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VINUYA VS. SEC.

ROMULO – versus –

MARCH 28, 2013 ~ VBDIAZ


THE HONORABLE EXECUTIVE SECRETARY ALBERTO G.
ISABELITA C. VINUYA, VICTORIA C. DELA PEÑA, HERMINIHILDA,
ROMULO, THE HONORABLE SECRETARY OF FOREIGNAFFAIRS
MANIMBO, LEONOR H. SUMAWANG, CANDELARIA L. SOLIMAN,
DELIA DOMINGO-ALBERT, THE HONORABLE SECRETARY OF
MARIA L. QUILANTANG, MARIA L. MAGISA, NATALIA M.
JUSTICE MERCEDITAS N. GUTIERREZ, and THE HONORABLE
ALONZO, LOURDES M. NAVARO, FRANCISCA M. ATENCIO,
SOLICITOR GENERAL ALFREDO L. BENIPAYO
ERLINDA MANALASTAS, TARCILA M. SAMPANG, ESTER M.
PALACIO MAXIMA R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD
G.R. No. 162230, April 28, 2010
TURLA, FLORENCIA M. DELA PEÑA, FRANCIA A. BUCO,
FACTS:
PASTORA C. GUEVARRA, VICTORIA M. DELA CRUZ, PETRONILA
This is an original Petition for Certiorari under Rule 65 of the Rules of
O. DELA CRUZ, ZENAIDA P. DELA CRUZ, CORAZON M. SUBA,
Court with an application for the issuance of a writ of preliminary
EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ, ROSALINA
mandatory injunction against the Office of the Executive Secretary, the
M.BUCO, PATRICIA A. ERNARDO, LUCILA H. PAYAWAL,
Secretary of the DFA, the Secretary of the DOJ, and the OSG.
MAGDALENA LIWAG, ESTER C. BALINGIT, JOVITA A. DAVID,
EMILIA C. MANGILIT, VERGINIA M. BANGIT, GUILLERMA S.
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-
BALINGIT, TERECITA PANGILINAN, MAMERTA C. PUNO,
profit organization registered with the SEC, established for the purpose
CRISENCIANA C. GULAPA, SEFERINA S. TURLA, MAXIMA B.
of providing aid to the victims of rape by Japanese military forces in the
TURLA, LEONICIA G. GUEVARRA, ROSALINA M. CULALA,
Philippines during the Second World War.
CATALINA Y. MANIO, MAMERTA T. SAGUM, CARIDAD L. TURLA,
et al.
Petitioners claim that since 1998, they have approached the Executive
In their capacity and as members of the “Malaya Lolas
Department through the DOJ, DFA, and OSG, requesting assistance in
Organization”,
filing a claim against the Japanese officials and military officers who On January 15, 1997, the Asian Women’s Fund and the Philippine
ordered the establishment of the “comfort women” stations in the government signed a Memorandum of Understanding for medical and
Philippines. But officials of the Executive Department declined to assist welfare support programs for former comfort women. Over the next five
the petitioners, and took the position that the individual claims of the years, these were implemented by the Department of Social Welfare
comfort women for compensation had already been fully satisfied by and Development.
Japan’s compliance with the Peace Treaty between the Philippines
and Japan. ISSUE:
WON the Executive Department committed grave abuse of discretion
Hence, this petition where petitioners pray for this court to (a) declare in not espousing petitioners’ claims for official apology and other forms
that respondents committed grave abuse of discretion amounting to of reparations against Japan.
lack or excess of discretion in refusing to espouse their claims for the
crimes against humanity and war crimes committed against them; and RULING:
(b) compel the respondents to espouse their claims for official apology Petition lacks merit. From a Domestic Law Perspective, the Executive
and other forms of reparations against Japan before the International Department has the exclusive prerogative to determine whether to
Court of Justice (ICJ) and other international tribunals. espouse petitioners’ claims against Japan.

Respondents maintain that all claims of the Philippines and its Political questions refer “to those questions which, under the
nationals relative to the war were dealt with in the San Francisco Constitution, are to be decided by the people in their sovereign
Peace Treaty of 1951 and the bilateral Reparations Agreement of capacity, or in regard to which full discretionary authority has been
1956. 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 The President, not Congress, has the better opportunity of knowing the
relations. It is well-established that “the conduct of the foreign relations conditions which prevail in foreign countries, and especially is this true
of our government is committed by the Constitution to the executive in time of war. He has his confidential sources of information. He has
and legislative–‘the political’–departments of the government, and the his agents in the form of diplomatic, consular and other officials.
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 The Executive Department has determined that taking up petitioners’
involve large elements of prophecy. They are and should be cause would be inimical to our country’s foreign policy interests, and
undertaken only by those directly responsible to the people whose could disrupt our relations with Japan, thereby creating serious
welfare they advance or imperil. implications for stability in this region. For the to overturn the Executive
Department’s determination would mean an assessment of the foreign
But not all cases implicating foreign relations present political policy judgments by a coordinate political branch to which authority to
questions, and courts certainly possess the authority to construe or make that judgment has been constitutionally committed.
invalidate treaties and executive agreements. However, the question
whether the Philippine government should espouse claims of its From a municipal law perspective, certiorari will not lie. As a general
nationals against a foreign government is a foreign relations matter, principle, where such an extraordinary length of time has lapsed
the authority for which is demonstrably committed by our Constitution between the treaty’s conclusion and our consideration – the Executive
not to the courts but to the political branches. In this case, the must be given ample discretion to assess the foreign policy
Executive Department has already decided that it is to the best interest considerations of espousing a claim against Japan, from the standpoint
of the country to waive all claims of its nationals for reparations against of both the interests of the petitioners and those of the Republic, and
Japan in the Treaty of Peace of 1951. The wisdom of such decision is decide on that basis if apologies are sufficient, and whether further
not for the courts to question. steps are appropriate or necessary.
In the international sphere, traditionally, the only means available for the time the Treaty of Peace was signed, or that the duty to prosecute
individuals to bring a claim within the international legal system has perpetrators of international crimes is an erga omnes obligation or has
been when the individual is able to persuade a government to bring a attained the status of jus cogens.
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 The term erga omnes (Latin: in relation to everyone) in international
proceedings on his behalf, a State is in reality asserting its own right to law has been used as a legal term describing obligations owed by
ensure, in the person of its subjects, respect for the rules of States towards the community of states as a whole. Essential
international law. distinction should be drawn between the obligations of a State towards
the international community as a whole, and those arising vis-à-vis
Within the limits prescribed by international law, a State may exercise another State in the field of diplomatic protection. By their very nature,
diplomatic protection by whatever means and to whatever extent it the former are the concern of all States. In view of the importance of
thinks fit, for it is its own right that the State is asserting. Should the the rights involved, all States can be held to have a legal interest in
natural or legal person on whose behalf it is acting consider that their their protection; they are obligations erga omnes.
rights are not adequately protected, they have no remedy in
international law. All they can do is resort to national law, if means are The term “jus cogens” (literally, “compelling law”) refers to norms that
available, with a view to furthering their cause or obtaining redress. All command peremptory authority, superseding conflicting treaties and
these questions remain within the province of municipal law and do not custom. Jus cogens norms are considered peremptory in the sense
affect the position internationally. that they are mandatory, do not admit derogation, and can be modified
only by general international norms of equivalent authority
Even the invocation of jus cogens norms and erga omnes obligations
will not alter this analysis. Petitioners have not shown that the crimes WHEREFORE, the Petition is hereby DISMISSED.
committed by the Japanese army violated jus cogens prohibitions at
The Philippine Supreme Court has just completed hearings in a legal In 2017, two communications were forwarded to the ICC, by Philippine
challenge relating to the Philippine withdrawal from the International lawyers, civil society organizations and with the backing of senators.
Criminal Court. On the heels of the South African High Court ruling On 8 February 2018, the Office of the Prosecutor of the ICC
against the withdrawal from the ICC on the grounds of (‘OTP’) announced the opening of a preliminary examination. On 17
unconstitutionality and thereby invalidatingthe withdrawal, this case in March 2018, the Philippines deposited the instrument notifying
the Philippines bears watching. withdrawal from the ICC. Per Article 127 of the Rome Statute, the
withdrawal will take effect one year from notification, i.e. March 2019.
I attended the three days of hearings at the Philippine Supreme Court For context, the Philippines was an active participant in the drafting of
in the caseof Senator Francis Pangilinan, et al. vs Alan Peter Cayetano the Rome Statute.It signedthe Rome Statute in December 2000, with
et al. & PCICC et al. vs Salvador Madialdea et al.,and distill the eventual ratification in 2011. A domestic law, Republic Act No. 9851 of
proceedings based on the focus of the bench on particular issues. 2009 “The Philippine Act on Crimes Against International Humanitarian
The post is divided into two parts – the first deals with the background Law, Genocide and Other Crimes Against Humanity” (‘R.A. 9851’), was
of the case, the proceedings and context before the Supreme Court, passed before the ratification of the Rome Statute. This legislation has
and two areas of argumentation. The second part addresses one legal replicated certain key provisions of the Rome Statute, but not all.
issue, and presents concluding observations. II. Supreme Court proceedings
The Philippine Coalition for the International Criminal Court (‘PCICC’),
I. Background and in a separate petition, six senators (‘the Senators’) filed two
The “war on drugs” in the Philippines has unleashed an unprecedented petitions challenging the legality of the withdrawal from the ICC before
campaign of brutality in the country. From the commencement of the the Philippine Supreme Court. A new petition by the Integrated Bar of
term of the current President, in June 2016, this crackdown has cost the Philippines has recently been added to the case. The arguments
between 4,000– 20,000 lives. As part of this campaign, “drug lists” and remedies sought by the petitioners are also slightly different –
have been formulated – naming those alleged to be part of the drug while the PCICC asks for the notice of withdrawal to be declared void
economy – and many on these lists have been killed, including sitting ab initio, the Senators ask for a declaration that the withdrawal is
mayors, and judges. Extrajudicial executions by the police as well as ‘invalid or ineffective’ without the concurrence of at least 2/3rdof the
by vigilantes, allegedly paid by the police, have become the norm. Senate. Both ask for the cancellation or revocation of the notice of
withdrawal. The response of the Office of the Solicitor General to the legal events at each of the three hearings, the last hearing was the last
petitions is here (along with audio files of the proceedings). day in office of the Chief Justice, after a 41-day term. She was not
The PCICC was heard on 28 August and the Senators on 4 September present at the last hearing, and will not participate in the decision of the
with a brief presentation of arguments, and extensive questioning by court in this matter.
the Supreme Court sitting en banc, signifying the importance of the III. Legal arguments
matter. The third and last day of hearings of the case took place on 9 The arguments at the Philippine Supreme Court were based on
October 2018. The government, represented by the Solicitor General, domestic law as well as international law. The posts do not address all
was heard, with the proceedings taking just over an hour and a half. the nuances of domestic law, but present the more contested
The Integrated Bar of the Philippines was included in the proceedings arguments at the hearings.
at the last hearing – but did not have the opportunity to present
arguments before the court. All parties now have thirty days within It was notable that the petitioners were heard for over six hours, with a
which to file written memoranda, after which the court will pronounce little over an hour and a half for the respondents. The bench posed
its decision. multiple questions and the focus on specific aspects of the
As an aside – but not entirely unrelated – the first hearing of the submissions indicate their approach towards the case.
petitioners coincided with the first day in office of the Supreme Court
Chief Justice Teresita De Castro – an appointment mired in A. Domestic law: Locus standi and treaty withdrawal powers
controversy, due to the unseemly ousting of the previous Chief Justice Locus standi and injury was a key focus of the bench in questioning
Maria Lourdes Sereno in May of this year. On the potential the PCICC. The bench queried whether the individual petitioners of the
implications, more here.The hearings for the Senators was also PCICC had suffered personal injury, asking why no victims were part
delayed, due to the denial of a motion for the jailed opposition senator of the petition. The PCICC conceded a lack of direct injury but based
Leila de Lima – one of the senators who has approached the court in their challenge on the lack of effective remedies. This reliance upon
this case – to argue the case before the Supreme Court. In continuing the lack of an effective remedy as the basis for standing would impact
turmoil,on the day of the hearing for the Senators, an arrest warrant arguments of the PCICC relating to complementarity and R.A. 9851
issued by the President revoking a previous amnesty against another (dealt with sub-sections B & C).The Senators asserted injury alleging
one of the six petitioner senators – also a key opponent of the an impairment of the constitutional functions of the Senate, with a
President – was made public. And continuing the trend of significant concomitant interest in the fulfillment of their constitutional obligations.
The bench was noticeably more lenient in its questioning of the The case presented by the government was briefly, a total rebuttal of
Senators on locus standi. the arguments above – that the petitioners do not have the locus
The next major line of arguments related to the separationof powers of standito approach the court, for the reasons of a lack of direct injury,
the President and the Senate, relating to the power to enter into – and and that the powers of the President are clear per the Constitution,
more importantly in this case, to withdraw – from a treaty. The regarding his ability to enter into, and withdraw from treaties. While the
Philippine Constitutionin Article VII, Section 21 stipulates that no SG presented these arguments, the bench did not focus on this line of
international treaty or agreement shall be “valid and effective” unless argumentation.
there is the concurrence of at least 2/3rd of all members of the Senate. B. International & foreign law: (Ir)relevance of case law, & jitters
The provision is however silent regarding the allocation of powers to regarding complementarity
withdraw from a treaty, with no previous Philippine precedent or While both petitioners relied extensively on the success of the South
practice to draw from. While not in the written submissions, at the 4 African withdrawal case in their submissions, the bench pointed out the
September hearings an attending Senator petitioner, on questioning by case was merely persuasive, emanating from a jurisdiction with a
the bench, confirmed that 17 treaties that have since been ratified by different system of governance, i.e. parliamentary. Despite substantial
the Senate include a specific clause indicating that in case of reliance on it, the case received scant attention from the bench. The
withdrawal, 2/3rdmajority approval of the Senate is required. This is government had harsh words in relation to the reliance upon foreign
also the substance of pending Senate Resolution 286 – which despite law by the petitioners. According to the Solicitor General, the
having signatures of 14 of the 24 senators, a majority, has not been petitioners were “mesmerized” by the decisions of the South African
adopted. However, Senate Resolution 546 (2011) – which gave and the U.K. courts, and there was a “specious reliance” on foreign
its concurrence to the Rome Statute – does not contain provisions as law.
to withdrawal. This latter-day inclusion of a provision as to withdrawal
could be interpreted in one of two ways – either,that this was not the Article 17 of the Rome Statute and the interpretation of
rule and going forward, new practice is being established by the complementarity – that courts must be “unwilling or unable” to
Senate; Or, that the breach of the rule by the Rome Statute withdrawal prosecute cases – was questioned rigorously. Judges questioned
has necessitated such an explicit provision. Either way, the whether the PCICC had filed cases in lower courts, or pursued
determination of the point will have an impact on the powers of the investigations. A judge asserted that with false cases on the basis of
President in relation to treaties. the drug war being dismissed, the effective use of the writ of amparo,
and with acquittals taking place, how would the courts be deemed including human rights treaties such as the Rome Statute. The bench
“unwilling”? The bench averred to the lack of data presented in order pointed out that the Philippine Supreme Court obiterhas not clarified
for the court to determine whether in fact there was a failure of the the distinction between generally accepted principles of international
judicial system that would permit the ICC to step in, with the emphasis law, and treaty law. This was in relation to the question of what and
on the need for fact-based evidence, and not merely anecdotal how international law applies in a domestic setting and is to be clarified
references. The bench also questioned the assertion that there was further in the next submission.
insufficient normative basis for protection of rights, citing the Anti- An aspect brought up by the bench was the pointed emphasis on
torture Act, Anti-enforced or Involuntary Disappearance Act, R.A. 9851, the acceptanceof the notification of withdrawal by the U.N. secretariat
among others. The perception that an investigation by the ICC would as well as the ability to subsequently withdraw this “notification of
impugn the legal system clearly weighed on the bench, with the withdrawal”. The court allude to this being a potential source of
preference expressed for greater self-reliance, as well as the Philippine embarrassment to the President, and thus a “political question” well
judiciary not being “second class”. The relevance of other mechanisms within his remit to decide upon. However, the approach to arrive at this
to prevent impunity, such as the creation of ad-hocinternational was rather tortured – it was premised on the logic that as Article 127 of
tribunals, was also mooted by the bench. According to the Solicitor the Rome Statute did not explicitly mention the ability to take back a
General, there has been no violation of international law and no need withdrawal, if the Supreme Court made a decision on this basis, it
for the “interference of foreigners” in the system of justice that is could be contradicted by the ICC and thus amount to embarrassment
working well in the Philippines. in foreign relations, which would equate to a political question to be
At the respondents hearing, the bench focused extensively on the decided solely by the President.
scope of treaties and customary international law in regard to domestic
law and the Constitution, with much of the questioning by the bench C. R.A. 9851: A Double Bind?
akin to leading questions in a trial. The court drew the attention of the The sufficiency of the “The Philippine Act on Crimes Against
Solicitor General to distinctions between language in previous International Humanitarian Law, Genocide and Other Crimes Against
constitutions (the 1987 & 1935 constitutions) in order to ascertain the Humanity” or R.A. 9851 in addressing mass atrocity crimes was
status of customary international law and treaty law as “valid and referenced in the Philippine note verbalenotifying the U.N. Secretary
effective law”, as a point for further clarification. This was brought up in General of withdrawal from the Rome Statute. The relevance of R.A.
relation to the grey area pertaining to “non-self executing” treaties, 9851 touches upon not only complementarity, but also the fundamental
question of the lack of a legal remedy, and emerged as an area of court – would this primacy work even ifthe withdrawal goes through,
significant focus in the hearings. i.e. could the ICC still be an avenue solely via R.A. 9851? Arguably, if
A key question posed to the Petitioners related to how the ICC this was the case priorto ratification of the Rome Statute, it could
withdrawal would affect rights of individuals, and the impact on the continue to be the case post withdrawal – but thereby affecting the lack
existence of R.A. 9851. What happens to an already existing law, such of an effective remedy argument and basically, standing before the
as R.A. 9851, when a treaty enters into force? The Rome Statue was court. The only way in which to overcome this hurdle would be a
ratified after theimplementation of R.A. 9851, which encapsulates detailed analysis of the legislation compared with the Rome Statute –
some of the Rome Statute. The domestic legislation has in fact gone and a clarification of recourse to the ICC as a remedy. It is also curious
beyond the Rome Statute in some respects, such as the conscription that no case seems to have been filed under R.A. 9851 directly in the
of child soldiers and the prohibition of particular weapons. On other courts. Either way, this is a bind for the petitioners, with a trade-off
issues however, it jettisons or does not include requirements of the between locus standifor this petition, versus the potential for continued
Rome Statute. In effect, while it is argued that the ratification of the recourse to the ICC (as tenuous as this may be).
Rome Statute results in it becoming “law” per the Constitution, its D. Neo-imperialism & Chinese aggression
impact on R.A. 9851 is unclear and was the subject of debate at the There were two aspects that came from the left-field at the hearings,
hearings. that indicated anxieties about the prospects of international justice, as
A contradictory – and perhaps unanticipated – position has been well as Asia-Pacific neighbourhood regional dynamics.
exposed in the hearings, relating to the impact of R.A. 9851 on the
right to an effective remedy. Pressed by the bench, both petitioners In the Petitioners hearings, while seemingly at a tangent, the court
asserted that R.A. 9851 continues as law, regardless of the ratification veered into the realm of realpolitik – asking whether the Philippines
of the Rome Statute, and nor does it cease to exist by virtue of the would get “justice at the United Nations”, and whether the U.S., China
withdrawal. But if R.A. 9851 continues in force, how would this impact and Russia were parties to the Rome Statute. However, this is not
the argument regarding the lack of an effective remedy? According to irrelevant as it reflects real anxieties of the “imperialist” nature of the
the bench, “reverse complementarity” of the legislation – which gives ICC and its impact on sovereignty – echoed increasingly forcefully
primacy automatically to the ICC over any domestic prosecution, per across multiple jurisdictions in the developing world – and also in the
Section 17 – would belie the argument of the lack of effective U.S. under the current administration.
remedies. Of course, this also begs the question – not brought up in
At the respondents hearing, the acting chief justice brought up the The next steps – the final written submissions – will be crucial in
adoption of the crime of aggression at the ICC. The justice put to the addressing the concerns of the court, on the issues raised by it.
Solicitor General that the withdrawal of the Philippines would put in
jeopardy a potential avenue of legal recourse, in the event that China The success of one or all of the petitions may be determined
invaded Philippine territory and put up bases on the Scarborough essentially on the basis of domestic law, particularly on standing as the
Shoal in the West Philippine or South China Sea (terminology depends preliminary hurdle. Whether the court will read this more expansively
on who you ask). The Solicitor General asserted that there were other and grant the PCICC standing for this issue of public interest is open to
international treaties that could be used instead but did not elaborate debate. On the Senators case – which is more limited and focused on
on this further. The government has been directed to provide further the powers of the President – this has a higher likelihood of success at
details in their next written submission. It is however worth noting that the initial fundamental issue of standing.
the Philippines has in fact won a case at Permanent Court of
Arbitration against China relating to its claims regarding the nine-dash However, even if one of the petitions does make it past the initial
line and disputed islands. Arguably – and according to the same justice threshold, it is anyone’s guess which way the decision will go – I am
of the court – the Philippines is squandering this legal advantage by not optimistic for a few reasons, based only on my impressions at the
capitulating to the demands of China and by not asserting its legal hearings. I could be wrong – and in fact hope I am – but there were
rights. sufficient clues in the hearings to indicate a negative result for the
IV. Reading the tea leaves… petitioners in this case. There was a palpable reluctance – articulated
A few observations on the process and next steps, and going out on a in the hearings – for the court to be viewed as a means to political
limb, a prediction. ends and to tread on the powers of the President. A cautionary note
was struck in the hearings as to the involvement of the court in
Firstly, on the proceedings – the court was extremely active in its determining questions from the point of view of a political result, rather
questioning, with a degree of skepticism as to the arguments made. than grounded in principles of the Constitution. The questions on
Clearly the role of the court is to test the case before it – which is what complementarity at the hearings exposed deep misgivings as to the
questioning of the petitioners by nearly the entire bench did. By role of the ICC vis-à-vis the domestic legal system, and the impression
contrast, the degree of engagement with the respondents was lower, of unwarranted scrutiny. The perception that the legal system is under
with the proceedings taking less than a third of the petitioners’ case. scrutiny by reason of complementarity has tapped into defensiveness
as to the system of justice in the Philippines, articulated by the bench justice and accountability mechanisms. It indicates the need for active
as well as the government. There is also the question whether the engagement with questions of international law, both by international
court will make its decision before the withdrawal becomes effective, and domestic legal institutions. The case also points to the obvious
next March – a pointed question in the hearings. The ability of the next need for a well-functioning system of justice at the local level.
administration to sign up to the Rome Statute again was also
speculated upon, by the bench. As a last point, after the completion of the hearings, the Philippines has
been “elected” onto the UN Human Rights Council on 12 October. This
The hearings before the Supreme Court have widened the scope of serves as a fillip to the arguments that the actions of the government
the legal argumentation. There are important questions of legality that are not only defensible under international law, but are acknowledged
have been brought up – the constitutionality of the withdrawal from an as essential. The fact that there was no actual election, and that
international treaty, as well as the lack of effective remedies as key to serving on the HRC is not approval of the “war on drugs” is getting little
an effective well-functioning legal system. However, there are also real coverage. This only points to the flaws of the current HRC system, and
concerns about the scrutiny that the legal system will receive in the the calls for its revamp which still hold good – but that is a separate
event that the withdrawal does not go through. In addition, the blog post in itself.
“politicization and weaponization of human rights” as highlighted in While the opening salvo of the Solicitor General that this case was
the note verbale submitted by the government in the notification of “much ado about nothing” couldn’t be further from the truth, the
withdrawal is an argument that is gaining much traction. At a time success of the petitions is far from a foregone conclusion.
when there has been a spate of killings of judges and prosecutors,
there is cause for much concern. WIGBERTO E. TAÑADA et al, petitioners,
vs.
From a global perspective, this case is significant for a number of
reasons. In a time of increasing skepticism of the ICC, as well as EDGARDO ANGARA, et al, respondents.
questions relating to the ability to achieve justice through this court, the Facts:
Petitioners prayed for the nullification, on constitutional grounds, of the
role of national courts in granting effective legal remedies is even more concurrence of the Philippine Senate in the ratification by the President
important. More broadly, the proceedings point to the significance of of the Philippines of the Agreement Establishing the World Trade
national courts – constitutional as well as lower courts – in the Organization (WTO Agreement, for brevity) and for the prohibition of its
implementation and enforcement through the release and utilization of
interpretation of international law, and their impact on international
public funds, the assignment of public officials and employees, as well and adheres to the policy of peace, equality, justice, freedom,
as the use of government properties and resources by respondent- cooperation and amity, with all nations.” By the doctrine of
heads of various executive offices concerned therewith. incorporation, the country is bound by generally accepted principles of
international law, which are considered to be automatically part of our
They contended that WTO agreement violates the mandate of the own laws. One of the oldest and most fundamental rules in
1987 Constitution to “develop a self-reliant and independent national international law is pacta sunt servanda — international agreements
economy effectively controlled by Filipinos x x x (to) give preference to must be performed in good faith. “A treaty engagement is not a mere
qualified Filipinos (and to) promote the preferential use of Filipino moral obligation but creates a legally binding obligation on the parties x
labor, domestic materials and locally produced goods” as (1) the WTO x x. A state which has contracted valid international obligations is
requires the Philippines “to place nationals and products of member- bound to make in its legislations such modifications as may be
countries on the same footing as Filipinos and local products” and (2) necessary to ensure the fulfillment of the obligations undertaken.”
that the WTO “intrudes, limits and/or impairs” the constitutional powers
of both Congress and the Supreme Court. By their inherent nature, treaties really limit or restrict the absoluteness
of sovereignty. By their voluntary act, nations may surrender some
Issue: aspects of their state power in exchange for greater benefits granted
Whether provisions of the Agreement Establishing the World Trade by or derived from a convention or pact. After all, states, like
Organization unduly limit, restrict and impair Philippine sovereignty individuals, live with coequals, and in pursuit of mutually covenanted
specifically the legislative power which, under Sec. 2, Article VI, 1987 objectives and benefits, they also commonly agree to limit the exercise
Philippine Constitution is ‘vested in the Congress of the Philippines. of their otherwise absolute rights. Thus, treaties have been used to
record agreements between States concerning such widely diverse
Held: matters as, for example, the lease of naval bases, the sale or cession
No, the WTO agreement does not unduly limit, restrict, and impair the of territory, the termination of war, the regulation of conduct of
Philippine sovereignty, particularly the legislative power granted by the hostilities, the formation of alliances, the regulation of commercial
Philippine Constitution. The Senate was acting in the proper manner relations, the settling of claims, the laying down of rules governing
when it concurred with the President’s ratification of the agreement. conduct in peace and the establishment of international organizations.
The sovereignty of a state therefore cannot in fact and in reality be
While sovereignty has traditionally been deemed absolute and all- considered absolute. Certain restrictions enter into the picture: (1)
encompassing on the domestic level, it is however subject to limitations imposed by the very nature of membership in the family of
restrictions and limitations voluntarily agreed to by the Philippines, nations and (2) limitations imposed by treaty stipulations. As aptly put
expressly or impliedly, as a member of the family of nations. by John F. Kennedy, “Today, no nation can build its destiny alone. The
Unquestionably, the Constitution did not envision a hermit-type age of self-sufficient nationalism is over. The age of interdependence
isolation of the country from the rest of the world. In its Declaration of is here.”
Principles and State Policies, the Constitution “adopts the generally
accepted principles of international law as part of the law of the land,
The WTO reliance on “most favored nation,” “national treatment,” and
“trade without discrimination” cannot be struck down as The Labor Arbiter took cognizance of the complaint on the impression
unconstitutional as in fact they are rules of equality and reciprocity that that the ADB had waived its diplomatic immunity from suit and, in time,
apply to all WTO members. Aside from envisioning a trade policy rendered a decision in favour Magnayi.
based on “equality and reciprocity,” the fundamental law encourages
industries that are “competitive in both domestic and foreign markets,” The ADB did not appeal the decision. Instead, on 03 November 1993,
thereby demonstrating a clear policy against a sheltered domestic the DFA referred the matter to the NLRC; in its referral, the DFA sought
trade environment, but one in favor of the gradual development of a "formal vacation of the void judgment." When DFA failed to obtain a
robust industries that can compete with the best in the foreign markets. favorable decision from the NLRC, it filed a petition for certiorari.
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 Issues:
have demonstrated the Filipino capacity to grow and to prosper against
the best offered under a policy of laissez faire. 1. Whether or not ADB is immune from suit

WHEREFORE, the petition is DISMISSED for lack of merit. 2. Whether or not by entering into service contracts with different private
companies, ADB has descended to the level of an ordinary party to a
commercial transaction giving rise to a waiver of its immunity from suit
DFA vs. NLRC
G.R. No. 113191, 18 September 1996 3. Whether or not the DFA has the legal standing to file the present
petition
Facts:
4. Whether or not the extraordinary remedy of certiorari is proper in this
On 27 January 1993, private respondent Magnayi filed an illegal case
dismissal case against ADB. Two summonses were served, one sent
directly to the ADB and the other through the Department of Foreign
Affairs ("DFA"). ADB and the DFA notified respondent Held:
Labor Arbiter that the ADB, as well as its President and Officers, were
covered by an immunity from legal process except for borrowings, 1. Under the Charter and Headquarters Agreement, the ADB enjoys
guaranties or the sale of securities pursuant to Article 50(1) and Article immunity from legal process of every form, except in the specified cases
55 of the Agreement Establishing the Asian Development Bank (the of borrowing and guarantee operations, as well as the purchase, sale
"Charter") in relation to Section 5 and Section 44 of the Agreement and underwriting of securities. The Bank’s officers, on their part, enjoy
Between The Bank And The Government Of The Philippines Regarding immunity in respect of all actsperformed by them in their official
The Bank's Headquarters (the "Headquarters Agreement").
capacity. The Charter and the Headquarters Agreement granting these start of the inquiry. The logical question is whether the foreign state is
immunities and privileges are treaty covenants and commitments engaged in the activity in the regular course of business. If the foreign
voluntarily assumed by the Philippine government which must be state is not engaged regularly in a business or trade, the particular act or
respected. transaction must then be tested by its nature. If the act is in pursuit of a
sovereign activity, or an incident thereof, then it is an act jure imperii,
Being an international organization that has been extended a diplomatic especially when it is not undertaken for gain or profit.”
status, the ADB is independent of the municipal law.
The service contracts referred to by private respondent have not been
"One of the basic immunities of an international organization is immunity intended by the ADB for profit or gain but are official acts over which a
from local jurisdiction, i.e., that it is immune from the legal writs and waiver of immunity would not attach.
processes issued by the tribunals of the country where it is found. The
obvious reason for this is that the subjection of such an organization to
the authority of the local courts would afford a convenient medium thru 3. Yes. The DFA's function includes, among its other mandates, the
which the host government may interfere in their operations or even determination of persons and institutions covered by diplomatic
influence or control its policies and decisions of the organization; immunities, a determination which, when challenged, entitles it to seek
besides, such subjection to local jurisdiction would impair the capacity relief from the court so as not to seriously impair the conduct of the
of such body to discharge its responsibilities impartially on behalf of its country's foreign relations. The DFA must be allowed to plead its case
member-states." whenever necessary or advisable to enable it to help keep the credibility
of the Philippine government before the international community. When
international agreements are concluded, the parties thereto are deemed
2. No. The ADB didn't descend to the level of an ordinary party to a to have likewise accepted the responsibility of seeing to it that their
commercial transaction, which should have constituted a waiver of its agreements are duly regarded. In our country, this task falls principally
immunity from suit, by entering into service contracts with different on the DFA as being the highest executive department with the
private companies. “There are two conflicting concepts of sovereign competence and authority to so act in this aspect of the international
immunity, each widely held and firmly established. According to the arena. In Holy See vs. Hon. Rosario, Jr., this Court has explained the
classical or absolute theory, a sovereign cannot, without its consent, be matter in good detail; viz:
made a respondent in the Courts of another sovereign. According to the
newer or restrictive theory, the immunity of the sovereign is recognized "In Public International Law, when a state or international agency wishes
only with regard to public acts or acts jure imperii of a state, but not with to plead sovereign or diplomatic immunity in a foreign court, it requests
regard to private act or acts jure gestionis. the Foreign Office of the state where it is sued to convey to the court
that said defendant is entitled to immunity.
“Certainly, the mere entering into a contract by a foreign state with a
private party cannot be the ultimate test. Such an act can only be the
"In the United States, the procedure followed is the process of counsels. In cases where the foreign states bypass the Foreign Office,
'suggestion,' where the foreign state or the international organization the courts can inquire into the facts and make their own determination
sued in an American court requests the Secretary of State to make a as to the nature of the acts and transactions involved."
determination as to whether it is entitled to immunity. If the Secretary of
State finds that the defendant is immune from suit, he, in turn, asks
the Attorney General to submit to the court a 'suggestion' that the 4. Yes. Relative to the propriety of the extraordinary remedy of certiorari,
defendant is entitled to immunity. the Court has, under special circumstances, so allowed and entertained
such a petition when (a) the questioned order or decision is issued in
"In the Philippines, the practice is for the foreign government or the excess of or without jurisdiction, or (b) where the order or decision is a
international organization to first secure an executive endorsement of its patent nullity, which, verily, are the circumstances that can be said to
claim of sovereign or diplomatic immunity. But how the Philippine obtain in the present case. When an adjudicator is devoid of jurisdiction
Foreign Office conveys its endorsement to the courts varies. In on a matter before him, his action that assumes otherwise would be a
International Catholic Migration Commission vs. Calleja, 190 SCRA 130 clear nullity.
(1990), the Secretary of Foreign Affairs just sent a letter directly to the
Secretary of Labor and Employment, informing the latter that the
respondent-employer could not be sued because it enjoyed diplomatic Petition for certiorari is GRANTED, and the decision of the Labor Arbiter,
immunity. In World Health Organization vs. Aquino, 48 SCRA 242 dated 31 August 1993 is VACATED for being NULL AND VOID.
(1972), the Secretary of Foreign Affairs sent the trial court a telegram to
that effect. In Baervs. Tizon, 57 SCRA 1 (1974), the U.S. Embassy
asked the Secretary of Foreign Affairs to request the Solicitor General Liang vs. Peole
to make, in behalf of the Commander of the United States Naval Base
at Olongapo City, Zambales, a 'suggestion' to respondent Judge. The FACTS: Petitioner Jeffrey Liang, an economist working with the Asian
Solicitor General embodied the 'suggestion' in a manifestation and Development Bank (ADB) , was charged before the MeTC of
memorandum as amicus curiae. Mandaluyong with two counts of grave oral defamation for allegedly
uttering defamatory words against a fellow ADB worker. Liang was
"In the case at bench, the Department of Foreign Affairs, through the
Office of Legal Affairs moved with this Court to be allowed to intervene arrested but later released. The next day, the judge received an "office
on the side of petitioner. The Court allowed the said Department of protocol" from the Department of Foreign Affairs (DFA) stating that
to file its memorandum in support of petitioner's claim of sovereign
Liang is covered by immunity from legal process under Section 45 of the
immunity.
Agreement between the ADB and the Philippine Government. Based on
"In some cases, the defense of sovereign immunity was submitted the said protocol communication, the judge, without notice to the
directly to the local courts by the respondents through their private prosecution, dismissed the two criminal cases. The RTC set aside the
MeTC ruling and ordered the latter court to enforce the warrant of arrest 2. No. Under Section 45 of the Agreement which provides:
it earlier issued. Liang appealed arguing that he is covered by immunity
under the Agreement. "Officers and staff of the Bank including for the purpose of this Article

ISSUES: experts and consultants performing missions for the Bank shall enjoy
the following privileges and immunities:
1. Was the judge correct in dismissing the cases on the basis the
protocol communication without notice to the prosecution?
a.)....... immunity from legal process with respect to acts performed by
2. Is Liang covered with immunity from legal process under Section 45 them in their official capacity except when the Bank waives the
of the Agreement between the ADB and the Philippine Government?
immunity."
HELD: the immunity mentioned therein is not absolute, but subject to the
exception that the act was done in "official capacity." It is therefore
1. No. Courts cannot blindly adhere and take on its face the necessary to determine if petitioners case falls within the ambit of
communication from the DFA that petitioner is covered by any immunity. Section 45(a). Thus, the prosecution should have been given the chance
The DFA's determination that a certain person is covered by immunity to rebut the DFA protocol and it must be accorded the opportunity to
is only preliminary which has no binding effect in courts. In receiving ex- present its controverting evidence, should it so desire.
parte the DFA's advice and in motu proprio dismissing the two criminal
cases without notice to the prosecution, the latter's right to due process Likewise, slandering a person could not possibly be covered by the
was violated. It should be noted that due process is a right of the immunity agreement because our laws do not allow the commission of
accused as much as it is of the prosecution. The needed inquiry in what a crime, such as defamation, in the name of official duty. It is well-settled
capacity petitioner was acting at the time of the alleged utterances principle of law that a public official may be liable in his personal private
requires for its resolution evidentiary basis that has yet to be presented capacity for whatever damage he may have caused by his act done with
at the proper time. At any rate, it has been ruled that the mere invocation malice or in bad faith or beyond the scope of his authority or jurisdiction.
of the immunity clause does not ipso facto result in the dropping of the
charges.
Moreover, under the Vienna Convention on Diplomatic Relations, a When Indonesian Minister Counsellor Kasim assumed the position of
Chief of Administration, he allegedly found respondent’s work and
diplomatic agent, assuming petitioner is such, enjoys immunity services unsatisfactory and not in compliance with the standards set in
from criminal jurisdiction of the receiving state except in the case of an the Maintenance Agreement. Hence, the Indonesian Embassy
action relating to any professional or commercial activity exercised by terminated the agreement.
the diplomatic agent in the receiving state outside his official functions. The respondent claims that the aforesaid termination was arbitrary
As already mentioned above, the commission of a crime is not part of and unlawful. Hence, he filed a complaint against the petitioners which
opposed by invoking immunity from suit.
official duty. (Liang vs People, G.R. No. 125865, January 28, 2000)
Issues:
G.R. No. 154705 405 SCRA 126 June 26, 2003
THE REPUBLIC OF INDONESIA, HIS EXCELLENCY AMBASSADOR 1. Whether or not the Republic of Indonesia can invoke the doctrine of
SOERATMIN, and MINISTER COUNSELLOR AZHARI sovereign immunity from suit.
KASIM, petitioners,
2. Whether or not petitioners Ambassador Soeratmin and Minister
vs. Counsellor Kasim may be sued herein in their private capacities.
JAMES VINZON, doing business under the name and style of VINZON
Discussions:
TRADE AND SERVICES, respondent.
The rule that a State may not be sued without its consent is a
Facts:
necessary consequence of the principles of independence and equality
This is a petition for review of the decision made by Court of Appeals in of States. The practical justification for the doctrine of sovereign
ruling that the Republic of Indonesia gave its consent to be sued and immunity is that there can be no legal right against the authority that
voluntarily submitted itself to the laws and jurisdiction of Philippine makes the law on which the right depends. In the case of foreign
courts and that petitioners Ambassador Soeratmin and Minister States, the rule is derived from the principle of the sovereign equality of
Counsellor Kasim waived their immunity from suit. States, as expressed in the maxim par in parem non habet imperium.
All states are sovereign equals and cannot assert jurisdiction over one
Petitioner, Republic of Indonesia, represented by its Counsellor, Siti another.] A contrary attitude would “unduly vex the peace of nations”.
Partinah, entered into a Maintenance Agreement with respondent
James Vinzon, sole proprietor of Vinzon Trade and Services. The The rules of International Law, however, are not unbending or immune
equipment covered by the Maintenance Agreement are air conditioning to change. The increasing need of sovereign States to enter into purely
units and was to take effect in a period of four years. commercial activities remotely connected with the discharge of their
governmental functions brought about a new concept of sovereign
immunity. This concept, the restrictive theory, holds that the immunity
of the sovereign is recognized only with regard to public acts or o an action relating to succession in which the diplomatic agent is
acts jure imperii (public acts of the government of a state), but not with involved as executor, administrator, heir or legatee as a private
regard to private acts or acts jure gestionis (the commercial activities of
a state.) person and not on behalf of the sending State;
o an action relating to any professional or commercial activity
Rulings: exercised by the diplomatic agent in the receiving State outside
his official functions.
1. The Supreme Court ruled that the republic of Indonesia cannot be
deemed to have waived its immunity to suit. The mere entering into The Solicitor General believes that said act may fall under
a contract by a foreign state with a private party cannot be subparagraph (c) thereof, but said provision clearly applies only to a
construed as the ultimate test of whether or not it is an act juri situation where the diplomatic agent engages in any professional or
imperii or juri gestionis. Such act is only the start of the inquiry. commercial activity outside official functions, which is not the case
herein.
There is no dispute that the establishment of a diplomatic mission
is an act juri imperii. The state may enter into contracts with private MINUCHER VS. COURT OF APPEALS
entities to maintain the premises, furnishings and equipment of the G.R. No. 142396, 2003 February 11
embassy. The Republic of Indonesia is acting in pursuit of a
sovereign activity when it entered into a contract with the
respondent. The maintenance agreement was entered into by the
Republic of Indonesia in the discharge of its governmental FACTS
functions. It cannot be deemed to have waived its immunity from
suit.
2. Article 31 of the Vienna Convention on Diplomatic Relations Sometime in May 1986, an information for violation of the Dangerous
Drugs Act was filed against petitioner Khosrow Minucher with the RTC.
provides that a diplomatic agent shall enjoy immunity from the
The criminal charge followed a "buy-bust operation" concluded by the
criminal jurisidiction of the receiving State. He shall also enjoy
Philippine police narcotic agent in the house if Minucher where a
immunity from its civil and administrative jurisdiction, except in the quantity of heroin, a prohibited drug, was said to have been seized. The
case of: narcotic agents were accompanied by private respondent Arthur Scalzo
o a real action relating to private immovable property situated in who would, in due time, become one of the principal witnesses for the
the territory of the receiving State, unless he holds it on behalf prosecution. On January 1988, Presiding Judge Migrino rendered a
of the sending State for the purposes of the mission; decision acquitting the accused. Minucher filed Civil Case before the
RTC for damages on account of what he claimed to have been trumped- others. Scalzo asserted that he was an Assistant Attache of the US
up charges of drug trafficking made by Arthur Scalzo. diplomatic mission. Attaches assist a chief of mission in his duties and
are administratively under him. These officials are not generally
regarded as members of the diplomatic mission, nor they normally
designated as having diplomatic rank.

ISSUES
2. While the diplomatic immunity of Scalzo might thus remain
contentions, it was sufficiently established that, indeed, he worked for
1. Whether or not Arthur Scalzo is entitled to diplomatic immunity the USDEA. If it should be ascertained that Scalzo was acting well within
his assigned functions when he committed the acts allegedly
complained of, the present controversy could then be resolved under the
2. Whether the Doctrine of State Immunity from suit is applicable herein related doctrine of State Immunity from Suit. While the doctrine appears
to prohibit only suits against against the State without its consent, it is
also applicable to complaints filed against officials of the State for acts
allegedly performed by them in the discharge of their duties. The official
RULING exchanges of communication, certifications from officials, as well as
participation of members of the Philippine Narcotics Command may be
inadequate to support to support the diplomatic status of Scalzo but they
1. Scalzo contends that the Vienna Convention on Diplomatic Relations, give enough indication that the Philippine government has given its
to which the Philippines is a signatory, grants him absolute immunity imprimatur to the activities of Scalzo. It can hardly be said that he acted
from suit being an agent of the US Drugs Enforcement Agency. beyond the scope of his official function or duties. All told, Scalzo is
However, the main yardstick in ascertaining whether a person is a entitled to the defense os state immunity from suit.
diplomat entitled to immunity is the determination of whether or not he Bayan v. Zamora, G.R. No. 138570, October 10, 2000
performs duties of diplomatic nature. The Vienna Convention lists the
classes of heads of diplomatic missions to include (a) ambassadors or
nuncios accredited to the heads of state, (b) envoys, ministers or inter I. THE FACTS
nuncios accredited to the head of states, and (c) charges d' affairs The Republic of the Philippines and the United States of America
accredited to the ministers of foreign affairs. The Convention defines entered into an agreement called the Visiting Forces Agreement (VFA).
"diplomatic agents" as the heads of missions or members of the The agreement was treated as a treaty by the Philippine government
diplomatic staff, thus impliedly withholding the same privileges from all
and was ratified by then-President Joseph Estrada with the concurrence referendum; and (c) recognized as a treaty by the other contracting
of 2/3 of the total membership of the Philippine Senate. state.
The VFA defines the treatment of U.S. troops and personnel There is no dispute as to the presence of the first two requisites
visiting the Philippines. It provides for the guidelines to govern such in the case of the VFA. The concurrence handed by the Senate through
visits, and further defines the rights of the U.S. and the Philippine Resolution No. 18 is in accordance with the provisions of the
governments in the matter of criminal jurisdiction, movement of vessel Constitution . . . the provision in [in §25, Article XVIII] requiring ratification
and aircraft, importation and exportation of equipment, materials and by a majority of the votes cast in a national referendum being
supplies. unnecessary since Congress has not required it.
Petitioners argued, inter alia, that the VFA violates §25, Article xxx xxx xxx
XVIII of the 1987 Constitution, which provides that “foreign military
This Court is of the firm view that the phrase “recognized as a
bases, troops, or facilities shall not be allowed in the Philippines except
treaty” means that the other contracting party accepts or
under a treaty duly concurred in by the Senate . . . and recognized as a
acknowledges the agreement as a treaty. To require the other
treaty by the other contracting State.”
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.
II. THE ISSUE
Well-entrenched is the principle that the words used in the
Was the VFA unconstitutional?
Constitution are to be given their ordinary meaning except where
III. THE RULING technical terms are employed, in which case the significance thus
attached to them prevails. Its language should be understood in the
[The Court DISMISSED the consolidated petitions, held that the sense they have in common use.
petitioners did not commit grave abuse of discretion, and sustained the
constitutionality of the VFA.] Moreover, it is inconsequential whether the United States treats
the VFA only as an executive agreement because, under international
NO, the VFA is not unconstitutional. law, an executive agreement is as binding as a treaty. To be sure, as
Section 25, Article XVIII disallows foreign military bases, troops, long as the VFA possesses the elements of an agreement under
or facilities in the country, unless the following conditions are sufficiently international law, the said agreement is to be taken equally as a treaty.
met, viz: (a) it must be under a treaty; (b) the treaty must be duly xx xxx xxx
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
The records reveal that the United States Government, through The SC ruled The Visiting Forces Agreement (VFA) between the
Ambassador Thomas C. Hubbard, has stated that the United States Republic of the Philippines and the United States, entered into on
government has fully committed to living up to the terms of the VFA. For February 10, 1998, is constitutional, but the Romulo-Kenney
as long as the United States of America accepts or acknowledges the Agreements of December 19 and 22, 2006 are DECLARED not in
VFA as a treaty, and binds itself further to comply with its obligations accordance with the VFA.
under the treaty, there is indeed marked compliance with the mandate
of the Constitution. VFA is Constitutional
SALONGA V. SMITH
The SC ruled that “the VFA was duly concurred in by the Philippine
Lance Corporal Daniel Smith, member of the US Armed Forces, Senate and has been recognized as a treaty by the United States,” and
was found guilty beyond reasonable doubt of the crime of rape in “the fact that (it) was not submitted for advice and consent of the
the RTC of Makati. The court ordered Smith detained at the Makati United States does not detract from its status as a binding international
City Jail until further orders. agreement or treaty recognized by the said State.”

On December 19 and 22, 2006, Philippine Foreign Affairs Section 25, Article XVIII, 1987 Constitution provides that “foreign
Secretary Alberto Romulo and US Ambassador Kristie Kenney military bases, troops, or facilities shall not be allowed in the
executed agreements that pursuant to the VFA, Smith be returned Philippines except under a treaty duly concurred in by the Senate and,
to the US military custody and be detained at the first floor, Rowe when the Congress so requires, ratified by a majority of the votes cast
Building, US Embassy Compound. by the people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State.”
Petitioner Jovito Salonga, et al. challenged the validity of the said
agreements contending that the Philippines should have custody The issue, the Court said, is “whether or not the presence of the US
of Smith because, first of all, the VFA is void and unconstitutional Armed Forces in Philippine territory pursuant to the VFA is allowed
since it violates Art. XVlll, Sec. 25 of the constitution. ‘under a treaty duly concurred in by the Senate and recognized as a
treaty by the other contracting State.’” “It is,” the Court ruled. “The VFA,
Is the VFA constitutional? Granting that it is constitutional, Are which is the instrument agreed upon to provide for the joint RP-US
the Romulo-Kenney Agreements in accordance with the military exercises, is simply an implementing agreement to the main
provisions of the VFA itself? RP-US Mutual Defense Treaty,” the Court held. visit
fellester.blogspot.com The RP-US Mutual Defense Treaty of August
SUGGESTED ANSWER: 30, 1951 was signed and duly ratified with the concurrence of both the
Philippine Senate and the United States Senate.
Romulo-Kenney Agreements not in accord with the VFA itself On December 28, 2000, the RP, through Charge d’Affaires Enrique A.
Manalo, signed the Rome Statute which, by its terms, is “subject to
The Court however ruled that “the Romulo-Kenney Agreements of ratification, acceptance or approval” by the signatory states. As of the
December 19 and 22, 2006, which are agreements on the detention of filing of the instant petition, only 92 out of the 139 signatory countries
the accused in the United States Embassy, are not in accord with the appear to have completed the ratification, approval and concurrence
VFA itself because such detention is not “by Philippine authorities.” process. The Philippines is not among the 92.
RP-US Non-Surrender Agreement
Article V, Section 10 of the VFA provides that “the confinement or
detention by Philippine authorities of the United States personnel shall
be carried out in facilities agreed on by appropriate Philippines and On May 9, 2003, then Ambassador Francis J. Ricciardone sent US
United States authorities.” (Suzette Nicolas y Sombilon Vs. Alberto Embassy Note No. 0470 to the Department of Foreign Affairs (DFA)
Romulo, G.R. No. 175888, February 11, 2009) proposing the terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the RP.
Bayan Muna vs Romulo Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N
G. R. No. 159618, February 01, 2011 BFO-028-03, hereinafter), the RP, represented by then DFA Secretary
Ople, agreed with and accepted the US proposals embodied under the
Facts: US Embassy Note adverted to and put in effect the Agreement with the
Petitioner Bayan Muna is a duly registered party-list group established US government. In esse, the Agreement aims to protect what it refers
to represent the marginalized sectors of society. Respondent Blas F. to and defines as “persons” of the RP and US from frivolous and
Ople, now deceased, was the Secretary of Foreign Affairs during the harassment suits that might be brought against them in international
period material to this case. Respondent Alberto Romulo was tribunals.8 It is reflective of the increasing pace of the strategic security
impleaded in his capacity as then Executive Secretary. 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.
Rome Statute of the International Criminal Court

The Agreement pertinently provides as follows:


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 1. For purposes of this Agreement, “persons” are current or former
international concern x x x and shall be complementary to the national Government officials, employees (including contractors), or military
criminal jurisdictions.” The serious crimes adverted to cover those personnel or nationals of one Party.
considered grave under international law, such as genocide, crimes
against humanity, war crimes, and crimes of aggression.
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 replied in his letter of October 28, 2003 that the exchange of diplomatic
tribunal for any purpose, unless such tribunal has been established by notes constituted a legally binding agreement under international law;
the UN Security Council, or 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
(b) be surrendered or transferred by any means to any other entity or
respondents in concluding and ratifying the Agreement and prays that
third country, or expelled to a third country, for the purpose of
it be struck down as unconstitutional, or at least declared as without
surrender to or transfer to any international tribunal, unless such
force and effect.
tribunal has been established by the UN Security Council.

Issue: Whether or not the RP-US NON SURRENDER AGREEMENT


3. When the [US] extradites, surrenders, or otherwise transfers a
is void ab initio for contracting obligations that are either immoral or
person of the Philippines to a third country, the [US] will not agree to
otherwise at variance with universally recognized principles of
the surrender or transfer of that person by the third country to any
international law.
international tribunal, unless such tribunal has been established by the
Ruling: The petition is bereft of merit.
UN Security Council, absent the express consent of the Government of
Validity of the RP-US Non-Surrender Agreement
the Republic of the Philippines [GRP].

Petitioner’s initial challenge against the Agreement relates to form, its


4. When the [GRP] extradites, surrenders, or otherwise transfers a
threshold posture being that E/N BFO-028-03 cannot be a valid
person of the [USA] to a third country, the [GRP] will not agree to the
medium for concluding the Agreement.
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 Petitioners’ contention––perhaps taken unaware of certain well-
the [US]. 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
5. This Agreement shall remain in force until one year after the date on
adopts the generally accepted principles of international law and
which one party notifies the other of its intent to terminate the
international jurisprudence as part of the law of the land and adheres
Agreement. The provisions of this Agreement shall continue to apply
to the policy of peace, cooperation, and amity with all nations. An
with respect to any act occurring, or any allegation arising, before the
exchange of notes falls “into the category of inter-governmental
effective date of termination.
agreements,” which is an internationally accepted form of international
agreement. The United Nations Treaty Collections (Treaty Reference
In response to a query of then Solicitor General Alfredo L. Benipayo on Guide) defines the term as follows:
the status of the non-surrender agreement, Ambassador Ricciardone
An “exchange of notes” is a record of a routine agreement, that has Agreement Not Immoral/Not at Variance
many similarities with the private law contract. The agreement consists with Principles of International Law
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
Petitioner urges that the Agreement be struck down as void ab initio for
the usual procedure, the accepting State repeats the text of the
imposing immoral obligations and/or being at variance with allegedly
offering State to record its assent. The signatories of the letters may be
universally recognized principles of international law. The immoral
government Ministers, diplomats or departmental heads. The
aspect proceeds from the fact that the Agreement, as petitioner would
technique of exchange of notes is frequently resorted to, either
put it, “leaves criminals immune from responsibility for unimaginable
because of its speedy procedure, or, sometimes, to avoid the process
atrocities that deeply shock the conscience of humanity; x x x it
of legislative approval.
precludes our country from delivering an American criminal to the [ICC]
x x x.”63
In another perspective, the terms “exchange of notes” and “executive
agreements” have been used interchangeably, exchange of notes
The above argument is a kind of recycling of petitioner’s earlier
being considered a form of executive agreement that becomes binding
position, which, as already discussed, contends that the RP, by
through executive action. On the other hand, executive agreements
entering into the Agreement, virtually abdicated its sovereignty and in
concluded by the President “sometimes take the form of exchange of
the process undermined its treaty obligations under the Rome Statute,
notes and at other times that of more formal documents denominated
contrary to international law principles.
‘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 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
The point where ordinary correspondence between this and other
under its national law. x x x The agreement is a recognition of the
governments ends and agreements – whether denominated executive
primacy and competence of the country’s judiciary to try offenses
agreements or exchange of notes or otherwise – begin, may
under its national criminal laws and dispense justice fairly and
sometimes be difficult of ready ascertainment. x x x
judiciously.”
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 Petitioner, we believe, labors under the erroneous impression that the
recognized mode of concluding a legally binding international written Agreement would allow Filipinos and Americans committing high
contract among nations. 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 On 1 October 2003, the Chinese Ambassador to the Philippines, Wang
formalities necessary to bind both countries to the Rome Statute have Chungui (Amb. Wang), wrote a letter to DOF Secretary Jose Isidro
been met. For perspective, what the Agreement contextually prohibits Camacho (Sec. Camacho) informing him of CNMEG’s designation as
is the surrender by either party of individuals to international tribunals, the Prime Contractor for the Northrail Project.
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 On 30 December 2003, Northrail and CNMEG executed a Contract
things, there is nothing immoral or violative of international law Agreement for the construction of Section I, Phase I of the North Luzon
concepts in the act of the Philippines of assuming criminal jurisdiction Railway System from Caloocan to Malolos on a turnkey basis (the
pursuant to the non-surrender agreement over an offense considered Contract Agreement).7 The contract price for the Northrail Project was
criminal by both Philippine laws and the Rome Statute. pegged at USD 421,050,000.

On 26 February 2004, the Philippine government and EXIM Bank


China National Machinery v. Santamaria entered into a counterpart financial agreement – Buyer Credit Loan
Agreement No. BLA 04055 (the Loan Agreement). In the Loan
Facts: On 14 September 2002, petitioner China National Machinery & Agreement, EXIM Bank agreed to extend Preferential Buyer’s Credit in
Equipment Corp. (Group) (CNMEG), represented by its chairperson, the amount of USD 400,000,000 in favor of the Philippine government
Ren Hongbin, entered into a Memorandum of Understanding with the in order to finance the construction of Phase I of the Northrail Project.
North Luzon Railways Corporation (Northrail), represented by its
president, Jose L. Cortes, Jr. for the conduct of a feasibility study on a On 13 February 2006, respondents filed a Complaint for Annulment of
possible railway line from Manila to San Fernando, La Union (the Contract and Injunction with Urgent Motion for Summary Hearing to
Northrail Project). Determine the Existence of Facts and Circumstances Justifying the
Issuance of Writs of Preliminary Prohibitory and Mandatory Injunction
On 30 August 2003, the Export Import Bank of China (EXIM Bank) and and/or TRO against CNMEG, the Office of the Executive Secretary, the
the Department of Finance of the Philippines (DOF) entered into a DOF, the Department of Budget and Management, the National
Memorandum of Understanding (Aug 30 MOU), wherein China agreed Economic Development Authority and Northrail. The case was filed
to extend Preferential Buyer’s Credit to the Philippine government to before the Regional Trial Court, National Capital Judicial Region, Makati
finance the Northrail Project.3 The Chinese government designated City, Branch 145 (RTC Br. 145). In the Complaint, respondents alleged
EXIM Bank as the lender, while the Philippine government named the that the Contract Agreement and the Loan Agreement were void for
DOF as the borrower. Under the Aug 30 MOU, EXIM Bank agreed to being contrary to (a) the Constitution; (b) Republic Act No. 9184 (R.A.
extend an amount not exceeding USD 400,000,000 in favor of the DOF, No. 9184), otherwise known as the Government Procurement Reform
payable in 20 years, with a 5-year grace period, and at the rate of 3% Act; (c) Presidential Decree No. 1445, otherwise known as the
per annum. Government Auditing Code; and (d) Executive Order No. 292, otherwise
known as the Administrative Code.
On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying suit, and the Contract Agreement is not an executive agreement.
CNMEG’s Motion to Dismiss and setting the case for summary hearing CNMEG’s prayer for the issuance of a TRO and/or Writ of Preliminary
to determine whether the injunctive reliefs prayed for should be issued. Injunction is DENIED for being moot and academic.
CNMEG then filed a Motion for Reconsideration, which was denied by
the trial court in an Order dated 10 March 2008. Thus, CNMEG filed The Court explained the doctrine of sovereign immunity in Holy
before the CA a Petition for Certiorari with Prayer for the Issuance of See v. Rosario, to wit:
TRO and/or Writ of Preliminary Injunction dated 4 April 2008.
There are two conflicting concepts of sovereign immunity, each widely
the appellate court dismissed the Petition for Certiorari. Subsequently, held and firmly established. According to the classical or absolute
CNMEG filed a Motion for Reconsideration, which was denied by the CA theory, a sovereign cannot, without its consent, be made a
in a Resolution dated 5 December 2008. respondent in the courts of another sovereign. According to the
newer or restrictive theory, the immunity of the sovereign is
Petitioners Argument: Petitioner claims that the EXIM Bank extended recognized only with regard to public acts or acts jure imperii of a
financial assistance to Northrail because the bank was mandated by the state, but not with regard to private acts or acts jure gestionis.
Chinese government, and not because of any motivation to do business (Emphasis supplied; citations omitted.)
in the Philippines, it is clear from the foregoing provisions that the Northrail
Project was a purely commercial transaction. As it stands now, the application of the doctrine of immunity from suit
has been restricted to sovereign or governmental activities (jure imperii).
Respondents Argument: respondents alleged that the Contract The mantle of state immunity cannot be extended to commercial, private
Agreement and the Loan Agreement were void for being contrary to (a) and proprietary acts (jure gestionis).
the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184), otherwise
known as the Government Procurement Reform Act; (c) Presidential Since the Philippines adheres to the restrictive theory, it is crucial
Decree No. 1445, otherwise known as the Government Auditing Code; to ascertain the legal nature of the act involved – whether the entity
and (d) Executive Order No. 292, otherwise known as the Administrative claiming immunity performs governmental, as opposed to proprietary,
Code. functions. As held in United States of America v. Ruiz

Issues: Whether or not petitioner CNMEG is an agent of the sovereign Admittedly, the Loan Agreement was entered into between EXIM
People’s Republic of China. Bank and the Philippine government, while the Contract Agreement was
between Northrail and CNMEG. Although the Contract Agreement is
Whether or not the Northrail contracts are products of an executive silent on the classification of the legal nature of the transaction, the
agreement between two sovereign states. foregoing provisions of the Loan Agreement, which is an inextricable part
of the entire undertaking, nonetheless reveal the intention of the parties
Ruling: The instant Petition is DENIED. Petitioner China National to the Northrail Project to classify the whole venture as commercial or
Machinery & Equipment Corp. (Group) is not entitled to immunity from proprietary in character.
Thus, piecing together the content and tenor of the Contract
Agreement, the Memorandum of Understanding dated 14 September
2002, Amb. Wang’s letter dated 1 October 2003, and the Loan
Agreement would reveal the desire of CNMEG to construct the Luzon
Railways in pursuit of a purely commercial activity performed in the
ordinary course of its business.

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