Bayan vs Executive Secretary, G.R. No. 138570.

October
10, 2000. 342 SCRA 449
Facts:
On March 14, 1947, the Philippines and the United States of
America forged a Military Bases Agreement which
formalized, among others, the use of installations in the
Philippine territory by United States military personnel. In
view of the impending expiration of the RP-US Military Bases
Agreement in 1991, the Philippines and the United States
negotiated for a possible extension of the military bases
agreement. On September 16, 1991, the Philippine Senate
rejected the proposed RP-US Treaty of Friendship,
Cooperation and Security which, in effect, would have
extended the presence of US military bases in the
Philippines. On July 18, 1997, the United States panel,
headed by US Defense Deputy Assistant Secretary for Asia
Pacific Kurt Campbell, met with the Philippine panel, headed
by Foreign Affairs Undersecretary Rodolfo Severino Jr., to
exchange notes on the complementing strategic interests of
the United States and the Philippines in the Asia-Pacific
region. Both sides discussed, among other things, the
possible elements of the Visiting Forces Agreement (VFA for
brevity). Thereafter, then President Fidel V. Ramos approved
the VFA, which was respectively signed by public
respondent Secretary Siazon and Unites States Ambassador
Thomas Hubbard. On October 5, 1998, President Joseph E.
Estrada, through respondent Secretary of Foreign Affairs,
ratified the VFA. On October 6, 1998, the President, acting
through respondent Executive Secretary Ronaldo Zamora,
officially transmitted to the Senate of the Philippines, the
Instrument of Ratification, the letter of the President and the
VFA, for concurrence pursuant to Section 21, Article VII of
the 1987 Constitution

(2) whether the VFA is governed by the provisions of Section

21, Article VII or of Section 25, Article XVIII of the
Constitution;
(3) and whether or not the Supreme Court has jurisdiction.
Ruling:
(1) No. Petitioners failed to show that they have sustained,
or are in danger of sustaining any direct injury as a result of
the enforcement of the VFA. As taxpayers, petitioners have
not established that the VFA involves the exercise by
Congress of its taxing or spending powers. On this point, it
bears stressing that a taxpayers suit refers to a case where
the act complained of directly involves the illegal
disbursement of public funds derived from taxation.
(2) Yes.The fact that the President referred the VFA to the
Senate under Section 21, Article VII, and that the Senate
extended its concurrence under the same provision, is
immaterial. For in either case, whether under Section 21,
Article VII or Section 25, Article XVIII, the fundamental law is
crystalline that the concurrence of the Senate is mandatory
to comply with the strict constitutional requirements.
(3) No. In fine, absent any clear showing of grave abuse of
discretion on the part of respondents, the Court as the final
arbiter of legal controversies and staunch sentinel of the
rights of the people is then without power to conduct an
incursion and meddle with such affairs purely executive and
legislative in character and nature. For the Constitution no
less, maps out the distinct boundaries and limits the metes
and bounds within which each of the three political branches
of government may exercise the powers exclusively and
essentially conferred to it by law.

Issues (justiciable controversy):

(1) Whether or not petitioners have legal standing as
concerned citizens, taxpayers, or legislators to question the
constitutionality of the VFA;

Pimentel vs. Executive Secretary

Facts
This is a petition of Senator Aquilino Pimentel and the other
parties to ask the Supreme Court to require the Executive
Department to transmit the Rome Statute which established

the International Criminal Court for the Senates concurrence

in accordance with Sec 21, Art VII of the 1987 Constitution.
It is the theory of the petitioners that ratification of a treaty,
under both domestic law and international law, is a function
of the Senate. Hence, it is the duty of the executive
department to transmit the signed copy of the Rome Statute
to the Senate to allow it to exercise its discretion with respect
to ratification of treaties. Moreover, petitioners submit that
the Philippines has a ministerial duty to ratify the Rome
Statute under treaty law and customary international law.
Petitioners invoke the Vienna Convention on the Law of
Treaties enjoining the states to refrain from acts which would
defeat the object and purpose of a treaty when they have
signed the treaty prior to ratification unless they have made
their intention clear not to become parties to the treaty.[5]
The Office of the Solicitor General, commenting for the
respondents, questioned the standing of the petitioners to
file the instant suit. It also contended that the petition at bar
violates the rule on hierarchy of courts. On the substantive
issue raised by petitioners, respondents argue that the
executive department has no duty to transmit the Rome
Statute to the Senate for concurrence.
Issue
Whether or not the executive department has a ministerial
duty to transmit the Rome Statute (or any treaty) to the
Senate for concurrence.
Ruling
The petition was dismissed. The Supreme Court ruled that
the the President, being the head of state, is regarded as the
sole organ and authority in external relations and is the
countrys sole representative with foreign nations. As the
chief architect of foreign policy, the President acts as the
countrys mouthpiece with respect to international affairs.
Hence, the President is vested with the authority to deal with
foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties,
and otherwise transact the business of foreign relations. In
the realm of treaty-making, the President has the sole
authority to negotiate with other states.

Nonetheless, while the President has the sole authority to

negotiate and enter into treaties, the Constitution provides a
limitation to his power by requiring the concurrence of 2/3 of
all the members of the Senate for the validity of the treaty
entered into by him. Section 21, Article VII of the 1987
Constitution provides that no treaty or international
agreement shall be valid and effective unless concurred in
by at least two-thirds of all the Members of the Senate.
Justice Isagani Cruz, in his book on International Law,
describes the treaty-making process in this wise:
The usual steps in the treaty-making process are:
negotiation, signature, ratification, and exchange of the
instruments of ratification. The treaty may then be submitted
for registration and publication under the U.N. Charter,
although this step is not essential to the validity of the
agreement as between the parties.
Negotiation may be undertaken directly by the head of state
but he now usually assigns this task to his authorized
representatives. These representatives are provided with
credentials known as full powers, which they exhibit to the
other negotiators at the start of the formal discussions. It is
standard practice for one of the parties to submit a draft of
the proposed treaty which, together with the counterproposals, becomes the basis of the subsequent
negotiations. The negotiations may be brief or protracted,
depending on the issues involved, and may even collapse
in case the parties are unable to come to an agreement on
the points under consideration.
If and when the negotiators finally decide on the terms of the
treaty, the same is opened for signature. This step is
primarily intended as a means of authenticating the
instrument and for the purpose of symbolizing the good faith
of the parties; but, significantly, it does not indicate the final
consent of the state in cases where ratification of the treaty
is required. The document is ordinarily signed in accordance
with the alternate, that is, each of the several negotiators is
allowed to sign first on the copy which he will bring home to
his own state.
Ratification, which is the next step, is the formal act by which
a state confirms and accepts the provisions of a treaty

concluded by its representatives. The purpose of ratification

is to enable the contracting states to examine the treaty
more closely and to give them an opportunity to refuse to be
bound by it should they find it inimical to their interests. It is
for this reason that most treaties are made subject to the
scrutiny and consent of a department of the government
other than that which negotiated them.
The last step in the treaty-making process is the exchange of
the instruments of ratification, which usually also signifies the
effectivity of the treaty unless a different date has been
agreed upon by the parties. Where ratification is dispensed
with and no effectivity clause is embodied in the treaty, the
instrument is deemed effective upon its signature.
Petitioners arguments equate the signing of the treaty by the
Philippine representative with ratification. It should be
underscored that the signing of the treaty and the ratification
are two separate and distinct steps in the treaty-making
process. As earlier discussed, the signature is primarily
intended as a means of authenticating the instrument and as
a symbol of the good faith of the parties. It is usually
performed by the states authorized representative in the
diplomatic mission. Ratification, on the other hand, is the
formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representative.
It should be emphasized that under our Constitution, the
power to ratify is vested in the President, subject to the
concurrence of the Senate. The role of the Senate, however,
is limited only to giving or withholding its consent, or
concurrence, to the ratification. Hence, it is within the
authority of the President to refuse to submit a treaty to the
Senate or, having secured its consent for its ratification,
refuse to ratify it. Although the refusal of a state to ratify a
treaty which has been signed in its behalf is a serious step
that should not be taken lightly, such decision is within the
competence of the President alone, which cannot be
encroached by this Court via a writ of mandamus. This Court
has no jurisdiction over actions seeking to enjoin the
President in the performance of his official duties.

Tanada vs Angara
FACTS
The suit was filed to nullify the concurrence of the
Philippines Senate to the Presidents Ratification of the
Agreement establishing the World Trade Organization. It was
contended that the agreement places nationals and products
of member countries on the same footing as Filipinos and
local products in contravention of the Filipino First Policy.
Petitioners maintained that this Agreement was an assault
on the sovereign powers of the Philippines because it meant
that Congress could not pass legislation that would be good
for national interest and general welfare if such legislation
would not conform to the WTO Agreement.
ISSUE
Whether the provisions of the WTO Agreement and its
annexes limit, restrict, or impair the exercise of legislative
power by Congress.
HELD
While sovereignty has traditionally been deemed absolute
and all-encompassing on the domestic level, it is however
subject to limitations and restrictions voluntarily agreed to by
the Philippines as a member of the family of nations. One of
the oldest and most fundamental rules in international law is
pacta sunt servanda international agreements must be
performed in good faith. A treaty engagement is not a mere
moral obligation but creates a legally binding obligation on
the parties xxx. A state which has contracted valid
international obligations is bound to make in its legislation
such modifications as may be necessary to ensure the
fulfillment of the obligations undertaken.
By their inherent nature, treaties really limit or restrict the
absoluteness of sovereignty. By their voluntary act, nations
may surrender some aspects of their state power in
exchange for greater benefits granted by or derived from a
convention or pact. After all, states, like individuals live with
coequals, and in pursuit of mutuality covenanted objectives

and benefits, they also commonly agree to limit the exercise

of their otherwise absolute rights.
The sovereignty of a state therefore cannot in fact and in
reality be considered absolute. Certain restrictions enter into
the picture: (1) limitations imposed by the very nature of
membership in the family of nations and (2) limitations
imposed by treaty stipulations.

Lim vs Executive Secretary

Facts:
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 partylist organizations, who filed a petition-in-intervention. 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.
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.

and personally can validly bind the country. Hence, they

would like Cuisia et al to stop acting pursuant to the scheme.

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

Whether or not the president can validly delegate her debt

power to the respondents.

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.

Constantino vs Cuisia
Facts
Dring the Aquino regime, her administration came up w/ a
scheme to reduce the countrys external debt. The solution
resorted to was to incur foreign debts. Three restructuring
programs were sought to initiate the program for foreign
debts they are basically buyback programs & bondconversion programs). Constantino as a taxpayer and in
behalf of his minor children who are Filipino citizens,
together w/ FFDC averred that the buyback and bondconversion schemes are onerous and they do not constitute
the loan contract or guarantee contemplated in Sec. 20,
Art. 7 of the Constitution. And assuming that the President
has such power unlike other powers which may be validly
delegated by the President, the power to incur foreign debts
is expressly reserved by the Constitution in the person of the
President. They argue that the gravity by which the exercise
of the power will affect the Filipino nation requires that the
President alone must exercise this power. They argue that
the requirement of prior concurrence of an entity specifically
named by the Constitutionthe Monetary Boardreinforces
the submission that not respondents but the President alone

ISSUE:

HELD:
There is no question that the president has borrowing
powers and that the president may contract or guarantee
foreign loans in behalf of this country w/ prior concurrence of
the Monetary Board. It makes no distinction whatsoever and
the fact that a debt or a loan may be onerous is irrelevant.
On the other hand, the president can delegate this power to
her direct subordinates. The evident exigency of having the
Secretary of Finance implement the decision of the
President to execute the debt-relief contracts is made
manifest by the fact that the process of establishing and
executing a strategy for managing the governments debt is
deep within the realm of the expertise of the Department of
Finance, primed as it is to raise the required amount of
funding, achieve its risk and cost objectives, and meet any
other sovereign debt management goals. If the President
were to personally exercise every aspect of the foreign
borrowing power, he/she would have to pause from running
the country long enough to focus on a welter of timeconsuming detailed activitiesthe propriety of
incurring/guaranteeing loans, studying and choosing among
the many methods that may be taken toward this end,
meeting countless times with creditor representatives to
negotiate, obtaining the concurrence of the Monetary Board,
explaining and defending the negotiated deal to the public,
and more often than not, flying to the agreed place of
execution to sign the documents. This sort of constitutional
interpretation would negate the very existence of cabinet
positions and the respective expertise which the holders
thereof are accorded and would unduly hamper the
Presidents effectivity in running the government. The act of
the respondents are not unconstitutional.
Exception
There are certain acts which, by their very nature, cannot be

validated by subsequent approval or ratification by the

President. There are certain constitutional powers and
prerogatives of the Chief Executive of the Nation which must
be exercised by him in person and no amount of approval or
ratification will validate the exercise of any of those powers
by any other person. Such, for instance, in his power to
suspend the writ of habeas corpus and proclaim martial law
and the exercise by him of the benign prerogative of pardon
(mercy).

There are certain presidential powers which arise out of

exceptional circumstances, and if exercised, would involve
the suspension of fundamental freedoms, or at least call for
the supersedence of executive prerogatives over those
exercised by co-equal branches of government. The
declaration of martial law, the suspension of the writ of
habeas corpus, and the exercise of the pardoning power
notwithstanding the judicial determination of guilt of the
accused, all fall within this special class that demands the
exclusive exercise by the President of the constitutionally
vested power. The list is by no means exclusive, but there
must be a showing that the executive power in question is of
similar gravitas and exceptional import.

Abaya vs Sec Ebdane Jr

Facts:
The Government of Japan and the Government of the
Philippines, through their respective representatives, namely,
Mr. Yoshihisa Ara, Ambassador Extraordinary and
Plenipotentiary of Japan to the Republic of the Philippines,
and then Secretary of Foreign Affairs Domingo L. Siazon,
have reached an understanding concerning Japanese loans
to be extended to the Philippines. These loans were aimed
at promoting our countrys economic stabilization and
development efforts.
The assailed resolution recommended the award to private
respondent 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 (Codon)-Virac-Jct. Bago-Viga road, with
the length of 79.818 kilometers, in the island province of
Catanduanes.The DPWH caused the publication of the
Invitation to Prequalify and to Bid for the implementation of
the CP I project, in two leading national newspapers,
namely, the Manila Times and Manila Standard on
November 22 and 29, and December 5, 2002.
A total of twenty-three (23) foreign and local contractors
responded to the invitation by submitting their accomplished
prequalification documents on January 23, 2003. In
accordance with the established prequalification criteria,
eight contractors were evaluated or considered eligible to bid
as concurred by the JBIC. Prior to the opening of the
respective bid proposals, it was announced that the
Approved Budget for the Contract (ABC) was in the amount
of P738,710,563.67.
The bid goes to private respondent China Road & Bridge
Corporation was corrected from the original
P993,183,904.98 (with variance of 34.45% from the ABC) to
P952,564,821.71 (with variance of 28.95% from the ABC)
based on their letter clarification dated April 21, 2004.
The petitioners anchor the instant petition on the contention
that the award of the contract to private respondent China
Road & Bridge Corporation violates RA 9184, particularly
Section 31 thereof which reads:
SEC. 31. Ceiling for Bid Prices. The ABC shall be the
upper limit or ceiling for the Bid prices. Bid prices that
exceed this ceiling shall be disqualified outright from further
participating in the bidding. There shall be no lower limit to
the amount of the award.
The petitioners insist that Loan Agreement is neither an
international nor an executive agreement that would bar the
application of RA 9184. They point out that to be considered
a treaty, an international or an executive agreement, the
parties must be two sovereigns or States whereas in the
case of Loan Agreement No. PH-P204, the parties are the
Philippine Government and the JBIC, a banking agency of

Japan, which has a separate juridical personality from the

Japanese Government.
The respondents however contend that foreign loan
agreements, including Loan Agreement No. PH-P204, as
executive agreements and, as such, should be observed
pursuant to the fundamental principle in international law of
pacta sunt servanda. The Constitution, the public
respondents emphasize, recognizes the enforceability of
executive agreements in the same way that it recognizes
generally accepted principles of international law as forming
part of the law of the land.34 This recognition allegedly
buttresses the binding effect of executive agreements to
which the Philippine Government is a signatory. It is pointed
out by the public respondents that executive agreements are
essentially contracts governing the rights and obligations of
the parties. A contract, being the law between the parties,
must be faithfully adhered to by them. Guided by the
fundamental rule of pacta sunt servanda, the Philippine
Government bound itself to perform in good faith its duties
and obligations under Loan Agreement.
Issue :

Whether or not the the loan agreement violates RA 9184.

Ruling:
The court ruled in favor of the respondents.
Significantly, an exchange of notes is considered a form of
an executive agreement, which becomes binding through
executive action without the need of a vote by the Senate or
Congress. executive agreements, They sometimes take the
form of exchange of notes and at other times that of more
formal documents denominated agreements or protocols.
The fundamental principle of international law of pacta sunt
servanda, which is, in fact, embodied in Section 4 of RA
9184 as it provides that [a]ny treaty or international or
executive agreement affecting the subject matter of this Act
to which the Philippine government is a signatory shall be

observed, the DPWH, as the executing agency of the

projects financed by Loan Agreement No. PH-P204, rightfully
awarded the contract for the implementation of civil works for
the CP I project to private respondent China Road & Bridge
Corporation.
Pharmaceutical and Health Care Association of the
Philippines vs. Duque
Facts
Named as respondents are the Health Secretary,
Undersecretaries, and Assistant Secretaries of the
Department of Health (DOH). For purposes of herein
petition, the DOH is deemed impleaded as a co-respondent
since respondents issued the questioned RIRR in their
capacity as officials of said executive agency.1Executive
Order No. 51 (Milk Code) was issued by President Corazon
Aquino on October 28, 1986 by virtue of the legislative
powers granted to the president under the Freedom
Constitution. One of the preambular clauses of 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.In 1990, 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. On May 15, 2006, the DOH issued herein
assailed RIRR which was to take effect on July 7, 2006.
Issue:
Whether Administrative Order or the Revised Implementing
Rules and Regulations (RIRR) issued by the Department of
Health (DOH) is not constitutional;
Held:

YES
under Article 23, recommendations of the WHA do not come
into force for members,in the same way that conventions or
agreements under Article 19 and regulations under Article 21
come into force. Article 23 of the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make
recommendations to Members with respect to any matter
within the competence of the Organization
for an international rule to be considered as customary law, it
must be established that such rule is being followed by
states because they consider it obligatory to comply with
such rules
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. The incorporation method applies when, by
mere constitutional declaration, international law is deemed
to have the force of domestic law.
Consequently, legislation is necessary to transform the
provisions of the WHA Resolutions into domestic law. 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

North cotabato vs. GRP gr no. 183591

FACTS: The Memorandum of Agreement on the Ancestral
Domain (MOA-AD) brought about by the Government of the
republic of the Philippines (GRP) and the Moro Islamic
Liberation Front (MILF) as an aspect of Tripoli Agreement of
Peace in 2001 is scheduled to be signed in Kuala Lumpur,
Malaysia.
This agreement was petitioned by the Province of North
Cotabato for Mandamus and Prohibition with Prayer for the
Issuance of Writ of Preliminary Injunction and Temporary

Restraining Order. The agreement mentions "Bangsamoro

Juridical Entity" (BJE) to which it grants the authority and
jurisdiction over the Ancestral Domain and Ancestral Lands
of the Bangsamoro; authority and jurisdiction over all natural
resources within internal waters. The agreement is
composed of two local statutes: the organic act for
autonomous region in Muslim Mindanao and the Indigenous
Peoples Rights Act (IPRA).
ISSUE: Whether or not the GRP violated the Constitutional
and statutory provisions on public consultation and the right
to information when they negotiated and initiated the MOAAD and Whether or not the MOA-AD brought by the GRP
and MILF is constitutional
HELD:GRP violated the Constitutional and statutory
provisions on public consultation and the right to information
when they negotiated and initiated the MOA-AD and it are
unconstitutional because it is contrary to law and the
provisions of the constitution thereof.
REASONING: The GRP is required by this law to carry out
public consultations on both national and local levels to build
consensus for peace agenda and process and the
mobilization and facilitation of peoples participation in the
peace process.
Article III (Bill of Rights)
Sec. 7. The right of people on matters of public concern shall
be recognized, access to official records and to documents
and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as
basis for policy development shall be afforded the citizen,
subject to such limitations as may be provided by law.
Article II
Sec. 28. Subject to reasonable conditions prescribed by
law , that state adopts and implements a policy of full public
disclosure of all its transactions involving public interest.
LGC (1991), require all national agencies and officers to
conduct periodic consultations. No project or program be

implemented unless such consultations are complied with

and approval mus be obtained.
Article VII (Executive Department)
Sec. 21. No treaty or international agreement shall be valid
and effective unless concurred in by at least two-thirds of all
the Members of the Senate.
Article X. (Local Government)
Sec. 1. The territorial and political subdivisions of the
Republic of the Philippines are the province, cities,
municipalities and barangays. There shall be autonomous
regions on Muslim Mindanao and the Cordillera as
hereinafter provided.

Sec. 15. There shall be created autonomous regions in

Muslim Mindanao and in the Cordilleras consisting of
provinces, cities, municipalities and geographical areas
sharing common and distinctive historical and cultural
heritage, economic and social structures and other relevant
characteristics within the framework of this constitution and
the national sovereignty as well as territorial integrity of the
Republic of the Philippines.
Section 16. The President shall exercise general supervision
over autonomous regions to ensure that laws are faithfully
executed.

Sec. 18. The creation of autonomous region shall be

effective when approved by a majority of the votes cast by
the constituents units in a plebiscite called for the purpose,
provided that only provinces, cities and geographic areas
voting favourably in such plebiscite shall be included in the
autonomous region.
Sec. 20. Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the organic
act of autonomous regions shall provide for legislative
powers over:

1. Administrative organization;
2. Creation of sources of revenues;
3. Ancestral domain and natural resources;
4. Personal, family, and property relations;
5. Regional urban and rural planning development;
6. Economic, social, and tourism development;
7. Educational policies;
8. Preservation and development of the cultural heritage;
and
9. Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the region.

Bayan Muna vs Romulo

The President has sole authority in the treaty-making.

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.

ARTICLE XVII (AMENDMENTS OR REVISIONS)

Section 1. Any amendment to, or revision of, this
Constitution may be proposed by:
1. The Congress, upon a vote of three-fourths of all its
Members; or
2. A constitutional convention.
Section 4. Any amendment to, or revision of, this
Constitution under Section 1 hereof shall be valid when
ratified by a majority of the votes cast in a plebiscite which
shall be held not earlier than sixty days nor later than ninety
days after the approval of such amendment or revision.

MOA-AD states that all provisions thereof which cannot be

reconciled with the present constitution and laws shall come
into force upon signing of a comprehensive compact and
upon effecting the necessary changes to the legal
framework. The presidents authority is limited to proposing
constitutional amendments. She cannot guarantee to any
third party that the required amendments will eventually be
put in place nor even be submitted to a plebiscite. MOA-AD
itself presents the need to amend therein.

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

On December 28, 2000, the RP, through Charge dAffaires

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.

any allegation arising, before the effective date of

termination.

Nations Treaty Collections (Treaty Reference Guide) defines

the term as follows:

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.

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.

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:

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].

The petition is bereft of merit.

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].

Petitioners contentionperhaps taken unaware of certain

well-recognized international doctrines, practices, and
jargonsis 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 intergovernmental agreements, which is an internationally
accepted form of international agreement. The United

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

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.

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 BFO028-03be it viewed as the Non-Surrender Agreement
itself, or as an integral instrument of acceptance thereof or
as consent to be boundis a recognized mode of
concluding a legally binding international written contract
among nations.
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; 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 petitioners
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 countrys 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 non-surrender
agreement over an offense considered criminal by both
Philippine laws and the Rome Statute.

China National Machinery vs Santa Maria

Facts:
On 14 September 2002, petitioner China National Machinery
& Equipment Corp. (Group) (CNMEG), represented by its
chairperson, Ren Hongbin, entered into a Memorandum of
Understanding with the North Luzon Railways Corporation
(Northrail), represented by its president, Jose L. Cortes, Jr.
for the conduct of a feasibility study on a possible railway
line from Manila to San Fernando, La Union (the Northrail
Project).
On 30 August 2003, the Export Import Bank of China (EXIM
Bank) and the Department of Finance of the Philippines
(DOF) entered into a Memorandum of Understanding (Aug
30 MOU), wherein China agreed to extend Preferential
Buyers Credit to the Philippine government to finance the
Northrail Project.3 The Chinese government designated
EXIM Bank as the lender, while the Philippine government
named the DOF as the borrower. Under the Aug 30 MOU,
EXIM Bank agreed to extend an amount not exceeding USD
400,000,000 in favor of the DOF, payable in 20 years, with a
5-year grace period, and at the rate of 3% per annum.
On 1 October 2003, the Chinese Ambassador to the
Philippines, Wang Chungui (Amb. Wang), wrote a letter to
DOF Secretary Jose Isidro Camacho (Sec. Camacho)
informing him of CNMEGs designation as the Prime
Contractor for the Northrail Project.
On 30 December 2003, Northrail and CNMEG executed a
Contract Agreement for the construction of Section I, Phase I
of the North Luzon Railway System from Caloocan to
Malolos on a turnkey basis (the Contract Agreement).7 The
contract price for the Northrail Project was pegged at USD
421,050,000.
On 26 February 2004, the Philippine government and EXIM
Bank entered into a counterpart financial agreement Buyer
Credit Loan Agreement No. BLA 04055 (the Loan
Agreement). In the Loan Agreement, EXIM Bank agreed to
extend Preferential Buyers Credit in the amount of USD
400,000,000 in favor of the Philippine government in order to
finance the construction of Phase I of the Northrail Project.
On 13 February 2006, respondents filed a Complaint for
Annulment of Contract and Injunction with Urgent Motion for
Summary Hearing to Determine the Existence of Facts and
Circumstances Justifying the Issuance of Writs of
Preliminary Prohibitory and Mandatory Injunction and/or

TRO against CNMEG, the Office of the Executive Secretary,

the DOF, the Department of Budget and Management, the
National Economic Development Authority and Northrail. The
case was filed before the Regional Trial Court, National
Capital Judicial Region, Makati City, Branch 145 (RTC Br.
145). In the Complaint, respondents alleged that the
Contract Agreement and the Loan Agreement were void for
being contrary to (a) the Constitution; (b) Republic Act No.
9184 (R.A. No. 9184), otherwise known as the Government
Procurement Reform Act; (c) Presidential Decree No. 1445,
otherwise known as the 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 CNMEGs Motion to Dismiss and setting the case
for summary hearing to determine whether the injunctive
reliefs prayed for should be issued. CNMEG then filed a
Motion for Reconsideration, which was denied by the trial
court in an Order dated 10 March 2008. Thus, CNMEG filed
before the CA a Petition for Certiorari with Prayer for the
Issuance of TRO and/or Writ of Preliminary Injunction dated
4 April 2008.
the appellate court dismissed the Petition for Certiorari.
Subsequently, CNMEG filed a Motion for Reconsideration,
which was denied by the CA in a Resolution dated 5
December 2008.
Petitioners Argument:
Petitioner claims that the EXIM Bank extended financial
assistance to Northrail because the bank was mandated by
the Chinese government, and not because of any motivation
to do business in the Philippines, it is clear from the foregoing
provisions that the Northrail Project was a purely commercial
transaction.
Respondents Argument:
respondents alleged that the Contract Agreement and the
Loan Agreement were void for being contrary to (a) the
Constitution; (b) Republic Act No. 9184 (R.A. No. 9184),
otherwise known as the Government Procurement Reform
Act; (c) Presidential Decree No. 1445, otherwise known as
the Government Auditing Code; and (d) Executive Order No.
292, otherwise known as the Administrative Code.

Issues:

Whether or not petitioner CNMEG is an agent of the

sovereign Peoples Republic of China.
Whether or not the Northrail contracts are products of an
executive agreement between two sovereign states.

dated 14 September 2002, Amb. Wangs 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.

Ruling:
The instant Petition is DENIED. Petitioner China National
Machinery & Equipment Corp. (Group) is not entitled to
immunity from suit, and the Contract Agreement is not an
executive agreement. CNMEGs prayer for the issuance of a
TRO and/or Writ of Preliminary Injunction is DENIED for being
moot and academic.
The Court explained the doctrine of sovereign
immunity in Holy See v. Rosario, to wit:
There are two conflicting concepts of sovereign immunity,
each widely held and firmly established. According to the
classical or absolute theory, a sovereign cannot, without
its consent, be made a respondent in the courts of
another sovereign. According to the newer or restrictive
theory, the immunity of the sovereign is recognized only
with regard to public acts or acts jure imperii of a state,
but not with regard to private acts or acts jure gestionis.
(Emphasis supplied; citations omitted.)
As it stands now, the application of the doctrine of immunity
from suit has been restricted to sovereign or governmental
activities (jure imperii). The mantle of state immunity cannot
be extended to commercial, private and proprietary acts
(jure gestionis).
Since the Philippines adheres to the restrictive
theory, it is crucial to ascertain the legal nature of the act
involved whether the entity claiming immunity performs
governmental, as opposed to proprietary, functions. As held
in United States of America v. Ruiz
Admittedly, the Loan Agreement was entered into
between EXIM Bank and the Philippine government, while the
Contract Agreement was between Northrail and CNMEG.
Although the Contract Agreement is silent on the classification
of the legal nature of the transaction, the foregoing provisions
of the Loan Agreement, which is an inextricable part of the
entire undertaking, nonetheless reveal the intention of the
parties to the Northrail Project to classify the whole venture as
commercial or proprietary in character.
Thus, piecing together the content and tenor of the
Contract Agreement, the Memorandum of Understanding

DANUBE DAM CASE (Hungary v Slovakia) 37 ILM 162

(1998)
In 1977, The Treaty between the Hungarian
Peoples Republic and the Czechoslovak Socialist Republic
concerning the Construction and Operation of the
Gabckovo-Nagymaros System of Locks was concluded on
16 September 1977.The treaty was concluded to facilitate
the construction of dams on the Danube River. It addressed
broad utilization of the natural resources of the Danube
between Bratislava and Budapest, representing two hundred
of the Rivers two thousand eight hundred and sixty
kilometers. Intense criticism of the construction at
Nagymaros centered upon endangerment of the
environment and uncertainty of continued economic viability.
This growing opposition engendered political pressures upon
the Hungarian Government. After initiating two Protocols,
primarily concerned with timing of construction, Hungary
suspended works at Nagymaros on 21 July 1989 pending
further environmental studies. In response, Czechoslovakia
carried out unilateral measures. Hungary then claimed the
right to terminate the treaty, at which point the dispute was
submitted to the International Court of Justice. Hungary also
submitted that it was entitled to terminate the treaty on the
ground that Czechoslovakia had violated Articles of the
Treaty by undertaking unilateral measures, culminating in
the diversion of the Danube. Slovakia became a party to the
1977 Treaty as successor to Czechoslovakia.
On 19 May 1992 Hungary purported to terminate
the 1977 Treaty as a consequence of Czechoslovakias
refusal to suspend work during the process of mediation. As
the Treaty itself did not feature a clause governing
termination, Hungary proffered five arguments to validate its
actions: a state of necessity, supervening impossibility of
performance, fundamental change of circumstances,

material breach and the emergence of new norms of

international environmental law. Slovakia contested each of
these bases.
The Court easily dismissed Hungarys first claim,
simply stating that a state of necessity is not a ground for
termination. Even if a state of necessity is established, as
soon as it ceases to exist treaty obligations automatically
revive.
The doctrine of impossibility of performance is
encapsulated in Article 61 of the Vienna Convention on the
Law of Treaties, which requires the permanent
disappearance or destruction of an object indispensable for
the execution of the treaty. In this case, the legal regime
governing the Gabckovo-Nagymaros Project did not cease
to exist. Articles 15, 19 and 20 of the 1977 Treaty provided
the means through which works could be readjusted in
accordance with economic and ecological imperatives.
Furthermore, Article 61(2) of the Vienna Convention on the
Law of Treaties precludes application of the doctrine where
the impossibility complained of is the result of a breach by
the terminating Party. If the joint investment had been
hampered to a point where performance was impossible, it
was a consequence of Hungarys abandonment of works.
Article 62 of the Vienna Convention on the Law of
Treaties codifies international law in respect of fundamental
change of circumstances and treaty relations. Hungary
submitted that the 1977 Treaty was originally intended to be
a vehicle for socialist integration. Fundamental changes
cited were the displacement of a single and indivisible
operational system by a unilateral scheme; the emergence
of both States into a market economy; the mutation of a
framework treaty into an immutable norm; and the
transformation of a treaty consistent with environmental
protection into a prescription for environmental disaster.
The Court held that although political changes and
diminished economic viability were relevant to the conclusion
of a treaty, they were not so closely linked with the object
and purpose of the 1977 Treaty so as to constitute an
essential basis of the consent of the Parties. New
developments in the efficacy of environmental knowledge
were not unforeseen by the Treaty and cannot be said to
represent a fundamental change. The Court did not consider
whether the emergence of new environmental norms would
catalyze the application of Article 62 in a situation where the
terms of a treaty stand abhorrent to new norms.

Hungary claimed that Variant C materially breached

Articles 15, 19 and 20 of the 1977 Treaty, concerning the
protection of water quality, the preservation of nature and
guardianship of fishing interests. Article 60(3) of the Vienna
Convention on the Law of Treaties recognizes material
breach of a treaty as a ground for termination on the part of
the injured State. Extending its reasoning on the principle of
approximate application, the Court held that a material
breach only occurred upon the diversion of the Danube. As
Czechoslovakia dammed the Danube after 19 May 1992,
Hungarys purported termination was premature and thus
invalid.
As its final basis for the justification of termination,
Hungary advocated that, pursuant to the precautionary
principle in environmental law, the obligation not to cause
substantive damage to the territory of another State had
evolved into an obligation erga omnes (sic utere tuo ut
alienum non laedas). Slovakia countered this argument with
the claim that there had been no intervening developments
in international environmental law that gave rise to jus
cogens norms that would override provisions of the 1977
Treaty. The Court avoided consideration of these
propositions, concluding instead that these new concerns
have enhanced the relevance of Articles 15, 19 and 20.
Given that international environmental law is in its formative
stages, it is unfortunate that the International Court of Justice
did not grasp at this opportunity to discuss its role in the
governance of relations between States. To that end, the
Court may have clarified the controversial application of the
sic utere principle to modify notions of unrestricted
sovereignty in the Trail Smelter arbitration.

UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN

IRELAND V. ICELAND, International Court of Justice, 17
Aug 72 25 Jul 74, [1974] ICJ Rep. 3
On 14 April 1972, the United Kingdom instituted
proceedings against Iceland concerning a dispute over the
proposed extension by Iceland of the limits of its exclusive
fisheries jurisdiction from 12 nautical miles to 50 nautical
miles. United Kingdom contends that such actuation is a
breach of an agreement between the parties, evidenced by
an Exchange of Notes in 1961. It specified therein that the
United Kingdom would no longer object to a 12-mile fishery

zone, that Iceland would continue to work for the

implementation of the 1959 resolution regarding the
extension of fisheries jurisdiction that would give the United
Kingdom six months notice of such extension and that in
case of a dispute in relation to such extension, the matter
shall, at the request of either Party, be referred to the
International Court of Justice.
Iceland declared that the Court lacked jurisdiction,
and declined to be represented in the proceedings. It
argued that the Exchange of Notes in 1961 has already been
terminated as evidenced by the policy statement issued by
its Government on 4 July 1971 stating that the agreements
on fisheries jurisdiction with the British and the West
Germans be terminated and that a decision be taken on the
extension of fisheries jurisdiction to 50 nautical miles from
base lines, and that this extension become effective not later
than September 1st, 1972."
At the request of the United Kingdom and the
Federal Republic of Germany (which also contested the
claim of Iceland), the Court in 1972 indicated, and in 1973
confirmed, provisional measures to the effect that Iceland
should refrain from implementing, with respect to their
vessels, the new Regulations for the extension of the fishery
zone, and that the annual catch of those vessels in the
disputed area should be limited to certain maxima.
In Judgments delivered on 2 February 1973, the
Court found that it possessed jurisdiction to deal with the
merits of the dispute. The facts requiring the Courts
consideration in adjudicating upon the claim were attested
by documentary evidence whose accuracy appeared to be
no reason to doubt. As for the law, although it was to be
regretted that Iceland had failed to appear, the Court was
nevertheless deemed to take notice of international law,
which lay within its own judicial knowledge. Having taken
account of the legal position of each Party and acted with
particular circumspection in view of the absence of the
respondent State, the Court considered that it had before it
the elements necessary to enable it to deliver judgment.
In Judgments on the merits of 25 July 1974, it found
that the Icelandic Regulations constituting a unilateral
extension of exclusive fishing rights to a limit of 50 nautical
miles were not opposable to the Government of the United
Kingdom, that the Government of Iceland was not entitled

unilaterally to exclude United Kingdom fishing vessels from

the disputed area, and that the parties were under mutual
obligations to undertake negotiations in good faith for the
equitable solution of their differences concerning their
respective fishery rights.