby creating serious implications for stability in this region.For the Court to overturn the Executive Departments determination would mean an assessment of the foreign policy judgments by a coordinate political branch to which authority to make that judgment has been constitutionally committed. The petition is DISMISSED.

Pharmaceutical and Health Care Association of the Philippines v Duque III Facts: Petition for certiorari seeking to nullify the Revised Implementing Rules and Regulations (RIRR) of E.O. 51 (Milk Code). Petitioner claims that the RIRR is not valid as it contains provisions that are not constitutional and go beyond what it is supposed to implement. Milk Code was issued by President Cory Aquino under the Freedom Constitution on Oct.1986. One of the preambular clauses of the Milk Code states that the law seeks to give effect to Art 11 of the Int’l Code of Marketing and Breastmilk Substitutes(ICBMS), a code adopted by the World Health Assembly(WHA). From 1982-2006, The WHA also adopted severe resolutions to the effect that breastfeeding should be supported, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes. In 2006, the DOH issued the assailed RIRR.

Issue: Sub-Issue: W/N the pertinent int’l agreements entered into by the Phil are part of the law of the land and may be implemented by DOH through the RIRR. If yes, W/N the RIRR is in accord with int’l agreements

MAIN: W/N the DOH acted w/o or in excess of their jurisdiction, or with grave abuse of discretion amounting to lack of excess of jurisdiction and in violation of the Constitution by promulgating the RIRR.

Held: Sub-issue: Yes for ICBMS. Under 1987 Consti, int’l law can become domestic law by transformation (thru constitutional mechanism such as local legislation) or incorporation (mere constitutional declaration i.e treaties) The ICBMS and WHA resolutions were not treaties as they have not been concurred by 2/3 of all members of the Senate as required under Sec, 21, Art 8. However, the ICBMS had been transformed into domestic law through a local legislation such as the Milk Code. The Milk Code is almost a verbatim reproduction of ICBMS.

No for WHA Resolutions. The Court ruled that DOH failed to establish that the provisions pertinent WHA resolutions are customary int’l law that may be deemed part of the law of the land. For an int’l rule to be considered as customary law, it must be established that such rule is being followed by states because they consider it as obligatory to comply with such rules (opinion juris). The WHO resolutions, although signed by

most of the member states, were enforced or practiced by at least a majority of member states. Unlike the ICBMS whereby legislature enacted most of the provisions into the law via the Milk Code, the WHA Resolutions (specifically providing for exclusive breastfeeding from 0-6 months, breastfeeding up to 24 Months and absolutely prohibiting ads for breastmilk substitutes) have not been adopted as domestic law nor are they followed in our country as well. The Filipinos have the option of how to take care of their babies as they see fit. WHA Resolutions may be classified as SOFT LAW – non-binding norms, principles and practices that influence state behavior. Soft law is not part of int’l law. Main issue: Yes. Some parts of the RIRR were not in consonance with the Milk Code such as Sec. 4(f) ->advertising, promotions of formula are prohibited, Sec 11 -> prohibitions for advertising breastmilk substitutes intended for infants and young children uo to 24 months And Sec 46 -> sanctions for advertising . These provisions are declared null and void. The DOH and respondents are prohibited from implementing said provisions.

PHARMACEUTICAL AND HEALTH CARE vs DUQUE III PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINESvs. HEALTH SECRETARY FRANCISCO T. DUQUE III FACTS: On October 28, 1986, Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino by virtue of the legislative powers granted to the president under the Freedom Constitution. The Milk Code states that the law seeks to give effect to Article 112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be supported, promoted and protected, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes. the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said instrument provides that State Parties should take appropriate measures to diminish infant and child mortality, and ensure that all segments of society, specially parents and children, are informed of the advantages of breastfeeding. the DOH issued RIRR which was to take effect on July 7, 2006. a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify Revised Implementing Rules and Regulations of The “Milk Code,” assailing that the RIRR was going beyond the provisions of the Milk Code, thereby amending and expanding the coverage of said law. ISSUE: Whether or not respondents officers of the DOH acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and in violation of the provisions of the Constitution in promulgating the RIRR RULING: The Supreme Court PARTIALLY GRANTED the petition. Sections 4(f), 11 and 46 of Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra vires. The Department of Health and respondents are PROHIBITED from implementing said provisions. The international instruments pointed out by the respondents, UNRC, ICESR, CEDAW, are deemed part of the law of the land and therefore the DOH may implement them through the RIRR. Customary international law is deemed incorporated into our domestic system. Custom or customary international law means “a general and consistent practice of states followed by them from a sense of legal obligation (opinio juris). Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. “Generally accepted principles of international law” refers to norms of general or customary international law which are binding on all

states. The Milk Code is a verbatim reproduction of the (ICMBS), but it did not prohibit advertising or other forms of promotion to the general public of products. Instead, the Milk Code expressly provides that advertising, promotion, or other marketing materials may be allowed if such materials are duly authorized and approved by the Inter-Agency Committee (IAC). In this regard, the WHA Resolutions adopting the ICMBS are merely recommendatory and legally non-binding. This may constitute “soft law” or non-binding norms, principles and practices that influence state behavior. Respondents have not presented any evidence to prove that the WHA Resolutions, although signed by most of the member states, were in fact enforced or practiced by at least a majority of the member states and obligatory in nature. The provisions of the WHA Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a law enacted by the legislature. On the other hand, the petitioners also failed to explain and prove by competent evidence just exactly how such protective regulation would result in the restraint of trade. Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and distributors, the Court sees no harm in the RIRR. Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the objective, purpose and intent of the Milk Code.

for that purpose if so required by congress, and c) recognized as such by the other contracting state.

Bayan vs Zamora

It is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty.

G. R. No. 138570 Bayan

October vs.

10,

2000

Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires for such treaty to be valid and effective is the concurrence in by at least two-thirds of all the members of the senate. ISSUE: Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of the Constitution? HELD: Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops or facilities should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the senate. The Constitution, makes no distinction between “transient” and “permanent.” We find nothing in section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines.

Zamora

Facts: The United States panel met with the Philippine panel to discussed, among others, the possible elements of the Visiting Forces Agreement (VFA). This resulted to a series of conferences and negotiations which culminated on January 12 and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which was respectively signed by Secretary Siazon and United States Ambassador Thomas Hubbard.

Bayan v. Zamora, G.R. No. 138570, October 10, 2000

DECISION (En Banc)

BUENA, J.: Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27, 1999, the senate approved it by (2/3) votes. Cause

of

I.

THE FACTS

Action:

Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987 constitution is applicable and not Section 21, Article VII. Following the argument of the petitioner, under they provision cited, the “foreign military bases, troops, or facilities” may be allowed in the Philippines unless the following conditions are sufficiently met: a) it must be a treaty, b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a national referendum held

The Republic of the Philippines and the United States of America entered into an agreement called the Visiting Forces Agreement (VFA). The agreement was treated as a treaty by the Philippine government and was ratified by then-President Joseph Estrada with the concurrence of 2/3 of the total membership of the Philippine Senate. The VFA defines the treatment of U.S. troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits, and further defines the rights of the U.S. and the Philippine governments in the matter of criminal jurisdiction, movement of vessel and

aircraft, importation and exportation of equipment, materials and supplies.

Petitioners argued, inter alia, that the VFA violates §25, Article XVIII of the 1987 Constitution, which provides that “foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate . . . and recognized as a treaty by the other contracting State.”

II.

THE ISSUE

Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use.

Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty.

Was the VFA unconstitutional? xxx

xxx

xxx

III. THE RULING

[The Court DISMISSED the consolidated petitions, held that the petitioners did not commit grave abuse of discretion, and sustained the constitutionality of the VFA.]

NO, the VFA is not unconstitutional.

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution . . . the provision in [in §25, Article XVIII] requiring ratification by a majority of the votes cast in a national referendum being unnecessary since Congress has not required it.

xxx

xxx

xxx

This Court is of the firm view that the phrase “recognized as a treaty” means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.

The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the United States government has fully committed to living up to the terms of the VFA. For as long as the United States of America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked compliance with the mandate of the Constitution.

Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr.G. R. No. 167919 February 14, 2007 G. R. No. 167919 February 14, 2007 Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr. FACTS: On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public Works and Highways (DPWH) issued a Resolution No. PJHL-A-04-012. It was approved by DPWH Acting Secretary Florante Soriquez. This resolution recommended the award to China Road & Bridge Corporation of the contract for the implementation of civil works for Contract Package No. I (CP I), which consists of the improvement/rehabilitation of the San Andres-Virac-Jct. Bago-Viga road, with the lengt of 79.818 kilometers, in the island province of Catanduanes. This Loan Agreement No. PH-204 was executed by and between the JBIC and the Philippine Government pursuant to the exchange of Notes executed by and between Mr. Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and then Foreign Affairs Secretary Siazon, in behalf of their respective governments. ISSUE: Whether or not the Loan Agreement No. PH-204 between the JBIC and the Philippine Government is a kind of a treaty. HELD:

The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes dated December 27, 1999 between the Japanese Government and the Philippine Government is an executive agreement. An “exchange of notes” is a record of a routine agreement that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. …treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes all are refer to international instruments binding at international law. Although these instruments differ from each other by title, they all have common features and international law has applied basically the same rules to all these instruments. These rules are the result of long practice among the States, which have accepted them as binding norms in their mutual relations. Therefore, they are regarded as international customary law. That case was dismissed by the SCORP last Feb. 14 2007. What the petitioners wanted was that Foreign funded projects also undergo the procurement process. The dismissal of the case somehow gave justification for the delay of the implementing rules for foreign funded projects (IRR-B) of the procurement law If we recall the decision of the Abaya vs Ebdane was used by the DOJ when the DOTC Secretary was asking for an opinion from the former, during the ZTE controversy.as ruled by the Supreme Court in Abaya v. Ebdane, an exchange of notes is considered a form of an executive agreement, which becomes binding through executive action without need of a vote by the Senate and that (like treaties and conventions, it is an international instrument binding at international law, The second issue involves an examination of the coverage of Republic Act No. 9184, otherwise known as the “Government Procurement Reform Act”. Section 4 of the said Act provides that it shall apply to: … the Procurement of infrastructure Projects, Goods and Consulting Services, regardless of source of funds, whether local or foreign, by all branches and instrumentalities of government, its departments, offices and agencies, including government-owned and/or controlled corporations and local government units, subject to the provisions of Commonwealth Act No. 138. 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.

Abaya vs. Ebdane Jr. ABAYA vs. EBDANE, JR. 515 SCRA 720 GR No. 167919, February 14, 2007 "A taxpayer need not be a party to the contract to challenge its validity." FACTS: The petitioners, Plaridel M. Abaya who claims that he filed the instant petition as a taxpayer, former lawmaker, and a Filipino citizen, and Plaridel C. Garcia likewise claiming that he filed the suit as a taxpayer,

former military officer, and a Filipino citizen, mainly seek to nullify a DPWH resolution which recommended the award to private respondent China Road & Bridge Corporation of the contract for the implementation of the civil works known as Contract Package No. I (CP I). They also seek to annul the contract of agreement subsequently entered into by and between the DPWH and private respondent China Road & Bridge Corporation pursuant to the said resolution. ISSUE: Has petitioners the legal standing to file the instant case against the government? HELD: Petitioners, as taxpayers, possess locus standi to file the present suit. Briefly stated, locus standi is a right of appearance in a court of justice on a given question. More particularly, it is a party’s personal and substantial interest in a case such that he has sustained or will sustain direct injury as a result of the governmental act being challenged. Locus standi, however, is merely a matter of procedure and it has been recognized that in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest. Consequently, the Court, in a catena of cases, has invariably adopted a liberal stance on locus standi, including those cases involving taxpayers. The prevailing doctrine in taxpayer’s suits is to allow taxpayers to question contracts entered into by the national government or government- owned or controlled corporations allegedly in contravention of law. A taxpayer is allowed to sue where there is a claim that public funds are illegally disbursed, or that public money is being deflected to any improper purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law. Significantly, a taxpayer need not be a party to the contract to challenge its validity. ( CNMG vs Santamaria) MAGALLONA v. ERMITA, G.R. 187167, August 16, 2011 Facts: In 1961, Congress passed R.A. 3046 demarcating the maritime baselines of the Philippines as an Archepelagic State pursuant to UNCLOS I of 9158, codifying the sovereignty of State parties over their territorial sea. Then in 1968, it was amended by R.A. 5446, correcting some errors in R.A. 3046 reserving the drawing of baselines around Sabah. In 2009, it was again amended by R.A. 9522, to be compliant with the UNCLOS III of 1984. The requirements complied with are: to shorten one baseline, to optimize the location of some basepoints and classify KIG and Scarborough Shoal as ‘regime of islands’. Petitioner now assails the constitutionality of the law for three main reasons: 1. it reduces the Philippine maritime territory under Article 1;

2. it opens the country’s waters to innocent and sea lanes passages hence undermining our sovereignty and security; and 3. treating KIG and Scarborough as ‘regime of islands’ would weaken our claim over those territories. Issue: Whether R.A. 9522 is constitutional? Ruling: 1. UNCLOS III has nothing to do with acquisition or loss of territory. it is just a codified norm that regulates conduct of States. On the other hand, RA 9522 is a baseline law to mark out basepoints along coasts, serving as geographic starting points to measure. it merely notices the international community of the scope of our maritime space. 2. If passages is the issue, domestically, the legislature can enact legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passages. but in the absence of such, international law norms operate. the fact that for archipelagic states, their waters are subject to both passages does not place them in lesser footing vis a vis continental coastal states. Moreover, RIOP is a customary international law, no modern state can invoke its sovereignty to forbid such passage. 3. On the KIG issue, RA 9522 merely followed the basepoints mapped by RA 3046 and in fact, it increased the Phils.’ total maritime space. Moreover, the itself commits the Phils.’ continues claim of sovereignty and jurisdiction over KIG. If not, it would be a breach to 2 provisions of the UNCLOS III: Art. 47 (3): ‘drawing of basepoints shall not depart to any appreciable extent from the general configuration of the archipelago’. Art 47 (2): the length of baselines shall not exceed 100 mm. KIG and SS are far from our baselines, if we draw to include them, we’ll breach the rules: that it should follow the natural configuration of the archipelago. Prof. Magallona, Hontiveros, Prof. Roque and 38 UP College of Law Students -vsErmita Exec.Sec., Romulo Sec DFA, Andaya Sec DBM, Ventura Administrator National Mapping & Resource Information Authority and Davide Jr.

-writ of certiorari and prohibition assailing the constitutionality of RA 9522 Facts: RA 3046 was passed in 1961 which provides among others the demarcation lines of the baselines of the

Philippines as an archipelago. This is in consonance with UNCLOS I. RA 5446 amended RA 3046 in terms of typographical errors and included Section 2 in which the government reserved the drawing of baselines in Sabah in North Borneo. RA 9522 took effect on March 2009 amending RA 5446. The amendments, which are in compliance with UNCLOS III in which the Philippines is one of the signatory, shortening one baseline while optimizing the other and classifying Kalayaan Group of Island and Scarborough Shoal as Regimes of Island. Petitioners in their capacity as taxpayer, citizen and legislator assailed the constitutionality of RA 9522:- it reduces the territory of the Philippines in violation to the Constitution and it opens the country to maritime passage of vessels and aircrafts of other states to the detriment of the economy, sovereignty, national security and of the Constitution as well. They added that the classification of Regime of Islands would be prejudicial to the lives of the fishermen. Issues: 1. WON the petitioners have locus standi to bring the suit; and 2. WON RA 9522 is unconstitutional Ruling: Petition

is

dismissed.

1st Issue: The SC ruled the suit is not a taxpayer or legislator, but as a citizen suit, since it is the citizens who will be directly injured and benefitted in affording relief over the remedy sought. 2nd Issue: The SC upheld the constitutionality of RA 9522. First, RA 9522 did not delineate the territory the Philippines but is merely a statutory tool to demarcate the country’s maritime zone and continental shelf under UNCLOS III. SC emphasized that UNCLOS III is not a mode of acquiring or losing a territory as provided under the laws of nations. UNCLOS III is a multi-lateral treaty that is a result of a long-time negotiation to establish a uniform sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental shelves. In order to measure said distances, it is a must for the state parties to have their archipelagic doctrines measured in accordance to the treaty—the role played by RA 9522. The contention of the petitioner that RA 9522 resulted to the loss of 15,000 square nautical miles is devoid of merit. The truth is, RA 9522, by optimizing the location of base points, increased the Philippines total maritime space of 145,216 square

nautical

miles.

Second, the classification of KGI and Scarborough Shoal as Regime of Islands is consistent with the Philippines’ sovereignty. Had RA 9522 enclosed the islands as part of the archipelago, the country will be violating UNCLOS III since it categorically stated that the length of the baseline shall not exceed 125 nautical miles. So what the legislators did is to carefully analyze the situation: the country, for decades, had been claiming sovereignty over KGI and Scarborough Shoal on one hand and on the other hand they had to consider that these are located at nonappreciable distance from the nearest shoreline of the Philippine archipelago. So, the classification is in accordance with the Philippines sovereignty and State’s responsible observance of its pacta sunt servanda obligation under UNCLOS III.

open to seafaring powers to freely enter and exploit the resources in the waters and submarine areas around our archipelago and it will weaken the country’s case in any international dispute over Philippine maritime space. The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas, as embodied in RA 9522, allows an internationallyrecognized delimitation of the breadth of the Philippines’ maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines in safeguarding its maritime zones, consistent with the Constitution and our national interest.

AKBAYAN VS. AQUINO Third, the new base line introduced by RA 9522 is without prejudice with delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty. And lastly, the UNCLOS III and RA 9522 are not incompatible with the Constitution’s delineation of internal waters. Petitioners contend that RA 9522 transformed the internal waters of the Philippines to archipelagic waters hence subjecting these waters to the right of innocent and sea lanes passages, exposing the Philippine internal waters to nuclear and maritime pollution hazards. The Court emphasized that the Philippines exercises sovereignty over the body of water lying landward of the baselines, including the air space over it and the submarine areas underneath, regardless whether internal or archipelagic waters. However, sovereignty will not bar the Philippines to comply with its obligation in maintaining freedom of navigation and the generally accepted principles of international law. It can be either passed by legislator as a municipal law or in the absence thereof, it is deemed incorporated in the Philippines law since the right of innocent passage is a customary international law, thus automatically incorporated thereto. This does not mean that the states are placed in a lesser footing; it just signifies concession of archipelagic states in exchange for their right to claim all waters inside the baseline. In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone, reserving solely to the Philippines the exploitation of all living and non-living resources within such zone. Such a maritime delineation binds the international community since the delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international community will of course reject it and will refuse to be bound by it. The Court expressed that it is within the Congress who has the prerogative to determine the passing of a law and not the Court. Moreover, such enactment was necessary in order to comply with the UNCLOS III; otherwise, it shall backfire on the Philippines for its territory shall be

Facts: The signing of the Japan-Philippines Economic Partnership Agreement (JPEPA) at the sidelines of the Asia-Europe Summit in Helsinki in September 2006 was hailed by both Japanese Prime Minister Junichiro Koizumi and Philippine President Gloria Macapagal Arroyo as a “milestone in the continuing cooperation and collaboration, setting a new chapter of strategic partnership for mutual opportunity and growth (for both countries).” JPEPA which has been referred to as a ‘mega treaty’ is a comprehensive plan for opening up of markets in goods and services as well as removing barriers and restrictions on investments. It is a deal that encompasses even our commitments to the WTO. The complexity of JPEPA became all the more evident at the Senate hearing conducted by the Committee on Trade and Commerce last November 2006. The committee, chaired by Senator Mar Roxas, heard differing views and perspectives on JPEPA. On one hand the committee heard Government’s rosy projections on the economic benefits of JPEPA and on the other hand the views of environmental and trade activists who raised there very serious concerns about the country being turned into Japan’s toxic waste basket. The discussion in the Senate showed that JPEPA is not just an issue concerning trade and economic relations with Japan but one that touches on broader national development concerns. Issues: 1. Do the therein petitioners have standing to bring this action for mandamus in their capacity as citizens of the Republic, as taxpayers, and as members of the Congress 2. Can this Honorable Court exercise primary jurisdiction of this case and take cognizance of the instant petition. 3. Are the documents and information being requested in relation to the JPEPA exempted from the general rules on transparency and full public disclosure such that the Philippine government is justified in denying access thereto. Rulings:

The Supreme Court en banc promulgated last July 16, 2008 its ruling on the case of “Akbayan Citizens Action Party et al vs. Thomas G. Aquino et al” (G.R. No. 170516). The Highest Tribunal dismissed the Petition for mandamus and prohibition, which sought to compel respondents Department of Trade Industry (DTI) Undersecretary Thomas Aquino et al to furnish petitioners the full text of the Japan-Philippines Economic Partnership Agreement (JPEPA) and the lists of the Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes thereto.

In its Decision, the Court noted that the full text of the JPEPA has been made accessible to the public since 11 September 2006, and thus the demand to be furnished with copy of the said document has become moot and academic. Notwithstanding this, however, the Court lengthily discussed the substatives issues, insofar as they impinge on petitioners' demand for access to the Philippine and Japanese offers in the course of the negotiations. The Court held: “Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually confidential – since there should be 'ample opportunity for discussion before [a treaty] is approved' – the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japenese representatives submitted their offers with the understanding that 'historic confidentiality' would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations.” It also reasoned out that opening for public scrutiny the Philippine offers in treaty negotiations would discourage future Philippine representatives from frankly expressing their views during negotiations. The Highest Tribunal recognized that treaty negotiations normally involve a process of quid pro quo, where negotiators would willingly grant concessions in an area of lesser importance in order to obtain more favorable terms in an area of greater national interest. In the same Decision, the Court took time to address the dissent of Chief Justice Reynato S. Puno. It said: “We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our people's right to information against any abuse of executive privilege. It is a zeal that We fully share. The Court, however, in its endeavour to guard against the abuse of executive privilege, should be careful not to veer towards the opposite extreme, to the point that it would strike down as invalid even a legitimate exercise thereof.” Rulings:

Akbayan

vs

Aquino

–

July

16

2008

FACTS: Petition for mandamus and prohibition was filed by the petitioners, as congresspersons, citizens and taxpayers, requesting respondents to submit to them the full text of the Japan-Philippines Economic Partnership Agreement (JPEPA). Petitioner emphasize that the refusal of the government to disclose the said agreement violates there right to information on matters of public concern and of public interest. That the non-disclosure of the same documents undermines their right to effective and reasonable participation in all levels of social, political and economic decision making. Respondent herein invoke executive privilege. They relied on the ground that the matter sought involves a diplomatic negotiation then in progress, thus constituting an exception to the right to information and the policy of full disclosure of matters that are of public concern like the JPEPA. That diplomatic negotiation are covered by the doctrine of executive privilege. Issue: Whether or not the petition has been entirely rendered moot and academic because of the subsequent event that occurred? Whether the information sought by the petitioners are of public concern and are still covered by the doctrine of executive privilege? Held: On the first issue, the Supreme Court ruled that t]he principal relief petitioners are praying for is the disclosure of the contents of the JPEPA prior to its finalization between the two States parties,” public disclosure of the text of the JPEPA after its signing by the President, during the pendency of the present petition, has been largely rendered moot and academic. The text of the JPEPA having then been made accessible to the public, the petition has become moot and academic to the extent that it seeks the disclosure of the “full text” thereof. The petition is not entirely moot, however, because petitioners seek to obtain, not merely the text of the JPEPA, but also the Philippine and Japanese offers in the course of the negotiations. Moving on to the second issue, The Supreme Court Ruled that Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged in all instances. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status.

The court adopted also the doctrine in PMPF v. Manglapus, Wherein petitioners were seeking information from the President’s representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement. The Court denied the petition, stressing that “secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information.

Arigo Case Digest → Full Text ←

GR

vs 206510

Sept

14,

Swift 2014

Facts: In 2013, the USS Guardian of the US Navy ran aground on an area near the Tubbataha Reefs, a marine habitat of which entry and certain human activities are prevented and afforded protection by a Philippine law. The grounding incident prompted the petitioners to seek for issuance of Writ of Kalikasan with TEPO from the SC. Among those impleaded are US officials in their capacity as commanding officers of the US Navy. As petitioners argued, they were impleaded because there was a waiver of immunity from suit between US and PH pursuant to the VFA terms. Petitioners claimed that the grounding, salvaging and post-salvaging operations of the USS Guardian violated their constitutional rights to a balanced and healthful ecology since these events caused and continue to cause environmental damage of such magnitude as to affect other provinces surrounding the Tubbataha Reefs. Aside from damages, they sought a directive from the SC for the institution of civil, administrative and criminal suits for acts committed in violation of environmental laws and regulations in connection with the grounding incident. They also prayed for the annulment of some VFA provisions for being unconstitutional.

States as sovereign equals “par in parem non habet non imperium” – bars the exercise of jurisdiction by the court over their persons. Issue 2: W/N the US government may still be held liable for damages caused to the Tubbataha Reefs Yes. The US government is liable for damages in relation to the grounding incident under the customary laws of navigation. The conduct of the US in this case, when its warship entered a restricted area in violation of RA 10067 and caused damage to the TRNP reef system, brings the matter within the ambit of Article 31 of the UNCLOS. While historically, warships enjoy sovereign immunity from suit as extensions of their flag State, Art. 31 of the UNCLOS creates an exception to this rule in cases where they fail to comply with the rules and regulations of the coastal State regarding passage through the latter’s internal waters and the territorial sea. Although the US to date has not ratified the UNCLOS, as a matter of long-standing policy, the US considers itself bound by customary international rules on the “traditional uses of the oceans”, which is codified in UNCLOS. As to the non-ratification by the US, it must be noted that the US’ refusal to join the UNCLOS was centered on its disagreement with UNCLOS’ regime of deep seabed mining (Part XI) which considers the oceans and deep seabed commonly owned by mankind. Such has nothing to do with the acceptance by the US of customary international rules on navigation. (Justice Carpio) Hence, non-membership in the UNCLOS does not mean that the US will disregard the rights of the Philippines as a Coastal State over its internal waters and territorial sea. It is thus expected of the US to bear “international responsibility” under Art. 31 in connection with the USS Guardian grounding which adversely affected the Tubbataha reefs. ## Other Issues

Issue 1: W/N the US Government has given its consent to be sued through the VFA

Claim for Damages Caused by Violation Environmental Laws Must be Filed Separately

No. The general rule on state’s immunity from suit applies in this case.

The invocation of US federal tort laws and even common law is improper considering that it is the VFA which governs disputes involving US military ships and crew navigating Philippine waters in pursuance of the objectives of the agreement.

First, any waiver of State immunity under the VFA pertains only to criminal jurisdiction and not to special civil actions such as for the issuance of the writ of kalikasan. Hence, contrary to petitioners’ claim, the US government could not be deemed to have waived its immunity from suit. Second, the US respondents were sued in their official capacity as commanding officers of the US Navy who have control and supervision over the USS Guardian and its crew. Since the satisfaction of any judgment against these officials would require remedial actions and the appropriation of funds by the US government, the suit is deemed to be one against the US itself. Thus, the principle of State Immunity – in correlation with the principle of

of

As it is, the waiver of State immunity under the VFA pertains only to criminal jurisdiction and not to special civil actions. Since jurisdiction cannot be had over the respondents for being immuned from suit, there is no way damages which resulted from violation of environmental laws could be awarded to petitioners. In any case, the Rules on Writ of Kalikasan provides that a criminal case against a person charged with a violation of an environmental law is to be filed separately. Hence, a ruling on the application or non-application of criminal jurisdiction provisions of the VFA to a US personnel who

may be found responsible for the grounding of the USS Guardian, would be premature and beyond the province of a petition for a writ of Kalikasan. Challenging the Constitutionality of a Treaty Via a Petition for the Issuance of Writ of Kalikasan is Not Proper The VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by the US as attested and certified by the duly authorized representative of the US government. The VFA being a valid and binding agreement, the parties are required as a matter of international law to abide by its terms and provisions. A petition under the Rules on Writ of Kalikasan is not the proper remedy to assail the constitutionality of its provisions. MOST REV. PEDRO ARIGO, et. al., Petitioners, vs. SCOTT H. SWIFT, et. al., Respondents. G.R. No. 206510

September 16, 2014

PONENTE: Villarama TOPIC: Writ of kalikasan, UNCLOS, Immunity from suit

FACTS: The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In December 2012, the US Embassy in the Philippines requested diplomatic clearance for the said vessel “to enter and exit the territorial waters of the Philippines and to arrive at the port of Subic Bay for the purpose of routine ship replenishment, maintenance, and crew liberty.” On January 6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa, Japan. On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the northwest side of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast of Palawan. No one was injured in the incident, and there have been no reports of leaking fuel or oil. Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS Guardian cause and continue to cause environmental damage of such magnitude as to affect the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and TawiTawi, which events violate their constitutional rights to a balanced and healthful ecology. ISSUES:

Whether or not petitioners have legal standing. Whether or not US respondents may be held liable for damages caused by USS Guardian. Whether or not the waiver of immunity from suit under VFA applies in this case.

HELD: First issue: YES.

Petitioners have legal standing Locus standi is “a right of appearance in a court of justice on a given question.” Specifically, it is “a party’s personal and substantial interest in a case where he has sustained or will sustain direct injury as a result” of the act being challenged, and “calls for more than just a generalized grievance.” However, the rule on standing is a procedural matter which this Court has relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers and legislators when the public interest so requires, such as when the subject matter of the controversy is of transcendental importance, of overreaching significance to society, or of paramount public interest. In the landmark case of Oposa v. Factoran, Jr., we recognized the “public right” of citizens to “a balanced and healthful ecology which, for the first time in our constitutional history, is solemnly incorporated in the fundamental law.” We declared that the right to a balanced and healthful ecology need not be written in the Constitution for it is assumed, like other civil and polittcal rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental importance with intergenerational implications. Such right carries with it the correlative duty to refrain from impairing the environment. On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled that not only do ordinary citizens have legal standing to sue for the enforcement of environmental rights, they can do so in representation of their own and future generations. Second issue: YES.

The US respondents were sued in their official capacity as commanding officers of the US Navy who had control and supervision over the USS Guardian and its crew. The alleged act or omission resulting in the unfortunate grounding of the USS Guardian on the TRNP was committed while they were performing official military duties. Considering that the satisfaction of a judgment against said officials will require remedial actions and appropriation of funds by the US government, the suit is deemed to be one against the US itself. The principle of State immunity therefore bars the exercise of jurisdiction by this Court over the persons of respondents Swift, Rice and Robling.

During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the conduct of the US in this case, when its warship entered a restricted area in violation of R.A. No. 10067 and caused damage to the TRNP reef system, brings the matter within the ambit of Article 31 of the United Nations Convention on the Law of the Sea (UNCLOS). He explained that while historically, warships enjoy sovereign immunity from suit as extensions of their flag State, Art. 31 of the UNCLOS creates an exception to this rule in cases where they fail to comply with the rules and regulations of the coastal State regarding passage through the latter’s internal waters and the territorial sea.

In the case of warships, as pointed out by Justice Carpio, they continue to enjoy sovereign immunity subject to the following exceptions: Article 30: Non-compliance by warships with the laws and regulations of the coastal State If any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately. Article 31: Responsibility of the flag State for damage caused by a warship or other government ship operated for non-commercial purposes The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the non-compliance by a warship or other government ship operated for non-commercial purposes with the laws and regulations of the coastal State concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law. Article 32: Immunities of warships and other government ships operated for non-commercial purposes With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes. A foreign warship’s unauthorized entry into our internal waters with resulting damage to marine resources is one situation in which the above provisions may apply. But what if the offending warship is a non-party to the UNCLOS, as in this case, the US? According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter of long-standing policy the US considers itself bound by customary international rules on the “traditional uses of the oceans” as codified in UNCLOS. Moreover, Justice Carpio emphasizes that “the US refusal to join the UNCLOS was centered on its disagreement with UNCLOS” regime of deep seabed mining (Part XI)

which considers the oceans and deep seabed commonly owned by mankind,” pointing out that such “has nothing to do with its the US’ acceptance of customary international rules on navigation.” The Court also fully concurred with Justice Carpio’s view that non-membership in the UNCLOS does not mean that the US will disregard the rights of the Philippines as a Coastal State over its internal waters and territorial sea. We thus expect the US to bear “international responsibility” under Art. 31 in connection with the USS Guardian grounding which adversely affected the Tubbataha reefs. Indeed, it is difficult to imagine that our long-time ally and trading partner, which has been actively supporting the country’s efforts to preserve our vital marine resources, would shirk from its obligation to compensate the damage caused by its warship while transiting our internal waters. Much less can we comprehend a Government exercising leadership in international affairs, unwilling to comply with the UNCLOS directive for all nations to cooperate in the global task to protect and preserve the marine environment as provided in Article 197 of UNCLOS Article 197: Cooperation on a global or regional basis States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features. In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute. Although the said treaty upholds the immunity of warships from the jurisdiction of Coastal States while navigating the latter’s territorial sea, the flag States shall be required to leave the territorial sea immediately if they flout the laws and regulations of the Coastal State, and they will be liable for damages caused by their warships or any other government vessel operated for non-commercial purposes under Article 31. Third issue: NO.

The waiver of State immunity under the VF A pertains only to criminal jurisdiction and not to special civil actions such as the present petition for issuance of a writ of Kalikasan. In fact, it can be inferred from Section 17, Rule 7 of the Rules that a criminal case against a person charged with a violation of an environmental law is to be filed separately. The Court considered a view that a ruling on the application or non-application of criminal jurisdiction provisions of the VFA to US personnel who may be found responsible for the grounding of the USS Guardian, would be premature and beyond the province of a petition for a writ of Kalikasan. The Court also found unnecessary at this point to determine whether such waiver of State immunity is

indeed absolute. In the same vein, we cannot grant damages which have resulted from the violation of environmental laws. The Rules allows the recovery of damages, including the collection of administrative fines under R.A. No. 10067, in a separate civil suit or that deemed instituted with the criminal action charging the same violation of an environmental law.

ARTHUR D. LIM vs. HON. EXECUTIVE SECRETARY (G.R. No. 151445) Case Digest

Facts:

raised by the petitioners was only based on fear of future violation of the Terms of Reference.

Based on the facts obtaining, the Supreme court find that the holding of “Balikatan-02-1” joint military exercise has not intruded into that penumbra of error that would otherwise call for the correction on its part.

The petition DISMISSED.

The petitioners alleged that “Balikatan-02-1” is not covered by the Mutual Defense Treaty (MDT) between the Philippines and the United States. Petitioners posited that the MDT only provides for mutual military assistance in case of armed attack by an external aggressor against the Philippines or the US. Petitioners also claim that the Visiting Forces Agreement (VFA) does not authorize American Soldiers to engage in combat operations in Philippine Territory.

Issue:

Is the “Balikatan-02-1” inconsistent with the Philippine Constitution?

Ruling:

The MDT is the core of the defense relationship between the Philippines and the US and it is the VFA which gives continued relevance to it. Moreover, it is the VFA that gave legitimacy to the current Balikatan exercise.

The constitution leaves us no doubt that US Forces are prohibited from engaging war on Philippine territory. This limitation is explicitly provided for in the Terms of Reference of the Balikatan exercise. The issues that were

the

petition-in-intervention

is

Lim V. Executive Secretary (2002) G.R. Lim

Arthur D. Lim and Paulino P. Ersando filed a petition for certiorari and prohibition attacking the constitutionality of “Balikatan-02-1”. They were subsequently joined by SANLAKAS and PARTIDO NG MANGGAGAWA, both party-list organizations, who filed a petition-inintervention. Lim and Ersando filed suits in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO on the other hand, claimed 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.

and

No.

151445 v.

April Executive

11,

2002 Secretary

Lessons Applicable: Locus Standi, International Law v. Muncipal Law, Certiorari, Incorporation Clause, Treaties Laws

Applicable:

Constitution

FACTS: Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the armed forces of the United States of America started arriving in Mindanao to take partin "Balikatan 02-1” on January 2002. The Balikatan 02-1 exercises involves the simulation of joint military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines and the United States in 1951. The exercise is rooted from the international anti-terrorism campaign declared by President George W. Bush in reaction to the 3 commercial aircrafts hijacking that smashed into twin towers of the World Trade Center in New York City and the Pentagon building in Washington, D.C. allegedly by the al-Qaeda headed by the Osama bin Laden that occurred on September 11, 2001. Arthur D. Lim and Paulino P. Ersando as citizens, lawyers and taxpayers filed a petition for certiorari and prohibition attacking the constitutionality of the joint exercise. Partylists Sanlakas and Partido Ng Manggagawa as residents of Zamboanga and Sulu directly affected by the operations filed a petition-in-intervention. The Solicitor General commented the prematurity of the action as it is based only on a fear of future violation of the Terms of Reference and impropriety of availing of certiorari to ascertain a question of fact specifically interpretation of the VFA whether it is covers "Balikatan 02-1” and no question of constitutionality is involved. Moreover, there is lack of locus standi since it does not involve tax spending and there is no proof of direct personal injury. ISSUE: W/N the petition and the petition-in-intervention should prosper. HELD: NO. 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 - Supreme Court is not a trier of facts Doctrine of Importance to the Public Considering however the importance to the public of the case at bar, and in keeping with the Court's duty, under the 1987 Constitution, to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this petition. Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers, which enjoins upon the department of the government a becoming respect for each other's act, this Court nevertheless resolves to take cognizance of the instant petition. Interpretation of Treaty 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 with the spirit of this agreement, and in particular, from any political activity." All other activities, in other words, are fair game. To aid in this, the Vienna Convention on the Law of Treaties Article 31 SECTION 3 and Article 32 contains provisos governing interpretations of international agreements. 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. According to Professor Briggs, writer on the 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 meaning of the word “activities" was deliberately made that way to give both parties a certain leeway in negotiation. Thus, the VFA gives legitimacy to the current Balikatan exercises. Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities -as opposed to combat itself -such as the one subject of the instant petition, are indeed authorized. 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." ." 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. In our considered opinion, neither the MDT nor the VFA allow foreign troops to engage in an offensive war on Philippine territory. Under the salutary proscription stated in Article 2 of the Charter of the United Nations. 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 especially Sec. 2, 7 and 8 of Article 2: Declaration of Principles and State Policies in this case. 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." Even more pointedly Sec. 25 on Transitory Provisions which shows antipathy towards foreign military presence in the country, or of foreign influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception. International Law vs. Fundamental Law and Municipal Laws Conflict arises then between the fundamental law and our obligations arising from international agreements. Philip Morris, Inc. v. Court of Appeals: “Withal, 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.” From the 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." Our Constitution espouses the opposing view as stated in section 5 of Article VIII: “The Supreme Court shall have the following powers: xxx (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.” Ichong v. Hernandez: “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” Gonzales v. Hechanova: “our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.” The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an offensive war on Philippine territory.