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Republic of the Philippines

BAYAN MUNA, as represented by

- versus -


capacity as Executive Secretary,
and BLAS F. OPLE, in his capacity
as Secretary of Foreign Affairs,

G.R. No. 159618


February 1, 2011
The Case
This petition[1] for certiorari, mandamus and prohibition under Rule 65
assails and seeks to nullify the Non-Surrender Agreement concluded by and
between the Republic of the Philippines (RP) and the United States of America
The 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.[2]
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome
Statute[3]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.[4] The serious crimes adverted to cover those considered
grave under international law, such as genocide, crimes against humanity, war
crimes, and crimes of aggression.[5]
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.[6] 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 non-surrender bilateral agreement (Agreement, hereinafter)
between the USA and the RP.
Via Exchange of Notes No. BFO-028-03[7] 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 Agreementaims 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.[9]
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, persons are current or
former Government officials, employees (including contractors), or
military personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other shall
not, absent the express consent of the first Party,
(a) be surrendered or transferred by any means to any
international tribunal for any purpose, unless such tribunal
has been established by the UN Security Council, or
(b) be surrendered or transferred by any means to any other
entity or third country, or expelled to a third country, for the
purpose of surrender to or transfer to any international
tribunal, unless such tribunal has been established by the
UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers
a person of the Philippines to a third country, the [US] will not agree
to the surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the
UN Security Council, absent the express consent of the Government
of the Republic of the Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise
transfers a person of the [USA] to a third country, the [GRP] will not
agree to the surrender or transfer of that person by the third country to
any international tribunal, unless such tribunal has been established
by the UN Security Council, absent the express consent of the
Government of the [US].
5. This Agreement shall remain in force until one year after the
date on which one party notifies the other of its intent to terminate the
Agreement. The provisions of this Agreement shall continue to apply
with respect to any act occurring, or any allegation arising, before the
effective date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on

the status of the non-surrender agreement, Ambassador Ricciardone replied in
his letter of October 28, 2003 that the exchange of diplomatic notes constituted
a legally binding agreement under international law; and that, under US law, the
said agreement did not require the advice and consent of the US Senate.[10]
In this proceeding, petitioner imputes grave abuse of discretion to
respondents in concluding and ratifying the Agreement and prays that it be
struck down as unconstitutional, or at least declared as without force and effect.
For their part, respondents question petitioners standing to maintain a suit
and counter that the Agreement, being in the nature of an executive agreement,
does not require Senate concurrence for its efficacy. And for reasons detailed in
their comment, respondents assert the constitutionality of the Agreement.
The Issues
A. Whether by entering into the x x x Agreement Respondents
gravely abused their discretion when they capriciously
abandoned, waived and relinquished our only legitimate recourse
through the Rome Statute of the [ICC] to prosecute and try
persons as defined in the x x x Agreement, x x x or literally any
conduit of American interests, who have committed crimes of
genocide, crimes against humanity, war crimes and the crime of
aggression, thereby abdicating Philippine Sovereignty.
B. Whether after the signing and pending ratification of the Rome
Statute of the [ICC] the [RP] President and the [DFA] Secretary x
x x are obliged by the principle of good faith to refrain from
doing all acts which would substantially impair the value of the
undertaking as signed.

C. Whether the x x x Agreement constitutes an act which defeats

the object and purpose of the Rome Statute of the International
Criminal Court and contravenes the obligation of good faith
inherent in the signature of the President affixed on the Rome
Statute of the International Criminal Court, and if so whether the
x x xAgreement is void and unenforceable on this ground.
D. Whether the RP-US Non-Surrender Agreement is void and
unenforceable for grave abuse of discretion amounting to lack or
excess of jurisdiction in connection with its execution.
SENATE x x x.[11]

The foregoing issues may be summarized into two: first, whether or not
the Agreement was contracted validly, which resolves itself into the question of
whether or not respondents gravely abused their discretion in concluding it;
and second, whether or not the Agreement, which has not been submitted to the
Senate for concurrence, contravenes and undermines the Rome Statute and
other treaties.But because respondents expectedly raised it, we shall first tackle
the issue of petitioners legal standing.
The Courts Ruling
This petition is bereft of merit.
Procedural Issue: Locus Standi of Petitioner
Petitioner, through its three party-list representatives, contends that the
issue of the validity or invalidity of the Agreement carries with it constitutional
significance and is of paramount importance that justifies its standing. Cited in
this regard is what is usually referred to as the emergency powers cases, [12] in
which ordinary citizens and taxpayers were accorded the personality to question
the constitutionality of executive issuances.

Locus standi is a right of appearance in a court of justice on a given

question.[13] Specifically, it is a partys personal and substantial interest in a case
where he has sustained or will sustain direct injury as a result [14] of the act being
challenged, and calls for more than just a generalized grievance. [15] The term
interest refers to material interest, as distinguished from one that is merely
incidental.[16] The rationale for requiring a party who challenges the validity of a
law or international agreement to allege such a personal stake in the outcome of
the controversy is to assure the concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination
of difficult constitutional questions.[17]
Locus standi, however, is merely a matter of procedure and it has been
recognized that, in some cases, suits are not brought by parties who have been
personally injured by the operation of a law or any other government act, but by
concerned citizens, taxpayers, or voters who actually sue in the public interest.
Consequently, in a catena of cases,[19] this Court has invariably adopted a
liberal stance on locus standi.
Going by the petition, petitioners representatives pursue the instant suit
primarily as concerned citizens raising issues of transcendental importance, both
for the Republic and the citizenry as a whole.
When suing as a citizen to question the validity of a law or other
government action, a petitioner needs to meet certain specific requirements
before he can be clothed with standing. Francisco, Jr. v. Nagmamalasakit na
mga Manananggol ng mga Manggagawang Pilipino, Inc.[20] expounded on this
requirement, thus:
In a long line of cases, however, concerned citizens, taxpayers and
legislators when specific requirements have been met have been given
standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a result
of its enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by reason of the statute or
act complained of. In fine, when the proceeding involves the assertion of a

public right, the mere fact that he is a citizen satisfies the requirement of
personal interest.[21]

In the case at bar, petitioners representatives have complied with the

qualifying conditions or specific requirements exacted under the locus
standi rule.As citizens, their interest in the subject matter of the petition is direct
and personal.At the very least, their assertions questioning the Agreement are
made of a public right, i.e., to ascertain that the Agreement did not go against
established national policies, practices, and obligations bearing on the States
obligation to the community of nations.
At any event, the primordial importance to Filipino citizens in general of
the issue at hand impels the Court to brush aside the procedural barrier posed by
the traditional requirement of locus standi, as we have done in a long line of
earlier cases, notably in the old but oft-cited emergency powers
cases[22] and Kilosbayan v. Guingona, Jr.[23] In cases of transcendental
importance, we wrote again in Bayan v. Zamora,[24] The Court may relax the
standing requirements and allow a suit to prosper even where there is no direct
injury to the party claiming the right of judicial review.
Moreover, bearing in mind what the Court said in Taada v. Angara, that it
will not shirk, digress from or abandon its sacred duty and authority to uphold
the Constitution in matters that involve grave abuse of discretion brought before
it in appropriate cases, committed by any officer, agency, instrumentality or
department of the government,[25] we cannot but resolve head on the issues
raised before us.Indeed, where an action of any branch of government is
seriously alleged to have infringed the Constitution or is done with grave abuse
of discretion, it becomes not only the right but in fact the duty of the judiciary to
settle it. As in this petition, issues are precisely raised putting to the fore the
propriety of the Agreementpending the ratification of the Rome Statute.
Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form, its
threshold posture being that E/N BFO-028-03 cannot be a valid medium for
concluding the Agreement.
Petitioners 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 inter-governmental
agreements,[27] which is an internationally accepted form of international
agreement. The United Nations Treaty Collections (Treaty Reference Guide)
defines the term as follows:
An exchange of notes is a record of a routine agreement, that
has many similarities with the private law contract. The agreement
consists of the exchange of two documents, each of the parties being
in the possession of the one signed by the representative of the other.
Under the usual procedure, the accepting State repeats the text of the
offering State to record its assent. The signatories of the letters may
be government Ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently resorted to, either
because of its speedy procedure, or, sometimes, to avoid the process
of legislative approval.[28]

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.[29]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.[30] 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. [31] x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be 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.
Senate Concurrence Not Required

Article 2 of the Vienna Convention on the Law of Treaties defines a

treaty as an international agreement concluded between states in written form
and governed by international law, whether embodied in a single instrument or
in two or more related instruments and whatever its particular designation.
International agreements may be in the form of (1) treaties that require
legislative concurrence after executive ratification; or (2) executive agreements
that are similar to treaties, except that they do not require legislative
concurrence and are usually less formal and deal with a narrower range of
subject matters than treaties.[33]
Under international law, there is no difference between treaties and
executive agreements in terms of their binding effects on the contracting states
concerned,[34] as long as the negotiating functionaries have remained within their
powers.[35] Neither, on the domestic sphere, can one be held valid if it violates
the Constitution.[36] Authorities are, however, agreed that one is distinct from
another for accepted reasons apart from the concurrence-requirement aspect.
As has been observed by US constitutional scholars, a treaty has greater
dignity than an executive agreement, because its constitutional efficacy is
beyond doubt, a treaty having behind it the authority of the President, the
Senate, and the people;[38] a ratified treaty, unlike an executive agreement, takes
precedence over any prior statutory enactment.[39]
Petitioner parlays the notion that the Agreement is of dubious validity,
partaking as it does of the nature of a treaty; hence, it must be duly concurred in
by the Senate. Petitioner takes a cue from Commissioner of Customs v. Eastern
Sea Trading, in which the Court reproduced the following observations made by
US legal scholars: [I]nternational agreements involving political issues or
changes of national policy and those involving international arrangements of a
permanent character usually take the form of treaties [while] those embodying
adjustments of detail carrying out well established national policies and
traditions and those involving arrangements of a more or less temporary
nature take the form of executive agreements. [40]
Pressing its point, petitioner submits that the subject of
the Agreement does not fall under any of the subject-categories that are
enumerated in the Eastern Sea Trading case, and that may be covered by an
executive agreement, such as commercial/consular relations, most-favored

nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and settlement of claims.
In addition, petitioner foists the applicability to the instant case of Adolfo
v. CFI of Zambales and Merchant,[41] holding that an executive agreement
through an exchange of notes cannot be used to amend a treaty.
We are not persuaded.
The categorization of subject matters that may be covered
by international agreements mentioned in Eastern Sea Trading is not cast in
stone. There are no hard and fast rules on the propriety of entering, on a given
subject, into a treaty or an executive agreement as an instrument of international
relations. The primary consideration in the choice of the form of agreement is
the parties intent and desire to craft an international agreement in the form they
so wish to further their respective interests. Verily, the matter of form takes a
back seat when it comes to effectiveness and binding effect of the enforcement
of a treaty or an executive agreement, as the parties in either international
agreement each labor under the pacta sunt servanda[42] principle.
As may be noted, almost half a century has elapsed since the Court
rendered its decision in Eastern Sea Trading. Since then, the conduct of foreign
affairs has become more complex and the domain of international law wider, as
to include such subjects as human rights, the environment, and the sea. In fact,
in the USalone, the executive agreements executed by its President from 1980
to 2000 covered subjects such as defense, trade, scientific cooperation, aviation,
atomic energy, environmental cooperation, peace corps, arms limitation, and
nuclear safety, among others.[43] Surely, the enumeration in Eastern Sea
Trading cannot circumscribe the option of each state on the matter of which the
international agreement format would be convenient to serve its best interest. As
Francis Sayre said in his work referred to earlier:
x x x It would be useless to undertake to discuss here the large
variety of executive agreements as such concluded from time to time.
Hundreds of executive agreements, other than those entered into
under the trade-agreement act, have been negotiated with foreign
governments. x x x They cover such subjects as the inspection of
vessels, navigation dues, income tax on shipping profits, the
admission of civil air craft, custom matters and commercial relations
generally, international claims, postal matters, the registration of
trademarks and copyrights, etc. x x x

And lest it be overlooked, one type of executive agreement is a treatyauthorized[44] or a treaty-implementing executive agreement,[45] which
necessarily would cover the same matters subject of the underlying treaty.
But over and above the foregoing considerations is the fact thatsave for
the situation and matters contemplated in Sec. 25, Art. XVIII of the
Constitution[46]when a treaty is required, the Constitution does not classify any
subject, like that involving political issues, to be in the form of, and ratified as, a
treaty. What the Constitution merely prescribes is that treaties need the
concurrence of the Senate by a vote defined therein to complete the ratification
Petitioners reliance on Adolfo[47] is misplaced, said case being
inapplicable owing to different factual milieus. There, the Court held that an
executive agreement cannot be used to amend a duly ratified and existing
treaty, i.e., the Bases Treaty. Indeed, an executive agreement that does not
require the concurrence of the Senate for its ratification may not be used to
amend a treaty that, under the Constitution, is the product of the ratifying acts of
the Executive and the Senate.The presence of a treaty, purportedly being subject
to amendment by an executive agreement, does not obtain under the premises.
Considering the above discussion, the Court need not belabor at length
the third main issue raised, referring to the validity and effectivity of
the Agreementwithout the concurrence by at least two-thirds of all the members
of the Senate.The Court has, in Eastern Sea Trading,[48] as reiterated in Bayan,
given recognition to the obligatory effect of executive agreements without
the concurrence of the Senate:
x x x [T]he right of the Executive to enter into binding
agreements without the necessity of subsequent Congressional
approval has been confirmed by long usage. From the earliest days of
our history, we have entered executive agreements covering such
subjects as commercial and consular relations, most favored-nation
rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. The validity of
these has never been seriously questioned by our courts.

The Agreement Not in Contravention of the Rome Statute

It is the petitioners next contention that the Agreement undermines the
establishment of the ICC and is null and void insofar as it unduly restricts the
ICCs jurisdiction and infringes upon the effectivity of the Rome
Statute. Petitioner posits that the Agreement was constituted solely for the
purpose of providing individuals or groups of individuals with immunity from
the jurisdiction of the ICC; and such grant of immunity through non-surrender
agreements allegedly does not legitimately fall within the scope of Art. 98 of
the Rome Statute. It concludes that state parties with non-surrender agreements
are prevented from meeting their obligations under the Rome Statute, thereby
constituting a breach of Arts. 27,[50]86,[51] 89[52] and 90[53] thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute
is to ensure that those responsible for the worst possible crimes are brought to
justice in all cases, primarily by states, but as a last resort, by the ICC; thus, any
agreementlike the non-surrender agreementthat precludes the ICC from
exercising its complementary function of acting when a state is unable to or
unwilling to do so, defeats the object and purpose of the Rome Statute.
Petitioner would add that the President and the DFA Secretary, as
representatives of a signatory of the Rome Statute, are obliged by the
imperatives of good faith to refrain from performing acts that substantially
devalue the purpose and object of the Statute, as signed. Adding a nullifying
ingredient to the Agreement, according to petitioner, is the fact that it has an
immoral purpose or is otherwise at variance with a priorly executed treaty.
Contrary to petitioners pretense, the Agreement does not contravene or
undermine, nor does it differ from, the Rome Statute. Far from going against
each other, one complements the other. As a matter of fact, the principle of
complementarity underpins the creation of the ICC. As aptly pointed out by
respondents and admitted by petitioners, the jurisdiction of the ICC is to be
complementary to national criminal jurisdictions [of the signatory states]. [54] Art.
1 of the Rome Statute pertinently provides:

Article 1

The Court
An International Crimininal Court (the Court) is hereby
established. It x x x shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international
concern, as referred to in this Statute, and shall be complementary
to national criminal jurisdictions. The jurisdiction and functioning
of the Court shall be governed by the provisions of this Statute.
(Emphasis ours.)

Significantly, the sixth preambular paragraph of the Rome Statute

declares that it is the duty of every State to exercise its criminal jurisdiction over
those responsible for international crimes. This provision indicates that primary
jurisdiction over the so-called international crimes rests, at the first instance,
with the state where the crime was committed; secondarily, with the ICC in
appropriate situations contemplated under Art. 17, par. 1[55] of the Rome Statute.
Of particular note is the application of the principle of ne bis in
idem under par. 3 of Art. 20, Rome Statute, which again underscores the
primacy of the jurisdiction of a state vis-a-vis that of the ICC. As far as relevant,
the provision states that no person who has been tried by another court for
conduct x x x [constituting crimes within its jurisdiction] shall be tried by the
[International Criminal] Court with respect to the same conduct x x x.

The foregoing provisions of the Rome Statute, taken collectively, argue

against the idea of jurisdictional conflict between the Philippines, as party to the
the Agreement substantially impairing the value of the RPs undertaking under
the Rome Statute. Ignoring for a while the fact that the RP signed the Rome
Statute ahead of the Agreement, it is abundantly clear to us that the Rome
Statute expressly recognizes the primary jurisdiction of states, like the RP, over
serious crimes committed within their respective borders, the complementary
jurisdiction of the ICC coming into play only when the signatory states are
unwilling or unable to prosecute.
Given the above consideration, petitioners suggestionthat the RP, by
entering into the Agreement, violated its duty required by the imperatives of
good faith and breached its commitment under the Vienna Convention [57] to

refrain from performing any act tending to impair the value of a treaty, e.g., the
Rome Statutehas to be rejected outright. For nothing in the provisions of
the Agreement,in relation to the Rome Statute, tends to diminish the efficacy of
the Statute, let alone defeats the purpose of the ICC. Lest it be overlooked, the
Rome Statute contains a proviso that enjoins the ICC from seeking the surrender
of an erring person, should the process require the requested state to perform an
act that would violate some international agreement it has entered into. We refer
to Art. 98(2) of the Rome Statute, which reads:
Article 98
Cooperation with respect to waiver of immunity
and consent to surrender
2. The Court may not proceed with a request for surrender
which would require the requested State to act inconsistently with
its obligations under international agreements pursuant to which
the consent of a sending State is required to surrender a person of
that State to the Court, unless the Court can first obtain the
cooperation of the sending State for the giving of consent for the

Moreover, under international law, there is a considerable difference

between a State-Party and a signatory to a treaty. Under the Vienna Convention
on the Law of Treaties, a signatory state is only obliged to refrain from acts
which would defeat the object and purpose of a treaty; [58] whereas a State-Party,
on the other hand, is legally obliged to follow all the provisions of a treaty in
good faith.
In the instant case, it bears stressing that the Philippines is only a
signatory to the Rome Statute and not a State-Party for lack of ratification by
the Senate. Thus, it is only obliged to refrain from acts which would defeat the
object and purpose of the Rome Statute. Any argument obliging
the Philippines to follow any provision in the treaty would be premature.
As a result, petitioners argument that State-Parties with non-surrender
agreements are prevented from meeting their obligations under the Rome

Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles are only
legally binding upon State-Parties, not signatories.
Furthermore, a careful reading of said Art. 90 would show that
the Agreement is not incompatible with the Rome Statute. Specifically, Art.
90(4) provides that [i]f the requesting State is a State not Party to this Statute
the requested State, if it is not under an international obligation to extradite the
person to the requesting State, shall give priority to the request for surrender
from the Court. x x x In applying the provision, certain undisputed facts should
be pointed out: first, the US is neither a State-Party nor a signatory to the Rome
Statute; and second, there is an international agreement between the US and
the Philippinesregarding extradition or surrender of persons, i.e., the Agreement.
Clearly, even assuming that the Philippines is a State-Party, the Rome Statute
still recognizes the primacy of international agreements entered into between
States, even when one of the States is not a State-Party to the Rome Statute.
Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement, abdicated
its sovereignty by bargaining away the jurisdiction of the ICC to prosecute US
nationals, government officials/employees or military personnel who commit
serious crimes of international concerns in the Philippines. Formulating
petitioners argument a bit differently, the RP, by entering into the Agreement,
does thereby abdicate its sovereignty, abdication being done by its waiving or
abandoning its right to seek recourse through the Rome Statute of the ICC for
erring Americans committing international crimes in the country.
We are not persuaded. As it were, the Agreement is but a form of
the Philippines national
jurisdiction. National criminal jurisdiction being primary, as explained above, it
is always the responsibility and within the prerogative of the RP either to
prosecute criminal offenses equally covered by the Rome Statute or to accede to
the jurisdiction of the ICC. Thus, the Philippines may decide to try persons of
the US, as the term is understood in the Agreement, under our national criminal
justice system. Or it may opt not to exercise its criminal jurisdiction over its
erring citizens or over US persons committing high crimes in the country and
defer to the secondary criminal jurisdiction of the ICC over them. As to persons
of the US whom the Philippines refuses to prosecute, the country would, in

effect, accord discretion to the US to exercise either its national criminal

jurisdiction over the person concerned or to give its consent to the referral of the
matter to the ICC for trial. In the same breath, the US must extend the same
privilege to the Philippines with respect to persons of the RP committing high
crimes within US territorial jurisdiction.

In the context of the Constitution, there can be no serious objection to

the Philippines agreeing to undertake the things set forth in the Agreement.
Surely, one State can agree to waive jurisdictionto the extent agreed uponto
subjects of another State due to the recognition of the principle of
extraterritorial immunity. What the Court wrote in Nicolas v. Romulo[59]a case
involving the implementation of the criminal jurisdiction provisions of the RPUS Visiting Forces Agreementis apropos:
Nothing in the Constitution prohibits such agreements
recognizing immunity from jurisdiction or some aspects of
jurisdiction (such as custody), in relation to long-recognized subjects
of such immunity like Heads of State, diplomats and members of the
armed forces contingents of a foreign State allowed to enter another
States territory. x x x

To be sure, the nullity of the subject non-surrender agreement cannot be

predicated on the postulate that some of its provisions constitute a virtual
abdication of its sovereignty. Almost every time a state enters into an
international agreement, it voluntarily sheds off part of its sovereignty. The
Constitution, as drafted, did not envision a reclusive Philippines isolated from
the rest of the world.It even adheres, as earlier stated, to the policy of
cooperation and amity with all nations.[60]
By their nature, treaties and international agreements actually have a
limiting effect on the otherwise encompassing and absolute nature of
sovereignty. By their voluntary act, nations may decide to surrender or waive
some aspects of their state power or agree to limit the exercise of their otherwise
exclusive and absolute jurisdiction. The usual underlying consideration in this
partial surrender may be the greater benefits derived from a pact or a reciprocal
undertaking of one contracting party to grant the same privileges or immunities
to the other. On the rationale that the Philippines has adopted the generally

accepted principles of international law as part of the law of the land, a portion
of sovereignty may be waived without violating the Constitution. [61] Such
waiver does not amount to an unconstitutional diminution or deprivation of
jurisdiction of Philippine courts.[62]
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
The Court is not persuaded. Suffice it to state in this regard that the nonsurrender 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.
No Grave Abuse of Discretion
Petitioners final point revolves around the necessity of the Senates
concurrence in the Agreement. And without specifically saying so,
petitioner would argue that the non-surrender agreement was executed by the
President, thru the DFA Secretary, in grave abuse of discretion.
The Court need not delve on and belabor the first portion of the above
posture of petitioner, the same having been discussed at length earlier on. As to
the second portion, We wish to state that petitioner virtually faults the President
for performing, through respondents, a task conferred the President by the
Constitutionthe power to enter into international agreements.
By constitutional fiat and by the nature of his or her office, the President,
as head of state and government, is the sole organ and authority in the external
affairs of the country.[65] The Constitution vests in the President the power to
enter into international agreements, subject, in appropriate cases, to the required
concurrence votes of the Senate. But as earlier indicated, executive agreements
may be validly entered into without such concurrence. As the President wields
vast powers and influence, her conduct in the external affairs of the nation is,
as Bayan would put it, executive altogether. The right of the President to enter
into or ratify binding executive agreements has been confirmed by long
In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then
President Gloria Macapagal-Arroyo, represented by the Secretary of Foreign
Affairs, acted within the scope of the authority and discretion vested in her by
the Constitution. At the end of the day, the Presidentby ratifying, thru her
deputies, the non-surrender agreementdid nothing more than discharge a
constitutional duty and exercise a prerogative that pertains to her office.

While the issue of ratification of the Rome Statute is not determinative of

the other issues raised herein, it may perhaps be pertinent to remind all and
sundry that about the time this petition was interposed, such issue of ratification
was laid to rest in Pimentel, Jr. v. Office of the Executive Secretary.[67] As the
Court emphasized in said case, the power to ratify a treaty, the Statute in that
instance, rests with the President, subject to the concurrence of the Senate,
whose role relative to the ratification of a treaty is limited merely to concurring
in or withholding the ratification. And concomitant with this treaty-making
power of the President is his or her prerogative to refuse to submit a treaty to the
Senate; or having secured the latters consent to the ratification of the treaty,
refuse to ratify it.[68] This prerogative, the Court hastened to add, is the
Presidents alone and cannot be encroached upon via a writ of
mandamus. Barring intervening events, then, the Philippines remains to be just a
signatory to the Rome Statute. Under Art. 125[69]thereof, the final acts required
to complete the treaty process and, thus, bring it into force, insofar as
the Philippines is concerned, have yet to be done.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed into law Republic
Act No. (RA) 9851, otherwise known as the Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against
Humanity.Sec. 17 of RA 9851, particularly the second paragraph thereof,
Section 17. Jurisdiction. x x x x
authorities may dispense with the investigation or prosecution of a crime
punishable under this Act if another court or international tribunal is already
conducting the investigation or undertaking the prosecution of such
crime. Instead, the authorities maysurrender or extradite suspected or
accused persons in the Philippines to the appropriate international court,
if any, or to another State pursuant to the applicable extradition laws and
treaties. (Emphasis supplied.)

A view is advanced that the Agreement amends existing municipal laws

on the States obligation in relation to grave crimes against the law of
nations, i.e., genocide, crimes against humanity and war crimes. Relying on the
above-quoted statutory proviso, the view posits that the Philippine is required to
surrender to the proper international tribunal those persons accused of the grave

crimes defined under RA 9851, if it does not exercise its primary jurisdiction to
prosecute them.
The basic premise rests on the interpretation that if it does not decide to
prosecute a foreign national for violations of RA 9851, the Philippines has only
two options, to wit: (1) surrender the accused to the proper international
tribunal; or (2) surrender the accused to another State if such surrender is
pursuant to the applicable extradition laws and treaties. But the Philippines may
exercise these options only in cases where another court or international tribunal
is already conducting the investigation or undertaking the prosecution of such
crime; otherwise, the Philippines must prosecute the crime before its own courts
pursuant to RA 9851.
Posing the situation of a US national under prosecution by an
international tribunal for any crime under RA 9851, the Philippines has the
option to surrender such US national to the international tribunal if it decides
not to prosecute such USnational here. The view asserts that this option of
the Philippines under Sec. 17 of RA 9851 is not subject to the consent of
the US, and any derogation of Sec. 17 of RA 9851, such as requiring the consent
of the US before the Philippines can exercise such option, requires an
amendatory law. In line with this scenario, the view strongly argues that
the Agreement prevents the Philippineswithout the consent of the USfrom
surrendering to any international tribunal US nationals accused of crimes
covered by RA 9851, and, thus, in effect amends Sec. 17 of RA
9851. Consequently, the view is strongly impressed that the Agreement cannot
be embodied in a simple executive agreement in the form of an exchange of
notes but must be implemented through an extradition law or a treaty with the
corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the
Constitution, where the Philippines adopts, as a national policy, the generally
accepted principles of international law as part of the law of the land, the
Court is further impressed to perceive the Rome Statute as declaratory of
customary international law. In other words, the Statute embodies principles of
law which constitute customary international law or custom and for which
reason it assumes the status of an enforceable domestic law in the context of the
aforecited constitutional provision. As a corollary, it is argued that any
derogation from the Rome Statute principles cannot be undertaken via a mere

executive agreement, which, as an exclusive act of the executive branch, can

only implement, but cannot amend or repeal, an existing law. The Agreement, so
the argument goes, seeks to frustrate the objects of the principles of law or alters
customary rules embodied in the Rome Statute.
Prescinding from the foregoing premises, the view thus advanced
considers the Agreement inefficacious, unless it is embodied in a treaty duly
ratified with the concurrence of the Senate, the theory being that a Senateratified treaty partakes of the nature of a municipal law that can amend or
supersede another law, in this instance Sec. 17 of RA 9851 and the status of the
Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of
the Constitution.
We are unable to lend cogency to the view thus taken. For one, we find
that the Agreement does not amend or is repugnant to RA 9851. For another, the
view does not clearly state what precise principles of law, if any,
the Agreement alters.And for a third, it does not demonstrate in the concrete
how the Agreement seeks to frustrate the objectives of the principles of law
subsumed in the Rome Statute.
Far from it, as earlier explained, the Agreement does not undermine the
Rome Statute as the former merely reinforces the primacy of the national
jurisdiction of the US and the Philippines in prosecuting criminal offenses
committed by their respective citizens and military personnel, among
others. The jurisdiction of the ICC pursuant to the Rome Statute over high
crimes indicated thereat is clearly and unmistakably complementary to the
national criminaljurisdiction of the signatory states.
Moreover, RA 9851 clearly: (1) defines and establishes the crimes against
international humanitarian law, genocide and other crimes against humanity; [70]
(2) provides penal sanctions and criminal liability for their commission; [71] and
(3) establishes special courts for the prosecution of these crimes and for the
State to exercise primary criminal jurisdiction.[72] Nowhere in RA 9851 is there a
proviso that goes against the tenor of the Agreement.
The view makes much of the above quoted second par. of Sec. 17, RA
9851 as requiring the Philippine State to surrender to the proper international
tribunal those persons accused of crimes sanctioned under said law if it does not
exercise its primary jurisdiction to prosecute such persons. This view is not

entirely correct, for the above quoted proviso clearly provides discretion to the
Philippine State on whether to surrender or not a person accused of the crimes
under RA 9851. The statutory proviso uses the word may. It is settled doctrine
in statutory construction that the word may denotes discretion, and cannot be
construed as having mandatory effect.[73] Thus, the pertinent second pararagraph
of Sec. 17, RA 9851 is simply permissive on the part of the Philippine State.
Besides, even granting that the surrender of a person is mandatorily
required when the Philippines does not exercise its primary jurisdiction in cases
where another court or international tribunal is already conducting the
investigation or undertaking the prosecution of such crime, still, the tenor of
the Agreement is not repugnant to Sec. 17 of RA 9851. Said legal proviso aptly
provides that the surrender may be made to another State pursuant to the
applicable extradition laws and treaties. The Agreement can already be
considered a treaty following this Courts decision in Nicolas v. Romulo[74] which
cited Weinberger v. Rossi.[75] In Nicolas, We held that an executive agreement is
a treaty within the meaning of that word in international law and constitutes
enforceable domestic law vis--vis the United States.[76]
Likewise, the Philippines and the US already have an existing extradition
treaty, i.e., RP-US Extradition Treaty, which was executed on November 13,
1994. The pertinent Philippine law, on the other hand, is Presidential Decree
No. 1069, issued on January 13, 1977. Thus, the Agreement, in conjunction with
the RP-US Extradition Treaty, would neither violate nor run counter to Sec. 17
of RA 9851.
The views reliance on Suplico v. Neda[77] is similarly improper. In that
case, several petitions were filed questioning the power of the President to enter
into foreign loan agreements. However, before the petitions could be resolved
by the Court, the Office of the Solicitor General filed a Manifestation and
Motion averring that the Philippine Government decided not to continue with
the ZTE National Broadband Network Project, thus rendering the petition moot.
In resolving the case, the Court took judicial notice of the act of the executive
department of the Philippines (the President) and found the petition to be indeed
moot. Accordingly, it dismissed the petitions.
In his dissent in the abovementioned case, Justice Carpio discussed the
legal implications of an executive agreement. He stated that an executive
agreement has the force and effect of law x x x [it] cannot amend or
repeal prior laws.[78] Hence, this argument finds no application in this case
seeing as RA 9851 is a subsequent law, not a prior one. Notably, this argument
cannot be found in the ratio decidendiof the case, but only in the dissenting

The view further contends that the RP-US Extradition Treaty is

inapplicable to RA 9851 for the reason that under par. 1, Art. 2 of the RP-US
Extradition Treaty, [a]n offense shall be an extraditable offense if it
is punishable under the laws in both Contracting Parties x x x,[79] and
thereby concluding that while the Philippines has criminalized under RA 9851
the acts defined in the Rome Statute as war crimes, genocide and other crimes
against humanity, there is no similar legislation in the US. It is further argued
that, citing U.S. v. Coolidge, in the US, a person cannot be tried in the federal
courts for an international crime unless Congress adopts a law defining and
punishing the offense.
This view must fail.
On the contrary, the US has already enacted legislation punishing the high
crimes mentioned earlier. In fact, as early as October 2006, the US enacted a
law criminalizing war crimes. Section 2441, Chapter 118, Part I, Title 18 of the
United States Code Annotated (USCA) provides for the criminal offense of war
crimes which is similar to the war crimes found in both the Rome Statute and
RA 9851, thus:
(a) Offense Whoever, whether inside or outside the United States, commits a
war crime, in any of the circumstances described in subsection (b), shall be
fined under this title or imprisoned for life or any term of years, or both,
and if death results to the victim, shall also be subject to the penalty of
(b) Circumstances The circumstances referred to in subsection (a) are that the
person committing such war crime or the victim of such war crime is a
member of the Armed Forces of the United States or a national of the
United States (as defined in Section 101 of the Immigration and
Nationality Act).
(c) Definition As used in this Section the term war crime means any conduct
(1) Defined as a grave breach in any of the international conventions
signed at Geneva 12 August 1949, or any protocol to such convention
to which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the
HagueConvention IV, Respecting the Laws and Customs of War on
Land, signed 18 October 1907;
(3) Which constitutes a grave breach of common Article 3 (as defined in
subsection [d]) when committed in the context of and in association
with an armed conflict not of an international character; or
(4) Of a person who, in relation to an armed conflict and contrary to the
provisions of the Protocol on Prohibitions or Restrictions on the Use of
Mines, Booby-Traps and Other Devices as amended at Geneva on 3
May 1996 (Protocol II as amended on 3 May 1996), when the United
States is a party to such Protocol, willfully kills or causes serious
injury to civilians.[80]

Similarly, in December 2009, the US adopted a law that criminalized

genocide, to wit:
1091. Genocide
Basic Offense Whoever, whether in the time of peace or in
time of war and with specific intent to destroy, in whole or in
substantial part, a national, ethnic, racial or religious group as such
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of
members of the group through drugs, torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to
cause the physical destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the group;
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b).[81]

Arguing further, another view has been advanced that the current US laws
do not cover every crime listed within the jurisdiction of the ICC and that there
is a gap between the definitions of the different crimes under the US laws versus
the Rome Statute. The view used a report written by Victoria K. Holt and
Elisabeth W. Dallas, entitled On Trial: The US Military and the International
Criminal Court, as its basis.
At the outset, it should be pointed out that the report used may not have any
weight or value under international law. Article 38 of the Statute of the
International Court of Justice (ICJ) lists the sources of international law, as
follows: (1) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states; (2) international
custom, as evidence of a general practice accepted as law; (3) the general
principles of law recognized by civilized nations; and (4) subject to the
provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law. The report does not fall under any of the
foregoing enumerated sources. It cannot even be considered as the teachings of
highly qualified publicists. A highly qualified publicist is a scholar of public
international law and the term usually refers to legal scholars or academic
writers.[82] It has not been shown that the authors[83] of this report are highly
qualified publicists.
Assuming arguendo that the report has weight, still, the perceived gaps in
the definitions of the crimes are nonexistent. To highlight, the table below

shows the definitions of genocide and war crimes under the Rome Statute vis-vis the definitions under US laws:
Rome Statute
Article 6
For the purpose of this Statute, genocide means
any of the following acts committed with intent
to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to
members of the group;
(c) Deliberately inflicting on the group
conditions of life calculated to bring about
its physical destruction in whole or in part;
(d) Imposing measures intended to prevent
births within the group;
(e) Forcibly transferring children of the group
to another group.

Article 8
War Crimes
2. For the purpose of this Statute, war crimes
(a) Grave breaches of the Geneva Conventions
of 12 August 1949, namely, any of the
following acts against persons or property
protected under the provisions of the relevant
Geneva Convention: x x x[84]
(b) Other serious violations of the laws and
customs applicable in international armed
conflict, within the established framework of
international law, namely, any of the following
(c) In the case of an armed conflict not of an
international character, serious violations of
article 3 common to the four Geneva
Conventions of 12 August 1949, namely, any of
the following acts committed against persons
taking no active part in the hostilities, including
members of armed forces who have laid down
their arms and those placed hors de combat by
sickness, wounds, detention or any other cause:

US Law
1091. Genocide
(a) Basic Offense Whoever, whether in the time
of peace or in time of war and with specific
intent to destroy, in whole or in substantial part,
a national, ethnic, racial or religious group as
(1) kills members of that group;
(2) causes serious bodily injury to members of
that group;
(3) causes the permanent impairment of the
mental faculties of members of the
group through drugs, torture, or similar
(4) subjects the group to conditions of life that
are intended to cause the physical
destruction of the group in whole or in
(5) imposes measures intended to prevent
births within the group; or
(6) transfers by force children of the group to
another group;
shall be punished as provided in subsection (b).
(a) Definition As used in this Section the term
war crime means any conduct
(1) Defined as a grave breach in any of the
at Geneva12 August 1949, or any
protocol to such convention to which
the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of
the Annex to the Hague Convention IV,
Respecting the Laws and Customs of
War on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of
common Article 3 (as defined in
subsection [d][85]) when committed in
the context of and in association with an
armed conflict not of an international
character; or
(4) Of a person who, in relation to an armed
conflict and contrary to the provisions of
the Protocol on Prohibitions or
Restrictions on the Use of Mines,
Booby-Traps and Other Devices as
amended at Geneva on 3 May 1996
(Protocol II as amended on 3 May
1996), when the United States is a party

(d) Paragraph 2 (c) applies to armed conflicts

not of an international character and thus does
not apply to situations of internal disturbances
and tensions, such as riots, isolated and
sporadic acts of violence or other acts of a
similar nature.
(e) Other serious violations of the laws and
customs applicable in armed conflicts not of an
international character, within the established
framework of international law, namely, any of
the following acts: x x x.

to such Protocol, willfully kills or causes

serious injury to civilians.[86]

Evidently, the gaps pointed out as to the definition of the crimes are not present.
In fact, the report itself stated as much, to wit:
Few believed there were wide differences between the crimes under
the jurisdiction of the Court and crimes within the Uniform Code of Military
Justice that would expose US personnel to the Court. Since US military
lawyers were instrumental in drafting the elements of crimes outlined in the
Rome Statute, they ensured that most of the crimes were consistent with those
outlined in the UCMJ and gave strength to complementarity for the US. Small
areas of potential gaps between the UCMJ and the Rome Statute, military
experts argued, could be addressed through existing military laws.[87] x x x

The report went on further to say that [a]ccording to those involved, the
elements of crimes laid out in the Rome Statute have been part of US military
doctrine for decades.[88] Thus, the argument proffered cannot stand.
Nonetheless, despite the lack of actual domestic legislation,
the US notably follows the doctrine of incorporation. As early as 1900, the
esteemed Justice Gray in The Paquete Habana[89] case already held international
law as part of the law of the US, to wit:
International law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction as often as
questions of right depending upon it are duly presented for their determination.
For this purpose, where there is no treaty and no controlling executive or
legislative act or judicial decision, resort must be had to the customs and
usages of civilized nations, and, as evidence of these, to the works of jurists
and commentators who by years of labor, research, and experience have made
themselves peculiarly well acquainted with the subjects of which they treat.
Such works are resorted to by judicial tribunals, not for the speculations of
their authors concerning what the law ought to be, but for the trustworthy
evidence of what the law really is.[90] (Emphasis supplied.)

Thus, a person can be tried in the US for an international crime despite

the lack of domestic legislation. The cited ruling in U.S. v. Coolidge,[91] which in

turn is based on the holding in U.S. v. Hudson,[92] only applies to common law
and not to the law of nations or international law.[93] Indeed, the Court in U.S. v.
Hudsononly considered the question, whether the Circuit Courts of the United
States can exercise a common law jurisdiction in criminal cases.[94] Stated
otherwise, there is no common law crime in the US but this is considerably
different from international law.
The US doubtless recognizes international law as part of the law of the
land, necessarily including international crimes, even without any local statute.
In fact, years later, US courts would apply international law as a source of
criminal liability despite the lack of a local statute criminalizing it as such. So it
was that in Ex Parte Quirin[96] the US Supreme Court noted that [f]rom the very
beginning of its history this Court has recognized and applied the law of war as
including that part of the law of nations which prescribes, for the conduct of
war, the status, rights and duties of enemy nations as well as of enemy
individuals.[97] It went on further to explain that Congress had not undertaken
the task of codifying the specific offenses covered in the law of war, thus:
It is no objection that Congress in providing for the trial of such
offenses has not itself undertaken to codify that branch of international
law or to mark its precise boundaries, or to enumerate or define by
statute all the acts which that law condemns. An Act of Congress punishing
the crime of piracy as defined by the law of nations is an appropriate exercise
of its constitutional authority, Art. I, s 8, cl. 10, to define and punish the
offense since it has adopted by reference the sufficiently precise definition of
international law. x x x Similarly by the reference in the 15th Article of War to
offenders or offenses that x x x by the law of war may be triable by such
military commissions. Congress has incorporated by reference, as within the
jurisdiction of military commissions, all offenses which are defined as such by
the law of war x x x, and which may constitutionally be included within that
jurisdiction.[98] x x x (Emphasis supplied.)

This rule finds an even stronger hold in the case of crimes against
humanity. It has been held that genocide, war crimes and crimes against
humanity have attained the status of customary international law. Some even go
so far as to state that these crimes have attained the status of jus cogens.[99]
Customary international law or international custom is a source of
international law as stated in the Statute of the ICJ. [100] It is defined as the
general and consistent practice of states recognized and followed by them from
a sense of legal obligation.[101] In order to establish the customary status of a
particular norm, two elements must concur: State practice, the objective
element; and opinio juris sive necessitates, the subjective element.[102]

State practice refers to the continuous repetition of the same or similar

kind of acts or norms by States. [103] It is demonstrated upon the existence of the
following elements: (1) generality; (2) uniformity and consistency; and (3)
duration.[104] While, opinio juris, the psychological element, requires that the
state practice or norm be carried out in such a way, as to be evidence of a belief
that this practice is rendered obligatory by the existence of a rule of law
requiring it.[105]
The term jus cogens means the compelling law.[106] Corollary, a jus
cogensnorm holds the highest hierarchical position among all other customary
norms and principles.[107] As a result, jus cogens norms are deemed peremptory
and non-derogable.[108] When applied to international crimes, jus cogens crimes
have been deemed so fundamental to the existence of a just international legal
order that states cannot derogate from them, even by agreement.[109]
These jus cogens crimes relate to the principle of universal jurisdiction,
i.e., any state may exercise jurisdiction over an individual who commits certain
heinous and widely condemned offenses, even when no other recognized basis
for jurisdiction exists.[110] The rationale behind this principle is that the crime
committed is so egregious that it is considered to be committed against all
members of the international community[111] and thus granting every State
jurisdiction over the crime.[112]
Therefore, even with the current lack of domestic legislation on the part of
the US, it still has both the doctrine of incorporation and universal jurisdiction
to try these crimes.
Consequently, no matter how hard one insists, the ICC, as an international
tribunal, found in the Rome Statute is not declaratory of customary international
The first element of customary international law, i.e., established,
widespread, and consistent practice on the part of States, [113] does not, under the
premises, appear to be obtaining as reflected in this simple reality: As of
October 12, 2010, only 114[114] States have ratified the Rome Statute, subsequent
to its coming into force eight (8) years earlier, or on July 1, 2002. The fact that
114 States out of a total of 194 [115] countries in the world, or roughly 58.76%,
have ratified the Rome Statute casts doubt on whether or not the perceived
principles contained in the Statute have attained the status of customary law and
should be deemed as obligatory international law. The numbers even tend to
argue against the urgency of establishing international criminal courts
envisioned in the Rome Statute. Lest it be overlooked, the Philippines, judging
by the action or inaction of its top officials, does not even feel bound by the

Rome Statute. Res ipsa loquitur.More than eight (8) years have elapsed since
the Philippine representative signedthe Statute, but the treaty has not been
transmitted to the Senate for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the
application of the concurring elements, thus:
Custom or customary international law means a general and consistent
practice of states followed by them from a sense of legal obligation [opinio
juris] x x x. This statement contains the two basic elements of custom: the
material factor, that is how the states behave, and the psychological factor or
subjective factor, that is, why they behave the way they do.
The initial factor for determining the existence of custom is the actual
behavior of states. This includes several elements: duration, consistency, and
generality of the practice of states.
The required duration can be either short or long. x x x
Duration therefore is not the most important element. More important
is the consistency and the generality of the practice. x x x

Once the existence of state practice has been established, it

becomes necessary to determine why states behave the way they do. Do
states behave the way they do because they consider it obligatory to behave
thus or do they do it only as a matter of courtesy? Opinio juris, or the belief
that a certain form of behavior is obligatory, is what makes practice an
international rule. Without it, practice is not law.[116] (Emphasis added.)

Evidently, there is, as yet, no overwhelming consensus, let alone

prevalent practice, among the different countries in the world that the
prosecution of internationally recognized crimes of genocide, etc. should be
handled by a particular international criminal court.
Absent the widespread/consistent-practice-of-states factor, the second or
thepsychological element must be deemed non-existent, for an inquiry on why
states behave the way they do presupposes, in the first place, that they are
actually behaving, as a matter of settled and consistent practice, in a certain
manner. This implicitly requires belief that the practice in question is rendered

obligatory by the existence of a rule of law requiring it. [117] Like the first
element, the second element has likewise not been shown to be present.
Further, the Rome Statute itself rejects the concept of universal
jurisdiction over the crimes enumerated therein as evidenced by it requiring
State consent.[118]Even further, the Rome Statute specifically and unequivocally
requires that: This Statute is subject to ratification, acceptance or approval by
signatory States.[119]These clearly negate the argument that such has already
attained customary status.
More importantly, an act of the executive branch with a foreign
government must be afforded great respect. The power to enter into executive
agreements has long been recognized to be lodged with the President. As We
held in Neri v. Senate Committee on Accountability of Public Officers and
Investigations, [t]he power to enter into an executive agreement is in essence an
executive power. This authority of the President to enter into executive
agreements without the concurrence of the Legislature has traditionally been
recognized in Philippine jurisprudence.[120] The rationale behind this principle is
the inviolable doctrine of separation of powers among the legislative, executive
and judicial branches of the government. Thus, absent any clear contravention
of the law, courts should exercise utmost caution in declaring any executive
agreement invalid.

In light of the above consideration, the position or view that the

challenged RP-US Non-Surrender Agreement ought to be in the form of a treaty,
to be effective, has to be rejected.
WHEREFORE, the petition for certiorari, mandamus and prohibition is
hereby DISMISSED for lack of merit. No costs.

G.R. No. 221697

G.R. No. 221698-700
VALDEZ Respondents.
Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the Rules
of Court with extremely urgent application for an ex parte issuance of temporary
restraining order/status quo ante order and/or writ of preliminary injunction assailing the
following: (1) 1 December 2015 Resolution of the Commission on Elections (COMELEC) Second
Division; (2) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-001 (DC);
(3) 11 December 2015 Resolution of the COMELEC First Division; and ( 4) 23 December 2015
Resolution of the COMELEC En Banc, in SPA No. 15-002 (DC), SPA No. 15-007 (DC) and SPA
No. 15-139 (DC) for having been issued without jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction.
The Facts
Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn
infant in the Parish Church of Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3 September
1968. Parental care and custody over petitioner was passed on by Edgardo to his relatives,
Emiliano Militar (Emiliano) and his wife. Three days after, 6 September 1968, Emiliano reported
and registered petitioner as a foundling with the Office of the Civil Registrar of Iloilo City (OCRIloilo). In her Foundling Certificate and Certificate of Live Birth, the petitioner was given the name
"Mary Grace Natividad Contreras Militar."

When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a.
Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces) filed a petition for her adoption
with the Municipal Trial Court (MTC) of San Juan City. On 13 May 1974, the trial court granted
their petition and ordered that petitioner's name be changed from "Mary Grace Natividad
Contreras Militar" to "Mary Grace Natividad Sonora Poe." Although necessary notations were
made by OCR-Iloilo on petitioner's foundling certificate reflecting the court decreed adoption, the
petitioner's adoptive mother discovered only sometime in the second half of 2005 that the lawyer
who handled petitioner's adoption failed to secure from the OCR-Iloilo a new Certificate of Live
Birth indicating petitioner's new name and the name of her adoptive parents. Without delay,
petitioner's mother executed an affidavit attesting to the lawyer's omission which she submitted
to the OCR-Iloilo. On 4 May 2006, OCR-Iloilo issued a new Certificate of Live Birth in the name
of Mary Grace Natividad Sonora Poe.

Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with the
local COMELEC Office in San Juan City. On 13 December 1986, she received her COMELEC
Voter's Identification Card for Precinct No. 196 in Greenhills, San Juan, Metro Manila.

On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F927287 by the
Department of Foreign Affairs (DFA). Subsequently, on 5 April 1993 and 19 May 1998, she
renewed her Philippine passport and respectively secured Philippine Passport Nos. L881511 and

Initially, the petitioner enrolled and pursued a degree in Development Studies at the University of
the Philippines but she opted to continue her studies abroad and left for the United States of
America (U.S.) in 1988. Petitioner graduated in 1991 from Boston College in Chestnuts Hill,
Massachusetts where she earned her Bachelor of Arts degree in Political Studies.

On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a

citizen of both the Philippines and the U.S., at Sanctuario de San Jose Parish in San Juan
City. Desirous of being with her husband who was then based in the U.S., the couple flew back
to the U.S. two days after the wedding ceremony or on 29 July 1991.


While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April
1992. Her two daughters Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were both born
in the Philippines on 10 July 1998 and 5 June 2004, respectively.


On 18 October 2001, petitioner became a naturalized American citizen.

Passport No. 017037793 on 19 December 2001.


She obtained U.S.


On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support her
father's candidacy for President in the May 2004 elections. It was during this time that she gave
birth to her youngest daughter Anika. She returned to the U.S. with her two daughters on 8 July

After a few months, specifically on 13 December 2004, petitioner rushed back to the Philippines
upon learning of her father's deteriorating medical condition. Her father slipped into a coma and
eventually expired. The petitioner stayed in the country until 3 February 2005 to take care of her
father's funeral arrangements as well as to assist in the settlement of his estate.


According to the petitioner, the untimely demise of her father was a severe blow to her entire
family. In her earnest desire to be with her grieving mother, the petitioner and her husband
decided to move and reside permanently in the Philippines sometime in the first quarter of
2005. The couple began preparing for their resettlement including notification of their children's
schools that they will be transferring to Philippine schools for the next semester; coordination
with property movers for the relocation of their household goods, furniture and cars from the U.S.
to the Philippines; and inquiry with Philippine authorities as to the proper procedure to be
followed in bringing their pet dog into the country. As early as 2004, the petitioner already quit
her job in the U.S.





Finally, petitioner came home to the Philippines on 24 May 2005 and without delay, secured a
Tax Identification Number from the Bureau of Internal Revenue. Her three (3) children
immediately followed while her husband was forced to stay in the U.S. to complete pending
projects as well as to arrange the sale of their family home there.



The petitioner and her children briefly stayed at her mother's place until she and her husband
purchased a condominium unit with a parking slot at One Wilson Place Condominium in San
Juan City in the second half of 2005. The corresponding Condominium Certificates of Title
covering the unit and parking slot were issued by the Register of Deeds of San Juan City to

petitioner and her husband on 20 February 2006. Meanwhile, her children of school age began
attending Philippine private schools.

On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of
some of the family's remaining household belongings. She travelled back to the Philippines on
11 March 2006.


In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the family's
change and abandonment of their address in the U.S. The family home was eventually sold on
27 April 2006. Petitioner's husband resigned from his job in the U.S. in April 2006, arrived in the
country on 4 May 2006 and started working for a major Philippine company in July 2006.



In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian Hills,
Quezon City where they built their family home and to this day, is where the couple and their
children have been residing. A Transfer Certificate of Title covering said property was issued in
the couple's name by the Register of Deeds of Quezon City on 1June 2006.


On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant
to Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of
2003. Under the same Act, she filed with the Bureau of Immigration (BI) a sworn petition to
reacquire Philippine citizenship together with petitions for derivative citizenship on behalf of her
three minor children on 10 July 2006. As can be gathered from its 18 July 2006 Order, the BI
acted favorably on petitioner's petitions and declared that she is deemed to have reacquired her
Philippine citizenship while her children are considered as citizens of the
Philippines. Consequently, the BI issued Identification Certificates (ICs) in petitioner's name and
in the names of her three (3) children.




Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August
2006. She also secured from the DFA a new Philippine Passport bearing the No.
XX4731999. This passport was renewed on 18 March 2014 and she was issued Philippine
Passport No. EC0588861 by the DFA.



On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of the
Movie and Television Review and Classification Board (MTRCB). Before assuming her post,
petitioner executed an "Affidavit of Renunciation of Allegiance to the United States of America
and Renunciation of American Citizenship" before a notary public in Pasig City on 20 October
2010, in satisfaction of the legal requisites stated in Section 5 of R.A. No. 9225. The following
day, 21 October 2010 petitioner submitted the said affidavit to the BI and took her oath of office
as Chairperson of the MTRCB. From then on, petitioner stopped using her American passport.






On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in Manila
an "Oath/Affirmation of Renunciation of Nationality of the United States." On that day, she
accomplished a sworn questionnaire before the U.S. Vice Consul wherein she stated that she
had taken her oath as MTRCB Chairperson on 21 October 2010 with the intent, among others, of
relinquishing her American citizenship. In the same questionnaire, the petitioner stated that she
had resided outside of the U.S., specifically in the Philippines, from 3 September 1968 to 29 July
1991 and from May 2005 to present.



On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of
Nationality of the United States" effective 21 October 2010.

On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy (COC)
for Senator for the 2013 Elections wherein she answered "6 years and 6 months" to the question
"Period of residence in the Philippines before May 13, 2013." Petitioner obtained the highest
number of votes and was proclaimed Senator on 16 May 2013.


On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No. DE0004530.


On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections. In
her COC, the petitioner declared that she is a natural-born citizen and that her residence in the
Philippines up to the day before 9 May 2016 would be ten (10) years and eleven (11) months
counted from 24 May 2005. The petitioner attached to her COC an "Affidavit Affirming
Renunciation of U.S.A. Citizenship" subscribed and sworn to before a notary public in Quezon
City on 14 October 2015.



Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several
COMELEC cases against her which were the subject of these consolidated cases.
Origin of Petition for Certiorari in G.R. No. 221697
A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a petition to
deny due course or cancel said COC which was docketed as SPA No. 15-001 (DC) and raffled to
the COMELEC Second Division. She is convinced that the COMELEC has jurisdiction over her
petition. Essentially, Elamparo's contention is that petitioner committed material
misrepresentation when she stated in her COC that she is a natural-born Filipino citizen and that
she is a resident of the Philippines for at least ten (10) years and eleven (11) months up to the
day before the 9 May 2016 Elections.



On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a naturalborn Filipino on account of the fact that she was a foundling. Elamparo claimed that
international law does not confer natural-born status and Filipino citizenship on
foundlings. Following this line of reasoning, petitioner is not qualified to apply for reacquisition of
Filipino citizenship under R.A. No. 9225 for she is not a natural-born Filipino citizen to begin
with. Even assuming arguendo that petitioner was a natural-born Filipino, she is deemed to
have lost that status when she became a naturalized American citizen. According to Elamparo,
natural-born citizenship must be continuous from birth.





On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the
sworn declaration she made in her 2012 COC for Senator wherein she indicated that she had
resided in the country for only six ( 6) years and six ( 6) months as of May 2013 Elections.
Elamparo likewise insisted that assuming arguendo that petitioner is qualified to regain her
natural-born status under R.A. No. 9225, she still fell short of the ten-year residency requirement
of the Constitution as her residence could only be counted at the earliest from July 2006, when
she reacquired Philippine citizenship under the said Act. Also on the assumption that petitioner is
qualified to reacquire lost Philippine Citizenship, Elamparo is of the belief that she failed to
reestablish her domicile in the Philippines.

Petitioner seasonably filed her Answer wherein she countered that:

(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually a
petition for quo warranto which could only be filed if Grace Poe wins in the Presidential
elections, and that the Department of Justice (DOJ) has primary jurisdiction to revoke the
BI's July 18, 2006 Order;
(2) the petition failed to state a cause of action because it did not contain allegations
which, if hypothetically admitted, would make false the statement in her COC that she is
a natural-born Filipino citizen nor was there any allegation that there was a willful or
deliberate intent to misrepresent on her part;
(3) she did not make any material misrepresentation in the COC regarding her citizenship
and residency qualifications for:

a. the 1934 Constitutional Convention deliberations show that foundlings were

considered citizens;
b. foundlings are presumed under international law to have been born of citizens
of the place where they are found;
c. she reacquired her natural-born Philippine citizenship under the provisions of
R.A. No. 9225;
d. she executed a sworn renunciation of her American citizenship prior to the
filing of her COC for President in the May 9, 2016 Elections and that the same is
in full force and effect and has not been withdrawn or recanted;
e. the burden was on Elamparo in proving that she did not possess natural-born
f. residence is a matter of evidence and that she reestablished her domicile in the
Philippines as early as May 24, 2005;
g. she could reestablish residence even before she reacquired natural-born
citizenship under R.A. No. 9225;
h. statement regarding the period of residence in her 2012 COC for Senator was
an honest mistake, not binding and should give way to evidence on her true date
of reacquisition of domicile;
i. Elamparo's petition is merely an action to usurp the sovereign right of the
Filipino people to decide a purely political question, that is, should she serve as
the country's next leader.

After the parties submitted their respective Memoranda, the petition was deemed submitted for
On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that
petitioner's COC, filed for the purpose of running for the President of the Republic of the
Philippines in the 9 May 2016 National and Local Elections, contained material representations
which are false. The fallo of the aforesaid Resolution reads:
WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due
Course to or Cancel Certificate of Candidacy is hereby GRANTED. Accordingly, the Certificate of
Candidacy for President of the Republic of the Philippines in the May 9, 2016 National and Local
Elections filed by respondent Mary Grace Natividad Sonora Poe Llamanzares is

Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which the
COMELEC En Banc resolved in its 23 December 2015 Resolution by denying the same.

Origin of Petition for Certiorari in G.R. Nos. 221698-700

This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad), Antonio
P. Contreras (Contreras) and Amado D. Valdez (Valdez) against petitioner before the COMELEC
which were consolidated and raffled to its First Division.

In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of

Procedure, docketed as SPA No. 15-002 (DC), Tatad alleged that petitioner lacks the requisite
residency and citizenship to qualify her for the Presidency.


Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons of
unknown parentage, particularly foundlings, cannot be considered natural-born Filipino citizens
since blood relationship is determinative of natural-born status. Tatad invoked the rule of
statutory construction that what is not included is excluded. He averred that the fact that
foundlings were not expressly included in the categories of citizens in the 193 5 Constitution is
indicative of the framers' intent to exclude them. Therefore, the burden lies on petitioner to
prove that she is a natural-born citizen.



Neither can petitioner seek refuge under international conventions or treaties to support her
claim that foundlings have a nationality. According to Tatad, international conventions and
treaties are not self-executory and that local legislations are necessary in order to give effect to
treaty obligations assumed by the Philippines. He also stressed that there is no standard state
practice that automatically confers natural-born status to foundlings.



Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to
reacquire Philippine citizenship under R.A. No. 9225 because it only applies to former naturalborn citizens and petitioner was not as she was a foundling.

Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the ten
(10) year residency requirement. Tatad opined that petitioner acquired her domicile in Quezon
City only from the time she renounced her American citizenship which was sometime in 2010 or
2011. Additionally, Tatad questioned petitioner's lack of intention to abandon her U.S. domicile
as evinced by the fact that her husband stayed thereat and her frequent trips to the U.S.



In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA
No. 15-139 (DC), Valdez alleged that her repatriation under R.A. No. 9225 did not bestow upon
her the status of a natural-born citizen. He advanced the view that former natural-born citizens
who are repatriated under the said Act reacquires only their Philippine citizenship and will not
revert to their original status as natural-born citizens.


He further argued that petitioner's own admission in her COC for Senator that she had only been
a resident of the Philippines for at least six (6) years and six (6) months prior to the 13 May 2013
Elections operates against her. Valdez rejected petitioner's claim that she could have validly
reestablished her domicile in the Philippines prior to her reacquisition of Philippine citizenship. In
effect, his position was that petitioner did not meet the ten (10) year residency requirement for
Unlike the previous COMELEC cases filed against petitioner, Contreras' petition, docketed as
SPA No. 15-007 (DC), limited the attack to the residency issue. He claimed that petitioner's 2015
COC for President should be cancelled on the ground that she did not possess the ten-year
period of residency required for said candidacy and that she made false entry in her COC when
she stated that she is a legal resident of the Philippines for ten (10) years and eleven (11)
months by 9 May 2016. Contreras contended that the reckoning period for computing
petitioner's residency in the Philippines should be from 18 July 2006, the date when her petition
to reacquire Philippine citizenship was approved by the BI. He asserted that petitioner's physical
presence in the country before 18 July 2006 could not be valid evidence of reacquisition of her
Philippine domicile since she was then living here as an American citizen and as such, she was
governed by the Philippine immigration laws.




In her defense, petitioner raised the following arguments:

First, Tatad's petition should be dismissed outright for failure to state a cause of action. His
petition did not invoke grounds proper for a disqualification case as enumerated under Sections
12 and 68 of the Omnibus Election Code. Instead, Tatad completely relied on the alleged lack of
residency and natural-born status of petitioner which are not among the recognized grounds for
the disqualification of a candidate to an elective office.


Second, the petitions filed against her are basically petitions for quo warranto as they focus on
establishing her ineligibility for the Presidency. A petition for quo warranto falls within the
exclusive jurisdiction of the Presidential Electoral Tribunal (PET) and not the COMELEC.


Third, the burden to prove that she is not a natural-born Filipino citizen is on the
respondents. Otherwise stated, she has a presumption in her favor that she is a natural-born
citizen of this country.

Fourth, customary international law dictates that foundlings are entitled to a nationality and are
presumed to be citizens of the country where they are found. Consequently, the petitioner is
considered as a natural-born citizen of the Philippines.


Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under R.A.
No. 9225 or the right to reacquire her natural-born status. Moreover, the official acts of the
Philippine Government enjoy the presumption of regularity, to wit: the issuance of the 18 July
2006 Order of the BI declaring her as natural-born citizen, her appointment as MTRCB Chair and
the issuance of the decree of adoption of San Juan RTC. She believed that all these acts
reinforced her position that she is a natural-born citizen of the Philippines.



Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her
domicile of choice in the Philippines as demonstrated by her children's resettlement and
schooling in the country, purchase of a condominium unit in San Juan City and the construction
of their family home in Corinthian Hills.

Seventh, she insisted that she could legally reestablish her domicile of choice in the Philippines
even before she renounced her American citizenship as long as the three determinants for a
change of domicile are complied with. She reasoned out that there was no requirement that
renunciation of foreign citizenship is a prerequisite for the acquisition of a new domicile of


Eighth, she reiterated that the period appearing in the residency portion of her COC for Senator
was a mistake made in good faith.

In a Resolution promulgated on 11 December 2015, the COMELEC First Division ruled that
petitioner is not a natural-born citizen, that she failed to complete the ten (10) year residency
requirement, and that she committed material misrepresentation in her COC when she declared
therein that she has been a resident of the Philippines for a period of ten (10) years and eleven
(11) months as of the day of the elections on 9 May 2016. The COMELEC First Division
concluded that she is not qualified for the elective position of President of the Republic of the
Philippines. The dispositive portion of said Resolution reads:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES,

to GRANT the Petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES for the elective position of President of the Republic of the
Philippines in connection with the 9 May 2016 Synchronized Local and National Elections.
Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First Division's
Resolution. On 23 December 2015, the COMELEC En Banc issued a Resolution denying
petitioner's motion for reconsideration.

Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions
for certiorari with urgent prayer for the issuance of an ex parte temporary restraining order/status
quo ante order and/or writ of preliminary injunction. On 28 December 2015, temporary restraining
orders were issued by the Court enjoining the COMELEC and its representatives from
implementing the assailed COMELEC Resolutions until further orders from the Court. The Court
also ordered the consolidation of the two petitions filed by petitioner in its Resolution of 12
January 2016. Thereafter, oral arguments were held in these cases.
The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL
and SET ASIDE the:
1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA No.
15-001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora
2. Resolution dated 11 December 2015, rendered through its First Division, in the
consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC)
entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora PoeLlamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez,
petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares, respondent.
3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1
December 2015 Resolution of the Second Division.
4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11
December 2015 Resolution of the First Division.
The procedure and the conclusions from which the questioned Resolutions emanated are tainted
with grave abuse of discretion amounting to lack of jurisdiction. The petitioner is a QUALIFIED
CANDIDATE for President in the 9 May 2016 National Elections.
The issue before the COMELEC is whether or not the COC of petitioner should be denied due
course or cancelled "on the exclusive ground" that she made in the certificate a false material
representation. The exclusivity of the ground should hedge in the discretion of the COMELEC
and restrain it from going into the issue of the qualifications of the candidate for the position, if, as
in this case, such issue is yet undecided or undetermined by the proper authority. The
COMELEC cannot itself, in the same cancellation case, decide the qualification or lack thereof of
the candidate.
We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX, C,
Section 2:
Section 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall.
(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional, provincial, and city
officials, and appellate jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction, or involving elective
barangay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests

involving elective municipal and barangay offices shall be final, executory, and
not appealable.
(3) Decide, except those involving the right to vote, all questions affecting
elections, including determination of the number and location of polling places,
appointment of election officials and inspectors, and registration of voters.
(4) Deputize, with the concurrence of the President, law enforcement agencies
and instrumentalities of the Government, including the Armed Forces of the
Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful,
and credible elections.
(5) Register, after sufficient publication, political parties, organizations, or
coalitions which, in addition to other requirements, must present their platform or
program of government; and accredit citizens' arms of the Commission on
Elections. Religious denominations and sects shall not be registered. Those
which seek to achieve their goals through violence or unlawful means, or refuse
to uphold and adhere to this Constitution, or which are supported by any foreign
government shall likewise be refused registration.
Financial contributions from foreign governments and their agencies to political
parties, organizations, coalitions, or candidates related to elections constitute
interference in national affairs, and, when accepted, shall be an additional ground
for the cancellation of their registration with the Commission, in addition to other
penalties that may be prescribed by law.
(6) File, upon a verified complaint, or on its own initiative, petitions in court for
inclusion or exclusion of voters; investigate and, where appropriate, prosecute
cases of violations of election laws, including acts or omissions constituting
election frauds, offenses, and malpractices.
(7) Recommend to the Congress effective measures to minimize election
spending, including limitation of places where propaganda materials shall be
posted, and to prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidacies.
(8) Recommend to the President the removal of any officer or employee it has
deputized, or the imposition of any other disciplinary action, for violation or
disregard of, or disobedience to its directive, order, or decision.
(9) Submit to the President and the Congress a comprehensive report on the
conduct of each election, plebiscite, initiative, referendum, or recall.
Not any one of the enumerated powers approximate the exactitude of the provisions of Article VI,
Section 17 of the same basic law stating that:
The Senate and the House of Representatives shall each have an Electoral Tribunal
which shall be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members. Each Electoral Tribunal shall be composed of
nine Members, three of whom shall be Justices of the Supreme Court to be designated
by the Chief Justice, and the remaining six shall be Members of the Senate or the House
of Representatives, as the case may be, who shall be chosen on the basis of proportional
representation from the political parties and the parties or organizations registered under
the party-list system represented therein. The senior Justice in the Electoral Tribunal
shall be its Chairman.

or of the last paragraph of Article VII, Section 4 which provides that:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President, and may
promulgate its rules for the purpose.
The tribunals which have jurisdiction over the question of the qualifications of the President, the
Vice-President, Senators and the Members of the House of Representatives was made clear by
the Constitution. There is no such provision for candidates for these positions.
Can the COMELEC be such judge?
The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on
Elections, which was affirmatively cited in the En Banc decision in Fermin v. COMELEC is our
guide. The citation in Fermin reads:


Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of
candidates, the COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25
1, the following:
Grounds for disqualification. - Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing law
or who commits any act declared by law to be grounds for disqualification may be
disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by
a mere rule. Such an act is equivalent to the creation of a cause of action which is a substantive
matter which the COMELEC, in the exercise of its rule-making power under Art. IX, A, 6 of the
Constitution, cannot do it. It is noteworthy that the Constitution withholds from the COMELEC
even the power to decide cases involving the right to vote, which essentially involves an inquiry
into qualifications based on age, residence and citizenship of voters. [Art. IX, C, 2(3)]
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for
disqualification is contrary to the evident intention of the law. For not only in their grounds but
also in their consequences are proceedings for "disqualification" different from those for a
declaration of "ineligibility." "Disqualification" proceedings, as already stated, are based on
grounds specified in 12 and 68 of the Omnibus Election Code and in 40 of the Local
Government Code and are for the purpose of barring an individual from becoming a candidate or
from continuing as a candidate for public office. In a word, their purpose is to eliminate a
candidate from the race either from the start or during its progress. "Ineligibility," on the other
hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes
for holding public office and the purpose of the proceedings for declaration of ineligibility is
to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public office does not imply
that he is not disqualified from becoming a candidate or continuing as a candidate for a public
office and vice versa. We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473)
That an alien has the qualifications prescribed in 2 of the Law does not imply that he does not
suffer from any of [the] disqualifications provided in 4.
Before we get derailed by the distinction as to grounds and the consequences of the respective
proceedings, the importance of the opinion is in its statement that "the lack of provision for
declaring the ineligibility of candidates, however, cannot be supplied by a mere rule". Justice
Mendoza lectured in Romualdez-Marcos that:

Three reasons may be cited to explain the absence of an authorized proceeding for
determining before election the qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for
determining his eligibility for the office. In contrast, whether an individual should be disqualified
as a candidate for acts constituting election offenses (e.g., vote buying, over spending,
commission of prohibited acts) is a prejudicial question which should be determined lest he wins
because of the very acts for which his disqualification is being sought. That is why it is provided
that if the grounds for disqualification are established, a candidate will not be voted for; if he has
been voted for, the votes in his favor will not be counted; and if for some reason he has been
voted for and he has won, either he will not be proclaimed or his proclamation will be set aside.
Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or, as in
this case, his domicile, may take a long time to make, extending beyond the beginning of the
term of the office. This is amply demonstrated in the companion case (G.R. No. 120265, Agapito
A. Aquino v. COMELEC) where the determination of Aquino's residence was still pending in the
COMELEC even after the elections of May 8, 1995. This is contrary to the summary character
proceedings relating to certificates of candidacy. That is why the law makes the receipt of
certificates of candidacy a ministerial duty of the COMELEC and its officers. The law is satisfied if
candidates state in their certificates of candidacy that they are eligible for the position which they
seek to fill, leaving the determination of their qualifications to be made after the election and only
in the event they are elected. Only in cases involving charges of false representations made in
certificates of candidacy is the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases in elections for
President, Vice President, Senators and members of the House of Representatives. (R.A. No.
7166, 15) The purpose is to preserve the prerogatives of the House of Representatives
Electoral Tribunal and the other Tribunals as "sole judges" under the Constitution of the election,
returns and qualifications of members of Congress of the President and Vice President, as the
case may be.

To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin, led

to the amendment through COMELEC Resolution No. 9523, on 25 September 2012 of its Rule
25. This, the 15 February1993 version of Rule 25, which states that:
Grounds for disqualification. -Any candidate who does not possess all the qualifications of a
candidate as provided for by the Constitution or by existing law or who commits any act declared
by law to be grounds for disqualification may be disqualified from continuing as a candidate.

was in the 2012 rendition, drastically changed to:

Grounds. - Any candidate who, in action or protest in which he is a party, is declared by final
decision of a competent court, guilty of, or found by the Commission to be suffering from any
disqualification provided by law or the Constitution.
A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a
Certificate of Candidacy or Petition to Declare a Candidate as a Nuisance Candidate, or a
combination thereof, shall be summarily dismissed.
Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an authorized
proceeding for determining before election the qualifications of candidate. Such that, as presently
required, to disqualify a candidate there must be a declaration by a final judgment of a competent
court that the candidate sought to be disqualified "is guilty of or found by the Commission to be
suffering from any disqualification provided by law or the Constitution."

Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one
to the other. Both do not allow, are not authorizations, are not vestment of jurisdiction, for the
COMELEC to determine the qualification of a candidate. The facts of qualification must
beforehand be established in a prior proceeding before an authority properly vested with
jurisdiction. The prior determination of qualification may be by statute, by executive order or by a
judgment of a competent court or tribunal.
If a candidate cannot be disqualified without a prior finding that he or she is suffering from a
disqualification "provided by law or the Constitution," neither can the certificate of candidacy be
cancelled or denied due course on grounds of false representations regarding his or her
qualifications, without a prior authoritative finding that he or she is not qualified, such prior
authority being the necessary measure by which the falsity of the representation can be found.
The only exception that can be conceded are self-evident facts of unquestioned or
unquestionable veracity and judicial confessions. Such are, anyway, bases equivalent to prior
decisions against which the falsity of representation can be determined.
The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that deals
with, as in this case, alleged false representations regarding the candidate's citizenship and
residence, forced the COMELEC to rule essentially that since foundlings are not mentioned in
the enumeration of citizens under the 1935 Constitution, they then cannot be citizens. As the
COMELEC stated in oral arguments, when petitioner admitted that she is a foundling, she said it
all. This borders on bigotry. Oddly, in an effort at tolerance, the COMELEC, after saying that it
cannot rule that herein petitioner possesses blood relationship with a Filipino citizen when "it is
certain that such relationship is indemonstrable," proceeded to say that "she now has the burden
to present evidence to prove her natural filiation with a Filipino parent."


The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.
At the outset, it must be noted that presumptions regarding paternity is neither unknown nor
unaccepted in Philippine Law. The Family Code of the Philippines has a whole chapter on
Paternity and Filiation. That said, there is more than sufficient evider1ce that petitioner has
Filipino parents and is therefore a natural-born Filipino. Parenthetically, the burden of proof was
on private respondents to show that petitioner is not a Filipino citizen. The private respondents
should have shown that both of petitioner's parents were aliens. Her admission that she is a
foundling did not shift the burden to her because such status did not exclude the possibility that
her parents were Filipinos, especially as in this case where there is a high probability, if not
certainty, that her parents are Filipinos.

The factual issue is not who the parents of petitioner are, as their identities are unknown, but
whether such parents are Filipinos. Under Section 4, Rule 128:
Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue as
to induce belief in its existence or no-existence. Evidence on collateral matters shall not be
allowed, except when it tends in any reasonable degree to establish the probability of
improbability of the fact in issue.
The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA) that
from 1965 to 1975, the total number of foreigners born in the Philippines was 15,986 while the
total number of Filipinos born in the country was 10,558,278. The statistical probability that any
child born in the Philippines in that decade is natural-born Filipino was 99.83%. For her part,
petitioner presented census statistics for Iloilo Province for 1960 and 1970, also from the PSA. In
1960, there were 962,532 Filipinos and 4,734 foreigners in the province; 99.62%of the population
were Filipinos. In 1970, the figures were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%.
Also presented were figures for the child producing ages (15-49). In 1960, there were 230,528
female Filipinos as against 730 female foreigners or 99.68%. In the same year, there were
210,349 Filipino males and 886 male aliens, or 99.58%. In 1970, there were 270,299 Filipino

females versus 1, 190 female aliens, or 99.56%. That same year, there were 245,740 Filipino
males as against only 1,165 male aliens or 99.53%. COMELEC did not dispute these figures.
Notably, Commissioner Arthur Lim admitted, during the oral arguments, that at the time petitioner
was found in 1968, the majority of the population in Iloilo was Filipino.

Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was
abandoned as an infant in a Roman Catholic Church in Iloilo City. She also has typical Filipino
features: height, flat nasal bridge, straight black hair, almond shaped eyes and an oval face.

There is a disputable presumption that things have happened according to the ordinary course of
nature and the ordinary habits of life. All of the foregoing evidence, that a person with typical
Filipino features is abandoned in Catholic Church in a municipality where the population of the
Philippines is overwhelmingly Filipinos such that there would be more than a 99% chance that a
child born in the province would be a Filipino, would indicate more than ample probability if not
statistical certainty, that petitioner's parents are Filipinos. That probability and the evidence on
which it is based are admissible under Rule 128, Section 4 of the Revised Rules on Evidence.

To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In the
words of the Solicitor General:
Second. It is contrary to common sense because foreigners do not come to the Philippines so
they can get pregnant and leave their newborn babies behind. We do not face a situation where
the probability is such that every foundling would have a 50% chance of being a Filipino and a
50% chance of being a foreigner. We need to frame our questions properly. What are the
chances that the parents of anyone born in the Philippines would be foreigners? Almost zero.
What are the chances that the parents of anyone born in the Philippines would be Filipinos?
According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there
were 1,766,046 children born in the Philippines to Filipino parents, as opposed to 1,301 children
in the Philippines of foreign parents. Thus, for that sample period, the ratio of non-Filipino
children to natural born Filipino children is 1:1357. This means that the statistical probability that
any child born in the Philippines would be a natural born Filipino is 99.93%.
From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the total
number of Filipinos born in the Philippines is 15,558,278. For this period, the ratio of non-Filipino
children is 1:661. This means that the statistical probability that any child born in the Philippines
on that decade would be a natural born Filipino is 99.83%.
We can invite statisticians and social anthropologists to crunch the numbers for us, but I am
confident that the statistical probability that a child born in the Philippines would be a natural born
Filipino will not be affected by whether or not the parents are known. If at all, the likelihood that a
foundling would have a Filipino parent might even be higher than 99.9%. Filipinos abandon their
children out of poverty or perhaps, shame. We do not imagine foreigners abandoning their
children here in the Philippines thinking those infants would have better economic opportunities
or believing that this country is a tropical paradise suitable for raising abandoned children. I
certainly doubt whether a foreign couple has ever considered their child excess baggage that is
best left behind.
To deny full Filipino citizenship to all foundlings and render them stateless just because there
may be a theoretical chance that one among the thousands of these foundlings might be the
child of not just one, but two, foreigners is downright discriminatory, irrational, and unjust. It just
doesn't make any sense. Given the statistical certainty - 99.9% - that any child born in the
Philippines would be a natural born citizen, a decision denying foundlings such status is
effectively a denial of their birthright. There is no reason why this Honorable Court should use an
improbable hypothetical to sacrifice the fundamental political rights of an entire class of human

beings. Your Honor, constitutional interpretation and the use of common sense are not separate
As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's
enumeration is silent as to foundlings, there is no restrictive language which would definitely
exclude foundlings either. Because of silence and ambiguity in the enumeration with respect to
foundlings, there is a need to examine the intent of the framers. In Nitafan v. Commissioner of
Internal Revenue, this Court held that:

The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of the
people adopting it should be given effect. The primary task in constitutional construction
is to ascertain and thereafter assure the realization of the purpose of the framers and of
the people in the adoption of the Constitution. It may also be safely assumed that the
people in ratifying the Constitution were guided mainly by the explanation offered by the

As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934
Constitutional Convention show that the framers intended foundlings to be covered by the
enumeration. The following exchange is recorded:
Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: "The
natural children of a foreign father and a Filipino mother not recognized by the father.
[We] would like to request a clarification from the proponent of the amendment. The gentleman
refers to natural children or to any kind of illegitimate children?
Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of unknown parentage, natural
or illegitimate children of unknown parents.
Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes consider them Filipino,
that is, I refer to the Spanish Code wherein all children of unknown parentage born in Spanish
territory are considered Spaniards, because the presumption is that a child of unknown
parentage is the son of a Spaniard. This may be applied in the Philippines in that a child of
unknown parentage born in the Philippines is deemed to be Filipino, and there is no need ...
Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to be Filipino.
Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for amendment.
Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the children
of unknown parentage."
Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown parentage.

Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not
Does the gentleman accept the amendment or not?
Sr. Rafols:
I do not accept the amendment because the amendment would exclude the children of a Filipina
with a foreigner who does not recognize the child. Their parentage is not unknown and I think
those of overseas Filipino mother and father [whom the latter] does not recognize, should also be
considered as Filipinos.
The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr.
Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the hands of the
Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in between, that the
constitution need [not] refer to them. By international law the principle that children or people
born in a country of unknown parents are citizens in this nation is recognized, and it is not
necessary to include a provision on the subject exhaustively.

Though the Rafols amendment was not carried out, it was not because there was any objection
to the notion that persons of "unknown parentage" are not citizens but only because their number
was not enough to merit specific mention. Such was the account, cited by petitioner, of delegate
and constitution law author Jose Aruego who said:

During the debates on this provision, Delegate Rafols presented an amendment to

include as Filipino citizens the illegitimate children with a foreign father of a mother who
was a citizen of the Philippines, and also foundlings; but this amendment was defeated
primarily because the Convention believed that the cases, being too few to warrant the
inclusion of a provision in the Constitution to apply to them, should be governed by
statutory legislation. Moreover, it was believed that the rules of international law were
already clear to the effect that illegitimate children followed the citizenship of the mother,
and that foundlings followed the nationality of the place where they were found,
thereby making unnecessary the inclusion in the Constitution of the proposed
This explanation was likewise the position of the Solicitor General during the 16 February 2016
Oral Arguments:
We all know that the Rafols proposal was rejected. But note that what was declined was the
proposal for a textual and explicit recognition of foundlings as Filipinos. And so, the way to
explain the constitutional silence is by saying that it was the view of Montinola and Roxas which
prevailed that there is no more need to expressly declare foundlings as Filipinos.
Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers of
a constitution can constitutionalize rules based on assumptions that are imperfect or even wrong.
They can even overturn existing rules. This is basic. What matters here is that Montinola and
Roxas were able to convince their colleagues in the convention that there is no more need to
expressly declare foundlings as Filipinos because they are already impliedly so recognized.

In other words, the constitutional silence is fully explained in terms of linguistic efficiency and the
avoidance of redundancy. The policy is clear: it is to recognize foundlings, as a class, as Filipinos
under Art. IV, Section 1 (3) of the 1935 Constitution. This inclusive policy is carried over into the
1973 and 1987 Constitution. It is appropriate to invoke a famous scholar as he was paraphrased
by Chief Justice Fernando: the constitution is not silently silent, it is silently vocal.

The Solicitor General makes the further point that the framers "worked to create a just and
humane society," that "they were reasonable patriots and that it would be unfair to impute upon
them a discriminatory intent against foundlings." He exhorts that, given the grave implications of
the argument that foundlings are not natural-born Filipinos, the Court must search the records of
the 1935, 1973 and 1987 Constitutions "for an express intention to deny foundlings the status of
Filipinos. The burden is on those who wish to use the constitution to discriminate against
foundlings to show that the constitution really intended to take this path to the dark side and inflict
this across the board marginalization."
We find no such intent or language permitting discrimination against foundlings. On the contrary,
all three Constitutions guarantee the basic right to equal protection of the laws. All exhort the
State to render social justice. Of special consideration are several provisions in the present
charter: Article II, Section 11 which provides that the "State values the dignity of every human
person and guarantees full respect for human rights," Article XIII, Section 1 which mandates
Congress to "give highest priority to the enactment of measures that protect and enhance the
right of all the people to human dignity, reduce social, economic, and political inequalities x x x"
and Article XV, Section 3 which requires the State to defend the "right of children to assistance,
including proper care and nutrition, and special protection from all forms of neglect, abuse,
cruelty, exploitation, and other conditions prejudicial to their development." Certainly, these
provisions contradict an intent to discriminate against foundlings on account of their unfortunate
Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do
not provide that adoption confers citizenship upon the adoptee. Rather, the adoptee must be a
Filipino in the first place to be adopted. The most basic of such laws is Article 15 of the Civil Code
which provides that "[l]aws relating to family rights, duties, status, conditions, legal capacity of
persons are binding on citizens of the Philippines even though living abroad." Adoption deals with
status, and a Philippine adoption court will have jurisdiction only if the adoptee is a Filipino.
In Ellis and Ellis v. Republic, a child left by an unidentified mother was sought to be adopted by
aliens. This Court said:

In this connection, it should be noted that this is a proceedings in rem, which no court may
entertain unless it has jurisdiction, not only over the subject matter of the case and over the
parties, but also over the res, which is the personal status of Baby Rose as well as that of
petitioners herein. Our Civil Code (Art. 15) adheres to the theory that jurisdiction over the status
of a natural person is determined by the latter's nationality. Pursuant to this theory, we
have jurisdiction over the status of Baby Rose, she being a citizen of the Philippines, but not over
the status of the petitioners, who are foreigners. (Underlining supplied)

Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to Govern
the Inter-Country Adoption of Filipino Children and For Other Purposes" (otherwise known as the
"Inter-Country Adoption Act of 1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and
Policies on the Adoption of Filipino Children and For Other Purposes" (otherwise known as the
Domestic Adoption Act of 1998) and this Court's A.M. No. 02-6-02-SC or the "Rule on Adoption,"
all expressly refer to "Filipino children" and include foundlings as among Filipino children who
may be adopted.
It has been argued that the process to determine that the child is a foundling leading to the
issuance of a foundling certificate under these laws and the issuance of said certificate are acts
to acquire or perfect Philippine citizenship which make the foundling a naturalized Filipino at

best. This is erroneous. Under Article IV, Section 2 "Natural-born citizens are those who are
citizens of the Philippines from birth without having to perform any act to acquire or perfect their
Philippine citizenship." In the first place, "having to perform an act" means that the act must be
personally done by the citizen. In this instance, the determination of foundling status is done not
by the child but by the authorities. Secondly, the object of the process is the determination of
the whereabouts of the parents, not the citizenship of the child. Lastly, the process is certainly not
analogous to naturalization proceedings to acquire Philippine citizenship, or the election of such
citizenship by one born of an alien father and a Filipino mother under the 1935 Constitution,
which is an act to perfect it.

In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as
evidenced by a Foundling Certificate issued in her favor. The Decree of Adoption issued on 13
May 1974, which approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan Kelley
Poe, expressly refers to Emiliano and his wife, Rosario Militar, as her "foundling parents," hence
effectively affirming petitioner's status as a foundling.


Foundlings are likewise citizens under international law. Under the 1987 Constitution, an
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. On the other hand,
generally accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive from treaty obligations.
Generally accepted principles of international law include international custom as evidence of a
general practice accepted as law, and general principles of law recognized by civilized
nations. International customary rules are accepted as binding as a result from the combination
of two elements: the established, widespread, and consistent practice on the part of States; and
a psychological element known as the opinionjuris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it. "General principles of law recognized by
civilized nations" are principles "established by a process of reasoning" or judicial logic, based on
principles which are "basic to legal systems generally," such as "general principles of
equity, i.e., the general principles of fairness and justice," and the "general principle against
discrimination" which is embodied in the "Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, the International Convention on
the Elimination of All Forms of Racial Discrimination, the Convention Against Discrimination in
Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and
Occupation." These are the same core principles which underlie the Philippine Constitution
itself, as embodied in the due process and equal protection clauses of the Bill of Rights.






Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of
the generally accepted principles of international law and binding on the State. Article 15
thereof states:

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his
The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC). Article
7 of the UNCRC imposes the following obligations on our country:
Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a
name, the right to acquire a nationality and as far as possible, the right to know and be cared for
by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national
law and their obligations under the relevant international instruments in this field, in particular
where the child would otherwise be stateless.
In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights
(ICCPR). Article 24 thereof provide for the right of every child "to acquire a nationality:"
Article 24
1. Every child shall have, without any discrimination as to race, colour, sex, language, religion,
national or social origin, property or birth, the right, to such measures of protection as are
required by his status as a minor, on the part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a name.
3. Every child has the right to acquire a nationality.
The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant
nationality from birth and ensure that no child is stateless. This grant of nationality must be at the
time of birth, and it cannot be accomplished by the application of our present naturalization laws,
Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which require the
applicant to be at least eighteen (18) years old.
The principles found in two conventions, while yet unratified by the Philippines, are generally
accepted principles of international law. The first is Article 14 of the 1930 Hague Convention on
Certain Questions Relating to the Conflict of Nationality Laws under which a foundling is
presumed to have the "nationality of the country of birth," to wit:
Article 14
A child whose parents are both unknown shall have the nationality of the country of birth. If the
child's parentage is established, its nationality shall be determined by the rules applicable in
cases where the parentage is known.
A foundling is, until the contrary is proved, presumed to have been born on the territory of the
State in which it was found. (Underlining supplied)
The second is the principle that a foundling is presumed born of citizens of the country where he
is found, contained in Article 2 of the 1961 United Nations Convention on the Reduction of
Article 2
A foundling found in the territory of a Contracting State shall, in the absence of proof to the
contrary, be considered to have been born within the territory of parents possessing the
nationality of that State.
That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on
the Reduction of Statelessness does not mean that their principles are not binding. While the
Philippines is not a party to the 1930 Hague Convention, it is a signatory to the Universal
Declaration on Human Rights, Article 15(1) ofwhich effectively affirms Article 14 of the 1930
Hague Convention. Article 2 of the 1961 "United Nations Convention on the Reduction of
Statelessness" merely "gives effect" to Article 15(1) of the UDHR. In Razon v. Tagitis, this
Court noted that the Philippines had not signed or ratified the "International Convention for the
Protection of All Persons from Enforced Disappearance." Yet, we ruled that the proscription



against enforced disappearances in the said convention was nonetheless binding as a "generally
accepted principle of international law." Razon v. Tagitis is likewise notable for declaring the ban
as a generally accepted principle of international law although the convention had been ratified
by only sixteen states and had not even come into force and which needed the ratification of a
minimum of twenty states. Additionally, as petitioner points out, the Court was content with the
practice of international and regional state organs, regional state practice in Latin America, and
State Practice in the United States.
Another case where the number of ratifying countries was not determinative is Mijares v.
Ranada, where only four countries had "either ratified or acceded to" the 1966 "Convention
on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters"
when the case was decided in 2005. The Court also pointed out that that nine member countries
of the European Common Market had acceded to the Judgments Convention. The Court also
cited U.S. laws and jurisprudence on recognition of foreign judgments. In all, only the practices of
fourteen countries were considered and yet, there was pronouncement that recognition of foreign
judgments was widespread practice.


Our approach in Razon and Mijares effectively takes into account the fact that "generally
accepted principles of international law" are based not only on international custom, but also on
"general principles of law recognized by civilized nations," as the phrase is understood in Article
38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the policy against
discrimination, which are fundamental principles underlying the Bill of Rights and which are
"basic to legal systems generally," support the notion that the right against enforced
disappearances and the recognition of foreign judgments, were correctly considered as
"generally accepted principles of international law" under the incorporation clause.

Petitioner's evidence shows that at least sixty countries in Asia, North and South America, and
Europe have passed legislation recognizing foundlings as its citizen. Forty-two (42) of those
countries follow the jus sanguinisregime. Of the sixty, only thirty-three (33) are parties to the 1961
Convention on Statelessness; twenty-six (26) are not signatories to the Convention. Also, the
Chief Justice, at the 2 February 2016 Oral Arguments pointed out that in 166 out of 189 countries
surveyed (or 87.83%), foundlings are recognized as citizens. These circumstances, including the
practice of jus sanguinis countries, show that it is a generally accepted principle of international
law to presume foundlings as having been born of nationals of the country in which the foundling
is found.

Current legislation reveals the adherence of the Philippines to this generally accepted principle of
international law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court's Rules on Adoption,
expressly refer to "Filipino children." In all of them, foundlings are among the Filipino children
who could be adopted. Likewise, it has been pointed that the DFA issues passports to foundlings.
Passports are by law, issued only to citizens. This shows that even the executive department,
acting through the DFA, considers foundlings as Philippine citizens.
Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on
Statelessness is rational and reasonable and consistent with the jus sanguinis regime in our
Constitution. The presumption of natural-born citizenship of foundlings stems from the
presumption that their parents are nationals of the Philippines. As the empirical data provided by
the PSA show, that presumption is at more than 99% and is a virtual certainty.
In sum, all of the international law conventions and instruments on the matter of nationality of
foundlings were designed to address the plight of a defenseless class which suffers from a
misfortune not of their own making. We cannot be restrictive as to their application if we are a
country which calls itself civilized and a member of the community of nations. The Solicitor
General's warning in his opening statement is relevant:

.... the total effect of those documents is to signify to this Honorable Court that those treaties and
conventions were drafted because the world community is concerned that the situation of
foundlings renders them legally invisible. It would be tragically ironic if this Honorable Court
ended up using the international instruments which seek to protect and uplift foundlings a tool to
deny them political status or to accord them second-class citizenship.

The COMELEC also ruled that petitioner's repatriation in July 2006 under the provisions of R.A.
No. 9225 did not result in the reacquisition of natural-born citizenship. The COMELEC reasoned
that since the applicant must perform an act, what is reacquired is not "natural-born" citizenship
but only plain "Philippine citizenship."

The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of repatriation
statutes in general and of R.A. No. 9225 in particular.
In the seminal case of Bengson Ill v. HRET,


repatriation was explained as follows:

Moreover, repatriation results in the recovery of the original nationality. This means that a
naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized
Filipino citizen. On the other hand, if he was originally a natural-born citizen before he lost his
Philippine citizenship, he will be restored to his former status as a natural-born Filipino.
R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They
include Sobejana-Condon v. COMELEC where we described it as an "abbreviated repatriation
process that restores one's Filipino citizenship x x x." Also included is Parreno v. Commission on
Audit, which cited Tabasa v. Court of Appeals, where we said that "[t]he repatriation of the
former Filipino will allow him to recover his natural-born citizenship. Parreno v. Commission on
Audit is categorical that "if petitioner reacquires his Filipino citizenship (under R.A. No. 9225),
he will ... recover his natural-born citizenship."




The COMELEC construed the phrase "from birth" in the definition of natural citizens as implying
"that natural-born citizenship must begin at birth and remain uninterrupted and continuous from
birth." R.A. No. 9225 was obviously passed in line with Congress' sole prerogative to determine
how citizenship may be lost or reacquired. Congress saw it fit to decree that natural-born
citizenship may be reacquired even if it had been once lost. It is not for the COMELEC to
disagree with the Congress' determination.
More importantly, COMELEC's position that natural-born status must be continuous was already
rejected in Bengson III v. HRET where the phrase "from birth" was clarified to mean at the time
of birth: "A person who at the time of his birth, is a citizen of a particular country, is a natural-born
citizen thereof." Neither is "repatriation" an act to "acquire or perfect" one's citizenship.
In Bengson III v. HRET, this Court pointed out that there are only two types of citizens under the
1987 Constitution: natural-born citizen and naturalized, and that there is no third category for
repatriated citizens:

It is apparent from the enumeration of who are citizens under the present Constitution that there
are only two classes of citizens: (1) those who are natural-born and (2) those who are naturalized
in accordance with law. A citizen who is not a naturalized Filipino, ie., did not have to undergo the
process of naturalization to obtain Philippine citizenship, necessarily is a natural-born Filipino.
Noteworthy is the absence in said enumeration of a separate category for persons who, after
losing Philippine citizenship, subsequently reacquire it. The reason therefor is clear: as to such
persons, they would either be natural-born or naturalized depending on the reasons for the loss
of their citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As
respondent Cruz was not required by law to go through naturalization proceedings in order to
reacquire his citizenship, he is perforce a natural-born Filipino. As such, he possessed all the
necessary qualifications to be elected as member of the House of Representatives.

The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while we
may always revisit a doctrine, a new rule reversing standing doctrine cannot be retroactively
applied. In Morales v. Court of Appeals and Jejomar Erwin S. Binay, Jr., where we decreed
reversed the condonation doctrine, we cautioned that it "should be prospective in application for
the reason that judicial decisions applying or interpreting the laws of the Constitution, until
reversed, shall form part of the legal system of the Philippines." This Court also said that "while
the future may ultimately uncover a doctrine's error, it should be, as a general rule, recognized as
good law prior to its abandonment. Consequently, the people's reliance thereupon should be


Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a
falsehood when she put in the spaces for "born to" in her application for repatriation under R.A.
No. 9225 the names of her adoptive parents, and this misled the BI to presume that she was a
natural-born Filipino. It has been contended that the data required were the names of her
biological parents which are precisely unknown.
This position disregards one important fact - petitioner was legally adopted. One of the effects of
adoption is "to sever all legal ties between the biological parents and the adoptee, except when
the biological parent is the spouse of the adoptee." Under R.A. No. 8552, petitioner was also
entitled to an amended birth certificate "attesting to the fact that the adoptee is the child of the
adopter(s)" and which certificate "shall not bear any notation that it is an amended issue." That
law also requires that "[a]ll records, books, and papers relating to the adoption cases in the files
of the court, the Department [of Social Welfare and Development], or any other agency or
institution participating in the adoption proceedings shall be kept strictly confidential." The law
therefore allows petitioner to state that her adoptive parents were her birth parents as that was
what would be stated in her birth certificate anyway. And given the policy of strict confidentiality of
adoption records, petitioner was not obligated to disclose that she was an adoptee.



Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the
same case for cancellation of COC, it resorted to opinionatedness which is,
moreover, erroneous. The whole process undertaken by COMELEC is wrapped in grave abuse
of discretion.
On Residence
The tainted process was repeated in disposing of the issue of whether or not petitioner
committed false material representation when she stated in her COC that she has before and
until 9 May 2016 been a resident of the Philippines for ten (10) years and eleven (11) months.
Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months on
the day before the 2016 elections, is true.
The Constitution requires presidential candidates to have ten (10) years' residence in the
Philippines before the day of the elections. Since the forthcoming elections will be held on 9 May
2016, petitioner must have been a resident of the Philippines prior to 9 May 2016 for ten (10)
years. In answer to the requested information of "Period of Residence in the Philippines up to the
day before May 09, 2016," she put in "10 years 11 months" which according to her pleadings in
these cases corresponds to a beginning date of 25 May 2005 when she returned for good from
the U.S.
When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the
Philippines. There are three requisites to acquire a new domicile: 1. Residence or bodily
presence in a new locality; 2. an intention to remain there; and 3. an intention to abandon the old
domicile. To successfully effect a change of domicile, one must demonstrate an actual removal
or an actual change of domicile; a bona fide intention of abandoning the former place of
residence and establishing a new one and definite acts which correspond with the purpose. In

other words, there must basically be animus manendi coupled with animus non revertendi. The
purpose to remain in or at the domicile of choice must be for an indefinite period of time; the
change of residence must be voluntary; and the residence at the place chosen for the new
domicile must be actual.

Petitioner presented voluminous evidence showing that she and her family abandoned their U.S.
domicile and relocated to the Philippines for good. These evidence include petitioner's former
U.S. passport showing her arrival on 24 May 2005 and her return to the Philippines every time
she travelled abroad; e-mail correspondences starting in March 2005 to September 2006 with a
freight company to arrange for the shipment of their household items weighing about 28,000
pounds to the Philippines; e-mail with the Philippine Bureau of Animal Industry inquiring how to
ship their dog to the Philippines; school records of her children showing enrollment in Philippine
schools starting June 2005 and for succeeding years; tax identification card for petitioner issued
on July 2005; titles for condominium and parking slot issued in February 2006 and their
corresponding tax declarations issued in April 2006; receipts dated 23 February 2005 from the
Salvation Army in the U.S. acknowledging donation of items from petitioner's family; March 2006
e-mail to the U.S. Postal Service confirming request for change of address; final statement from
the First American Title Insurance Company showing sale of their U.S. home on 27 April 2006; 12
July 2011 filled-up questionnaire submitted to the U.S. Embassy where petitioner indicated that
she had been a Philippine resident since May 2005; affidavit from Jesusa Sonora Poe (attesting
to the return of petitioner on 24 May 2005 and that she and her family stayed with affiant until the
condominium was purchased); and Affidavit from petitioner's husband (confirming that the
spouses jointly decided to relocate to the Philippines in 2005 and that he stayed behind in the
U.S. only to finish some work and to sell the family home).
The foregoing evidence were undisputed and the facts were even listed by the COMELEC,
particularly in its Resolution in the Tatad, Contreras and Valdez cases.
However, the COMELEC refused to consider that petitioner's domicile had been timely changed
as of 24 May 2005. At the oral arguments, COMELEC Commissioner Arthur Lim conceded the
presence of the first two requisites, namely, physical presence and animus manendi, but
maintained there was no animus non-revertendi. The COMELEC disregarded the import of all
the evidence presented by petitioner on the basis of the position that the earliest date that
petitioner could have started residence in the Philippines was in July 2006 when her application
under R.A. No. 9225 was approved by the BI. In this regard, COMELEC relied on Coquilla v.
COMELEC, Japzon v. COMELEC and Caballero v. COMELEC. During the oral arguments,
the private respondents also added Reyes v. COMELEC. Respondents contend that these
cases decree that the stay of an alien former Filipino cannot be counted until he/she obtains a
permanent resident visa or reacquires Philippine citizenship, a visa-free entry under
a balikbayan stamp being insufficient. Since petitioner was still an American (without any resident
visa) until her reacquisition of citizenship under R.A. No. 9225, her stay from 24 May 2005 to 7
July 2006 cannot be counted.





But as the petitioner pointed out, the facts in these four cases are very different from her
situation. In Coquilla v. COMELEC, the only evidence presented was a community tax
certificate secured by the candidate and his declaration that he would be running in the
elections. Japzon v. COMELEC did not involve a candidate who wanted to count residence
prior to his reacquisition of Philippine citizenship. With the Court decreeing that residence is
distinct from citizenship, the issue there was whether the candidate's acts after reacquisition
sufficed to establish residence. In Caballero v. COMELEC, the candidate admitted that his
place of work was abroad and that he only visited during his frequent vacations. In Reyes v.
COMELEC, the candidate was found to be an American citizen who had not even reacquired
Philippine citizenship under R.A. No. 9225 or had renounced her U.S. citizenship. She was
disqualified on the citizenship issue. On residence, the only proof she offered was a seven-month
stint as provincial officer. The COMELEC, quoted with approval by this Court, said that "such fact
alone is not sufficient to prove her one-year residency."




It is obvious that because of the sparse evidence on residence in the four cases cited by the
respondents, the Court had no choice but to hold that residence could be counted only from
acquisition of a permanent resident visa or from reacquisition of Philippine citizenship. In
contrast, the evidence of petitioner is overwhelming and taken together leads to no other
conclusion that she decided to permanently abandon her U.S. residence (selling the house,
taking the children from U.S. schools, getting quotes from the freight company, notifying the U.S.
Post Office of the abandonment of their address in the U.S., donating excess items to the
Salvation Army, her husband resigning from U.S. employment right after selling the U.S. house)
and permanently relocate to the Philippines and actually re-established her residence here on 24
May 2005 (securing T.I.N, enrolling her children in Philippine schools, buying property here,
constructing a residence here, returning to the Philippines after all trips abroad, her husband
getting employed here). Indeed, coupled with her eventual application to reacquire Philippine
citizenship and her family's actual continuous stay in the Philippines over the years, it is clear
that when petitioner returned on 24 May 2005 it was for good.
In this connection, the COMELEC also took it against petitioner that she had entered the
Philippines visa-free as a balikbayan. A closer look at R.A. No. 6768 as amended, otherwise
known as the "An Act Instituting a Balikbayan Program," shows that there is no overriding intent
to treat balikbayans as temporary visitors who must leave after one year. Included in the law is a
former Filipino who has been naturalized abroad and "comes or returns to the Philippines." The
law institutes a balikbayan program "providing the opportunity to avail of the necessary training to
enable the balikbayan to become economically self-reliant members of society upon their return
to the country" in line with the government's "reintegration
program." Obviously, balikbayans are not ordinary transients.



Given the law's express policy to facilitate the return of a balikbayan and help him reintegrate into
society, it would be an unduly harsh conclusion to say in absolute terms that the balikbayan must
leave after one year. That visa-free period is obviously granted him to allow him to re-establish
his life and reintegrate himself into the community before he attends to the necessary formal and
legal requirements of repatriation. And that is exactly what petitioner did - she reestablished life
here by enrolling her children and buying property while awaiting the return of her husband and
then applying for repatriation shortly thereafter.
No case similar to petitioner's, where the former Filipino's evidence of change in domicile is
extensive and overwhelming, has as yet been decided by the Court. Petitioner's evidence of
residence is unprecedented. There is no judicial precedent that comes close to the facts of
residence of petitioner. There is no indication in Coquilla v. COMELEC, and the other cases
cited by the respondents that the Court intended to have its rulings there apply to a situation
where the facts are different. Surely, the issue of residence has been decided particularly on the
facts-of-the case basis.

To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the
COMELEC ruled that petitioner's claim of residence of ten (10) years and eleven (11) months by
9 May 2016 in her 2015 COC was false because she put six ( 6) years and six ( 6) months as
"period of residence before May 13, 2013" in her 2012 COC for Senator. Thus, according to the
COMELEC, she started being a Philippine resident only in November 2006. In doing so, the
COMELEC automatically assumed as true the statement in the 2012 COC and the 2015 COC as
As explained by petitioner in her verified pleadings, she misunderstood the date required in the
2013 COC as the period of residence as of the day she submitted that COC in 2012. She said
that she reckoned residency from April-May 2006 which was the period when the U.S. house was
sold and her husband returned to the Philippines. In that regard, she was advised by her lawyers
in 2015 that residence could be counted from 25 May 2005.

Petitioner's explanation that she misunderstood the query in 2012 (period of residence before 13
May 2013) as inquiring about residence as of the time she submitted the COC, is bolstered by
the change which the COMELEC itself introduced in the 2015 COC which is now "period of
residence in the Philippines up to the day before May 09, 2016." The COMELEC would not have
revised the query if it did not acknowledge that the first version was vague.
That petitioner could have reckoned residence from a date earlier than the sale of her U.S.
house and the return of her husband is plausible given the evidence that she had returned a year
before. Such evidence, to repeat, would include her passport and the school records of her
It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and
conclusive admission against petitioner. It could be given in evidence against her, yes, but it was
by no means conclusive. There is precedent after all where a candidate's mistake as to period of
residence made in a COC was overcome by evidence. In Romualdez-Marcos v.
COMELEC, the candidate mistakenly put seven (7) months as her period of residence where
the required period was a minimum of one year. We said that "[i]t is the fact of residence, not a
statement in a certificate of candidacy which ought to be decisive in determining whether or not
an individual has satisfied the constitutions residency qualification requirement." The COMELEC
ought to have looked at the evidence presented and see if petitioner was telling the truth that she
was in the Philippines from 24 May 2005. Had the COMELEC done its duty, it would have seen
that the 2012 COC and the 2015 COC both correctly stated the pertinent period of residency.

The COMELEC, by its own admission, disregarded the evidence that petitioner actually and
physically returned here on 24 May 2005 not because it was false, but only because COMELEC
took the position that domicile could be established only from petitioner's repatriation under R.A.
No. 9225 in July 2006. However, it does not take away the fact that in reality, petitioner had
returned from the U.S. and was here to stay permanently, on 24 May 2005. When she claimed to
have been a resident for ten (10) years and eleven (11) months, she could do so in good faith.
For another, it could not be said that petitioner was attempting to hide anything. As already
stated, a petition for quo warranto had been filed against her with the SET as early as August
2015. The event from which the COMELEC pegged the commencement of residence,
petitioner's repatriation in July 2006 under R.A. No. 9225, was an established fact to repeat, for
purposes of her senatorial candidacy.
Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC,
petitioner recounted that this was first brought up in the media on 2 June 2015 by Rep. Tobias
Tiangco of the United Nationalist Alliance. Petitioner appears to have answered the issue
immediately, also in the press. Respondents have not disputed petitioner's evidence on this
point. From that time therefore when Rep. Tiangco discussed it in the media, the stated period of
residence in the 2012 COC and the circumstances that surrounded the statement were already
matters of public record and were not hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo
warranto. Her Verified Answer, which was filed on 1 September 2015, admitted that she made a
mistake in the 2012 COC when she put in six ( 6) years and six ( 6) months as she
misunderstood the question and could have truthfully indicated a longer period. Her answer in
the SET case was a matter of public record. Therefore, when petitioner accomplished her COC
for President on 15 October 2015, she could not be said to have been attempting to hide her
erroneous statement in her 2012 COC for Senator which was expressly mentioned in her Verified
The facts now, if not stretched to distortion, do not show or even hint at an intention to hide the
2012 statement and have it covered by the 2015 representation. Petitioner, moreover, has on her
side this Court's pronouncement that:

Concededly, a candidate's disqualification to run for public office does not necessarily constitute
material misrepresentation which is the sole ground for denying due course to, and for the
cancellation of, a COC. Further, as already discussed, the candidate's misrepresentation in his
COC must not only refer to a material fact (eligibility and qualifications for elective office), but
should evince a deliberate intent to mislead, misinform or hide a fact which would otherwise
render a candidate ineligible. It must be made with an intention to deceive the electorate as to
one's qualifications to run for public office.

In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of
evidenced dates all of which can evince animus manendi to the Philippines and animus non
revertedi to the United States of America. The veracity of the events of coming and staying home
was as much as dismissed as inconsequential, the focus having been fixed at the petitioner's
"sworn declaration in her COC for Senator" which the COMELEC said "amounts to a declaration
and therefore an admission that her residence in the Philippines only commence sometime in
November 2006"; such that "based on this declaration, [petitioner] fails to meet the residency
requirement for President." This conclusion, as already shown, ignores the standing
jurisprudence that it is the fact of residence, not the statement of the person that determines
residence for purposes of compliance with the constitutional requirement of residency for election
as President. It ignores the easily researched matter that cases on questions of residency have
been decided favorably for the candidate on the basis of facts of residence far less in number,
weight and substance than that presented by petitioner. It ignores, above all else, what we
consider as a primary reason why petitioner cannot be bound by her declaration in her COC for
Senator which declaration was not even considered by the SET as an issue against her eligibility
for Senator. When petitioner made the declaration in her COC for Senator that she has been a
resident for a period of six (6) years and six (6) months counted up to the 13 May 2013 Elections,
she naturally had as reference the residency requirements for election as Senator which was
satisfied by her declared years of residence. It was uncontested during the oral arguments
before us that at the time the declaration for Senator was made, petitioner did not have as yet
any intention to vie for the Presidency in 2016 and that the general public was never made aware
by petitioner, by word or action, that she would run for President in 2016. Presidential candidacy
has a length-of-residence different from that of a senatorial candidacy. There are facts of
residence other than that which was mentioned in the COC for Senator. Such other facts of
residence have never been proven to be false, and these, to repeat include:

[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however stayed in
the USA to finish pending projects and arrange the sale of their family home.
Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner]
enrolled Brian in Beacon School in Taguig City in 2005 and Hanna in Assumption College in
Makati City in 2005. Anika was enrolled in Learning Connection in San Juan in 2007, when she
was already old enough to go to school.
In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson Place
Condominium in San Juan. [Petitioner] and her family lived in Unit 7F until the construction of
their family home in Corinthian Hills was completed.
Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer who
handled [petitioner's] adoption in 1974 failed to secure from the Office of the Civil Registrar of
Iloilo a new Certificate of Live Birth indicating [petitioner's] new name and stating that her parents
are "Ronald Allan K. Poe" and "Jesusa L. Sonora."
In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of
some of the family's remaining household belongings. [Petitioner] returned to the Philippines on
11 March 2006.

In late March 2006, [petitioner's] husband informed the United States Postal Service of the
family's abandonment of their address in the US.
The family home in the US was sole on 27 April 2006.
In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the
Philippines on 4 May 2006 and began working for a Philippine company in July 2006.
In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they
eventually built their family home.

In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall
under the exclusive ground of false representation, to consider no other date than that mentioned
by petitioner in her COC for Senator.
All put together, in the matter of the citizenship and residence of petitioner for her candidacy as
President of the Republic, the questioned Resolutions of the COMELEC in Division and En
Banc are, one and all, deadly diseased with grave abuse of discretion from root to fruits.
WHEREFORE, the petition is GRANTED. The Resolutions, to wit:
1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001
(DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora PoeLlamanzares, respondent, stating that:
[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016
National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe-Llamanzares
is hereby GRANTED.
2. dated 11 December 2015, rendered through the COMELEC First Division, in the consolidated
cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad
Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras,
petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139
(DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora PoeLlamanzares, respondent; stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to
GRANT the petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES for the elective position of President of the Republic of the
Philippines in connection with the 9 May 2016 Synchronized Local and National Elections.
3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015
Resolution of the Second Division stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to
DENY the Verified Motion for Reconsideration of SENATOR MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES. The Resolution dated 11 December 2015 of the Commission
First Division is AFFIRMED.
4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015
Resolution of the First Division.
are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POELLAMANZARES is DECLARED QUALIFIED to be a candidate for President in the National and
Local Elections of 9 May 2016.

Republic of the Philippines

G.R. No. 206510

September 16, 2014

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV.
DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO,
M. REYES, JR., Bagong Alyansang Makabayan, HON. NERI JAVIER COLMENARES, Bayan
Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk VF A Movement, TERESITA R. PEREZ,
Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG, Kilusang Mayo
TUPAZ, Petitioners,
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE in his
capacity as Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S. AQUINO
III in his capacity as Commander-in-Chief of the Armed Forces of the Philippines, HON.
ALBERT F. DEL ROSARIO, Secretary, pepartment of Foreign Affair.s, HON. PAQUITO
OCHOA, JR., Executiv~.:Secretary, Office of the President, . HON. VOLTAIRE T. GAZMIN,
Secretary, Department of National Defense, HON. RAMON JESUS P. P AJE, Secretary,
Department of Environment and Natural Resoz!rces, VICE ADMIRAL JOSE LUIS M.
ALANO, Philippine Navy Flag Officer in Command, Armed Forces of the Philippines,
ADMIRAL RODOLFO D. ISO RENA, Commandant, Philippine Coast Guard, COMMODORE
0. DOMINGO, Commandant of Armed Forces of the Philippines Command and LT. GEN.
TERRY G. ROBLING, US Marine Corps Forces. Pacific and Balikatan 2013 Exercise CoDirector, Respondents.
Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a
Temporary Environmental Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC,
otherwise known as the Rules of Procedure for Environmental Cases (Rules), involving violations
of environmental laws and regulations in relation to the grounding of the US military ship USS
Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of southern Philippines)
language which means "long reef exposed at low tide." Tubbataha is composed of two huge
coral atolls - the north atoll and the south atoll - and the Jessie Beazley Reef, a smaller coral
structure about 20 kilometers north of the atolls. The reefs of Tubbataha and Jessie Beazley are
considered part of Cagayancillo, a remote island municipality of Palawan.

In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No. 306
issued by President Corazon C. Aquino on August 11, 1988. Located in the middle of Central
Sulu Sea, 150 kilometers southeast of Puerto Princesa City, Tubbataha lies at the heart of the
Coral Triangle, the global center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and Cultural
Organization (UNESCO) as a World Heritage Site. It was recognized as one of the Philippines'
oldest ecosystems, containing excellent examples of pristine reefs and a high diversity of marine
life. The 97,030-hectare protected marine park is also an important habitat for internationally
threatened and endangered marine species. UNESCO cited Tubbataha's outstanding universal
value as an important and significant natural habitat for in situ conservation of biological diversity;
an example representing significant on-going ecological and biological processes; and an area of
exceptional natural beauty and aesthetic importance.

On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067, otherwise known as the
"Tubbataha Reefs Natural Park (TRNP) Act of 2009" "to ensure the protection and conservation
of the globally significant economic, biological, sociocultural, educational and scientific values of
the Tubbataha Reefs into perpetuity for the enjoyment of present and future generations." Under
the "no-take" policy, entry into the waters of TRNP is strictly regulated and many human activities
are prohibited and penalized or fined, including fishing, gathering, destroying and disturbing the
resources within the TRNP. The law likewise created the Tubbataha Protected Area Management
Board (TPAMB) which shall be the sole policy-making and permit-granting body of the TRNP.

The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In

December 2012, the US Embassy in the Philippines requested diplomatic clearance for the said
vessel "to enter and exit the territorial waters of the Philippines and to arrive at the port of Subic
Bay for the purpose of routine ship replenishment, maintenance, and crew liberty." On January
6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after a brief stop
for fuel in Okinawa, Japan.


On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar,
Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground
on the northwest side of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast of
Palawan. No cine was injured in the incident, and there have been no reports of leaking fuel or
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret for
the incident in a press statement. Likewise, US Ambassador to the Philippines Harry K. Thomas,
Jr., in a meeting at the Department of Foreign Affairs (DFA) on February 4, "reiterated his regrets
over the grounding incident and assured Foreign Affairs Secretazy Albert F. del Rosario that the
United States will provide appropriate compensation for damage to the reef caused by the
ship." By March 30, 2013, the US Navy-led salvage team had finished removing the last piece of
the grounded ship from the coral reef.

On April 1 7, 2013, the above-named petitioners on their behalf and in representation of their
respective sector/organization and others, including minors or generations yet unborn, filed the
present petition agairtst Scott H. Swift in his capacity as Commander of the US 7th Fleet, Mark A.
Rice in his capacity as Commanding Officer of the USS Guardian and Lt. Gen. Terry G. Robling,
US Marine Corps Forces, Pacific and Balikatan 2013 Exercises Co-Director ("US respondents");
President Benigno S. Aquino III in his capacity as Commander-in-Chief of the Armed Forces of

the Philippines (AFP), DF A Secretary Albert F. Del Rosario, Executive Secretary Paquito Ochoa,
Jr., Secretary Voltaire T. Gazmin (Department of National Defense), Secretary Jesus P. Paje
(Department of Environment and Natural Resources), Vice-Admiral Jose Luis M. Alano
(Philippine Navy Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena (Philippine Coast
Guard Commandant), Commodore Enrico Efren Evangelista (Philippine Coast Guard-Palawan),
and Major General Virgilio 0. Domingo (AFP Commandant), collectively the "Philippine
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS
Guardian cause and continue to cause environmental damage of such magnitude as to affect the
provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental,
Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which events violate their constitutional
rights to a balanced and healthful ecology. They also seek a directive from this Court for the
institution of civil, administrative and criminal suits for acts committed in violation of
environmental laws and regulations in connection with the grounding incident.
Specifically, petitioners cite the following violations committed by US respondents under R.A. No.
10067: unauthorized entry (Section 19); non-payment of conservation fees (Section 21 );
obstruction of law enforcement officer (Section 30); damages to the reef (Section 20); and
destroying and disturbing resources (Section 26[g]). Furthermore, petitioners assail certain
provisions of the Visiting Forces Agreement (VFA) which they want this Court to nullify for being
The numerous reliefs sought in this case are set forth in the final prayer of the petition, to wit:
WHEREFORE, in view of the foregoing, Petitioners respectfully pray that the Honorable Court: 1.
Immediately issue upon the filing of this petition a Temporary Environmental Protection Order
(TEPO) and/or a Writ of Kalikasan, which shall, in particular,
a. Order Respondents and any person acting on their behalf, to cease and desist all
operations over the Guardian grounding incident;
b. Initially demarcating the metes and bounds of the damaged area as well as an
additional buffer zone;
c. Order Respondents to stop all port calls and war games under 'Balikatan' because of
the absence of clear guidelines, duties, and liability schemes for breaches of those
duties, and require Respondents to assume responsibility for prior and future
environmental damage in general, and environmental damage under the Visiting Forces
Agreement in particular.
d. Temporarily define and describe allowable activities of ecotourism, diving, recreation,
and limited commercial activities by fisherfolk and indigenous communities near or
around the TRNP but away from the damaged site and an additional buffer zone;
2. After summary hearing, issue a Resolution extending the TEPO until further orders of
the Court;
3. After due proceedings, render a Decision which shall include, without limitation:

a. Order Respondents Secretary of Foreign Affairs, following the dispositive portion of

Nicolas v. Romulo, "to forthwith negotiate with the United States representatives for the
appropriate agreement on [environmental guidelines and environmental accountability]
under Philippine authorities as provided in Art. V[] of the VFA ... "
b. Direct Respondents and appropriate agencies to commence administrative, civil, and
criminal proceedings against erring officers and individuals to the full extent of the law,
and to make such proceedings public;
c. Declare that Philippine authorities may exercise primary and exclusive criminal
jurisdiction over erring U.S. personnel under the circumstances of this case;
d. Require Respondents to pay just and reasonable compensation in the settlement of all
meritorious claims for damages caused to the Tubbataha Reef on terms and conditions
no less severe than those applicable to other States, and damages for personal injury or
death, if such had been the case;
e. Direct Respondents to cooperate in providing for the attendance of witnesses and in
the collection and production of evidence, including seizure and delivery of objects
connected with the offenses related to the grounding of the Guardian;
f. Require the authorities of the Philippines and the United States to notify each other of
the disposition of all cases, wherever heard, related to the grounding of the Guardian;
g. Restrain Respondents from proceeding with any purported restoration, repair, salvage
or post salvage plan or plans, including cleanup plans covering the damaged area of the
Tubbataha Reef absent a just settlement approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and LOU consultations in accordance
with the Local Government Code and R.A. 10067;
i. Require Respondent US officials and their representatives to place a deposit to the
TRNP Trust Fund defined under Section 17 of RA 10067 as a bona .fide gesture towards
full reparations;
j. Direct Respondents to undertake measures to rehabilitate the areas affected by the
grounding of the Guardian in light of Respondents' experience in the Port Royale
grounding in 2009, among other similar grounding incidents;
k. Require Respondents to regularly publish on a quarterly basis and in the name of
transparency and accountability such environmental damage assessment, valuation, and
valuation methods, in all stages of negotiation;
l. Convene a multisectoral technical working group to provide scientific and technical
support to the TPAMB;
m. Order the Department of Foreign Affairs, Department of National Defense, and the
Department of Environment and Natural Resources to review the Visiting Forces
Agreement and the Mutual Defense Treaty to consider whether their provisions allow for

the exercise of erga omnes rights to a balanced and healthful ecology and for damages
which follow from any violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of
protecting the damaged areas of TRNP;
o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction") and Article VI
of the Visiting Forces Agreement unconstitutional for violating equal protection and/or for
violating the preemptory norm of nondiscrimination incorporated as part of the law of the
land under Section 2, Article II, of the Philippine Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other respects;
4. Provide just and equitable environmental rehabilitation measures and such other
reliefs as are just and equitable under the premises. (Underscoring supplied.)

Since only the Philippine respondents filed their comment to the petition, petitioners also filed a
motion for early resolution and motion to proceed ex parte against the US respondents.

Respondents' Consolidated Comment

In their consolidated comment with opposition to the application for a TEPO and ocular
inspection and production orders, respondents assert that: ( 1) the grounds relied upon for the
issuance of a TEPO or writ of Kalikasan have become fait accompli as the salvage operations on
the USS Guardian were already completed; (2) the petition is defective in form and substance;
(3) the petition improperly raises issues involving the VFA between the Republic of the
Philippines and the United States of America; and ( 4) the determination of the extent of
responsibility of the US Government as regards the damage to the Tubbataha Reefs rests
exdusively with the executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal standing of petitioners to file the present
Locus standi is "a right of appearance in a court of justice on a given question." Specifically, it is
"a party's personal and substantial interest in a case where he has sustained or will sustain direct
injury as a result" of the act being challenged, and "calls for more than just a generalized
grievance." However, the rule on standing is a procedural matter which this Court has relaxed
for non-traditional plaintiffs like ordinary citizens, taxpayers and legislators when the public
interest so requires, such as when the subject matter of the controversy is of transcendental
importance, of overreaching significance to society, or of paramount public interest.



In the landmark case of Oposa v. Factoran, Jr., we recognized the "public right" of citizens to "a
balanced and healthful ecology which, for the first time in our constitutional history, is solemnly
incorporated in the fundamental law." We declared that the right to a balanced and healthful
ecology need not be written in the Constitution for it is assumed, like other civil and polittcal rights

guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications. Such right carries with it the
correlative duty to refrain from impairing the environment.


On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled
that not only do ordinary citizens have legal standing to sue for the enforcement of environmental
rights, they can do so in representation of their own and future generations. Thus:
Petitioners minors assert that they represent their generation as well as generations yet unborn.
We find no difficulty in ruling that they can, for themselves, for others of their generation and for
the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding
generations can only be based on the concept of intergenerational responsibility insofar as the
right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded,
considers the "rhythm and harmony of nature." Nature means the created world in its entirety.
Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources to the end that their exploration,
development and utilization be equitably accessible to the present a:: well as future generations.
Needless to say, every generation has a responsibility to the next to preserve that rhythm and
harmony for the full 1:njoyment of a balanced and healthful ecology. Put a little differently, the
minors' assertion of their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the generations to
come. (Emphasis supplied.)

The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and
generations yet unborn, is now enshrined in the Rules which allows the filing of a citizen suit in
environmental cases. The provision on citizen suits in the Rules "collapses the traditional rule on
personal and direct interest, on the principle that humans are stewards of nature."

Having settled the issue of locus standi, we shall address the more fundamental question of
whether this Court has jurisdiction over the US respondents who did not submit any pleading or
manifestation in this case.
The immunity of the State from suit, known also as the doctrine of sovereign immunity or nonsuability of the State, is expressly provided in Article XVI of the 1987 Constitution which states:

Section 3. The State may not be sued without its consent.

In United States of America v. Judge Guinto, we discussed the principle of state immunity from
suit, as follows:

The rule that a state may not be sued without its consent, now expressed in Article XVI, Section
3, of the 1987 Constitution, is one of the generally accepted principles of international law that we
have adopted as part of the law of our land under Article II, Section 2. x x x.
Even without such affirmation, we would still be bound by the generally accepted principles of
international law under the doctrine of incorporation. Under this doctrine, as accepted by the
majority of states, such principles are deemed incorporated in the law of every civilized state as a
condition and consequence of its membership in the society of nations. Upon its admission to

such society, the state is automatically obligated to comply with these principles in its relations
with other states.
As applied to the local state, the doctrine of state immunity is based on the justification given by
Justice Holmes that ''there can be no legal right against the authority which makes the law on
which the right depends." [Kawanakoa v. Polybank, 205 U.S. 349] There are other practical
reasons for the enforcement of the doctrine. In the case of the foreign state sought to be
impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in parem,
non habet imperium. All states are sovereign equals and cannot assert jurisdiction over one
another. A contrary disposition would, in the language of a celebrated case, "unduly vex the
peace of nations." [De Haber v. Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state without its consent, it is also
applicable to complaints filed against officials of the state for acts allegedly performed by them in
the discharge of their duties. The rule is that if the judgment against such officials will require the
state itself to perform an affirmative act to satisfy the same,. such as the appropriation of the
amount needed to pay the damages awarded against them, the suit must be regarded as against
the state itself although it has not been formally impleaded. [Garcia v. Chief of Staff, 16 SCRA
120] In such a situation, the state may move to dismiss the comp.taint on the ground that it has
been filed without its consent. (Emphasis supplied.)

Under the American Constitution, the doctrine is expressed in the Eleventh Amendment which
The Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals, we further expounded on the immunity of foreign
states from the jurisdiction of local courts, as follows:

The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of
customary international law then closely identified with the personal immunity of a foreign
sovereign from suit and, with the emergence of democratic states, made to attach not just to the
person of the head of state, or his representative, but also distinctly to the state itself in its
sovereign capacity. If the acts giving rise to a suit arc those of a foreign government done by its
foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity,
the complaint could be barred by the immunity of the foreign sovereign from suit without its
consent. Suing a representative of a state is believed to be, in effect, suing the state itself. The
proscription is not accorded for the benefit of an individual but for the State, in whose service he
is, under the maxim -par in parem, non habet imperium -that all states are soverr~ign equals and
cannot assert jurisdiction over one another. The implication, in broad terms, is that if the
judgment against an official would rec 1uire the state itself to perform an affirmative act to satisfy
the award, such as the appropriation of the amount needed to pay the damages decreed against
him, the suit must be regarded as being against the state itself, although it has not been formally
impleaded. (Emphasis supplied.)

In the same case we also mentioned that in the case of diplomatic immunity, the privilege is not
an immunity from the observance of the law of the territorial sovereign or from ensuing legal
liability; it is, rather, an immunity from the exercise of territorial jurisdiction.

In United States of America v. Judge Guinto, one of the consolidated cases therein involved a
Filipino employed at Clark Air Base who was arrested following a buy-bust operation conducted
by two officers of the US Air Force, and was eventually dismissed from his employment when he
was charged in court for violation of R.A. No. 6425. In a complaint for damages filed by the said
employee against the military officers, the latter moved to dismiss the case on the ground that
the suit was against the US Government which had not given its consent. The RTC denied the
motion but on a petition for certiorari and prohibition filed before this Court, we reversed the RTC
and dismissed the complaint. We held that petitioners US military officers were acting in the
exercise of their official functions when they conducted the buy-bust operation against the
complainant and thereafter testified against him at his trial. It follows that for discharging their
duties as agents of the United States, they cannot be directly impleaded for acts imputable to
their principal, which has not given its consent to be sued.

This traditional rule of State immunity which exempts a State from being sued in the courts of
another State without the former's consent or waiver has evolved into a restrictive doctrine which
distinguishes sovereign and governmental acts (Jure imperil") from private, commercial and
proprietary acts (Jure gestionis). Under the restrictive rule of State immunity, State immunity
extends only to acts Jure imperii. The restrictive application of State immunity is proper only
when the proceedings arise out of commercial transactions of the foreign sovereign, its
commercial activities or economic affairs.

In Shauf v. Court of Appeals, we discussed the limitations of the State immunity principle, thus:

It is a different matter where the public official is made to account in his capacity as such for acts
contrary to law and injurious to the rights of plaintiff. As was clearly set forth by JustiGe Zaldivar
in Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc., et al. : "Inasmuch as the
State authorizes only legal acts by its officers, unauthorized acts of government officials or
officers are not acts of the State, and an action against the officials or officers by one whose
rights have been invaded or violated by such acts, for the protection of his rights, is not a suit
against the State within the rule of immunity of the State from suit. In the same tenor, it has been
said that an action at law or suit in equity against a State officer or the director of a State
department on the ground that, while claiming to act for the State, he violates or invades the
personal and property rights of the plaintiff, under an unconstitutional act or under an assumption
of authority which he does not have, is not a suit against the State within the constitutional
provision that the State may not be sued without its consent." The rationale for this ruling is that
the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.
The aforecited authorities are clear on the matter. They state that the doctrine of immunity from
suit will not apply and may not be invoked where the public official is being sued in his private
and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and
agents of the government is removed the moment they are sued in their individual capacity. This
situation usually arises where the public official acts without authority or in excess of the powers
vested in him. It is a well-settled principle of law that a public official may be liable in his personal
private capacity for whatever damage he may have caused by his act done with malice and in
bad faith, or beyond the scope of his authority or jurisdiction. (Emphasis supplied.) In this case,
the US respondents were sued in their official capacity as commanding officers of the US Navy
who had control and supervision over the USS Guardian and its crew. The alleged act or
omission resulting in the unfortunate grounding of the USS Guardian on the TRNP was

committed while they we:re performing official military duties. Considering that the satisfaction of
a judgment against said officials will require remedial actions and appropriation of funds by the
US government, the suit is deemed to be one against the US itself. The principle of State
immunity therefore bars the exercise of jurisdiction by this Court over the persons of respondents
Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the
conduct of the US in this case, when its warship entered a restricted area in violation of R.A. No.
10067 and caused damage to the TRNP reef system, brings the matter within the ambit of Article
31 of the United Nations Convention on the Law of the Sea (UNCLOS). He explained that while
historically, warships enjoy sovereign immunity from suit as extensions of their flag State, Art. 31
of the UNCLOS creates an exception to this rule in cases where they fail to comply with the rules
and regulations of the coastal State regarding passage through the latter's internal waters and
the territorial sea.
According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter of
long-standing policy the US considers itself bound by customary international rules on the
"traditional uses of the oceans" as codified in UNCLOS, as can be gleaned from previous
declarations by former Presidents Reagan and Clinton, and the US judiciary in the case of United
States v. Royal Caribbean Cruise Lines, Ltd.

The international law of the sea is generally defined as "a body of treaty rules arid customary
norms governing the uses of the sea, the exploitation of its resources, and the exercise of
jurisdiction over maritime regimes. It is a branch of public international law, regulating the
relations of states with respect to the uses of the oceans." The UNCLOS is a multilateral treaty
which was opened for signature on December 10, 1982 at Montego Bay, Jamaica. It was ratified
by the Philippines in 1984 but came into force on November 16, 1994 upon the submission of the
60th ratification.

The UNCLOS is a product of international negotiation that seeks to balance State sovereignty
(mare clausum) and the principle of freedom of the high seas (mare liberum). The freedom to
use the world's marine waters is one of the oldest customary principles of international law. The
UNCLOS gives to the coastal State sovereign rights in varying degrees over the different zones
of the sea which are: 1) internal waters, 2) territorial sea, 3) contiguous zone, 4) exclusive
economic zone, and 5) the high seas. It also gives coastal States more or less jurisdiction over
foreign vessels depending on where the vessel is located.



Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises
sovereignty, subject to the UNCLOS and other rules of international law. Such sovereignty
extends to the air space over the territorial sea as well as to its bed and subsoil.

In the case of warships, as pointed out by Justice Carpio, they continue to enjoy sovereign
immunity subject to the following exceptions:

Article 30
Non-compliance by warships with the laws and regulations of the coastal State
If any warship does not comply with the laws and regulations of the coastal State concerning
passage through the territorial sea and disregards any request for compliance therewith which is
made to it, the coastal State may require it to leave the territorial sea immediately.

Article 31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage to the coastal State
resulting from the non-compliance by a warship or other government ship operated for noncommercial purposes with the laws and regulations of the coastal State concerning passage
through the territorial sea or with the provisions of this Convention or other rules of international
Article 32
Immunities of warships and other government ships operated for non-commercial purposes
With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this
Convention affects the immunities of warships and other government ships operated for noncommercial purposes. (Emphasis supplied.) A foreign warship's unauthorized entry into our
internal waters with resulting damage to marine resources is one situation in which the above
provisions may apply. But what if the offending warship is a non-party to the UNCLOS, as in this
case, the US?
An overwhelming majority - over 80% -- of nation states are now members of UNCLOS, but
despite this the US, the world's leading maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS' negotiation and drafting, the U.S.
delegation ultimately voted against and refrained from signing it due to concerns over deep
seabed mining technology transfer provisions contained in Part XI. In a remarkable, multilateral
effort to induce U.S. membership, the bulk of UNCLOS member states cooperated over the
succeeding decade to revise the provisions. The revisions satisfied the Clinton
administration, which signed the revised Part XI implementing agreement in 1994. In the fall of
1994, President Clinton transmitted UNCLOS and the Part XI implementing agreement to the
Senate requesting its advice and consent. Despite consistent support from President Clinton,
each of his successors, and an ideologically diverse array of stakeholders, the Senate has since
withheld the consent required for the President to internationally bind the United States to
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the 108th and
110th Congresses, its progress continues to be hamstrung by significant pockets of political
ambivalence over U.S. participation in international institutions. Most recently, 111 th Congress
SFRC Chairman Senator John Kerry included "voting out" UNCLOS for full Senate consideration
among his highest priorities. This did not occur, and no Senate action has been taken on
UNCLOS by the 112th Congress.

Justice Carpio invited our attention to the policy statement given by President Reagan on March
10, 1983 that the US will "recognize the rights of the other , states in the waters off their coasts,
as reflected in the convention [UNCLOS], so long as the rights and freedom of the United States
and others under international law are recognized by such coastal states", and President
Clinton's reiteration of the US policy "to act in a manner consistent with its [UNCLOS] provisions
relating to traditional uses of the oceans and to encourage other countries to do likewise." Since
Article 31 relates to the "traditional uses of the oceans," and "if under its policy, the US

'recognize[s] the rights of the other states in the waters off their coasts,"' Justice Carpio
postulates that "there is more reason to expect it to recognize the rights of other states in their
internal waters, such as the Sulu Sea in this case."
As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to join the
UN CLOS was centered on its disagreement with UN CLOS' regime of deep seabed mining (Part
XI) which considers the oceans and deep seabed commonly owned by mankind," pointing out
that such "has nothing to do with its [the US'] acceptance of customary international rules on
It may be mentioned that even the US Navy Judge Advocate General's Corps publicly endorses
the ratification of the UNCLOS, as shown by the following statement posted on its official
The Convention is in the national interest of the United States because it establishes stable
maritime zones, including a maximum outer limit for territorial seas; codifies innocent passage,
transit passage, and archipelagic sea lanes passage rights; works against "jurisdictiomtl creep"
by preventing coastal nations from expanding their own maritime zones; and reaffirms sovereign
immunity of warships, auxiliaries anJ government aircraft.
Economically, accession to the Convention would support our national interests by enhancing the
ability of the US to assert its sovereign rights over the resources of one of the largest continental
shelves in the world. Further, it is the Law of the Sea Convention that first established the
concept of a maritime Exclusive Economic Zone out to 200 nautical miles, and recognized the
rights of coastal states to conserve and manage the natural resources in this Zone.

We fully concur with Justice Carpio's view that non-membership in the UNCLOS does not mean
that the US will disregard the rights of the Philippines as a Coastal State over its internal waters
and territorial sea. We thus expect the US to bear "international responsibility" under Art. 31 in
connection with the USS Guardian grounding which adversely affected the Tubbataha reefs.
Indeed, it is difficult to imagine that our long-time ally and trading partner, which has been
actively supporting the country's efforts to preserve our vital marine resources, would shirk from
its obligation to compensate the damage caused by its warship while transiting our internal
waters. Much less can we comprehend a Government exercising leadership in international
affairs, unwilling to comply with the UNCLOS directive for all nations to cooperate in the global
task to protect and preserve the marine environment as provided in Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or
through competent international organizations, in formulating and elaborating international rules,
standards and recommended practices and procedures consistent with this Convention, for the
protection and preservation of the marine environment, taking into account characteristic regional
In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute.
Although the said treaty upholds the immunity of warships from the jurisdiction of Coastal States

while navigating the.latter's territorial sea, the flag States shall be required to leave the territorial
'::;ea immediately if they flout the laws and regulations of the Coastal State, and they will be
liable for damages caused by their warships or any other government vessel operated for noncommercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise, they
invoke federal statutes in the US under which agencies of the US have statutorily waived their
immunity to any action. Even under the common law tort claims, petitioners asseverate that the
US respondents are liable for negligence, trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United States troops and personnel
visiting the Philippines to promote "common security interests" between the US and the
Philippines in the region. It provides for the guidelines to govern such visits of military personnel,
and further defines the rights of the United States and the Philippine government in the matter of
criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment,
materials and supplies. The invocation of US federal tort laws and even common law is thus
improper considering that it is the VF A which governs disputes involving US military ships and
crew navigating Philippine waters in pursuance of the objectives of the agreement.

As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction and not
to special civil actions such as the present petition for issuance of a writ of Kalikasan. In fact, it
can be inferred from Section 17, Rule 7 of the Rules that a criminal case against a person
charged with a violation of an environmental law is to be filed separately:
SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the writ of
kalikasan shall not preclude the filing of separate civil, criminal or administrative actions.
In any case, it is our considered view that a ruling on the application or non-application of
criminal jurisdiction provisions of the VF A to US personnel who may be found responsible for the
grounding of the USS Guardian, would be premature and beyond the province of a petition for a
writ of Kalikasan. We also find it unnecessary at this point to determine whether such waiver of
State immunity is indeed absolute. In the same vein, we cannot grant damages which have
resulted from the violation of environmental laws. The Rules allows the recovery of damages,
including the collection of administrative fines under R.A. No. 10067, in a separate civil suit or
that deemed instituted with the criminal action charging the same violation of an environmental

Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for issuance of a
writ of Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for decision,
the court shall render judgment granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from committing acts or
neglecting the performance of a duty in violation of environmental laws resulting in
environmental destruction or damage;

(b) Directing the respondent public official, govemment agency, private person or entity to
protect, preserve, rehabilitate or restore the environment;
(c) Directing the respondent public official, government agency, private person or entity to
monitor strict compliance with the decision and orders of the court;
(d) Directing the respondent public official, government agency, or private person or entity
to make periodic reports on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced and healthful
ecology or to the protection, preservation, rehabilitation or restoration of the environment,
except the award of damages to individual petitioners. (Emphasis supplied.)
We agree with respondents (Philippine officials) in asserting that this petition has become moot
in the sense that the salvage operation sought to be enjoined or restrained had already been
accomplished when petitioners sought recourse from this Court. But insofar as the directives to
Philippine respondents to protect and rehabilitate the coral reef stn icture and marine habitat
adversely affected by the grounding incident are concerned, petitioners are entitled to these
reliefs notwithstanding the completion of the removal of the USS Guardian from the coral reef.
However, we are mindful of the fact that the US and Philippine governments both expressed
readiness to negotiate and discuss the matter of compensation for the damage caused by the
USS Guardian. The US Embassy has also declared it is closely coordinating with local scientists
and experts in assessing the extent of the damage and appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed by the Rules. As can
be gleaned from the following provisions, mediation and settlement are available for the
consideration of the parties, and which dispute resolution methods are encouraged by the court,
to wit:
SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court shall inquire from
the parties if they have settled the dispute; otherwise, the court shall immediately refer the parties
or their counsel, if authorized by their clients, to the Philippine Mediation Center (PMC) unit for
purposes of mediation. If not available, the court shall refer the case to the clerk of court or legal
researcher for mediation.
Mediation must be conducted within a non-extendible period of thirty (30) days from receipt of
notice of referral to mediation.
The mediation report must be submitted within ten (10) days from the expiration of the 30-day
SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the continuance of the
pre-trial. Before the scheduled date of continuance, the court may refer the case to the branch
clerk of court for a preliminary conference for the following purposes:
(a) To assist the parties in reaching a settlement;

SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and their counsels
under oath, and they shall remain under oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute.
The judge may issue a consent decree approving the agreement between the parties in
accordance with law, morals, public order and public policy to protect the right of the people to a
balanced and healthful ecology.
SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to compromise
or settle in accordance with law at any stage of the proceedings before rendition of judgment.
(Underscoring supplied.)
The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser, the
USS Port Royal, ran aground about half a mile off the Honolulu Airport Reef Runway and
remained stuck for four days. After spending $6.5 million restoring the coral reef, the US
government was reported to have paid the State of Hawaii $8.5 million in settlement over coral
reef damage caused by the grounding.

To underscore that the US government is prepared to pay appropriate compensation for the
damage caused by the USS Guardian grounding, the US Embassy in the Philippines has
announced the formation of a US interdisciplinary scientific team which will "initiate discussions
with the Government of the Philippines to review coral reef rehabilitation options in Tubbataha,
based on assessments by Philippine-based marine scientists." The US team intends to "help
assess damage and remediation options, in coordination with the Tubbataha Management
Office, appropriate Philippine government entities, non-governmental organizations, and
scientific experts from Philippine universities."

A rehabilitation or restoration program to be implemented at the cost of the violator is also a

major relief that may be obtained under a judgment rendered in a citizens' suit under the Rules,
SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff proper
reliefs which shall include the protection, preservation or rehabilitation of the environment and
the payment of attorney's fees, costs of suit and other litigation expenses. It may also require the
violator to submit a program of rehabilitation or restoration of the environment, the costs of which
shall be borne by the violator, or to contribute to a special trust fund for that purpose subject to
the control of the court.

In the light of the foregoing, the Court defers to the Executive Branch on the matter of
compensation and rehabilitation measures through diplomatic channels. Resolution of these
issues impinges on our relations with another State in the context of common security interests
under the VFA. It is settled that "[t]he conduct of the foreign relations of our government is
committed by the Constitution to the executive and legislative-"the political" --departments of the

government, and the propriety of what may be done in the exercise of this political power is not
subject to judicial inquiry or decision."

On the other hand, we cannot grant the additional reliefs prayed for in the petition to order a
review of the VFA and to nullify certain immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, the VFA was duly
concurred in by the Philippine Senate and has been recognized as a treaty by the United States
as attested and certified by the duly authorized representative of the United States government.
The VF A being a valid and binding agreement, the parties are required as a matter of
international law to abide by its terms and provisions. The present petition under the Rules is
not the proper remedy to assail the constitutionality of its provisions. WHEREFORE, the petition
for the issuance of the privilege of the Writ of Kalikasan is hereby DENIED.


No pronouncement as to costs.