Professional Documents
Culture Documents
INTRODUCTION
Definition
Public v Private International Law
Basis of Public International Law
1. Naturalist
2. Positivists
3. Eccletics
Three Grand Divisions
Relations between International and Municipal
Law
1. From the viewpoint of doctrine
a. Dualist
b. Monists
2. From the view of practice
a. Doctrine of Transformation
b. Doctrine of Incorporation
t of
Dispu
te
through
internatio
nal modes
of
settlemen
t like
negotiatio
ns
and
arbitratio
n,
reprisals
and even
war
tribunals
through local
administrativ
e and judicial
processes.
3.
Sourc
e
Derived
from such
sources as
internatio
nal
customs,
internatio
nal
conventio
ns and the
general
principles
of law.
Consists
mainly from
the
lawmaking
authority of
each state.
4.
Subje
ct
Applies to
relations
states
inter
se
and other
internatio
nal
persons.
Regulates the
relations of
individuals
whether
of
the
same
nationality or
not.
5.
Respo
nsibil
ity
for
violat
ion
Infractions
are
usually
collective
in
the
sense that
it
attaches
directly to
the state
and not to
its
nationals.
Generally,
entails only
individual
responsibility
.
1.
Natur
e
2.
Settl
emen
Public
Private
Public is
internatio
nal
in
nature. It
is a law of
a
sovereign
over those
subjected
to
his
sway
[Openhei
m
Lauterpac
ht, 38.]
As a rule,
Private
is
national
or
municipal in
character.
Except when
embodied in
a treaty or
convention,
becomes
international
in character.
It is a law,
not
above,
but between,
sovereign
states and is,
therefore, a
weaker law.
[Openheim
Lauterpacht,
38.]
Disputes
are
resolved
Recourse
with
municipal
is
Notes:
2. Positivist
Basis is to be found in the consent and
conduct of States.
Tacit consent in the case of customary
international law.
Express in conventional law.
Presumed in the general law of nations.
[Cornelius van Bynkershoek]
3. Groatians or Eclectics
Accepts the doctrine of natural law, but
maintained that States were accountable
only to their own conscience for the
observance of the duties imposed by
natural law, unless they had agreed to be
bound to treat those duties as part of
positive law. [Emerich von Vattel]
Middle ground
3 GRAND DIVISIONS
1. Laws of Peace normal relations between
states in the absence of war.
2. Laws of War relations between hostile or
belligerent states during wartime.
3. Laws of Neutrality relations between a nonparticipant state and a participant state during
wartime. This also refers to the relations among
non-participating states.
RELATIONS BETWEEN INTERNATIONAL LAW AND
MUNICIPAL LAW
From the Viewpoint of Doctrine
1. Dualists
International Law and Municipal Law are
two completely separate realms.
See distinctions Nos. 1,3 &4.
2. Monists
Denies that PIL and Municipal Law are
essential different.
In both laws, it is the individual persons
who in the ultimate analysis are regulated
by the law. That both laws are far from
being essentially different and must be
regarded as parts of the same juristic
conception. For them there is oneness or
unity of all laws.
PIL is superior to municipal law
international law, being the one which
determines the jurisdictional limits of the
personal and territorial competence of
States.
From the Viewpoint of Practice
1. International Tribunals
PIL superior to Municipal Law
Art. 27, Vienna Convention in the law of
Treaties A state may not invoke the
provisions of its internal law as justification
for its failure to perform a treaty
Notes:
4
This is because such courts are organs of
municipal law and are accordingly bound by it in
all circumstances. The fact that international law
was made part of the law of the land does not
pertain to or imply the primacy of international
law over national/municipal law in the municipal
sphere.
The doctrine of incorporation, as applied in most
countries, decrees that rules of international law
are given equal standing with, but are not
superior to, national legislative enactments.
In case of conflict, the courts should harmonize
both laws first and if there exists an unavoidable
contradiction between them, the principle of lex
posterior derogat priori - a treaty may repeal a
statute and a statute may repeal a treaty - will
apply. But if these laws are found in conflict with
the Constitution, these laws must be stricken out
as invalid.
In states where the constitution is the highest law
of the land, such as in ours, both statutes and
treaties may be invalidated if they are in conflict
with the constitution.
Supreme Court has the power to invalidate a
treaty Sec. 5(2)(a), Art. VIII, 1987 Constitution
Q: What is the doctrine of incorporation? How
is it applied by local courts?
Held: Under the doctrine of incorporation, rules
of international law form part of the law of the
land and no further legislative action is needed to
make such rules applicable in the domestic
sphere.
The doctrine of incorporation is applied whenever
municipal tribunals (or local courts) are
confronted with situations in which there appears
to be a conflict between a rule of international
law and the provisions of the Constitution or
statute of the local state. Efforts should first be
exerted to harmonize them, so as 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 Section
2, Article II of the Constitution. In a situation
however, where the conflict is irreconcilable and
a choice has to be made between a rule of
international
law
and
municipal
law,
jurisprudence dictates that municipal law should
be upheld by the municipal courts for the reason
that such courts are organs of municipal law and
are accordingly bound by it in all circumstances.
The fact that international law has been made
part of the law of the land does not pertain to or
imply the primacy of international law over
national or municipal law in the municipal sphere.
The doctrine of incorporation, as applied in most
countries, decrees that rules of international law
Notes:
SOURCES
A. Primary
I. Treaties or International Conventions 2
KINDS:
1. Contract Treaties [Traite-Contrat]
Bilateral arrangements concerning matters
of particular or special interest to the
contracting parties
Source of Particular International Law
BUT: May become primary sources of
international law when different contract
treaties are of the same nature, containing
practically uniform provisions, and are
concluded by a substantial number of States
EX.: Extradition Treaties
2. Law-Making Treaty [Traite-Loi]
Concluded by a large number of States for
purposes of:
1. Declaring, confirming, or defining their
understanding of what the law is on a
particular subject;
2. Stipulating or laying down new general
rules for future international conduct;
3. Creating new international institutions
Notes:
Usage is also a usual course of conduct, a longestablished way of doing things by States.
2.
3.
International
conventions, e.g. Vienna
Convention on the Law of Treaties.
International customs, e.g. cabotage, the
prohibition
against
slavery, and
the
prohibition against torture.
General principles of law recognized by
civilized nations, e.g. prescription, res
judicata, and due process.
Notes:
c.
SUBJECTS
Subject Defined
Object Defined
2 Concepts of Subjects of International Law
State as Subjects of International Law
Elements of a State
4. People
5. Territory
6. Government
a) 2 kinds
(1) De Jure
(2) De Facto 3 kinds
b) 2 functions
(1) Constituent
(2) Ministrant
c) Effects of change in government
7. Sovereignty
a)
Kinds
b) Characteristics
c) Effects of change in sovereignty
Principle of State Continuity
Fundamental Rights of States
1. Right to Sovereignty and Independence;
2. Right to Property and Jurisdiction;
3. Right to Existence and Self-Defense
4. Right to Equality
5. Right to Diplomatic Intercourse
Recognition
Level of Recognition
A. Recognition of State - 2 Schools of
Thought
a. Constitutive School
b. Declaratory School
B. Recognition of Government
a. Criteria for Recognition
1. Objective Test
2. Subjective Test
(a) Tobar/Wilson Doctrine
(b) Estrada Doctrine
b. Kinds of Recognition
1. De Jure
2. De Facto
C.
Consequences of Recognition of
Government
Recognition of Belligerency
a. Belligerency
b. 2 Senses of Belligerency
c. Requisites of Belligerency
d. Consequences of Recognition of
Belligerents
e. Forms of Recognition
Subject Defined
A Subject is an entity that has an international
personality.
An entity has an international
personality if it can directly enforce its rights and
duties under international law. Where there is no
direct enforcement of accountability and an
intermediate agency is needed, the entity is
merely an object not a subject of international
law.
Q: When does an entity acquire international
personality?
A: When it has right and duties under
international law; can directly enforce its rights;
and may be held directly accountable for its
obligations.
Objects Defined
An Object is a person or thing in respect of which
rights are held and obligations assumed by the
Subject. Thus, it is not directly governed by the
rules of international law. There is no direct
enforcement and accountability. An intermediate
agencythe
Subjectis
required
for
the
enjoyment of its rights and for the discharge of its
obligations.
SUBJECTS OF INTERNATIONAL LAW
2 Concepts:
1. Traditional concept
Only States are considered subjects of
international law.
2. Contemporary concept
Individuals
and
international
organizations are also subjects because
they have rights and duties under
international law. (Liang vs. People, GRN
125865 [26 March 2001])
The STATE as subject of International Law
State is a community of persons more or less
numerous, permanently occupying a definite
portion of territory, independent of external
control, and possessing an organized government
to which the great body of inhabitants render
habitual obedience.
Q: The Japanese government confirmed that
during the Second World War, Filipinas were
among those conscripted as comfort women
(prostitutes) for Japanese troops in various
parts of Asia. The Japanese government has
Notes:
8
accordingly launched a goodwill campaign and
offered the Philippine government substantial
assistance for a program that will promote
through government and non-governmental
organization womens rights, child welfare,
nutrition and family health care. An executive
agreement is about to be signed for that
purpose.
The agreement includes a clause
whereby
the
Philippine
government
acknowledges that any liability to the comfort
women or their descendants are deemed
covered by the reparations agreements signed
and implemented immediately after the Second
World War. Julian Iglesias, descendant of now
deceased comfort woman, seeks you advise on
the validity of the agreement. Advise him.
(1992 Bar)
A: The agreement is valid. The comfort woman
and their descendant cannot assert individual
claims against Japan. As stated in Paris Moore v.
Reagan, 453 US 654, the sovereign authority of
the state to settle claims of its nationals against
foreign countries has repeatedly been recognized.
This may be made without the consent of the
nationals or even without consultation with them.
Since the continued amity between the State and
other countries may require a satisfactory
compromise of mutual claims, the necessary
power to make such compromise has been
recognized. The settlement of such claims may
be made by executive agreement.
Q: What must a person who feels aggrieved by
the acts of a foreign sovereign do to espouse his
cause?
Held: Under both Public International Law and
Transnational Law, a person who feels aggrieved
by the acts of a foreign sovereign can ask his own
government to espouse his cause through
diplomatic channels.
Private respondent can ask the Philippine
government, through the Foreign Office, to
espouse its claims against the Holy See. Its first
task is to persuade the Philippine government to
take up with the Holy See the validity of its
claims. Of course, the Foreign Office shall first
make a determination of the impact of its
espousal on the relations between the Philippine
government and the Holy See.
Once the
Philippine government decides to espouse the
claim, the latter ceases to be a private cause.
According to the Permanent Court of International
Justice, the forerunner of the International Court
of Justice:
By taking up the case of one of its subjects and
by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in
reality asserting its own rights its right to
ensure, in the person of its subjects, respect for
the rules of international law. (The Mavrommatis
Palestine Concessions, 1 Hudson, World Court
Notes:
ELEMENTS OF A STATE:
A. People
the inhabitants of the State
must be numerous enough to be selfsufficing and to defend themselves and
small enough to be easily administered
and sustained.
the aggregate of individuals of both sexes
who live together as a community
despite racial or cultural differences
groups of people which cannot comprise
a State:
1. Amazons not of both sexes; cannot
perpetuate themselves
2. Pirates considered as outside the
pale of law, treated as an enemy of
all mankind; hostis humani generis
B.
Territory
the fixed portion of the surface of the
earth inhabited by the people of the
State
the size is irrelevant San Marino v.
China
BUT, practically, must not be too big as
to be difficult to administer and defend;
but must not be too small as to unable to
provide for peoples needs
Q: Why important to determine?
A: Determines the area over which the
State exercises jurisdiction
Nomadic tribe not a State
Notes:
10
The
definition
covers
the
following
territories:
1. Ceded to the US under the Treaty of Paris
of 10 Dec. 1898
2. Defined in the 07 Nov. 1900 Treaty
between US and Spain, on the following
islands;
3. Cagayan;
4. Sulu;
5. Sibuto
6. Defined in the 02 Jan. 1930 Treaty
between the US and the UK over the
Turtle and Mangsee Islands
7. Island of Batanes
8. Contemplated in the phrase belonging
to the Philippines by historic right or
legal title
Government
1.
2.
By government of paramount
force that which is established
in the course of war by the
invading
forces
of
one
belligerent in the territory of
the other belligerent, the
government of which is also
displaced
EX. the Japanese occupation
government in the Philippines
which
replaced
the
Commonwealth
government
during WWII
c)
Notes:
11
1.
2 Functions:
Constituent constitutes the very bonds
of society COMPULSORY.
Examples:
(a) Keeping of order and providing for
the protection of persons and
property from violence and robber;
(b) Fixing of legal relations between
spouses and between parents and
children;
(c) Regulation of the holding,
transmission, and interchange of
property, and the determination of
liabilities for debt and crime;
(d) Determination of contractual
relations between individuals;
(e) Definition and punishment of crimes
(f) Administration of justice in civil
cases;
(g) Administration of political duties,
privileges, and relations of citizens;
(h) Dealings of the States with foreign
powers
2.
Summary:
A. Change of Government by Constitutional
Reform
The new government inherits all the
rights and obligations of the former
government
B.
Notes:
12
Civil Laws:
GR: Remains in force
XPN: Amended or superseded by affirmative
act of belligerent occupant
Q: What happens to judicial decisions made
during the occupation?
A: Those of a Political Complexion
automatically annulled upon restoration
of legitimate authority
conviction for treason against the
belligerent
Non-political
remains valid
EX.: Conviction for defamation
EFFECTS OF A CHANGE IN SOVEREIGNTY
1. Political Laws are deemed ABROGATED.
Q: Why?
A: They govern relations between the State
and the people.
2.
in
Notes:
13
XPN:
(a) Changed by the new sovereign
(b) Contrary to institutions of the new
sovereign
Q: What is the effect of change of sovereignty
when the Spain ceded the Philippines to the
U.S.?
A: The effect is that the political laws of the
former sovereign are not merely suspended but
abrogated.
As they regulate the relations
between the ruler and the rules, these laws fall to
the ground ipso facto unless they are retained or
re-enacted by positive act of the new sovereign.
Non-political laws, by contrast, continue in
operation, for the reason also that they regulate
private relations only, unless they are changed by
the new sovereign or are contrary to its
institutions.
Q: What is the effect of Japanese occupation to
the sovereignty of the U.S. over the Philippines?
A: Sovereignty is not deemed suspended although
acts of sovereignty cannot be exercised by the
legitimate authority. Thus, sovereignty over the
Philippines remained with the U.S. although the
Americans could not exercise any control over the
occupied territory at the time.
What the
belligerent occupant took over was merely the
exercise of acts of sovereignty.
Q: Distinguish between Spanish secession to the
U.S. and Japanese occupation during WWII
regarding the political laws of the Philippines.
A: There being no change of sovereignty during
the belligerent occupation of Japan, the political
laws of the occupied territory are merely
suspended, subject to revival under jus
postliminium upon the end of the occupation. In
both cases, however, non-political laws, remains
effective.
NOTES:
Members of the armed forces are still covered by
the National Defense Act, the Articles of War and
other laws relating to the armed forces even
during the Japanese occupation.
A person convicted of treason against the
Japanese Imperial Forces was, after the
occupation, entitled to be released on the ground
that the sentence imposed on him for his political
offense had ceased to be valid but not on nonpolitical offenses.
Q: May an inhabitant of a conquered State be
convicted of treason against the legitimate
sovereign committed during the existence of
belligerency?
A: YES. Although the penal code is non-political
law, it is applicable to treason committed against
the national security of the legitimate
government, because the inhabitants of the
Notes:
14
benefits, they also commonly agree to limit the
exercise of their otherwise absolute rights.
Thus, a states sovereignty cannot in fact and in
reality
be
considered
absolute.
Certain
restrictions enter into the picture:
Limitations imposed by the very nature of
membership in the family of nations; and
Limitations imposed by treaty stipulations.
Thus, when the Philippines joined the UN as one
of its 51 charter members, it consented to restrict
its sovereign rights under the concept of
sovereignty as AUTO-LIMITATION.
The underlying consideration in this partial
surrender of sovereignty is the reciprocal
commitment of the other contracting states in
granting the same privilege and immunities to the
Philippines, its officials and its citizens.
Notes:
15
weapons of mass destruction. The Security
Council of the United Nations failed to reach a
consensus on whether to support or oppose the
war of liberation. Can the action taken by
the allied forces find justification in
International Law? Explain. (2003 Bar)
A: The United States and its allied forces cannot
justify their invasion of Iraq on the basis of selfdefense under Article 51, attack by Iraq, and
there was no necessity for anticipatory selfdefense which may be justified under customary
international law. Neither can they justify their
invasion on the ground that Article 42 of the
Charter of the United Nations permits the use of
force against a State if it is sanctioned by the
Security Council. Resolution 1441, which gave
Iraq a final opportunity to disarm or face serious
consequences, did not authorize the use of armed
force.
Alternative A: In International Law, the action
taken by the allied forces cannot find
justification. It is covered by the prohibition
against the use of force prescribed by the United
Nations Charter and it does not fall under any of
the exceptions to that prohibition.
The UN Charter in Article 2(4) prohibits the use of
force in the relations of states by providing that
all members of the UN shall refrain in their
international relations from the threat or use of
force against the territorial integrity or political
independence of any state, or in any other
manner inconsistent with the purposes of the
United Nations. This mandate does not only
outlaw war; it encompasses all threats of and acts
of force or violence short of war.
As thus provided, the prohibition is addressed to
all UN members. However, it is now recognized as
a
fundamental
principle
in
customary
international law and, as such, is binding on all
members of the international community.
The action taken by the allied forces cannot be
justified under any of the three exceptions to the
prohibition against the use of force which the UN
Charter allows. These are: (1) inherent right of
individual or collective self-defense under Article
51; (2) enforcement measure involving the use of
armed forces by the UN Security Council under
Article 42; and (3) enforcement measure by
regional arrangement under Article 53, as
authorized by the UN Security Council. The allied
forces did not launch military operations and did
not occupy Iraq on the claim that their action was
in response to an armed attacked by Iraq, of
which there was none.
Moreover, the action of the alleged allied forces
was taken in defiance or disregard of the Security
Council Resolution No. 1441 which set up an
enhanced inspection regime with the aim of
bringing to full and verified completion the
Notes:
16
force must be proportionate and intended for the
purpose of detaining the persons allegedly
responsible for the crime and to destroy military
objectives used by the terrorists.
The fundamental principles of international
humanitarian law should be respected. Country Y
cannot be granted sweeping discretionary powers
that include the power to decide what states are
behind the terrorist organizations. It is for the
Security Council to decide whether force may be
used against specific states and under what
conditions the force may be used.
Q: Is the United States justified in invading Iraq
invoking its right to defend itself against an
expected attack by Iraq with the use of its
biological and chemical weapons of mass
destruction?
A: The United States is invoking its right to
defend itself against an expected attack by Iraq
with the use of its biological and chemical
weapons of mass destruction.
There is no
evidence of such a threat, but Bush is probably
invoking the modern view that a state does not
have to wait until the potential enemy fires first.
The cowboy from Texas says that outdrawing the
foe who is about to shoot is an act of selfdefense.
Art. 51 says, however, that there must first be an
armed attack before a state can exercise its
inherent right of self-defense, and only until the
Security Council, to which the aggression should
be reported, shall have taken the necessary
measures to maintain international peace and
security. It was the United States that made the
armed attack first, thus becoming the
aggressor, not Iraq.
Iraq is now not only
exercising its inherent right of self-defense as
recognized by the UN Charter. (Justice Isagani A.
Cruz, in an article entitled A New World Order
written in his column Separate Opinion
published in the March 30, 2003 issue of the
Philippines Daily Inquirer)
Q: Will the subsequent discovery of weapons of
mass destruction in Iraq after its invasion by the
US justify the attack initiated by the latter?
A: Even if Iraqs hidden arsenal is discovered or
actually used and the United States is justified
in its suspicions, that circumstance will not
validate the procedure taken against Iraq. It is
like searching a person without warrant and
curing the irregularity with the discovery of
prohibited drugs in his possession. The process
cannot be reversed. The warrant must first be
issued before the search and seizure can be
made.
The American invasion was made without
permission from the Security Council as required
by the UN Charter. Any subsequent discovery of
the prohibited biological and chemical weapons
Notes:
17
3.
4.
On Humanitarian Grounds
This
has
recently
evolved
by
international custom
Thus, has become a primary source of
international law
EX.: 1. Intervention in Somalia
2. Intervention in Bosnia and Kosovo
Notes:
18
Notes:
19
RECOGNITION OF GOVERNMENT
As to
Scope
As to
Revocabili
ty
Recognitio
n of
Governme
nt
Recogniti
on of
Does not
necessarily
signify
that
recognitio
n of a
State to
governmen
t may not
be
independe
nt
Includes
recognitio
n or
governme
nt
governme
nt an
essential
element
of a State
Revocable
Generally,
irrevocabl
e
State
Subjective Test
WILLINGNESS and ABILITY
the government is willing and able to
discharge its international obligations
2 Doctrines
Tobar or Wilson Doctrine
suggested by Foreign Minister Tobar
(Ecuador); reiterated by President
Woodrow Wilson (US)
recognition is withheld from governments
established by revolutionary means
revolution, civil war, coup detat, other
forms of internal violence, UNTIL, freely
elected representatives of the people
have
organized
a
constitutional
government
Estrada Doctrine
a reaction to the Tobar/Wilson Doctrine;
formulated by Mexican Foreign Minister
Genaro Estrada
disclaims right of foreign states to rule
upon legitimacy of a government of a
foreign State
a policy of never issuing any declaration
giving recognition to
governments
instead, it simply accepts whatever
government is in effective control
without raising the issue of recognition
Recogni
tion De
Notes:
20
Facto
As to
Durati
on
Relatively
permanent
Provisio
nal,
As to
Effect
on
Diplom
atic
Relatio
ns
Brings about
full diplomatic
relations/inter
course
Limited
to
certain
juridical
relation
s; for
instance
, it does
not
bring
about
diploma
tic
immunit
ies
As to
Effect
on
Proper
ties
Abroad
Vests title to
recognized
government in
properties
abroad
Does not
vest
such
title
Recognition De Jure
Given to a government that satisfies both the
objective and subjective criteria
Recognition De Facto
Given to governments that have not fully
satisfied objective and subjective criteria
EX.: While wielding effective power, it might
have not yet acquired sufficient stability
Consequences of Recognition of Government
1. The recognized government or State acquires
the capacity to enter into diplomatic
relations with recognizing States and to make
treaties with them
2. The recognized government or State acquires
the right of suing in the courts of law of the
recognizing State
3. It is immune from the jurisdiction of the
courts of law of recognizing State
4. It becomes entitled to demand and receive
possession of property situated within the
jurisdiction of a recognizing State, which
formerly
belonged
to the
preceding
government at the time of its supercession
5. Its effect is to preclude the courts of
recognizing State from assign judgment on
the legality of its acts, past and future.
Recognition being retroactive.
Notes:
21
Stage of Belligerency
A higher stage, as the stage of insurgency
becomes widespread
Already a matter of international law, not of
municipal law
EX.: Captures rebels must be treated like
prisoners of war; considered as combatants;
hence, cannot be executed
Insurgency
Belligerency
a mere initial
stage of war. It
involves a rebel
movement, and is
usually
not
recognized
sanctions
governed
municipal
Revised
Code,
rebellion
governed by the
rules
on
international law
as the belligerents
may
be
given
international
personality
are
by
law
Penal
i.e.
3.
4.
Notes:
22
FORMS OF RECOGNITION
1. Express
2. Implied
EX.; Proclamation by the legitimate
government of a blockade of ports held by
the rebels
TERRITORY OF STATES
Territory Defined
Characteristics of Territory
Modes of Acquisition of Territory
(1) Dereliction/Abandonment
(2) Cession
(3) Conquest/Subjugation
(4) Prescription
(5) Erosion
(6) Revolution
(7) Natural Causes
COMPONENTS OF TERRITORY
(1) Territorial Domain
(2) Maritime and Fluvial Domain
a. Territorial Sea
b. Contiguous Zone
c. Exclusive Economic Zone (EEZ)
d. Continental Shelf
e. High Seas
(3) Aerial Domain
a. Air Space
b. Outer Space
b.
Territory
the fixed and permanent portion on the
earths surface inhabited by the people
of the state and over which it has
supreme authority
consists of the portion of the surface of
the globe on which that State settles and
over which it has supreme authority
an exercise of sovereignty, covering not
only land, but also the atmosphere as
well
CHARACTERISTICS OF TERRITORY
1. Permanent
2. Definite/Indicated with Precision
Generally, the territorys limits define
the States jurisdiction
3. Big enough to sustain the population
4. Not so extensive as to be difficult to:
Dereliction/Abando
Erosion
Revolution
Natural Causes
Notes:
23
Cession
a derivative mode of acquisition by which
territory belonging to 1 State is transferred to
the sovereignty of another State in
accordance with an agreement between them
a bilateral agreement whereby one State
transfers sovereignty over a definite portion
of territory to another State
E.g. Treaty of cession (maybe an outcome of
peaceful negotiations [voluntary] or the
result of war[forced])
2 KINDS:
1. Total Cession
- comprises the entirety of 1 States
domain
- the ceding State is absorbed by the
acquiring State and ceases to exist
- EX.: Cession of Korea to Japan under the
22 Aug. 1910 Treaty
2. Partial Cession
- comprises only a fractional portion of the
ceding States territory
- cession of the Philippine Islands by Spain
to the US in the Treaty of Paris of 10 Dec.
1988
- Forms:
a) Treaty of Sale
EX.: (1) Sale by Russia of Alaska to US
(2) Sale by Spain of Caroline
Islands to Germany
b) Free Gifts
EX: (1) Cession of a portion of the
Horse-Shoe Reef in Lake
Erie
by UK to US
Conquest
derivative mode of acquisition whereby the
territory of 1 State is conquered in the course
of war and thereafter annexed to and placed
under the sovereignty of the conquering State
the taking possession of hostile territory
through military force in time of war and by
which the victorious belligerent compels the
enemy to surrender sovereignty of that
territory thus occupied
acquisition of territory by force of arms
however, conquest alone merely gives an
inchoate right; acquisition must be completed
by formal act of annexation
no longer regarded as lawful
UN Charter prohibits resort to threat or use of
force against a States territorial integrity or
political independence
Notes:
24
Territorial Sea
comprises in the marginal belt adjacent
to the land area or the coast and
includes generally the bays, gulfs and
straights which do not have the character
of historic waters (waters that are
legally part of the internal waters of the
State)
portion of the open sea adjacent to the
States shores, over which that State
exercises jurisdictional control
Basis necessity of self-defense
Effect territorial supremacy over the
territorial sea, exclusive enjoyment of
fishing rights and other coastal rights
BUT: Subject to the RIGHT OF INNOCENT
PASSAGE (a foreign State may exercise its
right of innocent passage)
Q: When is passage innocent?
A: When it is not prejudicial to the
peace, good order, or security of the
coastal State
Notes:
25
A: Innocent passage means the right of continuous
and expeditious navigation of a foreign ship
through the territorial sea of a State for the
purpose of traversing that sea without entering
the internal waters or calling at a roadstead or
port facility outside internal water or proceeding
to or from internal waters or a call at such
roadstead or port facility. The passage is innocent
so long as it is not prejudicial to the peace, good
order or security of the coastal State.
Extent and Limitations of Right of Innocent
Passage
Extends to ALL ships merchant and warships
Submarines must navigate on the surface and
show their flag
Nuclear-powered ships, ships carrying nuclear
and dangerous substances must carry
documents and observe special safety
measures
Q: En route to the tuna fishing grounds in the
Pacific Ocean, a vessel registered in Country TW
entered the Balintang Channel north of Babuyan
Island and with special hooks and nets dragged
up red corrals found near Batanes. By
International Convention certain corals are
protected species. Just before the vessel
reached
the
high
seas, the
Coast
Guard
patrol
Notes:
26
3.
regarded
as
internal
Contiguous Zone
zone adjacent to the territorial sea, over
which the coastal State may exercise such
control as is necessary to:
Prevent infringement of its customs,
fiscal, immigration or sanitary laws
within its territory or territorial sea;
Punish such infringement
extends to a maximum of 24 nautical miles
from the baseline from which the territorial
sea is measured.
Exclusive Economic Zone
a maximum zone of 200 nautical miles from
the baseline from which the territorial sea is
measured, over which, the coastal State
exercises sovereign rights over all the
economic resources of the sea, sea-bed and
subsoil
2.
3.
4.
5.
6.
Notes:
27
Passage
only
for
continuous,
expeditious,
and
unobstructed
transit between 1 part of the high
seas or an EEX to another part of the
high seas or an EEZ
Notes:
28
Air Space
the air space above the States terrestrial and
maritime territory
Every State has complete and exclusive
sovereignty over the air space above its
territory
Convention on International Civil Aviation
Territory includes terrestrial and
maritime territory
thus, includes air space above territorial sea
NOTE: NO right of innocent passage!
the air space above the high seas is open to
all aircraft, just as the high seas is accessible
to ships of all States
the State whose aerial space is violated
can take measures to protect itself, but
it does not mean that States have an
unlimited right to attack the intruding
aircraft (intruding aircraft can be
ordered either to leave the States air
space or to land)
Notes:
29
3.
Functional Approach
The legal regime governing space
activities are based, not on a boundary
line, but on the nature of the activities
Notes:
30
Membership
Principal Organs
Privileges and Immunities of the United Nations
4.
Notes:
31
4.
5.
GA Voting Rules
Each member or delegation has 1 vote in the GA.
Important Questions are decided by 2/3 majority
of those present and voting. All other matters,
including the determination of whether a question
is important or not, are decided by simple
majority.
Important Questions include:
a) peace and security
b) membership
c) election
d) trusteeship system
e) budget
UN General Assembly
This is the central organ of the UN. The principal
deliberative body of the organization and is
vested with jurisdiction over matters concerning
the internal machinery and operations of the UN.
GA Composition
Consists of all the members of the UN. Each
member is entitled to send no more than 5
delegates and 5 alternates and as many technical
and other personnel as it may need.
The reason for this system of multiple delegates is
to enable the members to attend of several
meetings that may be taking place at the same
time in the different organs or committees of the
Organization.
However, each delegation is entitled only to one
vote in the decisions to be made by the GA.
GA Sessions
1. Regular sessions every year beginning the
third Tuesday of September.
2. Special sessions may be called at the
request of the SC, a majority of the member
states, or one member with the concurrence
of the majority.
3. Emergency special session may be called
within 24 hours at the request of the SC by
vote of any 9 members or by a majority of the
members of the UN.
Some Important Functions of the GA
1. Deliberative discuss principles regarding
maintenance of international peace and
security and may take appropriate measures
toward this end.
2. Supervisory receives and considers reports
from the other organs of the UN.
3. Elective important voting functions are also
vested in the GA, such as the election of the
non-permanent members of the SC, some
GA Main Committees
Most questions are then discussed in its six main
committees:
6th - Legal
Some issues are considered only in plenary
meetings, while others are allocated to one of the
six main committees. All issues are voted on
through resolutions passed in plenary meetings,
usually towards the end of the regular session,
after the committees have completed their
consideration of them and submitted draft
resolutions to the plenary Assembly.
Voting in Committees is by a simple majority. In
plenary meetings, resolutions may be adopted by
acclamation, without objection or without a vote,
or the vote may be recorded or taken by roll-call.
While the decisions of the Assembly have no
legally binding force for governments, they carry
the weight of world opinion, as well as the moral
authority of the world community.
The work of the UN year-round derives largely
from the decisions of the General Assembly - that
is to say, the will of the majority of the members
as expressed in resolutions adopted by the
Assembly. That work is carried out:
a. by committees and other bodies established
by the Assembly to study and report on
specific issues, such as disarmament,
peacekeeping, development and human
rights;
b. in international conferences called for by the
Assembly; and
Notes:
32
c.
by the Secretariat of the UN - the SecretaryGeneral and his staff of international civil
servants.
UN Security Council
Notes:
33
b.
c.
Notes:
34
of public hearings at which agents and counsel
address the Court. As the Court has two official
languages (English and French) everything written
or said in one language is translated into the
other.
After the oral proceedings the Court deliberates
in camera and then delivers its judgment at a
public sitting. The judgment is final and without
appeal. Should one of the States involved fail to
comply with it, the other party may have recourse
to the Security Council.
T
The Court discharges its duties as a full court but,
at the request of the parties, it may also establish
a special chamber. A Chamber of Summary
Procedure is elected every year by the Court in
accordance with its Statute. In July 1993 the
Court also established a seven-member Chamber
to deal with any environmental cases falling
within its jurisdiction
ICJ Voting Rules
All questions before the Court are decided by a
majority of the judges present, the quorum being
nine when it is sitting en banc. In case of tie, the
President or his substitute shall have a casting
vote.
Rule for Inhibition of Judges
No judge may participate in the decision of a case
in which he has previously taken part as agent,
counsel or advocate for one of the parties, or as a
member of a national or international court, or of
a commission of injury, or in any other capacity.
Functions of ICJ
The principal functions of the Court are:
2. to decide contentious case; and
3. to render advisory opinions.
Who may file contentious cases?
Only states can file contentious cases and both
must agree to the courts jurisdiction. Only States
may apply to and appear before the Court. The
Member States of the United Nations (at present
numbering 191) are so entitled.
Notes:
35
Q:
The sovereignty over certain island is
disputed between State A and State B. These
two states agreed to submit their disputes to
the ICJ.
1) Does the ICJ have the jurisdiction to
take cognizance of the case?
2) Who shall represent the parties before
the Court?
3) What language shall be used in the
pleading and the oral arguments?
4) In case State A, the petitioner fails to
appear at the oral argument, can State
B, the respondent, move for the
dismissal of the action? (1994 Bar)
A: 1) The ICJ has jurisdiction because the parties
have jointly submitted the case to it and have
thus indicated their consent to its jurisdiction.
2) Parties to a case may appoint agents to appear
before the ICJ in their behalf, and these agents
need not be their own nationals. However, under
Art. 16 of the Statute of ICJ, no member of the
Court may appear as agent in any case.
3) Under Art. 39 of the Statute of ICJ, the official
languages of the Court are English and French. In
the absence of an agreement, each party may use
the language it prefers. At the request of any
party, the Court may authorize a party to use a
language other than English or French.
4) Under Art. 51 of the Statute of ICJ, whenever
one of the parties does not appear before the
court or fails to defends its case, the other party
may ask the Court to decide in favor of its claim.
However, the Court must, before doing so, satisfy
itself that it has jurisdiction and that the claim is
well-founded in fact and in law.
PIMENTEL, JR., v. OFFICE OF THE EXECUTIVE
SECRETARY
462 SCRA 622, 6 July 2005
En Banc, Garcia J.
This is 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 in accordance with
21, Article VII of the 1987 Constitution.
Notes:
36
The Rome State of the International Criminal
Court
The Rome Statute established the International
Criminal Court which shall have the power to
exercise its jurisdiction over person for the most
serious crimes of international concern x x x and
shall be complementary to the national criminal
jurisdictions. (Article I, Rome Statute)
Its
jurisdiction covers the crime of genocide, crimes
against humanity, war crimes, and the crime of
aggression as defined in the Statute (Article 5,
Rome Statute). The Statute was opened for
signature by all states in Rome on July 17, 1988
and had remained open for signature until
December 31, 2000 at the United Nations
Headquarters in New York. The Philippines signed
the Statute on December 28, 2000 through Charge
d Affairs Enrique A. Manalo of the Philippine
Mission to the United Nations. Its provisions,
however, require that it be subject to ratification,
acceptance or approval of the signatory states
(Article 25, Rome Statute).
Issues
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 (Article 18, Vienna Convention on the Law
of Treaties).
Notes:
37
We rule in the negative.
In our system of government, the President, being
the head of state, is regarded as the sole organ
and authority in external relations and is the
countrys sole representative with foreign
nations(Cortes, The Philippine Presidency: A
Study of Executive Power (1966), p. 187) As the
chief architect of foreign policy, the President
acts as the countrys 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 [Cruz, Philippine Political Law
(1996 Ed.), p. 223] . In the realm of treatymaking, 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. xxx
The participation of the legislative branch in the
treaty-making process was deemed essential to
provide a check on the executive in the field of
foreign relations (Cortes, supra note 12, p. 189).
By requiring the concurrence of the legislature in
the treaties entered into by the President, the
Constitution ensures a healthy system of checks
and balance necessary in the nations pursuit of
political maturity and growth [Bayan vs. Zamora,
342 SCRA 449 (2000)].
In filing this petition, the petitioners interpret
Section 21, Article VII of the 1987 Constitution to
mean that the power to ratify treaties belongs to
the Senate.
We disagree.
Justice Isagani Cruz, in his book on International
Law, describes the treaty-making process in this
wise:
The usual steps in the treaty-making process are:
negotiation, signature, ratification, and exchange
of the instruments of ratification. The treaty may
then be submitted for registration and publication
under the U.N. Charter, although this step is not
essential to the validity of the agreement as
between the parties.
Negotiation may be undertaken directly by the
head of state but he now usually assigns this task
to his authorized representatives.
These
representatives are provided with credentials
known as full powers, which they exhibit to the
Notes:
38
by its representative. It is generally held to be an
executive act, undertaken by the head of the
state or of the government (Bayan vs. Zamora,
supra note 15). Thus, Executive Order No. 459
issued by President Fidel V. Ramos on November
25, 1997 provides the guidelines in the
negotiation of international agreements and its
ratification. It mandates that after the treaty has
been signed by the Philippine representative, the
same shall be transmitted to the Department of
Foreign Affairs. The Department of Foreign Affairs
shall then prepare the ratification papers and
forward the signed copy of the treaty to the
President for ratification. After the President has
ratified the treaty, the Department of Foreign
Affairs shall submit the same to the Senate for
concurrence. Upon receipt of the concurrence of
the Senate, the Department of Foreign Affairs
shall comply with the provisions of the treaty to
render it effective. xxx
Xxx
Petitioners submission that the Philippines is
bound under treaty law and international law to
ratify the treaty which it has signed is without
basis. The signature does not signify the final
consent of the state to the treaty. It is the
ratification that binds the state to the provisions
thereof. In fact, the Rome Statute itself requires
that the signature of the representatives of the
states be subject to ratification, acceptance or
approval of the signatory states. Ratification is
the act by which the provisions of a treaty are
formally confirmed and approved by a State. By
ratifying a treaty signed in its behalf, a state
expresses its willingness to be bound by the
provisions of such treaty. After the treaty is signed
by the states representative, the President, being
accountable to the people, is burdened with the
responsibility and the duty to carefully study the
contents of the treaty and ensure that they are
not inimical to the interest of the state and its
people. Thus, the President has the discretion
even after the signing of the treaty by the
Philippine representative whether or not to ratify
the same. The Vienna Convention on the Law of
Treaties does not contemplate to defeat or even
restrain this power of the head of states. If that
were so, the requirement of ratification of
treaties would be pointless and futile. It has been
held that a state has no legal or even moral duty
to ratify a treaty which has been signed by its
plenipotentiaries [Salonga and Yap, Public
International Law (5th Edition), p. 138]. There is
no legal obligation to ratify a treaty, but it goes
without saying that the refusal must be based on
substantial grounds and not on superficial or
whimsical reasons. Otherwise, the other state
would be justified in taking offense (Cruz,
International Law, supra note 16, p.174).
Jurisdiction of States
Bases of Jurisdiction
1. Territoriality Principle
2. Nationality Principle
3. Protective Principle
4. Universality Principle
Exemptions from Jurisdiction
Doctrine of Sovereign Immunity
Act of State Doctrine
Right of Legation
Classes of Heads of Missions
Diplomatic Corps
Privileges and Immunities
Letter of Credence
Functions of Diplomatic Representatives
Waiver of Diplomatic Immunity and Privileges
Duration of Immunity
Termination of Diplomatic Relation
Consular Immunity
2 Kinds of Consuls
Consular Privileges and Immunities
BASES OF JURISDICTION
A. Territoriality Principle
all persons, property, transactions and
occurrences within the territory of a
State are under its jurisdiction, as well as
over certain consequences produced
within the territory by persons acting
outside it.
vests jurisdiction in state where offense
was committed
Notes:
39
EXTRATERRITORIAL JURISDICTION
often claimed by States with respect to
so-called continuing offenses where the
commission of the crime has started in
one State and is consummated in
another.
Under such situation, both
states have jurisdiction.
Q: What is the meaning or concept of
extraterritoriality? (1977 Bar)
A: The term extraterritoriality has been used to
denote the status of a person or things physically
present on a States territory, but wholly or partly
withdrawn from the States jurisdiction by a rule
of international law.
Note: The concept of extraterritoriality is already
obsolete.
Q:
Distinguish
exTERritoriality
and
exTRAterritoriality.
A:
exTERritoriality
exTRAterritoriality
exception
of
persons
and
property from local
jurisdiction
on
basis
of
international
customs
Notes:
40
may punish it. Nor does it matter that the crime
was committed within the jurisdictional 3-mile
limit of a foreign state for those limits, though
neutral to war, are not neutral to crimes.
DOCTRINE OF SOVEREIGN IMMUNITY
Under this doctrine, a state enjoys immunity from
the exercise of jurisdiction by another state. The
courts of one state may not assume jurisdiction
over another state.
Restrictive Application of the Doctrine of State
Immunity
Q: The Republic of Balau opened and operated
in Manila an office engaged in trading of Balau
products with the Philippine products. In one
transaction, the local buyer complained that the
Balau goods delivered to him were substandard
and he sued the Republic of Balau before the
RTC of Pasig for damages. (1996 Bar)
a) How can the Republic of Balau invoke its
sovereign immunity? Explain.
b) Will such defense of sovereign immunity
prosper? Explain.
A: a) By filing a motion to dismiss in accordance
with Section 1 (a) Rule 16 of the Rules of Court on
the ground that the court has no jurisdiction over
its person.
According to the case of Holy See vs. Rosario, in
Public International Law, when a state wishes to
plead sovereign immunity in a foreign court, it
requests the Foreign office of the state where it is
being sued to convey to the court that it is
entitled to immunity. In the Philippines, the
practice is for the foreign government to first
secure an executive endorsement of its claim of
immunity. In some case, the defense of sovereign
immunity is submitted directly to the local court
by the foreign state through counsel by filing a
motion to dismiss on the ground that the court has
no jurisdiction over its person.
b) No. The sale of Balau products as a contract
involves a commercial activity. As held by the
Supreme Court in the case of USA vs. Ruiz and USA
vs. Guinto, it was stated that a foreign state
couldnt invoke immunity from suit if it enters
into a commercial contract.
The Philippines
adheres to restrictive Sovereign Immunity.
In February 1990, the Ministry of the Army,
Republic of Indonesia, invited for a bid for the
supply of 500,000 pairs of combat boots for the
use of the Indonesian Army. The Marikina Shoe
Corporation, a Philippine Corporation, which
has a branch office and with no assets in
Indonesia, submitted a bid to supply 500,000
pairs of combat boots at $30 per pair delivered
in Jakarta on or before October 1990. The
contract was awarded by the Ministry of the
Army to Marikina Shoe Corporation and was
Notes:
41
2.
3.
4.
5.
6.
7.
Notes:
42
iii.
ii.
b)
c)
d)
e)
Notes:
43
f)
g)
h)
i)
Notes:
44
regarding the venue of lawsuits is not necessarily
a wavier of sovereign immunity from suit. It
should be interpreted to apply only where Italy
elects to sue in the Philippine courts or waives its
immunity by a subsequent act. The contract does
not involve a commercial activity of the
ambassador, because it is connected with his
official functions. [Republic of Indonesia v.
Vinzon, 405 SCRA 126 (2003)]
Q: A group of high-ranking officials and rank and
file employees stationed in a foreign embassy in
Manila were arrested outside embassy grounds
and detained at Camp Crame on suspicion that
they
were
actively
collaborating
with
terrorists out to overthrow or destabilize the
Philippine
Government.
The
Foreign
Ambassador sought their immediate release,
claiming that the detained embassy officials and
employees enjoyed diplomatic immunity. If
invited to express your legal opinion on the
matter, what advice would you give. (2003 Bar)
A: I shall advise that the high ranking officials and
rank and file employees be released because of
their diplomatic immunity. Article 29 of the
Vienna Convention on Diplomatic Relations
provides:
The person of a diplomatic agent shall be
inviolable. He shall not be liable to any form of
arrest or detention.
Under Article 37 of the Vienna Convention on
Diplomatic
Relations,
members
of
the
administrative and technical staff of the
diplomatic mission, shall, if they are not nationals
of or permanent residents in the receiving State,
enjoy the privileges and immunities specified in
Article 29.
Under Article 9 of the Vienna Convention on
Diplomatic Relations, the remedy is to declare the
high-ranking officials and rank and file employees
personae non gratae and ask them to leave.
Alternative A: Under the Vienna Convention on
Diplomatic Relations, a diplomatic agent shall
not be liable to any form of arrest or detention
(Article 29) and he enjoys immunity from criminal
jurisdiction (Article 31).
This immunity may cover the high ranking
officials in question, who are assumed to be
diplomatic officers or agents.
With respect to the rank and file employees
that are covered by the immunity referred to
above, provided that are not nationals or
permanent residents of the Philippines pursuant
to Article 37(2) of the said Convention.
If the said rank and file employees belong to the
service staff of the diplomatic mission (such as
drivers) they may be covered by the immunity
Notes:
45
Notes:
46
b)
c)
Notes:
47
his functions unless the President of the United
States issues an exequator to him.
Q: X, a secretary and consul in the American
embassy in Manila, bought from B a diamond
ring in the amount of P 50,000, which he later
gave as a birthday present to his Filipino
girlfriend. The purchase price was paid in
check drawn upon the Citibank.
Upon
presentment for payment, the check was
dishonored for insufficiency of funds. Because
Xs failure to make good of the dishonored
check, B filed a complaint against X in the
Office of the City Prosecutor of Manila for
violation of BP 22.
After preliminary
investigation, the information was filed against
X in the City Court of Manila. X filed a motion
to dismiss the case against him on the ground
that he is a Secretary and Consul in the
American
Embassy
enjoying
diplomatic
immunity from criminal prosecution in the
Philippines. If you were the judge, how would
you resolve the motion to dismiss? (1997 Bar)
A: The motion to dismiss should be granted. As
consul, X is not immune from criminal
prosecution. Under paragraph 3 of Article 41 of
the Vienna Conventions, a consular officer is not
immune from the criminal jurisdiction of the
receiving state. In Schneekenburger vs. Mora, 63
Phil 249, it was held that a consul is not exempt
from criminal prosecution in the country where he
is assigned.
However, as a secretary in the American Embassy,
X enjoys diplomatic immunity from the criminal
prosecution. As secretary, he is a diplomatic
agent. Under paragraph 1 of Article 3 of the
Vienna Convention, a diplomatic agent against
enjoys immunity from the criminal jurisdiction of
the receiving state.
Q: a) A consul of a South American country
stationed in Manila was charged with serious
physical injuries. May he claim immunity from
jurisdiction of the local court? Explain.
b) Suppose after he was charged, he was
appointed as his countrys ambassador to the
Philippines. Can his newly gained diplomatic
status be a ground for the dismissal of his
criminal case? Explain. (1995 Bar)
A: a) No, Under Article 41 of the Vienna
Convention, consuls do not enjoy immunity from
the criminal jurisdiction of the receiving state.
He is not liable to arrest or detention pending the
trial unless the offense was committed against his
father, mother, child, ascendant, descendant or
spouse. Consuls are not liable to arrest and
detention pending trial except in the case of
grave crime and pursuant to a decision by the
competent judicial authority.
The crime of
physical injuries is not a grave crime unless it is
committed against the above-mentioned persons.
Notes:
48
JURISDICTIONAL ASSISTANCE
Extradition Defined
Extradition distinguished from Double Criminality
Basis for Allowing Extradition
Rules in Interpretation of Extradition Treaty
Extradition Distinguished from Deportation
Fundamental Principles Governing Extradition
Extradition of War Criminals and Terrorists
Attentat Clause
Five Postulates of Extradition
Right of Asylum
Asylum Distinguished from Refugees
3 Essentials Elements of Refugees
Non-Refoulment Principle
Nationality Distinguished from Citizenship
Doctrine of Effective Nationality
Statelessness
Extradition
The delivery of an accused or a convicted
individual to the State in whose territory he is
alleged to have committed a crime by the State
on whose territory the alleged criminal or criminal
happens to be at the time.
The legal duty to extradite a fugitive from justice
is based only on treaty stipulations, which are
classified under two major types:
Older Type
One, which contains a
specific list of offenses
that a fugitive should
have committed in
order to be extradited.
Principle of
Double Criminality
Sometimes called no
list treaty
The more modern type
contains no list of
crimes but provides that
the offenses in question
should be punishable in
both states.
Notes:
49
deliver up such fugitives to another; and though
such delivery was often made it was upon the
principle of comity x x x. (Dissenting Opinion,
Puno, J., in Secretary of Justice v. Hon. Ralph C.
Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc)
Q: What is the nature of an extradition
proceeding? Is it akin to a criminal proceeding?
Held: [A]n extradition proceeding is sui generis.
It is not a criminal proceeding which will call into
operation all the rights of an accused as
guaranteed by the Bill of Rights. To begin with,
the process of extradition does not involve the
determination of the guilt or innocence of an
accused. His guilt or innocence will be adjudged
in the court of the state where he will be
extradited. Hence, as a rule, constitutional rights
that are only relevant to determine the guilt or
innocence of an accused cannot be invoked by an
extraditee especially by one whose extradition
papers are still undergoing evaluation. As held by
the US Supreme Court in United States v. Galanis:
An extradition proceeding is not a criminal
prosecution, and the constitutional safeguards
that accompany a criminal trial in this country do
not shield an accused from extradition pursuant to
a valid treaty. (Wiehl, Extradition Law at the
Crossroads: The Trend Toward Extending Greater
Constitutional Procedural Protections To Fugitives
Fighting Extradition from the United States, 19
Michigan Journal of International Law 729, 741
[1998], citing United States v. Galanis, 429 F.
Supp. 1215 [D. Conn. 1977])
There are other differences between an
extradition proceeding and a criminal proceeding.
An extradition proceeding is summary in natural
while criminal proceedings involve a full-blown
trial.
In contradistinction to a criminal
proceeding, the rules of evidence in an
extradition proceeding allow admission of
evidence under less stringent standards. In terms
of the quantum of evidence to be satisfied, a
criminal case requires proof beyond reasonable
doubt for conviction while a fugitive may be
ordered extradited upon showing of the
existence of a prima facie case. Finally, unlike
in a criminal case where judgment becomes
executory upon being rendered final, in an
extradition proceeding, our courts may adjudge
an individual extraditable but the President has
the final discretion to extradite him. The United
States adheres to a similar practice whereby the
Secretary of State exercises wide discretion in
balancing the equities of the case and the
demands of the nation's foreign relations before
making the ultimate decision to extradite.
As an extradition proceeding is not criminal in
character and the evaluation stage in an
extradition proceeding is not akin to a preliminary
investigation, the due process safeguards in the
latter do not necessarily apply to the former. This
Notes:
50
another state
Where?
The undesirable
alien may be sent
to
any
state
willing to accept
him
BASIS
Nature
EXTRADITION
Normally
committed with
criminal
offenses in the
territory of the
requesting state
DEPORTATION
Even if no crime
was committed as
long as the alien
is extraditable
Benefit
Effected on the
basis
of
an
extradition
treaty or upon
the request of
How?
Notes:
51
plan of John to assassinate President Harry was
part of such plan. However, if the extradition
treaty contains an attentat clause, Republic A can
extradite John because under the attentat clause,
the taking of the life or attempt against the life of
a head of state or that of the members of his
family does not constitute a political offense and
is therefore extraditable.
Alternative A: Republic A may or can refuse the
request of extradition of William because he is
not in its territory and thus it is not in the position
to deliver him to Republic X.
Even if William were in the territorial jurisdiction
of Republic A, he may not be extradited because
inciting to sedition, of which he is charged,
constitutes a political offense. It is a standard
provision of extradition treaties, such as the one
between Republic A and Republic X, that political
offenses are not extraditable.
Alternative A: Republic B can deny the request
the request of Republic X to extradite William,
because his offense was not a political offense.
On the basis of the predominance of
proportionality test, his acts were not directly
connected to any purely political offense.
Q: On November 1, 1976, A, B, C and D, self
styled Moro rebels long wanted by the
authorities for the fatal ambuscade of a bus
load of innocent civilians, hijacked a PAL lane
on its Manila-Davao flight which they forcibly
diverted to, and landed in Jakarta Indonesia. In
that country, A, B, C and D sought political
asylum, invoking the UN Declaration on Human
Rights. Reacting, the Philippine Government,
through proper diplomatic channels sought after
their extradition. May Indonesia grant asylum
or should it extradite A, B, C and D to the
Philippines. (1976 Bar)
Q: Sergio Osmea III and Eugenio Lopez Jr. both
charged with attempted assassination of
President Marcos before the military tribunal,
escaped from military custody, flew to Hong
Kong and then to California USA where they are
reportedly seeking political asylum. There is no
extradition treaty however between the
Philippines and the United States.Assuming that
the Philippine Government desires the
surrender of the above-named fugitives to the
Philippines to face trial before the military
tribunal, how can this be legally done under
International Law? (1978 Bar)
A: The Philippines may only request and cannot
demand the surrender of the two fugitives. As
territorial sovereign, the United States is not
obliged to return them but may decide to do so
for reasons of comity. This is likely, however,
because the escapees are sought for political
offense and can claim the right of asylum under
the Universal Declaration of Human Rights.
Notes:
52
Doctrine of Reciprocity
If the requesting state is shown to be willing to
surrender its own nationals for trial by the courts
of another country, the detaining state must also
surrender its own citizens for trial.
5 POSTULATES OF EXTRADITION
Notes:
53
Notes:
54
Notes:
55
2)
3)
Notes:
56
3)
Alleged Disenfranchisement
Anticipated Delay
Notes:
57
the applicant has been taken into custody and
prior to judgment, even after bail has been
previously denied.
In the present case, the
extradition court may continue hearing evidence
on the application for bail, which may be granted
in accordance with the guidelines in this Decision.
Discuss the Ten Points in
Extradition proceedings.
6)
7)
8)
9)
Notes:
58
CUEVAS V. MUOZ
G.R. No. 140520, 18 December 2000, Second
Division, De Leon, J.
JUAN ANTONIO MUOZ is charged with seven (7)
counts of accepting an advantage as an agent
contrary to Section 9(1)(a) of the Prevention of
Bribery Ordinance of. Cap 201 of Hong Kong, and
seven (7) counts of conspiracy to defraud,
contrary to the common law of Hong Kong, for
each count of which, if found guilty, he may be
punished with seven (7) and fourteen (14) years
imprisonment, respectively. The Hong Kong
Magistrates Court issued a warrant for his arrest.
Thereafter, the Philippine DOJ received a request
for the provisional arrest of MUOZ pursuant to
the RP-Hong Kong Extradition Agreement. The
Philippine DOJ forwarded the request for
provisional arrest to the NBI, which filed an
application for the provisional arrest of MUOZ
with RTC of Manila for and in behalf of the
government of Hong Kong. RTC granted the
application. However, CA declared the Order of
Arrest null and void.
ISSUE: Whether Munoz should be provisionally
arrested
HELD:
There was urgency for the provisional arrest of
the respondent. Urgency" connotes such
conditions relating to the nature of the offense
charged and the personality of the prospective
extraditee which would make him susceptible to
the inclination if he were to learn about the
impending request for his extradition and/or
likely to destroy the evidence pertinent to the
said request or his eventual prosecution and
without which the latter could not proceed. Such
conditions exist in Munozs case.
At the time the request for provisional arrest was
made, respondents pending application for the
discharge of a restraint order over certain assets
held in relation to the offenses with which he is
being charged, was set to be heard by the Court
of First Instance of Hong Kong on September 17,
1999. The Hong Kong DOJ was concerned that the
pending request for the extradition of the
respondent would be disclosed to the latter during
the said proceedings, and would motivate
respondent to flee the Philippines before the
request for extradition could be made.
There is also the fact that respondent is charged
with seven (7) counts of accepting an advantage
as an agent and seven (7) counts of conspiracy to
defraud, for each count of which, if found guilty,
he may be punished with seven (7) and fourteen
(14)
years
imprisonment,
respectively.
Undoubtedly, the gravity of the imposable penalty
Notes:
59
through diplomatic channels, is not only timeconsuming but also leakage-prone. There is
naturally a great likelihood of flight by criminals
who get an intimation of the pending request for
their extradition. To solve this problem, speedier
initial steps in the form of treaty stipulations for
provisional arrest were formulated. Thus, it is an
accepted practice for the requesting state to rush
its request in the form of a telex or diplomatic
cable, the practically of the use of which in
conceded. even our own Extradition Law (PD
1069) allows the transmission of a request for
provisional arrest via telegraph. In the advent of
modern technology, the telegraph or cable have
been conveniently replaced by the facsimile
machine. Therefore, the transmission by the Hong
Kong DOJ of the request for respondents
provisional arrest and the accompanying
documents, namely, a copy of the warrant of
arrest against respondent, a summary of the facts
of the case against him, particulars of his birth
and address, a statement of the intention to
request his provisional arrest and the reason
therefor, by fax machine, more than serves this
purpose of expediency.
In tilting the balance in favor of the interests of
the State, the Court stresses that it is not ruling
that the private respondent has no right to due
process at all throughout the length and breath of
the extrajudicial proceedings. Procedural due
process requires a determination of what process
is due when it is due and the degree of what is
due. Stated otherwise, a prior determination
should be made as to whether procedural
protections are at all due and when they are due,
which in turn depends on the extent to which an
individual will be condemned to suffer grievous
loss, We have explained why an extraditee has
not right to notice and hearing during the
evaluation stage of the extradition process. As
aforesaid, P.D. 1069 xxx affords an extraditee
sufficient opportunity to meet the evidence
against him once the petition is filed in court. The
time for the extraditee to know the basis of the
request for his extradition is merely moved to the
filing in court of the formal petition for
extradition. The extradites right to know is
momentarily withheld during the evaluation stage
of the extradition process to accommodate the
more compelling interest of the State to prevent
escape of potential extradites which can be
precipitated by premature which can be
precipitated by premature information of the
basis of the request for his extradition. No Less
compelling at that stage of the extradition
proceedings is the need to be more deferential to
the judgement of a co-equal branch of the
governments, the Executive, which has been
endowed by our Constitution with greater power
over matters involving our foreign relations.
Needless to state, this balance of interests is not
a static but a moving balance which can be
adjusted as the extradition process moves from
Notes:
60
offense of conspiracy to defraud, penalized by the
common law of Hong Kong.
Citing the various international treaties giving
recognition and protection to human rights, the
Court saw the need to reexamine its ruling in
Government of United States of America v. Judge
Purganan which limited the exercise of the right
to bail to criminal proceedings.
It said that while our extradition law does not
provide for the grant of bail to an extraditee,
there is no provision prohibiting him or her from
filing a motion for bail, a right under the
Constitution.
Notes:
61
Q: Sandovals Open Question No. 1
Is a refugee is included in the term stateless
person or is it the other way around?
Suggested Answer: Analyze the elements before
one could be considered a refugee.
Non-Refoulment Principle
Non-refoulment non-contracting state expel or
return (refouler) a refugee, in any manner
whatsoever, to the frontiers of territories where
his life or freedom would be threatened. (Article
33 of the Convention Relating to the Status of
Refugees)
The Principle of the non-refoulment was declared
to be a generally accepted principle by the
Convention relating to the status of stateless
persons.
Nationality v. Citizenship
Nationality is the membership in a political
community with all its concomitant rights and
obligations. It is the tie that binds an individual
to his state, from which he can claim protection
from the laws, which he is also obliged to follow.
Citizenship has a more exclusive meaning in that
it applies only to certain members of the state
accorded more privileges than the rest of the
people who owe it allegiance. Its significance is
municipal and not international.
Nationality is Important in Intl Law
It is important because an individual can
ordinarily participate in international relations
only through the instrumentality of the state to
which he belongs, as when his government asserts
a claim on his behalf for injuries suffered by him
in foreign jurisdiction. This remedy would not be
available to a stateless person who will have no
state with international personality to intercede
for him under the laws of nations.
Example, in the case of Holy See vs. Rosario, the
defendant in this case can invoke his rights
against the Holy See not under the Municipal Law
but under International Law through his
government, which will espouse his cause of
action in his behalf. If this happens, his concern
ceases to be a private one but becomes one for
the public, that is, for the state.
DOCTRINE OF EFFECTIVE NATIONALITY
Within a third state, a person having more than
one nationality shall be treated as if he had only
one. Under the principle of effective nationality,
the third state shall recognized conclusively in its
territory either the nationality of the country in
which he is habitually and principally present or
the nationality of the country with which he
appears to be in fact most closely connected.
Statelessness
Statelessness is the condition or status of an
individual who is born without any nationality or
who loses his nationality without retaining or
acquiring another.
An example of the first case would be that of an
individual born in a state where only the jus
sanguinis is recognized to parents whose state
observes only jus soli. The second case may be
illustrated by an individual who, after renouncing
his original nationality in order to be naturalized
in another state, is subsequently denaturalized
and thereafter denied repatriation by his former
country.
Q:
Who
are
stateless
persons
under
International Law? (1995 Bar)
A: They are those who are not considered as
national by any state under the operation of its
laws.
Q: What are the consequences of statelessness?
(1995 Bar)
A: These are:
i.
No state can intervene or
complain in behalf of the stateless
person for an international delinquency
committed by another state in inflicting
injury upon him;
ii.
He cannot be expelled by
the state if he is lawfully in its territory
except on grounds of national security or
public order;
iii.
He cannot avail himself of
the protection and benefits of citizenship
like securing for himself a passport or
visa and personal documents.
Q: Victor Korchnoi, a stateless resident of
Switzerland, was the challenger to the world
chess title held by Russian Anatoly Karpov.
After 32 grueling games were played in Baguio
city, Karpov finally retained his title of a close 6
to 5 win. Korchnoi protested no-payment of his
prize money and alleged unfair treatment he
received from the tournament organizers in the
Philippines particularly in the 32nd crucial game,
which he attributes as the main case of his
defeat. May he press for his right to the prize
money against the Philippine government
through the Swiss government? (1978 Bar)
A: No, Switzerland even if she so desires, cannot
espouse a diplomatic claim against the Philippines
in behalf of Victor Korchnoi. Nationality is the
basis of the right of state to espouse such claim.
In this case, Korchnoi is not a Swiss national but a
stateless person.
Q: Is a stateless person entirely without right,
protection or recourse under the Law of
Nations? Explain. (1995 Bar)
A: No. Under the Convention in Relation to the
Status of Stateless Persons, the Contracting States
Notes:
62
Sources:
1) International agreements e.g. treaties
concluded between States
2) Customary international law e.g. the
doctrine of rebus sic stantibus
A. THE LAW OF TREATIES
Treaty Defined
Q: What is a Treaty? Discuss.
Held:
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. There
are many other terms used for a treaty or
international agreement, some of which are: act,
protocol, agreement, compromis d' arbitrage,
concordat, convention, declaration, exchange of
notes, pact, statute, charter and modus vivendi.
All writers, from Hugo Grotius onward, have
pointed out that the names or titles of
international agreements included under the
general term treaty have little or no significance.
Certain terms are useful, but they furnish little
more than mere description
Article 2(2) of the Vienna Convention provides
that the provisions of paragraph 1 regarding the
use of terms in the present Convention are
without prejudice to the use of those terms, or to
the meanings which may be given to them in the
internal law of the State.
(BAYAN [Bagong
Alyansang Makabayan] v. Executive Secretary
Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000,
En Banc [Buena])
Protocol de Clture
A final act, sometimes called protocol de cloture
is an instrument which records the winding up of
the proceedings of a diplomatic conference and
usually includes a reproduction of the texts of
treaties, conventions, recommendations and other
acts agreed upon and signed by the
plenipotentiaries attending the conference. It is
not the treaty itself. It is rather a summary of
the proceedings of a protracted conference which
may have taken place over several years.
Q: What is a "protocol de cloture"? Will it
require concurrence by the Senate?
Held: A final act, sometimes called protocol de
cloture, is an instrument which records the
winding up of the proceedings of a diplomatic
conference and usually includes a reproduction of
the
texts
of
treaties,
conventions,
recommendations and other acts agreed upon and
signed by the plenipotentiaries attending the
conference. It is not the treaty itself. It is rather
a summary of the proceedings of a protracted
conference which may have taken place over
several years. It will not require the concurrence
Notes:
63
a)
b)
2)
Synonymous words
a) Convention
b) Pact
c) Protocol
d) Agreement
e) Arrangement
f) Accord
g) Final Act
h) General Act
i) Exchange of Notes
3)
Reality of Consent
Rule: The plenipotentiaries of States or
the State itself must possess the capacity
to consent which consent is given in a
manner that is voluntary and free from
fear, force, coercion, intimidation, or
corruption.
Exceptions:
a) Ratification waiving the right to
withdraw from the treaty and
declaring its consent thereon as
valid.
b) Estoppel - exercising its rights and
respecting the obligations in the
treaty notwithstanding knowledge of
facts that vitiate its consent and
exercises them without protest.
c) Prescription filing of protest after
the lapse of allowable period within
which the same may be entertained.
Thus, the State is deemed to have
ratified its consent.
Remedy: Where the consent of a party
has been given in error or induced
through fraud on the part of the other
party, the treaty would be VOIDABLE.
Thus, the erring State must as soon as
possible or within the time given in the
treaty, withdraw or correct its consent.
Consent How Given
a) through a signature
b) exchange of instruments
c) ratification
d) acceptance
Notes:
64
e)
f)
4)
approval or accession; or
by other means so agreed.
Legality of Object
Rule:
Immorality,
illegality
or
impossibility of purpose or obligations
makes a treaty null and void. e.g. a
treaty by which a State agrees with
another to appropriate a portion of the
high seas.
Exceptions:
a) If the immorality, illegality or
impossibility does not run counter to a
universally recognized peremptory norm
of international law but only against a
remote and minor norm.
b) If it does not contravene or depart
from an absolute or imperative rule or
prohibition of international law. e.g. jus
dispositivum.
PEREMPTORY NORM
A norm generally accepted by the international
community of States as a whole as a norm from
which no derogation is permitted and which can
be modified only by a subsequent norm of general
international law having the same character. e.g.
jus cogens
Q: Explain, using example, jus cogens in
international law. (1991 Bar)
A: Jus cogens is a peremptory norm of general
international law accepted and recognized by the
international community as a whole. e.g. the
prohibition against the use of force in dealing
with States.
INCOMPATIBILITY v. INCONSISTENCY
Inconsistency raises the problem of conflict of
obligations. Incompatibility, on the other hand,
raises the question of nullity. e.g. Art. 103 of the
UN Charter provides that in the event of conflict
between the obligations of the Members under the
UN Charter and their obligations under any
international agreement, their obligations under
the UN Charter shall prevail.
Effect of Form on Validity
There is no rule that treaties should be in written
form. Oral treaties are NOT prohibited. However,
orally agreed treaties are a rarity.
Note: The Vienna Convention, however, defines a
treaty as an international agreement
concluded between States in written form and
governed by international law, whether embodied
in a singe instrument or in two or more related
instruments
and
whatever
its
particular
designation (is).
PROCESS OF TREATY-MAKING
Significance of Signature
Rule: The act of signature has little legal
significance except as a means of authenticating
the text of the treaty. It is the act of ratification
that is required to make a treaty binding.
Exceptions:
a) the treaty provides that signature shall have
such effect;
b) it is otherwise established that the
negotiating States were agreed that
signatures should have that effect; or
c) the intention of the State to give that effect
to the signature appears from the full powers
of its representative or was expressed during
the negotiations.
Ratification
The act by which the provisions of a treaty are
formally confirmed and approved by a State. By
ratifying a treaty signed in its behalf, a State
expresses its willingness to be bound by the
provisions of such treaty.
Notes:
65
3.
4.
Notes:
66
Held: In our jurisdiction, we have recognized the
binding effect of executive agreements even
without the concurrence of the Senate or
Congress. In Commissioner of Customs v. Eastern
Sea Trading (3 SCRA 351, 356-357 [1961]), we had
occasion to pronounce:
x x x 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 into 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. " (BAYAN [Bagong Alyansang Makabayan] v.
Executive Secretary Ronaldo Zamora, G.R. No.
138570, Oct. 10, 2000, En Banc [Buena])
Q: An Executive Agreement was executed
between the Philippines and a neighboring
State. The Senate of the Philippines took it
upon itself to procure a certified true copy of
the Executive Agreement and after deliberating
on it, declared, by a unanimous vote, that the
agreement was both unwise and against the
best interest of the country. Is an Executive
Agreement binding from the standpoints a) of
Philippine law and b) of international law?
Explain. (2003 Bar)
A: a) YES, from the standpoint of Philippine law,
the Executive Agreement is binding. According to
Commissioner of Customs v. Eastern Sea Trading, 3
S 351 [1961], the President can enter into an
Executive Agreement WITHOUT the necessity of
concurrence by the Senate.
b) YES, it is also binding from the standpoint of
international law. As held in Bayan V. Zamora,
342 S 449 [2000], in international law executive
agreements are equally binding as treaties uon
the States who are parties to them. Additionally,
under Article 2(1)(a) of the Vienna Convention on
the Law of Treaties, whatever may be the
designation of a written agreement between
States, whether it is indicated as a Treaty,
Convention or Executive Agreement is not legally
significant. Still it is considered a treaty and
governed by the international law of treaties.
Q: The President authorized the Secretary of
Public Works and Highways to negotiate and sign
a loan agreement with the German Government
for the construction of a dam. The Senate, by a
resolution, asked that the agreement be
submitted to it for ratification. The Secretary
of Public Works and Highways did not comply
with the request of the Senate. (1994 Bar)
a)
Under the Constitution,
what is the role of the Senate in the
conduct of foreign affairs?
b)
A:
a)
b)
Notes:
67
the duty of courts of justice to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the government, it is clear
that this provision does not do away with the
political question doctrine. It was inserted in the
Constitution to prevent courts from making use of
the doctrine to avoid what otherwise are
justiciable controversies, albeit involving the
Executive Branch of the government during the
martial law period. On the other hand, at this
stage, no justiciable controversy can be framed to
justify judicial review. I would therefore advice
the Nuclear Free Philippines Coalition to resort to
the media to launch a campaign against
Agreement
Subject Matter of Treaties
1) Political Issues
2) Changes in National Policies
3) Involve International Agreements of a
Permanent Character
Subject Matter of EAs
1) Have transitory effectivity
2) Adjustment of details carrying out wellestablished national policies and traditions
3) Arrangements of temporary nature
4) Implementation of treaties, statutes, well
established policies.
Q: How does a treaty differ from executive
agreement?
A: An executive agreement is not a treaty in so
far as its ratification may not be required under
the Constitution. However, the distinction is
purely municipal and has no international
significance. From the standpoint of international
law, treaties and executive agreement are alike
in that both constitute equally binding obligations
upon the nations. (FB Sayre, 39 Columbia Law
Review, p. 75, 1939)
An executive agreement is NOT a treaty. As such,
concurrence by two-thirds vote (2/3) of all the
members of the Senate is not necessary for it to
become binding and effective.
Q: Is VFA a treaty or a mere executive
agreement?
A: In the case of Bayan vs. Zamora, VFA was
considered a treaty because the Senate concurred
in via 2/3 votes of all its members. But in the
point of view of the US Government, it is merely
an executive agreement.
Q: What is the implication if only the senate of
the Philippines concur but not the senate of
USA?
A: None, it is only a matter of policy and the same
is governed by their respective Municipal Law.
Notes:
68
MOST-FAVORED-NATION CLAUSE
Q: What is the most-favored-nation clause?
What is its purpose?
A: 1. The most-favored-nation clause may be
defined, in general, as a pledge by a contracting
party to a treaty to grant to the other party
treatment not less favorable than that which has
been or may be granted to the most favored
among other countries. The clause has been
commonly included in treaties of commercial
nature.
There are generally two types of most-favorednation
clause,
namely,
conditional
and
unconditional. According to the clause in its
unconditional form, any advantage of whatever
kind which has been or may in future be granted
by either of the contracting parties to a third
State shall simultaneously and unconditionally be
extended to the other under the same or
equivalent conditions as those under which it has
been granted to the third State. (Salonga & Yap,
Public International Law, 5th Edition, 1992, pp.
141-142)
2. The purpose of a most favored nation clause is
to grant to the contracting party treatment not
less favorable than that which has been or may be
granted to the "most favored" among other
countries. The most favored nation clause is
intended to establish the principle of equality of
international treatment by providing that the
citizens or subjects of the contracting nations may
enjoy the privileges accorded by either party to
Notes:
69
Notes:
70
REBUS SIC STANTIBUS (RSS)
(THINGS REMAINING AS THEY ARE)
This doctrine involves the legal effect of change
in conditions underlying the purposes of a treaty.
Simply stated, the disappearance of the
foundation upon which it rests.
Authors, jurists, and tribunals are varied in the
application of this doctrine. A majority, however,
hold that the obligation of a treaty terminates
when a change occurs in circumstances which
existed at the time of the conclusion of the treaty
and whose continuance formed, according to the
intention or will of the parties, a condition of the
continuing validity of the treaty. The change
must be vital or fundamental. Also, under this
doctrine, a treaty terminates if the performance
of obligations thereof will injure fundamental
rights or interests of any one of the parties.
Explain the "rebus sic stantibus" rule (i.e.,
things remaining as they are). Does it operate
automatically to render a treaty inoperative?
Held:
According to Jessup, the doctrine
constitutes an attempt to formulate a legal
principle which would justify non-performance of
a treaty obligation if the conditions with relation
to which the parties contracted have changed so
materially and so unexpectedly as to create a
situation in which the exaction of performance
would be unreasonable. The key element of this
doctrine is the vital change in the condition of the
contracting parties that they could not have
foreseen at the time the treaty was concluded.
The doctrine of rebus sic stantibus does not
operate automatically to render the treaty
inoperative. There is a necessity for a formal act
of rejection, usually made by the head of state,
with a statement of the reasons why compliance
with the treaty is no longer required. (Santos III
v. Northwest Orient Airlines, 210 SCRA 256, June
23, 1992)
Limitations to RSS
a) It applies only to treaties of indefinite
duration;
b) The vital change must have been unforeseen
or unforeseeable and should have not been
caused by the party invoking the doctrine.
c) It must be invoked within reasonable time;
and
d) It cannot operate retroactively upon the
provisions of a treaty already executed prior
to the change in circumstances.
Rules Governing Termination of RSS
a) a fundamental change (FC) must have
occurred with respect to circumstances
existing at the time of the conclusion of the
treaty;
b) the existence of those circumstances
constituted the basis of the consent of the
parties to be bound by the treaty; and
c)
PNCC V. CA (1997)
The principle of rebus sic stantibus neither fits in
with the facts of the case. Under this theory, the
parties stipulate in the light of certain prevailing
conditions, and once these conditions cease to
exist, the contract also ceases to exist. This
theory is said to be the basis of Article 1267 of the
Civil Code, which provides:
ART. 1267. When the service has become so
difficult as to be manifestly beyond the
contemplation of the parties, the obligor may also
be released therefrom, in whole or in part.
This article, which enunciates the doctrine of
unforeseen events, is NOT, however, an absolute
application of the principle of rebus sic stantibus,
which would endanger the security of contractual
relations. The parties to the contract must be
presumed to have assumed the risks of
unfavorable developments. It is therefore only in
absolutely exceptional changes of circumstances
that equity demands assistance for the debtor
EFFECT OF TERRITORIAL CHANGES
(1978 CONVENTION ON SUCCESSION OF STATES IN
RESPECT TO TREATIES)
Dispositive Treaties
These are treaties which deal with rights over
territory and are deemed to run with the land and
are not affected by changes of sovereignty. e.g.
treaties dealing with boundaries between States.
Notes:
71
Interpretation of Treaties
A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in
the light of its object and purpose. There are,
however, NO TECHNICAL RULES.
CANONS OF INTERPRETATION
Generally regarded by publicists as applicable to
treaties consist largely of the application of
principles of logic, equity and common sense to
the text for the purpose of discovering its
meaning.
TRAVAUX PREPARATOIRES
Preparatory works as a method of historical
interpretation of a treaty. These works are
examined for the purpose of ascertaining the
intention of the parties.
TERMINATION OF TREATIES
Most Common Causes:
a)
Termination of the treaty or withdrawal of a
party in accordance with the terms of the
treaty;
b) In bipartite treaties, the extinction of one of
the parties terminates the treaty. Moreover,
when the rights and obligations under the
treaty would not devolve upon the State that
may succeed to the extinct State.
c)
Mutual agreement of ALL the parties;
d) Denunciation of the treaty by one of the
parties. RIGHT OF DENUNCIATION the right
to give notice of termination or withdrawal
which must be exercised if provided for in the
treaty itself or impliedly;
e)
Supervening impossibility of performance;
f)
Conclusion of a subsequent inconsistent
treaty between the same parties;
g)
Violation of the treaty;
h)
Doctrine of RSS;
i)
War between the parties war does not
abrogate ipso facto all treaties between the
belligerents.
j)
Severance of diplomatic or consular
relations;
k)
Emergence of a new peremptory norm
contrary to the existing treaty.
l)
Voidance of the treaty because of defects in
its conclusion or incompatibility with
international law or the UN Charter.
B. STATE RESPONSIBILITY FOR INJURY TO ALIENS
Rule: NO State is under obligation to admit aliens.
This flows from sovereignty.
Exception: If there is a treaty stipulation
imposing that duty.
Reconduction
It means the forcible conveying of aliens. As a
State cannot refuse to receive such of its subjects
as are expelled from abroad, the home State of
such aliens as are reconducted has the obligation
to receive them.
Position of Aliens After Reception
When aliens are received, they are subject to the
municipal laws of the receiving State.
a) Transient b) Domiciled/Residents domicile creates a
sort of qualified or temporary allegiance.
Subjected to restrictions not usually
imposed against transient aliens.
Notes:
72
a)
b)
c)
d)
Function
To provide, in the general world interest,
adequate protection for the stranger, to the end
that travel, trade and intercourse may be
facilitated.
Essential Elements:
1) an act or omission in violation of
international law
2) which is imputable to the State
3) which results in injury to the claimant
either directly or indirectly through
damage to a national.
Acts or Omissions Imputable to the State
It is necessary to distinguish acts of private
individuals and those of government officials and
organs.
Denial of Justice
by
the
the
the
Notes:
73
These
two
doctrines
are
used
interchangeably
by
authors
and
commentators without any effort to
make a distinction between the two. It
may be treated alike.
Naturalization
a. naturalization proceedings
b. marriage
c. legitimation
d. option
e. acquisition of domicile
f. appointment as
government official
3)
Notes:
74
3)
4)
Exceptions:
a)
When the injury is inflicted directly
by the State such as when its diplomats are
attacked.
b)
When there are no remedies to
exhaust;
c)
The application for remedies would
result in no redress.
No waiver
The claim belongs to the State and not to the
individual. Thus, waiver of individual does not
preclude the State to pursue the claim.
CALVO CLAUSE
Named after an Argentinean lawyer and
statesman who invented it stipulating that
the alien agrees in advance not to seek
diplomatic intervention.
Notes:
75
Nature
It is well established in international law that no
State can, without its consent, be compelled to
submit its disputes with other States either to
mediation or arbitration, or to any other kind of
pacific settlement (PS). (PCIJ on STATUS OF
EASTERN CARELIA.)
Dispute is a disagreement on a point of law or
fact, a conflict of legal views or interests between
two persons. The mere denial of the existence of
a dispute does not prove its non-existence
because disputes are matters for objective
determination.
International Dispute if the dispute arises
between two or more States.
The charging of one State and the denial of
another of the dispute as charged, creates
an international dispute as there has thus
arisen a situation in which the two sides hold
clearly opposite views concerning the
questions of the performance or nonperformance of their treaty obligations.
Confronted with such a situation, the Court
must conclude that international disputes
have arisen. ICJ Reports 1950
Legal Dispute the following are deemed
constitutive of a legal dispute:
i.
interpretation of a treaty;
ii.
any question of international law;
iii.
the existence of any fact which, if
established, would constitute a breach of
an international obligation;
iv.
Dispute v. Situation
A dispute can properly be considered as a
disagreement on a matter at issue between two
or more States which has reached a stage at
which the parties have formulated claims and
counterclaims sufficiently definite to be passed
upon by a court or other body set up for the
purpose of pacific settlement. A situation, by
contrast, is a state of affairs which has not yet
assumed the nature of conflict between the
parties but which may, though not necessarily,
come to have that character.
Optional Clause
[OPTIONAL JURISDICTION CLAUSE]
The following are deemed legal disputes:
1. Interpretation of a treaty;
2. Any question of international law;
3. The existence of any fact which, if
established, would constitute a breach of
an international obligation; and
4. The nature or extent of the reparation to
be made for the breach of an
international obligation.
TYPES OF Pacific Settlement
I. Negotiation
The legal and orderly administrative process by
which governments, in the exercise of their
unquestionable powers, conduct their relations
with one another and discuss, adjust and settle
their differences.
The chief and most common method of settling
international disputes.
By this method, the
parties seek a solution of their differences by
direct exchange of views between themselves.
This is the very essence of diplomacy.
II. Good Offices
An attempt of a third party to bring together the
disputing States to effect a settlement of their
disputes. This is NOT to be regarded as an
unfriendly act.
Tender of good office
A tender of good office may be made by:
a) Third State
b) international organs such as the UN;
or
c) Individuals or eminent citizens of a
third State.
III. Mediation
This is the action of a third party in bringing the
parties to a dispute together and helping them in
a more or less informal way to find a basis for the
settlement of their dispute.
Mediation v. Good Offices
Notes:
76
Princ
iple of Free Determination this
principle applies to the competence of
the arbitral tribunal, the law to be
applied and the procedure to be
followed.
Choice of Arbitrators the arbitrators
should be either freely selected by the
parties or, at least, the parties should
have been given the opportunity of a free
choice of arbitrators.
States are under no legal obligation to
arbitrate their disputes.
Notes:
77
Consists of
illegal act
retaliation
inequitable
of force.
Consists of acts
which
would
ordinarily
be
illegal.
Consists
of
retaliatory conduct
which is legitimate
or
is
not
in
violation
of
international law.
Generally
resorted to by a
State
in
consequence of
an
act
or
omission
of
another
State
which
under
international law
constitutes
an
international
delinquency.
Forms of Reprisals
a) military occupation
b) display of force
c) naval bombardment
d) seizure of ships at sea
e) seizure of properties of nationals of the
delinquent State
f) freezing of assets of its citizens
g) embargo
h) boycott
i) pacific blockade
Letters Of Marque or Special Reprisals
Act of a State granting their subjects who
could not obtain redress for injury suffered
abroad, authorizing them to perform acts of
self-help against the offending State or its
nationals for the purpose of obtaining
satisfaction for the wrong sustained.
IV. Embargo (Sequestration / Hostile Embargo)
This is originally a form of reprisal consisting of
forcible detention of the vessels of the offending
State or of its nationals which happened to be
lying in the ports of the injured or aggrieved
State. Later, the practice was extended to such
vessels also as were seized in the high seas, or
even within the territorial waters of the offending
State.
Notes:
78
Notes:
79
c)
uti possidetis
Each belligerent is regarded as legally
entitled to such property as are actually in its
possession at the time hostilities ceased.
status quo ante bellum
Notes:
80
1.
2.
3.
4.
5.
6.
Rupture
of
diplomatic
relations and termination of consular
activities
On enemy persons
On enemy properties
On trading and intercourse
On contracts
On treaties
c)
d)
e)
Notes:
81
(4)
to provide facilities
for religious, intellectual and physical
activities;
(5)
to permit the use of
their personal properties and financial
resources;
(6)
to permit a degree of
communication with the outside world;
(7)
the
refrain
from
excessive or inhuman penal and
disciplinary measures;
(8)
to make transfers
only in a humane manner;
(9)
to record and duly
certify deaths, and to inquire into deaths
other than from natural causes;
(10)
to release internees
when the reasons for internment cease or
when hostilities terminate.
1949
GENEVA CONVENTION
Locus standi during occupation
The practice of states are varied. Some
consider the enemy persons ex lege during
the whole duration of the hostilities. Some
allowed them to sue and be sued subject to
so many exceptions. In the Philippines, when
an enemy subject is unable to sue during war,
a right of action which has accrued to him
before the war is deemed suspended for the
duration of the war. Further, war suspends
the operation of the statute of limitations.
On enemy property
In general, goods belonging to enemy persons are
considered enemy property.
public confiscated
CONDUCT OF WARFARE
(See movie: The Patriot)
3 Basic Principles of IHL:
1. Military necessity
2. Humanity
3. Chivalry
Doctrine of Military Necessity
A belligerent is justified in resorting to all
measures which are indispensable to bring
about the complete submission of the enemy,
as soon as possible, by means of regulated
violence not forbidden by conventional or
customary rules of war and with the least
possible loss of lives, time and money.
Principle of Humanity
[THE ETHICS OF WARFARE]
Forbid the use of weapons which cause
indiscriminate destruction or injury or inflict
unnecessary pain or suffering.
Principle of Chivalry
This principle requires the belligerents to give
proper
warning
before
launching
a
bombardment or prohibit the use of perfidy in
the conduct of hostilities. This principle does
not prohibit espionage.
Q: Who constitute combatants?
A: They are the following:
1) Regular Forces (RF) the army, navy, and
air force. Non-combatant members of the
armed forces include: chaplains, army
services and medical personnel.
2) Irregular Forces (IF) also known as
franc-tireurs consist of militia and voluntary
corps. They are treated as lawful combatants
provided that:
a)
b)
c)
d)
Notes:
82
1)
Levee en masse
Takes place when the population
spontaneously rises in mass to resist the
invader. They enjoy privileges due to
armed forces.
2)
3)
4)
5)
6)
7)
8)
9)
FORBIDDEN METHODS
No Quarter such orders implying that no
survivors are to be left after an attack.
Starvation
Reprisals are not reprisals as a form of selfhelp, instead, belligerent reprisals are of
a completely different type. These are
acts of vengeance by a belligerent
directed against groups of civilians or
POWs in retaliation of or response to an
attack by other civilians against the
belligerent.
Perfidy on treachery this includes:
a) Improper use of white flag
b) Feigning surrender or pretending to
have been wounded or to have a
civilian status
c) Using the uniform of the enemy
d) Claiming neutral status
e) Falsely flying the Red Cross flag
f)
Making hospitals, churches and the
like as shield from attack.
g) Area bombing
Notes:
83
Notes:
84
A condition that
applies in peace
and war
A status created
under international
law, by means of a
stand on the part
of a state not to
side with any of
the parties at war
A status created
by means of a
treaty
Brought about by a
unilateral
declaration
by
neutral state
Cannot
be
effected
by
unilateral
act
only but must be
recognized
by
other states.
2)
3)
Notes:
85
Notes:
86
Notes:
ACKNOWLEDGMENTS / ATTRIBUTIONS
THIS IS A PRODUCT OF LIBERTAS ET IUSTICIA
COMPILED BY ITS ACADEMICS COMMITTEE 20072008. ALTHOUGH THIS IS MAINLY OUTLINED FOR
PUBLIC INTERNATIONAL LAW CLASS UNDER ATTY.
EDWIN REY SANDOVAL, THIS MATERIAL MAY ALSO
BE OF GOOD USE UNDER OTHER PROFESSORS
HANDLING THE SAME SUBJECT AS WELL AS THOSE
TAKING REVIEW SUBJECT ON POLITICAL AND
PUBLIC INTERNATIONAL LAW.
THERE ARE DIFFERENT DISCUSSIONS WHICH WERE
CULLED FROM AUTHORS ASIDE FROM ATTY.
SANDOVALS LECTURES AND CASES SUCH AS
SALONGA & YAP AND CRUZ.
WE ENCOURAGE THE FREE CIRCULATION OF THIS
MATERIAL AMONGST THE RANKS OF STUDENTS,
BARRISTERS, PROFESSORS, LAWYERS, LEGAL
ENTHUSIASTS AND THE LIKE.
WE SALUTE ATTY. SANDOVAL FOR HIS NEVER
FADING BRILLIANCE IN THE FIELD OF POLITICAL
LAW, AND TO WHOM WE OFFER THIS MATERIAL
WITH HUMILITY AND PRIDE.
THIS IS PURELY FOR ACADEMIC PURPOSES AND IS
STRICTLY NOT FOR SALE.
END
87
c.
Notes:
CONSEQUENCES ON THE
CONSEQUENCES ON THE
VESSEL
CARGO
1.
2.
Breach of
Blockade
Confiscated or brought to
a prize court
Carriage of
Contraband
Performance of
Unneutral
Service
Same as in Carriage of
Contrabands
confiscated/condemned
a)
it consists of contrabands; or
b)
2.
2007 BAR. Lawrence is a Filipino computer expert based in Manila who invented a virus that destroys all the files
stored in a computer. Assume that in May 2005, this virus spread all over the world and caused $50 million in damage
to property in the United States, and that in June 2005, he was criminally charged before United States courts under
their anti-hacker law. Assume that in July 2005, the Philippines adopted its own anti-hacker law, to strengthen
existing sanctions already provided against damage to property. The United States has requested the Philippines to
extradite him to US courts under the RP-US Extradition Treaty.
a.
b.
Is the Philippines under an obligation to extradite Lawrence? State the applicable rule and its rationale.
Assume that the extradition request was made after the Philippines adopted its anti-hacker legislation. Will
that change your answer?
2007 BAR. In 1993, historians confirmed that during World War II, "comfort women" were forced into serving the
Japanese military. These women were either abducted or lured by false promises of jobs as cooks or waitresses, and
eventually forced against their will to have sex with Japanese soldiers on a daily basis during the course of the war,
and often suffered from severe beatings and venereal diseases. The Japanese government contends that the "comfort
stations" were run as "onsite military brothels" (or prostitution houses) by private operators, and not by the Japanese
military. There were many Filipina "comfort women."
a.
b.
c.
Name at least one basic principle or norm of international humanitarian law that was violated by the
Japanese military in the treatment of the "comfort women."
The surviving Filipina "comfort women" demand that the Japanese government apologize and pay them
compensation. However, under the 1951 San Francisco Peace Agreement -the legal instrument that ended
the state of war between Japan and the Allied Forces -all the injured states, including the Philippines,
received war reparations and, in return, waived all claims against Japan arising from the war. Is that a
valid defense?
The surviving Filipina "comfort women" sue the Japanese government for damages before Philippine courts.
Will that case prosper?
This is a petition for certiorari under Rule 65 of the Rules of Court seeking to (1) set aside the Resolution dated January
issued by the Special First Division of the Sandiganbayan in Civil Case No. 0141 entitled Republic of the Philippines vs.
Ferdinand E. Marcos, et. al., and (2) reinstate its earlier decision dated September 19, 2000 which forfeited in favor of pe
Republic of the Philippines (Republic) the amount held in escrow in the Philippine National Bank (PNB) in the aggregate
of US$658,175,373.60 as of January 31, 2002.
BACKGROUND OF THE CASE
On December 17, 1991, petitioner Republic, through the Presidential Commission on Good Government (PCGG), repres
by the Office of the Solicitor General (OSG), filed a petition for forfeiture before the Sandiganbayan, docketed as Civil Ca
0141 entitled Republic of the Philippines vs. Ferdinand E. Marcos, represented by his Estate/Heirs and Imelda R. Marco
pursuant to RA 13791 in relation to Executive Order Nos. 1,2 2,3 144 and 14-A.5
In said case, petitioner sought the declaration of the aggregate amount of US$356 million (now estimated to be more tha
US$658 million inclusive of interest) deposited in escrow in the PNB, as ill-gotten wealth. The funds were previously held
following five account groups, using various foreign foundations in certain Swiss banks:
(1) Azio-Verso-Vibur Foundation accounts;
(2) Xandy-Wintrop: Charis-Scolari-Valamo-Spinus- Avertina Foundation accounts;
(3) Trinidad-Rayby-Palmy Foundation accounts;
(4) Rosalys-Aguamina Foundation accounts and
(5) Maler Foundation accounts.
In addition, the petition sought the forfeiture of US$25 million and US$5 million in treasury notes which exceeded the Ma
couple's salaries, other lawful income as well as income from legitimately acquired property. The treasury notes are froze
Central Bank of the Philippines, now Bangko Sentral ng Pilipinas, by virtue of the freeze order issued by the PCGG.
On October 18, 1993, respondents Imelda R. Marcos, Maria Imelda M. Manotoc, Irene M. Araneta and Ferdinand R. Ma
filed their answer.
Before the case was set for pre-trial, a General Agreement and the Supplemental Agreements 6 dated December 28, 199
executed by the Marcos children and then PCGG Chairman Magtanggol Gunigundo for a global settlement of the assets
Marcos family. Subsequently, respondent Marcos children filed a motion dated December 7, 1995 for the approval of said
agreements and for the enforcement thereof.
The General Agreement/Supplemental Agreements sought to identify, collate, cause the inventory of and distribute all as
presumed to be owned by the Marcos family under the conditions contained therein. The aforementioned General Agree
specified in one of its premises or "whereas clauses" the fact that petitioner "obtained a judgment from the Swiss Federa
Tribunal on December 21, 1990, that the Three Hundred Fifty-six Million U.S. dollars (US$356 million) belongs in principl
Republic of the Philippines provided certain conditionalities are met x x x." The said decision of the Swiss Federal Supre
affirmed the decision of Zurich District Attorney Peter Consandey, granting petitioner's request for legal assistance. 7 Con
declared the various deposits in the name of the enumerated foundations to be of illegal provenance and ordered that th
frozen to await the final verdict in favor of the parties entitled to restitution.
Hearings were conducted by the Sandiganbayan on the motion to approve the General/Supplemental Agreements. Resp
Ferdinand, Jr. was presented as witness for the purpose of establishing the partial implementation of said agreements.
On October 18, 1996, petitioner filed a motion for summary judgment and/or judgment on the pleadings. Respondent Mr
Marcos filed her opposition thereto which was later adopted by respondents Mrs. Manotoc, Mrs. Araneta and Ferdinand,
In its resolution dated November 20, 1997, the Sandiganbayan denied petitioner's motion for summary judgment and/or
on the pleadings on the ground that the motion to approve the compromise agreement "(took) precedence over the motio
summary judgment."
Respondent Mrs. Marcos filed a manifestation on May 26, 1998 claiming she was not a party to the motion for approval o
Compromise Agreement and that she owned 90% of the funds with the remaining 10% belonging to the Marcos estate.
Meanwhile, on August 10, 1995, petitioner filed with the District Attorney in Zurich, Switzerland, an additional request for
immediate transfer of the deposits to an escrow account in the PNB. The request was granted. On appeal by the Marcos
Swiss Federal Supreme Court, in a decision dated December 10, 1997, upheld the ruling of the District Attorney of Zurich
granting the request for the transfer of the funds. In 1998, the funds were remitted to the Philippines in escrow. Subseque
respondent Marcos children moved that the funds be placed in custodia legis because the deposit in escrow in the PNB
allegedly in danger of dissipation by petitioner. The Sandiganbayan, in its resolution dated September 8, 1998, granted t
motion.
After the pre-trial and the issuance of the pre-trial order and supplemental pre-trial order dated October 28, 1999 and Jan
2000, respectively, the case was set for trial. After several resettings, petitioner, on March 10, 2000, filed another motion
summary judgment pertaining to the forfeiture of the US$356 million, based on the following grounds:
I
THE ESSENTIAL FACTS WHICH WARRANT THE FORFEITURE OF THE FUNDS SUBJECT OF THE
PETITION UNDER R.A. NO. 1379 ARE ADMITTED BY RESPONDENTS IN THEIR PLEADINGS AND O
SUBMISSIONS MADE IN THE COURSE OF THE PROCEEDING.
II
RESPONDENTS' ADMISSION MADE DURING THE PRE-TRIAL THAT THEY DO NOT HAVE ANY INTE
OR OWNERSHIP OVER THE FUNDS SUBJECT OF THE ACTION FOR FORFEITURE TENDERS NO
GENUINE ISSUE OR CONTROVERSY AS TO ANY MATERIAL FACT IN THE PRESENT ACTION, THU
WARRANTING THE RENDITION OF SUMMARY JUDGMENT.8
Petitioner contended that, after the pre-trial conference, certain facts were established, warranting a summary judgment
funds sought to be forfeited.
Respondent Mrs. Marcos filed her opposition to the petitioner's motion for summary judgment, which opposition was late
adopted by her co-respondents Mrs. Manotoc, Mrs. Araneta and Ferdinand, Jr.
On March 24, 2000, a hearing on the motion for summary judgment was conducted.
In a decision9 dated September 19, 2000, the Sandiganbayan granted petitioner's motion for summary judgment:
CONCLUSION
There is no issue of fact which calls for the presentation of evidence.
The Motion for Summary Judgment is hereby granted.
The Swiss deposits which were transmitted to and now held in escrow at the PNB are deemed unlawfully
acquired as ill-gotten wealth.
DISPOSITION
WHEREFORE, judgment is hereby rendered in favor of the Republic of the Philippines and against the
respondents, declaring the Swiss deposits which were transferred to and now deposited in escrow at the
Philippine National Bank in the total aggregate value equivalent to US$627,608,544.95 as of August 31, 2
together with the increments thereof forfeited in favor of the State. 10
Respondent Mrs. Marcos filed a motion for reconsideration dated September 26, 2000. Likewise, Mrs. Manotoc and Ferd
Jr. filed their own motion for reconsideration dated October 5, 2000. Mrs. Araneta filed a manifestation dated October 4,
adopting the motion for reconsideration of Mrs. Marcos, Mrs. Manotoc and Ferdinand, Jr.
Subsequently, petitioner filed its opposition thereto.
In a resolution11 dated January 31, 2002, the Sandiganbayan reversed its September 19, 2000 decision, thus denying pe
motion for summary judgment:
CONCLUSION
In sum, the evidence offered for summary judgment of the case did not prove that the money in the Swiss
belonged to the Marcos spouses because no legal proof exists in the record as to the ownership by the M
of the funds in escrow from the Swiss Banks.
The basis for the forfeiture in favor of the government cannot be deemed to have been established and o
judgment thereon, perforce, must also have been without basis.
WHEREFORE, the decision of this Court dated September 19, 2000 is reconsidered and set aside, and t
is now being set for further proceedings.12
Hence, the instant petition. In filing the same, petitioner argues that the Sandiganbayan, in reversing its September 19, 2
decision, committed grave abuse of discretion amounting to lack or excess of jurisdiction considering that -I
PETITIONER WAS ABLE TO PROVE ITS CASE IN ACCORDANCE WITH THE REQUISITES OF SECT
AND 3 OF R.A. NO. 1379:
SUMMARY JUDGMENT IS PROPER SINCE PRIVATE RESPONDENTS HAVE NOT RAISED ANY GEN
ISSUE OF FACT CONSIDERING THAT:
PRIVATE RESPONDENTS ARE DEEMED TO HAVE WAIVED THEIR OBJECTION TO THE AUTHENTIC
THE SWISS FEDERAL SUPREME COURT DECISIONS.13
Petitioner, in the main, asserts that nowhere in the respondents' motions for reconsideration and supplemental motion fo
reconsideration were the authenticity, accuracy and admissibility of the Swiss decisions ever challenged. Otherwise state
incorrect for the Sandiganbayan to use the issue of lack of authenticated translations of the decisions of the Swiss Feder
Supreme Court as the basis for reversing itself because respondents themselves never raised this issue in their motions
reconsideration and supplemental motion for reconsideration. Furthermore, this particular issue relating to the translation
Swiss court decisions could not be resurrected anymore because said decisions had been previously utilized by the
Sandiganbayan itself in resolving a "decisive issue" before it.
Petitioner faults the Sandiganbayan for questioning the non-production of the authenticated translations of the Swiss Fed
Supreme Court decisions as this was a marginal and technical matter that did not diminish by any measure the conclusiv
and strength of what had been proven and admitted before the Sandiganbayan, that is, that the funds deposited by the M
constituted ill-gotten wealth and thus belonged to the Filipino people.
In compliance with the order of this Court, Mrs. Marcos filed her comment to the petition on May 22, 2002. After several m
for extension which were all granted, the comment of Mrs. Manotoc and Ferdinand, Jr. and the separate comment of Mrs
Araneta were filed on May 27, 2002.
Mrs. Marcos asserts that the petition should be denied on the following grounds:
A.
PETITIONER HAS A PLAIN, SPEEDY, AND ADEQUATE REMEDY AT THE SANDIGANBAYAN.
B.
THE SANDIGANBAYAN DID NOT ABUSE ITS DISCRETION IN SETTING THE CASE FOR FURTHER
PROCEEDINGS.14
Mrs. Marcos contends that petitioner has a plain, speedy and adequate remedy in the ordinary course of law in view of th
resolution of the Sandiganbayan dated January 31, 2000 directing petitioner to submit the authenticated translations of th
decisions. Instead of availing of said remedy, petitioner now elevates the matter to this Court. According to Mrs. Marcos,
petition for certiorari which does not comply with the requirements of the rules may be dismissed. Since petitioner has a
speedy and adequate remedy, that is, to proceed to trial and submit authenticated translations of the Swiss decisions, its
before this Court must be dismissed. Corollarily, the Sandiganbayan's ruling to set the case for further proceedings cann
should not be considered a capricious and whimsical exercise of judgment.
Likewise, Mrs. Manotoc and Ferdinand, Jr., in their comment, prayed for the dismissal of the petition on the grounds that
(A)
BY THE TIME PETITIONER FILED ITS MOTION FOR SUMMARY JUDGMENT ON 10 MARCH 2000, IT
ALREADY BARRED FROM DOING SO.
(1) The Motion for Summary Judgment was based on private respondents' Answer and other documents
long been in the records of the case. Thus, by the time the Motion was filed on 10 March 2000, estoppel
laches had already set in against petitioner.
(2) By its positive acts and express admissions prior to filing the Motion for Summary Judgment on 10 Ma
1990, petitioner had legally bound itself to go to trial on the basis of existing issues. Thus, it clearly waive
whatever right it had to move for summary judgment.
(B)
EVEN ASSUMING THAT PETITIONER WAS NOT LEGALLY BARRED FROM FILING THE MOTION FO
SUMMARY JUDGMENT, THE SANDIGANBAYAN IS CORRECT IN RULING THAT PETITIONER HAS N
ESTABLISHED A PRIMA FACIE CASE FOR THE FORFEITURE OF THE SWISS FUNDS.
(1) Republic Act No. 1379, the applicable law, is a penal statute. As such, its provisions, particularly the e
elements stated in section 3 thereof, are mandatory in nature. These should be strictly construed against
petitioner and liberally in favor of private respondents.
(2) Petitioner has failed to establish the third and fourth essential elements in Section 3 of R.A. 1379 with
to the identification, ownership, and approximate amount of the property which the Marcos couple alleged
"acquired during their incumbency".
(a) Petitioner has failed to prove that the Marcos couple "acquired" or own the Swiss funds.
(b) Even assuming, for the sake of argument, that the fact of acquisition has been proven, petition
categorically admitted that it has no evidence showing how much of the Swiss funds was acquire
the incumbency" of the Marcos couple from 31 December 1965 to 25 February 1986.
(3) In contravention of the essential element stated in Section 3 (e) of R.A. 1379, petitioner has fa
establish the other proper earnings and income from legitimately acquired property of the Marcos
over and above their government salaries.
(4) Since petitioner failed to prove the three essential elements provided in paragraphs (c) 15 (d),16 and (e)1
Section 3, R.A. 1379, the inescapable conclusion is that the prima facie presumption of unlawful acquisiti
Swiss funds has not yet attached. There can, therefore, be no premature forfeiture of the funds.
(C)
IT WAS ONLY BY ARBITRARILY ISOLATING AND THEN TAKING CERTAIN STATEMENTS MADE BY P
RESPONDENTS OUT OF CONTEXT THAT PETITIONER WAS ABLE TO TREAT THESE AS "JUDICIAL
ADMISSIONS" SUFFICIENT TO ESTABLISH A PRIMA FACIE AND THEREAFTER A CONCLUSIVE CAS
JUSTIFY THE FORFEITURE OF THE SWISS FUNDS.
(1) Under Section 27, Rule 130 of the Rules of Court, the General and Supplemental Agreements, as we
other written and testimonial statements submitted in relation thereto, are expressly barred from being ad
in evidence against private respondents.
(2) Had petitioner bothered to weigh the alleged admissions together with the other statements on record
would be a demonstrable showing that no such "judicial admissions" were made by private respondents.
(D)
SINCE PETITIONER HAS NOT (YET) PROVEN ALL THE ESSENTIAL ELEMENTS TO ESTABLISH A P
FACIE CASE FOR FORFEITURE, AND PRIVATE RESPONDENTS HAVE NOT MADE ANY JUDICIAL
ADMISSION THAT WOULD HAVE FREED IT FROM ITS BURDEN OF PROOF, THE SANDIGANBAYAN
NOT COMMIT GRAVE ABUSE OF DISCRETION IN DENYING THE MOTION FOR SUMMARY JUDGME
CERTIORARI, THEREFORE, DOES NOT LIE, ESPECIALLY AS THIS COURT IS NOT A TRIER OF FAC
For her part, Mrs. Araneta, in her comment to the petition, claims that obviously petitioner is unable to comply with a very
requirement of respondent Sandiganbayan. The instant petition is allegedly an attempt to elevate to this Court matters, is
and incidents which should be properly threshed out at the Sandiganbayan. To respondent Mrs. Araneta, all other matter
that pertaining to the authentication of the translated Swiss Court decisions, are irrelevant and impertinent as far as this C
concerned. Respondent Mrs. Araneta manifests that she is as eager as respondent Sandiganbayan or any interested pe
have the Swiss Court decisions officially translated in our known language. She says the authenticated official English ve
the Swiss Court decisions should be presented. This should stop all speculations on what indeed is contained therein. Th
respondent Mrs. Araneta prays that the petition be denied for lack of merit and for raising matters which, in elaborated fa
are impertinent and improper before this Court.
PROPRIETY OF PETITIONER'S ACTION FOR CERTIORARI
But before this Court discusses the more relevant issues, the question regarding the propriety of petitioner Republic's ac
certiorari under Rule 6519 of the 1997 Rules of Civil Procedure assailing the Sandiganbayan Resolution dated January 21
should be threshed out.
At the outset, we would like to stress that we are treating this case as an exception to the general rule governing petition
certiorari. Normally, decisions of the Sandiganbayan are brought before this Court under Rule 45, not Rule 65. 20 But whe
case is undeniably ingrained with immense public interest, public policy and deep historical repercussions, certiorari is al
notwithstanding the existence and availability of the remedy of appeal. 21
One of the foremost concerns of the Aquino Government in February 1986 was the recovery of the unexplained or ill-got
wealth reputedly amassed by former President and Mrs. Ferdinand E. Marcos, their relatives, friends and business asso
Thus, the very first Executive Order (EO) issued by then President Corazon Aquino upon her assumption to office after th
of the Marcoses was EO No. 1, issued on February 28, 1986. It created the Presidential Commission on Good Governm
(PCGG) and charged it with the task of assisting the President in the "recovery of all ill-gotten wealth accumulated by for
President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, whether located in th
Philippines or abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled
them during his administration, directly or through nominees, by taking undue advantage of their public office and/or usin
powers, authority, influence, connections or relationship." The urgency of this undertaking was tersely described by this C
Republic vs. Lobregat22:
surely x x x an enterprise "of great pith and moment"; it was attended by "great expectations"; it was initia
only out of considerations of simple justice but also out of sheer necessity - the national coffers were emp
nearly so.
In all the alleged ill-gotten wealth cases filed by the PCGG, this Court has seen fit to set aside technicaliti
formalities that merely serve to delay or impede judicious resolution. This Court prefers to have such cas
resolved on the merits at the Sandiganbayan. But substantial justice to the Filipino people and to all parti
concerned, not mere legalisms or perfection of form, should now be relentlessly and firmly pursued. Almo
decades have passed since the government initiated its search for and reversion of such ill-gotten wealth
definitive resolution of such cases on the merits is thus long overdue. If there is proof of illegal acquisition
accumulation, misappropriation, fraud or illicit conduct, let it be brought out now. Let the ownership of the
and other assets be finally determined and resolved with dispatch, free from all the delaying technicalities
annoying procedural sidetracks.23
We thus take cognizance of this case and settle with finality all the issues therein.
ISSUES BEFORE THIS COURT
The crucial issues which this Court must resolve are: (1) whether or not respondents raised any genuine issue of fact wh
would either justify or negate summary judgment; and (2) whether or not petitioner Republic was able to prove its case fo
forfeiture in accordance with Sections 2 and 3 of RA 1379.
(1) THE PROPRIETY OF SUMMARY JUDGMENT
We hold that respondent Marcoses failed to raise any genuine issue of fact in their pleadings. Thus, on motion of petition
Republic, summary judgment should take place as a matter of right.
In the early case of Auman vs. Estenzo 24, summary judgment was described as a judgment which a court may render be
but after both parties have pleaded. It is ordered by the court upon application by one party, supported by affidavits, depo
or other documents, with notice upon the adverse party who may in turn file an opposition supported also by affidavits,
depositions or other documents. This is after the court summarily hears both parties with their respective proofs and find
there is no genuine issue between them. Summary judgment is sanctioned in this jurisdiction by Section 1, Rule 35 of the
Rules of Civil Procedure:
SECTION 1. Summary judgment for claimant.- A party seeking to recover upon a claim, counterclaim, or
claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been serv
move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all o
part thereof.25
Summary judgment is proper when there is clearly no genuine issue as to any material fact in the action. 26 The theory of
summary judgment is that, although an answer may on its face appear to tender issues requiring trial, if it is demonstrate
affidavits, depositions or admissions that those issues are not genuine but sham or fictitious, the Court is justified in disp
with the trial and rendering summary judgment for petitioner Republic.
The Solicitor General made a very thorough presentation of its case for forfeiture:
xxx
4. Respondent Ferdinand E. Marcos (now deceased and represented by his Estate/Heirs) was a public o
several decades continuously and without interruption as Congressman, Senator, Senate President and
President of the Republic of the Philippines from December 31, 1965 up to his ouster by direct action of t
people of EDSA on February 22-25, 1986.
5. Respondent Imelda Romualdez Marcos (Imelda, for short) the former First Lady who ruled with FM du
14-year martial law regime, occupied the position of Minister of Human Settlements from June 1976 up to
peaceful revolution in February 22-25, 1986. She likewise served once as a member of the Interim Batas
Pambansa during the early years of martial law from 1978 to 1984 and as Metro Manila Governor in conc
capacity as Minister of Human Settlements. x x x
xxx
xxx
xxx
11. At the outset, however, it must be pointed out that based on the Official Report of the Minister of Budg
total salaries of former President Marcos as President form 1966 to 1976 was P60,000 a year and from 1
1985, P100,000 a year; while that of the former First Lady, Imelda R. Marcos, as Minister of Human Settl
from June 1976 to February 22-25, 1986 was P75,000 a year xxx.
ANALYSIS OF RESPONDENTS LEGITIMATE INCOME
xxx
12. Based on available documents, the ITRs of the Marcoses for the years 1965-1975 were filed under T
Identification No. 1365-055-1. For the years 1976 until 1984, the returns were filed under Tax Identificatio
6221-J 1117-A-9.
13. The data contained in the ITRs and Balance Sheet filed by the "Marcoses are summarized and attach
the reports in the following schedules:
Schedule A:
Schedule of Income (Annex "T" hereof);
Schedule B:
Schedule of Income Tax Paid (Annex "T-1" hereof);
Schedule C:
Schedule of Net Disposable Income (Annex "T-2" hereof);
Schedule D:
Schedule of Networth Analysis (Annex "T-3" hereof).
14. As summarized in Schedule A (Annex "T" hereof), the Marcoses reported P16,408,442.00 or
US$2,414,484.91 in total income over a period of 20 years from 1965 to 1984. The sources of income are
follows:
Official Salaries -
P 2,627,581.00 -
16.01%
Legal Practice
11,109,836.00 -
67.71%
Farm Income
149,700.00 -
.91%
Others
2,521,325.00 -
15.37%
Total
P16,408,442.00 - 100.00%
15. FM's official salary pertains to his compensation as Senate President in 1965 in the amount of P15,93
and P1,420,000.00 as President of the Philippines during the period 1966 until 1984. On the other hand,
reported salaries and allowances only for the years 1979 to 1984 in the amount of P1,191,646.00. The re
indicate that the reported income came from her salary from the Ministry of Human Settlements and allow
from Food Terminal, Inc., National Home Mortgage Finance Corporation, National Food Authority Counci
Rail Transit Authority and Home Development Mutual Fund.
16. Of the P11,109,836.00 in reported income from legal practice, the amount of P10,649,836.00 or 96%
represents "receivables from prior years" during the period 1967 up to 1984.
17. In the guise of reporting income using the cash method under Section 38 of the National Internal Rev
Code, FM made it appear that he had an extremely profitable legal practice before he became a Presiden
being barred by law from practicing his law profession during his entire presidency) and that, incredibly, h
still receiving payments almost 20 years after. The only problem is that in his Balance Sheet attached to h
ITR immediately preceeding his ascendancy to the presidency he did not show any Receivables from clie
much less the P10,65-M that he decided to later recognize as income. There are no documents showing
withholding tax certificates. Likewise, there is nothing on record that will show any known Marcos client a
no known law office. As previously stated, his networth was a mere P120,000.00 in December, 1965. The
income tax returns of FM and Imelda cannot, therefore, conceal the skeletons of their kleptocracy.
18. FM reported a total of P2,521,325.00 as Other Income for the years 1972 up to 1976 which he referre
his return as "Miscellaneous Items" and "Various Corporations." There is no indication of any payor of the
dividends or earnings.
19. Spouses Ferdinand and Imelda did not declare any income from any deposits and placements which
subject to a 5% withholding tax. The Bureau of Internal Revenue attested that after a diligent search of pe
records on file with the Records Division, they did not find any records involving the tax transactions of sp
Ferdinand and Imelda in Revenue Region No. 1, Baguio City, Revenue Region No.4A, Manila, Revenue
No. 4B1, Quezon City and Revenue No. 8, Tacloban, Leyte. Likewise, the Office of the Revenue Collecto
Batac. Further, BIR attested that no records were found on any filing of capital gains tax return involving s
FM and Imelda covering the years 1960 to 1965.
20. In Schedule B, the taxable reported income over the twenty-year period was P14,463,595.00 which
represents 88% of the gross income. The Marcoses paid income taxes totaling P8,233,296.00 or
US$1,220,667.59. The business expenses in the amount of P861,748.00 represent expenses incurred fo
subscription, postage, stationeries and contributions while the other deductions in the amount of P567,09
represents interest charges, medicare fees, taxes and licenses. The total deductions in the amount of
P1,994,845.00 represents 12% of the total gross income.
21. In Schedule C, the net cumulative disposable income amounts to P6,756,301.00 or US$980,709.77.
the amount that represents that portion of the Marcoses income that is free for consumption, savings and
investments. The amount is arrived at by adding back to the net income after tax the personal and additio
exemptions for the years 1965-1984, as well as the tax-exempt salary of the President for the years 1966
1972.
22. Finally, the networth analysis in Schedule D, represents the total accumulated networth of spouses,
Ferdinand and Imelda. Respondent's Balance Sheet attached to their 1965 ITR, covering the year immed
preceding their ascendancy to the presidency, indicates an ending networth of P120,000.00 which FM de
as Library and Miscellaneous assets. In computing for the networth, the income approach was utilized. U
approach, the beginning capital is increased or decreased, as the case may be, depending upon the inco
earned or loss incurred. Computations establish the total networth of spouses Ferdinand and Imelda, for
years 1965 until 1984 in the total amount of US$957,487.75, assuming the income from legal practice is
valid x x x.
G. THE SECRET MARCOS DEPOSITS IN SWISS BANKS
23. The following presentation very clearly and overwhelmingly show in detail how both respondents
clandestinely stashed away the country's wealth to Switzerland and hid the same under layers upon laye
foundations and other corporate entities to prevent its detection. Through their dummies/nominees, fronts
agents who formed those foundations or corporate entities, they opened and maintained numerous bank
accounts. But due to the difficulty if not the impossibility of detecting and documenting all those secret ac
as well as the enormity of the deposits therein hidden, the following presentation is confined to five identi
accounts groups, with balances amounting to about $356-M with a reservation for the filing of a suppleme
separate forfeiture complaint should the need arise.
H. THE AZIO-VERSO-VIBUR FOUNDATION ACCOUNTS
24. On June 11, 1971, Ferdinand Marcos issued a written order to Dr. Theo Bertheau, legal counsel of
Schweizeresche Kreditanstalt or SKA, also known as Swiss Credit Bank, for him to establish the AZIO
Foundation. On the same date, Marcos executed a power of attorney in favor of Roberto S. Benedicto
empowering him to transact business in behalf of the said foundation. Pursuant to the said Marcos mand
AZIO Foundation was formed on June 21, 1971 in Vaduz. Walter Fessler and Ernst Scheller, also of SKA
Service, and Dr. Helmuth Merling from Schaan were designated as members of the Board of Trustees of
foundation. Ferdinand Marcos was named first beneficiary and the Marcos Foundation, Inc. was second
beneficiary. On November 12, 1971, FM again issued another written order naming Austrahil PTY Ltd. In
Australia, as the foundation's first and sole beneficiary. This was recorded on December 14, 1971.
25. In an undated instrument, Marcos changed the first and sole beneficiary to CHARIS FOUNDATION. T
change was recorded on December 4, 1972.
26. On August 29, 1978, the AZIO FOUNDATION was renamed to VERSO FOUNDATION. The Board of
remained the same. On March 11, 1981, Marcos issued a written directive to liquidated VERSO FOUNDA
and to transfer all its assets to account of FIDES TRUST COMPANY at Bank Hofman in Zurich under the
"Reference OSER." The Board of Trustees decided to dissolve the foundation on June 25, 1981.
27. In an apparent maneuver to bury further the secret deposits beneath the thick layers of corporate ent
effected the establishment of VIBUR FOUNDATION on May 13, 1981 in Vaduz. Atty. Ivo Beck and Limag
Management, a wholly-owned subsidiary of Fides Trust, were designated as members of the Board of Tr
The account was officially opened with SKA on September 10, 1981. The beneficial owner was not made
to the bank since Fides Trust Company acted as fiduciary. However, comparison of the listing of the secu
the safe deposit register of the VERSO FOUNDATION as of February 27, 1981 with that of VIBUR FOUN
as of December 31, 1981 readily reveals that exactly the same securities were listed.
28. Under the foregoing circumstances, it is certain that the VIBUR FOUNDATION is the beneficial succe
VERSO FOUNDATION.
29. On March 18, 1986, the Marcos-designated Board of Trustees decided to liquidate VIBUR FOUNDAT
notice of such liquidation was sent to the Office of the Public Register on March 21, 1986. However, the b
accounts and respective balances of the said VIBUR FOUNDATION remained with SKA. Apparently, the
liquidation was an attempt by the Marcoses to transfer the foundation's funds to another account or bank
was prevented by the timely freeze order issued by the Swiss authorities. One of the latest documents ob
by the PCGG from the Swiss authorities is a declaration signed by Dr. Ivo Beck (the trustee) stating that t
beneficial owner of VIBUR FOUNDATION is Ferdinand E. Marcos. Another document signed by G. Rabe
shows that VIBUR FOUNDATION is owned by the "Marcos Familie"
30. As of December 31, 1989, the balance of the bank accounts of VIBUR FOUNDATION with SKA, Zuric
the General Account No. 469857 totaled $3,597,544.00
I. XANDY-WINTROP: CHARIS-SCOLARI-
31. This is the most intricate and complicated account group. As the Flow Chart hereof shows, two (2) gro
under the foundation organized by Marcos dummies/nominees for FM's benefit, eventually joined togethe
became one (1) account group under the AVERTINA FOUNDATION for the benefit of both FM and Imeld
the biggest group from where the $50-M investment fund of the Marcoses was drawn when they bought t
Central Bank's dollar-denominated treasury notes with high-yielding interests.
32. On March 20, 1968, after his second year in the presidency, Marcos opened bank accounts with SKA
an alias or pseudonym WILLIAM SAUNDERS, apparently to hide his true identity. The next day, March 2
his First Lady, Mrs. Imelda Marcos also opened her own bank accounts with the same bank using an Am
sounding alias, JANE RYAN. Found among the voluminous documents in Malacaang shortly after they
Hawaii in haste that fateful night of February 25, 1986, were accomplished forms for "Declaration/Specim
Signatures" submitted by the Marcos couple. Under the caption "signature(s)" Ferdinand and Imelda sign
real names as well as their respective aliases underneath. These accounts were actively operated and
maintained by the Marcoses for about two (2) years until their closure sometime in February, 1970 and th
balances transferred to XANDY FOUNDATION.
33. The XANDY FOUNDATION was established on March 3, 1970 in Vaduz. C.W. Fessler, C. Souviron a
Scheller were named as members of the Board of Trustees.
34. FM and Imelda issued the written mandate to establish the foundation to Markus Geel of SKA on Mar
1970. In the handwritten Regulations signed by the Marcos couple as well as in the type-written Regulatio
signed by Markus Geel both dated February 13, 1970, the Marcos spouses were named the first benefici
the surviving spouse as the second beneficiary and the Marcos children Imee, Ferdinand, Jr. (Bongbon
Irene as equal third beneficiaries.
35. The XANDY FOUNDATION was renamed WINTROP FOUNDATION on August 29, 1978. The Board
Trustees remained the same at the outset. However, on March 27, 1980, Souviron was replaced by Dr. P
Ritter. On March 10. 1981, Ferdinand and Imelda Marcos issued a written order to the Board of Wintrop t
liquidate the foundation and transfer all its assets to Bank Hofmann in Zurich in favor of FIDES TRUST
COMPANY. Later, WINTROP FOUNDATION was dissolved.
36. The AVERTINA FOUNDATION was established on May 13, 1981 in Vaduz with Atty. Ivo Beck and Lim
Management, a wholly-owned subsidiary of FIDES TRUST CO., as members of the Board of Trustees. T
account categories, namely: CAR and NES, were opened on September 10, 1981. The beneficial owner
AVERTINA was not made known to the bank since the FIDES TRUST CO. acted as fiduciary. However, t
securities listed in the safe deposit register of WINTROP FOUNDATION Category R as of December 31,
were the same as those listed in the register of AVERTINA FOUNDATION Category CAR as of Decembe
1981. Likewise, the securities listed in the safe deposit register of WINTROP FOUNDATION Category S
December 31, 1980 were the same as those listed in the register of Avertina Category NES as of Decem
1981.Under the circumstances, it is certain that the beneficial successor of WINTROP FOUNDATION is
AVERTINA FOUNDATION. The balance of Category CAR as of December 31, 1989 amounted to
US$231,366,894.00 while that of Category NES as of 12-31-83 was US$8,647,190.00. Latest documents
received from Swiss authorities included a declaration signed by IVO Beck stating that the beneficial own
AVERTINA FOUNDATION are FM and Imelda. Another document signed by G. Raber of SKA indicates th
Avertina Foundation is owned by the "Marcos Families."
37. The other groups of foundations that eventually joined AVERTINA were also established by FM throug
dummies, which started with the CHARIS FOUNDATION.
38. The CHARIS FOUNDATION was established in VADUZ on December 27, 1971. Walter Fessler and E
Scheller of SKA and Dr. Peter Ritter were named as directors. Dr. Theo Bertheau, SKA legal counsel, act
founding director in behalf of FM by virtue of the mandate and agreement dated November 12, 1971. FM
was named the first beneficiary and Xandy Foundation as second beneficiary in accordance with the han
instructions of FM on November 12, 1971 and the Regulations. FM gave a power of attorney to Roberto S
Benedicto on February 15, 1972 to act in his behalf with regard to Charis Foundation.
39. On December 13, 1974, Charis Foundation was renamed Scolari Foundation but the directors remain
same. On March 11, 1981 FM ordered in writing that the Valamo Foundation be liquidated and all its asse
transferred to Bank Hofmann, AG in favor of Fides Trust Company under the account "Reference OMAL"
Board of Directors decided on the immediate dissolution of Valamo Foundation on June 25, 1981.
40 The SPINUS FOUNDATION was established on May 13, 1981 in Vaduz with Atty. Ivo Beck and Limag
Management, a wholly-owned subsidiary of Fides Trust Co., as members of the Foundation's Board of D
The account was officially opened with SKA on September 10, 1981. The beneficial owner of the foundat
not made known to the bank since Fides Trust Co. acted as fiduciary. However, the list of securities in the
deposit register of Valamo Foundation as of December 31, 1980 are practically the same with those listed
safe deposit register of Spinus Foundation as of December 31, 1981. Under the circumstances, it is certa
the Spinus Foundation is the beneficial successor of the Valamo Foundation.
41. On September 6, 1982, there was a written instruction from Spinus Foundation to SKA to close its Sw
Franc account and transfer the balance to Avertina Foundation. In July/August, 1982, several transfers fr
foundation's German marks and US dollar accounts were made to Avertina Category CAR totaling DM 29
and $58-M, respectively. Moreover, a comparison of the list of securities of the Spinus Foundation as of F
3, 1982 with the safe deposit slips of the Avertina Foundation Category CAR as of August 19, 1982 show
the securities of Spinus were transferred to Avertina.
J. TRINIDAD-RAYBY-PALMY FOUNDATION ACCOUNTS
42. The Trinidad Foundation was organized on August 26, 1970 in Vaduz with C.W. Fessler and E. Schel
SKA and Dr. Otto Tondury as the foundation's directors. Imelda issued a written mandate to establish the
foundation to Markus Geel on August 26, 1970. The regulations as well as the agreement, both dated Au
1970 were likewise signed by Imelda. Imelda was named the first beneficiary and her children Imelda (Im
Ferdinand, Jr. (Bongbong) and, Irene were named as equal second beneficiaries.
43. Rayby Foundation was established on June 22, 1973 in Vaduz with Fessler, Scheller and Ritter as me
of the board of directors. Imelda issued a written mandate to Dr. Theo Bertheau to establish the foundatio
note that the foundation's capitalization as well as the cost of establishing it be debited against the accou
Trinidad Foundation. Imelda was named the first and only beneficiary of Rayby foundation. According to w
information from SKA dated November 28, 1988, Imelda apparently had the intention in 1973 to transfer
the assets of Trinidad Foundation to another foundation, thus the establishment of Rayby Foundation. Ho
transfer of assets never took place. On March 10, 1981, Imelda issued a written order to transfer all the a
Rayby Foundation to Trinidad Foundation and to subsequently liquidate Rayby. On the same date, she is
written order to the board of Trinidad to dissolve the foundation and transfer all its assets to Bank Hofman
favor of Fides Trust Co. Under the account "Reference Dido," Rayby was dissolved on April 6, 1981 and
was liquidated on August 3, 1981.
44. The PALMY FOUNDATION was established on May 13, 1981 in Vaduz with Dr. Ivo Beck and Limag
Management, a wholly-owned subsidiary of Fides Trust Co, as members of the Foundation's Board of Dir
The account was officially opened with the SKA on September 10, 1981. The beneficial owner was not m
known to the bank since Fides Trust Co. acted as fiduciary. However, when one compares the listing of s
in the safe deposit register of Trinidad Foundation as of December 31,1980 with that of the Palmy Found
of December 31, 1980, one can clearly see that practically the same securities were listed. Under the
circumstances, it is certain that the Palmy Foundation is the beneficial successor of the Trinidad Foundat
45. As of December 31, 1989, the ending balance of the bank accounts of Palmy Foundation under Gene
Account No. 391528 is $17,214,432.00.
46. Latest documents received from Swiss Authorities included a declaration signed by Dr. Ivo Beck statin
the beneficial owner of Palmy Foundation is Imelda. Another document signed by Raber shows that the s
Palmy Foundation is owned by "Marcos Familie".
K. ROSALYS-AGUAMINA FOUNDATION ACCOUNTS
47. Rosalys Foundation was established in 1971 with FM as the beneficiary. Its Articles of Incorporation w
executed on September 24, 1971 and its By-Laws on October 3, 1971. This foundation maintained sever
accounts with Swiss Bank Corporation (SBC) under the general account 51960 where most of the bribe m
from Japanese suppliers were hidden.
48. On December 19, 1985, Rosalys Foundation was liquidated and all its assets were transferred to Agu
Corporation's (Panama) Account No. 53300 with SBC. The ownership by Aguamina Corporation of Accou
53300 is evidenced by an opening account documents from the bank. J. Christinaz and R.L. Rossier, Firs
President and Senior Vice President, respectively, of SBC, Geneva issued a declaration dated Septembe
1991 stating that the by-laws dated October 3, 1971 governing Rosalys Foundation was the same by-law
to Aguamina Corporation Account No. 53300. They further confirmed that no change of beneficial owner
involved while transferring the assets of Rosalys to Aguamina. Hence, FM remains the beneficiary of Agu
Corporation Account No. 53300.
As of August 30, 1991, the ending balance of Account No. 53300 amounted to $80,566,483.00.
L. MALER FOUNDATION ACCOUNTS
49. Maler was first created as an establishment. A statement of its rules and regulations was found amon
Malacaang documents. It stated, among others, that 50% of the Company's assets will be for sole and f
disposal of FM and Imelda during their lifetime, which the remaining 50% will be divided in equal parts am
their children. Another Malacaang document dated October 19,1968 and signed by Ferdinand and Imeld
pertains to the appointment of Dr. Andre Barbey and Jean Louis Sunier as attorneys of the company and
administrator and manager of all assets held by the company. The Marcos couple, also mentioned in the
document that they bought the Maler Establishment from SBC, Geneva. On the same date, FM and Imel
issued a letter addressed to Maler Establishment, stating that all instructions to be transmitted with regard
Maler will be signed with the word "JOHN LEWIS". This word will have the same value as the couple's ow
personal signature. The letter was signed by FM and Imelda in their signatures and as John Lewis.
50. Maler Establishment opened and maintained bank accounts with SBC, Geneva. The opening bank
documents were signed by Dr. Barbey and Mr. Sunnier as authorized signatories.
51. On November 17, 1981, it became necessary to transform Maler Establishment into a foundation. Lik
the attorneys were changed to Michael Amaudruz, et. al. However, administration of the assets was left t
The articles of incorporation of Maler Foundation registered on November 17, 1981 appear to be the sam
articles applied to Maler Establishment. On February 28, 1984, Maler Foundation cancelled the power of
for the management of its assets in favor of SBC and transferred such power to Sustrust Investment Co.,
52. As of June 6, 1991, the ending balance of Maler Foundation's Account Nos. 254,508 BT and 98,929 N
amount SF 9,083,567 and SG 16,195,258, respectively, for a total of SF 25,278,825.00. GM only until De
31, 1980. This account was opened by Maler when it was still an establishment which was subsequently
transformed into a foundation.
53. All the five (5) group accounts in the over-all flow chart have a total balance of about Three Hundred F
Million Dollars ($356,000,000.00) as shown by Annex "R-5" hereto attached as integral part hereof.
xxx
x x x.27
Respondents Imelda R. Marcos, Maria Imelda M. Manotoc, Irene M. Araneta and Ferdinand Marcos, Jr., in their answer,
the following:
xxx
xxx
xxx
5. Respondents specifically deny paragraph 5 of the Petition in so far as it states that summons and othe
processes may be served on Respondent Imelda R. Marcos at the stated address the truth of the matter
that Respondent Imelda R. Marcos may be served with summons and other processes at No. 10-B Bel A
Condominium 5022 P. Burgos Street, Makati, Metro Manila, and ADMIT the rest.
xxx
xxx
xxx
11. Respondents specifically DENY paragraph 12 of the Petition for lack of knowledge sufficient to form a
as to the truth of the allegation since Respondents were not privy to the transactions and that they canno
remember exactly the truth as to the matters alleged.
12. Respondents specifically DENY paragraph 13 of the Petition for lack of knowledge or information suff
form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con
the alleged ITRs and Balance Sheet.
13. Respondents specifically DENY paragraph 14 of the Petition for lack of knowledge or information suff
form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con
the alleged ITRs.
14. Respondents specifically DENY paragraph 15 of the Petition for lack of knowledge or information suff
form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con
the alleged ITRs.
15. Respondents specifically DENY paragraph 16 of the Petition for lack of knowledge or information suff
form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con
the alleged ITRs.
16. Respondents specifically DENY paragraph 17 of the Petition insofar as it attributes willful duplicity on
of the late President Marcos, for being false, the same being pure conclusions based on pure assumption
allegations of fact; and specifically DENY the rest for lack of knowledge or information sufficient to form a
to the truth of the allegation since Respondents cannot remember with exactitude the contents of the alle
17. Respondents specifically DENY paragraph 18 of the Petition for lack of knowledge or information suff
form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con
the alleged ITRs.
18. Respondents specifically DENY paragraph 19 of the Petition for lack of knowledge or information suff
form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con
the alleged ITRs and that they are not privy to the activities of the BIR.
19. Respondents specifically DENY paragraph 20 of the Petition for lack of knowledge or information suff
form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con
the alleged ITRs.
20. Respondents specifically DENY paragraph 21 of the Petition for lack of knowledge or information suff
form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con
the alleged ITRs.
21. Respondents specifically DENY paragraph 22 of the Petition for lack of knowledge or information suff
form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con
the alleged ITRs.
22. Respondents specifically DENY paragraph 23 insofar as it alleges that Respondents clandestinely sta
the country's wealth in Switzerland and hid the same under layers and layers of foundation and corporate
for being false, the truth being that Respondents aforesaid properties were lawfully acquired.
23. Respondents specifically DENY paragraphs 24, 25, 26, 27, 28, 29 and 30 of the Petition for lack of kn
or information sufficient to form a belief as to the truth of the allegation since Respondents were not privy
transactions regarding the alleged Azio-Verso-Vibur Foundation accounts, except that as to Respondent
R. Marcos she specifically remembers that the funds involved were lawfully acquired.
24. Respondents specifically DENY paragraphs 31, 32, 33, 34, 35, 36,37, 38, 39, 40, and 41 of the Petitio
lack of knowledge or information sufficient to form a belief as to the truth of the allegations since Respond
not privy to the transactions and as to such transaction they were privy to they cannot remember with exa
the same having occurred a long time ago, except that as to Respondent Imelda R. Marcos she specifica
remembers that the funds involved were lawfully acquired.
25. Respondents specifically DENY paragraphs 42, 43, 44, 45, and 46, of the Petition for lack of knowled
information sufficient to form a belief as to the truth of the allegations since Respondents were not privy t
transactions and as to such transaction they were privy to they cannot remember with exactitude the sam
occurred a long time ago, except that as to Respondent Imelda R. Marcos she specifically remembers th
funds involved were lawfully acquired.
26. Respondents specifically DENY paragraphs 49, 50, 51 and 52, of the Petition for lack of knowledge o
information sufficient to form a belief as to the truth of the allegations since Respondents were not privy t
transactions and as to such transaction they were privy to they cannot remember with exactitude the sam
occurred a long time ago, except that as to Respondent Imelda R. Marcos she specifically remembers th
funds involved were lawfully acquired.
Upon careful perusal of the foregoing, the Court finds that respondent Mrs. Marcos and the Marcos children indubitably f
tender genuine issues in their answer to the petition for forfeiture. A genuine issue is an issue of fact which calls for the
presentation of evidence as distinguished from an issue which is fictitious and contrived, set up in bad faith or patently la
substance so as not to constitute a genuine issue for trial. Respondents' defenses of "lack of knowledge for lack of privity
"(inability to) recall because it happened a long time ago" or, on the part of Mrs. Marcos, that "the funds were lawfully acq
are fully insufficient to tender genuine issues. Respondent Marcoses' defenses were a sham and evidently calibrated to
compound and confuse the issues.
The following pleadings filed by respondent Marcoses are replete with indications of a spurious defense:
(a) Respondents' Answer dated October 18, 1993;
(b) Pre-trial Brief dated October 4, 1999 of Mrs. Marcos, Supplemental Pre-trial Brief dated October 19, 1
Ferdinand, Jr. and Mrs. Imee Marcos-Manotoc adopting the pre-trial brief of Mrs. Marcos, and Manifestat
dated October 19, 1999 of Irene Marcos-Araneta adopting the pre-trial briefs of her co- respondents;
(c) Opposition to Motion for Summary Judgment dated March 21, 2000, filed by Mrs. Marcos which the o
respondents (Marcos children) adopted;
(d) Demurrer to Evidence dated May 2, 2000 filed by Mrs. Marcos and adopted by the Marcos children;
(e) Motion for Reconsideration dated September 26, 2000 filed by Mrs. Marcos; Motion for Reconsiderati
October 5, 2000 jointly filed by Mrs. Manotoc and Ferdinand, Jr., and Supplemental Motion for Reconside
dated October 9, 2000 likewise jointly filed by Mrs. Manotoc and Ferdinand, Jr.;
(f) Memorandum dated December 12, 2000 of Mrs. Marcos and Memorandum dated December 17, 2000
Marcos children;
(g) Manifestation dated May 26, 1998; and
(h) General/Supplemental Agreement dated December 23, 1993.
An examination of the foregoing pleadings is in order.
In their answer, respondents failed to specifically deny each and every allegation contained in the petition for forfeiture in
manner required by the rules. All they gave were stock answers like "they have no sufficient knowledge" or "they could n
because it happened a long time ago," and, as to Mrs. Marcos, "the funds were lawfully acquired," without stating the ba
such assertions.
Section 10, Rule 8 of the 1997 Rules of Civil Procedure, provides:
A defendant must specify each material allegation of fact the truth of which he does not admit and, whene
practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where
defendant desires to deny only a part of an averment, he shall specify so much of it as is true and materia
shall deny the remainder. Where a defendant is without knowledge or information sufficient to form a beli
the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of
denial.28
The purpose of requiring respondents to make a specific denial is to make them disclose facts which will disprove the all
of petitioner at the trial, together with the matters they rely upon in support of such denial. Our jurisdiction adheres to this
avoid and prevent unnecessary expenses and waste of time by compelling both parties to lay their cards on the table, th
reducing the controversy to its true terms. As explained in Alonso vs. Villamor,29
A litigation is not a game of technicalities in which one, more deeply schooled and skilled in the subtle art
movement and position, entraps and destroys the other. It is rather a contest in which each contending p
and fairly lays before the court the facts in issue and then, brushing aside as wholly trivial and indecisive
imperfections of form and technicalities of procedure, asks that justice be done upon the merits. Lawsuits
duels, are not to be won by a rapier's thrust.
On the part of Mrs. Marcos, she claimed that the funds were lawfully acquired. However, she failed to particularly state th
ultimate facts surrounding the lawful manner or mode of acquisition of the subject funds. Simply put, she merely stated in
answer with the other respondents that the funds were "lawfully acquired" without detailing how exactly these funds were
supposedly acquired legally by them. Even in this case before us, her assertion that the funds were lawfully acquired rem
bare and unaccompanied by any factual support which can prove, by the presentation of evidence at a hearing, that inde
funds were acquired legitimately by the Marcos family.
Respondents' denials in their answer at the Sandiganbayan were based on their alleged lack of knowledge or information
sufficient to form a belief as to the truth of the allegations of the petition.
It is true that one of the modes of specific denial under the rules is a denial through a statement that the defendant is with
knowledge or information sufficient to form a belief as to the truth of the material averment in the complaint. The question
however, is whether the kind of denial in respondents' answer qualifies as the specific denial called for by the rules. We d
think so. In Morales vs. Court of Appeals,30 this Court ruled that if an allegation directly and specifically charges a party w
having done, performed or committed a particular act which the latter did not in fact do, perform or commit, a categorical
express denial must be made.
Here, despite the serious and specific allegations against them, the Marcoses responded by simply saying that they had
knowledge or information sufficient to form a belief as to the truth of such allegations. Such a general, self-serving claim
ignorance of the facts alleged in the petition for forfeiture was insufficient to raise an issue. Respondent Marcoses should
positively stated how it was that they were supposedly ignorant of the facts alleged. 31
To elucidate, the allegation of petitioner Republic in paragraph 23 of the petition for forfeiture stated:
23. The following presentation very clearly and overwhelmingly show in detail how both respondents
clandestinely stashed away the country's wealth to Switzerland and hid the same under layers upon laye
foundations and other corporate entities to prevent its detection. Through their dummies/nominees, fronts
agents who formed those foundations or corporate entities, they opened and maintained numerous bank
accounts. But due to the difficulty if not the impossibility of detecting and documenting all those secret ac
as well as the enormity of the deposits therein hidden, the following presentation is confined to five identi
accounts groups, with balances amounting to about $356-M with a reservation for the filing of a suppleme
separate forfeiture complaint should the need arise. 32
Respondents' lame denial of the aforesaid allegation was:
22. Respondents specifically DENY paragraph 23 insofar as it alleges that Respondents clandestinely sta
the country's wealth in Switzerland and hid the same under layers and layers of foundations and corpora
entities for being false, the truth being that Respondents' aforesaid properties were lawfully acquired. 33
Evidently, this particular denial had the earmark of what is called in the law on pleadings as a negative pregnant, that is,
pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It was in
an admission of the averments it was directed at.34 Stated otherwise, a negative pregnant is a form of negative expressio
carries with it an affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant
admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying language a
words of the allegation as so qualified or modified are literally denied, has been held that the qualifying circumstances al
denied while the fact itself is admitted.35
In the instant case, the material allegations in paragraph 23 of the said petition were not specifically denied by responden
paragraph 22 of their answer. The denial contained in paragraph 22 of the answer was focused on the averment in parag
of the petition for forfeiture that "Respondents clandestinely stashed the country's wealth in Switzerland and hid the sam
layers and layers of foundations and corporate entities." Paragraph 22 of the respondents' answer was thus a denial pre
with admissions of the following substantial facts:
(1) the Swiss bank deposits existed and
(2) that the estimated sum thereof was US$356 million as of December, 1990.
Therefore, the allegations in the petition for forfeiture on the existence of the Swiss bank deposits in the sum of about US
million, not having been specifically denied by respondents in their answer, were deemed admitted by them pursuant to S
11, Rule 8 of the 1997 Revised Rules on Civil Procedure:
Material averment in the complaint, xxx shall be deemed admitted when not specifically denied. xxx. 36
By the same token, the following unsupported denials of respondents in their answer were pregnant with admissions of t
substantial facts alleged in the Republic's petition for forfeiture:
23. Respondents specifically DENY paragraphs 24, 25, 26, 27, 28, 29 and 30 of the Petition for lack of kn
or information sufficient to form a belief as to the truth of the allegation since respondents were not privy
transactions regarding the alleged Azio-Verso-Vibur Foundation accounts, except that, as to respondent I
R. Marcos, she specifically remembers that the funds involved were lawfully acquired.
24. Respondents specifically DENY paragraphs 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 of the Petition fo
knowledge or information sufficient to form a belief as to the truth of the allegations since respondents we
privy to the transactions and as to such transactions they were privy to, they cannot remember with exac
same having occurred a long time ago, except as to respondent Imelda R. Marcos, she specifically reme
that the funds involved were lawfully acquired.
25. Respondents specifically DENY paragraphs 42, 43, 45, and 46 of the petition for lack of knowledge o
information sufficient to from a belief as to the truth of the allegations since respondents were not privy to
transactions and as to such transaction they were privy to, they cannot remember with exactitude, the sa
having occurred a long time ago, except that as to respondent Imelda R. Marcos, she specifically remem
the funds involved were lawfully acquired.
26. Respondents specifically DENY paragraphs 49, 50, 51 and 52 of the petition for lack of knowledge an
information sufficient to form a belief as to the truth of the allegations since respondents were not privy to
transactions and as to such transaction they were privy to they cannot remember with exactitude the sam
occurred a long time ago, except that as to respondent Imelda R. Marcos, she specifically remembers tha
funds involved were lawfully acquired.
The matters referred to in paragraphs 23 to 26 of the respondents' answer pertained to the creation of five groups of acc
well as their respective ending balances and attached documents alleged in paragraphs 24 to 52 of the Republic's petitio
forfeiture. Respondent Imelda R. Marcos never specifically denied the existence of the Swiss funds. Her claim that "the f
involved were lawfully acquired" was an acknowledgment on her part of the existence of said deposits. This only reinforc
earlier admission of the allegation in paragraph 23 of the petition for forfeiture regarding the existence of the US$356 mil
Swiss bank deposits.
The allegations in paragraphs 4737 and 4838 of the petition for forfeiture referring to the creation and amount of the deposi
Rosalys-Aguamina Foundation as well as the averment in paragraph 52-a 39 of the said petition with respect to the sum o
Swiss bank deposits estimated to be US$356 million were again not specifically denied by respondents in their answer. T
respondents did not at all respond to the issues raised in these paragraphs and the existence, nature and amount of the
funds were therefore deemed admitted by them. As held in Galofa vs. Nee Bon Sing,40 if a defendant's denial is a negativ
pregnant, it is equivalent to an admission.
Moreover, respondents' denial of the allegations in the petition for forfeiture "for lack of knowledge or information sufficien
a belief as to the truth of the allegations since respondents were not privy to the transactions" was just a pretense. Mrs. M
privity to the transactions was in fact evident from her signatures on some of the vital documents 41 attached to the petitio
forfeiture which Mrs. Marcos failed to specifically deny as required by the rules. 42
It is worthy to note that the pertinent documents attached to the petition for forfeiture were even signed personally by res
Mrs. Marcos and her late husband, Ferdinand E. Marcos, indicating that said documents were within their knowledge. As
correctly pointed out by Sandiganbayan Justice Francisco Villaruz, Jr. in his dissenting opinion:
The pattern of: 1) creating foundations, 2) use of pseudonyms and dummies, 3) approving regulations of
Foundations for the distribution of capital and income of the Foundations to the First and Second benefic
are no other than FM and his family), 4) opening of bank accounts for the Foundations, 5) changing the n
the Foundations, 6) transferring funds and assets of the Foundations to other Foundations or Fides Trust
liquidation of the Foundations as substantiated by the Annexes U to U-168, Petition [for forfeiture] strongl
indicate that FM and/or Imelda were the real owners of the assets deposited in the Swiss banks, using th
Foundations as dummies.43
How could respondents therefore claim lack of sufficient knowledge or information regarding the existence of the Swiss b
deposits and the creation of five groups of accounts when Mrs. Marcos and her late husband personally masterminded a
participated in the formation and control of said foundations? This is a fact respondent Marcoses were never able to exp
Not only that. Respondents' answer also technically admitted the genuineness and due execution of the Income Tax Ret
(ITRs) and the balance sheets of the late Ferdinand E. Marcos and Imelda R. Marcos attached to the petition for forfeitur
well as the veracity of the contents thereof.
The answer again premised its denials of said ITRs and balance sheets on the ground of lack of knowledge or informatio
sufficient to form a belief as to the truth of the contents thereof. Petitioner correctly points out that respondents' denial wa
really grounded on lack of knowledge or information sufficient to form a belief but was based on lack of recollection. By r
their own records, respondent Marcoses could have easily determined the genuineness and due execution of the ITRs a
balance sheets. They also had the means and opportunity of verifying the same from the records of the BIR and the Offic
President. They did not.
When matters regarding which respondents claim to have no knowledge or information sufficient to form a belief are plai
necessarily within their knowledge, their alleged ignorance or lack of information will not be considered a specific denial.
unexplained denial of information within the control of the pleader, or is readily accessible to him, is evasive and is insuff
constitute an effective denial.45
The form of denial adopted by respondents must be availed of with sincerity and in good faith, and certainly not for the p
of confusing the adverse party as to what allegations of the petition are really being challenged; nor should it be made fo
purpose of delay.46 In the instant case, the Marcoses did not only present unsubstantiated assertions but in truth attempt
mislead and deceive this Court by presenting an obviously contrived defense.
Simply put, a profession of ignorance about a fact which is patently and necessarily within the pleader's knowledge or me
knowing is as ineffective as no denial at all.47 Respondents' ineffective denial thus failed to properly tender an issue and t
averments contained in the petition for forfeiture were deemed judicially admitted by them.
As held in J.P. Juan & Sons, Inc. vs. Lianga Industries, Inc.:
Its "specific denial" of the material allegation of the petition without setting forth the substance of the matt
relied upon to support its general denial, when such matters were plainly within its knowledge and it could
logically pretend ignorance as to the same, therefore, failed to properly tender on issue. 48
Thus, the general denial of the Marcos children of the allegations in the petition for forfeiture "for lack of knowledge or inf
sufficient to form a belief as to the truth of the allegations since they were not privy to the transactions" cannot rightfully b
accepted as a defense because they are the legal heirs and successors-in-interest of Ferdinand E. Marcos and are there
bound by the acts of their father vis-a-vis the Swiss funds.
The pre-trial brief of Mrs. Marcos was adopted by the three Marcos children. In said brief, Mrs. Marcos stressed that the
involved were lawfully acquired. But, as in their answer, they failed to state and substantiate how these funds were acqui
lawfully. They failed to present and attach even a single document that would show and prove the truth of their allegation
Section 6, Rule 18 of the 1997 Rules of Civil Procedure provides:
The parties shall file with the court and serve on the adverse party, x x x their respective pre-trial briefs which shall conta
among others:
xxx
(d) the documents or exhibits to be presented, stating the purpose thereof;
xxx
(f) the number and names of the witnesses, and the substance of their respective testimonies. 49
It is unquestionably within the court's power to require the parties to submit their pre-trial briefs and to state the number o
witnesses intended to be called to the stand, and a brief summary of the evidence each of them is expected to give as w
disclose the number of documents to be submitted with a description of the nature of each. The tenor and character of th
testimony of the witnesses and of the documents to be deduced at the trial thus made known, in addition to the particula
of fact and law, it becomes apparent if genuine issues are being put forward necessitating the holding of a trial. Likewise
parties are obliged not only to make a formal identification and specification of the issues and their proofs, and to put the
matters in writing and submit them to the court within the specified period for the prompt disposition of the action. 50
The pre-trial brief of Mrs. Marcos, as subsequently adopted by respondent Marcos children, merely stated:
xxx
WITNESSES
4.1 Respondent Imelda will present herself as a witness and reserves the right to present additional witne
may be necessary in the course of the trial.
xxx
DOCUMENTARY EVIDENCE
5.1 Respondent Imelda reserves the right to present and introduce in evidence documents as may be ne
in the course of the trial.
Mrs. Marcos did not enumerate and describe the documents constituting her evidence. Neither the names of witnesses n
nature of their testimony was stated. What alone appeared certain was the testimony of Mrs. Marcos only who in fact had
previously claimed ignorance and lack of knowledge. And even then, the substance of her testimony, as required by the
was not made known either. Such cunning tactics of respondents are totally unacceptable to this Court. We hold that, sin
genuine issue was raised, the case became ripe for summary judgment.
The opposition filed by Mrs. Marcos to the motion for summary judgment dated March 21, 2000 of petitioner Republic wa
adopted by the Marcos children as their own opposition to the said motion. However, it was again not accompanied by a
depositions or admissions as required by Section 3, Rule 35 of the 1997 Rules on Civil Procedure:
x x x The adverse party may serve opposing affidavits, depositions, or admissions at least three (3) days
hearing. After hearing, the judgment sought shall be rendered forthwith if the pleadings, supporting affida
depositions, and admissions on file, show that, except as to the amount of damages, there is no genuine
to any material fact and that the moving party is entitled to a judgment as a matter of law.51
The absence of opposing affidavits, depositions and admissions to contradict the sworn declarations in the Republic's m
only demonstrated that the averments of such opposition were not genuine and therefore unworthy of belief.
All these pleadings again contained no allegations of facts showing their lawful acquisition of the funds. Once more, resp
merely made general denials without alleging facts which would have been admissible in evidence at the hearing, thereb
to raise genuine issues of fact.
Mrs. Marcos insists in her memorandum dated October 21, 2002 that, during the pre-trial, her counsel stated that his clie
just a beneficiary of the funds, contrary to petitioner Republic's allegation that Mrs. Marcos disclaimed ownership of or in
the funds.
This is yet another indication that respondents presented a fictitious defense because, during the pre-trial, Mrs. Marcos a
Marcos children denied ownership of or interest in the Swiss funds:
PJ Garchitorena:
Make of record that as far as Imelda Marcos is concerned through the statement of Atty. Armando
Marcelo that the US$360 million more or less subject matter of the instant lawsuit as allegedly ob
from the various Swiss Foundations do not belong to the estate of Marcos or to Imelda Marcos he
That's your statement of facts?
Atty. MARCELO:
Yes, Your Honor.
PJ Garchitorena:
That's it. Okay. Counsel for Manotoc and Manotoc, Jr. What is your point here? Does the estate o
own anything of the $360 million subject of this case.
Atty. TECSON:
We joined the Manifestation of Counsel.
PJ Garchitorena:
You do not own anything?
Atty. TECSON:
Yes, Your Honor.
PJ Garchitorena:
Counsel for Irene Araneta?
Atty. SISON:
I join the position taken by my other compaeros here, Your Honor.
xxx
Atty. SISON:
Irene Araneta as heir do (sic) not own any of the amount, Your Honor.55
We are convinced that the strategy of respondent Marcoses was to confuse petitioner Republic as to what facts they wou
or what issues they intended to pose for the court's resolution. There is no doubt in our mind that they were leading petiti
Republic, and now this Court, to perplexity, if not trying to drag this forfeiture case to eternity.
These pleadings of respondent Marcoses presented nothing but feigned defenses. In their earlier pleadings, respondent
either that they had no knowledge of the existence of the Swiss deposits or that they could no longer remember anything
happened a long time ago. As to Mrs. Marcos, she remembered that it was lawfully acquired.
In her Manifestation dated May 26, 1998, Mrs. Marcos stated that:
COMES NOW undersigned counsel for respondent Imelda R. Marcos, and before this Honorable Court, m
respectfully manifests:
That respondent Imelda R, Marcos owns 90% of the subject matter of the above-entitled case, being the
beneficiary of the dollar deposits in the name of the various foundations alleged in the case;
That in fact only 10% of the subject matter in the above-entitled case belongs to the estate of the late Pre
Ferdinand E. Marcos.
In the Compromise/Supplemental Agreements, respondent Marcoses sought to implement the agreed distribution of the
assets, including the Swiss deposits. This was, to us, an unequivocal admission of ownership by the Marcoses of the sai
deposits.
But, as already pointed out, during the pre-trial conference, respondent Marcoses denied knowledge as well as ownersh
Swiss funds.
Anyway we look at it, respondent Marcoses have put forth no real defense. The "facts" pleaded by respondents, while os
raising important questions or issues of fact, in reality comprised mere verbiage that was evidently wanting in substance
constituted no genuine issues for trial.
We therefore rule that, under the circumstances, summary judgment is proper.
In fact, it is the law itself which determines when summary judgment is called for. Under the rules, summary judgment is
appropriate when there are no genuine issues of fact requiring the presentation of evidence in a full-blown trial. Even if o
face the pleadings appear to raise issue, if the affidavits, depositions and admissions show that such issues are not genu
then summary judgment as prescribed by the rules must ensue as a matter of law.56
In sum, mere denials, if unaccompanied by any fact which will be admissible in evidence at a hearing, are not sufficient t
genuine issues of fact and will not defeat a motion for summary judgment. 57 A summary judgment is one granted upon m
a party for an expeditious settlement of the case, it appearing from the pleadings, depositions, admissions and affidavits
there are no important questions or issues of fact posed and, therefore, the movant is entitled to a judgment as a matter
motion for summary judgment is premised on the assumption that the issues presented need not be tried either because
are patently devoid of substance or that there is no genuine issue as to any pertinent fact. It is a method sanctioned by th
of Court for the prompt disposition of a civil action where there exists no serious controversy.58 Summary judgment is a
procedural device for the prompt disposition of actions in which the pleadings raise only a legal issue, not a genuine issu
any material fact. The theory of summary judgment is that, although an answer may on its face appear to tender issues r
trial, if it is established by affidavits, depositions or admissions that those issues are not genuine but fictitious, the Court i
justified in dispensing with the trial and rendering summary judgment for petitioner.59
In the various annexes to the petition for forfeiture, petitioner Republic attached sworn statements of witnesses who had
knowledge of the Marcoses' participation in the illegal acquisition of funds deposited in the Swiss accounts under the nam
five groups or foundations. These sworn statements substantiated the ill-gotten nature of the Swiss bank deposits. In the
answer and other subsequent pleadings, however, the Marcoses merely made general denials of the allegations against
without stating facts admissible in evidence at the hearing, thereby failing to raise any genuine issues of fact.
Under these circumstances, a trial would have served no purpose at all and would have been totally unnecessary, thus ju
a summary judgment on the petition for forfeiture. There were no opposing affidavits to contradict the sworn declarations
witnesses of petitioner Republic, leading to the inescapable conclusion that the matters raised in the Marcoses' answer w
false.
Time and again, this Court has encountered cases like this which are either only half-heartedly defended or, if the sembla
defense is interposed at all, it is only to delay disposition and gain time. It is certainly not in the interest of justice to allow
respondent Marcoses to avail of the appellate remedies accorded by the Rules of Court to litigants in good faith, to the p
of the Republic and ultimately of the Filipino people. From the beginning, a candid demonstration of respondents' good fa
should have been made to the court below. Without the deceptive reasoning and argumentation, this protracted litigation
have ended a long time ago.
Since 1991, when the petition for forfeiture was first filed, up to the present, all respondents have offered are foxy respon
"lack of sufficient knowledge or lack of privity" or "they cannot recall because it happened a long time ago" or, as to Mrs.
"the funds were lawfully acquired." But, whenever it suits them, they also claim ownership of 90% of the funds and allege
only 10% belongs to the Marcos estate. It has been an incredible charade from beginning to end.
In the hope of convincing this Court to rule otherwise, respondents Maria Imelda Marcos-Manotoc and Ferdinand R. Mar
contend that "by its positive acts and express admissions prior to filing the motion for summary judgment on March 10, 2
petitioner Republic had bound itself to go to trial on the basis of existing issues. Thus, it had legally waived whatever righ
to move for summary judgment."60
We do not think so. The alleged positive acts and express admissions of the petitioner did not preclude it from filing a mo
summary judgment.
Rule 35 of the 1997 Rules of Civil Procedure provides:
Rule 35
Summary Judgment
Section 1. Summary judgment for claimant. - A party seeking to recover upon a claim, counterclaim, or cr
claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been s
move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all o
part thereof.
Section 2. Summary judgment for defending party. - A party against whom a claim, counterclaim, or cross
asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions o
admissions for a summary judgment in his favor as to all or any part thereof. (Emphasis ours) 61
Under the rule, the plaintiff can move for summary judgment "at any time after the pleading in answer thereto (i.e., in ans
the claim, counterclaim or cross-claim) has been served." No fixed reglementary period is provided by the Rules. How el
one construe the phrase "any time after the answer has been served?"
This issue is actually one of first impression. No local jurisprudence or authoritative work has touched upon this matter. T
being so, an examination of foreign laws and jurisprudence, particularly those of the United States where many of our law
rules were copied, is in order.
Rule 56 of the Federal Rules of Civil Procedure provides that a party seeking to recover upon a claim, counterclaim or cr
claim may move for summary judgment at any time after the expiration of 20 days from the commencement of the action
service of a motion for summary judgment by the adverse party, and that a party against whom a claim, counterclaim or
claim is asserted may move for summary judgment at any time.
However, some rules, particularly Rule 113 of the Rules of Civil Practice of New York, specifically provide that a motion fo
summary judgment may not be made until issues have been joined, that is, only after an answer has been served. 62 Und
rule, after issues have been joined, the motion for summary judgment may be made at any stage of the litigation.63 No fix
prescriptive period is provided.
Like Rule 113 of the Rules of Civil Practice of New York, our rules also provide that a motion for summary judgment may
made until issues have been joined, meaning, the plaintiff has to wait for the answer before he can move for summary
judgment.64 And like the New York rules, ours do not provide for a fixed reglementary period within which to move for sum
judgment.
This being so, the New York Supreme Court's interpretation of Rule 113 of the Rules of Civil Practice can be applied by a
to the interpretation of Section 1, Rule 35, of our 1997 Rules of Civil Procedure.
Under the New York rule, after the issues have been joined, the motion for summary judgment may be made at any stag
litigation. And what exactly does the phrase "at any stage of the litigation" mean? In Ecker vs. Muzysh, 65 the New York Su
Court ruled:
"PER CURIAM.
Plaintiff introduced her evidence and the defendants rested on the case made by the plaintiff. The case w
submitted. Owing to the serious illness of the trial justice, a decision was not rendered within sixty days a
final adjournment of the term at which the case was tried. With the approval of the trial justice, the plaintif
for a new trial under Section 442 of the Civil Practice Act. The plaintiff also moved for summary judgment
Rule 113 of the Rules of Civil Practice. The motion was opposed mainly on the ground that, by proce
to trial, the plaintiff had waived her right to summary judgment and that the answer and the opposin
affidavits raised triable issues. The amount due and unpaid under the contract is not in dispute. The Spec
granted both motions and the defendants have appealed.
The Special Term properly held that the answer and the opposing affidavits raised no triable issue. Rule
the Rules of Civil Practice and the Civil Practice Act prescribe no limitation as to the time when a
for summary judgment must be made. The object of Rule 113 is to empower the court to summari
determine whether or not a bona fide issue exists between the parties, and there is no limitation o
power of the court to make such a determination at any stage of the litigation." (emphasis ours)
On the basis of the aforequoted disquisition, "any stage of the litigation" means that "even if the plaintiff has proceeded to
this does not preclude him from thereafter moving for summary judgment." 66
In the case at bar, petitioner moved for summary judgment after pre-trial and before its scheduled date for presentation o
evidence. Respondent Marcoses argue that, by agreeing to proceed to trial during the pre-trial conference, petitioner "wa
right to summary judgment.
This argument must fail in the light of the New York Supreme Court ruling which we apply by analogy to this case. In Eck
defendant opposed the motion for summary judgment on a ground similar to that raised by the Marcoses, that is, "that pl
had waived her right to summary judgment" by her act of proceeding to trial. If, as correctly ruled by the New York court,
was allowed to move for summary judgment even after trial and submission of the case for resolution, more so should w
it in the present case where petitioner moved for summary judgment before trial.
Therefore, the phrase "anytime after the pleading in answer thereto has been served" in Section 1, Rule 35 of our Rules
Procedure means "at any stage of the litigation." Whenever it becomes evident at any stage of the litigation that no triabl
exists, or that the defenses raised by the defendant(s) are sham or frivolous, plaintiff may move for summary judgment. A
contrary interpretation would go against the very objective of the Rule on Summary Judgment which is to "weed out sham
or defenses thereby avoiding the expense and loss of time involved in a trial." 68
In cases with political undertones like the one at bar, adverse parties will often do almost anything to delay the proceedin
hope that a future administration sympathetic to them might be able to influence the outcome of the case in their favor. T
rank injustice we cannot tolerate.
The law looks with disfavor on long, protracted and expensive litigation and encourages the speedy and prompt dispositi
cases. That is why the law and the rules provide for a number of devices to ensure the speedy disposition of cases. Sum
judgment is one of them.
Faithful therefore to the spirit of the law on summary judgment which seeks to avoid unnecessary expense and loss of tim
trial, we hereby rule that petitioner Republic could validly move for summary judgment any time after the respondents' an
was filed or, for that matter, at any subsequent stage of the litigation. The fact that petitioner agreed to proceed to trial did
any way prevent it from moving for summary judgment, as indeed no genuine issue of fact was ever validly raised by res
Marcoses.
This interpretation conforms with the guiding principle enshrined in Section 6, Rule 1 of the 1997 Rules of Civil Procedur
the "[r]ules should be liberally construed in order to promote their objective of securing a just, speedy and inexpensive di
of every action and proceeding."69
Respondents further allege that the motion for summary judgment was based on respondents' answer and other docume
had long been in the records of the case. Thus, by the time the motion was filed on March 10, 2000, estoppel by laches h
already set in against petitioner.
We disagree. Estoppel by laches is the failure or neglect for an unreasonable or unexplained length of time to do that wh
exercising due diligence, could or should have been done earlier, warranting a presumption that the person has abandon
right or declined to assert it.70 In effect, therefore, the principle of laches is one of estoppel because "it prevents people w
slept on their rights from prejudicing the rights of third parties who have placed reliance on the inaction of the original par
their successors-in-interest". 71
A careful examination of the records, however, reveals that petitioner was in fact never remiss in pursuing its case agains
respondent Marcoses through every remedy available to it, including the motion for summary judgment.
Petitioner Republic initially filed its motion for summary judgment on October 18, 1996. The motion was denied because
pending compromise agreement between the Marcoses and petitioner. But during the pre-trial conference, the Marcoses
ownership of the Swiss funds, prompting petitioner to file another motion for summary judgment now under consideration
Court. It was the subsequent events that transpired after the answer was filed, therefore, which prevented petitioner from
the questioned motion. It was definitely not because of neglect or inaction that petitioner filed the (second) motion for sum
judgment years after respondents' answer to the petition for forfeiture.
In invoking the doctrine of estoppel by laches, respondents must show not only unjustified inaction but also that some un
injury to them might result unless the action is barred. 72
This, respondents failed to bear out. In fact, during the pre-trial conference, the Marcoses disclaimed ownership of the S
deposits. Not being the owners, as they claimed, respondents did not have any vested right or interest which could be ad
But even assuming for the sake of argument that laches had already set in, the doctrine of estoppel or laches does not a
when the government sues as a sovereign or asserts governmental rights. 73 Nor can estoppel validate an act that contrav
law or public policy.74
As a final point, it must be emphasized that laches is not a mere question of time but is principally a question of the inequ
unfairness of permitting a right or claim to be enforced or asserted. 75 Equity demands that petitioner Republic should not
barred from pursuing the people's case against the Marcoses.
(2) The Propriety of Forfeiture
The matter of summary judgment having been thus settled, the issue of whether or not petitioner Republic was able to pr
case for forfeiture in accordance with the requisites of Sections 2 and 3 of RA 1379 now takes center stage.
The law raises the prima facie presumption that a property is unlawfully acquired, hence subject to forfeiture, if its amoun
value is manifestly disproportionate to the official salary and other lawful income of the public officer who owns it. Hence,
Sections 2 and 6 of RA 137976 provide:
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Section 2. Filing of petition. Whenever any public officer or employee has acquired during his incumben
amount or property which is manifestly out of proportion to his salary as such public officer or employee a
other lawful income and the income from legitimately acquired property, said property shall be presumed
facie to have been unlawfully acquired.
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Sec. 6. Judgment If the respondent is unable to show to the satisfaction of the court that he has lawfully
acquired the property in question, then the court shall declare such property in question, forfeited in favor
State, and by virtue of such judgment the property aforesaid shall become the property of the State. Prov
That no judgment shall be rendered within six months before any general election or within three months
any special election. The Court may, in addition, refer this case to the corresponding Executive Departme
administrative or criminal action, or both.
From the above-quoted provisions of the law, the following facts must be established in order that forfeiture or seizure of
Swiss deposits may be effected:
(1) ownership by the public officer of money or property acquired during his incumbency, whether it be in
name or otherwise, and
(2) the extent to which the amount of that money or property exceeds, i. e., is grossly disproportionate to,
legitimate income of the public officer.
That spouses Ferdinand and Imelda Marcos were public officials during the time material to the instant case was never i
dispute. Paragraph 4 of respondent Marcoses' answer categorically admitted the allegations in paragraph 4 of the petitio
forfeiture as to the personal circumstances of Ferdinand E. Marcos as a public official who served without interruption as
Congressman, Senator, Senate President and President of the Republic of the Philippines from December 1, 1965 to Fe
25, 1986.77 Likewise, respondents admitted in their answer the contents of paragraph 5 of the petition as to the personal
circumstances of Imelda R. Marcos who once served as a member of the Interim Batasang Pambansa from 1978 to 198
Metro Manila Governor, concurrently Minister of Human Settlements, from June 1976 to February 1986. 78
Respondent Mrs. Marcos also admitted in paragraph 10 of her answer the allegations of paragraph 11 of the petition for
which referred to the accumulated salaries of respondents Ferdinand E. Marcos and Imelda R. Marcos. 79 The combined
accumulated salaries of the Marcos couple were reflected in the Certification dated May 27, 1986 issued by then Ministe
Budget and Management Alberto Romulo.80 The Certification showed that, from 1966 to 1985, Ferdinand E. Marcos and
R. Marcos had accumulated salaries in the amount of P1,570,000 and P718,750, respectively, or a total of P2,288,750:
Ferdinand E. Marcos, as President
1966-1976
at P60,000/year
P660,000
1977-1984
at P100,000/year
800,000
1985
at P110,000/year
110,000
P1,570,00
at P75,000/year
P718,000
In addition to their accumulated salaries from 1966 to 1985 are the Marcos couple's combined salaries from January to F
1986 in the amount of P30,833.33. Hence, their total accumulated salaries amounted to P2,319,583.33. Converted to U.
dollars on the basis of the corresponding peso-dollar exchange rates prevailing during the applicable period when said s
were received, the total amount had an equivalent value of $304,372.43.
The dollar equivalent was arrived at by using the official annual rates of exchange of the Philippine peso and the US doll
1965 to 1985 as well as the official monthly rates of exchange in January and February 1986 issued by the Center for St
Information of the Bangko Sentral ng Pilipinas.
Prescinding from the aforesaid admissions, Section 4, Rule 129 of the Rules of Court provides that:
Section 4. Judicial admissions An admission, verbal or written, made by a party in the course of the
proceedings in the same case does not require proof. The admission may be contradicted only by showin
was made through palpable mistake or that no such admission was made. 81
It is settled that judicial admissions may be made: (a) in the pleadings filed by the parties; (b) in the course of the trial eith
verbal or written manifestations or stipulations; or (c) in other stages of judicial proceedings, as in the pre-trial of the case
facts pleaded in the petition and answer, as in the case at bar, are deemed admissions of petitioner and respondents,
respectively, who are not permitted to contradict them or subsequently take a position contrary to or inconsistent with suc
admissions.83
The sum of $304,372.43 should be held as the only known lawful income of respondents since they did not file any State
Assets and Liabilities (SAL), as required by law, from which their net worth could be determined. Besides, under the 193
Constitution, Ferdinand E. Marcos as President could not receive "any other emolument from the Government or any of
subdivisions and instrumentalities".84 Likewise, under the 1973 Constitution, Ferdinand E. Marcos as President could "no
during his tenure any other emolument from the Government or any other source." 85 In fact, his management of business
the administration of foundations to accumulate funds, was expressly prohibited under the 1973 Constitution:
Article VII, Sec. 4(2) The President and the Vice-President shall not, during their tenure, hold any other
except when otherwise provided in this Constitution, nor may they practice any profession, participate dir
indirectly in the management of any business, or be financially interested directly or indirectly in any cont
or in any franchise or special privilege granted by the Government or any other subdivision, agency, or
instrumentality thereof, including any government owned or controlled corporation.
Article VII, Sec. 11 No Member of the National Assembly shall appear as counsel before any court infer
court with appellate jurisdiction, x x x. Neither shall he, directly or indirectly, be interested financially in an
contract with, or in any franchise or special privilege granted by the Government, or any subdivision, age
instrumentality thereof including any government owned or controlled corporation during his term of office
shall not intervene in any matter before any office of the government for his pecuniary benefit.
Article IX, Sec. 7 The Prime Minister and Members of the Cabinet shall be subject to the provision of Se
11, Article VIII hereof and may not appear as counsel before any court or administrative body, or manage
business, or practice any profession, and shall also be subject to such other disqualification as may be p
by law.
Their only known lawful income of $304,372.43 can therefore legally and fairly serve as basis for determining the existen
prima facie case of forfeiture of the Swiss funds.
Respondents argue that petitioner was not able to establish a prima facie case for the forfeiture of the Swiss funds since
to prove the essential elements under Section 3, paragraphs (c), (d) and (e) of RA 1379. As the Act is a penal statute, its
provisions are mandatory and should thus be construed strictly against the petitioner and liberally in favor of respondent
Marcoses.
We hold that it was not for petitioner to establish the Marcoses' other lawful income or income from legitimately acquired
for the presumption to apply because, as between petitioner and respondents, the latter were in a better position to know
were such other sources of lawful income. And if indeed there was such other lawful income, respondents should have
specifically stated the same in their answer. Insofar as petitioner Republic was concerned, it was enough to specify the k
lawful income of respondents.
Section 9 of the PCGG Rules and Regulations provides that, in determining prima facie evidence of ill-gotten wealth, the
the accumulated assets, properties and other material possessions of those covered by Executive Order Nos. 1 and 2 m
out of proportion to the known lawful income of such persons. The respondent Marcos couple did not file any Statement
and Liabilities (SAL) from which their net worth could be determined. Their failure to file their SAL was in itself a violation
and to allow them to successfully assail the Republic for not presenting their SAL would reward them for their violation of
Further, contrary to the claim of respondents, the admissions made by them in their various pleadings and documents we
It is of record that respondents judicially admitted that the money deposited with the Swiss banks belonged to them.
We agree with petitioner that respondent Marcoses made judicial admissions of their ownership of the subject Swiss ban
deposits in their answer, the General/Supplemental Agreements, Mrs. Marcos' Manifestation and Constancia dated May
and the Undertaking dated February 10, 1999. We take note of the fact that the Associate Justices of the Sandiganbayan
unanimous in holding that respondents had made judicial admissions of their ownership of the Swiss funds.
In their answer, aside from admitting the existence of the subject funds, respondents likewise admitted ownership thereo
Paragraph 22 of respondents' answer stated:
22. Respondents specifically DENY PARAGRAPH 23 insofar as it alleges that respondents clandestinely
the country's wealth in Switzerland and hid the same under layers and layers of foundations and corpora
entities for being false, the truth being that respondents' aforesaid properties were lawfully acquired.
(emphasis supplied)
By qualifying their acquisition of the Swiss bank deposits as lawful, respondents unwittingly admitted their ownership the
Respondent Mrs. Marcos also admitted ownership of the Swiss bank deposits by failing to deny under oath the genuinen
due execution of certain actionable documents bearing her signature attached to the petition. As discussed earlier, Sectio
Rule 886 of the 1997 Rules of Civil Procedure provides that material averments in the complaint shall be deemed admitte
not specifically denied.
The General87 and Supplemental88 Agreements executed by petitioner and respondents on December 28, 1993 further bo
the claim of petitioner Republic that its case for forfeiture was proven in accordance with the requisites of Sections 2 and
1379. The whereas clause in the General Agreement declared that:
WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss Federal Tribunal on December 2
that the $356 million belongs in principle to the Republic of the Philippines provided certain conditionalitie
met, but even after 7 years, the FIRST PARTY has not been able to procure a final judgment of convictio
the PRIVATE PARTY.
While the Supplemental Agreement warranted, inter alia, that:
In consideration of the foregoing, the parties hereby agree that the PRIVATE PARTY shall be entitled to t
equivalent of 25% of the amount that may be eventually withdrawn from said $356 million Swiss deposits
The stipulations set forth in the General and Supplemental Agreements undeniably indicated the manifest intent of respo
to enter into a compromise with petitioner. Corollarily, respondents' willingness to agree to an amicable settlement with th
Republic only affirmed their ownership of the Swiss deposits for the simple reason that no person would acquiesce to an
concession over such huge dollar deposits if he did not in fact own them.
Respondents make much capital of the pronouncement by this Court that the General and Supplemental Agreements we
and void.89 They insist that nothing in those agreements could thus be admitted in evidence against them because they s
the same ground as an accepted offer which, under Section 27, Rule 130 90 of the 1997 Rules of Civil Procedure, provide
civil cases, an offer of compromise is not an admission of any liability and is not admissible in evidence against the offero
We find no merit in this contention. The declaration of nullity of said agreements was premised on the following constituti
statutory infirmities: (1) the grant of criminal immunity to the Marcos heirs was against the law; (2) the PCGG's commitme
exempt from all forms of taxes the properties to be retained by the Marcos heirs was against the Constitution; and (3) the
government's undertaking to cause the dismissal of all cases filed against the Marcoses pending before the Sandiganba
other courts encroached on the powers of the judiciary. The reasons relied upon by the Court never in the least bit even
on the veracity and truthfulness of respondents' admission with respect to their ownership of the Swiss funds. Besides, h
made certain admissions in those agreements, respondents cannot now deny that they voluntarily admitted owning the s
Swiss funds, notwithstanding the fact that the agreements themselves were later declared null and void.
The following observation of Sandiganbayan Justice Catalino Castaeda, Jr. in the decision dated September 19, 2000 c
have been better said:
x x x The declaration of nullity of the two agreements rendered the same without legal effects but it did no
from the admissions of the respondents contained therein. Otherwise stated, the admissions made in sai
agreements, as quoted above, remain binding on the respondents. 91
A written statement is nonetheless competent as an admission even if it is contained in a document which is not itself eff
the purpose for which it is made, either by reason of illegality, or incompetency of a party thereto, or by reason of not bei
signed, executed or delivered. Accordingly, contracts have been held as competent evidence of admissions, although the
be unenforceable.92
The testimony of respondent Ferdinand Marcos, Jr. during the hearing on the motion for the approval of the Compromise
Agreement on April 29, 1998 also lent credence to the allegations of petitioner Republic that respondents admitted owne
the Swiss bank accounts. We quote the salient portions of Ferdinand Jr.'s formal declarations in open court:
ATTY. FERNANDO:
Mr. Marcos, did you ever have any meetings with PCGG Chairman Magtanggol C. Gunigundo?
F. MARCOS, JR.:
Yes. I have had very many meetings in fact with Chairman.
ATTY. FERNANDO:
Would you recall when the first meeting occurred?
PJ GARCHITORENA:
In connection with what?
ATTY. FERNANDO:
In connection with the ongoing talks to compromise the various cases initiated by PCGG against
family?
F. MARCOS, JR.:
The nature of our meetings was solely concerned with negotiations towards achieving some kind
agreement between the Philippine government and the Marcos family. The discussions that led u
compromise agreement were initiated by our then counsel Atty. Simeon Mesina x x x. 93
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ATTY. FERNANDO:
What was your reaction when Atty. Mesina informed you of this possibility?
F. MARCOS, JR.:
My reaction to all of these approaches is that I am always open, we are always open, we are very
always in search of resolution to the problem of the family and any approach that has been made
have entertained. And so my reaction was the same as what I have always why not? Maybe th
one that will finally put an end to this problem.94
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ATTY. FERNANDO:
Basically, what were the true amounts of the assets in the bank?
PJ GARCHITORENA:
So, we are talking about liquid assets here? Just Cash?
F. MARCOS, JR.:
Well, basically, any assets. Anything that was under the Marcos name in any of the banks in Swit
which may necessarily be not cash.95
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PJ GARCHITORENA:
x x x What did you do in other words, after being apprised of this contract in connection herewith?
F. MARCOS, JR.:
I assumed that we are beginning to implement the agreement because this was forwarded throug
Philippine government lawyers through our lawyers and then, subsequently, to me. I was a little s
because we hadn't really discussed the details of the transfer of the funds, what the bank accoun
the mechanism would be. But nevertheless, I was happy to see that as far as the PCGG is conce
that the agreement was perfected and that we were beginning to implement it and that was a sou
satisfaction to me because I thought that finally it will be the end. 96
Ferdinand Jr.'s pronouncements, taken in context and in their entirety, were a confirmation of respondents' recognition of
ownership of the Swiss bank deposits. Admissions of a party in his testimony are receivable against him. If a party, as a
deliberately concedes a fact, such concession has the force of a judicial admission. 97 It is apparent from Ferdinand Jr.'s t
that the Marcos family agreed to negotiate with the Philippine government in the hope of finally putting an end to the prob
besetting the Marcos family regarding the Swiss accounts. This was doubtlessly an acknowledgment of ownership on the
The rule is that the testimony on the witness stand partakes of the nature of a formal judicial admission when a party tes
clearly and unequivocally to a fact which is peculiarly within his own knowledge. 98
In her Manifestation99 dated May 26, 1998, respondent Imelda Marcos furthermore revealed the following:
That respondent Imelda R. Marcos owns 90% of the subject matter of the above-entitled case, being the
beneficiary of the dollar deposits in the name of the various foundations alleged in the case;
That in fact only 10% of the subject matter in the above-entitled case belongs to the estate of the late Pre
Ferdinand E. Marcos;
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Respondents' ownership of the Swiss bank accounts as borne out by Mrs. Marcos' manifestation is as bright as sunlight.
claim that she is merely a beneficiary of the Swiss deposits is belied by her own signatures on the appended copies of th
documents substantiating her ownership of the funds in the name of the foundations. As already mentioned, she failed to
specifically deny under oath the authenticity of such documents, especially those involving "William Saunders" and "Jane
which actually referred to Ferdinand Marcos and Imelda Marcos, respectively. That failure of Imelda Marcos to specifical
the existence, much less the genuineness and due execution, of the instruments bearing her signature, was tantamount
judicial admission of the genuineness and due execution of said instruments, in accordance with Section 8, Rule 8 100 of t
Rules of Civil Procedure.
Likewise, in her Constancia101 dated May 6, 1999, Imelda Marcos prayed for the approval of the Compromise Agreement
subsequent release and transfer of the $150 million to the rightful owner. She further made the following manifestations:
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2. The Republic's cause of action over the full amount is its forfeiture in favor of the government if found t
gotten. On the other hand, the Marcoses defend that it is a legitimate asset. Therefore, both parties have
inchoate right of ownership over the account. If it turns out that the account is of lawful origin, the Republ
yield to the Marcoses. Conversely, the Marcoses must yield to the Republic. (underscoring supplied)
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3. Consistent with the foregoing, and the Marcoses having committed themselves to helping the less fortu
the interest of peace, reconciliation and unity, defendant MADAM IMELDA ROMUALDEZ MARCOS, in fir
abidance thereby, hereby affirms her agreement with the Republic for the release and transfer of the US
150 million for proper disposition, without prejudice to the final outcome of the litigation respecting the ow
of the remainder.
Again, the above statements were indicative of Imelda's admission of the Marcoses' ownership of the Swiss deposits as
"the Marcoses defend that it (Swiss deposits) is a legitimate (Marcos) asset."
On the other hand, respondents Maria Imelda Marcos-Manotoc, Ferdinand Marcos, Jr. and Maria Irene Marcos-Araneta
motion102 on May 4, 1998 asking the Sandiganbayan to place the res (Swiss deposits) in custodia legis:
7. Indeed, the prevailing situation is fraught with danger! Unless the aforesaid Swiss deposits are placed
custodia legis or within the Court's protective mantle, its dissipation or misappropriation by the petitioner
a distinct possibility.
Such display of deep, personal interest can only come from someone who believes that he has a marked and intimate rig
the considerable dollar deposits. Truly, by filing said motion, the Marcos children revealed their ownership of the said dep
Lastly, the Undertaking103 entered into by the PCGG, the PNB and the Marcos foundations on February 10, 1999, confirm
Marcoses' ownership of the Swiss bank deposits. The subject Undertaking brought to light their readiness to pay the hum
rights victims out of the funds held in escrow in the PNB. It stated:
WHEREAS, the Republic of the Philippines sympathizes with the plight of the human rights victims-plaint
aforementioned litigation through the Second Party, desires to assist in the satisfaction of the judgment a
said human rights victims-plaintiffs, by releasing, assigning and or waiving US$150 million of the funds he
escrow under the Escrow Agreements dated August 14, 1995, although the Republic is not obligated to d
under final judgments of the Swiss courts dated December 10 and 19, 1997, and January 8, 1998;
WHEREAS, the Third Party is likewise willing to release, assign and/or waive all its rights and interests o
All told, the foregoing disquisition negates the claim of respondents that "petitioner failed to prove that they acquired or o
Swiss funds" and that "it was only by arbitrarily isolating and taking certain statements made by private respondents out
context that petitioner was able to treat these as judicial admissions." The Court is fully aware of the relevance, materiali
implications of every pleading and document submitted in this case. This Court carefully scrutinized the proofs presented
parties. We analyzed, assessed and weighed them to ascertain if each piece of evidence rightfully qualified as an admis
Owing to the far-reaching historical and political implications of this case, we considered and examined, individually and
the evidence of the parties, even if it might have bordered on factual adjudication which, by authority of the rules and
jurisprudence, is not usually done by this Court. There is no doubt in our mind that respondent Marcoses admitted owner
the Swiss bank deposits.
We have always adhered to the familiar doctrine that an admission made in the pleadings cannot be controverted by the
making such admission and becomes conclusive on him, and that all proofs submitted by him contrary thereto or inconsi
therewith should be ignored, whether an objection is interposed by the adverse party or not. 104 This doctrine is embodied
Section 4, Rule 129 of the Rules of Court:
SEC. 4. Judicial admissions. An admission, verbal or written, made by a party in the course of the proc
in the same case, does not require proof. The admission may be contradicted only by showing that it was
through palpable mistake or that no such admission was made. 105
In the absence of a compelling reason to the contrary, respondents' judicial admission of ownership of the Swiss deposit
definitely binding on them.
The individual and separate admissions of each respondent bind all of them pursuant to Sections 29 and 31, Rule 130 o
Rules of Court:
SEC. 29. Admission by co-partner or agent. The act or declaration of a partner or agent of the party wit
scope of his authority and during the existence of the partnership or agency, may be given in evidence ag
such party after the partnership or agency is shown by evidence other than such act or declaration. The s
rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with th
party.106
SEC. 31. Admission by privies. Where one derives title to property from another, the act, declaration, o
omission of the latter, while holding the title, in relation to the property, is evidence against the former.107
The declarations of a person are admissible against a party whenever a "privity of estate" exists between the declarant a
party, the term "privity of estate" generally denoting a succession in rights. 108 Consequently, an admission of one in privity
party to the record is competent. 109 Without doubt, privity exists among the respondents in this case. And where several c
parties to the record are jointly interested in the subject matter of the controversy, the admission of one is competent aga
all.110
Respondents insist that the Sandiganbayan is correct in ruling that petitioner Republic has failed to establish a prima fac
for the forfeiture of the Swiss deposits.
We disagree. The sudden turn-around of the Sandiganbayan was really strange, to say the least, as its findings and conc
were not borne out by the voluminous records of this case.
Section 2 of RA 1379 explicitly states that "whenever any public officer or employee has acquired during his incumbency
amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other
income and the income from legitimately acquired property, said property shall be presumed prima facie to have been un
acquired. x x x"
The elements which must concur for this prima facie presumption to apply are:
(1) the offender is a public officer or employee;
(2) he must have acquired a considerable amount of money or property during his incumbency; and
(3) said amount is manifestly out of proportion to his salary as such public officer or employee and to his
lawful income and the income from legitimately acquired property.
It is undisputed that spouses Ferdinand and Imelda Marcos were former public officers. Hence, the first element is clearl
The second element deals with the amount of money or property acquired by the public officer during his incumbency. Th
Marcos couple indubitably acquired and owned properties during their term of office. In fact, the five groups of Swiss acc
were admittedly owned by them. There is proof of the existence and ownership of these assets and properties and it suff
comply with the second element.
The third requirement is met if it can be shown that such assets, money or property is manifestly out of proportion to the
officer's salary and his other lawful income. It is the proof of this third element that is crucial in determining whether a prim
presumption has been established in this case.
Petitioner Republic presented not only a schedule indicating the lawful income of the Marcos spouses during their incum
but also evidence that they had huge deposits beyond such lawful income in Swiss banks under the names of five differe
foundations. We believe petitioner was able to establish the prima facie presumption that the assets and properties acqu
the Marcoses were manifestly and patently disproportionate to their aggregate salaries as public officials. Otherwise stat
petitioner presented enough evidence to convince us that the Marcoses had dollar deposits amounting to US $356 millio
representing the balance of the Swiss accounts of the five foundations, an amount way, way beyond their aggregate legi
income of only US$304,372.43 during their incumbency as government officials.
Considering, therefore, that the total amount of the Swiss deposits was considerably out of proportion to the known lawfu
of the Marcoses, the presumption that said dollar deposits were unlawfully acquired was duly established. It was sufficien
petition for forfeiture to state the approximate amount of money and property acquired by the respondents, and their tota
government salaries. Section 9 of the PCGG Rules and Regulations states:
Prima Facie Evidence. Any accumulation of assets, properties, and other material possessions of those
persons covered by Executive Orders No. 1 and No. 2, whose value is out of proportion to their known la
income is prima facie deemed ill-gotten wealth.
Indeed, the burden of proof was on the respondents to dispute this presumption and show by clear and convincing evide
the Swiss deposits were lawfully acquired and that they had other legitimate sources of income. A presumption is prima f
proof of the fact presumed and, unless the fact thus prima facie established by legal presumption is disproved, it must st
proved.111
Respondent Mrs. Marcos argues that the foreign foundations should have been impleaded as they were indispensable p
without whom no complete determination of the issues could be made. She asserts that the failure of petitioner Republic
implead the foundations rendered the judgment void as the joinder of indispensable parties was a sine qua non exercise
judicial power. Furthermore, the non-inclusion of the foreign foundations violated the conditions prescribed by the Swiss
government regarding the deposit of the funds in escrow, deprived them of their day in court and denied them their rights
The Court finds that petitioner Republic did not err in not impleading the foreign foundations. Section 7, Rule 3 of the 199
of Civil Procedure,113 taken from Rule 19b of the American Federal Rules of Civil Procedure, provides for the compulsory
of indispensable parties. Generally, an indispensable party must be impleaded for the complete determination of the suit
However, failure to join an indispensable party does not divest the court of jurisdiction since the rule regarding indispensa
parties is founded on equitable considerations and is not jurisdictional. Thus, the court is not divested of its power to rend
decision even in the absence of indispensable parties, though such judgment is not binding on the non-joined party. 114
An indispensable party115 has been defined as one:
[who] must have a direct interest in the litigation; and if this interest is such that it cannot be separated fro
of the parties to the suit, if the court cannot render justice between the parties in his absence, if the decre
have an injurious effect upon his interest, or if the final determination of the controversy in his absence w
inconsistent with equity and good conscience.
There are two essential tests of an indispensable party: (1) can relief be afforded the plaintiff without the presence of the
party? and (2) can the case be decided on its merits without prejudicing the rights of the other party? 116 There is, howeve
fixed formula for determining who is an indispensable party; this can only be determined in the context and by the facts o
particular suit or litigation.
In the present case, there was an admission by respondent Imelda Marcos in her May 26, 1998 Manifestation before the
Sandiganbayan that she was the sole beneficiary of 90% of the subject matter in controversy with the remaining 10% be
to the estate of Ferdinand Marcos.117 Viewed against this admission, the foreign foundations were not indispensable parti
non-participation in the proceedings did not prevent the court from deciding the case on its merits and according full relie
petitioner Republic. The judgment ordering the return of the $356 million was neither inimical to the foundations' interests
inconsistent with equity and good conscience. The admission of respondent Imelda Marcos only confirmed what was alre
generally known: that the foundations were established precisely to hide the money stolen by the Marcos spouses from p
Republic. It negated whatever illusion there was, if any, that the foreign foundations owned even a nominal part of the as
question.
The rulings of the Swiss court that the foundations, as formal owners, must be given an opportunity to participate in the
proceedings hinged on the assumption that they owned a nominal share of the assets. 118 But this was already refuted by
than Mrs. Marcos herself. Thus, she cannot now argue that the ruling of the Sandiganbayan violated the conditions set b
Swiss court. The directive given by the Swiss court for the foundations to participate in the proceedings was for the purpo
protecting whatever nominal interest they might have had in the assets as formal owners. But inasmuch as their ownersh
subsequently repudiated by Imelda Marcos, they could no longer be considered as indispensable parties and their partic
the proceedings became unnecessary.
In Republic vs. Sandiganbayan,119 this Court ruled that impleading the firms which are the res of the action was unnecess
"And as to corporations organized with ill-gotten wealth, but are not themselves guilty of misappropriation
or other illicit conduct in other words, the companies themselves are not the object or thing involved in
action, the res thereof there is no need to implead them either. Indeed, their impleading is not proper on
strength alone of their having been formed with ill-gotten funds, absent any other particular wrongdoing o
part
Such showing of having been formed with, or having received ill-gotten funds, however strong or convinc
does not, without more, warrant identifying the corporations in question with the person who formed or m
of them to give the color or appearance of lawful, innocent acquisition to illegally amassed wealth at the
not so as place on the Government the onus of impleading the former with the latter in actions to recover
wealth. Distinguished in terms of juridical personality and legal culpability from their erring members or
stockholders, said corporations are not themselves guilty of the sins of the latter, of the embezzlement,
asportation, etc., that gave rise to the Government's cause of action for recovery; their creation or organiz
was merely the result of their members' (or stockholders') manipulations and maneuvers to conceal the il
origins of the assets or monies invested therein. In this light, they are simply the res in the actions for the
of illegally acquired wealth, and there is, in principle, no cause of action against them and no ground to im
them as defendants in said actions."
Just like the corporations in the aforementioned case, the foreign foundations here were set up to conceal the illegally ac
funds of the Marcos spouses. Thus, they were simply the res in the action for recovery of ill-gotten wealth and did not ha
impleaded for lack of cause of action or ground to implead them.
Assuming arguendo, however, that the foundations were indispensable parties, the failure of petitioner to implead them w
curable error, as held in the previously cited case of Republic vs. Sandiganbayan:120
"Even in those cases where it might reasonably be argued that the failure of the Government to implead
sequestered corporations as defendants is indeed a procedural abberation, as where said firms were alle
used, and actively cooperated with the defendants, as instruments or conduits for conversion of public fu
property or illicit or fraudulent obtention of favored government contracts, etc., slight reflection would nev
lead to the conclusion that the defect is not fatal, but one correctible under applicable adjective rules e.
Section 10, Rule 5 of the Rules of Court [specifying the remedy of amendment during trial to authorize or
conform to the evidence]; Section 1, Rule 20 [governing amendments before trial], in relation to the rule
respecting omission of so-called necessary or indispensable parties, set out in Section 11, Rule 3 of the R
Court. It is relevant in this context to advert to the old familiar doctrines that the omission to implead such
"is a mere technical defect which can be cured at any stage of the proceedings even after judgment"; and
particularly in the case of indispensable parties, since their presence and participation is essential to the
of the action, for without them no judgment may be rendered, amendments of the complaint in order to im
them should be freely allowed, even on appeal, in fact even after rendition of judgment by this Court, whe
appears that the complaint otherwise indicates their identity and character as such indispensable parties.
Although there are decided cases wherein the non-joinder of indispensable parties in fact led to the dismissal of the suit
annulment of judgment, such cases do not jibe with the matter at hand. The better view is that non-joinder is not a groun
dismiss the suit or annul the judgment. The rule on joinder of indispensable parties is founded on equity. And the spirit of
is reflected in Section 11, Rule 3122 of the 1997 Rules of Civil Procedure. It prohibits the dismissal of a suit on the ground
joinder or misjoinder of parties and allows the amendment of the complaint at any stage of the proceedings, through mot
order of the court on its own initiative. 123
Likewise, jurisprudence on the Federal Rules of Procedure, from which our Section 7, Rule 3 124 on indispensable parties
copied, allows the joinder of indispensable parties even after judgment has been entered if such is needed to afford the m
party full relief.125 Mere delay in filing the joinder motion does not necessarily result in the waiver of the right as long as th
is excusable.126 Thus, respondent Mrs. Marcos cannot correctly argue that the judgment rendered by the Sandiganbayan
void due to the non-joinder of the foreign foundations. The court had jurisdiction to render judgment which, even in the ab
of indispensable parties, was binding on all the parties before it though not on the absent party.127 If she really felt that sh
not be granted full relief due to the absence of the foreign foundations, she should have moved for their inclusion, which
allowable at any stage of the proceedings. She never did. Instead she assailed the judgment rendered.
In the face of undeniable circumstances and the avalanche of documentary evidence against them, respondent Marcose
to justify the lawful nature of their acquisition of the said assets. Hence, the Swiss deposits should be considered ill-gotte
and forfeited in favor of the State in accordance with Section 6 of RA 1379:
SEC. 6. Judgment. If the respondent is unable to show to the satisfaction of the court that he has lawful
acquired the property in question, then the court shall declare such property forfeited in favor of the State
virtue of such judgment the property aforesaid shall become property of the State x x x.
THE FAILURE TO PRESENT AUTHENTICATED TRANSLATIONS OF THE SWISS DECISIONS
Finally, petitioner Republic contends that the Honorable Sandiganbayan Presiding Justice Francis Garchitorena committ
abuse of discretion in reversing himself on the ground that the original copies of the authenticated Swiss decisions and th
authenticated translations were not submitted to the court a quo. Earlier PJ Garchitorena had quoted extensively from th
unofficial translation of one of these Swiss decisions in his ponencia dated July 29, 1999 when he denied the motion to r
US$150 Million to the human rights victims.
While we are in reality perplexed by such an incomprehensible change of heart, there might nevertheless not be any rea
belabor the issue. The presentation of the authenticated translations of the original copies of the Swiss decision was not
rigueur for the public respondent to make findings of fact and reach its conclusions. In short, the Sandiganbayan's decisi
not dependent on the determination of the Swiss courts. For that matter, neither is this Court's.
The release of the Swiss funds held in escrow in the PNB is dependent solely on the decision of this jurisdiction that said
belong to the petitioner Republic. What is important is our own assessment of the sufficiency of the evidence to rule in fa
either petitioner Republic or respondent Marcoses. In this instance, despite the absence of the authenticated translations
Swiss decisions, the evidence on hand tilts convincingly in favor of petitioner Republic.
WHEREFORE, the petition is hereby GRANTED. The assailed Resolution of the Sandiganbayan dated January 31, 2002
ASIDE. The Swiss deposits which were transferred to and are now deposited in escrow at the Philippine National Bank i
estimated aggregate amount of US$658,175,373.60 as of January 31, 2002, plus interest, are hereby forfeited in favor o
petitioner Republic of the Philippines.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Panganiban, Ynares-Santiago, Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, and T
concur.
Puno, and Vitug, JJ., in the result
Quisumbing, Sandoval-Gutierrez, J., on official leave.
Carpio, J., no part.
Footnotes
An Act Declaring Forfeiture In Favor of the State Any Property To Have Been Unlawfully Acquired By An
Officer or Employee and Providing For the Procedure Therefor.
1
E.O. No. 1 - promulgated on February 28, 1986, only two (2) days after the Marcoses fled the country, c
the PCGG which was primarily tasked to assist the President in the recovery of vast government resourc
allegedly amassed by former President Marcos, his immediate family, relatives, and close associates, bo
and abroad.
2
E.O. No. 2 issued twelve (12) days later, warning all persons and entities who had knowledge of poss
ill-gotten assets and properties under pain of penalties prescribed by law, prohibiting them from concealin
3
transferring or dissipating them or from otherwise frustrating or obstructing the recovery efforts of the gov
4
Also series of 1986, vested Sandiganbayan the exclusive and original jurisdiction over cases, whether c
criminal, to be filed by the PCGG with the assistance of the Office of the Solicitor General. The law also d
that the civil actions for the recovery of unlawfully acquired property under Republic Act No. 1379 or for
restitution, reparation of damages, or indemnification for consequential and other damages or any other c
action under the Civil Code or other existing laws filed with the Sandiganbayan against Ferdinand Marcos
may proceed independently of any criminal proceedings and may be proved by preponderance of eviden
5
Declared null and void by this Court on December 9, 1998 in the case of "Francisco I. Chavez vs. PCGG
Magtanggol Gunigundo", docketed as G.R. No. 130716.
6
In April 1986, pursuant to E.O. No. 2, the Republic of the Philippines through the PCGG filed a request f
mutual assistance with the Swiss Federal Police Department, under the procedures of the International M
Assistance in Criminal Proceedings (IMAC) to freeze the bank deposits of the Marcoses located in Switze
7
IMAC is a domestic statute of Switzerland which generally affords relief to the kind of request from foreign
governments or entities as authorized under E.O. No. 2.
The various Swiss local authorities concerned granted the request of petitioner Republic, and ordered the
deposits to be "blocked" until the competent Philippine court could decide on the matter.
8
Penned by Justice Catalino R. Castaeda, Jr. and concurred in by Presiding Justice Francis E. Garchito
and Associate Justice Gregory S. Ong.
9
10
Penned by Presiding Justice Francis E. Garchitorena with the separate concurring opinions of Associat
Nicodemo T. Ferrer and Associate Justice Gregory S. Ong. Associate Justices Catalino R. Castaeda, Jr
Francisco H. Villaruz, Jr. both wrote their respective dissenting opinions.
11
12
13
14
15
xxx
(c) The approximate amount of property he has acquired during his incumbency in his past and present o
and employments.
16
(d) A description of said property, or such thereof as has been identified by the Solicitor General.
(e) The total amount of his government salary and other proper earnings and incomes from legitimately
acquired property xxx.
17
18
19
20
21
22
23
24
25
26
27
28
Substantially the same as Section 10, Rule 8 of the old Rules of Court.
29
30
31
32
33
34
35
Blume vs. MacGregor, 148 P. 2d. 656 [see p.428, Moran, Comments on the Rules of Court, 1995 ed.].
36
37
Supra.
38
Supra.
39
"All the five (5) group accounts in the over-all flow chart have a total balance of about Three Hundred F
Million Dollars ($356,000,000.00) as shown by Annex 'R-5' hereto attached as integral part hereof."
40
22 SCRA 48 [1968]
XANDY-WINTROP-AVERTINA FOUNDATION: (a) Contract for opening of deposit dated March 21, 196
Handwritten instruction; (c) Letter dated March 3, 1970; (d) Handwritten regulation of Xandy dated Febru
1970; (e) Letter of instruction dated March 10, 1981; (f) Letter of Instructions dated March 10, 1991.
41
TRINIDAD-RAYBY-PALMY FOUNDATION: (a) Management agreement dated August 28, 1990; (b) Lette
instruction dated August 26, 1970 to Markers Geel of Furich; (c) Approval of Statutes and By-laws of Trin
Foundation dated August 26, 1990; (d) Regulations of the Trinidad Foundation dated August 28, 1970; (e
Regulations of the Trinidad Foundation prepared by Markers Geel dated August 28, 1970; (f) Letter of Ins
to the Board of Rayby Foundation dated March 10, 1981; (g) Letter of Instructions to the Board of Trinida
Foundation dated March 10, 1981.
MALER ESTABLISHMENT FOUNDATION: (a) Rules and Regulations of Maler dated October 15, 1968;
of Authorization dated October 19, 1968 to Barbey d Suncir; (c) Letter of Instruction to Muler to Swiss Ba
October 19, 1968.
"Where an action or defense is founded upon a written instrument, copied in or attached to the corresp
pleading xxx, the genuineness and due execution of the instrument shall be deemed admitted unless the
party under oath, specifically denies them, and sets forth what he claims to be the facts xxx."
42
43
44
45
46
Warner Barnes & Co., Ltd. vs. Reyes, et. al., 55 O.G. 3109-3111.
47
Philippine Bank of Communications vs. Court of Appeals, 195 SCRA 567 [1991].
48
Rule 20 of the old Rules of Court was amended but the change(s) had no adverse effects on the rights
private respondents.
49
50
Development Bank of the Phils. vs. CA, G.R. No. L-49410, 169 SCRA 409 [1989].
51
52
dated September 26, 2000 as filed by Mrs. Marcos; dated October 5, 2000 as jointly filed by Mrs. Mano
Ferdinand, Jr.; supplemental motion for reconsideration dated October 9, 2000 jointly filed by Mrs. Manot
Ferdinand, Jr.;
53
54
dated December 12, 2000 and December 17, 2000 as filed by the Marcos children.
55
56
Evadel Realty and Development Corp. vs. Spouses Antera and Virgilio Soriano, April 20, 2001.
57
Plantadosi vs. Loew's, Inc., 7 Fed. Rules Service, 786, June 2, 1943.
58
59
Carcon Development Corp. vs. Court of Appeals, 180 SCRA 348 [1989].
60
61
Substantially the same as Sections 1 and 2, Rule 34 of the old Rules of Court.
Rule 113. Summary Judgment. - When an answer is served in an action to recover a debt or a liquidate
demand arising,
62
the answer may be struck out and judgment entered thereon on motion, and the affidavit of the plaintiff or
other person having knowledge of the facts, verifying the cause of action and stating the amount claimed
belief that there is no defense to the action; unless the defendant by affidavit or other proof, shall show su
as may be deemed, by the judge hearing the motion, sufficient to entitle him to defend. (emphasis ours)
63
64
Moran, Comments on the Rules of Court, Vol. II. (1996), pp. 183-184.
65
66
67
Supra.
68
Gregorio Estrada vs. Hon. Fracisco Consolacion, et. al., 71 SCRA 523 [1976].
69
70
71
72
73
Collado vs. Court of Appeals, G.R. No.107764, October 4, 2002; Section 15, Article XI of the 1987 Con
74
75
"An Act Declaring Forfeiture in Favor of the State any Property Found to Have Been Unlawfully Acquire
Public Officer or Employee and Providing for the Proceedings Therefor", approved on June 18, 1955.
76
77
78
Ibid.
79
Id., p. 1062.
80
Exhibit "S."
81
Substantially the same as Section 2, Rule 129 of the old Rules of Court.
82
83
84
85
86
87
88
89
90
Substantially the same as Section 24, Rule 130 of the old Rules of Court.
91
92
93
94
Ibid, p. 1181.
95
Ibid, p. 1188.
96
Ibid, p. 1201.
97
98
99
100
101
102
103
104
105
Substantially the same as Section 2, Rule 129 of the old Rules of Court.
106
Substantially the same as Section 26, Rule 130 of the old Rules of Court.
107
Substantially the same as Section 28, Rule 130 of the old Rules of Court.
108
109
110
Ibid, p. 814.
111
112
Sec. 7. Compulsory joinder of indispensable parties.Parties in interest without whom no final determ
can be had of an action shall be joined either as plaintiffs or defendants. The same as Section 7, Rule 3 o
Rules of Court.
113
114
115
116
Supra note 3 citing Picket vs. Paine, 230 Ga 786, 199 SE2d 223.
117
"Comes now undersigned counsel for the respondent Imelda R. Marcos, and before this Honorable Cour
respectfully manifests:
That respondent Imelda R. Marcos owns 90% of the subject-matter of the above-entitled case, being the
beneficiary of the dollar deposits in the name of the various Foundations alleged in the case;
That in fact only 10% of the subject-matter in the above-entitled case belongs to the Estate of the late Pre
Ferdinand E. Marcos;"
118
Rollo, p. 2464, quoted from the December 18, 2000 memorandum of respondent Mrs. Marcos:
"On the other hand, the opponent to the appeal, formally the owner of the assets to be seized and restitu
not been involved in the collecting procedure pending in the Philippines. Even though such opponent is n
but a legal construction to hide the true ownership to the assets of the Marcos family, they nevertheless a
entitled to a hearing as far as the proceedings are concerned with accounts which are nominally theirs. T
guarantees of the Republic of the Philippines therefore must include the process rights not only of the de
but also of the formal owners of the assets to be delivered."
119
120
Supra.
121
Id at 470-471.
122
Substantially the same as Section 11, Rule 3 of the old Rules of Court.
Sec. 11. Misjoinder and non-joinder of parties. Neither misjoinder nor non-joinder of parties is ground
dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or o
own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined part
be severed and proceeded with separately.
123
124
125
Id citing Gentry vs. Smith (CA5 Fla) 487 F2d 571, 18 FR Serv 2d 221, later app (CA5 Fla) 538 F2d 109
reh (CA5 Fla) 544 F2d 900, holding that a failure to request the joinder of a defendant was excused wher
moving party's former counsel, who had resisted the joinder, abruptly withdrew his appearance and subs
counsel moved promptly to join the corporation.
126
127
Supra note 3.
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