This is a petition for review of the decision made by Court of Appeals in ruling that the Republic of Indonesia gave its consent to be sued and voluntarily submitted itself to the laws and jurisdiction of Philippine courts and that petitioners Ambassador Soeratmin and Minister Counsellor Kasim waived their immunity from suit. Petitioner, Republic of Indonesia, represented by its Counsellor, Siti Partinah, entered into a Maintenance Agreement with respondent James Vinzon, sole proprietor of Vinzon Trade and Services. The equipment covered by the Maintenance Agreement are air conditioning units and was to take effect in a period of four years. When Indonesian Minister Counsellor Kasim assumed the position of Chief of Administration, he allegedly found respondent’s work and services unsatisfactory and not in compliance with the standards set in the Maintenance Agreement. Hence, the Indonesian Embassy terminated the agreement. The respondent claims that the aforesaid termination was arbitrary and unlawful. Hence, he filed a complaint against the petitioners which opposed by invoking immunity from suit.
(1) Whether or not the Republic of Indonesia can invoke the doctrine of sovereign immunity from suit. (2) Whether or not petitioners Ambassador Soeratmin and Minister Counsellor Kasim may be sued herein in their private capacities.
(1) The Supreme Court ruled that the republic of Indonesia cannot be deemed to have waived its immunity to suit. The mere entering into a contract by a foreign state with a private party cannot be construed as the ultimate test of whether or not it is an act juri imperii or juri gestionis. Such act is only the start of the inquiry. There is no dispute that the establishment of a diplomatic mission is an act juri imperii. The state may enter into contracts with private entities to maintain the premises, furnishings and equipment of the embassy. The Republic of Indonesia is acting in pursuit of a sovereign activity when it entered into a contract with the respondent. The maintenance agreement was entered into by the Republic of Indonesia in the discharge of its governmental functions. It cannot be deemed to have waived its immunity from suit.
(2) Article 31 of the Vienna Convention on Diplomatic Relations provides that a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: (a.) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; (b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
The rule that a State may not be sued without its consent is a necessary consequence of the principles of independence and equality of States. The practical justification for the doctrine of sovereign immunity is that there can be no legal right against the authority tha t makes the law on which the right depends. In the case of foreign States, the rule is derived from the principle of the sovereign equality of States, as expressed in the maxim par in parem non habet imperium. All states are sovereign equals and cannot assert jurisdiction over one another. A contrary attitude would “unduly vex the peace of nations”. The rules of International Law, however, are not unbending or immune to change. The increasing need of sovereign States to enter into purely commercial activities remotely connected with the discharge of their governmental functions brought about a new concept of sovereign immunity. This concept, the restrictive theory, holds that the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii (public acts of the government of a state), but not with regard to private acts or acts jure gestionis (the commercial activities of a state.)
FACTS: Petitioner Co Kim Cham had a pending Civil Case with the Court of First Instance of Manila initiated during the time of the Japanese occupation. The respondent judge, Judge Arsenio Dizon, refused to continue hearings on the case which were initiated during the Japanese military occupation on the ground that the proclamation issued by General MacArthur that “all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control” had the effect of invalidating and nullifying all judicial proceedings and judgments of the court of the Philippines during the Japanese military occupation, and that the lower courts have no jurisdiction to take cognizance of and continue judicial proceedings pending in the courts of the defunct Republic of the Philippines in the absence of an enabling law granting such authority. Respondent, additionally contends that the government established during the Japanese occupation were no de facto government. ISSUE: WON judicial acts and proceedings of the court made during the Japanese occupation were valid and remained valid even after the liberation or reoccupation of the Philippines by the United States and Filipino forces; WON the October 23, 1944 proclamation issued by General MacArthur declaring that “all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control” has invalidated all judgments and judicial acts and proceedings of the courts; WON those courts could continue hearing the cases pending before them, if the said judicial acts and proceedings were not invalidated by MacArthur’s proclamation. HELD: The judicial acts and proceedings of the court were good and valid. The governments by the Philippine Executive Commission and the Republic of the Philippines during the Japanese military occupation being de facto governments, it necessarily follows that the judicial acts and proceedings of the court of justice of those governments, which are not of a political complexion, were good and valid. Those not only judicial but also legislative acts of de facto government, which are not of a political complexion, remained good and valid after the liberation or reoccupation of the Philippines by the American and Filipino forces under the leadership of General Douglas MacArthur. The phrase “processes of any other government” is broad and may refer not only to the judicial processes, but also to administrative or legislative, as well as constitutional, processes of the Republic of the Philippines or other governmental agencies established in the Islands during the Japanese occupation. Taking into consideration the fact that, as above indicated, according to the well-known principles of international law all judgements and judicial proceedings, which are not of a political complexion, of the de facto governments during the Japanese military occupation were good and valid before and remained so after the occupied territory had come
again into the power of the titular sovereign, it should be presumed that it was not, and could not have been, the intention of General Douglas MacArthur, in using the phrase “processes of any other government” in said proclamation, to refer to judicial processes, in violation of said principles of international law. Although in theory the authority of the local civil and judicial administration is suspended as a matter of course as soon as military occupation takes place, in practice the invader does not usually take the administration of justice into his own hands, but continues the ordinary courts or tribunals to administer the laws of the country which he is enjoined, unless absolutely prevented, to respect. An Executive Order of President McKinley to the Secretary of War states that “in practice, they (the municipal laws) are not usually abrogated but are allowed to remain in force and to be administered by the ordinary tribunals substantially as they were before the occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion.” And Taylor in this connection says: “From a theoretical point of view it may be said that the conqueror is armed with the right to substitute his arbitrary will for all pre-existing forms of government, legislative, executive and judicial. From the stand-point of actual practice such arbitrary will is restrained by the provision of the law of nations which compels the conqueror to continue local laws and institution so far as military necessity will permit.” Undoubtedly, this practice has been adopted in order that the ordinary pursuits and business of society may not be unnecessarily deranged, inasmuch as belligerent occupation is essentially provisional, and the government established by t he occupant of transient character.
In the early part of 1892 a revolution was initiated in Venezuela, against the administration thereof, which the revolutionists claimed had ceased to be the legitimate government. The principal parties to this conflict were those who recognized Palacio as their head, and those who followed the leadership of Crespo. Gen. Hernandez belonged to the antiadministration party, and commanded its forces in the vicinity of Ciudad Bolivar. On the 8th of August, 1892, an engagement took place between the armies of the two parties at Buena Vista, some seven miles from Bolivar, in which the troops under Hernandez prevailed; and, on August 13, Hernandez entered Bolivar, and assumed command of the city. All of the local officials had in the meantime left, and the vacant positions were filled by Gen. Hernandez, who from that date, and during the period of the transactions complained of, was the civil and military chief of the city and district. In October, the party in revolt had achieved success generally, taking possession of the capital of Venezuela, October 6th; and on October 23, 1892, the 'Crespo government,' so called, was formally recognized as the legitimate government of Venezuela by the United States. George F. Underhill was a citizen of the United States, who had constructed a waterworks system for the city of Bolivar, under a contract with the government, and was engaged in supplying the place with water; and he also carried on a machinery repair business. Sometime after the entry of Gen. Hernandez, Underhill applied to him, as the officer in command, for a passport to leave the city. Hernandez refused this request, and requests made by others in Underhill's behalf, until October 18th, when a passport was given, and Underhill left the country. This action was brought to recover damages for the detention caused by reason of the refusal to grant the passport, for the alleged confinement of Underhill to his own house, and for certain alleged assaults and affronts by the soldiers of Hernandez's army. The case was tried in the circuit court of the United States for the Eastern district of New York, and on the conclusion of plaintiff's case the circuit court ruled that upon the facts plaintiff was not entitled to recover, and directed a verdict for defendant, on the ground that 'because the acts of defendant were those of a military commander, representing a de facto government in the prosecution of a war, he was not civilly responsible therefor.' Judgment having been rendered for defendant, the case was taken to the circuit court of appeals, and by that court affirmed, upon the ground 'that the acts of the defendant were the acts of the government of Venezuela, and as such are not properly the subject of adjudication in the courts of another government.' Thereupon the case was brought to the Supreme Court on certiorari.
Whether or not the lower court erred in ruling in favor of defendant Hernandez.
No. The lower court was correct in ruling for Hernandez. Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.
Nor can the principle be confined to lawful or recognized governments or to cases where redress can manifestly be had through public channels. The immunity of individuals from suits brought in foreign tribunals for acts done within their own states, in the exercise of governmental authority, whether as civil officers or as military commanders, must necessarily extend to the agents of governments ruling by paramount force as matter of fact. Where a civil war prevails and that is, where the people of a country are divided into two hostile parties, who take up arms and oppose one another by military force, generally speaking, foreign nations do not assume to judge of the merits of the quarrel. If the party seeking to dislodge the existing government succeeds, and the independence of the government it has set up is recognized, then the acts of such government, from the commencement of its existence, are regarded as those of an independent nation. If the political revolt fails of success, still, if actual war has been waged, acts of legitimate warfare cannot be made the basis of individual liability. Revolutions or insurrections may inconvenience other nations, but by accommodation to the facts the application of settled rules is readily reached. And, where the fact of the existence of war is in issue in the instance of complaint of acts committed within foreign territory, it is not an absolute prerequisite that that fact should be made out by an acknowledgment of belligerency, as other official recognition of its existence may be sufficient proof thereof.
: Immediately upon her assumption to office following the successful EDSA Revolution, then President Corazon C. Aquino issued Executive Order No. 1 ("EO No. 1") creating the Presidential Commission on Good Government ("PCGG"). EO No. 1 primarily tasked the PCGG to recover all ill-gotten wealth of former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates. EO No. 1 vested the PCGG with the power "(a) to conduct investigation as may be necessary in order to accomplish and carry out the purposes of this order" and the power "(h) to promulgate such rules and regulations as may be necessary to carry out the purpose of this order." Accordingly, the PCGG, through its then Chairman Jovito R. Salonga, created an AFP Anti-Graft Board ("AFP Board") tasked to investigate reports of unexplained wealth and corrupt practices by AFP personnel, whether in the active service or retired. Military equipment/items and communication facilities were found in the residence of Elizabeth Dimaano, who was allegedly his mistress, and were confiscated by the elements of PC Command of Batangas. Money in the amount of P2,870,000 and $50,000 was also confiscated in the house of Elizabeth Dimaano. The Constabulary raiding team served at Dimaano’s residence a search warrant captioned "Illegal Possession of Firearms and Ammunition." Dimaano was not present during the raid but Dimaano’s cousins witnessed the raid. The raiding t eam seized the items detailed in the seizure receipt together with other items not included in the search warrant. The raiding team seized these items: one baby armalite rifle with two magazines; 40 rounds of 5.56 ammunition; one pistol, caliber .45; communications equipment, cash consisting of ₱2,870,000 and US$50,000, jewelry, and land titles. Petitioner wants the Court to take judicial notice that the raiding team conducted the search and seizure "on March 3, 1986 or five days after the successful EDSA revolution." Petitioner argues that a revolutionary government was operative at that time by virtue of Proclamation No. 1 announcing that President Aquino and Vice President Laurel were "taking power in the name and by the will of the Filipino people." Petitioner asserts that the revolutionary government effectively withheld the operation of the 1973 Constitution which guaranteed private respondents’ exclusionary right. Moreover, petitioner argues that the exclusionary right arising from an illegal search applies only beginning 2 February 1987, the date of ratification of the 1987 Constitution. Petitioner contends that all rights under the Bill of Rights had already reverted to its embryonic stage at the time of the search. Therefore, the government may confiscate the monies and items taken from Dimaano and use the same in evidence against her since at the time of their seizure, private respondents did not enjoy any constitutional right. : Whether the revolutionary government was bound by the Bill of Rights of the 1973 Constitution during the interregnum after the actual and effective take-over of power by the
revolutionary government following the cessation of resistance by loyalist forces up to 24 March 1986 (immediately before the adoption of the Provisional Constitution); and (2) whether the protection accorded to individuals under the International Covenant on Civil and Political Rights ("Covenant") and the Universal Declaration of Human Rights ("Declaration") remained in effect during the interregnum. : We hold that the Bill of Rights under the 1973 Constitution was not operative during the interregnum. However, we rule that the protection accorded to individuals under the Covenant and the Declaration remained in effect during the interregnum. During the interregnum, the directives and orders of the revolutionary government were the supreme law because no constitution limited the extent and scope of such directives and orders. With the abrogation of the 1973 Constitution by the successful revolution, there was no municipal law higher than the directives and orders of the revolutionary government. Thus, during the interregnum, a person could not invoke any exclusionary right under a Bill of Rights because there was neither a constitution nor a Bill of Rights during the interregnum. Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force during the interregnum, absent a constitutional provision excepting sequestration orders from such Bill of Rights, would clearly render all sequestration orders void during the interregnum. Nevertheless, even during the interregnum the Filipino people continued to enjoy, under the Covenant and the Declaration, almost the same rights found in the Bill of Rights of the 1973 Constitution. The revolutionary government, after installing itself as the de jure government, assumed responsibility for the State’s good faith compliance with the Covenant to which the Philippines is a signatory. Article 2(1) of the Covenant requires each signatory State "to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant." Under Article 17(1) of the Covenant, the revolutionary government had the duty to insure that "[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence." The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2) that "[n]o one shall be arbitrarily deprived of his property." Although the signatories to the Declaration did not intend it as a legally binding document, being only a declaration, the Court has interpreted the Declaration as part of the generally accepted principles of international law and binding on the State. Thus, the revolutionary government was also obligated under international law to observe the rights of individuals under the Declaration. The revolutionary government did not repudiate the Covenant or the Declaration during the interregnum. Whether the revolutionary government could have repudiated all its obligations under the Covenant or the Declaration is another matter and is not the issue here. Suffice it to say that the Court considers the Declaration as part of customary international law, and that Filipinos as human beings are proper subjects of the rules of international law laid down in the Covenant. The fact is the revolutionary government did not repudiate the Covenant or the Declaration in the same way it repudiated the 1973 Constitution. As the de jure government, the revolutionary government could not escape responsibility for the State’s good faith compliance with its treaty obligations under international law.
It was only upon the adoption of the Provisional Constitution on 25 March 1986 that the directives and orders of the revolutionary government became subject to a higher municipal law that, if contravened, rendered such directives and orders void. The Provisional Constitution adopted verbatim the Bill of Rights of the 1973 Constitution. The Provisional Constitution served as a self-limitation by the revolutionary government to avoid abuses of the absolute powers entrusted to it by the people. It is obvious from the testimony of Captain Sebastian that the warrant did not include the monies, communications equipment, jewelry and land titles that the raiding team confiscated. The search warrant did not particularly describe these items and the raiding team confiscated them on its own authority. The raiding team had no legal basis to seize these items without showing that these items could be the subject of warrantless search and seizure. Clearly, the raiding team exceeded its authority when it seized these items. The seizure of these items was therefore void, and unless these items are contraband per se, and they are not, they must be returned to the person from whom the raiding seized them. However, we do not declare that such person is the lawful owner of these items, merely that the search and seizure warrant could not be used as basis to seize and withhold these items from the possessor. We thus hold that these items should be returned immediately to Dimaano.
The petition for certiorari filed on July 13, 1946, assailed the validity of the judgment of the Court of Appeals which affirmed in December, 1942, the decision of the Court of First Instance of Tayabas against the petitioners, on the ground that the judgment rendered by the Court of Appeals during the Japanese occupation was null and void, because the question involved in the litigation was the validity or invalidity of a free patent issued by the Governor General of the Philippines under the authority granted by an Act of Congress of the United States; one of the parties in the case was the Director of Lands, as officer in charge with the administration and alienation of public lands placed under the control of the Government of the Philippines; and the petitioners were claiming vested rights, not only under the laws in force in the Philippiness, but also under the Act of Congress of July 1, 1902.
1. Whether or not the judgement rendered by the Court of Appeals during the Japanese occupation is null and void. 2. Whether or not a government de facto was validly established by the Japanese military forces in the Philippines.
1. The decision of the Court of Appeals promulgated on December 22,1942, which affirmed that of the Court of First Instance of Tayabas, has become final several years ago,
(75 Phil., 113). The fact that the question involved was the validity of a free patent, and the Director of Public Lands was a party, and that the authority to grant free patent was conferred upon the Governor General, and the power to regulate the procedure to obtain it upon the Legislature of the Philippines by Act of Congress of July 1, 1902,
. The Acts
authorizing and regulating the grant of free patents to occupants or possessors of public lands are
, and the judgments of the courts which apply said laws are not
of political complexion. 2. An organized government established in a territory must be either de jure or de facto, since there is no other class of organized government known in political as well as in international law.
A puppet government is one that acts as another wills or dictates. The Republic of the Philippines was a puppet government, because although set up apparently as a free and independent government, was, in truth and in fact,
A government de facto was validly established by the Japanese military forces in the Philippines under the precepts of The Hague Conventions and the law of nations. The presence of guerrilla bands in barrios and mountains, and even in towns of the Philippines whenever these towns were left by Japanese garrisons or by the detachments of troops sent on patrol to these places, was not sufficient to make the military occupation ineffective, nor did it cause that occupation to cease, or prevent the constitution or establishment of a de facto government in the Islands. The belligerent occupation of the Philippines by the Japanese invaders became an accomplished fact from the time General Wainright, Commander of the American and Filipino forces in Luzon, and General Sharp, Commander of the forces in Visayas and Mindanao, surrendered and ordered the surrender of their forces to the Japanese invaders, and the Commonwealth Government had become incapable of publicly exercising its authority, and the invader had substituted his own authority, for that of the legitimate government in Luzon, Visayas, and Mindanao.
Pio Martinez, as guardian of Pedro Martinez, executed a promissory note for P2,000 in favor of Jacinto Notor, with interest at 10 per cent annually, and payable within two years from said date. In a mortgage executed on March 28, 1943, covering said note, it was further provided that the contract was "renewable at the discretion of the mortgagee," and that the mortgagor promised to pay the sum specified in the note "according to the terms thereof". Due to additional sums subsequently obtained from Jacinto Notor, plus interest, the total indebtedness amounted to P10,111. Prior to this date, Pio Martinez offered to pay the debt, but the creditor Jacinto Notor refused to accept the payment, as a result of which the present action was instituted. In the complaint (filed before the liberation of the Philippines), it was prayed that the debtor be declared as having fully paid his indebtedness to Jacinto Notor. After trial, the lower court, rendered judgment declaring that the plaintiff, Ramon Martinez, as guardian of Pedro Martinez, had paid in full his indebtedness to the defendant, Jacinto Notor, from the time he consigned the amount thereof by depositing it with the clerk of court of First Instance of Batangas. The Court ruled that it is true that no allegation in paragraphs 5 and 6 of the complaint to the effect that there was as notice of consignation, as required by article 1177 of the Civil Code, but the absence of such allegation is cured by the positive stipulation that the only question to be raised is whether the creditor has the right to renew the mortgage contract at his discretion, in which the Court likewise ruled in affirmative. Jacinto Notor appealed to the Court of Appeals which rendered a decision affirming the judgment of the court of origin. Whether or not the courts of the Commonwealth and their successors, the court of the Philippine Republic, have jurisdiction over the case. Yes. There can be no doubt as to the jurisdiction of the courts of the Commonwealth and of the Republic. In the case of CoKanChamvs.ValdezTau, 75 Phil., 113, 371; 41 Off. Gaz., 779, it was held that the judicial acts and proceedings of the courts of justice during the Japanese military occupation which are not of a political complexion, were good and valid and, by virtue of the principle of post preliminary in international law, remained good and valid after the liberation of the Philippines. The litigation between the parties herein is certainly not of a political complexion, since it involves merely their civil rights, and it is immaterial whether the currency in dispute was Japanese military notes. At any rate, the tender of payment was made during the Japanese military occupation when military notes were legal tender. Under the rules of Public international Law, the right of the military occupant, in the exercise of his governmental power, to issue military currency as legal tender has never been seriously questioned. (Haw Pia vs. China Banking Corporation, 80 Phil., 604; 45 Off Gaz. (Supp. to No. 9), 229; Philippine Trust Haw Pia vs. vs. China China Company vs. Araneta, G. R. No. L-2734, March 17, 1949 1). In the case of Haw BankingCorporation,supra , we have already recognized the validity of a payment of a mortgage indebtedness in Japanese military notes. This has to be so, because "the law made by the occupant within his admitted power, whether morally justifiable or not will bind any member of the occupied population as against any other member of it, . . . as far as it produces an effect during the occupation." In the case at bar we are not authorizing the circulation of Japanese military notes, as legal tender at present, but we are merely giving effect to a payment that was valid and binding at the time it was made.
On July 29, 1947, Executive Order No. 68 was passed by then President Manuel Roxas. It establishes a National War Crimes Office and provides that persons accused as war criminals shall be tried by military commissions. On June 26, 1948, petitioner Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in the Philippines was charged before the military commission of violations of the laws and customs of war for permitting commission of brutal atrocities and other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces. Petitioner Kuroda filed a petition in Court seeking to declare EO No. 68 as unconstitutional on the ground, among others, that the Philippines is not a signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and therefore petitioners is charged of 'crimes' not based on law, national and international.
Whether or not EO No. 68 is constitutional.
Yes, EO No. 68 is constitutional. Citing Article 2, Sec. 3 of the Constitution which provides that “the Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of international law as part of the law of the nation", the Supreme Court held that In accordance with the generally accepted principle of international law of the present day including the Hague Convention, the Geneva Convention, and significant precedents of international jurisprudence established by the United Nation, all those person military or civilian who have been guilty of planning preparing or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto in violation of the laws and customs of war, of humanity and civilization are held accountable therefor. Consequently, in the promulgation and enforcement of Execution Order No. 68, the President of the Philippines has acted in conformity with the generally accepted and policies of international law which are part of our Constitution.
The plaintiffs are the owner of three apartments located in Manila. The apartments where subject of lease contracts in favor of the United State of America. The term or period for the three leases was to be "for the duration of the war and six months thereafter, unless sooner terminated by the United States of America." Defendant Moore and Tillman were in charge of the said apartments. Sometime in March 1946 approached the predecessors in office of defendants Moore and Tillman and requested the return of the apartment buildings to them, but they were advised that the U. S. Army wanted to continue occupying the premises. On May 11, 1946, said plaintiffs requested the defendants to renegotiate said leases, execute lease contracts for a period of three years and to pay a reasonable rental higher than those payable under the old contracts. However, they refused to execute new leases but advised that "it is contemplated that the United States Army will vacate subject properties prior to 1 February 1947." Hence, plaintiffs formally requested Tillman to cancel said three leases and to release the apartment buildings on June 28, 1946. Tillman refused to comply with the request. Because of the alleged representation and assurance that the U. S. Government would vacate the premises before February 1, 1947, the plaintiffs took no further steps to secure possession of the buildings and accepted the monthly rentals tendered by the predecessors in office of Moore and Tillman on the basis of a month to month lease subject to cancellation upon thirty days’ notice. On February 17, 1947, plaintiffs served formal notice upon defendants Moore and Tillman and 64 other army officers or members of the United States Armed Forces who were then occupying apartments in said three buildings, demanding to cancel the contract and vacate the buildings or to execute another contract with higher rents. The thirty-day period having expired without any of the defendants having complied with plaintiffs' demands, the plaintiffs filed an action of unlawful detainer in the Municipal Court of Manila against Moore and Tillman and the 64 persons occupying apartments in the three buildings. Respondent file a motion to dismissed on the ground that the court has no jurisdiction over them and over the subject matter, because the real party in interest was the U.S Government. The court granted the motion and dismissed the case. On appeal the Court of First Instance affirmed the said decision. Issue: Whether or not the real party in interest was the U.S Government. Ruling: Yes. The Court ruled that it is not the respondent but the U.S Government is the real party in interest in the case. When a private citizen claiming title and right of possession of a certain property may, to recover possession of said property, sue as individuals, officers and agents of the Government who are said to be illegally withholding the same from him, though in doing so, said officers and agents claim that they are acting for the Government, and the courts may entertain such a suit
although the Government itself is not included as a party-defendant. But where the judgment in the suit by the private citizen against the officers and agents of the government would result not only in the recovery of possession of property in favor of said citizen but also in a charge against or financial liability to the Government, then the suit should be regarded as one against the Government itself, and, consequently, it cannot prosper or be entertained by courts except with the consent of said government. The case at bar is not only a case of a citizen filing a suit against his own Government without the latter's consent, but it is of citizen filing an action against a foreign government without said government's consent, which renders more obvious the lack of jurisdiction of the courts of his country. Hence, the case is dismissed.
petitioner ,
vs. respondents.
Edgardo Gener filed a complaint against Donald Baer, Commander of the United States Naval Base in Olongapo. He alleged that he was engaged in the business of logging in Morong, Bataan and that the American Naval Base authorities stopped his logging operations. A restraining order was issued by respondent Judge. Baer filed a motion to dismiss on the ground that the respondent Judge has no jurisdiction because the suit was one against a foreign sovereign without its consent. Baer pointed out that he is the chief or head of an agency or instrumentality of the United States of America. It was added that in directing the cessation of logging operations by Gener within the Naval Base, Baer was entirely within the scope of his authority and official duty, the maintenance of the security of the Naval Base and of the installations therein being the first concern and most important duty of the Commander of the Base. Gener, on his reply, relied on the principle that "a private citizen claiming title and right of possession of certain property may, to recover possession of said property, sue as individuals, officers and agents of the Government, who are said to be illegally withholding the same from him, though in doing so, said officers and agents claim that they are acting for the Government." Baer, on the other hand, present certified copies of telegrams of the Forestry Director to Forestry personnel in Bataan directing immediate investigation of illegal timber cutting in Bataan and calling attention to the fact that the records of the office show no new renewal of timber license or temporary extension permits. The above notwithstanding, respondent Judge issued an order granting Gener's application for the issuance of a writ of preliminary injunction and denying Baer's motion to dismiss. Hence, this petition for certiorari.
Whether the doctrine of state immunity from suit without consent is applicable.
A careful study of the crucial issue posed in this dispute yields the conclusion that petitioner should prevail. The invocation of the doctrine of immunity from suit of a foreign state without its consent is appropriate. The solidity of the stand of Baer is evident. What was sought by Gener and what was granted by respondent Judge amounted to an interference with the performance of the duties of petitioner in the base area in accordance with the powers possessed by him
under the Philippine-American Military Bases Agreement. Assuming that the Bureau of Forestry possesses the "authority to issue a Timber License to cut logs" inside a military base, the Bases Agreement subjects the exercise of rights under a timber license issued by the Philippine Government to the exercise by the United States of its rights, power and authority of control within the bases; and the findings of the Mutual Defense Board continued logging operation by Mr. Gener within the boundaries of the U.S. Naval Base would not be consistent with the security and operation of the Base," is conclusive upon the respondent Judge. The doctrine of state immunity is not limited to cases which would result in a pecuniary charge against the sovereign or would require the doing of an affirmative act by it. Prevention of a sovereign from doing an affirmative act pertaining directly and immediately to the most important public function of any government - the defense of the state — is equally as untenable as requiring it to do an affirmative act. More specifically, insofar as alien armed forces is concerned, the starting point is Raquiza v.Bradford , a 1945 decision. In dismissing a habeas corpus petition for the release of petitioners
confined by American army authorities, the Court cited from Coleman v. Tennessee, where it was explicitly declared: "It is well settled that a foreign army, permitted to march through a friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place." Two years later, in Tubb and Tedrow v. Griess, this Court relied on the ruling in Raquizav.Bradford and cited excerpts from the works of
the following authoritative writers: Vattel, Wheaton, Hall, Lawrence, Oppenhein, Westlake, Hyde, and McNair and Lauterpacht. Accuracy demands the clarification that after t he conclusion of the Philippine-American Military Bases Agreement, the treaty provisions should control on such matter, the assumption being that there was a manifestation of the submission to jurisdiction on the part of the foreign power whenever appropriate. The principles of law behind this rule are so elementary and of such general acceptance that we deem it unnecessary to cite authorities in support thereof . It is a widely accepted principle of international law, which is made a part of the law of the land (Article II, Section 3 of the 1973 Constitution), that a foreign state may not be brought to suit before the courts of another state or its own courts without its consent. Wherefore, the writ of certiorari prayed for is granted, nullifying and setting aside the writ of preliminary injunction issued by respondent Judge.
FACTS: This is a consolidation of a number of cases regarding the issues, mostly in relation to its constitutionality, surrounding the Memorandum of Agreement on the Ancestral Domain (MOAAD) between the Government of the Philippines (GPR) and the Moro Islamic Liberation Front (MILF) 1 and the issue regarding the extent of the powers of the President in pursuing the peace process. The following are the cases that have been consolidated: G.R. 183591 – (23 July 2008) the Province of North Cotabato and Vice Governor Emmanuel
Piñol (Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and TRO) sought to compel respondents to disclose the MOA-AD and attachments, prohibit the signing, hold a public consultation and declare the MOA-AD UNCONSTITUTIONAL G.R. 183752 – the City of Zamboanga (Mandamus and Prohibition and similar injunctive reliefs)
prayed that Zamboanga City be excluded from the Bangsamoro Homeland and/or Bangasmoro Judicial Entity (BJE) and that the MOA-AD be declared null and void G.R. 183893 – City of Iligan (Injunction and Declaratory Relief) sought to enjoin respondents
from signing the MOA-AD and if it has been signed, from implementing it. Additionally impleaded ES Eduardo Ermita as respondent. G.R. 183951 - the Province of Zamboanga del Norte et al (petition for Certiorari, Mandamus
and Prohibition), prayed to declare null and void the MOA-AD and without operative effect and those respondents enjoined from executing the MOA-AD G.R. 183962 – Maceda, Binay, Pimentel III filed a petition for Prohibition, praying for a
judgment prohibiting and permanently enjoining respondents from formally signing and executing the MOA-AD as well as to nullify the MOA-AD for being unconstitutional and illegal. Additionally impleaded as responded the MILF Peace Negotiating Panel (represented by Chairman Iqbal. Various parties moved to intervene and were granted to file their petitions/comments in-
intervention.
1. 1996 – the beginning of the long process of GRP-MILF peace negotiations 2. 18 July 1997 – the GRP and the peace panel signed the Agreement on the General Cessation of Hostilities 3. 27 August 1998 – signed the General Framework of Agreement of Intent
4. 1999 to early 2000 – numerous municipalities in Central Mindanao were attacked by the MILF which affected the peace negotiations; MILF took control of the town hall in Kauswagan, Lanao del Norte in March 2000 and in response, then President Estrada declared an “all-out-war” against the MILF 5. 2001 – President GMA assumed office and suspended the military offense against the MILF and sought a resumption of the peace negotiations; MILF was first apprehensive but were convinced when GMA asked the Government of Malaysia through Prime Minister Mahathir Mohammad to help convince them, the MILF convened its Central Committee seriously to discuss the matter and eventually met with the GRP 6. 28 February 2001 – GRP Negotiating Panel was established through Executive Order No. 3 s. 2001 7. 24 March 2001 – parties met in Kuala Lumpur with talks facilitated by the Malaysian Government; parties signed the Agreement on the General Framework and the Resumption of Peace Talks. The MILF thereafter suspended all its military actions. 8. 20-22 June 2001 – formal peace talks held in Tripoli, Libya the outcome of which was the GRPMILF Tripoli Agreement on Peace Process which contained the following basic principles and agenda on the negotiations: security aspect, rehabilitation aspect, and ancestral domain aspect (this aspect had a colatilla saying that it “shall be discussed further by the Parties in their next meeting”) 9. 5-7 August 2001 – second round of peace talks in Cyberjaya, Malaysia which ended in the signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 which led to a ceasefire between parties 10. 7 May 2002 – signed the Implementing Guidelines on the Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001 11. 13 July 2003 – Chairman Salamat Hashim of the MILF passed away and subsequently replaced by Al Haj Murad (previously chair peace negotiator). His position was taken over by Mohagher Iqbal. 12. 2005 – exploratory talks between parties in Malaysia, to draft the MOA-AD 13. 23 July 2008 – the Province of North Cotabato file with the Supreme Court and was docketed as G.R. 183591 14. 04 August 2008 – the Court issued a Temporary Restraining Order (TRO) commanding and directing respondents and agents to cease and desist from formally signing the MOA-AD. Court also required SolGen to submit to the court and petitioners the official copy of the MOA-AD 15. 05 August 2008 – scheduled signing date for the final form of Memorandum of Agreement on the Ancestral Domain Aspect of the Tripoli Agreement on Peace (MOA-AD) 16. 15, 22, 29 August 2008 – cases were heard on oral argument 17. 19 August 2008 - Maceda, Binay, Pimentel III filed with the SC 18. 19 August 2008 – Respondents (through Manifestation by Motion) stated that the Executive Department shall
thoroughly review the MOA-AD and pursue further negotiations to address the issues raised and thus moved to dismiss the cases
ISSUE: WON the AD-MOA is unconstitutional.
RULING: Yes. The MOA-AD is patently unconstitutional.
On the associative relationship between BJE and the Government Keitner and Reisman state that “[a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. i.e. US-Federate State of Micronesia. Micronesia has the capacity to conduct foreign affairs in their own name and right, such capacity extending to matters such as the law of the sea, marine resources, trade, and etc. In international practice, the “associated state” arrangement has usually been used as a transitional device of former colonies on their way to full independence.
The BJE’s capacity to enter into economic and trade relations with foreign countries The commitment of the Central Government to ensure the BJE’s participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the Central Government over external defense. BJE’s right to participate in Philippine official missions bearing on negotiation of border agreements, environmental protection, and sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming part of the ancestral domain Resembles the right of the governments of FSM and the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter affecting them. These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state or, at any rate, a status closely approximating it.
No province, city, or municipality, not even the ARMM, is recognized under our laws as having an “associative” relationship with the national government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence. Even the mere concept animating many of the MOA-AD’s provisions, therefore, already requires for its validity the amendment of constitutional provisions, specifically the following provisions of Article X Sec. 1 (territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays) and Sec. 15 (ARMM be created, xxx within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic o f the Philippines.
BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo
Convention, namely,
a permanent
population,
a defined
territory,
a government, and a capacity to enter into relations with other states. Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it—which has betrayed itself by its use of the concept of association—runs counter to the national sovereignty and territorial integrity of the Republic. The defining concept underlying the relationship between the national government and the BJE being itself contrary to the present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws. The municipalities of Lanao del Norte which voted for inclusion in the ARMM during the 2001 plebiscite— Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal—are automatically part of the BJE without need of another plebiscite. These municipalities voted for inclusion in the ARMM, not the BJE.
Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons, held that the Universal Declaration of Human Rights is part of the law of the land.
International law has long recognized the right to self-determination of “peoples,” understood not merely as the entire population of a State but also a portion thereof. In considering the question of whether the people of Quebec had a right to unilaterally seceded from Canada. The International Covenant on Civil and Political Rights161and the International Covenant on Economic, Social and Cultural Rights which state, in Article 1 of both covenants, that all peoples, by virtue of the right of self-determination, “freely determine their political status and freely pursue their economic, social, and cultural development.”
A distinction should be made between the right of internal and external selfdetermination. In REFERENCE RE SECESSION OF QUEBEC is again instructive: The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination — a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances.
In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration of the Philippine State, binding under international law, that it would comply with all the stipulations stated therein, with the result that it would have to amend its Constitution accordingly regardless of the true will of the people. Cited as authority for this view is Australia v. France, also known as the Nuclear Tests Case, decided by the International Court of Justice (ICJ).
Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral declaration on the part of the Philippine State to the international community. The Philippine panel did not draft the same with the clear intention of being bound thereby to the international community as a whole or to any State, but only to the MILF. While there were States and international organizations involved, one way or another, in the negotiation and projected signing of the MOA-AD, they participated merely as witnesses or, in the case of Malaysia, as facilitator.
In one important respect, the circumstances surrounding the MOA-AD are closer to that of Burkina Faso wherein, as already discussed, the Mali President’s statement was not held to be a binding unilateral declaration by the ICJ. As in that case, there was also nothing to hinder the Philippine panel, had it really been its intention to be bound to other States, to manifest that intention by formal agreement. Here, that formal agreement would have come about by the inclusion in the MOA-AD of a clear commitment to be legally bound to the international community, not just the MILF, and by an equally clear indication that the signatures of the participating statesrepresentatives would constitute an acceptance of that commitment. Entering into such a formal agreement would not have resulted in a loss of face for the Philippine government before the international community, which was one of the difficulties that prevented the French Government from entering into a formal agreement with other countries. That the Philippine panel did not enter into such a formal agreement suggests that it had no intention to be bound to the international community. On that ground, the MOA-AD may not be considered a unilateral declaration under international law.
LEGASPI, Mary Rose B. Bayan v. Zamora G.R. No. 138570 October 10, 2000 J. Buena Facts:
The Philippines and the United States of America forged a Military Bases Agreement which formalized, the use of installations in the Philippine territory by United States military personnel. To further strengthen their defense and security relationship, the Philippines and the United States entered into a Mutual Defense Treaty. Under the treaty, the parties agreed to respond to any external armed attack on their territory, armed forces, public vessels, and aircraft. Upon the impending expiration of the Agreement, the Philippines and the United States negotiated for a possible extension of the military bases agreement. The Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and Security which, in effect, would have extended the presence of US military bases in the Philippines. On the expiration of the Agreement, the periodic military exercises conducted between the two countries were held in abeyance. But the defense and security relationship between the Philippines and the United States of America continued pursuant to the treaty. The United States panel met with the Philippines panel to exchange notes on the complementing strategic interests of the United States and the Philippines in the AsiaPacific region. They discussed the possible elements of the Visiting Forces Agreement. The negotiations led to a consolidated draft text, which in turn resulted to a final series of conferences and negotiations. President Ramos approved the VFA, which was signed by public respondent Secretary Siazon and Unites States Ambassador Thomas Hubbard. President Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA. The President, acting through respondent Executive Secretary Zamora, officially transmitted to the Senate of the Philippines the Instrument of Ratification, the letter of the President and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987 Constitution. The Senate, referred the VFA to its Committee on Foreign Relations, chaired by Senator Ople, and its Committee on National Defense and Security, chaired by Senator Biazon, for their joint consideration and recommendation. Thereafter, joint public hearings were held by the two Committees. The Committees submitted Proposed Senate Resolution No. 443 recommending the concurrence of the Senate to the VFA and the creation of a Legislative Oversight Committee to oversee its implementation. Debates then ensued. It was approved by the Senate, by a two-thirds (2/3) vote of its members. It was re-numbered as Senate Resolution No. 18. On 1999, the VFA officially entered into force after an Exchange of Notes between respondent Secretary Siazon and United States Ambassador Hubbard. The VFA, provides for the mechanism for regulating the circumstances and conditions under which US Armed Forces and defense personnel may be present in the Philippines. Petitioners assail the constitutionality of the VFA and impute to herein respondents grave abuse of discretion in ratifying the agreement. Issue:
Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of the Constitution? Ruling: Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA has for its subject the presence of foreign military troops in the Philippines. Respondents, on the contrary, maintain that Section 21, Article VII should apply inasmuch as the VFA is
not a basing arrangement but an agreement which involves merely the temporary visits of United States personnel engaged in joint military exercises. The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on treaties or international agreements. Section 21, Article VII deals with treatise or international agreements in general, in which case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject treaty, or international agreement, valid and binding on the part of the Philippines. This provision lays down the general rule on treatise or international agreements and applies to any form of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treatise or those economic in nature. All treaties or international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective. On the other hand, 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 concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII further requires that foreign military bases, troops, or facilities may be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress, and recognized as such by the other contracting state. The VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies. Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant case. However, the provisions of section 21, Article VII are applicable with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the Senate. Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state. 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 through Resolution No. 18 is in accordance with the provisions of the Constitution, whether under the general requirement in Section 21, Article VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter article requiring ratification by a majority of the votes cast in a national referendum being unnecessary since Congress has not required it. As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international agreement, to be valid and effective, must be concurred in by at least two-thirds of all the members of the Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty be duly concurred in by the Senate. A two-thirds vote of all the members of the Senate is clearly required so that the concurrence contemplated by law may be validly obtained and deemed present. While it is true that Section 25, Article XVIII requires, among other things, that the treaty-the VFA, in the instant case-be duly concurred in by the Senate, it is very true however that said provision must be related and viewed in light of the clear mandate embodied in Section 21, Article VII, which in more specific terms, requires that the concurrence of a treaty, or international agreement, be made by a two -thirds vote of all the members of the Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to section 21, Article, VII.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation. Thus, in international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers. The ratification, by the President, of the VFA and the concurrence of the Senate should be taken as a clear an unequivocal expression of our nations consent to be bound by said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder. 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 concurrence, to the ratification. With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under the principles of international law, to be bound by the terms of the agreement.
The Government of Japan and the Government of the Philippines, through their respective representatives have reached an understanding concerning Japanese loans to be extended to the Philippines. These loans were aimed at promoting our country’s economic stabilization and development efforts. The proceeds of Loan Agreement No. PH-P204 was to be used
to
finance
the
Arterial Road Links Development Project (Phase IV), of which the Catanduanes Circumferential Road was a part. Subsequently, the DPWH, caused the publication of the “Invitation to Prequalify and to Bid” for the implementation of the CP I project. It was announced that the Approved Budget for the Contract (ABC) was in the amount of P738,710,563.67. The BAC of the DPWH, with the approval of then Acting Secretary Soriquez, issued the assailed Resolution No. PJHLA04-012 recommending the award in favor of China Road & Bridge Corporation of the contract for the implementation of civil works said Catanduanes Circumferential Road Improvement Project being the lowest bidder with a bid of to P952,564,821.71 (with variance of 28.95% from the ABC). Now the petitioners filed an action for Certiorari under RULE 65 and opine that the contract subsequently entered into by and between the DPWH and private respondent China Road & Bridge Corporation is void ab initio for being prohibited by RA 9184. They stress that Section 31 thereof expressly provides that “bid prices that exceed this ceiling shall be disqualified outright from participating in the bidding.” The upper limit or ceiling is called the ABC and since the bid of private respondent China Road & Bridge Corporation exceeded the ABC for the CP I project, it should have been allegedly disqualified from the bidding process and should not, by law, have been awarded the said contract. The petitioners also 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 application of RA 9184. They point out that to be considered a treaty, an international or an executive agreement, the parties must be two sovereigns or States whereas in the case of Loan Agreement No. PH-P204, the parties are the Philippine Government and the JBIC, a banking agency of Japan, which has a separate juridical personality from the Japanese Government.
Whether or not the Loan Agreement No. PH-P204 between the JBIC and the Philippine Government is neither a treaty, an international nor an executive agreement.
It is stated that “treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes” all refer to “international instruments binding at international law.”67 It is f urther explained that— “Although these instruments differ from each other by title, they all have common features and international law has applied basically the same rules to all these instruments. These rules are the result of long practice among the States, which have accepted them as binding norms in their mutual relations. Therefore, they are regarded as international customary law. Since there was a general desire to codify these customary rules, two international conventions were negotiated. The 1969 Vienna Convention on the Law of Treaties (“1969 Vienna Convention”), which entered into force on 27 January 1980, contains rules for treaties concluded between States. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations (“1986 Vienna Convention”), which has still not entered into force, added rules for treaties with international organizations as parties. Both the 1969 Vienna Convention and the 1986 Vienna Convention do not distinguish between the different designations of these instruments. Instead, their rules apply to all of those instruments as long as they meet the common requirements.” Significantly, an exchange of notes is considered a form of an executive agreement, which becomes binding through executive action without the need of a vote by the Senate or Congress. 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 “protocol.” 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 tradeagreements act, have been negotiated with foreign governments. x x x”
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. Under the fundamental principle of international law of pacta sunt servanda,73 which is, in fact, embodied in Section 4 of RA 9184 as it provides that “[a]ny treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be observed,” the DPWH, as the executing agency of the projects financed by Loan Agreement No. PH-P204, rightfully awarded the contract for the implementation of civil works for the CP I project to private respondent China Road & Bridge Corporation.
Petitioner:
Secretary of Justice
Respondents: HON. Ralph C. Lantion, Presiding Judge, RTC of Manila, Branch 25, and Mark B. Jimenez Ponente:
Justice Mello
This is a Petition for Review of the decision of the Regional Trial Court of Manila, Branch 25.
On January 13, 1977 Presidential Decree No. 1069 was issued by President Ferdinand Marcos entitled “Prescribing the Procedure of the Extradition of Persons who have committed Crimes in a Foreign Country”. The Decree is founded on The Doctrine of Incorporation under the Constitution Art II, Sec 2 of the 1987 Philippine Constitution. Secretary of Justice Franklin Drilon signed the ““Extradition Treaty between the Government of the Republic of the Philippines and the Government of the United States of America” also known as RP-US Extradition Treaty which was ratified by the Senate on November 13, 1994.
On June 18, 1999, the Department of Justice (DOJ) received from the Department of Foreign Affairs containing a request for the extradition of private respondent Mark Jimenez to the United States. Attached to the Note Verbale No. 0522 were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other supporting documents for said extradition. He was charged in the U.S. with the violation of the following: conspiracy, attempt to evade tax, fraud by wire, radio, or television, false s tatement or entry and election contributions in the name of another. Secretary of Justice then ordered a technical evaluation and assessment of the extradition request.
Pending evaluation, Mark Jimenez through counsel wrote a letter addressed to herein petitioner requesting copies of official extradition request from the US Government. He requested ample time to comment and for the matter to be held in abeyance in the meantime. The Secretary of Justice denied the said request specifically invoking our country’s responsibility to the Vienna Convention on the law of Treaties that “every treaty in force is binding upon parties to it and must be performed by them in good faith,” particularly the RP-US Extradition Treaty . On Aug 6, 1999 Mark Jimenez filed with the R.T.C against the Secretary of Justice, Secretary of Foreign Affairs and the Director of the NBI for Mandamus (to compel them to furnish to Mark Jimenez the extradition documents.), Certiorari (to set aside the Sec. of Justice letter dated July 13, 1999), Prohibition (to restrain the Sec of Justice from considering the
extradition request). Presiding Judge Lantion ruled in favor of Mark Jimenez and ordered the Secretary of Justice, Secretary of Foreign Affairs and the Director of the National Bureau of Investigation to maintain the status quo by refraining from committing the acts complained of, from conducting further proceedings in connection with the request of the United States Government, from filing the corresponding Petition with a Regional Trial court and from performing any act directed to the extradition for a period of 20 days from service of the order.
Whether or not the entitlement of Mark Jimenez to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government under the RP-US Extradition Treaty
The Supreme Court ruled in the negative. The Extradition Law provides Rules of Court shall apply, thus the prospective extradite has the basic right of notice and hearing. The RP-US Extradition Treaty under the Incorporation Clause in case of conflict is not superior over a national law.
Furthermore, the rights of the accused guaranteed in our Constitution should take precedence over treaty rights claimed by a contracting state. Whether a citizen or an alien, the duties of the government to a person deserve preferential consideration when they collide with its treaty obligations to the government of another state. This is without prejudice to the recognition of our country to the treaties as a source of binding obligations under generally accepted principles of international law incorporated in our Constitution as part of the law of the land.
The doctrine of incorporation is applied whenever municipal tribunals are confronted with situation in which there appears to be a conflict between a rule of international law and the provision of the constitution or statute of the local state. Although efforts should first be made in order to harmonize them because of the fact that municipal law was enactedThe fact that international law has been made part of the law of the land does not mean that the international law shall supersede over national or municipal law in the municipal sphere. As applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Most importantly, it is a well settled rule that municipal law should be upheld by the municipal courts because the latter are organs of municipal law and are bound by it in all circumstances. Accordingly,efforts should first be exerted to harmonize them to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the incorporation clause in a constitutional provision.
The Petition is dismissed. Petitioner is ordered to furnish Mark Jimenez copies of the extradition request and its supporting papers, and to grant him a reasonable period within which to file his comment with supporting evidence.
Beginning January of this year 2002, personnel from the armed forces of the United States of America started arriving in Mindanao to take part, in conjunction with the Philippine military, in "Balikatan 02-1." These so-called "Balikatan" exercises are the largest combined training operations involving Filipino and American troops. In theory, they are a simulation of joint military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines and the United States in 1951. On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari and prohibition, attacking the constitutionality of the joint exercise and seeking the issuance of a writ of prohibition/injunction to prevent US troops from participating in areas of armed conflict on the ground that such is in gross violation of the Constitution. They argue that: I.
II.
The Philippines and the United States signed the Mutual Defense Treaty (MDT) in 1951 to provide mutual military assistance in accordance with the “Constitutional Processes” of each country only in the case of an armed attack by an external aggressor, meaning a third country against one of them. By no stretch of the imagination can it be said that the Abu Sayyaf bandits in Basilan constitute an external armed force that has subjected the Philippines to an armed external attack to warrant US military assistance under the MDT of 1951. Neither does the VFA of 1999 authorize American soldiers to engage in combat operations in Philippine territory, not even to fire beck “if fired upon.”
They were joined subsequently by SANLAKAS and PARTIDO NGMANGGAGAWA, both party-list organizations, who filed a petition-in-intervention on February 11, 2002. Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO, on the other hand, aver that certain members of their organization are residents of Zamboanga and Sulu, and hence will be directly affected by the operations being conducted in Mindanao.
(1) Whether or not the “Balikatan” activities are covered under the Visiting Forces Agreement and are therefore valid. (2)Whether or not the American soldiers are authorized to engage in combat in the Philippines.
(1) . The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the Philippine government. After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word "activities" arose from accident. In our view, it was deliberately made that way to give both parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the nation's marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief
operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the like. Under these auspices, the VFA gives legitimacy to t he current Balikatan exercises. It is only logical to assume that "Balikatan 02-1," a "mutual antiterrorism advising, assisting and training exercise," falls under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities —as opposed to combat itself —such as the one subject of the instant petition, are indeed authorized. (3) . There is no treaty or agreement allowing US troops to engage in combat in the Philippines. Paragraph 8 of section I of the VFA stipulates that US exercise participants may not engage in combat "except in self-defense. Neither the MDT nor the VFA allow foreign troops to engage in an offensive war on Philippine territory. Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and international agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution. The present Constitution contains key provisions useful in determining the extent to which foreign military troops are allowed in Philippine territory. Thus, in the Declaration of Principles and State Policies, it is provided that: SEC. 2. —The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. SEC. 7. —The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination. SEC. 8. —The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in the country. The aforequoted provisions betray a marked antipathy towards foreign military presence in the country, or of foreign influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception.
The petitioners filed a petition for mandamus to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence pursuant to Sec. 21, Art VII of the 1987 Constitution.
It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties to the treaty. The Office of the Solicitor General, commenting for the respondents, questioned the standing of the petitioners to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy of courts. On the substantive issue raised by petitioners, respondents argue that the executive department has no duty to transmit the Rome Statute to the Senate for concurrence.
WON the Exec. Secretary and the DFA have the ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine mission to the U.N., even without the signature of the President
No.
The Supreme Court ruled that the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that “no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.”
Petitioners’ arguments equate the signing of the treaty by the Philippine representative with ratification. It should be underscored that the signing of the treaty and the ratification are two separate and distinct steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by the state’s authorized representative in the diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representative.
It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.
RESURRECCION, Kimberly R. Constantino v. Cuisia and Del Rosario G.R. No. 106064. October 13, 2005 J. Tinga Facts:
The Financing Program was the culmination of efforts that began during the term of former President Corazon Aquino to manage the country’s external debt problem through a negotiation-oriented debt strategy involving cooperation and negotiation with foreign creditors Pursuant to this strategy, the Aquino government entered into three restructuring agreements with representatives of foreign creditor governments during the period of 1986 to 1991. On 28 February 1992, the Philippine Debt Negotiating Team, negot iated an agreement with the country’s Bank Advisory Committee, representing all foreign commercial bank creditors, on the Financing Program which respondents characterized as a multi-option financing package. The Program was scheduled to be executed on 24 July 1992 by respondents in behalf of the Republic. Nonetheless, petitioners alleged that even prior to the execution of the Program respondents had already implemented its buyback component when on 15 May 1992, the Philippines bought back P1.26 billion of external debts pursuant to the Program. The petition sought to enjoin the ratification of the Program, but the Court did not issue any injunctive relief. Hence, it came to pass that the Program was signed in London as scheduled. The petition still has to be resolved though as petitioners seek the annulment of any and all acts done by respondents, their subordinates and any other public officer pursuant to the agreement and program in question. Even after the signing of the Program, respondents themselves acknowledged that the remaining principal objective of the petition is to set aside respondents actions. Petitioners characterize the Financing Program as a package offered to the country’s foreign creditors consisting of two debt-relief options. The first option was a cash buyback of portions of the Philippine foreign debt at a discount. The second option allowed creditors to convert existing Philippine debt instruments into any of three kinds of bonds/securities. On the other hand, according to respondents the Financing Program would cover about U.S. $5.3 billion of foreign commercial debts and it was expected to deal comprehensively with the commercial bank debt problem of the country and pave the way for the country’s access to capital markets. They add that the Program carried three basic options from which foreign bank lenders could choose, namely: to lend money, to exchange existing restructured Philippine debts with an interest reduction bond; or to exchange the same Philippine debts with a principal collateralized interest reduction bond. Issue: Whether or not the debt-relief contracts entered into pursuant to the Financing Program is beyond the powers granted to the President under Section 20, Article VII of the Constitution. Ruling:
The language of the Constitution is simple and clear as it is broad. It allows the President to contract and guarantee foreign loans. It makes no prohibition on the issuance of certain kinds of loans or distinctions as to which kinds of debt instruments are more onerous than others. This Court may not ascribe to the Constitution meanings and restrictions that would unduly burden the powers of the President. The plain, clear and unambiguous language of the Constitution should be construed in a sense that will allow the full exercise of the power provided therein. It would be the worst kind of judicial legislation if the courts were to misconstrue and change the meaning of the organic act.
The raison d etre of the Financing Program is to manage debts incurred by the Philippines in a manner that will lessen the burden on the Filipino taxpayers thus the term debt-relief agreements. The measures objected to by petitioners were not aimed at incurring more debts but at terminating pre-existing debts and were backed by the knowhow of the country’s economic managers as affirmed by third party empirical analysis. That the means employed to achieve the goal of debt-relief do not sit well with petitioners is beyond the power of this Court to remedy. The exercise of the power of judicial review is merely to check not supplant the Executive, or to simply ascertain whether he has gone beyond the constitutional limits of his jurisdiction but not to exercise the power vested in him or to determine the wisdom of his act. In cases where the main purpose is to nullify governmental acts whether as unconstitutional or done with grave abuse of discretion, there is a strong presumption in favor of the validity of the assailed acts. The heavy onus is in on petitioners to overcome the presumption of regularity. The court find that petitioners have not sufficiently established any basis for the Court to declare the acts of respondents as unconstitutional
On October 28, 1986, President Corazon Aquino issued the Executive Order No. 51 also known as Milk Code. Said E.O seeks to give effect to the Article 12 of International Code of Marketing of Breast milk (ICMBS) ---code adopted by the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several resolutions to the effect that breastfeeding supported, promoted and protected, hence, it should be ensured that nutrition and health claims are not permitted for breast milk substitutes. In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said instrument provides that State Parties should take appropriate measures to diminish infant and child mortality, and ensure that all segments of society, specially parents and children, are informed of the advantages of breastfeeding. Consequently, May 15, 2006, the DOH issued the RIRR which was to take effect on July 7, 2006. However, on June 28, 2006, Petition for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction was filed by the petitioner representing its members that are manufacturers of breast milk substitutes. On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from implementing the questioned RIRR. The petitioner alleged that the RIRR provisions were going beyond the provisions of the Milk Code. However, DOH contends that the RIRR implements not only the Milk Code but also various international law regarding infant and young child nutrition. Also, DOH alleges that those international instruments formed part of the law of the land hence, they may implement those in the RIRR.
Pursuant to 1987 Constitution, international law can become part of the domestic law either by transformation method or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law. Treaties on the other hand requires a concurrence of the 2/3 of the Senate in order such be formed part of the domestic law—transformation, as provided in Article VII Section 21. Thus, treaties or conventional international law must go through a process prescribed by the Constitution for it to be transformed into municipal law that can be applied to domestic conflicts.
The fact alleged by the DOH as to the international instruments covered by the said RIRR do not contain specific provisions regarding the use or marketing of breast milk substitute but only provides for the general terms that steps must be taken by the State Parties to diminish infant and child mortality and inform society of the advantages of the breastfeeding and ensure health and well-being of the families as well as the women provided with services. Two of these international instruments are the WHA resolutions and ICMBS. These international instrument cannot be considered as treaties since they have not concurred by at least two-thirds of all the members of the Senate.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this point that the Code did not adopt the provision in the ICMBS absolutely prohibiting advertising or other forms of promotion to the general public of products within the scope of the ICMBS. Instead, the Milk Code expressly provides that advertising, promotion, or other marketing materials may be allowed if such materials are duly authorized and approved by the Inter-Agency Committee (IAC). On the other hand, the Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations—Section 2, Article II of the Constitution (Incorporation Method). Some legal scholars and judges look upon certain "general principles of law" as a primary source of international law because they have the "character of jus rationale" and are "valid through all kinds of human societies." For an international law to be considered as customary law, it must be established that such rule is being followed by the states because they consider it as obligatory to comply with such rules. The WHO resolutions, although signed by most of the member states, were enforced or practice by at least a majority of the member states. Unlike the ICBMS whereby legislature enacted most of the provisions into the law via the Milk Code, WHA Resolutions have not been adopted as domestic law nor followed in our country as well. The Filipino have the option on how to take care of their babies as they see it
On May 9, 2003, then US Ambassador Francis Ricciardone sent US Embassy Note 0470 to the Department of Foreign Affairs proposing the terms of the Non-surrender Bilateral Agreement between the Philippines and the United States. Via Exchange of Notes BFO-028-03, the Philippines, through DFA Secretary, Blas F. Ople, agreed and accepted the US proposals embodied under the US Embassy Note, adverted to and put in effect the Non-surrender Agreement with the US government. The Non-surrender Agreement aims to protect what it refers to and defines as persons of the Philippines and the US from frivolous and harassment suits that might be brought against them in international tribunals. It provides that the persons of one party present in the territory of the other shall not, absent the express consent of the first party be surrendered or transferred by any means to any international tribunal for any purpose or by any means to any other entity or third country or expelled to a third country for the purpose of surrender to or transfer to any international tribunal, unless such tribunal has been established by the UN Security Council. Petitioners argue that the Exchange of Notes BFO-028-03 cannot be a valid medium for concluding an agreement, that it cannot partake the nature of a treaty without being ratified by the Senate, that the Non-surrender Agreement does not fall under any subject-categories enumerated in a previous case, and that the Non-surrender Agreement infringes the effectivity of the Rome Statute insofar as it unduly restricts the ICC’s jurisdiction.
Whether or not the Non-surrender Agreement could be validly concluded through exchanges of notes? 2. Whether or not the Non-surrender Agreement is a violation of the obligation of the Philippines under the Rome Statute? 1.
The Petition is denied for lack of merit. 1. An exchange of notes falls into the category of inter-governmental agreements which is an internationally accepted form of international agreement. It as a record of routine agreement that has many similarities with the private law contract. The agreement consists of 2 documents, each of the parties being in the possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of the letters may be government ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or sometimes to avoid the process of legislative approval. The terms exchanges of notes and executive agreements have been used interchangeably, the former being a form of executive agreement that becomes binding through executive action. The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea Trading case is not cast in
stone. There are no hard and fast rules on the propriety of entering, on a given subject, into a treaty or executive agreement as an instrument of international relations. The primary consideration in the choice of the form of agreement is the parties’ intent and desire to craft an international agreement in the form they so wish to further their respective interests. There is no difference between treaties and executive agreements in terms of their binding effects on the contracting parties, as long as the negotiating functionaries have remained within their powers. The right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage, the validity of which has never been seriously questioned by the Court. The President as head of state and government is the sole organ and authority in the external affairs of the country. The Constitution vests in the President the power to enter into international agreements, subject to the required concurrence votes of the Senate. But agreements may be validly entered into without such concurrence as the President wields vast powers and influence; her conduct in the external affairs of the nation is executive altogether. The President by ratifying through her deputies the Non-surrender agreement, did nothing more than discharge a constitutional duty and exercise a prerogative that pertains to the Office. 2. The Non-surrender agreement does not undermine the Rome Statute. The jurisdiction of the ICC is to be complementary to national criminal jurisdiction of signatory states. It is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. The primary jurisdiction over the so-called international crimes rests, at the first instance, with the State where the crime was committed; secondarily with the ICC in appropriate situations. The Non-surrender agreement does not violate the Philippines’ duty required by the imperatives of good faith to refrain from performing any act tending to impair the Rome Statute. The Philippines has not abdicated its sovereignty by bargaining away the jurisdiction of the ICC to prosecute US national who commit serious crimes of international concerns in the Philippines. The Non-surrender agreement is an affirmance of the Philippines’ national criminal jurisdiction. The Philippines may decide to try persons of the US under our national criminal jurisdiction. Or the country may opt not to exercise its criminal jurisdiction and defer to the ICC. As to persons of the US whom the Philippines refuses to prosecute, the country would in effect accord discretion to the US to exercise wither its national criminal jurisdiction or consent to the referral of the matter to the ICC for trial. By their nature, international agreements actually have a limiting effect on the otherwise encompassing nature of sovereignty. By their voluntary act, nations may decide to surrender or waive some aspects of their state power. In this partial surrender, greater benefits are derived from a pact or reciprocal undertaking. 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 should be handled by a particular international criminal court.
: Two fishing vessels that were fishing out of Havana, Cuba, sailed under a Spanish flag were fishing off the Cuba coast. They were owned a Spanish subject that was born in Cuba and living in Havana. The vessels were commanded by a subject of Spain, also residing in Havana. Their cargo consisted of fresh fish, caught by their crew. The fish were kept alive to be sold alive. Until stopped by the blockading squadron they had no knowledge of the existence of the war or of any blockade. She had no arms or ammunition on board, and made no attempt to run the blockade after she knew of its existence, nor any resistance at the time of the capture. Procedural History: DC for the Southern District of Florida condemned the two fishing vessels and their cargos as prizes of war. : Whether a court may look to established rules of other nations when their own nation lacks any treaty, legislation, proclamation, or instruction that is on point for a particular matter? : Yes. A court may look to established rules of other nations when their own nation lacks any treaty, legislation, proclamation, or instruction that is on point for a particular matter. Where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat.
This is a Petition for Certiorari under Rule 65, with prayer for the issuance of a writ of mandatory injunction filed by Marilou S. Laude and Mesehilda S. Laude. On October 11, 2014, Jeffrey "Jennifer" Laude was killed at the Celzone Lodge on Ramon Magsaysay Drive in Olongapo City allegedly by 19-year-old US Marine L/CPL Joseph Scott Pemberton. On October 15, 2014, a Complaint for murder was filed by Jennifer's sibling, Marilou S. Laude, against Pemberton before the Olongapo City Office of the City Prosecutor. On October 22, 2014, Pemberton was detained in Camp Aguinaldo, the general headquarters of the Armed Forces of the Philippines. On December 15, 2014, the Public Prosecutor filed an Information for murder against Pemberton before the Regional Trial Court in Olongapo City. The case was docketed as Case No. 865-14, and was raffled to Branch 74. A warrant of arrest against Pemberton was issued on December 16, 2014. Pemberton surrendered personally to Judge Roline M. Ginez-Jabalde on December 19, 2014, and he was then arraigned. On the same day, Marilou S. Laude filed an Urgent Motion to Compel the Armed Forces of the Philippines to Surrender Custody of Accused to the Olongapo City Jail and a Motion to Allow Media Coverage. On December 23, 2014, Judge Ginez-Jabalde denied petitioners' Urgent Motion for lack of merit. Petitioners received a copy of the Order on January 5, 2015. On January 9, 2015, petitioners filed a Motion for Reconsideration. On February 18, 2015, Judge Ginez-Jabalde issued an Order denying petitioners' Motion for Reconsideration for lack of merit. Petitioners further argue that Judge Ginez-Jabalde should not have dismissed the Urgent Motion to Compel the Armed Forces of the Philippines to Surrender Custody of Accused to the Olongapo City Jail considering that the Urgent Motion raised issues that are of transcendental importance and of primordial public interest. Petitioners aver that under international human rights law, in particular the International Covenant on Civil and Political Rights and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, they have the right to access to justice, which is distinct from the power of the Public Prosecutors to prosecute criminal case. Furthermore, petitioners advance that Philippine authorities ought to have primary jurisdiction over respondent Pemberton's person while he is being tried in a Philippine Court, in accordance with Article V, paragraph (3)(b) of the Visiting Forces Agreement. Petitioners justify the separate filing of the Motion as a right granted by Article 2, paragraph (3) of the International Covenant on Civil and Political Rights, which states that:
“3.
Each
State
Party
to
the
present
Covenant
undertakes:c
(a)Toensurethatanypersonwhoserightsorfreedomsashereinrecognizedareviolatedshall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b)Toensurethatanypersonclaimingsucharemedyshallhavehisrighttheretodeterminedby competentjudicial,administrativeorlegislativeauthorities,orbyanyothercompetentauthority providedforbythelegalsystemoftheState,andtodevelopthepossibilitiesofjudicialremedy; (c)Toensurethatthecompetentauthoritiesshallenforcesuchremedieswhengranted.”
(1) Whether or not petitioners’ contention that the State failed to observe Article 2, paragraph (3) of the International Covenant on Civil and Political Rights. (2) Whether or not petitioners’ act of questioning the constitutionality of the Visiting Forces Agreement is a lismotaof the petition.
(1) No. There is no need to discuss whether this provision has attained customary status, since under treaty law, the Philippines, as a State Party, is obligated to comply with its obligations under the International Covenant on Civil and Political Rights. However, petitioners went too far in their interpretation, ignoring completely the nature of the obligation contemplated by the provision in an attempt to justify their failure to comply with a domestic procedural rule aimed to protect a human right in a proceeding, albeit that of the adverse party. The obligation contemplated by Article 2, paragraph (3) is for the State Party to establish a system of accessible and effective remedies through judicial and administrative mechanisms. The present trial of Pemberton, to which petitioner, Marilou S. Laude, is included as a private complainant, indicates that there is a legal system of redress for violated rights. That petitioners chose to act on their own, in total disregard of the mechanism for criminal proceedings established by this court, should not be tolerated under the guise of a claim to justice. This is especially in light of petitioners' decision to furnish the accused in the case a copy of her Motion only during the hearing. Upholding human rights pertaining to access to justice cannot be eschewed to rectify an important procedural deficiency that was not difficult to comply with. Human rights are not a monopoly of petitioners. The accused also enjoys the protection of these rights.
The constitutionality of the Visiting Forces Agreement is not the lis mota of this Petition. Petitioners started their Petition with a claim that their right to access to justice was violated, but ended it with a prayer for a declaration of the Visiting Forces Agreement's unconstitutionality. They attempt to create the connection between the two by asserting that the Visiting Forces Agreement prevents the transfer of Pemberton to Olongapo City Jail, which allegedly is tantamount to the impairment of this court's authority.
First, this Petition is not the proper venue to rule on the issue of whether the Visiting Forces Agreement transgresses the judicial authority of this court to promulgate rules pertaining
