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G.R. No.

L-129 December 19, 1945 violation of this country's faith, which this Court should not be the
last to keep and uphold." (Emphasis supplied) We have said this in a
TOMOYUKI YAMASHITA, petitioner, case where Filipino citizens were under confinement, and we can
vs. say no less in a case where the person confined is an enemy charged
WILHELM D. STYER, Commanding General, United States Army with the most heinous atrocities committed against the American
Forces, Western Pacific, respondent. and Filipino peoples.

MORAN, C.J.: True that the rule was made applicable in time of war, and there is a
conflict of opinion as to whether war has already terminated. War is
not ended simply because hostilities have ceased. After cessation of
Tomoyuki Yamashita, erstwhile commanding general of the 14th
armed hostilities, incident of war may remain pending which should
army group of the Japanese Imperial Army in the Philippines, and
be disposed of as in time of war. "An important incident to a
now charged before an American Military Commission with the most
conduct of a war is the adoption of measure by the military
monstrous crimes ever committed against the American and Filipino
command not only to repel and defeat the enemies but to seize and
peoples, comes to this Court with a petition for habeas corpus and
subject to disciplinary measures those enemies who in their attempt
prohibition against Lt. Gen. Wilhelm D. Styer, Commanding General
to thwart or impede our military effort to have violated the law of
of the United States Army Forces, Western Pacific. It is alleged
the war." (Ex parte Quirin, 317 US., 1; 63 Sup. Ct., 2.) Indeed, the
therein that petitioner after his surrender became a prisoner of war
power to create a Military Commission for the trial and punishment
of the United States of America but was later removed from such
of war criminals is an aspect of waging war. And, in the language of a
status and placed in confinement as an accused war criminal
writer, a Military Commission "has jurisdiction so long as a technical
charged before an American Military Commission constituted by
state of war continues. This includes the period of an armistice, or
respondent Lieutenant General Styer; and he now asks that he be
military occupation, up to the effective date of a treaty agreement."
reinstated to his former status as prisoner of war, and that the
(Cowles, Trial of War Criminals by Military Tribunals, American Bar
Military Commission be prohibited from further trying him, upon the
Association Journal, June, 1944.)
following grounds:

Upon the other hand, we have once said (Payomo vs. Floyd, 42 Phil.,
(1) That the Military Commission was not duly constituted, and,
788), — and this applicable in time of war as well as the time of
therefore, it is without jurisdiction;
peace — that this Court has no power to review upon habeas
corpus the proceedings of a military or naval tribunal, an that, in
(2) That the Philippines cannot be considered as an occupied such case, "the single inquiry, the test, is jurisdiction. That being
territory, and the Military Commission cannot exercise jurisdiction established, the habeas corpus must be denied and the petitioner
therein; discharged." (In re Grimley, 137 U.S., 147; 11 Sup. Ct., 54; 34 La. ed.,
636.) Following this rule in the instant case, we find that the Military
(3) That Spain, the "protecting power" of Japan, has not been given Commission has been validly constituted and it has jurisdiction both
notice of the implementing trial against petitioner, contrary to the over the person of the petitioner and over the offenses with which
provisions of the Geneva Convention of July 27, 1892, and therefore, he is charged.
the Military Commission has no jurisdiction to try the petitioner;
The Commission has been validly constituted by Lieutenant General
(4) That there is against the petitioner no charge of an offense Styer duly issued by General Douglas MacArthur, Commander in
against the laws of war; and Chief, United States Army Force Pacific, in accordance in authority
vested in him and with radio communication from the Joint Chiefs of
(5) That the rules of procedure and evidence under which the Staff, as shown by Exhibits C, E, G, and H, attached by petition.
Military Commission purports to be acting denied the petitioner a Under paragraph 356 of the Rules of the Land Welfare a Military
fair trial. Commission for the trial and punishment of the war criminals must
be designated by the belligerent. And the belligerent's
representative in the present case is none other than the
We believe and so hold that the petition for habeas corpus is Commander in Chief of the United States Army in the Pacific.
untenable. It seeks no discharge of petitioner from confinement but According to the Regulations Governing the Trial of the War
merely his restoration to his former status as a prisoner of war, to be Criminals in the Pacific, attached as Exhibit F to the petition, the
interned, not confined. The relative difference as to the degree of "trial of persons, units and organizations accused as a war criminals
confinement in such cases is a matter of military measure, will be the Military Commissions to be convened by or under the
disciplinary in character, beyond the jurisdiction of civil courts. authority of the Commander in Chief, United States Army Forces,
Pacific." Articles of War Nos. 12 and 15 recognized the "Military
Neither may the petition for prohibition prosper against Lt. Gen. Commission" appointed by military command as an appropriate
Wilhelm D. Styer. The military Commission is not made party tribunal for the trial and punishment of offenses against the law of
respondent in this case, and although it may be acting, as alleged, the war not ordinarily tried by court martial. (Ex parte Quirin, supra.)
without jurisdiction, no order may be issued in these case And this has always been the United States military practice at since
proceedings requiring it to refrain from trying the petitioner. the Mexican War of 1847 when General Winfield Scott took the
position that, under the laws of war, a military commander has an
Furthermore, this Court has no jurisdiction to entertain the petition implied power to appoint and convene a Military Commission. This is
even if the commission be joined as respondent. As we have said upon the theory that since the power to create a Military
in Raquiza vs. Bradford (pp. 50, 61, ante), ". . . an attempt of our civil Commission is an aspect of waging war, Military Commanders have
courts to exercise jurisdiction over the United States Army before that power unless expressly withdrawn from them.
such period (state of war) expires, would be considered as a
The Military Commission thus duly constituted has jurisdiction both And, lastly, it is alleged that the rules of procedure and evidence
over the person of the petitioner and over the offenses with which being followed by the Military Commission in the admission of
he is charged. It has jurisdiction over the person of the petitioner by allegedly immaterial or hearsay evidence, cannot divest the
reason of his having fallen into the hands of the United States Army commission of its jurisdiction and cannot be reviewed in a petition
Forces. Under paragraph 347 of the Rules of the Land Warfare, "the for the habeas corpus. (25 Am. Jur., 218; Collins vs. McDonald, 258
commanders ordering the commission of such acts, or under whose U. S. 416; 66 Law. ed., 692; 42 Sup. Ct., 326).
authority they are committed by their troops, may be punished by
the belligerent into whose hands they may fall." For all foregoing, petition is hereby dismissed without
costs.lawphi1.net
As to the jurisdiction of the Military Commission over war crimes,
the Supreme Court of the United States said: Jaranilla, Feria, De Joya, Pablo, Hilado, Bengzon, and Briones, JJ.,
concur.
From the very beginning of its history this Court has recognized and Paras, J., concurs in the result.
applied the law of war as including that part of the law of nations
which prescribes, for the conduct of war, the status rights and duties
and of enemy nations as well as of enemy individuals. By the Articles
of War, and especially Article 15, Congress has explicitly provided, so
far as it may constitutionally do so, that military tribunals shall have
jurisdiction to try offenders or offenses against the law of war in
appropriate cases. Congress, in addition to making rules for the
government of our Armed Forces, has thus exercised its authority to
define and punish offenses against the law of nations by sanctioning,
within constitutional limitations, the jurisdiction of military
commissions to try persons and offenses which, according to the
rules and precepts of the law of nations, and more particularly the
law of war, are cognizable by such tribunals. (Ex parte Quirin, 317
U.S. 1, 27-28; 63 Sup. Ct., 2.)

Petitioner is charged before the Military Commission sitting at


Manila with having permitted members of his command "to commit
brutal atrocities and other high crimes against the people of the
United States and of its allies and dependencies, particularly the
Philippines," crimes and atrocities which in the bills of particulars,
are described as massacre and extermination of thousand and
thousands of unarmed noncombatant civilians by cruel and brutal
means, including bayoneting of children and raping of young girls, as
well as devastation and destruction of public, or private, and
religious property for no other motive than pillage and hatred. These
are offenses against the laws of the war as described in paragraph
347 of the Rules of Land Warfare.

It is maintained, however, that, according to the Regulations


Governing the Trial of War Criminals in the Pacific. "the Military
Commission . . . shall have jurisdiction over all of Japan and other
areas occupied by the armed forces commanded by the Commander
in Chief, United States Army Forces, Pacific" (emphasis supplied),
and the Philippines is not an occupied territory. The American Forces
have occupied the Philippines for the purpose of liberating the
Filipino people from the shackles of Japanese tyranny, and the
creation of a Military Commission for the trial and punishment of
Japanese war criminals is an incident of such war of liberation.

It is maintained that Spain, the "protecting power" of Japan, has not


been given notice before trial was begun against petitioner, contrary
to the provisions of the Geneva Convention of July 27, 1929. But
there is nothing in that Convention showing that notice is a
prerequisite to the jurisdiction of Military Commissions appointed by
victorious belligerent. Upon the other hand, the unconditional
surrender of Japan and her acceptance of the terms of the Potsdam
Ultimatum are a clear waiver of such a notice. It may be stated,
furthermore, that Spain has severed her diplomatic relation of Japan
because of atrocities committed by the Japanese troops against
Spaniards in the Philippines. Apparently, therefore, Spain has ceased
to be the protecting power of Japan.
G.R. No. L-1812 August 27, 1948 After liberation he returned to Iriga where again he resides up to the
present time.
EREMES KOOKOORITCHKIN, petitioner,
vs. The applicant is married to a Filipino by the name of Concepcion
THE SOLICITOR GENERAL, oppositor. Segovia, with whom he has one son named Ronald Kookooritchkin.
He is at present studying in Saint Agnes Academy, at Legaspi, Albay,
PERFECTO, J.: a school duly recognized by the Government.

In August, 1941, appellee filed with the lower court a petition for The applicant is shop superintendent of A. L. Ammen Transportation
naturalization, accompanied with supporting affidavits of two Company, with about eighty Filipino employees working under him.
citizens, copy of a declaration of intention sworn in July, 1940, and He receives an annual salary of P13,200 with free quarters and
proper notice of the hearing. The petition was finally set for hearing house allowance. He also owns stocks and bonds of this and other
on December 18, 1941, but it was held on that date because the companies.
province was invaded by the Japanese forces on December 14, and
the case remained pending until the records were destroyed during The applicant speaks and writes English and the Bicol dialect.
the military operations for liberation in March, 1945. The case was Socially he intermingles with the Filipinos, attending parties, dances
declared reconstituted on May 10, 1947, and the evidence was and other social functions with his wife. He has a good moral
presented on August 28 and September 30, 1947. On the same day character and believes in the principles underlying the Philippine
resolution was issued granting the petition. Constitution. He has never been accused of any crime. On the other
hand, he has always conducted himself in a proper and
Although appellant was represented at the hearing and cross- irreproachable manner during his entire period of residence in
examined the witnesses for the petitioner, he did not file an Camarines Sur, in his relations with the constituted authorities as
opposition or presented any evidence. well as with the community.

The lower court made the findings of fact in the following Although he could have lived in ease by maintaining good relations
paragraphs of its resolution: with the enemy by reason of his being Russian-born during the years
preceding the declaration of war by Russia against Japan, the
applicant of his own volition chose to cast his lot with the guerrilla
Eremes Kookooritchkin applies for Philippine citizenship
movement and fought the enemy in several encounters in the
naturalization under the provisions of Commonwealth Act 473, as
Province of Camarines Sur. He belonged to the guerrilla outfit of
amended by Act 535.
Colonel Padua with rank of major. Upon the arrival of the forces of
liberation he was attached to the American Army from April to June,
The records shows that in August, 1941, he filed his petition for 1945.
naturalization supported by the affidavits of ex-Judge Jaime M.
Reyes and Dr. Salvador Mariano, both residents of Camarines Sur. In
Although a Russian by birth he is not a citizen of Soviet Russia. He
the preceding year, in July, 1940 to be precise, he filed his
disclaims allegiance to the present Communist Government of
declaration of intention to become a citizen of this country. Notice
Russia. He is, therefore, a stateless refugee in this country, belonging
of the hearing was published as required by law.
to no State, much less to the present Government of the land of his
birth to which he is uncompromisingly opposed. He is not against
It was established at the hearing that the petitioner is a native-born organized government or affiliated with any association which
Russian, having first seen the light of day on November 4, 1897 in upholds and teaches doctrine opposing all organized governments.
the old City of St. Petersburg, Russia. He grew up as a citizen of the He does not believe in the necessity or propriety of violence,
defunct Imperial Russian Government under the Czars. World War I personal assault or assassination for the success or predominance of
found him in the military service of this Government. In 1915 he his ideas. Neither is he a polygamist or a believer in the practice of
volunteered for the Imperial Russian navy and was sent to the Navy polygamy. He is not suffering from any mental alienation or
Aviation School. He fought with the Allies in the Baltic Sea, was later incurable contagious disease.
transferred to the eastern front in Poland, and much later was sent
as a navy flier to Asia Minor. In the latter part of the war, but before
Appellant assigns four errors in the appealed resolution. We will
the Russian capitulation, he was transferred to the British Air Force
consider them separately.
under which he served for fourteen months. When the revolution
broke out in Russia in 1917, he joined the White Russian Army at
Vladivostok and fought against the Bolsheviks until 1922 when the I
White Russian Army was overwhelmed by the Bolsheviks. As he
refused to join the Bolshevik regime, he fled by sea from Vladivostok Appellant claims that the lower court erred in not finding that the
to Shanghai and from this Chinese port he found his way to Manila, declaration of intention to become a Filipino citizen filed by appellee
arriving at this port as a member of a group of White Russians under is invalid and insufficient as a basis for the petition of naturalization.
Admiral Stark in March, 1923. He stayed in Manila for about seven The question calls for the application of the following provision of
months, then moved to Olongapo, Zambales, where he resided for section 5 of the Revised Naturalization Law:
about a year, and from this place he went to Iriga, Camarines Sur,
where he established his permanent residence since May, 1925. He No declaration shall be valid until entry for permanent residence has
has remained a resident of this municipality, except for a brief been established and a certificate showing the date, place and
period from 1942 to July, 1945, when by reason of his underground manner of his arrival has been issued.
activities he roamed mountains of Caramoan as a guerrilla officer.
Appellant alleges that no documentary or testimonial evidence was that he cannot speak and write any of the principal Philippine
introduced to establish the fact that appellee had lawfully been languages.
admitted into the Philippines for permanent residence.
The first question has already been disposed of in the above
In the reconstituted declaration (page 11, record on appeal) the discussion. Perusal of the testimonies on record leads to the
following can be read: conclusion that petitioner has shown legal residence in the
Philippines for a continuous period of not less than ten years as
I arrived at the Port of Manila on or about the first day of March, required by section 2 of Commonwealth Act No. 473.
1923, as shown by the attached certificate of arrival or landing
certificate of residence. As to the next question, appellant alleges that in the oral test at the
hearing, it was demonstrated that petitioner has only a smattering
The records of the Bureau of Justice, where the declarations of of Bicol, the Filipino language that petitioner alleges to know, and he
intention to become a Filipino citizen were filed, had been lost or cannot speak it as he was not able to translate from English to Bicol
destroyed during the battle for the liberation of Manila, and the questions asked by the court and the provincial fiscal, although, in
certificate alluded to has not been reconstituted. the continuation of the hearing on September 30, 1947, "surprisingly
enough, he succeeded answering correctly in Bicol the questions
propounded by his counsel, however, he fumbled and failed to give
Appellant's contention that attachment of the certificate of arrival is
the translation of such a common word as 'love' which the fiscal
essential to the validity of a declaration finds no support in the
asked of him.
wordings of the law, as the above-quoted section 5 of
Commonwealth Act no. 473 uses the words "has been issued.
The lower court made the finding of fact that applicant speaks and
writes English and Bicol and there seems to be no question about
Appellee suggests that we would not consider the question here
the competency of the judge who made the pronouncement,
raised by appellant, the latter having failed to raise it in lower court
because he has shown by the appealed resolution and by his
and points out that there is testimonial evidence showing appellee's
questions propounded to appellee, that he has command of both
arrival March, 1923, and that he was lawfully admitted for
English and Bicol.
permanent residence, and the testimony of petitioner has not been
refuted. Appellee's alleges that the office of the President has
certified that it is a matter of record that petitioner was one of the The law has not set a specific standard of the principal Philippine
Russian refugees who entered the Philippines under the command languages. A great number of standards can be set. There are
of Admiral Stark, the facts regarding arrival of the latter fleet being a experts in English who say that Shakespeare has used in his works
matter of common knowledge, widely publicized in the newspapers 15,000 different English words, and the King's Bible about 10,000,
at the time, of which this Court may properly take judicial notice while about 5,000 are used by the better educated persons and
under section 5 of Rule 123. When the fleet entered the Philippine about 3,000 by the average individual. While there may be persons
waters, it was met by a Governor General Wood who, later, took the ambitious enough to have a command of the about 600,000 words
matter up with the authorities in Washington in lengthy recorded in the Webster's International Dictionary, there are
correspondence, and the 1,200 persons manning the fleet were authorities who would reduce basic English to a few hundred words.
allowed to land and to remain in the Philippines or proceed to other Perhaps less than one hundred well selected words will be enough
countries, except about 800 who were allowed to go to the United for the ordinary purposes of daily life.
States and given free transportation on the naval transport
"Merritt." The ships of the fleet were sold in the Philippines. There is a reason to believe that the lower court's pronouncement is
well taken considering the fact that, after he was liberated in 1942
The undisputed fact that the petitioner has been continuously from the Japanese in the Naga prison, petitioner joined the guerrilla
residing in the Philippines for about 25 years, without having been in the Bicol region, took part in encounters and skirmishes against
molested by the authorities, who are presumed to have been the Japanese, and remained with the guerrilla until the Americans
regularly performing their duties and would have arrested petitioner liberated the Bicol provinces. If appellee with his smattering of Bicol
if his residence is illegal, as rightly contended by appellee, can be was able to get along with his Bicol comrades in the hazardous life of
taken as evidence that he is enjoying permanent residence legally. the resistance movement, we believe that his knowledge of the
That a certificate of arrival has been issued is a fact that should be language satisfies the requirement of the law.
accepted upon the petitioner's undisputed statement in his
declaration of July, 1940, that the certificate cannot be supposed But appellant contends that there is no piece of positive evidence to
that the receiving official would have accepted the declaration support petitioner's allegation that he can write too in the Bicol
without the certificate mentioned therein as attached thereto. language. There, is, however, on record circumstantial evidence
from which it can be concluded that petitioner ought to know also
We conclude that petitioner's declaration is valid under section 5 of how to write Bicol. We know that Bicol, as all the important
the Naturalization Law, failure to reconstitute the certificate of Philippine languages, uses the same alphabet used in English, and it
arrival notwithstanding. What an unreconstituted document is much easier to write Bicol than English, because it is phonetic.
intended to prove may be shown by other competent evidence. Vowels and consonants have in them single and not interchangeable
phonetic values, while English words deviate very often from the
basic sounds of the alphabet. The ability to write cannot be denied
II
to a person like petitioner, who has undergone the exacting
technical training to be able to render services as flier in the Russian
The second assignment of error touches upon two questions, that Naval Squadron in the Baltic Sea and in the British Air Forces during
the lower court erred (1) in not finding that appellee has not the first World War. The difference between the Cyrillic alphabet, as
established a legal residence in the Philippines, and (2) in not finding
now used by Russians, and our Roman alphabet, cannot weigh much The fourth and last assignment of error need not be discussed, it
to deny petitioner the ability to use the latter. A person who has being only a sequel of the other assignments and has necessarily
shown the command of English which can be seen in his testimony been disposed of in their discussion.
on record can easily make use of an alphabet of twenty or more
letters universally used in this country where he has been residing The appealed resolution is affirmed.
continuously for 25 years.
Paras, Feria, Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.
III

Appellant contends that the lower court erred in finding appellee


stateless and not a Russian citizen and in not finding that he has
failed to establish that he is not disqualified for Philippine citizenship
under section 4 (h) of the Revised Naturalization Law.

It is contended that petitioner failed to show that under the laws of


Russia, appellee has lost his Russian citizenship and failed to show
that Russia grants to Filipinos the right to become a naturalized
citizens or subjects thereof. The controversy centers on the question
as to whether petitioner is a Russian citizen or is stateless.

Petitioner testified categorically that he is not a Russian citizen and


that he has no citizenship. His testimony supports the lower court's
pronouncement that petitioner is a stateless refugee in this country.

Appellant points out that petitioner stated in his petition for


naturalization that he is citizen or subject of the Empire of Russia,
but the Empire of Russia has ceased to exist since the Czars were
overthrown in 1917 by the Bolshevists, and the petitioner disclaims
allegiance or connection with the Soviet Government established
after the overthrow of the Czarist Government.

We do not believe that the lower court erred in pronouncing


appellee stateless. Appellee's testimony, besides being
uncontradicted, is supported by the well-known fact that the
ruthlessness of modern dictatorship has scattered throughout the
world a large number of stateless refugees or displaced persons,
without country and without flag. The tyrannical intolerance of said
dictatorships toward all opposition induced them to resort to
beastly oppression, concentration camps and blood purges, and it is
only natural that the not-so-fortunate ones who were able to escape
to foreign countries should feel the loss of all bonds of attachment
to the hells which were formerly their fatherland's. Petitioner
belongs to that group of stateless refugees.

Knowing, as all cultured persons all over the world ought to know,
the history, nature and character of the Soviet dictatorship,
presently the greatest menace to humanity and civilization, it would
be technically fastidious to require further evidence of petitioner's
claim that he is stateless than his testimony that he owes no
allegiance to the Russian Communist Government and, is because he
has been at war with it, he fled from Russia to permanently reside in
the Philippines. After finding in this country economic security in a
remunerative job, establishing a family by marrying a Filipina with
whom he has a son, and enjoying for 25 years the freedoms and
blessings of our democratic way of life, and after showing his
resolution to retain the happiness he found in our political system to
the extent of refusing to claim Russian citizenship even to secure his
release from the Japanese and of casting his lot with that of our
people by joining the fortunes and misfortunes of our guerrillas, it
would be beyond comprehension to support that the petitioner
could feel any bond of attachment to the Soviet dictatorship.

IV
G.R. No. L-2662 March 26, 1949 The Philippines renounces war as an instrument of
national policy and adopts the generally accepted
SHIGENORI KURODA, petitioner, principles of international law as part of the of the nation.
vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO In accordance with the generally accepted principle of international
DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO law of the present day including the Hague Convention the Geneva
BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO Convention and significant precedents of international jurisprudence
ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents. established by the United Nation all those person military or civilian
who have been guilty of planning preparing or waging a war of
MORAN, C.J.: 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
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese
therefor. Consequently in the promulgation and enforcement of
Imperial Army and Commanding General of the Japanese Imperial
Execution Order No. 68 the President of the Philippines has acted in
Forces in The Philippines during a period covering 19433 and 19444
conformity with the generally accepted and policies of international
who is now charged before a military Commission convened by the
law which are part of the our Constitution.
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 The promulgation of said executive order is an exercise by the
high crimes against noncombatant civilians and prisoners of the President of his power as Commander in chief of all our armed
Imperial Japanese Forces in violation of the laws and customs of forces as upheld by this Court in the case of Yamashita vs. Styer (L-
war" — comes before this Court seeking to establish the illegality of 129, 42 Off. Gaz., 664) 1 when we said —
Executive Order No. 68 of the President of the Philippines: to enjoin
and prohibit respondents Melville S. Hussey and Robert Port from War is not ended simply because hostilities have ceased. After
participating in the prosecution of petitioner's case before the cessation of armed hostilities incident of war may remain pending
Military Commission and to permanently prohibit respondents from which should be disposed of as in time of war. An importance
proceeding with the case of petitioners. 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
In support of his case petitioner tenders the following principal seize and subject to disciplinary measure those enemies who in their
arguments. attempt to thwart or impede our military effort have violated the
law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the
power to create a military commission for the trial and punishment
First. — "That Executive Order No. 68 is illegal on the ground that it
of war criminals is an aspect of waging war. And in the language of a
violates not only the provision of our constitutional law but also our
writer a military commission has jurisdiction so long as a technical
local laws to say nothing of the fact (that) the Philippines is not a
state of war continues. This includes the period of an armistice or
signatory nor an adherent to the Hague Convention on Rules and
military occupation up to the effective of a treaty of peace and may
Regulations covering Land Warfare and therefore petitioners is
extend beyond by treaty agreement. (Cowles Trial of War Criminals
charged of 'crimes' not based on law, national and international."
by Military Tribunals, America Bar Association Journal June, 1944.)
Hence petitioner argues — "That in view off the fact that this
commission has been empanelled by virtue of an unconstitutional
law an illegal order this commission is without jurisdiction to try Consequently, the President as Commander in Chief is fully
herein petitioner." empowered to consummate this unfinished aspect of war namely
the trial and punishment of war criminal through the issuance and
enforcement of Executive Order No. 68.
Second. — That the participation in the prosecution of the case
against petitioner before the Commission in behalf of the United
State of America of attorneys Melville Hussey and Robert Port who Petitioner argues that respondent Military Commission has no
are not attorneys authorized by the Supreme Court to practice law Jurisdiction to try petitioner for acts committed in violation of the
in the Philippines is a diminution of our personality as an Hague Convention and the Geneva Convention because the
independent state and their appointment as prosecutor are a Philippines is not a signatory to the first and signed the second only
violation of our Constitution for the reason that they are not in 1947. It cannot be denied that the rules and regulation of the
qualified to practice law in the Philippines. 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
Third. — That Attorneys Hussey and Port have no personality as
nation the United State and Japan who were signatories to the two
prosecution the United State not being a party in interest in the
Convention, Such rule and principles therefore form part of the law
case.
of our nation even if the Philippines was not a signatory to the
conventions embodying them for our Constitution has been
Executive Order No. 68, establishing a National War Crimes Office deliberately general and extensive in its scope and is not confined to
prescribing rule and regulation governing the trial of accused war the recognition of rule and principle of international law as
criminals, was issued by the President of the Philippines on the 29th continued inn treaties to which our government may have been or
days of July, 1947 This Court holds that this order is valid and shall be a signatory.
constitutional. Article 2 of our Constitution provides in its section 3,
that —
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 For all the foregoing the petition is denied with costs de oficio.
the treaties between the belligerent countries. These rights and
obligation were not erased by our assumption of full sovereignty. If Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes,
at all our emergency as a free state entitles us to enforce the right JJ., concur.
on our own of trying and punishing those who committed crimes
against crimes against our people. In this connection it is well to
remember what we have said in the case of Laurel vs. Misa (76 Phil.,
372):

. . . The change of our form government from Commonwealth to


Republic does not affect the prosecution of those charged with the
crime of treason committed during then Commonwealth because it
is an offense against the same sovereign 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.

Petitioner challenges the participation of two American attorneys


namely Melville S. Hussey and Robert Port in the prosecution of his
case on the ground that said attorney's are not qualified to practice
law in Philippines in accordance with our Rules of court and the
appointment of said attorneys as prosecutors is violative of our
national sovereignty.

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.
G.R. No. 175888 February 11, 2009 The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian
Carpentier, Dominic Duplantis, Keith Silkwood and Timoteo L.
SUZETTE NICOLAS y SOMBILON, Petitioner, Soriano, Jr. of the crime of Rape under Article 266-A of the Revised
vs. Penal Code, as amended by Republic Act 8353, upon a complaint
ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; under oath filed by Suzette S. Nicolas, which is attached hereto and
RAUL GONZALEZ, in his capacity as Secretary of Justice; EDUARDO made an integral part hereof as Annex "A," committed as follows:
ERMITA, in his capacity as Executive Secretary; RONALDO PUNO, in
his capacity as Secretary of the Interior and Local Government; "That on or about the First (1st) day of November 2005, inside the
SERGIO APOSTOL, in his capacity as Presidential Legal Counsel; and Subic Bay Freeport Zone, Olongapo City and within the jurisdiction
L/CPL. DANIEL SMITH, Respondents. of this Honorable Court, the above-named accused’s (sic), being
then members of the United States Marine Corps, except Timoteo L.
x - - - - - - - - - - - - - - - - - - - - - - -x Soriano, Jr., conspiring, confederating together and mutually helping
one another, with lewd design and by means of force, threat and
intimidation, with abuse of superior strength and taking advantage
G.R. No. 176051 February 11, 2009
of the intoxication of the victim, did then and there willfully,
unlawfully and feloniously sexually abuse and have sexual
JOVITO R. SALONGA, WIGBERTO E. TAÑADA, JOSE DE LA RAMA, intercourse with or carnal knowledge of one Suzette S. Nicolas, a 22-
EMILIO C. CAPULONG, H. HARRY L. ROQUE, JR., FLORIN HILBAY, year old unmarried woman inside a Starex Van with Plate No. WKF-
and BENJAMIN POZON, Petitioners, 162, owned by Starways Travel and Tours, with Office address at
vs. 8900 P. Victor St., Guadalupe, Makati City, and driven by accused
DANIEL SMITH, SECRETARY RAUL GONZALEZ, PRESIDENTIAL LEGAL Timoteo L. Soriano, Jr., against the will and consent of the said
COUNSEL SERGIO APOSTOL, SECRETARY RONALDO PUNO, Suzette S. Nicolas, to her damage and prejudice.
SECRETARY ALBERTO ROMULO, The Special 16th Division of the
COURT OF APPEALS, and all persons acting in their
CONTRARY TO LAW."1
capacity, Respondents.

Pursuant to the Visiting Forces Agreement (VFA) between the


x - - - - - - - - - - - - - - - - - - - - - - -x
Republic of the Philippines and the United States, entered into on
February 10, 1998, the United States, at its request, was granted
G.R. No. 176222 February 11, 2009 custody of defendant Smith pending the proceedings.

BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by Dr. During the trial, which was transferred from the Regional Trial Court
Carol Araullo; GABRIELA, represented by Emerenciana de Jesus; (RTC) of Zambales to the RTC of Makati for security reasons, the
BAYAN MUNA, represented by Rep. Satur Ocampo; GABRIELA United States Government faithfully complied with its undertaking
WOMEN'S PARTY, represented by Rep. Liza Maza; KILUSANG to bring defendant Smith to the trial court every time his presence
MAYO UNO (KMU), represented by Elmer Labog; KILUSANG was required.
MAGBUBUKID NG PILIPINAS (KMP), represented by Willy Marbella;
LEAGUE OF FILIPINO STUDENTS (LFS), represented by Vencer
On December 4, 2006, the RTC of Makati, following the end of the
Crisostomo; and THE PUBLIC INTEREST LAW CENTER, represented
trial, rendered its Decision, finding defendant Smith guilty, thus:
by Atty. Rachel Pastores, Petitioners,
vs.
PRESIDENT GLORIA MACAPAGAL-ARROYO, in her capacity as WHEREFORE, premises considered, for failure of the prosecution to
concurrent Defense Secretary, EXECUTIVE SECRETARY EDUARDO adduce sufficient evidence against accused S/SGT. CHAD BRIAN
ERMITA, FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, JUSTICE CARPENTER, L/CPL. KEITH SILKWOOD AND L/CPL. DOMINIC
SECRETARY RAUL GONZALEZ, AND INTERIOR AND LOCAL DUPLANTIS, all of the US Marine Corps assigned at the USS Essex,
GOVERNMENT SECRETARY RONALDO PUNO,Respondents. are hereby ACQUITTED to the crime charged.

DECISION The prosecution having presented sufficient evidence against


accused L/CPL. DANIEL J. SMITH, also of the US Marine Corps at the
USS Essex, this Court hereby finds him GUILTY BEYOND REASONABLE
AZCUNA, J.:
DOUBT of the crime of RAPE defined under Article 266-A, paragraph
1 (a) of the Revised Penal Code, as amended by R.A. 8353, and, in
These are petitions for certiorari, etc. as special civil actions and/or accordance with Article 266-B, first paragraph thereof, hereby
for review of the Decision of the Court of Appeals in Lance Corporal sentences him to suffer the penalty of reclusion perpetua together
Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in CA-G.R. SP No. with the accessory penalties provided for under Article 41 of the
97212, dated January 2, 2007. same Code.

The facts are not disputed. Pursuant to Article V, paragraph No. 10, of the Visiting Forces
Agreement entered into by the Philippines and the United States,
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the accused L/CPL. DANIEL J. SMITH shall serve his sentence in the
United States Armed Forces. He was charged with the crime of rape facilities that shall, thereafter, be agreed upon by appropriate
committed against a Filipina, petitioner herein, sometime on Philippine and United States authorities. Pending agreement on such
November 1, 2005, as follows: facilities, accused L/CPL. DANIEL J. SMITH is hereby temporarily
committed to the Makati City Jail.
Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify Petitioners contend that the Philippines should have custody of
complainant SUZETTE S. NICOLAS in the amount of ₱50,000.00 as defendant L/CPL Smith because, first of all, the VFA is void and
compensatory damages plus ₱50,000.00 as moral damages. unconstitutional.

SO ORDERED.2 This issue had been raised before, and this Court resolved in favor of
the constitutionality of the VFA. This was in Bayan v.
As a result, the Makati court ordered Smith detained at the Makati Zamora,4 brought by Bayan, one of petitioners in the present cases.
jail until further orders.
Against the barriers of res judicata vis-à-vis Bayan, and stare decisis
On December 29, 2006, however, defendant Smith was taken out of vis-à-vis all the parties, the reversal of the previous ruling is sought
the Makati jail by a contingent of Philippine law enforcement agents, on the ground that the issue is of primordial importance, involving
purportedly acting under orders of the Department of the Interior the sovereignty of the Republic, as well as a specific mandate of the
and Local Government, and brought to a facility for detention under Constitution.
the control of the United States government, provided for under
new agreements between the Philippines and the United States, The provision of the Constitution is Art. XVIII, Sec. 25 which states:
referred to as the Romulo-Kenney Agreement of December 19, 2006
which states: Sec. 25. After the expiration in 1991 of the Agreement between the
Philippines and the United States of America concerning Military
The Government of the Republic of the Philippines and the Bases, foreign military bases, troops, or facilities shall not be allowed
Government of the United States of America agree that, in in the Philippines except under a treaty duly concurred in by the
accordance with the Visiting Forces Agreement signed between our Senate and, when the Congress so requires, ratified by a majority of
two nations, Lance Corporal Daniel J. Smith, United States Marine the votes cast by the people in a national referendum held for that
Corps, be returned to U.S. military custody at the U.S. Embassy in purpose, and recognized as a treaty by the other contracting State.
Manila.
The reason for this provision lies in history and the Philippine
(Sgd.) Kristie A. Kenney (Sgd.) Alberto G. Romulo experience in regard to the United States military bases in the
Representative of the United Representative of the country.
States Republic
of America of the Philippines It will be recalled that under the Philippine Bill of 1902, which laid
the basis for the Philippine Commonwealth and, eventually, for the
DATE: 12-19-06 DATE: December 19, 2006 recognition of independence, the United States agreed to cede to
the Philippines all the territory it acquired from Spain under the
Treaty of Paris, plus a few islands later added to its realm, except
and the Romulo-Kenney Agreement of December 22, 2006 which certain naval ports and/or military bases and facilities, which the
states: United States retained for itself.

The Department of Foreign Affairs of the Republic of the Philippines This is noteworthy, because what this means is that Clark and Subic
and the Embassy of the United States of America agree that, in and the other places in the Philippines covered by the RP-US Military
accordance with the Visiting Forces Agreement signed between the Bases Agreement of 1947 were not Philippine territory, as they were
two nations, upon transfer of Lance Corporal Daniel J. Smith, United excluded from the cession and retained by the US.
States Marine Corps, from the Makati City Jail, he will be detained at
the first floor, Rowe (JUSMAG) Building, U.S. Embassy Compound in
Accordingly, the Philippines had no jurisdiction over these bases
a room of approximately 10 x 12 square feet. He will be guarded
except to the extent allowed by the United States. Furthermore, the
round the clock by U.S. military personnel. The Philippine police and
RP-US Military Bases Agreement was never advised for ratification
jail authorities, under the direct supervision of the Philippine
by the United States Senate, a disparity in treatment, because the
Department of Interior and Local Government (DILG) will have
Philippines regarded it as a treaty and had it concurred in by our
access to the place of detention to ensure the United States is in
Senate.
compliance with the terms of the VFA.

Subsequently, the United States agreed to turn over these bases to


The matter was brought before the Court of Appeals which decided
the Philippines; and with the expiration of the RP-US Military Bases
on January 2, 2007, as follows:
Agreement in 1991, the territory covered by these bases were finally
ceded to the Philippines.
WHEREFORE, all the foregoing considered, we resolved to DISMISS
the petition for having become moot.3
To prevent a recurrence of this experience, the provision in question
was adopted in the 1987 Constitution.
Hence, the present actions.
The provision is thus designed to ensure that any agreement
The petitions were heard on oral arguments on September 19, 2008, allowing the presence of foreign military bases, troops or facilities in
after which the parties submitted their memoranda. Philippine territory shall be equally binding on the Philippines and
the foreign sovereign State involved. The idea is to prevent a
recurrence of the situation in which the terms and conditions
governing the presence of foreign armed forces in our territory were Agreeing that nothing in this present instrument shall be considered
binding upon us but not upon the foreign State. or interpreted as in any way or sense altering or diminishing any
existing agreements or understandings between the Republic of the
Applying the provision to the situation involved in these cases, the Philippines and the United States of America.
question is whether or not the presence of US Armed Forces in
Philippine territory pursuant to the VFA is allowed "under a treaty Have agreed as follows:
duly concurred in by the Senate xxx and recognized as a treaty by
the other contracting State." Article I. The parties undertake, as set forth in the Charter of the
United Nations, to settle any international disputes in which they
This Court finds that it is, for two reasons. may be involved by peaceful means in such a manner that
international peace and security and justice are not endangered and
First, as held in Bayan v. Zamora,5 the VFA was duly concurred in by to refrain in their international relation from the threat or use of
the Philippine Senate and has been recognized as a treaty by the force in any manner inconsistent with the purposes of the United
United States as attested and certified by the duly authorized Nations.
representative of the United States government.
Article II. In order more effectively to achieve the objective of this
The fact that the VFA was not submitted for advice and consent of Treaty, the Parties separately and jointly by self-help and mutual aid
the United States Senate does not detract from its status as a will maintain and develop their individual and collective capacity to
binding international agreement or treaty recognized by the said resist armed attack.
State. For this is a matter of internal United States law. Notice can
be taken of the internationally known practice by the United States Article III. The Parties, through their Foreign Ministers or their
of submitting to its Senate for advice and consent agreements that deputies, will consult together from time to time regarding the
are policymaking in nature, whereas those that carry out or further implementation of this Treaty and whenever in the opinion of either
implement these policymaking agreements are merely submitted to of them the territorial integrity, political independence or security of
Congress, under the provisions of the so-called Case–Zablocki Act, either of the Parties is threatened by external armed attack in the
within sixty days from ratification.6 Pacific.

The second reason has to do with the relation between the VFA and Article IV. Each Party recognizes that an armed attack in the Pacific
the RP-US Mutual Defense Treaty of August 30, 1951. This earlier area on either of the parties would be dangerous to its own peace
agreement was signed and duly ratified with the concurrence of and safety and declares that it would act to meet the common
both the Philippine Senate and the United States Senate. dangers in accordance with its constitutional processes.

The RP-US Mutual Defense Treaty states:7 Any such armed attack and all measures taken as a result thereof
shall be immediately reported to the Security Council of the United
MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE Nations. Such measures shall be terminated when the Security
PHILIPPINES AND THE UNITED STATES OF AMERICA. Signed at Council has taken the measures necessary to restore and maintain
Washington, August 30, 1951. international peace and security.

The Parties of this Treaty Article V. For the purpose of Article IV, an armed attack on either of
the Parties is deemed to include an armed attack on the
metropolitan territory of either of the Parties, or on the island
Reaffirming their faith in the purposes and principles of the Charter
territories under its jurisdiction in the Pacific Ocean, its armed
of the United Nations and their desire to live in peace with all
forces, public vessels or aircraft in the Pacific.
peoples and all governments, and desiring to strengthen the fabric
of peace in the Pacific area.
Article VI. This Treaty does not affect and shall not be interpreted as
affecting in any way the rights and obligations of the Parties under
Recalling with mutual pride the historic relationship which brought
the Charter of the United Nations or the responsibility of the United
their two peoples together in a common bond of sympathy and
Nations for the maintenance of international peace and security.
mutual ideals to fight side-by-side against imperialist aggression
during the last war.
Article VII. This Treaty shall be ratified by the Republic of the
Philippines and the United Nations of America in accordance with
Desiring to declare publicly and formally their sense of unity and
their respective constitutional processes and will come into force
their common determination to defend themselves against external
when instruments of ratification thereof have been exchanged by
armed attack, so that no potential aggressor could be under the
them at Manila.
illusion that either of them stands alone in the Pacific area.

Article VIII. This Treaty shall remain in force indefinitely. Either Party
Desiring further to strengthen their present efforts for collective
may terminate it one year after notice has been given to the other
defense for the preservation of peace and security pending the
party.
development of a more comprehensive system of regional security
in the Pacific area.
In withness whereof the undersigned Plenipotentiaries have signed
this Treaty.
Done in duplicate at Washington this thirtieth day of August, 1951. 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
For the Republic of the Philippines: 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
(Sgd.) Carlos P. Romulo
US Senate, there is no violation of the Constitutional provision
resulting from such presence.
(Sgd.) Joaquin M. Elizalde
The VFA being a valid and binding agreement, the parties are
(Sgd.) Vicente J. Francisco required as a matter of international law to abide by its terms and
provisions.
(Sgd.) Diosdado Macapagal
The VFA provides that in cases of offenses committed by the
For the United States of America: members of the US Armed Forces in the Philippines, the following
rules apply:
(Sgd.) Dean Acheson
Article V
(Sgd.) John Foster Dulles
Criminal Jurisdiction
(Sgd.) Tom Connally
xxx
(Sgd.) Alexander Wiley8
6. The custody of any United States personnel over whom the
Clearly, therefore, joint RP-US military exercises for the purpose of Philippines is to exercise jurisdiction shall immediately reside with
developing the capability to resist an armed attack fall squarely United States military authorities, if they so request, from the
under the provisions of the RP-US Mutual Defense Treaty. The VFA, commission of the offense until completion of all judicial
which is the instrument agreed upon to provide for the joint RP-US proceedings. United States military authorities shall, upon formal
military exercises, is simply an implementing agreement to the main notification by the Philippine authorities and without delay, make
RP-US Military Defense Treaty. The Preamble of the VFA states: 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
The Government of the United States of America and the Philippine Government shall present its position to the United States
Government of the Republic of the Philippines, Government regarding custody, which the United States
Government shall take into full account. In the event Philippine
Reaffirming their faith in the purposes and principles of the Charter judicial proceedings are not completed within one year, the United
of the United Nations and their desire to strengthen international States shall be relieved of any obligations under this paragraph. The
and regional security in the Pacific area; one year period will not include the time necessary to appeal. Also,
the one year period will not include any time during which
Reaffirming their obligations under the Mutual Defense Treaty of scheduled trial procedures are delayed because United States
August 30, 1951; authorities, after timely notification by Philippine authorities to
arrange for the presence of the accused, fail to do so.
Noting that from time to time elements of the United States armed
forces may visit the Republic of the Philippines; Petitioners contend that these undertakings violate another
provision of the Constitution, namely, that providing for the
exclusive power of this Court to adopt rules of procedure for all
Considering that cooperation between the United States and the
courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to
Republic of the Philippines promotes their common security
allow the transfer of custody of an accused to a foreign power is to
interests;
provide for a different rule of procedure for that accused, which also
violates the equal protection clause of the Constitution (Art. III, Sec.
Recognizing the desirability of defining the treatment of United 1.).
States personnel visiting the Republic of the Philippines;
Again, this Court finds no violation of the Constitution.
Have agreed as follows:9
The equal protection clause is not violated, because there is a
Accordingly, as an implementing agreement of the RP-US Mutual substantial basis for a different treatment of a member of a foreign
Defense Treaty, it was not necessary to submit the VFA to the US military armed forces allowed to enter our territory and all other
Senate for advice and consent, but merely to the US Congress under accused.11
the Case–Zablocki Act within 60 days of its ratification. It is for this
reason that the US has certified that it recognizes the VFA as a
The rule in international law is that a foreign armed forces allowed
binding international agreement, i.e., a treaty, and this substantially
to enter one’s territory is immune from local jurisdiction, except to
complies with the requirements of Art. XVIII, Sec. 25 of our
the extent agreed upon. The Status of Forces Agreements involving
Constitution.10
foreign military units around the world vary in terms and conditions,
according to the situation of the parties involved, and reflect their treaties are self-executing or there is an implementing legislation to
bargaining power. But the principle remains, i.e., the receiving State make them enforceable.1avvphi1
can exercise jurisdiction over the forces of the sending State only to
the extent agreed upon by the parties.12 On February 3, 2009, the Court issued a Resolution, thus:

As a result, the situation involved is not one in which the power of "G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et
this Court to adopt rules of procedure is curtailed or violated, but al.); G.R. No. 176051 (Jovito R. Salonga, et al. v. Daniel Smith, et al.);
rather one in which, as is normally encountered around the world, and G.R. No. 176222 (Bagong Alyansang Makabayan [BAYAN], et al.
the laws (including rules of procedure) of one State do not extend or v. President Gloria Macapagal-Arroyo, et al.).
apply – except to the extent agreed upon – to subjects of another
State due to the recognition of extraterritorial immunity given to
The parties, including the Solicitor General, are required to submit
such bodies as visiting foreign armed forces.
within three (3) days a Comment/Manifestation on the following
points:
Nothing in the Constitution prohibits such agreements recognizing
immunity from jurisdiction or some aspects of jurisdiction (such as
1. What is the implication on the RP-US Visiting Forces
custody), in relation to long-recognized subjects of such immunity
Agreement of the recent US Supreme Court decision in
like Heads of State, diplomats and members of the armed forces
Jose Ernesto Medellin v. Texas, dated March 25, 2008, to
contingents of a foreign State allowed to enter another State’s
the effect that treaty stipulations that are not self-
territory. On the contrary, the Constitution states that the
executory can only be enforced pursuant to legislation to
Philippines adopts the generally accepted principles of international
carry them into effect; and that, while treaties may
law as part of the law of the land. (Art. II, Sec. 2).
comprise international commitments, they are not
domestic law unless Congress has enacted implementing
Applying, however, the provisions of VFA, the Court finds that there statutes or the treaty itself conveys an intention that it be
is a different treatment when it comes to detention as against "self-executory" and is ratified on these terms?
custody. The moment the accused has to be detained, e.g., after
conviction, the rule that governs is the following provision of the
2. Whether the VFA is enforceable in the US as domestic
VFA:
law, either because it is self-executory or because there
exists legislation to implement it.
Article V
3. Whether the RP-US Mutual Defense Treaty of August
Criminal Jurisdiction 30, 1951 was concurred in by the US Senate and, if so, is
there proof of the US Senate advice and consent
xxx resolution? Peralta, J., no part."

Sec. 10. The confinement or detention by Philippine authorities of After deliberation, the Court holds, on these points, as follows:
United States personnel shall be carried out in facilities agreed on by
appropriate Philippines and United States authorities. United States First, the VFA is a self-executing Agreement, as that term is defined
personnel serving sentences in the Philippines shall have the right to in Medellin itself, because the parties intend its provisions to be
visits and material assistance. enforceable, precisely because the Agreement is intended to carry
out obligations and undertakings under the RP-US Mutual Defense
It is clear that the parties to the VFA recognized the difference Treaty. As a matter of fact, the VFA has been implemented and
between custody during the trial and detention after conviction, executed, with the US faithfully complying with its obligation to
because they provided for a specific arrangement to cover produce L/CPL Smith before the court during the trial.
detention. And this specific arrangement clearly states not only that
the detention shall be carried out in facilities agreed on by Secondly, the VFA is covered by implementing legislation, namely,
authorities of both parties, but also that the detention shall be "by the Case-Zablocki Act, USC Sec. 112(b), inasmuch as it is the very
Philippine authorities." Therefore, the Romulo-Kenney Agreements purpose and intent of the US Congress that executive agreements
of December 19 and 22, 2006, which are agreements on the registered under this Act within 60 days from their ratification be
detention of the accused in the United States Embassy, are not in immediately implemented. The parties to these present cases do not
accord with the VFA itself because such detention is not "by question the fact that the VFA has been registered under the Case-
Philippine authorities." Zablocki Act.1avvphi1

Respondents should therefore comply with the VFA and negotiate In sum, therefore, the VFA differs from the Vienna Convention on
with representatives of the United States towards an agreement on Consular Relations and the Avena decision of the International Court
detention facilities under Philippine authorities as mandated by Art. of Justice (ICJ), subject matter of the Medellin decision. The
V, Sec. 10 of the VFA. Convention and the ICJ decision are not self-executing and are not
registrable under the Case-Zablocki Act, and thus lack legislative
Next, the Court addresses the recent decision of the United States implementing authority.
Supreme Court in Medellin v. Texas ( 552 US ___ No. 06-984, March
25, 2008), which held that treaties entered into by the United States Finally, the RP-US Mutual Defense Treaty was advised and
are not automatically part of their domestic law unless these consented to by the US Senate on March 20, 1952, as reflected in
the US Congressional Record, 82nd Congress, Second Session, Vol. The Court of Appeals is hereby directed to resolve without delay the
98 – Part 2, pp. 2594-2595. related matters pending therein, namely, the petition for contempt
and the appeal of L/CPL Daniel Smith from the judgment of
The framers of the Constitution were aware that the application of conviction.
international law in domestic courts varies from country to country.
No costs.
As Ward N. Ferdinandusse states in his Treatise, DIRECT
APPLICATION OF INTERNATIONAL CRIMINAL LAW IN NATIONAL SO ORDERED.
COURTS, some countries require legislation whereas others do not.

It was not the intention of the framers of the 1987 Constitution, in


adopting Article XVIII, Sec. 25, to require the other contracting State
to convert their system to achieve alignment and parity with ours. It
was simply required that the treaty be recognized as a treaty by the
other contracting State. With that, it becomes for both parties a
binding international obligation and the enforcement of that
obligation is left to the normal recourse and processes under
international law.

Furthermore, as held by the US Supreme Court in Weinberger v.


Rossi,13 an executive agreement is a "treaty" within the meaning of
that word in international law and constitutes enforceable domestic
law vis-à-vis the United States. Thus, the US Supreme Court in
Weinberger enforced the provisions of the executive agreement
granting preferential employment to Filipinos in the US Bases here.

Accordingly, there are three types of treaties in the American


system:

1. Art. II, Sec. 2 treaties – These are advised and consented


to by the US Senate in accordance with Art. II, Sec. 2 of the
US Constitution.

2. Executive–Congressional Agreements: These are joint


agreements of the President and Congress and need not
be submitted to the Senate.

3. Sole Executive Agreements. – These are agreements


entered into by the President. They are to be submitted to
Congress within sixty (60) days of ratification under the
provisions of the Case-Zablocki Act, after which they are
recognized by the Congress and may be implemented.

As regards the implementation of the RP-US Mutual Defense Treaty,


military aid or assistance has been given under it and this can only
be done through implementing legislation. The VFA itself is another
form of implementation of its provisions.

WHEREFORE, the petitions are PARTLY GRANTED, and the Court of


Appeals’ Decision in CA-G.R. SP No. 97212 dated January 2, 2007 is
MODIFIED. The Visiting Forces Agreement (VFA) between the
Republic of the Philippines and the United States, entered into on
February 10, 1998, is UPHELD as constitutional, but the Romulo-
Kenney Agreements of December 19 and 22, 2006 are DECLARED
not in accordance with the VFA, and respondent Secretary of
Foreign Affairs is hereby ordered to forthwith negotiate with the
United States representatives for the appropriate agreement on
detention facilities under Philippine authorities as provided in Art. V,
Sec. 10 of the VFA, pending which the status quo shall be
maintained until further orders by this Court.
G.R. No. 167919 February 14, 2007 delegation. Both Ambassador Ara and then Secretary Siazon signed
the Records of Discussion as representatives of the Government of
PLARIDEL M. ABAYA, COMMODORE PLARIDEL C. GARCIA (retired) Japan and Philippine Government, respectively.
and PMA ’59 FOUNDATION, INC., rep. by its President,
COMMODORE CARLOS L. AGUSTIN (retired), Petitioners, The Exchange of Notes provided that the loans to be extended by
vs. the Government of Japan to the Philippines consisted of two loans:
HON. SECRETARY HERMOGENES E. EBDANE, JR., in his capacity as Loan I and Loan II. The Exchange of Notes stated in part:
Secretary of the DEPARTMENT OF PUBLIC WORKS and HIGHWAYS,
HON. SECRETARY EMILIA T. BONCODIN, in her capacity as I
Secretary of the DEPARTMENT OF BUDGET and MANAGEMENT,
HON. SECRETARY CESAR V. PURISIMA, in his capacity as Secretary
1. A loan in Japanese yen up to the amount of seventy-
of the DEPARTMENT OF FINANCE, HON. TREASURER NORMA L.
nine billion eight hundred and sixty-one million yen
LASALA, in her capacity as Treasurer of the Bureau of Treasury, and
(Y79,861,000,000) (hereinafter referred to as "the Loan I")
CHINA ROAD and BRIDGE CORPORATION, Respondents.
will be extended, in accordance with the relevant laws and
regulations of Japan, to the Government of the Republic of
DECISION the Philippines (hereinafter referred to as "the Borrower
I") by the Japan Bank for International Cooperation
CALLEJO, SR., J.: (hereinafter referred to as "the Bank") to implement the
projects enumerated in the List A attached hereto
Before the Court is the petition for certiorari and prohibition under (hereinafter referred to as "the List A") according to the
Rule 65 of the Rules of Court seeking to set aside and nullify allocation for each project as specified in the List A.
Resolution No. PJHL-A-04-012 dated May 7, 2004 issued by the Bids
and Awards Committee (BAC) of the Department of Public Works 2. (1) The Loan I will be made available by loan agreements
and Highways (DPWH) and approved by then DPWH Acting to be concluded between the Borrower I and the Bank.
Secretary Florante Soriquez. The assailed resolution recommended The terms and conditions of the Loan I as well as the
the award to private respondent China Road & Bridge Corporation of procedure for its utilization will be governed by said loan
the contract for the implementation of civil works for Contract agreements which will contain, inter alia, the following
Package No. I (CP I), which consists of the principles:
improvement/rehabilitation of the San Andres (Codon)-Virac-Jct.
Bago-Viga road, with the length of 79.818 kilometers, in the island ...
province of Catanduanes.
(2) Each of the loan agreements mentioned in
The CP I project is one of the four packages comprising the project sub-paragraph (1) above will be concluded after
for the improvement/rehabilitation of the Catanduanes the Bank is satisfied of the feasibility, including
Circumferential Road, covering a total length of about 204.515 environmental consideration, of the project to
kilometers, which is the main highway in Catanduanes Province. The which such loan agreement relates.
road section (Catanduanes Circumferential Road) is part of the
Arterial Road Links Development Project (Phase IV) funded under
3. (1) The Loan I will be made available to cover payments
Loan Agreement No. PH-P204 dated December 28, 1999 between
to be made by the Philippine executing agencies to
the Japan Bank for International Cooperation (JBIC) and the
suppliers, contractors and/or consultants of eligible source
Government of the Republic of the Philippines.
countries under such contracts as may be entered into
between them for purchases of products and/or services
Background required for the implementation of the projects
enumerated in the List A, provided that such purchases are
Based on the Exchange of Notes dated December 27, 1999,1 the made in such eligible source countries for products
Government of Japan and the Government of the Philippines, produced in and/or services supplied from those
through their respective representatives, namely, Mr. Yoshihisa Ara, countries.
Ambassador Extraordinary and Plenipotentiary of Japan to the
Republic of the Philippines, and then Secretary of Foreign Affairs (2) The scope of eligible source countries
Domingo L. Siazon, have reached an understanding concerning mentioned in sub-paragraph (1) above will be
Japanese loans to be extended to the Philippines. These loans were agreed upon between the authorities concerned
aimed at promoting our country’s economic stabilization and of the two Governments.
development efforts.
(3) A part of the Loan I may be used to cover
The Exchange of Notes consisted of two documents: (1) a Letter eligible local currency requirements for the
from the Government of Japan, signed by Ambassador Ara, implementation of the projects enumerated in
addressed to then Secretary of Foreign Affairs Siazon, confirming the the List A.
understanding reached between the two governments concerning
the loans to be extended by the Government of Japan to the
4. With regard to the shipping and marine insurance of the
Philippines; and (2) a document denominated as Records of
products purchased under the Loan I, the Government of
Discussion where the salient terms of the loans as set forth by the
the Republic of the Philippines will refrain from imposing
Government of Japan, through the Japanese delegation, were
reiterated and the said terms were accepted by the Philippine
any restrictions that may hinder fair and free competition (2) the procurement of products and/or services will be
among the shipping and marine insurance companies. made in accordance with the procedures of international
competitive tendering except where such procedures are
x x x x2 1awphi1.net inapplicable and inappropriate.

Pertinently, List A, which specified the projects to be financed under x x x x5


the Loan I, includes the Arterial Road Links Development Project
(Phase IV), to wit: Thus, in accordance with the agreement reached by the
Government of Japan and the Philippine Government, as expressed
LIST A in the Exchange of Notes between the representatives of the two
governments, the Philippines obtained from and was granted a loan
by the JBIC. Loan Agreement No. PH-P204 dated December 28,
Maximum amount in million yen)
1999, in particular, stated as follows:
1. Secondary Education Development and Improvement Project
7,210
2. Rural Water Supply Project (Phase V) 951 Loan Agreement No. PH-P204, dated December 28, 1999, between
3. Bohol Irrigation Project (Phase II) 6,078 JAPAN BANK FOR INTERNATIONAL COOPERATION and the
4. Agrarian Reform Infrastructure Support Project (Phase II) 16,990 GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES.
5. Arterial Road Links Development Project (Phase IV) 15,384
6. Cordillera Road Improvement Project 5,852 In the light of the contents of the Exchange of Notes between the
7. Philippines-Japan Friendship Highway Mindanao Section Government of Japan and the Government of the Republic of the
Rehabilitation Project (Phase II) 7,434 Philippines dated December 27, 1999, concerning Japanese loans to
8. Rehabilitation and Maintenance of Bridges Along Arterial Roads be extended with a view to promoting the economic stabilization
Project (Phase IV) 5,068 and development efforts of the Republic of the Philippines.
9. Maritime Safety Improvement Project (Phase C) 4,714
10. Pinatubo Hazard Urgent Mitigation Project (Phase II) 9,013 JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter
11. Pasig-Marikina River Channel Improvement Project (Phase I) referred to as "the BANK") and THE GOVERNMENT OF THE REPUBLIC
1,167 OF THE PHILIPPINES (hereinafter referred to as "the Borrower")
Total 79,8613 herewith conclude the following Loan Agreement (hereinafter
The Exchange of Notes further provided that: referred to as "the Loan Agreement", which includes all agreements
III supplemental hereto).

xxxx x x x x6

3. The Government of the Republic of the Philippines will ensure Under the terms and conditions of Loan Agreement No. PH-P204,
that the products and/or services mentioned in sub-paragraph (1) of JBIC agreed to lend the Philippine Government an amount not
paragraph 3 of Part I and sub-paragraph (1) of paragraph 4 of Part II exceeding FIFTEEN BILLION THREE HUNDRED EIGHTY-FOUR MILLION
are procured in accordance with the guidelines for procurement of Japanese Yen (Y15,384,000,000) as principal for the implementation
the Bank, which set forth, inter alia, the procedures of international of the Arterial Road Links Development Project (Phase IV) on the
tendering to be followed except where such procedures are terms and conditions set forth in the Loan Agreement and in
inapplicable or inappropriate. accordance with the relevant laws and regulations of Japan.7 The
said amount shall be used for the purchase of eligible goods and
x x x x4 services necessary for the implementation of the above-mentioned
project from suppliers, contractors or consultants.8
The Records of Discussion, which formed part of the Exchange of
Notes, also stated in part, thus: Further, it was provided under the said loan agreement that other
terms and conditions generally applicable thereto shall be set forth
xxxx in the General Terms and Conditions, dated November 1987, issued
by the Overseas Economic Cooperation Fund (OECF) and for the
purpose, reference to "the OECF" and "Fund" therein (General
1. With reference to sub-paragraph (3) of paragraph 3 of Part I of the
Terms and Conditions) shall be substituted by "the JBIC" and "Bank,"
Exchange of Notes concerning the financing of eligible local currency
respectively.9 Specifically, the guidelines for procurement of all
requirements for the implementation of the projects mentioned in
goods and services to be financed out of the proceeds of the said
the said sub-paragraph, the representative of the Japanese
loan shall be as stipulated in the Guidelines for Procurement under
delegation stated that:
OECF Loans dated December 1997 (herein referred to as JBIC
Procurement Guidelines).10
(1) such requirement of local currency as general
administrative expenses, interest during construction,
As mentioned earlier, the proceeds of Loan Agreement No. PH-P204
taxes and duties, expenses concerning office,
was to be used to finance the Arterial Road Links Development
remuneration to employees of the executing agencies and
Project (Phase IV), of which the Catanduanes Circumferential Road
housing, not directly related to the implementation of the
was a part. This road section, in turn, was divided into four contract
said projects, as well as purchase of land properties,
packages (CP):
compensation and the like, however, will not be
considered as eligible for financing under the Loan I; and
CP I: San Andres (Codon)-Virac-Jct. Bato- Viga Road - In accordance with the Guidelines for the Procurements under ODA
79.818 kms [Official Development Assistance] Loans, the Consultant hereby
recommends the award of the contract for the construction of CP I,
CP II: Viga-Bagamanoc Road - 10.40 kms. San Andres (Codon) – Virac – Jct. Bato – Viga Section under the
Arterial Road Links Development Projects, Phase IV, JBIC Loan No.
PH-P204 to the Lowest Complying Bidder, China Road and Bridge
CP III: Bagamanoc-Pandan Road - 47.50 kms.
Corporation, at its total corrected bid amount of Nine Hundred Fifty-
Two Million Five Hundred Sixty-Four Thousand Eight Hundred
CP IV: Pandan-Caramoran-Codon Road - 66.40 kms.11 Twenty-One & 71/100 Pesos.15

Subsequently, the DPWH, as the government agency tasked to The BAC of the DPWH, with the approval of then Acting Secretary
implement the project, caused the publication of the "Invitation to Soriquez, issued the assailed Resolution No. PJHL-A-04-012 dated
Prequalify and to Bid" for the implementation of the CP I project in May 7, 2004 recommending the award in favor of private
two leading national newspapers, namely, the Manila Times and respondent China Road & Bridge Corporation of the contract for the
Manila Standard on November 22 and 29, and December 5, 2002. implementation of civil works for CP I, San Andres (Codon) – Virac –
Jct. Bato – Viga Road (Catanduanes Circumferential Road
A total of twenty-three (23) foreign and local contractors responded Improvement Project) of the Arterial Roads Links Development
to the invitation by submitting their accomplished prequalification Project, Phase IV, located in Catanduanes Province, under JBIC Loan
documents on January 23, 2003. In accordance with the established Agreement No. PH-P204.16 On September 29, 2004, a Contract of
prequalification criteria, eight contractors were evaluated or Agreement was entered into by and between the DPWH and private
considered eligible to bid as concurred by the JBIC. One of them, respondent China Road & Bridge Corporation for the
however, withdrew; thus, only seven contractors submitted their bid implementation of the CP I project.
proposals.
The Parties
The bid documents submitted by the prequalified
contractors/bidders were examined to determine their compliance Petitioner Plaridel M. Abaya claims that he filed the instant petition
with the requirements as as a taxpayer, former lawmaker, and a Filipino citizen. Petitioner
stipulated in Article 6 of the Instruction to Bidders.12 After the lapse Plaridel C. Garcia likewise claims that he filed the suit as a taxpayer,
of the deadline for the submission of bid proposals, the opening of former military officer, and a Filipino citizen. Petitioner PMA ’59
the bids commenced immediately. Prior to the opening of the Foundation, Inc., on the other hand, is a non-stock, non-profit
respective bid proposals, it was announced that the Approved corporation organized under the existing Philippine laws. It claims
Budget for the Contract (ABC) was in the amount of that its members are all taxpayers and alumni of the Philippine
₱738,710,563.67. Military Academy. It is represented by its President, Carlos L.
Agustin.
The result of the bidding revealed the following three lowest bidders
and their respective bids vis-à-vis the ABC:13 Named as public respondents are the DPWH, as the government
agency tasked with the implementation of government
infrastructure projects; the Department of Budget and Management
Name of Original Bid As As-Corrected Bid
Variance (DBM) as the government agency that authorizes the release and
Bidder Read (Pesos) Amount (Pesos)
disbursement of public funds for the implementation of government
1) China Road infrastructure projects; and the Department of Finance (DOF) as the
And Bridge ₱ 993,183,904.98 ₱952,564,821.71 28.95% government agency that acts as the custodian and manager of all
Corporation financial resources of the government. Also named as individual
public respondents are Hermogenes E. Ebdane, Jr., Emilia T.
2) Cavite Ideal Boncodin and Cesar V. Purisima in their capacities as former
Int’l Const. ₱1,099,926,598.11 ₱1,099,926,598.11 48.90% Secretaries of the DPWH, DBM and DOF, respectively. On the other
Devt. Corp. hand, public respondent Norma L. Lasala was impleaded in her
3) Italian Thai capacity as Treasurer of the Bureau of Treasury.
Dev’t. Public ₱1,125,022,075.34 ₱1,125,392,475.36 52.35%
Company, Ltd. Private respondent China Road & Bridge Corporation is a duly
organized corporation engaged in the business of construction.
The bid of private respondent China Road & Bridge Corporation was
corrected from the original ₱993,183,904.98 (with variance of The Petitioners’ Case
34.45% from the ABC) to ₱952,564,821.71 (with variance of 28.95%
from the ABC) based on their letter clarification dated April 21, The petitioners mainly seek to nullify DPWH Resolution No. PJHL-A-
2004.14 04-012 dated May 7, 2004, which recommended the award to
private respondent China Road & Bridge Corporation of the contract
After further evaluation of the bids, particularly those of the lowest for the implementation of the civil works of CP I. They also seek to
three bidders, Mr. Hedifume Ezawa, Project Manager of the annul the contract of agreement subsequently entered into by and
Catanduanes Circumferential Road Improvement Project (CCRIP), in between the DPWH and private respondent China Road & Bridge
his Contractor’s Bid Evaluation Report dated April 2004, Corporation pursuant to the said resolution.
recommended the award of the contract to private respondent
China Road & Bridge Corporation: They pose the following issues for the Court’s resolution:
I. Whether or not Petitioners have standing to file the 9184 (RA 9184)19 known as the Government Procurement Reform
instant Petition. Act, the law allegedly violated by the public respondents.

II. Whether or not Petitioners are entitled to the issuance On the substantive issues, the petitioners anchor the instant petition
of a Writ of Certiorari reversing and setting aside DPWH on the contention that the award of the contract to private
Resolution No. PJHL-A-04-012, recommending the award respondent China Road & Bridge Corporation violates RA 9184,
of the Contract Agreement for the implementation of civil particularly Section 31 thereof which reads:
works for CPI, San Andres (CODON)-VIRAC-JCT BATO-VIGA
ROAD (CATANDUANES CIRCUMFERENTIAL ROAD SEC. 31. Ceiling for Bid Prices. – The ABC shall be the upper limit or
IMPROVEMENT PROJECT) of the Arterial Road Links ceiling for the Bid prices. Bid prices that exceed this ceiling shall be
Development Project, Phase IV, located in Catanduanes disqualified outright from further participating in the bidding. There
Province, under JBIC L/A No. PH-P204, to China Road & shall be no lower limit to the amount of the award.
Bridge Corporation.
In relation thereto, the petitioners cite the definition of the ABC,
III. Whether or not the Contract Agreement executed by thus:
and between the Republic of the Philippines, through the
Department of Public Works and Highways, and the China
SEC. 5. Definition of Terms. –
Road & Bridge Corporation, for the implementation of civil
works for CPI, San Andres (CODON)-VIRAC-JCT BATO-VIGA
ROAD (CATANDUANES CIRCUMFERENTIAL ROAD xxx
IMPROVEMENT PROJECT) of the Arterial Road Links
Development Project, Phase IV, located in Catanduanes (a) Approved Budget for the Contract (ABC). – refers to the budget
Province, under JBIC L/A No. PH-P204, is void ab initio. for the contract duly approved by the Head of the Procuring Entity,
as provided for in the General Appropriations Act and/or continuing
IV. Whether or not Petitioners are entitled to the issuance appropriations, in the case of National Government Agencies; the
of a Writ of Prohibition permanently prohibiting the Corporate Budget for the contract approved by the governing
implementation of DPWH Resolution No. PJHL-A-04-012 Boards, pursuant to E.O. No. 518, series of 1979, in the case of
and the Contract Agreement executed by and between the Government-Owned and/or Controlled Corporations, Government
Republic of the Philippines (through the Department of Financial Institutions and State Universities and Colleges; and the
Public Works and Highways) and the China Road & Bridge Budget for the contract approved by the respective Sanggunian, in
Corporation, and the disbursement of public funds by the the case of Local Government Units.
[D]epartment of [B]udget and [M]anagement for such
purpose. xxx

V. Whether or not Petitioners are entitled to a Preliminary The petitioners theorize that the foregoing provisions show the
Injunction and/or a Temporary Restraining Order mandatory character of ceilings or upper limits of every bid. Under
immediately enjoining the implementation of DPWH the above-quoted provisions of RA 9184, all bids or awards should
Resolution No. PJHL-A-04-012 and the Contract Agreement not exceed the ceilings or upper limits; otherwise, the contract is
executed by and between the Republic of the Philippines deemed void and inexistent.
(through the Department of Public Works and Highways)
and the China Road & Bridge Corporation, and the Resolution No. PJHL-A-04-012 was allegedly issued with grave abuse
disbursement of public funds by the Department of Budget of discretion because it recommended the award of the contract to
and Management for such purpose, during the pendency private respondent China Road & Bridge Corporation whose bid was
of this case.17 more than ₱200 million overpriced based on the ABC. As such, the
award is allegedly illegal and unconscionable.
Preliminarily, the petitioners assert that they have standing or locus
standi to file the instant petition. They claim that as taxpayers and In this connection, the petitioners opine that the contract
concerned citizens, they have the right and duty to question the subsequently entered into by and between the DPWH and private
expenditure of public funds on illegal acts. They point out that the respondent China Road & Bridge Corporation is void ab initio for
Philippine Government allocates a peso-counterpart for CP I, which being prohibited by RA 9184. They stress that Section 31 thereof
amount is appropriated by Congress in the General Appropriations expressly provides that "bid prices that exceed this ceiling shall be
Act; hence, funds that are being utilized in the implementation of disqualified outright from participating in the bidding." The upper
the questioned project also partake of taxpayers’ money. The limit or ceiling is called the ABC and since the bid of private
present action, as a taxpayers’ suit, is thus allegedly proper. respondent China Road & Bridge Corporation exceeded the ABC for
the CP I project, it should have been allegedly disqualified from the
They likewise characterize the instant petition as one of bidding process and should not, by law, have been awarded the said
transcendental importance that warrants the Court’s adoption of a contract. They invoke Article 1409 of the Civil Code:
liberal stance on the issue of standing. It cited several cases where
the Court brushed aside procedural technicalities in order to resolve ART. 1409. The following contracts are inexistent and void from the
issues involving paramount public interest and transcendental beginning:
importance.18 Further, petitioner Abaya asserts that he possesses
the requisite standing as a former member of the House of
Representatives and one of the principal authors of Republic Act No. (1) Those whose cause, object or purpose is contrary to
law, morals, good customs, public order or public policy;
(2) Those which are absolutely simulated or fictitious; ibang contractor. So this promote (sic) collusion among bidders, of
course, with the cooperation of irresponsible officials of some
(3) Those whose cause or object did not exist at the time agencies. So we should have a ceiling to include foreign funded
of the transaction; projects.22

(4) Those whose object is outside the commerce of men; The petitioners insist that Loan Agreement No. PH-P204 between
the JBIC and the Philippine Government is neither a treaty, an
international nor an executive agreement that would bar the
(5) Those which contemplate an impossible service;
application of RA 9184. They point out that to be considered a
treaty, an international or an executive agreement, the parties must
(6) Those where the intention of the parties relative to the be two sovereigns or States whereas in the case of Loan Agreement
principal object of the contract cannot be ascertained; No. PH-P204, the parties are the Philippine Government and the
JBIC, a banking agency of Japan, which has a separate juridical
(7) Those expressly prohibited or declared void by law. personality from the Japanese Government.

For violating the above provision, the contract between the DPWH They further insist on the applicability of RA 9184 contending that
and private respondent China Road & Bridge Corporation is allegedly while it took effect on January 26, 200323 and Loan Agreement No.
inexistent and void ab initio and can produce no effects whatsoever. PH-P204 was executed prior thereto or on December 28, 1999, the
actual procurement or award of the contract to private respondent
It is the contention of the petitioners that RA 9184 is applicable to China Road & Bridge Corporation was done after the effectivity of
both local- and foreign-funded procurement contracts. They cite the RA 9184. The said law is allegedly specific as to its application, which
following excerpt of the deliberations of the Bicameral Conference is on the actual procurement of infrastructure and other projects
Committee on the Disagreeing Provisions of Senate Bill No. 2248 and only, and not on the loan agreements attached to such projects.
House Bill No. 4809:20 Thus, the petition only prays for the annulment of Resolution No.
PJHL-A-04-012 as well as the contract between the DPWH and
private respondent China Road & Bridge Corporation. The
REP. ABAYA. Mr. Chairman, can we just propose additional petitioners clarify that they do not pray for the annulment of Loan
amendments? Can we go back to Section 4, Mr. Chairman? Agreement No. PH-P204. Since the subject procurement and award
of the contract were done after the effectivity of RA 9184,
THE CHAIRMAN (SEN. ANGARA). Section? Section ano, Del, 4? necessarily, the procurement rules established by that law allegedly
Definition – definition of terms. apply, and not Presidential Decree No. 1594 (PD 1594)24 and
Executive Order No. 40 (EO 40), series of 2001, 25 as contended by
REP. ABAYA. Sa House bill, it is sa scope and application. the respondents. The latter laws, including their implementing rules,
have allegedly been repealed by RA 9184. Even RA 4860, as
amended, known as the Foreign Borrowings Act, the petitioners
THE CHAIRMAN (SEN. ANGARA). Okay.
posit, may have also been repealed or modified by RA 9184 insofar
as its provisions are inconsistent with the latter.
REP. ABAYA. It should read as follows: "This Act shall apply to the
procurement of goods, supplies and materials, infrastructure
The petitioners also argue that the "Implementing Rules and
projects and consulting services regardless of funding source
Regulations (IRR) of RA 9184, Otherwise Known as the Government
whether local or foreign by the government."
Procurement Reform Act, Part A" (IRR-A) cited by the respondents is
not applicable as these rules only govern domestically-funded
THE CHAIRMAN (SEN. ANGARA). Okay, accepted. We accept. The procurement contracts. They aver that the implementing rules to
Senate accepts it.21 govern foreign-funded procurement, as in the present case, have yet
to be drafted and in fact, there are concurrent resolutions drafted by
xxx xxx xxx both houses of Congress for the Reconvening of the Joint
Congressional Oversight Committee for the formulation of the IRR
THE CHAIRMAN (SEN ANGARA). Just take note of that ano. Medyo for foreign-funded procurements under RA 9184.
nga problematic ‘yan eh. Now, just for the record Del, can you
repeat again the justification for including foreign funded contracts The petitioners maintain that disbursement of public funds to
within the scope para malinaw because the World Bank daw might implement a patently void and illegal contract is itself illegal and
raise some objection to it. must be enjoined. They bring to the Court’s attention the fact that
the works on the CP I project have already commenced as early as
REP. ABAYA. Well, Mr. Chairman, we should include foreign funded October 2004. They thus urge the Court to issue a writ of certiorari
projects kasi these are the big projects. To give an example, if you to set aside Resolution No. PJHL-A-04-012 as well as to declare null
allow bids above government estimate, let’s say take the case of 500 and void the contract entered into between the DPWH and private
million project, included in that 500 million is the 20 percent profit. respondent China Road & Bridge Corporation. They also pray for the
If you allow them to bid above government estimate, they will add issuance of a temporary restraining order and, eventually, a writ of
another say 28 percent of (sic) 30 percent, 30 percent of 500 million prohibition to permanently enjoin the DPWH from implementing
is another 150 million. Ito, this is a rich source of graft money, Resolution No. PJHL-A-04-012 and its contract with private
aregluhan na lang, 150 million, five contractors will gather, "O eto 20 respondent China Road & Bridge Corporation as well as the DBM
million, 20 million, 20 million." So, it is rigged. ‘Yun ang practice na from disbursing funds for the said purpose.
nangyayari. If we eliminate that, if we have a ceiling then, it will not
be very tempting kasi walang extra money na pwedeng ibigay sa The Respondents’ Counter-Arguments
The public respondents, namely the DPWH, DBM and DOF, and their xxx
respective named officials, through the Office of the Solicitor
General, urge the Court to dismiss the petition on grounds that the (e) Any procedure under which bids above or below a
petitioners have no locus standi and, in any case, Resolution No. predetermined bid value assessment are automatically disqualified
PJHL-A-04-012 and the contract between the DPWH and private is not permitted.
respondent China Road & Bridge Corporation are valid.
It was explained that other foreign banks such as the Asian
According to the public respondents, a taxpayer’s locus standi was Development Bank (ADB) and the World Bank (WB) similarly prohibit
recognized in the following cases: (a) where a tax measure is the bracketing or imposition of a ceiling on bid prices.
assailed as unconstitutional;26 (b) where there is a question of
validity of election laws;27 (c) where legislators questioned the
The public respondents stress that it was pursuant to Loan
validity of any official action upon the claim that it infringes on their
Agreement No. PH-P204 that the assailed Resolution No. PJHL-A-04-
prerogatives as legislators;28 (d) where there is a claim of illegal
012 and the subsequent contract between the DPWH and private
disbursement or wastage of public funds through the enforcement
respondent China Road & Bridge Corporation materialized. They
of an invalid or unconstitutional law;29 (e) where it involves the right
likewise aver that Loan Agreement No. PH-P204 is governed by RA
of members of the Senate or House of Representatives to question
4860, as amended, or the Foreign Borrowings Act. Section 4 thereof
the validity of a presidential veto or condition imposed on an item in
states:
an appropriation bill;30 or (f) where it involves an invalid law, which
when enforced will put the petitioner in imminent danger of
sustaining some direct injury as a result thereof, or that he has been SEC. 4. In the contracting of any loan, credit or indebtedness under
or is about to be denied some right or privilege to which he is this Act, the President of the Philippines may, when necessary, agree
lawfully entitled or that he is about to be subjected to some burdens to waive or modify, the application of any law granting preferences
or penalties by reason of the statute complained of.31 None of the or imposing restrictions on international competitive bidding,
above considerations allegedly obtains in the present case. including among others [Act No. 4239, Commonwealth Act No. 138],
the provisions of [CA 541], insofar as such provisions do not pertain
to constructions primarily for national defense or security purposes,
It is also the view of the public respondents that the fact that
[RA 5183]; Provided, however, That as far as practicable, utilization
petitioner Abaya was a former lawmaker would not suffice to confer
of the services of qualified domestic firms in the prosecution of
locus standi on himself. Members of Congress may properly
projects financed under this Act shall be encouraged: Provided,
challenge the validity of an official act of any department of the
further, That in case where international competitive bidding shall
government only upon showing that the assailed official act affects
be conducted preference of at least fifteen per centum shall be
or impairs their rights and prerogatives as legislators.
granted in favor of articles, materials or supplies of the growth,
production or manufacture of the Philippines: Provided, finally, That
The public respondents further assail the standing of the petitioners the method and procedure in comparison of bids shall be the
to file the instant suit claiming that they failed to allege any specific subject of agreement between the Philippine Government and the
injury suffered nor an interest that is direct and personal to them. If lending institution.
at all, the interest or injuries claimed by the petitioners are allegedly
merely of a general interest common to all members of the public.
DOJ Opinion No. 46, Series of 1987, is relied upon by the public
Their interest is allegedly too vague, highly speculative and
respondents as it opined that an agreement for the exclusion of
uncertain to satisfy the requirements of locus standi.
foreign assisted projects from the coverage of local bidding
regulations does not contravene existing legislations because the
The public respondents find it noteworthy that the petitioners do statutory basis for foreign loan agreements is RA 4860, as amended,
not raise issues of constitutionality but only of contract law, which and under Section 4 thereof, the President is empowered to waive
the petitioners not being privies to the agreement cannot raise. This the application of any law imposing restrictions on the procurement
is following the principle that a stranger to a contract cannot sue of goods and services pursuant to such loans.
either or both the contracting parties to annul and set aside the
same except when he is prejudiced on his rights and can show
Memorandum Circular Nos. 104 and 108, issued by the President, to
detriment which would positively result to him from the
clarify RA 4860, as amended, and PD 1594, relative to the award of
implementation of the contract in which he has no intervention.
foreign-assisted projects, are also invoked by the public
There being no particularized interest or elemental substantial injury
respondents, to wit:
necessary to confer locus standi, the public respondents implore the
Court to dismiss the petition.
Memorandum Circular No. 104:
On the merits, the public respondents maintain that the imposition
of ceilings or upper limits on bid prices in RA 9184 does not apply In view of the provisions of Section 4 of Republic Act No. 4860, as
because the CP I project and the entire Catanduanes Circumferential amended, otherwise known as the "Foreign Borrowings Act"
Road Improvement Project, financed by Loan Agreement No. PH-
P204 executed between the Philippine Government and the JBIC, is xxx
governed by the latter’s Procurement Guidelines which precludes
the imposition of ceilings on bid prices. Section 5.06 of the JBIC It is hereby clarified that foreign-assisted infrastructure projects may
Procurement Guidelines reads: be exempted from the application for the pertinent provisions of the
Implementing Rules and Regulations (IRR) of Presidential Decree
Section 5.06. Evaluation and Comparison of Bids. (P.D.) No. 1594 relative to the method and procedure in the
comparison of bids, which matter may be the subject of agreement
between the infrastructure agency concerned and the lending contracts financed partly or wholly with funds from international
institution. It should be made clear however that public bidding is financing institutions as well as from bilateral and other similar
still required and can only be waived pursuant to existing laws. foreign sources."

Memorandum Circular No. 108: The applicability of EO 40, not RA 9184, is allegedly bolstered by the
fact that the "Invitation to Prequalify and to Bid" for the
In view of the provisions of Section 4 of Republic Act No. 4860, as implementation of the CP I project was published in two leading
amended, otherwise known as the "Foreign Borrowings Act", it is national newspapers, namely, the Manila Times and Manila
hereby clarified that, for projects supported in whole or in part by Standard on November 22, 29 and December 5, 2002, or before the
foreign assistance awarded through international or local signing into law of RA 9184 on January 10, 2003. In this connection,
competitive bidding, the government agency concerned may award the public respondents point to Section 77 of IRR-A, which reads:
the contract to the lowest evaluated bidder at his bid price
consistent with the provisions of the applicable loan/grant SEC. 77. Transitory Clause. –
agreement.
In all procurement activities, if the advertisement or invitation for
Specifically, when the loan/grant agreement so stipulates, the bids was issued prior to the effectivity of the Act, the provisions of
government agency concerned may award the contract to the EO 40 and its IRR, PD 1594 and its IRR, RA 7160 and its IRR, or other
lowest bidder even if his/its bid exceeds the approved agency applicable laws as the case may be, shall govern.
estimate.
In cases where the advertisements or invitations for bids were
It is understood that the concerned government agency shall, as far issued after the effectivity of the Act but before the effectivity of
as practicable, adhere closely to the implementing rules and this IRR-A, procuring entities may continue adopting the
regulations of Presidential Decree No. 1594 during loan/grant procurement procedures, rules and regulations provided in EO 40
negotiation and the implementation of the projects.32 and its IRR, or other applicable laws, as the case may be.

The public respondents characterize foreign loan agreements, Section 4 of RA 9184 is also invoked by the public respondents as it
including Loan Agreement No. PH-P204, as executive agreements provides:
and, as such, should be observed pursuant to the fundamental
principle in international law of pacta sunt servanda. 33 They cite SEC. 4. Scope and Applications. – This Act shall apply to the
Section 20 of Article VII of the Constitution as giving the President Procurement of Infrastructure Projects, Goods and Consulting
the authority to contract foreign loans: Services, regardless of source of funds, whether local or foreign, by
all branches and instrumentalities of government, its departments,
SEC. 20. The President may contract or guarantee foreign loans on offices and agencies, including government-owned and/or –
behalf of the Republic of the Philippines with the prior concurrence controlled corporations and local government units, subject to the
of the Monetary Board, and subject to such limitations as may be provisions of Commonwealth Act No. 138. Any treaty or
provided by law. The Monetary Board shall, within thirty days from international or executive agreement affecting the subject matter of
the end of every quarter of the calendar year, submit to the this Act to which the Philippine government is a signatory shall be
Congress a complete report of its decisions on applications for loans observed.
to be contracted or guaranteed by the Government or Government-
owned and Controlled Corporations which would have the effect of It is also the position of the public respondents that even granting
increasing the foreign debt, and containing other matters as may be arguendo that Loan Agreement No. PH-P204 were an ordinary loan
provided by law. contract, still, RA 9184 is inapplicable under the non-impairment
clause36 of the Constitution. The said loan agreement expressly
The Constitution, the public respondents emphasize, recognizes the provided that the procurement of goods and services for the project
enforceability of executive agreements in the same way that it financed by the same shall be governed by the Guidelines for
recognizes generally accepted principles of international law as Procurement under OECF Loans dated December 1997. Further,
forming part of the law of the land.34 This recognition allegedly Section 5.06 of the JBIC Procurement Guidelines categorically
buttresses the binding effect of executive agreements to which the provides that "[a]ny procedure under which bids above or below a
Philippine Government is a signatory. It is pointed out by the public predetermined bid value assessment are automatically disqualified
respondents that executive agreements are essentially contracts is not permitted."
governing the rights and obligations of the parties. A contract, being
the law between the parties, must be faithfully adhered to by them. The public respondents explain that since the contract is the law
Guided by the fundamental rule of pacta sunt servanda, the between the parties and Loan Agreement No. PH-P204 states that
Philippine Government bound itself to perform in good faith its the JBIC Procurement Guidelines shall govern the parties’
duties and obligations under Loan Agreement No. PH-P204. relationship and further dictates that there be no ceiling price for
the bidding, it naturally follows that any subsequent law passed
The public respondents further argue against the applicability of RA contrary to the letters of the said contract would have no effect with
9184 stating that it was signed into law on January 10, 2003.35 On respect to the parties’ rights and obligations arising therefrom.
the other hand, Loan Agreement No. PH-P204 was executed on
December 28, 1999, where the laws then in force on government To insist on the application of RA 9184 on the bidding for the CP I
procurements were PD 1594 and EO 40. The latter law (EO 40), in project would, notwithstanding the terms and conditions of Loan
particular, excluded from its application "any existing and future Agreement No. PH-P204, allegedly violate the constitutional
government commitments with respect to the bidding and award of
provision on non-impairment of obligations and contracts, and For procurement financed wholly or partly from Official
destroy vested rights duly acquired under the said loan agreement. Development Assistance (ODA) funds from International Financing
Institutions (IFIs), as well as from bilateral and other similar foreign
Lastly, the public respondents deny that there was illegal sources, the corresponding loan/grant agreement governing said
disbursement of public funds by the DBM. They asseverate that all funds as negotiated and agreed upon by and between the
the releases made by the DBM for the implementation of the entire Government and the concerned IFI shall be observed.
Arterial Road Links Project – Phase IV, which includes the
Catanduanes Circumferential Road Improvement Project, were Private respondent China Road & Bridge Corporation thus postulates
covered by the necessary appropriations made by law, specifically that following EO 40, the procurement of goods and services for the
the General Appropriations Act (GAA). Further, the requirements CP I project should be governed by the terms and conditions of Loan
and procedures prescribed for the release of the said funds were Agreement No. PH-P204 entered into between the JBIC and the
duly complied with. Philippine Government. Pertinently, Section 5.06 of the JBIC
Procurement Guidelines prohibits the setting of ceilings on bid
For its part, private respondent China Road & Bridge Corporation prices.
similarly assails the standing of the petitioners, either as taxpayers
or, in the case of petitioner Abaya, as a former lawmaker, to file the Private respondent China Road & Bridge Corporation claims that
present suit. In addition, it is also alleged that, by filing the petition when it submitted its bid for the CP I project, it relied in good faith
directly to this Court, the petitioners failed to observe the hierarchy on the provisions of EO 40. It was allegedly on the basis of the said
of courts. law that the DPWH awarded the project to private respondent China
Road & Bridge Coporation even if its bid was higher than the ABC.
On the merits, private respondent China Road & Bridge Corporation Under the circumstances, RA 9184 could not be applied retroactively
asserts that the applicable law to govern the bidding of the CP I for to do so would allegedly impair the vested rights of private
project was EO 40, not RA 9184, because the former was the law respondent China Road & Bridge Corporation arising from its
governing the procurement of government projects at the time that contract with the DPWH.
it was bidded out. EO 40 was issued by the Office of the President on
October 8, 2001 and Section 1 thereof states that: It is also contended by private respondent China Road & Bridge
Corporation that even assuming arguendo that RA 9184 could be
SEC. 1. Scope and Application. This Executive Order shall apply to the applied retroactively, it is still the terms of Loan Agreement No. PH-
procurement of: (a) goods, supplies, materials and related services; P204 which should govern the procurement of goods and services
(b) civil works; and (c) consulting services, by all National for the CP I project. It supports its theory by characterizing the said
Government agencies, including State Universities and Colleges loan agreement, executed pursuant to the Exchange of Notes
(SUCs), Government-Owned or Controlled Corporations (GOCCs) and between the Government of Japan and the Philippine Government,
Government Financial Institutions (GFIs), hereby referred to as the as an executive agreement.
‘Agencies.’ This Executive Order shall cover the procurement process
from the pre-procurement conference up to the award of contract. Private respondent China Road & Bridge Corporation, like the public
respondents, cites RA 4860 as the basis for the Exchange of Notes
xxx and Loan Agreement No. PH-P204. As an international or executive
agreement, the Exchange of Notes and Loan Agreement No. PH-
P204 allegedly created a legally binding obligation on the parties.
The Invitation to Prequalify and to Bid was first published on
November 22, 2002. On the other hand, RA 9184 was signed into
law only on January 10, 2003. Since the law in effect at the time the The following excerpt of the deliberations of the Bicameral
procurement process was initiated was EO 40, private respondent Conference Committee on the Disagreeing Provision of Senate Bill
China Road & Bridge Corporation submits that it should be the said No. 2248 and House Bill No. 4809 is cited by private respondent
law which should govern the entire procurement process relative to China Road & Bridge Corporation to support its contention that it is
the CP I project. the intent of the lawmakers to exclude from the application of RA
9184 those foreign-funded projects:
EO 40 expressly recognizes as an exception from the application of
the provisions thereof on approved budget ceilings, those projects xxx
financed by international financing institutions (IFIs) and foreign
bilateral sources. Section 1 thereof, quoted in part earlier, further REP. MARCOS. Yes, Mr. Chairman, to respond and to put into the
states: record, a justification for the inclusion of foreign contracts, may we
just state that foreign contracts have, of course, been brought into
SEC. 1. Scope and Application. x x x the ambit of the law because of the Filipino counterpart for this
foreign projects, they are no longer strictly foreign in nature but fall
under the laws of the Philippine government.
Nothing in this Order shall negate any existing and future
government commitments with respect to the bidding and award of
contracts financed partly or wholly with funds from international THE CHAIRMAN (SEN. ANGARA). Okay. I think that’s pretty clear. I
financing institutions as well as from bilateral and other similar think the possible concern is that some ODA are with strings
foreign sources. attached especially the Japanese. The Japanese are quite strict
about that, that they are (sic) even provide the architect and the
design, etcetera, plus, of course, the goods that will be supplied.
Section 1.2 of the Implementing Rules and Regulations of EO 40 is
likewise invoked as it provides:
Now, I think we’ve already provided that this is open to all and we Government is required to allocate a peso-counterpart therefor. The
will recognize our international agreements so that this bill will not public respondents themselves admit that appropriations for these
also restrict the flow of foreign funding, because some countries foreign-assisted projects in the GAA are composed of the loan
now make it a condition that they supply both services and goods proceeds and the peso-counterpart. The counterpart funds, the
especially the Japanese. Solicitor General explains, refer to the component of the project
cost to be financed from government-appropriated funds, as part of
So I think we can put a sentence that we continue to honor our the government’s commitment in the implementation of the
international obligations, di ba Laura? project.48 Hence, the petitioners correctly asserted their standing
since a part of the funds being utilized in the implementation of the
CP I project partakes of taxpayers’ money.
MR. ENCARNACION. Actually, subject to any treaty.

Further, the serious legal questions raised by the petitioners, e.g.,


THE CHAIRMAN (SEN. ANGARA). ‘Yun pala eh. That should allay their
whether RA 9184 applies to the CP I project, in particular, and to
anxiety and concern. Okay, buti na lang for the record para malaman
foreign-funded government projects, in general, and the fact that
nila na we are conscious sa ODA.37
public interest is indubitably involved considering the public
expenditure of millions of pesos, warrant the Court to adopt in the
Private respondent China Road & Bridge Corporation submits that present case its liberal policy on locus standi.
based on the provisions of the Exchange of Notes and Loan
Agreement No. PH-P204, it was rightfully and legally awarded the CP
In any case, for reasons which will be discussed shortly, the
I project. It urges the Court to dismiss the petition for lack of merit.
substantive arguments raised by the petitioners fail to persuade the
Court as it holds that Resolution No. PJHL-A-04-012 is valid. As a
The Court’s Rulings corollary, the subsequent contract entered into by and between the
DPWH and private respondent China Road & Bridge Corporation is
Petitioners, as taxpayers, possess locus standi to file the present suit likewise valid.

Briefly stated, locus standi is "a right of appearance in a court of History of Philippine Procurement Laws
justice on a given question."38 More particularly, it is a party’s
personal and substantial interest in a case such that he has It is necessary, at this point, to give a brief history of Philippine laws
sustained or will sustain direct injury as a result of the governmental pertaining to procurement through public bidding. The United States
act being challenged. It calls for more than just a generalized Philippine Commission introduced the American practice of public
grievance. The term "interest" means a material interest, an interest bidding through Act No. 22, enacted on October 15, 1900, by
in issue affected by the decree, as distinguished from mere interest requiring the Chief Engineer, United States Army for the Division of
in the question involved, or a mere incidental interest.39 Standing or the Philippine Islands, acting as purchasing agent under the control
locus standi is a peculiar concept in constitutional law40 and the of the then Military Governor, to advertise and call for a competitive
rationale for requiring a party who challenges the constitutionality bidding for the purchase of the necessary materials and lands to be
of a statute to allege such a personal stake in the outcome of the used for the construction of highways and bridges in the Philippine
controversy is "to assure that concrete adverseness which sharpens Islands.49 Act No. 74, enacted on January 21, 1901 by the Philippine
the presentation of issues upon which the court so largely depends Commission, required the General Superintendent of Public
for illumination of difficult constitutional questions."41 Instruction to purchase office supplies through competitive public
bidding.50 Act No. 82, approved on January 31, 1901, and Act No. 83,
Locus standi, however, is merely a matter of procedure42 and it has approved on February 6, 1901, required the municipal and provincial
been recognized that in some cases, suits are not brought by parties governments, respectively, to hold competitive public biddings in
who have been personally injured by the operation of a law or any the making of contracts for public works and the purchase of office
other government act but by concerned citizens, taxpayers or voters supplies.51
who actually sue in the public interest.43 Consequently, the Court, in
a catena of cases,44 has invariably adopted a liberal stance on locus On June 21, 1901, the Philippine Commission, through Act No. 146,
standi, including those cases involving taxpayers. created the Bureau of Supply and with its creation, public bidding
became a popular policy in the purchase of supplies, materials and
The prevailing doctrine in taxpayer’s suits is to allow taxpayers to equipment for the use of the national government, its subdivisions
question contracts entered into by the national government or and instrumentalities.52 On February 3, 1936, then President Manuel
government- owned or controlled corporations allegedly in L. Quezon issued Executive Order No. 16 declaring as a matter of
contravention of law.45 A taxpayer is allowed to sue where there is a general policy that government contracts for public service or for
claim that public funds are illegally disbursed, or that public money furnishing supplies, materials and equipment to the government
is being deflected to any improper purpose, or that there is a should be subjected to public bidding.53 The requirement of public
wastage of public funds through the enforcement of an invalid or bidding was likewise imposed for public works of construction or
unconstitutional law.46 Significantly, a taxpayer need not be a party repair pursuant to the Revised Administrative Code of 1917.
to the contract to challenge its validity.47
Then President Diosdado Macapagal, in Executive Order No. 40
In the present case, the petitioners are suing as taxpayers. They dated June 1, 1963, reiterated the directive that no government
have sufficiently demonstrated that, notwithstanding the fact that contract for public service or for furnishing supplies, materials and
the CP I project is primarily financed from loans obtained by the equipment to the government or any of its branches, agencies or
government from the JBIC, nonetheless, taxpayers’ money would be instrumentalities, should be entered into without public bidding
or is being spent on the project considering that the Philippine except for very extraordinary reasons to be determined by a
Committee constituted thereunder. Then President Ferdinand decree or issuance, executive order, letter of instruction,
Marcos issued PD 1594 prescribing guidelines for government administrative order, proclamation, charter, rule or regulation
infrastructure projects and Section 454 thereof stated that they and/or parts thereof contrary to or inconsistent with the provisions
should generally be undertaken by contract after competitive public of this Act is hereby repealed, modified or amended accordingly.
bidding.
In addition to these laws, RA 4860, as amended, must be mentioned
Then President Corazon Aquino issued Executive Order No. 301 as Section 4 thereof provides that "[i]n the contracting of any loan,
(1987) prescribing guidelines for government negotiated contracts. credit or indebtedness under this Act, the President of the
Pertinently, Section 62 of the Administrative Code of 1987 reiterated Philippines may, when necessary, agree to waive or modify the
the requirement of competitive public bidding in government application of any law granting preferences or imposing restrictions
projects. In 1990, Congress passed RA 6957,55 which authorized the on international competitive bidding x x x Provided, finally, That the
financing, construction, operation and maintenance of infrastructure method and procedure in the comparison of bids shall be the
by the private sector. RA 7160 was likewise enacted by Congress in subject of agreement between the Philippine Government and the
1991 and it contains provisions governing the procurement of goods lending institution."
and locally-funded civil works by the local government units.
EO 40, not RA 9184, is applicable to the procurement
Then President Fidel Ramos issued Executive Order No. 302 (1996),
providing guidelines for the procurement of goods and supplies by process undertaken for the CP I project. RA 9184
the national government. Then President Joseph Ejercito Estrada
issued Executive Order No. 201 (2000), providing additional
cannot be given retroactive application.
guidelines in the procurement of goods and supplies by the national
government. Thereafter, he issued Executive Order No. 262 (2000)
amending EO 302 (1996) and EO 201 (2000). It is not disputed that with respect to the CP I project, the Invitation
to Prequalify and to Bid for its implementation was published in two
leading national newspapers, namely, the Manila Times and Manila
On October 8, 2001, President Gloria Macapagal-Arroyo issued EO
Standard on November 22, 29 and December 5, 2002. At the time,
40, the law mainly relied upon by the respondents, entitled
the law in effect was EO 40. On the other hand, RA 9184 took effect
Consolidating Procurement Rules and Procedures for All National
two months later or on January 26, 2003. Further, its full
Government Agencies, Government-Owned or Controlled
implementation was even delayed as IRR-A was only approved by
Corporations and Government Financial Institutions, and Requiring
President Arroyo on September 18, 2003 and subsequently
the Use of the Government Procurement System. It accordingly
published on September 23, 2003 in the Manila Times and Malaya
repealed, amended or modified all executive issuances, orders, rules
newspapers.58
and regulations or parts thereof inconsistent therewith.56

The provisions of EO 40 apply to the procurement process pertaining


On January 10, 2003, President Arroyo signed into law RA 9184. It
to the CP I project as it is explicitly provided in Section 1 thereof
took effect on January 26, 2004, or fifteen days after its publication
that:
in two newspapers of general circulation.57 It expressly repealed,
among others, EO 40, EO 262 (2000), EO 302(1996) and PD 1594, as
amended: SEC. 1. Scope and Application. – This Executive Order shall apply to
see procurement of (a) goods, supplies, materials and related
service; (b) civil works; and (c) consulting services, by all National
SEC. 76. Repealing Clause. —This law repeals Executive Order No.
Government agencies, including State Universities and Colleges
40, series of 2001, entitled "Consolidating Procurement Rules and
(SUCs), Government-Owned or –Controlled Corporations (GOCCs)
Procedures for All National Government Agencies, Government
and Government Financial Institutions (GFIs), hereby referred to as
Owned or Controlled Corporations and/or Government Financial
"Agencies." This Executive Order shall cover the procurement
Institutions, and Requiring the Use of the Government Electronic
process from the pre-procurement conference up to the award of
Procurement System"; Executive Order No. 262, series of 1996,
the contract.
entitled "Amending Executive Order No. 302, series of 1996, entitled
Providing Policies, Guidelines, Rules and Regulations for the
Procurement of Goods/Supplies by the National Government" and Nothing in this Order shall negate any existing and future
Section 3 of Executive Order No. 201, series of 2000, entitled government commitments with respect to the bidding and award of
"Providing Additional Policies and Guidelines in the Procurement of contracts financed partly or wholly with funds from international
Goods/Supplies by the National Government"; Executive Order No. financing institutions as well as from bilateral and similar foreign
302, series of 1996, entitled "Providing Policies, Guidelines, Rules sources.
and Regulations for the Procurement of Goods/Supplies by the
National Government" and Presidential Decree No. 1594 dated June The procurement process basically involves the following steps: (1)
11, 1978, entitled "Prescribing Policies, Guidelines, Rules and pre-procurement conference; (2) advertisement of the invitation to
Regulations for Government Infrastructure Contracts." This law bid; (3) pre-bid conference; (4) eligibility check of prospective
amends Title Six, Book Two of Republic Act No. 7160, otherwise bidders; (5) submission and receipt of bids; (6) modification and
known as the "Local Government Code of 1991"; the relevant withdrawal of bids; (7) bid opening and examination; (8) bid
provisions of Executive Order No. 164, series of 1987, entitled evaluation; (9) post qualification; (10) award of contract and notice
"Providing Additional Guidelines in the Processing and Approval of to proceed.59 Clearly then, when the Invitation to Prequalify and to
Contracts of the National Government"; and the relevant provisions Bid for the implementation of the CP I project was published on
of Republic Act No. 7898 dated February 23, 1995, entitled "An Act November 22, 29 and December 5, 2002, the procurement process
Providing for the Modernization of the Armed Forces of the thereof had already commenced and the application of EO 40 to the
Philippines and for Other Purposes." Any other law, presidential procurement process for the CP I project had already attached.
RA 9184 cannot be applied retroactively to govern the procurement Under EO 40, the award of the contract to private
process relative to the CP I project because it is well settled that a
law or regulation has no retroactive application unless it expressly respondent China Road & Bridge Corporation is valid
provides for retroactivity.60Indeed, Article 4 of the Civil Code is clear
on the matter: "[l]aws shall have no retroactive effect, unless the
Section 25 of EO 40 provides that "[t]he approved budget of the
contrary is provided." In the absence of such categorical provision,
contract shall be the upper limit or ceiling of the bid price. Bid prices
RA 9184 will not be applied retroactively to the CP I project whose
which exceed this ceiling shall be disqualified outright from further
procurement process commenced even before the said law took
participating in the bidding. There shall be no lower limit to the
effect.
amount of the award. x x x" It should be observed that this text is
almost similar to the wording of Section 31 of RA 9184, relied upon
That the legislators did not intend RA 9184 to have retroactive effect by the petitioners in contending that since the bid price of private
could be gleaned from the IRR-A formulated by the Joint respondent China Road & Bridge Corporation exceeded the ABC,
Congressional Oversight Committee (composed of the Chairman of then it should not have been awarded the contract for the CP I
the Senate Committee on Constitutional Amendments and Revision project.
of Laws, and two members thereof appointed by the Senate
President and the Chairman of the House Committee on
Nonetheless, EO 40 expressly recognizes as an exception to its scope
Appropriations, and two members thereof appointed by the Speaker
and application those government commitments with respect to
of the House of Representatives) and the Government Procurement
bidding and award of contracts financed partly or wholly with funds
Policy Board (GPPB). Section 77 of the IRR-A states, thus:
from international financing institutions as well as from bilateral and
other similar foreign sources. The pertinent portion of Section 1 of
SEC. 77. Transitory Clause EO 40 is quoted anew:

In all procurement activities, if the advertisement or invitation for SEC. 1. Scope and Application. – x x x
bids was issued prior to the effectivity of the Act, the provisions of
E.O. 40 and its IRR, P.D. 1594 and its IRR, R.A. 7160 and its IRR, or
Nothing in this Order shall negate any existing and future
other applicable laws, as the case may be, shall govern.
government commitments with respect to the bidding and award of
contracts financed partly or wholly with funds from international
In cases where the advertisements or invitations for bids were financing institutions as well as from bilateral and similar foreign
issued after the effectivity of the Act but before the effectivity of sources.
this IRR-A, procuring entities may continue adopting the
procurement procedures, rules and regulations provided in E.O. 40
In relation thereto, Section 4 of RA 4860, as amended, was correctly
and its IRR, P.D. 1594 and its IRR, R.A. 7160 and its IRR, or other
cited by the respondents as likewise authorizing the President, in the
applicable laws, as the case may be.
contracting of any loan, credit or indebtedness thereunder, "when
necessary, agree to waive or modify the application of any law
In other words, under IRR-A, if the advertisement of the invitation granting preferences or imposing restrictions on international
for bids was issued prior to the effectivity of RA 9184, such as in the competitive bidding x x x." The said provision of law further provides
case of the CP I project, the provisions of EO 40 and its IRR, and PD that "the method and procedure in the comparison of bids shall be
1594 and its IRR in the case of national government agencies, and the subject of agreement between the Philippine Government and
RA 7160 and its IRR in the case of local government units, shall the lending institution."
govern.
Consequently, in accordance with these applicable laws, the
Admittedly, IRR-A covers only fully domestically-funded procurement of goods and services for the CP I project is governed
procurement activities from procurement planning up to contract by the corresponding loan agreement entered into by the
implementation and that it is expressly stated that IRR-B for foreign- government and the JBIC, i.e., Loan Agreement No. PH-P204. The
funded procurement activities shall be subject of a subsequent said loan agreement stipulated that the procurement of goods and
issuance.61 Nonetheless, there is no reason why the policy behind services for the Arterial Road Links Development Project (Phase IV),
Section 77 of IRR-A cannot be applied to foreign-funded of which CP I is a component, is to be governed by the JBIC
procurement projects like the CP I project. Stated differently, the Procurement Guidelines. Section 5.06, Part II (International
policy on the prospective or non-retroactive application of RA 9184 Competitive Bidding) thereof quoted earlier reads:
with respect to domestically-funded procurement projects cannot
be any different with respect to foreign-funded procurement
Section 5.06. Evaluation and Comparison of Bids
projects like the CP I project. It would be incongruous, even absurd,
to provide for the prospective application of RA 9184 with respect to
domestically-funded procurement projects and, on the other hand, xxx
as urged by the petitioners, apply RA 9184 retroactively with respect
to foreign- funded procurement projects. To be sure, the lawmakers (e) Any procedure under which bids above or below a
could not have intended such an absurdity. predetermined bid value assessment are automatically disqualified
is not permitted.62
Thus, in the light of Section 1 of EO 40, Section 77 of IRR-A, as well
as the fundamental rule embodied in Article 4 of the Civil Code on It is clear that the JBIC Procurement Guidelines proscribe the
prospectivity of laws, the Court holds that the procurement process imposition of ceilings on bid prices. On the other hand, it enjoins the
for the implementation of the CP I project is governed by EO 40 and award of the contract to the bidder whose bid has been determined
its IRR, not RA 9184.
to be the lowest evaluated bid. The pertinent provision, quoted Philippines as a State and another State. The JBIC, the petitioners
earlier, is reiterated, thus: maintain, is a Japanese banking agency, which presumably has a
separate juridical personality from the Japanese Government.
Section 5.09. Award of Contract
The petitioners’ arguments fail to persuade. The Court holds that
The contract is to be awarded to the bidder whose bid has been Loan Agreement No. PH-P204 taken in conjunction with the
determined to be the lowest evaluated bid and who meets the Exchange of Notes dated December 27, 1999 between the Japanese
appropriate standards of capability and financial resources. A bidder Government and the Philippine Government is an executive
shall not be required as a condition of award to undertake agreement.
responsibilities or work not stipulated in the specifications or to
modify the bid.63 To recall, Loan Agreement No. PH-P204 was executed by and
between the JBIC and the Philippine Government pursuant to the
Since these terms and conditions are made part of Loan Agreement Exchange of Notes executed by and between Mr. Yoshihisa Ara,
No. PH-P204, the government is obliged to observe and enforce the Ambassador Extraordinary and Plenipotentiary of Japan to the
same in the procurement of goods and services for the CP I project. Philippines, and then Foreign Affairs Secretary Siazon, in behalf of
As shown earlier, private respondent China Road & Bridge their respective governments. The Exchange of Notes expressed that
Corporation’s bid was the lowest evaluated bid, albeit 28.95% higher the two governments have reached an understanding concerning
than the ABC. In accordance with the JBIC Procurement Guidelines, Japanese loans to be extended to the Philippines and that these
therefore, it was correctly awarded the contract for the CP I project. loans were aimed at promoting our country’s economic stabilization
and development efforts.
Even if RA 9184 were to be applied retroactively, the terms of the
Exchange of Notes dated December 27, 1999 and Loan Agreement Loan Agreement No. PH-P204 was subsequently executed and it
No. PH-P204 would still govern the procurement for the CP I project declared that it was so entered by the parties "[i]n the light of the
contents of the Exchange of Notes between the Government of
Japan and the Government of the Republic of the Philippines dated
For clarity, Section 4 of RA 9184 is quoted anew, thus:
December 27, 1999, concerning Japanese loans to be extended with
a view to promoting the economic stabilization and development
SEC. 4. Scope and Applications. – This Act shall apply to the efforts of the Republic of the Philippines."65 Under the
Procurement of Infrastructure Projects, Goods and Consulting circumstances, the JBIC may well be considered an adjunct of the
Services, regardless of source of funds, whether local or foreign, by Japanese Government. Further, Loan Agreement No. PH-P204 is
all branches and instrumentalities of government, its departments, indubitably an integral part of the Exchange of Notes. It forms part
offices and agencies, including government-owned and/or – of the Exchange of Notes such that it cannot be properly taken
controlled corporations and local government units, subject to the independent thereof.
provisions of Commonwealth Act No. 138. Any treaty or
international or executive agreement affecting the subject matter of
In this connection, it is well to understand the definition of an
this Act to which the Philippine government is a signatory shall be
"exchange of notes" under international law. The term is defined in
observed.
the United Nations Treaty Collection in this wise:

The petitioners, in order to place the procurement process


An "exchange of notes" is a record of a routine agreement that has
undertaken for the CP I project within the ambit of RA 9184,
many similarities with the private law contract. The agreement
vigorously assert that Loan Agreement No. PH-P204 is neither a
consists of the exchange of two documents, each of the parties
treaty, an international agreement nor an executive agreement.
being in the possession of the one signed by the representative of
They cite Executive Order No. 459 dated November 25, 1997 where
the other. Under the usual procedure, the accepting State repeats
the three agreements are defined in this wise:
the text of the offering State to record its assent. The signatories of
the letters may be government Ministers, diplomats or
a) International agreement – shall refer to a contract or departmental heads. The technique of exchange of notes is
understanding, regardless of nomenclature, entered into frequently resorted to, either because of its speedy procedure, or,
between the Philippines and another government in sometimes, to avoid the process of legislative approval.66
written form and governed by international law, whether
embodied in a single instrument or in two or more related
It is stated that "treaties, agreements, conventions, charters,
instruments.
protocols, declarations, memoranda of understanding, modus
vivendi and exchange of notes" all refer to "international
b) Treaties – international agreements entered into by the instruments binding at international law."67 It is further explained
Philippines which require legislative concurrence after that-
executive ratification. This term may include compacts like
conventions, declarations, covenants and acts.
Although these instruments differ from each other by title, they all
have common features and international law has applied basically
c) Executive agreements – similar to treaties except that the same rules to all these instruments. These rules are the result of
they do not require legislative concurrence.64 long practice among the States, which have accepted them as
binding norms in their mutual relations. Therefore, they are
The petitioners mainly argue that Loan Agreement No. PH-P204 regarded as international customary law. Since there was a general
does not fall under any of the three categories because to be any of desire to codify these customary rules, two international
the three, an agreement had to be one where the parties are the conventions were negotiated. The 1969 Vienna Convention on the
Law of Treaties ("1969 Vienna Convention"), which entered into Under the fundamental principle of international law of pacta sunt
force on 27 January 1980, contains rules for treaties concluded servanda,73 which is, in fact, embodied in Section 4 of RA 9184 as it
between States. The 1986 Vienna Convention on the Law of Treaties provides that "[a]ny treaty or international or executive agreement
between States and International Organizations ("1986 Vienna affecting the subject matter of this Act to which the Philippine
Convention"), which has still not entered into force, added rules for government is a signatory shall be observed," the DPWH, as the
treaties with international organizations as parties. Both the 1969 executing agency of the projects financed by Loan Agreement No.
Vienna Convention and the 1986 Vienna Convention do not PH-P204, rightfully awarded the contract for the implementation of
distinguish between the different designations of these instruments. civil works for the CP I project to private respondent China Road &
Instead, their rules apply to all of those instruments as long as they Bridge Corporation.
meet the common requirements.68
WHEREFORE, premises considered, the petition is DISMISSED.
Significantly, an exchange of notes is considered a form of an
executive agreement, which becomes binding through executive SO ORDERED.
action without the need of a vote by the Senate or Congress. The
following disquisition by Francis B. Sayre, former United States High
Commissioner to the Philippines, entitled "The Constitutionality of
Trade Agreement Acts," quoted in Commissioner of Customs v.
Eastern Sea Trading,69 is apropos:

Agreements concluded by the President which fall short of treaties


are commonly referred to as executive agreements and are no less
common in our scheme of government than are the more formal
instruments – treaties and conventions. They sometimes take the
form of exchange of notes and at other times that of more formal
documents denominated "agreements" or "protocols". The point
where ordinary correspondence between this and other
governments ends and agreements – whether denominated
executive agreements or exchange of notes or otherwise – begin,
may sometimes be difficult of ready ascertainment. It would be
useless to undertake to discuss here the large variety of executive
agreements as such, concluded from time to time. Hundreds of
executive agreements, other than those entered into under the
trade-agreements act, have been negotiated with foreign
governments. x x x70

The Exchange of Notes dated December 27, 1999, stated, inter alia,
that the Government of Japan would extend loans to the Philippines
with a view to promoting its economic stabilization and
development efforts; Loan I in the amount of Y79,8651,000,000
would be extended by the JBIC to the Philippine Government to
implement the projects in the List A (including the Arterial Road
Links Development Project - Phase IV); and that such loan (Loan I)
would be used to cover payments to be made by the Philippine
executing agencies to suppliers, contractors and/or consultants of
eligible source countries under such contracts as may be entered
into between them for purchases of products and/or services
required for the implementation of the projects enumerated in the
List A.71 With respect to the procurement of the goods and services
for the projects, it bears reiterating that as stipulated:

3. The Government of the Republic of the Philippines will ensure


that the products and/or services mentioned in sub-paragraph (1) of
paragraph 3 of Part I and sub-paragraph (1) of paragraph 4 of Part II
are procured in accordance with the guidelines for procurement of
the Bank, which set forth, inter alia, the procedures of international
tendering to be followed except where such procedures are
inapplicable or inappropriate.72

The JBIC Procurements Guidelines, as quoted earlier, forbids any


procedure under which bids above or below a predetermined bid
value assessment are automatically disqualified. Succinctly put, it
absolutely prohibits the imposition of ceilings on bids.
DEPARTMENT of BUDGET andMANAGEMENT PROCUREMENT On October 27, 2005, the DBM-PS Inter-Agency Bids and Awards
SERVICE (DBM-PS) and the Inter-Agency Bids and Awards Committee (IABAC) called for a bidding for the supply of
Committee (IABAC), the Makabayan textbooks and manuals, divided into three (3) lots, to
Petitioners, wit: Lot 1 for Sibika Grades 1-3; Lot 2 for HeKaSi Grades 4-6 and Lot 3
- versus - for Araling Panlipunan Years I-IV. Of the entities, foreign and
local, which responded and procured the Bidding Documents,[4]only
KOLONWEL TRADING, eleven (11) bidders submitted, either as principal or in joint venture
Respondent. arrangement, proposals for the different lots. Among them
x --------------------------------------------------x were Watana Phanit Printing & Publishing Co., Ltd.,
VIBAL PUBLISHING HOUSE, INC., LG & M CORPORATION and SD of Thailand (Watana, for short), petitioner Vibal Publishing House,
PUBLICATIONS, INC., Inc., (Vibal, hereinafter), Daewoo International Corporation of South
Petitioners, Korea (Daewoo, for brevity) and respondent Kolonwel.Kolonwels
- versus - tender appeared to cover all three (3) lots.[5]

KOLONWEL TRADING,Respondent. Following the bid and the book content/body evaluation process, the
x------------------------------------------------x IABAC, via Resolution (Res.) No. 001-2006[6] dated March 9, 2006,
DEPARTMENT OF EDUCATION, resolved to recommend to the [WB] and the [ADB] failure of bids for
Petitioner, all lots in view of the abovementioned disqualifications, non-
- versus - compliance and reservations of [DepEd]. Issues of Conflict of
KOLONWEL TRADING, interest with respect to Watana and Vibal, failure in cover
Respondent. G.R. No. 175608 stock testing for Kolonwel and DepEds reservation were among the
Present: disqualifying reasons stated in the resolution.

On March 15, 2006, the IABAC submitted to WB for its review and
information Res. No. 001-2006. Appended to the covering letter was
x----------------------------------------------------------------------------------------- a document entitled Bid Evaluation Report and Recommendation for
x Award of Contract.[7]
DECISION
The following events, as recited in the assailed Manila RTC order and
GARCIA, J.: as borne out by the records, then transpired:

1. In a letter[8] dated April 24, 2006 to the DepEd and the DBM-
Before the Court are these consolidated three (3) petitions for PS IABAC Chairman, the WB, through its Regional Senior Economist,
review under Rule 45 of the Rules of Court, with a prayer for a Ms. Rekha Menon, disagreed, for stated reasons,
temporary restraining order, to nullify and set with the IABACs finding of conflict of interest on the part of Vibal and
aside the Order[1] dated December 4, 2006 of the Manila Regional Watana and the rejection of their bids. Ms. Menon, however, upheld
Trial Court (RTC), Branch 18, in SP Civil Case No. 06-116010, a special the disqualification of all the other bidders. She thus asked the IABAC
civil action for certiorari and prohibition thereat commenced by to review its evaluation and to provide the WB with the revised Bid
herein respondent Kolonwel Trading (Kolonwel for short) against the Evaluation Report (BER), taking into account the December 31,
Department of Budget and Management Procurement Service (DBM- 2006 RP-IBRD Loan closing date.
PS), et al.
At the core of the controversy are the bidding and the eventual 2. On May 11, 2006, the IABAC informed Kolonwel of its or its bids
contract awards for the supply and delivery of some 17.5 million failure to post qualify and of the grounds for the failure.[9]
copies of Makabayan (social studies) textbooks
and teachers manuals, a project of the Department of Education In its reply-letter of May 18, 2006,[10] Kolonwel raised several issues
(DepEd). and requested that its disqualification be reconsidered and set aside.
In reaction, IABAC apprised WB of Kolonwels concerns stated in its
The factual antecedents: letter-reply.

In the middle of 2005, the DepEd requested the services of the DBM- 3) Subsequently, the IABAC, agreeing with WBs position articulated in
PS to undertake the aforementioned procurement project which is to Ms. Menon, issued Res. No. 001-2006-
be jointly funded by the World Bank (WB), through the Second Social A effectively recommending to WB the contract
Expenditure Management Program (SEMP2) of the Philippines (RP) award to Vibal of Sibika 1 & 3 and HekaSi 5; to Watana of Sibika 2
International Bank for Reconstruction and Development (IBRD) Loan and HeKaSi 4 & 5 and to Daewoo of Sibika 3. Upon review, WB
Agreement No. 7118-PH[2] (Loan No. 7118-PH, hereinafter) dated offered no objection to the recommended award.[11]
September 12, 2002; and the Asian Development Bank (ADB),
through SEDIP Loan No. 1654-PHI. Earlier, the Executive Director of 4) The issuance of notices of award and the execution on September
the Government Procurement Policy Board (GPPB), in reply to a 12, 2006 of the corresponding Purchaser-Supplier contracts
DepEd query, stated that procurement[s] for MAKABAYAN textbooks followed.[12]
where funds therefore (sic) are sourced from World Bank Loan shall
be governed by the applicable procurement guidelines of the foreign 5. On June 23, 2006, the DBM-PS IABAC chairman informed Kolonwel
lending institution. The 2005 Call for Submission of Textbooks and of the denial of its request for reconsideration and of the
Teachers Manuals shall be viewed vis--vis relevant World Bank WBs concurrence with the denial.[13] The IABAC denied,
guidelines.[3] on September 8, 2006, a second request for reconsideration of
Kolonwel[14] after WB found the reasons therefor, as detailed in PS
IABAC Res. No. 001-2006-B[15] dated July 18, 2006, unmeritorious, Hence, these three (3) petitions which the Court, per its
particularly on the aspect of cover stock testing. Resolution[21] of January 16, 2007, ordered consolidated. Earlier, the
Court issued, in G. R. No. 175616, a TRO[22] enjoining the presiding
Such was the state of things when on, October 12, 2006, Kolonwel judge[23] of the RTC of Manila, Branch 18, from proceeding with SP
filed with the RTC of Manila a special civil action for certiorari and Civil Case No. 06-116010 or implementingits assailed order.
prohibition with a prayer for a temporary restraining order (TRO)
and/or writ of preliminary injunction. Docketed as SP Civil Case No. Petitioners urge the annulment of the assailed RTC Order
06-116010, and raffled to Branch 18 of the court,[16] the petition dated December 4, 2006, on jurisdictional ground, among others. It
sought to nullify IABAC Res. Nos. 001-2006 and 001-2006-A and to set is their parallel posture that the Manila RTC erred in assuming
aside the contract awards in favor of Vibal and Watana. In support of jurisdiction over the case despite respondent Kolonwels failure to
its TRO application, Kolonwel alleged, among other things, that the observe the protest mechanism provided under Sec. 55 in relation to
supply-awardees were rushing with the implementation of the void Secs. 57 and 58 of R.A. No. 9184, respectively reading as follows:
supply contracts to beat the loan closing-date deadline.
Sec. 55. Protest on Decision of the
A week after, the Manila RTC scheduled - and eventually conducted - BAC.- Decisions of the BAC [Bids and Awards
a summary hearing on the TRO application. In an order[17] of October Committee] in all stages of procurement may
31, 2006, as amended in another order[18] dated November 20, 2006, be protested to the head of the procuring
the court granted a 20-day TRO enjoining the IABAC, et al, starting entity. Decisions of the BAC may be protested by
November 6, 2006, from proceeding with the subject September 12, filing a verified position paper and paying a non-
2006 purchase- supply contracts. In the original order, the court set refundable protest fee. The amount of the
the preliminary conference and hearing for the applied preliminary protest fee and the periods during which the
injunction on November 7, and 8, 2006, respectively. protest may be filed and resolved shall be
specific in the IRR.
In the meantime, Vibal filed an urgent motion to dismiss[19] Kolonwels
petition on several grounds, among them want of jurisdiction and lack Sec. 57. Non-interruption of the Bidding
of cause of action, inter alia alleging that the latter had pursued Process. In no case shall any process taken from
judicial relief without first complying with the protest procedure any decision treated in this Article stay or delay
prescribed by Republic Act (R.A.) No. 9184, otherwise known as the bidding process. Protests must first be
the Government Procurement Reform Act. The DepEd later followed resolved before any award is made.
with its own motion to dismiss, partly based on the same protest
provision. As records show, the trial court did not conduct a hearing Sec. 58. Report to Regular
on either dismissal motions, albeit it heard the parties on their Courts; Certiorari.- Court action may be resorted
opposing claims respecting the propriety of issuing a writ of to only after the protests contemplated in this
preliminary injunction. Article shall have been completed. Cases that
are filed in violation of the process specified in
On December 4, 2006, the Manila RTC issued its assailed this article shall be dismissed for lack of
Order [20] finding for Kolonwel, as petitioner a quo, disposing as jurisdiction. The [RTC] shall have jurisdiction
follows: over final decisions of the head of the procuring
entity. (Emphasis and words in bracket added.)
WHEREFORE, the court grants the petition for
certiorari and prohibition. The IABAC Resolution As a counterpoint, the respondent draws attention to its having twice
No. 001-2006-A dated May 30, 2006 is asked, and having been twice spurned by, the IABAC to reconsider its
annulled and set aside. IABAC Resolution No. disqualification, obviously agreeing with the Manila RTC that the
001-2006 is declared validly and regularly issued judicial window was already opened under the exhaustion of
in the absence of a showing of grave abuse of available administrative remedies principle. In the same breath,
discretion or excess of jurisdiction. All however, the respondent would argue, again following the RTCs line,
subsequent actions of the respondents that it was prevented from filing a protest inasmuch as the
resulting from the issuance of IABAC Resolution government had not issued the Implementing Rules and Regulations
No. 001-2006-A are consequently nullified and (IRR) of R.A. No. 9184 to render the protest mechanism of the law
set aside. This court grants a final operative for foreign-funded projects.
injunction pursuant to Sec. 9 of Rule 58 of the
Rules of Court as amended, restraining The Court is unable to lend concurrence to the trial courts and
respondents Department of Education and respondents positions on the interplay of the protest and
Culture (sic), [DBM-PS], [IABAC], Vibal Publishing jurisdictional issues. As may be noted, the aforequoted Section 55 of
House, Inc., LG & M Corporation and SD R.A. No. 9184 sets three (3) requirements that must be met by the
Publications from the commission or party desiring to protest the decision of the Bids and Awards
continuance of acts, contracts or transactions Committee (BAC). These are: 1) the protest must be in writing, in the
proceeding from the issuance of IABAC form of a verified position paper; 2) the protest must be submitted to
Resolution No. 001-2006-A. the head of the procuring entity; and 3) the payment of a non-
refundable protest fee. The jurisdictional caveat that authorizes
SO ORDERED. (Emphasis and words in brackets courts to assume or, inversely, precludes courts from assuming,
supplied) jurisdiction over suits assailing the BACs decisions is in turn found in
the succeeding Section 58 which provides that the courts would have
jurisdiction over such suits only if the protest procedure has already
been completed.
of R.A. No. 9184, even by way of noting that it was at a loss as to the
Respondents letters of May 18, 2006[24] and June 28, 2006[25] in which inoperativeness of such provision in the light of the absence of an IRR.
it requested reconsideration of its disqualification cannot plausibly be
given the status of a protest in the context of the aforequoted In its petition before the Manila RTC, the respondent veritably
provisions of R.A. No. 9184. For one, neither of the letter- admitted to not complying with the protest requirement, albeit with
request was addressed to the head of the procuring entity, in this the lame excuse that it was effectively barred from complying with
case the DepEd Secretary or the head of the DBM Procurement the required administrative remedies of protest. Neither did the
Service, as required by law. For another, the same letters were respondent then argue that it was not able to comply due to the
unverified. And not to be overlooked of course is the fact that the absence of an IRR for foreign- funded projects.
third protest-completing requirement, i.e., payment of protest fee,
was not complied with. At any rate, there is, in fact a set of implementing rules and
regulations, denominated as IRR-A, issued on July 11, 2003 by the
Given the above perspective, it cannot really be said that the GPPB and the Joint Congressional Oversight Committee, Section
respondent availed itself of the protest procedure prescribed under 55.1[26] of which provides that prior to a resort to protest, the
Section 55 of R.A. No. 9184 before going to the RTC of Manila via a aggrieved party must first file a motion for reconsideration of the
petition for certiorari. Stated a bit differently, respondent sought decision of the BAC. It is only after the BAC itself denies
judicial intervention even before duly completing the protest reconsideration that the protest, accompanied by a fixed protest fee,
process. Hence, its filing of SP Civil Case No. 06-116010 was shall be filed within the period defined in the IRR.
precipitate. Or, as the law itself would put it, cases that are filed in
violation of the protest process shall be dismissed for lack of It may be that IRR-A specifically defines its coverage to all fully
jurisdiction. domestically-funded procurement activities, it being also
provided that foreign-funded procurement activities shall be the
Considering that the respondents petition in RTC Manila was actually subject of a subsequent issuance. [27]However, a similarly drawn
filed in violation of the protest process set forth in Section 55 of R.A. argument involving IRR-A was set aside in Abaya v. Ebdane,[28] a case
No. 9184, that court could not have lawfully acquired jurisdiction over involving Loan Agreement No. PH-P204 entered into by and between
the subject matter of this case. In fact, Section 58, supra, of R.A. the RP and the Japan Bank for International Cooperation (JBIC) for the
No. 9184 emphatically states that cases filed in violation of the implementation DPWH Contract Package No. I (CP I). Wrote the Court
protest process therein provided shall be dismissed for lack of in Abaya:
jurisdiction.
Admittedly, IRR-A covers only fully domestically-funded
It is to be stressed that the protest mechanism adverted to is a built- procurement activities from procurement
in administrative remedy embodied in the law itself. It was not planning up to contract implementation and that
prescribed by an administrative agency tasked with implementing a it is expressly stated that IRR-B for foreign-funded
statute through the medium of interpretative circulars or bulletins. procurement activities shall be subject of a
Ignoring thus this administrative remedy would be to defy the law subsequent issuance. Nonetheless, there is no
itself. reason why the policy behind Section 77 of IRR-A
cannot be applied to foreign-funded
It will not avail the respondent any to argue that the absence of an procurement projects like the CP I project. Stated
IRR to make the protest mechanism under R.A. No. 9184 become differently, the policy on the prospective or non-
operative for foreign-funded projects was what prevented it from retroactive application of RA 9184 with respect to
complying with the protest procedure. As the last sentence of the domestically-funded procurement projects
afore-quoted Section 55 of R.A. No. 9184 is couched, the specific cannot be any different with respect to foreign-
office of an IRR for foreign-funded project, vis--vis the matter of funded procurement projects . It would be
protest, is limited to fixing the amount of the protest fee and the incongruous, even absurd, to provide for the
periods during which the protest may be filed and resolved. Surely, the prospective application of RA 9184 with respect
absence of provisions on protest fee and reglementary period does to domestically-funded procurement projects
not signify the deferment of the implementation of the protest and, on the other hand, as urged by the
mechanism as a condition sine qua non to resort to judicial relief. As petitioners, apply RA 9184 retroactively with
applied to the present case, the respondent had to file a protest and respect to foreign-funded procurement projects.
pursue it until its completion before going to court. There was hardly To be sure, the lawmakers could not have
any need to wait for the specific filing period to be prescribed by the intended such an absurdity.
IRR because the protest, as a matter of necessity, has to be lodged
before court action. As in Abaya, there really should be no reason why the policy behind
Section 55.l of IRR-A on the procedure for protest cannot be applied,
Neither is it necessary that the amount of protest fee be prescribed even analogously, to foreign-funded procurement projects, such as
first. Respondent could very well have proceeded with its protest those in this case. Indeed, there is no discernable justification why a
without paying the required protest fee, remitting the proper amount different procedure should obtain with respect to foreign-funded
once the appropriate IRR fixed the protest fee. procurement undertakings as opposed to a locally funded project,
and certainly there is no concrete foundation in R.A. 9184 to indicate
There may perhaps be room for relaxing the prescription on protest that Congress intended such a variance in the protest procedure.
if a bona fide attempt to comply with legal requirements had been
made. But the fact alone that the respondent did not even submit a The Manila RTC, in granting the petition for certiorari and prohibition,
verified position paper by way of protest argues against such stated the observation that there was substantial compliance of the
plausibility. Significantly, none of the reconsideration-seeking letters requirement of protest.[29] Yet, it is not even clear that respondent
of the respondent advert to the protest procedure under Section 55 Kolonwel, in its dealings with the IABAC, particularly in seeking
reconsideration of its decision, was even aware of the protest IBRD Loans. Accordingly, the IABAC conducted the bidding for the
requirements. What is beyond dispute, however, is that courts are supply of textbooks and manuals based on the WB Guidelines,
precluded by express legislative command from entertaining protests particularly the provisions on International Competitive Bidding (ICB).
from decisions of the BAC. What Congress contextually intended Section 4 of R.A. No. 9184 expressly recognized this particular
under the premises was that not only would there be a distinct process, thus:
administrative grievance mechanism to be observed in assailing
decisions of the BAC, but that courts would be without jurisdiction Sec. 4. Scope and application. - This Act shall
over actions impugning decisions of the BACs, unless, in the apply to the Procurement ofGoods and
meantime, the protest procedure mandated under Section 55 of R.A. Consulting Services, regardless of source of
No. 9184 is brought to its logical completion. funds, whether local or foreign by all branches
and instrumentalities of government . Any treaty
It is Congress by law, not the courts by discretion, which defines the or international or executive agreement
courts jurisdiction not otherwise conferred by the Constitution. affecting the subject matter of this Act to which
Through the same medium, Congress also draws the parameters in the Philippine government is a signatory shall
the exercise of the functions of administrative agencies. Section be observed. (Emphasis added.)
55 of R.A. No. 9184 could not be any clearer when it mandates the
manner of protesting the decision of bids and awards committees.
Similarly, there can be no quibbling that, under Section 58 of the same The question as to whether or not foreign loan agreements with
law, courts do not have jurisdiction over decisions of the BACs unless international financial institutions, such as Loan No. 7118-PH, partake
the appropriate protest has been made and completed. The absence of an executive or international agreement within the purview of the
of the IRR does not detract from the reality that R.A. No. 9184 Section 4 of R.A. No. 9184, has been answered by the Court in the
requires a protest to be filed under the form therein prescribed. affirmative in Abaya, supra. Significantly, Abaya declared that the
Given the above perspective, the Manila RTC had no jurisdiction over RP-JBIC loan agreement was to be of governing application over the
respondent Kolonwels petition for certiorari and prohibition. CP I project and that the JBIC Procurement Guidelines, as stipulated
Accordingly, it ought to have granted herein petitioners motion to in the loan agreement, shall primarily govern the procurement of
dismiss, but it did not. Worse, the court even added another layer to goods necessary to implement the main project.
its grievous error when it granted the respondents basic petition Under the fundamental international law principle of pacta sunt
for certiorari and prohibition itself. servanda,[36]which is in fact embodied in the afore-quoted Section 4
of R.A. No. 9184, the RP, as borrower, bound itself to perform in good
Compounding the Manila RTCs error is its having proceeded with SP faith its duties and obligation under Loan No. 7118- PH. Applying this
Civil Case No. 06-116010 even without acquiring jurisdiction over postulate in the concrete to this case, the IABAC was legally obliged
Watana. As may be recalled, the respondent, in its petition before the to comply with, or accord primacy to, the WB Guidelines on the
RTC, impleaded Watana as one of the defendants, the latter having conduct and implementation of the bidding/procurement process in
been awarded by the IABAC Sibika 2 and HeKaSi 4 &5. The records, question.
however, show that Watana was not served with summons. The
Sheriffs Return dated October 18, 2006, noted that summons was not WHEREFORE, the instant consolidated petitions
served on Watana and another defendant at No. 1281 G. Araneta are GRANTED and the assailed Order dated December 4, 2006 of the
Avenue cor. Ma. Clara Street, Quezon City, on the ground that said Regional Trial Court of Manila in its SP Case No. 06-
companies were not holding office thereat according to Mr. Marvin 116010 is NULLIFIED and SET ASIDE.
V. Catacutan.
No cost.
There can be no dispute that Watana is an indispensable party to the SO ORDERED.
respondents petition in SP Civil Case No. 06-116010, Kolonwel having
therein assailed and sought to nullify the contract-award made in its
and Vibals favor. Indispensable parties are those with such interest in
the controversy that a final decree would necessarily affect their
rights so that courts cannot proceed without their presence.[30] All of
them must be included in a suit for an action to prosper or for a final
determination to be had.[31] Watana, to repeat, was never served
with summons; neither did it participate in the proceedings below.
Plainly, then, the Manila RTC did not acquire jurisdiction over one of
the indispensable parties, the joinder of whom is compulsory.[32]

With the foregoing disquisitions, the Court finds it unnecessary to


even dwell on the other points raised in this consolidated cases. In the
light, however, of the Manila RTCs holding that the WB Guidelines on
Procurement under IBRD Loans do not in any way provided
superiority over local laws on the matter,[33]the Court wishes to state
the following observation:

As may be recalled, all interested bidders were put on notice that the
DepEds procurement project was to be funded from the proceeds of
the RP-IBRD Loan No. 7118-PH,[34] Section 1, Schedule 4 of which
stipulates that Goods shall be procured in accordance with the
provisions of Section 1[35] of the Guidelines for Procurement under
ROLEX SUPLICO, G.R. No. 178830 CARLO MAGNO M. REONAL, ETHEL B.
Petitioner, REGADIO, RAENAN B. MALIG, ANDVINALYN M.
POTOT, TOGETHER WITH
Present: LAWYERS AND ADVOCATES FOR
versus PUNO, C.J., ACCOUNTABILITY, TRANSPARENCY,
QUISUMBING, INTEGRITY ANDGOOD GOVERNANCE (LATIGO),
YNARES-SANTIAGO, Petitioners,
NATIONAL CARPIO,
ECONOMIC ANDDEVELOPMENT AUSTRIA-MARTINEZ,
AUTHORITY, represented by NEDA CORONA,
SECRETARY ROMULO L. NERI, and the CARPIO MORALES, versus
NEDA-INVESTMENT COORDINATION AZCUNA,
COMMITTEE, DEPARTMENT OF TINGA,
TRANSPORTATION ANDCOMMUNICATIO CHICO-NAZARIO,*
NS (DOTC), represented by DOTC VELASCO, JR., DEPARTMENT OF
SECRETARY LEANDRO MENDOZA, NACHURA, TRANSPORTATION AND COMMUNICATIONS
including the COMMISSION ON REYES, (DOTC), represented by DOTC SECRETARY
INFORMATION AND COMMUNICATIONS LEONARDO-DE LEANDRO MENDOZA, and
TECHNOLOGY, headed by its Chairman, CASTRO, and ZHONG XING EQUIPMENT
RAMON P. SALES, THE BRION, JJ. (ZTE) COMPANY, LTD., AND ANY AND ALL PERSON
TELECOMMUNICATIONS S ACTING ON THEIR BEHALF,
OFFICE, BIDS AND AWARDS FOR Respondents.
INFORMATION ANDCOMMUNICATIONS Promulgated: x--------------------------------------------------------------------------------------
TECHNOLOGY (ICT), headed by DOTC ----- x
ASSISTANT SECRETARY ELMER A. SONEJA
as Chairman, and the TECHNICAL July 14, 2008
WORKING GROUP FOR ICT, AND DOTC RESOLUTION
ASSISTANT SECRETARY LORENZO
FORMOSO, AND ALL OTHER OPERATING
UNITS OF THE DOTC FOR REYES, R.T., J.:
INFORMATION ANDCOMMUNICATIONS
TECHNOLOGY, and ZTE CORPORATION,
AMSTERDAM HOLDINGS, Under consideration is the Manifestation and
INC., AND ALLPERSONS ACTING IN THEIR Motion[1] dated October 26, 2007of the Office of the Solicitor General
BEHALF, (OSG) which states:
Respondents.
x-------------------------------------------------------------------------------------- The Office of the Solicitor General
----- x (OSG) respectfully avers that in an Indorsement
dated October 24, 2007, the Legal Service of the
Department of Transportation and
AMSTERDAM HOLDINGS, INC., and NATHANIEL G.R. No. 179317 Communications (DOTC) has informed it of the
SAUZ, Philippine Governments decision not to continue
Petitioners, with the ZTE National Broadband Network Project
(see attachment[2]). That said, there is no more
justiciable controversy for this Honorable Court
versus to resolve. WHEREFORE, public respondents
respectfully pray that the present petitions be
DISMISSED.

DEPARTMENT OF On November 13, 2007, the Court noted the OSGs manifestation and
TRANSPORTATION AND COMMUNICATIONS, motion and required petitioners in G.R. Nos. 178830, 179317, and
SECRETARY LEANDRO MENDOZA, COMMISSION 179613 to comment.
ON INFORMATION ANDCOMMUNICATIONS
TECHNOLOGY, and ASSISTANT SECRETARY On December 6, 2007, Rolex Suplico, petitioner in G.R. No.
LORENZO FORMOSO III, 178830, filed his Consolidated Reply and Opposition,[3] opposing the
Respondents. aforequoted OSGManifestation and Motion, arguing that:

x--------------------------------------------------------------------------------------
----- x 66. Aside from the fact that
the Notes of the Meeting Between President
Gloria Macapagal-Arroyo and Chinese President
Hu Jintao held 2 October 2007 were not attached
GALELEO P. ANGELES, VICENTE C. G.R. No. 179613 to the 26 October 2007 Manifestation and
ANGELES, JOB FLORANTE L. CASTILLO, TRINI Motion thus depriving petitioners of the
ANNE G. NIEVA, ROY ALLAN T. ARELLANO, opportunity to comment thereon a mere verbally
requested 1st Indorsement is not sufficient basis
for the conclusion that the ZTE-DOTC NBN deal On April 18, 2008, the OSG filed respondents reply,
has been permanently scrapped. reiterating their position that for a court to exercise its power of
adjudication, there must be an actual case or controversy one which
67. Suffice to state, involves a conflict of legal rights, an assertion of opposite legal claims
said 1st Indorsement is glaringly self-serving, susceptible of judicial resolution; the case must not be moot or
especially without the Notes of the Meeting academic or based on extra-legal or other similar considerations not
Between President Gloria Macapagal-Arroyo and cognizable by a court of justice.[9]
Chinese President Hu Jintao to support its
allegations or other proof of the supposed Respondents also insist that there is no perfected contract
decision to cancel the ZTE-DOTC NBN deal.Public in this case that would prejudice the government or public
respondents can certainly do better than that.[4] interest. Explaining the nature of the NBN Project as an executive
agreement, respondents stress that it remained in the negotiation
Petitioner Suplico further argues that: stage. The conditions precedent[10] for the agreement to become
effective have not yet been complied with.
79. Assuming arguendo that some aspects of the Respondents further oppose petitioners claim of the right
present Petition have been rendered moot to information, which they contend is not an absolute right. They
(which is vehemently denied), this Honorable contend that the matters raised concern executive policy, a political
Court, consistent with well-entrenched question which the judicial branch of government would generally
jurisprudence, may still take cognizance hesitate to pass upon.
thereof.[5]
On July 2, 2008, the OSG filed a Supplemental
Petitioner Suplico cites this Courts rulings in Gonzales v. Manifestation and Motion. Appended to it is the Highlights from the
Chavez,[6] Rufino v. Endriga,[7] and Alunan III v. Mirasol[8] that despite Notes of Meeting between President Gloria Macapagal-Arroyo and
their mootness, the Court nevertheless took cognizance of these Chinese President Hu Jintao, held in XI Jiao
cases and ruled on the merits due to the Courts symbolic function of Guesthouse, Shanghai, China, on October 2, 2007. In the Notes of
educating the bench and the bar by formulating guiding and Meeting, the Philippine Government conveyed its decision not to
controlling principles, precepts, doctrines, and rules. continue with the ZTE National Broadband Network Project due to
several constraints. The same Notes likewise contained President Hu
On January 31, 2008, Amsterdam Holdings, Inc. (AHI) and Jintaos expression of understanding of the Philippine Government
Nathaniel Sauz, petitioners in G.R. No. 179317, also filed their decision.
comment expressing their sentiments, thus:
We resolve to grant the motion.
3. First of all, the present
administration has never been known for Firstly, the Court notes the triple petitions to be
candor. The present administration has a very for certiorari, prohibition and mandamus, with application for the
nasty habit of not keeping its word. It says one issuance of a Temporary Restraining Order (TRO) and/or Preliminary
thing, but does another. Injunction. The individual prayers in each of the three (3)
consolidated petitions are:

4. This being the case, herein G.R. No. 178830


petitioners are unable to bring themselves to feel
even a bit reassured that the government, in the WHEREFORE, it is respectfully prayed of this Honorable
event that the above-captioned cases are Court:
dismissed, will not backtrack, re-transact, or even
resurrect the now infamous NBN-ZTE 1. Upon the filing of this Petition, pursuant to the
transaction. This is especially relevant since what second paragraph of Rule 58, Section 5 of the
was attached to the OSGs Manifestation and Rules of Court, issue forthwith an ex
Motion was a mere one (1) page written parte temporary restraining order enjoining
communication sent by the Department of respondents, their subordinates, agents,
Transportation and Communications (DOTC) to representatives and any and all persons acting on
the OSG, allegedly relaying that the Philippine their behalf from pursuing, entering into
Government has decided not to continue with the indebtedness, disbursing funds, and
NBN project x x x due to several reasons and implementing the ZTE-DOTC Broadband Deal;
constraints.
2. Compel respondents, upon Writ of
Petitioners AHI and Sauz further contend that because of Mandamus, toforthwith produce and furnish
the transcendental importance of the issues raised in the petition, petitioner or his undersigned counsel a certified
which among others, included the Presidents use of the power to true copy of the contract or agreement covering
borrow, i.e., to enter into foreign loan agreements, this Court should the NBN project as agreed upon with ZTE
take cognizance of this case despite its apparent mootness. Corporation;

On January 15, 2008, the Court required the OSG to file 3. Schedule Oral Arguments in the present case
respondents reply to petitioners comments on its manifestation and pursuant to Rule 49 in relation to Section 2, Rule
motion. 56 of the revised Rules of Court; and,
bidding for said contract to undertake the construction of
4. Annul and set aside the award of the ZTE- the national broadband network.[13] (Emphasis supplied)
DOTC Broadband Deal, and compel public
respondents to forthwithcomply with pertinent On September 11, 2007, the Court issued a TRO[14] in G.R.
provisions of law regarding procurement of No. 178830, enjoining the parties from pursuing, entering into
government ICT contracts and public bidding for indebtedness, disbursing funds, and implementing the ZTE-DOTC
the NBN contract.[11] (Emphasis supplied) Broadband Deal and Project as prayed for. Pertinent parts of the said
Order read:
G.R. No. 179317
WHEREAS, the Supreme Court, on 11 September 2007, adopted a
WHEREFORE, petitioners Amsterdam Holdings, Inc., and resolution in the above-entitled case, to wit:
Nathaniel Sauz respectfully pray as follows:
G.R. No. 178830 (Rolex Suplico vs. National Economic and
A. upon the filing of this Petition for Mandamus Development Authority, represented by NEDA Secretary Romulo L.
and conditioned upon the posting of a bond in Neri, and the NEDA Investment Coordination Committee,
such amount as the Honorable Court may fix, a Department of Transportation and Communications (DOTC),
temporary restraining order and/or writ of represented by DOTC Secretary Leandro Mendoza, including the
preliminary injunction be issued directing the Commission on Information and Communications Technology,
Department of Transportation and headed by its Chairman, Ramon P. Sales, The Telecommunications
Communication, the Commission on Information Office, Bids and Awards for Information and Communications
and Communications Technology, all other Technology Committee (ICT), headed by DOTC Assistant Secretary
government agencies and instrumentalities, their Elmer A. Soneja as Chairman, and The Technical Working Group for
officers, employees, and/or other persons acting ICT, and DOTC Assistant Secretary Lorenzo Formoso, and All Other
for and on their behalf to desist during the Operating Units of the DOTC for Information and Communications
pendency of the instant Petition for Technology, and ZTE Corporation, Amsterdam Holdings, Inc., and
Mandamus from entering into any other ARESCOM, Inc.Acting on the instant petition with prayer for
agreements and from commencing with any temporary restraining order and/or writ of preliminary injunction, the
kind, sort, or specie of activity in connection with Court Resolved, without giving due course to the petition, to
the National Broadband Network Project; xxxx

B. the instant Petition for Mandamus be given due (d) Issue a TEMPORARY RESTRAINING ORDER, effective immediately
course; and, and continuing until further orders from this Court, enjoining the(i)
National Economic and Development Authority, (ii) NEDA-Investment
C. after due consideration of all relevant issues, Coordination Committee, (iii) Department of Transportation and
judgment be rendered directing respondents to allow Communications, Commission on Information and Communications
herein petitioners access to all agreements entered into Technology, (iv) Telecommunications Office, Bids and Awards for
with the Government of China, the ZTE Corporation, and/or Information and Communications Technology Committee (ICT), (v)
other entities, government instrumentalities, and/or Technical Working Group for ICT, and all other Operating Units of the
individuals with regard to the National Broadband Network DOTC for Information and Communications Technology, (vi) ZTE
Project.[12] (Emphasis supplied) Corporation; (vii) Amsterdam Holdings, Inc., and (viii) ARESCOM, Inc.,
and any and all persons acting on their behalf from pursuing, entering
G.R. No. 179613 into indebtedness, disbursing funds, and implementing the ZTE-DOTC
Broadband Deal and Project as prayed for.
WHEREFORE, it is respectfully prayed of this Honorable
Court to: NOW THEREFORE, effective immediately and continuing until further
orders from this Court, You, Respondents (i) National Economic and
1. Compel respondents, upon Writ of Development Authority, (ii) NEDA-Investment Coordination
Mandamus, to forthwith produce and furnish petitioner or Committee, (iii) Department of Transportation and Communications,
his undersigned counsel a certified true copy of the Commission on Information and Communications Technology, (iv)
contract or agreement covering the NBN project as agreed Telecommunications Office, Bids and Awards for Information and
upon with ZTE Corporation; Communications Technology Committee (ICT), (v) Technical Working
2. Schedule Oral Arguments in the present case pursuant to Group for ICT, and all other Operating Units of the DOTC for
Rule 49 in relation to Section 2, Rule 56 of the Revised Rules Information and Communications Technology, (vi) ZTE Corporation;
of Court; (vii) Amsterdam Holdings, Inc., and (viii) ARESCOM, Inc., and any and
all persons acting on their behalf are hereby ENJOINED from
3. Annul and set aside the award of the contract for the pursuing, entering into indebtedness, disbursing funds, and
national broadband network to respondent ZTE implementing the ZTE-DOTC Broadband Deal and Project as prayed
Corporation, upon the ground that said contract, as well as for.[15] (Emphasis supplied.)
the procedures resorted to preparatory to the execution
thereof, is contrary to the Constitution, to law and to public Petitioners in G.R. Nos. 178830 and 179613 pray that they be
policy; furnished certified true copies of the contract or agreement covering
the NBN project as agreed upon with ZTE Corporation. It appears
4. Compel public respondent to forthwith comply with that during one of the Senate hearings on the NBN project, copies of
pertinent provisions of law regarding procurement of the supply contract[16] were readily made available to
government infrastructure projects, including public
petitioners.[17] Evidently, the said prayer has been complied with and development. Pontificating on issues which no longer legitimately
is, thus, mooted. constitute an actual case or controversy will do more harm than good
to the nation as a whole. Wise exercise of judicial discretion militates
When President Gloria Macapagal-Arroyo, acting in her official against resolving the academic issues, as petitioners want this Court
capacity during the meeting held on October 2, 2007 in China, to do. This is especially true where, as will be further discussed, the
informed Chinas President Hu Jintao that the Philippine Government legal issues raised cannot be resolved without previously establishing
had decided not to continue with the ZTE-National Broadband the factual basis or antecedents.
Network (ZTE-NBN) Project due to several reasons and constraints,
there is no doubt that all the other principal prayers in the three Judicial power presupposes actual controversies, the very
petitions (to annul, set aside, and enjoin the implementation of the antithesis of mootness.In the absence of actual justiciable
ZTE-NBN Project) had also become moot. controversies or disputes, the Court generally opts to refrain from
deciding moot issues. Where there is no more live subject of
Contrary to petitioners contentions that these declarations made by controversy, the Court ceases to have a reason to render any ruling
officials belonging to the executive branch on the Philippine or make any pronouncement.
Governments decision not to continue with the ZTE-NBN Project are
self-serving, hence, inadmissible, the Court has no alternative but to Kapag wala nang buhay na kaso, wala nang dahilan para
take judicial notice of this official act of the President of magdesisyon ang Husgado.
the Philippines.
In Republic Telecommunications Holdings, Inc. v.
Section 1, Rule 129 of the Rules of Court provides: Santiago,[21] the lone issue tackled by the Court of Appeals (CA) was
whether the Securities Investigation and Clearing Department (SICD)
SECTION 1. Judicial Notice, when and Securities and Exchange Commission (SEC) en banc committed
mandatory. A court shall take judicial reversible error in issuing and upholding, respectively, the writ of
notice, without introduction of evidence, of the preliminary injunction. The writ enjoined the execution of the
existence and territorial extent of states, their questioned agreements between Qualcomm, Inc. and Republic
political history, forms of government and Telecommunications Holdings, Inc. (RETELCOM). The implementation
symbols of nationality, the law of nations, the of the agreements was restrained through the assailed orders of the
admiralty and maritime courts of the world and SICD and the SECen banc which, however, were nullified by the CA
their seals, the political constitution and history decision. Thus, RETELCOM elevated the matter to this Court praying
of the Philippines, the official acts of for the reinstatement of the writ of preliminary injunction of the SICD
the legislative, executive and and the SEC en banc. However, before the matter was finally
judicial departments of the Philippines, the laws resolved, Qualcomm, Inc. withdrew from the negotiating table. Its
of nature, the measure of time, and the withdrawal had thwarted the execution and enforcement of the
geographical divisions. (Emphasis supplied) contracts. Thus, the resolution of whether the implementation of said
Under the rules, it is mandatory and the Court has no agreements should be enjoined became no longer necessary.
alternative but to take judicial notice of the official acts of the
President of the Philippines, who heads the executive branch of our Equally applicable to the present case is the Court ruling in
government. It is further provided in the above-quoted rule that the the above-cited Republic Telecommunications. There We held, thus:
court shall take judicial notice of the foregoing facts without
introduction of evidence. Since we consider the act of cancellation by Indeed, the instant petition, insofar as it assails the Court of Appeals
President Macapagal-Arroyo of the proposed ZTE-NBN Project during Decision nullifying the orders of the SEC en banc and the SICD, has
the meeting of October 2, 2007 with the Chinese President been rendered moot and academic. To rule, one way or the other, on
in China as an official act of the executive department, the Court the correctness of the questioned orders of the SEC en banc and the
must take judicial notice of such official act without need of evidence. SICD will be indulging in a theoretical exercise that has no practical
worth in view of the supervening event.
In David v. Macapagal-Arroyo,[18] We took judicial notice of
the announcement by the Office of the President banning all rallies The rule is well-settled that for a court to exercise its power of
and canceling all permits for public assemblies following the issuance adjudication, there must be an actual case or controversy one which
of Presidential Proclamation No. 1017 and General Order No. 5. involves a conflict of legal rights, an assertion of opposite legal claims
susceptible of judicial resolution; the case must not be moot or
In Estrada v. Desierto,[19] the Court also resorted to judicial academic or based on extra-legal or other similar considerations not
notice in resolving the factual ingredient of the petition. cognizable by a court of justice. Where the issue has become moot
and academic, there is no justiciable controversy, and an adjudication
Moreover, under Section 2, paragraph (m) of Rule 131 of thereon would be of no practical use or value as courts do not sit to
the Rules of Court, the official duty of the executive officials[20] of adjudicate mere academic questions to satisfy scholarly interest,
informing this Court of the governments decision not to continue with however intellectually challenging.
the ZTE-NBN Project is also presumed to have been regularly
performed, absent proof to the contrary. Other than petitioner AHIs In the ultimate analysis, petitioners are seeking the reinstatement of
unsavory insinuation in its comment, the Court finds no factual or the writ of injunction to prevent the concerned parties from pushing
legal basis to disregard this disputable presumption in the present through with transactions with Qualcomm, Inc. Given that
instance. Qualcomm, Inc. is no longer interested in pursuing the contracts,
there is no actual substantial relief to which petitioners would be
Concomitant to its fundamental task as the ultimate citadel entitled and which would be negated by the dismissal of the petition.
of justice and legitimacy is the judiciarys role of strengthening political
stability indispensable to progress and national
The Court likewise finds it unnecessary to rule whether the assailed completed under a Build-Operate-and-
Court of Appeals Decision had the effect of overruling the Courts Transfer Scheme;
Resolution dated 29 January 1999, which set aside the TRO issued by
the appellate court. (5) Whether the AHI proposal complied
with the requirements for an
A ruling on the matter practically partakes of a mere advisory opinion, unsolicited proposal under the BOT
which falls beyond the realm of judicial review. The exercise of the Law;
power of judicial review is limited to actual cases and controversies.
Courts have no authority to pass upon issues through advisory (6) Whether the Philippine government
opinions or to resolve hypothetical or feigned problems. has actually earmarked public finds for
disbursement under the ZTE Supply
While there were occasions when the Court passed upon issues Contract; and
although supervening events had rendered those petitions moot and
academic, the instant case does not fall under the exceptional (7) Whether the coverage of the NBN
cases. In those cases, the Court was persuaded to resolve moot and Project to be supplied under the ZTE
academic issues to formulate guiding and controlling constitutional Supply Contract is more extensive than
principles, precepts, doctrines or rules for future guidance of both that under the AHIproposal or such
bench and bar. other proposal submitted therefor.[24]

In the case at bar, the resolution of whether a writ of preliminary Definitely, some very specific reliefs prayed for in both G.R.
injunction may be issued to prevent the implementation of the Nos. 178830 and 179613 require prior determination of facts before
assailed contracts calls for an appraisal of factual considerations pertinent legal issues could be resolved and specific reliefs granted.
which are peculiar only to the transactions and parties involved in this
controversy. Except for the determination of whether petitioners are In G.R. No. 178830, petitioner seeks to annul and set
entitled to a writ of preliminary injunction which is now moot, the aside the award of the ZTE-DOTC Broadband Deal and compel public
issues raised in this petition do not call for a clarification of any respondents to forthwithcomply with pertinent provisions of law
constitutional principle or the interpretation of any statutory regarding procurement of government ICT contracts and public
provision.[22] bidding for the NBN contract.

Secondly, even assuming that the Court will choose to In G.R. No. 179613, petitioners also pray that the
disregard the foregoing considerations and brush aside mootness, the Court annul and set aside the award of the contract for the national
Court cannot completely rule on the merits of the case because the broadband network to respondent ZTE Corporation, upon the ground
resolution of the three petitions involves settling factual issues that said contract, as well as the procedures resorted to preparatory
which definitely requires reception of evidence. There is not an iota to the execution thereof, is contrary to the Constitution, to law and
of doubt that this may not be done by this Court in the first instance to public policy. They also ask the Court to compel public respondent
because, as has been stated often enough, this Court is not a trier of to forthwith comply with pertinent provisions of law regarding
facts. procurement of government infrastructure projects, including public
bidding for said contract to undertake the construction of the national
Ang pagpapasiya sa tatlong petisyon ay nangangailangan ng broadband network.
paglilitis na hindi gawain ng Hukumang ito.
It is simply impossible for this Court to annul and set aside the award
Respondent ZTE, in its Comment in G.R. No. 178830,[23] correctly of the ZTE-DOTC Broadband Deal without any evidence to support a
pointed out that since petitioner Suplico filed his petition directly with prior factual finding pointing to any violation of law that could lead to
this Court, without prior factual findings made by any lower court, a such annulment order.For sure, the Supreme Court is not the proper
determination of pertinent and relevant facts is needed. ZTE venue for this factual matter to be threshed out.
enumerated some of these factual issues, to wit: Thirdly, petitioner Suplico in G.R. No. 178830 prayed that this Court
order public respondents to forthwith comply with pertinent
(1) Whether an executive agreement has provisions of law regarding procurement of government ICT contracts
been reached between the Philippine and public bidding for the NBN contract.[25] It would be too
and Chinese governments over the NBN presumptuous on the part of the Court to summarily compel public
Project; respondents to comply with pertinent provisions of law regarding
procurement of government infrastructure projects without any
(2) Whether the ZTE Supply Contract was factual basis or prior determination of very particular violations
entered into by the Republic of committed by specific government officials of the executive
the Philippines, through the DOTC, and branch. For the Court to do so would amount to a breach of the norms
ZTE International pursuant to, and as an of comity among co-equal branches of government. A perceived error
integral part of, the executive cannot be corrected by committing another error.Without proper
agreement; evidence, the Court cannot just presume that the executive did not
comply with procurement laws. Should the Court allow itself to fall
(3) Whether a loan agreement for the into this trap, it would plainly commit grave error itself.
NBN Project has actually been
executed; Magiging kapangahasan sa Hukumang ito na pilitin ang mga
pinipetisyon na tumalima sa batas sa pangongontrata ng
(4) Whether the Philippine government pamahalaan kung wala pang pagtitiyak o angkop na ebidensiya ng
required that the NBN Project be nagawang paglabag dito.
Let it be clarified that the Senate investigation in aid of legislation
cannot be the basis of Our decision which requires a judicial finding
of facts.

Justice Antonio T. Carpio takes the view that the National Broadband
Network Project should be declared null and void. The foregoing
threefold reasons would suffice to address the concern of Our
esteemed colleague.

The Court is, therefore, constrained to dismiss the petitions


and deny them due course because of mootness and because their
resolution requires reception of evidence which cannot be done in an
original petition brought before the Supreme Court.

WHEREFORE, the petitions are DISMISSED. The Temporary


Restraining Order issued on September 11, 2007 is DISSOLVED.

SO ORDERED.
CHINA NATIONAL MACHINERY & EQUIPMENT CORP. (GROUP), Region, Makati City, Branch 145 (RTC Br. 145). In the Complaint,
Petitioner, respondents alleged that the Contract Agreement and the Loan
versus Agreement were void for being contrary to (a) the Constitution; (b)
Republic Act No. 9184 (R.A. No. 9184), otherwise known as the
Government Procurement Reform Act; (c) Presidential Decree No.
HON. CESAR D. SANTAMARIA, G.R. No. 185572 1445, otherwise known as the Government Auditing Code; and (d)
Executive Order No. 292, otherwise known as the Administrative
Code.[12]
DECISION
SERENO, J.: RTC Br. 145 issued an Order dated 17 March 2006 setting
the case for hearing on the issuance of injunctive reliefs.[13] On 29
This is a Petition for Review on Certiorari with Prayer for the March 2006, CNMEG filed an Urgent Motion for Reconsideration of
Issuance of a Temporary Restraining Order (TRO) and/or this Order.[14] Before RTC Br. 145 could rule thereon, CNMEG filed a
Preliminary Injunction assailing the 30 September 2008 Decision Motion to Dismiss dated 12 April 2006, arguing that the trial court did
and 5 December 2008 Resolution of the Court of Appeals (CA) in not have jurisdiction over (a) its person, as it was an agent of the
CAG.R. SP No. 103351.[1] Chinese government, making it immune from suit, and (b) the subject
matter, as the Northrail Project was a product of an executive
On 14 September 2002, petitioner China National Machinery & agreement.[15]
Equipment Corp. (Group) (CNMEG), represented by its chairperson,
Ren Hongbin, entered into a Memorandum of Understanding with the On 15 May 2007, RTC Br. 145 issued an Omnibus Order
North Luzon Railways Corporation (Northrail), represented by its denying CNMEGs Motion to Dismiss and setting the case for summary
president, Jose L. Cortes, Jr. for the conduct of a feasibility study on a hearing to determine whether the injunctive reliefs prayed for should
possible railway line from Manila to San Fernando, La Union (the be issued.[16]CNMEG then filed a Motion for
Northrail Project).[2] Reconsideration,[17] which was denied by the trial court in an Order
dated 10 March 2008.[18] Thus, CNMEG filed before the CA a Petition
On 30 August 2003, the Export Import Bank of China (EXIM for Certiorari with Prayer for the Issuance of TRO and/or Writ of
Bank) and the Department of Finance of the Philippines (DOF) Preliminary Injunction dated 4 April 2008.[19]
entered into a Memorandum of Understanding (Aug 30 MOU),
wherein China agreed to extend Preferential Buyers Credit to the In the assailed Decision dated 30 September 2008, the
Philippine government to finance the Northrail Project.[3] The Chinese appellate court dismissed the Petition for Certiorari.[20] Subsequently,
government designated EXIM Bank as the lender, while the Philippine CNMEG filed a Motion for Reconsideration,[21] which was denied by
government named the DOF as the borrower.[4]Under the Aug 30 the CA in a Resolution dated 5 December 2008.[22] Thus, CNMEG filed
MOU, EXIM Bank agreed to extend an amount not exceeding USD the instant Petition for Review on Certiorari dated 21 January 2009,
400,000,000 in favor of the DOF, payable in 20 years, with a 5-year raising the following issues: [23]
grace period, and at the rate of 3% per annum.[5]
Whether or not petitioner CNMEG is an agent of the
On 1 October 2003, the Chinese Ambassador to the Philippines, Wang sovereign Peoples Republic of China.
Chungui (Amb. Wang), wrote a letter to DOF Secretary Jose Isidro
Camacho (Sec. Camacho) informing him of CNMEGs designation as Whether or not the Northrail contracts are products of an
the Prime Contractor for the Northrail Project.[6] executive agreement between two sovereign states.

On 30 December 2003, Northrail and CNMEG executed a Contract Whether or not the certification from the Department of
Agreement for the construction of Section I, Phase I of the North Foreign Affairs is necessary under the foregoing circumstances.
Luzon Railway System from Caloocan to Malolos on a turnkey basis
(the Contract Agreement).[7] The contract price for the Northrail Whether or not the act being undertaken by petitioner
Project was pegged at USD 421,050,000.[8] CNMEG is an act jure imperii.

On 26 February 2004, the Philippine government and EXIM Whether or not the Court of Appeals failed to avoid a
Bank entered into a counterpart financial agreement Buyer Credit procedural limbo in the lower court.
Loan Agreement No. BLA 04055 (the Loan Agreement).[9] In the Loan
Agreement, EXIM Bank agreed to extend Preferential Buyers Credit in Whether or not the Northrail Project is subject to
the amount of USD 400,000,000 in favor of the Philippine government competitive public bidding.
in order to finance the construction of Phase I of the Northrail
Project.[10] Whether or not the Court of Appeals ignored the ruling of
this Honorable Court in the Neri case.
On 13 February 2006, respondents filed a Complaint for
Annulment of Contract and Injunction with Urgent Motion for CNMEG prays for the dismissal of Civil Case No. 06-203 before
Summary Hearing to Determine the Existence of Facts and RTC Br. 145 for lack of jurisdiction. It likewise requests this Court for the
Circumstances Justifying the Issuance of Writs of Preliminary issuance of a TRO and, later on, a writ of preliminary injunction to
Prohibitory and Mandatory Injunction and/or TRO against CNMEG, restrain public respondent from proceeding with the disposition of Civil
the Office of the Executive Secretary, the DOF, the Department of Case No. 06-203.
Budget and Management, the National Economic Development
Authority and Northrail.[11] The case was docketed as Civil Case No. The crux of this case boils down to two main issues, namely:
06-203 before the Regional Trial Court, National Capital Judicial
1. Whether CNMEG is entitled to immunity, precluding it The parties executed the Contract Agreement for the purpose
from being sued before a local court. of constructing the Luzon Railways, viz:
2. Whether the Contract Agreement is an executive
agreement, such that it cannot be questioned by or before a local [29]WHEREAS the Employer (Northrail) desired to construct
court. the railways form Caloocan to Malolos, section I, Phase I of Philippine
North Luzon Railways Project (hereinafter referred to as THE
First issue: Whether CNMEG is entitled to immunity PROJECT);

This Court explained the doctrine of sovereign immunity AND WHEREAS the Contractor has offered to provide the
in Holy See v. Rosario,[24] to wit: Project on Turnkey basis, including design, manufacturing, supply,
construction, commissioning, and training of the Employers personnel;
There are two conflicting concepts of sovereign immunity,
each widely held and firmly established. According to the classical or AND WHEREAS the Loan Agreement of the Preferential
absolute theory, a sovereign cannot, without its consent, be made a Buyers Credit between Export-Import Bank of China and Department of
respondent in the courts of another sovereign. According to the Finance of Republic of the Philippines;
newer or restrictive theory, the immunity of the sovereign is
recognized only with regard to public acts or acts jure imperii of a NOW, THEREFORE, the parties agree to sign this Contract for
state, but not with regard to private acts or acts jure the Implementation of the Project.
gestionis. (Emphasis supplied; citations omitted.)
The above-cited portion of the Contract Agreement,
xxx xxx xxx
however, does not on its own reveal whether the construction of the
Luzon railways was meant to be a proprietary endeavor. In order to
The restrictive theory came about because of the entry of
fully understand the intention behind and the purpose of the entire
sovereign states into purely commercial activities remotely
undertaking, the Contract Agreement must not be read in isolation.
connected with the discharge of governmental functions. This is
Instead, it must be construed in conjunction with three other
particularly true with respect to the Communist states which took
documents executed in relation to the Northrail Project, namely: (a)
control of nationalized business activities and international trading.
the Memorandum of Understanding dated 14 September 2002
between Northrail and CNMEG;[30] (b) the letter of Amb. Wang dated
In JUSMAG v. National Labor Relations Commission,[25] this
1 October 2003 addressed to Sec. Camacho;[31] and (c) the Loan
Court affirmed the Philippines adherence to the restrictive theory as
Agreement.[32]
follows
The doctrine of state immunity from suit has undergone
1. Memorandum of Understanding dated 14 September 2002
further metamorphosis. The view evolved that the existence of a
contract does not, per se, mean that sovereign states may, at all times,
The Memorandum of Understanding dated 14 September
be sued in local courts. The complexity of relationships between
2002 shows that CNMEG sought the construction of the Luzon
sovereign states, brought about by their increasing commercial
Railways as a proprietary venture. The relevant parts thereof read:
activities, mothered a more restrictive application of the doctrine.
WHEREAS, CNMEG has the financial capability, professional
xxx xxx xxx
competence and technical expertise to assess the state of the [Main
Line North (MLN)] and recommend implementation plans as well as
As it stands now, the application of the doctrine of immunity
undertake its rehabilitation and/or modernization;
from suit has been restricted to sovereign or governmental
activities (jure imperii). The mantle of state immunity cannot be
WHEREAS, CNMEG has expressed interest in the
extended to commercial, private and proprietary acts (jure
rehabilitation and/or modernization of the MLN from Metro Manila
gestionis).[26] (Emphasis supplied.)
to San Fernando, La Union passing through the provinces of Bulacan,
Pampanga, Tarlac, Pangasinan and La Union (the Project);
Since the Philippines adheres to the restrictive theory, it is
crucial to ascertain the legal nature of the act involved whether the
WHEREAS, the NORTHRAIL CORP. welcomes CNMEGs
entity claiming immunity performs governmental, as opposed to
proposal to undertake a Feasibility Study (the Study) at no cost to
proprietary, functions. As held in United States of America v. Ruiz [27]
NORTHRAIL CORP.;
The restrictive application of State immunity is proper only
WHEREAS, the NORTHRAIL CORP. also welcomes CNMEGs
when the proceedings arise out of commercial transactions of the
interest in undertaking the Project with Suppliers Credit and intends
foreign sovereign, its commercial activities or economic affairs.
to employ CNMEG as the Contractor for the Project subject to
Stated differently, a State may be said to have descended to the level
compliance with Philippine and Chinese laws, rules and regulations
of an individual and can thus be deemed to have tacitly given its
for the selection of a contractor
consent to be sued only when it enters into business contracts. It does
not apply where the contract relates to the exercise of its sovereign
WHEREAS, the NORTHRAIL CORP. considers CNMEGs
functions.[28]
proposal advantageous to the Government of the Republic of
A. CNMEG is engaged in a proprietary activity.
the Philippines and has therefore agreed to assist CNMEG in the
conduct of the aforesaid Study;
A threshold question that must be answered is whether
xxx xxx xxx
CNMEG performs governmental or proprietary functions. A thorough
examination of the basic facts of the case would show that CNMEG is
II. APPROVAL PROCESS
engaged in a proprietary activity.
2.1 As soon as possible after completion and CNMEG claims immunity on the ground that the Aug 30 MOU
presentation of the Study in accordance with Paragraphs 1.3 and 1.4 on the financing of the Northrail Project was signed by the Philippine
above and in compliance with necessary governmental laws, rules, and Chinese governments, and its assignment as the Primary
regulations and procedures required from both parties, the parties Contractor meant that it was bound to perform a governmental
shall commence the preparation and negotiation of the terms and function on behalf of China. However, the Loan Agreement, which
conditions of the Contract (the Contract) to be entered into between originated from the same Aug 30 MOU, belies this reasoning, viz:
them on the implementation of the Project. The parties shall use
their best endeavors to formulate and finalize a Contract with a view Article 11. xxx (j) Commercial Activity The execution and
to signing the Contract within one hundred twenty (120) days from delivery of this Agreement by the Borrower constitute, and the
CNMEGs presentation of the Study.[33] (Emphasis supplied) Borrowers performance of and compliance with its obligations under
this Agreement will constitute, private and commercial acts done and
Clearly, it was CNMEG that initiated the undertaking, and performed for commercial purposes under the laws of the Republic of
not the Chinese government. The Feasibility Study was conducted not the Philippines and neither the Borrower nor any of its assets is
because of any diplomatic gratuity from or exercise of sovereign entitled to any immunity or privilege (sovereign or otherwise) from
functions by the Chinese government, but was plainly a business suit, execution or any other legal process with respect to its
strategy employed by CNMEG with a view to securing this commercial obligations under this Agreement, as the case may be, in any
enterprise. jurisdiction.Notwithstanding the foregoing, the Borrower does not
waive any immunity with respect of its assets which are (i) used by a
2. Letter dated 1 October 2003
diplomatic or consular mission of the Borrower and (ii) assets of a
military character and under control of a military authority or defense
That CNMEG, and not the Chinese government, initiated the agency and (iii) located in the Philippines and dedicated to public or
Northrail Project was confirmed by Amb. Wang in his letter dated 1 governmental use (as distinguished from patrimonial assets or assets
October 2003, thus: dedicated to commercial use). (Emphasis supplied.)

(k) Proceedings to Enforce Agreement In any proceeding in


1. CNMEG has the proven competence and the Republic of the Philippines to enforce this Agreement, the choice of
capability to undertake the Project as evidenced by the ranking of 42 the laws of the Peoples Republic of China as the governing law hereof
given by the ENR among 225 global construction companies. will be recognized and such law will be applied. The waiver of immunity
by the Borrower, the irrevocable submissions of the Borrower to the
2. CNMEG already signed an MOU with the North non-exclusive jurisdiction of the courts of the Peoples Republic of China
Luzon Railways Corporation last September 14, 2000 during the visit and the appointment of the Borrowers Chinese Process Agent is legal,
of Chairman Li Peng. Such being the case, they have already valid, binding and enforceable and any judgment obtained in the
established an initial working relationship with your North Luzon Peoples Republic of China will be if introduced, evidence for
Railways Corporation. This would categorize CNMEG as the state enforcement in any proceedings against the Borrower and its assets in
corporation within the Peoples Republic of China which initiated our the Republic of the Philippines provided that (a) the court rendering
Governments involvement in the Project. judgment had jurisdiction over the subject matter of the action in
accordance with its jurisdictional rules, (b) the Republic had notice of
the proceedings, (c) the judgment of the court was not obtained
3. Among the various state corporations of the through collusion or fraud, and (d) such judgment was not based on a
Peoples Republic of China, only CNMEG has the advantage of being clear mistake of fact or law.[36]
fully familiar with the current requirements of the Northrail Project
having already accomplished a Feasibility Study which was used as Further, the Loan Agreement likewise contains this express
inputs by the North Luzon Railways Corporation in the approvals (sic) waiver of immunity
process required by the Republic of the Philippines.[34] (Emphasis
supplied.) 15.5 Waiver of Immunity The Borrower irrevocably and
unconditionally waives, any immunity to which it or its property may at
any time be or become entitled, whether characterized as sovereign
Thus, the desire of CNMEG to secure the Northrail Project immunity or otherwise, from any suit, judgment, service of process
was in the ordinary or regular course of its business as a global upon it or any agent, execution on judgment, set-off, attachment prior
construction company. The implementation of the Northrail Project to judgment, attachment in aid of execution to which it or its assets may
was intended to generate profit for CNMEG, with the Contract be entitled in any legal action or proceedings with respect to this
Agreement placing a contract price of USD 421,050,000 for the Agreement or any of the transactions contemplated hereby or
venture.[35] The use of the term state corporation to refer to CNMEG hereunder. Notwithstanding the foregoing, the Borrower does not
was only descriptive of its nature as a government-owned and/or - waive any immunity in respect of its assets which are (i) used by a
controlled corporation, and its assignment as the Primary Contractor diplomatic or consular mission of the Borrower, (ii) assets of a military
did not imply that it was acting on behalf of China in the performance character and under control of a military authority or defense agency
of the latters sovereign functions. To imply otherwise would result in and (iii) located in the Philippines and dedicated to a public or
an absurd situation, in which all Chinese corporations owned by the governmental use (as distinguished from patrimonial assets or assets
state would be automatically considered as performing governmental dedicated to commercial use).[37]
activities, even if they are clearly engaged in commercial or
proprietary pursuits. Thus, despite petitioners claim that the EXIM Bank extended
financial assistance to Northrail because the bank was mandated by the
Chinese government, and not because of any motivation to do business
3. The Loan Agreement in the Philippines,[38] it is clear from the foregoing provisions that the
Northrail Project was a purely commercial transaction.
Admittedly, the Loan Agreement was entered into between The principle of state immunity from suit, whether a local
EXIM Bank and the Philippine government, while the Contract state or a foreign state, is reflected in Section 9, Article XVI of the
Agreement was between Northrail and CNMEG. Although the Contract Constitution, which states that the State may not be sued without its
Agreement is silent on the classification of the legal nature of the consent. Who or what consists of the State? For one, the doctrine is
transaction, the foregoing provisions of the Loan Agreement, which is available to foreign States insofar as they are sought to be sued in the
an inextricable part of the entire undertaking, nonetheless reveal the courts of the local State, necessary as it is to avoid unduly vexing the
intention of the parties to the Northrail Project to classify the whole peace of nations.
venture as commercial or proprietary in character.
If the instant suit had been brought directly against the
Federal Republic of Germany, there would be no doubt that it is a suit
Thus, piecing together the content and tenor of the
brought against a State, and the only necessary inquiry is whether
Contract Agreement, the Memorandum of Understanding dated 14
said State had consented to be sued. However, the present suit was
September 2002, Amb. Wangs letter dated 1 October 2003, and the
brought against GTZ. It is necessary for us to understand what
Loan Agreement would reveal the desire of CNMEG to construct the
precisely are the parameters of the legal personality of GTZ
Luzon Railways in pursuit of a purely commercial activity performed
in the ordinary course of its business. Counsel for GTZ characterizes GTZ as the implementing
B. CNMEG failed to adduce evidence that it is immune agency of the Government of the Federal Republic of Germany, a
from suit under Chinese law. depiction similarly adopted by the OSG. Assuming that the
characterization is correct, it does not automatically invest GTZ with
Even assuming arguendo that CNMEG performs the ability to invoke State immunity from suit. The distinction lies in
governmental functions, such claim does not automatically vest it with whether the agency is incorporated or unincorporated.
immunity. This view finds support in Malong v. Philippine National
xxx xxx xxx
Railways, in which this Court held that (i)mmunity from suit is
determined by the character of the objects for which the entity was State immunity from suit may be waived by general or
organized.[39] special law. The special law can take the form of the original charter
of the incorporated government agency. Jurisprudence is replete with
In this regard, this Courts ruling in Deutsche Gesellschaft Fr
examples of incorporated government agencies which were ruled not
Technische Zusammenarbeit (GTZ) v. CA[40] must be examined.
entitled to invoke immunity from suit, owing to provisions in their
In Deutsche Gesellschaft, Germany and the Philippines entered into a
charters manifesting their consent to be sued.
Technical Cooperation Agreement, pursuant to which both signed an
arrangement promoting the Social Health InsuranceNetworking and xxx xxx xxx
Empowerment (SHINE) project. The two governments named their
respective implementing organizations: the Department of Health It is useful to note that on the part of the Philippine
(DOH) and the Philippine Health Insurance Corporation (PHIC) for government, it had designated two entities, the Department of Health
the Philippines, and GTZ for the implementation of Germanys and the Philippine Health Insurance Corporation (PHIC), as the
contributions. In ruling that GTZ was not immune from suit, this Court implementing agencies in behalf of the Philippines. The PHIC was
held established under Republic Act No. 7875, Section 16 (g) of which grants
the corporation the power to sue and be sued in court. Applying the
The arguments raised by GTZ and the [Office of the Solicitor previously cited jurisprudence, PHIC would not enjoy immunity from suit
General (OSG)] are rooted in several indisputable facts. The SHINE even in the performance of its functions connected with SHINE, however,
project was implemented pursuant to the bilateral agreements (sic) governmental in nature as (sic) they may be.
between the Philippine and German governments. GTZ was tasked,
under the 1991 agreement, with the implementation of the Is GTZ an incorporated agency of the German
contributions of the German government. The activities performed government? There is some mystery surrounding that question.
by GTZ pertaining to the SHINE project are governmental in nature, Neither GTZ nor the OSG go beyond the claim that petitioner is the
related as they are to the promotion of health insurance in implementing agency of the Government of the Federal Republic of
the Philippines. The fact that GTZ entered into employment contracts Germany. On the other hand, private respondents asserted before
with the private respondents did not disqualify it from invoking the Labor Arbiter that GTZ was a private corporation engaged in the
immunity from suit, as held in cases such as Holy See v. Rosario, implementation of development projects. The Labor Arbiter accepted
Jr., which set forth what remains valid doctrine: that claim in his Order denying the Motion to Dismiss, though he was
silent on that point in his Decision. Nevertheless, private respondents
Certainly, the mere entering into a contract by a foreign argue in their Comment that the finding that GTZ was a private
state with a private party cannot be the ultimate test. Such an act can corporation was never controverted, and is therefore deemed
only be the start of the inquiry. The logical question is whether the admitted. In its Reply, GTZ controverts that finding, saying that it is a
foreign state is engaged in the activity in the regular course of matter of public knowledge that the status of petitioner GTZ is that of
business. If the foreign state is not engaged regularly in a business or the implementing agency, and not that of a private corporation.
trade, the particular act or transaction must then be tested by its
nature. If the act is in pursuit of a sovereign activity, or an incident In truth, private respondents were unable to adduce any
thereof, then it is an act jure imperii, especially when it is not evidence to substantiate their claim that GTZ was a private corporation,
undertaken for gain or profit. and the Labor Arbiter acted rashly in accepting such claim without
explanation. But neither has GTZ supplied any evidence defining its
Beyond dispute is the tenability of the comment points (sic) legal nature beyond that of the bare descriptive implementing
raised by GTZ and the OSG that GTZ was not performing proprietary agency. There is no doubt that the 1991 Agreement designated GTZ as
functionsnotwithstanding its entry into the particular employment the implementing agency in behalf of the German government. Yet
contracts. Yet there is an equally fundamental premise which GTZ and the catch is that such term has no precise definition that is responsive
the OSG fail to address, namely: Is GTZ, by conception, able to enjoy to our concerns. Inherently, an agent acts in behalf of a principal, and
the Federal Republics immunity from suit? the GTZ can be said to act in behalf of the German state. But that is as
far as implementing agency could take us. The term by itself does not
supply whether GTZ is incorporated or unincorporated, whether it is directly to the Secretary of Labor and Employment, informing the
owned by the German state or by private interests, whether it has latter that the respondent-employer could not be sued because it
juridical personality independent of the German government or none enjoyed diplomatic immunity. In World Health Organization v.
at all. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the
trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974),
xxx xxx xxx
the U.S. Embassy asked the Secretary of Foreign Affairs to request the
Again, we are uncertain of the corresponding legal Solicitor General to make, in behalf of the Commander of the United
implications under German law surrounding a private company States Naval Base at Olongapo City, Zambales, a suggestion to
owned by the Federal Republic of Germany. Yet taking the description respondent Judge. The Solicitor General embodied the suggestion in
on face value, the apparent equivalent under Philippine law is that of a Manifestation and Memorandum as amicus curiae.
a corporation organized under the Corporation Code but owned by
the Philippine government, or a government-owned or controlled In the case at bench, the Department of Foreign Affairs, through the
corporation without original charter. And it bears notice that Section Office of Legal Affairs moved with this Court to be allowed to
36 of the Corporate Code states that [e]very corporation incorporated intervene on the side of petitioner. The Court allowed the said
under this Code has the power and capacity x x x to sue and be sued Department to file its memorandum in support of petitioners claim of
in its corporate name. sovereign immunity.

It is entirely possible that under German law, an entity such In some cases, the defense of sovereign immunity was submitted
as GTZ or particularly GTZ itself has not been vested or has been directly to the local courts by the respondents through their private
specifically deprived the power and capacity to sue and/or be sued. Yet counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v.
in the proceedings below and before this Court, GTZ has failed to Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of
establish that under German law, it has not consented to be sued America v. Guinto, 182 SCRA 644 [1990] and companion cases). In
despite it being owned by the Federal Republic of Germany. We cases where the foreign states bypass the Foreign Office, the courts
adhere to the rule that in the absence of evidence to the contrary, can inquire into the facts and make their own determination as to the
foreign laws on a particular subject are presumed to be the same as nature of the acts and transactions involved.[43](Emphasis supplie
those of the Philippines, and following the most intelligent
assumption we can gather, GTZ is akin to a governmental owned or The question now is whether any agency of the Executive Branch can make
controlled corporation without original charter which, by virtue of the a determination of immunity from suit, which may be considered as
Corporation Code, has expressly consented to be sued. At the very conclusive upon the courts. This Court, in Department of Foreign Affairs
least, like the Labor Arbiter and the Court of Appeals, this Court has no (DFA) v. National Labor Relations Commission (NLRC),[44] emphasized the
basis in fact to conclude or presume that GTZ enjoys immunity from DFAs competence and authority to provide such necessary determination,
suit.[41] (Emphasis supplied. to wit:
Applying the foregoing ruling to the case at bar, it is readily
apparent that CNMEG cannot claim immunity from suit, even if it The DFAs function includes, among its other mandates, the
contends that it performs governmental functions. Its designation as determination of persons and institutions covered by diplomatic
the Primary Contractor does not automatically grant it immunity, just immunities, a determination which, when challenge, (sic) entitles it
as the term implementing agency has no precise definition for purposes to seek relief from the court so as not to seriously impair the conduct
of ascertaining whether GTZ was immune from suit. Although CNMEG of the country's foreign relations. The DFA must be allowed to plead
claims to be a government-owned corporation, it failed to adduce its case whenever necessary or advisable to enable it to help keep the
evidence that it has not consented to be sued under Chinese law. Thus, credibility of the Philippine government before the international
following this Courts ruling in Deutsche Gesellschaft, in the absence of community. When international agreements are concluded, the
evidence to the contrary, CNMEG is to be presumed to be a parties thereto are deemed to have likewise accepted the
government-owned and -controlled corporation without an original responsibility of seeing to it that their agreements are duly
charter. As a result, it has the capacity to sue and be sued under Section regarded. In our country, this task falls principally of (sic) the DFA as
36 of the Corporation Code. being the highest executive department with the competence and
authority to so act in this aspect of the international
C. CNMEG failed to present a certification from the Department arena.[45] (Emphasis supplied.)
of Foreign Affairs.
Further, the fact that this authority is exclusive to the DFA was also
In Holy See,[42] thisCourt reiterated the oft-cited doctrine that the emphasized in this Courts ruling in Deutsche Gesellscha
determination by the Executive that an entity is entitled to sovereign or
diplomatic immunity is a political question conclusive upon the courts, to It is to be recalled that the Labor Arbiter, in both of his rulings, noted
wit that it was imperative for petitioners to secure from the Department of
In Public International Law, when a state or international agency wishes Foreign Affairs a certification of respondents diplomatic status and
to plead sovereign or diplomatic immunity in a foreign court, it requests entitlement to diplomatic privileges including immunity from suits. The
the Foreign Office of the state where it is sued to convey to the court requirement might not necessarily be imperative. However, had GTZ
that said defendant is entitled to immunity. obtained such certification from the DFA, it would have provided
xxx xxx xxx factual basis for its claim of immunity that would, at the very least,
establish a disputable evidentiary presumption that the foreign party
In the Philippines, the practice is for the foreign government or the is indeed immune which the opposing party will have to overcome
international organization to first secure an executive endorsement with its own factual evidence. We do not see why GTZ could not have
of its claim of sovereign or diplomatic immunity. But how the secured such certification or endorsement from the DFA for purposes
Philippine Foreign Office conveys its endorsement to the courts of this case. Certainly, it would have been highly prudential for GTZ to
varies. In International Catholic Migration Commission v. Calleja, 190 obtain the same after the Labor Arbiter had denied the motion to
SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter dismiss. Still, even at this juncture, we do not see any evidence that the
DFA, the office of the executive branch in charge of our diplomatic amended by the rest of this Clause. The appointing
relations, has indeed endorsed GTZs claim of immunity. It may be authority shall be Hong
possible that GTZ tried, but failed to secure such certification, due to Kong International Arbitration Center. The place of
the same concerns that we have discussed herein. arbitration shall be in Hong Kong at Hong Kong
International Arbitration Center (HKIAC).
Would the fact that the Solicitor General has endorsed GTZs claim
of States immunity from suit before this Court sufficiently substitute
for the DFA certification? Note that the rule in public international Under the above provisions, if any dispute arises between
law quoted in Holy See referred to endorsement by the Foreign Northrail and CNMEG, both parties are bound to submit the matter to
Office of the State where the suit is filed, such foreign office in the the HKIAC for arbitration. In case the HKIAC makes an arbitral award in
Philippines being the Department of Foreign Affairs. Nowhere in the favor of Northrail, its enforcement in the Philippines would be subject
Comment of the OSG is it manifested that the DFA has endorsed to the Special Rules on Alternative Dispute Resolution (Special Rules).
GTZs claim, or that the OSG had solicited the DFAs views on the Rule 13 thereof provides for the Recognition and Enforcement of a
issue. The arguments raised by the OSG are virtually the same as the Foreign Arbitral Award. Under Rules 13.2 and 13.3 of the Special Rules,
arguments raised by GTZ without any indication of any special and the party to arbitration wishing to have an arbitral award recognized
distinct perspective maintained by the Philippine government on the and enforced in the Philippines must petition the proper regional trial
issue. The Comment filed by the OSG does not inspire the same court (a) where the assets to be attached or levied upon is located; (b)
degree of confidence as a certification from the DFA would have where the acts to be enjoined are being performed; (c) in the principal
elicited.[46] (Emphasis supplied. place of business in the Philippines of any of the parties; (d) if any of the
parties is an individual, where any of those individuals resides; or (e) in
In the case at bar, CNMEG offers the Certification executed by the the National Capital Judicial Region.
Economic and Commercial Office of the Embassy of the Peoples
Republic of China, stating that the Northrail Project is in pursuit of a From all the foregoing, it is clear that CNMEG has agreed that
sovereign activity.[47]Surely, this is not the kind of certification that can it will not be afforded immunity from suit. Thus, the courts have the
establish CNMEGs entitlement to immunity from suit, as Holy competence and jurisdiction to ascertain the validity of the Contract
See unequivocally refers to the determination of the Foreign Office of Agreement.
the state where it is sued. Second issue: Whether the Contract Agreement is an
Further, CNMEG also claims that its immunity from suit has executive agreement
the executive endorsement of both the OSG and the Office of the
Government Corporate Counsel (OGCC), which must be respected by Article 2(1) of the Vienna Convention on the Law of Treaties
the courts. However, as expressly enunciated in Deutsche Gesellschaft, (Vienna Convention) defines a treaty as follows:
this determination by the OSG, or by the OGCC for that matter, does
not inspire the same degree of confidence as a DFA certification. Even [A]n international agreement concluded
with a DFA certification, however, it must be remembered that this between States in written form and governed by
Court is not precluded from making an inquiry into the intrinsic international law, whether embodied in a single
correctness of such certification. instrument or in two or more related instruments
D. An agreement to submit any dispute to arbitration and whatever its particular designation.
may be construed as an implicit waiver of immunity from suit.

In the United States, the Foreign Sovereign Immunities Act of In Bayan Muna v. Romulo, this Court held that an executive
1976 provides for a waiver by implication of state immunity. In the said agreement is similar to a treaty, except that the former (a) does not
law, the agreement to submit disputes to arbitration in a foreign require legislative concurrence; (b) is usually less formal; and (c) deals
country is construed as an implicit waiver of immunity from suit. with a narrower range of subject matters.[50]
Although there is no similar law in the Philippines, there is reason to
apply the legal reasoning behind the waiver in this case. Despite these differences, to be considered an executive
agreement, the following three requisites provided under the Vienna
The Conditions of Contract,[48] which is an integral part of the Convention must nevertheless concur: (a) the agreement must be
Contract Agreement,[49] states: between states; (b) it must be written; and (c) it must governed by
international law. The first and the third requisites do not obtain in the
33. SETTLEMENT OF DISPUTES AND ARBITRATION case at bar.

33.1. Amicable Settlement A. CNMEG is neither a government nor a government


agency.
Both parties shall attempt to amicably settle all disputes or
controversies arising from this Contract before the
commencement of arbitration. The Contract Agreement was not concluded between
the Philippines and China, but between Northrail and CNMEG.[51] By
33.2. Arbitration the terms of the Contract Agreement, Northrail is a government-owned
or -controlled corporation, while CNMEG is a corporation duly
All disputes or controversies arising from organized and created under the laws of the Peoples Republic of
this Contract which cannot be settled between the China.[52] Thus, both Northrail and CNMEG entered into the Contract
Employer and the Contractor shall be submitted to Agreement as entities with personalities distinct and separate from the
arbitration in accordance with the UNCITRAL Philippine and Chinese governments, respectively.
Arbitration Rules at present in force and as may be
Neither can it be said that CNMEG acted as agent of the
Chinese government. As previously discussed, the fact that Amb. Wang,
in his letter dated 1 October 2003,[53] described CNMEG as a state
corporation and declared its designation as the Primary Contractor in
the Northrail Project did not mean it was to perform sovereign
functions on behalf of China. That label was only descriptive of its
nature as a state-owned corporation, and did not preclude it from
engaging in purely commercial or proprietary ventures.

B. The Contract Agreement is to be governed by


Philippine law.

Article 2 of the Conditions of Contract,[54] which under Article


1.1 of the Contract Agreement is an integral part of the latter, states:

APPLICABLE LAW AND GOVERNING


LANGUAGE

The contract shall in all respects be read


and construed in accordance with the laws of
the Philippines.

The contract shall be written in English


language. All correspondence and other
documents pertaining to the Contract which are
exchanged by the parties shall be written in English
language.

Since the Contract Agreement explicitly provides that


Philippine law shall be applicable, the parties have effectively conceded
that their rights and obligations thereunder are not governed by
international law.

It is therefore clear from the foregoing reasons that the


Contract Agreement does not partake of the nature of an executive
agreement. It is merely an ordinary commercial contract that can be
questioned before the local courts.

WHEREFORE, the instant Petition is DENIED. Petitioner China


National Machinery & Equipment Corp. (Group) is not entitled to
immunity from suit, and the Contract Agreement is not an executive
agreement. CNMEGs prayer for the issuance of a TRO and/or Writ of
Preliminary Injunction is DENIED for being moot and academic. This
case is REMANDED to the Regional Trial Court of Makati, Branch 145,
for further proceedings as regards the validity of the contracts subject
of Civil Case No. 06-203.

No pronouncement on costs of suit.

SO ORDERED.
of section 1363 (f) of the Revised Administrative Code, in relation to
[G.R. No. L-14279. October 31, 1961.] the aforementioned circulars of the Central Bank. In due course, the
Collector of Customs of Manila rendered a decision on September 4,
THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF 1956, declaring said goods forfeited to the Government and — the
CUSTOMS, Petitioners, v. EASTERN SEA TRADING, Respondent. goods having been, in the meantime, released to the consignees on
surely bonds, filed by the same, as principal, and the Alto Surety &
Solicitor General, for Petitioners. Insurance Co., Inc., as surety, in compliance with orders of the Court
of First Instance of Manila, in Civil Cases Nos. 23942 and 23852
Valentin C . Gutierrez for Respondent. thereof — directing that the amounts of said bonds be paid, by said
principal and surety, jointly and severally, to the Bureau of Customs,
within thirty (30) days from notice.
SYLLABUS
On appeal taken by the consignee, said decision was affirmed by the
Commissioner of Customs on December 27, 1956. Subsequently, the
1. IMPORT AND EXPORT; CENTRAL BANK; AUTHORITY TO REGULATE consignee sought a review of the decision of said two (2) officers by
NO-DOLLAR IMPORTS. — The Central Bank has authority to regulate the Court of Tax Appeals, which reversed the decision of the
no-dollar imports, because its broad powers under the charter, to Commissioner of Customs and ordered that the aforementioned
maintain monetary stability and to preserve the international value bonds be cancelled and withdrawn. Hence, the present petition of
of the currency, under section 2 of Republic Act No. 265, in relation the Commissioner of Customs for review of the decision of the Court
to section 14 of said Act — authorizing the bank to issue such rules of Tax Appeals.
and regulations as it may consider necessary for the effective
discharge of the responsibilities and the exercise of the power The latter is based upon the following premises, namely: that the
assigned to the Monetary Board and to the Central Bank — connote Central Bank has no authority to regulate transactions not involving
the authority to regulate no-dollar imports, owing to the influence foreign exchange; that the shipments in question are in the nature
and effect that the same may and do have upon the stability of the of "no-dollar" imports; that, as such, the aforementioned shipments
peso and its international value. do not involve foreign exchange; that, insofar as a Central Bank
license and a certificate authorizing the importation or release of the
2. ID.; ID.; ID.; ISSUANCE OF IMPORT LICENSES NOT VESTED goods under consideration are required by Central Bank Circulars
EXCLUSIVELY UPON IMPORT CONTROL COMMISSION. — The Nos. 44 and 45, the latter are null and void; and that the seizure and
authority to issue import licenses was not vested exclusively upon forfeiture of the goods imported from Japan cannot be justified
the Import Control Commission, because Executive Order No. 328 under Executive Order No. 328, 1 not only because the same seeks
provided for export or import licenses "from the Central Bank of the to implement an executive agreement 2 — extending the effectivity
Philippines or the Import Control Administration" or Commission. of our Trade 3 and Financial Agreements 4 with Japan — which
The latter was created only to perform the task of implementing (executive agreement), it believed, is of dubious validity, but, also
certain objectives of the Monetary Board and the Central Bank, because there is no governmental agency authorized to issue the
which otherwise had to be undertaken by these (2) agencies. Upon import license required by the aforementioned executive order.
the abolition of said Commission, the duty to provide means and
ways for the accomplishment of said objectives had merely to be The authority of the Central Bank to regulate no-dollar imports and
discharged directly by the Monetary Board and the Central Bank, the validity of the aforementioned Circulars Nos. 44 and 45 have
even if the aforementioned Executive Order had been silent already been passed upon and repeatedly upheld by this Court
thereon. (Pascual v. Commissioner of Customs, L-10979 [June 30, 1959];
Acting Commissioner of Customs v. Leuterio, L-9142 [October 17,
3. CONSTITUTIONAL LAW; EXECUTIVE AGREEMENTS; CONCURRENCE 1959]; Commissioner of Customs v. Pascual, L-9836 [November 18,
OF SENATE NOT REQUIRED. — While the concurrence of the Senate 1959]; Commissioner of Customs v. Serree Investment Co., L-12007
is required by the Constitution in the making of "treaties" [May 16, 1960]; Commissioner of Customs v. Serree Investment Co.,
(Constitution of the Philippines, Article VII, Section 10 [7], "executive L-14274 [November 29, 1960]), for the reason that the broad
agreements" may be validly entered into without such concurrence. powers of the Central Bank, under its charter, to maintain our
monetary stability and to preserve the international value of our
currency, under section 2 of Republic Act No. 265, in relation to
DECISION section 14 of said Act — authorizing the bank to issue such rules and
regulations as it may consider necessary for the effective discharge
of the responsibilities and the exercise of the powers assigned to the
CONCEPCION, J.: Monetary Board and to the Central Bank — connote the authority to
regulate no-dollar imports, owing to the influence and effect that
the same may and do have upon the stability of our peso and its
Petition for review of a judgment of the Court of Tax Appeals international value.
reversing a decision of the Commissioner of Customs.
The Court of Tax Appeals entertained doubts on the legality of the
Respondent Eastern Sea Trading was the consignee of several executive agreement sought to be implemented by Executive Order
shipments of onion and garlic which arrived at the Port of Manila No. 328, owing to the fact that our Senate had not concurred in the
from August 25 to September 7, 1954. Some shipments came from making of said executive agreement. The concurrence of said House
Japan and others from Hongkong. Inasmuch as none of the of Congress is required by our fundamental law in the making of
shipments had the certificate required by Central Bank Circulars Nos. "treaties" (Constitution of the Philippines, Article VII, Section 10[7]),
44 and 45 for the release thereof, the goods thus imported were which are, however, distinct and different from "executive
seized and subjected to forfeiture proceedings for alleged violations agreements", which may be validly entered into without such
concurrence. are commonly referred to as executive agreements and are no less
common in our scheme of government than are the more formal
"Treaties are formal documents which require ratification with the instruments — treaties and conventions. They sometimes take the
approval of two-thirds of the Senate. Executive agreements become form of exchanges of notes and at other times that of more formal
binding through executive action without the need of a vote by the documents denominated ‘agreements’ or ‘protocols’. The point
Senate or by Congress. where ordinary correspondence between this and other
governments ends and agreements — whether denominated
". . . the right of the Executive to enter into binding agreements executive agreements or exchanges of notes or otherwise — begin,
without the necessity of subsequent Congressional approval has may sometimes be difficult of ready ascertainment. It would be
been confirmed by long usage. From the earliest days of our history useless to undertake to discuss here the large variety of executive
we have entered into executive agreements covering such subjects agreements as such, concluded from time to time. Hundreds of
as commercial and consular relations, most-favored-nation rights, executive agreements, other than those entered into under the
patent rights, trademark and copyright protection, postal and trade-agreements act, have been negotiated with foreign
navigation arrangements and the settlement of claims. The validity governments. . . . It would seem to be sufficient, in order to show
of these has never been seriously questioned by our courts. that the trade agreements under the act of 1934 are not anomalous
in character, that they are not treaties, and that they have abundant
precedent in our history, to refer to certain classes of agreements
"Agreements with respect to the registration of trade-marks have heretofore entered into by the Executive without the approval of
been concluded by the Executive with various countries under the the Senate. They cover such subjects as the inspection of vessels,
Act of Congress of March 3, 1881 (21 Stat. 502). Postal conventions navigation dues, income tax on shipping profits, the admission of
regulating the reciprocal treatment of mail matters, money orders, civil aircraft, customs matters, and commercial relations generally,
parcel post, etc., have been concluded by the Post-master General international claims, postal matters, the registration of trade-marks
with various countries under authorization by Congress beginning and copyrights, etc. Some of them were concluded not by specific
with the Act of February 20, 1792 (I Stat. 232, 239). Ten executive congressional authorization but in conformity with policies declared
agreements were concluded by the President pursuant to the in acts of Congress with respect to the general subject matter, such
McKinley Tariff Act of 1890 (26 Stat. 567, 612), and nine such as tariff acts; while still others, particularly those with respect to the
agreements were entered into under the Dingley Tariff Act of 1897 settlement of claims against foreign governments, were concluded
(30 Stat. 151, 203, 214). A very much larger number of agreements, independently of any legislation." (39 Columbia Law Review, pp.
along the lines of the one with Rumania previously referred to, 651, 755.)
providing for most-favored-nation treatment in customs and related
matters have been entered into since the passage of the Tariff Act of The validity of the executive agreement in question is thus patent. In
1922, not by direction of the Act but in harmony with it. fact, the so-called Parity Rights provided for in the Ordinance
Appended to our Constitution were, prior thereto, the subject of an
x x x executive agreement, made without the concurrence of two-thirds
(2/3) of the Senate of the United States.

"International agreements involving political issues or changes of Lastly, the lower court held that it would be unreasonable to require
national policy and those involving international arrangements of a from respondent-appellee an import license when the Import
permanent character usually take the form of treaties. But Control Commission was no longer in existence and, hence, there
international agreements embodying adjustments of detail carrying was, said court believed, no agency authorized to issue the
out well-established national policies and traditions and those aforementioned license. This conclusion is untenable, for the
involving arrangements of a more or less temporary nature usually authority to issue the aforementioned licenses was not vested
take the form of executive agreements. exclusively upon the Import Control Commission or Administration.
Executive Order No. 328 provided for export or import licenses
x x x "from the Central Bank of the Philippines or the Import Control
Administration" or Commission. Indeed, the latter was created only
to perform the task of implementing certain objectives of the
"Furthermore, the United States Supreme Court has expressly Monetary Board and the Central Bank, which otherwise had to be
recognized the validity and constitutionality of executive undertaken by these two (2) agencies. Upon the abolition of said
agreements entered into without Senate approval." (39 Columbia Commission, the duty to provide means and ways for the
Law Review, pp. 753-754) (See, also, U.S. v. Curtis-Wright Export accomplishment of said objectives had merely to be discharged
Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. v. Belmont, 301 U.S. directly by the Monetary Board and the Central Bank, even if the
324, 81 L. ed. 1134; U.S. v. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic v. aforementioned Executive Order had been silent thereon.
U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15, pp. 1905-1906;
California Law Review, Vol. 25, pp. 670-675; Hyde on International WHEREFORE, the decision appealed from is hereby reversed and
Law [Revised Edition], Vol. 2, pp. 1405, 1416-1418; Willoukhby on another one shall be entered affirming that of the Commissioner of
the U.S. Constitutional Law, Vol. I [2d. ed. ], pp. 537-540; Moore, Customs, with costs against respondent-appellee, Eastern Sea
International Law Digest, Vol. V, pp. 210-218; Hackworth, Trading. It is so ordered.
International Law Digest, Vol. V, pp. 390-407). (Emphasis supplied.)
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L.,
In this connection, Francis B. Sayre, former U. S. High Commissioner Paredes, Dizon and De Leon, JJ., concur.
to the Philippines, said in his work on "The Constitutionality of Trade
Agreement Acts" :jgc:chanrobles.com.ph Barrera, J., took no part.

"Agreements concluded by the President which fall short of treaties


[G.R. No. 138570. October 10, 2000] JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZON-
AVENCEA, ROLANDO SIMBULAN, PABLITO V. SANIDAD,
MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P.
ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG,
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR
BISHOP TOMAS MILLAMENA (Iglesia Filipina BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.
Independiente), BISHOP ELMER BOLOCAN (United Church (MABINI), petitioners, vs. THE EXECUTIVE SECRETARY, THE
of Christ of the Phil.), DR. REYNALDO LEGASCA, MD, SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF
KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG MAYO NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B.
UNO, GABRIELA, PROLABOR, and the PUBLIC INTEREST FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO G.
LAW CENTER, petitioners, vs. EXECUTIVE SECRETARY BIAZON, AND ALL OTHER PERSONS ACTING THEIR
RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION
DOMINGO SIAZON, DEFENSE SECRETARY ORLANDO IN RELATION TO THE VISITING FORCES AGREEMENT
MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE (VFA), respondents.
PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN
DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO DECISION
BIAZON, and SENATOR FRANCISCO TATAD, respondents.
BUENA, J.:

Confronting the Court for resolution in the instant consolidated


[G.R. No. 138572. October 10, 2000] petitions for certiorari and prohibition are issues relating to, and
borne by, an agreement forged in the turn of the last century between
the Republic of the Philippines and the United States of America -the
Visiting Forces Agreement.
PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), The antecedents unfold.
EXEQUIEL B. GARCIA, AMADOGAT INCIONG, CAMILO L.
SABIO, AND RAMON A. GONZALES, petitioners, vs. HON. On March 14, 1947, the Philippines and the United States of
RONALDO B. ZAMORA, as Executive Secretary, HON. America forged a Military Bases Agreement which formalized, among
ORLANDO MERCADO, as Secretary of National Defense, others, the use of installations in the Philippine territory by United
and HON. DOMINGO L. SIAZON, JR., as Secretary of States military personnel. To further strengthen their defense and
Foreign Affairs, respondents. security relationship, the Philippines and the United States entered
into a Mutual Defense Treaty on August 30, 1951. Under the treaty,
the parties agreed to respond to any external armed attack on their
territory, armed forces, public vessels, and aircraft.[1]
[G.R. No. 138587. October 10, 2000] In view of the impending expiration of the RP-US Military Bases
Agreement in 1991, the Philippines and the United States negotiated
for a possible extension of the military bases agreement. On
September 16, 1991, the Philippine Senate rejected the proposed RP-
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEA US Treaty of Friendship, Cooperation and Security which, in effect,
III, petitioners, vs. JOSEPH E. ESTRADA, RONALDO B. would have extended the presence of US military bases in the
ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B. Philippines.[2] With the expiration of the RP-US Military Bases
MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, Agreement, the periodic military exercises conducted between the
BLAS F. OPLE and RODOLFO G. BIAZON, respondents. two countries were held in abeyance. Notwithstanding, the defense
and security relationship between the Philippines and the United
States of America continued pursuant to the Mutual Defense Treaty.

On July 18, 1997, the United States panel, headed by US


[G.R. No. 138680. October 10, 2000] Defense Deputy Assistant Secretary for Asia Pacific Kurt Campbell,
met with the Philippine panel, headed by Foreign Affairs
Undersecretary Rodolfo Severino Jr., to exchange notes on the
complementing strategic interests of the United States and the
INTEGRATED BAR OF THE PHILIPPINES, Represented by its National Philippines in the Asia-Pacific region. Both sides discussed, among
President, Jose Aguila Grapilon, petitioners, vs. JOSEPH other things, the possible elements of the Visiting Forces
EJERCITO ESTRADA, in his capacity as President, Republic Agreement (VFA for brevity). Negotiations by both panels on the VFA
of the Philippines, and HON. DOMINGO SIAZON, in his led to a consolidated draft text, which in turn resulted to a final series
capacity as Secretary of Foreign Affairs, respondents. of conferences and negotiations[3] that culminated in Manila on
January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos
approved the VFA, which was respectively signed by public
respondent Secretary Siazon and Unites States Ambassador Thomas
[G.R. No. 138698. October 10, 2000] Hubbard on February 10, 1998.

On October 5, 1998, President Joseph E. Estrada, through


respondent Secretary of Foreign Affairs, ratified the VFA.[4]
On October 6, 1998, the President, acting through respondent 1. The Government of the Philippines shall facilitate the
Executive Secretary Ronaldo Zamora, officially transmitted to the admission of United States personnel and their departure
Senate of the Philippines,[5]the Instrument of Ratification, the letter from the Philippines in connection with activities covered
of the President[6] and the VFA, for concurrence pursuant to Section by this agreement.
21, Article VII of the 1987 Constitution. The Senate, in turn, referred
the VFA to its Committee on Foreign Relations, chaired by Senator 2. United States military personnel shall be exempt from
Blas F. Ople, and its Committee on National Defense and Security, passport and visa regulations upon entering and departing
chaired by Senator Rodolfo G. Biazon, for their joint consideration and the Philippines.
recommendation.Thereafter, joint public hearings were held by the
two Committees.[7]
3. The following documents only, which shall be presented on
On May 3, 1999, the Committees submitted Proposed Senate demand, shall be required in respect of United States
Resolution No. 443[8] recommending the concurrence of the Senate military personnel who enter the Philippines:
to the VFA and the creation of a Legislative Oversight Committee to
oversee its implementation. Debates then ensued. (a) personal identity card issued by the appropriate
United States authority showing full name, date of
On May 27, 1999, Proposed Senate Resolution No. 443 was
birth, rank or grade and service number (if any),
approved by the Senate, by a two-thirds (2/3) vote[9] of its members.
branch of service and photograph;
Senate Resolution No. 443 was then re-numbered as Senate
Resolution No. 18.[10]
(b) individual or collective document issued by the
On June 1, 1999, the VFA officially entered into force after an appropriate United States authority, authorizing
Exchange of Notes between respondent Secretary Siazon and United the travel or visit and identifying the individual or
States Ambassador Hubbard. group as United States military personnel; and
The VFA, which consists of a Preamble and nine (9) Articles,
provides for the mechanism for regulating the circumstances and (c) the commanding officer of a military aircraft or vessel
conditions under which US Armed Forces and defense personnel may shall present a declaration of health, and when
be present in the Philippines, and is quoted in its full text, hereunder: required by the cognizant representative of the
Government of the Philippines, shall conduct a
quarantine inspection and will certify that the
Article I
aircraft or vessel is free from quarantinable
Definitions
diseases. Any quarantine inspection of United
States aircraft or United States vessels or cargoes
As used in this Agreement, United States personnel means thereon shall be conducted by the United States
United States military and civilian personnel temporarily in the commanding officer in accordance with the
Philippines in connection with activities approved by the international health regulations as promulgated by
Philippine Government. the World Health Organization, and mutually
agreed procedures.
Within this definition:
4. United States civilian personnel shall be exempt from visa
1. The term military personnel refers to military members requirements but shall present, upon demand, valid
of the United States Army, Navy, Marine Corps, Air passports upon entry and departure of the Philippines.
Force, and Coast Guard.
5. If the Government of the Philippines has requested the
2. The term civilian personnel refers to individuals who
removal of any United States personnel from its territory,
are neither nationals of, nor ordinary residents in the
the United States authorities shall be responsible for
Philippines and who are employed by the United
receiving the person concerned within its own territory
States armed forces or who are accompanying the
or otherwise disposing of said person outside of the
United States armed forces, such as employees of the
Philippines.
American Red Cross and the United Services
Organization.
Article IV
Driving and Vehicle Registration
Article II
Respect for Law
1. Philippine authorities shall accept as valid, without test or
fee, a driving permit or license issued by the appropriate
It is the duty of the United States personnel to respect the
United States authority to United States personnel for the
laws of the Republic of the Philippines and to abstain from any
operation of military or official vehicles.
activity inconsistent with the spirit of this agreement, and, in
particular, from any political activity in the Philippines. The
Government of the United States shall take all measures 2. Vehicles owned by the Government of the United States
within its authority to ensure that this is done. need not be registered, but shall have appropriate
markings.
Article III
Entry and Departure Article V
Criminal Jurisdiction
1. Subject to the provisions of this article: discipline among their forces, Philippine
authorities will, upon request by the United
(a) Philippine authorities shall have jurisdiction over States, waive their primary right to exercise
United States personnel with respect to offenses jurisdiction except in cases of particular
committed within the Philippines and punishable importance to the Philippines. If the Government
under the law of the Philippines. of the Philippines determines that the case is of
particular importance, it shall communicate such
(b) United States military authorities shall have the determination to the United States authorities
right to exercise within the Philippines all criminal within twenty (20) days after the Philippine
and disciplinary jurisdiction conferred on them by authorities receive the United States request.
the military law of the United States over United
States personnel in the Philippines. (e) When the United States military commander
determines that an offense charged by authorities
2. (a) Philippine authorities exercise exclusive of the Philippines against United states personnel
jurisdiction over United States personnel arises out of an act or omission done in the
with respect to offenses, including offenses performance of official duty, the commander will
relating to the security of the Philippines, issue a certificate setting forth such
punishable under the laws of the determination. This certificate will be transmitted
Philippines, but not under the laws of the to the appropriate authorities of the Philippines
United States. and will constitute sufficient proof of
performance of official duty for the purposes of
(b) United States authorities exercise exclusive
paragraph 3(b)(2) of this Article. In those cases
jurisdiction over United States personnel
where the Government of the Philippines believes
with respect to offenses, including offenses
the circumstances of the case require a review of
relating to the security of the United States,
the duty certificate, United States military
punishable under the laws of the United
authorities and Philippine authorities shall consult
States, but not under the laws of the
immediately. Philippine authorities at the highest
Philippines.
levels may also present any information bearing
(c) For the purposes of this paragraph and on its validity. United States military authorities
paragraph 3 of this article, an offense shall take full account of the Philippine position.
relating to security means: Where appropriate, United States military
authorities will take disciplinary or other action
against offenders in official duty cases, and notify
(1) treason;
the Government of the Philippines of the actions
taken.
(2) sabotage, espionage or violation of any law
relating to national defense. (f) If the government having the primary right does
not exercise jurisdiction, it shall notify the
3. In cases where the right to exercise jurisdiction is authorities of the other government as soon as
possible.
concurrent, the following rules shall apply:

(a) Philippine authorities shall have the primary right (g) The authorities of the Philippines and the United
to exercise jurisdiction over all offenses States shall notify each other of the disposition of
committed by United States personnel, except in all cases in which both the authorities of the
cases provided for in paragraphs 1(b), 2 (b), and 3 Philippines and the United States have the right to
exercise jurisdiction.
(b) of this Article.

(b) United States military authorities shall have the 4. Within the scope of their legal competence, the
authorities of the Philippines and United States shall
primary right to exercise jurisdiction over United
States personnel subject to the military law of the assist each other in the arrest of United States
personnel in the Philippines and in handling them
United States in relation to.
over to authorities who are to exercise jurisdiction in
(1) offenses solely against the property or security accordance with the provisions of this article.
of the United States or offenses solely against
the property or person of United States 5. United States military authorities shall promptly notify
personnel; and Philippine authorities of the arrest or detention of
United States personnel who are subject of Philippine
(2) offenses arising out of any act or omission primary or exclusive jurisdiction. Philippine
done in performance of official duty. authorities shall promptly notify United States
military authorities of the arrest or detention of any
(c) The authorities of either government may request United States personnel.
the authorities of the other government to waive
their primary right to exercise jurisdiction in a 6. The custody of any United States personnel over whom
particular case. the Philippines is to exercise jurisdiction shall
immediately reside with United States military
(d) Recognizing the responsibility of the United States authorities, if they so request, from the commission
military authorities to maintain good order and of the offense until completion of all judicial
proceedings. United States military authorities shall, (g) To communicate promptly with and to be visited
upon formal notification by the Philippine authorities regularly by United States authorities, and to have
and without delay, make such personnel available to such authorities present at all judicial
those authorities in time for any investigative or proceedings. These proceedings shall be public
judicial proceedings relating to the offense with unless the court, in accordance with Philippine
which the person has been charged in extraordinary laws, excludes persons who have no role in the
cases, the Philippine Government shall present its proceedings.
position to the United States Government regarding
custody, which the United States Government shall 10. The confinement or detention by Philippine
take into full account. In the event Philippine judicial authorities of United States personnel shall be carried
proceedings are not completed within one year, the out in facilities agreed on by appropriate Philippine
United States shall be relieved of any obligations and United States authorities. United States
under this paragraph. The one-year period will not Personnel serving sentences in the Philippines shall
include the time necessary to appeal. Also, the one- have the right to visits and material assistance.
year period will not include any time during which 11. United States personnel shall be subject to trial only
scheduled trial procedures are delayed because in Philippine courts of ordinary jurisdiction, and shall
United States authorities, after timely notification by not be subject to the jurisdiction of Philippine military
Philippine authorities to arrange for the presence of or religious courts.
the accused, fail to do so.

7. Within the scope of their legal authority, United States Article VI


and Philippine authorities shall assist each other in Claims
the carrying out of all necessary investigation into
offenses and shall cooperate in providing for the 1. Except for contractual arrangements, including United
attendance of witnesses and in the collection and States foreign military sales letters of offer and
production of evidence, including seizure and, in acceptance and leases of military equipment, both
proper cases, the delivery of objects connected with governments waive any and all claims against each
an offense. other for damage, loss or destruction to property of
each others armed forces or for death or injury to
8. When United States personnel have been tried in
their military and civilian personnel arising from
accordance with the provisions of this Article and
activities to which this agreement applies.
have been acquitted or have been convicted and are
serving, or have served their sentence, or have had 2. For claims against the United States, other than
their sentence remitted or suspended, or have been contractual claims and those to which paragraph 1
pardoned, they may not be tried again for the same applies, the United States Government, in accordance
offense in the Philippines. Nothing in this paragraph, with United States law regarding foreign claims, will
however, shall prevent United States military pay just and reasonable compensation in settlement
authorities from trying United States personnel for of meritorious claims for damage, loss, personal
any violation of rules of discipline arising from the act injury or death, caused by acts or omissions of United
or omission which constituted an offense for which States personnel, or otherwise incident to the non-
they were tried by Philippine authorities. combat activities of the United States forces.
9. When United States personnel are detained, taken into
custody, or prosecuted by Philippine authorities, they Article VII
shall be accorded all procedural safeguards Importation and Exportation
established by the law of the Philippines. At the
minimum, United States personnel shall be entitled: 1. United States Government equipment, materials,
supplies, and other property imported into or
(a) To a prompt and speedy trial;
acquired in the Philippines by or on behalf of the
(b) To be informed in advance of trial of the specific United States armed forces in connection with
charge or charges made against them and to have activities to which this agreement applies, shall be
reasonable time to prepare a defense; free of all Philippine duties, taxes and other similar
charges. Title to such property shall remain with the
(c) To be confronted with witnesses against them and United States, which may remove such property from
to cross examine such witnesses; the Philippines at any time, free from export duties,
taxes, and other similar charges. The exemptions
(d) To present evidence in their defense and to have
provided in this paragraph shall also extend to any
compulsory process for obtaining witnesses;
duty, tax, or other similar charges which would
(e) To have free and assisted legal representation of otherwise be assessed upon such property after
their own choice on the same basis as nationals of importation into, or acquisition within, the
the Philippines; Philippines. Such property may be removed from the
Philippines, or disposed of therein, provided that
(f) To have the service of a competent interpreter; disposition of such property in the Philippines to
and persons or entities not entitled to exemption from
applicable taxes and duties shall be subject to
payment of such taxes, and duties and prior approval We have simplified the issues raised by the petitioners into the
of the Philippine Government. following:

2. Reasonable quantities of personal baggage, personal I


effects, and other property for the personal use of
United States personnel may be imported into and Do petitioners have legal standing as concerned citizens,
used in the Philippines free of all duties, taxes and taxpayers, or legislators to question the constitutionality of
other similar charges during the period of their the VFA?
temporary stay in the Philippines. Transfers to
persons or entities in the Philippines not entitled to
II
import privileges may only be made upon prior
approval of the appropriate Philippine authorities
including payment by the recipient of applicable Is the VFA governed by the provisions of Section 21, Article VII
duties and taxes imposed in accordance with the laws or of Section 25, Article XVIII of the Constitution?
of the Philippines. The exportation of such property
and of property acquired in the Philippines by United III
States personnel shall be free of all Philippine duties,
taxes, and other similar charges. Does the VFA constitute an abdication of Philippine sovereignty?

Article VIII a. Are Philippine courts deprived of their jurisdiction to


Movement of Vessels and Aircraft hear and try offenses committed by US military
personnel?
1. Aircraft operated by or for the United States armed
forces may enter the Philippines upon approval of the b. Is the Supreme Court deprived of its jurisdiction over
Government of the Philippines in accordance with offenses punishable by reclusion perpetua or higher?
procedures stipulated in implementing
IV
arrangements.

2. Vessels operated by or for the United States armed Does the VFA violate:
forces may enter the Philippines upon approval of the
Government of the Philippines. The movement of a. the equal protection clause under Section 1, Article III
vessels shall be in accordance with international of the Constitution?
custom and practice governing such vessels, and such
agreed implementing arrangements as necessary. b. the Prohibition against nuclear weapons under Article
II, Section 8?
3. Vehicles, vessels, and aircraft operated by or for the
United States armed forces shall not be subject to the c. Section 28 (4), Article VI of the Constitution granting
payment of landing or port fees, navigation or over the exemption from taxes and duties for the
flight charges, or tolls or other use charges, including equipment, materials supplies and other properties
light and harbor dues, while in the Philippines. imported into or acquired in the Philippines by, or on
Aircraft operated by or for the United States armed behalf, of the US Armed Forces?
forces shall observe local air traffic control
regulations while in the Philippines. Vessels owned or
operated by the United States solely on United States LOCUS STANDI
Government non-commercial service shall not be
subject to compulsory pilotage at Philippine ports.
At the outset, respondents challenge petitioners standing to
Article IX sue, on the ground that the latter have not shown any interest in the
Duration and Termination case, and that petitioners failed to substantiate that they have
sustained, or will sustain direct injury as a result of the operation of
This agreement shall enter into force on the date on which the the VFA.[12] Petitioners, on the other hand, counter that the validity
parties have notified each other in writing through the or invalidity of the VFA is a matter of transcendental importance
diplomatic channel that they have completed their which justifies their standing.[13]
constitutional requirements for entry into force. This
agreement shall remain in force until the expiration of 180 A party bringing a suit challenging the constitutionality of a law,
days from the date on which either party gives the other party act, or statute must show not only that the law is invalid, but also that
notice in writing that it desires to terminate the agreement. he has sustained or in is in immediate, or imminent danger of
sustaining some direct injury as a result of its enforcement, and not
merely that he suffers thereby in some indefinite way. He must show
Via these consolidated[11] petitions for certiorari and that he has been, or is about to be, denied some right or privilege to
prohibition, petitioners - as legislators, non-governmental which he is lawfully entitled, or that he is about to be subjected to
organizations, citizens and taxpayers - assail the constitutionality of some burdens or penalties by reason of the statute complained of.[14]
the VFA and impute to herein respondents grave abuse of discretion
in ratifying the agreement. In the case before us, petitioners failed to show, to the
satisfaction of this Court, that they have sustained, or are in danger
of sustaining any direct injury as a result of the enforcement of the
VFA. As taxpayers, petitioners have not established that the VFA This principle was reiterated in the subsequent cases
involves the exercise by Congress of its taxing or spending of Gonzales vs. COMELEC,[21] Daza vs. Singson,[22] and Basco vs. Phil.
powers.[15] On this point, it bears stressing that a taxpayers suit refers Amusement and Gaming Corporation,[23] where we emphatically
to a case where the act complained of directly involves the illegal held:
disbursement of public funds derived from taxation.[16] Thus,
in Bugnay Const. & Development Corp. vs. Laron[17], we held: Considering however the importance to the public of the case at bar,
and in keeping with the Courts duty, under the 1987 Constitution, to
x x x it is exigent that the taxpayer-plaintiff sufficiently show that he determine whether or not the other branches of the government
would be benefited or injured by the judgment or entitled to the have kept themselves within the limits of the Constitution and the
avails of the suit as a real party in interest. Before he can invoke the laws and that they have not abused the discretion given to them,
power of judicial review, he must specifically prove that he has the Court has brushed aside technicalities of procedure and has
sufficient interest in preventing the illegal expenditure of money taken cognizance of this petition. x x x
raised by taxation and that he will sustain a direct injury as a result
of the enforcement of the questioned statute or contract. It is not Again, in the more recent case of Kilosbayan vs. Guingona,
sufficient that he has merely a general interest common to all Jr.,[24] thisCourt ruled that in cases of transcendental importance, the
members of the public. Court may relax the standing requirements and allow a suit to
prosper even where there is no direct injury to the party claiming
Clearly, inasmuch as no public funds raised by taxation are the right of judicial review.
involved in this case, and in the absence of any allegation by
petitioners that public funds are being misspent or illegally expended, Although courts generally avoid having to decide a
petitioners, as taxpayers, have no legal standing to assail the legality constitutional question based on the doctrine of separation of
of the VFA. powers, which enjoins upon the departments of the government a
becoming respect for each others acts,[25] this Court nevertheless
Similarly, Representatives Wigberto Taada, Agapito Aquino and resolves to take cognizance of the instant petitions.
Joker Arroyo, as petitioners-legislators, do not possess the
requisite locus standi to maintain the present suit. While this Court,
in Phil. Constitution Association vs. Hon. Salvador APPLICABLE CONSTITUTIONAL PROVISION
Enriquez,[18] sustained the legal standing of a member of the Senate
and the House of Representatives to question the validity of a
presidential veto or a condition imposed on an item in an
One focal point of inquiry in this controversy is the
appropriation bull, we cannot, at this instance, similarly uphold
determination of which provision of the Constitution applies, with
petitioners standing as members of Congress, in the absence of a
clear showing of any direct injury to their person or to the institution regard to the exercise by the senate of its constitutional power to
concur with the VFA. Petitioners argue that Section 25, Article XVIII is
to which they belong.
applicable considering that the VFA has for its subject the presence of
Beyond this, the allegations of impairment of legislative power, foreign military troops in the Philippines. Respondents, on the
such as the delegation of the power of Congress to grant tax contrary, maintain that Section 21, Article VII should apply inasmuch
exemptions, are more apparent than real. While it may be true that as the VFA is not a basing arrangement but an agreement which
petitioners pointed to provisions of the VFA which allegedly impair involves merely the temporary visits of United States personnel
their legislative powers, petitioners failed however to sufficiently engaged in joint military exercises.
show that they have in fact suffered direct injury.
The 1987 Philippine Constitution contains two provisions
In the same vein, petitioner Integrated Bar of the Philippines requiring the concurrence of the Senate on treaties or international
(IBP) is stripped of standing in these cases. As aptly observed by the agreements. Section 21, Article VII, which herein respondents invoke,
Solicitor General, the IBP lacks the legal capacity to bring this suit in reads:
the absence of a board resolution from its Board of Governors
authorizing its National President to commence the present action.[19] No treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of the
Notwithstanding, in view of the paramount importance and the
Senate.
constitutional significance of the issues raised in the petitions, this
Court, in the exercise of its sound discretion, brushes aside the
procedural barrier and takes cognizance of the petitions, as we have Section 25, Article XVIII, provides:
done in the early Emergency Powers Cases,[20] where we had
occasion to rule: After the expiration in 1991 of the Agreement between the Republic
of the Philippines and the United States of America concerning
x x x ordinary citizens and taxpayers were allowed to question the Military Bases, foreign military bases, troops, or facilities shall not be
constitutionality of several executive orders issued by President allowed in the Philippines except under a treaty duly concurred in by
Quirino although they were involving only an indirect and general the senate and, when the Congress so requires, ratified by a
interest shared in common with the public. The Court dismissed the majority of the votes cast by the people in a national referendum
objection that they were not proper parties and ruled held for that purpose, and recognized as a treaty by the other
that transcendental importance to the public of these cases contracting State.
demands that they be settled promptly and definitely, brushing
aside, if we must, technicalities of procedure. We have since then Section 21, Article VII deals with treatise or international
applied the exception in many other cases.(Association of Small agreements in general, in which case, the concurrence of at least two-
Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 thirds (2/3) of all the Members of the Senate is required to make the
SCRA 343). (Underscoring Supplied)
subject treaty, or international agreement, valid and binding on the x x x that another basic principle of statutory construction mandates
part of the Philippines. This provision lays down the general rule on that general legislation must give way to a special legislation on the
treatise or international agreements and applies to any form of treaty same subject, and generally be so interpreted as to embrace only
with a wide variety of subject matter, such as, but not limited to, cases in which the special provisions are not applicable (Sto.
extradition or tax treatise or those economic in nature. All treaties or Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute
international agreements entered into by the Philippines, regardless prevails over a general statute (De Jesus vs. People, 120 SCRA 760)
of subject matter, coverage, or particular designation or appellation, and that where two statutes are of equal theoretical application to a
requires the concurrence of the Senate to be valid and effective. particular case, the one designed therefor specially should prevail
(Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
In contrast, Section 25, Article XVIII is a special provision that
applies to treaties which involve the presence of foreign military
bases, troops or facilities in the Philippines. Under this provision, the Moreover, it is specious to argue that Section 25, Article XVIII is
concurrence of the Senate is only one of the requisites to render inapplicable to mere transient agreements for the reason that there
compliance with the constitutional requirements and to consider the is no permanent placing of structure for the establishment of a
agreement binding on the Philippines. Section 25, Article XVIII further military base. On this score, the Constitution makes no distinction
requires that foreign military bases, troops, or facilities may be between transient and permanent. Certainly, we find nothing in
allowed in the Philippines only by virtue of a treaty duly concurred in Section 25, Article XVIII that requires foreign troops or facilities to be
by the Senate, ratified by a majority of the votes cast in a national stationed or placed permanently in the Philippines.
referendum held for that purpose if so required by Congress, and It is a rudiment in legal hermenuetics that when no distinction
recognized as such by the other contracting state. is made by law, the Court should not distinguish- Ubi lex non
It is our considered view that both constitutional provisions, far distinguit nec nos distinguire debemos.
from contradicting each other, actually share some common In like manner, we do not subscribe to the argument that
ground. These constitutional provisions both embody phrases in the Section 25, Article XVIII is not controlling since no foreign military
negative and thus, are deemed prohibitory in mandate and bases, but merely foreign troops and facilities, are involved in the
character. In particular, Section 21 opens with the clause No treaty x VFA. Notably, a perusal of said constitutional provision reveals that
x x, and Section 25 contains the phrase shall not be the proscription covers foreign military bases,
allowed. Additionally, in both instances, the concurrence of the troops, or facilities. Stated differently, this prohibition is not limited
Senate is indispensable to render the treaty or international to the entry of troops and facilities without any foreign bases being
agreement valid and effective. established. The clause does not refer to foreign military bases,
To our mind, the fact that the President referred the VFA to the troops, or facilities collectively but treats them as separate and
Senate under Section 21, Article VII, and that the Senate extended its independent subjects.The use of comma and the disjunctive
concurrence under the same provision, is immaterial. For in either word or clearly signifies disassociation and independence of one
case, whether under Section 21, Article VII or Section 25, Article XVIII, thing from the others included in the enumeration,[28] such that, the
the fundamental law is crystalline that the concurrence of the Senate provision contemplates three different situations - a military treaty
is mandatory to comply with the strict constitutional requirements. the subject of which could be either (a) foreign bases, (b) foreign
troops, or (c) foreign facilities - any of the three standing alone places
On the whole, the VFA is an agreement which defines the it under the coverage of Section 25, Article XVIII.
treatment of United States troops and personnel visiting the
Philippines. It provides for the guidelines to govern such visits of To this end, the intention of the framers of the Charter, as
military personnel, and further defines the rights of the United States manifested during the deliberations of the 1986 Constitutional
and the Philippine government in the matter of criminal jurisdiction, Commission, is consistent with this interpretation:
movement of vessel and aircraft, importation and exportation of MR. MAAMBONG. I just want to address a question or two to
equipment, materials and supplies. Commissioner Bernas.
Undoubtedly, Section 25, Article XVIII, which specifically deals This formulation speaks of three things: foreign military bases,
with treaties involving foreign military bases, troops, or facilities, troops or facilities. My first question is: If the country does
should apply in the instant case.To a certain extent and in a limited enter into such kind of a treaty, must it cover the three-
sense, however, the provisions of section 21, Article VII will find bases, troops or facilities-or could the treaty entered into
applicability with regard to the issue and for the sole purpose of cover only one or two?
determining the number of votes required to obtain the valid
concurrence of the Senate, as will be further discussed hereunder. FR. BERNAS. Definitely, it can cover only one. Whether it covers
only one or it covers three, the requirement will be the
It is a finely-imbedded principle in statutory construction that a same.
special provision or law prevails over a general one. Lex specialis
derogat generali. Thus, where there is in the same statute a MR. MAAMBONG. In other words, the Philippine government
particular enactment and also a general one which, in its most can enter into a treaty covering not bases but merely
comprehensive sense, would include what is embraced in the former, troops?
the particular enactment must be operative, and the general
FR. BERNAS. Yes.
enactment must be taken to affect only such cases within its general
language which are not within the provision of the particular MR. MAAMBONG. I cannot find any reason why the government
enactment.[26] can enter into a treaty covering only troops.
In Leveriza vs. Intermediate Appellate Court,[27] we FR. BERNAS. Why not? Probably if we stretch our imagination a
enunciated: little bit more, we will find some. We just want to cover
everything.[29] (Underscoring Supplied)
Moreover, military bases established within the territory of members (23). In this regard, the fundamental law is clear that two-
another state is no longer viable because of the alternatives offered thirds of the 24 Senators, or at least 16 favorable votes, suffice so as
by new means and weapons of warfare such as nuclear weapons, to render compliance with the strict constitutional mandate of giving
guided missiles as well as huge sea vessels that can stay afloat in the concurrence to the subject treaty.
sea even for months and years without returning to their home
country. These military warships are actually used as substitutes for a Having resolved that the first two requisites prescribed in
land-home base not only of military aircraft but also of military Section 25, Article XVIII are present, we shall now pass upon and delve
personnel and facilities. Besides, vessels are mobile as compared to a on the requirement that the VFA should be recognized as a treaty by
land-based military headquarters. the United States of America.

At this juncture, we shall then resolve the issue of whether or Petitioners content that the phrase recognized as a treaty,
not the requirements of Section 25 were complied with when the embodied in section 25, Article XVIII, means that the VFA should have
Senate gave its concurrence to the VFA. the advice and consent of the United States Senate pursuant to its
own constitutional process, and that it should not be considered
Section 25, Article XVIII disallows foreign military bases, troops, merely an executive agreement by the United States.
or facilities in the country, unless the following conditions are
sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must In opposition, respondents argue that the letter of United
be duly concurred in by the Senate and, when so required by States Ambassador Hubbard stating that the VFA is binding on the
congress, ratified by a majority of the votes cast by the people in a United States Government is conclusive, on the point that the VFA is
national referendum; and (c) recognized as a treaty by the other recognized as a treaty by the United States of America. According to
contracting state. respondents, the VFA, to be binding, must only be accepted as a
treaty by the United States.
There is no dispute as to the presence of the first two requisites
in the case of the VFA. The concurrence handed by the Senate This Court is of the firm view that the phrase recognized as a
through Resolution No. 18 is in accordance with the provisions of the treaty means that the other contracting party accepts or
Constitution, whether under the general requirement in Section 21, acknowledges the agreement as a treaty.[32]To require the other
Article VII, or the specific mandate mentioned in Section 25, Article contracting state, the United States of America in this case, to
XVIII, the provision in the latter article requiring ratification by a submit the VFA to the United States Senate for concurrence pursuant
majority of the votes cast in a national referendum being unnecessary to its Constitution,[33] is to accord strict meaning to the phrase.
since Congress has not required it. Well-entrenched is the principle that the words used in the
As to the matter of voting, Section 21, Article VII particularly Constitution are to be given their ordinary meaning except where
requires that a treaty or international agreement, to be valid and technical terms are employed, in which case the significance thus
effective, must be concurred in by at least two-thirds of all the attached to them prevails. Its language should be understood in the
members of the Senate. On the other hand, Section 25, Article XVIII sense they have in common use.[34]
simply provides that the treaty be duly concurred in by the Senate. Moreover, it is inconsequential whether the United States
Applying the foregoing constitutional provisions, a two-thirds treats the VFA only as an executive agreement because, under
vote of all the members of the Senate is clearly required so that the international law, an executive agreement is as binding as a
concurrence contemplated by law may be validly obtained and treaty.[35] To be sure, as long as the VFA possesses the elements of an
deemed present. While it is true that Section 25, Article XVIII requires, agreement under international law, the said agreement is to be taken
among other things, that the treaty-the VFA, in the instant case-be equally as a treaty.
duly concurred in by the Senate, it is very true however that said A treaty, as defined by the Vienna Convention on the Law of
provision must be related and viewed in light of the clear mandate Treaties, is an international instrument concluded between States in
embodied in Section 21, Article VII, which in more specific terms, written form and governed by international law, whether embodied
requires that the concurrence of a treaty, or international agreement, in a single instrument or in two or more related instruments, and
be made by a two -thirds vote of all the members of the whatever its particular designation.[36] There are many other terms
Senate. Indeed, Section 25, Article XVIII must not be treated in used for a treaty or international agreement, some of which are: act,
isolation to section 21, Article, VII. protocol, agreement, compromis d arbitrage, concordat, convention,
As noted, the concurrence requirement under Section 25, declaration, exchange of notes, pact, statute, charter and modus
Article XVIII must be construed in relation to the provisions of Section vivendi. All writers, from Hugo Grotius onward, have pointed out that
21, Article VII. In a more particular language, the concurrence of the the names or titles of international agreements included under the
Senate contemplated under Section 25, Article XVIII means that at general term treaty have little or no legal significance. Certain terms
least two-thirds of all the members of the Senate favorably vote to are useful, but they furnish little more than mere description.[37]
concur with the treaty-the VFA in the instant case. Article 2(2) of the Vienna Convention provides that the
Under these circumstances, the charter provides that the provisions of paragraph 1 regarding the use of terms in the present
Senate shall be composed of twenty-four (24) Senators.[30] Without a Convention are without prejudice to the use of those terms, or to the
tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen meanings which may be given to them in the internal law of the State.
(16) members, favorably acting on the proposal is an unquestionable Thus, in international law, there is no difference between
compliance with the requisite number of votes mentioned in Section treaties and executive agreements in their binding effect upon states
21 of Article VII. The fact that there were actually twenty-three (23) concerned, as long as the negotiating functionaries have remained
incumbent Senators at the time the voting was made,[31] will not alter within their powers.[38] International law continues to make no
in any significant way the circumstance that more than two-thirds of distinction between treaties and executive agreements: they are
the members of the Senate concurred with the proposed VFA, even if equally binding obligations upon nations.[39]
the two-thirds vote requirement is based on this figure of actual
In our jurisdiction, we have recognized the binding effect of from the full powers of its representative, or was expressed during
executive agreements even without the concurrence of the Senate or the negotiation.[44]
Congress. In Commissioner of Customs vs. Eastern Sea
Trading,[40] we had occasion to pronounce: In our jurisdiction, the power to ratify is vested in the President
and not, as commonly believed, in the legislature. The role of the
Senate is limited only to giving or withholding its consent, or
x x x the right of the Executive to enter into binding concurrence, to the ratification.[45]
agreements without the necessity of subsequent congressional
approval has been confirmed by long usage. From the earliest days With the ratification of the VFA, which is equivalent to final
of our history we have entered into executive agreements covering acceptance, and with the exchange of notes between the Philippines
such subjects as commercial and consular relations, most-favored- and the United States of America, it now becomes obligatory and
nation rights, patent rights, trademark and copyright protection, incumbent on our part, under the principles of international law, to
postal and navigation arrangements and the settlement of be bound by the terms of the agreement. Thus, no less than Section
claims. The validity of these has never been seriously questioned by 2, Article II of the Constitution,[46] declares that the Philippines adopts
our courts. the generally accepted principles of international law as part of the
law of the land and adheres to the policy of peace, equality, justice,
xxxxxxxxx freedom, cooperation and amity with all nations.

As a member of the family of nations, the Philippines agrees to


Furthermore, the United States Supreme Court has expressly be bound by generally accepted rules for the conduct of its
recognized the validity and constitutionality of executive international relations. While the international obligation devolves
agreements entered into without Senate approval. (39 Columbia upon the state and not upon any particular branch, institution, or
Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export individual member of its government, the Philippines is nonetheless
Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. responsible for violations committed by any branch or subdivision of
324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; its government or any official thereof. As an integral part of the
Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905- community of nations, we are responsible to assure that our
1906; California Law Review, Vol. 25, pp. 670-675; Hyde on government, Constitution and laws will carry out our international
International Law [revised Edition], Vol. 2, pp. 1405, 1416-1418; obligation.[47] Hence, we cannot readily plead the Constitution as a
willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp. 537- convenient excuse for non-compliance with our obligations, duties
540; Moore, International Law Digest, Vol. V, pp. 210-218; and responsibilities under international law.
Hackworth, International Law Digest, Vol. V, pp. 390-407). (Italics
Supplied) (Emphasis Ours) Beyond this, Article 13 of the Declaration of Rights and Duties
of States adopted by the International Law Commission in 1949
provides: Every State has the duty to carry out in good faith its
The deliberations of the Constitutional Commission which
obligations arising from treaties and other sources of international
drafted the 1987 Constitution is enlightening and highly-instructive:
law, and it may not invoke provisions in its constitution or its laws as
MR. MAAMBONG. Of course it goes without saying that as far as an excuse for failure to perform this duty.[48]
ratification of the other state is concerned, that is entirely
Equally important is Article 26 of the convention which provides
their concern under their own laws.
that Every treaty in force is binding upon the parties to it and must be
FR. BERNAS. Yes, but we will accept whatever they say. If they say performed by them in good faith.This is known as the principle
that we have done everything to make it a treaty, then as of pacta sunt servanda which preserves the sanctity of treaties and
far as we are concerned, we will accept it as a treaty.[41] have been one of the most fundamental principles of positive
international law, supported by the jurisprudence of international
The records reveal that the United States Government, through tribunals.[49]
Ambassador Thomas C. Hubbard, has stated that the United States
government has fully committed to living up to the terms of the
VFA.[42] For as long as the united States of America accepts or
NO GRAVE ABUSE OF DISCRETION
acknowledges the VFA as a treaty, and binds itself further to comply
with its obligations under the treaty, there is indeed marked
compliance with the mandate of the Constitution.
In the instant controversy, the President, in effect, is heavily
Worth stressing too, is that the ratification, by the President, of faulted for exercising a power and performing a task conferred upon
the VFA and the concurrence of the Senate should be taken as a clear him by the Constitution-the power to enter into and ratify
an unequivocal expression of our nations consent to be bound by said treaties. Through the expediency of Rule 65 of the Rules of Court,
treaty, with the concomitant duty to uphold the obligations and petitioners in these consolidated cases impute grave abuse of
responsibilities embodied thereunder. discretion on the part of the chief Executive in ratifying the VFA, and
referring the same to the Senate pursuant to the provisions of Section
Ratification is generally held to be an executive act, undertaken
21, Article VII of the Constitution.
by the head of the state or of the government, as the case may be,
through which the formal acceptance of the treaty is proclaimed.[43] A On this particular matter, grave abuse of discretion implies such
State may provide in its domestic legislation the process of ratification capricious and whimsical exercise of judgment as is equivalent to lack
of a treaty. The consent of the State to be bound by a treaty is of jurisdiction, or, when the power is exercised in an arbitrary or
expressed by ratification when: (a) the treaty provides for such despotic manner by reason of passion or personal hostility, and it
ratification, (b) it is otherwise established that the negotiating States must be so patent and gross as to amount to an evasion of positive
agreed that ratification should be required, (c) the representative of duty enjoined or to act at all in contemplation of law.[50]
the State has signed the treaty subject to ratification, or (d) the
intention of the State to sign the treaty subject to ratification appears
By constitutional fiat and by the intrinsic nature of his office, the faulted for having simply performed a task conferred and sanctioned
President, as head of State, is the sole organ and authority in the by no less than the fundamental law.
external affairs of the country. In many ways, the President is the
chief architect of the nations foreign policy; his dominance in the field For the role of the Senate in relation to treaties is essentially
of foreign relations is (then) conceded.[51] Wielding vast powers an legislative in character;[57] the Senate, as an independent body
influence, his conduct in the external affairs of the nation, as Jefferson possessed of its own erudite mind, has the prerogative to either
describes, is executive altogether."[52] accept or reject the proposed agreement, and whatever action it
takes in the exercise of its wide latitude of discretion, pertains to the
As regards the power to enter into treaties or international wisdom rather than the legality of the act. In this sense, the Senate
agreements, the Constitution vests the same in the President, subject partakes a principal, yet delicate, role in keeping the principles
only to the concurrence of at least two-thirds vote of all the members of separation of powers and of checks and balancesalive and
of the Senate. In this light, the negotiation of the VFA and the vigilantly ensures that these cherished rudiments remain true to their
subsequent ratification of the agreement are exclusive acts which form in a democratic government such as ours. The Constitution thus
pertain solely to the President, in the lawful exercise of his vast animates, through this treaty-concurring power of the Senate, a
executive and diplomatic powers granted him no less than by the healthy system of checks and balances indispensable toward our
fundamental law itself. Into the field of negotiation the Senate cannot nations pursuit of political maturity and growth. True enough,
intrude, and Congress itself is powerless to invade it.[53] Consequently, rudimentary is the principle that matters pertaining to the wisdom of
the acts or judgment calls of the President involving the VFA- a legislative act are beyond the ambit and province of the courts to
specifically the acts of ratification and entering into a treaty and those inquire.
necessary or incidental to the exercise of such principal acts - squarely
fall within the sphere of his constitutional powers and thus, may not In fine, absent any clear showing of grave abuse of discretion
be validly struck down, much less calibrated by this Court, in the on the part of respondents, this Court- as the final arbiter of legal
absence of clear showing of grave abuse of power or discretion. controversies and staunch sentinel of the rights of the people - is then
without power to conduct an incursion and meddle with such affairs
It is the Courts considered view that the President, in ratifying purely executive and legislative in character and nature. For the
the VFA and in submitting the same to the Senate for concurrence, Constitution no less, maps out the distinct boundaries and limits the
acted within the confines and limits of the powers vested in him by metes and bounds within which each of the three political branches
the Constitution. It is of no moment that the President, in the exercise of government may exercise the powers exclusively and essentially
of his wide latitude of discretion and in the honest belief that the VFA conferred to it by law.
falls within the ambit of Section 21, Article VII of the Constitution,
referred the VFA to the Senate for concurrence under the WHEREFORE, in light of the foregoing disquisitions, the instant
aforementioned provision.Certainly, no abuse of discretion, much petitions are hereby DISMISSED.
less a grave, patent and whimsical abuse of judgment, may be SO ORDERED.
imputed to the President in his act of ratifying the VFA and referring
the same to the Senate for the purpose of complying with the
concurrence requirement embodied in the fundamental law. In doing
so, the President merely performed a constitutional task and
exercised a prerogative that chiefly pertains to the functions of his
office. Even if he erred in submitting the VFA to the Senate for
concurrence under the provisions of Section 21 of Article VII, instead
of Section 25 of Article XVIII of the Constitution, still, the President
may not be faulted or scarred, much less be adjudged guilty of
committing an abuse of discretion in some patent, gross, and
capricious manner.

For while it is conceded that Article VIII, Section 1, of the


Constitution has broadened the scope of judicial inquiry into areas
normally left to the political departments to decide, such as those
relating to national security, it has not altogether done away with
political questions such as those which arise in the field of foreign
relations.[54] The High Tribunals function, as sanctioned by Article VIII,
Section 1, is merely (to) check whether or not the governmental
branch or agency has gone beyond the constitutional limits of its
jurisdiction, not that it erred or has a different view. In the absence of
a showing (of) grave abuse of discretion amounting to lack of
jurisdiction, there is no occasion for the Court to exercise its corrective
powerIt has no power to look into what it thinks is apparent error.[55]

As to the power to concur with treaties, the constitution lodges


the same with the Senate alone. Thus, once the Senate[56] performs
that power, or exercises its prerogative within the boundaries
prescribed by the Constitution, the concurrence cannot, in like
manner, be viewed to constitute an abuse of power, much less grave
abuse thereof. Corollarily, the Senate, in the exercise of its discretion
and acting within the limits of such power, may not be similarly
ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners, On February 7, 2002 the Senate conducted a hearing on the
vs. HONORABLE EXECUTIVE SECRETARY as alter ego of Balikatan exercise wherein Vice-President Teofisto T. Guingona, Jr.,
HER EXCELLENCY GLORIA MACAPAGAL-ARROYO, and who is concurrently Secretary of Foreign Affairs, presented the Draft
HONORABLE ANGELO REYES in his capacity as Secretary of Terms of Reference (TOR).[3] Five days later, he approved the TOR,
National Defense, respondents. which we quote hereunder:

SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-


intervenors, vs. GLORIA MACAPAGAL-ARROYO, ALBERTO ROMULO, I. POLICY LEVEL
ANGELO REYES, respondents.
1. The Exercise shall be Consistent with the Philippine Constitution
and all its activities shall be in consonance with the laws of the land
DECISION
and the provisions of the RP-US Visiting Forces Agreement (VFA).
DE LEON, JR., J.:
2. The conduct of this training Exercise is in accordance with
This case involves a petition for certiorari and prohibition as pertinent United Nations resolutions against global terrorism as
well as a petition-in-intervention, praying that respondents be understood by the respective parties.
restrained from proceeding with the so-called Balikatan 02-1 and that
after due notice and hearing, that judgment be rendered issuing a 3. No permanent US basing and support facilities shall be
permanent writ of injunction and/or prohibition against the established. Temporary structures such as those for troop billeting,
deployment of U.S. troops in Basilan and Mindanao for being illegal classroom instruction and messing may be set up for use by RP and
and in violation of the Constitution. US Forces during the Exercise.
The facts are as follows:
4. The Exercise shall be implemented jointly by RP and US Exercise
Beginning January of this year 2002, personnel from the armed Co-Directors under the authority of the Chief of Staff, AFP. In no
forces of the United States of America started arriving in Mindanao to instance will US Forces operate independently during field training
take part, in conjunction with the Philippine military, in Balikatan 02- exercises (FTX). AFP and US Unit Commanders will retain command
1. These so-called Balikatan exercises are the largest combined over their respective forces under the overall authority of the
training operations involving Filipino and American troops. In theory, Exercise Co-Directors. RP and US participants shall comply with
they are a simulation of joint military maneuvers pursuant to the operational instructions of the APP during the FTX.
Mutual Defense Treaty,[1] a bilateral defense agreement entered into
by the Philippines and the United States in 1951. 5. The exercise shall be conducted and completed within a period of
Prior to the year 2002, the last Balikatan was held in 1995. This not more than six months, with the projected participation of 660
was due to the paucity of any formal agreement relative to the US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct
treatment of United States personnel visiting the Philippines. In the the Exercise Co-Directors to wind up and terminate the Exercise and
meantime, the respective governments of the two countries agreed other activities within the six month Exercise period.
to hold joint exercises on a reduced scale. The lack of consensus was
eventually cured when the two nations concluded the Visiting Forces 6. The Exercise is a mutual counter-terrorism advising, assisting and
Agreement (VFA) in 1999. training Exercise relative to Philippine efforts against the ASG, and
will be conducted on the Island of Basilan. Further advising, assisting
The entry of American troops into Philippine soil is proximately and training exercises shall be conducted in Malagutay and the
rooted in the international anti-terrorism campaign declared by Zamboanga area. Related activities in Cebu will be for support of the
President George W. Bush in reaction to the tragic events that Exercise.
occurred on September 11, 2001. On that day, three (3) commercial
aircrafts were hijacked, flown and smashed into the twin towers of
the World Trade Center in New York City and the Pentagon building 7. Only 160 US Forces organized in 12-man Special Forces Teams
in Washington, D.C. by terrorists with alleged links to the al-Qaeda shall be deployed with AFP field commanders. The US teams shall
(the Base), a Muslim extremist organization headed by the infamous remain at the Battalion Headquarters and, when approved,
Osama bin Laden. Of no comparable historical parallels, these acts Company Tactical headquarters where they can observe and assess
caused billions of dollars worth of destruction of property and the performance of the APP Forces.
incalculable loss of hundreds of lives.
8. US exercise participants shall not engage in combat, without
On February 1, 2002, petitioners Arthur D. Lim and Paulino P. prejudice to their right of self-defense.
Ersando filed this petition for certiorari and prohibition, attacking the
constitutionality of the joint exercise.[2] They were joined
9. These terms of Reference are for purposes of this Exercise only
subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA, both
and do not create additional legal obligations between the US
party-list organizations, who filed a petition-in-intervention on
Government and the Republic of the Philippines.
February 11, 2002.

Lim and Ersando filed suit in their capacities as citizens, lawyers II. EXERCISE LEVEL
and taxpayers. SANLAKAS and PARTIDO, on the other hand, aver that
certain members of their organization are residents of Zamboanga
1. TRAINING
and Sulu, and hence will be directly affected by the operations being
conducted in Mindanao. They likewise pray for a relaxation on the
rules relative to locus standi citing the unprecedented importance of a. The Exercise shall involve the conduct of mutual military assisting,
the issue involved. advising and training of RP and US Forces with the primary objective
of enhancing the operational capabilities of both forces to combat EXTERNAL ATTACK TO WARRANT U.S. MILITARY ASSISTANCE UNDER
terrorism. THE MDT OF 1951.

b. At no time shall US Forces operate independently within RP II


territory.
NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS
c. Flight plans of all aircraft involved in the exercise will comply with TO ENGAGE IN COMBAT OPERATIONS IN PHILIPPINE TERRITORY,
the local air traffic regulations. NOT EVEN TO FIRE BACK IF FIRED UPON.

2. ADMINISTRATION & LOGISTICS Substantially the same points are advanced by petitioners
SANLAKAS and PARTIDO.
a. RP and US participants shall be given a country and area briefing In his Comment, the Solicitor General points to infirmities in the
at the start of the Exercise. This briefing shall acquaint US Forces on petitions regarding, inter alia, Lim and Ersandos standing to file suit,
the culture and sensitivities of the Filipinos and the provisions of the the prematurity of the action, as well as the impropriety of availing
VFA. The briefing shall also promote the full cooperation on the part of certiorari to ascertain a question of fact. Anent their locus
of the RP and US participants for the successful conduct of the standi, the Solicitor General argues that first, they may not file suit in
Exercise. their capacities as taxpayers inasmuch as it has not been shown that
Balikatan 02-1 involves the exercise of Congress taxing or spending
b. RP and US participating forces may share, in accordance with their powers. Second, their being lawyers does not invest them with
respective laws and regulations, in the use of their resources, sufficient personality to initiate the case, citing our ruling
equipment and other assets. They will use their respective logistics in Integrated Bar of the Philippines v. Zamora.[5] Third, Lim and
channels. Ersando have failed to demonstrate the requisite showing of direct
personal injury. We agree.
c. Medical evaluation shall be jointly planned and executed utilizing
It is also contended that the petitioners are indulging in
RP and US assets and resources.
speculation. The Solicitor General is of the view that since the Terms
of Reference are clear as to the extent and duration of Balikatan 02-
d. Legal liaison officers from each respective party shall be 1, the issues raised by petitioners are premature, as they are based
appointed by the Exercise Directors. only on a fear of future violation of the Terms of Reference. Even
petitioners resort to a special civil action for certiorari is assailed on
3. PUBLIC AFFAIRS the ground that the writ may only issue on the basis of established
facts.
a. Combined RP-US Information Bureaus shall be established at the Apart from these threshold issues, the Solicitor General claims
Exercise Directorate in Zamboanga City and at GHQ, AFP in Camp that there is actually no question of constitutionality involved. The
Aguinaldo, Quezon City. true object of the instant suit, it is said, is to obtain an interpretation
of the VFA. The Solicitor General asks that we accord due deference
b. Local media relations will be the concern of the AFP and all public to the executive determination that Balikatan 02-1 is covered by the
affairs guidelines shall be jointly developed by RP and US Forces. VFA, considering the Presidents monopoly in the field of foreign
relations and her role as commander-in-chief of the Philippine armed
c. Socio-Economic Assistance Projects shall be planned and executed forces.
jointly by RP and US Forces in accordance with their respective laws
Given the primordial importance of the issue involved, it will
and regulations, and in consultation with community and local
suffice to reiterate our view on this point in a related case:
government officials.

Notwithstanding, in view of the paramount importance and


Contemporaneously, Assistant Secretary for American Affairs
the constitutional significance of the issues raised in the
Minerva Jean A. Falcon and United States Charge d Affaires Robert
petitions, this Court, in the exercise of its sound discretion,
Fitts signed the Agreed Minutes of the discussion between the Vice-
brushes aside the procedural barrier and takes cognizance of
President and Assistant Secretary Kelly.[4]
the petitions, as we have done in the early Emergency Powers
Petitioners Lim and Ersando present the following arguments: Cases, where we had occasion to rule:

I x x x ordinary citizens and taxpayers were allowed to


question the constitutionality of several executive
THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL orders issued by President Quirino although they were
DEFENSE TREATY (MDT) in 1951 TO PROVIDE MUTUAL MILITARY involving only an indirect and general interest shared in
ASSISTANCE IN ACCORDANCE WITH THE CONSTITUTIONAL common with the public. The Court dismissed the
PROCESSES OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED objection that they were not proper parties and ruled
ATTACK BY AN EXTERNAL AGGRESSOR, MEANING A THIRD COUNTRY that transcendental importance to the public of these
AGAINST ONE OF THEM. cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities of
BY NO STRETCH OF THE IMAGINATION CAN IT BE SAID THAT THE procedure. We have since then applied the exception in
ABU SAYYAF BANDITS IN BASILAN CONSTITUTE AN EXTERNAL many other cases. [citation omitted]
ARMED FORCE THAT HAS SUBJECT THE PHILIPPINES TO AN ARMED
This principle was reiterated in the subsequent cases of Gonzales vs. meaning of which was left undefined. The expression is ambiguous,
COMELEC, Daza vs. Singson, and Basco vs. Phil. Amusement and permitting a wide scope of undertakings subject only to the approval
Gaming Corporation, where we emphatically held: of the Philippine government.[8] The sole encumbrance placed on its
definition is couched in the negative, in that United States personnel
Considering however the importance to the public of the must abstain from any activity inconsistent with the spirit of this
case at bar, and in keeping with the Courts duty, under agreement, and in particular, from any political activity.[9] All other
the 1987 Constitution, to determine whether or not the activities, in other words, are fair game.
other branches of the government have kept We are not left completely unaided, however. The Vienna
themselves within the limits of the Constitution and the Convention on the Law of Treaties, which contains provisos governing
laws that they have not abused the discretion given to interpretations of international agreements, state:
them, the Court has brushed aside technicalities of
procedure and has taken cognizance of this petition. xxx
SECTION 3. INTERPRETATION OF TREATIES
Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this
Court ruled that in cases of transcendental importance, the court Article 31
may relax the standing requirements and allow a suit to prosper
even where there is no direct injury to the party claiming the right General rule of interpretation
of judicial review.
1. A treaty shall be interpreted in good faith in accordance with the
Although courts generally avoid having to decide a constitutional ordinary meaning to be given to the terms of the treaty in their
question based on the doctrine of separation of powers, which context and in the light of its object and purpose.
enjoins upon the departments of the government a becoming
respect for each others acts, this Court nevertheless resolves to take 2. The context for the purpose of the interpretation of a treaty shall
cognizance of the instant petitions.[6] comprise, in addition to the text, including its preamble and
annexes:
Hence, we treat with similar dispatch the general objection to
the supposed prematurity of the action. At any rate, petitioners' (a) any agreement relating to the treaty which was
concerns on the lack of any specific regulation on the latitude of made between all the parties in
activity US personnel may undertake and the duration of their stay connexion with the conclusion of the
has been addressed in the Terms of Reference. treaty;
The holding of Balikatan 02-1 must be studied in the framework
of the treaty antecedents to which the Philippines bound itself. The (b) any instrument which was made by one or
first of these is the Mutual Defense Treaty (MDT, for brevity). The more parties in connexion with the
MDT has been described as the core of the defense relationship conclusion of the treaty and accepted
between the Philippines and its traditional ally, the United States. Its by the other parties as an instrument
aim is to enhance the strategic and technological capabilities of our related to the party.
armed forces through joint training with its American counterparts;
the Balikatan is the largest such training exercise directly supporting 3. There shall be taken into account, together with the context:
the MDTs objectives. It is this treaty to which the VFA adverts and the
obligations thereunder which it seeks to reaffirm. (a) any subsequent agreement between the
The lapse of the US-Philippine Bases Agreement in 1992 and the parties regarding the interpretation of
decision not to renew it created a vacuum in US-Philippine defense the treaty or the application of its
relations, that is, until it was replaced by the Visiting Forces provisions;
Agreement. It should be recalled that on October 10, 2000, by a vote
of eleven to three, this court upheld the validity of the VFA.[7] The VFA (b) any subsequent practice in the application of
provides the regulatory mechanism by which United States military the treaty which establishes the
and civilian personnel [may visit] temporarily in the Philippines in agreement of the parties regarding its
connection with activities approved by the Philippine Government. It interpretation;
contains provisions relative to entry and departure of American
personnel, driving and vehicle registration, criminal jurisdiction, (c) any relevant rules of international law
claims, importation and exportation, movement of vessels and applicable in the relations between the
aircraft, as well as the duration of the agreement and its parties.
termination. It is the VFA which gives continued relevance to the MDT
despite the passage of years. Its primary goal is to facilitate the
4. A special meaning shall be given to a term if it is established that
promotion of optimal cooperation between American and Philippine
the parties so intended.
military forces in the event of an attack by a common foe.

The first question that should be addressed is whether Article 32


Balikatan 02-1 is covered by the Visiting Forces Agreement. To resolve
this, it is necessary to refer to the VFA itself. Not much help can be
Supplementary means of interpretation
had therefrom, unfortunately, since the terminology employed is
itself the source of the problem. The VFA permits United States
personnel to engage, on an impermanent basis, in activities, the exact
Recourse may be had to supplementary means of interpretation, Differently phrased, may American troops actually engage in combat
including the preparatory work of the treaty and the circumstances in Philippine territory? The Terms of Reference are explicit
of its conclusion, in order to confirm the meaning resulting from the enough. Paragraph 8 of section I stipulates that US exercise
application of article 31, or to determine the meaning when the participants may not engage in combat except in self-defense. We
interpretation according to article 31: wryly note that this sentiment is admirable in the abstract but difficult
in implementation. The target of Balikatan 02-1, the Abu Sayyaf,
(a) leaves the meaning ambiguous or obscure; or cannot reasonably be expected to sit idly while the battle is brought
to their very doorstep. They cannot be expected to pick and choose
their targets for they will not have the luxury of doing so. We state
(b) leads to a result which is manifestly absurd or unreasonable.
this point if only to signify our awareness that the parties straddle a
fine line, observing the honored legal maxim Nemo potest facere per
It is clear from the foregoing that the cardinal rule of alium quod non potest facere per directum.[11] The indirect violation is
interpretation must involve an examination of the text, which is actually petitioners worry, that in reality, Balikatan 02-1 is actually a
presumed to verbalize the parties intentions. The Convention war principally conducted by the United States government, and that
likewise dictates what may be used as aids to deduce the meaning of the provision on self-defense serves only as camouflage to conceal
terms, which it refers to as the context of the treaty, as well as other the true nature of the exercise. A clear pronouncement on this matter
elements may be taken into account alongside the aforesaid thereby becomes crucial.
context. As explained by a writer on the Convention,
In our considered opinion, neither the MDT nor the VFA allow
foreign troops to engage in an offensive war on Philippine
[t]he Commissions proposals (which were adopted virtually without
territory. We bear in mind the salutary proscription stated in the
change by the conference and are now reflected in Articles 31 and
Charter of the United Nations, to wit:
32 of the Convention) were clearly based on the view that the text
of a treaty must be presumed to be the authentic expression of the
intentions of the parties; the Commission accordingly came down Article 2
firmly in favour of the view that the starting point of interpretation
is the elucidation of the meaning of the text, not an investigation ab The Organization and its Members, in pursuit of the Purposes stated
initio into the intentions of the parties. This is not to say that in Article 1, shall act in accordance with the following Principles.
the travaux prparatoires of a treaty, or the circumstances of its
conclusion, are relegated to a subordinate, and wholly ineffective, xxx xxx xxx xxx
role. As Professor Briggs points out, no rigid temporal prohibition on
resort to travaux prparatoires of a treaty was intended by the use of
the phrase supplementary means of interpretation in what is now 4. All Members shall refrain in their international relations from the
Article 32 of the Vienna Convention. The distinction between the threat or use of force against the territorial integrity or political
general rule of interpretation and the supplementary means of independence of any state, or in any other manner inconsistent with
interpretation is intended rather to ensure that the supplementary the Purposes of the United Nations.
means do not constitute an alternative, autonomous method of
interpretation divorced from the general rule.[10] xxx xxx xxx xxx

In the same manner, both the Mutual Defense Treaty and the
The Terms of Reference rightly fall within the context of the Visiting Forces Agreement, as in all other treaties and international
VFA. agreements to which the Philippines is a party, must be read in the
After studied reflection, it appeared farfetched that the context of the 1987 Constitution. In particular, the Mutual Defense
ambiguity surrounding the meaning of the word activities arose from Treaty was concluded way before the present Charter, though it
accident. In our view, it was deliberately made that way to give both nevertheless remains in effect as a valid source of international
parties a certain leeway in negotiation. In this manner, visiting US obligation. The present Constitution contains key provisions useful in
forces may sojourn in Philippine territory for purposes other than determining the extent to which foreign military troops are allowed
military. As conceived, the joint exercises may include training on new in Philippine territory.Thus, in the Declaration of Principles and State
techniques of patrol and surveillance to protect the nations marine Policies, it is provided that:
resources, sea search-and-rescue operations to assist vessels in xxx xxx xxx xxx
distress, disaster relief operations, civic action projects such as the
building of school houses, medical and humanitarian missions, and
SEC. 2. The Philippines renounces war as an instrument of national
the like.
policy, adopts the generally accepted principles of international law
Under these auspices, the VFA gives legitimacy to the current as part of the law of the land and adheres to the policy of peace,
Balikatan exercises. It is only logical to assume that Balikatan 02-1, a equality, justice, freedom, cooperation, and amity with all nations.
mutual anti-terrorism advising, assisting and training exercise, falls
under the umbrella of sanctioned or allowable activities in the context xxx xxx xxx xxx
of the agreement. Both the history and intent of the Mutual Defense
Treaty and the VFA support the conclusion that combat-
SEC. 7. The State shall pursue an independent foreign policy. In its
related activities as opposed to combat itself such as the one subject
relations with other states the paramount consideration shall be
of the instant petition, are indeed authorized.
national sovereignty, territorial integrity, national interest, and the
That is not the end of the matter, though. Granted that right to self-determination.
Balikatan 02-1 is permitted under the terms of the VFA, what may US
forces legitimately do in furtherance of their aim to provide advice,
assistance and training in the global effort against terrorism?
SEC. 8. The Philippines, consistent with the national interest, adopts proclamation, order, instruction, ordinance, or regulation is in
and pursues a policy of freedom from nuclear weapons in the question.
country.
xxx xxx xxx xxx
xxx xxx xxx xxx
In Ichong v. Hernandez,[16] we ruled that the provisions of a
The Constitution also regulates the foreign relations powers of treaty are always subject to qualification or amendment by a
the Chief Executive when it provides that [n]o treaty or international subsequent law, or that it is subject to the police power of the
agreement shall be valid and effective unless concurred in by at least State. In Gonzales v. Hechanova,[17]
two-thirds of all the members of the Senate.[12] Even more pointedly,
the Transitory Provisions state: xxx As regards the question whether an international agreement
may be invalidated by our courts, suffice it to say that the
Sec. 25. After the expiration in 1991 of the Agreement between the Constitution of the Philippines has clearly settled it in the
Republic of the Philippines and the United States of America affirmative, by providing, in Section 2 of Article VIII thereof, that the
concerning Military Bases, foreign military bases, troops or facilities Supreme Court may not be deprived of its jurisdiction to review,
shall not be allowed in the Philippines except under a treaty duly revise, reverse, modify, or affirm on appeal, certiorari, or writ of
concurred in by the Senate and, when the Congress so requires, error as the law or the rules of court may provide, final judgments
ratified by a majority of the votes cast by the people in a national and decrees of inferior courts in (1) All cases in which
referendum held for that purpose, and recognized as a treaty by the the constitutionality or validity of any treaty, law, ordinance, or
other contracting state. executive order or regulation is in question. In other words, our
Constitution authorizes the nullification of a treaty, not only when it
The aforequoted provisions betray a marked antipathy towards conflicts with the fundamental law, but, also, when it runs counter to
foreign military presence in the country, or of foreign influence in an act of Congress.
general. Hence, foreign troops are allowed entry into the Philippines
only by way of direct exception. Conflict arises then between the The foregoing premises leave us no doubt that US forces are
fundamental law and our obligations arising from international prohibited from engaging in an offensive war on Philippine territory.
agreements.
Yet a nagging question remains: are American troops actively
A rather recent formulation of the relation of international engaged in combat alongside Filipino soldiers under the guise of an
law vis--vis municipal law was expressed in Philip Morris, Inc. v. Court alleged training and assistance exercise? Contrary to what petitioners
of Appeals,[13] to wit: would have us do, we cannot take judicial notice of the events
transpiring down south,[18] as reported from the saturation coverage
xxx Withal, the fact that international law has been made part of the of the media. As a rule, we do not take cognizance of newspaper or
law of the land does not by any means imply the primacy of electronic reports per se, not because of any issue as to their truth,
international law over national law in the municipal sphere. Under accuracy, or impartiality, but for the simple reason that facts must be
the doctrine of incorporation as applied in most countries, rules of established in accordance with the rules of evidence. As a result, we
international law are given a standing equal, not superior, to cannot accept, in the absence of concrete proof, petitioners
national legislation. allegation that the Arroyo government is engaged in doublespeak in
trying to pass off as a mere training exercise an offensive effort by
foreign troops on native soil. The petitions invite us to speculate on
This is not exactly helpful in solving the problem at hand since in trying
what is really happening in Mindanao, to issue, make factual findings
to find a middle ground, it favors neither one law nor the other, which
on matters well beyond our immediate perception, and this we are
only leaves the hapless seeker with an unsolved dilemma. Other more
understandably loath to do.
traditional approaches may offer valuable insights.
It is all too apparent that the determination thereof involves
From the perspective of public international law, a treaty is
basically a question of fact. On this point, we must concur with the
favored over municipal law pursuant to the principle of pacta sunt
Solicitor General that the present subject matter is not a fit topic for
servanda. Hence, [e]very treaty in force is binding upon the parties to
a special civil action for certiorari. We have held in too many instances
it and must be performed by them in good faith.[14] Further, a party
that questions of fact are not entertained in such a remedy. The sole
to a treaty is not allowed to invoke the provisions of its internal law
object of the writ is to correct errors of jurisdiction or grave abuse of
as justification for its failure to perform a treaty.[15]
discretion. The phrase grave abuse of discretion has a precise
Our Constitution espouses the opposing view. Witness our meaning in law, denoting abuse of discretion too patent and gross as
jurisdiction as stated in section 5 of Article VIII: to amount to an evasion of a positive duty, or a virtual refusal to
perform the duty enjoined or act in contemplation of law, or where
the power is exercised in an arbitrary and despotic manner by reason
The Supreme Court shall have the following powers:
of passion and personal hostility.[19]

xxx xxx xxx xxx In this connection, it will not be amiss to add that the Supreme
Court is not a trier of facts.[20]
(2) Review, revise, reverse, modify, or affirm on appeal Under the expanded concept of judicial power under the
or certiorari, as the law or the Rules of Court may provide, final Constitution, courts are charged with the duty to determine whether
judgments and order of lower courts in: 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
(A) All cases in which the constitutionality or validity of any treaty, of the government.[21] From the facts obtaining, we find that the
international or executive agreement, law, presidential decree, 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.

SO ORDERED.
EN BANC Hence, it is the duty of the executive department to transmit the
signed copy of the Rome Statute to the Senate to allow it to exercise
its discretion with respect to ratification of treaties. Moreover,
SENATOR AQUILINO PIMENTEL, JR., G.R. No. 158088 petitioners submit that the Philippines has a ministerial duty to ratify
REP. ETTA ROSALES, PHILIPPINE the Rome Statute under treaty law and customary international law.
COALITION FOR THE ESTABLISHMENT Petitioners invoke the Vienna Convention on the Law of Treaties
OF THE INTERNATIONAL Present: enjoining the states to refrain from acts which would defeat the
CRIMINAL COURT, TASK FORCE object and purpose of a treaty when they have signed the treaty prior
DETAINEES OF THE PHILIPPINES, Davide, Jr., C.J., to ratification unless they have made their intention clear not to
FAMILIES OF VICTIMS OF Puno, become parties to the treaty.[5]
INVOLUNTARY DISAPPEARANCES, Panganiban,
BIANCA HACINTHA R. ROQUE, Quisumbing, The Office of the Solicitor General, commenting for the respondents,
HARRISON JACOB R. ROQUE, Ynares-Santiago, questioned the standing of the petitioners to file the instant suit. It
AHMED PAGLINAWAN, RON P. SALO, *Sandoval-Gutierrez, also contended that the petition at bar violates the rule on hierarchy
LEAVIDES G. DOMINGO, EDGARDO *Carpio, of courts. On the substantive issue raised by petitioners, respondents
CARLO VISTAN, NOEL VILLAROMAN, Austria-Martinez, argue that the executive department has no duty to transmit the
CELESTE CEMBRANO, LIZA ABIERA, *Corona, Rome Statute to the Senate for concurrence.
JAIME ARROYO, MARWIL LLASOS, Carpio Morales,
CRISTINA ATENDIDO, ISRAFEL Callejo, Sr., A petition for mandamus may be filed when any tribunal,
FAGELA, and ROMEL BAGARES, Azcuna, corporation, board, officer or person unlawfully neglects the
Petitioners, Tinga, performance of an act which the law specifically enjoins as a duty
Chico-Nazario, and resulting from an office, trust, or station.[6] We have held that to be
- versus - Garcia, JJ. given due course, a petition for mandamus must have been instituted
by a party aggrieved by the alleged inaction of any tribunal,
OFFICE OF THE EXECUTIVE corporation, board or person which unlawfully excludes said party
SECRETARY, represented by Promulgated: from the enjoyment of a legal right. The petitioner in every case must
HON. ALBERTO ROMULO, and the therefore be an aggrieved party in the sense that he possesses a clear
DEPARTMENT OF FOREIGN legal right to be enforced and a direct interest in the duty or act to be
AFFAIRS, represented by HON. BLAS OPLE, July 6, 2005 performed.[7] The Court will exercise its power of judicial review only
Respondents. if the case is brought before it by a party who has the legal standing
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x to raise the constitutional or legal question. Legal standing means a
personal and substantial interest in the case such that the party has
DECISION sustained or will sustain direct injury as a result of the government
act that is being challenged. The term interest is material interest, an
PUNO J.: interest in issue and to be affected by the decree, as distinguished
from mere interest in the question involved, or a mere incidental
interest.[8]
This is a petition for mandamus filed by petitioners to compel the
Office of the Executive Secretary and the Department of Foreign The petition at bar was filed by Senator Aquilino Pimentel, Jr. who
Affairs to transmit the signed copy of the Rome Statute of the asserts his legal standing to file the suit as member of the Senate;
International Criminal Court to the Senate of the Philippines for its Congresswoman Loretta Ann Rosales, a member of the House of
concurrence in accordance with Section 21, Article VII of the 1987 Representatives and Chairperson of its Committee on Human Rights;
Constitution. the Philippine Coalition for the Establishment of the International
Criminal Court which is composed of individuals and corporate
The Rome Statute established the International Criminal Court which entities dedicated to the Philippine ratification of the Rome Statute;
shall have the power to exercise its jurisdiction over persons for the the Task Force Detainees of the Philippines, a juridical entity with the
most serious crimes of international concern xxx and shall be avowed purpose of promoting the cause of human rights and human
complementary to the national criminal jurisdictions.[1] Its jurisdiction rights victims in the country; the Families of Victims of Involuntary
covers the crime of genocide, crimes against humanity, war crimes Disappearances, a juridical entity duly organized and existing
and the crime of aggression as defined in the Statute.[2]The Statute pursuant to Philippine Laws with the avowed purpose of promoting
was opened for signature by all states in Rome on July 17, 1998 and the cause of families and victims of human rights violations in the
had remained open for signature until December 31, 2000 at the country; Bianca Hacintha Roque and Harrison Jacob Roque, aged two
United Nations Headquarters in New York. The Philippines signed the (2) and one (1), respectively, at the time of filing of the instant
Statute on December 28, 2000 through Charge d Affairs Enrique A. petition, and suing under the doctrine of inter-generational rights
Manalo of the Philippine Mission to the United Nations.[3] Its enunciated in the case of Oposa vs. Factoran, Jr.;[9] and a group of
provisions, however, require that it be subject to ratification, fifth year working law students from the University of the Philippines
acceptance or approval of the signatory states.[4] College of Law who are suing as taxpayers.

Petitioners filed the instant petition to compel the respondents the The question in standing is whether a party has alleged such a
Office of the Executive Secretary and the Department of Foreign personal stake in the outcome of the controversy as to assure that
Affairs to transmit the signed text of the treaty to the Senate of the concrete adverseness which sharpens the presentation of issues upon
Philippines for ratification. which the court so largely depends for illumination of difficult
constitutional questions.[10]
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.
We find that among the petitioners, only Senator Pimentel has the Sec. 14. (1) Except as otherwise provided in this
legal standing to file the instant suit. The other petitioners maintain Constitution, no treaty shall be valid and effective
their standing as advocates and defenders of human rights, and as unless concurred in by a majority of all the
citizens of the country. They have not shown, however, that they have Members of the Batasang Pambansa.
sustained or will sustain a direct injury from the non-transmittal of
the signed text of the Rome Statute to the Senate. Their contention The participation of the legislative branch in the treaty-making
that they will be deprived of their remedies for the protection and process was deemed essential to provide a check on the executive in
enforcement of their rights does not persuade. The Rome Statute is the field of foreign relations.[14] By requiring the concurrence of the
intended to complement national criminal laws and courts. Sufficient legislature in the treaties entered into by the President, the
remedies are available under our national laws to protect our citizens Constitution ensures a healthy system of checks and balance
against human rights violations and petitioners can always seek necessary in the nations pursuit of political maturity and growth.[15]
redress for any abuse in our domestic courts.
In filing this petition, the petitioners interpret Section 21, Article VII
As regards Senator Pimentel, it has been held that to the of the 1987 Constitution to mean that the power to ratify treaties
extent the powers of Congress are impaired, so is the power of each belongs to the Senate.
member thereof, since his office confers a right to participate in the
exercise of the powers of that institution.[11] Thus, legislators have the We disagree.
standing to maintain inviolate the prerogatives, powers and privileges
vested by the Constitution in their office and are allowed to sue to Justice Isagani Cruz, in his book on International Law, describes the
question the validity of any official action which they claim infringes treaty-making process in this wise:
their prerogatives as legislators. The petition at bar invokes the power The usual steps in the treaty-making
of the Senate to grant or withhold its concurrence to a treaty entered process are: negotiation, signature, ratification,
into by the executive branch, in this case, the Rome Statute. The and exchange of the instruments of ratification.
petition seeks to order the executive branch to transmit the copy of The treaty may then be submitted for registration
the treaty to the Senate to allow it to exercise such authority. Senator and publication under the U.N. Charter, although
Pimentel, as member of the institution, certainly has the legal this step is not essential to the validity of the
standing to assert such authority of the Senate. agreement as between the parties.

We now go to the substantive issue. Negotiation may be undertaken directly by the


head of state but he now usually assigns this task
The core issue in this petition for mandamus is whether the Executive to his authorized representatives. These
Secretary and the Department of Foreign Affairs have representatives are provided with credentials
a ministerial duty to transmit to the Senate the copy of the Rome known as full powers, which they exhibit to the
Statute signed by a member of the Philippine Mission to the United other negotiators at the start of the formal
Nations even without the signature of the President. discussions. It is standard practice for one of the
parties to submit a draft of the proposed treaty
We rule in the negative. which, together with the counter-proposals,
becomes the basis of the subsequent
In our system of government, the President, being the head of state, negotiations. The negotiations may be brief or
is regarded as the sole organ and authority in external relations and protracted, depending on the issues involved, and
is the countrys sole representative with foreign nations.[12] As the may even collapse in case the parties are unable
chief architect of foreign policy, the President acts as the countrys to come to an agreement on the points under
mouthpiece with respect to international affairs. Hence, the consideration.
President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic If and when the negotiators finally decide on the
relations, enter into treaties, and otherwise transact the business of terms of the treaty, the same is opened
foreign relations.[13] In the realm of treaty-making, the President has for signature. This step is primarily intended as a
the sole authority to negotiate with other states. means of authenticating the instrument and for
the purpose of symbolizing the good faith of the
Nonetheless, while the President has the sole authority to parties; but, significantly, it does not indicate the
negotiate and enter into treaties, the Constitution provides a final consent of the state in cases where
limitation to his power by requiring the concurrence of 2/3 of all the ratification of the treaty is required. The
members of the Senate for the validity of the treaty entered into by document is ordinarily signed in accordance with
him. Section 21, Article VII of the 1987 Constitution provides that no the alternat, that is, each of the several
treaty or international agreement shall be valid and effective unless negotiators is allowed to sign first on the copy
concurred in by at least two-thirds of all the Members of the Senate. which he will bring home to his own state.
The 1935 and the 1973 Constitution also required the concurrence by
the legislature to the treaties entered into by the executive. Section Ratification, which is the next step, is the formal
10 (7), Article VII of the 1935 Constitution provided: act by which a state confirms and accepts the
Sec. 10. (7) The President shall have the power, provisions of a treaty concluded by its
with the concurrence of two-thirds of all the representatives. The purpose of ratification is to
Members of the Senate, to make treaties xxx. enable the contracting states to examine the
treaty more closely and to give them an
Section 14 (1) Article VIII of the 1973 Constitution stated: opportunity to refuse to be bound by it should
they find it inimical to their interests. It is for this
reason that most treaties are made subject to of Foreign Affairs shall submit the treaties to the Senate of the
the scrutiny and consent of a department of the Philippines for concurrence in the ratification by the President. A
government other than that which negotiated certified true copy of the treaties, in such numbers as may be required
them. by the Senate, together with a certified true copy of the ratification
instrument, shall accompany the submission of the treaties to the
xxx Senate.
ii. Upon receipt of the concurrence by the Senate, the
The last step in the treaty-making Department of Foreign Affairs shall comply with the provision of the
process is the exchange of the instruments of treaties in effecting their entry into force.
ratification, which usually also signifies the
effectivity of the treaty unless a different date has Petitioners submission that the Philippines is bound under treaty law
been agreed upon by the parties. Where and international law to ratify the treaty which it has signed is without
ratification is dispensed with and no effectivity basis. The signature does not signify the final consent of the state to
clause is embodied in the treaty, the instrument the treaty. It is the ratification that binds the state to the provisions
is deemed effective upon its thereof. In fact, the Rome Statute itself requires that the signature of
signature.[16] [emphasis supplied] the representatives of the states be subject to ratification, acceptance
or approval of the signatory states. Ratification is the act by which the
Petitioners arguments equate the signing of the treaty by provisions of a treaty are formally confirmed and approved by a State.
the Philippine representative with ratification. It should be By ratifying a treaty signed in its behalf, a state expresses its
underscored that the signing of the treaty and the ratification are two willingness to be bound by the provisions of such treaty. After the
separate and distinct steps in the treaty-making process. As earlier treaty is signed by the states representative, the President, being
discussed, the signature is primarily intended as a means of accountable to the people, is burdened with the responsibility and
authenticating the instrument and as a symbol of the good faith of the duty to carefully study the contents of the treaty and ensure that
the parties. It is usually performed by the states authorized they are not inimical to the interest of the state and its people. Thus,
representative in the diplomatic mission. Ratification, on the other the President has the discretion even after the signing of the treaty
hand, is the formal act by which a state confirms and accepts the by the Philippine representative whether or not to ratify the same.
provisions of a treaty concluded by its representative. It is generally The Vienna Convention on the Law of Treaties does not contemplate
held to be an executive act, undertaken by the head of the state or of to defeat or even restrain this power of the head of states. If that were
the government.[17] Thus, Executive Order No. 459 issued by so, the requirement of ratification of treaties would be pointless and
President Fidel V. Ramos on November 25, 1997 provides the futile. It has been held that a state has no legal or even moral duty to
guidelines in the negotiation of international agreements and its ratify a treaty which has been signed by its plenipotentiaries.[18] There
ratification. It mandates that after the treaty has been signed by the is no legal obligation to ratify a treaty, but it goes without saying that
Philippine representative, the same shall be transmitted to the the refusal must be based on substantial grounds and not on
Department of Foreign Affairs. The Department of Foreign Affairs superficial or whimsical reasons. Otherwise, the other state would be
shall then prepare the ratification papers and forward the signed copy justified in taking offense.[19]
of the treaty to the President for ratification. After the President has
ratified the treaty, the Department of Foreign Affairs shall submit the It should be emphasized that under our Constitution, the power to
same to the Senate for concurrence. Upon receipt of the concurrence ratify is vested in the President, subject to the concurrence of the
of the Senate, the Department of Foreign Affairs shall comply with the Senate. The role of the Senate, however, is limited only to giving or
provisions of the treaty to render it effective. Section 7 of Executive withholding its consent, or concurrence, to the ratification.[20] Hence,
Order No. 459 reads: 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
Sec. 7. Domestic Requirements for the Entry into Force of to ratify it.[21] Although the refusal of a state to ratify a treaty which
a Treaty or an Executive Agreement. The domestic requirements for has been signed in its behalf is a serious step that should not be taken
the entry into force of a treaty or an executive agreement, or any lightly,[22]such decision is within the competence of the President
amendment thereto, shall be as follows: alone, which cannot be encroached by this Court via a writ
of mandamus. This Court has no jurisdiction over actions seeking to
A. Executive Agreements. enjoin the President in the performance of his official duties.[23] The
Court, therefore, cannot issue the writ of mandamus prayed for by
i. All executive agreements shall be transmitted to the the petitioners as it is beyond its jurisdiction to compel the executive
Department of Foreign Affairs after their signing for the preparation branch of the government to transmit the signed text of Rome Statute
of the ratification papers. The transmittal shall include the highlights to the Senate.
of the agreements and the benefits which will accrue to the
Philippines arising from them. IN VIEW WHEREOF, the petition is DISMISSED.

ii. The Department of Foreign Affairs, pursuant to the SO ORDERED.


endorsement by the concerned agency, shall transmit the
agreements to the President of the Philippines for his ratification. The
original signed instrument of ratification shall then be returned to the
Department of Foreign Affairs for appropriate action.
B. Treaties.

i. All treaties, regardless of their designation, shall comply


with the requirements provided in sub-paragraph[s] 1 and 2, item A
(Executive Agreements) of this Section. In addition, the Department
EN BANC

AKBAYAN CITIZENS ACTION PARTY (AKBAYAN), PAMBANSANG


KATIPUNAN NG MGA SAMAHAN SA KANAYUNAN (PKSK), G.R. No. 170516
ALLIANCE OF PROGRESSIVE LABOR (APL), VICENTE A. FABE,
ANGELITO R. MENDOZA, MANUEL P. QUIAMBAO, ROSE BEATRIX Present:
CRUZ-ANGELES, CONG. LORENZO R. TANADA III, CONG. MARIO x - -C.J.,
PUNO, - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
JOYO AGUJA, CONG. LORETA ANN P. ROSALES, CONG. ANA QUISUMBING,
THERESIA HONTIVEROS-BARAQUEL, AND CONG. EMMANUEL YNARES-SANTIAGO, DECISION
JOEL J. VILLANUEVA, CARPIO,
Petitioners, CARPIO MORALES, J.:
AUSTRIA-MARTINEZ,
CORONA,
- versus Petitioners
CARPIO MORALES, non-government organizations, Congresspersons, citizens
and taxpayers seek via the present petition for mandamus and
AZCUNA,
prohibition to obtain from respondents the full text of the Japan-
TINGA,
THOMAS G. AQUINO, in his capacity as Undersecretary of the Philippines Economic Partnership Agreement (JPEPA) including the
CHICO-NAZARIO,
Department of Trade and Industry (DTI) and Chairman and Chief Philippine
VELASCO, JR., and Japanese offers submitted during the negotiation
Delegate of the Philippine Coordinating Committee (PCC) for the process and all pertinent attachments and annexes thereto.
NACHURA,
Japan-Philippines Economic Partnership Agreement, EDSEL T. REYES,
CUSTODIO, in his capacity as Undersecretary of the Department LEONARDO-DEPetitioners
CASTRO, &Congressmen Lorenzo R. Taada III and Mario
of Foreign Affairs (DFA) and Co-Chair of the PCC for the JPEPA, Joyo
BRION, JJ.Agujafiled on January 25, 2005 House Resolution No. 551 calling
EDGARDO ABON, in his capacity as Chairman of the Tariff for an inquiry into the bilateral trade agreements then being
Commission and lead negotiator for Competition Policy and negotiated by the Philippine government, particularly the JPEPA. The
Emergency Measures of the JPEPA, MARGARITA SONGCO, in her Resolution became the basis of an inquiry subsequently conducted by
capacity as Assistant Director-General of the National Economic the House Special Committee on Globalization (the House
Development Authority (NEDA) and lead negotiator for Trade in Committee) into the negotiations of the JPEPA.
Services and Cooperation of the JPEPA, MALOU MONTERO, in her
capacity as Foreign Service Officer I, Office of the Undersecretary In the course of its inquiry, the House Committee requested herein
for International Economic Relations of the DFA and lead respondent Undersecretary Tomas Aquino (Usec. Aquino), Chairman
negotiator for the General and Final Provisions of the JPEPA, of the Philippine Coordinating Committee created under Executive
ERLINDA ARCELLANA, in her capacity as Director of the Board of Order No. 213 (CREATION OF A PHILIPPINE COORDINATING
Investments and lead negotiator for Trade in Goods (General COMMITTEE TO STUDY THE FEASIBILITY OF THE JAPAN-PHILIPPINES
Rules) of the JPEPA, RAQUEL ECHAGUE, in her capacity as lead ECONOMIC PARTNERSHIP AGREEMENT)[1] to study and negotiate the
Promulgated:
negotiator for Rules of Origin of the JPEPA, GALLANT SORIANO, proposed JPEPA, and to furnish the Committee with a copy of the
in his official capacity as Deputy Commissioner of the Bureau of latest draft of the JPEPA. Usec. Aquino did not heed the request,
Customs and lead negotiator for Customs Procedures and however.
July 16, 2008
Paperless Trading of the JPEPA, MA. LUISA GIGETTE IMPERIAL, in
her capacity as Director of the Bureau of Local Employment of the Congressman Aguja later requested for the same document,
Department of Labor and Employment (DOLE) and lead but Usec. Aquino, by letter of November 2, 2005, replied that the
negotiator for Movement of Natural Persons of the JPEPA, Congressman shall be provided with a copy thereof once the
PASCUAL DE GUZMAN, in his capacity as Director of the Board of negotiations are completed and as soon as a thorough legal review of
Investments and lead negotiator for Investment of the JPEPA, the proposed agreement has been conducted.
JESUS MOTOOMULL, in his capacity as Director for the Bureau of
Product Standards of the DTI and lead negotiator for Mutual In a separate move, the House Committee, through
Recognition of the JPEPA, LOUIE CALVARIO, in his capacity as lead Congressman Herminio G. Teves, requested Executive Secretary
negotiator for Intellectual Property of the JPEPA, ELMER H. Eduardo Ermita to furnish it with all documents on the subject
DORADO, in his capacity as Officer-in-Charge of the Government including the latest draft of the proposed agreement, the requests
Procurement Policy Board Technical Support Office, the and offers etc.[2] Acting on the request, Secretary Ermita, by letter
government agency that is leading the negotiations on of June 23, 2005, wrote Congressman Teves as follows:
Government Procurement of the JPEPA, RICARDO V. PARAS, in his
capacity as Chief State Counsel of the Department of Justice (DOJ) In its letter dated 15 June 2005 (copy enclosed),
and lead negotiator for Dispute Avoidance and Settlement of the [the] D[epartment of] F[oreign] A[ffairs] explains
JPEPA, ADONIS SULIT, in his capacity as lead negotiator for the that the Committees request to be furnished all
General and Final Provisions of the JPEPA, EDUARDO R. ERMITA, documents on the JPEPA may be difficult to
in his capacity as Executive Secretary, and ALBERTO ROMULO, in accomplish at this time, since the proposed
his capacity as Secretary of the DFA,* Agreement has been a work in progress for
Respondents. about three years. A copy of the draft JPEPA will
however be forwarded to the Committee as soon
as the text thereof is settled and complete.
(Emphasis supplied)

Congressman Aguja also requested NEDA Director-


General Romulo Neriand Tariff Commission Chairman Edgardo Abon,
by letter of July 1, 2005, for copies of the latest text of the JPEPA.
therefore, part of the general public which possesses the right.[9] As
Chairman Abon replied, however, by letter of July 12, the present petition is anchored on the right to information and
2005 that the Tariff Commission does not have a copy of the petitioners are all suing in their capacity as citizens and groups of
documents being requested, albeit he was certain citizens including petitioners-members of the House of
that Usec. Aquino would provide the Congressman with a copy once Representatives who additionally are suing in their capacity as such,
the negotiation is completed. And by letter of July 18, 2005, NEDA the standing of petitioners to file the present suit is grounded in
Assistant Director-General Margarita R. Songco informed the jurisprudence.
Congressman that his request addressed to Director-
General Neri had been forwarded to Usec. Aquinowho would be in Mootness
the best position to respond to the request.
Considering, however, that [t]he principal relief petitioners are
In its third hearing conducted on August 31, 2005, the House praying for is the disclosure of the contents of the JPEPA prior to its
Committee resolved to issue a subpoena for the most recent draft of finalization between the two States parties,[10] public disclosure of the
the JPEPA, but the same was not pursued because by Committee text of the JPEPA after its signing by the President, during
Chairman Congressman Tevesinformation, then House Speaker Jose the pendency of the present petition, has been largely rendered
de Venecia had requested him to hold in abeyance the issuance of the moot and academic.
subpoena until the President gives her consent to the disclosure of
the documents.[3] With the Senate deliberations on the JPEPA still pending, the
agreement as it now stands cannot yet be considered as final and
Amid speculations that the JPEPA might be signed by the Philippine binding between the two States. Article 164 of the JPEPA itself
government within December 2005, the present petition was filed provides that the agreement does not take effect immediately upon
on December 9, 2005.[4] The agreement was to be later signed the signing thereof. For it must still go through the procedures
on September 9, 2006 by President Gloria Macapagal-Arroyo and required by the laws of each country for its entry into force, viz:
Japanese Prime Minister JunichiroKoizumi in Helsinki, Finland,
following which the President endorsed it to the Senate for its Article 164
concurrence pursuant to Article VII, Section 21 of the Constitution. To Entry into Force
date, the JPEPA is still being deliberated upon by the Senate.
This Agreement shall enter into force on the
The JPEPA, which will be the first bilateral free trade agreement to be thirtieth day after the date on which the
entered into by the Philippines with another country in the event the Governments of the Parties exchange diplomatic
Senate grants its consent to it, covers a broad range of topics which notes informing each other that their respective
respondents enumerate as follows: trade in goods, rules of origin, legal procedures necessary for entry into force of
customs procedures, paperless trading, trade in services, investment, this Agreement have been completed. It shall
intellectual property rights, government procurement, movement of remain in force unless terminated as provided for
natural persons, cooperation, competition policy, mutual recognition, in Article 165.[11] (Emphasis supplied)
dispute avoidance and settlement, improvement of the business
environment, and general and final provisions.[5]
President Arroyos endorsement of the JPEPA to the Senate for
While the final text of the JPEPA has now been made accessible to the concurrence is part of the legal procedures which must be met prior
public since September 11, 2006,[6] respondents do not dispute that, to the agreements entry into force.
at the time the petition was filed up to the filing of petitioners Reply
when the JPEPA was still being negotiated the initial drafts thereof The text of the JPEPA having then been made accessible to the public,
were kept from public view. the petition has become moot and academic to the extent that it
seeks the disclosure of the full text thereof.
Before delving on the substantive grounds relied upon by petitioners
in support of the petition, the Court finds it necessary to first resolve The petition is not entirely moot, however, because
some material procedural issues. petitioners seek to obtain, not merely the text of the JPEPA, but also
the Philippine and Japanese offers in the course of the
Standing negotiations.[12]

For a petition for mandamus such as the one at bar to be given due A discussion of the substantive issues, insofar as they impinge on
course, it must be instituted by a party aggrieved by the alleged petitioners demand for access to the Philippine and Japanese offers,
inaction of any tribunal, corporation, board or person which is thus in order.
unlawfully excludes said party from the enjoyment of a legal
right.[7] Respondents deny that petitioners have such standing to
sue. [I]n the interest of a speedy and definitive resolution of the
substantive issues raised, however, respondents consider it sufficient
to cite a portion of the ruling in Pimentel v. Office of Executive Grounds relied upon by petitioners
Secretary[8] which emphasizes the need for a personal stake in the
outcome of the controversy on questions of standing. Petitioners assert, first, that the refusal of the government to disclose
the documents bearing on the JPEPA negotiations violates their right
In a petition anchored upon the right of the people to information on to information on matters of public concern[13] and contravenes
matters of public concern, which is a public right by its very nature, other constitutional provisions on transparency, such as that on the
petitioners need not show that they have any legal or special interest policy of full public disclosure of all transactions involving public
in the result, it being sufficient to show that they are citizens and, interest.[14] Second, they contend that non-disclosure of the same
documents undermines their right to effective and reasonable respondents particularly respondent DTI Senior
participation in all levels of social, political, and economic decision- Undersecretary.
making.[15] Lastly, they proffer that divulging the contents of the
JPEPA only after the agreement has been concluded will effectively The documents on the proposed JPEPA as well as the text
make the Senate into a mere rubber stamp of the Executive, in which is subject to negotiations and legal review by the
violation of the principle of separation of powers. parties fall under the exceptions to the right of access to
information on matters of public concern and policy of
Significantly, the grounds relied upon by petitioners for the disclosure public disclosure. They come within the coverage of
of the latest text of the JPEPA are, except for the last, the same as executive privilege. At the timewhen the Committee was
those cited for the disclosure of the Philippine and Japanese offers. requesting for copies of such documents, the negotiations
were ongoing as they are still now and the text of the
The first two grounds relied upon by petitioners which bear on the proposed JPEPA is still uncertain and subject to
merits of respondents claim of privilege shall be discussed. The last, change. Considering the status and nature of such
being purely speculatory given that the Senate is still deliberating on documents then and now, these are evidently covered by
the JPEPA, shall not. executive privilege consistent with existing legal provisions
and settled jurisprudence.
The JPEPA is a matter of public concern
Practical and strategic considerations likewise counsel
To be covered by the right to information, the information sought against the disclosure of the rolling texts which may
must meet the threshold requirement that it be a matter of public undergo radical change or portions of which may be totally
concern. Apropos is the teaching of Legaspi v. Civil Service abandoned. Furthermore, the negotiations of the
Commission: representatives of the Philippines as well as of Japan must
be allowed to explore alternatives in the course of the
In determining whether or not a particular information is of public negotiations in the same manner as judicial deliberations
concern there is no rigid test which can be applied. Public concern like and working drafts of opinions are accorded strict
public interest is a term that eludes exact definition. Both terms confidentiality.[22] (Emphasis and underscoring supplied)
embrace a broad spectrum of subjects which the public may want to
know, either because these directly affect their lives, or simply
because such matters naturally arouse the interest of an ordinary The ground relied upon by respondents is thus not simply that the
citizen. In the final analysis, it is for the courts to determine on a case information sought involves a diplomatic matter, but that it pertains
by case basis whether the matter at issue is of interest or importance, to diplomatic negotiations then in progress.
as it relates to or affects the public.[16] (Underscoring supplied)
Privileged character of diplomatic negotiations

From the nature of the JPEPA as an international trade agreement, it The privileged character of diplomatic negotiations has been
is evident that the Philippine and Japanese offers submitted during recognized in this jurisdiction. In discussing valid limitations on the
the negotiations towards its execution are matters of public right to information, the Court in Chavez v. PCGG held that
concern. This, respondents do not dispute. They only claim that information on inter-government exchanges prior to the conclusion
diplomatic negotiations are covered by the doctrine of executive of treaties and executive agreements may be subject to reasonable
privilege, thus constituting an exception to the right to information safeguards for the sake of national interest.[23] Even earlier, the same
and the policy of full public disclosure. privilege was upheld in Peoples Movement for Press Freedom (PMPF)
v. Manglapus[24] wherein the Court discussed the reasons for the
Respondents claim of privilege privilege in more precise terms.

It is well-established in jurisprudence that neither the right to In PMPF v. Manglapus, the therein petitioners were seeking
information nor the policy of full public disclosure is absolute, there information from the Presidents representatives on the state of the
being matters which, albeit of public concern or public interest, are then on-going negotiations of the RP-US Military Bases
recognized as privileged in nature. The types of information which Agreement.[25] The Court denied the petition, stressing that secrecy
may be considered privileged have been elucidated in Almonte v. of negotiations with foreign countries is not violative of the
Vasquez,[17] Chavez v. PCGG,[18] Chavez v. Public Estates constitutional provisions of freedom of speech or of the press nor of
Authority,[19] and most recently in Senate v. Ermita[20] where the the freedom of access to information. The Resolution went on to
Court reaffirmed the validity of the doctrine of executive privilege in state, thus:
this jurisdiction and dwelt on its scope.
The nature of diplomacy requires centralization of authority and
Whether a claim of executive privilege is valid depends on the ground expedition of decision which are inherent in executive
invoked to justify it and the context in which it is made.[21] In the action. Another essential characteristic of diplomacy is its
present case, the ground for respondents claim of privilege is set forth confidential nature. Although much has been said about open and
in their Comment, viz: secret diplomacy, with disparagement of the latter, Secretaries of
State Hughes and Stimson have clearly analyzed and justified the
x x x The categories of information that may be considered practice. In the words of Mr. Stimson:
privileged includes matters of diplomatic character and
under negotiation and review. In this case, the privileged A complicated negotiation . . . cannot be carried through without
character of the diplomatic negotiations has been many, many private talks and discussion, man to man; many
categorically invoked and clearly explained by tentative suggestions and proposals. Delegates from other
countries come and tell you in confidence of their troubles at home
and of their differences with other countries and with other negotiators have to be willing to grant concessions in an area of
delegates; they tell you of what they would do under certain lesser importance in order to obtain more favorable terms in an area
circumstances and would not do under other circumstances. . . If of greater national interest. Aproposare the following observations
these reports . . . should become public . . . who would ever of Benjamin S. Duval, Jr.:
trust American Delegations in another conference? (United States
Department of State, Press Releases, June 7, 1930, pp. 282-284.). x x x [T]hose involved in the practice of negotiations appear to be in
agreement that publicity leads to grandstanding, tends to freeze
xxxx negotiating positions, and inhibits the give-and-take essential to
successful negotiation. As Sissela Bok points out, if negotiators have
There is frequent criticism of the secrecy in which negotiation with more to gain from being approved by their own sides than by making
foreign powers on nearly all subjects is concerned. This, it is claimed, a reasoned agreement with competitors or adversaries, then they are
is incompatible with the substance of democracy. As expressed by inclined to 'play to the gallery . . .'' In fact, the public reaction may
one writer, It can be said that there is no more rigid system of silence leave them little option. It would be a brave, or foolish, Arab leader
anywhere in the world. (E.J. Young, Looking Behind the Censorship, J. who expressed publicly a willingness for peace with Israel that did not
B. Lippincott Co., 1938) President Wilson in starting his efforts for the involve the return of the entire West Bank, or Israeli leader who
conclusion of the World War declared that we must have open stated publicly a willingness to remove Israel's existing settlements
covenants, openly arrived at. He quickly abandoned his thought. from Judea and Samaria in return for peace.[28] (Emphasis supplied)

No one who has studied the question believes that such a method of Indeed, by hampering the ability of our representatives to
publicity is possible. In the moment that negotiations are started, compromise, we may be jeopardizing higher national goals for the
pressure groups attempt to muscle in. An ill-timed speech by one of sake of securing less critical ones.
the parties or a frank declaration of the concession which are
exacted or offered on both sides would quickly lead to widespread Diplomatic negotiations, therefore, are recognized as privileged in
propaganda to block the negotiations.After a treaty has been this jurisdiction, the JPEPA negotiations constituting no exception. It
drafted and its terms are fully published, there is ample opportunity bears emphasis, however, that such privilege is only presumptive. For
for discussion before it is approved. (The New American Government as Senate v. Ermita holds, recognizing a type of information as
and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and privileged does not mean that it will be considered privileged in all
underscoring supplied) instances. Only after a consideration of the context in which the claim
is made may it be determined if there is a public interest that calls for
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. the disclosure of the desired information, strong enough to overcome
v.Curtiss-Wright Export Corp.[26] that the President is the sole organ of its traditionally privileged status.
the nation in its negotiations with foreign countries, viz:
Whether petitioners have established the presence of such a public
x x x In this vast external realm, with its important, complicated, interest shall be discussed later. For now, the Court shall first pass
delicate and manifold problems, the President alone has the power upon the arguments raised by petitioners against the application
to speak or listen as a representative of the nation. He makes treaties of PMPF v. Manglapus to the present case.
with the advice and consent of the Senate; but he alone
negotiates. Into the field of negotiation the Senate cannot intrude; Arguments proffered by petitioners against the application of PMPF
and Congress itself is powerless to invade it. As Marshall said in his v. Manglapus
great argument of March 7, 1800, in the House of
Representatives, The President is the sole organ of the nation in its
external relations, and its sole representative with foreign Petitioners argue that PMPF v. Manglapus cannot be
nations. Annals, 6th Cong., col. 613. . . (Emphasis supplied; applied in toto to the present case, there being substantial factual
underscoring in the original) distinctions between the two.

To petitioners, the first and most fundamental


Applying the principles adopted in PMPF v. Manglapus, it is clear that distinction lies in the nature of the treaty involved. They stress
while the final text of the JPEPA may not be kept perpetually that PMPF v. Manglapus involved the Military Bases Agreement
confidential since there should be ample opportunity for discussion which necessarily pertained to matters affecting national security;
before [a treaty] is approved the offers exchanged by the parties whereas the present case involves an economic treaty that seeks to
during the negotiations continue to be privileged even after the JPEPA regulate trade and commerce between the Philippines and Japan,
is published. It is reasonable to conclude that the Japanese matters which, unlike those covered by the Military Bases Agreement,
representatives submitted their offers with the understanding are not so vital to national security to disallow their disclosure.
that historic confidentiality[27] would govern the same. Disclosing
these offers could impair the ability of the Philippines to deal not only Petitioners argument betrays a faulty assumption that information,
with Japan but with other foreign governments in to be considered privileged, must involve national security. The
future negotiations. recognition in Senate v. Ermita[29] that executive privilege has
encompassed claims of varying kinds, such that it may even be more
A ruling that Philippine offers in treaty negotiations should now be accurate to speak of executive privileges, cautions against such
open to public scrutiny would discourage future Philippine generalization.
representatives from frankly expressing their views during
negotiations. While, on first impression, it appears wise to deter While there certainly are privileges grounded on the necessity of
Philippine representatives from entering into compromises, it bears safeguarding national security such as those involving military
noting that treaty negotiations, or any negotiation for that secrets, not all are founded thereon. One example is the informers
matter, normallyinvolve a process of quid pro quo, and oftentimes privilege, or the privilege of the Government not to disclose the
identity of a person or persons who furnish information of violations negotiations arises, not on account of the content of the
of law to officers charged with the enforcement of that law.[30] The information per se, but because the information is part of a process
suspect involved need not be so notorious as to be a threat to national of deliberation which, in pursuit of the public interest, must be
security for this privilege to apply in any given instance. Otherwise, presumed confidential.
the privilege would be inapplicable in all but the most high-profile
cases, in which case not only would this be contrary to long-standing The decision of the U.S. District Court, District of
practice. It would also be highly prejudicial to law enforcement efforts Columbia in Fulbright & Jaworski v. Department of the
in general. Treasury[37] enlightens on the close relation between diplomatic
negotiations and deliberative process privileges. The plaintiffs in that
Also illustrative is the privilege accorded to presidential case sought access to notes taken by a member of the U.S.negotiating
communications, which are presumed privileged without team during the U.S.-French tax treaty negotiations. Among the
distinguishing between those which involve matters of national points noted therein were the issues to be discussed, positions which
security and those which do not, the rationale for the privilege being the French and U.S. teams took on some points, the draft language
that agreed on, and articles which needed to be amended. Upholding the
confidentiality of those notes, Judge Green ruled, thus:
x x x [a] frank exchange of exploratory ideas and
assessments, free from the glare of publicity and Negotiations between two countries to draft a
pressure by interested parties, is essential to treaty represent a true example of a deliberative
protect the independence of decision-making of process. Much give-and-take must occur for the
those tasked to exercise Presidential, Legislative countries to reach an accord. A description of the
and Judicial power. x x x[31] (Emphasis supplied) negotiations at any one point would not provide
an onlooker a summary of the discussions which
could later be relied on as law. It would not be
In the same way that the privilege for judicial deliberations does not working law as the points discussed and positions
depend on the nature of the case deliberated upon, so presidential agreed on would be subject to change at any date
communications are privileged whether they involve matters of until the treaty was signed by the President and
national security. ratified by the Senate.
It bears emphasis, however, that the privilege accorded to
presidential communications is not absolute, one significant The policies behind the deliberative process
qualification being that the Executive cannot, any more than the privilege support non-disclosure. Much harm
other branches of government, invoke a general confidentiality could accrue to the negotiations process if these
privilege to shield its officials and employees from investigations by notes were revealed. Exposure of the pre-
the proper governmental institutions into possible criminal agreement positions of the French negotiators
wrongdoing. [32] This qualification applies whether the privilege is might well offend foreign governments and
being invoked in the context of a judicial trial or a congressional would lead to less candor by the U. S. in
investigation conducted in aid of legislation.[33] recording the events of the negotiations
process. As several months pass in between
Closely related to the presidential communications privilege is negotiations, this lack of record could hinder
the deliberative process privilege recognized in the United States. As readily the U. S. negotiating team. Further
discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & disclosure would reveal prematurely adopted
Co,[34] deliberative process covers documents reflecting advisory policies. If these policies should be changed,
opinions, recommendations and deliberations comprising part of a public confusion would result easily.
process by which governmental decisions and policies are
formulated. Notably, the privileged status of such documents Finally, releasing these snapshot views of the
rests,not on the need to protect national security but, on the obvious negotiations would be comparable to releasing
realization that officials will not communicate candidly among drafts of the treaty, particularly when the notes
themselves if each remark is a potential item of discovery and front state the tentative provisions and language
page news, the objective of the privilege being to enhance the quality agreed on. As drafts of regulations typically are
of agency decisions. [35] protected by the deliberative process
privilege,Arthur Andersen & Co. v. Internal
The diplomatic negotiations privilege bears a close resemblance to Revenue Service, C.A. No. 80-705 (D.C.Cir., May
the deliberative process and presidential communications privilege. It 21, 1982), drafts of treaties should be accorded
may be readily perceived that the rationale for the confidential the same protection. (Emphasis and
character of diplomatic negotiations, deliberative process, and underscoring supplied)
presidential communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus[36] shows that the
privilege for diplomatic negotiations is meant to encourage a frank Clearly, the privilege accorded to diplomatic negotiations follows
exchange of exploratory ideas between the negotiating parties by as a logical consequence from the privileged character of the
shielding such negotiations from public view. Similar to the privilege deliberative process.
for presidential communications, the diplomatic negotiations
privilege seeks, through the same means, to protect the
independence in decision-making of the President, particularly in its
capacity as the sole organ of the nation in its external relations, and The Court is not unaware that in Center for International
its sole representative with foreign nations. And, as with the Environmental Law (CIEL), et al. v. Office of U.S.
deliberative process privilege, the privilege accorded to diplomatic Trade Representative[38] where the plaintiffs sought information
relating to the just-completed negotiation of a United States-Chile Nonetheless, for reasons which shall be discussed shortly, this Court
Free Trade Agreement the same district court, this time under Judge echoes the principle articulated in Fulbright that the public policy
Friedman, consciously refrained from applying the doctrine underlying the deliberative process privilege requires that
in Fulbright and ordered the disclosure of the information being diplomatic negotiations should also be accorded privileged status,
sought. even if the documents subject of the present case cannot be
described as purely internal in character.

Since the factual milieu in CIEL seemed to call for the straight
application of the doctrine in Fulbright, a discussion of why the It need not be stressed that in CIEL, the court ordered the disclosure
district court did not apply the same would help illumine this Courts of information based on its finding that the first requirement of FOIA
own reasons for deciding the present case along the lines Exemption 5 that the documents be inter-agency was not met. In
of Fulbright. determining whether the government may validly refuse disclosure
of the exchanges between the U.S.and Chile, it necessarily had to
deal with this requirement, it being laid down by a statute binding
on them.
In both Fulbright and CIEL, the U.S. government cited a statutory
basis for withholding information, namely, Exemption 5 of the
Freedom of Information Act (FOIA).[39] In order to qualify for
protection under Exemption 5, a document must satisfy two In this jurisdiction, however, there is no counterpart of the FOIA, nor
conditions: (1) it must be either inter-agency or intra-agency in is there any statutory requirement similar to FOIA Exemption 5 in
nature, and (2) it must be both pre-decisional and part of the particular. Hence, Philippine courts, when assessing a claim of
agency's deliberative or decision-making process.[40] privilege for diplomatic negotiations, are more free to focus directly
on the issue of whether the privilege being claimed is
indeed supported by public policy, without having to consider as
the CIEL court did if these negotiations fulfill a formal requirement
Judge Friedman, in CIEL, himself cognizant of a superficial similarity of being inter-agency. Important though that requirement may be in
of context between the two cases, based his decision on what he the context of domestic negotiations, it need not be accorded the
perceived to be a significant distinction: he found the negotiators same significance when dealing with international negotiations.
notes that were sought inFulbright to be clearly internal, whereas
the documents being sought in CIELwere those produced by or
exchanged with an outside party, i.e. Chile. The documents subject
of Fulbright being clearly internal in character, the question of There being a public policy supporting a privilege for diplomatic
disclosure therein turned not on the threshold requirement of negotiations for the reasons explained above, the Court sees no
Exemption 5 that the document be inter-agency, but on whether the reason to modify, much less abandon, the doctrine in PMPF
documents were part of the agency's pre-decisional deliberative v. Manglapus.
process. On this basis, Judge Friedman found that Judge Green's
discussion [in Fulbright] of the harm that could result from disclosure
therefore is irrelevant, since the documents at issue [in CIEL] are
not inter-agency, and the Court does not reach the question of A second point petitioners proffer in their attempt to
deliberative process. (Emphasis supplied) differentiate PMPF v. Manglapus from the present case is the fact
that the petitioners therein consisted entirely of members of the
mass media, while petitioners in the present case include members
of the House of Representatives who invoke their right to information
In fine, Fulbright was not overturned. The court in CIEL merely found not just as citizens but as members of Congress.
the same to be irrelevant in light of its distinct factual
setting. Whether this conclusion was valid a question on which this
Court would not pass the ruling in Fulbrightthat
[n]egotiations between two countries to draft a treaty represent a
true example of a deliberative process was left standing, since Petitioners thus conclude that the present case involves the right of
the CIEL court explicitly stated that it did not reach the question of members of Congress to demand information on negotiations of
deliberative process. international trade agreements from the Executive branch, a matter
which was not raised in PMPF v. Manglapus.

While indeed the petitioners in PMPF v. Manglapus consisted only of


Going back to the present case, the Court recognizes that members of the mass media, it would be incorrect to claim that the
the information sought by petitioners includes documents produced doctrine laid down therein has no bearing on a controversy such as
and communicated by a party external to the Philippine government, the present, where the demand for information has come from
namely, the Japanese representatives in the JPEPA negotiations, and members of Congress, not only from private citizens.
to that extent this case is closer to the factual circumstances
of CIEL than those of Fulbright. The privileged character accorded to diplomatic negotiations does
not ipso facto lose all force and effect simply because the same
privilege is now being claimed under different
circumstances. The probability of the claim succeeding in the new
context might differ, but to say that the privilege, as such, has no the duty to disclose definite propositions of the government does not
validity at all in that context is another matter altogether. apply to diplomatic negotiations:

The Courts statement in Senate v. Ermita that presidential refusals to We rule, therefore, that the constitutional right to
furnish information may be actuated by any of at least three distinct information includes official information on on-
kinds of considerations [state secrets privilege, informers privilege, going negotiations before a final contract. The
and a generic privilege for internal deliberations], and may be information, however, must constitute definite
asserted, with differing degrees of success, in the context of either propositions by the government and should not
judicial or legislative investigations,[41]implies that a privilege, once cover recognized exceptions like privileged
recognized, may be invoked under different procedural settings. That information, military and diplomatic secrets and
this principle holds true particularly with respect to diplomatic similar matters affecting national security and
negotiations may be inferred from PMPF v. Manglapus itself, where public order. x x x[46] (Emphasis and underscoring
the Court held that it is the President alone who negotiates treaties, supplied)
and not even the Senate or the House of Representatives, unless
asked, may intrude upon that process.
It follows from this ruling that even definite propositions of the
Clearly, the privilege for diplomatic negotiations may be government may not be disclosed if they fall under recognized
invoked not only against citizens demands for information, but also in exceptions. The privilege for diplomatic negotiations is clearly among
the context of legislative investigations. the recognized exceptions, for the footnote to the immediately
quoted ruling cites PMPF v. Manglapus itself as an authority.
Hence, the recognition granted in PMPF v. Manglapus to the
privileged character of diplomatic negotiations cannot be considered Whether there is sufficient public interest to overcome the claim of
irrelevant in resolving the present case, the contextual differences privilege
between the two cases notwithstanding.
As third and last point raised against the application
of PMPF v. Manglapus in this case, petitioners proffer that the socio- It being established that diplomatic negotiations enjoy a presumptive
political and historical contexts of the two cases are worlds privilege against disclosure, even against the demands of members of
apart. They claim that the constitutional traditions and concepts Congress for information, the Court shall now determine whether
prevailing at the time PMPF v. Manglapus came about, particularly petitioners have shown the existence of a public interest sufficient to
the school of thought that the requirements of foreign policy and the overcome the privilege in this instance.
ideals of transparency were incompatible with each other or the
incompatibility hypothesis, while valid when international relations To clarify, there are at least two kinds of public interest that
were still governed by power, politics and wars, are no longer so in must be taken into account. One is the presumed public interest in
this age of international cooperation.[42] favor of keeping the subject information confidential, which is the
reason for the privilege in the first place, and the other is the public
Without delving into petitioners assertions respecting the interest in favor of disclosure, the existence of which must be shown
incompatibility hypothesis, the Court notes that the ruling in PMPF by the party asking for information. [47]
v. Manglapus is grounded more on the nature of treaty negotiations
as such than on a particular socio-political school of thought. If The criteria to be employed in determining whether there is a
petitioners are suggesting that the nature of treaty negotiations have sufficient public interest in favor of disclosure may be gathered from
so changed that [a]n ill-timed speech by one of the parties or a frank cases such as U.S. v. Nixon,[48] Senate Select Committee on
declaration of the concession which are exacted or offered on both Presidential Campaign Activities v. Nixon,[49]and In re Sealed Case.[50]
sides no longer lead[s] to widespread propaganda to block the
negotiations, or that parties in treaty negotiations no longer expect U.S. v. Nixon, which involved a claim of the presidential
their communications to be governed by historic confidentiality, the communications privilege against the subpoena duces tecum of a
burden is on them to substantiate the same. This petitioners failed to district court in a criminal case, emphasized the need to balance such
discharge. claim of privilege against the constitutional duty of courts to ensure a
fair administration of criminal justice.
Whether the privilege applies only at certain stages of the
negotiation process x x x the allowance of the privilege to withhold
evidence that is demonstrably relevant in a
criminal trial would cut deeply into the
Petitioners admit that diplomatic negotiations on the JPEPA are guarantee of due process of law and gravely
entitled to a reasonable amount of confidentiality so as not to impair the basic function of the courts. A
jeopardize the diplomatic process. They argue, however, that the Presidents acknowledged need for
same is privileged only at certain stages of the negotiating process, confidentiality in the communications of his
after which such information must necessarily be revealed to the office is general in nature, whereas
public.[43] They add that the duty to disclose this information was the constitutional need for production of
vested in the government when the negotiations moved from the relevant evidence in a criminal proceeding is
formulation and exploratory stage to the firming up of definite specific and central to the fair adjudication of a
propositions or official recommendations, citing Chavez v. particular criminal case in the administration of
PCGG[44] and Chavez v. PEA.[45] justice. Without access to specific facts a criminal
prosecution may be totally frustrated. The
The following statement in Chavez v. PEA, however, suffices to show Presidents broad interest in confidentiality of
that the doctrine in both that case and Chavez v. PCGG with regard to communications will not be vitiated by disclosure
of a limited number of conversations Petitioners go on to assert that the non-involvement of the Filipino
preliminarily shown to have some bearing on the people in the JPEPA negotiation process effectively results in the
pending criminal cases. (Emphasis, italics and bargaining away of their economic and property rights without their
underscoring supplied) knowledge and participation, in violation of the due process clause of
the Constitution. They claim, moreover, that it is essential for the
Similarly, Senate Select Committee v. Nixon,[51] which people to have access to the initial offers exchanged during the
involved a claim of the presidential communications privilege against negotiations since only through such disclosure can their
the subpoena duces tecumof a Senate committee, spoke of the need constitutional right to effectively participate in decision-making be
to balance such claim with the duty of Congress to perform brought to life in the context of international trade agreements.
its legislative functions.
Whether it can accurately be said that the Filipino people were not
The staged decisional structure established involved in the JPEPA negotiations is a question of fact which this
in Nixon v. Sirica was designed to ensure that the Court need not resolve.Suffice it to state that respondents had
President and those upon whom he directly relies presented documents purporting to show that public consultations
in the performance of his duties could continue to were conducted on the JPEPA. Parenthetically, petitioners consider
work under a general assurance that their these alleged consultations as woefully selective and inadequate.[53]
deliberations would remain confidential. So long
as the presumption that the public interest AT ALL EVENTS, since it is not disputed that the offers exchanged by
favors confidentiality can be defeated only by the Philippine and Japanese representatives have not been disclosed
a strong showing of need by another institution to the public, the Court shall pass upon the issue of whether access to
of government- a showing that the the documents bearing on them is, as petitioners claim, essential to
responsibilities of that institution cannot their right to participate in decision-making.
responsibly be fulfilled without access to records
of the President's deliberations- we believed The case for petitioners has, of course, been immensely weakened by
in Nixon v. Sirica, and continue to believe, that the disclosure of the full text of the JPEPA to the public since
the effective functioning of the presidential office September 11, 2006, even as it is still being deliberated upon by the
will not be impaired. x x x Senate and, therefore, not yet binding on the Philippines. Were the
Senate to concur with the validity of the JPEPA at this moment, there
xxxx has already been, in the words of PMPF v.Manglapus, ample
opportunity for discussion before [the treaty] is approved.
The sufficiency of the Committee's showing of
need has come to depend, therefore, entirely on The text of the JPEPA having been published, petitioners have failed
whether the subpoenaed materials are critical to convince this Court that they will not be able to meaningfully
to the performance of its legislative exercise their right to participate in decision-making unless the initial
functions. x x x (Emphasis and underscoring offers are also published.
supplied)
It is of public knowledge that various non-government sectors and
private citizens have already publicly expressed their views on the
In re Sealed Case[52] involved a claim of the deliberative process and JPEPA, their comments not being limited to general observations
presidential communications privileges against a thereon but on its specific provisions. Numerous articles and
subpoena duces tecum of a grand jury. On the claim of deliberative statements critical of the JPEPA have been posted on the
process privilege, the court stated: Internet.[54] Given these developments, there is no basis for
petitioners claim that access to the Philippine and Japanese offers is
The deliberative process privilege is essential to the exercise of their right to participate in decision-
a qualified privilege and can be overcome making.
by a sufficient showing of need. This need
determination is to be made flexibly on a case- Petitioner-members of the House of Representatives
by-case, ad hoc basis. "[E]ach time [the additionally anchor their claim to have a right to the subject
deliberative process privilege] is asserted the documents on the basis of Congress inherent power to regulate
district court must undertake a fresh balancing of commerce, be it domestic or international. They allege that Congress
the competing interests," taking into account cannot meaningfully exercise the power to regulate international
factors such as "the relevance of the evidence," trade agreements such as the JPEPA without being given copies of the
"the availability of other evidence," "the initial offers exchanged during the negotiations thereof. In the same
seriousness of the litigation," "the role of the vein, they argue that the President cannot exclude Congress from the
government," and the "possibility of future JPEPA negotiations since whatever power and authority the President
timidity by government employees. has to negotiate international trade agreements is derived only by
x x x (Emphasis, italics and underscoring supplied) delegation of Congress, pursuant to Article VI, Section 28(2) of the
Constitution and Sections 401 and 402 of Presidential Decree No.
1464.[55]
Petitioners have failed to present the strong and sufficient showing of
needreferred to in the immediately cited cases. The arguments they The subject of Article VI Section 28(2) of the Constitution is
proffer to establish their entitlement to the subject documents fall not the power to negotiate treaties and international agreements,
short of this standard. but the power to fix tariff rates, import and export quotas, and other
taxes. Thus it provides:
(2) The Congress may, by law, authorize the withhold recognition, maintain diplomatic
President to fix within specified limits, and subject relations, enter into treaties, and otherwise
to such limitations and restrictions as it may transact the business of foreign relations. In the
impose, tariff rates, import and export quotas, realm of treaty-making, the President has the
tonnage and wharfage dues, and other duties or sole authority to negotiate with other states.
imposts within the framework of the national
development program of the Government. 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
As to the power to negotiate treaties, the constitutional basis thereof of all the members of the Senate for
is Section 21 of Article VII the article on the Executive Department the validity of the treaty entered into by him.
which states: x x x (Emphasis and underscoring supplied)

No treaty or international agreement shall be


valid and effective unless concurred in by at least While the power then to fix tariff rates and other taxes clearly belongs
two-thirds of all the Members of the Senate. to Congress, and is exercised by the President only by delegation of
that body, it has long been recognized that the power to enter into
treaties is vested directly and exclusively in the President, subject only
to the concurrence of at least two-thirds of all the Members of the
The doctrine in PMPF v. Manglapus that the treaty-making power is Senate for the validity of the treaty. In this light, the authority of the
exclusive to the President, being the sole organ of the nation in its President to enter into trade agreements with foreign nations
external relations, was echoed in BAYAN v. Executive provided under P.D. 1464[58] may be interpreted as an
Secretary[56] where the Court held: acknowledgment of a power already inherent in its office. It may not
be used as basis to hold the President or its representatives
By constitutional fiat and by the intrinsic nature accountable to Congress for the conduct of treaty negotiations.
of his office, the President, as head of State, is This is not to say, of course, that the Presidents power to enter into
the sole organ and authority in the external treaties is unlimited but for the requirement of Senate concurrence,
affairs of the country. In many ways, the since the President must still ensure that all treaties
President is the chief architect of the nation's will substantively conform to all the relevant provisions of the
foreign policy; his "dominance in the field of Constitution.
foreign relations is (then) conceded." Wielding
vast powers and influence, his conduct in the It follows from the above discussion that Congress, while
external affairs of the nation, possessing vast legislative powers, may not interfere in the field of
as Jefferson describes, is executive altogether. treaty negotiations. While Article VII, Section 21 provides for Senate
concurrence, such pertains only to the validity of the treaty under
As regards the power to enter into treaties or consideration, not to the conduct of negotiations attendant to its
international agreements, the Constitution vests conclusion. Moreover, it is not even Congress as a whole that has
the same in the President, subject only to the been given the authority to concur as a means of checking the treaty-
concurrence of at least two thirds vote of all the making power of the President, but only the Senate.
members of the Senate. In this light, the
negotiation of the VFA and the subsequent Thus, as in the case of petitioners suing in their capacity as private
ratification of the agreement are exclusive acts citizens, petitioners-members of the House of Representatives fail to
which pertain solely to the President, in the lawful present a sufficient showing of need that the information sought is
exercise of his vast executive and diplomatic critical to the performance of the functions of Congress, functions
powers granted him no less than by the that do not include treaty-negotiation.
fundamental law itself. Into the field of
negotiation the Senate cannot intrude, and Respondents alleged failure to timely claim executive privilege
Congress itself is powerless to invade
it. x x x(Italics in the original; emphasis and On respondents invocation of executive privilege, petitioners find the
underscoring supplied) same defective, not having been done seasonably as it was raised only
in their Comment to the present petition and not during the House
Committee hearings.
The same doctrine was reiterated even more recently in Pimentel v. That respondents invoked the privilege for the first time
Executive Secretary[57] where the Court ruled: only in their Comment to the present petition does not mean that the
claim of privilege should not be credited. Petitioners position
In our system of government, the President, presupposes that an assertion of the privilege should have been made
being the head of state, is regarded as the sole during the House Committee investigations, failing which
organ and authority in external relations and is respondents are deemed to have waived it.
the country's sole representative with foreign
nations. As the chief architect of foreign policy, When the House Committee and petitioner-
the President acts as the country's mouthpiece Congressman Aguja requestedrespondents for copies of the
with respect to international affairs. Hence, the documents subject of this case, respondents replied that the
President is vested with the authority to deal negotiations were still on-going and that the draft of the JPEPA would
with foreign states and governments, extend or be released once the text thereof is settled and complete. There was
no intimation that the requested copies are confidential in nature by concludes that it will be turning somersaults with history to contend
reason of public policy. The response may not thus be deemed a claim that the President is the sole organ for external relations in that
of privilege by the standards of Senate v. Ermita, which recognizes as jurisdiction. With regard to this opinion, We make only the following
claims of privilege only those which are accompanied by precise and observations:
certain reasons for preserving the confidentiality of the information
being sought. There is, at least, a core meaning of the phrase sole organ of the
nation in its external relations which is not being disputed, namely,
Respondents failure to claim the privilege during the House that the power to directlynegotiate treaties and international
Committee hearings may not, however, be construed as a waiver agreements is vested by our Constitution onlyin the Executive. Thus,
thereof by the Executive branch. As the immediately preceding the dissent states that Congress has the power to regulate commerce
paragraph indicates, what respondents received from the House with foreign nations but does not have the power to negotiate
Committee and petitioner-Congressman Aguja were international agreements directly.[62]
mere requests for information. And as priorly stated, the House
Committee itself refrained from pursuing its earlier resolution to issue What is disputed is how this principle applies to the case at
a subpoena duces tecum on account of then Speaker Jose bar.
de Venecias alleged request to Committee Chairperson
Congressman Teves to hold the same in abeyance. The dissent opines that petitioner-members of the House of
Representatives, by asking for the subject JPEPA documents, are not
While it is a salutary and noble practice for Congress to refrain from seeking to directly participate in the negotiations of the JPEPA, hence,
issuing subpoenas to executive officials out of respect for their office they cannot be prevented from gaining access to these documents.
until resort to it becomes necessary, the fact remains that such
requests are not a compulsory process. Being mere requests, they do On the other hand, We hold that this is one occasion where the
not strictly call for an assertion of executive privilege. following ruling in Agan v. PIATCO[63] and in other cases both before
The privilege is an exemption to Congress power of and since should be applied:
inquiry.[59] So long as Congress itself finds no cause to enforce such
power, there is no strict necessity to assert the privilege. In this light, This Court has long and consistently adhered to
respondents failure to invoke the privilege during the House the legal maxim that those that cannot be done
Committee investigations did not amount to a waiver thereof. directly cannot be done indirectly. To declare the
PIATCO contracts valid despite the clear statutory
The Court observes, however, that the claim of privilege appearing in prohibition against a direct government
respondents Comment to this petition fails to satisfy in full the guarantee would not only make a mockery of
requirement laid down in Senate v. Ermita that the claim should be what the BOT Law seeks to prevent -- which is to
invoked by the President or through the Executive Secretary by order expose the government to the risk of incurring a
of the President.[60] Respondents claim of privilege is being sustained, monetary obligation resulting from a contract of
however, its flaw notwithstanding, because of circumstances peculiar loan between the project proponent and its
to the case. lenders and to which the Government is not a
party to -- but would also render the BOT Law
The assertion of executive privilege by the Executive Secretary, who useless for what it seeks to achieve - to make use
is one of the respondents herein, without him adding the phrase by of the resources of the private sector in the
order of the President, shall be considered as partially complying with financing, operation and maintenance of
the requirement laid down in Senate v. Ermita. The requirement that infrastructure and development projects which
the phrase by order of the President should accompany the Executive are necessary for national growth and
Secretarys claim of privilege is a new rule laid down for the first time development but which the government,
in Senate v. Ermita, which was not yet final and executory at the time unfortunately, could ill-afford to finance at this
respondents filed their Comment to the petition.[61] A strict point in time.[64]
application of this requirement would thus be unwarranted in this
case. Similarly, while herein petitioners-members of the House of
Representatives may not have been aiming to participate in the
negotiations directly, opening the JPEPA negotiations to their scrutiny
Response to the Dissenting Opinion of the Chief Justice even to the point of giving them access to the offers exchanged
between the Japanese and Philippine delegations would have made a
We are aware that behind the dissent of the Chief Justice mockery of what the Constitution sought to prevent and rendered it
lies a genuine zeal to protect our peoples right to information against useless for what it sought to achieve when it vested the power of
any abuse of executive privilege. It is a zeal that We fully share. direct negotiation solely with the President.

The Court, however, in its endeavor to guard against the What the U.S. Constitution sought to prevent and aimed to achieve in
abuse of executive privilege, should be careful not to veer towards defining the treaty-making power of the President, which our
the opposite extreme, to the point that it would strike down as invalid Constitution similarly defines, may be gathered from Hamiltons
even a legitimate exercise thereof. explanation of why the U.S. Constitution excludes the House of
Representatives from the treaty-making process:
We respond only to the salient arguments of the Dissenting
Opinion which have not yet been sufficiently addressed above. x x x The fluctuating, and taking its future
increase into account, the multitudinous
1. After its historical discussion on the allocation of power over composition of that body, forbid us to expect in it
international trade agreements in the United States, the dissent those qualities which are essential to the proper
execution of such a trust. Accurate and strongly undermines the assertion that access to the same documents
comprehensive knowledge of foreign politics; a by the House Committee is critical to the performance of its legislative
steady and systematic adherence to the same functions. If the documents were indeed critical, the House
views; a nice and uniform sensibility to national Committee should have, at the very least, issued
character, decision, secrecy and dispatch; are a subpoena duces tecum or, like what the Senate did in Senate
incompatible with a body so variable and so v. Ermita, filed the present petition as a legislative body, rather than
numerous. The very complication of the business leaving it to the discretion of individual Congressmen whether to
by introducing a necessity of the concurrence of pursue an action or not. Such acts would have served as strong indicia
so many different bodies, would of itself afford a that Congress itself finds the subject information to be critical to its
solid objection. The greater frequency of the calls legislative functions.
upon the house of representatives, and the
greater length of time which it would often be Further, given that respondents have claimed executive privilege,
necessary to keep them together when petitioner-members of the House of Representatives should have, at
convened, to obtain their sanction in the least, shown how its lack of access to the Philippine and Japanese
progressive stages of a treaty, would be source of offers would hinder the intelligent crafting of
so great inconvenience and expense, as alone legislation. Mere assertion that the JPEPA covers a subject matter
ought to condemn the project.[65] over which Congress has the power to legislate would not
suffice. As Senate Select Committee v. Nixon[68] held, the showing
These considerations a fortiori apply in this jurisdiction, since the required to overcome the presumption favoring confidentiality turns,
Philippine Constitution, unlike that of the U.S., does not even not only on the nature and appropriateness of the function in the
grant the Senate the power to advise the Executive in the making of performance of which the material was sought, but also the degree
treaties, but only vests in that body the power to concur in the validity to which the material was necessary to its fulfillment.This petitioners
of the treaty after negotiations have been concluded. [66] Much less, failed to do.
therefore, should it be inferred that the House of Representatives has
this power. Furthermore, from the time the final text of the JPEPA including its
Since allowing petitioner-members of the House of Representatives annexes and attachments was published, petitioner-members of the
access to the subject JPEPA documents would set a precedent for House of Representatives have been free to use it for any legislative
future negotiations, leading to the contravention of the public purpose they may see fit. Since such publication, petitioners need, if
interests articulated above which the Constitution sought to protect, any, specifically for the Philippine and Japanese offers leading to the
the subject documents should not be disclosed. final version of the JPEPA, has become even less apparent.

2. The dissent also asserts that respondents can no longer In asserting that the balance in this instance tilts in favor of disclosing
claim the diplomatic secrets privilege over the subject JPEPA the JPEPA documents, the dissent contends that the Executive has
documents now that negotiations have been concluded, since their failed to show how disclosing them after the conclusion of
reasons for nondisclosure cited in the June 23, 2005 letter of negotiations would impair the performance of its functions. The
Sec. Ermita, and later in their Comment, necessarily apply only for as contention, with due respect, misplaces the onus probandi. While, in
long as the negotiations were still pending; keeping with the general presumption of transparency, the burden is
initially on the Executive to provide precise and certain reasons for
In their Comment, respondents contend that the upholding its claim of privilege, once the Executive is able to show
negotiations of the representatives of the Philippines as well as that the documents being sought are covered by a recognized
of Japan must be allowed to explore alternatives in the course of the privilege, the burden shifts to the party seeking information to
negotiations in the same manner as judicial deliberations and overcome the privilege by a strong showing of need.
working drafts of opinions are accorded strict confidentiality.That
respondents liken the documents involved in the JPEPA negotiations When it was thus established that the JPEPA documents are covered
to judicial deliberations and working drafts of opinions evinces, by by the privilege for diplomatic negotiations pursuant to PMPF
itself, that they were claiming confidentiality not only until, but v. Manglapus, the presumption arose that their disclosure would
even after, the conclusion of the negotiations. impair the performance of executive functions. It was then
incumbent on petitioner- requesting parties to show that they have a
Judicial deliberations do not lose their confidential character once a strong need for the information sufficient to overcome the
decision has been promulgated by the courts. The same holds true privilege. They have not, however.
with respect to working drafts of opinions, which are comparable to
intra-agency recommendations.Such intra-agency recommendations 4. Respecting the failure of the Executive Secretary to explicitly state
are privileged even after the position under consideration by the that he is claiming the privilege by order of the President, the same
agency has developed into a definite proposition, hence, the rule in may not be strictly applied to the privilege claim subject of this case.
this jurisdiction that agencies have the duty to disclose only definite
propositions, and not the inter-agency and intra-agency When the Court in Senate v. Ermita limited the power of invoking the
communications during the stage when common assertions are still privilege to the President alone, it was laying down a new rule for
being formulated.[67] which there is no counterpart even in the United States from which
the concept of executive privilege was adopted. As held in the 2004
3. The dissent claims that petitioner-members of the House case of Judicial Watch, Inc. v. Department of Justice,[69] citing In re
of Representatives have sufficiently shown their need for the same Sealed Case,[70] the issue of whether a President must personally
documents to overcome the privilege. Again, We disagree. invoke the [presidential communications] privilege remains an open
question. U.S. v. Reynolds,[71] on the other hand, held that [t]here
The House Committee that initiated the investigations on the JPEPA must be a formal claim of privilege, lodged by the head of the
did not pursue its earlier intention to subpoena the documents. This
department which has control over the matter, after actual personal Absurdity would be the ultimate result if, for instance, the Court
consideration by that officer. adopts the clear and present danger test for the assessment of claims
of privilege against citizensdemands for information. If executive
The rule was thus laid down by this Court, not in adherence to any information, when demanded by a citizen, is privileged only when
established precedent, but with the aim of preventing the abuse of there is a clear and present danger of a substantive evil that the State
the privilege in light of its highly exceptional nature. The Courts has a right to prevent, it would be very difficult for the Executive to
recognition that the Executive Secretary also bears the power to establish the validity of its claim in each instance. In contrast, if the
invoke the privilege, provided he does so by order of the President, is demand comes from Congress, the Executive merely has to show that
meant to avoid laying down too rigid a rule, the Court being aware the information is covered by a recognized privilege in order to shift
that it was laying down a new restriction on executive privilege. It is the burden on Congress to present a strong showing of need. This
with the same spirit that the Court should not be overly strict with would lead to a situation where it would be more difficult for
applying the same rule in this peculiar instance, where the claim of Congress to access executive information than it would be for
executive privilege occurred before the judgment in Senate private citizens.
v. Ermita became final.
We maintain then that when the Executive has already shown that an
5. To show that PMPF v. Manglapus may not be applied in the present information is covered by executive privilege, the party demanding
case, the dissent implies that the Court therein erred in citing US the information must present a strong showing of need, whether that
v. Curtiss Wright[72] and the book entitled The New American party is Congress or a private citizen.
Government and Its Work[73] since these authorities, so the dissent
claims, may not be used to calibrate the importance of the right to The rule that the same showing of need test applies in both these
information in the Philippine setting. contexts, however, should not be construed as a denial of the
importance of analyzing the context in which an executive privilege
The dissent argues that since Curtiss-Wright referred to a conflict controversy may happen to be placed.Rather, it affirms it, for it means
between the executive and legislative branches of government, the that the specific need being shown by the party seeking information
factual setting thereof was different from that of PMPF in every particular instance is highly significant in determining
v. Manglapus which involved a collision between governmental whether to uphold a claim of privilege. This need is, precisely, part of
power over the conduct of foreign affairs and the citizens right to the context in light of which every claim of privilege should be
information. assessed.

That the Court could freely cite Curtiss-Wright a case that Since, as demonstrated above, there are common principles that
upholds the secrecy of diplomatic negotiations should be applied to executive privilege controversies across different
against congressional demands for information in the course of laying contexts, the Court in PMPF v. Manglapus did not err when it cited
down a ruling on the public right to information only serves to the Curtiss-Wright case.
underscore the principle mentioned earlier that the privileged
character accorded to diplomatic negotiations does not ipso The claim that the book cited in PMPF v. Manglapus entitled The New
facto lose all force and effect simply because the same privilege is American Government and Its Work could not have taken into
now being claimed under different circumstances. account the expanded statutory right to information in the FOIA
assumes that the observations in that book in support of the
PMPF v. Manglapus indeed involved a demand for information from confidentiality of treaty negotiations would be different had it been
private citizens and not an executive-legislative conflict, but so written after the FOIA. Such assumption is, with due respect, at best,
did Chavez v. PEA[74]which held that the [publics] right to speculative.
information . . . does not extend to matters recognized as privileged
information under the separation of powers. What counts as As to the claim in the dissent that [i]t is more doubtful if the same
privileged information in an executive-legislative conflict is thus also book be used to calibrate the importance of the right of access to
recognized as such in cases involving the publics right to information. information in the Philippine setting considering its elevation as a
constitutional right, we submit that the elevation of such right as a
Chavez v. PCGG[75] also involved the publics right to constitutional right did not set it free from the legitimate restrictions
information, yet the Court recognized as a valid limitation to that right of executive privilege which is itself constitutionally-based.[76] Hence,
the same privileged information based on separation of the comments in that book which were cited in PMPF
powers closed-door Cabinet meetings, executive sessions of either v. Manglapus remain valid doctrine.
house of Congress, and the internal deliberations of the Supreme
Court. 6. The dissent further asserts that the Court has never used need as a
test to uphold or allow inroads into rights guaranteed under the
These cases show that the Court has always regarded claims of Constitution. With due respect, we assert otherwise. The Court has
privilege, whether in the context of an executive-legislative conflict or done so before, albeit without using the term need.
a citizens demand for information, as closely intertwined, such that
the principles applicable to one are also applicable to the other. In executive privilege controversies, the requirement that parties
present a sufficient showing of need only means, in substance, that
The reason is obvious. If the validity of claims of privilege were to be they should show a public interest in favor of disclosure sufficient in
assessed by entirely different criteria in each context, this may give degree to overcome the claim of privilege.[77] Verily, the Court in such
rise to the absurd result where Congress would be denied access to a cases engages in a balancing of interests. Such a balancing of
particular information because of a claim of executive privilege, interests is certainly not new in constitutional adjudication involving
but the general public would have access to the same information, fundamental rights. Secretary of Justice v. Lantion,[78]which was cited
the claim of privilege notwithstanding. in the dissent, applied just such a test.
Given that the dissent has clarified that it does not seek to apply the Thus, we hold that the balance in this case tilts in favor of executive
clear and present danger test to the present controversy, but the privilege.
balancing test, there seems to be no substantial dispute between the
position laid down in this ponencia and that reflected in the dissent 8. Against our ruling that the principles applied in U.S. v. Nixon,
as to what test to apply. It would appear that the only disagreement the Senate Select Committee case, and In re Sealed Case, are similarly
is on the results of applying that test in this instance. applicable to the present controversy, the dissent cites the caveat in
the Nixon case that the U.S. Court was there addressing only the
The dissent, nonetheless, maintains that it suffices that information Presidents assertion of privilege in the context of a criminal trial, not
is of public concern for it to be covered by the right, regardless of the a civil litigation nor a congressional demand for information. What
publics need for the information, and that the same would hold true this caveat means, however, is only that courts must be careful not to
even if they simply want to know it because it interests them. As has hastily apply the ruling therein to other contexts. It does not,
been stated earlier, however, there is no dispute that the information however, absolutely mean that the principles applied in that case may
subject of this case is a matter of public concern.The Court has earlier never be applied in such contexts.
concluded that it is a matter of public concern, not on the basis of any
specific need shown by petitioners, but from the very nature of the Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings
JPEPA as an international trade agreement. on claims of executive privilege in contexts other than a criminal trial,
as in the case of Nixon v. Administrator of General Services[80] which
However, when the Executive has as in this case invoked the privilege, involved former President Nixons invocation of executive privilege to
and it has been established that the subject information is indeed challenge the constitutionality of the Presidential Recordings and
covered by the privilege being claimed, can a party overcome the Materials Preservation Act[81] and the above-mentioned In re Sealed
same by merely asserting that the information being demanded is a Case which involved a claim of privilege against
matter of public concern, without any further showing a subpoena duces tecum issued in a grand jury investigation.
required? Certainly not, for that would render the doctrine of
executive privilege of no force and effect whatsoever as a limitation Indeed, in applying to the present case the principles found in U.S. v.
on the right to information, because then the sole test in such Nixon and in the other cases already mentioned, We are merely
controversies would be whether an information is a matter of public affirming what the Chief Justice stated in his Dissenting Opinion
concern. in Neri v. Senate Committee on Accountability[82] a case involving an
executive-legislative conflict over executive privilege. That dissenting
Moreover, in view of the earlier discussions, we must bear in mind opinion stated that, while Nixon was not concerned with the balance
that, by disclosing the documents of the JPEPA negotiations, the between the Presidents generalized interest in confidentiality and
Philippine government runs the grave risk of betraying the trust congressional demands for information, [n]onetheless the [U.S.]
reposed in it by the Japanese representatives, indeed, by the Court laid down principles and procedures that can serve as torch
Japanese government itself. How would the Philippine government lights to illumine us on the scope and use of Presidential
then explain itself when that happens? Surely, it cannot bear to say communication privilege in the case at bar.[83] While the Court was
that it just had to release the information because certain persons divided in Neri, this opinion of the Chief Justice was not among the
simply wanted to know it because it interests them. points of disagreement, and We similarly hold now that
the Nixon case is a useful guide in the proper resolution of the present
Thus, the Court holds that, in determining whether an controversy, notwithstanding the difference in context.
information is covered by the right to information, a specific showing
of need for such information is not a relevant consideration, but only Verily, while the Court should guard against the abuse of executive
whether the same is a matter of public concern. When, however, the privilege, it should also give full recognition to the validity of the
government has claimed executive privilege, and it has established privilege whenever it is claimed within the proper bounds of
that the information is indeed covered by the same, then the party executive power, as in this case. Otherwise, the Court would
demanding it, if it is to overcome the privilege, must show that that undermine its own credibility, for it would be perceived as no longer
the information is vital, not simply for the satisfaction of its curiosity, aiming to strike a balance, but seeking merely to water down
but for its ability to effectively and reasonably participate in social, executive privilege to the point of irrelevance.
political, and economic decision-making.[79]
7. The dissent maintains that [t]he treaty has thus entered the Conclusion
ultimate stage where the people can exercise their right to
participate in the discussion whether the Senate should concur in its
ratification or not. (Emphasis supplied)It adds that this right will be To recapitulate, petitioners demand to be furnished with a copy of
diluted unless the people can have access to the subject JPEPA the full text of the JPEPA has become moot and academic, it having
documents. What, to the dissent, is a dilution of the right to been made accessible to the public since September 11, 2006. As for
participate in decision-making is, to Us, simply a recognition of the their demand for copies of the Philippine and
qualified nature of the publics right to information. It is beyond Japanese offers submitted during the JPEPA negotiations, the same
dispute that the right to information is not absolute and that the must be denied, respondents claim of executive privilege being valid.
doctrine of executive privilege is a recognized limitation on that right.
Diplomatic negotiations have, since the Court promulgated its
Moreover, contrary to the submission that the right to participate in Resolution in PMPF v. Manglapus on September 13, 1988, been
decision-making would be diluted, We reiterate that our people have recognized as privileged in this jurisdiction and the reasons proffered
been exercising their right to participate in the discussion on the issue by petitioners against the application of the ruling therein to the
of the JPEPA, and they have been able to articulate their different present case have not persuaded the Court. Moreover,
opinions without need of access to the JPEPA negotiation documents. petitioners both private citizens and members of the House of
Representatives have failed to present a sufficient showing of need to
overcome the claim of privilege in this case.
That the privilege was asserted for the first time in respondents
Comment to the present petition, and not during the hearings of the
House Special Committee on Globalization, is of no moment, since it
cannot be interpreted as a waiver of the privilege on the part of the
Executive branch.

For reasons already explained, this Decision shall not be


interpreted as departing from the ruling in Senate v. Ermita that
executive privilege should be invoked by the President or through the
Executive Secretary by order of the President.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.
EN BANC RP-US Non-Surrender Agreement

BAYAN MUNA, as represented by Rep. SATUR OCAMPO, G.R. No. 159618 On May 9, 2003, then Ambassador Francis J. Ricciardone
Rep. CRISPIN BELTRAN, and Rep. LIZA L. MAZA, sent US Embassy Note No. 0470 to the Department of Foreign Affairs
Petitioner, Present: (DFA) proposing the terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the RP.
CORONA, C.J.,
CARPIO, Via Exchange of Notes No. BFO-028-03[7] dated May 13,
CARPIO MORALES,
2003 (E/N BFO-028-03, hereinafter), the RP, represented by then DFA
VELASCO, JR.,
Secretary Ople, agreed with and accepted the US proposals embodied
- versus - NACHURA, under the US Embassy Note adverted to and put in effect
LEONARDO-DE theCASTRO,
Agreement with the US government. In esse, the Agreement aims
BRION, to protect what it refers to and defines as persons of the RP and US
PERALTA, from frivolous and harassment suits that might be brought against
BERSAMIN, them in international tribunals.[8] It is reflective of the increasing pace
DEL CASTILLO,
of the strategic security and defense partnership between the two
ABAD, countries. As of May 2, 2003, similar bilateral agreements have been
ALBERTO ROMULO, in his capacity as Executive Secretary, VILLARAMA, effected
JR., by and between the US and 33 other countries.[9]
and BLAS F. OPLE, in his capacity as Secretary of Foreign PEREZ,
Affairs, MENDOZA, and The Agreement pertinently provides as follows:
Respondents. SERENO, JJ.
1. For purposes of this Agreement,
Promulgated: persons are current or former Government
officials, employees (including contractors), or
February 1, 2011 military personnel or nationals of one Party.
x-----------------------------------------------------------------------------------------
x 2. Persons of one Party present in the
territory of the other shall not, absent the express
DECISION consent of the first Party,
VELASCO, JR., J.:
(a) be surrendered or transferred by
The Case any means to any international
tribunal for any purpose, unless
This petition[1] for certiorari, mandamus and prohibition such tribunal has been established
under Rule 65 assails and seeks to nullify the Non-Surrender by the UN Security Council, or
Agreement concluded by and between the Republic of the Philippines
(RP) and the United States of America (USA). (b) be surrendered or transferred by
any means to any other entity or
The Facts third country, or expelled to a third
country, for the purpose of
Petitioner Bayan Muna is a duly registered party-list group surrender to or transfer to any
established to represent the marginalized sectors of society. international tribunal, unless such
Respondent Blas F. Ople, now deceased, was the Secretary of Foreign tribunal has been established by
Affairs during the period material to this case. Respondent Alberto the UN Security Council.
Romulo was impleaded in his capacity as then Executive Secretary.[2]
3. When the [US] extradites,
Rome Statute of the International Criminal Court surrenders, or otherwise transfers a person of the
Philippines to a third country, the [US] will not
Having a key determinative bearing on this case is the Rome agree to the surrender or transfer of that person
Statute[3]establishing the International Criminal Court (ICC) with the by the third country to any international tribunal,
power to exercise its jurisdiction over persons for the most serious unless such tribunal has been established by the
crimes of international concern x x x and shall be complementary to UN Security Council, absent the express consent
the national criminal jurisdictions.[4] The serious crimes adverted to of the Government of the Republic of the
cover those considered grave under international law, such as Philippines [GRP].
genocide, crimes against humanity, war crimes, and crimes of
aggression.[5] 4. When the [GRP] extradites,
surrenders, or otherwise transfers a person of the
On December 28, 2000, the RP, through Charge [USA] to a third country, the [GRP] will not agree
dAffaires Enrique A. Manalo, signed the Rome Statute which, by its to the surrender or transfer of that person by the
terms, is subject to ratification, acceptance or approval by the third country to any international tribunal, unless
signatory states.[6] As of the filing of the instant petition, only 92 out such tribunal has been established by the UN
of the 139 signatory countries appear to have completed the Security Council, absent the express consent of
ratification, approval and concurrence process. The Philippines is not the Government of the [US].
among the 92.
5. This Agreement shall remain in force C. Whether the x x
until one year after the date on which one party x Agreement constitutes an act which
notifies the other of its intent to terminate the defeats the object and purpose of
Agreement. The provisions of this Agreement the Rome Statute of the International
shall continue to apply with respect to any act Criminal Court and contravenes the
occurring, or any allegation arising, before the obligation of good faith inherent in the
effective date of termination. signature of the President affixed on
the Rome Statute of the International
Criminal Court, and if so whether the x
In response to a query of then Solicitor General Alfredo L. x x Agreement is void and
Benipayo on the status of the non-surrender agreement, Ambassador unenforceable on this ground.
Ricciardone replied in his letter of October 28, 2003 that the exchange
of diplomatic notes constituted a legally binding agreement under D. Whether the RP-US Non-Surrender
international law; and that, under US law, the said agreement did not Agreement is void and unenforceable
require the advice and consent of the US Senate.[10] for grave abuse of discretion amounting
to lack or excess of jurisdiction in
In this proceeding, petitioner imputes grave abuse of connection with its execution.
discretion to respondents in concluding and ratifying
the Agreement and prays that it be struck down as unconstitutional, II. WHETHER THE RP-US NON SURRENDER
or at least declared as without force and effect. AGREEMENT IS VOID AB INITIO FOR
CONTRACTING OBLIGATIONS THAT ARE
For their part, respondents question petitioners standing to EITHER IMMORAL OR OTHERWISE AT
maintain a suit and counter that the Agreement, being in the nature VARIANCE WITH UNIVERSALLY RECOGNIZED
of an executive agreement, does not require Senate concurrence for PRINCIPLES OF INTERNATIONAL LAW.
its efficacy. And for reasons detailed in their comment, respondents
assert the constitutionality of the Agreement. III. WHETHER THE x x x AGREEMENT IS VALID,
BINDING AND EFFECTIVE WITHOUT THE
The Issues CONCURRENCE BY AT LEAST TWO-THIRDS
(2/3) OF ALL THE MEMBERS OF THE
SENATE x x x.[11]
I. WHETHER THE [RP] PRESIDENT AND THE [DFA]
SECRETARY x x x GRAVELY ABUSED THEIR
DISCRETION AMOUNTING TO LACK OR The foregoing issues may be summarized into two: first,
EXCESS OF JURISDICTION FOR CONCLUDING whether or not the Agreement was contracted validly, which resolves
THE RP-US NON SURRENDER itself into the question of whether or not respondents gravely abused
AGREEMENT BY MEANS OF [E/N] BFO-028- their discretion in concluding it; and second, whether or not
03 DATED 13 MAY 2003, WHEN THE the Agreement, which has not been submitted to the Senate for
PHILIPPINE GOVERNMENT HAS ALREADY concurrence, contravenes and undermines the Rome Statute and
SIGNED THE ROME STATUTE OF THE other treaties. But because respondents expectedly raised it, we shall
[ICC] ALTHOUGH THIS IS PENDING first tackle the issue of petitioners legal standing.
RATIFICATION BY THE PHILIPPINE SENATE. The Courts Ruling
A. Whether by entering into the x x
x Agreement Respondents gravely This petition is bereft of merit.
abused their discretion when they
capriciously abandoned, waived and Procedural Issue: Locus Standi of Petitioner
relinquished our only legitimate
recourse through the Rome Statute of Petitioner, through its three party-list representatives,
the [ICC] to prosecute and try persons contends that the issue of the validity or invalidity of
as defined in the x x x Agreement, x x x the Agreement carries with it constitutional significance and is of
or literally any conduit of American paramount importance that justifies its standing. Cited in this regard
interests, who have committed crimes is what is usually referred to as the emergency powers cases,[12] in
of genocide, crimes against humanity, which ordinary citizens and taxpayers were accorded the personality
war crimes and the crime of aggression, to question the constitutionality of executive issuances.
thereby abdicating Philippine Locus standi is a right of appearance in a court of justice on
Sovereignty. a given question.[13] Specifically, it is a partys personal and substantial
interest in a case where he has sustained or will sustain direct injury
B. Whether after the signing and pending as a result[14] of the act being challenged, and calls for more than just
ratification of the Rome Statute of the a generalized grievance.[15] The term interest refers to material
[ICC] the [RP] President and the [DFA] interest, as distinguished from one that is merely incidental.[16] The
Secretary x x x are obliged by the rationale for requiring a party who challenges the validity of a law or
principle of good faith to refrain from international agreement to allege such a personal stake in the
doing all acts which would substantially outcome of the controversy is to assure the concrete adverseness
impair the value of the undertaking as which sharpens the presentation of issues upon which the court so
signed. largely depends for illumination of difficult constitutional
questions.[17]
Moreover, bearing in mind what the Court said in Taada v.
Locus standi, however, is merely a matter of procedure and Angara, that it will not shirk, digress from or abandon its sacred duty
it has been recognized that, in some cases, suits are not brought by and authority to uphold the Constitution in matters that involve grave
parties who have been personally injured by the operation of a law or abuse of discretion brought before it in appropriate cases, committed
any other government act, but by concerned citizens, taxpayers, or by any officer, agency, instrumentality or department of the
voters who actually sue in the public interest.[18] Consequently, in government,[25] we cannot but resolve head on the issues raised
a catena of cases,[19] this Court has invariably adopted a liberal stance before us. Indeed, where an action of any branch of government is
on locus standi. seriously alleged to have infringed the Constitution or is done with
grave abuse of discretion, it becomes not only the right but in fact the
Going by the petition, petitioners representatives pursue duty of the judiciary to settle it. As in this petition, issues are precisely
the instant suit primarily as concerned citizens raising issues of raised putting to the fore the propriety of the Agreement pending the
transcendental importance, both for the Republic and the citizenry as ratification of the Rome Statute.
a whole.
Validity of the RP-US Non-Surrender Agreement
When suing as a citizen to question the validity of a law or
other government action, a petitioner needs to meet certain specific Petitioners initial challenge against the Agreement relates
requirements before he can be clothed with standing. Francisco, Jr. v. to form, its threshold posture being that E/N BFO-028-03 cannot be a
Nagmamalasakit na mga Manananggol ng mga Manggagawang valid medium for concluding the Agreement.
Pilipino, Inc.[20] expounded on this requirement, thus: Petitioners contentionperhaps taken unaware of certain
well-recognized international doctrines, practices, and jargonsis
untenable. One of these is the doctrine of incorporation, as expressed
In a long line of cases, however, in Section 2, Article II of the Constitution, wherein the Philippines
concerned citizens, taxpayers and legislators adopts the generally accepted principles of international law and
when specific requirements have been met have international jurisprudence as part of the law of the land and adheres
been given standing by this Court. to the policy of peace, cooperation, and amity with all nations. [26]An
When suing as a citizen, the interest of exchange of notes falls into the category of inter-governmental
the petitioner assailing the constitutionality of a agreements,[27] which is an internationally accepted form of
statute must be direct and personal. He must be international agreement. The United Nations Treaty Collections
able to show, not only that the law or any (Treaty Reference Guide) defines the term as follows:
government act is invalid, but also that he
sustained or is in imminent danger of sustaining
some direct injury as a result of its enforcement, An exchange of notes is a record of a
and not merely that he suffers thereby in some routine agreement, that has many similarities
indefinite way. It must appear that the person with the private law contract. The agreement
complaining has been or is about to be denied consists of the exchange of two documents, each
some right or privilege to which he is lawfully of the parties being in the possession of the one
entitled or that he is about to be subjected to signed by the representative of the other. Under
some burdens or penalties by reason of the the usual procedure, the accepting State repeats
statute or act complained of. In fine, when the the text of the offering State to record its
proceeding involves the assertion of a public assent. The signatories of the letters may be
right, the mere fact that he is a citizen satisfies the government Ministers, diplomats or
requirement of personal interest.[21] departmental heads. The technique of exchange
of notes is frequently resorted to, either because
of its speedy procedure, or, sometimes, to avoid
the process of legislative approval.[28]
In the case at bar, petitioners representatives have
complied with the qualifying conditions or specific requirements
exacted under the locus standirule. As citizens, their interest in the In another perspective, the terms exchange of notes and
subject matter of the petition is direct and personal. At the very least, executive agreements have been used interchangeably, exchange of
their assertions questioning the Agreement are made of a public notes being considered a form of executive agreement that becomes
right, i.e., to ascertain that the Agreement did not go against binding through executive action.[29] On the other hand, executive
established national policies, practices, and obligations bearing on agreements concluded by the President sometimes take the form of
the States obligation to the community of nations. exchange of notes and at other times that of more formal documents
denominated agreements or protocols.[30] As former US High
At any event, the primordial importance to Filipino citizens Commissioner to the Philippines Francis B. Sayre observed in his
in general of the issue at hand impels the Court to brush aside the work, The Constitutionality of Trade Agreement Acts:
procedural barrier posed by the traditional requirement of locus The point where ordinary
standi, as we have done in a long line of earlier cases, notably in the correspondence between this and other
old but oft-cited emergency powers cases[22] and Kilosbayan v. governments ends and agreements whether
Guingona, Jr.[23] In cases of transcendental importance, we wrote denominated executive agreements or exchange
again in Bayan v. Zamora,[24] The Court may relax the standing of notes or otherwise begin, may sometimes be
requirements and allow a suit to prosper even where there is no difficult of ready ascertainment.[31] x x x
direct injury to the party claiming the right of judicial review. It is fairly clear from the foregoing disquisition that
E/N BFO-028-03be it viewed as the Non-Surrender Agreement itself,
or as an integral instrument of acceptance thereof or as consent to be
boundis a recognized mode of concluding a legally binding their respective interests. Verily, the matter of form takes a back seat
international written contract among nations. when it comes to effectiveness and binding effect of the enforcement
of a treaty or an executive agreement, as the parties in either
Senate Concurrence Not Required international agreement each labor under the pacta sunt
servanda[42] principle.
Article 2 of the Vienna Convention on the Law of Treaties
defines a treaty as an international agreement concluded between As may be noted, almost half a century has elapsed since
states in written form and governed by international law, whether the Court rendered its decision in Eastern Sea Trading. Since then, the
embodied in a single instrument or in two or more related conduct of foreign affairs has become more complex and the domain
instruments and whatever its particular designation.[32]International of international law wider, as to include such subjects as human
agreements may be in the form of (1) treaties that require legislative rights, the environment, and the sea. In fact, in the US alone, the
concurrence after executive ratification; or (2) executive agreements executive agreements executed by its President from 1980 to 2000
that are similar to treaties, except that they do not require legislative covered subjects such as defense, trade, scientific cooperation,
concurrence and are usually less formal and deal with a narrower aviation, atomic energy, environmental cooperation, peace corps,
range of subject matters than treaties.[33] arms limitation, and nuclear safety, among others.[43] Surely, the
enumeration in Eastern Sea Trading cannot circumscribe the option
Under international law, there is no difference between of each state on the matter of which the international agreement
treaties and executive agreements in terms of their binding effects on format would be convenient to serve its best interest. As Francis
the contracting states concerned,[34] as long as the negotiating Sayre said in his work referred to earlier:
functionaries have remained within their powers.[35] Neither, on the x x x It would be useless to undertake to
domestic sphere, can one be held valid if it violates the discuss here the large variety of executive
Constitution.[36] Authorities are, however, agreed that one is distinct agreements as such concluded from time to time.
from another for accepted reasons apart from the concurrence- Hundreds of executive agreements, other than
requirement aspect.[37] As has been observed by US constitutional those entered into under the trade-agreement
scholars, a treaty has greater dignity than an executive agreement, act, have been negotiated with foreign
because its constitutional efficacy is beyond doubt, a treaty having governments. x x x They cover such subjects as
behind it the authority of the President, the Senate, and the the inspection of vessels, navigation dues, income
people;[38] a ratified treaty, unlike an executive agreement, takes tax on shipping profits, the admission of civil air
precedence over any prior statutory enactment.[39] craft, custom matters and commercial relations
generally, international claims, postal matters,
Petitioner parlays the notion that the Agreement is of the registration of trademarks and copyrights,
dubious validity, partaking as it does of the nature of a treaty; hence, etc. x x x
it must be duly concurred in by the Senate. Petitioner takes a cue
from Commissioner of Customs v. Eastern Sea Trading, in which the
Court reproduced the following observations made by US legal And lest it be overlooked, one type of executive agreement
scholars: [I]nternational agreements involving political issues or is a treaty-authorized[44] or a treaty-implementing executive
changes of national policy and those involving international agreement,[45] which necessarily would cover the same matters
arrangements of a permanent character usually take the form of subject of the underlying treaty.
treaties [while] those embodying adjustments of detail carrying out
well established national policies and traditions and those involving But over and above the foregoing considerations is the fact
arrangements of a more or less temporary naturetake the form of thatsave for the situation and matters contemplated in Sec. 25, Art.
executive agreements. [40] XVIII of the Constitution[46]when a treaty is required, the Constitution
does not classify any subject, like that involving political issues, to be
Pressing its point, petitioner submits that the subject of in the form of, and ratified as, a treaty. What the Constitution merely
the Agreement does not fall under any of the subject-categories that prescribes is that treaties need the concurrence of the Senate by a
are enumerated in the Eastern Sea Trading case, and that may be vote defined therein to complete the ratification process.
covered by an executive agreement, such as commercial/consular
relations, most-favored nation rights, patent rights, trademark and Petitioners reliance on Adolfo[47] is misplaced, said case
copyright protection, postal and navigation arrangements and being inapplicable owing to different factual milieus. There, the Court
settlement of claims. held that an executive agreement cannot be used to amend a duly
ratified and existing treaty, i.e., the Bases Treaty. Indeed, an
In addition, petitioner foists the applicability to the instant executive agreement that does not require the concurrence of the
case of Adolfo v. CFI of Zambales and Merchant,[41] holding that an Senate for its ratification may not be used to amend a treaty that,
executive agreement through an exchange of notes cannot be used under the Constitution, is the product of the ratifying acts of the
to amend a treaty. Executive and the Senate. The presence of a treaty, purportedly being
subject to amendment by an executive agreement, does not obtain
We are not persuaded. under the premises.

The categorization of subject matters that may be covered Considering the above discussion, the Court need not
by international agreements mentioned in Eastern Sea Trading is not belabor at length the third main issue raised, referring to the validity
cast in stone. There are no hard and fast rules on the propriety of and effectivity of the Agreementwithout the concurrence by at least
entering, on a given subject, into a treaty or an executive agreement two-thirds of all the members of the Senate.The Court has, in Eastern
as an instrument of international relations. The primary consideration Sea Trading,[48] as reiterated in Bayan,[49] given recognition to the
in the choice of the form of agreement is the parties intent and desire obligatory effect of executive agreements without the concurrence of
to craft an international agreement in the form they so wish to further the Senate:
power to exercise its jurisdiction over persons
x x x [T]he right of the Executive to enter for the most serious crimes of international
into binding agreements without the necessity of concern, as referred to in this Statute, and shall
subsequent Congressional approval has been be complementary to national criminal
confirmed by long usage. From the earliest days jurisdictions. The jurisdiction and functioning of
of our history, we have entered executive the Court shall be governed by the provisions of
agreements covering such subjects as commercial this Statute.(Emphasis ours.)
and consular relations, most favored-nation
rights, patent rights, trademark and copyright
protection, postal and navigation arrangements Significantly, the sixth preambular paragraph of the Rome
and the settlement of claims. The validity of these Statute declares that it is the duty of every State to exercise its
has never been seriously questioned by our criminal jurisdiction over those responsible for international
courts. crimes. This provision indicates that primary jurisdiction over the so-
called international crimes rests, at the first instance, with the state
where the crime was committed; secondarily, with the ICC in
The Agreement Not in Contravention of the Rome Statute appropriate situations contemplated under Art. 17, par. 1[55] of
the RomeStatute.
It is the petitioners next contention that
the Agreement undermines the establishment of the ICC and is null Of particular note is the application of the principle of ne bis
and void insofar as it unduly restricts the ICCs jurisdiction and in idem[56]under par. 3 of Art. 20, Rome Statute, which again
infringes upon the effectivity of the Rome Statute.Petitioner posits underscores the primacy of the jurisdiction of a state vis-a-vis that of
that the Agreement was constituted solely for the purpose of the ICC. As far as relevant, the provision states that no person who
providing individuals or groups of individuals with immunity from the has been tried by another court for conduct x x x [constituting crimes
jurisdiction of the ICC; and such grant of immunity through non- within its jurisdiction] shall be tried by the [International Criminal]
surrender agreements allegedly does not legitimately fall within the Court with respect to the same conduct x x x.
scope of Art. 98 of the Rome Statute. It concludes that state parties
with non-surrender agreements are prevented from meeting their The foregoing provisions of the Rome Statute, taken
obligations under the Rome Statute, thereby constituting a breach of collectively, argue against the idea of jurisdictional conflict between
Arts. 27,[50] 86,[51] 89[52] and 90[53] thereof. the Philippines, as party to the non-surrender agreement, and the
Petitioner stresses that the overall object and purpose of ICC; or the idea of the Agreementsubstantially impairing the value of
the Rome Statute is to ensure that those responsible for the worst the RPs undertaking under the Rome Statute. Ignoring for a while the
possible crimes are brought to justice in all cases, primarily by states, fact that the RP signed the Rome Statute ahead of the Agreement, it
but as a last resort, by the ICC; thus, any agreementlike the non- is abundantly clear to us that the Rome Statute expressly recognizes
surrender agreementthat precludes the ICC from exercising its the primary jurisdiction of states, like the RP, over serious crimes
complementary function of acting when a state is unable to or committed within their respective borders, the complementary
unwilling to do so, defeats the object and purpose of the Rome jurisdiction of the ICC coming into play only when the signatory states
Statute. are unwilling or unable to prosecute.

Petitioner would add that the President and the DFA Given the above consideration, petitioners suggestionthat
Secretary, as representatives of a signatory of the Rome Statute, are the RP, by entering into the Agreement, violated its duty required by
obliged by the imperatives of good faith to refrain from performing the imperatives of good faith and breached its commitment under the
acts that substantially devalue the purpose and object of the Statute, Vienna Convention[57] to refrain from performing any act tending to
as signed. Adding a nullifying ingredient to the Agreement, according impair the value of a treaty, e.g., the Rome Statutehas to be rejected
to petitioner, is the fact that it has an immoral purpose or is otherwise outright. For nothing in the provisions of the Agreement, in relation
at variance with a priorly executed treaty. to the Rome Statute, tends to diminish the efficacy of the Statute, let
alone defeats the purpose of the ICC. Lest it be overlooked, the Rome
Contrary to petitioners pretense, the Agreement does not Statute contains a proviso that enjoins the ICC from seeking the
contravene or undermine, nor does it differ from, the Rome surrender of an erring person, should the process require the
Statute. Far from going against each other, one complements the requested state to perform an act that would violate some
other. As a matter of fact, the principle of complementarity underpins international agreement it has entered into. We refer to Art. 98(2) of
the creation of the ICC. As aptly pointed out by respondents and the Rome Statute, which reads:
admitted by petitioners, the jurisdiction of the ICC is to be
complementary to national criminal jurisdictions [of the signatory Article 98
states].[54]Art. 1 of the Rome Statute pertinently provides:
Cooperation with respect to waiver of immunity
and consent to surrender

xxxx

Article 1 2. The Court may not proceed with


a request for surrender which would require
The Court the requested State to act inconsistently
with its obligations under international
An International Crimininal Court (the agreements pursuant to which the consent
Court) is hereby established. It x x x shall have the of a sending State is required to surrender a
person of that State to the Court, unless the over them. As to persons of the US whom the Philippines refuses to
Court can first obtain the cooperation of the prosecute, the country would, in effect, accord discretion to the US to
sending State for the giving of consent for exercise either its national criminal jurisdiction over the person
the surrender. concerned or to give its consent to the referral of the matter to the
ICC for trial.In the same breath, the US must extend the same
privilege to the Philippineswith respect to persons of the RP
Moreover, under international law, there is a considerable committing high crimes within US territorial jurisdiction.
difference between a State-Party and a signatory to a treaty. Under
the Vienna Convention on the Law of Treaties, a signatory state is only
obliged to refrain from acts which would defeat the object and
purpose of a treaty;[58] whereas a State-Party, on the other hand, is In the context of the Constitution, there can be no serious
legally obliged to follow all the provisions of a treaty in good faith. objection to the Philippines agreeing to undertake the things set forth
in the Agreement. Surely, one State can agree to waive jurisdictionto
In the instant case, it bears stressing that the Philippines is the extent agreed uponto subjects of another State due to the
only a signatory to the Rome Statute and not a State-Party for lack of recognition of the principle of extraterritorial immunity.What the
ratification by the Senate. Thus, it is only obliged to refrain from acts Court wrote in Nicolas v. Romulo[59]a case involving the
which would defeat the object and purpose of the Rome Statute. Any implementation of the criminal jurisdiction provisions of the RP-US
argument obliging the Philippinesto follow any provision in the treaty Visiting Forces Agreementis apropos:
would be premature.
Nothing in the Constitution prohibits
As a result, petitioners argument that State-Parties with such agreements recognizing immunity from
non-surrender agreements are prevented from meeting their jurisdiction or some aspects of jurisdiction (such
obligations under the Rome Statute, specifically Arts. 27, 86, 89 and as custody), in relation to long-recognized
90, must fail. These articles are only legally binding upon State- subjects of such immunity like Heads of State,
Parties, not signatories. diplomats and members of the armed forces
contingents of a foreign State allowed to enter
Furthermore, a careful reading of said Art. 90 would show another States territory. x x x
that the Agreement is not incompatible with the Rome Statute.
Specifically, Art. 90(4) provides that [i]f the requesting State is a State To be sure, the nullity of the subject non-surrender
not Party to this Statute the requested State, if it is not under an agreement cannot be predicated on the postulate that some of its
international obligation to extradite the person to the requesting provisions constitute a virtual abdication of its sovereignty. Almost
State, shall give priority to the request for surrender from the Court. every time a state enters into an international agreement, it
x x x In applying the provision, certain undisputed facts should be voluntarily sheds off part of its sovereignty. The Constitution, as
pointed out: first, the US is neither a State-Party nor a signatory to the drafted, did not envision a reclusive Philippines isolated from the rest
Rome Statute; and second, there is an international agreement of the world. It even adheres, as earlier stated, to the policy of
between the US and the Philippines regarding extradition or cooperation and amity with all nations.[60]
surrender of persons, i.e., the Agreement. Clearly, even assuming that
the Philippines is a State-Party, the Rome Statute still recognizes the By their nature, treaties and international agreements
primacy of international agreements entered into between States, actually have a limiting effect on the otherwise encompassing and
even when one of the States is not a State-Party to the Rome Statute. absolute nature of sovereignty. By their voluntary act, nations may
decide to surrender or waive some aspects of their state power or
Sovereignty Limited by International Agreements agree to limit the exercise of their otherwise exclusive and absolute
jurisdiction. The usual underlying consideration in this partial
Petitioner next argues that the RP has, through surrender may be the greater benefits derived from a pact or a
the Agreement, abdicated its sovereignty by bargaining away the reciprocal undertaking of one contracting party to grant the same
jurisdiction of the ICC to prosecute US nationals, government privileges or immunities to the other. On the rationale that the
officials/employees or military personnel who commit serious crimes Philippines has adopted the generally accepted principles of
of international concerns in the Philippines. Formulating petitioners international law as part of the law of the land, a portion of
argument a bit differently, the RP, by entering into the Agreement, sovereignty may be waived without violating the
does thereby abdicate its sovereignty, abdication being done by its Constitution.[61] Such waiver does not amount to an unconstitutional
waiving or abandoning its right to seek recourse through the Rome diminution or deprivation of jurisdiction of Philippine courts.[62]
Statute of the ICC for erring Americans committing international
crimes in the country. Agreement Not Immoral/Not at Variance
with Principles of International Law
We are not persuaded. As it were, the Agreement is but a
form of affirmance and confirmance of the Philippines national
criminal jurisdiction.National criminal jurisdiction being primary, as Petitioner urges that the Agreement be struck down as
explained above, it is always the responsibility and within the void ab initio for imposing immoral obligations and/or being at
prerogative of the RP either to prosecute criminal offenses equally variance with allegedly universally recognized principles of
covered by the Rome Statute or to accede to the jurisdiction of the international law. The immoral aspect proceeds from the fact that
ICC. Thus, the Philippines may decide to try persons of the US, as the the Agreement, as petitioner would put it, leaves criminals immune
term is understood in the Agreement, under our national criminal from responsibility for unimaginable atrocities that deeply shock the
justice system. Or it may opt not to exercise its criminal jurisdiction conscience of humanity; x x x it precludes our country from delivering
over its erring citizens or over US persons committing high crimes in an American criminal to the [ICC] x x x.[63]
the country and defer to the secondary criminal jurisdiction of the ICC
The above argument is a kind of recycling of petitioners
earlier position, which, as already discussed, contends that the RP, by While the issue of ratification of the Rome Statute is not
entering into the Agreement, virtually abdicated its sovereignty and determinative of the other issues raised herein, it may perhaps be
in the process undermined its treaty obligations under the Rome pertinent to remind all and sundry that about the time this petition
Statute, contrary to international law principles.[64] was interposed, such issue of ratification was laid to rest in Pimentel,
Jr. v. Office of the Executive Secretary.[67] As the Court emphasized in
The Court is not persuaded. Suffice it to state in this regard said case, the power to ratify a treaty, the Statute in that instance,
that the non-surrender agreement, as aptly described by the Solicitor rests with the President, subject to the concurrence of the Senate,
General, is an assertion by the Philippines of its desire to try and whose role relative to the ratification of a treaty is limited merely to
punish crimes under its national law. x x x The agreement is a concurring in or withholding the ratification. And concomitant with
recognition of the primacy and competence of the countrys judiciary this treaty-making power of the President is his or her prerogative to
to try offenses under its national criminal laws and dispense justice refuse to submit a treaty to the Senate; or having secured the latters
fairly and judiciously. consent to the ratification of the treaty, refuse to ratify it.[68] This
prerogative, the Court hastened to add, is the Presidents alone and
Petitioner, we believe, labors under the erroneous cannot be encroached upon via a writ of mandamus.Barring
impression that the Agreement would allow Filipinos and Americans intervening events, then, the Philippines remains to be just a
committing high crimes of international concern to escape criminal signatory to the Rome Statute. Under Art. 125[69] thereof, the final
trial and punishment. This is manifestly incorrect. Persons who may acts required to complete the treaty process and, thus, bring it into
have committed acts penalized under the Rome Statute can be force, insofar as the Philippines is concerned, have yet to be done.
prosecuted and punished in the Philippines or in the US; or with the
consent of the RP or the US, before the ICC, assuming, for the nonce, Agreement Need Not Be in the Form of a Treaty
that all the formalities necessary to bind both countries to the Rome
Statute have been met. For perspective, what On December 11, 2009, then President Arroyo signed into
the Agreement contextually prohibits is the surrender by either party law Republic Act No. (RA) 9851, otherwise known as the Philippine
of individuals to international tribunals, like the ICC, without the Act on Crimes Against International Humanitarian Law, Genocide, and
consent of the other party, which may desire to prosecute the crime Other Crimes Against Humanity. Sec. 17 of RA 9851, particularly the
under its existing laws. With the view we take of things, there is second paragraph thereof, provides:
nothing immoral or violative of international law concepts in the act
of the Philippines of assuming criminal jurisdiction pursuant to the Section 17. Jurisdiction. x x x x
non-surrender agreement over an offense considered criminal by In the interest of justice, the relevant
both Philippine laws and the Rome Statute. Philippine authorities maydispense with the
No Grave Abuse of Discretion investigation or prosecution of a crime
punishable under this Act if another court or
Petitioners final point revolves around the necessity of the international tribunal is already conducting the
Senates concurrence in the Agreement. And without specifically investigation or undertaking the prosecution of
saying so, petitioner would argue that the non-surrender agreement such crime. Instead, the
was executed by the President, thru the DFA Secretary, in grave abuse authorities may surrender or extradite
of discretion. suspected or accused persons in
the Philippines to the appropriate international
The Court need not delve on and belabor the first portion court, if any, or to another State pursuant to the
of the above posture of petitioner, the same having been discussed applicable extradition laws and
at length earlier on. As to the second portion, We wish to state treaties. (Emphasis supplied.)
that petitioner virtually faults the President for performing, through
respondents, a task conferred the President by the Constitutionthe
power to enter into international agreements. A view is advanced that the Agreement amends existing
municipal laws on the States obligation in relation to grave crimes
By constitutional fiat and by the nature of his or her office, against the law of nations, i.e., genocide, crimes against humanity and
the President, as head of state and government, is the sole organ and war crimes. Relying on the above-quoted statutory proviso, the view
authority in the external affairs of the country.[65] The Constitution posits that the Philippine is required to surrender to the proper
vests in the President the power to enter into international international tribunal those persons accused of the grave crimes
agreements, subject, in appropriate cases, to the required defined under RA 9851, if it does not exercise its primary jurisdiction
concurrence votes of the Senate. But as earlier indicated, executive to prosecute them.
agreements may be validly entered into without such concurrence. As The basic premise rests on the interpretation that if it does
the President wields vast powers and influence, her conduct in the not decide to prosecute a foreign national for violations of RA 9851,
external affairs of the nation is, as Bayan would put it, executive the Philippines has only two options, to wit: (1) surrender the accused
altogether. The right of the President to enter into or ratify binding to the proper international tribunal; or (2) surrender the accused to
executive agreements has been confirmed by long practice.[66] another State if such surrender is pursuant to the applicable
extradition laws and treaties. But the Philippines may exercise these
In thus agreeing to conclude the Agreement thru E/N BFO- options only in cases where another court or international tribunal is
028-03, then President Gloria Macapagal-Arroyo, represented by the already conducting the investigation or undertaking the prosecution
Secretary of Foreign Affairs, acted within the scope of the authority of such crime; otherwise, the Philippines must prosecute the crime
and discretion vested in her by the Constitution. At the end of the day, before its own courts pursuant to RA 9851.
the Presidentby ratifying, thru her deputies, the non-surrender
agreementdid nothing more than discharge a constitutional duty and Posing the situation of a US national under prosecution by
exercise a prerogative that pertains to her office. an international tribunal for any crime under RA 9851,
the Philippines has the option to surrender such US national to the
international tribunal if it decides not to prosecute such US national The view makes much of the above quoted second par. of
here. The view asserts that this option of the Philippines under Sec. Sec. 17, RA 9851 as requiring the Philippine State to surrender to the
17 of RA 9851 is not subject to the consent of the US, and any proper international tribunal those persons accused of crimes
derogation of Sec. 17 of RA 9851, such as requiring the consent of sanctioned under said law if it does not exercise its primary
the US before the Philippines can exercise such option, requires an jurisdiction to prosecute such persons. This view is not entirely
amendatory law.In line with this scenario, the view strongly argues correct, for the above quoted proviso clearly provides discretion to
that the Agreement prevents the Philippineswithout the consent of the Philippine State on whether to surrender or not a person accused
the USfrom surrendering to any international tribunal US nationals of the crimes under RA 9851. The statutory proviso uses the
accused of crimes covered by RA 9851, and, thus, in effect amends word may. It is settled doctrine in statutory construction that the
Sec. 17 of RA 9851. Consequently, the view is strongly impressed that word may denotes discretion, and cannot be construed as having
the Agreement cannot be embodied in a simple executive agreement mandatory effect.[73] Thus, the pertinent second pararagraph of Sec.
in the form of an exchange of notes but must be implemented 17, RA 9851 is simply permissive on the part of the Philippine State.
through an extradition law or a treaty with the corresponding
formalities. Besides, even granting that the surrender of a person is
mandatorily required when the Philippines does not exercise its
Moreover, consonant with the foregoing view, citing Sec. 2, primary jurisdiction in cases where another court or international
Art. II of the Constitution, where the Philippines adopts, as a national tribunal is already conducting the investigation or undertaking the
policy, the generally accepted principles of international law as part prosecution of such crime, still, the tenor of the Agreement is not
of the law of the land, the Court is further impressed to perceive the repugnant to Sec. 17 of RA 9851. Said legal proviso aptly provides that
Rome Statute as declaratory of customary international law. In other the surrender may be made to another State pursuant to the
words, the Statute embodies principles of law which constitute applicable extradition laws and treaties. The Agreement can already
customary international law or custom and for which reason it be considered a treaty following this Courts decision in Nicolas v.
assumes the status of an enforceable domestic law in the context of Romulo[74]which cited Weinberger v. Rossi.[75] In Nicolas, We held that
the aforecited constitutional provision. As a corollary, it is argued that an executive agreement is a treaty within the meaning of that word
any derogation from the Rome Statute principles cannot be in international law and constitutes enforceable domestic law vis--
undertaken via a mere executive agreement, which, as an exclusive vis the United States.[76]
act of the executive branch, can only implement, but cannot amend
or repeal, an existing law. The Agreement, so the argument goes, Likewise, the Philippines and the US already have an
seeks to frustrate the objects of the principles of law or alters existing extradition treaty, i.e., RP-US Extradition Treaty, which was
customary rules embodied in the Rome Statute. executed on November 13, 1994. The pertinent Philippine law, on the
other hand, is Presidential Decree No. 1069, issued on January 13,
Prescinding from the foregoing premises, the view thus 1977. Thus, the Agreement, in conjunction with the RP-US Extradition
advanced considers the Agreement inefficacious, unless it is Treaty, would neither violate nor run counter to Sec. 17 of RA 9851.
embodied in a treaty duly ratified with the concurrence of the Senate,
the theory being that a Senate- ratified treaty partakes of the nature The views reliance on Suplico v. Neda[77] is similarly
of a municipal law that can amend or supersede another law, in this improper. In that case, several petitions were filed questioning the
instance Sec. 17 of RA 9851 and the status of the Rome Statute as power of the President to enter into foreign loan agreements.
constitutive of enforceable domestic law under Sec. 2, Art. II of the However, before the petitions could be resolved by the Court, the
Constitution. Office of the Solicitor General filed a Manifestation and Motion
averring that the Philippine Government decided not to continue with
We are unable to lend cogency to the view thus taken. For the ZTE National Broadband Network Project, thus rendering the
one, we find that the Agreement does not amend or is repugnant to petition moot. In resolving the case, the Court took judicial notice of
RA 9851. For another, the view does not clearly state what precise the act of the executive department of the Philippines (the President)
principles of law, if any, the Agreementalters. And for a third, it does and found the petition to be indeed moot. Accordingly, it dismissed
not demonstrate in the concrete how the Agreement seeks to the petitions.
frustrate the objectives of the principles of law subsumed in the Rome
Statute. In his dissent in the abovementioned case, Justice Carpio
discussed the legal implications of an executive agreement. He stated
Far from it, as earlier explained, the Agreement does not that an executive agreement has the force and effect of law x x x [it]
undermine the Rome Statute as the former merely reinforces the cannot amend or repeal prior laws.[78] Hence, this argument finds no
primacy of the national jurisdiction of the US and the Philippines in application in this case seeing as RA 9851 is a subsequent law, not a
prosecuting criminal offenses committed by their respective citizens prior one. Notably, this argument cannot be found in the ratio
and military personnel, among others.The jurisdiction of the ICC decidendi of the case, but only in the dissenting opinion.
pursuant to the Rome Statute over high crimes indicated thereat is
clearly and unmistakably complementary to the national The view further contends that the RP-US Extradition Treaty
criminal jurisdiction of the signatory states. is inapplicable to RA 9851 for the reason that under par. 1, Art. 2 of
the RP-US Extradition Treaty, [a]n offense shall be an extraditable
Moreover, RA 9851 clearly: (1) defines and establishes the offense if it is punishable under the laws in both Contracting
crimes against international humanitarian law, genocide and other Parties x x x,[79] and thereby concluding that while the Philippines has
crimes against humanity;[70](2) provides penal sanctions and criminal criminalized under RA 9851 the acts defined in the Rome Statute as
liability for their commission;[71] and (3) establishes special courts for war crimes, genocide and other crimes against humanity, there is no
the prosecution of these crimes and for the State to exercise primary similar legislation in the US. It is further argued that, citing U.S. v.
criminal jurisdiction.[72] Nowhere in RA 9851 is there a proviso that Coolidge, in the US, a person cannot be tried in the federal courts for
goes against the tenor of the Agreement.
an international crime unless Congress adopts a law defining and a national, ethnic, racial or religious
punishing the offense. group as such
(1) kills members of that group;
This view must fail. (2) causes serious bodily injury to
members of that group;
On the contrary, the US has already enacted legislation (3) causes the permanent
punishing the high crimes mentioned earlier. In fact, as early as impairment of the mental faculties
October 2006, the US enacted a law criminalizing war crimes. Section of members of the group through
2441, Chapter 118, Part I, Title 18 of the United States Code drugs, torture, or similar
Annotated (USCA) provides for the criminal offense of war crimes techniques;
which is similar to the war crimes found in both the Rome Statute and (4) subjects the group to
RA 9851, thus: conditions of life that are intended
to cause the physical destruction
(a) Offense Whoever, whether inside or outside of the group in whole or in part;
the United States, commits a war crime, in (5) imposes measures intended
any of the circumstances described in to prevent births within the group;
subsection (b), shall be fined under this title or
or imprisoned for life or any term of years, or (6) transfers by force children of
both, and if death results to the victim, shall the group to another group;
also be subject to the penalty of death. shall be punished as provided in
(b) Circumstances The circumstances referred to subsection (b).[81]
in subsection (a) are that the person
committing such war crime or the victim of Arguing further, another view has been advanced that the
such war crime is a member of the Armed current US laws do not cover every crime listed within the jurisdiction
Forces of the United States or a national of of the ICC and that there is a gap between the definitions of the
the United States (as defined in Section 101 different crimes under the US laws versus the Rome Statute. The view
of the Immigration and Nationality Act). used a report written by Victoria K. Holt and Elisabeth W. Dallas,
(c) Definition As used in this Section the term entitled On Trial: The US Military and the International Criminal Court,
war crime means any conduct as its basis.
(1) Defined as a grave breach in any of the
international conventions signed At the outset, it should be pointed out that the report used may not
at Geneva 12 August 1949, or any have any weight or value under international law. Article 38 of the
protocol to such convention to which Statute of the International Court of Justice (ICJ) lists the sources of
the United States is a party; international law, as follows: (1) international conventions, whether
(2) Prohibited by Article 23, 25, 27 or 28 of general or particular, establishing rules expressly recognized by the
the Annex to the HagueConvention IV, contesting states; (2) international custom, as evidence of a general
Respecting the Laws and Customs of practice accepted as law; (3) the general principles of law recognized
War on Land, signed 18 October 1907; by civilized nations; and (4) subject to the provisions of Article 59,
(3) Which constitutes a grave breach of judicial decisions and the teachings of the most highly qualified
common Article 3 (as defined in publicists of the various nations, as subsidiary means for the
subsection [d]) when committed in the determination of rules of law. The report does not fall under any of
context of and in association with an the foregoing enumerated sources. It cannot even be considered as
armed conflict not of an international the teachings of highly qualified publicists. A highly qualified publicist
character; or is a scholar of public international law and the term usually refers to
(4) Of a person who, in relation to an armed legal scholars or academic writers.[82] It has not been shown that the
conflict and contrary to the provisions authors[83] of this report are highly qualified publicists.
of the Protocol on Prohibitions or
Restrictions on the Use of Mines, Assuming arguendo that the report has weight, still, the
Booby-Traps and Other Devices as perceived gaps in the definitions of the crimes are nonexistent. To
amended at Geneva on 3 May 1996 highlight, the table below shows the definitions of genocide and war
(Protocol II as amended on 3 May crimes under the Rome Statute vis--vis the definitions under US laws:
1996), when the United States is a party
to such Protocol, willfully kills or causes
serious injury to civilians.[80] Rome Statute US Law
Article 6 1091. Genocide
Similarly, in December 2009, the US adopted a law that Genocide
criminalized genocide, to wit: For the purpose of this (a) Basic Offense Whoever,
Statute, genocide means whether in the time of peace or in
1091. Genocide any of the following acts time of war and with specific intent
committed with intent to to destroy, in whole or in
(a) Basic Offense Whoever, destroy, in whole or in part, substantial part, a national, ethnic,
whether in the time of peace or in time a national, ethnical, racial racial or religious group as such
of war and with specific intent to or religious group, as such: (1) kills members of that group;
destroy, in whole or in substantial part, (a) Killing members of the (2) causes serious bodily injury to
group; members of that group;
(b) Causing serious bodily or (3) causes the permanent sporadic acts of violence or
mental harm to impairment of the mental other acts of a similar
members of the group; faculties of members of nature.
(c) Deliberately inflicting on the group through drugs, (e) Other serious violations
the group conditions torture, or similar of the laws and customs
of life calculated to techniques; applicable in armed
bring about its physical (4) subjects the group to conflicts not of an
destruction in whole conditions of life that are international character,
or in part; intended to cause the within the established
(d) Imposing measures physical destruction of the framework of international
intended to prevent group in whole or in part; law, namely, any of the
births within the (5) imposes measures intended to following acts: x x x.
group; prevent births within the
(e) Forcibly transferring group; or Evidently, the gaps pointed out as to the definition of the crimes are
children of the group (6) transfers by force children of not present. In fact, the report itself stated as much, to wit:
to another group. the group to another
group; Few believed there were wide
shall be punished as provided in differences between the crimes under the
subsection (b). jurisdiction of the Court and crimes within the
Article 8 (a) Definition As used in this Uniform Code of Military Justice that would
War Crimes Section the term war crime expose US personnel to the Court.
2. For the purpose of this means any conduct Since US military lawyers were instrumental in
Statute, war crimes means: (1) Defined as a grave breach drafting the elements of crimes outlined in the
(a) Grave breaches of the in any of the international Rome Statute, they ensured that most of the
Geneva Conventions of 12 conventions signed crimes were consistent with those outlined in the
August 1949, namely, any at Geneva 12 August UCMJ and gave strength to complementarity for
of the following acts 1949, or any protocol to the US. Small areas of potential gaps between the
against persons or property such convention to which UCMJ and the Rome Statute, military experts
protected under the the United States is a argued, could be addressed through existing
provisions of the relevant party; military laws.[87] x x x
Geneva Convention: x x (2) Prohibited by Article 23,
x[84] 25, 27 or 28 of the Annex The report went on further to say that [a]ccording to those
(b) Other serious violations to the Hague Convention involved, the elements of crimes laid out in the Rome Statute have
of the laws and customs IV, Respecting the Laws been part of US military doctrine for decades.[88] Thus, the argument
applicable in international and Customs of War on proffered cannot stand.
armed conflict, within the Land, signed 18 October
established framework of 1907; Nonetheless, despite the lack of actual domestic legislation,
international law, namely, (3) Which constitutes a grave the USnotably follows the doctrine of incorporation. As early as 1900,
any of the following acts: breach of common Article the esteemed Justice Gray in The Paquete Habana[89] case already
xxxx 3 (as defined in subsection held international law as part of the law of the US, to wit:
(c) In the case of an armed [d][85]) when committed in
conflict not of an the context of and in International law is part of our law,
international character, association with an armed and must be ascertained and administered by the
serious violations of article conflict not of an courts of justice of appropriate jurisdiction as
3 common to the four international character; or often as questions of right depending upon it are
Geneva Conventions of 12 (4) Of a person who, in duly presented for their determination. For this
August 1949, namely, any relation to an armed purpose, where there is no treaty and no
of the following acts conflict and contrary to controlling executive or legislative act or judicial
committed against persons the provisions of the decision, resort must be had to the customs and
taking no active part in the Protocol on Prohibitions or usages of civilized nations, and, as evidence of
hostilities, including Restrictions on the Use of these, to the works of jurists and commentators
members of armed forces Mines, Booby-Traps and who by years of labor, research, and experience
who have laid down their Other Devices as amended have made themselves peculiarly well acquainted
arms and those placed hors at Geneva on 3 May 1996 with the subjects of which they treat. Such works
de combat by sickness, (Protocol II as amended on are resorted to by judicial tribunals, not for the
wounds, detention or any 3 May 1996), when the speculations of their authors concerning what the
other cause: United States is a party to law ought to be, but for the trustworthy evidence
xxxx such Protocol, willfully kills of what the law really is.[90] (Emphasis supplied.)
(d) Paragraph 2 (c) applies or causes serious injury to
to armed conflicts not of an civilians.[86]
international character and Thus, a person can be tried in the US for an international
thus does not apply to crime despite the lack of domestic legislation. The cited ruling in U.S.
situations of internal v. Coolidge,[91] which in turn is based on the holding in U.S. v.
disturbances and tensions, Hudson,[92] only applies to common law and not to the law of nations
such as riots, isolated and or international law.[93] Indeed, the Court in U.S. v. Hudson only
considered the question, whether the Circuit Courts of the United position among all other customary norms and principles.[107] As a
States can exercise a common law jurisdiction in criminal result, jus cogens norms are deemed peremptory and non-
cases.[94] Stated otherwise, there is no common law crime in derogable.[108] When applied to international crimes, jus
the US but this is considerably different from international law. cogens crimes have been deemed so fundamental to the existence of
a just international legal order that states cannot derogate from
The US doubtless recognizes international law as part of the them, even by agreement.[109]
law of the land, necessarily including international crimes, even
without any local statute.[95] In fact, years later, US courts would apply These jus cogens crimes relate to the principle of universal
international law as a source of criminal liability despite the lack of a jurisdiction, i.e., any state may exercise jurisdiction over an individual
local statute criminalizing it as such. So it was that in Ex Parte who commits certain heinous and widely condemned offenses, even
Quirin[96] the US Supreme Court noted that [f]rom the very beginning when no other recognized basis for jurisdiction exists.[110] The
of its history this Court has recognized and applied the law of war as rationale behind this principle is that the crime committed is so
including that part of the law of nations which prescribes, for the egregious that it is considered to be committed against all members
conduct of war, the status, rights and duties of enemy nations as well of the international community[111] and thus granting every State
as of enemy individuals.[97] It went on further to explain that Congress jurisdiction over the crime.[112]
had not undertaken the task of codifying the specific offenses covered
in the law of war, thus: Therefore, even with the current lack of domestic legislation on the
part of the US, it still has both the doctrine of incorporation and
It is no objection that Congress in universal jurisdiction to try these crimes.
providing for the trial of such offenses has not
itself undertaken to codify that branch of Consequently, no matter how hard one insists, the ICC, as
international law or to mark its precise an international tribunal, found in the Rome Statute
boundaries, or to enumerate or define by is not declaratory of customary international law.
statute all the acts which that law condemns. An
Act of Congress punishing the crime of piracy as The first element of customary international law, i.e.,
defined by the law of nations is an appropriate established, widespread, and consistent practice on the part of
exercise of its constitutional authority, Art. I, s 8, States,[113] does not, under the premises, appear to be obtaining as
cl. 10, to define and punish the offense since it has reflected in this simple reality: As of October 12, 2010, only
adopted by reference the sufficiently precise 114[114] States have ratified the Rome Statute, subsequent to its
definition of international law. x x x Similarly by coming into force eight (8) years earlier, or on July 1, 2002.The fact
the reference in the 15th Article of War to that 114 States out of a total of 194[115] countries in the world, or
offenders or offenses that x x x by the law of war roughly 58.76%, have ratified the Rome Statute casts doubt on
may be triable by such military commissions. whether or not the perceived principles contained in the Statute have
Congress has incorporated by reference, as within attained the status of customary law and should be deemed as
the jurisdiction of military commissions, all obligatory international law. The numbers even tend to argue against
offenses which are defined as such by the law of the urgency of establishing international criminal courts envisioned in
war x x x, and which may constitutionally be the Rome Statute. Lest it be overlooked, the Philippines, judging by
included within that jurisdiction.[98] x x x the action or inaction of its top officials, does not even feel bound by
(Emphasis supplied.) the Rome Statute. Res ipsa loquitur. More than eight (8) years have
elapsed since the Philippine representative signed the Statute, but
This rule finds an even stronger hold in the case of crimes the treaty has not been transmitted to the Senate for the ratification
against humanity. It has been held that genocide, war crimes and process.
crimes against humanity have attained the status of customary
international law. Some even go so far as to state that these crimes And this brings us to what Fr. Bernas, S.J. aptly said
have attained the status of jus cogens.[99] respecting the application of the concurring elements, thus:

Customary international law or international custom is a Custom or customary international law


source of international law as stated in the Statute of the ICJ.[100] It is means a general and consistent practice of states
defined as the general and consistent practice of states recognized followed by them from a sense of legal obligation
and followed by them from a sense of legal obligation. [101] In order to [opinio juris] x x x. This statement contains the
establish the customary status of a particular norm, two elements two basic elements of custom: the material
must concur: State practice, the objective element; and opinio juris factor, that is how the states behave, and the
sive necessitates, the subjective element.[102] psychological factor or subjective factor, that is,
why they behave the way they do.
State practice refers to the continuous repetition of the
same or similar kind of acts or norms by States.[103] It is demonstrated xxxx
upon the existence of the following elements: (1) generality; (2)
uniformity and consistency; and (3) duration.[104] While, opinio juris, The initial factor for determining the existence of
the psychological element, requires that the state practice or norm custom is the actual behavior of states. This
be carried out in such a way, as to be evidence of a belief that this includes several elements: duration, consistency,
practice is rendered obligatory by the existence of a rule of law and generality of the practice of states.
requiring it.[105]
The required duration can be either
The term jus cogens means the compelling short or long. x x x
law.[106] Corollary, a jus cogens norm holds the highest hierarchical
xxxx
WHEREFORE, the petition for certiorari, mandamus and
Duration therefore is not the most prohibition is hereby DISMISSED for lack of merit. No costs.
important element. More important is the
consistency and the generality of the practice. x x SO ORDERED.
x

xxxx

Once the existence of state practice


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

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


alone prevalent practice, among the different countries in the world
that the prosecution of internationally recognized crimes of genocide,
etc. should be handled by a particular international criminal court.

Absent the widespread/consistent-practice-of-states


factor, the second or the psychological element must be deemed
non-existent, for an inquiry on why states behave the way they do
presupposes, in the first place, that they are actually behaving, as a
matter of settled and consistent practice, in a certain manner. This
implicitly requires belief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it. [117] Like the
first element, the second element has likewise not been shown to be
present.

Further, the Rome Statute itself rejects the concept of


universal jurisdiction over the crimes enumerated therein as
evidenced by it requiring State consent.[118] Even further, the Rome
Statute specifically and unequivocally requires that: This Statute
is subject to ratification, acceptance or approval by signatory
States.[119] These clearly negate the argument that such has already
attained customary status.

More importantly, an act of the executive branch with a


foreign government must be afforded great respect. The power to
enter into executive agreements has long been recognized to be
lodged with the President. As We held in Neri v. Senate Committee on
Accountability of Public Officers and Investigations, [t]he power to
enter into an executive agreement is in essence an executive power.
This authority of the President to enter into executive agreements
without the concurrence of the Legislature has traditionally been
recognized in Philippine jurisprudence.[120] The rationale behind this
principle is the inviolable doctrine of separation of powers among the
legislative, executive and judicial branches of the government. Thus,
absent any clear contravention of the law, courts should exercise
utmost caution in declaring any executive agreement invalid.

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


the challenged RP-US Non-Surrender Agreement ought to be in the
form of a treaty, to be effective, has to be rejected.