1.Rubrico v.

Macapagal-Arroyo
G.R. No. 183871
18 February 2010
PONENTE: Velasco, Jr., J.
PARTIES:
1. PETITIONERS: LOURDES RUBRICO, JEAN RUBRICO APRUEBO,
and MARY JOY RUBRICO CARBONEL
2. RESPONDENTS: PRESIDENT GLORIA MACAPAGAL-ARROYO,
GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON,
MAJ. DARWIN SY, JIMMY SANTANA, RUBEN ALFARO, CAPT.
ANGELO CUARESMA, P/SUPT. EDGAR ROQUERO, ARSENIO
GOMEZ, JONATHAN, and OFFICE OF THE OMBUDSMAN
NATURE: Petition for Review on Certiorari of CA decision
PROCEDURAL BACKGROUND:
1. Supreme Court: Original Action for a Petition for the Writ of Amparo
2. Court of Appeals: Upon order of the Supreme Court, the Court of
Appeals summarily heard the Original Action for Petition of Amparo.
Thereafter, the Court of Appeals issued a partial judgment which is
the subject of the present Petition for Review on Certiorari.
FACTS:
On 03 April 2007, Lourdes Rubrico, chair of Ugnayan ng Maralita para sa
Gawa Adhikan, was abducted by armed men belonging to the 301st Air
Intelligence and Security Squadron (AISS) based in Lipa City while attending
a Lenten pabasa in Dasmarinas, Cavite. She was brought to and detained at
the air base without charges. She was released a week after relentless
interrogation, but only after she signed a statement that she would be a
military
asset.
Despite her release, she was tailed on at least 2 occasions. Hence, Lourdes
filed a complaint with the Office of the Ombudsman a criminal complaint for
kidnapping and arbitrary detention and grave misconduct against Cuaresma,
Alfaro, Santana, and Jonathan, but nothing has happened. She likewise
reported the threats and harassment incidents to the Dasmarinas municipal
and Cavite provincial police stations, but nothing eventful resulted from their
investigation.
Meanwhile, the human rights group Karapatan conducted an investigation
which indicated that men belonging to the Armed Forces of the Philippines
(AFP) led the abduction of Lourdes. Based on such information, Rubrico filed
a petition for the writ of amparo with the Supreme Court on 25 October 2007,
praying that respondents be ordered to desist from performing any
threatening act against the security of petitioners and for the Ombudsman to

immediately file an information for kidnapping qualified with the aggravating

circumstance of gender of the offended party. Rubrico also prayed for
damages and for respondents to produce documents submitted to any of
them on the case of Lourdes.
The Supreme Court issued the desired writ and then referred the petition to
the Court of Appeals (CA) for summary hearing and appropriate action. At
the hearing conducted on 20 November 2007, the CA granted petitioners
motion that the petition and writ be served on Darwin Sy/Reyes, Santana,
Alfaro, Cuaresma, and Jonathan. By a separate resolution, the CA dropped
the President as respondent in the case.
On 31 July 2008, after due proceedings, the CA rendered its partial
judgment, dismissing the petition with respect to Esperon, Razon, Roquero,
Gomez, and Ombudsman.
Hence, the petitioners filed a Petition for Review on Certiorari with the
Supreme Court.
PERTINENT ISSUE: Whether or not the doctrine of command responsibility
is applicable in an amparo petition.
ANSWER: No.
SUPREME COURT RULINGS:
DOCTRINE OF COMMAND RESPONSIBILITY and THE WRIT OF
AMPARO
Doctrine of Command Responsibility has little, if at all, bearing in
amparo proceedings [C]ommand responsibility, as a concept defined,
developed, and applied under international law, has little, if at all, bearing in
amparo proceedings.
The evolution of the command responsibility doctrine finds its context in the
development of laws of war and armed combats. According to Fr. Bernas,
command responsibility, in its simplest terms, means the responsibility of
commanders for crimes committed by subordinate members of the armed
forces or other persons subject to their control in international wars or
domestic conflict. In this sense, command responsibility is properly a form of
criminal complicity. The Hague Conventions of 1907 adopted the doctrine of
command responsibility, foreshadowing the present-day precept of holding a
superior accountable for the atrocities committed by his subordinates should
he be remiss in his duty of control over them. As then formulated, command
responsibility is an omission mode of individual criminal liability, whereby the
superior is made responsible for crimes committed by his subordinates for
failing to prevent or punish the perpetrators.
There is no Philippine law that provides for criminal liability under the
Doctrine of Command Responsibility While there are several pending

bills on command responsibility, there is still no Philippine law that provides

for criminal liability under that doctrine. It may plausibly be contended that
command responsibility, as legal basis to hold military/police commanders
liable for extra-legal killings, enforced disappearances, or threats, may be
made applicable to this jurisdiction on the theory that the command
responsibility doctrine now constitutes a principle of international law or
customary international law in accordance with the incorporation clause of
the Constitution. Still, it would be inappropriate to apply to these proceedings
the doctrine of command responsibility, as the CA seemed to have done, as
a form of criminal complicity through omission, for individual respondents
criminal liability, if there be any, is beyond the reach of amparo. In other
words, the Court does not rule in such proceedings on any issue of criminal
culpability, even if incidentally a crime or an infraction of an administrative
rule may have been committed.
Reluctance of the amparo petitioners or their witnesses to cooperate
ought not to pose a hindrance to the police in pursuing, on its own
initiative, the investigation in question to its natural end [T]he right to
security of persons is a guarantee of the protection of ones right by the
government. And this protection includes conducting effective investigations
of extra-legal killings, enforced disappearances, or threats of the same kind.
The nature and importance of an investigation are captured in the Velasquez
Rodriguez case, in which the Inter-American Court of Human Rights
pronounced: [The duty to investigate] must be undertaken in a serious
manner and not as a mere formality preordained to be ineffective. An
investigation must have an objective and be assumed by the State as its own
legal duty, not a step taken by private interests that depends upon the
initiative of the victim or his family or upon offer of proof, without an effective
search for the truth by the government.
The remedy of amparo ought to be resorted to and granted judiciously
The privilege of the writ of amparo is envisioned basically to protect and
guarantee the rights to life, liberty, and security of persons, free from fears
and threats that vitiate the quality of this life. It is an extraordinary writ
conceptualized and adopted in light of and in response to the prevalence of
extra-legal killings and enforced disappearances. Accordingly, the remedy
ought to be resorted to and granted judiciously, lest the ideal sought by the
Amparo Rule be diluted and undermined by the indiscriminate filing of
amparo petitions for purposes less than the desire to secure amparo reliefs
and protection and/or on the basis of unsubstantiated allegations.
DISPOSITIVE:

The Supreme Court partially granted the petition for review. It issued a
decision as follows:
1. Affirming the dropping of former President Gloria Macapagal-Arroyo
from the petition;
2. Affirming the dismissal of the amparo case as against Gen.
Hermogenes Esperon, and P/Dir. Gen. Avelino Razon, insofar as it
tended, under the command responsibility principle, to attach
accountability and responsibility to them, as then AFP Chief of Staff
and then PNP Chief, for the alleged enforced disappearance of
Lourdes and the ensuing harassments allegedly committed against
petitioners. The dismissal of the petition with respect to the
Ombudsman is also affirmed for failure of the petition to allege
ultimate facts as to make out a case against that body for the
enforced disappearance of Lourdes and the threats and harassment
that followed; and
3. Directing the incumbent Chief of Staff, AFP, or his successor, and
the incumbent Director-General of the PNP, or his successor, to
ensure that the investigations already commenced by their
respective units on the alleged abduction of Lourdes Rubrico and the
alleged harassments and threats she and her daughters were made
to endure are pursued with extraordinary diligence as required by
Sec. 17 of the Amparo Rule. The Chief of Staff of the AFP and
Director-General of the PNP are directed to order their subordinate
officials, in particular, to do the following:
(a) Determine based on records, past and present, the identities and
locations of respondents Maj. Darwin Sy, a.k.a. Darwin Reyes, Jimmy
Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and one Jonathan; and
submit certifications of this determination to the OMBUDSMAN with copy
furnished to petitioners, the CA, and this Court;
(b) Pursue with extraordinary diligence the evidentiary leads relating to Maj.
Darwin Sy and the Toyota Revo vehicle with Plate No. XRR 428; and
(c) Prepare, with the assistance of petitioners and/or witnesses, cartographic
sketches of respondents Maj. Sy/Reyes, Jimmy Santana, Ruben Alfaro,
Capt. Angelo Cuaresma, and a certain Jonathan to aid in positively
identifying and locating them.
The investigations shall be completed not later than six (6) months from
receipt of the Decision; and within thirty (30) days after completion of the
investigations, the Chief of Staff of the AFP and the Director-General of the

PNP are likewise directed to submit a full report of the results of the
investigations to the Court, the CA, the OMB, and petitioners.
The Supreme Court accordingly referred the case back to the CA for the
purpose of monitoring the investigations and the actions of the AFP and the
PNP.
2.Artemio Villareal vs People of the Philippines
GR No. 151258
FACTS:
Seven Freshmen Law students of Ateneo de Manila University School of Law
have been initiated by the Aquila Legis Juris Fraternity on February 1991.
The initiation rites started when the neophytes were met by some members
of the mentioned fraternity at the lobby of the Ateneo Law School. They were
consequently brought to a house and briefed on what will be happening
during the days when they will be initiated. They were informed that there will
be physical beatings and that the neophytes can quit anytime they want.
They were brought to another house to commence their initiation.
The neophytes were insulted and threatened even before they got
off the van. Members of the fraternity delivered blows to the neophytes as
they alighted from the van. Several initiation rites were experienced by the
neophytes like the Indian run, Bicol express and rounds. They were asked to
recite provisions and principles of the fraternity and were hit everytime they
made a mistake.
Accused fraternity members, Dizon and Villareal, asked the head of the
initiation rites (Victorino) to reopen the initiation. Fraternity members
subjected neophytes to paddling and additional hours of physical pain. After
the last session of beatings, Lenny Villa could not walk. Later that night, he
was feeling cold and his condition worsened. He was brought to the hospital
but was declared dead on arrival.
Criminal case was filed against 26 fraternity members and was
subsequently found guilty beyond reasonable doubt of the crime of homicide
and penalized with reclusion perpetua.
On January 10 2002, CA modified the criminal liability of each of the accused
according to individual participation. 19 of the the accused were acquitted, 4
of the appellants were found guilty of slight physical injuries, and 2 of the
accused-appellants (Dizon and Villareal) were found guilty beyond
reasonable doubt of the crime of homicide.
Accused Villareal petitioned for review on Certriori under Rue 45 on
the grounds that the CA made 2 reversible errors: first, denial of due process

and second, conviction absent proof beyond reasonable doubt.

Consequently, petitioner Villareal died on 13 March 2011 and filed a Notice
of Death of Party on 10 August 2011.
ISSUE:
Whether or not criminal liability for personal penalties of the accused is
extinguished by death

RULING:
Yes, criminal liability of the accused is extinguished by death. The
Court took note of counsel for petitioners Notice of Death when it has been
received while the petition was pending resolution. Personal penalties refer
to the service of personal or imprisonment penalties, while pecuniary
penalties refer to fines, costs, civil liability. Article 89 of the Revised Penal
Code states that the criminal liability of a convict for personal penalties is
totally extinguished by death of the convict. His pecuniary penalty has been
extinguished since the death of the accused happened before his final
judgment. Therefore, the death of the petitioner for both personal and
pecuniary penalties including his civil liability has ended. His petition has also
been dismissed and the criminal case against him has been closed and
terminated.
4.PEOPLE v. VERA
FACTS: Unjieng was convicted by the trial court in Manila. He filed for
reconsideration which was elevated to the SC and the SC remanded the
appeal to the lower court for a new trial. While awaiting new trial, he
appealed for probation alleging that the he is innocent of the crime he was
convicted of. Judge Tuason of the Manila CFI directed the appeal to the
Insular Probation Office. The IPO denied the application. However, Judge
Vera upon another request by petitioner allowed the petition to be set for
hearing. The City Prosecutor countered alleging that Vera has no power to
place Cu Unjieng under probation because it is in violation of Sec. 11 Act No.
4221 which provides that the act of Legislature granting provincial boards the
power to provide a system of probation to convicted person. Nowhere in the
law is stated that the law is applicable to a city like Manila because it is only
indicated therein that only provinces are covered. And even if Manila is
covered by the law it is unconstitutional because Sec 1 Art 3 of the
Constitution provides equal protection of laws for the reason that its

applicability is not uniform throughout the islands. The said law provides
absolute discretion to provincial boards and this also constitutes undue
delegation of power because providing probation, in effect, is granting
freedom,
as
in
pardon.
HELD: The challenged section of Act No. 4221 in section 11 which reads as
follows: This Act shall apply only in those provinces in which the respective
provincial boards have provided for the salary of a probation officer at rates
not lower than those now provided for provincial fiscals. Said probation
officer shall be appointed by the Secretary of Justice and shall be subject to
the direction of the Probation Office. This only means that only provinces that
can provide appropriation for a probation officer may have a system of
probation within their locality. This would mean to say that convicts in
provinces where no probation officer is instituted may not avail of their right
to probation.
There is no difference between a law which denies equal protection and a
law which permits such denial. A law may appear to be fair on its face and
impartial in appearance, yet, if it permits of unjust and illegal discrimination, it
is within the constitutional prohibition.

4.PEOPLE vs. WEBB

G.R. No. 176389
G.R. No. 176864
December 14, 2010
APPELLEE: People of the Philippines
APPELLANTS:Hubert Jeffrey P. Webb, Antonio Lejano, Machael A.
Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter Estrada, and
Gerardo Biong

as they presented a star witness Jessica M. Alfaro who pointed at the

accused (herein appellants) Webb et.al. as the main culprits. She also
included police officer Gerardo Biong as an accessory to the crime. Relying
on Alfaros testimony, information for rape with homicide was filed by the
public prosecutors against appellants.
Regional Trial Court of Paraaque City Branch 274 presided over by
Judge Tolentino took over the case. With Alfaros detailed narration of the
events of the crime, the court found her testimony credible, noting that her
delivery are spontaneous and straightforward. On January 4, 2000, trial court
rendered judgment finding accused (herein appellants) guilty as charged,
imposing them the penalty of reclusion perpetua while Biong, as an
accessory to the crime, was given an indeterminate prison term of eleven
years, four months and one day to twelve years. Damages were also
awarded to Lauro Vizconde.
On appeal, the Court of Appeals affirmed the trial courts decision,
with a modification on Biongs penalty to six years minimum and twelve years
maximum, plus increased awards of damages to Lauro Vizconde. A motion
for reconsideration on the same court was also denied, hence the present
appeal on the Supreme Court.
On April 20, 2010, the Court granted the request of Webb to submit
the semen specimen taken from Carmelas cadaver on DNA analysis,
believing it is under the safekeeping of the NBI. The NBI, however, denied
that the specimen is under their custody and that it was turned over to the
trial court. The trial court on the other hand, denied the claim that the
specimen was under their care. This prompted Webb to file an urgent motion
to acquit denying Webb of his right to due process.
ISSUE/HELD:

Abad, J.:
CASE:
On June 30, 1991, Estrellita Vizconde and her daughters Carmela
and Jennifer were brutally murdered in their home in Paraaque. In an
intense investigation, a group of suspects were initially arrested by the police,
but were eventually discharged due to suspicions of frame up. Later in 1995,
The National Bureau of Investigation announced the resolution of the crime

1.) Whether or not Webb was indeed denied of due process on the premise
that the semen specimen was lost under the care of the government and
must immediately be acquitted? NO.
2.) WON Alfaros testimony is entitled to belief? NO.
3.) WON Webbs evidences are proven sufficient enough to rebut Alfaros
testimony? NO.

4.) WON Biong acted to cover up the crime after its commission, thus making
himself an accessory to the crime? NO.
WHEREFORE, the Court REVERSES and SET ASIDE the Decision dated
December 15, 2005 and Resolution dated January 26, 2007 of the Court of
Appeals in CA-G.R. CR-H.C. 0336 and Acquits accused-appellants Hubert
Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio
Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong of the
crimes of which they were charged for failure of the prosecution to prove their
guild
beyond
reasonable
doubt.
They
are
ordered
immediately RELEASEDfrom detention unless they are confined for another
lawful cause.
1.) Webb cited Brady v. Maryland, and claimed that he is entitled to outright
acquittal on the ground of violation of his right to due process given the
States failure to produce on order of the Court either by negligence or willfull
suppression the semen specimen taken from Carmela. Webb is not entitled
to acquittal for failure to produce the semen specimen at such stage. Brady
v. Maryland was overtaken by the U.S. Supreme Court ruling in Arizona v.
Youngblood which held that due process does not require the State to
preserve the semen specimen although it might be useful to the accused
unless the latter is able to show bad faith on the part of the prosecution or the
police. Further, during the previous appeals made on CA, the appellants
expressed lack of interest in having a DNA test done, and so the State
cannot be deemed put on reasonable notice that it may be required to be
produced some future time.
2.) Alfaros testimony, was found doubtful. Testified by Atty. Sacaguing, he
claimed that Alfaro was an asset of the NBI since 1994. When the officers
one day teased her about being dormant, she became piqued and suddenly
claimed that she know someone who knows about the massacre. But when
the said someone was not presented, she told Sacaguing that she might as
well assume the role of her informant. Alfraro never refuted such testimony. It
is possible for Alfaro to lie even with such intricate details, given that she
practically lived in the NBI office. Moreover, the media is all over the case
that everything is thoroughly reported. Generally, her story lacks sense or
suffers from inherent inconsistencies.
3.) Among the accused, it was Webb who presented the strongest alibi. His
travel preparations were confirmed by Rajah Tours and the Philippine

immigration, confirming that he indeed left for San Francisco, California with
his Aunt Gloria on March 9, 1991 on board United Airlines Flight 808. His
passport was stamped and his name was listed on the United Airlines Flights
Passenger Manifest. Upon reaching US, the US Immigration recorded his
entry to the country. Moreover, details of his stay there, including his logs
and paychecks when he worked, documents when he purchased a car and
his license are presented as additional evidence, and he left
for Philippines on October 26, 1992. Supreme Court accused the trial and
court of appeals as having a mind that is made cynical by the rule drilled into
his head that a defense of alibi is a hangmans noose in the faces of a
witness sweaking I saw him do it. A judge, according to the SC, must keep
an open mind, and must guard against slipping into hasty conclusion arising
from a desire to quickly finish the job of deciding a case. For positive
identification to be credible, two criteria must be met; 1.) the positive
identification of the offender must come from a credible witness 2.) the
witness story of what she personally saw must be believable, not inherently
contrived. For alibi to be credible and established on the other hand, it must
be positive, clear, and documented. It must show that it was physically
impossible for him to be at the scene of the crime. Webb was able to
establish his alibis credibility with his documents. It is impossible for Webb,
despite his so called power and connections to fix a foreign airlines
passenger manifest. Webbs departure and arrival were authenticated by the
Office of the US Attorney General and the State Department.
January 18, 2011
Facts: The Supreme Court reversed the judgment of the CA and acquitted
accused, namely: Hubert Webb, Antonio Lejano, Michael Atchalian, Hospicio
Fernandez, Miguel Rodriguez, Peter Estrada, and Gerardo Biong on the
ground of lack of proof of their guilt beyond reasonable doubt.
Thereafter, complaint Lauro Vizconde, asked the Court to reconsider its
decision, claiming that it "denied the prosecution due process of law;
seriously misappreciated the facts; unreasonably regarded Alfaro as lacking
credibility; issued a tainted and erroneous decision; decided the case in a
manner that resulted in the miscarriage of justice; or committed grave abuse
in its treatment of the evidence and prosecution witnesses."
Issue: Whether or not a judgment of acquittal may be reconsidered
Ruling: No, as a rule a judgment of acquittal cannot be reconsidered for it
places the accused under double jeopardy. On occasions, a motion for
reconsideration after an acquittal is possible, but the grounds are exceptional

and narrow as when the court that absolved the accused gravely abused its
discretion, resulting in loss of jurisdiction, or when a mistrial has occurred. In
any of such cases, the State may assail the decision by special civil action of
certiorari under Rule 65.
Althou complainant Vizconde invoked the exceptions, he has been unable to
bring pleas for reconsideration under such exceptions. He did not specify that
violations of due process and acts constituting grave abuse of discretion that
the Court supposedly committed. Vizconde did not also alleged that the
Court held a sham review of the decision of the CA. What the complainant
actually questions is the Court's appreciation of the evidence and
assessment of the prosecution witnesses' credibility. That the court
committed grave error in finding Alfaro as not a credible witness. The
complaint wants the court to review the evidence anew and render another
judgment based on such evaluation which is not constitutionally allowed and
therefore, the judgment of acquittal can no longer be disturbed.
5.G.R. NO. 159618: Feruary 1, 2011
BAYAN MUNA, Represented by Rep. SATUR OCAMPO, Rep. CRISPIN
BELTRAN, Rep. LIZA L. MAZA, Petitioner v. ALBERTO ROMULO, in his
capacity as Executive Secretary , and BLAS F. OPLE, in his capacity as
Secretary of Foreign Affairs, Respondents.

FACTS:
In 2000, the RP, through Charge dAffaires Enrique A.
Manalo, signed the Rome Statute which, by its terms, is subject to
ratification, acceptance or approval by the signatory states.
In 2003, via Exchange of Notes with the US government, the RP,
represented by then DFA Secretary Ople, finalized a non-surrender
agreement which aimed to protect certain persons of the RP and US from
frivolous and harassment suits that might be brought against them in
international tribunals.
Petitioner imputes grave abuse of discretion to respondents in concluding
and ratifying the Agreement and prays that it be struck down as
unconstitutional, or at least declared as without force and effect.
ISSUE: Whether the Respondents abused their discretion amounting to lack
or excess of jurisdiction for concluding the RP-US Non Surrender Agreement
in contravention of the Rome Statute.
Whether the agreement is valid, binding and effective without the
concurrence by at least 2/3 of all the members of the Senate.

HELD: The petition is bereft of merit.

INTERNATIONAL LAW: Rome Statute
First issue
The Agreement does not contravene or undermine,
nor does it differ from, the Rome Statute. Far from going against each other,
one complements the other.
As a matter of fact, the principle of
complementarity underpins the creation of the ICC. According to Art. 1 of the
Statute, the jurisdiction of the ICC is to be complementary to national
criminal jurisdictions [of the signatory states]. the Rome Statute expressly
recognizes the primary jurisdiction of states, like the RP, over serious crimes
committed within their respective borders, the complementary jurisdiction of
the ICC coming into play only when the signatory states are unwilling or
unable to prosecute.
Also, under international law, there is a considerable difference between a
State-Party and a signatory to a treaty. Under the Vienna Convention on the
Law of Treaties, a signatory state is only obliged to refrain from acts which
would defeat the object and purpose of a treaty. The Philippines is only a
signatory to the Rome Statute and not a State-Party for lack of ratification by
the Senate. Thus, it is only obliged to refrain from acts which would defeat
the object and purpose of the Rome Statute. Any argument obliging the
Philippines to follow any provision in the treaty would be premature. And
even assuming that the Philippines is a State-Party, the Rome Statute still
recognizes the primacy of international agreements entered into between
States, even when one of the States is not a State-Party to the Rome
Statute. CONSTITUTIONAL LAW: 2/3 concurrence
Second issue The right of the Executive to enter into binding agreements
without the necessity of subsequent Congressional approval has been
confirmed by long usage. From the earliest days of our history, we have
entered executive agreements covering such subjects as commercial and
consular relations, most favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the settlement
of claims. The validity of these has never been seriously questioned by our
courts.
Executive agreements may be validly entered into without such concurrence.
As the President wields vast powers and influence, her conduct in the
external affairs of the nation is, as Bayan would put it, executive altogether.
The right of the President to enter into or ratify binding executive agreements
has been confirmed by long practice.
Petition is DISMISSED.

5.Bayan Muna vs Romulo

G. R. No. 159618, February 01, 2011

Facts: Petitioner Bayan Muna is a duly registered party-list group

established to represent the marginalized sectors of society. Respondent
Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the
period material to this case. Respondent Alberto Romulo was impleaded in
his capacity as then Executive Secretary.
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome Statute
establishing the International Criminal Court (ICC) with the power to
exercise its jurisdiction over persons for the most serious crimes of
international concern x x x and shall be complementary to the national
criminal jurisdictions. The serious crimes adverted to cover those considered
grave under international law, such as genocide, crimes against humanity,
war crimes, and crimes of aggression.
On December 28, 2000, the RP, through Charge dAffaires Enrique A.
Manalo, signed the Rome Statute which, by its terms, is subject to
ratification, acceptance or approval by the signatory states. As of the filing of
the instant petition, only 92 out of the 139 signatory countries appear to have
completed the ratification, approval and concurrence process. The
Philippines
is
not
among
the
92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy
Note No. 0470 to the Department of Foreign Affairs (DFA) proposing the
terms of the non-surrender bilateral agreement (Agreement, hereinafter)
between
the
USA
and
the
RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO028-03, hereinafter), the RP, represented by then DFA Secretary Ople,
agreed with and accepted the US proposals embodied under the US
Embassy Note adverted to and put in effect the Agreement with the US
government. In esse, the Agreement aims to protect what it refers to and
defines as persons of the RP and US from frivolous and harassment suits
that might be brought against them in international tribunals.8 It is reflective
of the increasing pace of the strategic security and defense partnership
between the two countries. As of May 2, 2003, similar bilateral agreements
have been effected by and between the US and 33 other countries.
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, persons are current or former
Government officials, employees (including contractors), or military personnel
or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not, absent
the express consent of the first Party,
(a) be surrendered or transferred by any means to any international tribunal
for any purpose, unless such tribunal has been established by the UN
Security Council, or
(b) be surrendered or transferred by any means to any other entity or third
country, or expelled to a third country, for the purpose of surrender to or
transfer to any international tribunal, unless such tribunal has been
established by the UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a person of
the Philippines to a third country, the [US] will not agree to the surrender or
transfer of that person by the third country to any international tribunal,
unless such tribunal has been established by the UN Security Council,
absent the express consent of the Government of the Republic of the
Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a person of
the [USA] to a third country, the [GRP] will not agree to the surrender or
transfer of that person by the third country to any international tribunal,
unless such tribunal has been established by the UN Security Council,
absent the express consent of the Government of the [US].
5. This Agreement shall remain in force until one year after the date on which
one party notifies the other of its intent to terminate the Agreement. The
provisions of this Agreement shall continue to apply with respect to any act
occurring, or any allegation arising, before the effective date of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo on the
status of the non-surrender agreement, Ambassador Ricciardone replied in
his letter of October 28, 2003 that the exchange of diplomatic notes
constituted a legally binding agreement under international law; and that,
under US law, the said agreement did not require the advice and consent of
the
US
Senate.
In this proceeding, petitioner imputes grave abuse of discretion to
respondents in concluding and ratifying the Agreement and prays that it be
struck down as unconstitutional, or at least declared as without force and
effect.
Issue: Whether or not the RP-US NON SURRENDER AGREEMENT is void
ab initio for contracting obligations that are either immoral or otherwise at
variance with universally recognized principles of international law.
Ruling: The petition is bereft of merit.

Validity of the RP-US Non-Surrender Agreement

Petitioners initial challenge against the Agreement relates to form, its
threshold posture being that E/N BFO-028-03 cannot be a valid medium for
concluding the Agreement.
Petitioners contentionperhaps taken unaware of certain well-recognized
international doctrines, practices, and jargonsis untenable. One of these is
the doctrine of incorporation, as expressed in Section 2, Article II of the
Constitution, wherein the Philippines adopts the generally accepted
principles of international law and international jurisprudence as part of the
law of the land and adheres to the policy of peace, cooperation, and amity
with all nations. An exchange of notes falls into the category of intergovernmental agreements, which is an internationally accepted form of
international agreement. The United Nations Treaty Collections (Treaty
Reference Guide)
An exchange of notes is a record of a routine agreement, that has many
similarities with the private law contract. The agreement consists of the
exchange of two documents, each of the parties being in the possession of
the one signed by the representative of the other. Under the usual procedure,
the accepting State repeats the text of the offering State to record its assent.
The signatories of the letters may be government Ministers, diplomats or
departmental heads. The technique of exchange of notes is frequently
resorted to, either because of its speedy procedure, or, sometimes, to avoid
the process of legislative approval.
In another perspective, the terms exchange of notes and executive
agreements have been used interchangeably, exchange of notes being
considered a form of executive agreement that becomes binding through
executive action. On the other hand, executive agreements concluded by the
President sometimes take the form of exchange of notes and at other times
that of more formal documents denominated agreements or protocols. As
former US High Commissioner to the Philippines Francis B. Sayre observed
in his work, The Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between this and other
governments ends and agreements whether denominated executive
agreements or exchange of notes or otherwise begin, may sometimes be
difficult
of
ready
ascertainment.
x
x
x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it
viewed as the Non-Surrender Agreement itself, or as an integral instrument
of acceptance thereof or as consent to be boundis a recognized mode of
concluding a legally binding international written contract among nations.

Agreement
Not
Immoral/Not
at
Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio for
imposing immoral obligations and/or being at variance with allegedly
universally recognized principles of international law. The immoral aspect
proceeds from the fact that the Agreement, as petitioner would put it, leaves
criminals immune from responsibility for unimaginable atrocities that deeply
shock the conscience of humanity; x x x it precludes our country from
delivering an American criminal to the [ICC] x x x.63
The above argument is a kind of recycling of petitioners earlier position,
which, as already discussed, contends that the RP, by entering into the
Agreement, virtually abdicated its sovereignty and in the process undermined
its treaty obligations under the Rome Statute, contrary to international law
principles.
The Court is not persuaded. Suffice it to state in this regard that the nonsurrender agreement, as aptly described by the Solicitor General, is an
assertion by the Philippines of its desire to try and punish crimes under its
national law. x x x The agreement is a recognition of the primacy and
competence of the countrys judiciary to try offenses under its national
criminal laws and dispense justice fairly and judiciously.
Petitioner, we believe, labors under the erroneous impression that the
Agreement would allow Filipinos and Americans committing high crimes of
international concern to escape criminal trial and punishment. This is
manifestly incorrect. Persons who may have committed acts penalized under
the Rome Statute can be prosecuted and punished in the Philippines or in
the US; or with the consent of the RP or the US, before the ICC, assuming,
for the nonce, that all the formalities necessary to bind both countries to the
Rome Statute have been met. For perspective, what the Agreement
contextually prohibits is the surrender by either party of individuals to
international tribunals, like the ICC, without the consent of the other party,
which may desire to prosecute the crime under its existing laws. With the
view we take of things, there is nothing immoral or violative of international
law concepts in the act of the Philippines of assuming criminal jurisdiction
pursuant to the non-surrender agreement over an offense considered
criminal by both Philippine laws and the Rome Statute.