1. NICOLAS V.
ROMULA, GR 175888, 2/11/2009 of the United States of America agree that, in accordance with the
FACTS: Respondent Lance Corporal (L/CPL) Daniel Smith is a
member of the United States Armed Forces. He was charged with the
crime of rape committed against a Filipina, petitioner herein, sometime
on November 1, 2005.
Pursuant to the Visiting Forces Agreement (VFA) between the Republic
of the Philippines and the United States, entered into on February 10,
1998, the United States, at its request, was granted custody of
defendant Smith pending the proceedings.
During the trial, which was transferred from the Regional Trial Court
(RTC) of Zambales to the RTC of Makati for security reasons, the
United States Government faithfully complied with its undertaking to
bring defendant Smith to the trial court every time his presence was
required.
On December 4, 2006, the RTC of Makati, following the end of the trial,
rendered its Decision, finding defendant Smith guilty, thus: Pursuant to
Article V, paragraph No. 10, of the Visiting Forces Agreement entered
into by the Philippines and the United States, accused L/CPL. DANIEL
J. SMITH shall serve his sentence in the facilities that shall, thereafter,
be agreed upon by appropriate Philippine and United States authorities.
Pending agreement on such facilities, accused L/CPL. DANIEL J.
SMITH is hereby temporarily committed to the Makati City Jail.
On December 29, 2006, however, defendant Smith was taken out of
the Makati jail by a contingent of Philippine law enforcement agents,
purportedly acting under orders of the Department of the Interior and
Local Government, and brought to a facility for detention under the
control of the United States government, provided for under new
agreements between the Philippines and the United States, referred to
as the Romulo-Kenney Agreement of December 19, 2006 which states:
The Government of the Republic of the Philippines and the Government
Visiting Forces Agreement signed between our two nations, Lance
Corporal Daniel J. Smith, United States Marine Corps, be returned to
U.S. military custody at the U.S. Embassy in Manila.
Petitioners contend that the Philippines should have custody of
defendant L/CPL Smith because, first of all, the VFA is void and
unconstitutional.
The VFA provides that in cases of offenses committed by the members
of the US Armed Forces in the Philippines, the following rules apply:
Article V Criminal Jurisdiction
xxx 6. The custody of any United States personnel over whom the
Philippines is to exercise jurisdiction shall immediately reside with
United States military authorities, if they so request, from the
commission of the offense until completion of all judicial proceedings.
United States military authorities shall, upon formal notification by the
Philippine authorities and without delay, make such personnel available
to those authorities in time for any investigative or judicial proceedings
relating to the offense with which the person has been charged. In
extraordinary cases, the Philippine Government shall present its
position to the United States Government regarding custody, which the
United States Government shall take into full account. In the event
Philippine judicial proceedings are not completed within one year, the
United States shall be relieved of any obligations under this paragraph.
The one year period will not include the time necessary to appeal. Also,
the one year period will not include any time during which scheduled
trial procedures are delayed because United States authorities, after
timely notification by Philippine authorities to arrange for the presence
of the accused, fail to do so.
ISSUES:
(1) whether or not the presence of US Armed Forces in Philippine
territory pursuant to the VFA is allowed under a treaty duly concurred in
by the Senate xxx and recognized as a treaty by the other contracting
State.
(2) Whether or not to allow the transfer of custody of an accused to a
foreign power is to provide for a different rule of procedure for that
accused, which also violates the equal protection clause of the
Constitution.
RULING:
(1) Yes. First, as held in Bayan v. 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 fact that the VFA was not submitted for advice and consent of the
United States Senate does not detract from its status as a binding
international agreement or treaty recognized by the said State. For this
is a matter of internal United States law.
The second reason has to do with the relation between the VFA and
the RP-US Mutual Defense Treaty of August 30, 1951. This earlier
agreement was signed and duly ratified with the concurrence of both
the Philippine Senate and the United States Senate.
Clearly, therefore, joint RP-US military exercises for the purpose of
developing the capability to resist an armed attack fall squarely under
the provisions of the RP-US Mutual Defense Treaty. The VFA, which is
the instrument agreed upon to provide for the joint RP-US military
exercises, is simply an implementing agreement to the main RP-US
Military Defense Treaty.
Accordingly, as an implementing agreement of the RP-US Mutual
Defense Treaty, it was not necessary to submit the VFA to the US
Senate for advice and consent, but merely to the US Congress under
the CaseZablocki Act within 60 days of its ratification. It is for this
reason that the US has certified that it recognizes the VFA as a binding
international agreement, i.e., a treaty, and [10] this substantially
complies with the requirements of Art. XVIII, Sec. 25 of our
Constitution.
The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with
by virtue of the fact that the presence of the US Armed Forces through
the VFA is a presence allowed under the RP-US Mutual Defense
Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified
and concurred in by both the Philippine Senate and the US Senate,
there is no violation of the Constitutional provision resulting from such
presence.
The VFA being a valid and binding agreement, the parties are required
as a matter of international law to abide by its terms and provisions.
(2) No. The rule in international law is that a foreign armed forces
allowed to enter ones territory is immune from local jurisdiction, except
to the extent agreed upon.
As a result, the situation involved is not one in which the power of this
Court to adopt rules of procedure is curtailed or violated, but rather one
in which, as is normally encountered around the world, the laws
(including rules of procedure) of one State do not extend or apply
except to the extent agreed upon to subjects of another State due to
the recognition of extraterritorial immunity given to such bodies as
visiting foreign armed forces.
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.
On the contrary, the Constitution states that the Philippines adopts the
generally accepted principles of international law as part of the law of
the land. (Art. II, Sec. 2).
 Minister of National Defense; HON. ALFREDO L. JUINIO, in his
Applying, however, the provisions of VFA, the Court finds that there is a capacity as Minister of Public Works, Transportation.
different treatment when it comes to detention as against custody. The
moment the accused has to be detained, e.g., after conviction, the rule
Generally Accepted Principles of International Law – Police Power
that governs is the following provision of the VFA:
FACTS: Agustin is the owner of a Volkswagen Beetle Car. He is
Article V Criminal Jurisdiction
assailing the validity of Letter of Instruction No 229 which requires all
motor vehicles to have early warning devices particularly to equip them
xxx Sec. 10. The confinement or detention by Philippine authorities of
with a pair of “reflectorized triangular early warning devices”. Agustin is
United States personnel shall be carried out in facilities agreed on by
arguing that this order is unconstitutional, harsh, cruel and
appropriate Philippines and United States authorities. United States
unconscionable to the motoring public. Cars are already equipped with
personnel serving sentences in the Philippines shall have the right to
blinking lights which is already enough to provide warning to other
visits and material assistance.
motorists. And that the mandate to compel motorists to buy a set of
reflectorized early warning devices is redundant and would only make
It is clear that the parties to the VFA recognized the difference between
manufacturers and dealers instant millionaires.
custody during the trial and detention after conviction, because they
provided for a specific arrangement to cover detention. And this specific
ISSUE: Whether or not the said is EO is valid.
arrangement clearly states not only that the detention shall be carried
out in facilities agreed on by authorities of both parties, but also that the
HELD: Such early warning device requirement is not an expensive
detention shall be by Philippine authorities. Therefore, the Romulo-
redundancy, nor oppressive, for car owners whose cars are already
Kenney Agreements of December 19 and 22, 2006, which are
equipped with 1) ‘blinking-lights in the fore and aft of said motor
agreements on the detention of the accused in the United States
vehicles,’ 2) ‘battery-powered blinking lights inside motor vehicles,’ 3)
Embassy, are not in accord with the VFA itself because such detention
‘built-in reflectorized tapes on front and rear bumpers of motor
is not by Philippine authorities.
vehicles,’ or 4) ‘well-lighted two (2) petroleum lamps (the Kinke) . . .
because: Being universal among the signatory countries to the said
Respondents should therefore comply with the VFA and negotiate with
1968 Vienna Conventions, and visible even under adverse conditions at
representatives of the United States towards an agreement on
a distance of at least 400 meters, any motorist from this country or from
detention facilities under Philippine authorities as mandated by Art. V,
any part of the world, who sees a reflectorized rectangular early
Sec. 10 of the VFA.
warning device installed on the roads, highways or expressways, will
conclude, without thinking, that somewhere along the travelled portion
2.G.R. No. L-49112 February 2, 1979 of that road, highway, or expressway, there is a motor vehicle which is
LEOVILLO C. AGUSTIN, petitioner, stationary, stalled or disabled which obstructs or endangers passing
vs. traffic. On the other hand, a motorist who sees any of the
HON. ROMEO F. EDU, in his capacity as Land Transportation aforementioned other built-in warning devices or the petroleum lamps
will not immediately get adequate advance warning because he will still
Commissioner; HON. JUAN PONCE ENRILE, in his capacity as
think what that blinking light is all about. Is it an emergency vehicle? Is
it a law enforcement car? Is it an ambulance? Such confusion or
uncertainty in the mind of the motorist will thus increase, rather than
decrease, the danger of collision.
On Police Power
The Letter of Instruction in question was issued in the exercise of the
police power. That is conceded by petitioner and is the main reliance of
respondents. It is the submission of the former, however, that while
embraced in such a category, it has offended against the due process
and equal protection safeguards of the Constitution, although the latter
point was mentioned only in passing. The broad and expansive scope
of the police power which was originally identified by Chief Justice
Taney of the American Supreme Court in an 1847 decision, as “nothing
more or less than the powers of government inherent in every
sovereignty” was stressed in the aforementioned case of Edu v. Ericta
thus: “Justice Laurel, in the first leading decision after the Constitution
came into force, Calalang v. Williams, identified police power with state
authority to enact legislation that may interfere with personal liberty or
property in order to promote the general welfare. Persons and property
could thus ‘be subjected to all kinds of restraints and burdens in order
to secure the general comfort, health and prosperity of the state.
Shortly after independence in 1948, Primicias v. Fugoso reiterated the
doctrine, such a competence being referred to as ‘the power to
prescribe regulations to promote the health, morals, peace, education,
good order or safety, and general welfare of the people.’ The concept
was set forth in negative terms by Justice Malcolm in a pre-
Commonwealth decision as ‘that inherent and plenary power in the
State which enables it to prohibit all things hurtful to the comfort, safety
and welfare of society.’ In that sense it could be hardly distinguishable
as noted by this Court in Morfe v. Mutuc with the totality of legislative
power. It is in the above sense the greatest and most powerful attribute
of government. It is, to quote Justice Malcolm anew, ‘the most
essential, insistent, and at least illimitable powers,’ extending as Justice
Holmes aptly pointed out ‘to all the great public needs.’ Its scope, ever
expanding to meet the exigencies of the times, even to anticipate the
future where it could be done, provides enough room for an efficient
and flexible response to conditions and circumstances thus assuring
the greatest benefits. In the language of Justice Cardozo: ‘Needs that
were narrow or parochial in the past may be interwoven in the present
with the well-being of the nation. What is critical or urgent changes with
the time.’ The police power is thus a dynamic agency, suitably vague
and far from precisely defined, rooted in the conception that men in
organizing the state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable an
individual citizen or a group of citizens to obstruct unreasonably the
enactment of such salutary measures calculated to insure communal
peace, safety, good order, and welfare.”
It was thus a heavy burden to be shouldered by Agustin, compounded
by the fact that the particular police power measure challenged was
clearly intended to promote public safety. It would be a rare occurrence
indeed for this Court to invalidate a legislative or executive act of that
character. None has been called to our attention, an indication of its
being non-existent. The latest decision in point, Edu v. Ericta, sustained
the validity of the Reflector Law, an enactment conceived with the
same end in view. Calalang v. Williams found nothing objectionable in a
statute, the purpose of which was: “To promote safe transit upon, and
avoid obstruction on roads and streets designated as national roads . .
.” As a matter of fact, the first law sought to be nullified after the
effectivity of the 1935 Constitution, the National Defense Act, with
petitioner failing in his quest, was likewise prompted by the imperative
demands of public safety.
3. Lim v. Executive Secretary
GR 151445 April 11, 2002
FACTS: Pursuant to the Visiting Forces Agreement (VFA) signed in
1999, personnel from the armed forces of the United States of America
started arriving in Mindanao to take partin "Balikatan 02-1” on January
2002. The Balikatan 02-1 exercises involves the simulation of joint
military maneuvers pursuant to the Mutual Defense Treaty, a bilateral
defense agreement entered into by the Philippines and the United
States in 1951. The exercise is rooted from the international anti-
terrorism campaign declared by President George W. Bush in reaction
to the 3 commercial aircrafts hijacking that smashed into twin towers of
the World Trade Center in New York City and the Pentagon building in
Washington, D.C. allegedly by the al-Qaeda headed by the Osama bin
Laden that occurred on September 11, 2001. Arthur D. Lim and
Paulino P. Ersando as citizens, lawyers and taxpayers filed a petition
for certiorari and prohibition attacking the constitutionality of the joint
exercise. Partylists Sanlakas and Partido Ng Manggagawa as
residents of Zamboanga and Sulu directly affected by the operations
filed a petition-in-intervention.
The Solicitor General commented the prematurity of the action as it is
based only on a fear of future violation of the Terms of Reference and
impropriety of availing of certiorari to ascertain a question of fact
specifically interpretation of the VFA whether it is covers "Balikatan 02-
1” and no question of constitutionality is involved. Moreover, there is
lack of locus standi since it does not involve tax spending and there is
no proof of direct personal injury.
ISSUE: W/N the petition and the petition-in-intervention should prosper.
HELD: NO. Petition and the petition-in-intervention are hereby
DISMISSED without prejudice to the filing of a new petition sufficient in
form and substance in the proper Regional Trial Court - Supreme Court
is not a trier of facts
Doctrine of Importance to the Public
Considering however the importance to the public of the case at bar,
and in keeping with the Court's duty, under the 1987 Constitution, to
determine whether or not the other branches of the government have
kept themselves within the limits of the Constitution and the laws that
they have not abused the discretion given to them, the Court has
brushed aside technicalities of procedure and has taken cognizance of
this petition.
Although courts generally avoid having to decide a constitutional
question based on the doctrine of separation of powers, which enjoins
upon the department of the government a becoming respect for each
other's act, this Court nevertheless resolves to take cognizance of the
instant petition.
Interpretation of Treaty
The VFA permits United States personnel to engage, on an
impermanent basis, in "activities," the exact meaning of which was left
undefined. The expression is ambiguous, permitting a wide scope of
undertakings subject only to the approval of the Philippine government.
The sole encumbrance placed on its definition is couched in the
negative, in that United States personnel must "abstain from any
activity inconsistent with the spirit of this agreement, and in particular,
from any political activity." All other activities, in other words, are fair
game.
To aid in this, the Vienna Convention on the Law of Treaties Article 31
SECTION 3 and Article 32 contains provisos governing interpretations
of international agreements. It is clear from the foregoing that the
cardinal rule of interpretation must involve an examination of the text,
which is presumed to verbalize the parties' intentions. The Convention
likewise dictates what may be used as aids to deduce the meaning of
terms, which it refers to as the context of the treaty, as well as other
elements may be taken into account alongside the aforesaid context.
According to Professor Briggs, writer on the Convention, the distinction
between the general rule of interpretation and the supplementary
means of interpretation is intended rather to ensure that the
supplementary means do not constitute an alternative, autonomous
method of interpretation divorced from the general rule.
The meaning of the word “activities" was deliberately made that way to
give both parties a certain leeway in negotiation. Thus, the VFA gives
legitimacy to the current Balikatan exercises. Both the history and
intent of the Mutual Defense Treaty and the VFA support the conclusion
that combat-related activities -as opposed to combat itself -such as the
one subject of the instant petition, are indeed authorized.
The Terms of Reference are explicit enough. Paragraph 8 of section I
stipulates that US exercise participants may not engage in combat
"except in self-defense." ." The indirect violation is actually petitioners'
worry, that in reality, "Balikatan 02-1" is actually a war principally
conducted by the United States government, and that the provision on
self-defense serves only as camouflage to conceal the true nature of
the exercise. A clear pronouncement on this matter thereby becomes
crucial. In our considered opinion, neither the MDT nor the VFA allow
foreign troops to engage in an offensive war on Philippine territory.
Under the salutary proscription stated in Article 2 of the Charter of the
United Nations:
Both the Mutual Defense Treaty and the Visiting Forces Agreement, as
in all other treaties and international agreements to which the
Philippines is a party, must be read in the context of the 1987
Constitution especially Sec. 2, 7 and 8 of Article 2: Declaration of
Principles and State Policies in this case. The Constitution also
regulates the foreign relations powers of the Chief Executive when it
provides that "[n]o treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the members of
the Senate." Even more pointedly Sec. 25 on Transitory Provisions
which shows antipathy towards foreign military presence in the country,
or of foreign influence in general. Hence, foreign troops are allowed
entry into the Philippines only by way of direct exception.
International Law vs. Fundamental Law and Municipal Laws
Conflict arises then between the fundamental law and our obligations
arising from international agreements.
Philip Morris, Inc. v. Court of Appeals: “Withal, the fact that international
law has been made part of the law of the land does not by any means
imply the primacy of international law over national law in the municipal
sphere. Under the doctrine of incorporation as applied in most
countries, rules of international law are given a standing equal, not
superior, to national legislation.”
From the perspective of public international law, a treaty is favored over
municipal law pursuant to the principle of pacta sunt servanda. Hence,
"[e]very treaty in force is binding upon the parties to it and must be
performed by them in good faith." Further, a party to a treaty is not
allowed to "invoke the provisions of its internal law as justification for its
failure to perform a treaty."
Our Constitution espouses the opposing view as stated in section 5 of
Article VIII: “The Supreme Court shall have the following powers: xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as
the law or the Rules of Court may provide, final judgments and order of
lower courts in:
(A) All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question.”
Ichong v. Hernandez: “provisions of a treaty are always subject to
qualification or amendment by a subsequent law, or that it is subject to
the police power of the State”
Gonzales v. Hechanova: “our Constitution authorizes the nullification of
a treaty, not only when it conflicts with the fundamental law, but, also,
when it runs counter to an act of Congress.”
The foregoing premises leave us no doubt that US forces are prohibited
/ from engaging in an offensive war on Philippine territory.
From the facts obtaining, we find that the holding of "Balikatan 02-1"
joint military exercise has not intruded into that penumbra of error that
would otherwise call for correction on our part. In other words,
respondents in the case... at bar have not committed grave abuse of
discretion amounting to lack or excess of jurisdiction.
WHEREFORE, the petition and the petition-in-intervention are hereby
DISMISSED without prejudice to the filing of a new petition sufficient in
form and substance in the proper Regional Trial Court.
Principles:
The VFA permits United States personnel to engage, on an
impermanent basis, in "activities," the exact meaning of which was left
undefined.
The VFA provides the "regulatory mechanism" by which "United States
military and civilian personnel [may visit] temporarily in the Philippines
in connection with activities approved by the Philippine Government."
Its primary goal is to facilitate the promotion of optimal cooperation
between American and Philippine military forces in the event of an
attack by a common foe.
4. Sen. Aquilino Pimentel, Jr. et. al vs Office of the Executive
Secretary
G.R. No. 158088
July 6, 2005
FACTS: This is a petition for mandamus filed by Petitioners (Sen.
Pimentel, et al) to compel the Office of the Executive Secretary and the
Department of Foreign Affairs to transmit the signed copy of the Rome
Statute of the International Criminal Court to the Senate of the
Philippines for its concurrence in accordance with Section 21, Article VII
of the 1987 Constitution.
The Rome Statute established the International Criminal Court which
“shall have the power to exercise its jurisdiction over persons for the
most serious crimes of international concern xxx and shall be
complementary to the national criminal jurisdictions.” Its jurisdiction
covers the crime of genocide, crimes against humanity, war crimes and
the crime of aggression as defined in the Statute. The Philippines
signed the Statute on December 28, 2000 through Charge d’ Affairs
Enrique A. Manalo of the Philippine Mission to the United Nations. Its
provisions, however, require that it be subject to ratification, acceptance
or approval of the signatory states.
Petitioners filed the instant petition to compel the Respondents (the
Office of the Executive Secretary and the Department of Foreign
Affairs) to transmit the signed text of the treaty to the Senate of the
Philippines for ratification.
It is the theory of the petitioners that ratification of a treaty, under both
domestic law and international law, is a function of the Senate. Hence,
it is the duty of the executive department to transmit the signed copy of
the Rome Statute to the Senate to allow it to exercise its discretion with
respect to ratification of treaties.
ISSUE: Whether or not the Executive Secretary and the Department of
Foreign Affairs have a ministerial duty to transmit to the Senate the
copy of the Rome Statute signed by a member of the Philippine Mission
to the United Nations even without the signature of the President.
HELD: In our system of government, the President, being the head of
state, is regarded as the sole organ and authority in external relations
and is the country’s sole representative with foreign nations. As the
chief architect of foreign policy, the President acts as the country’s
mouthpiece with respect to international affairs. Hence, the President is
vested with the authority to deal with foreign states and governments,
extend or withhold recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign relations. In the
realm of treaty-making, the President has the sole authority to negotiate
with other states.
Nonetheless, while the President has the sole authority to negotiate
and enter into treaties, the Constitution provides a limitation to his
power by requiring the concurrence of 2/3 of all the members of the
Senate for the validity of the treaty entered into by him. Section 21,
Article VII of the 1987 Constitution provides that “no treaty or
international agreement shall be valid and effective unless concurred in
by at least two-thirds of all the Members of the Senate.” The
participation of the legislative branch in the treaty-making process was
deemed essential to provide a check on the executive in the field of
foreign relations.
Thus, it should be emphasized that under our Constitution, the power to
ratify is vested in the President, subject to the concurrence of the
Senate. The role of the Senate, however, is limited only to giving or
withholding its consent, or concurrence, to the ratification. Hence, it is
within the authority of the President to refuse to submit a treaty to the
Senate or, having secured its consent for its ratification, refuse to ratify
it. Although the refusal of a state to ratify a treaty which has been
signed in its behalf is a serious step that should not be taken lightly,
such decision is within the competence of the President alone, which
cannot be encroached by this Court via a writ of mandamus. This Court
has no jurisdiction over actions seeking to enjoin the President in the
performance of his official duties. The Court, therefore, cannot issue the
writ of mandamus prayed for by the petitioners as it is beyond its
jurisdiction to compel the executive branch of the government to
transmit the signed text of Rome Statute to the Senate.
IN VIEW WHEREOF, the petition is DISMISSED.
5. KURODA vs. JALANDONI
G.R. No. L-2662 March 26, 1949
FACTS:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese
Imperial Army and Commanding General of the Japanese Imperial
Forces in The Philippines during a period covering 19433 and 19444
who is now charged before a military Commission convened by the
Chief of Staff of the Armed forces of the Philippines with having
unlawfully disregarded and failed "to discharge his duties as such
command, permitting them to commit brutal atrocities and other high
crimes against noncombatant civilians and prisoners of the Imperial
Japanese Forces in violation of the laws and customs of war" — comes
before this Court seeking to establish the illegality of Executive Order
No. 68 of the President of the Philippines: to enjoin and prohibit
respondents Melville S. Hussey and Robert Port from participating in
the prosecution of petitioner's case before the Military Commission and
to permanently prohibit respondents from proceeding with the case of
petitioners.
ISSUE:
Whether or not EO 68 is constitutional.
Whether or not the Military Commission has no jurisdiction to try
petitioner for acts committed in violation of the Hague Convention and
the Geneva Convention because the Philippines is not a signatory to
the first and signed the second only in 1947.
Whether or not Attorneys Hussey and Port have no personality as
prosecution United States not being party in interest in the case.
RULING:
1.) Executive Order No. 68, establishing a National War Crimes Office
prescribing rule and regulation governing the trial of accused war
criminals, was issued by the President of the Philippines on the 29th
days of July, 1947 This Court holds that this order is valid and
constitutional.
In accordance with the generally accepted principle of international law
of the present day including the Hague Convention the Geneva
Convention and significant precedents of international jurisprudence
established by the United Nation, all those person, military or civilian,
who have been guilty of planning preparing or waging a war of
aggression and of the commission of crimes and offenses
consequential and incidental thereto in violation of the laws and
customs of war, of humanity and civilization are held accountable
therefor. Consequently in the promulgation and enforcement of
Execution Order No. 68 the President of the Philippines has acted in
conformity with the generally accepted and policies of international law
which are part of the our Constitution.
The promulgation of said executive order is an exercise by the
President of his power as Commander in chief of all our armed forces.
War is not ended simply because hostilities have ceased. After
cessation of armed hostilities incident of war may remain pending which
should be disposed of as in time of war. An importance incident to a
conduct of war is the adoption of measure by the military command not
only to repel and defeat the enemies but to seize and subject to
disciplinary measure those enemies who in their attempt to thwart or
impede our military effort have violated the law of war. Indeed the
power to create a military commission for the trial and punishment of
war criminals is an aspect of waging war. And in the language of a
writer a military commission has jurisdiction so long as a technical state
of war continues. This includes the period of an armistice or military
occupation up to the effective of a treaty of peace and may extend
beyond by treaty agreement.
2.)
It cannot be denied that the rules and regulation of the Hague and
Geneva conventions form, part of and are wholly based on the
generally accepted principals of international law. In facts these rules
and principles were accepted by the two belligerent nation the United
State and Japan who were signatories to the two Convention, Such rule
and principles therefore form part of the law of our nation even if the
Philippines was not a signatory to the conventions embodying them for
our Constitution has been deliberately general and extensive in its
scope and is not confined to the recognition of rule and principle of
international law as continued inn treaties to which our government may
have been or shall be a signatory.
Furthermore when the crimes charged against petitioner were allegedly
committed the Philippines was under the sovereignty of United States
and thus we were equally bound together with the United States and
with Japan to the right and obligation contained in the treaties between
the belligerent countries. These rights and obligation were not erased
by our assumption of full sovereignty. If at all our emergency as a free
state entitles us to enforce the right on our own of trying and punishing
those who committed crimes against crimes against our people.
By the same token war crimes committed against our people and our
government while we were a Commonwealth are triable and punishable
by our present Republic.
3.)
In the first place respondent Military Commission is a special military
tribunal governed by a special law and not by the Rules of court which
govern ordinary civil court. It has already been shown that Executive
Order No. 68 which provides for the organization of such military
commission is a valid and constitutional law. There is nothing in said
executive order which requires that counsel appearing before said
commission must be attorneys qualified to practice law in the
Philippines in accordance with the Rules of Court. In facts it is common
in military tribunals that counsel for the parties are usually military
personnel who are neither attorneys nor even possessed of legal
training.
Secondly the appointment of the two American attorneys is not violative
of our nation sovereignty. It is only fair and proper that United States,
which has submitted the vindication of crimes against her government
and her people to a tribunal of our nation should be allowed
representation in the trial of those very crimes. If there has been any
relinquishment of sovereignty it has not been by our government but by
the United State Government which has yielded to us the trial and
punishment of her enemies. The least that we could do in the spirit of
comity is to allow them representation in said trials.
Alleging that the United State is not a party in interest in the case
petitioner challenges the personality of attorneys Hussey and Port as
prosecutors. It is of common knowledge that the United State and its
people have been equally if not more greatly aggrieved by the crimes
with which petitioner stands charged before the Military Commission. It
can be considered a privilege for our Republic that a leader nation
should submit the vindication of the honor of its citizens and its
government to a military tribunal of our country.
The Military Commission having been convened by virtue of a valid law
with jurisdiction over the crimes charged which fall under the provisions
of Executive Order No. 68, and having said petitioner in its custody, this
Court will not interfere with the due process of such Military
commission.
6.) CO KIM CHAM VS VALDEZ TAN KEH
(G.R. NO. L-5, 75 PHIL 113, SEPT. 17, 1945)
FACTS:
Petitioner Co Kim Cham had a pending Civil Case with the Court of
First Instance of Manila initiated during the time of the Japanese
occupation.
The respondent judge, Judge Arsenio Dizon, refused to continue
hearings on the case which were initiated during the Japanese military
occupation on the ground that the proclamation issued by General
MacArthur that “all laws, regulations and processes of any other
government in the Philippines than that of the said Commonwealth are
null and void and without legal effect in areas of the Philippines free of
enemy occupation and control” had the effect of invalidating and
nullifying all judicial proceedings and judgments of the court of the
Philippines during the Japanese military occupation, and that the lower
courts have no jurisdiction to take cognizance of and continue judicial
proceedings pending in the courts of the defunct Republic of the
Philippines in the absence of an enabling law granting such authority.
Respondent additionally contends that the government established
during the Japanese occupation was no de facto government.
ISSUE/S:
Whether or not judicial acts and proceedings of the court made during
the Japanese occupation were valid and remained valid even after the
liberation or reoccupation of the Philippines by the United States and
Filipino forces.
Whether or not the October 23, 1944 proclamation issued by General
MacArthur declaring that “all laws, regulations and processes of any
other government in the Philippines than that of the said
Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control” has invalidated all
judgments and judicial acts and proceedings of the courts.
Whether or not those courts could continue hearing the cases pending
before them, if the said judicial acts and proceedings were not
invalidated by MacArthur’s proclamation.
DISCUSSIONS:
Political and international law recognizes that all acts and proceedings
of a de facto government are good and valid. The Philippine Executive
Commission and the Republic of the Philippines under the Japanese
occupation may be considered de facto governments, supported by the
military force and deriving their authority from the laws of war. The
doctrine upon this subject is thus summed up by Halleck, in his work on
International Law (Vol. 2, p. 444): “The right of one belligerent to
occupy and govern the territory of the enemy while in its military
possession, is one of the incidents of war, and flows directly from the
right to conquer. We, therefore, do not look to the Constitution or
political institutions of the conqueror, for authority to establish a
government for the territory of the enemy in his possession, during its
military occupation, nor for the rules by which the powers of such
government are regulated and limited. Such authority and such rules
are derived directly from the laws war, as established by the usage of
the world, and confirmed by the writings of publicists and decisions of
courts — in fine, from the law of nations. . . . The municipal laws of a
conquered territory, or the laws which regulate private rights, continue
in force during military occupation, excepts so far as they are
suspended or changed by the acts of conqueror. . . . He, nevertheless,
has all the powers of a de facto government, and can at his pleasure
either change the existing laws or make new ones.”
General MacArthur annulled proceedings of other governments in his
proclamation October 23, 1944, but this cannot be applied on judicial
proceedings because such a construction would violate the law of
nations.
If the proceedings pending in the different courts of the Islands prior to
the Japanese military occupation had been continued during the
Japanese military administration, the Philippine Executive Commission,
and the so-called Republic of the Philippines, it stands to reason that
the same courts, which had become re-established and conceived of as
having in continued existence upon the reoccupation and liberation of
the Philippines by virtue of the principle of postliminy (Hall, International
Law, 7th ed., p. 516), may continue the proceedings in cases then
pending in said courts, without necessity of enacting a law conferring
jurisdiction upon them to continue said proceedings. As Taylor
graphically points out in speaking of said principles “a state or other
governmental entity, upon the removal of a foreign military force,
resumes its old place with its right and duties substantially unimpaired. .
. . Such political resurrection is the result of a law analogous to that
which enables elastic bodies to regain their original shape upon
removal of the external force, — and subject to the same exception in
case of absolute crushing of the whole fibre and content.”
RULING:
The judicial acts and proceedings of the court were good and valid. The
governments by the Philippine Executive Commission and the Republic
of the Philippines during the Japanese military occupation being de
facto governments, it necessarily follows that the judicial acts and
proceedings of the court of justice of those governments, which are not
of a political complexion, were good and valid. Those not only judicial
but also legislative acts of de facto government, which are not of a
political complexion, remained good and valid after the liberation or
reoccupation of the Philippines by the American and Filipino forces
under the leadership of General Douglas MacArthur.
The phrase “processes of any other government” is broad and may
refer not only to the judicial processes, but also to administrative or
legislative, as well as constitutional, processes of the Republic of the
Philippines or other governmental agencies established in the Islands
during the Japanese occupation. Taking into consideration the fact that,
as above indicated, according to the well-known principles of
international law all judgements and judicial proceedings, which are not
of a political complexion, of the de facto governments during the
Japanese military occupation were good and valid before and remained
so after the occupied territory had come again into the power of the
titular sovereign, it should be presumed that it was not, and could not
have been, the intention of General Douglas MacArthur, in using the
phrase “processes of any other government” in said proclamation, to
refer to judicial processes, in violation of said principles of international
law.
Although in theory the authority of the local civil and judicial
administration is suspended as a matter of course as soon as military
occupation takes place, in practice the invader does not usually take
the administration of justice into his own hands, but continues the
ordinary courts or tribunals to administer the laws of the country which
he is enjoined, unless absolutely prevented, to respect. An Executive
Order of President McKinley to the Secretary of War states that “in
practice, they (the municipal laws) are not usually abrogated but are
allowed to remain in force and to be administered by the ordinary
tribunals substantially as they were before the occupation. This
enlightened practice is, so far as possible, to be adhered to on the
present occasion.” And Taylor in this connection says: “From a
theoretical point of view it may be said that the conqueror is armed with
the right to substitute his arbitrary will for all pre-existing forms of
government, legislative, executive and judicial. From the stand-point of
actual practice such arbitrary will is restrained by the provision of the
law of nations which compels the conqueror to continue local laws and
institution so far as military necessity will permit.” Undoubtedly, this
practice has been adopted in order that the ordinary pursuits and
business of society may not be unnecessarily deranged, inasmuch as
belligerent occupation is essentially provisional, and the government
established by the occupant of transient character.
7. Ichong vs. Hernandez 10 Phil 1155
Facts:
Republic Act No. 1180 is entitled "An Act to Regulate the Retail
Business." In effect it nationalizes the retail trade business. One of the
main provisions of the Act is the prohibition against persons, not
citizens of the Philippines, and against associations, partnerships, or
corporations the capital of which are not wholly owned by citizens of the
Philippines, from engaging directly or indirectly in the retail trade.
Petitioner Lao H. Ichong, in his own behalf and in behalf of other alien
residents, corporations and partnerships adversely affected by Republic
Act No. 1180, brought this action to obtain a judicial declaration that
said Act is unconstitutional, and to enjoin the Secretary of Finance and
all other persons acting under him, particularly city and municipal
treasurers, from enforcing its provisions. Accordingly, Petitioner attacks
the constitutionality of the Act for the following reasons:
(1) it denies to alien residents the equal protection of the laws and
deprives them of their liberty and property without due process
(2) the subject of the Act is not expressed in the title
(3) the Act violates international and treaty obligations
(4) the provisions of the Act against the transmission by aliens of their
retail business thru hereditary succession
ISSUE: WON the Act deprives the aliens of the equal protection of the
laws.
HELD: The law is a valid exercise of police power and it does not deny
the aliens the equal protection of the laws. There are real and actual,
positive and fundamental differences between an alien and a citizen,
which fully justify the legislative classification adopted.
RATIO:
The equal protection clause does not demand absolute equality among
residents. It merely requires that all persons shall be treated alike,
under like circumstances and conditions both as to privileges conferred
and liabilities enforced.
The classification is actual, real and reasonable, and all persons of one
class are treated alike.
The difference in status between citizens and aliens constitutes a basis
for reasonable classification in the exercise of police power.
Official statistics point out to the ever-increasing dominance and control
by alien of the retail trade. It is this domination and control that is the
legislature’s target in the enactment of the Act.
The mere fact of alienage is the root cause of the distinction between
the alien and the national as a trader. The alien is naturally lacking in
that spirit of loyalty and enthusiasm for the Philippines, where he
temporarily stays and makes his living. The alien owes no allegiance or
loyalty to the State, and the State cannot rely on him/her in times of
crisis or emergency.
While the citizen holds his life, his person and his property subject to
the needs of the country, the alien may become the potential enemy of
the State.
The alien retailer has shown such utter disregard for his customers and
the people on whom he makes his profit. Through the illegitimate use of
pernicious designs and practices, the alien now enjoys a monopolistic
control on the nation’s economy endangering the national security in
times of crisis and emergency.
 8. Gonzales vs Hechanova - 9 SSCRA 230
FACTS: Respondent Executive Secretary authorized the importation of
67,000 tons of foreign rice to be purchased from private sources, and
created a rice procurement committee composed of the other
respondents herein for the implementation of said proposed
importation. Herein petitioner, Ramon A. Gonzales — a rice planter,
and president of the Iloilo Palay and Corn Planters Association, whose
members are, likewise, engaged in the production of rice and corn —
filed the petition herein, averring that, in making or attempting to make
said importation of foreign rice, the aforementioned respondents "are
acting without jurisdiction or in excess of jurisdiction", because Republic
Act No. 3452 which allegedly repeals or amends Republic Act No. 220
— explicitly prohibits the importation of rice and corn "the Rice and
Corn Administration or any other government agency;"and that a
preliminary injunction is necessary for the preservation of the rights of
the parties during the pendency this case and to prevent the judgment
therein from coming ineffectual. Petitioner prayed, therefore, that said
petition be given due course; that a writ of preliminary injunction be
forthwith issued restraining respondent their agents or representatives
from implementing the decision of the Executive Secretary to import the
aforementioned foreign rice.
It is contended that the Government of the Philippines has already
entered into two (2) contracts for the Purchase of rice, one with the
Republic of Vietnam, and another with the Government of Burma; that
these contracts constitute valid executive agreements under
international law; that such agreements became binding effective upon
the signing thereof by representatives the parties thereto; that in case
of conflict between Republic Acts Nos. 2207 and 3452 on the one hand,
and aforementioned contracts, on the other, the latter should prevail,
because, if a treaty and a statute are inconsistent with each other, the
conflict must be resolved — under the American jurisprudence in favor
of the one which is latest in point of time; that petitioner herein assails
the validity of acts of the Executive relative to foreign relations in the
conduct of which the Supreme Court cannot interfere; and the
aforementioned contracts have already been consummated, the
Government of the Philippines having already paid the price of the rice
involved therein through irrevocable letters of credit in favor of the sell
of the said commodity.
ISSUE: Whether or not an international agreement may be invalidated
by our courts.
RULING: Yes. The Constitution of the Philippines has clearly settled it
in the affirmative, by providing, in Section 2 of Article VIII thereof, that
the Supreme Court may not be deprived "of its jurisdiction to review,
revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as
the law or the rules of court may provide, final judgments and decrees
of inferior courts in — (1) All cases in which the constitutionality or
validity of any treaty, law, ordinance, or executive order or regulation is
in question". In other words, our Constitution authorizes the nullification
of a treaty, not only when it conflicts with the fundamental law, but, also,
when it runs counter to an act of Congress.
The alleged consummation of the aforementioned contracts with
Vietnam and Burma does not render this case academic, Republic Act
No. 2207 enjoins our Government not from entering into contracts for
the purchase of rice, but from importing rice, except under the
conditions Prescribed in said Act. Upon the other hand, Republic Act
No. 3452 has two (2) main features, namely: (a) it requires the
Government to purchase rice and corn directly from our local planters,
growers or landowners; and (b) it prohibits importations of rice by the
Government, and leaves such importations to private parties.
The parties to said contracts do not pear to have regarded the same as
executive agreements. But, even assuming that said contracts may
properly considered as executive agreements, the same are unlawful,
as well as null and void, from a constitutional viewpoint, said
agreements being inconsistent with the provisions of Republic Acts
Nos. 2207 and 3452. Although the President may, under the American
constitutional system enter into executive agreements without previous
legislative authority, he may not, by executive agreement, enter into a
transaction which is prohibited by statutes enacted prior thereto. Under
the Constitution, the main function of the Executive is to enforce laws
enacted by Congress. The former may not interfere in the performance
of the legislative powers of the latter, except in the exercise of his veto
power. He may not defeat legislative enactments that have acquired the
status of law, by indirectly repealing the same through an executive
agreement providing for the performance of the very act prohibited by
said laws.
The American theory to the effect that, in the event of conflict between
a treaty and a statute, the one which is latest in point of time shall
prevail, is not applicable to the case at bar, for respondents not only
admit, but, also insist that the contracts adverted to are not treaties.
Said theory may be justified upon the ground that treaties to which the
United States is signatory require the advice and consent of its Senate,
and, hence, of a branch of the legislative department. No such
justification can be given as regards executive agreements not
authorized by previous legislation, without completely upsetting the
principle of separation of powers and the system of checks and
balances which are fundamental in our constitutional set up and that of
the United States.
WHEREFORE, judgment is hereby rendered declaring that respondent
Executive Secretary had and has no power to authorize the importation
in question; that he exceeded his jurisdiction in granting said authority.
9. In Re: Garcia, 2 SCRA 984
FACTS:
Arturo Garcia applied for admission to the practice of law in the
Philippines without submitting to the required bar examinations. In his
verified petition, he asserts that he is a Filipino citizen born in Bacolod
City, of Filipino parentage. He had taken and finished the course of
“Bachillerato Superior” in Spain and was approved, selected and
qualified by the “Insitututo de Cervantes” for admission to the Central
University of Madrid where he studied and finished the law course,
graduating there as “Licenciado en derecho”. Thereafter he was
allowed to practice the law profession in Spain. He claims that under
the provisions of the Treaty on Academic Degrees and the Exercise of
Profession between the Republic of the Philippines and the Spanish
State, he is entitled to the practice the law profession in the Philippines
without submitting to the required bar examinations.
ISSUE:
Whether treaty can modify regulations governing admission to the
Philippine Bar
RULING:
The Court resolved to deny the petition. The provision of the Treaty on
Academic Degrees and the Exercise of Professions between the
Republic of the Philippines and the Spanish state cannot be invoked by
the applicant. Said Treaty was intended to govern Filipino citizens
desiring to practice the legal in Spain, and the citizens of Spain desiring
to practice the legal profession in the Philippines. Applicant is a Filipino
citizen desiring to practice the legal profession in the Philippines. He is
therefore subject to the laws of his own country and is not entitled to the
privileges extended to Spanish nationals desiring to practice in the
Philippines. The privileges provided in the Treaty invoked by the
applicant are made expressly subject to the laws and regulations of the
contracting state in whose territory it is desired to exercise the legal
profession.
The aforementioned Treaty, concluded between the Republic of the
Philippines and the Spanish state could not have been intended to
modify the laws and regulations governing admission to the practice of
law in the Philippines, for reason that the Executive Department may
not enroach upon the consitutional prerogative of the Supreme Court to
promulgate rules for admission to the practice of law in the Philippines,
and the power to repeal, alter or supplement such rules being reserved
only to the Congress of the Philippines.
Case no. 10

10. Liang vs People
Facts: Petitioner is an economist working with the Asian Development
Bank (ADB). Sometime in 1994, for allegedly uttering defamatory words
against fellow ADB worker, he was charged before the Metropolitan
Trial Court with two counts of grave oral defamation. Petitioner was
arrested by virtue of a warrant issued by the MeTC.
The next day, the MeTC judge received an "office of protocol" from the
DFA stating that petitioner is covered by immunity from legal process
under Section 45 of the Agreement between the ADB and the
Philippine Government. Based on the said protocol communication that
petitioner is immune from suit, the MeTC judge without notice to the
prosecution dismissed the two criminal cases.
The latter filed a motion for reconsideration which was opposed by the
DFA. When its motion was denied, the prosecution filed a petition for
certiorari and mandamus with the RTC which set aside the MeTC
rulings and ordered the latter court to enforce the warrant of arrest it
earlier issued. Hence this case.
Issue: Petitioner is arguing that he is covered by immunity under the
said Agreement.
Held: The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the
communication from the DFA that petitioner is covered by any
immunity. The DFAs determination that a certain person is covered by
immunity is only preliminary which has no binding effect in courts. In
receiving ex-parte the DFAs advice and in motu proprio dismissing the
two criminal cases without notice to the prosecution, the latter’s right to
due process was violated.
Second, under Section 45 of the Agreement which provides: Jksm
"Officers and staff of the Bank including for the purpose of this Article
experts and consultants performing missions for the Bank shall enjoy
the following privileges and immunities:
a.).......immunity from legal process with respect to acts performed by
them in their official capacity except when the Bank waives the
immunity."
the immunity mentioned therein is not absolute, but subject to the
exception that the act was done in "official capacity." It is therefore
necessary to determine if petitioner’s case falls within the ambit of
Section 45(a).
Third, slandering a person could not possibly be covered by the
immunity agreement because our laws do not allow the commission of
a crime, such as defamation, in the name of official duty. The
imputation of theft is ultra vires and cannot be part of official functions.
It is 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 or in bad faith or beyond the scope of his
authority or jurisdiction.
Case No. 11
G.R. No. 113213 August 15, 1994
PAUL JOSEPH WRIGHT, petitioner,
vs.
HON. COURT OF APPEALS, HON. JUDGE JOSE DE LA RAMA,
RTC, BRANCH 139, MAKATI, M.M. and HON. FRANK DRILON,
SECRETARY OF JUSTICE, respondents.
Facts: To suppress crime, the Philippines and Australia entered into a
Treaty of Extradition on the 7th of March 1988. The said treaty was
ratified in accordance with the provisions of Section 21, Article VII of the
1987 Constitution in a Resolution adopted by the Senate on September
10, 1990 and became effective thirty (30) days after both States notified
each other in writing that the respective requirements for the entry into
force of the Treaty have been complied with.
The Treaty adopts a "non-list, double criminality approach" which
provides for broader coverage of extraditable offenses between the two
countries and (which) embraces crimes punishable by imprisonment for
at least one (1) year. Additionally, the Treaty allows extradition for
crimes committed prior to the treaty's date of effectivity, provided that
these crimes were in the statute books of the requesting State at the
time of their commission.
Under the Treaty, each contracting State agrees to extradite. . .
"persons
. . . wanted for prosecution of the imposition or enforcement of a
sentence in the Requesting State for an extraditable offense." A request
for extradition requires, if the person is accused of an offense, the
furnishing by the requesting State of either a warrant for the arrest or a
copy of the warrant of arrest of the person, or, where appropriate, a
copy of the relevant charge against the person sought to be extradited.
In defining the extraditable offenses, the Treaty includes all offenses
"punishable under the Laws of both Contracting States by imprisonment
for a period of at least one (1) year, or by a more severe penalty." For
the purpose of the definition, the Treaty states that:
(a) an offense shall be an extraditable offense whether or not the laws
of the Contracting States place the offense within the same category or
denominate the offense by the same terminology;
(b) the totality of the acts or omissions alleged against the person
whose extradition is requested shall be taken into account in
determining the constituent elements of the offense.
Petitioner, an Australian Citizen, was sought by Australian authorities
for indictable crimes in his country. Extradition proceedings were filed
before the Regional Trial Court of Makati, which rendered a decision
ordering the deportation of petitioner. Said decision was sustained by
the Court of Appeals; hence, petitioner came to this Court by way of
review on certiorari, to set aside the order of deportation. Petitioner
contends that the provision of the Treaty giving retroactive effect to the
extradition treaty amounts to an ex post facto law which violates
Section 21 of Article VI of the Constitution. He assails the trial court's
decision ordering his extradition, arguing that the evidence adduced in
the court below failed to show that he is wanted for prosecution in his
country. Capsulized, all the principal issues raised by the petitioner
before this Court strike at the validity of the extradition proceedings
instituted by the government against him.
Pursuant to Section 5 of PD No. 1069, in relation to the Extradition
Treaty concluded between the Republic of the Philippines and Australia
on September 10, 1990, extradition proceedings were initiated on April
6, 1993 by the State Counsels of the Department of Justice before the
respondent court.
In its Order dated April 13, 1993, the respondent court directed the
petitioner to appear before it on April 30, 1993 and to file his answer
within ten days. In the same order, the respondent Judge ordered the
NBI to serve summons and cause the arrest of the petitioner.
The respondent court received return of the warrant of arrest and
summons signed by NBI Senior Agent Manuel Almendras with the
information that the petitioner was arrested on April 26, 1993 at Taguig,
Metro Manila and was subsequently detained at the NBI detention cell
where petitioner, to date, continue to be held.
Thereafter, the petitioner filed his answer.
In the course of the trial, the petitioner testified that he was jobless,
married to a Filipina, Judith David, with whom he begot a child; that he
has no case in Australia; that he is not a fugitive from justice and is not
aware of the offenses charged against him; that he arrived in the
Philippines on February 25, 1990 returned to Australia on March 1,
1990, then back to the Philippines on April 11, 1990, left the Philippines
again on April 24, 1990 for Australia and returned to the Philippines on
May 24, 1990, again left for Australia on May 29, 1990 passing by
Singapore and then returned to the Philippines on June 25, 1990 and
from that time on, has not left the Philippines; and that his tourist visa
has been extended but he could not produce the same in court as it
was misplaced, has neither produced any certification thereof, nor any
temporary working visa.
The trial court, in its decision dated 14 June 1993, granting the petition
for extradition requested by the Government of Australia, concluding
that the documents submitted by the Australian Government meet the
requirements of Article 7 of the Treaty of Extradition and that the
offenses for which the petitioner were sought in his country are
extraditable offenses under Article 2 of the said Treaty. The trial court,
moreover, held that under the provisions of the same Article, extradition
could be granted irrespective of when the offense — in relation to the
extradition — was committed, provided that the offense happened to be
an offense in the e requesting State at the time the acts or omissions
constituting the same were committed.
ISSUES:
a. WON the RTC erred in granting the extradition proceeding;
b. WON enforcement of Article 18 of the Treaty states a prohibition
for the retroactive application of offenses prior to the date of its
effectivity;
c. WON such retroactive application is in violation of the Constitution
for being an ex post facto law;
Clearly, a close reading of the provisions of the Treaty previously cited,
which are relevant to our determination of the validity of the extradition
order, reveals that the trial court committed no error in ordering the
petitioner's extradition. Conformably with Article 2, Section 2 of the said
Treaty, the crimes for which the petitioner was charged and for which
warrants for his arrest were issued in Australia were undeniably
offenses in the Requesting State at the time they were alleged to have
been committed. From its examination of the charges against the
petitioner, the trial court correctly determined that the corresponding
offenses under our penal laws are Articles 315(2) and 183 of the
Revised Penal Code on swindling/estafa and false testimony/perjury,
respectively.
The provisions of Article 6 of the said Treaty pertaining to the
documents required for extradition are sufficiently clear and require no
interpretation. The warrant for the arrest of an individual or a copy
thereof, a statement of each and every offense and a statement of the
acts and omissions which were alleged against the person in respect of
each offense are sufficient to show that a person is wanted for
prosecution under the said article. All of these documentary
requirements were dully submitted to the trial court in its proceedings a
quo. For purposes of the compliance with the provisions of the Treaty,
the signature and official seal of the Attorney-General of Australia were
sufficient to authenticate all the documents annexed to the Statement of
the Acts and Omissions, including the statement itself.
In conformity with the provisions of Article 7 of the Treaty, the
appropriate documents and annexes were signed by "an officer in or of
the Requesting State" "sealed with . . . (a) public seal of the
Requesting State or of a Minister of State, or of a Department or officer
of the Government of the Requesting State," and "certified by a
diplomatic or consular officer of the Requesting State accredited to the
Requested State." The last requirement was accomplished by the
certification made by the Philippine Consular Officer in Canberra,
Australia.
The petitioner's contention that a person sought to be extradited should
have a "criminal case pending before a competent court in the
Requesting State which can legally pass judgement of acquittal or
conviction" stretches the meaning of the phrase "wanted for
prosecution" beyond the intended by the treaty provisions because the
relevant provisions merely require "a warrant for the arrest or a copy of
the warrant for the arrest of the person sought to be extradited."
Furthermore, the 'Charge and Warrant of Arrest Sheets' attest to the
fact that petitioner is not only wanted for prosecution but has, in fact,
absconded to evade arrest and criminal prosecution. Since a charge or
information under the Treaty is required only when appropriate, i.e., in
cases where an individual charged before a competent court in the
Requesting State thereafter absconds to the Requested State, a charge
or a copy thereof is not required if the offender has in fact already
absconded before a criminal complaint could be filed. As the Court of
Appeals correctly noted, limiting the phrase "wanted for prosecution" to
person charged with an information or a criminal complaint renders the
Treaty ineffective over individuals who abscond for the purpose of
evading arrest and prosecution.
Petitioner takes the position that under Article 18 of the Treaty its
enforcement cannot be given retroactive effect. Article 18 states:
ENTRY INTO FORCE AND TERMINATION
This Treaty shall enter into force thirty (30) days after the date on which
the Contracting States have notified each other in writing that their
respective requirements for the entry into force of this Treaty have been
complied with.
Either contracting State may terminate this Treaty by notice in writing at
any time and it shall cease to be in force on the one hundred and
eightieth day after the day on which notice is given.
We fail to see how the petitioner can infer a prohibition against
retroactive enforcement from this provision. The first paragraph of
Article 18 refers to the Treaty's date of effectivity; the second paragraph
pertains to its termination. Absolutely nothing in the said provision
relates to, much less, prohibits retroactive enforcement of the Treaty.
On the other hand, Article 2(4) of the Treaty unequivocally provides
that:
4. Extradition may be granted pursuant to provisions of this Treaty
irrespective of when the offense in relation to which extradition is
requested was committed, provided that:
(a) it was an offense in the Requesting State at the time of the acts or
omissions constituting the offense; and
(b) the acts or omissions alleged would, if they had taken place in the
Territory of the Requested State at the time of the making of the
request for extradition, have constituted an offense against the laws in
force in that state.
Thus, the offenses for which petitioner is sought by his government are
clearly extraditable under Article 2 of the Treaty. They were offenses in
the Requesting State at the time they were committed, and, irrespective
of the time they were committed, they fall under the panoply of the
Extradition Treaty's provisions, specifically, Article 2 paragraph 4,
quoted above.
Does the Treaty's retroactive application violate the Constitutional
prohibition against ex post facto laws? Early commentators understood
ex post facto laws to include all laws of retrospective application,
whether civil or criminal. However, Chief Justice Salmon P. Chase,
citing Blackstone, The Federalist and other early U.S. state
constitutions in Calder vs. Bull concluded that the concept was limited
only to penal and criminal statutes. As conceived under our
Constitution, ex post facto laws are 1) statutes that make an act
punishable as a crime when such act was not an offense when
committed; 2) laws which, while not creating new offenses, aggravate
the seriousness of a crime; 3) statutes which prescribes greater
punishment for a crime already committed; or, 4) laws which alter the
rules of evidence so as to make it substantially easier to convict a
defendant. "Applying the constitutional principle, the (Court) has held
that the prohibition applies only to criminal legislation which affects the
substantial rights of the accused." This being so, there is no absolutely
no merit in petitioner's contention that the ruling of the lower court
sustaining the Treaty's retroactive application with respect to offenses
committed prior to the Treaty's coming into force and effect, violates the
Constitutional prohibition against ex post facto laws. As the Court of
Appeals correctly concluded, the Treaty is neither a piece of criminal
legislation nor a criminal procedural statute. "It merely provides for the
extradition of persons wanted for prosecution of an offense or a crime
which offense or crime was already committed or consummated at the
time the treaty was ratified."
In signing the Treaty, the government of the Philippines has determined
that it is within its interests to enter into agreement with the government
of Australia regarding the repatriation of persons wanted for criminal
offenses in either country. The said Treaty was concurred and ratified
by the Senate in a Resolution dated September 10, 1990. Having been
ratified in accordance with the provision of the 1987 Constitution, the
Treaty took effect thirty days after the requirements for entry into force
were complied with by both governments.
WHEREFORE, finding no reversible error in the decision of respondent
Court of Appeals, we hereby AFFIRM the same and DENY the instant
petition for lack of merit.
Case No. 12
Justice v. Hon. Lantion
GR 139465 Jan. 18 2000
MELO, J.
Lessons: Extradition Process
Laws: Extradition Treaty between the Philippines and the United
States, PD 1069, Bill of Rights
FACTS: In accordance to "Extradition Treaty Between the Government
of the Republic of the Philippines and the Government of the United
States of America" (RP-US Extradition Treaty), the Department of
Justice received from the Department of Foreign Affairs U.S. Note
Verbale No. 0522 containing a request for the extradition of Mark
Jimenez to the United States attached with the Grand Jury Indictment,
the warrant of arrest issued by the U.S. District Court, Southern District
of Florida, and other supporting documents on June 18, 1999. Mr.
Jimenez was charged with the following:
i. 18 USC 371 (Conspiracy to commit offense or to defraud the
United States; 2 counts; Maximum Penalty: 5 years/count)
ii. 26 USC 7201 (Attempt to evade or defeat tax;4 counts;
Maximum Penalty:5 years/count)
iii. 18 USC 1343 (Fraud by wire, radio, or television; 2 counts;
Maximum Penalty: 5 years/count)
iv. 18 USC 1001 (False statement or entries; 6 counts; Maximum
Penalty: 5 years/count)
v. 2 USC 441f (Election contributions in name of another; 33
counts; Maximum Penalty: less than 1 year)
The Department of Justice denied Mr. Jimenez request for extradition
documents based
on the following:
i. Article 7 of the Extradition Treaty between the Philippines and
the United States enumerates the documentary requirements and
establishes the procedures under which the documents submitted shall
be received and admitted as evidence. Evidentiary requirements are
under Section 4 of P.D. No. 1069. Evaluation by the Department of the
documents is not a preliminary investigation nor akin to preliminary
investigation of criminal cases. Thus, the constitutionally guaranteed
rights of the accused in all criminal prosecutions are not available. It
merely determines the compliance of the Requesting Government with
the procedures and requirements under the relevant law and treaty.
After the filing of the petition for extradition, the person sought to be
extradited will be furnished by the court with copies of the petition.
ii. The Department of Justice under P.D. No. 1069 is the counsel
of the foreign governments in all extradition requests. Furthermore,
Article 7 of the RP-US Extradition Treaty provides that the Philippine
Government must represent the interests of the United States in any
proceedings arising out of a request for extradition. Thus, it must
comply with the request of the United States Government to prevent
unauthorized disclosure of the subject information.
iii. Article 26 of the Vienna Convention on the Law of Treaties
provides that "Every treaty in force is binding upon the parties to it and
must be performed by them in good faith". Extradition is a tool of
criminal law enforcement and to be effective, requests for extradition or
surrender of accused or convicted persons must be processed
expeditiously.
Mr. Jimenez filed with filed with the Regional Trial Court of the National
Capital Judicial Region a petition presided over by the Honorable Ralph
C. Lantion against the Secretary of Justice, the Secretary of Foreign
Affairs, and the Director of the National Bureau of Investigation:
i. mandamus to compel the Department to furnish the extradition
documents
ii. certiorari to set aside Department’s letter dated July 13, 1999
denying his request
iii. prohibition to restrain the Department from considering the
extradition request and from filing an extradition petition in court
iv. enjoin the Secretary of Foreign Affairs and the Director of the
NBI from performing any act directed to the extradition
v. application for the issuance of a temporary restraining order and
a writ of preliminary injunction
Honorable Ralph C. Lantion ordered the Secretary of Justice, the
Secretary of Foreign Affairs and the Director of the National Bureau of
Investigation to maintain the status quo by refraining from committing
the acts complained of, from conducting further proceedings in
connection with the request of the United States Government, from
filing the corresponding Petition with a Regional Trial court and from
performing any act directed to the extradition for a period of 20 days
from service of the order.
Hon. Hilario G. Davide, Jr., Chief Justice of the Supreme Court
of the Philippines ordered Hon. Lantion to cease and desist from
enforcing the order. Due to transcendental importance, the Court
brushed aside peripheral procedural matters which concern the
proceedings in Civil Case No. 99-94684 and the TRO and proceded on
the issues.
ISSUE:
i. Whether or NOT the evaluation procedure is not a preliminary
investigation nor akin to preliminary investigation of criminal cases
ii. Whether or NOT the twin basic due process rights granted by
Sec. 3, Rule 112 of the Rules of Court on the right to be furnished a
copy of the complaint, the affidavits, and other supporting documents
and the right to submit counter-affidavits and other supporting
documents within 10 days from receipt is dispensable
iii. Whether or NOT the right of the people to information on
matters of public concern granted under Sec. 7 of Art. III of the 1987
Constitution is violated
HELD: DISMISSED for lack of merit. Petitioner is ordered to furnish
private respondent copies of the extradition request and its supporting
papers, and to grant him a reasonable period within which to file his
comment with supporting evidence.
i. NO.
Extradition Request
The Extradition Request (Sec. 4. PD 1069) is made by the Foreign
Diplomat of the Requesting State, addressed to the Secretary of
Foreign Affairs. The Secretary of Foreign Affairs has the executive
authority to conduct the evaluation process which, just like the
extradition proceedings proper, belongs to a class by itself or is sui
generis. It is not a criminal investigation but it is also erroneous to say
that it is purely an exercise of ministerial functions. At such stage, the
executive authority has the power:
1) to make a technical assessment of the completeness and
sufficiency of the extradition papers in form and substance
2) to outrightly deny the request if on its face and on the face of the
supporting documents the crimes indicated are not extraditable
3) to make a determination whether or not the request is politically
motivated, or that the offense is a military one which is not punishable
under non-military penal legislation.
The process may be characterized as an investigative or inquisitorial
process (NOT an exercise of an administrative body's quasi-judicial
power) (Sec. 5. PD 1069 and Pars. 2 and 3, Art. 7 of the RP-US
Extradition Treaty) that is indispensable to prosecution. The power of
investigation consists in gathering, organizing and analyzing evidence,
which is a useful aid or tool in an administrative agency's performance
of its rule-making or quasi-judicial functions.
In Ruperto v. Torres, the Court laid down the test of determining
whether an administrative body is exercising judicial functions or merely
investigatory functions applies to an administrative body authorized to
evaluate extradition documents. If the only purpose for investigation is
to evaluate evidence submitted before it based on the facts and
circumstances presented to it, and if the agency is not authorized to
make a final pronouncement affecting the parties, then there is an
absence of judicial discretion and judgment. Thus, the role of the
administrative body is limited to an initial finding of whether or not the
extradition petition can be filed in court. The court has the power to
determine whether or not the extradition should be effected. The
evaluation procedure (in contrast to ordinary investigations) may result
in the deprivation of liberty of the prospective extraditee or accused
(Sec. 2[c] of PD 1069) at 2 stages:
1) provisional arrest of the prospective extraditee pending the
submission of the request
This is because the Treaty provides that in case of urgency, a
contracting party may request the provisional arrest of the person
sought pending presentation of the request (Par. 1, Art. 9 of the RP-US
Extradition Treaty) to prevent flight but he shall be automatically
discharged after 60 days (Par. 4 of the RP-US Extradition Treaty) or 20
days (Sec. 20[d] PD 1069) if no request is submitted. Otherwise, he
can be continuously detained, or if not, subsequently rearrested (Par. 5,
Art 9, RP-US Extradition Treaty)
2) temporary arrest of the prospective extraditee during the
pendency of the extradition petition in court (Sec. 6, PD 1069).
The peculiarity and deviant characteristic of the evaluation procedure is
that:
1) there is yet no extradite; BUT
2) it results in an administrative if adverse to the person involved,
may cause his immediate incarceration
The evaluation process partakes of the nature of a criminal
investigation. Similar to the evaluation stage of extradition
proceedings, a preliminary investigation, which may result in the filing of
an information against the respondent, can possibly lead to his arrest,
and to the deprivation of his liberty. The characterization of a treaty in
Wright was in reference to the applicability of the prohibition against an
ex post facto law. It had nothing to do with the denial of the right to
notice, information, and hearing.
In this case, the extradition request was delivered to the Department of
Foreign Affairs on June 17, 1999 (the following day the Department of
Justice received the request). Thus, the Department of Foreign Affairs
failed to discharge its duty of evaluating the same and its
accompanying documents.
Extradition Petition
 After delivery of the Extradition Request by the Secretary of
Foreign Affairs to the Secretary of Justice, the latter shall designate and
authorize an attorney in his office to take charge of the case (Par. 1,
Sec. 5, PD 1069). The attorney shall file a written Extradition Petition
with the proper regional trial court, with a prayer that the court take the
extradition request under consideration (Par. 2, Sec. 5, PD 1069). The
presiding judge shall issue an order summoning the prospective
extraditee to appear and to answer the petition. The judge may issue a
warrant of arrest if it appears that the immediate arrest and temporary
detention of the accused will best serve the ends of justice or to prevent
flight (Par. 1, Sec. 6, PD 1069).
Extradition Hearing
The provisions of the Rules of Court, insofar as practicable and
not inconsistent with the summary nature of the proceedings, shall
apply during the Extradition Hearing (Par. 1, Sec. 9, PD 1069) The
attorney may represent the Requesting state. (Sec. 8, PD 1069). The
Court’s decision on whether the petition is extraditable based on the
application of the dual criminality rule and other conditions mentioned in
Article 2 of the RP-US Extradition Treaty or whether or not the offense
for which extradition is requested is a political one (Par. 3, Article 7 of
the RP-US Extradition Treaty) shall be final and immediately executory
(Sec. 12, PD 1069) and appealable with the Court of Appeals where the
provisions of the Rules of Court governing appeal in criminal cases in
the Court of Appeals shall apply except for the required 15-day period
to file brief (Sec. 13, PD 1069).
ii. YES.
Neither the Treaty nor the Extradition Law precludes the twin rights of
notice and hearing from a prospective extradite. In the absence of a
law or principle of law, we must apply the rules of fair play. Petitioner
contends that United States requested the Philippine Government to
prevent unauthorized disclosure of confidential information. Such
argument, however has been overturned by petitioner's revelation that
everything it refuses to make available at this stage would be
obtainable during trial. If the information is truly confidential, the veil of
secrecy cannot be lifted at any stage of the extradition proceedings.
The constitutional issue in the case at bar does not even call for "justice
outside legality," since private respondent's due process rights,
although not guaranteed by statute or by treaty, are protected by
constitutional guarantees.
However in this case, with the meticulous nature of the evaluation,
which cannot just be completed in an abbreviated period of time due to
its intricacies and certain problems in the extradition papers (such as
those that are in Spanish and without the official English translation,
and those that are not properly authenticated) it cannot to be said to be
urgent. Therefore, notice and hearing requirements of administrative
due process cannot be dispensed with and shelved aside.
iii. NO.
During the evaluation procedure, no official governmental action of our
own government has as yet been done; hence the invocation of the
right is premature. Later, and in contrast, records of the extradition
hearing would already fall under matters of public concern, because our
government by then shall have already made an official decision to
grant the extradition request.
13. Government of HK v. Olalia, GR 153675, April 19, 2007
[extradition in PIL and the Philippines]
FACTS: On January 30, 1995, the Republic of the Philippines and the
then British Crown Colony of Hong Kong signed an "Agreement for the
Surrender of Accused and Convicted Persons." It took effect on June
20, 1997. Hong Kong later on reverted back to the People’s Republic of
China and became the Hong Kong Special Administrative Region.
Private respondent Muñoz was charged before the Hong Kong Court
with three (3) counts of the offense of "accepting an advantage as
agent," in violation of Section 9 (1) (a) of the Prevention of Bribery
Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of
the offense of conspiracy to defraud, penalized by the common law of
Hong Kong. Warrants of arrest were issued against him. If convicted,
he faces a jail term of seven (7) to fourteen (14) years for each charge.
On September 13, 1999, the DOJ received from the Hong Kong
Department of Justice a request for the provisional arrest of private
respondent. The DOJ then forwarded the request to the National
Bureau of Investigation (NBI) which, in turn, filed with the RTC of
Manila an application for the provisional arrest of private respondent.
After 10 days, the RTC issued an Order of Arrest against private
respondent. That same day, the NBI agents arrested and detained him.
Respondent then filed with the CA a petition for certiorari, prohibition
and mandamus with application for preliminary mandatory injunction
and writ of habeas corpus questioning the validity of the order of arrest.
The CA declared the arrest void. Hence this petition by the Hongkong
Department of Justice thru DOJ, which thereafter filed a petition for
certiorari in the SC and sustained the validity of the arrest.
Meanwhile, as early as November 22, 1999, petitioner Hong Kong
Special Administrative Region filed with the RTC of Manila a petition for
the extradition of private respondent. For his part, private respondent
filed, in the same case,- a petition for bail which was opposed by
petitioner. After hearing, an order was issued denying the petition for
bail, holding that there is no Philippine law granting bail in extradition
cases and that private respondent is a high "flight risk." Motion for
reconsideration was filed by the respondent, which was granted. Hence
this petition.
ISSUE: Whether or not right to bail can be avail in extradition cases.
HELD: Yes. The extraditee may avail of his right to bail provided that
certain standards for the grant is satisfactorily met. However, in the
case at bar, the respondent cannot be granted such right, not being
able to show and clear and convincing evidence that he be entitled to
bail.
In Government of United States of America v. Hon. Guillermo G.
Purganan, the Court held that the constitutional provision on bail does
not apply to extradition proceedings. It is "available only in criminal
proceedings,".
At first glance, the above ruling applies squarely to private respondent’s
case. However, this Court cannot ignore the following trends in
international law: (1) the growing importance of the individual person in
public international law who, in the 20th century, has gradually attained
global recognition; (2) the higher value now being given to human rights
in the international sphere; (3) the corresponding duty of countries to
observe these universal human rights in fulfilling their treaty obligations;
and (4) the duty of this Court to balance the rights of the individual
under our fundamental law, on one hand, and the law on extradition, on
the other.
The modern trend in public international law is the primacy placed on
the worth of the individual person and the sanctity of human rights.
Slowly, the recognition that the individual person may properly be a
subject of international law is now taking root. The vulnerable doctrine
that the subjects of international law are limited only to states was
dramatically eroded towards the second half of the past century.
The Philippines, along with the other members of the family of nations,
committed to uphold the fundamental human rights as well as value the
worth and dignity of every person. This commitment is enshrined in
Section II, Article II of our Constitution which provides: "The State
values the dignity of every human person and guarantees full respect
for human rights." The Philippines, therefore, has the responsibility of
protecting and promoting the right of every person to liberty and due
process, ensuring that those detained or arrested can participate in the
proceedings before a court, to enable it to decide without delay on the
legality of the detention and order their release if justified. In other
words, the Philippine authorities are under obligation to make available
to every person under detention such remedies which safeguard their
fundamental right to liberty. These remedies include the right to be
admitted to bail. While this Court in Purganan limited the exercise of the
right to bail to criminal proceedings, however, in light of the various
international treaties giving recognition and protection to human rights,
particularly the right to life and liberty, a reexamination of this Court’s
ruling in Purganan is in order.
First, we note that the exercise of the State’s power to deprive an
individual of his liberty is not necessarily limited to criminal proceedings.
Respondents in administrative proceedings, such as deportation and
quarantine,4 have likewise been detained.
Second, to limit bail to criminal proceedings would be to close our eyes
to our jurisprudential history. Philippine jurisprudence has not limited
the exercise of the right to bail to criminal proceedings only. This Court
has admitted to bail persons who are not involved in criminal
proceedings. In fact, bail has been allowed in this jurisdiction to persons
in detention during the pendency of administrative proceedings, taking
into cognizance the obligation of the Philippines under international
conventions to uphold human rights.
EXTRADITION, is defined as the removal of an accused from the
Philippines with the object of placing him at the disposal of foreign
authorities to enable the requesting state or government to hold him in
connection with criminal investigation directed against him or execution
of a penalty imposed on him under the penal and criminal law of the
requesting state or government. Thus characterized as the right of the a
foreign power, created by treaty to demand the surrender of one
accused or convicted of a crimes within its territorial jurisdiction, and the
correlative obligation of the other state to surrender him to the
demanding state.
The extradited may be subject to detention as may be necessary step
in the process of extradition, but the length of time in the detention
should be reasonable.In the case at bar, the record show that the
respondent, Muñoz has been detained for 2 years without being
convicted in Hongkong.
The time-honored principle of pacta sunt servanda demands that the
Philippines honor its obligations under the Extradition Treaty it entered
into with the Hong Kong Special Administrative Region. Failure to
comply with these obligations is a setback in our foreign relations and
defeats the purpose of extradition. However, it does not necessarily
mean that in keeping with its treaty obligations, the Philippines should
diminish a potential extraditee’s rights to life, liberty, and due process.
More so, where these rights are guaranteed, not only by our
Constitution, but also by international conventions, to which the
Philippines is a party. We should not, therefore, deprive an extraditee of
his right to apply for bail, provided that a certain standard for the grant
is satisfactorily met.
The Philippines has the obligation of ensuring the individual his right to
liberty and due process and should not therefor deprive the extraditee
of his right to bail PROVIDED that certain standards for the grant is
satisfactorily met. In other words there should be “CLEAR AND
CONVINCING EVIDENCE”.
However in the case at bar, the respondent was not able to show and
clear and convincing evidence that he be entitled to bail. Thus the case
is remanded in the court for the determination and otherwise, should
order the cancellation of his bond and his immediate detention.
Case No. 14
Marcos vs. Manglapus G.R. No. 88211
Facts: Before the Court is a controversy of grave national importance.
While ostensibly only legal issues are involved, the Court's decision in
this case would undeniably have a profound effect on the political,
economic and other aspects of national life.
In February 1986, Ferdinand E. Marcos was deposed from the
presidency via the non-violent "people power" revolution and forced into
exile. In his stead, Corazon C. Aquino was declared President of the
Republic under a revolutionary government. Her ascension to and
consilidation of power have not been unchallenged. The failed Manila
Hotel coup in 1986 led by political leaders of Mr. Marcos, the takeover
of television station Channel 7 by rebel troops led by Col. Canlas with
the support of "Marcos loyalists" and the unseccessful plot of the
Marcos spouses to surreptitiously return from Hawii with mercenaries
aboard an aircraft chartered by a Lebanese arms dealer [Manila
Bulletin, January 30, 1987] awakened the nation to the capacity of the
Marcoses to stir trouble even from afar and to the fanaticism and blind
loyalty of their followers in the country. The ratification of the 1987
Constitution enshrined the victory of "people power" and also clearly
reinforced the constitutional moorings of Mrs. Aquino's presidency. This
did not, however, stop bloody challenges to the government. On August
28, 1987, Col. Gregorio Honasan, one of the major players in the
February Revolution, led a failed coup that left scores of people, both
combatants and civilians, dead. There were several other armed sorties
of lesser significance, but the message they conveyed was the same —
a split in the ranks of the military establishment that thraetened civilian
supremacy over military and brought to the fore the realization that
civilian government could be at the mercy of a fractious military.
But the armed threats to the Government were not only found in
misguided elements and among rabid followers of Mr. Marcos. There
are also the communist insurgency and the seccessionist movement in
Mindanao which gained ground during the rule of Mr. Marcos, to the
extent that the communists have set up a parallel government of their
own on the areas they effectively control while the separatist are
virtually free to move about in armed bands. There has been no let up
on this groups' determination to wrest power from the govermnent. Not
only through resort to arms but also to through the use of propaganda
have they been successful in dreating chaos and destabilizing the
country.
Nor are the woes of the Republic purely political. The accumulated
foreign debt and the plunder of the nation attributed to Mr. Marcos and
his cronies left the economy devastated. The efforts at economic
recovery, three years after Mrs. Aquino assumed office, have yet to
show concrete results in alleviating the poverty of the masses, while the
recovery of the ill-gotten wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the
Philipppines to die. But Mrs. Aquino, considering the dire
consequences to the nation of his return at a time when the stability of
government is threatened from various directions and the economy is
just beginning to rise and move forward, has stood firmly on the
decision to bar the return of Mr. Marcos and his family.
The Petition: This case is unique. It should not create a precedent, for
the case of a dictator forced out of office and into exile after causing
twenty years of political, economic and social havoc in the country and
who within the short space of three years seeks to return, is in a class
by itself.
This petition for mandamus and prohibition asks the Courts to order the
respondents to issue travel documents to Mr. Marcos and the
immediate members of his family and to enjoin the implementation of
the President's decision to bar their return to the Philippines.
Issue:
1 .Whether or not the ban of Mr. Marcos and family from returning to
the Philippines has international precedents?
2. Whether or not the President acted in grave abuse of discretion in
determining the return of the Marcoses?
HELD:
NO, The right to return to one's country is not among the rights
specifically guaranteed in the Bill of Rights, which treats only of the
liberty of abode and the right to travel, but it is our well-considered view
that the right to return may be considered, as a generally accepted
principle of international law and, under our Constitution, is part of the
law of the land [Art. II, Sec. 2 of the Constitution.]
However, it is distinct and separate from the right to travel and enjoys a
different protection under the International Covenant of Civil and
Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12
(4).]
The Declaration speaks of the "right to freedom of movement and
residence within the borders of each state" [Art. 13(l)] separately from
the "right to leave any country, including his own, and to return to his
country." [Art. 13(2).]
On the other hand, the Covenant guarantees the "right to liberty of
movement and freedom to choose his residence" [Art. 12(l)] and the
right to "be free to leave any country, including his own."
[Art. 12(2)] which rights may be restricted by such laws as "are
necessary to protect national security, public order, public health or
morals or enter qqqs own country" of which one cannot be "arbitrarily
deprived." [Art. 12(4).]
It would therefore be inappropriate to construe the limitations to the
right to return to one's country in the same context as those pertaining
to the liberty of abode and the right to travel.
NO. It cannot be said that the President has acted, or acts, arbitrarily or
that she has gravely abused her discretion in deciding to bar their
return where there exist factual bases for the President to conclude that
it was in the national interest to bar the return of the Marcoses to the
Philippines.
It will not do to argue that if the return of the Marcoses to the
Philippines will cause the escalation of violence against the State, that
would be the time for the President to step in and exercise the
commander-in-chief powers granted her by the Constitution to suppress
or stamp out such violence. The State, acting through the Government,
is not precluded from taking pre- emptive action against threats to its
existence if, though still nascent they are perceived as apt to become
serious and direct. Protection of the people is the essence of the duty of
government. The preservation of the State the fruition of the people's
sovereignty is an obligation in the highest order. The President, sworn
to preserve and defend the Constitution and to see the faithful
execution the laws, cannot shirk from that responsibility.
The power involved is the President's residual power to protect the
general welfare of the people. It is founded on the duty of the President,
as steward of the people.
Petition is Dismissed
15. TANADA vs ANGARA [G.R. No. 118295, May 2, 1997]
Facts: This is a case petition by Sen. Wigberto Tanada, together with
other lawmakers, taxpayers, and various NGO’s to nullify the Philippine
ratification of the World Trade Organization (WTO) Agreement.
Petitioners believe that this will be detrimental to the growth of our
National Economy and against to the “Filipino First” policy. The WTO
opens access to foreign markets, especially its major trading partners,
through the reduction of tariffs on its exports, particularly agricultural
and industrial products. Thus, provides new opportunities for the
service sector cost and uncertainty associated with exporting and more
investment in the country. These are the predicted benefits as reflected
in the agreement and as viewed by the signatory Senators, a “free
market” espoused by WTO.
Petitioners also contends that it is in conflict with the provisions of our
constitution, since the said Agreement is an assault on the sovereign
powers of the Philippines because it meant that Congress could not
pass legislation that would be good for national interest and general
welfare if such legislation would not conform to the WTO Agreement.
Issues:
1. Whether or not the petition present a justiciable controversy.
2. Whether or not the provisions of the ‘Agreement Establishing
the World Trade Organization and the Agreements and Associated
Legal Instruments included in Annexes one (1), two (2) and three (3) of
that agreement’ cited by petitioners directly contravene or undermine
the letter, spirit and intent of Section 19, Article II and Sections 10 and
12, Article XII of the 1987 Constitution.
3. Whether or not certain provisions of the Agreement unduly limit,
restrict or impair the exercise of legislative power by Congress.
4. Whether or not certain provisions of the Agreement impair the
exercise of judicial power by this Honorable Court in promulgating the
rules of evidence.
5. Whether or not the concurrence of the Senate ‘in the ratification
by the President of the Philippines of the Agreement establishing the
World Trade Organization’ implied rejection of the treaty embodied in
the Final Act.
Discussions:
· 1987 Constitution states that Judicial power includes the duty of
the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
government.
· Although the Constitution mandates to develop a self-reliant and
independent national economy controlled by Filipinos, does not
necessarily rule out the entry of foreign investments, goods and
services. It contemplates neither “economic seclusion” nor “mendicancy
in the international community.” The WTO itself has some built-in
advantages to protect weak and developing economies, which
comprise the vast majority of its members. Unlike in the UN where
major states have permanent seats and veto powers in the Security
Council, in the WTO, decisions are made on the basis of sovereign
equality, with each member’s vote equal in weight to that of any other.
Hence, poor countries can protect their common interests more
effectively through the WTO than through one-on-one negotiations with
developed countries. Within the WTO, developing countries can form
powerful blocs to push their economic agenda more decisively than
outside the Organization. Which is not merely a matter of practical
alliances but a negotiating strategy rooted in law. Thus, the basic
principles underlying the WTO Agreement recognize the need of
developing countries like the Philippines to “share in the growth in
international trade commensurate with the needs of their economic
development.”
· In its Declaration of Principles and State Policies, the
Constitution “adopts the generally accepted principles of international
law as part of the law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity, with all nations. By
the doctrine of incorporation, the country is bound by generally
accepted principles of international law, which are considered to be
automatically part of our own laws. A state which has contracted valid
international obligations is bound to make in its legislations such
modifications as may be necessary to ensure the fulfillment of the
obligations undertaken. Paragraph 1, Article 34 of the General
Provisions and Basic Principles of the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS) may intrudes on the
power of the Supreme Court to promulgate rules concerning pleading,
practice and procedures. With regard to Infringement of a design
patent, WTO members shall be free to determine the appropriate
method of implementing the provisions of TRIPS within their own
internal systems and processes.
· The alleged impairment of sovereignty in the exercise of
legislative and judicial powers is balanced by the adoption of the
generally accepted principles of international law as part of the law of
the land and the adherence of the Constitution to the policy of
cooperation and amity with all nations. The Senate, after deliberation
and voting, voluntarily and overwhelmingly gave its consent to the WTO
Agreement thereby making it “a part of the law of the land” is a
legitimate exercise of its sovereign duty and power.
Rulings:
1. In seeking to nullify an act of the Philippine Senate on the
ground that it contravenes the Constitution, the petition no doubt raises
a justiciable controversy. Where an action of the legislative branch is 4. The provision in Article 34 of WTO agreement does not contain
seriously alleged to have infringed the Constitution, it becomes not only an unreasonable burden, consistent as it is with due process and the
the right but in fact the duty of the judiciary to settle the dispute. As concept of adversarial dispute settlement inherent in our judicial
explained by former Chief Justice Roberto Concepcion, “the judiciary is system.
the final arbiter on the question of whether or not a branch of
government or any of its officials has acted without jurisdiction or in 5. The assailed Senate Resolution No. 97 expressed concurrence
excess of jurisdiction or so capriciously as to constitute an abuse of in exactly what the Final Act required from its signatories, namely,
discretion amounting to excess of jurisdiction. This is not only a judicial concurrence of the Senate in the WTO Agreement. Moreover, the
power but a duty to pass judgment on matters of this nature.” Senate was well-aware of what it was concurring in as shown by the
members’ deliberation on August 25, 1994. After reading the letter of
2. While the Constitution indeed mandates a bias in favor of President Ramos dated August 11, 1994, the senators of the Republic
Filipino goods, services, labor and enterprises, at the same time, it minutely dissected what the Senate was concurring in.
recognizes the need for business exchange with the rest of the world
on the bases of equality and reciprocity and limits protection of Filipino
enterprises only against foreign competition and trade practices that are
unfair. In other words, the Constitution did not intend to pursue an
isolationist policy. It did not shut out foreign investments, goods and
services in the development of the Philippine economy. While the
Constitution does not encourage the unlimited entry of foreign goods,
services and investments into the country, it does not prohibit them
either. In fact, it allows an exchange on the basis of equality and
reciprocity, frowning only on foreign competition that is unfair.

3. By their inherent nature, treaties really limit or restrict the

absoluteness of sovereignty. By their voluntary act, nations may
surrender some aspects of their state power in exchange for greater
benefits granted by or derived from a convention or pact. After all,
states, like individuals, live with coequals, and in pursuit of mutually
covenanted objectives and benefits, they also commonly agree to limit
the exercise of their otherwise absolute rights. As shown by the
foregoing treaties Philippines has entered, a portion of sovereignty may
be waived without violating the Constitution, based on the rationale that
the Philippines “adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy
of cooperation and amity with all nations.”