EN BANC
G.R. No. L-129 December 19, 1945
TOMOYUKI YAMASHITA, petitioner,
vs.
WILHELM D. STYER, Commanding General, United States Army Forces, Western Pacific,
respondent.
Col. Harry E. Clarke and Lt. Col. Walter C. Hendrix for petitioner.
Maj. Robert M. Kerr for respondent.
Delgado, Dizon, Flores and Rodrigo appeared as amici curiae.
MORAN, C.J.:
Tomoyuki Yamashita, erstwhile commanding general of the 14th army group of the Japanese
Imperial Army in the Philippines, and now charged before an American Military Commission
with the most monstrous crimes ever committed against the American and Filipino peoples,
comes to this Court with a petition for habeas corpus and prohibition against Lt. Gen. Wilhelm
D. Styer, Commanding General of the United States Army Forces, Western Pacific. It is alleged
therein that petitioner after his surrender became a prisoner of war of the United States of
America but was later removed from such status and placed in confinement as an accused
war criminal charged before an American Military Commission constituted by respondent
Lieutenant General Styer; and he now asks that he be reinstated to his former status as
prisoner of war, and that the Military Commission be prohibited from further trying him,
upon the following grounds:
(1) That the Military Commission was not duly constituted, and, therefore, it is without
jurisdiction;
(2) That the Philippines cannot be considered as an occupied territory, and the Military
Commission cannot exercise jurisdiction therein;
(3) That Spain, the "protecting power" of Japan, has not been given notice of the
implementing trial against petitioner, contrary to the provisions of the Geneva Convention of
July 27, 1892, and therefore, the Military Commission has no jurisdiction to try the petitioner;
(4) That there is against the petitioner no charge of an offense against the laws of war; and
(5) That the rules of procedure and evidence under which the Military Commission purports
to be acting denied the petitioner a fair trial.
We believe and so hold that the petition for habeas corpus is untenable. It seeks no discharge
of petitioner from confinement but merely his restoration to his former status as a prisoner of
war, to be interned, not confined. The relative difference as to the degree of confinement in
such cases is a matter of military measure, disciplinary in character, beyond the jurisdiction of
civil courts.
Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The
military Commission is not made party respondent in this case, and although it may be acting,
as alleged, without jurisdiction, no order may be issued in these case proceedings requiring it
to refrain from trying the petitioner.
Furthermore, this Court has no jurisdiction to entertain the petition even if the commission
be joined as respondent. As we have said in Raquiza vs. Bradford (pp. 50, 61, ante), ". . . an
attempt of our civil courts to exercise jurisdiction over the United States Army before such
period (state of war) expires, would be considered as a violation of this country's faith, which
this Court should not be the last to keep and uphold." (Emphasis supplied) We have said this
in a case where Filipino citizens were under confinement, and we can say no less in a case
where the person confined is an enemy charged with the most heinous atrocities committed
against the American and Filipino peoples.
True that the rule was made applicable in time of war, and there is a conflict of opinion as to
whether war has already terminated. War is not ended simply because hostilities have
ceased. After cessation of armed hostilities, incident of war may remain pending which should
be disposed of as in time of war. "An important incident to a conduct of a war is the adoption
of measure by the military command not only to repel and defeat the enemies but to seize
and subject to disciplinary measures those enemies who in their attempt to thwart or impede
our military effort to have violated the law of the war." (Ex parte Quirin, 317 US., 1; 63 Sup.
Ct., 2.) Indeed, the power to create a Military Commission for the trial and punishment of war
criminals is an aspect of waging war. And, in the language of a writer, a Military Commission
"has jurisdiction so long as a technical state of war continues. This includes the period of an
armistice, or military occupation, up to the effective date of a treaty agreement." (Cowles,
Trial of War Criminals by Military Tribunals, American Bar Association Journal, June, 1944.)
Upon the other hand, we have once said (Payomo vs. Floyd, 42 Phil., 788), — and this
applicable in time of war as well as the time of peace — that this Court has no power to
review upon habeas corpus the proceedings of a military or naval tribunal, an that, in such
case, "the single inquiry, the test, is jurisdiction. That being established, the habeas corpus
must be denied and the petitioner discharged." (In re Grimley, 137 U.S., 147; 11 Sup. Ct., 54;
34 La. ed., 636.) Following this rule in the instant case, we find that the Military Commission
has been validly constituted and it has jurisdiction both over the person of the petitioner and
over the offenses with which he is charged.
The Commission has been validly constituted by Lieutenant General Styer duly issued by
General Douglas MacArthur, Commander in Chief, United States Army Force Pacific, in
accordance in authority vested in him and with radio communication from the Joint Chiefs of
Staff, as shown by Exhibits C, E, G, and H, attached by petition. Under paragraph 356 of the
Rules of the Land Welfare a Military Commission for the trial and punishment of the war
criminals must be designated by the belligerent. And the belligerent's representative in the
present case is none other than the Commander in Chief of the United States Army in the
Pacific. According to the Regulations Governing the Trial of the War Criminals in the Pacific,
attached as Exhibit F to the petition, the "trial of persons, units and organizations accused as
a war criminals will be the Military Commissions to be convened by or under the authority of
the Commander in Chief, United States Army Forces, Pacific." Articles of War Nos. 12 and 15
recognized the "Military Commission" appointed by military command as an appropriate
tribunal for the trial and punishment of offenses against the law of the war not ordinarily
tried by court martial. (Ex parte Quirin, supra.) And this has always been the United States
military practice at since the Mexican War of 1847 when General Winfield Scott took the
position that, under the laws of war, a military commander has an implied power to appoint
and convene a Military Commission. This is upon the theory that since the power to create a
Military Commission is an aspect of waging war, Military Commanders have that power unless
expressly withdrawn from them.
The Military Commission thus duly constituted has jurisdiction both over the person of the
petitioner and over the offenses with which he is charged. It has jurisdiction over the person
of the petitioner by reason of his having fallen into the hands of the United States Army
Forces. Under paragraph 347 of the Rules of the Land Warfare, "the commanders ordering
the commission of such acts, or under whose authority they are committed by their troops,
may be punished by the belligerent into whose hands they may fall."
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As to the jurisdiction of the Military Commission over war crimes, the Supreme Court of the
United States said:
From the very beginning of its history this Court has recognized and applied the law of war as
including that part of the law of nations which prescribes, for the conduct of war, the status
rights and duties and of enemy nations as well as of enemy individuals. By the Articles of War,
and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do
so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of
war in appropriate cases. Congress, in addition to making rules for the government of our
Armed Forces, has thus exercised its authority to define and punish offenses against the law
of nations by sanctioning, within constitutional limitations, the jurisdiction of military
commissions to try persons and offenses which, according to the rules and precepts of the
law of nations, and more particularly the law of war, are cognizable by such tribunals. (Ex
parte Quirin, 317 U.S. 1, 27-28; 63 Sup. Ct., 2.)
Petitioner is charged before the Military Commission sitting at Manila with having permitted
members of his command "to commit brutal atrocities and other high crimes against the
people of the United States and of its allies and dependencies, particularly the Philippines,"
crimes and atrocities which in the bills of particulars, are described as massacre and
extermination of thousand and thousands of unarmed noncombatant civilians by cruel and
brutal means, including bayoneting of children and raping of young girls, as well as
devastation and destruction of public, or private, and religious property for no other motive
than pillage and hatred. These are offenses against the laws of the war as described in
paragraph 347 of the Rules of Land Warfare.
It is maintained, however, that, according to the Regulations Governing the Trial of War
Criminals in the Pacific. "the Military Commission . . . shall have jurisdiction over all of Japan
and other areas occupied by the armed forces commanded by the Commander in Chief,
United States Army Forces, Pacific" (emphasis supplied), and the Philippines is not an
occupied territory. The American Forces have occupied the Philippines for the purpose of
liberating the Filipino people from the shackles of Japanese tyranny, and the creation of a
Military Commission for the trial and punishment of Japanese war criminals is an incident of
such war of liberation.
It is maintained that Spain, the "protecting power" of Japan, has not been given notice before
trial was begun against petitioner, contrary to the provisions of the Geneva Convention of July
27, 1929. But there is nothing in that Convention showing that notice is a prerequisite to the
jurisdiction of Military Commissions appointed by victorious belligerent. Upon the other hand,
the unconditional surrender of Japan and her acceptance of the terms of the Potsdam
Ultimatum are a clear waiver of such a notice. It may be stated, furthermore, that Spain has
severed her diplomatic relation of Japan because of atrocities committed by the Japanese
troops against Spaniards in the Philippines. Apparently, therefore, Spain has ceased to be the
protecting power of Japan.
And, lastly, it is alleged that the rules of procedure and evidence being followed by the
Military Commission in the admission of allegedly immaterial or hearsay evidence, cannot
divest the commission of its jurisdiction and cannot be reviewed in a petition for the habeas
corpus. (25 Am. Jur., 218; Collins vs. McDonald, 258 U. S. 416; 66 Law. ed., 692; 42 Sup. Ct.,
326).
For all foregoing, petition is hereby dismissed without costs.lawphi1.net
Jaranilla, Feria, De Joya, Pablo, Hilado, Bengzon, and Briones, JJ., concur.
Paras, J., concurs in the result.

2
EN BANC
G.R. No. L-1812 August 27, 1948
EREMES KOOKOORITCHKIN, petitioner,
vs.
THE SOLICITOR GENERAL, oppositor.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Florencio Villamor for
appellant.
L. D. Lockwood and Manuel O. Chan for appellee.
PERFECTO, J.:
In August, 1941, appellee filed with the lower court a petition for naturalization, accompanied
with supporting affidavits of two citizens, copy of a declaration of intention sworn in July,
1940, and proper notice of the hearing. The petition was finally set for hearing on December
18, 1941, but it was held on that date because the province was invaded by the Japanese
forces on December 14, and the case remained pending until the records were destroyed
during the military operations for liberation in March, 1945. The case was declared
reconstituted on May 10, 1947, and the evidence was presented on August 28 and September
30, 1947. On the same day resolution was issued granting the petition.
Although appellant was represented at the hearing and cross-examined the witnesses for the
petitioner, he did not file an opposition or presented any evidence.
The lower court made the findings of fact in the following paragraphs of its resolution:
Eremes Kookooritchkin applies for Philippine citizenship naturalization under the provisions of
Commonwealth Act 473, as amended by Act 535.
The records shows that in August, 1941, he filed his petition for naturalization supported by
the affidavits of ex-Judge Jaime M. Reyes and Dr. Salvador Mariano, both residents of
Camarines Sur. In the preceding year, in July, 1940 to be precise, he filed his declaration of
intention to become a citizen of this country. Notice of the hearing was published as required
by law.
It was established at the hearing that the petitioner is a native-born Russian, having first seen
the light of day on November 4, 1897 in the old City of St. Petersburg, Russia. He grew up as a
citizen of the defunct Imperial Russian Government under the Czars. World War I found him
in the military service of this Government. In 1915 he volunteered for the Imperial Russian
navy and was sent to the Navy Aviation School. He fought with the Allies in the Baltic Sea, was
later transferred to the eastern front in Poland, and much later was sent as a navy flier to Asia
Minor. In the latter part of the war, but before the Russian capitulation, he was transferred to
the British Air Force under which he served for fourteen months. When the revolution broke
out in Russia in 1917, he joined the White Russian Army at Vladivostok and fought against the
Bolsheviks until 1922 when the White Russian Army was overwhelmed by the Bolsheviks. As
he refused to join the Bolshevik regime, he fled by sea from Vladivostok to Shanghai and from
this Chinese port he found his way to Manila, arriving at this port as a member of a group of
White Russians under Admiral Stark in March, 1923. He stayed in Manila for about seven
months, then moved to Olongapo, Zambales, where he resided for about a year, and from
this place he went to Iriga, Camarines Sur, where he established his permanent residence
since May, 1925. He has remained a resident of this municipality, except for a brief period
from 1942 to July, 1945, when by reason of his underground activities he roamed mountains
of Caramoan as a guerrilla officer. After liberation he returned to Iriga where again he resides
up to the present time.
The applicant is married to a Filipino by the name of Concepcion Segovia, with whom he has
one son named Ronald Kookooritchkin. He is at present studying in Saint Agnes Academy, at
Legaspi, Albay, a school duly recognized by the Government.
The applicant is shop superintendent of A. L. Ammen Transportation Company, with about
eighty Filipino employees working under him. He receives an annual salary of P13,200 with
free quarters and house allowance. He also owns stocks and bonds of this and other
companies.
The applicant speaks and writes English and the Bicol dialect. Socially he intermingles with the
Filipinos, attending parties, dances and other social functions with his wife. He has a good
moral character and believes in the principles underlying the Philippine Constitution. He has
never been accused of any crime. On the other hand, he has always conducted himself in a
proper and irreproachable manner during his entire period of residence in Camarines Sur, in
his relations with the constituted authorities as well as with the community.
Although he could have lived in ease by maintaining good relations with the enemy by reason
of his being Russian-born during the years preceding the declaration of war by Russia against
Japan, the applicant of his own volition chose to cast his lot with the guerrilla movement and
fought the enemy in several encounters in the Province of Camarines Sur. He belonged to the
guerrilla outfit of Colonel Padua with rank of major. Upon the arrival of the forces of
liberation he was attached to the American Army from April to June, 1945.
Although a Russian by birth he is not a citizen of Soviet Russia. He disclaims allegiance to the
present Communist Government of Russia. He is, therefore, a stateless refugee in this
country, belonging to no State, much less to the present Government of the land of his birth
to which he is uncompromisingly opposed. He is not against organized government or
affiliated with any association which upholds and teaches doctrine opposing all organized
governments. He does not believe in the necessity or propriety of violence, personal assault
or assassination for the success or predominance of his ideas. Neither is he a polygamist or a
believer in the practice of polygamy. He is not suffering from any mental alienation or
incurable contagious disease.
Appellant assigns four errors in the appealed resolution. We will consider them separately.
I
Appellant claims that the lower court erred in not finding that the declaration of intention to
become a Filipino citizen filed by appellee is invalid and insufficient as a basis for the petition
of naturalization. The question calls for the application of the following provision of section 5
of the Revised Naturalization Law:
No declaration shall be valid until entry for permanent residence has been established and a
certificate showing the date, place and manner of his arrival has been issued.
Appellant alleges that no documentary or testimonial evidence was introduced to establish
the fact that appellee had lawfully been admitted into the Philippines for permanent
residence.
In the reconstituted declaration (page 11, record on appeal) the following can be read:
I arrived at the Port of Manila on or about the first day of March, 1923, as shown by the
attached certificate of arrival or landing certificate of residence.
The records of the Bureau of Justice, where the declarations of intention to become a Filipino
citizen were filed, had been lost or destroyed during the battle for the liberation of Manila,
and the certificate alluded to has not been reconstituted.
3
Appellant's contention that attachment of the certificate of arrival is essential to the validity
of a declaration finds no support in the wordings of the law, as the above-quoted section 5 of
Commonwealth Act no. 473 uses the words "has been issued.
Appellee suggests that we would not consider the question here raised by appellant, the
latter having failed to raise it in lower court and points out that there is testimonial evidence
showing appellee's arrival March, 1923, and that he was lawfully admitted for permanent
residence, and the testimony of petitioner has not been refuted. Appellee's alleges that the
office of the President has certified that it is a matter of record that petitioner was one of the
Russian refugees who entered the Philippines under the command of Admiral Stark, the facts
regarding arrival of the latter fleet being a matter of common knowledge, widely publicized in
the newspapers at the time, of which this Court may properly take judicial notice under
section 5 of Rule 123. When the fleet entered the Philippine waters, it was met by a Governor
General Wood who, later, took the matter up with the authorities in Washington in lengthy
correspondence, and the 1,200 persons manning the fleet were allowed to land and to
remain in the Philippines or proceed to other countries, except about 800 who were allowed
to go to the United States and given free transportation on the naval transport "Merritt." The
ships of the fleet were sold in the Philippines.
The undisputed fact that the petitioner has been continuously residing in the Philippines for
about 25 years, without having been molested by the authorities, who are presumed to have
been regularly performing their duties and would have arrested petitioner if his residence is
illegal, as rightly contended by appellee, can be taken as evidence that he is enjoying
permanent residence legally. That a certificate of arrival has been issued is a fact that should
be accepted upon the petitioner's undisputed statement in his declaration of July, 1940, that
the certificate cannot be supposed that the receiving official would have accepted the
declaration without the certificate mentioned therein as attached thereto.
We conclude that petitioner's declaration is valid under section 5 of the Naturalization Law,
failure to reconstitute the certificate of arrival notwithstanding. What an unreconstituted
document intended to prove may be shown by other competent evidence.
II
The second assignment of error touches upon two questions, that the lower court erred (1) in
not finding that appellee has not established a legal residence in the Philippines, and (2) in
not finding that he cannot speak and write any of the principal Philippine languages.
The first question has already been disposed of in the above discussion. Perusal of the
testimonies on record leads to the conclusion that petitioner has shown legal residence in the
Philippines for a continuous period of not less than ten years as required by section 2 of
Commonwealth Act No. 473.
As to the next question, appellant alleges that in the oral test at the hearing, it was
demonstrated that petitioner has only a smattering of Bicol, the Filipino language that
petitioner alleges to know, and he cannot speak it as he was not able to translate from English
to Bicol questions asked by the court and the provincial fiscal, although, in the continuation of
the hearing on September 30, 1947, "surprisingly enough, he succeeded answering correctly
in Bicol the questions propounded by his counsel, however, he fumbled and failed to give the
translation of such a common word as 'love' which the fiscal asked of him.
The lower court made the finding of fact that applicant speaks and writes English and Bicol
and there seems to be no question about the competency of the judge who made the
pronouncement, because he has shown by the appealed resolution and by his questions
propounded to appellee, that he has command of both English and Bicol.
The law has not set a specific standard of the principal Philippine languages. A great number
of standards can be set. There are experts in English who say that Shakespeare has used in his
works 15,000 different English words, and the King's Bible about 10,000, while about 5,000
are used by the better educated persons and about 3,000 by the average individual. While
there may be persons ambitious enough to have a command of the about 600,000 words
recorded in the Webster's International Dictionary, there are authorities who would reduce
basic English to a few hundred words. Perhaps less than one hundred well selected words will
be enough for the ordinary purposes of daily life.
There is a reason to believe that the lower court's pronouncement is well taken considering
the fact that, after he was liberated in 1942 from the Japanese in the Naga prison, petitioner
joined the guerrilla in the Bicol region, took part in encounters and skirmishes against the
Japanese, and remained with the guerrilla until the Americans liberated the Bicol provinces. If
appellee with his smattering of Bicol was able to get along with his Bicol comrades in the
hazardous life of the resistance movement, we believe that his knowledge of the language
satisfies the requirement of the law.
But appellant contends that there is no piece of positive evidence to support petitioner's
allegation that he can write too in the Bicol language. There, is, however, on record
circumstantial evidence from which it can be concluded that petitioner ought to know also
how to write Bicol. We know that Bicol, as all the important Philippine languages, uses the
same alphabet used in English, and it is much easier to write Bicol than English, because it is
phonetic. Vowels and consonants have in them single and not interchangeable phonetic
values, while English words deviate very often from the basic sounds of the alphabet. The
ability to write cannot be denied to a person like petitioner, who has undergone the exacting
technical training to be able to render services as flier in the Russian Naval Squadron in the
Baltic Sea and in the British Air Forces during the first World War. The difference between the
Cyrillic alphabet, as now used by Russians, and our Roman alphabet, cannot weigh much to
deny petitioner the ability to use the latter. A person who has shown the command of English
which can be seen in his testimony on record can easily make use of an alphabet of twenty or
more letters universally used in this country where he has been residing continuously for 25
years.
III
Appellant contends that the lower court erred in finding appellee stateless and not a Russian
citizen and in not finding that he has failed to establish that he is not disqualified for
Philippine citizenship under section 4 (h) of the Revised Naturalization Law.
It is contended that petitioner failed to show that under the laws of Russia, appellee has lost
his Russian citizenship and failed to show that Russia grants to Filipinos the right to become a
naturalized citizens or subjects thereof. The controversy centers on the question as to
whether petitioner is a Russian citizen or is stateless.
Petitioner testified categorically that he is not a Russian citizen and that he has no citizenship.
His testimony supports the lower court's pronouncement that petitioner is a stateless refugee
in this country.
Appellant points out that petitioner stated in his petition for naturalization that he is citizen
or subject of the Empire of Russia, but the Empire of Russia has ceased to exist since the Czars
were overthrown in 1917 by the Bolshevists, and the petitioner disclaims allegiance or
connection with the Soviet Government established after the overthrow of the Czarist
Government.
4
We do not believe that the lower court erred in pronouncing appellee stateless. Appellee's
testimony, besides being uncontradicted, is supported by the well-known fact that the
ruthlessness of modern dictatorship has scattered throughout the world a large number of
stateless refugees or displaced persons, without country and without flag. The tyrannical
intolerance of said dictatorships toward all opposition induced them to resort to beastly
oppression, concentration camps and blood purges, and it is only natural that the not-so-
fortunate ones who were able to escape to foreign countries should feel the loss of all bonds
of attachment to the hells which were formerly their fatherland's. Petitioner belongs to that
group of stateless refugees.
Knowing, as all cultured persons all over the world ought to know, the history, nature and
character of the Soviet dictatorship, presently the greatest menace to humanity and
civilization, it would be technically fastidious to require further evidence of petitioner's claim
that he is stateless than his testimony that he owes no allegiance to the Russian Communist
Government and, is because he has been at war with it, he fled from Russia to permanently
reside in the Philippines. After finding in this country economic security in a remunerative job,
establishing a family by marrying a Filipina with whom he has a son, and enjoying for 25 years
the freedoms and blessings of our democratic way of life, and after showing his resolution to
retain the happiness he found in our political system to the extent of refusing to claim Russian
citizenship even to secure his release from the Japanese and of casting his lot with that of our
people by joining the fortunes and misfortunes of our guerrillas, it would be beyond
comprehension to support that the petitioner could feel any bond of attachment to the Soviet
dictatorship.
IV
The fourth and last assignment of error need not be discussed, it being only a sequel of the
other assignments and has necessarily been disposed of in their discussion.
The appealed resolution is affirmed.
Paras, Feria, Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.

5
EN BANC
G.R. No. L-2662 March 26, 1949
SHIGENORI KURODA, petitioner,
vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel
MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major
FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey
for respondents.
MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and
Commanding General of the Japanese Imperial Forces in The Philippines during a period
covering 19433 and 19444 who is now charged before a military Commission convened by the
Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and
failed "to discharge his duties as such command, permitting them to commit brutal atrocities
and other high crimes against noncombatant civilians and prisoners of the Imperial Japanese
Forces in violation of the laws and customs of war" — comes before this Court seeking to
establish the illegality of Executive Order No. 68 of the President of the Philippines: to enjoin
and prohibit respondents Melville S. Hussey and Robert Port from participating in the
prosecution of petitioner's case before the Military Commission and to permanently prohibit
respondents from proceeding with the case of petitioners.
In support of his case petitioner tenders the following principal arguments.
First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the
provision of our constitutional law but also our local laws to say nothing of the fact (that) the
Philippines is not a signatory nor an adherent to the Hague Convention on Rules and
Regulations covering Land Warfare and therefore petitioners is charged of 'crimes' not based
on law, national and international." Hence petitioner argues — "That in view off the fact that
this commission has been empanelled by virtue of an unconstitutional law an illegal order this
commission is without jurisdiction to try herein petitioner."
Second. — That the participation in the prosecution of the case against petitioner before the
Commission in behalf of the United State of America of attorneys Melville Hussey and Robert
Port who are not attorneys authorized by the Supreme Court to practice law in the Philippines
is a diminution of our personality as an independent state and their appointment as
prosecutor are a violation of our Constitution for the reason that they are not qualified to
practice law in the Philippines.
Third. — That Attorneys Hussey and Port have no personality as prosecution the United State
not being a party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office prescribing rule and
regulation governing the trial of accused war criminals, was issued by the President of the
Philippines on the 29th days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3, that —
The Philippines renounces war as an instrument of national policy and adopts the generally
accepted principles of international law as part of the of the nation.
In accordance with the generally accepted principle of international law of the present day
including the Hague Convention the Geneva Convention and significant precedents of
international jurisprudence established by the United Nation all those person military or
civilian who have been guilty of planning preparing or waging a war of aggression and of the
commission of crimes and offenses consequential and incidental thereto in violation of the
laws and customs of war, of humanity and civilization are held accountable therefor.
Consequently in the promulgation and enforcement of Execution Order No. 68 the President
of the Philippines has acted in conformity with the generally accepted and policies of
international law which are part of the our Constitution.
The promulgation of said executive order is an exercise by the President of his power as
Commander in chief of all our armed forces as upheld by this Court in the case of Yamashita
vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we said —
War is not ended simply because hostilities have ceased. After cessation of armed hostilities
incident of war may remain pending which should be disposed of as in time of war. An
importance incident to a conduct of war is the adoption of measure by the military command
not only to repel and defeat the enemies but to seize and subject to disciplinary measure
those enemies who in their attempt to thwart or impede our military effort have violated the
law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a military
commission for the trial and punishment of war criminals is an aspect of waging war. And in
the language of a writer a military commission has jurisdiction so long as a technical state of
war continues. This includes the period of an armistice or military occupation up to the
effective of a treaty of peace and may extend beyond by treaty agreement. (Cowles Trial of
War Criminals by Military Tribunals, America Bar Association Journal June, 1944.)
Consequently, the President as Commander in Chief is fully empowered to consummate this
unfinished aspect of war namely the trial and punishment of war criminal through the
issuance and enforcement of Executive Order No. 68.
Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for
acts committed in violation of the Hague Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed the second only in 1947. It cannot be
denied that the rules and regulation of the Hague and Geneva conventions form, part of and
are wholly based on the generally accepted principals of international law. In facts these rules
and principles were accepted by the two belligerent nation the United State and Japan who
were signatories to the two Convention, Such rule and principles therefore form part of the
law of our nation even if the Philippines was not a signatory to the conventions embodying
them for our Constitution has been deliberately general and extensive in its scope and is not
confined to the recognition of rule and principle of international law as continued inn treaties
to which our government may have been or shall be a signatory.
Furthermore when the crimes charged against petitioner were allegedly committed the
Philippines was under the sovereignty of United States and thus we were equally bound
together with the United States and with Japan to the right and obligation contained in the
treaties between the belligerent countries. These rights and obligation were not erased by
our assumption of full sovereignty. If at all our emergency as a free state entitles us to
enforce the right on our own of trying and punishing those who committed crimes against
crimes against our people. In this connection it is well to remember what we have said in the
case of Laurel vs. Misa (76 Phil., 372):
. . . The change of our form government from Commonwealth to Republic does not affect the
prosecution of those charged with the crime of treason committed during then
Commonwealth because it is an offense against the same sovereign people. . . .
By the same token war crimes committed against our people and our government while we
were a Commonwealth are triable and punishable by our present Republic.
6
Petitioner challenges the participation of two American attorneys namely Melville S. Hussey
and Robert Port in the prosecution of his case on the ground that said attorney's are not
qualified to practice law in Philippines in accordance with our Rules of court and the
appointment of said attorneys as prosecutors is violative of our national sovereignty.
In the first place respondent Military Commission is a special military tribunal governed by a
special law and not by the Rules of court which govern ordinary civil court. It has already been
shown that Executive Order No. 68 which provides for the organization of such military
commission is a valid and constitutional law. There is nothing in said executive order which
requires that counsel appearing before said commission must be attorneys qualified to
practice law in the Philippines in accordance with the Rules of Court. In facts it is common in
military tribunals that counsel for the parties are usually military personnel who are neither
attorneys nor even possessed of legal training.
Secondly the appointment of the two American attorneys is not violative of our nation
sovereignty. It is only fair and proper that United States, which has submitted the vindication
of crimes against her government and her people to a tribunal of our nation should be
allowed representation in the trial of those very crimes. If there has been any relinquishment
of sovereignty it has not been by our government but by the United State Government which
has yielded to us the trial and punishment of her enemies. The least that we could do in the
spirit of comity is to allow them representation in said trials.
Alleging that the United State is not a party in interest in the case petitioner challenges the
personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that the
United State and its people have been equally if not more greatly aggrieved by the crimes
with which petitioner stands charged before the Military Commission. It can be considered a
privilege for our Republic that a leader nation should submit the vindication of the honor of
its citizens and its government to a military tribunal of our country.
The Military Commission having been convened by virtue of a valid law with jurisdiction over
the crimes charged which fall under the provisions of Executive Order No. 68, and having said
petitioner in its custody, this Court will not interfere with the due process of such Military
commission.
For all the foregoing the petition is denied with costs de oficio.
Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

7
EN BANC
G.R. No. 175888 February 11, 2009
SUZETTE NICOLAS y SOMBILON, Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; RAUL GONZALEZ, in his
capacity as Secretary of Justice; EDUARDO ERMITA, in his capacity as Executive Secretary;
RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government; SERGIO
APOSTOL, in his capacity as Presidential Legal Counsel; and L/CPL. DANIEL SMITH,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 176051 February 11, 2009
JOVITO R. SALONGA, WIGBERTO E. TAÑADA, JOSE DE LA RAMA, EMILIO C. CAPULONG, H.
HARRY L. ROQUE, JR., FLORIN HILBAY, and BENJAMIN POZON, Petitioners,
vs.
DANIEL SMITH, SECRETARY RAUL GONZALEZ, PRESIDENTIAL LEGAL COUNSEL SERGIO
APOSTOL, SECRETARY RONALDO PUNO, SECRETARY ALBERTO ROMULO, The Special 16th
Division of the COURT OF APPEALS, and all persons acting in their capacity, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 176222 February 11, 2009
BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by Dr. Carol Araullo; GABRIELA,
represented by Emerenciana de Jesus; BAYAN MUNA, represented by Rep. Satur Ocampo;
GABRIELA WOMEN'S PARTY, represented by Rep. Liza Maza; KILUSANG MAYO UNO (KMU),
represented by Elmer Labog; KILUSANG MAGBUBUKID NG PILIPINAS (KMP), represented by
Willy Marbella; LEAGUE OF FILIPINO STUDENTS (LFS), represented by Vencer Crisostomo;
and THE PUBLIC INTEREST LAW CENTER, represented by Atty. Rachel Pastores, Petitioners,
vs.
PRESIDENT GLORIA MACAPAGAL-ARROYO, in her capacity as concurrent Defense Secretary,
EXECUTIVE SECRETARY EDUARDO ERMITA, FOREIGN AFFAIRS SECRETARY ALBERTO
ROMULO, JUSTICE SECRETARY RAUL GONZALEZ, AND INTERIOR AND LOCAL GOVERNMENT
SECRETARY RONALDO PUNO, Respondents.
DECISION
AZCUNA, J.:
These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision
of the Court of Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in
CA-G.R. SP No. 97212, dated January 2, 2007.
The facts are not disputed.
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed
Forces. He was charged with the crime of rape committed against a Filipina, petitioner herein,
sometime on November 1, 2005, as follows:
The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic Duplantis,
Keith Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A of the
Revised Penal Code, as amended by Republic Act 8353, upon a complaint under oath filed by
Suzette S. Nicolas, which is attached hereto and made an integral part hereof as Annex "A,"
committed as follows:
"That on or about the First (1st) day of November 2005, inside the Subic Bay Freeport Zone,
Olongapo City and within the jurisdiction of this Honorable Court, the above-named accused’s
(sic), being then members of the United States Marine Corps, except Timoteo L. Soriano, Jr.,
conspiring, confederating together and mutually helping one another, with lewd design and
by means of force, threat and intimidation, with abuse of superior strength and taking
advantage of the intoxication of the victim, did then and there willfully, unlawfully and
feloniously sexually abuse and have sexual intercourse with or carnal knowledge of one
Suzette S. Nicolas, a 22-year old unmarried woman inside a Starex Van with Plate No. WKF-
162, owned by Starways Travel and Tours, with Office address at 8900 P. Victor St.,
Guadalupe, Makati City, and driven by accused Timoteo L. Soriano, Jr., against the will and
consent of the said Suzette S. Nicolas, to her damage and prejudice.
CONTRARY TO LAW."1
Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and
the United States, entered into on February 10, 1998, the United States, at its request, was
granted custody of defendant Smith pending the proceedings.
During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the
RTC of Makati for security reasons, the United States Government faithfully complied with its
undertaking to bring defendant Smith to the trial court every time his presence was required.
On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its Decision,
finding defendant Smith guilty, thus:
WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient
evidence against accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND
L/CPL. DOMINIC DUPLANTIS, all of the US Marine Corps assigned at the USS Essex, are hereby
ACQUITTED to the crime charged.
The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J.
SMITH, also of the US Marine Corps at the USS Essex, this Court hereby finds him GUILTY
BEYOND REASONABLE DOUBT of the crime of RAPE defined under Article 266-A, paragraph 1
(a) of the Revised Penal Code, as amended by R.A. 8353, and, in accordance with Article 266-
B, first paragraph thereof, hereby sentences him to suffer the penalty of reclusion perpetua
together with the accessory penalties provided for under Article 41 of the same Code.
Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the
Philippines and the United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in
the facilities that shall, thereafter, be agreed upon by appropriate Philippine and United
States authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J. SMITH is
hereby temporarily committed to the Makati City Jail.
Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S.
NICOLAS in the amount of ₱50,000.00 as compensatory damages plus ₱50,000.00 as moral
damages.
SO ORDERED.2
As a result, the Makati court ordered Smith detained at the Makati jail until further orders.
On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a
contingent of Philippine law enforcement agents, purportedly acting under orders of the
Department of the Interior and Local Government, and brought to a facility for detention
under the control of the United States government, provided for under new agreements
between the Philippines and the United States, referred to as the Romulo-Kenney Agreement
of December 19, 2006 which states:
The Government of the Republic of the Philippines and the Government of the United States
of America agree that, in accordance with the Visiting Forces Agreement signed between our
two nations, Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to U.S.
military custody at the U.S. Embassy in Manila.
8

(Sgd.) Kristie A. Kenney (Sgd.) Alberto G. Romulo
Representative of the United States Representative of the Republic
of America of the Philippines
DATE: 12-19-06 DATE: December 19, 2006
and the Romulo-Kenney Agreement of December 22, 2006 which states:
The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the
United States of America agree that, in accordance with the Visiting Forces Agreement signed
between the two nations, upon transfer of Lance Corporal Daniel J. Smith, United States
Marine Corps, from the Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG)
Building, U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be
guarded round the clock by U.S. military personnel. The Philippine police and jail authorities,
under the direct supervision of the Philippine Department of Interior and Local Government
(DILG) will have access to the place of detention to ensure the United States is in compliance
with the terms of the VFA.
The matter was brought before the Court of Appeals which decided on January 2, 2007, as
follows:
WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for having
become moot.3
Hence, the present actions.
The petitions were heard on oral arguments on September 19, 2008, after which the parties
submitted their memoranda.
Petitioners contend that the Philippines should have custody of defendant L/CPL Smith
because, first of all, the VFA is void and unconstitutional.
This issue had been raised before, and this Court resolved in favor of the constitutionality of
the VFA. This was in Bayan v. Zamora,4 brought by Bayan, one of petitioners in the present
cases.
Against the barriers of res judicata vis-à-vis Bayan, and stare decisis vis-à-vis all the parties,
the reversal of the previous ruling is sought on the ground that the issue is of primordial
importance, involving the sovereignty of the Republic, as well as a specific mandate of the
Constitution.
The provision of the Constitution is Art. XVIII, Sec. 25 which states:
Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops, or facilities
shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate
and, when the Congress so requires, ratified by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a treaty by the other
contracting State.
The reason for this provision lies in history and the Philippine experience in regard to the
United States military bases in the country.
It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine
Commonwealth and, eventually, for the recognition of independence, the United States
agreed to cede to the Philippines all the territory it acquired from Spain under the Treaty of
Paris, plus a few islands later added to its realm, except certain naval ports and/or military
bases and facilities, which the United States retained for itself.
This is noteworthy, because what this means is that Clark and Subic and the other places in
the Philippines covered by the RP-US Military Bases Agreement of 1947 were not Philippine
territory, as they were excluded from the cession and retained by the US.
Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed
by the United States. Furthermore, the RP-US Military Bases Agreement was never advised
for ratification by the United States Senate, a disparity in treatment, because the Philippines
regarded it as a treaty and had it concurred in by our Senate.
Subsequently, the United States agreed to turn over these bases to the Philippines; and with
the expiration of the RP-US Military Bases Agreement in 1991, the territory covered by these
bases were finally ceded to the Philippines.
To prevent a recurrence of this experience, the provision in question was adopted in the 1987
Constitution.
The provision is thus designed to ensure that any agreement allowing the presence of foreign
military bases, troops or facilities in Philippine territory shall be equally binding on the
Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of
the situation in which the terms and conditions governing the presence of foreign armed
forces in our territory were binding upon us but not upon the foreign State.
Applying the provision to the situation involved in these cases, the question is whether or not
the presence of US Armed Forces in Philippine territory pursuant to the VFA is allowed "under
a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other
contracting State."
This Court finds that it is, for two reasons.
First, as held in Bayan v. Zamora,5 the VFA was duly concurred in by the Philippine Senate and
has been recognized as a treaty by the United States as attested and certified by the duly
authorized representative of the United States government.
The fact that the VFA was not submitted for advice and consent of the United States Senate
does not detract from its status as a binding international agreement or treaty recognized by
the said State. For this is a matter of internal United States law. Notice can be taken of the
internationally known practice by the United States of submitting to its Senate for advice and
consent agreements that are policymaking in nature, whereas those that carry out or further
implement these policymaking agreements are merely submitted to Congress, under the
provisions of the so-called Case–Zablocki Act, within sixty days from ratification.6
The second reason has to do with the relation between the VFA and the RP-US Mutual
Defense Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with
the concurrence of both the Philippine Senate and the United States Senate.
The RP-US Mutual Defense Treaty states:7
MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE UNITED
STATES OF AMERICA. Signed at Washington, August 30, 1951.
The Parties of this Treaty
Reaffirming their faith in the purposes and principles of the Charter of the United Nations and
their desire to live in peace with all peoples and all governments, and desiring to strengthen
the fabric of peace in the Pacific area.
Recalling with mutual pride the historic relationship which brought their two peoples
together in a common bond of sympathy and mutual ideals to fight side-by-side against
imperialist aggression during the last war.
9
Desiring to declare publicly and formally their sense of unity and their common determination
to defend themselves against external armed attack, so that no potential aggressor could be
under the illusion that either of them stands alone in the Pacific area.
Desiring further to strengthen their present efforts for collective defense for the preservation
of peace and security pending the development of a more comprehensive system of regional
security in the Pacific area.
Agreeing that nothing in this present instrument shall be considered or interpreted as in any
way or sense altering or diminishing any existing agreements or understandings between the
Republic of the Philippines and the United States of America.
Have agreed as follows:
Article I. The parties undertake, as set forth in the Charter of the United Nations, to settle any
international disputes in which they may be involved by peaceful means in such a manner
that international peace and security and justice are not endangered and to refrain in their
international relation from the threat or use of force in any manner inconsistent with the
purposes of the United Nations.
Article II. In order more effectively to achieve the objective of this Treaty, the Parties
separately and jointly by self-help and mutual aid will maintain and develop their individual
and collective capacity to resist armed attack.
Article III. The Parties, through their Foreign Ministers or their deputies, will consult together
from time to time regarding the implementation of this Treaty and whenever in the opinion
of either of them the territorial integrity, political independence or security of either of the
Parties is threatened by external armed attack in the Pacific.
Article IV. Each Party recognizes that an armed attack in the Pacific area on either of the
parties would be dangerous to its own peace and safety and declares that it would act to
meet the common dangers in accordance with its constitutional processes.
Any such armed attack and all measures taken as a result thereof shall be immediately
reported to the Security Council of the United Nations. Such measures shall be terminated
when the Security Council has taken the measures necessary to restore and maintain
international peace and security.
Article V. For the purpose of Article IV, an armed attack on either of the Parties is deemed to
include an armed attack on the metropolitan territory of either of the Parties, or on the island
territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft
in the Pacific.
Article VI. This Treaty does not affect and shall not be interpreted as affecting in any way the
rights and obligations of the Parties under the Charter of the United Nations or the
responsibility of the United Nations for the maintenance of international peace and security.
Article VII. This Treaty shall be ratified by the Republic of the Philippines and the United
Nations of America in accordance with their respective constitutional processes and will come
into force when instruments of ratification thereof have been exchanged by them at Manila.
Article VIII. This Treaty shall remain in force indefinitely. Either Party may terminate it one
year after notice has been given to the other party.
In withness whereof the undersigned Plenipotentiaries have signed this Treaty.
Done in duplicate at Washington this thirtieth day of August, 1951.
For the Republic of the Philippines:
(Sgd.) Carlos P. Romulo
(Sgd.) Joaquin M. Elizalde
(Sgd.) Vicente J. Francisco
(Sgd.) Diosdado Macapagal
For the United States of America:
(Sgd.) Dean Acheson
(Sgd.) John Foster Dulles
(Sgd.) Tom Connally
(Sgd.) Alexander Wiley8
Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability
to resist an armed attack fall squarely under the provisions of the RP-US Mutual Defense
Treaty. The VFA, which is the instrument agreed upon to provide for the joint RP-US military
exercises, is simply an implementing agreement to the main RP-US Military Defense Treaty.
The Preamble of the VFA states:
The Government of the United States of America and the Government of the Republic of the
Philippines,
Reaffirming their faith in the purposes and principles of the Charter of the United Nations and
their desire to strengthen international and regional security in the Pacific area;
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
Noting that from time to time elements of the United States armed forces may visit the
Republic of the Philippines;
Considering that cooperation between the United States and the Republic of the Philippines
promotes their common security interests;
Recognizing the desirability of defining the treatment of United States personnel visiting the
Republic of the Philippines;
Have agreed as follows:9
Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not
necessary to submit the VFA to the US Senate for advice and consent, but merely to the US
Congress under the Case–Zablocki Act within 60 days of its ratification. It is for this reason
that the US has certified that it recognizes the VFA as a binding international agreement, i.e.,
a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our
Constitution.10
The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact
that the presence of the US Armed Forces through the VFA is a presence "allowed under" the
RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified
and concurred in by both the Philippine Senate and the US Senate, there is no violation of the
Constitutional provision resulting from such presence.
The VFA being a valid and binding agreement, the parties are required as a matter of
international law to abide by its terms and provisions.
The VFA provides that in cases of offenses committed by the members of the US Armed
Forces in the Philippines, the following rules apply:
Article V
Criminal Jurisdiction
xxx
6. The custody of any United States personnel over whom the Philippines is to exercise
jurisdiction shall immediately reside with United States military authorities, if they so request,
from the commission of the offense until completion of all judicial proceedings. United States
military authorities shall, upon formal notification by the Philippine authorities and without
delay, make such personnel available to those authorities in time for any investigative or
judicial proceedings relating to the offense with which the person has been charged. In
10
extraordinary cases, the Philippine Government shall present its position to the United States
Government regarding custody, which the United States Government shall take into full
account. In the event Philippine judicial proceedings are not completed within one year, the
United States shall be relieved of any obligations under this paragraph. The one year period
will not include the time necessary to appeal. Also, the one year period will not include any
time during which scheduled trial procedures are delayed because United States authorities,
after timely notification by Philippine authorities to arrange for the presence of the accused,
fail to do so.
Petitioners contend that these undertakings violate another provision of the Constitution,
namely, that providing for the exclusive power of this Court to adopt rules of procedure for all
courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer of custody
of an accused to a foreign power is to provide for a different rule of procedure for that
accused, which also violates the equal protection clause of the Constitution (Art. III, Sec. 1.).
Again, this Court finds no violation of the Constitution.
The equal protection clause is not violated, because there is a substantial basis for a different
treatment of a member of a foreign military armed forces allowed to enter our territory and
all other accused.11
The rule in international law is that a foreign armed forces allowed to enter one’s territory is
immune from local jurisdiction, except to the extent agreed upon. The Status of Forces
Agreements involving foreign military units around the world vary in terms and conditions,
according to the situation of the parties involved, and reflect their bargaining power. But the
principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the
sending State only to the extent agreed upon by the parties.12
As a result, the situation involved is not one in which the power of this Court to adopt rules of
procedure is curtailed or violated, but rather one in which, as is normally encountered around
the world, the laws (including rules of procedure) of one State do not extend or apply –
except to the extent agreed upon – to subjects of another State due to the recognition of
extraterritorial immunity given to such bodies as visiting foreign armed forces.
Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction
or some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of
such immunity like Heads of State, diplomats and members of the armed forces contingents
of a foreign State allowed to enter another State’s territory. On the contrary, the Constitution
states that the Philippines adopts the generally accepted principles of international law as
part of the law of the land. (Art. II, Sec. 2).
Applying, however, the provisions of VFA, the Court finds that there is a different treatment
when it comes to detention as against custody. The moment the accused has to be detained,
e.g., after conviction, the rule that governs is the following provision of the VFA:
Article V
Criminal Jurisdiction
xxx
Sec. 10. The confinement or detention by Philippine authorities of United States personnel
shall be carried out in facilities agreed on by appropriate Philippines and United States
authorities. United States personnel serving sentences in the Philippines shall have the right
to visits and material assistance.
It is clear that the parties to the VFA recognized the difference between custody during the
trial and detention after conviction, because they provided for a specific arrangement to
cover detention. And this specific arrangement clearly states not only that the detention shall
be carried out in facilities agreed on by authorities of both parties, but also that the detention
shall be "by Philippine authorities." Therefore, the Romulo-Kenney Agreements of December
19 and 22, 2006, which are agreements on the detention of the accused in the United States
Embassy, are not in accord with the VFA itself because such detention is not "by Philippine
authorities."
Respondents should therefore comply with the VFA and negotiate with representatives of the
United States towards an agreement on detention facilities under Philippine authorities as
mandated by Art. V, Sec. 10 of the VFA.
Next, the Court addresses the recent decision of the United States Supreme Court in Medellin
v. Texas ( 552 US ___ No. 06-984, March 25, 2008), which held that treaties entered into by
the United States are not automatically part of their domestic law unless these treaties are
self-executing or there is an implementing legislation to make them enforceable.1avvphi1
On February 3, 2009, the Court issued a Resolution, thus:
"G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No. 176051
(Jovito R. Salonga, et al. v. Daniel Smith, et al.); and G.R. No. 176222 (Bagong Alyansang
Makabayan [BAYAN], et al. v. President Gloria Macapagal-Arroyo, et al.).
The parties, including the Solicitor General, are required to submit within three (3) days a
Comment/Manifestation on the following points:
1. What is the implication on the RP-US Visiting Forces Agreement of the recent US Supreme
Court decision in Jose Ernesto Medellin v. Texas, dated March 25, 2008, to the effect that
treaty stipulations that are not self-executory can only be enforced pursuant to legislation to
carry them into effect; and that, while treaties may comprise international commitments,
they are not domestic law unless Congress has enacted implementing statutes or the treaty
itself conveys an intention that it be "self-executory" and is ratified on these terms?
2. Whether the VFA is enforceable in the US as domestic law, either because it is self-
executory or because there exists legislation to implement it.
3. Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in by the US
Senate and, if so, is there proof of the US Senate advice and consent resolution? Peralta, J., no
part."
After deliberation, the Court holds, on these points, as follows:
First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because
the parties intend its provisions to be enforceable, precisely because the Agreement is
intended to carry out obligations and undertakings under the RP-US Mutual Defense Treaty.
As a matter of fact, the VFA has been implemented and executed, with the US faithfully
complying with its obligation to produce L/CPL Smith before the court during the trial.
Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC
Sec. 112(b), inasmuch as it is the very purpose and intent of the US Congress that executive
agreements registered under this Act within 60 days from their ratification be immediately
implemented. The parties to these present cases do not question the fact that the VFA has
been registered under the Case-Zablocki Act.1avvphi1
In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the
Avena decision of the International Court of Justice (ICJ), subject matter of the Medellin
decision. The Convention and the ICJ decision are not self-executing and are not registrable
under the Case-Zablocki Act, and thus lack legislative implementing authority.
Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on
March 20, 1952, as reflected in the US Congressional Record, 82nd Congress, Second Session,
Vol. 98 – Part 2, pp. 2594-2595.
11
The framers of the Constitution were aware that the application of international law in
domestic courts varies from country to country.
As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF INTERNATIONAL
CRIMINAL LAW IN NATIONAL COURTS, some countries require legislation whereas others do
not.
It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec.
25, to require the other contracting State to convert their system to achieve alignment and
parity with ours. It was simply required that the treaty be recognized as a treaty by the other
contracting State. With that, it becomes for both parties a binding international obligation
and the enforcement of that obligation is left to the normal recourse and processes under
international law.
Furthermore, as held by the US Supreme Court in Weinberger v. Rossi,13 an executive
agreement is a "treaty" within the meaning of that word in international law and constitutes
enforceable domestic law vis-à-vis the United States. Thus, the US Supreme Court in
Weinberger enforced the provisions of the executive agreement granting preferential
employment to Filipinos in the US Bases here.
Accordingly, there are three types of treaties in the American system:
1. Art. II, Sec. 2 treaties – These are advised and consented to by the US Senate in accordance
with Art. II, Sec. 2 of the US Constitution.
2. Executive–Congressional Agreements: These are joint agreements of the President and
Congress and need not be submitted to the Senate.
3. Sole Executive Agreements. – These are agreements entered into by the President. They
are to be submitted to Congress within sixty (60) days of ratification under the provisions of
the Case-Zablocki Act, after which they are recognized by the Congress and may be
implemented.
As regards the implementation of the RP-US Mutual Defense Treaty, military aid or assistance
has been given under it and this can only be done through implementing legislation. The VFA
itself is another form of implementation of its provisions.
WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals’ Decision in CA-
G.R. SP No. 97212 dated January 2, 2007 is MODIFIED. The Visiting Forces Agreement (VFA)
between the Republic of the Philippines and the United States, entered into on February 10,
1998, is UPHELD as constitutional, but the Romulo-Kenney Agreements of December 19 and
22, 2006 are DECLARED not in accordance with the VFA, and respondent Secretary of Foreign
Affairs is hereby ordered to forthwith negotiate with the United States representatives for the
appropriate agreement on detention facilities under Philippine authorities as provided in Art.
V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders
by this Court.
The Court of Appeals is hereby directed to resolve without delay the related matters pending
therein, namely, the petition for contempt and the appeal of L/CPL Daniel Smith from the
judgment of conviction.
No costs.
SO ORDERED.

12
THIRD DIVISION
G.R. No. 167919 February 14, 2007
PLARIDEL M. ABAYA, COMMODORE PLARIDEL C. GARCIA (retired) and PMA ’59
FOUNDATION, INC., rep. by its President, COMMODORE CARLOS L. AGUSTIN (retired),
Petitioners,
vs.
HON. SECRETARY HERMOGENES E. EBDANE, JR., in his capacity as Secretary of the
DEPARTMENT OF PUBLIC WORKS and HIGHWAYS, HON. SECRETARY EMILIA T. BONCODIN,
in her capacity as Secretary of the DEPARTMENT OF BUDGET and MANAGEMENT, HON.
SECRETARY CESAR V. PURISIMA, in his capacity as Secretary of the DEPARTMENT OF
FINANCE, HON. TREASURER NORMA L. LASALA, in her capacity as Treasurer of the Bureau
of Treasury, and CHINA ROAD and BRIDGE CORPORATION, Respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is the petition for certiorari and prohibition under Rule 65 of the Rules of
Court seeking to set aside and nullify Resolution No. PJHL-A-04-012 dated May 7, 2004 issued
by the Bids and Awards Committee (BAC) of the Department of Public Works and Highways
(DPWH) and approved by then DPWH Acting Secretary Florante Soriquez. The assailed
resolution recommended the award to private respondent China Road & Bridge Corporation
of the contract for the implementation of civil works for Contract Package No. I (CP I), which
consists of the improvement/rehabilitation of the San Andres (Codon)-Virac-Jct. Bago-Viga
road, with the length of 79.818 kilometers, in the island province of Catanduanes.
The CP I project is one of the four packages comprising the project for the
improvement/rehabilitation of the Catanduanes Circumferential Road, covering a total length
of about 204.515 kilometers, which is the main highway in Catanduanes Province. The road
section (Catanduanes Circumferential Road) is part of the Arterial Road Links Development
Project (Phase IV) funded under Loan Agreement No. PH-P204 dated December 28, 1999
between the Japan Bank for International Cooperation (JBIC) and the Government of the
Republic of the Philippines.
Background
Based on the Exchange of Notes dated December 27, 1999,1 the Government of Japan and
the Government of the Philippines, through their respective representatives, namely, Mr.
Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Republic of the
Philippines, and then Secretary of Foreign Affairs Domingo L. Siazon, have reached an
understanding concerning Japanese loans to be extended to the Philippines. These loans were
aimed at promoting our country’s economic stabilization and development efforts.
The Exchange of Notes consisted of two documents: (1) a Letter from the Government of
Japan, signed by Ambassador Ara, addressed to then Secretary of Foreign Affairs Siazon,
confirming the understanding reached between the two governments concerning the loans to
be extended by the Government of Japan to the Philippines; and (2) a document
denominated as Records of Discussion where the salient terms of the loans as set forth by the
Government of Japan, through the Japanese delegation, were reiterated and the said terms
were accepted by the Philippine delegation. Both Ambassador Ara and then Secretary Siazon
signed the Records of Discussion as representatives of the Government of Japan and
Philippine Government, respectively.
The Exchange of Notes provided that the loans to be extended by the Government of Japan to
the Philippines consisted of two loans: Loan I and Loan II. The Exchange of Notes stated in
part:
I
1. A loan in Japanese yen up to the amount of seventy-nine billion eight hundred and sixty-
one million yen (Y79,861,000,000) (hereinafter referred to as "the Loan I") will be extended,
in accordance with the relevant laws and regulations of Japan, to the Government of the
Republic of the Philippines (hereinafter referred to as "the Borrower I") by the Japan Bank for
International Cooperation (hereinafter referred to as "the Bank") to implement the projects
enumerated in the List A attached hereto (hereinafter referred to as "the List A") according to
the allocation for each project as specified in the List A.
2. (1) The Loan I will be made available by loan agreements to be concluded between the
Borrower I and the Bank. The terms and conditions of the Loan I as well as the procedure for
its utilization will be governed by said loan agreements which will contain, inter alia, the
following principles:
...
(2) Each of the loan agreements mentioned in sub-paragraph (1) above will be concluded
after the Bank is satisfied of the feasibility, including environmental consideration, of the
project to which such loan agreement relates.
3. (1) The Loan I will be made available to cover payments to be made by the Philippine
executing agencies to suppliers, contractors and/or consultants of eligible source countries
under such contracts as may be entered into between them for purchases of products and/or
services required for the implementation of the projects enumerated in the List A, provided
that such purchases are made in such eligible source countries for products produced in
and/or services supplied from those countries.
(2) The scope of eligible source countries mentioned in sub-paragraph (1) above will be
agreed upon between the authorities concerned of the two Governments.
(3) A part of the Loan I may be used to cover eligible local currency requirements for the
implementation of the projects enumerated in the List A.
4. With regard to the shipping and marine insurance of the products purchased under the
Loan I, the Government of the Republic of the Philippines will refrain from imposing any
restrictions that may hinder fair and free competition among the shipping and marine
insurance companies.
x x x x2 1awphi1.net
Pertinently, List A, which specified the projects to be financed under the Loan I, includes the
Arterial Road Links Development Project (Phase IV), to wit:
LIST A
Maximum amount in million yen)
1. Secondary Education Development and Improvement Project 7,210
2. Rural Water Supply Project (Phase V) 951
3. Bohol Irrigation Project (Phase II) 6,078
4. Agrarian Reform Infrastructure Support Project (Phase II) 16,990
5. Arterial Road Links Development Project (Phase IV) 15,384
6. Cordillera Road Improvement Project 5,852
7. Philippines-Japan Friendship Highway Mindanao Section Rehabilitation Project (Phase II)
7,434
8. Rehabilitation and Maintenance of Bridges Along Arterial Roads Project (Phase IV) 5,068
13
9. Maritime Safety Improvement Project (Phase C) 4,714
10. Pinatubo Hazard Urgent Mitigation Project (Phase II) 9,013
11. Pasig-Marikina River Channel Improvement Project (Phase I) 1,167
Total 79,8613
The Exchange of Notes further provided that:
III
xxxx
3. The Government of the Republic of the Philippines will ensure that the products and/or
services mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of
paragraph 4 of Part II are procured in accordance with the guidelines for procurement of the
Bank, which set forth, inter alia, the procedures of international tendering to be followed
except where such procedures are inapplicable or inappropriate.
x x x x4
The Records of Discussion, which formed part of the Exchange of Notes, also stated in part,
thus:
xxxx
1. With reference to sub-paragraph (3) of paragraph 3 of Part I of the Exchange of Notes
concerning the financing of eligible local currency requirements for the implementation of the
projects mentioned in the said sub-paragraph, the representative of the Japanese delegation
stated that:
(1) such requirement of local currency as general administrative expenses, interest during
construction, taxes and duties, expenses concerning office, remuneration to employees of the
executing agencies and housing, not directly related to the implementation of the said
projects, as well as purchase of land properties, compensation and the like, however, will not
be considered as eligible for financing under the Loan I; and
(2) the procurement of products and/or services will be made in accordance with the
procedures of international competitive tendering except where such procedures are
inapplicable and inappropriate.
x x x x5
Thus, in accordance with the agreement reached by the Government of Japan and the
Philippine Government, as expressed in the Exchange of Notes between the representatives
of the two governments, the Philippines obtained from and was granted a loan by the JBIC.
Loan Agreement No. PH-P204 dated December 28, 1999, in particular, stated as follows:
Loan Agreement No. PH-P204, dated December 28, 1999, between JAPAN BANK FOR
INTERNATIONAL COOPERATION and the GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES.
In the light of the contents of the Exchange of Notes between the Government of Japan and
the Government of the Republic of the Philippines dated December 27, 1999, concerning
Japanese loans to be extended with a view to promoting the economic stabilization and
development efforts of the Republic of the Philippines.
JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as "the BANK") and
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES (hereinafter referred to as "the
Borrower") herewith conclude the following Loan Agreement (hereinafter referred to as "the
Loan Agreement", which includes all agreements supplemental hereto).
x x x x6
Under the terms and conditions of Loan Agreement No. PH-P204, JBIC agreed to lend the
Philippine Government an amount not exceeding FIFTEEN BILLION THREE HUNDRED EIGHTY-
FOUR MILLION Japanese Yen (Y 15,384,000,000) as principal for the implementation of the
Arterial Road Links Development Project (Phase IV) on the terms and conditions set forth in
the Loan Agreement and in accordance with the relevant laws and regulations of Japan.7 The
said amount shall be used for the purchase of eligible goods and services necessary for the
implementation of the above-mentioned project from suppliers, contractors or consultants.8
Further, it was provided under the said loan agreement that other terms and conditions
generally applicable thereto shall be set forth in the General Terms and Conditions, dated
November 1987, issued by the Overseas Economic Cooperation Fund (OECF) and for the
purpose, reference to "the OECF" and "Fund" therein (General Terms and Conditions) shall be
substituted by "the JBIC" and "Bank," respectively.9 Specifically, the guidelines for
procurement of all goods and services to be financed out of the proceeds of the said loan
shall be as stipulated in the Guidelines for Procurement under OECF Loans dated December
1997 (herein referred to as JBIC Procurement Guidelines).10
As mentioned earlier, the proceeds of Loan Agreement No. PH-P204 was to be used to
finance the Arterial Road Links Development Project (Phase IV), of which the Catanduanes
Circumferential Road was a part. This road section, in turn, was divided into four contract
packages (CP):
CP I: San Andres (Codon)-Virac-Jct. Bato- Viga Road - 79.818 kms
CP II: Viga-Bagamanoc Road - 10.40 kms.
CP III: Bagamanoc-Pandan Road - 47.50 kms.
CP IV: Pandan-Caramoran-Codon Road - 66.40 kms.11
Subsequently, the DPWH, as the government agency tasked to implement the project, caused
the publication of the "Invitation to Prequalify and to Bid" for the implementation of the CP I
project in two leading national newspapers, namely, the Manila Times and Manila Standard
on November 22 and 29, and December 5, 2002.
A total of twenty-three (23) foreign and local contractors responded to the invitation by
submitting their accomplished prequalification documents on January 23, 2003. In
accordance with the established prequalification criteria, eight contractors were evaluated or
considered eligible to bid as concurred by the JBIC. One of them, however, withdrew; thus,
only seven contractors submitted their bid proposals.
The bid documents submitted by the prequalified contractors/bidders were examined to
determine their compliance with the requirements as
stipulated in Article 6 of the Instruction to Bidders.12 After the lapse of the deadline for the
submission of bid proposals, the opening of the bids commenced immediately. Prior to the
opening of the respective bid proposals, it was announced that the Approved Budget for the
Contract (ABC) was in the amount of ₱738,710,563.67.
The result of the bidding revealed the following three lowest bidders and their respective bids
vis-à-vis the ABC:13
Name of Bidder Original Bid As Read (Pesos) As-Corrected Bid Am
1) China Road And Bridge Corporation ₱ 993,183,904.98 ₱952,564,821.71
2) Cavite Ideal Int’l Const. Devt. Corp. ₱1,099,926,598.11 ₱1,099,926,598.11
3) Italian Thai Dev’t. Public Company, Ltd. ₱1,125,022,075.34 ₱1,125,392,475.36
14
The bid of private respondent China Road & Bridge Corporation was corrected from the
original ₱993,183,904.98 (with variance of 34.45% from the ABC) to ₱952,564,821.71 (with
variance of 28.95% from the ABC) based on their letter clarification dated April 21, 2004.14
After further evaluation of the bids, particularly those of the lowest three bidders, Mr.
Hedifume Ezawa, Project Manager of the Catanduanes Circumferential Road Improvement
Project (CCRIP), in his Contractor’s Bid Evaluation Report dated April 2004, recommended the
award of the contract to private respondent China Road & Bridge Corporation:
In accordance with the Guidelines for the Procurements under ODA [Official Development
Assistance] Loans, the Consultant hereby recommends the award of the contract for the
construction of CP I, San Andres (Codon) – Virac – Jct. Bato – Viga Section under the Arterial
Road Links Development Projects, Phase IV, JBIC Loan No. PH-P204 to the Lowest Complying
Bidder, China Road and Bridge Corporation, at its total corrected bid amount of Nine Hundred
Fifty-Two Million Five Hundred Sixty-Four Thousand Eight Hundred Twenty-One & 71/100
Pesos.15
The BAC of the DPWH, with the approval of then Acting Secretary Soriquez, issued the
assailed Resolution No. PJHL-A-04-012 dated May 7, 2004 recommending the award in favor
of private respondent China Road & Bridge Corporation of the contract for the
implementation of civil works for CP I, San Andres (Codon) – Virac – Jct. Bato – Viga Road
(Catanduanes Circumferential Road Improvement Project) of the Arterial Roads Links
Development Project, Phase IV, located in Catanduanes Province, under JBIC Loan Agreement
No. PH-P204.16 On September 29, 2004, a Contract of Agreement was entered into by and
between the DPWH and private respondent China Road & Bridge Corporation for the
implementation of the CP I project.
The Parties
Petitioner Plaridel M. Abaya claims that he filed the instant petition as a taxpayer, former
lawmaker, and a Filipino citizen. Petitioner Plaridel C. Garcia likewise claims that he filed the
suit as a taxpayer, former military officer, and a Filipino citizen. Petitioner PMA ’59
Foundation, Inc., on the other hand, is a non-stock, non-profit corporation organized under
the existing Philippine laws. It claims that its members are all taxpayers and alumni of the
Philippine Military Academy. It is represented by its President, Carlos L. Agustin.
Named as public respondents are the DPWH, as the government agency tasked with the
implementation of government infrastructure projects; the Department of Budget and
Management (DBM) as the government agency that authorizes the release and disbursement
of public funds for the implementation of government infrastructure projects; and the
Department of Finance (DOF) as the government agency that acts as the custodian and
manager of all financial resources of the government. Also named as individual public
respondents are Hermogenes E. Ebdane, Jr., Emilia T. Boncodin and Cesar V. Purisima in their
capacities as former Secretaries of the DPWH, DBM and DOF, respectively. On the other hand,
public respondent Norma L. Lasala was impleaded in her capacity as Treasurer of the Bureau
of Treasury.
Private respondent China Road & Bridge Corporation is a duly organized corporation engaged
in the business of construction.
The Petitioners’ Case
The petitioners mainly seek to nullify DPWH Resolution No. PJHL-A-04-012 dated May 7,
2004, which recommended the award to private respondent China Road & Bridge
Corporation of the contract for the implementation of the civil works of CP I. They also seek
to annul the contract of agreement subsequently entered into by and between the DPWH and
private respondent China Road & Bridge Corporation pursuant to the said resolution.
They pose the following issues for the Court’s resolution:
I. Whether or not Petitioners have standing to file the instant Petition.
II. Whether or not Petitioners are entitled to the issuance of a Writ of Certiorari reversing and
setting aside DPWH Resolution No. PJHL-A-04-012, recommending the award of the Contract
Agreement for the implementation of civil works for CPI, San Andres (CODON)-VIRAC-JCT
BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL ROAD IMPROVEMENT PROJECT) of the
Arterial Road Links Development Project, Phase IV, located in Catanduanes Province, under
JBIC L/A No. PH-P204, to China Road & Bridge Corporation.
III. Whether or not the Contract Agreement executed by and between the Republic of the
Philippines, through the Department of Public Works and Highways, and the China Road &
Bridge Corporation, for the implementation of civil works for CPI, San Andres (CODON)-
VIRAC-JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL ROAD IMPROVEMENT
PROJECT) of the Arterial Road Links Development Project, Phase IV, located in Catanduanes
Province, under JBIC L/A No. PH-P204, is void ab initio.
IV. Whether or not Petitioners are entitled to the issuance of a Writ of Prohibition
permanently prohibiting the implementation of DPWH Resolution No. PJHL-A-04-012 and the
Contract Agreement executed by and between the Republic of the Philippines (through the
Department of Public Works and Highways) and the China Road & Bridge Corporation, and
the disbursement of public funds by the [D]epartment of [B]udget and [M]anagement for
such purpose.
V. Whether or not Petitioners are entitled to a Preliminary Injunction and/or a Temporary
Restraining Order immediately enjoining the implementation of DPWH Resolution No. PJHL-
A-04-012 and the Contract Agreement executed by and between the Republic of the
Philippines (through the Department of Public Works and Highways) and the China Road &
Bridge Corporation, and the disbursement of public funds by the Department of Budget and
Management for such purpose, during the pendency of this case.17
Preliminarily, the petitioners assert that they have standing or locus standi to file the instant
petition. They claim that as taxpayers and concerned citizens, they have the right and duty to
question the expenditure of public funds on illegal acts. They point out that the Philippine
Government allocates a peso-counterpart for CP I, which amount is appropriated by Congress
in the General Appropriations Act; hence, funds that are being utilized in the implementation
of the questioned project also partake of taxpayers’ money. The present action, as a
taxpayers’ suit, is thus allegedly proper.
They likewise characterize the instant petition as one of transcendental importance that
warrants the Court’s adoption of a liberal stance on the issue of standing. It cited several
cases where the Court brushed aside procedural technicalities in order to resolve issues
involving paramount public interest and transcendental importance.18 Further, petitioner
Abaya asserts that he possesses the requisite standing as a former member of the House of
Representatives and one of the principal authors of Republic Act No. 9184 (RA 9184)19 known
as the Government Procurement Reform Act, the law allegedly violated by the public
respondents.
On the substantive issues, the petitioners anchor the instant petition on the contention that
the award of the contract to private respondent China Road & Bridge Corporation violates RA
9184, particularly Section 31 thereof which reads:
15
SEC. 31. Ceiling for Bid Prices. – The ABC shall be the upper limit or ceiling for the Bid prices.
Bid prices that exceed this ceiling shall be disqualified outright from further participating in
the bidding. There shall be no lower limit to the amount of the award.
In relation thereto, the petitioners cite the definition of the ABC, thus:
SEC. 5. Definition of Terms. –
xxx
(a) Approved Budget for the Contract (ABC). – refers to the budget for the contract duly
approved by the Head of the Procuring Entity, as provided for in the General Appropriations
Act and/or continuing appropriations, in the case of National Government Agencies; the
Corporate Budget for the contract approved by the governing Boards, pursuant to E.O. No.
518, series of 1979, in the case of Government-Owned and/or Controlled Corporations,
Government Financial Institutions and State Universities and Colleges; and the Budget for the
contract approved by the respective Sanggunian, in the case of Local Government Units.
xxx
The petitioners theorize that the foregoing provisions show the mandatory character of
ceilings or upper limits of every bid. Under the above-quoted provisions of RA 9184, all bids or
awards should not exceed the ceilings or upper limits; otherwise, the contract is deemed void
and inexistent.
Resolution No. PJHL-A-04-012 was allegedly issued with grave abuse of discretion because it
recommended the award of the contract to private respondent China Road & Bridge
Corporation whose bid was more than ₱200 million overpriced based on the ABC. As such,
the award is allegedly illegal and unconscionable.
In this connection, the petitioners opine that the contract subsequently entered into by and
between the DPWH and private respondent China Road & Bridge Corporation is void ab initio
for being prohibited by RA 9184. They stress that Section 31 thereof expressly provides that
"bid prices that exceed this ceiling shall be disqualified outright from participating in the
bidding." The upper limit or ceiling is called the ABC and since the bid of private respondent
China Road & Bridge Corporation exceeded the ABC for the CP I project, it should have been
allegedly disqualified from the bidding process and should not, by law, have been awarded
the said contract. They invoke Article 1409 of the Civil Code:
ART. 1409. The following contracts are inexistent and void from the beginning:
(1) Those whose cause, object or purpose is contrary to law, morals, good customs, public
order or public policy;
(2) Those which are absolutely simulated or fictitious;
(3) Those whose cause or object did not exist at the time of the transaction;
(4) Those whose object is outside the commerce of men;
(5) Those which contemplate an impossible service;
(6) Those where the intention of the parties relative to the principal object of the contract
cannot be ascertained;
(7) Those expressly prohibited or declared void by law.
For violating the above provision, the contract between the DPWH and private respondent
China Road & Bridge Corporation is allegedly inexistent and void ab initio and can produce no
effects whatsoever.
It is the contention of the petitioners that RA 9184 is applicable to both local- and foreign-
funded procurement contracts. They cite the following excerpt of the deliberations of the
Bicameral Conference Committee on the Disagreeing Provisions of Senate Bill No. 2248 and
House Bill No. 4809:20
REP. ABAYA. Mr. Chairman, can we just propose additional amendments? Can we go back to
Section 4, Mr. Chairman?
THE CHAIRMAN (SEN. ANGARA). Section? Section ano, Del, 4? Definition – definition of terms.
REP. ABAYA. Sa House bill, it is sa scope and application.
THE CHAIRMAN (SEN. ANGARA). Okay.
REP. ABAYA. It should read as follows: "This Act shall apply to the procurement of goods,
supplies and materials, infrastructure projects and consulting services regardless of funding
source whether local or foreign by the government."
THE CHAIRMAN (SEN. ANGARA). Okay, accepted. We accept. The Senate accepts it.21
xxx xxx xxx
THE CHAIRMAN (SEN ANGARA). Just take note of that ano. Medyo nga problematic ‘yan eh.
Now, just for the record Del, can you repeat again the justification for including foreign
funded contracts within the scope para malinaw because the World Bank daw might raise
some objection to it.
REP. ABAYA. Well, Mr. Chairman, we should include foreign funded projects kasi these are the
big projects. To give an example, if you allow bids above government estimate, let’s say take
the case of 500 million project, included in that 500 million is the 20 percent profit. If you
allow them to bid above government estimate, they will add another say 28 percent of (sic)
30 percent, 30 percent of 500 million is another 150 million. Ito, this is a rich source of graft
money, aregluhan na lang, 150 million, five contractors will gather, "O eto 20 million, 20
million, 20 million." So, it is rigged. ‘Yun ang practice na nangyayari. If we eliminate that, if we
have a ceiling then, it will not be very tempting kasi walang extra money na pwedeng ibigay sa
ibang contractor. So this promote (sic) collusion among bidders, of course, with the
cooperation of irresponsible officials of some agencies. So we should have a ceiling to include
foreign funded projects.22
The petitioners insist that Loan Agreement No. PH-P204 between the JBIC and the Philippine
Government is neither a treaty, an international nor an executive agreement that would bar
the application of RA 9184. They point out that to be considered a treaty, an international or
an executive agreement, the parties must be two sovereigns or States whereas in the case of
Loan Agreement No. PH-P204, the parties are the Philippine Government and the JBIC, a
banking agency of Japan, which has a separate juridical personality from the Japanese
Government.
They further insist on the applicability of RA 9184 contending that while it took effect on
January 26, 200323 and Loan Agreement No. PH-P204 was executed prior thereto or on
December 28, 1999, the actual procurement or award of the contract to private respondent
China Road & Bridge Corporation was done after the effectivity of RA 9184. The said law is
allegedly specific as to its application, which is on the actual procurement of infrastructure
and other projects only, and not on the loan agreements attached to such projects. Thus, the
petition only prays for the annulment of Resolution No. PJHL-A-04-012 as well as the contract
between the DPWH and private respondent China Road & Bridge Corporation. The petitioners
clarify that they do not pray for the annulment of Loan Agreement No. PH-P204. Since the
subject procurement and award of the contract were done after the effectivity of RA 9184,
necessarily, the procurement rules established by that law allegedly apply, and not
Presidential Decree No. 1594 (PD 1594)24 and Executive Order No. 40 (EO 40), series of 2001,
25 as contended by the respondents. The latter laws, including their implementing rules, have
allegedly been repealed by RA 9184. Even RA 4860, as amended, known as the Foreign
16
Borrowings Act, the petitioners posit, may have also been repealed or modified by RA 9184
insofar as its provisions are inconsistent with the latter.
The petitioners also argue that the "Implementing Rules and Regulations (IRR) of RA 9184,
Otherwise Known as the Government Procurement Reform Act, Part A" (IRR-A) cited by the
respondents is not applicable as these rules only govern domestically-funded procurement
contracts. They aver that the implementing rules to govern foreign-funded procurement, as in
the present case, have yet to be drafted and in fact, there are concurrent resolutions drafted
by both houses of Congress for the Reconvening of the Joint Congressional Oversight
Committee for the formulation of the IRR for foreign-funded procurements under RA 9184.
The petitioners maintain that disbursement of public funds to implement a patently void and
illegal contract is itself illegal and must be enjoined. They bring to the Court’s attention the
fact that the works on the CP I project have already commenced as early as October 2004.
They thus urge the Court to issue a writ of certiorari to set aside Resolution No. PJHL-A-04-
012 as well as to declare null and void the contract entered into between the DPWH and
private respondent China Road & Bridge Corporation. They also pray for the issuance of a
temporary restraining order and, eventually, a writ of prohibition to permanently enjoin the
DPWH from implementing Resolution No. PJHL-A-04-012 and its contract with private
respondent China Road & Bridge Corporation as well as the DBM from disbursing funds for
the said purpose.
The Respondents’ Counter-Arguments
The public respondents, namely the DPWH, DBM and DOF, and their respective named
officials, through the Office of the Solicitor General, urge the Court to dismiss the petition on
grounds that the petitioners have no locus standi and, in any case, Resolution No. PJHL-A-04-
012 and the contract between the DPWH and private respondent China Road & Bridge
Corporation are valid.
According to the public respondents, a taxpayer’s locus standi was recognized in the following
cases: (a) where a tax measure is assailed as unconstitutional;26 (b) where there is a question
of validity of election laws;27 (c) where legislators questioned the validity of any official action
upon the claim that it infringes on their prerogatives as legislators;28 (d) where there is a claim
of illegal disbursement or wastage of public funds through the enforcement of an invalid or
unconstitutional law;29 (e) where it involves the right of members of the Senate or House of
Representatives to question the validity of a presidential veto or condition imposed on an
item in an appropriation bill;30 or (f) where it involves an invalid law, which when enforced
will put the petitioner in imminent danger of sustaining some direct injury as a result thereof,
or that he has been or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or penalties by reason of the
statute complained of.31 None of the above considerations allegedly obtains in the present
case.
It is also the view of the public respondents that the fact that petitioner Abaya was a former
lawmaker would not suffice to confer locus standi on himself. Members of Congress may
properly challenge the validity of an official act of any department of the government only
upon showing that the assailed official act affects or impairs their rights and prerogatives as
legislators.
The public respondents further assail the standing of the petitioners to file the instant suit
claiming that they failed to allege any specific injury suffered nor an interest that is direct and
personal to them. If at all, the interest or injuries claimed by the petitioners are allegedly
merely of a general interest common to all members of the public. Their interest is allegedly
too vague, highly speculative and uncertain to satisfy the requirements of locus standi.
The public respondents find it noteworthy that the petitioners do not raise issues of
constitutionality but only of contract law, which the petitioners not being privies to the
agreement cannot raise. This is following the principle that a stranger to a contract cannot
sue either or both the contracting parties to annul and set aside the same except when he is
prejudiced on his rights and can show detriment which would positively result to him from
the implementation of the contract in which he has no intervention. There being no
particularized interest or elemental substantial injury necessary to confer locus standi, the
public respondents implore the Court to dismiss the petition.
On the merits, the public respondents maintain that the imposition of ceilings or upper limits
on bid prices in RA 9184 does not apply because the CP I project and the entire Catanduanes
Circumferential Road Improvement Project, financed by Loan Agreement No. PH-P204
executed between the Philippine Government and the JBIC, is governed by the latter’s
Procurement Guidelines which precludes the imposition of ceilings on bid prices. Section 5.06
of the JBIC Procurement Guidelines reads:
Section 5.06. Evaluation and Comparison of Bids.
xxx
(e) Any procedure under which bids above or below a predetermined bid value assessment
are automatically disqualified is not permitted.
It was explained that other foreign banks such as the Asian Development Bank (ADB) and the
World Bank (WB) similarly prohibit the bracketing or imposition of a ceiling on bid prices.
The public respondents stress that it was pursuant to Loan Agreement No. PH-P204 that the
assailed Resolution No. PJHL-A-04-012 and the subsequent contract between the DPWH and
private respondent China Road & Bridge Corporation materialized. They likewise aver that
Loan Agreement No. PH-P204 is governed by RA 4860, as amended, or the Foreign
Borrowings Act. Section 4 thereof states:
SEC. 4. In the contracting of any loan, credit or indebtedness under this Act, the President of
the Philippines may, when necessary, agree to waive or modify, the application of any law
granting preferences or imposing restrictions on international competitive bidding, including
among others [Act No. 4239, Commonwealth Act No. 138], the provisions of [CA 541], insofar
as such provisions do not pertain to constructions primarily for national defense or security
purposes, [RA 5183]; Provided, however, That as far as practicable, utilization of the services
of qualified domestic firms in the prosecution of projects financed under this Act shall be
encouraged: Provided, further, That in case where international competitive bidding shall be
conducted preference of at least fifteen per centum shall be granted in favor of articles,
materials or supplies of the growth, production or manufacture of the Philippines: Provided,
finally, That the method and procedure in comparison of bids shall be the subject of
agreement between the Philippine Government and the lending institution.
DOJ Opinion No. 46, Series of 1987, is relied upon by the public respondents as it opined that
an agreement for the exclusion of foreign assisted projects from the coverage of local bidding
regulations does not contravene existing legislations because the statutory basis for foreign
loan agreements is RA 4860, as amended, and under Section 4 thereof, the President is
empowered to waive the application of any law imposing restrictions on the procurement of
goods and services pursuant to such loans.
17
Memorandum Circular Nos. 104 and 108, issued by the President, to clarify RA 4860, as
amended, and PD 1594, relative to the award of foreign-assisted projects, are also invoked by
the public respondents, to wit:
Memorandum Circular No. 104:
In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known
as the "Foreign Borrowings Act"
xxx
It is hereby clarified that foreign-assisted infrastructure projects may be exempted from the
application for the pertinent provisions of the Implementing Rules and Regulations (IRR) of
Presidential Decree (P.D.) No. 1594 relative to the method and procedure in the comparison
of bids, which matter may be the subject of agreement between the infrastructure agency
concerned and the lending institution. It should be made clear however that public bidding is
still required and can only be waived pursuant to existing laws.
Memorandum Circular No. 108:
In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known
as the "Foreign Borrowings Act", it is hereby clarified that, for projects supported in whole or
in part by foreign assistance awarded through international or local competitive bidding, the
government agency concerned may award the contract to the lowest evaluated bidder at his
bid price consistent with the provisions of the applicable loan/grant agreement.
Specifically, when the loan/grant agreement so stipulates, the government agency concerned
may award the contract to the lowest bidder even if his/its bid exceeds the approved agency
estimate.
It is understood that the concerned government agency shall, as far as practicable, adhere
closely to the implementing rules and regulations of Presidential Decree No. 1594 during
loan/grant negotiation and the implementation of the projects.32
The public respondents characterize foreign loan agreements, including Loan Agreement No.
PH-P204, as executive agreements and, as such, should be observed pursuant to the
fundamental principle in international law of pacta sunt servanda.33 They cite Section 20 of
Article VII of the Constitution as giving the President the authority to contract foreign loans:
SEC. 20. The President may contract or guarantee foreign loans on behalf of the Republic of
the Philippines with the prior concurrence of the Monetary Board, and subject to such
limitations as may be provided by law. The Monetary Board shall, within thirty days from the
end of every quarter of the calendar year, submit to the Congress a complete report of its
decisions on applications for loans to be contracted or guaranteed by the Government or
Government-owned and Controlled Corporations which would have the effect of increasing
the foreign debt, and containing other matters as may be provided by law.
The Constitution, the public respondents emphasize, recognizes the enforceability of
executive agreements in the same way that it recognizes generally accepted principles of
international law as forming part of the law of the land.34 This recognition allegedly buttresses
the binding effect of executive agreements to which the Philippine Government is a signatory.
It is pointed out by the public respondents that executive agreements are essentially
contracts governing the rights and obligations of the parties. A contract, being the law
between the parties, must be faithfully adhered to by them. Guided by the fundamental rule
of pacta sunt servanda, the Philippine Government bound itself to perform in good faith its
duties and obligations under Loan Agreement No. PH-P204.
The public respondents further argue against the applicability of RA 9184 stating that it was
signed into law on January 10, 2003.35 On the other hand, Loan Agreement No. PH-P204 was
executed on December 28, 1999, where the laws then in force on government procurements
were PD 1594 and EO 40. The latter law (EO 40), in particular, excluded from its application
"any existing and future government commitments with respect to the bidding and award of
contracts financed partly or wholly with funds from international financing institutions as well
as from bilateral and other similar foreign sources."
The applicability of EO 40, not RA 9184, is allegedly bolstered by the fact that the "Invitation
to Prequalify and to Bid" for the implementation of the CP I project was published in two
leading national newspapers, namely, the Manila Times and Manila Standard on November
22, 29 and December 5, 2002, or before the signing into law of RA 9184 on January 10, 2003.
In this connection, the public respondents point to Section 77 of IRR-A, which reads:
SEC. 77. Transitory Clause. –
In all procurement activities, if the advertisement or invitation for bids was issued prior to the
effectivity of the Act, the provisions of EO 40 and its IRR, PD 1594 and its IRR, RA 7160 and its
IRR, or other applicable laws as the case may be, shall govern.
In cases where the advertisements or invitations for bids were issued after the effectivity of
the Act but before the effectivity of this IRR-A, procuring entities may continue adopting the
procurement procedures, rules and regulations provided in EO 40 and its IRR, or other
applicable laws, as the case may be.
Section 4 of RA 9184 is also invoked by the public respondents as it provides:
SEC. 4. Scope and Applications. – This Act shall apply to the Procurement of Infrastructure
Projects, Goods and Consulting Services, regardless of source of funds, whether local or
foreign, by all branches and instrumentalities of government, its departments, offices and
agencies, including government-owned and/or –controlled corporations and local
government units, subject to the provisions of Commonwealth Act No. 138. Any treaty or
international or executive agreement affecting the subject matter of this Act to which the
Philippine government is a signatory shall be observed.
It is also the position of the public respondents that even granting arguendo that Loan
Agreement No. PH-P204 were an ordinary loan contract, still, RA 9184 is inapplicable under
the non-impairment clause36 of the Constitution. The said loan agreement expressly provided
that the procurement of goods and services for the project financed by the same shall be
governed by the Guidelines for Procurement under OECF Loans dated December 1997.
Further, Section 5.06 of the JBIC Procurement Guidelines categorically provides that "[a]ny
procedure under which bids above or below a predetermined bid value assessment are
automatically disqualified is not permitted."
The public respondents explain that since the contract is the law between the parties and
Loan Agreement No. PH-P204 states that the JBIC Procurement Guidelines shall govern the
parties’ relationship and further dictates that there be no ceiling price for the bidding, it
naturally follows that any subsequent law passed contrary to the letters of the said contract
would have no effect with respect to the parties’ rights and obligations arising therefrom.
To insist on the application of RA 9184 on the bidding for the CP I project would,
notwithstanding the terms and conditions of Loan Agreement No. PH-P204, allegedly violate
the constitutional provision on non-impairment of obligations and contracts, and destroy
vested rights duly acquired under the said loan agreement.
Lastly, the public respondents deny that there was illegal disbursement of public funds by the
DBM. They asseverate that all the releases made by the DBM for the implementation of the
entire Arterial Road Links Project – Phase IV, which includes the Catanduanes Circumferential
Road Improvement Project, were covered by the necessary appropriations made by law,
18
specifically the General Appropriations Act (GAA). Further, the requirements and procedures
prescribed for the release of the said funds were duly complied with.
For its part, private respondent China Road & Bridge Corporation similarly assails the standing
of the petitioners, either as taxpayers or, in the case of petitioner Abaya, as a former
lawmaker, to file the present suit. In addition, it is also alleged that, by filing the petition
directly to this Court, the petitioners failed to observe the hierarchy of courts.
On the merits, private respondent China Road & Bridge Corporation asserts that the
applicable law to govern the bidding of the CP I project was EO 40, not RA 9184, because the
former was the law governing the procurement of government projects at the time that it
was bidded out. EO 40 was issued by the Office of the President on October 8, 2001 and
Section 1 thereof states that:
SEC. 1. Scope and Application. This Executive Order shall apply to the procurement of: (a)
goods, supplies, materials and related services; (b) civil works; and (c) consulting services, by
all National Government agencies, including State Universities and Colleges (SUCs),
Government-Owned or Controlled Corporations (GOCCs) and Government Financial
Institutions (GFIs), hereby referred to as the ‘Agencies.’ This Executive Order shall cover the
procurement process from the pre-procurement conference up to the award of contract.
xxx
The Invitation to Prequalify and to Bid was first published on November 22, 2002. On the
other hand, RA 9184 was signed into law only on January 10, 2003. Since the law in effect at
the time the procurement process was initiated was EO 40, private respondent China Road &
Bridge Corporation submits that it should be the said law which should govern the entire
procurement process relative to the CP I project.
EO 40 expressly recognizes as an exception from the application of the provisions thereof on
approved budget ceilings, those projects financed by international financing institutions (IFIs)
and foreign bilateral sources. Section 1 thereof, quoted in part earlier, further states:
SEC. 1. Scope and Application. x x x
Nothing in this Order shall negate any existing and future government commitments with
respect to the bidding and award of contracts financed partly or wholly with funds from
international financing institutions as well as from bilateral and other similar foreign sources.
Section 1.2 of the Implementing Rules and Regulations of EO 40 is likewise invoked as it
provides:
For procurement financed wholly or partly from Official Development Assistance (ODA) funds
from International Financing Institutions (IFIs), as well as from bilateral and other similar
foreign sources, the corresponding loan/grant agreement governing said funds as negotiated
and agreed upon by and between the Government and the concerned IFI shall be observed.
Private respondent China Road & Bridge Corporation thus postulates that following EO 40,
the procurement of goods and services for the CP I project should be governed by the terms
and conditions of Loan Agreement No. PH-P204 entered into between the JBIC and the
Philippine Government. Pertinently, Section 5.06 of the JBIC Procurement Guidelines
prohibits the setting of ceilings on bid prices.
Private respondent China Road & Bridge Corporation claims that when it submitted its bid for
the CP I project, it relied in good faith on the provisions of EO 40. It was allegedly on the basis
of the said law that the DPWH awarded the project to private respondent China Road &
Bridge Coporation even if its bid was higher than the ABC. Under the circumstances, RA 9184
could not be applied retroactively for to do so would allegedly impair the vested rights of
private respondent China Road & Bridge Corporation arising from its contract with the DPWH.
It is also contended by private respondent China Road & Bridge Corporation that even
assuming arguendo that RA 9184 could be applied retroactively, it is still the terms of Loan
Agreement No. PH-P204 which should govern the procurement of goods and services for the
CP I project. It supports its theory by characterizing the said loan agreement, executed
pursuant to the Exchange of Notes between the Government of Japan and the Philippine
Government, as an executive agreement.
Private respondent China Road & Bridge Corporation, like the public respondents, cites RA
4860 as the basis for the Exchange of Notes and Loan Agreement No. PH-P204. As an
international or executive agreement, the Exchange of Notes and Loan Agreement No. PH-
P204 allegedly created a legally binding obligation on the parties.
The following excerpt of the deliberations of the Bicameral Conference Committee on the
Disagreeing Provision of Senate Bill No. 2248 and House Bill No. 4809 is cited by private
respondent China Road & Bridge Corporation to support its contention that it is the intent of
the lawmakers to exclude from the application of RA 9184 those foreign-funded projects:
xxx
REP. MARCOS. Yes, Mr. Chairman, to respond and to put into the record, a justification for the
inclusion of foreign contracts, may we just state that foreign contracts have, of course, been
brought into the ambit of the law because of the Filipino counterpart for this foreign projects,
they are no longer strictly foreign in nature but fall under the laws of the Philippine
government.
THE CHAIRMAN (SEN. ANGARA). Okay. I think that’s pretty clear. I think the possible concern
is that some ODA are with strings attached especially the Japanese. The Japanese are quite
strict about that, that they are (sic) even provide the architect and the design, etcetera, plus,
of course, the goods that will be supplied.
Now, I think we’ve already provided that this is open to all and we will recognize our
international agreements so that this bill will not also restrict the flow of foreign funding,
because some countries now make it a condition that they supply both services and goods
especially the Japanese.
So I think we can put a sentence that we continue to honor our international obligations, di
ba Laura?
MR. ENCARNACION. Actually, subject to any treaty.
THE CHAIRMAN (SEN. ANGARA). ‘Yun pala eh. That should allay their anxiety and concern.
Okay, buti na lang for the record para malaman nila na we are conscious sa ODA.37
Private respondent China Road & Bridge Corporation submits that based on the provisions of
the Exchange of Notes and Loan Agreement No. PH-P204, it was rightfully and legally
awarded the CP I project. It urges the Court to dismiss the petition for lack of merit.
The Court’s Rulings
Petitioners, as taxpayers, possess locus standi to file the present suit
Briefly stated, locus standi is "a right of appearance in a court of justice on a given
question."38 More particularly, it is a party’s personal and substantial interest in a case such
that he has sustained or will sustain direct injury as a result of the governmental act being
challenged. It calls for more than just a generalized grievance. The term "interest" means a
material interest, an interest in issue affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental interest.39 Standing or locus standi is a
peculiar concept in constitutional law40 and the rationale for requiring a party who challenges
the constitutionality of a statute to allege such a personal stake in the outcome of the
controversy is "to assure that concrete adverseness which sharpens the presentation of issues
19
upon which the court so largely depends for illumination of difficult constitutional
questions."41
Locus standi, however, is merely a matter of procedure42 and it has been recognized that in
some cases, suits are not brought by parties who have been personally injured by the
operation of a law or any other government act but by concerned citizens, taxpayers or voters
who actually sue in the public interest.43 Consequently, the Court, in a catena of cases,44 has
invariably adopted a liberal stance on locus standi, including those cases involving taxpayers.
The prevailing doctrine in taxpayer’s suits is to allow taxpayers to question contracts entered
into by the national government or government- owned or controlled corporations allegedly
in contravention of law.45 A taxpayer is allowed to sue where there is a claim that public funds
are illegally disbursed, or that public money is being deflected to any improper purpose, or
that there is a wastage of public funds through the enforcement of an invalid or
unconstitutional law.46 Significantly, a taxpayer need not be a party to the contract to
challenge its validity.47
In the present case, the petitioners are suing as taxpayers. They have sufficiently
demonstrated that, notwithstanding the fact that the CP I project is primarily financed from
loans obtained by the government from the JBIC, nonetheless, taxpayers’ money would be or
is being spent on the project considering that the Philippine Government is required to
allocate a peso-counterpart therefor. The public respondents themselves admit that
appropriations for these foreign-assisted projects in the GAA are composed of the loan
proceeds and the peso-counterpart. The counterpart funds, the Solicitor General explains,
refer to the component of the project cost to be financed from government-appropriated
funds, as part of the government’s commitment in the implementation of the project.48
Hence, the petitioners correctly asserted their standing since a part of the funds being utilized
in the implementation of the CP I project partakes of taxpayers’ money.
Further, the serious legal questions raised by the petitioners, e.g., whether RA 9184 applies to
the CP I project, in particular, and to foreign-funded government projects, in general, and the
fact that public interest is indubitably involved considering the public expenditure of millions
of pesos, warrant the Court to adopt in the present case its liberal policy on locus standi.
In any case, for reasons which will be discussed shortly, the substantive arguments raised by
the petitioners fail to persuade the Court as it holds that Resolution No. PJHL-A-04-012 is
valid. As a corollary, the subsequent contract entered into by and between the DPWH and
private respondent China Road & Bridge Corporation is likewise valid.
History of Philippine Procurement Laws
It is necessary, at this point, to give a brief history of Philippine laws pertaining to
procurement through public bidding. The United States Philippine Commission introduced the
American practice of public bidding through Act No. 22, enacted on October 15, 1900, by
requiring the Chief Engineer, United States Army for the Division of the Philippine Islands,
acting as purchasing agent under the control of the then Military Governor, to advertise and
call for a competitive bidding for the purchase of the necessary materials and lands to be
used for the construction of highways and bridges in the Philippine Islands. 49 Act No. 74,
enacted on January 21, 1901 by the Philippine Commission, required the General
Superintendent of Public Instruction to purchase office supplies through competitive public
bidding.50 Act No. 82, approved on January 31, 1901, and Act No. 83, approved on February 6,
1901, required the municipal and provincial governments, respectively, to hold competitive
public biddings in the making of contracts for public works and the purchase of office
supplies.51
On June 21, 1901, the Philippine Commission, through Act No. 146, created the Bureau of
Supply and with its creation, public bidding became a popular policy in the purchase of
supplies, materials and equipment for the use of the national government, its subdivisions
and instrumentalities.52 On February 3, 1936, then President Manuel L. Quezon issued
Executive Order No. 16 declaring as a matter of general policy that government contracts for
public service or for furnishing supplies, materials and equipment to the government should
be subjected to public bidding.53 The requirement of public bidding was likewise imposed for
public works of construction or repair pursuant to the Revised Administrative Code of 1917.
Then President Diosdado Macapagal, in Executive Order No. 40 dated June 1, 1963, reiterated
the directive that no government contract for public service or for furnishing supplies,
materials and equipment to the government or any of its branches, agencies or
instrumentalities, should be entered into without public bidding except for very extraordinary
reasons to be determined by a Committee constituted thereunder. Then President Ferdinand
Marcos issued PD 1594 prescribing guidelines for government infrastructure projects and
Section 454 thereof stated that they should generally be undertaken by contract after
competitive public bidding.
Then President Corazon Aquino issued Executive Order No. 301 (1987) prescribing guidelines
for government negotiated contracts. Pertinently, Section 62 of the Administrative Code of
1987 reiterated the requirement of competitive public bidding in government projects. In
1990, Congress passed RA 6957,55 which authorized the financing, construction, operation
and maintenance of infrastructure by the private sector. RA 7160 was likewise enacted by
Congress in 1991 and it contains provisions governing the procurement of goods and locally-
funded civil works by the local government units.
Then President Fidel Ramos issued Executive Order No. 302 (1996), providing guidelines for
the procurement of goods and supplies by the national government. Then President Joseph
Ejercito Estrada issued Executive Order No. 201 (2000), providing additional guidelines in the
procurement of goods and supplies by the national government. Thereafter, he issued
Executive Order No. 262 (2000) amending EO 302 (1996) and EO 201 (2000).
On October 8, 2001, President Gloria Macapagal-Arroyo issued EO 40, the law mainly relied
upon by the respondents, entitled Consolidating Procurement Rules and Procedures for All
National Government Agencies, Government-Owned or Controlled Corporations and
Government Financial Institutions, and Requiring the Use of the Government Procurement
System. It accordingly repealed, amended or modified all executive issuances, orders, rules
and regulations or parts thereof inconsistent therewith.56
On January 10, 2003, President Arroyo signed into law RA 9184. It took effect on January 26,
2004, or fifteen days after its publication in two newspapers of general circulation.57 It
expressly repealed, among others, EO 40, EO 262 (2000), EO 302(1996) and PD 1594, as
amended:
SEC. 76. Repealing Clause. —This law repeals Executive Order No. 40, series of 2001, entitled
"Consolidating Procurement Rules and Procedures for All National Government Agencies,
Government Owned or Controlled Corporations and/or Government Financial Institutions,
and Requiring the Use of the Government Electronic Procurement System"; Executive Order
No. 262, series of 1996, entitled "Amending Executive Order No. 302, series of 1996, entitled
Providing Policies, Guidelines, Rules and Regulations for the Procurement of Goods/Supplies
by the National Government" and Section 3 of Executive Order No. 201, series of 2000,
entitled "Providing Additional Policies and Guidelines in the Procurement of Goods/Supplies
by the National Government"; Executive Order No. 302, series of 1996, entitled "Providing
20
Policies, Guidelines, Rules and Regulations for the Procurement of Goods/Supplies by the
National Government" and Presidential Decree No. 1594 dated June 11, 1978, entitled
"Prescribing Policies, Guidelines, Rules and Regulations for Government Infrastructure
Contracts." This law amends Title Six, Book Two of Republic Act No. 7160, otherwise known as
the "Local Government Code of 1991"; the relevant provisions of Executive Order No. 164,
series of 1987, entitled "Providing Additional Guidelines in the Processing and Approval of
Contracts of the National Government"; and the relevant provisions of Republic Act No. 7898
dated February 23, 1995, entitled "An Act Providing for the Modernization of the Armed
Forces of the Philippines and for Other Purposes." Any other law, presidential decree or
issuance, executive order, letter of instruction, administrative order, proclamation, charter,
rule or regulation and/or parts thereof contrary to or inconsistent with the provisions of this
Act is hereby repealed, modified or amended accordingly.
In addition to these laws, RA 4860, as amended, must be mentioned as Section 4 thereof
provides that "[i]n the contracting of any loan, credit or indebtedness under this Act, the
President of the Philippines may, when necessary, agree to waive or modify the application of
any law granting preferences or imposing restrictions on international competitive bidding x x
x Provided, finally, That the method and procedure in the comparison of bids shall be the
subject of agreement between the Philippine Government and the lending institution."
EO 40, not RA 9184, is applicable to the procurement
process undertaken for the CP I project. RA 9184
cannot be given retroactive application.
It is not disputed that with respect to the CP I project, the Invitation to Prequalify and to Bid
for its implementation was published in two leading national newspapers, namely, the Manila
Times and Manila Standard on November 22, 29 and December 5, 2002. At the time, the law
in effect was EO 40. On the other hand, RA 9184 took effect two months later or on January
26, 2003. Further, its full implementation was even delayed as IRR-A was only approved by
President Arroyo on September 18, 2003 and subsequently published on September 23, 2003
in the Manila Times and Malaya newspapers.58
The provisions of EO 40 apply to the procurement process pertaining to the CP I project as it
is explicitly provided in Section 1 thereof that:
SEC. 1. Scope and Application. – This Executive Order shall apply to see procurement of (a)
goods, supplies, materials and related service; (b) civil works; and (c) consulting services, by
all National Government agencies, including State Universities and Colleges (SUCs),
Government-Owned or –Controlled Corporations (GOCCs) and Government Financial
Institutions (GFIs), hereby referred to as "Agencies." This Executive Order shall cover the
procurement process from the pre-procurement conference up to the award of the contract.
Nothing in this Order shall negate any existing and future government commitments with
respect to the bidding and award of contracts financed partly or wholly with funds from
international financing institutions as well as from bilateral and similar foreign sources.
The procurement process basically involves the following steps: (1) pre-procurement
conference; (2) advertisement of the invitation to bid; (3) pre-bid conference; (4) eligibility
check of prospective bidders; (5) submission and receipt of bids; (6) modification and
withdrawal of bids; (7) bid opening and examination; (8) bid evaluation; (9) post qualification;
(10) award of contract and notice to proceed.59 Clearly then, when the Invitation to Prequalify
and to Bid for the implementation of the CP I project was published on November 22, 29 and
December 5, 2002, the procurement process thereof had already commenced and the
application of EO 40 to the procurement process for the CP I project had already attached.
RA 9184 cannot be applied retroactively to govern the procurement process relative to the CP
I project because it is well settled that a law or regulation has no retroactive application
unless it expressly provides for retroactivity.60 Indeed, Article 4 of the Civil Code is clear on the
matter: "[l]aws shall have no retroactive effect, unless the contrary is provided." In the
absence of such categorical provision, RA 9184 will not be applied retroactively to the CP I
project whose procurement process commenced even before the said law took effect.
That the legislators did not intend RA 9184 to have retroactive effect could be gleaned from
the IRR-A formulated by the Joint Congressional Oversight Committee (composed of the
Chairman of the Senate Committee on Constitutional Amendments and Revision of Laws, and
two members thereof appointed by the Senate President and the Chairman of the House
Committee on Appropriations, and two members thereof appointed by the Speaker of the
House of Representatives) and the Government Procurement Policy Board (GPPB). Section 77
of the IRR-A states, thus:
SEC. 77. Transitory Clause
In all procurement activities, if the advertisement or invitation for bids was issued prior to the
effectivity of the Act, the provisions of E.O. 40 and its IRR, P.D. 1594 and its IRR, R.A. 7160 and
its IRR, or other applicable laws, as the case may be, shall govern.
In cases where the advertisements or invitations for bids were issued after the effectivity of
the Act but before the effectivity of this IRR-A, procuring entities may continue adopting the
procurement procedures, rules and regulations provided in E.O. 40 and its IRR, P.D. 1594 and
its IRR, R.A. 7160 and its IRR, or other applicable laws, as the case may be.
In other words, under IRR-A, if the advertisement of the invitation for bids was issued prior to
the effectivity of RA 9184, such as in the case of the CP I project, the provisions of EO 40 and
its IRR, and PD 1594 and its IRR in the case of national government agencies, and RA 7160 and
its IRR in the case of local government units, shall govern.
Admittedly, IRR-A covers only fully domestically-funded procurement activities from
procurement planning up to contract implementation and that it is expressly stated that IRR-B
for foreign-funded procurement activities shall be subject of a subsequent issuance.61
Nonetheless, there is no reason why the policy behind Section 77 of IRR-A cannot be applied
to foreign-funded procurement projects like the CP I project. Stated differently, the policy on
the prospective or non-retroactive application of RA 9184 with respect to domestically-
funded procurement projects cannot be any different with respect to foreign-funded
procurement projects like the CP I project. It would be incongruous, even absurd, to provide
for the prospective application of RA 9184 with respect to domestically-funded procurement
projects and, on the other hand, as urged by the petitioners, apply RA 9184 retroactively with
respect to foreign- funded procurement projects. To be sure, the lawmakers could not have
intended such an absurdity.
Thus, in the light of Section 1 of EO 40, Section 77 of IRR-A, as well as the fundamental rule
embodied in Article 4 of the Civil Code on prospectivity of laws, the Court holds that the
procurement process for the implementation of the CP I project is governed by EO 40 and its
IRR, not RA 9184.
Under EO 40, the award of the contract to private
respondent China Road & Bridge Corporation is valid
Section 25 of EO 40 provides that "[t]he approved budget of the contract shall be the upper
limit or ceiling of the bid price. Bid prices which exceed this ceiling shall be disqualified
outright from further participating in the bidding. There shall be no lower limit to the amount
of the award. x x x" It should be observed that this text is almost similar to the wording of
21
Section 31 of RA 9184, relied upon by the petitioners in contending that since the bid price of
private respondent China Road & Bridge Corporation exceeded the ABC, then it should not
have been awarded the contract for the CP I project.
Nonetheless, EO 40 expressly recognizes as an exception to its scope and application those
government commitments with respect to bidding and award of contracts financed partly or
wholly with funds from international financing institutions as well as from bilateral and other
similar foreign sources. The pertinent portion of Section 1 of EO 40 is quoted anew:
SEC. 1. Scope and Application. – x x x
Nothing in this Order shall negate any existing and future government commitments with
respect to the bidding and award of contracts financed partly or wholly with funds from
international financing institutions as well as from bilateral and similar foreign sources.
In relation thereto, Section 4 of RA 4860, as amended, was correctly cited by the respondents
as likewise authorizing the President, in the contracting of any loan, credit or indebtedness
thereunder, "when necessary, agree to waive or modify the application of any law granting
preferences or imposing restrictions on international competitive bidding x x x." The said
provision of law further provides that "the method and procedure in the comparison of bids
shall be the subject of agreement between the Philippine Government and the lending
institution."
Consequently, in accordance with these applicable laws, the procurement of goods and
services for the CP I project is governed by the corresponding loan agreement entered into by
the government and the JBIC, i.e., Loan Agreement No. PH-P204. The said loan agreement
stipulated that the procurement of goods and services for the Arterial Road Links
Development Project (Phase IV), of which CP I is a component, is to be governed by the JBIC
Procurement Guidelines. Section 5.06, Part II (International Competitive Bidding) thereof
quoted earlier reads:
Section 5.06. Evaluation and Comparison of Bids
xxx
(e) Any procedure under which bids above or below a predetermined bid value assessment
are automatically disqualified is not permitted.62
It is clear that the JBIC Procurement Guidelines proscribe the imposition of ceilings on bid
prices. On the other hand, it enjoins the award of the contract to the bidder whose bid has
been determined to be the lowest evaluated bid. The pertinent provision, quoted earlier, is
reiterated, thus:
Section 5.09. Award of Contract
The contract is to be awarded to the bidder whose bid has been determined to be the lowest
evaluated bid and who meets the appropriate standards of capability and financial resources.
A bidder shall not be required as a condition of award to undertake responsibilities or work
not stipulated in the specifications or to modify the bid.63
Since these terms and conditions are made part of Loan Agreement No. PH-P204, the
government is obliged to observe and enforce the same in the procurement of goods and
services for the CP I project. As shown earlier, private respondent China Road & Bridge
Corporation’s bid was the lowest evaluated bid, albeit 28.95% higher than the ABC. In
accordance with the JBIC Procurement Guidelines, therefore, it was correctly awarded the
contract for the CP I project.
Even if RA 9184 were to be applied retroactively, the terms of the Exchange of Notes dated
December 27, 1999 and Loan Agreement No. PH-P204 would still govern the procurement for
the CP I project
For clarity, Section 4 of RA 9184 is quoted anew, thus:
SEC. 4. Scope and Applications. – This Act shall apply to the Procurement of Infrastructure
Projects, Goods and Consulting Services, regardless of source of funds, whether local or
foreign, by all branches and instrumentalities of government, its departments, offices and
agencies, including government-owned and/or –controlled corporations and local
government units, subject to the provisions of Commonwealth Act No. 138. Any treaty or
international or executive agreement affecting the subject matter of this Act to which the
Philippine government is a signatory shall be observed.
The petitioners, in order to place the procurement process undertaken for the CP I project
within the ambit of RA 9184, vigorously assert that Loan Agreement No. PH-P204 is neither a
treaty, an international agreement nor an executive agreement. They cite Executive Order
No. 459 dated November 25, 1997 where the three agreements are defined in this wise:
a) International agreement – shall refer to a contract or understanding, regardless of
nomenclature, entered into between the Philippines and another government in written form
and governed by international law, whether embodied in a single instrument or in two or
more related instruments.
b) Treaties – international agreements entered into by the Philippines which require
legislative concurrence after executive ratification. This term may include compacts like
conventions, declarations, covenants and acts.
c) Executive agreements – similar to treaties except that they do not require legislative
concurrence.64
The petitioners mainly argue that Loan Agreement No. PH-P204 does not fall under any of the
three categories because to be any of the three, an agreement had to be one where the
parties are the Philippines as a State and another State. The JBIC, the petitioners maintain, is
a Japanese banking agency, which presumably has a separate juridical personality from the
Japanese Government.
The petitioners’ arguments fail to persuade. The Court holds that Loan Agreement No. PH-
P204 taken in conjunction with the Exchange of Notes dated December 27, 1999 between the
Japanese Government and the Philippine Government is an executive agreement.
To recall, Loan Agreement No. PH-P204 was executed by and between the JBIC and the
Philippine Government pursuant to the Exchange of Notes executed by and between Mr.
Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and
then Foreign Affairs Secretary Siazon, in behalf of their respective governments. The
Exchange of Notes expressed that the two governments have reached an understanding
concerning Japanese loans to be extended to the Philippines and that these loans were aimed
at promoting our country’s economic stabilization and development efforts.
Loan Agreement No. PH-P204 was subsequently executed and it declared that it was so
entered by the parties "[i]n the light of the contents of the Exchange of Notes between the
Government of Japan and the Government of the Republic of the Philippines dated December
27, 1999, concerning Japanese loans to be extended with a view to promoting the economic
stabilization and development efforts of the Republic of the Philippines."65 Under the
circumstances, the JBIC may well be considered an adjunct of the Japanese Government.
Further, Loan Agreement No. PH-P204 is indubitably an integral part of the Exchange of
Notes. It forms part of the Exchange of Notes such that it cannot be properly taken
independent thereof.
In this connection, it is well to understand the definition of an "exchange of notes" under
international law. The term is defined in the United Nations Treaty Collection in this wise:
22
An "exchange of notes" is a record of a routine agreement that has many similarities with the the implementation of the projects enumerated in the List A.71 With respect to the
private law contract. The agreement consists of the exchange of two documents, each of the procurement of the goods and services for the projects, it bears reiterating that as stipulated:
parties being in the possession of the one signed by the representative of the other. Under 3. The Government of the Republic of the Philippines will ensure that the products and/or
the usual procedure, the accepting State repeats the text of the offering State to record its services mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of
assent. The signatories of the letters may be government Ministers, diplomats or paragraph 4 of Part II are procured in accordance with the guidelines for procurement of the
departmental heads. The technique of exchange of notes is frequently resorted to, either Bank, which set forth, inter alia, the procedures of international tendering to be followed
because of its speedy procedure, or, sometimes, to avoid the process of legislative approval.66 except where such procedures are inapplicable or inappropriate.72
It is stated that "treaties, agreements, conventions, charters, protocols, declarations, The JBIC Procurements Guidelines, as quoted earlier, forbids any procedure under which bids
memoranda of understanding, modus vivendi and exchange of notes" all refer to above or below a predetermined bid value assessment are automatically disqualified.
"international instruments binding at international law."67 It is further explained that- Succinctly put, it absolutely prohibits the imposition of ceilings on bids.
Although these instruments differ from each other by title, they all have common features Under the fundamental principle of international law of pacta sunt servanda,73 which is, in
and international law has applied basically the same rules to all these instruments. These fact, embodied in Section 4 of RA 9184 as it provides that "[a]ny treaty or international or
rules are the result of long practice among the States, which have accepted them as binding executive agreement affecting the subject matter of this Act to which the Philippine
norms in their mutual relations. Therefore, they are regarded as international customary law. government is a signatory shall be observed," the DPWH, as the executing agency of the
Since there was a general desire to codify these customary rules, two international projects financed by Loan Agreement No. PH-P204, rightfully awarded the contract for the
conventions were negotiated. The 1969 Vienna Convention on the Law of Treaties ("1969 implementation of civil works for the CP I project to private respondent China Road & Bridge
Vienna Convention"), which entered into force on 27 January 1980, contains rules for treaties Corporation.
concluded between States. The 1986 Vienna Convention on the Law of Treaties between WHEREFORE, premises considered, the petition is DISMISSED.
States and International Organizations ("1986 Vienna Convention"), which has still not SO ORDERED.
entered into force, added rules for treaties with international organizations as parties. Both
the 1969 Vienna Convention and the 1986 Vienna Convention do not distinguish between the
different designations of these instruments. Instead, their rules apply to all of those
instruments as long as they meet the common requirements.68
Significantly, an exchange of notes is considered a form of an executive agreement, which
becomes binding through executive action without the need of a vote by the Senate or
Congress. The following disquisition by Francis B. Sayre, former United States High
Commissioner to the Philippines, entitled "The Constitutionality of Trade Agreement Acts,"
quoted in Commissioner of Customs v. Eastern Sea Trading,69 is apropos:
Agreements concluded by the President which fall short of treaties are commonly referred to
as executive agreements and are no less common in our scheme of government than are the
more formal instruments – treaties and conventions. They sometimes take the form of
exchange of notes and at other times that of more formal documents denominated
"agreements" or "protocols". The point where ordinary correspondence between this and
other governments ends and agreements – whether denominated executive agreements or
exchange of notes or otherwise – begin, may sometimes be difficult of ready ascertainment. It
would be useless to undertake to discuss here the large variety of executive agreements as
such, concluded from time to time. Hundreds of executive agreements, other than those
entered into under the trade-agreements act, have been negotiated with foreign
governments. x x x70
The Exchange of Notes dated December 27, 1999, stated, inter alia, that the Government of
Japan would extend loans to the Philippines with a view to promoting its economic
stabilization and development efforts; Loan I in the amount of Y79,8651,000,000 would be
extended by the JBIC to the Philippine Government to implement the projects in the List A
(including the Arterial Road Links Development Project - Phase IV); and that such loan (Loan I)
would be used to cover payments to be made by the Philippine executing agencies to
suppliers, contractors and/or consultants of eligible source countries under such contracts as
may be entered into between them for purchases of products and/or services required for

23
EN BANC
G.R. No. 175608 June 8, 2007
DEPARTMENT of BUDGET and MANAGEMENT PROCUREMENT SERVICE (DBM-PS) and the
Inter-Agency Bids and Awards Committee (IABAC), petitioners,
vs.
KOLONWEL TRADING, respondent.
x --------------------------------------------------x
G.R. No. 175616 June 8, 2007
VIBAL PUBLISHING HOUSE, INC., LG & M CORPORATION and SD PUBLICATIONS, INC.,
petitioners,
vs.
KOLONWEL TRADING, respondent.
x --------------------------------------------------x
G.R. No. 175659 June 8, 2007
DEPARTMENT OF EDUCATION, petitioner,
vs.
KOLONWEL TRADING, respondent.
DECISION
GARCIA, J.:
Before the Court are these consolidated three (3) petitions for review under Rule 45 of the
Rules of Court, with a prayer for a temporary restraining order, to nullify and set aside the
Order1 dated December 4, 2006 of the Manila Regional Trial Court (RTC), Branch 18, in SP
Civil Case No. 06-116010, a special civil action for certiorari and prohibition thereat
commenced by herein respondent Kolonwel Trading (Kolonwel for short) against the
Department of Budget and Management Procurement Service (DBM-PS), et al.
At the core of the controversy are the bidding and the eventual contract awards for the
supply and delivery of some 17.5 million copies of Makabayan (social studies) textbooks and
teachers manuals, a project of the Department of Education (DepEd).
The factual antecedents:
In the middle of 2005, the DepEd requested the services of the DBM-PS to undertake the
aforementioned procurement project which is to be jointly funded by the World Bank (WB),
through the Second Social Expenditure Management Program (SEMP2) of the Philippines (RP)
– International Bank for Reconstruction and Development (IBRD) Loan Agreement No. 7118-
PH2 (Loan No. 7118-PH, hereinafter) dated September 12, 2002; and the Asian Development
Bank (ADB), through SEDIP Loan No. 1654-PHI. Earlier, the Executive Director of the
Government Procurement Policy Board (GPPB), in reply to a DepEd query, stated that
"procurement[s] for MAKABAYAN …textbooks where funds therefore (sic) are sourced from
World Bank Loan shall be governed by the applicable procurement guidelines of the foreign
lending institution. The 2005 Call for Submission of Textbooks and Teacher’s Manuals shall be
viewed vis-à-vis relevant World Bank guidelines."3
On October 27, 2005, the DBM-PS Inter-Agency Bids and Awards Committee (IABAC) called
for a bidding for the supply of the Makabayan textbooks and manuals, divided into three (3)
lots, to wit: Lot 1 for Sibika Grades 1-3; Lot 2 for HeKaSi Grades 4-6 and Lot 3 for Araling
Panlipunan Years I-IV. Of the entities, foreign and local, which responded and procured the
Bidding Documents,4 only eleven (11) bidders submitted, either as principal or in joint venture
arrangement, proposals for the different lots. Among them were Watana Phanit Printing &
Publishing Co., Ltd., of Thailand (Watana, for short), petitioner Vibal Publishing House, Inc.,
(Vibal, hereinafter), Daewoo International Corporation of South Korea (Daewoo, for brevity)
and respondent Kolonwel. Kolonwel’s tender appeared to cover all three (3) lots.5
Following the bid and the book content/body evaluation process, the IABAC, via Resolution
(Res.) No. 001-20066 dated March 9, 2006, resolved "to recommend to the [WB] and the
[ADB] failure of bids for all lots in view of the abovementioned disqualifications, non-
compliance and reservations of [DepEd]." Issues of "Conflict of interest" with respect to
Watana and Vibal, "failure in cover stock testing" for Kolonwel and DepEd’s "reservation"
were among the disqualifying reasons stated in the resolution.
On March 15, 2006, the IABAC submitted to WB for its review and information Res. No. 001-
2006. Appended to the covering letter was a document entitled "Bid Evaluation Report and
Recommendation for Award of Contract."7
The following events, as recited in the assailed Manila RTC order and as borne out by the
records, then transpired:
1. In a letter8 dated April 24, 2006 to the DepEd and the DBM-PS IABAC Chairman, the WB,
through its Regional Senior Economist, Ms. Rekha Menon, disagreed, for stated reasons, with
the IABAC’s finding of conflict of interest on the part of Vibal and Watana and the rejection of
their bids. Ms. Menon, however, upheld the disqualification of all the other bidders. She thus
asked the IABAC to review its evaluation and to provide the WB with the revised Bid
Evaluation Report (BER), taking into account the December 31, 2006 RP-IBRD Loan closing
date.
2. On May 11, 2006, the IABAC informed Kolonwel of its or its bid’s failure to post qualify and
of the grounds for the failure.9
In its reply-letter of May 18, 2006,10 Kolonwel raised several issues and requested that its
disqualification be reconsidered and set aside. In reaction, IABAC apprised WB of Kolonwel’s
concerns stated in its letter-reply.
3) Subsequently, the IABAC, agreeing with WB’s position articulated in Ms. Menon, issued
Res. No. 001-2006-A effectively recommending to WB the contract award to Vibal of Sibika 1
& 3 and HekaSi 5; to Watana of Sibika 2 and HeKaSi 4 & 5 and to Daewoo of Sibika 3. Upon
review, WB offered "no objection" to the recommended award.11
4) The issuance of notices of award and the execution on September 12, 2006 of the
corresponding Purchaser-Supplier contracts followed.12
5. On June 23, 2006, the DBM-PS IABAC chairman informed Kolonwel of the denial of its
request for reconsideration and of the WB’s concurrence with the denial.13 The IABAC denied,
on September 8, 2006, a second request for reconsideration of Kolonwel14 after WB found the
reasons therefor, as detailed in PS IABAC Res. No. 001-2006-B15 dated July 18, 2006,
unmeritorious, particularly on the aspect of cover stock testing.
Such was the state of things when on, October 12, 2006, Kolonwel filed with the RTC of
Manila a special civil action for certiorari and prohibition with a prayer for a temporary
restraining order (TRO) and/or writ of preliminary injunction. Docketed as SP Civil Case No.
06-116010, and raffled to Branch 18 of the court,16 the petition sought to nullify IABAC Res.
Nos. 001-2006 and 001-2006-A and to set aside the contract awards in favor of Vibal and
Watana. In support of its TRO application, Kolonwel alleged, among other things, that the
supply-awardees were rushing with the implementation of the void supply contracts to beat
the loan closing-date deadline.
A week after, the Manila RTC scheduled - and eventually conducted - a summary hearing on
the TRO application. In an order17 of October 31, 2006, as amended in another order18 dated
November 20, 2006, the court granted a 20-day TRO enjoining the IABAC, et al, starting
24
November 6, 2006, from proceeding with the subject September 12, 2006 purchase- supply
contracts. In the original order, the court set the preliminary conference and hearing for the
applied preliminary injunction on November 7, and 8, 2006, respectively.
In the meantime, Vibal filed an urgent motion to dismiss19 Kolonwel’s petition on several
grounds, among them want of jurisdiction and lack of cause of action, inter alia alleging that
the latter had pursued judicial relief without first complying with the protest procedure
prescribed by Republic Act (R.A.) No. 9184, otherwise known as the "Government
Procurement Reform Act." The DepEd later followed with its own motion to dismiss, partly
based on the same protest provision. As records show, the trial court did not conduct a
hearing on either dismissal motions, albeit it heard the parties on their opposing claims
respecting the propriety of issuing a writ of preliminary injunction.
On December 4, 2006, the Manila RTC issued its assailed Order 20 finding for Kolonwel, as
petitioner a quo, disposing as follows:
WHEREFORE, the court grants the petition for certiorari and prohibition. The IABAC
Resolution No. 001-2006-A dated May 30, 2006 is annulled and set aside. IABAC Resolution
No. 001-2006 is declared validly and regularly issued in the absence of a showing of grave
abuse of discretion or excess of jurisdiction. All subsequent actions of the respondents
resulting from the issuance of IABAC Resolution No. 001-2006-A are consequently nullified
and set aside. This court grants a final injunction pursuant to Sec. 9 of Rule 58 of the Rules of
Court as amended, restraining respondents Department of Education and Culture (sic), [DBM-
PS], [IABAC], Vibal Publishing House, Inc., LG & M Corporation and SD Publications from the
commission or continuance of acts, contracts or transactions proceeding from the issuance of
IABAC Resolution No. 001-2006-A.
SO ORDERED. (Emphasis and words in brackets supplied)
Hence, these three (3) petitions which the Court, per its Resolution21 of January 16, 2007,
ordered consolidated. Earlier, the Court issued, in G. R. No. 175616, a TRO22 enjoining the
presiding judge23 of the RTC of Manila, Branch 18, from proceeding with SP Civil Case No. 06-
116010 or implementing its assailed order.
Petitioners urge the annulment of the assailed RTC Order dated December 4, 2006, on
jurisdictional ground, among others. It is their parallel posture that the Manila RTC erred in
assuming jurisdiction over the case despite respondent Kolonwel’s failure to observe the
protest mechanism provided under Sec. 55 in relation to Secs. 57 and 58 of R.A. No. 9184,
respectively reading as follows:
Sec. 55. Protest on Decision of the BAC.- Decisions of the BAC [Bids and Awards Committee] in
all stages of procurement may be protested to the head of the procuring entity…. Decisions of
the BAC may be protested by filing a verified position paper and paying a non-refundable
protest fee. The amount of the protest fee and the periods during which the protest may be
filed and resolved shall be specific in the IRR.
Sec. 57. Non-interruption of the Bidding Process. In no case shall any process taken from any
decision treated in this Article stay or delay the bidding process. Protests must first be
resolved before any award is made.
Sec. 58. Report to Regular Courts; Certiorari.- Court action may be resorted to only after the
protests contemplated in this Article shall have been completed. Cases that are filed in
violation of the process specified in this article shall be dismissed for lack of jurisdiction. The
[RTC] shall have jurisdiction over final decisions of the head of the procuring entity. (Emphasis
and words in bracket added.)
As a counterpoint, the respondent draws attention to its having twice asked, and having been
twice spurned by, the IABAC to reconsider its disqualification, obviously agreeing with the
Manila RTC that the judicial window was already opened under the exhaustion of available
administrative remedies principle. In the same breath, however, the respondent would argue,
again following the RTC’s line, that it was prevented from filing a protest inasmuch as the
government had not issued the Implementing Rules and Regulations (IRR) of R.A. No. 9184 to
render the protest mechanism of the law operative for foreign-funded projects.
The Court is unable to lend concurrence to the trial court’s and respondent’s positions on the
interplay of the protest and jurisdictional issues. As may be noted, the aforequoted Section 55
of R.A. No. 9184 sets three (3) requirements that must be met by the party desiring to protest
the decision of the Bids and Awards Committee (BAC). These are: 1) the protest must be in
writing, in the form of a verified position paper; 2) the protest must be submitted to the head
of the procuring entity; and 3) the payment of a non-refundable protest fee. The jurisdictional
caveat that authorizes courts to assume or, inversely, precludes courts from assuming,
jurisdiction over suits assailing the BAC’s decisions is in turn found in the succeeding Section
58 which provides that the courts would have jurisdiction over such suits only if the protest
procedure has already been completed.
Respondent’s letters of May 18, 200624 and June 28, 200625 in which it requested
reconsideration of its disqualification cannot plausibly be given the status of a protest in the
context of the aforequoted provisions of R.A. No. 9184. For one, neither of the letter-request
was addressed to the head of the procuring entity, in this case the DepEd Secretary or the
head of the DBM Procurement Service, as required by law. For another, the same letters were
unverified. And not to be overlooked of course is the fact that the third protest-completing
requirement, i.e., payment of protest fee, was not complied with.
Given the above perspective, it cannot really be said that the respondent availed itself of the
protest procedure prescribed under Section 55 of R.A. No. 9184 before going to the RTC of
Manila via a petition for certiorari. Stated a bit differently, respondent sought judicial
intervention even before duly completing the protest process. Hence, its filing of SP Civil Case
No. 06-116010 was precipitate. Or, as the law itself would put it, cases that are filed in
violation of the protest process "shall be dismissed for lack of jurisdiction."
Considering that the respondent’s petition in RTC Manila was actually filed in violation of the
protest process set forth in Section 55 of R.A. No. 9184, that court could not have lawfully
acquired jurisdiction over the subject matter of this case. In fact, Section 58, supra, of R.A. No.
9184 emphatically states that cases filed in violation of the protest process therein provided
"shall be dismissed for lack of jurisdiction."
It is to be stressed that the protest mechanism adverted to is a built-in administrative remedy
embodied in the law itself. It was not prescribed by an administrative agency tasked with
implementing a statute through the medium of interpretative circulars or bulletins. Ignoring
thus this administrative remedy would be to defy the law itself.
It will not avail the respondent any to argue that the absence of an IRR to make the protest
mechanism under R.A. No. 9184 become operative for foreign-funded projects was what
prevented it from complying with the protest procedure. As the last sentence of the afore-
quoted Section 55 of R.A. No. 9184 is couched, the specific office of an IRR for foreign-funded
project, vis-à-vis the matter of protest, is limited to fixing "the amount of the protest fee and
the periods during which the protest may be filed and resolved." Surely, the absence of
provisions on protest fee and reglementary period does not signify the deferment of the
implementation of the protest mechanism as a condition sine qua non to resort to judicial
25
relief. As applied to the present case, the respondent had to file a protest and pursue it until
its completion before going to court. There was hardly any need to wait for the specific filing
period to be prescribed by the IRR because the protest, as a matter of necessity, has to be
lodged before court action.
Neither is it necessary that the amount of protest fee be prescribed first. Respondent could
very well have proceeded with its protest without paying the required protest fee, remitting
the proper amount once the appropriate IRR fixed the protest fee.
There may perhaps be room for relaxing the prescription on protest if a bona fide attempt to
comply with legal requirements had been made. But the fact alone that the respondent did
not even submit a verified position paper by way of protest argues against such plausibility.
Significantly, none of the reconsideration-seeking letters of the respondent advert to the
protest procedure under Section 55 of R.A. No. 9184, even by way of noting that it was at a
loss as to the inoperativeness of such provision in the light of the absence of an IRR.
In its petition before the Manila RTC, the respondent veritably admitted to not complying
with the protest requirement, albeit with the lame excuse that it was effectively barred from
complying with the required administrative remedies of protest. Neither did the respondent
then argue that it was not able to comply due to the absence of an IRR for foreign- funded
projects.
At any rate, there is, in fact a set of implementing rules and regulations, denominated as "IRR-
A," issued on July 11, 2003 by the GPPB and the Joint Congressional Oversight Committee,
Section 55.126 of which provides that prior to a resort to protest, the aggrieved party must
first file a motion for reconsideration of the decision of the BAC. It is only after the BAC itself
denies reconsideration that the protest, accompanied by a fixed protest fee, shall be filed
within the period defined in the IRR.
It may be that IRR-A specifically defines its coverage to "all fully domestically-funded
procurement activities," it being also provided that "foreign-funded procurement activities
shall be the subject of a subsequent issuance." 27 However, a similarly drawn argument
involving IRR-A was set aside in Abaya v. Ebdane,28 a case involving Loan Agreement No. PH-
P204 entered into by and between the RP and the Japan Bank for International Cooperation
(JBIC) for the implementation DPWH Contract Package No. I (CP I). Wrote the Court in Abaya:
Admittedly, IRR-A covers only fully domestically-funded procurement activities from
procurement planning up to contract implementation and that it is expressly stated that IRR-B
for foreign-funded procurement activities shall be subject of a subsequent issuance.
Nonetheless, there is no reason why the policy behind Section 77 of IRR-A cannot be applied
to foreign-funded procurement projects like the CP I project. Stated differently, the policy on
the prospective or non-retroactive application of RA 9184 with respect to domestically-
funded procurement projects cannot be any different with respect to foreign-funded
procurement projects …. It would be incongruous, even absurd, to provide for the prospective
application of RA 9184 with respect to domestically-funded procurement projects and, on the
other hand, as urged by the petitioners, apply RA 9184 retroactively with respect to foreign-
funded procurement projects. To be sure, the lawmakers could not have intended such an
absurdity.
As in Abaya, there really should be no reason why the policy behind Section 55.l of IRR-A on
the procedure for protest cannot be applied, even analogously, to foreign-funded
procurement projects, such as those in this case. Indeed, there is no discernable justification
why a different procedure should obtain with respect to foreign-funded procurement
undertakings as opposed to a locally funded project, and certainly there is no concrete
foundation in R.A. 9184 to indicate that Congress intended such a variance in the protest
procedure.
The Manila RTC, in granting the petition for certiorari and prohibition, stated the observation
that there was "substantial compliance of the requirement of protest."29 Yet, it is not even
clear that respondent Kolonwel, in its dealings with the IABAC, particularly in seeking
reconsideration of its decision, was even aware of the protest requirements. What is beyond
dispute, however, is that courts are precluded by express legislative command from
entertaining protests from decisions of the BAC. What Congress contextually intended under
the premises was that not only would there be a distinct administrative grievance mechanism
to be observed in assailing decisions of the BAC, but that courts would be without jurisdiction
over actions impugning decisions of the BACs, unless, in the meantime, the protest procedure
mandated under Section 55 of R.A. No. 9184 is brought to its logical completion.
It is Congress by law, not the courts by discretion, which defines the court’s jurisdiction not
otherwise conferred by the Constitution. Through the same medium, Congress also draws the
parameters in the exercise of the functions of administrative agencies. Section 55 of R.A. No.
9184 could not be any clearer when it mandates the manner of protesting the decision of bids
and awards committees. Similarly, there can be no quibbling that, under Section 58 of the
same law, courts do not have jurisdiction over decisions of the BACs unless the appropriate
protest has been made and completed. The absence of the IRR does not detract from the
reality that R.A. No. 9184 requires a protest to be filed under the form therein prescribed.
Given the above perspective, the Manila RTC had no jurisdiction over respondent Kolonwel’s
petition for certiorari and prohibition. Accordingly, it ought to have granted herein
petitioners’ motion to dismiss, but it did not. Worse, the court even added another layer to its
grievous error when it granted the respondent’s basic petition for certiorari and prohibition
itself.
Compounding the Manila RTC’s error is its having proceeded with SP Civil Case No. 06-116010
even without acquiring jurisdiction over Watana. As may be recalled, the respondent, in its
petition before the RTC, impleaded Watana as one of the defendants, the latter having been
awarded by the IABAC Sibika 2 and HeKaSi 4 &5. The records, however, show that Watana
was not served with summons. The Sheriff’s Return dated October 18, 2006, noted that
summons was not served on Watana and another defendant at "No. 1281 G. Araneta Avenue
cor. Ma. Clara Street, Quezon City, on the ground that said companies were not holding office
thereat according to Mr. Marvin V. Catacutan."
There can be no dispute that Watana is an indispensable party to the respondent’s petition in
SP Civil Case No. 06-116010, Kolonwel having therein assailed and sought to nullify the
contract-award made in its and Vibal’s favor. Indispensable parties are those with such
interest in the controversy that a final decree would necessarily affect their rights so that
courts cannot proceed without their presence.30 All of them must be included in a suit for an
action to prosper or for a final determination to be had.31 Watana, to repeat, was never
served with summons; neither did it participate in the proceedings below. Plainly, then, the
Manila RTC did not acquire jurisdiction over one of the indispensable parties, the joinder of
whom is compulsory.32
With the foregoing disquisitions, the Court finds it unnecessary to even dwell on the other
points raised in this consolidated cases. In the light, however, of the Manila RTC’s holding that
the WB Guidelines on Procurement under IBRD Loans do not in any way provided superiority
over local laws on the matter,33 the Court wishes to state the following observation:
26
As may be recalled, all interested bidders were put on notice that the DepEd’s procurement
project was to be funded from the proceeds of the RP-IBRD Loan No. 7118-PH,34 Section 1,
Schedule 4 of which stipulates that "Goods … shall be procured in accordance with the
provisions of Section 135 of the ‘Guidelines for Procurement under IBRD Loans.’" Accordingly,
the IABAC conducted the bidding for the supply of textbooks and manuals based on the WB
Guidelines, particularly the provisions on International Competitive Bidding (ICB). Section 4 of
R.A. No. 9184 expressly recognized this particular process, thus:
Sec. 4. Scope and application. - This Act shall apply to the Procurement of … Goods and
Consulting Services, regardless of source of funds, whether local or foreign by all branches
and instrumentalities of government …. Any treaty or international or executive agreement
affecting the subject matter of this Act to which the Philippine government is a signatory shall
be observed. (Emphasis added.)
The question as to whether or not foreign loan agreements with international financial
institutions, such as Loan No. 7118-PH, partake of an executive or international agreement
within the purview of the Section 4 of R.A. No. 9184, has been answered by the Court in the
affirmative in Abaya, supra. Significantly, Abaya declared that the RP-JBIC loan agreement was
to be of governing application over the CP I project and that the JBIC Procurement Guidelines,
as stipulated in the loan agreement, shall primarily govern the procurement of goods
necessary to implement the main project.
Under the fundamental international law principle of pacta sunt servanda,36 which is in fact
embodied in the afore-quoted Section 4 of R.A. No. 9184, the RP, as borrower, bound itself to
perform in good faith its duties and obligation under Loan No. 7118- PH. Applying this
postulate in the concrete to this case, the IABAC was legally obliged to comply with, or accord
primacy to, the WB Guidelines on the conduct and implementation of the
bidding/procurement process in question.
WHEREFORE, the instant consolidated petitions are GRANTED and the assailed Order dated
December 4, 2006 of the Regional Trial Court of Manila in its SP Case No. 06-116010 is
NULLIFIED and SET ASIDE.
No cost.
SO ORDERED.

27
EN BANC
G.R. No. 178830 July 14, 2008
ROLEX SUPLICO, Petitioner,
vs.
NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY, represented by NEDA SECRETARY
ROMULO L. NERI, and the NEDA-INVESTMENT COORDINATION COMMITTEE, DEPARTMENT
OF TRANSPORTATION AND COMMUNICATIONS (DOTC), represented by DOTC SECRETARY
LEANDRO MENDOZA, including the COMMISSION ON INFORMATION AND
COMMUNICATIONS TECHNOLOGY, headed by its Chairman, RAMON P. SALES, THE
TELECOMMUNICATIONS OFFICE, BIDS AND AWARDS FOR INFORMATION AND
COMMUNICATIONS TECHNOLOGY (ICT), headed by DOTC ASSISTANT SECRETARY ELMER A.
SONEJA as Chairman, and the TECHNICAL WORKING GROUP FOR ICT, AND DOTC ASSISTANT
SECRETARY LORENZO FORMOSO, AND ALL OTHER OPERATING UNITS OF THE DOTC FOR
INFORMATION AND COMMUNICATIONS TECHNOLOGY, and ZTE CORPORATION,
AMSTERDAM HOLDINGS, INC., AND ALL PERSONS ACTING IN THEIR BEHALF, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179317
AMSTERDAM HOLDINGS, INC., and NATHANIEL SAUZ, Petitioners,
vs.
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, SECRETARY LEANDRO
MENDOZA, COMMISSION ON INFORMATION AND COMMUNICATIONS TECHNOLOGY, and
ASSISTANT SECRETARY LORENZO FORMOSO III, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179613
GALELEO P. ANGELES, VICENTE C. ANGELES, JOB FLORANTE L. CASTILLO, TRINI ANNE G.
NIEVA, ROY ALLAN T. ARELLANO, CARLO MAGNO M. REONAL, ETHEL B. REGADIO, RAENAN
B. MALIG, AND VINALYN M. POTOT, TOGETHER WITH LAWYERS AND ADVOCATES FOR
ACCOUNTABILITY, TRANSPARENCY, INTEGRITY AND GOOD GOVERNANCE (LATIGO),
Petitioners,
vs.
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (DOTC), represented by
DOTC SECRETARY LEANDRO MENDOZA, and ZHONG XING EQUIPMENT (ZTE) COMPANY,
LTD., AND ANY AND ALL PERSONS ACTING ON THEIR BEHALF, Respondents.
RESOLUTION
REYES, R.T., J.:
Under consideration is the Manifestation and Motion1 dated October 26, 2007 of the Office of
the Solicitor General (OSG) which states:
The Office of the Solicitor General (OSG) respectfully avers that in an Indorsement dated
October 24, 2007, the Legal Service of the Department of Transportation and
Communications (DOTC) has informed it of the Philippine Government’s decision not to
continue with the ZTE National Broadband Network Project (see attachment2). That said,
there is no more justiciable controversy for this Honorable Court to resolve. WHEREFORE,
public respondents respectfully pray that the present petitions be DISMISSED.
On November 13, 2007, the Court noted the OSG’s manifestation and motion and required
petitioners in G.R. Nos. 178830, 179317, and 179613 to comment.
On December 6, 2007, Rolex Suplico, petitioner in G.R. No. 178830, filed his Consolidated
Reply and Opposition,3 opposing the aforequoted OSG Manifestation and Motion, arguing
that:
66. Aside from the fact that the Notes of the Meeting Between President Gloria Macapagal-
Arroyo and Chinese President Hu Jintao held 2 October 2007 were not attached to the 26
October 2007 Manifestation and Motion – thus depriving petitioners of the opportunity to
comment thereon – a mere verbally requested 1st Indorsement is not sufficient basis for the
conclusion that the ZTE-DOTC NBN deal has been permanently scrapped.
67. Suffice to state, said 1st Indorsement is glaringly self-serving, especially without the Notes
of the Meeting Between President Gloria Macapagal-Arroyo and Chinese President Hu Jintao
to support its allegations or other proof of the supposed decision to cancel the ZTE-DOTC
NBN deal. Public respondents can certainly do better than that.4
Petitioner Suplico further argues that:
79. Assuming arguendo that some aspects of the present Petition have been rendered moot
(which is vehemently denied), this Honorable Court, consistent with well-entrenched
jurisprudence, may still take cognizance thereof.5
Petitioner Suplico cites this Court’s rulings in Gonzales v. Chavez,6 Rufino v. Endriga,7 and
Alunan III v. Mirasol8 that despite their mootness, the Court nevertheless took cognizance of
these cases and ruled on the merits due to the Court’s symbolic function of educating the
bench and the bar by formulating guiding and controlling principles, precepts, doctrines, and
rules.
On January 31, 2008, Amsterdam Holdings, Inc. (AHI) and Nathaniel Sauz, petitioners in G.R.
No. 179317, also filed their comment expressing their sentiments, thus:
3. First of all, the present administration has never been known for candor. The present
administration has a very nasty habit of not keeping its word. It says one thing, but does
another.
4. This being the case, herein petitioners are unable to bring themselves to feel even a bit
reassured that the government, in the event that the above-captioned cases are dismissed,
will not backtrack, re-transact, or even resurrect the now infamous NBN-ZTE transaction. This
is especially relevant since what was attached to the OSG’s Manifestation and Motion was a
mere one (1) page written communication sent by the Department of Transportation and
Communications (DOTC) to the OSG, allegedly relaying that the Philippine Government has
decided not to continue with the NBN project "x x x due to several reasons and constraints."
Petitioners AHI and Sauz further contend that because of the transcendental importance of
the issues raised in the petition, which among others, included the President’s use of the
power to borrow, i.e., to enter into foreign loan agreements, this Court should take
cognizance of this case despite its apparent mootness.
On January 15, 2008, the Court required the OSG to file respondents’ reply to petitioners’
comments on its manifestation and motion.
On April 18, 2008, the OSG filed respondents’ reply, reiterating their position that for a court
to exercise its power of adjudication, there must be an actual case or controversy – one which
involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial
resolution; the case must not be moot or academic or based on extra-legal or other similar
considerations not cognizable by a court of justice.9
Respondents also insist that there is no perfected contract in this case that would prejudice
the government or public interest. Explaining the nature of the NBN Project as an executive
28
agreement, respondents stress that it remained in the negotiation stage. The conditions
precedent10 for the agreement to become effective have not yet been complied with.
Respondents further oppose petitioners’ claim of the right to information, which they
contend is not an absolute right. They contend that the matters raised concern executive
policy, a political question which the judicial branch of government would generally hesitate
to pass upon.
On July 2, 2008, the OSG filed a Supplemental Manifestation and Motion. Appended to it is
the Highlights from the Notes of Meeting between President Gloria Macapagal-Arroyo and
Chinese President Hu Jintao, held in XI Jiao Guesthouse, Shanghai, China, on October 2, 2007.
In the Notes of Meeting, the Philippine Government conveyed its decision not to continue
with the ZTE National Broadband Network Project due to several constraints. The same Notes
likewise contained President Hu Jintao’s expression of understanding of the Philippine
Government decision.
We resolve to grant the motion.
Firstly, the Court notes the triple petitions to be for certiorari, prohibition and mandamus,
with application for the issuance of a Temporary Restraining Order (TRO) and/or Preliminary
Injunction. The individual prayers in each of the three (3) consolidated petitions are:
G.R. No. 178830
WHEREFORE, it is respectfully prayed of this Honorable Court:
1. Upon the filing of this Petition, pursuant to the second paragraph of Rule 58, Section 5 of
the Rules of Court, issue forthwith an ex parte temporary restraining order enjoining
respondents, their subordinates, agents, representatives and any and all persons acting on
their behalf from pursuing, entering into indebtedness, disbursing funds, and implementing
the ZTE-DOTC Broadband Deal;
2. Compel respondents, upon Writ of Mandamus, to forthwith produce and furnish petitioner
or his undersigned counsel a certified true copy of the contract or agreement covering the
NBN project as agreed upon with ZTE Corporation;
3. Schedule Oral Arguments in the present case pursuant to Rule 49 in relation to Section 2,
Rule 56 of the revised Rules of Court; and,
4. Annul and set aside the award of the ZTE-DOTC Broadband Deal, and compel public
respondents to forthwith comply with pertinent provisions of law regarding procurement of
government ICT contracts and public bidding for the NBN contract.11 (Emphasis supplied)
G.R. No. 179317
WHEREFORE, petitioners Amsterdam Holdings, Inc., and Nathaniel Sauz respectfully pray as
follows:
A. upon the filing of this Petition for Mandamus and conditioned upon the posting of a bond
in such amount as the Honorable Court may fix, a temporary restraining order and/or writ of
preliminary injunction be issued directing the Department of Transportation and
Communication, the Commission on Information and Communications Technology, all other
government agencies and instrumentalities, their officers, employees, and/or other persons
acting for and on their behalf to desist during the pendency of the instant Petition for
Mandamus from entering into any other agreements and from commencing with any kind,
sort, or specie of activity in connection with the National Broadband Network Project;
B. the instant Petition for Mandamus be given due course; and,
C. after due consideration of all relevant issues, judgment be rendered directing respondents
to allow herein petitioners access to all agreements entered into with the Government of
China, the ZTE Corporation, and/or other entities, government instrumentalities, and/or
individuals with regard to the National Broadband Network Project.12 (Emphasis supplied)
G.R. No. 179613
WHEREFORE, it is respectfully prayed of this Honorable Court to:
1. Compel respondents, upon Writ of Mandamus, to forthwith produce and furnish petitioner
or his undersigned counsel a certified true copy of the contract or agreement covering the
NBN project as agreed upon with ZTE Corporation;
2. Schedule Oral Arguments in the present case pursuant to Rule 49 in relation to Section 2,
Rule 56 of the Revised Rules of Court;
3. Annul and set aside the award of the contract for the national broadband network to
respondent ZTE Corporation, upon the ground that said contract, as well as the procedures
resorted to preparatory to the execution thereof, is contrary to the Constitution, to law and
to public policy;
4. Compel public respondent to forthwith comply with pertinent provisions of law regarding
procurement of government infrastructure projects, including public bidding for said contract
to undertake the construction of the national broadband network.13 (Emphasis supplied)
On September 11, 2007, the Court issued a TRO14 in G.R. No. 178830, enjoining the parties
from "pursuing, entering into indebtedness, disbursing funds, and implementing the ZTE-
DOTC Broadband Deal and Project" as prayed for. Pertinent parts of the said Order read:
WHEREAS, the Supreme Court, on 11 September 2007, adopted a resolution in the above-
entitled case, to wit:
"G.R. No. 178830 (Rolex Suplico vs. National Economic and Development Authority,
represented by NEDA Secretary Romulo L. Neri, and the NEDA Investment Coordination
Committee, Department of Transportation and Communications (DOTC), represented by
DOTC Secretary Leandro Mendoza, including the Commission on Information and
Communications Technology, headed by its Chairman, Ramon P. Sales, The
Telecommunications Office, Bids and Awards for Information and Communications
Technology Committee (ICT), headed by DOTC Assistant Secretary Elmer A. Soneja as
Chairman, and The Technical Working Group for ICT, and DOTC Assistant Secretary Lorenzo
Formoso, and All Other Operating Units of the DOTC for Information and Communications
Technology, and ZTE Corporation, Amsterdam Holdings, Inc., and ARESCOM, Inc.—Acting on
the instant petition with prayer for temporary restraining order and/or writ of preliminary
injunction, the Court Resolved, without giving due course to the petition, to
xxxx
(d) Issue a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until
further orders from this Court, enjoining the (i) National Economic and Development
Authority, (ii) NEDA-Investment Coordination Committee, (iii) Department of Transportation
and Communications, Commission on Information and Communications Technology, (iv)
Telecommunications Office, Bids and Awards for Information and Communications
Technology Committee (ICT), (v) Technical Working Group for ICT, and all other Operating
Units of the DOTC for Information and Communications Technology, (vi) ZTE Corporation; (vii)
Amsterdam Holdings, Inc., and (viii) ARESCOM, Inc., and any and all persons acting on their
behalf from ‘pursuing, entering into indebtedness, disbursing funds, and implementing the
ZTE-DOTC Broadband Deal and Project’ as prayed for."
NOW THEREFORE, effective immediately and continuing until further orders from this Court,
You, Respondents (i) National Economic and Development Authority, (ii) NEDA-Investment
Coordination Committee, (iii) Department of Transportation and Communications,
29
Commission on Information and Communications Technology, (iv) Telecommunications
Office, Bids and Awards for Information and Communications Technology Committee (ICT), (v)
Technical Working Group for ICT, and all other Operating Units of the DOTC for Information
and Communications Technology, (vi) ZTE Corporation; (vii) Amsterdam Holdings, Inc., and
(viii) ARESCOM, Inc., and any and all persons acting on their behalf are hereby ENJOINED from
"pursuing, entering into indebtedness, disbursing funds, and implementing the ZTE-DOTC
Broadband Deal and Project" as prayed for.15 (Emphasis supplied.)
Petitioners in G.R. Nos. 178830 and 179613 pray that they be furnished certified true copies
of the "contract or agreement covering the NBN project as agreed upon with ZTE
Corporation." It appears that during one of the Senate hearings on the NBN project, copies of
the supply contract16 were readily made available to petitioners.17 Evidently, the said prayer
has been complied with and is, thus, mooted.
When President Gloria Macapagal-Arroyo, acting in her official capacity during the meeting
held on October 2, 2007 in China, informed China’s President Hu Jintao that the Philippine
Government had decided not to continue with the ZTE-National Broadband Network (ZTE-
NBN) Project due to several reasons and constraints, there is no doubt that all the other
principal prayers in the three petitions (to annul, set aside, and enjoin the implementation of
the ZTE-NBN Project) had also become moot.
Contrary to petitioners’ contentions that these declarations made by officials belonging to the
executive branch on the Philippine Government’s decision not to continue with the ZTE-NBN
Project are self-serving, hence, inadmissible, the Court has no alternative but to take judicial
notice of this official act of the President of the Philippines.
Section 1, Rule 129 of the Rules of Court provides:
SECTION 1. Judicial Notice, when mandatory. – A court shall take judicial notice, without
introduction of evidence, of the existence and territorial extent of states, their political
history, forms of government and symbols of nationality, the law of nations, the admiralty
and maritime courts of the world and their seals, the political constitution and history of the
Philippines, the official acts of the legislative, executive and judicial departments of the
Philippines, the laws of nature, the measure of time, and the geographical divisions.
(Emphasis supplied)
Under the rules, it is mandatory and the Court has no alternative but to take judicial notice of
the official acts of the President of the Philippines, who heads the executive branch of our
government. It is further provided in the above-quoted rule that the court shall take judicial
notice of the foregoing facts without introduction of evidence. Since we consider the act of
cancellation by President Macapagal-Arroyo of the proposed ZTE-NBN Project during the
meeting of October 2, 2007 with the Chinese President in China as an official act of the
executive department, the Court must take judicial notice of such official act without need of
evidence.
In David v. Macapagal-Arroyo,18 We took judicial notice of the announcement by the Office of
the President banning all rallies and canceling all permits for public assemblies following the
issuance of Presidential Proclamation No. 1017 and General Order No. 5.
In Estrada v. Desierto,19 the Court also resorted to judicial notice in resolving the factual
ingredient of the petition.
Moreover, under Section 2, paragraph (m) of Rule 131 of the Rules of Court, the official duty
of the executive officials20 of informing this Court of the government’s decision not to
continue with the ZTE-NBN Project is also presumed to have been regularly performed,
absent proof to the contrary. Other than petitioner AHI’s unsavory insinuation in its
comment, the Court finds no factual or legal basis to disregard this disputable presumption in
the present instance.
Concomitant to its fundamental task as the ultimate citadel of justice and legitimacy is the
judiciary’s role of strengthening political stability indispensable to progress and national
development. Pontificating on issues which no longer legitimately constitute an actual case or
controversy will do more harm than good to the nation as a whole. Wise exercise of judicial
discretion militates against resolving the academic issues, as petitioners want this Court to do.
This is especially true where, as will be further discussed, the legal issues raised cannot be
resolved without previously establishing the factual basis or antecedents.
Judicial power presupposes actual controversies, the very antithesis of mootness. In the
absence of actual justiciable controversies or disputes, the Court generally opts to refrain
from deciding moot issues. Where there is no more live subject of controversy, the Court
ceases to have a reason to render any ruling or make any pronouncement.
Kapag wala nang buhay na kaso, wala nang dahilan para magdesisyon ang Husgado.
In Republic Telecommunications Holdings, Inc. v. Santiago,21 the lone issue tackled by the
Court of Appeals (CA) was whether the Securities Investigation and Clearing Department
(SICD) and Securities and Exchange Commission (SEC) en banc committed reversible error in
issuing and upholding, respectively, the writ of preliminary injunction. The writ enjoined the
execution of the questioned agreements between Qualcomm, Inc. and Republic
Telecommunications Holdings, Inc. (RETELCOM). The implementation of the agreements was
restrained through the assailed orders of the SICD and the SEC en banc which, however, were
nullified by the CA decision. Thus, RETELCOM elevated the matter to this Court praying for the
reinstatement of the writ of preliminary injunction of the SICD and the SEC en banc. However,
before the matter was finally resolved, Qualcomm, Inc. withdrew from the negotiating table.
Its withdrawal had thwarted the execution and enforcement of the contracts. Thus, the
resolution of whether the implementation of said agreements should be enjoined became no
longer necessary.
Equally applicable to the present case is the Court ruling in the above-cited Republic
Telecommunications. There We held, thus:
Indeed, the instant petition, insofar as it assails the Court of Appeals’ Decision nullifying the
orders of the SEC en banc and the SICD, has been rendered moot and academic. To rule, one
way or the other, on the correctness of the questioned orders of the SEC en banc and the
SICD will be indulging in a theoretical exercise that has no practical worth in view of the
supervening event.
The rule is well-settled that for a court to exercise its power of adjudication, there must be an
actual case or controversy – one which involves a conflict of legal rights, an assertion of
opposite legal claims susceptible of judicial resolution; the case must not be moot or
academic or based on extra-legal or other similar considerations not cognizable by a court of
justice. Where the issue has become moot and academic, there is no justiciable controversy,
and an adjudication thereon would be of no practical use or value as courts do not sit to
adjudicate mere academic questions to satisfy scholarly interest, however intellectually
challenging.
In the ultimate analysis, petitioners are seeking the reinstatement of the writ of injunction to
prevent the concerned parties from pushing through with transactions with Qualcomm, Inc.
Given that Qualcomm, Inc. is no longer interested in pursuing the contracts, there is no actual
substantial relief to which petitioners would be entitled and which would be negated by the
dismissal of the petition.
30
The Court likewise finds it unnecessary to rule whether the assailed Court of Appeals’
Decision had the effect of overruling the Court’s Resolution dated 29 January 1999, which set
aside the TRO issued by the appellate court.
A ruling on the matter practically partakes of a mere advisory opinion, which falls beyond the
realm of judicial review. The exercise of the power of judicial review is limited to actual cases
and controversies. Courts have no authority to pass upon issues through advisory opinions or
to resolve hypothetical or feigned problems.
While there were occasions when the Court passed upon issues although supervening events
had rendered those petitions moot and academic, the instant case does not fall under the
exceptional cases. In those cases, the Court was persuaded to resolve moot and academic
issues to formulate guiding and controlling constitutional principles, precepts, doctrines or
rules for future guidance of both bench and bar.
In the case at bar, the resolution of whether a writ of preliminary injunction may be issued to
prevent the implementation of the assailed contracts calls for an appraisal of factual
considerations which are peculiar only to the transactions and parties involved in this
controversy. Except for the determination of whether petitioners are entitled to a writ of
preliminary injunction which is now moot, the issues raised in this petition do not call for a
clarification of any constitutional principle or the interpretation of any statutory provision.22
Secondly, even assuming that the Court will choose to disregard the foregoing considerations
and brush aside mootness, the Court cannot completely rule on the merits of the case
because the resolution of the three petitions involves settling factual issues which definitely
requires reception of evidence. There is not an iota of doubt that this may not be done by this
Court in the first instance because, as has been stated often enough, this Court is not a trier
of facts.
Ang pagpapasiya sa tatlong petisyon ay nangangailangan ng paglilitis na hindi gawain ng
Hukumang ito.
Respondent ZTE, in its Comment in G.R. No. 178830,23 correctly pointed out that since
petitioner Suplico filed his petition directly with this Court, without prior factual findings
made by any lower court, a determination of pertinent and relevant facts is needed. ZTE
enumerated some of these factual issues, to wit:
(1) Whether an executive agreement has been reached between the Philippine and Chinese
governments over the NBN Project;
(2) Whether the ZTE Supply Contract was entered into by the Republic of the Philippines,
through the DOTC, and ZTE International pursuant to, and as an integral part of, the executive
agreement;
(3) Whether a loan agreement for the NBN Project has actually been executed;
(4) Whether the Philippine government required that the NBN Project be completed under a
Build-Operate-and-Transfer Scheme;
(5) Whether the AHI proposal complied with the requirements for an unsolicited proposal
under the BOT Law;
(6) Whether the Philippine government has actually earmarked public finds for disbursement
under the ZTE Supply Contract; and
(7) Whether the coverage of the NBN Project to be supplied under the ZTE Supply Contract is
more extensive than that under the AHI proposal or such other proposal submitted
therefor.24
Definitely, some very specific reliefs prayed for in both G.R. Nos. 178830 and 179613 require
prior determination of facts before pertinent legal issues could be resolved and specific reliefs
granted.
In G.R. No. 178830, petitioner seeks to annul and set aside the award of the ZTE-DOTC
Broadband Deal and compel public respondents to forthwith comply with pertinent
provisions of law regarding procurement of government ICT contracts and public bidding for
the NBN contract.
In G.R. No. 179613, petitioners also pray that the Court annul and set aside the award of the
contract for the national broadband network to respondent ZTE Corporation, upon the
ground that said contract, as well as the procedures resorted to preparatory to the execution
thereof, is contrary to the Constitution, to law and to public policy. They also ask the Court to
compel public respondent to forthwith comply with pertinent provisions of law regarding
procurement of government infrastructure projects, including public bidding for said contract
to undertake the construction of the national broadband network.
It is simply impossible for this Court "to annul and set aside the award of the ZTE-DOTC
Broadband Deal" without any evidence to support a prior factual finding pointing to any
violation of law that could lead to such annulment order. For sure, the Supreme Court is not
the proper venue for this factual matter to be threshed out.
Thirdly, petitioner Suplico in G.R. No. 178830 prayed that this Court order "public
respondents to forthwith comply with pertinent provisions of law regarding procurement of
government ICT contracts and public bidding for the NBN contract."25 It would be too
presumptuous on the part of the Court to summarily compel public respondents to comply
with pertinent provisions of law regarding procurement of government infrastructure
projects without any factual basis or prior determination of very particular violations
committed by specific government officials of the executive branch. For the Court to do so
would amount to a breach of the norms of comity among co-equal branches of government.
A perceived error cannot be corrected by committing another error. Without proper
evidence, the Court cannot just presume that the executive did not comply with procurement
laws. Should the Court allow itself to fall into this trap, it would plainly commit grave error
itself.
Magiging kapangahasan sa Hukumang ito na pilitin ang mga pinipetisyon na tumalima sa
batas sa pangongontrata ng pamahalaan kung wala pang pagtitiyak o angkop na ebidensiya
ng nagawang paglabag dito.
Let it be clarified that the Senate investigation in aid of legislation cannot be the basis of Our
decision which requires a judicial finding of facts.
Justice Antonio T. Carpio takes the view that the National Broadband Network Project should
be declared null and void. The foregoing threefold reasons would suffice to address the
concern of Our esteemed colleague.
The Court is, therefore, constrained to dismiss the petitions and deny them due course
because of mootness and because their resolution requires reception of evidence which
cannot be done in an original petition brought before the Supreme Court.
WHEREFORE, the petitions are DISMISSED. The Temporary Restraining Order issued on
September 11, 2007 is DISSOLVED.
SO ORDERED.
31
EN BANC
G.R. No. 185572 February 7, 2012
CHINA NATIONAL MACHINERY & EQUIPMENT CORP. (GROUP), Petitioner,
vs.
HON. CESAR D. SANTAMARIA, in his official capacity as Presiding Judge of Branch 145,
Regional Trial Court of Makati City, HERMINIO HARRY L. ROQUE, JR., JOEL R. BUTUYAN,
ROGER R. RAYEL, ROMEL R. BAGARES, CHRISTOPHER FRANCISCO C. BOLASTIG, LEAGUE OF
URBAN POOR FOR ACTION (LUPA), KILUSAN NG MARALITA SA MEYCAUAYAN (KMM-LUPA
CHAPTER), DANILO M. CALDERON, VICENTE C. ALBAN, MERLYN M. VAAL, LOLITA S.
QUINONES, RICARDO D. LANOZO, JR., CONCHITA G. GOZO, MA. TERESA D. ZEPEDA,
JOSEFINA A. LANOZO, and SERGIO C. LEGASPI, JR., KALIPUNAN NG DAMAYANG MAHIHIRAP
(KADAMAY), EDY CLERIGO, RAMMIL DINGAL, NELSON B. TERRADO, CARMEN DEUNIDA, and
EDUARDO LEGSON, Respondents.
DECISION
SERENO, J.:
This is a Petition for Review on Certiorari with Prayer for the Issuance of a Temporary
Restraining Order (TRO) and/or Preliminary Injunction assailing the 30 September 2008
Decision and 5 December 2008 Resolution of the Court of Appeals (CA) in CA–G.R. SP No.
103351.1
On 14 September 2002, petitioner China National Machinery & Equipment Corp. (Group)
(CNMEG), represented by its chairperson, Ren Hongbin, entered into a Memorandum of
Understanding with the North Luzon Railways Corporation (Northrail), represented by its
president, Jose L. Cortes, Jr. for the conduct of a feasibility study on a possible railway line
from Manila to San Fernando, La Union (the Northrail Project).2
On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the Department of
Finance of the Philippines (DOF) entered into a Memorandum of Understanding (Aug 30
MOU), wherein China agreed to extend Preferential Buyer’s Credit to the Philippine
government to finance the Northrail Project.3 The Chinese government designated EXIM
Bank as the lender, while the Philippine government named the DOF as the borrower.4 Under
the Aug 30 MOU, EXIM Bank agreed to extend an amount not exceeding USD 400,000,000 in
favor of the DOF, payable in 20 years, with a 5-year grace period, and at the rate of 3% per
annum.5
On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui (Amb. Wang),
wrote a letter to DOF Secretary Jose Isidro Camacho (Sec. Camacho) informing him of
CNMEG’s designation as the Prime Contractor for the Northrail Project.6
On 30 December 2003, Northrail and CNMEG executed a Contract Agreement for the
construction of Section I, Phase I of the North Luzon Railway System from Caloocan to
Malolos on a turnkey basis (the Contract Agreement).7 The contract price for the Northrail
Project was pegged at USD 421,050,000.8
On 26 February 2004, the Philippine government and EXIM Bank entered into a counterpart
financial agreement – Buyer Credit Loan Agreement No. BLA 04055 (the Loan Agreement).9 In
the Loan Agreement, EXIM Bank agreed to extend Preferential Buyer’s Credit in the amount
of USD 400,000,000 in favor of the Philippine government in order to finance the construction
of Phase I of the Northrail Project.10
On 13 February 2006, respondents filed a Complaint for Annulment of Contract and
Injunction with Urgent Motion for Summary Hearing to Determine the Existence of Facts and
Circumstances Justifying the Issuance of Writs of Preliminary Prohibitory and Mandatory
Injunction and/or TRO against CNMEG, the Office of the Executive Secretary, the DOF, the
Department of Budget and Management, the National Economic Development Authority and
Northrail.11 The case was docketed as Civil Case No. 06-203 before the Regional Trial Court,
National Capital Judicial Region, Makati City, Branch 145 (RTC Br. 145). In the Complaint,
respondents alleged that the Contract Agreement and the Loan Agreement were void for
being contrary to (a) the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184), otherwise
known as the Government Procurement Reform Act; (c) Presidential Decree No. 1445,
otherwise known as the Government Auditing Code; and (d) Executive Order No. 292,
otherwise known as the Administrative Code.12
RTC Br. 145 issued an Order dated 17 March 2006 setting the case for hearing on the issuance
of injunctive reliefs.13 On 29 March 2006, CNMEG filed an Urgent Motion for Reconsideration
of this Order.14 Before RTC Br. 145 could rule thereon, CNMEG filed a Motion to Dismiss
dated 12 April 2006, arguing that the trial court did not have jurisdiction over (a) its person, as
it was an agent of the Chinese government, making it immune from suit, and (b) the subject
matter, as the Northrail Project was a product of an executive agreement.15
On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEG’s Motion to Dismiss
and setting the case for summary hearing to determine whether the injunctive reliefs prayed
for should be issued.16 CNMEG then filed a Motion for Reconsideration,17 which was denied
by the trial court in an Order dated 10 March 2008.18 Thus, CNMEG filed before the CA a
Petition for Certiorari with Prayer for the Issuance of TRO and/or Writ of Preliminary
Injunction dated 4 April 2008.19
In the assailed Decision dated 30 September 2008, the appellate court dismissed the Petition
for Certiorari.20 Subsequently, CNMEG filed a Motion for Reconsideration,21 which was
denied by the CA in a Resolution dated 5 December 2008.22 Thus, CNMEG filed the instant
Petition for Review on Certiorari dated 21 January 2009, raising the following issues: 23
Whether or not petitioner CNMEG is an agent of the sovereign People’s Republic of China.
Whether or not the Northrail contracts are products of an executive agreement between two
sovereign states.
Whether or not the certification from the Department of Foreign Affairs is necessary under
the foregoing circumstances.
Whether or not the act being undertaken by petitioner CNMEG is an act jure imperii.
Whether or not the Court of Appeals failed to avoid a procedural limbo in the lower court.
Whether or not the Northrail Project is subject to competitive public bidding.
Whether or not the Court of Appeals ignored the ruling of this Honorable Court in the Neri
case.
CNMEG prays for the dismissal of Civil Case No. 06-203 before RTC Br. 145 for lack of
jurisdiction. It likewise requests this Court for the issuance of a TRO and, later on, a writ of
preliminary injunction to restrain public respondent from proceeding with the disposition of
Civil Case No. 06-203.
The crux of this case boils down to two main issues, namely:
1. Whether CNMEG is entitled to immunity, precluding it from being sued before a local court.
2. Whether the Contract Agreement is an executive agreement, such that it cannot be
questioned by or before a local court.
First issue: Whether CNMEG is entitled to immunity
This Court explained the doctrine of sovereign immunity in Holy See v. Rosario,24 to wit:
There are two conflicting concepts of sovereign immunity, each widely held and firmly
established. According to the classical or absolute theory, a sovereign cannot, without its
32
consent, be made a respondent in the courts of another sovereign. According to the newer
or restrictive theory, the immunity of the sovereign is recognized only with regard to public
acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis.
(Emphasis supplied; citations omitted.)
xxx xxx xxx
The restrictive theory came about because of the entry of sovereign states into purely
commercial activities remotely connected with the discharge of governmental functions. This
is particularly true with respect to the Communist states which took control of nationalized
business activities and international trading.
In JUSMAG v. National Labor Relations Commission,25 this Court affirmed the Philippines’
adherence to the restrictive theory as follows:
The doctrine of state immunity from suit has undergone further metamorphosis. The view
evolved that the existence of a contract does not, per se, mean that sovereign states may, at
all times, be sued in local courts. The complexity of relationships between sovereign states,
brought about by their increasing commercial activities, mothered a more restrictive
application of the doctrine.
xxx xxx xxx
As it stands now, the application of the doctrine of immunity from suit has been restricted to
sovereign or governmental activities (jure imperii). The mantle of state immunity cannot be
extended to commercial, private and proprietary acts (jure gestionis).26 (Emphasis supplied.)
Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature
of the act involved – whether the entity claiming immunity performs governmental, as
opposed to proprietary, functions. As held in United States of America v. Ruiz –27
The restrictive application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic
affairs. Stated differently, a State may be said to have descended to the level of an individual
and can thus be deemed to have tacitly given its consent to be sued only when it enters into
business contracts. It does not apply where the contract relates to the exercise of its
sovereign functions.28
A. CNMEG is engaged in a proprietary activity.
A threshold question that must be answered is whether CNMEG performs governmental or
proprietary functions. A thorough examination of the basic facts of the case would show that
CNMEG is engaged in a proprietary activity.
The parties executed the Contract Agreement for the purpose of constructing the Luzon
Railways, viz:29
WHEREAS the Employer (Northrail) desired to construct the railways form Caloocan to
Malolos, section I, Phase I of Philippine North Luzon Railways Project (hereinafter referred to
as THE PROJECT);
AND WHEREAS the Contractor has offered to provide the Project on Turnkey basis, including
design, manufacturing, supply, construction, commissioning, and training of the Employer’s
personnel;
AND WHEREAS the Loan Agreement of the Preferential Buyer’s Credit between Export-Import
Bank of China and Department of Finance of Republic of the Philippines;
NOW, THEREFORE, the parties agree to sign this Contract for the Implementation of the
Project.
The above-cited portion of the Contract Agreement, however, does not on its own reveal
whether the construction of the Luzon railways was meant to be a proprietary endeavor. In
order to fully understand the intention behind and the purpose of the entire undertaking, the
Contract Agreement must not be read in isolation. Instead, it must be construed in
conjunction with three other documents executed in relation to the Northrail Project, namely:
(a) the Memorandum of Understanding dated 14 September 2002 between Northrail and
CNMEG;30 (b) the letter of Amb. Wang dated 1 October 2003 addressed to Sec. Camacho;31
and (c) the Loan Agreement.32
1. Memorandum of Understanding dated 14 September 2002
The Memorandum of Understanding dated 14 September 2002 shows that CNMEG sought
the construction of the Luzon Railways as a proprietary venture. The relevant parts thereof
read:
WHEREAS, CNMEG has the financial capability, professional competence and technical
expertise to assess the state of the [Main Line North (MLN)] and recommend implementation
plans as well as undertake its rehabilitation and/or modernization;
WHEREAS, CNMEG has expressed interest in the rehabilitation and/or modernization of the
MLN from Metro Manila to San Fernando, La Union passing through the provinces of Bulacan,
Pampanga, Tarlac, Pangasinan and La Union (the ‘Project’);
WHEREAS, the NORTHRAIL CORP. welcomes CNMEG’s proposal to undertake a Feasibility
Study (the "Study") at no cost to NORTHRAIL CORP.;
WHEREAS, the NORTHRAIL CORP. also welcomes CNMEG’s interest in undertaking the Project
with Supplier’s Credit and intends to employ CNMEG as the Contractor for the Project subject
to compliance with Philippine and Chinese laws, rules and regulations for the selection of a
contractor;
WHEREAS, the NORTHRAIL CORP. considers CNMEG’s proposal advantageous to the
Government of the Republic of the Philippines and has therefore agreed to assist CNMEG in
the conduct of the aforesaid Study;
xxx xxx xxx
II. APPROVAL PROCESS
2.1 As soon as possible after completion and presentation of the Study in accordance with
Paragraphs 1.3 and 1.4 above and in compliance with necessary governmental laws, rules,
regulations and procedures required from both parties, the parties shall commence the
preparation and negotiation of the terms and conditions of the Contract (the "Contract") to
be entered into between them on the implementation of the Project. The parties shall use
their best endeavors to formulate and finalize a Contract with a view to signing the Contract
within one hundred twenty (120) days from CNMEG’s presentation of the Study.33 (Emphasis
supplied)
Clearly, it was CNMEG that initiated the undertaking, and not the Chinese government. The
Feasibility Study was conducted not because of any diplomatic gratuity from or exercise of
sovereign functions by the Chinese government, but was plainly a business strategy employed
by CNMEG with a view to securing this commercial enterprise.
2. Letter dated 1 October 2003
That CNMEG, and not the Chinese government, initiated the Northrail Project was confirmed
by Amb. Wang in his letter dated 1 October 2003, thus:
1. CNMEG has the proven competence and capability to undertake the Project as evidenced
by the ranking of 42 given by the ENR among 225 global construction companies.
2. CNMEG already signed an MOU with the North Luzon Railways Corporation last September
14, 2000 during the visit of Chairman Li Peng. Such being the case, they have already
established an initial working relationship with your North Luzon Railways Corporation. This
33
would categorize CNMEG as the state corporation within the People’s Republic of China
which initiated our Government’s involvement in the Project.
3. Among the various state corporations of the People’s Republic of China, only CNMEG has
the advantage of being fully familiar with the current requirements of the Northrail Project
having already accomplished a Feasibility Study which was used as inputs by the North Luzon
Railways Corporation in the approvals (sic) process required by the Republic of the
Philippines.34 (Emphasis supplied.)
Thus, the desire of CNMEG to secure the Northrail Project was in the ordinary or regular
course of its business as a global construction company. The implementation of the Northrail
Project was intended to generate profit for CNMEG, with the Contract Agreement placing a
contract price of USD 421,050,000 for the venture.35 The use of the term "state corporation"
to refer to CNMEG was only descriptive of its nature as a government-owned and/or -
controlled corporation, and its assignment as the Primary Contractor did not imply that it was
acting on behalf of China in the performance of the latter’s sovereign functions. To imply
otherwise would result in an absurd situation, in which all Chinese corporations owned by the
state would be automatically considered as performing governmental activities, even if they
are clearly engaged in commercial or proprietary pursuits.
3. The Loan Agreement
CNMEG claims immunity on the ground that the Aug 30 MOU on the financing of the
Northrail Project was signed by the Philippine and Chinese governments, and its assignment
as the Primary Contractor meant that it was bound to perform a governmental function on
behalf of China. However, the Loan Agreement, which originated from the same Aug 30 MOU,
belies this reasoning, viz:
Article 11. xxx (j) Commercial Activity The execution and delivery of this Agreement by the
Borrower constitute, and the Borrower’s performance of and compliance with its obligations
under this Agreement will constitute, private and commercial acts done and performed for
commercial purposes under the laws of the Republic of the Philippines and neither the
Borrower nor any of its assets is entitled to any immunity or privilege (sovereign or
otherwise) from suit, execution or any other legal process with respect to its obligations
under this Agreement, as the case may be, in any jurisdiction. Notwithstanding the
foregoing, the Borrower does not waive any immunity with respect of its assets which are (i)
used by a diplomatic or consular mission of the Borrower and (ii) assets of a military character
and under control of a military authority or defense agency and (iii) located in the Philippines
and dedicated to public or governmental use (as distinguished from patrimonial assets or
assets dedicated to commercial use). (Emphasis supplied.)
(k) Proceedings to Enforce Agreement In any proceeding in the Republic of the Philippines to
enforce this Agreement, the choice of the laws of the People’s Republic of China as the
governing law hereof will be recognized and such law will be applied. The waiver of immunity
by the Borrower, the irrevocable submissions of the Borrower to the non-exclusive
jurisdiction of the courts of the People’s Republic of China and the appointment of the
Borrower’s Chinese Process Agent is legal, valid, binding and enforceable and any judgment
obtained in the People’s Republic of China will be if introduced, evidence for enforcement in
any proceedings against the Borrower and its assets in the Republic of the Philippines
provided that (a) the court rendering judgment had jurisdiction over the subject matter of the
action in accordance with its jurisdictional rules, (b) the Republic had notice of the
proceedings, (c) the judgment of the court was not obtained through collusion or fraud, and
(d) such judgment was not based on a clear mistake of fact or law.36
Further, the Loan Agreement likewise contains this express waiver of immunity:
15.5 Waiver of Immunity The Borrower irrevocably and unconditionally waives, any immunity
to which it or its property may at any time be or become entitled, whether characterized as
sovereign immunity or otherwise, from any suit, judgment, service of process upon it or any
agent, execution on judgment, set-off, attachment prior to judgment, attachment in aid of
execution to which it or its assets may be entitled in any legal action or proceedings with
respect to this Agreement or any of the transactions contemplated hereby or hereunder.
Notwithstanding the foregoing, the Borrower does not waive any immunity in respect of its
assets which are (i) used by a diplomatic or consular mission of the Borrower, (ii) assets of a
military character and under control of a military authority or defense agency and (iii) located
in the Philippines and dedicated to a public or governmental use (as distinguished from
patrimonial assets or assets dedicated to commercial use).37
Thus, despite petitioner’s claim that the EXIM Bank extended financial assistance to Northrail
because the bank was mandated by the Chinese government, and not because of any
motivation to do business in the Philippines,38 it is clear from the foregoing provisions that
the Northrail Project was a purely commercial transaction.
Admittedly, the Loan Agreement was entered into between EXIM Bank and the Philippine
government, while the Contract Agreement was between Northrail and CNMEG. Although the
Contract Agreement is silent on the classification of the legal nature of the transaction, the
foregoing provisions of the Loan Agreement, which is an inextricable part of the entire
undertaking, nonetheless reveal the intention of the parties to the Northrail Project to classify
the whole venture as commercial or proprietary in character.
Thus, piecing together the content and tenor of the Contract Agreement, the Memorandum
of Understanding dated 14 September 2002, Amb. Wang’s letter dated 1 October 2003, and
the Loan Agreement would reveal the desire of CNMEG to construct the Luzon Railways in
pursuit of a purely commercial activity performed in the ordinary course of its business.
B. CNMEG failed to adduce evidence that it is immune from suit under Chinese law.
Even assuming arguendo that CNMEG performs governmental functions, such claim does not
automatically vest it with immunity. This view finds support in Malong v. Philippine National
Railways, in which this Court held that "(i)mmunity from suit is determined by the character
of the objects for which the entity was organized."39
In this regard, this Court’s ruling in Deutsche Gesellschaft Für Technische Zusammenarbeit
(GTZ) v. CA40 must be examined. In Deutsche Gesellschaft, Germany and the Philippines
entered into a Technical Cooperation Agreement, pursuant to which both signed an
arrangement promoting the Social Health Insurance–Networking and Empowerment (SHINE)
project. The two governments named their respective implementing organizations: the
Department of Health (DOH) and the Philippine Health Insurance Corporation (PHIC) for the
Philippines, and GTZ for the implementation of Germany’s contributions. In ruling that GTZ
was not immune from suit, this Court held:
The arguments raised by GTZ and the [Office of the Solicitor General (OSG)] are rooted in
several indisputable facts. The SHINE project was implemented pursuant to the bilateral
agreements between the Philippine and German governments. GTZ was tasked, under the
1991 agreement, with the implementation of the contributions of the German government.
The activities performed by GTZ pertaining to the SHINE project are governmental in nature,
related as they are to the promotion of health insurance in the Philippines. The fact that GTZ
entered into employment contracts with the private respondents did not disqualify it from
34
invoking immunity from suit, as held in cases such as Holy See v. Rosario, Jr., which set forth
what remains valid doctrine:
Certainly, the mere entering into a contract by a foreign state with a private party cannot be
the ultimate test. Such an act can only be the start of the inquiry. The logical question is
whether the foreign state is engaged in the activity in the regular course of business. If the
foreign state is not engaged regularly in a business or trade, the particular act or transaction
must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident
thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit.
Beyond dispute is the tenability of the comment points (sic) raised by GTZ and the OSG that
GTZ was not performing proprietary functions notwithstanding its entry into the particular
employment contracts. Yet there is an equally fundamental premise which GTZ and the OSG
fail to address, namely: Is GTZ, by conception, able to enjoy the Federal Republic’s immunity
from suit?
The principle of state immunity from suit, whether a local state or a foreign state, is reflected
in Section 9, Article XVI of the Constitution, which states that "the State may not be sued
without its consent." Who or what consists of "the State"? For one, the doctrine is available
to foreign States insofar as they are sought to be sued in the courts of the local State,
necessary as it is to avoid "unduly vexing the peace of nations."
If the instant suit had been brought directly against the Federal Republic of Germany, there
would be no doubt that it is a suit brought against a State, and the only necessary inquiry is
whether said State had consented to be sued. However, the present suit was brought against
GTZ. It is necessary for us to understand what precisely are the parameters of the legal
personality of GTZ.
Counsel for GTZ characterizes GTZ as "the implementing agency of the Government of the
Federal Republic of Germany," a depiction similarly adopted by the OSG. Assuming that the
characterization is correct, it does not automatically invest GTZ with the ability to invoke
State immunity from suit. The distinction lies in whether the agency is incorporated or
unincorporated.
xxx xxx xxx
State immunity from suit may be waived by general or special law. The special law can take
the form of the original charter of the incorporated government agency. Jurisprudence is
replete with examples of incorporated government agencies which were ruled not entitled to
invoke immunity from suit, owing to provisions in their charters manifesting their consent to
be sued.
xxx xxx xxx
It is useful to note that on the part of the Philippine government, it had designated two
entities, the Department of Health and the Philippine Health Insurance Corporation (PHIC), as
the implementing agencies in behalf of the Philippines. The PHIC was established under
Republic Act No. 7875, Section 16 (g) of which grants the corporation the power "to sue and
be sued in court." Applying the previously cited jurisprudence, PHIC would not enjoy
immunity from suit even in the performance of its functions connected with SHINE, however,
(sic) governmental in nature as (sic) they may be.
Is GTZ an incorporated agency of the German government? There is some mystery
surrounding that question. Neither GTZ nor the OSG go beyond the claim that petitioner is
"the implementing agency of the Government of the Federal Republic of Germany." On the
other hand, private respondents asserted before the Labor Arbiter that GTZ was "a private
corporation engaged in the implementation of development projects." The Labor Arbiter
accepted that claim in his Order denying the Motion to Dismiss, though he was silent on that
point in his Decision. Nevertheless, private respondents argue in their Comment that the
finding that GTZ was a private corporation "was never controverted, and is therefore deemed
admitted." In its Reply, GTZ controverts that finding, saying that it is a matter of public
knowledge that the status of petitioner GTZ is that of the "implementing agency," and not
that of a private corporation.
In truth, private respondents were unable to adduce any evidence to substantiate their claim
that GTZ was a "private corporation," and the Labor Arbiter acted rashly in accepting such
claim without explanation. But neither has GTZ supplied any evidence defining its legal
nature beyond that of the bare descriptive "implementing agency." There is no doubt that
the 1991 Agreement designated GTZ as the "implementing agency" in behalf of the German
government. Yet the catch is that such term has no precise definition that is responsive to
our concerns. Inherently, an agent acts in behalf of a principal, and the GTZ can be said to
act in behalf of the German state. But that is as far as "implementing agency" could take us.
The term by itself does not supply whether GTZ is incorporated or unincorporated, whether
it is owned by the German state or by private interests, whether it has juridical personality
independent of the German government or none at all.
xxx xxx xxx
Again, we are uncertain of the corresponding legal implications under German law
surrounding "a private company owned by the Federal Republic of Germany." Yet taking
the description on face value, the apparent equivalent under Philippine law is that of a
corporation organized under the Corporation Code but owned by the Philippine
government, or a government-owned or controlled corporation without original charter.
And it bears notice that Section 36 of the Corporate Code states that "[e]very corporation
incorporated under this Code has the power and capacity x x x to sue and be sued in its
corporate name."
It is entirely possible that under German law, an entity such as GTZ or particularly GTZ itself
has not been vested or has been specifically deprived the power and capacity to sue and/or
be sued. Yet in the proceedings below and before this Court, GTZ has failed to establish that
under German law, it has not consented to be sued despite it being owned by the Federal
Republic of Germany. We adhere to the rule that in the absence of evidence to the
contrary, foreign laws on a particular subject are presumed to be the same as those of the
Philippines, and following the most intelligent assumption we can gather, GTZ is akin to a
governmental owned or controlled corporation without original charter which, by virtue of
the Corporation Code, has expressly consented to be sued. At the very least, like the Labor
Arbiter and the Court of Appeals, this Court has no basis in fact to conclude or presume that
GTZ enjoys immunity from suit.41 (Emphasis supplied.)
Applying the foregoing ruling to the case at bar, it is readily apparent that CNMEG cannot
claim immunity from suit, even if it contends that it performs governmental functions. Its
designation as the Primary Contractor does not automatically grant it immunity, just as the
term "implementing agency" has no precise definition for purposes of ascertaining whether
GTZ was immune from suit. Although CNMEG claims to be a government-owned corporation,
it failed to adduce evidence that it has not consented to be sued under Chinese law. Thus,
following this Court’s ruling in Deutsche Gesellschaft, in the absence of evidence to the
contrary, CNMEG is to be presumed to be a government-owned and -controlled corporation
without an original charter. As a result, it has the capacity to sue and be sued under Section
36 of the Corporation Code.
35
C. CNMEG failed to present a certification from the Department of Foreign Affairs.
In Holy See,42 this Court reiterated the oft-cited doctrine that the determination by the
Executive that an entity is entitled to sovereign or diplomatic immunity is a political question
conclusive upon the courts, to wit:
In Public International Law, when a state or international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is
sued to convey to the court that said defendant is entitled to immunity.
xxx xxx xxx
In the Philippines, the practice is for the foreign government or the international organization
to first secure an executive endorsement of its claim of sovereign or diplomatic immunity. But
how the Philippine Foreign Office conveys its endorsement to the courts varies. In
International Catholic Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of
Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment, informing
the latter that the respondent-employer could not be sued because it enjoyed diplomatic
immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of
Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974),
the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to
make, in behalf of the Commander of the United States Naval Base at Olongapo City,
Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the
"suggestion" in a Manifestation and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs
moved with this Court to be allowed to intervene on the side of petitioner. The Court allowed
the said Department to file its memorandum in support of petitioner’s claim of sovereign
immunity.
In some cases, the defense of sovereign immunity was submitted directly to the local courts
by the respondents through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945];
Miquiabas v. Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America v.
Guinto, 182 SCRA 644 [1990] and companion cases). In cases where the foreign states bypass
the Foreign Office, the courts can inquire into the facts and make their own determination as
to the nature of the acts and transactions involved.43 (Emphasis supplied.)
The question now is whether any agency of the Executive Branch can make a determination
of immunity from suit, which may be considered as conclusive upon the courts. This Court, in
Department of Foreign Affairs (DFA) v. National Labor Relations Commission (NLRC),44
emphasized the DFA’s competence and authority to provide such necessary determination, to
wit:
The DFA’s function includes, among its other mandates, the determination of persons and
institutions covered by diplomatic immunities, a determination which, when challenge, (sic)
entitles it to seek relief from the court so as not to seriously impair the conduct of the
country's foreign relations. The DFA must be allowed to plead its case whenever necessary or
advisable to enable it to help keep the credibility of the Philippine government before the
international community. When international agreements are concluded, the parties thereto
are deemed to have likewise accepted the responsibility of seeing to it that their agreements
are duly regarded. In our country, this task falls principally of (sic) the DFA as being the
highest executive department with the competence and authority to so act in this aspect of
the international arena.45 (Emphasis supplied.)
Further, the fact that this authority is exclusive to the DFA was also emphasized in this Court’s
ruling in Deutsche Gesellschaft:
It is to be recalled that the Labor Arbiter, in both of his rulings, noted that it was imperative
for petitioners to secure from the Department of Foreign Affairs "a certification of
respondents’ diplomatic status and entitlement to diplomatic privileges including immunity
from suits." The requirement might not necessarily be imperative. However, had GTZ
obtained such certification from the DFA, it would have provided factual basis for its claim of
immunity that would, at the very least, establish a disputable evidentiary presumption that
the foreign party is indeed immune which the opposing party will have to overcome with its
own factual evidence. We do not see why GTZ could not have secured such certification or
endorsement from the DFA for purposes of this case. Certainly, it would have been highly
prudential for GTZ to obtain the same after the Labor Arbiter had denied the motion to
dismiss. Still, even at this juncture, we do not see any evidence that the DFA, the office of the
executive branch in charge of our diplomatic relations, has indeed endorsed GTZ’s claim of
immunity. It may be possible that GTZ tried, but failed to secure such certification, due to the
same concerns that we have discussed herein.
Would the fact that the Solicitor General has endorsed GTZ’s claim of State’s immunity from
suit before this Court sufficiently substitute for the DFA certification? Note that the rule in
public international law quoted in Holy See referred to endorsement by the Foreign Office of
the State where the suit is filed, such foreign office in the Philippines being the Department of
Foreign Affairs. Nowhere in the Comment of the OSG is it manifested that the DFA has
endorsed GTZ’s claim, or that the OSG had solicited the DFA’s views on the issue. The
arguments raised by the OSG are virtually the same as the arguments raised by GTZ without
any indication of any special and distinct perspective maintained by the Philippine
government on the issue. The Comment filed by the OSG does not inspire the same degree of
confidence as a certification from the DFA would have elicited.46 (Emphasis supplied.)
In the case at bar, CNMEG offers the Certification executed by the Economic and Commercial
Office of the Embassy of the People’s Republic of China, stating that the Northrail Project is in
pursuit of a sovereign activity.47 Surely, this is not the kind of certification that can establish
CNMEG’s entitlement to immunity from suit, as Holy See unequivocally refers to the
determination of the "Foreign Office of the state where it is sued."
Further, CNMEG also claims that its immunity from suit has the executive endorsement of
both the OSG and the Office of the Government Corporate Counsel (OGCC), which must be
respected by the courts. However, as expressly enunciated in Deutsche Gesellschaft, this
determination by the OSG, or by the OGCC for that matter, does not inspire the same degree
of confidence as a DFA certification. Even with a DFA certification, however, it must be
remembered that this Court is not precluded from making an inquiry into the intrinsic
correctness of such certification.
D. An agreement to submit any dispute to arbitration may be construed as an implicit waiver
of immunity from suit.
In the United States, the Foreign Sovereign Immunities Act of 1976 provides for a waiver by
implication of state immunity. In the said law, the agreement to submit disputes to
arbitration in a foreign country is construed as an implicit waiver of immunity from suit.
Although there is no similar law in the Philippines, there is reason to apply the legal reasoning
behind the waiver in this case.
The Conditions of Contract,48 which is an integral part of the Contract Agreement,49 states:
33. SETTLEMENT OF DISPUTES AND ARBITRATION
33.1. Amicable Settlement
36
Both parties shall attempt to amicably settle all disputes or controversies arising from this label was only descriptive of its nature as a state-owned corporation, and did not preclude it
Contract before the commencement of arbitration. from engaging in purely commercial or proprietary ventures.
33.2. Arbitration B. The Contract Agreement is to be governed by Philippine law.
All disputes or controversies arising from this Contract which cannot be settled between the Article 2 of the Conditions of Contract,54 which under Article 1.1 of the Contract Agreement
Employer and the Contractor shall be submitted to arbitration in accordance with the is an integral part of the latter, states:
UNCITRAL Arbitration Rules at present in force and as may be amended by the rest of this APPLICABLE LAW AND GOVERNING LANGUAGE
Clause. The appointing authority shall be Hong Kong International Arbitration Center. The The contract shall in all respects be read and construed in accordance with the laws of the
place of arbitration shall be in Hong Kong at Hong Kong International Arbitration Center Philippines.
(HKIAC). The contract shall be written in English language. All correspondence and other documents
Under the above provisions, if any dispute arises between Northrail and CNMEG, both parties pertaining to the Contract which are exchanged by the parties shall be written in English
are bound to submit the matter to the HKIAC for arbitration. In case the HKIAC makes an language.
arbitral award in favor of Northrail, its enforcement in the Philippines would be subject to the Since the Contract Agreement explicitly provides that Philippine law shall be applicable, the
Special Rules on Alternative Dispute Resolution (Special Rules). Rule 13 thereof provides for parties have effectively conceded that their rights and obligations thereunder are not
the Recognition and Enforcement of a Foreign Arbitral Award. Under Rules 13.2 and 13.3 of governed by international law.
the Special Rules, the party to arbitration wishing to have an arbitral award recognized and It is therefore clear from the foregoing reasons that the Contract Agreement does not partake
enforced in the Philippines must petition the proper regional trial court (a) where the assets of the nature of an executive agreement. It is merely an ordinary commercial contract that
to be attached or levied upon is located; (b) where the acts to be enjoined are being can be questioned before the local courts.
performed; (c) in the principal place of business in the Philippines of any of the parties; (d) if WHEREFORE, the instant Petition is DENIED. Petitioner China National Machinery &
any of the parties is an individual, where any of those individuals resides; or (e) in the Equipment Corp. (Group) is not entitled to immunity from suit, and the Contract Agreement is
National Capital Judicial Region. not an executive agreement. CNMEG’s prayer for the issuance of a TRO and/or Writ of
From all the foregoing, it is clear that CNMEG has agreed that it will not be afforded immunity Preliminary Injunction is DENIED for being moot and academic. This case is REMANDED to the
from suit. Thus, the courts have the competence and jurisdiction to ascertain the validity of Regional Trial Court of Makati, Branch 145, for further proceedings as regards the validity of
the Contract Agreement. the contracts subject of Civil Case No. 06-203.
Second issue: Whether the Contract Agreement is an executive agreement No pronouncement on costs of suit.
Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna Convention) defines a SO ORDERED.
treaty as follows:
[A]n international agreement 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.
In Bayan Muna v. Romulo, this Court held that an executive agreement is similar to a treaty,
except that the former (a) does not require legislative concurrence; (b) is usually less formal;
and (c) deals with a narrower range of subject matters.50
Despite these differences, to be considered an executive agreement, the following three
requisites provided under the Vienna Convention must nevertheless concur: (a) the
agreement must be between states; (b) it must be written; and (c) it must governed by
international law. The first and the third requisites do not obtain in the case at bar.
A. CNMEG is neither a government nor a government agency.
The Contract Agreement was not concluded between the Philippines and China, but between
Northrail and CNMEG.51 By the terms of the Contract Agreement, Northrail is a government-
owned or -controlled corporation, while CNMEG is a corporation duly organized and created
under the laws of the People’s Republic of China.52 Thus, both Northrail and CNMEG entered
into the Contract Agreement as entities with personalities distinct and separate from the
Philippine and Chinese governments, respectively.
Neither can it be said that CNMEG acted as agent of the Chinese government. As previously
discussed, the fact that Amb. Wang, in his letter dated 1 October 2003,53 described CNMEG
as a "state corporation" and declared its designation as the Primary Contractor in the
Northrail Project did not mean it was to perform sovereign functions on behalf of China. That

37
EN BANC
G.R. No. L-14279 October 31, 1961
THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF CUSTOMS, petitioners,
vs.
EASTERN SEA TRADING, respondent.
Office of the Solicitor General for petitioners.
Valentin Gutierrez for respondent.
CONCEPCION, J.:
Petition for review of a judgment of the Court of Tax Appeals reversing a decision of the
Commissioner of Customs.
Respondent Eastern Sea Trading was the consignee of several shipments of onion and garlic
which arrived at the Port of Manila from August 25 to September 7, 1954. Some shipments
came from Japan and others from Hong Kong. In as much as none of the shipments had the
certificate required by Central Bank Circulars Nos. 44 and 45 for the release thereof, the
goods thus imported were seized and subjected to forfeiture proceedings for alleged
violations of section 1363(f) of the Revised Administrative Code, in relation to the
aforementioned circulars of the Central Bank. In due course, the Collector of Customs of
Manila rendered a decision on September 4, 1956, declaring said goods forfeited to the
Government and — the goods having been, in the meantime, released to the consignees on
surety bonds, filed by the same, as principal, and the Alto Surety & Insurance Co., Inc., as
surety, in compliance with orders of the Court of First Instance of Manila, in Civil Cases Nos.
23942 and 23852 thereof — directing that the amounts of said bonds be paid, by said
principal and surety, jointly and severally, to the Bureau of Customs, within thirty (30) days
from notice.
On appeal taken by the consignee, said decision was affirmed by the Commissioner of
Customs on December 27, 1956. Subsequently, the consignee sought a review of the decision
of said two (2) officers by the Court of Tax Appeals, which reversed the decision of the
Commissioner of Customs and ordered that the aforementioned bonds be cancelled and
withdrawn. Hence, the present petition of the Commissioner of Customs for review of the
decision of the Court of Tax Appeals.
The latter is based upon the following premises, namely: that the Central Bank has no
authority to regulate transactions not involving foreign exchange; that the shipments in
question are in the nature of "no-dollar" imports; that, as such, the aforementioned
shipments do not involve foreign exchange; that, insofar as a Central Bank license and a
certificate authorizing the importation or release of the goods under consideration are
required by Central Bank Circulars Nos. 44 and 45, the latter are null and void; and that the
seizure and forfeiture of the goods imported from Japan cannot be justified under Executive
Order No. 328,1 not only because the same seeks to implement an executive agreement2 —
extending the effectivity of our3 Trades and Financial Agreements4 with Japan — which
(executive agreement), it believed, is of dubious validity, but, also, because there is no
governmental agency authorized to issue the import license required by the aforementioned
executive order.
The authority of the Central Bank to regulate no-dollar imports and the validity of the
aforementioned Circulars Nos. 44, and 45 have already been passed upon and repeatedly
upheld by this Court (Pascual vs. Commissioner of Customs, L-10979 [June 30, 1959]; Acting
Commissioner of Customs vs. Leuterio, L-9142 [October 17, 1959] Commissioner of Customs
vs. Pascual, L-9836 [November 18, 1959]; Commissioner of Customs vs. Serree Investment
Co., L-12007 [May 16, 1960]; Commissioner of Customs vs. Serree Investment Co., L-14274
[November 29, 1960]), for the reason that the broad powers of the Central Bank, under its
charter, to maintain our monetary stability and to preserve the international value of our
currency, under section 2 of Republic Act No. 265, in relation to section 14 of said Act —
authorizing the bank to issue such rules and regulations as it may consider necessary for the
effective discharge of the responsibilities and the exercise of the powers assigned to the
Monetary Board and to the Central Bank — connote the authority to regulate no-dollar
imports, owing to the influence and effect that the same may and do have upon the stability
of our peso and its international value.
The Court of Tax Appeals entertained doubts on the legality of the executive agreement
sought to be implemented by Executive Order No. 328, owing to the fact that our Senate had
not concurred in the making of said executive agreement. The concurrence of said House of
Congress is required by our fundamental law in the making of "treaties" (Constitution of the
Philippines, Article VII, Section 10[7]), which are, however, distinct and different from
"executive agreements," which may be validly entered into without such concurrence.
Treaties are formal documents which require ratification with the approval of two thirds of
the Senate. Executive agreements become binding through executive action without the need
of a vote by the Senate or by Congress.
xxx xxx xxx
. . . 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.
xxx xxx xxx
Agreements with respect to the registration of trade-marks have been concluded by the
Executive with various countries under the Act of Congress of March 3, 1881 (21 Stat. 502).
Postal conventions regulating the reciprocal treatment of mail matters, money orders, parcel
post, etc., have been concluded by the Postmaster General with various countries under
authorization by Congress beginning with the Act of February 20, 1792 (1 Stat. 232, 239). Ten
executive agreements were concluded by the President pursuant to the McKinley Tariff Act of
1890 (26 Stat. 567, 612), and nine such agreements were entered into under the Dingley
Tariff Act 1897 (30 Stat. 151, 203, 214). A very much larger number of agreements, along the
lines of the one with Rumania previously referred to, providing for most-favored-nation
treatment in customs and related matters have been entered into since the passage of the
Tariff Act of 1922, not by direction of the Act but in harmony with it.
xxx xxx xxx
International agreements involving political issues or changes of national policy and those
involving international arrangements of a permanent character usually take the form of
treaties. But international agreements embodying adjustments of detail carrying out well-
established national policies and traditions and those involving arrangements of a more or
less temporary nature usually take the form of executive agreements.
xxx xxx xxx
Furthermore, the United States Supreme Court has expressly recognized the validity and
constitutionality of executive agreements entered into without Senate approval. (39
Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis-Wright Export Corporation, 299
38
U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. WHEREFORE, the decision appealed from is hereby reversed and another one shall be
203, 86 L. ed. 796; Ozanic vs. U.S., 188 F. 2d. 288; Yale Law Journal, Vol. 15, pp. 1905-1906; entered affirming that of the Commissioner of Customs, with cost against respondents
California Law Review, Vol. 25, pp. 670-675; Hyde on International Law [Revised Edition], Vol. defendant-appellee, Eastern Sea Trading. It is so ordered.
2, pp. 1405, 1416-1418; Willoughby on the U.S. Constitutional Law, Vol. I [2d ed.], pp. 537- Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Paredes, Dizon and De Leon, JJ.,
540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law concur.
Digest, Vol. V, pp. 390-407). (Emphasis supplied.) Barrera, J., took no part.
In this connection, Francis B. Sayre, former U.S. High Commissioner to the Philippines, said in
his work on "The Constitutionality of Trade Agreement Acts":
Agreements concluded by the President which fall short of treaties are commonly referred to
as executive agreements and are no less common in our scheme of government than are the
more formal instruments — treaties and conventions. They sometimes take the form of
exchanges of notes and at other times that of more formal documents denominated
"agreements" time or "protocols". The point where ordinary correspondence between this
and other governments ends and agreements — whether denominated executive
agreements or exchanges of notes or otherwise — begin, may sometimes be difficult of ready
ascertainment. It would be useless to undertake to discuss here the large variety of executive
agreements as such, concluded from time to time. Hundreds of executive agreements, other
than those entered into under the trade-agreements act, have been negotiated with foreign
governments. . . . It would seem to be sufficient, in order to show that the trade agreements
under the act of 1934 are not anomalous in character, that they are not treaties, and that
they have abundant precedent in our history, to refer to certain classes of agreements
heretofore entered into by the Executive without the approval of the Senate. They cover such
subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the
admission of civil aircraft, customs matters, and commercial relations generally, international
claims, postal matters, the registration of trademarks and copyrights, etcetera. Some of them
were concluded not by specific congressional authorization but in conformity with policies
declared in acts of Congress with respect to the general subject matter, such as tariff acts;
while still others, particularly those with respect of the settlement of claims against foreign
governments, were concluded independently of any legislation." (39 Columbia Law Review,
pp. 651, 755.)
The validity of the executive agreement in question is thus patent. In fact, the so-called Parity
Rights provided for in the Ordinance Appended to our Constitution were, prior thereto, the
subject of an executive agreement, made without the concurrence of two-thirds (2/3) of the
Senate of the United States.
Lastly, the lower court held that it would be unreasonable to require from respondent-
appellee an import license when the Import Control Commission was no longer in existence
and, hence, there was, said court believed, no agency authorized to issue the aforementioned
license. This conclusion is untenable, for the authority to issue the aforementioned licenses
was not vested exclusively upon the Import Control Commission or Administration. Executive
Order No. 328 provided for export or import licenses "from the Central Bank of the Philippines
or the Import Control Administration" or Commission. Indeed, the latter was created only to
perform the task of implementing certain objectives of the Monetary Board and the Central
Bank, which otherwise had to be undertaken by these two (2) agencies. Upon the abolition of
said Commission, the duty to provide means and ways for the accomplishment of said
objectives had merely to be discharged directly by the Monetary Board and the Central Bank,
even if the aforementioned Executive Order had been silent thereon.

39
EN BANC
G.R. No. 138570 October 10, 2000
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS
MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER BOLOCAN (United Church of
Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS,
KILUSANG MAYO UNO, GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW CENTER,
petitioners,
vs.
EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO
SIAZON, DEFENSE SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE,
SENATE PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN DRILON, SENATOR BLAS OPLE,
SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO TATAD, respondents.
x-----------------------x
G.R. No. 138572 October 10, 2000
PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA,
AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners,
vs.
HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as
Secretary of National Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign
Affairs, respondents.
x-----------------------x
G.R. No. 138587 October 10, 2000
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEÑA III, petitioners,
vs.
JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B.
MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G.
BIAZON, respondents.
x-----------------------x
G.R. No. 138680 October 10, 2000
INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila
Grapilon, petitioners,
vs.
JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the Philippines, and
HON. DOMINGO SIAZON, in his capacity as Secretary of Foreign Affairs, respondents.
x-----------------------x
G.R. No. 138698 October 10, 2000
JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA QUEZON-AVENCEÑA, ROLANDO
SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P.
ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI),
petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF
NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F. OPLE,
SENATOR RODOLFO G. BIAZON, AND ALL OTHER PERSONS ACTING THEIR CONTROL,
SUPERVISION, DIRECTION, AND INSTRUCTION IN RELATION TO THE VISITING FORCES
AGREEMENT (VFA), respondents.
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant consolidated petitions for certiorari and
prohibition are issues relating to, and borne by, an agreement forged in the turn of the last
century between the Republic of the Philippines and the United States of America -the
Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a Military Bases
Agreement which formalized, among others, the use of installations in the Philippine territory
by United States military personnel. To further strengthen their defense and security
relationship, the Philippines and the United States entered into a Mutual Defense Treaty on
August 30, 1951. Under the treaty, the parties agreed to respond to any external armed
attack on their territory, armed forces, public vessels, and aircraft.1
In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the
Philippines and the United States negotiated for a possible extension of the military bases
agreement. On September 16, 1991, the Philippine Senate rejected the proposed RP-US
Treaty of Friendship, Cooperation and Security which, in effect, would have extended the
presence of US military bases in the Philippines.2 With the expiration of the RP-US Military
Bases Agreement, the periodic military exercises conducted between the two countries were
held in abeyance. Notwithstanding, the defense and security relationship between the
Philippines and the United States of America continued pursuant to the Mutual Defense
Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary
for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs
Undersecretary Rodolfo Severino Jr., to exchange notes on "the complementing strategic
interests of the United States and the Philippines in the Asia-Pacific region." Both sides
discussed, among other things, the possible elements of the Visiting Forces Agreement (VFA
for brevity). Negotiations by both panels on the VFA led to a consolidated draft text, which in
turn resulted to a final series of conferences and negotiations3 that culminated in Manila on
January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos approved the VFA, which
was respectively signed by public respondent Secretary Siazon and Unites States Ambassador
Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign
Affairs, ratified the VFA.4
On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo
Zamora, officially transmitted to the Senate of the Philippines,5 the Instrument of
Ratification, the letter of the President6 and the VFA, for concurrence pursuant to Section 21,
Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to its Committee on
Foreign Relations, chaired by Senator Blas F. Ople, and its Committee on National Defense
and Security, chaired by Senator Rodolfo G. Biazon, for their joint consideration and
recommendation. Thereafter, joint public hearings were held by the two Committees.7
On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 4438
recommending the concurrence of the Senate to the VFA and the creation of a Legislative
Oversight Committee to oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-
thirds (2/3) vote9 of its members. Senate Resolution No. 443 was then re-numbered as
Senate Resolution No. 18.10
40
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between
respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for
regulating the circumstances and conditions under which US Armed Forces and defense
personnel may be present in the Philippines, and is quoted in its full text, hereunder:
"Article I
Definitions
"As used in this Agreement, ‘United States personnel’ means United States military and
civilian personnel temporarily in the Philippines in connection with activities approved by the
Philippine Government.
"Within this definition:
"1. The term ‘military personnel’ refers to military members of the United States Army, Navy,
Marine Corps, Air Force, and Coast Guard.
"2. The term ‘civilian personnel’ refers to individuals who are neither nationals of, nor
ordinary residents in the Philippines and who are employed by the United States armed
forces or who are accompanying the United States armed forces, such as employees of the
American Red Cross and the United Services Organization.
"Article II
Respect for Law
"It is the duty of the United States personnel to respect the laws of the Republic of the
Philippines and to abstain from any activity inconsistent with the spirit of this agreement,
and, in particular, from any political activity in the Philippines. The Government of the United
States shall take all measures within its authority to ensure that this is done.
"Article III
Entry and Departure
"1. The Government of the Philippines shall facilitate the admission of United States
personnel and their departure from the Philippines in connection with activities covered by
this agreement.
"2. United States military personnel shall be exempt from passport and visa regulations upon
entering and departing the Philippines.
"3. The following documents only, which shall be presented on demand, shall be required in
respect of United States military personnel who enter the Philippines:
"(a) personal identity card issued by the appropriate United States authority showing full
name, date of birth, rank or grade and service number (if any), branch of service and
photograph;
"(b) individual or collective document issued by the appropriate United States authority,
authorizing the travel or visit and identifying the individual or group as United States military
personnel; and
"(c) the commanding officer of a military aircraft or vessel shall present a declaration of
health, and when required by the cognizant representative of the Government of the
Philippines, shall conduct a quarantine inspection and will certify that the aircraft or vessel is
free from quarantinable diseases. Any quarantine inspection of United States aircraft or
United States vessels or cargoes thereon shall be conducted by the United States
commanding officer in accordance with the international health regulations as promulgated
by the World Health Organization, and mutually agreed procedures.
"4. United States civilian personnel shall be exempt from visa requirements but shall present,
upon demand, valid passports upon entry and departure of the Philippines.
"5. If the Government of the Philippines has requested the removal of any United States
personnel from its territory, the United States authorities shall be responsible for receiving
the person concerned within its own territory or otherwise disposing of said person outside of
the Philippines.
"Article IV
Driving and Vehicle Registration
"1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license
issued by the appropriate United States authority to United States personnel for the
operation of military or official vehicles.
"2. Vehicles owned by the Government of the United States need not be registered, but shall
have appropriate markings.
"Article V
Criminal Jurisdiction
"1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States personnel with respect to
offenses committed within the Philippines and punishable under the law of the Philippines.
(b) United States military authorities shall have the right to exercise within the Philippines all
criminal and disciplinary jurisdiction conferred on them by the military law of the United
States over United States personnel in the Philippines.
"2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with
respect to offenses, including offenses relating to the security of the Philippines, punishable
under the laws of the Philippines, but not under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over United States personnel with
respect to offenses, including offenses relating to the security of the United States,
punishable under the laws of the United States, but not under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating to
security means:
(1) treason;
(2) sabotage, espionage or violation of any law relating to national defense.
"3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall
apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses
committed by United States personnel, except in cases provided for in paragraphs 1(b), 2 (b),
and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise jurisdiction over
United States personnel subject to the military law of the United States in relation to.
(1) offenses solely against the property or security of the United States or offenses solely
against the property or person of United States personnel; and
(2) offenses arising out of any act or omission done in performance of official duty.
(c) The authorities of either government may request the authorities of the other government
to waive their primary right to exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the United States military authorities to maintain good
order and discipline among their forces, Philippine authorities will, upon request by the
United States, waive their primary right to exercise jurisdiction except in cases of particular
importance to the Philippines. If the Government of the Philippines determines that the case
is of particular importance, it shall communicate such determination to the United States
41
authorities within twenty (20) days after the Philippine authorities receive the United States
request.
(e) When the United States military commander determines that an offense charged by
authorities of the Philippines against United states personnel arises out of an act or omission
done in the performance of official duty, the commander will issue a certificate setting forth
such determination. This certificate will be transmitted to the appropriate authorities of the
Philippines and will constitute sufficient proof of performance of official duty for the purposes
of paragraph 3(b)(2) of this Article. In those cases where the Government of the Philippines
believes the circumstances of the case require a review of the duty certificate, United States
military authorities and Philippine authorities shall consult immediately. Philippine authorities
at the highest levels may also present any information bearing on its validity. United States
military authorities shall take full account of the Philippine position. Where appropriate,
United States military authorities will take disciplinary or other action against offenders in
official duty cases, and notify the Government of the Philippines of the actions taken.
(f) If the government having the primary right does not exercise jurisdiction, it shall notify the
authorities of the other government as soon as possible.
(g) The authorities of the Philippines and the United States shall notify each other of the
disposition of all cases in which both the authorities of the Philippines and the United States
have the right to exercise jurisdiction.
"4. Within the scope of their legal competence, the authorities of the Philippines and United
States shall assist each other in the arrest of United States personnel in the Philippines and in
handling them over to authorities who are to exercise jurisdiction in accordance with the
provisions of this article.
"5. United States military authorities shall promptly notify Philippine authorities of the arrest
or detention of United States personnel who are subject of Philippine primary or exclusive
jurisdiction. Philippine authorities shall promptly notify United States military authorities of
the arrest or detention of any United States personnel.
"6. The custody of any United States personnel over whom the Philippines is to exercise
jurisdiction shall immediately reside with United States military authorities, if they so request,
from the commission of the offense until completion of all judicial proceedings. United States
military authorities shall, upon formal notification by the Philippine authorities and without
delay, make such personnel available to those authorities in time for any investigative or
judicial proceedings relating to the offense with which the person has been charged in
extraordinary cases, the Philippine Government shall present its position to the United States
Government regarding custody, which the United States Government shall take into full
account. In the event Philippine judicial proceedings are not completed within one year, the
United States shall be relieved of any obligations under this paragraph. The one-year period
will not include the time necessary to appeal. Also, the one-year period will not include any
time during which scheduled trial procedures are delayed because United States authorities,
after timely notification by Philippine authorities to arrange for the presence of the accused,
fail to do so.
"7. Within the scope of their legal authority, United States and Philippine authorities shall
assist each other in the carrying out of all necessary investigation into offenses and shall
cooperate in providing for the attendance of witnesses and in the collection and production
of evidence, including seizure and, in proper cases, the delivery of objects connected with an
offense.
"8. When United States personnel have been tried in accordance with the provisions of this
Article and have been acquitted or have been convicted and are serving, or have served their
sentence, or have had their sentence remitted or suspended, or have been pardoned, they
may not be tried again for the same offense in the Philippines. Nothing in this paragraph,
however, shall prevent United States military authorities from trying United States personnel
for any violation of rules of discipline arising from the act or omission which constituted an
offense for which they were tried by Philippine authorities.
"9. When United States personnel are detained, taken into custody, or prosecuted by
Philippine authorities, they shall be accorded all procedural safeguards established by the law
of the Philippines. At the minimum, United States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges made against them and
to have reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and to cross examine such witnesses;
(d) To present evidence in their defense and to have compulsory process for obtaining
witnesses;
(e) To have free and assisted legal representation of their own choice on the same basis as
nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United States authorities,
and to have such authorities present at all judicial proceedings. These proceedings shall be
public unless the court, in accordance with Philippine laws, excludes persons who have no
role in the proceedings.
"10. The confinement or detention by Philippine authorities of United States personnel shall
be carried out in facilities agreed on by appropriate Philippine and United States authorities.
United States Personnel serving sentences in the Philippines shall have the right to visits and
material assistance.
"11. United States personnel shall be subject to trial only in Philippine courts of ordinary
jurisdiction, and shall not be subject to the jurisdiction of Philippine military or religious
courts.
"Article VI
Claims
"1. Except for contractual arrangements, including United States foreign military sales letters
of offer and acceptance and leases of military equipment, both governments waive any and
all claims against each other for damage, loss or destruction to property of each other’s
armed forces or for death or injury to their military and civilian personnel arising from
activities to which this agreement applies.
"2. For claims against the United States, other than contractual claims and those to which
paragraph 1 applies, the United States Government, in accordance with United States law
regarding foreign claims, will pay just and reasonable compensation in settlement of
meritorious claims for damage, loss, personal injury or death, caused by acts or omissions of
United States personnel, or otherwise incident to the non-combat activities of the United
States forces.
"Article VII
Importation and Exportation
"1. United States Government equipment, materials, supplies, and other property imported
into or acquired in the Philippines by or on behalf of the United States armed forces in
42
connection with activities to which this agreement applies, shall be free of all Philippine
duties, taxes and other similar charges. Title to such property shall remain with the United
States, which may remove such property from the Philippines at any time, free from export
duties, taxes, and other similar charges. The exemptions provided in this paragraph shall also
extend to any duty, tax, or other similar charges which would otherwise be assessed upon
such property after importation into, or acquisition within, the Philippines. Such property may
be removed from the Philippines, or disposed of therein, provided that disposition of such
property in the Philippines to persons or entities not entitled to exemption from applicable
taxes and duties shall be subject to payment of such taxes, and duties and prior approval of
the Philippine Government.
"2. Reasonable quantities of personal baggage, personal effects, and other property for the
personal use of United States personnel may be imported into and used in the Philippines
free of all duties, taxes and other similar charges during the period of their temporary stay in
the Philippines. Transfers to persons or entities in the Philippines not entitled to import
privileges may only be made upon prior approval of the appropriate Philippine authorities
including payment by the recipient of applicable duties and taxes imposed in accordance with
the laws of the Philippines. The exportation of such property and of property acquired in the
Philippines by United States personnel shall be free of all Philippine duties, taxes, and other
similar charges.
"Article VIII
Movement of Vessels and Aircraft
"1. Aircraft operated by or for the United States armed forces may enter the Philippines upon
approval of the Government of the Philippines in accordance with procedures stipulated in
implementing arrangements.
"2. Vessels operated by or for the United States armed forces may enter the Philippines upon
approval of the Government of the Philippines. The movement of vessels shall be in
accordance with international custom and practice governing such vessels, and such agreed
implementing arrangements as necessary.
"3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall not
be subject to the payment of landing or port fees, navigation or over flight charges, or tolls or
other use charges, including light and harbor dues, while in the Philippines. Aircraft operated
by or for the United States armed forces shall observe local air traffic control regulations
while in the Philippines. Vessels owned or operated by the United States solely on United
States Government non-commercial service shall not be subject to compulsory pilotage at
Philippine ports.
"Article IX
Duration and Termination
"This agreement shall enter into force on the date on which the parties have notified each
other in writing through the diplomatic channel that they have completed their constitutional
requirements for entry into force. This agreement shall remain in force until the expiration of
180 days from the date on which either party gives the other party notice in writing that it
desires to terminate the agreement."
Via these consolidated11 petitions for certiorari and prohibition, petitioners - as legislators,
non-governmental organizations, citizens and taxpayers - assail the constitutionality of the
VFA and impute to herein respondents grave abuse of discretion in ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I
Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question
the constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of
the Constitution?
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by
US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion
perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties
for the equipment, materials supplies and other properties imported into or acquired in the
Philippines by, or on behalf, of the US Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioner’s standing to sue, on the ground that the
latter have not shown any interest in the case, and that petitioners failed to substantiate that
they have sustained, or will sustain direct injury as a result of the operation of the VFA.12
Petitioners, on the other hand, counter that the validity or invalidity of the VFA is a matter of
transcendental importance which justifies their standing.13
A party bringing a suit challenging the constitutionality of a law, act, or statute must show
"not only that the law is invalid, but also that he has sustained or in is in immediate, or
imminent danger of sustaining some direct injury as a result of its enforcement, and not
merely that he suffers thereby in some indefinite way." He must show that he has been, or is
about to be, denied some right or privilege to which he is lawfully entitled, or that he is about
to be subjected to some burdens or penalties by reason of the statute complained of.14
In the case before us, petitioners failed to show, to the satisfaction of this Court, that they
have sustained, or are in danger of sustaining any direct injury as a result of the enforcement
of the VFA. As taxpayers, petitioners have not established that the VFA involves the exercise
by Congress of its taxing or spending powers.15 On this point, it bears stressing that a
taxpayer’s suit refers to a case where the act complained of directly involves the illegal
disbursement of public funds derived from taxation.16 Thus, in Bugnay Const. &
Development Corp. vs. Laron17 , we held:
"x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or
injured by the judgment or entitled to the avails of the suit as a real party in interest. Before
he can invoke the power of judicial review, he must specifically prove that he has sufficient
interest in preventing the illegal expenditure of money raised by taxation and that he will
sustain a direct injury as a result of the enforcement of the questioned statute or contract. It
is not sufficient that he has merely a general interest common to all members of the public."
Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the
absence of any allegation by petitioners that public funds are being misspent or illegally
expended, petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.
43
Similarly, Representatives Wigberto Tañada, Agapito Aquino and Joker Arroyo, as petitioners-
legislators, do not possess the requisite locus standi to maintain the present suit. While this
Court, in Phil. Constitution Association vs. Hon. Salvador Enriquez,18 sustained the legal
standing of a member of the Senate and the House of Representatives to question the validity
of a presidential veto or a condition imposed on an item in an appropriation bull, we cannot,
at this instance, similarly uphold petitioners’ standing as members of Congress, in the
absence of a clear showing of any direct injury to their person or to the institution to which
they belong.
Beyond this, the allegations of impairment of legislative power, such as the delegation of the
power of Congress to grant tax exemptions, are more apparent than real. While it may be
true that petitioners pointed to provisions of the VFA which allegedly impair their legislative
powers, petitioners failed however to sufficiently show that they have in fact suffered direct
injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in
these cases. As aptly observed by the Solicitor General, the IBP lacks the legal capacity to
bring this suit in the absence of a board resolution from its Board of Governors authorizing its
National President to commence the present action.19
Notwithstanding, in view of the paramount importance and the constitutional significance of
the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes
aside the procedural barrier and takes cognizance of the petitions, as we have done in the
early Emergency Powers Cases,20 where we had occasion to rule:
"x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several
executive orders issued by President Quirino although they were involving only an indirect
and general interest shared in common with the public. The Court dismissed the objection
that they were not proper parties and ruled that ‘transcendental importance to the public of
these cases demands that they be settled promptly and definitely, brushing aside, if we
must, technicalities of procedure.’ We have since then applied the exception in many other
cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175
SCRA 343)." (Underscoring Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,21 Daza vs.
Singson,22 and Basco vs. Phil. Amusement and Gaming Corporation,23 where we
emphatically held:
"Considering however the importance to the public of the case at bar, and in keeping with the
Court’s duty, under the 1987 Constitution, to determine whether or not the other branches of
the government have kept themselves within the limits of the Constitution and the laws and
that they have not abused the discretion given to them, the Court has brushed aside
technicalities of procedure and has taken cognizance of this petition. x x x"
Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,24 thisCourt ruled that in cases
of transcendental importance, the Court may relax the standing requirements and allow a
suit to prosper even where there is no direct injury to the party claiming the right of judicial
review.
Although courts generally avoid having to decide a constitutional question based on the
doctrine of separation of powers, which enjoins upon the departments of the government a
becoming respect for each others’ acts,25 this Court nevertheless resolves to take cognizance
of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the determination of which provision of the
Constitution applies, with regard to the exercise by the senate of its constitutional power to
concur with the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering
that the VFA has for its subject the presence of foreign military troops in the Philippines.
Respondents, on the contrary, maintain that Section 21, Article VII should apply inasmuch as
the VFA is not a basing arrangement but an agreement which involves merely the temporary
visits of United States personnel engaged in joint military exercises.
The 1987 Philippine Constitution contains two provisions requiring the concurrence of the
Senate on treaties or international agreements. Section 21, Article VII, which herein
respondents invoke, reads:
"No treaty or international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate."
Section 25, Article XVIII, provides:
"After the expiration in 1991 of the Agreement between the Republic of the Philippines and
the United States of America concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the
senate and, when the Congress so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a treaty by the
other contracting State."
Section 21, Article VII deals with treatise or international agreements in general, in which
case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required
to make the subject treaty, or international agreement, valid and binding on the part of the
Philippines. This provision lays down the general rule on treatise or international agreements
and applies to any form of treaty with a wide variety of subject matter, such as, but not
limited to, extradition or tax treatise or those economic in nature. All treaties or international
agreements entered into by the Philippines, regardless of subject matter, coverage, or
particular designation or appellation, requires the concurrence of the Senate to be valid and
effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve
the presence of foreign military bases, troops or facilities in the Philippines. Under this
provision, the concurrence of the Senate is only one of the requisites to render compliance
with the constitutional requirements and to consider the agreement binding on the
Philippines. Section 25, Article XVIII further requires that "foreign military bases, troops, or
facilities" may be allowed in the Philippines only by virtue of a treaty duly concurred in by the
Senate, ratified by a majority of the votes cast in a national referendum held for that purpose
if so required by Congress, and recognized as such by the other contracting state.
It is our considered view that both constitutional provisions, far from contradicting each
other, actually share some common ground. These constitutional provisions both embody
phrases in the negative and thus, are deemed prohibitory in mandate and character. In
particular, Section 21 opens with the clause "No treaty x x x," and Section 25 contains the
phrase "shall not be allowed." Additionally, in both instances, the concurrence of the Senate
is indispensable to render the treaty or international agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under Section 21,
Article VII, and that the Senate extended its concurrence under the same provision, is
immaterial. For in either case, whether under Section 21, Article VII or Section 25, Article
XVIII, the fundamental law is crystalline that the concurrence of the Senate is mandatory to
comply with the strict constitutional requirements.
44
On the whole, the VFA is an agreement which defines the treatment of United States troops
and personnel visiting the Philippines. It provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction, movement of vessel and aircraft,
importation and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign
military bases, troops, or facilities, should apply in the instant case. To a certain extent and in
a limited sense, however, the provisions of section 21, Article VII will find applicability with
regard to the issue and for the sole purpose of determining the number of votes required to
obtain the valid concurrence of the Senate, as will be further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or law
prevails over a general one. Lex specialis derogat generali. Thus, where there is in the same
statute a particular enactment and also a general one which, in its most comprehensive
sense, would include what is embraced in the former, the particular enactment must be
operative, and the general enactment must be taken to affect only such cases within its
general language which are not within the provision of the particular enactment.26
In Leveriza vs. Intermediate Appellate Court,27 we enunciated:
"x x x that another basic principle of statutory construction mandates that general legislation
must give way to a special legislation on the same subject, and generally be so interpreted as
to embrace only cases in which the special provisions are not applicable (Sto. Domingo vs. de
los Angeles, 96 SCRA 139), that a specific statute prevails over a general statute (De Jesus vs.
People, 120 SCRA 760) and that where two statutes are of equal theoretical application to a
particular case, the one designed therefor specially should prevail (Wil Wilhensen Inc. vs.
Baluyot, 83 SCRA 38)."
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient
agreements for the reason that there is no permanent placing of structure for the
establishment of a military base. On this score, the Constitution makes no distinction
between "transient’ and "permanent". Certainly, we find nothing in Section 25, Article XVIII
that requires foreign troops or facilities to be stationed or placed permanently in the
Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court
should not distinguish- Ubi lex non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not
controlling since no foreign military bases, but merely foreign troops and facilities, are
involved in the VFA. Notably, a perusal of said constitutional provision reveals that the
proscription covers "foreign military bases, troops, or facilities." Stated differently, this
prohibition is not limited to the entry of troops and facilities without any foreign bases being
established. The clause does not refer to "foreign military bases, troops, or facilities"
collectively but treats them as separate and independent subjects. The use of comma and the
disjunctive word "or" clearly signifies disassociation and independence of one thing from the
others included in the enumeration,28 such that, the provision contemplates three different
situations - a military treaty the subject of which could be either (a) foreign bases, (b) foreign
troops, or (c) foreign facilities - any of the three standing alone places it under the coverage of
Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the
deliberations of the 1986 Constitutional Commission, is consistent with this interpretation:
"MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My first
question is: If the country does enter into such kind of a treaty, must it cover the three-
bases, troops or facilities-or could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three,
the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty
covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty
covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find
some. We just want to cover everything."29 (Underscoring Supplied)
Moreover, military bases established within the territory of another state is no longer viable
because of the alternatives offered by new means and weapons of warfare such as nuclear
weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even for
months and years without returning to their home country. These military warships are
actually used as substitutes for a land-home base not only of military aircraft but also of
military personnel and facilities. Besides, vessels are mobile as compared to a land-based
military headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements of Section
25 were complied with when the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country,
unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the
treaty must be duly concurred in by the Senate and, when so required by congress, ratified
by a majority of the votes cast by the people in a national referendum; and (c) recognized as
a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA. The
concurrence handed by the Senate through Resolution No. 18 is in accordance with the
provisions of the Constitution, whether under the general requirement in Section 21, Article
VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter
article requiring ratification by a majority of the votes cast in a national referendum being
unnecessary since Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or
international agreement, to be valid and effective, must be concurred in by at least two-
thirds of all the members of the Senate. On the other hand, Section 25, Article XVIII simply
provides that the treaty be "duly concurred in by the Senate."
Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the
Senate is clearly required so that the concurrence contemplated by law may be validly
obtained and deemed present. While it is true that Section 25, Article XVIII requires, among
other things, that the treaty-the VFA, in the instant case-be "duly concurred in by the Senate,"
it is very true however that said provision must be related and viewed in light of the clear
mandate embodied in Section 21, Article VII, which in more specific terms, requires that the
concurrence of a treaty, or international agreement, be made by a two -thirds vote of all the
members of the Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to
section 21, Article, VII.
As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in
relation to the provisions of Section 21, Article VII. In a more particular language, the
45
concurrence of the Senate contemplated under Section 25, Article XVIII means that at least
two-thirds of all the members of the Senate favorably vote to concur with the treaty-the VFA
in the instant case.
Under these circumstances, the charter provides that the Senate shall be composed of
twenty-four (24) Senators.30 Without a tinge of doubt, two-thirds (2/3) of this figure, or not
less than sixteen (16) members, favorably acting on the proposal is an unquestionable
compliance with the requisite number of votes mentioned in Section 21 of Article VII. The fact
that there were actually twenty-three (23) incumbent Senators at the time the voting was
made,31 will not alter in any significant way the circumstance that more than two-thirds of
the members of the Senate concurred with the proposed VFA, even if the two-thirds vote
requirement is based on this figure of actual members (23). In this regard, the fundamental
law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes, suffice so as to
render compliance with the strict constitutional mandate of giving concurrence to the subject
treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present,
we shall now pass upon and delve on the requirement that the VFA should be recognized as a
treaty by the United States of America.
Petitioners content that the phrase "recognized as a treaty," embodied in section 25, Article
XVIII, means that the VFA should have the advice and consent of the United States Senate
pursuant to its own constitutional process, and that it should not be considered merely an
executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador Hubbard stating
that the VFA is binding on the United States Government is conclusive, on the point that the
VFA is recognized as a treaty by the United States of America. According to respondents, the
VFA, to be binding, must only be accepted as a treaty by the United States.
This Court is of the firm view that the phrase "recognized as a treaty" means that the other
contracting party accepts or acknowledges the agreement as a treaty.32 To require the other
contracting state, the United States of America in this case, to submit the VFA to the United
States Senate for concurrence pursuant to its Constitution,33 is to accord strict meaning to
the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their
ordinary meaning except where technical terms are employed, in which case the significance
thus attached to them prevails. Its language should be understood in the sense they have in
common use.34
Moreover, it is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, an executive agreement is as binding as a
treaty.35 To be sure, as long as the VFA possesses the elements of an agreement under
international law, the said agreement is to be taken equally as a treaty.
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."36 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
legal significance. Certain terms are useful, but they furnish little more than mere
description.37
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."
Thus, in international law, there is no difference between treaties and executive agreements
in their binding effect upon states concerned, as long as the negotiating functionaries have
remained within their powers.38 International law continues to make no distinction between
treaties and executive agreements: they are equally binding obligations upon nations.39
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 vs. Eastern
Sea Trading,40 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.
"x x x x x x x x x
"Furthermore, the United States Supreme Court has expressly recognized the validity and
constitutionality of executive agreements entered into without Senate approval. (39
Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export Corporation,
299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315
U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-
1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International Law [revised
Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d
ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth,
International Law Digest, Vol. V, pp. 390-407). (Italics Supplied)" (Emphasis Ours)
The deliberations of the Constitutional Commission which drafted the 1987 Constitution is
enlightening and highly-instructive:
"MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other
state is concerned, that is entirely their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done
everything to make it a treaty, then as far as we are concerned, we will accept it as a
treaty."41
The records reveal that the United States Government, through Ambassador Thomas C.
Hubbard, has stated that the United States government has fully committed to living up to
the terms of the VFA.42 For as long as the united States of America accepts or acknowledges
the VFA as a treaty, and binds itself further to comply with its obligations under the treaty,
there is indeed marked compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence
of the Senate should be taken as a clear an unequivocal expression of our nation’s consent to
be bound by said treaty, with the concomitant duty to uphold the obligations and
responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state or of
the government, as the case may be, through which the formal acceptance of the treaty is
proclaimed.43 A State may provide in its domestic legislation the process of ratification of a
46
treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a)
the treaty provides for such ratification, (b) it is otherwise established that the negotiating
States agreed that ratification should be required, (c) the representative of the State has
signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty
subject to ratification appears from the full powers of its representative, or was expressed
during the negotiation.44
In our jurisdiction, the power to ratify is vested in the President and not, as commonly
believed, in the legislature. The role of the Senate is limited only to giving or withholding its
consent, or concurrence, to the ratification.45
With the ratification of the VFA, which is equivalent to final acceptance, and with the
exchange of notes between the Philippines and the United States of America, it now becomes
obligatory and incumbent on our part, under the principles of international law, to be bound
by the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution,46
declares that the Philippines adopts the generally accepted principles of international law as
part of the law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by generally
accepted rules for the conduct of its international relations. While the international obligation
devolves upon the state and not upon any particular branch, institution, or individual member
of its government, the Philippines is nonetheless responsible for violations committed by any
branch or subdivision of its government or any official thereof. As an integral part of the
community of nations, we are responsible to assure that our government, Constitution and
laws will carry out our international obligation.47 Hence, we cannot readily plead the
Constitution as a convenient excuse for non-compliance with our obligations, duties and
responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the
International Law Commission in 1949 provides: "Every State has the duty to carry out in good
faith its obligations arising from treaties and other sources of international law, and it may
not invoke provisions in its constitution or its laws as an excuse for failure to perform this
duty."48
Equally important is Article 26 of the convention which provides that "Every treaty in force is
binding upon the parties to it and must be performed by them in good faith." This is known as
the principle of pacta sunt servanda which preserves the sanctity of treaties and have been
one of the most fundamental principles of positive international law, supported by the
jurisprudence of international tribunals.49
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted for exercising a power
and performing a task conferred upon him by the Constitution-the power to enter into and
ratify treaties. Through the expediency of Rule 65 of the Rules of Court, petitioners in these
consolidated cases impute grave abuse of discretion on the part of the chief Executive in
ratifying the VFA, and referring the same to the Senate pursuant to the provisions of Section
21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in
an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so
patent and gross as to amount to an evasion of positive duty enjoined or to act at all in
contemplation of law.50
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State,
is the sole organ and authority in the external affairs of the country. In many ways, the
President is the chief architect of the nation’s foreign policy; his "dominance in the field of
foreign relations is (then) conceded."51 Wielding vast powers an influence, his conduct in the
external affairs of the nation, as Jefferson describes, is "executive altogether."52
As regards the power to enter into treaties or international agreements, the Constitution
vests the same in the President, subject only to the concurrence of at least two-thirds vote of
all the members of the Senate. In this light, the negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts which pertain solely to the President, in the
lawful exercise of his vast executive and diplomatic powers granted him no less than by the
fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress
itself is powerless to invade it.53 Consequently, the acts or judgment calls of the President
involving the VFA-specifically the acts of ratification and entering into a treaty and those
necessary or incidental to the exercise of such principal acts - squarely fall within the sphere
of his constitutional powers and thus, may not be validly struck down, much less calibrated by
this Court, in the absence of clear showing of grave abuse of power or discretion.
It is the Court’s considered view that the President, in ratifying the VFA and in submitting the
same to the Senate for concurrence, acted within the confines and limits of the powers
vested in him by the Constitution. It is of no moment that the President, in the exercise of his
wide latitude of discretion and in the honest belief that the VFA falls within the ambit of
Section 21, Article VII of the Constitution, referred the VFA to the Senate for concurrence
under the aforementioned provision. Certainly, no abuse of discretion, much less a grave,
patent and whimsical abuse of judgment, may be imputed to the President in his act of
ratifying the VFA and referring the same to the Senate for the purpose of complying with the
concurrence requirement embodied in the fundamental law. In doing so, the President
merely performed a constitutional task and exercised a prerogative that chiefly pertains to
the functions of his office. Even if he erred in submitting the VFA to the Senate for
concurrence under the provisions of Section 21 of Article VII, instead of Section 25 of Article
XVIII of the Constitution, still, the President may not be faulted or scarred, much less be
adjudged guilty of committing an abuse of discretion in some patent, gross, and capricious
manner.
For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the
scope of judicial inquiry into areas normally left to the political departments to decide, such
as those relating to national security, it has not altogether done away with political questions
such as those which arise in the field of foreign relations.54 The High Tribunal’s function, as
sanctioned by Article VIII, Section 1, "is merely (to) check whether or not the governmental
branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred
or has a different view. In the absence of a showing… (of) grave abuse of discretion amounting
to lack of jurisdiction, there is no occasion for the Court to exercise its corrective power…It has
no power to look into what it thinks is apparent error."55
As to the power to concur with treaties, the constitution lodges the same with the Senate
alone.1âwphi1 Thus, once the Senate56 performs that power, or exercises its prerogative
within the boundaries prescribed by the Constitution, the concurrence cannot, in like manner,
be viewed to constitute an abuse of power, much less grave abuse thereof. Corollarily, the
Senate, in the exercise of its discretion and acting within the limits of such power, may not be
similarly faulted for having simply performed a task conferred and sanctioned by no less than
the fundamental law.
47
For the role of the Senate in relation to treaties is essentially legislative in character;57 the
Senate, as an independent body possessed of its own erudite mind, has the prerogative to
either accept or reject the proposed agreement, and whatever action it takes in the exercise
of its wide latitude of discretion, pertains to the wisdom rather than the legality of the act. In
this sense, the Senate partakes a principal, yet delicate, role in keeping the principles of
separation of powers and of checks and balances alive and vigilantly ensures that these
cherished rudiments remain true to their form in a democratic government such as ours. The
Constitution thus animates, through this treaty-concurring power of the Senate, a healthy
system of checks and balances indispensable toward our nation’s pursuit of political maturity
and growth. True enough, rudimentary is the principle that matters pertaining to the wisdom
of a legislative act are beyond the ambit and province of the courts to inquire.
In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this
Court- as the final arbiter of legal controversies and staunch sentinel of the rights of the
people - is then without power to conduct an incursion and meddle with such affairs purely
executive and legislative in character and nature. For the Constitution no less, maps out the
distinct boundaries and limits the metes and bounds within which each of the three political
branches of government may exercise the powers exclusively and essentially conferred to it
by law.
WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby
DISMISSED.
SO ORDERED.

48
EN BANC
G.R. No. 151445 April 11, 2002
ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCEY GLORIA MACAPAGAL-
ARROYO, and HONORABLE ANGELO REYES in his capacity as Secretary of National Defense,
respondents.
----------------------------------------
SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors,
vs.
GLORIA MACAPAGA-ARROYO, ALBERTO ROMULO, ANGELO REYES, respondents.
DISSENTING OPINION
SEPARATE OPINION
DE LEON, JR., J.:
This case involves a petition for certiorari and prohibition as well as a petition-in-intervention,
praying that respondents be restrained from proceeding with the so-called "Balikatan 02-1"
and that after due notice and hearing, that judgment be rendered issuing a permanent writ of
injunction and/or prohibition against the deployment of U.S. troops in Basilan and Mindanao
for being illegal and in violation of the Constitution.
The facts are as follows:
Beginning January of this year 2002, personnel from the armed forces of the United States of
America started arriving in Mindanao to take part, in conjunction with the Philippine military,
in "Balikatan 02-1." These so-called "Balikatan" exercises are the largest combined training
operations involving Filipino and American troops. In theory, they are a simulation of joint
military maneuvers pursuant to the Mutual Defense Treaty,1 a bilateral defense agreement
entered into by the Philippines and the United States in 1951.
Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to the paucity of
any formal agreement relative to the treatment of United States personnel visiting the
Philippines. In the meantime, the respective governments of the two countries agreed to hold
joint exercises on a reduced scale. The lack of consensus was eventually cured when the two
nations concluded the Visiting Forces Agreement (V FA) in 1999.
The entry of American troops into Philippine soil is proximately rooted in the international
anti-terrorism campaign declared by President George W. Bush in reaction to the tragic
events that occurred on September 11, 2001. On that day, three (3) commercial aircrafts
were hijacked, flown and smashed into the twin towers of the World Trade Center in New
York City and the Pentagon building in Washington, D.C. by terrorists with alleged links to the
al-Qaeda ("the Base"), a Muslim extremist organization headed by the infamous Osama bin
Laden. Of no comparable historical parallels, these acts caused billions of dollars worth of
destruction of property and incalculable loss of hundreds of lives.
On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for
certiorari and prohibition, attacking the constitutionality of the joint exercise.2 They were
joined subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA, both party-Iist
organizations, who filed a petition-in-intervention on February 11, 2002.
Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and
PARTIDO, on the other hand, aver that certain members of their organization are residents of
Zamboanga and Sulu, and hence will be directly affected by the operations being conducted
in Mindanao. They likewise pray for a relaxation on the rules relative to locus standi citing the
unprecedented importance of the issue involved.
On February 71 2002 the Senate conducted a hearing on the "Balikatan" exercise wherein
Vice-President Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign. Affairs,
presented the Draft Terms of Reference (TOR).3 Five days later, he approved the TOR, which
we quote hereunder:
I. POLICY LEVEL
1. The Exercise shall be consistent with the Philippine Constitution and all its activities shall be
in consonance with the laws of the land and the provisions of the RP-US Visiting Forces
Agreement (VFA).
2. The conduct of this training Exercise is in accordance with pertinent United Nations
resolutions against global terrorism as understood by the respective parties.
3. No permanent US basing and support facilities shall be established. Temporary structures
such as those for troop billeting, classroom instruction and messing may be set up for use by
RP and US Forces during the Exercise.
4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the
authority of the Chief of Staff, AFP. In no instance will US Forces operate independently
during field training exercises (FTX). AFP and US Unit Commanders will retain command over
their respective forces under the overall authority of the Exercise Co-Directors. RP and US
participants shall comply with operational instructions of the AFP during the FTX.
5. The exercise shall be conducted and completed within a period of not more than six
months, with the projected participation of 660 US personnel and 3,800 RP Forces. The Chief
of Staff, AFP shall direct the Exercise Co-Directors to wind up and terminate the Exercise and
other activities within the six month Exercise period.
6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative
to Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further
advising, assisting and training exercises shall be conducted in Malagutay and the Zamboanga
area. Related activities in Cebu will be for support of the Exercise.
7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP
field, commanders. The US teams shall remain at the Battalion Headquarters and, when
approved, Company Tactical headquarters where they can observe and assess the
performance of the AFP Forces.
8. US exercise participants shall not engage in combat, without prejudice to their right of self-
defense.
9. These terms of Reference are for purposes of this Exercise only and do not create
additional legal obligations between the US Government and the Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of mutual military assisting, advising and training of
RP and US Forces with the primary objective of enhancing the operational capabilities of both
forces to combat terrorism.
b. At no time shall US Forces operate independently within RP territory.
c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic
regulations.
2. ADMINISTRATION & LOGISTICS
a. RP and US participants shall be given a country and area briefing at the start of the
Exercise. This briefing shall acquaint US Forces on the culture and sensitivities of the Filipinos
49
and the provisions of the VF A. The briefing shall also promote the full cooperation on the
part of the RP and US participants for the successful conduct of the Exercise.
b. RP and US participating forces may share, in accordance with their respective laws and
regulations, in the use of their resources, equipment and other assets. They will use their
respective logistics channels.
c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and
resources.
d. Legal liaison officers from each respective party shall be appointed by the Exercise
Directors.
3. PUBLIC AFFAIRS
a. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in
Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon City.
b. Local media relations will be the concern of the AFP and all public affairs guidelines shall be
jointly developed by RP and US Forces.
c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and US
Forces in accordance with their respective laws and regulations, and in consultation with
community and local government officials.
Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and
United States Charge d' Affaires Robert Fitts signed the Agreed Minutes of the discussion
between the Vice-President and Assistant Secretary Kelly.4
Petitioners Lim and Ersando present the following arguments:
I This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs.
THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY (MDT) in
1951 TO PROVIDE MUTUAL MILITARY ASSIST ANCE IN ACCORDANCE WITH THE
'CONSTITUTIONAL PROCESSE-S' OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK
BY AN EXTERNAL AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF THEM.
BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS IN
BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECT THE PHILIPPINES TO
AN ARMED EXTERNAL ATTACK TO WARRANT U.S. MILITARY ASSISTANCE UNDER THE MDT OF
1951.
II
NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE IN COMBAT
OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED UPON".
Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO.
In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter alia,
Lim and Ersando's standing to file suit, the prematurity of the action, as well as the
impropriety of availing of certiorari to ascertain a question of fact. Anent their locus standi,
the Solicitor General argues that first, they may not file suit in their capacities as, taxpayers
inasmuch as it has not been shown that "Balikatan 02-1 " involves the exercise of Congress'
taxing or spending powers. Second, their being lawyers does not invest them with sufficient
personality to initiate the case, citing our ruling in Integrated Bar of the Philippines v.
Zamora.5 Third, Lim and Ersando have failed to demonstrate the requisite showing of direct
personal injury. We agree.
It is also contended that the petitioners are indulging in speculation. The Solicitor General is
of the view that since the Terms of Reference are clear as to the extent and duration of
"Balikatan 02-1," the issues raised by petitioners are premature, as they are based only on a
fear of future violation of the Terms of Reference. Even petitioners' resort to a special civil
action for certiorari is assailed on the ground that the writ may only issue on the basis of
established facts.
Apart from these threshold issues, the Solicitor General claims that there is actually no
question of constitutionality involved. The true object of the instant suit, it is said, is to obtain
an interpretation of the V FA. The Solicitor General asks that we accord due deference to the
executive determination that "Balikatan 02-1" is covered by the VFA, considering the
President's monopoly in the field of foreign relations and her role as commander-in-chief of
the Philippine armed forces.
Given the primordial importance of the issue involved, it will suffice to reiterate our view on
this point in a related case:
Notwithstanding, in view of the paramount importance and the constitutional significance of
the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes
aside the procedural barrier and takes cognizance of the petitions, as we have done in the
early Emergency Powers Cases, where we had occasion to rule:
'x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several
executive orders issued by President Quirino although they were involving only an indirect
and general interest shared in common with the public. The Court dismissed the objection
that they were not proper parties and ruled that 'transcendental importance to the public of
these cases demands that they be settled promptly and definitely, brushing aside, if we
must, technicalities of procedure.' We have since then applied the exception in many other
cases. [citation omitted]
Singson, and Basco vs. Phil, Amusement and Gaming Corporation, where we emphatically
held:
Considering however the importance to the public of the case at bar, and in keeping with the
Court's duty, under the 1987 Constitution, to determine whether or not the other branches of
the government have kept themselves within the limits of the Constitution and the laws that
they have not abused the discretion given to them, the Court has brushed aside technicalities
of procedure and has taken cognizance of this petition. xxx'
Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases
of transcendental importance, the Court may relax the standing requirements and allow a
suit to prosper even where there is no direct injury to the party claiming the right of judicial
review.
Although courts generally avoid having to decide a constitutional question based on the
doctrine of separation of powers, which enjoins upon the department of the government a
becoming respect for each other's act, this Court nevertheless resolves to take cognizance of
the instant petition.6
Hence, we treat with similar dispatch the general objection to the supposed prematurity of
the action. At any rate, petitioners' concerns on the lack of any specific regulation on the
latitude of activity US personnel may undertake and the duration of their stay has been
addressed in the Terms of Reference.
The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents
to which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT,
for brevity). The MDT has been described as the "core" of the defense relationship between
the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic
and technological capabilities of our armed forces through joint training with its American
counterparts; the "Balikatan" is the largest such training exercise directly supporting the
50
MDT's objectives. It is this treaty to which the V FA adverts and the obligations thereunder
which it seeks to reaffirm.
The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it
created a vacuum in US-Philippine defense relations, that is, until it was replaced by the
Visiting Forces Agreement. It should be recalled that on October 10, 2000, by a vote of eleven
to three, this Court upheld the validity of the VFA.7 The V FA provides the "regulatory
mechanism" by which "United States military and civilian personnel [may visit] temporarily in
the Philippines in connection with activities approved by the Philippine Government." It
contains provisions relative to entry and departure of American personnel, driving and vehicle
registration, criminal jurisdiction, claims, importation and exportation, movement of vessels
and aircraft, as well as the duration of the agreement and its termination. It is the VFA which
gives continued relevance to the MDT despite the passage of years. Its primary goal is to
facilitate the promotion of optimal cooperation between American and Philippine military
forces in the event of an attack by a common foe.
The first question that should be addressed is whether "Balikatan 02-1" is covered by the
Visiting Forces Agreement. To resolve this, it is necessary to refer to the V FA itself: Not much
help can be had therefrom, unfortunately, since the terminology employed is itself the source
of the problem. The VFA permits United States personnel to engage, on an impermanent
basis, in "activities," the exact meaning of which was left undefined. The expression is
ambiguous, permitting a wide scope of undertakings subject only to the approval of the
Philippine government.8 The sole encumbrance placed on its definition is couched in the
negative, in that United States personnel must "abstain from any activity inconsistent with the
spirit of this agreement, and in particular, from any political activity."9 All other activities, in
other words, are fair game.
We are not left completely unaided, however. The Vienna Convention on the Law of Treaties,
which contains provisos governing interpretations of international agreements, state:
SECTION 3. INTERPRETATION OF TREATIES
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be
given to the tenus of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to
the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connexion
with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion
of the treaty and accepted by the other parties as an instrument related to the party .
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty
or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement
of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory
work of the treaty and the circumstances of its conclusion, in order to confirm the meaning
resulting from the application of article 31, or to determine the meaning when the
interpretation according to article 31 :
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd unreasonable.
It is clear from the foregoing that the cardinal rule of interpretation must involve an
examination of the text, which is presumed to verbalize the parties' intentions. The
Convention likewise dictates what may be used as aids to deduce the meaning of terms,
which it refers to as the context of the treaty, as well as other elements may be taken into
account alongside the aforesaid context. As explained by a writer on the Convention ,
[t]he Commission's proposals (which were adopted virtually without change by the
conference and are now reflected in Articles 31 and 32 of the Convention) were clearly based
on the view that the text of a treaty must be presumed to be the authentic expression of the
intentions of the parties; the Commission accordingly came down firmly in favour of the view
that 'the starting point of interpretation is the elucidation of the meaning of the text, not an
investigation ab initio into the intentions of the parties'. This is not to say that the
travauxpreparatoires of a treaty , or the circumstances of its conclusion, are relegated to a
subordinate, and wholly ineffective, role. As Professor Briggs points out, no rigid temporal
prohibition on resort to travaux preparatoires of a treaty was intended by the use of the
phrase 'supplementary means of interpretation' in what is now Article 32 of the Vienna
Convention. The distinction between the general rule of interpretation and the
supplementary means of interpretation is intended rather to ensure that the supplementary
means do not constitute an alternative, autonomous method of interpretation divorced from
the general rule.10
The Terms of Reference rightly fall within the context of the VFA.
After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning
of the word .'activities" arose from accident. In our view, it was deliberately made that way to
give both parties a certain leeway in negotiation. In this manner, visiting US forces may
sojourn in Philippine territory for purposes other than military. As conceived, the joint
exercises may include training on new techniques of patrol and surveillance to protect the
nation's marine resources, sea search-and-rescue operations to assist vessels in distress,
disaster relief operations, civic action projects such as the building of school houses, medical
and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only
logical to assume that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and
training exercise," falls under the umbrella of sanctioned or allowable activities in the context
of the agreement. Both the history and intent of the Mutual Defense Treaty and the V FA
support the conclusion that combat-related activities -as opposed to combat itself -such as
the one subject of the instant petition, are indeed authorized.
That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under
the terms of the VFA, what may US forces legitimately do in furtherance of their aim to
provide advice, assistance and training in the global effort against terrorism? Differently
phrased, may American troops actually engage in combat in Philippine territory? The Terms of
Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants
may not engage in combat "except in self-defense." We wryly note that this sentiment is
admirable in the abstract but difficult in implementation. The target of "Balikatan 02-1 I" the
51
Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to their very
doorstep. They cannot be expected to pick and choose their targets for they will not have the
luxury of doing so. We state this point if only to signify our awareness that the parties
straddle a fine line, observing the honored legal maxim "Nemo potest facere per alium quod
non potest facere per directum."11 The indirect violation is actually petitioners' worry, that in
reality, "Balikatan 02-1 " is actually a war principally conducted by the United States
government, and that the provision on self-defense serves only as camouflage to conceal the
true nature of the exercise. A clear pronouncement on this matter thereby becomes crucial.
In our considered opinion, neither the MDT nor the V FA allow foreign troops to engage in an
offensive war on Philippine territory. We bear in mind the salutary proscription stated in the
Charter of the United Nations, to wit:
Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in
accordance with the following Principles.
xxx xxx xxx xxx
4. All Members 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.
xxx xxx xxx xxx
In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as in
all other treaties and international agreements to which the Philippines is a party, must be
read in the context of the 1987 Constitution. In particular, the Mutual Defense Treaty was
concluded way before the present Charter, though it nevertheless remains in effect as a valid
source of international obligation. The present Constitution contains key provisions useful in
determining the extent to which foreign military troops are allowed in Philippine territory.
Thus, in the Declaration of Principles and State Policies, it is provided that:
xxx xxx xxx xxx
SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land and adheres
to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
xxx xxx xxx xxx
SEC. 7. The State shall pursue an independent foreign policy. In its relations with other states
the paramount consideration shall be national sovereignty, territorial integrity, national
interest, and the right to self- determination.
SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of
freedom from nuclear weapons in the country.
xxx xxx xxx xxx
The Constitution also regulates the foreign relations powers of the Chief Executive when it
provides that "[n]o treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the members of the Senate."12 Even more pointedly,
the Transitory Provisions state:
Sec. 25. After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases, foreign military bases,
troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred
in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast
by the people in a national referendum held for that purpose, and recognized as a treaty by
the other contracting state.
The aforequoted provisions betray a marked antipathy towards foreign military presence in
the country, or of foreign influence in general. Hence, foreign troops are allowed entry into
the Philippines only by way of direct exception. Conflict arises then between the fundamental
law and our obligations arising from international agreements.
A rather recent formulation of the relation of international law vis-a-vis municipal law was
expressed in Philip Morris, Inc. v. Court of Appeals,13 to wit:
xxx Withal, the fact that international law has been made part of the law of the land does not
by any means imply the primacy of international law over national law in the municipal
sphere. Under the doctrine of incorporation as applied in most countries, rules of
international law are given a standing equal, not superior, to national legislation.
This is not exactly helpful in solving the problem at hand since in trying to find a middle
ground, it favors neither one law nor the other, which only leaves the hapless seeker with an
unsolved dilemma. Other more traditional approaches may offer valuable insights.
From the perspective of public international law, a treaty is favored over municipal law
pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding
upon the parties to it and must be performed by them in good faith."14 Further, a party to a
treaty is not allowed to "invoke the provisions of its internal law as justification for its failure
to perform a treaty."15
Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in section 5
of Article VIII:
The Supreme Court shall have the following powers:
xxx xxx xxx xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question.
xxx xxx xxx xxx
In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always subject to
qualification or amendment by a subsequent law, or that it is subject to the police power of
the State. In Gonzales v. Hechanova,17
xxx As regards the question whether an international agreement may be invalidated by our
courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the
affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court may not
be deprived "of its jurisdiction to review, revise, reverse, modify, or affirm on appeal,
certiorari, or writ of error as the law or the rules of court may provide, final judgments and
decrees of inferior courts in -( I) All cases in which the constitutionality or validity of any
treaty, law, ordinance, or executive order or regulation is in question." In other words, our
Constitution authorizes the nullification of a treaty, not only when it conflicts with the
fundamental law, but, also, when it runs counter to an act of Congress.
The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an
offensive war on Philippine territory.
Yet a nagging question remains: are American troops actively engaged in combat alongside
Filipino soldiers under the guise of an alleged training and assistance exercise? Contrary to
what petitioners would have us do, we cannot take judicial notice of the events transpiring
down south,18 as reported from the saturation coverage of the media. As a rule, we do not
take cognizance of newspaper or electronic reports per se, not because of any issue as to
52
their truth, accuracy, or impartiality, but for the simple reason that facts must be established
in accordance with the rules of evidence. As a result, we cannot accept, in the absence of
concrete proof, petitioners' allegation that the Arroyo government is engaged in
"doublespeak" in trying to pass off as a mere training exercise an offensive effort by foreign
troops on native soil. The petitions invite us to speculate on what is really happening in
Mindanao, to issue I make factual findings on matters well beyond our immediate perception,
and this we are understandably loath to do.
It is all too apparent that the determination thereof involves basically a question of fact. On
this point, we must concur with the Solicitor General that the present subject matter is not a
fit topic for a special civil action for certiorari. We have held in too many instances that
questions of fact are not entertained in such a remedy. The sole object of the writ is to
correct errors of jurisdiction or grave abuse of discretion: The phrase "grave abuse of
discretion" has a precise meaning in law, denoting abuse of discretion "too patent and gross
as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty
enjoined or act in contemplation of law, or where the power is exercised in an arbitrary and
despotic manner by reason of passion and personal hostility."19
In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts.20
Under the expanded concept of judicial power under the Constitution, courts are charged
with the duty "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."21 From the facts obtaining, we find that the holding of "Balikatan 02-1" joint
military exercise has not intruded into that penumbra of error that would otherwise call for
correction on our part. In other words, respondents in the case at bar have not committed
grave abuse of discretion amounting to lack or excess of jurisdiction.
WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without
prejudice to the filing of a new petition sufficient in form and substance in the proper
Regional Trial Court.
SO ORDERED.

53
EN BANC
G.R. No. 158088 July 6, 2005
SENATOR AQUILINO PIMENTEL, JR., REP. ETTA ROSALES, PHILIPPINE COALITION FOR THE
ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL COURT, TASK FORCE DETAINEES OF
THE PHILIPPINES, FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCES, BIANCA
HACINTHA R. ROQUE, HARRISON JACOB R. ROQUE, AHMED PAGLINAWAN, RON P. SALO,*
LEAVIDES G. DOMINGO, EDGARDO CARLO VISTAN, NOEL VILLAROMAN, CELESTE
CEMBRANO, LIZA ABIERA, JAIME ARROYO, MARWIL LLASOS, CRISTINA ATENDIDO, ISRAFEL
FAGELA, and ROMEL BAGARES, Petitioners,
vs.
OFFICE OF THE EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, and the DEPARTMENT OF
FOREIGN AFFAIRS, represented by HON. BLAS OPLE, Respondents.
DECISION
PUNO J.:
This is a petition for mandamus filed by petitioners to compel the
Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed
copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines
for its concurrence in accordance with Section 21, Article VII of the 1987 Constitution.
The Rome Statute established the International Criminal Court which "shall have the power to
exercise its jurisdiction over persons for the most serious crimes of international concern xxx
and shall be complementary to the national criminal jurisdictions."1 Its jurisdiction covers the
crime of genocide, crimes against humanity, war crimes and the crime of aggression as
defined in the Statute.2 The Statute was opened for signature by all states in Rome on July 17,
1998 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.3 Its
provisions, however, require that it be subject to ratification, acceptance or approval of the
signatory states.4
Petitioners filed the instant petition to compel the respondents — the Office of the Executive
Secretary and the Department of Foreign Affairs — to transmit the signed text of the treaty to
the Senate of the Philippines for ratification.
It is the theory of the petitioners that ratification of a treaty, under both domestic law and
international law, is a function of the Senate. Hence, it is the duty of the executive
department to transmit the signed copy of the Rome Statute to the Senate to allow it to
exercise its discretion with respect to ratification of treaties. 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.5
The Office of the Solicitor General, commenting for the respondents, questioned the standing
of the petitioners to file the instant suit. It also contended that the petition at bar violates the
rule on hierarchy of courts. On the substantive issue raised by petitioners, respondents argue
that the executive department has no duty to transmit the Rome Statute to the Senate for
concurrence.
A petition for mandamus may be filed when any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station.6 We have held that to be given due course, a
petition for mandamus must have been instituted by a party aggrieved by the alleged inaction
of any tribunal, corporation, board or person which unlawfully excludes said party from the
enjoyment of a legal right. The petitioner in every case must therefore be an aggrieved party
in the sense that he possesses a clear legal right to be enforced and a direct interest in the
duty or act to be performed.7 The Court will exercise its power of judicial review only if the
case is brought before it by a party who has the legal standing to raise the constitutional or
legal question. "Legal standing" means a personal and substantial interest in the case such
that the party has sustained or will sustain direct injury as a result of the government act that
is being challenged. The term "interest" is material interest, an interest in issue and to be
affected by the decree, as distinguished from mere interest in the question involved, or a
mere incidental interest.8
The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to
file the suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the
House of Representatives and Chairperson of its Committee on Human Rights; the Philippine
Coalition for the Establishment of the International Criminal Court which is composed of
individuals and corporate entities dedicated to the Philippine ratification of the Rome Statute;
the Task Force Detainees of the Philippines, a juridical entity with the avowed purpose of
promoting the cause of human rights and human rights victims in the country; the Families of
Victims of Involuntary Disappearances, a juridical entity duly organized and existing pursuant
to Philippine Laws with the avowed purpose of promoting the cause of families and victims of
human rights violations in the country; Bianca Hacintha Roque and Harrison Jacob Roque,
aged two (2) and one (1), respectively, at the time of filing of the instant petition, and suing
under the doctrine of inter-generational rights enunciated in the case of Oposa vs. Factoran,
Jr.;9 and a group of fifth year working law students from the University of the Philippines
College of Law who are suing as taxpayers.
The question in standing is whether a party has alleged such a personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult constitutional
questions.10
We find that among the petitioners, only Senator Pimentel has the legal standing to file the
instant suit. The other petitioners maintain their standing as advocates and defenders of
human rights, and as citizens of the country. They have not shown, however, that they have
sustained or will sustain a direct injury from the non-transmittal of the signed text of the
Rome Statute to the Senate. Their contention that they will be deprived of their remedies for
the protection and enforcement of their rights does not persuade. The Rome Statute is
intended to complement national criminal laws and courts. Sufficient remedies are available
under our national laws to protect our citizens against human rights violations and petitioners
can always seek redress for any abuse in our domestic courts.
As regards Senator Pimentel, it has been held that "to the extent the powers of Congress are
impaired, so is the power of each member thereof, since his office confers a right to
participate in the exercise of the powers of that institution."11 Thus, legislators have the
standing to maintain inviolate the prerogatives, powers and privileges vested by the
Constitution in their office and are allowed to sue to question the validity of any official action
which they claim infringes their prerogatives as legislators. The petition at bar invokes the
power of the Senate to grant or withhold its concurrence to a treaty entered into by the
executive branch, in this case, the Rome Statute. The petition seeks to order the executive
54
branch to transmit the copy of the treaty to the Senate to allow it to exercise such authority.
Senator Pimentel, as member of the institution, certainly has the legal standing to assert such
authority of the Senate.
We now go to the substantive issue.
The core issue in this petition for mandamus is whether the Executive Secretary and the
Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of
the Rome Statute signed by a member of the Philippine Mission to the United Nations even
without the signature of the President.
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 country’s sole representative with foreign
nations.12 As the chief architect of foreign policy, the President acts as the country’s
mouthpiece with respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold recognition,
maintain diplomatic relations, enter into treaties, and otherwise transact the business of
foreign relations.13 In the realm of treaty-making, the President has the sole authority to
negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties,
the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all
the members of the Senate for the validity of the treaty entered into by him. Section 21,
Article VII of the 1987 Constitution provides that "no treaty or international agreement shall
be valid and effective unless concurred in by at least two-thirds of all the Members of the
Senate." The 1935 and the 1973 Constitution also required the concurrence by the legislature
to the treaties entered into by the executive. Section 10 (7), Article VII of the 1935
Constitution provided:
Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the
Members of the Senate, to make treaties xxx.
Section 14 (1) Article VIII of the 1973 Constitution stated:
Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and
effective unless concurred in by a majority of all the Members of the Batasang Pambansa.
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.14 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 nation’s pursuit of political
maturity and growth.15
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 other negotiators at the start of the formal
discussions. It is standard practice for one of the parties to submit a draft of the proposed
treaty which, together with the counter-proposals, becomes the basis of the subsequent
negotiations. The negotiations may be brief or protracted, depending on the issues involved,
and may even "collapse" in case the parties are unable to come to an agreement on the
points under consideration.
If and when the negotiators finally decide on the terms of the treaty, the same is opened for
signature. This step is primarily intended as a means of authenticating the instrument and for
the purpose of symbolizing the good faith of the parties; but, significantly, it does not
indicate the final consent of the state in cases where ratification of the treaty is required.
The document is ordinarily signed in accordance with the alternat, that is, each of the several
negotiators is allowed to sign first on the copy which he will bring home to his own state.
Ratification, which is the next step, is the formal act by which a state confirms and accepts
the provisions of a treaty concluded by its representatives. The purpose of ratification is to
enable the contracting states to examine the treaty more closely and to give them an
opportunity to refuse to be bound by it should they find it inimical to their interests. It is for
this reason that most treaties are made subject to the scrutiny and consent of a department
of the government other than that which negotiated them.
xxx
The last step in the treaty-making process is the exchange of the instruments of ratification,
which usually also signifies the effectivity of the treaty unless a different date has been
agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is
embodied in the treaty, the instrument is deemed effective upon its signature.16 [emphasis
supplied]
Petitioners’ arguments equate the signing of the treaty by the Philippine representative with
ratification. It should be underscored that the signing of the treaty and the ratification are
two separate and distinct steps in the treaty-making process. As earlier discussed, the
signature is primarily intended as a means of authenticating the instrument and as a symbol
of the good faith of the parties. It is usually performed by the state’s authorized
representative in the diplomatic mission. Ratification, on the other hand, is the formal act by
which a state confirms and accepts the provisions of a treaty concluded by its representative.
It is generally held to be an executive act, undertaken by the head of the state or of the
government.17 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. Section 7 of
Executive Order No. 459 reads:
Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive
Agreement. — The domestic requirements for the entry into force of a treaty or an executive
agreement, or any amendment thereto, shall be as follows:
A. Executive Agreements.
i. All executive agreements shall be transmitted to the Department of Foreign Affairs after
their signing for the preparation of the ratification papers. The transmittal shall include the
55
highlights of the agreements and the benefits which will accrue to the Philippines arising from SO ORDERED.
them.
ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency,
shall transmit the agreements to the President of the Philippines for his ratification. The
original signed instrument of ratification shall then be returned to the Department of Foreign
Affairs for appropriate action.
B. Treaties.
i. All treaties, regardless of their designation, shall comply with the requirements provided in
sub-paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the
Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for
concurrence in the ratification by the President. A certified true copy of the treaties, in such
numbers as may be required by the Senate, together with a certified true copy of the
ratification instrument, shall accompany the submission of the treaties to the Senate.
ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall
comply with the provision of the treaties in effecting their entry into force.
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 state’s
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.18 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.19
It should be emphasized that under our Constitution, the power to ratify is vested in the
President, subject to the concurrence of the Senate. The role of the Senate, however, is
limited only to giving or withholding its consent, or concurrence, to the ratification.20 Hence,
it is within the authority of the President to refuse to submit a treaty to the Senate or, having
secured its consent for its ratification, refuse to ratify it.21 Although the refusal of a state to
ratify a treaty which has been signed in its behalf is a serious step that should not be taken
lightly,22 such decision is within the competence of the President alone, which cannot be
encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions
seeking to enjoin the President in the performance of his official duties.23 The Court,
therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its
jurisdiction to compel the executive branch of the government to transmit the signed text of
Rome Statute to the Senate.
IN VIEW WHEREOF, the petition is DISMISSED.

56
EN BANC
G.R. No. 170516 July 16, 2008
AKBAYAN CITIZENS ACTION PARTY ("AKBAYAN"), PAMBANSANG KATIPUNAN NG MGA
SAMAHAN SA KANAYUNAN ("PKSK"), ALLIANCE OF PROGRESSIVE LABOR ("APL"), VICENTE
A. FABE, ANGELITO R. MENDOZA, MANUEL P. QUIAMBAO, ROSE BEATRIX CRUZ-ANGELES,
CONG. LORENZO R. TANADA III, CONG. MARIO JOYO AGUJA, CONG. LORETA ANN P.
ROSALES, CONG. ANA THERESIA HONTIVEROS-BARAQUEL, AND CONG. EMMANUEL JOEL J.
VILLANUEVA, Petitioners,
vs.
THOMAS G. AQUINO, in his capacity as Undersecretary of the Department of Trade and
Industry (DTI) and Chairman and Chief Delegate of the Philippine Coordinating Committee
(PCC) for the Japan-Philippines Economic Partnership Agreement, EDSEL T. CUSTODIO, in his
capacity as Undersecretary of the Department of Foreign Affairs (DFA) and Co-Chair of the
PCC for the JPEPA, EDGARDO ABON, in his capacity as Chairman of the Tariff Commission
and lead negotiator for Competition Policy and Emergency Measures of the JPEPA,
MARGARITA SONGCO, in her capacity as Assistant Director-General of the National
Economic Development Authority (NEDA) and lead negotiator for Trade in Services and
Cooperation of the JPEPA, MALOU MONTERO, in her capacity as Foreign Service Officer I,
Office of the Undersecretary for International Economic Relations of the DFA and lead
negotiator for the General and Final Provisions of the JPEPA, ERLINDA ARCELLANA, in her
capacity as Director of the Board of Investments and lead negotiator for Trade in Goods
(General Rules) of the JPEPA, RAQUEL ECHAGUE, in her capacity as lead negotiator for Rules
of Origin of the JPEPA, GALLANT SORIANO, in his official capacity as Deputy Commissioner
of the Bureau of Customs and lead negotiator for Customs Procedures and Paperless
Trading of the JPEPA, MA. LUISA GIGETTE IMPERIAL, in her capacity as Director of the
Bureau of Local Employment of the Department of Labor and Employment (DOLE) and lead
negotiator for Movement of Natural Persons of the JPEPA, PASCUAL DE GUZMAN, in his
capacity as Director of the Board of Investments and lead negotiator for Investment of the
JPEPA, JESUS MOTOOMULL, in his capacity as Director for the Bureau of Product Standards
of the DTI and lead negotiator for Mutual Recognition of the JPEPA, LOUIE CALVARIO, in his
capacity as lead negotiator for Intellectual Property of the JPEPA, ELMER H. DORADO, in his
capacity as Officer-in-Charge of the Government Procurement Policy Board Technical
Support Office, the government agency that is leading the negotiations on Government
Procurement of the JPEPA, RICARDO V. PARAS, in his capacity as Chief State Counsel of the
Department of Justice (DOJ) and lead negotiator for Dispute Avoidance and Settlement of
the JPEPA, ADONIS SULIT, in his capacity as lead negotiator for the General and Final
Provisions of the JPEPA, EDUARDO R. ERMITA, in his capacity as Executive Secretary, and
ALBERTO ROMULO, in his capacity as Secretary of the DFA,* Respondents.
DECISION
CARPIO MORALES, J.:
Petitioners – non-government organizations, Congresspersons, citizens and taxpayers – seek
via the present petition for mandamus and prohibition to obtain from respondents the full
text of the Japan-Philippines Economic Partnership Agreement (JPEPA) including the
Philippine and Japanese offers submitted during the negotiation process and all pertinent
attachments and annexes thereto.
Petitioners Congressmen Lorenzo R. Tañada III and Mario Joyo Aguja filed on January 25, 2005
House Resolution No. 551 calling for an inquiry into the bilateral trade agreements then being
negotiated by the Philippine government, particularly the JPEPA. The Resolution became the
basis of an inquiry subsequently conducted by the House Special Committee on Globalization
(the House Committee) into the negotiations of the JPEPA.
In the course of its inquiry, the House Committee requested herein respondent
Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the Philippine Coordinating
Committee created under Executive Order No. 213 ("Creation of A Philippine Coordinating
Committee to Study the Feasibility of the Japan-Philippines Economic Partnership
Agreement")1 to study and negotiate the proposed JPEPA, and to furnish the Committee with
a copy of the latest draft of the JPEPA. Usec. Aquino did not heed the request, however.
Congressman Aguja later requested for the same document, but Usec. Aquino, by letter of
November 2, 2005, replied that the Congressman shall be provided with a copy thereof "once
the negotiations are completed and as soon as a thorough legal review of the proposed
agreement has been conducted."
In a separate move, the House Committee, through Congressman Herminio G. Teves,
requested Executive Secretary Eduardo Ermita to furnish it with "all documents on the subject
including the latest draft of the proposed agreement, the requests and offers etc."2 Acting on
the request, Secretary Ermita, by letter of June 23, 2005, wrote Congressman Teves as
follows:
In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign] A[ffairs]
explains that the Committee’s request to be furnished all documents on the JPEPA may be
difficult to accomplish at this time, since the proposed Agreement has been a work in
progress for about three years. A copy of the draft JPEPA will however be forwarded to the
Committee as soon as the text thereof is settled and complete. (Emphasis supplied)
Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff
Commission Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the latest text of
the JPEPA.
Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission does
not have a copy of the documents being requested, albeit he was certain that Usec. Aquino
would provide the Congressman with a copy "once the negotiation is completed." And by
letter of July 18, 2005, NEDA Assistant Director-General Margarita R. Songco informed the
Congressman that his request addressed to Director-General Neri had been forwarded to
Usec. Aquino who would be "in the best position to respond" to the request.
In its third hearing conducted on August 31, 2005, the House Committee resolved to issue a
subpoena for the most recent draft of the JPEPA, but the same was not pursued because by
Committee Chairman Congressman Teves’ information, then House Speaker Jose de Venecia
had requested him to hold in abeyance the issuance of the subpoena until the President gives
her consent to the disclosure of the documents.3
Amid speculations that the JPEPA might be signed by the Philippine government within
December 2005, the present petition was filed on December 9, 2005.4 The agreement was to
be later signed on September 9, 2006 by President Gloria Macapagal-Arroyo and Japanese
Prime Minister Junichiro Koizumi in Helsinki, Finland, following which the President endorsed
it to the Senate for its concurrence pursuant to Article VII, Section 21 of the Constitution. To
date, the JPEPA is still being deliberated upon by the Senate.
The JPEPA, which will be the first bilateral free trade agreement to be entered into by the
Philippines with another country in the event the Senate grants its consent to it, covers a
broad range of topics which respondents enumerate as follows: trade in goods, rules of
origin, customs procedures, paperless trading, trade in services, investment, intellectual
57
property rights, government procurement, movement of natural persons, cooperation,
competition policy, mutual recognition, dispute avoidance and settlement, improvement of
the business environment, and general and final provisions.5
While the final text of the JPEPA has now been made accessible to the public since September
11, 2006,6 respondents do not dispute that, at the time the petition was filed up to the filing
of petitioners’ Reply – when the JPEPA was still being negotiated – the initial drafts thereof
were kept from public view.
Before delving on the substantive grounds relied upon by petitioners in support of the
petition, the Court finds it necessary to first resolve some material procedural issues.
Standing
For a petition for mandamus such as the one at bar to be given due course, it must be
instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or
person which unlawfully excludes said party from the enjoyment of a legal right.7
Respondents deny that petitioners have such standing to sue. "[I]n the interest of a speedy
and definitive resolution of the substantive issues raised," however, respondents consider it
sufficient to cite a portion of the ruling in Pimentel v. Office of Executive Secretary8 which
emphasizes the need for a "personal stake in the outcome of the controversy" on questions
of standing.
In a petition anchored upon the right of the people to information on matters of public
concern, which is a public right by its very nature, petitioners need not show that they have
any legal or special interest in the result, it being sufficient to show that they are citizens and,
therefore, part of the general public which possesses the right.9 As the present petition is
anchored on the right to information and petitioners are all suing in their capacity as citizens
and groups of citizens including petitioners-members of the House of Representatives who
additionally are suing in their capacity as such, the standing of petitioners to file the present
suit is grounded in jurisprudence.
Mootness
Considering, however, that "[t]he principal relief petitioners are praying for is the disclosure
of the contents of the JPEPA prior to its finalization between the two States parties,"10 public
disclosure of the text of the JPEPA after its signing by the President, during the pendency of
the present petition, has been largely rendered moot and academic.
With the Senate deliberations on the JPEPA still pending, the agreement as it now stands
cannot yet be considered as final and binding between the two States. Article 164 of the
JPEPA itself provides that the agreement does not take effect immediately upon the signing
thereof. For it must still go through the procedures required by the laws of each country for
its entry into force, viz:
Article 164
Entry into Force
This Agreement shall enter into force on the thirtieth day after the date on which the
Governments of the Parties exchange diplomatic notes informing each other that their
respective legal procedures necessary for entry into force of this Agreement have been
completed. It shall remain in force unless terminated as provided for in Article 165.11
(Emphasis supplied)
President Arroyo’s endorsement of the JPEPA to the Senate for concurrence is part of the
legal procedures which must be met prior to the agreement’s entry into force.
The text of the JPEPA having then been made accessible to the public, the petition has
become moot and academic to the extent that it seeks the disclosure of the "full text"
thereof.
The petition is not entirely moot, however, because petitioners seek to obtain, not merely the
text of the JPEPA, but also the Philippine and Japanese offers in the course of the
negotiations.12
A discussion of the substantive issues, insofar as they impinge on petitioners’ demand for
access to the Philippine and Japanese offers, is thus in order.
Grounds relied upon by petitioners
Petitioners assert, first, that the refusal of the government to disclose the documents bearing
on the JPEPA negotiations violates their right to information on matters of public concern13
and contravenes other constitutional provisions on transparency, such as that on the policy of
full public disclosure of all transactions involving public interest.14 Second, they contend that
non-disclosure of the same documents undermines their right to effective and reasonable
participation in all levels of social, political, and economic decision-making.15 Lastly, they
proffer that divulging the contents of the JPEPA only after the agreement has been concluded
will effectively make the Senate into a mere rubber stamp of the Executive, in violation of the
principle of separation of powers.
Significantly, the grounds relied upon by petitioners for the disclosure of the latest text of the
JPEPA are, except for the last, the same as those cited for the disclosure of the Philippine and
Japanese offers.
The first two grounds relied upon by petitioners which bear on the merits of respondents’
claim of privilege shall be discussed. The last, being purely speculatory given that the Senate
is still deliberating on the JPEPA, shall not.
The JPEPA is a matter of public concern
To be covered by the right to information, the information sought must meet the threshold
requirement that it be a matter of public concern. Apropos is the teaching of Legaspi v. Civil
Service Commission:
In determining whether or not a particular information is of public concern there is no rigid
test which can be applied. ‘Public concern’ like ‘public interest’ is a term that eludes exact
definition. Both terms embrace a broad spectrum of subjects which the public may want to
know, either because these directly affect their lives, or simply because such matters
naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to
determine on a case by case basis whether the matter at issue is of interest or importance, as
it relates to or affects the public.16 (Underscoring supplied)
From the nature of the JPEPA as an international trade agreement, it is evident that the
Philippine and Japanese offers submitted during the negotiations towards its execution are
matters of public concern. This, respondents do not dispute. They only claim that diplomatic
negotiations are covered by the doctrine of executive privilege, thus constituting an
exception to the right to information and the policy of full public disclosure.
Respondents’ claim of privilege
It is well-established in jurisprudence that neither the right to information nor the policy of
full public disclosure is absolute, there being matters which, albeit of public concern or public
interest, are recognized as privileged in nature. The types of information which may be
considered privileged have been elucidated in Almonte v. Vasquez,17 Chavez v. PCGG,18 Chavez
v. Public Estate’s Authority,19 and most recently in Senate v. Ermita20 where the Court
58
reaffirmed the validity of the doctrine of executive privilege in this jurisdiction and dwelt on
its scope.
Whether a claim of executive privilege is valid depends on the ground invoked to justify it and
the context in which it is made.21 In the present case, the ground for respondents’ claim of
privilege is set forth in their Comment, viz:
x x x The categories of information that may be considered privileged includes matters of
diplomatic character and under negotiation and review. In this case, the privileged character
of the diplomatic negotiations has been categorically invoked and clearly explained by
respondents particularly respondent DTI Senior Undersecretary.
The documents on the proposed JPEPA as well as the text which is subject to negotiations and
legal review by the parties fall under the exceptions to the right of access to information on
matters of public concern and policy of public disclosure. They come within the coverage of
executive privilege. At the time when the Committee was requesting for copies of such
documents, the negotiations were ongoing as they are still now and the text of the proposed
JPEPA is still uncertain and subject to change. Considering the status and nature of such
documents then and now, these are evidently covered by executive privilege consistent with
existing legal provisions and settled jurisprudence.
Practical and strategic considerations likewise counsel against the disclosure of the "rolling
texts" which may undergo radical change or portions of which may be totally abandoned.
Furthermore, the negotiations of the representatives of the Philippines as well as of Japan
must be allowed to explore alternatives in the course of the negotiations in the same
manner as judicial deliberations and working drafts of opinions are accorded strict
confidentiality.22 (Emphasis and underscoring supplied)
The ground relied upon by respondents is thus not simply that the information sought
involves a diplomatic matter, but that it pertains to diplomatic negotiations then in progress.
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In
discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that
"information on inter-government exchanges prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for the sake of national interest."23 Even
earlier, the same privilege was upheld in People’s Movement for Press Freedom (PMPF) v.
Manglapus24 wherein the Court discussed the reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s
representatives on the state of the then on-going negotiations of the RP-US Military Bases
Agreement.25 The Court denied the petition, stressing that "secrecy of negotiations with
foreign countries is not violative of the constitutional provisions of freedom of speech or of
the press nor of the freedom of access to information." The Resolution went on to state,
thus:
The nature of diplomacy requires centralization of authority and expedition of decision
which are inherent in executive action. Another essential characteristic of diplomacy is its
confidential nature. Although much has been said about "open" and "secret" diplomacy, with
disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed
and justified the practice. In the words of Mr. Stimson:
"A complicated negotiation . . . cannot be carried through without many, many private talks
and discussion, man to man; many tentative suggestions and proposals. Delegates from
other countries come and tell you in confidence of their troubles at home and of their
differences with other countries and with other delegates; they tell you of what they would
do under certain circumstances and would not do under other circumstances. . . If these
reports . . . should become public . . . who would ever trust American Delegations in
another conference? (United States Department of State, Press Releases, June 7, 1930, pp.
282-284.)."
xxxx
There is frequent criticism of the secrecy in which negotiation with foreign powers on
nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of
democracy. As expressed by one writer, "It can be said that there is no more rigid system of
silence anywhere in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lippincott
Co., 1938) President Wilson in starting his efforts for the conclusion of the World War
declared that we must have "open covenants, openly arrived at." He quickly abandoned his
thought.
No one who has studied the question believes that such a method of publicity is possible. In
the moment that negotiations are started, pressure groups attempt to "muscle in." An ill-
timed speech by one of the parties or a frank declaration of the concession which are
exacted or offered on both sides would quickly lead to widespread propaganda to block the
negotiations. After a treaty has been drafted and its terms are fully published, there is
ample opportunity for discussion before it is approved. (The New American Government and
Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export
Corp.26 that the President is the sole organ of the nation in its negotiations with foreign
countries, viz:
"x x x In this vast external realm, with its important, complicated, delicate and manifold
problems, the President alone has the power to speak or listen as a representative of the
nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates.
Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to
invade it. As Marshall said in his great argument of March 7, 1800, in the House of
Representatives, "The President is the sole organ of the nation in its external relations, and
its sole representative with foreign nations." Annals, 6th Cong., col. 613. . . (Emphasis
supplied; underscoring in the original)
Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of
the JPEPA may not be kept perpetually confidential – since there should be "ample
opportunity for discussion before [a treaty] is approved" – the offers exchanged by the
parties during the negotiations continue to be privileged even after the JPEPA is published. It
is reasonable to conclude that the Japanese representatives submitted their offers with the
understanding that "historic confidentiality"27 would govern the same. Disclosing these offers
could impair the ability of the Philippines to deal not only with Japan but with other foreign
governments in future negotiations.
A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny
would discourage future Philippine representatives from frankly expressing their views during
negotiations. While, on first impression, it appears wise to deter Philippine representatives
from entering into compromises, it bears noting that treaty negotiations, or any negotiation
for that matter, normally involve a process of quid pro quo, and oftentimes negotiators have
to be willing to grant concessions in an area of lesser importance in order to obtain more
favorable terms in an area of greater national interest. Apropos are the following
observations of Benjamin S. Duval, Jr.:
59
x x x [T]hose involved in the practice of negotiations appear to be in agreement that publicity
leads to "grandstanding," tends to freeze negotiating positions, and inhibits the give-and-take
essential to successful negotiation. As Sissela Bok points out, if "negotiators have more to
gain from being approved by their own sides than by making a reasoned agreement with
competitors or adversaries, then they are inclined to 'play to the gallery . . .'' In fact, the
public reaction may leave them little option. It would be a brave, or foolish, Arab leader who
expressed publicly a willingness for peace with Israel that did not involve the return of the
entire West Bank, or Israeli leader who stated publicly a willingness to remove Israel's existing
settlements from Judea and Samaria in return for peace.28 (Emphasis supplied)
Indeed, by hampering the ability of our representatives to compromise, we may be
jeopardizing higher national goals for the sake of securing less critical ones.
Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA
negotiations constituting no exception. It bears emphasis, however, that such privilege is only
presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged
does not mean that it will be considered privileged in all instances. Only after a consideration
of the context in which the claim is made may it be determined if there is a public interest
that calls for the disclosure of the desired information, strong enough to overcome its
traditionally privileged status.
Whether petitioners have established the presence of such a public interest shall be discussed
later. For now, the Court shall first pass upon the arguments raised by petitioners against the
application of PMPF v. Manglapus to the present case.
Arguments proffered by petitioners against the application of PMPF v. Manglapus
Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present case,
there being substantial factual distinctions between the two.
To petitioners, the first and most fundamental distinction lies in the nature of the treaty
involved. They stress that PMPF v. Manglapus involved the Military Bases Agreement which
necessarily pertained to matters affecting national security; whereas the present case
involves an economic treaty that seeks to regulate trade and commerce between the
Philippines and Japan, matters which, unlike those covered by the Military Bases Agreement,
are not so vital to national security to disallow their disclosure.
Petitioners’ argument betrays a faulty assumption that information, to be considered
privileged, must involve national security. The recognition in Senate v. Ermita29 that executive
privilege has encompassed claims of varying kinds, such that it may even be more accurate to
speak of "executive privileges," cautions against such generalization.
While there certainly are privileges grounded on the necessity of safeguarding national
security such as those involving military secrets, not all are founded thereon. One example is
the "informer’s privilege," or the privilege of the Government not to disclose the identity of a
person or persons who furnish information of violations of law to officers charged with the
enforcement of that law.30 The suspect involved need not be so notorious as to be a threat to
national security for this privilege to apply in any given instance. Otherwise, the privilege
would be inapplicable in all but the most high-profile cases, in which case not only would this
be contrary to long-standing practice. It would also be highly prejudicial to law enforcement
efforts in general.
Also illustrative is the privilege accorded to presidential communications, which are presumed
privileged without distinguishing between those which involve matters of national security
and those which do not, the rationale for the privilege being that
x x x [a] frank exchange of exploratory ideas and assessments, free from the glare of publicity
and pressure by interested parties, is essential to protect the independence of decision-
making of those tasked to exercise Presidential, Legislative and Judicial power. x x x31
(Emphasis supplied)
In the same way that the privilege for judicial deliberations does not depend on the nature of
the case deliberated upon, so presidential communications are privileged whether they
involve matters of national security.
It bears emphasis, however, that the privilege accorded to presidential communications is not
absolute, one significant qualification being that "the Executive cannot, any more than the
other branches of government, invoke a general confidentiality privilege to shield its officials
and employees from investigations by the proper governmental institutions into possible
criminal wrongdoing." 32 This qualification applies whether the privilege is being invoked in
the context of a judicial trial or a congressional investigation conducted in aid of legislation.33
Closely related to the "presidential communications" privilege is the deliberative process
privilege recognized in the United States. As discussed by the U.S. Supreme Court in NLRB v.
Sears, Roebuck & Co,34 deliberative process covers documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated. Notably, the privileged status of such documents rests,
not on the need to protect national security but, on the "obvious realization that officials will
not communicate candidly among themselves if each remark is a potential item of discovery
and front page news," the objective of the privilege being to enhance the quality of agency
decisionshttp://web2.westlaw.com/find/default.wl?rs=WLW7.07&serialnum=1975129772&f
n=_top&sv=Split&tc=-1&findtype=Y&tf=-1&db=708&utid=%7b532A6DBF-9B4C-4A5A-8F16-
C20D9BAA36C4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=WLIGeneralSubscription. 35
The diplomatic negotiations privilege bears a close resemblance to the deliberative process
and presidential communications privilege. It may be readily perceived that the rationale for
the confidential character of diplomatic negotiations, deliberative process, and presidential
communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus36 shows that the privilege for diplomatic
negotiations is meant to encourage a frank exchange of exploratory ideas between the
negotiating parties by shielding such negotiations from public view. Similar to the privilege for
presidential communications, the diplomatic negotiations privilege seeks, through the same
means, to protect the independence in decision-making of the President, particularly in its
capacity as "the sole organ of the nation in its external relations, and its sole representative
with foreign nations." And, as with the deliberative process privilege, the privilege accorded
to diplomatic negotiations arises, not on account of the content of the information per se, but
because the information is part of a process of deliberation which, in pursuit of the public
interest, must be presumed confidential.
The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v.
Department of the Treasury37 enlightens on the close relation between diplomatic
negotiations and deliberative process privileges. The plaintiffs in that case sought access to
notes taken by a member of the U.S. negotiating team during the U.S.-French tax treaty
negotiations. Among the points noted therein were the issues to be discussed, positions
which the French and U.S. teams took on some points, the draft language agreed on, and
articles which needed to be amended. Upholding the confidentiality of those notes, Judge
Green ruled, thus:
60
Negotiations between two countries to draft a treaty represent a true example of a
deliberative process. Much give-and-take must occur for the countries to reach an accord. A
description of the negotiations at any one point would not provide an onlooker a summary of
the discussions which could later be relied on as law. It would not be "working law" as the
points discussed and positions agreed on would be subject to change at any date until the
treaty was signed by the President and ratified by the Senate.
The policies behind the deliberative process privilege support non-disclosure. Much harm
could accrue to the negotiations process if these notes were revealed. Exposure of the pre-
agreement positions of the French negotiators might well offend foreign governments and
would lead to less candor by the U. S. in recording the events of the negotiations process.
As several months pass in between negotiations, this lack of record could hinder readily the
U. S. negotiating team. Further disclosure would reveal prematurely adopted policies. If these
policies should be changed, public confusion would result easily.
Finally, releasing these snapshot views of the negotiations would be comparable to
releasing drafts of the treaty, particularly when the notes state the tentative provisions and
language agreed on. As drafts of regulations typically are protected by the deliberative
process privilege, Arthur Andersen & Co. v. Internal Revenue Service, C.A. No. 80-705
(D.C.Cir., May 21, 1982), drafts of treaties should be accorded the same protection.
(Emphasis and underscoring supplied)
Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence
from the privileged character of the deliberative process.
The Court is not unaware that in Center for International Environmental Law (CIEL), et al. v.
Office of U.S. Trade Representative38 – where the plaintiffs sought information relating to the
just-completed negotiation of a United States-Chile Free Trade Agreement – the same district
court, this time under Judge Friedman, consciously refrained from applying the doctrine in
Fulbright and ordered the disclosure of the information being sought.
Since the factual milieu in CIEL seemed to call for the straight application of the doctrine in
Fulbright, a discussion of why the district court did not apply the same would help illumine
this Court’s own reasons for deciding the present case along the lines of Fulbright.
In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding
information, namely, Exemption 5 of the Freedom of Information Act (FOIA).39 In order to
qualify for protection under Exemption 5, a document must satisfy two conditions: (1) it must
be either inter-agency or intra-agency in nature, and (2) it must be both pre-decisional and
part of the agency's deliberative or decision-making process.40
Judge Friedman, in CIEL, himself cognizant of a "superficial similarity of context" between the
two cases, based his decision on what he perceived to be a significant distinction: he found
the negotiator’s notes that were sought in Fulbright to be "clearly internal," whereas the
documents being sought in CIEL were those produced by or exchanged with an outside party,
i.e. Chile. The documents subject of Fulbright being clearly internal in character, the question
of disclosure therein turned not on the threshold requirement of Exemption 5 that the
document be inter-agency, but on whether the documents were part of the agency's pre-
decisional deliberative process. On this basis, Judge Friedman found that "Judge Green's
discussion [in Fulbright] of the harm that could result from disclosure therefore is irrelevant,
since the documents at issue [in CIEL] are not inter-agency, and the Court does not reach
the question of deliberative process." (Emphasis supplied)
In fine, Fulbright was not overturned. The court in CIEL merely found the same to be
irrelevant in light of its distinct factual setting. Whether this conclusion was valid – a question
on which this Court would not pass – the ruling in Fulbright that "[n]egotiations between two
countries to draft a treaty represent a true example of a deliberative process" was left
standing, since the CIEL court explicitly stated that it did not reach the question of
deliberative process.
Going back to the present case, the Court recognizes that the information sought by
petitioners includes documents produced and communicated by a party external to the
Philippine government, namely, the Japanese representatives in the JPEPA negotiations, and
to that extent this case is closer to the factual circumstances of CIEL than those of Fulbright.
Nonetheless, for reasons which shall be discussed shortly, this Court echoes the principle
articulated in Fulbright that the public policy underlying the deliberative process privilege
requires that diplomatic negotiations should also be accorded privileged status, even if the
documents subject of the present case cannot be described as purely internal in character.
It need not be stressed that in CIEL, the court ordered the disclosure of information based on
its finding that the first requirement of FOIA Exemption 5 – that the documents be inter-
agency – was not met. In determining whether the government may validly refuse disclosure
of the exchanges between the U.S. and Chile, it necessarily had to deal with this requirement,
it being laid down by a statute binding on them.
In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory
requirement similar to FOIA Exemption 5 in particular. Hence, Philippine courts, when
assessing a claim of privilege for diplomatic negotiations, are more free to focus directly on
the issue of whether the privilege being claimed is indeed supported by public policy, without
having to consider – as the CIEL court did – if these negotiations fulfill a formal requirement of
being "inter-agency." Important though that requirement may be in the context of domestic
negotiations, it need not be accorded the same significance when dealing with international
negotiations.
There being a public policy supporting a privilege for diplomatic negotiations for the reasons
explained above, the Court sees no reason to modify, much less abandon, the doctrine in
PMPF v. Manglapus.
A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus from
the present case is the fact that the petitioners therein consisted entirely of members of the
mass media, while petitioners in the present case include members of the House of
Representatives who invoke their right to information not just as citizens but as members of
Congress.
Petitioners thus conclude that the present case involves the right of members of Congress to
demand information on negotiations of international trade agreements from the Executive
branch, a matter which was not raised in PMPF v. Manglapus.
While indeed the petitioners in PMPF v. Manglapus consisted only of members of the mass
media, it would be incorrect to claim that the doctrine laid down therein has no bearing on a
controversy such as the present, where the demand for information has come from members
of Congress, not only from private citizens.
The privileged character accorded to diplomatic negotiations does not ipso facto lose all
force and effect simply because the same privilege is now being claimed under different
circumstances. The probability of the claim succeeding in the new context might differ, but to
say that the privilege, as such, has no validity at all in that context is another matter
altogether.
The Court’s statement in Senate v. Ermita that "presidential refusals to furnish information
may be actuated by any of at least three distinct kinds of considerations [state secrets
61
privilege, informer’s privilege, and a generic privilege for internal deliberations], and may be
asserted, with differing degrees of success, in the context of either judicial or legislative
investigations,"41 implies that a privilege, once recognized, may be invoked under different
procedural settings. That this principle holds true particularly with respect to diplomatic
negotiations may be inferred from PMPF v. Manglapus itself, where the Court held that it is
the President alone who negotiates treaties, and not even the Senate or the House of
Representatives, unless asked, may intrude upon that process.
Clearly, the privilege for diplomatic negotiations may be invoked not only against citizens’
demands for information, but also in the context of legislative investigations.
Hence, the recognition granted in PMPF v. Manglapus to the privileged character of
diplomatic negotiations cannot be considered irrelevant in resolving the present case, the
contextual differences between the two cases notwithstanding.
As third and last point raised against the application of PMPF v. Manglapus in this case,
petitioners proffer that "the socio-political and historical contexts of the two cases are worlds
apart." They claim that the constitutional traditions and concepts prevailing at the time PMPF
v. Manglapus came about, particularly the school of thought that the requirements of foreign
policy and the ideals of transparency were incompatible with each other or the
"incompatibility hypothesis," while valid when international relations were still governed by
power, politics and wars, are no longer so in this age of international cooperation.42
Without delving into petitioners’ assertions respecting the "incompatibility hypothesis," the
Court notes that the ruling in PMPF v. Manglapus is grounded more on the nature of treaty
negotiations as such than on a particular socio-political school of thought. If petitioners are
suggesting that the nature of treaty negotiations have so changed that "[a]n ill-timed speech
by one of the parties or a frank declaration of the concession which are exacted or offered on
both sides" no longer "lead[s] to widespread propaganda to block the negotiations," or that
parties in treaty negotiations no longer expect their communications to be governed by
historic confidentiality, the burden is on them to substantiate the same. This petitioners failed
to discharge.
Whether the privilege applies only at certain stages of the negotiation process
Petitioners admit that "diplomatic negotiations on the JPEPA are entitled to a reasonable
amount of confidentiality so as not to jeopardize the diplomatic process." They argue,
however, that the same is privileged "only at certain stages of the negotiating process, after
which such information must necessarily be revealed to the public."43 They add that the duty
to disclose this information was vested in the government when the negotiations moved from
the formulation and exploratory stage to the firming up of definite propositions or official
recommendations, citing Chavez v. PCGG44 and Chavez v. PEA.45
The following statement in Chavez v. PEA, however, suffices to show that the doctrine in both
that case and Chavez v. PCGG with regard to the duty to disclose "definite propositions of the
government" does not apply to diplomatic negotiations:
We rule, therefore, that the constitutional right to information includes official information
on on-going negotiations before a final contract. The information, however, must constitute
definite propositions by the government and should not cover recognized exceptions like
privileged information, military and diplomatic secrets and similar matters affecting
national security and public order. x x x46 (Emphasis and underscoring supplied)
It follows from this ruling that even definite propositions of the government may not be
disclosed if they fall under "recognized exceptions." The privilege for diplomatic negotiations
is clearly among the recognized exceptions, for the footnote to the immediately quoted ruling
cites PMPF v. Manglapus itself as an authority.
Whether there is sufficient public interest to overcome the claim of privilege
It being established that diplomatic negotiations enjoy a presumptive privilege against
disclosure, even against the demands of members of Congress for information, the Court shall
now determine whether petitioners have shown the existence of a public interest sufficient to
overcome the privilege in this instance.
To clarify, there are at least two kinds of public interest that must be taken into account. One
is the presumed public interest in favor of keeping the subject information confidential,
which is the reason for the privilege in the first place, and the other is the public interest in
favor of disclosure, the existence of which must be shown by the party asking for
information. 47
The criteria to be employed in determining whether there is a sufficient public interest in
favor of disclosure may be gathered from cases such as U.S. v. Nixon,48 Senate Select
Committee on Presidential Campaign Activities v. Nixon,49 and In re Sealed Case.50
U.S. v. Nixon, which involved a claim of the presidential communications privilege against the
subpoena duces tecum of a district court in a criminal case, emphasized the need to balance
such claim of privilege against the constitutional duty of courts to ensure a fair administration
of criminal justice.
x x x the allowance of the privilege to withhold evidence that is demonstrably relevant in a
criminal trial would cut deeply into the guarantee of due process of law and gravely impair
the basic function of the courts. A President’s acknowledged need for confidentiality in the
communications of his office is general in nature, whereas the constitutional need for
production of relevant evidence in a criminal proceeding is specific and central to the fair
adjudication of a particular criminal case in the administration of justice. Without access to
specific facts a criminal prosecution may be totally frustrated. The President’s broad interest
in confidentiality of communications will not be vitiated by disclosure of a limited number of
conversations preliminarily shown to have some bearing on the pending criminal cases.
(Emphasis, italics and underscoring supplied)
Similarly, Senate Select Committee v. Nixon,51 which involved a claim of the presidential
communications privilege against the subpoena duces tecum of a Senate committee, spoke of
the need to balance such claim with the duty of Congress to perform its legislative functions.
The staged decisional structure established in Nixon v. Sirica was designed to ensure that the
President and those upon whom he directly relies in the performance of his duties could
continue to work under a general assurance that their deliberations would remain
confidential. So long as the presumption that the public interest favors confidentiality can
be defeated only by a strong showing of need by another institution of government- a
showing that the responsibilities of that institution cannot responsibly be fulfilled without
access to records of the President's deliberations- we believed in Nixon v. Sirica, and
continue to believe, that the effective functioning of the presidential office will not be
impaired. x x x
xxxx
The sufficiency of the Committee's showing of need has come to depend, therefore, entirely
on whether the subpoenaed materials are critical to the performance of its legislative
functions. x x x (Emphasis and underscoring supplied)
62
In re Sealed Case52 involved a claim of the deliberative process and presidential
communications privileges against a subpoena duces tecum of a grand jury. On the claim of
deliberative process privilege, the court stated:
The deliberative process privilege is a qualified privilege and can be overcome by a sufficient
showing of need. This need determination is to be made flexibly on a case-by-case, ad hoc
basis. "[E]ach time [the deliberative process privilege] is asserted the district court must
undertake a fresh balancing of the competing interests," taking into account factors such as
"the relevance of the evidence," "the availability of other evidence," "the seriousness of
the litigation," "the role of the government," and the "possibility of future timidity by
government employees. x x x (Emphasis, italics and underscoring supplied)
Petitioners have failed to present the strong and "sufficient showing of need" referred to in
the immediately cited cases. The arguments they proffer to establish their entitlement to the
subject documents fall short of this standard.
Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA
negotiation process effectively results in the bargaining away of their economic and property
rights without their knowledge and participation, in violation of the due process clause of the
Constitution. They claim, moreover, that it is essential for the people to have access to the
initial offers exchanged during the negotiations since only through such disclosure can their
constitutional right to effectively participate in decision-making be brought to life in the
context of international trade agreements.
Whether it can accurately be said that the Filipino people were not involved in the JPEPA
negotiations is a question of fact which this Court need not resolve. Suffice it to state that
respondents had presented documents purporting to show that public consultations were
conducted on the JPEPA. Parenthetically, petitioners consider these "alleged consultations" as
"woefully selective and inadequate."53
AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine and
Japanese representatives have not been disclosed to the public, the Court shall pass upon the
issue of whether access to the documents bearing on them is, as petitioners claim, essential
to their right to participate in decision-making.
The case for petitioners has, of course, been immensely weakened by the disclosure of the
full text of the JPEPA to the public since September 11, 2006, even as it is still being
deliberated upon by the Senate and, therefore, not yet binding on the Philippines. Were the
Senate to concur with the validity of the JPEPA at this moment, there has already been, in the
words of PMPF v. Manglapus, "ample opportunity for discussion before [the treaty] is
approved."
The text of the JPEPA having been published, petitioners have failed to convince this Court
that they will not be able to meaningfully exercise their right to participate in decision-making
unless the initial offers are also published.
It is of public knowledge that various non-government sectors and private citizens have
already publicly expressed their views on the JPEPA, their comments not being limited to
general observations thereon but on its specific provisions. Numerous articles and statements
critical of the JPEPA have been posted on the Internet.54 Given these developments, there is
no basis for petitioners’ claim that access to the Philippine and Japanese offers is essential to
the exercise of their right to participate in decision-making.
Petitioner-members of the House of Representatives additionally anchor their claim to have a
right to the subject documents on the basis of Congress’ inherent power to regulate
commerce, be it domestic or international. They allege that Congress cannot meaningfully
exercise the power to regulate international trade agreements such as the JPEPA without
being given copies of the initial offers exchanged during the negotiations thereof. In the same
vein, they argue that the President cannot exclude Congress from the JPEPA negotiations
since whatever power and authority the President has to negotiate international trade
agreements is derived only by delegation of Congress, pursuant to Article VI, Section 28(2) of
the Constitution and Sections 401 and 402 of Presidential Decree No. 1464.55
The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate
treaties and international agreements, but the power to fix tariff rates, import and export
quotas, and other taxes. Thus it provides:
(2) The Congress may, by law, authorize the President to fix within specified limits, and
subject to such limitations and restrictions as it may impose, tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the
national development program of the Government.
As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article
VII – the article on the Executive Department – which states:
No treaty or international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate.
The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the
President, being the sole organ of the nation in its external relations, was echoed in BAYAN v.
Executive Secretary56 where the Court held:
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State,
is the sole organ and authority in the external affairs of the country. In many ways, the
President is the chief architect of the nation's foreign policy; his "dominance in the field of
foreign relations is (then) conceded." Wielding vast powers and influence, his conduct in the
external affairs of the nation, as Jefferson describes, is "executive altogether."
As regards the power to enter into treaties or international agreements, the Constitution
vests the same in the President, subject only to the concurrence of at least two thirds vote
of all the members of the Senate. In this light, the negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts which pertain solely to the President, in the
lawful exercise of his vast executive and diplomatic powers granted him no less than by the
fundamental law itself. Into the field of negotiation the Senate cannot intrude, and
Congress itself is powerless to invade it. x x x (Italics in the original; emphasis and
underscoring supplied)
The same doctrine was reiterated even more recently in Pimentel v. Executive Secretary57
where the Court ruled:
In our system of government, the President, being the head of state, is regarded as the sole
organ and authority in external relations and is the country's sole representative with
foreign nations. As the chief architect of foreign policy, the President acts as the country's
mouthpiece with respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold recognition,
maintain diplomatic relations, enter into treaties, and otherwise transact the business of
foreign relations. In the realm of treaty-making, the President has the sole authority to
negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties,
the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all
the members of the Senate for the validity of the treaty entered into by him. x x x (Emphasis
and underscoring supplied)
63
While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is
exercised by the President only by delegation of that body, it has long been recognized that
the power to enter into treaties is vested directly and exclusively in the President, subject
only to the concurrence of at least two-thirds of all the Members of the Senate for the validity
of the treaty. In this light, the authority of the President to enter into trade agreements with
foreign nations provided under P.D. 146458 may be interpreted as an acknowledgment of a
power already inherent in its office. It may not be used as basis to hold the President or its
representatives accountable to Congress for the conduct of treaty negotiations.
This is not to say, of course, that the President’s power to enter into treaties is unlimited but
for the requirement of Senate concurrence, since the President must still ensure that all
treaties will substantively conform to all the relevant provisions of the Constitution.
It follows from the above discussion that Congress, while possessing vast legislative powers,
may not interfere in the field of treaty negotiations. While Article VII, Section 21 provides for
Senate concurrence, such pertains only to the validity of the treaty under consideration, not
to the conduct of negotiations attendant to its conclusion. Moreover, it is not even Congress
as a whole that has been given the authority to concur as a means of checking the treaty-
making power of the President, but only the Senate.
Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-
members of the House of Representatives fail to present a "sufficient showing of need" that
the information sought is critical to the performance of the functions of Congress, functions
that do not include treaty-negotiation.
Respondents’ alleged failure to timely claim executive privilege
On respondents’ invocation of executive privilege, petitioners find the same defective, not
having been done seasonably as it was raised only in their Comment to the present petition
and not during the House Committee hearings.
That respondents invoked the privilege for the first time only in their Comment to the present
petition does not mean that the claim of privilege should not be credited. Petitioners’ position
presupposes that an assertion of the privilege should have been made during the House
Committee investigations, failing which respondents are deemed to have waived it.
When the House Committee and petitioner-Congressman Aguja requested respondents for
copies of the documents subject of this case, respondents replied that the negotiations were
still on-going and that the draft of the JPEPA would be released once the text thereof is
settled and complete. There was no intimation that the requested copies are confidential in
nature by reason of public policy. The response may not thus be deemed a claim of privilege
by the standards of Senate v. Ermita, which recognizes as claims of privilege only those which
are accompanied by precise and certain reasons for preserving the confidentiality of the
information being sought.
Respondents’ failure to claim the privilege during the House Committee hearings may not,
however, be construed as a waiver thereof by the Executive branch. As the immediately
preceding paragraph indicates, what respondents received from the House Committee and
petitioner-Congressman Aguja were mere requests for information. And as priorly stated, the
House Committee itself refrained from pursuing its earlier resolution to issue a subpoena
duces tecum on account of then Speaker Jose de Venecia’s alleged request to Committee
Chairperson Congressman Teves to hold the same in abeyance.
While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to
executive officials – out of respect for their office – until resort to it becomes necessary, the
fact remains that such requests are not a compulsory process. Being mere requests, they do
not strictly call for an assertion of executive privilege.
The privilege is an exemption to Congress’ power of inquiry.59 So long as Congress itself finds
no cause to enforce such power, there is no strict necessity to assert the privilege. In this
light, respondents’ failure to invoke the privilege during the House Committee investigations
did not amount to a waiver thereof.
The Court observes, however, that the claim of privilege appearing in respondents’ Comment
to this petition fails to satisfy in full the requirement laid down in Senate v. Ermita that the
claim should be invoked by the President or through the Executive Secretary "by order of the
President."60 Respondents’ claim of privilege is being sustained, however, its flaw
notwithstanding, because of circumstances peculiar to the case.
The assertion of executive privilege by the Executive Secretary, who is one of the respondents
herein, without him adding the phrase "by order of the President," shall be considered as
partially complying with the requirement laid down in Senate v. Ermita. The requirement that
the phrase "by order of the President" should accompany the Executive Secretary’s claim of
privilege is a new rule laid down for the first time in Senate v. Ermita, which was not yet final
and executory at the time respondents filed their Comment to the petition.61 A strict
application of this requirement would thus be unwarranted in this case.
Response to the Dissenting Opinion of the Chief Justice
We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our
people’s right to information against any abuse of executive privilege. It is a zeal that We fully
share.
The Court, however, in its endeavor to guard against the abuse of executive privilege, should
be careful not to veer towards the opposite extreme, to the point that it would strike down as
invalid even a legitimate exercise thereof.
We respond only to the salient arguments of the Dissenting Opinion which have not yet been
sufficiently addressed above.
1. After its historical discussion on the allocation of power over international trade
agreements in the United States, the dissent concludes that "it will be turning somersaults
with history to contend that the President is the sole organ for external relations" in that
jurisdiction. With regard to this opinion, We make only the following observations:
There is, at least, a core meaning of the phrase "sole organ of the nation in its external
relations" which is not being disputed, namely, that the power to directly negotiate treaties
and international agreements is vested by our Constitution only in the Executive. Thus, the
dissent states that "Congress has the power to regulate commerce with foreign nations but
does not have the power to negotiate international agreements directly."62
What is disputed is how this principle applies to the case at bar.
The dissent opines that petitioner-members of the House of Representatives, by asking for
the subject JPEPA documents, are not seeking to directly participate in the negotiations of the
JPEPA, hence, they cannot be prevented from gaining access to these documents.
On the other hand, We hold that this is one occasion where the following ruling in Agan v.
PIATCO63 – and in other cases both before and since – should be applied:
This Court has long and consistently adhered to the legal maxim that those that cannot be
done directly cannot be done indirectly. To declare the PIATCO contracts valid despite the
clear statutory prohibition against a direct government guarantee would not only make a
mockery of what the BOT Law seeks to prevent -- which is to expose the government to the
risk of incurring a monetary obligation resulting from a contract of loan between the project
64
proponent and its lenders and to which the Government is not a party to -- but would also
render the BOT Law useless for what it seeks to achieve –- to make use of the resources of the
private sector in the "financing, operation and maintenance of infrastructure and
development projects" which are necessary for national growth and development but which
the government, unfortunately, could ill-afford to finance at this point in time.64
Similarly, while herein petitioners-members of the House of Representatives may not have
been aiming to participate in the negotiations directly, opening the JPEPA negotiations to
their scrutiny – even to the point of giving them access to the offers exchanged between the
Japanese and Philippine delegations – would have made a mockery of what the Constitution
sought to prevent and rendered it useless for what it sought to achieve when it vested the
power of direct negotiation solely with the President.
What the U.S. Constitution sought to prevent and aimed to achieve in defining the treaty-
making power of the President, which our Constitution similarly defines, may be gathered
from Hamilton’s explanation of why the U.S. Constitution excludes the House of
Representatives from the treaty-making process:
x x x The fluctuating, and taking its future increase into account, the multitudinous
composition of that body, forbid us to expect in it those qualities which are essential to the
proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics;
a steady and systematic adherence to the same views; a nice and uniform sensibility to
national character, decision, secrecy and dispatch; are incompatible with a body so variable
and so numerous. The very complication of the business by introducing a necessity of the
concurrence of so many different bodies, would of itself afford a solid objection. The greater
frequency of the calls upon the house of representatives, and the greater length of time
which it would often be necessary to keep them together when convened, to obtain their
sanction in the progressive stages of a treaty, would be source of so great inconvenience and
expense, as alone ought to condemn the project.65
These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution,
unlike that of the U.S., does not even grant the Senate the power to advise the Executive in
the making of treaties, but only vests in that body the power to concur in the validity of the
treaty after negotiations have been concluded.66 Much less, therefore, should it be inferred
that the House of Representatives has this power.
Since allowing petitioner-members of the House of Representatives access to the subject
JPEPA documents would set a precedent for future negotiations, leading to the contravention
of the public interests articulated above which the Constitution sought to protect, the subject
documents should not be disclosed.
2. The dissent also asserts that respondents can no longer claim the diplomatic secrets
privilege over the subject JPEPA documents now that negotiations have been concluded,
since their reasons for nondisclosure cited in the June 23, 2005 letter of Sec. Ermita, and later
in their Comment, necessarily apply only for as long as the negotiations were still pending;
In their Comment, respondents contend that "the negotiations of the representatives of the
Philippines as well as of Japan must be allowed to explore alternatives in the course of the
negotiations in the same manner as judicial deliberations and working drafts of opinions are
accorded strict confidentiality." That respondents liken the documents involved in the JPEPA
negotiations to judicial deliberations and working drafts of opinions evinces, by itself, that
they were claiming confidentiality not only until, but even after, the conclusion of the
negotiations.
Judicial deliberations do not lose their confidential character once a decision has been
promulgated by the courts. The same holds true with respect to working drafts of opinions,
which are comparable to intra-agency recommendations. Such intra-agency
recommendations are privileged even after the position under consideration by the agency
has developed into a definite proposition, hence, the rule in this jurisdiction that agencies
have the duty to disclose only definite propositions, and not the inter-agency and intra-
agency communications during the stage when common assertions are still being
formulated.67
3. The dissent claims that petitioner-members of the House of Representatives have
sufficiently shown their need for the same documents to overcome the privilege. Again, We
disagree.
The House Committee that initiated the investigations on the JPEPA did not pursue its earlier
intention to subpoena the documents. This strongly undermines the assertion that access to
the same documents by the House Committee is critical to the performance of its legislative
functions. If the documents were indeed critical, the House Committee should have, at the
very least, issued a subpoena duces tecum or, like what the Senate did in Senate v. Ermita,
filed the present petition as a legislative body, rather than leaving it to the discretion of
individual Congressmen whether to pursue an action or not. Such acts would have served as
strong indicia that Congress itself finds the subject information to be critical to its legislative
functions.
Further, given that respondents have claimed executive privilege, petitioner-members of the
House of Representatives should have, at least, shown how its lack of access to the Philippine
and Japanese offers would hinder the intelligent crafting of legislation. Mere assertion that
the JPEPA covers a subject matter over which Congress has the power to legislate would not
suffice. As Senate Select Committee v. Nixon68 held, the showing required to overcome the
presumption favoring confidentiality turns, not only on the nature and appropriateness of the
function in the performance of which the material was sought, but also the degree to which
the material was necessary to its fulfillment. This petitioners failed to do.
Furthermore, from the time the final text of the JPEPA including its annexes and attachments
was published, petitioner-members of the House of Representatives have been free to use it
for any legislative purpose they may see fit. Since such publication, petitioners’ need, if any,
specifically for the Philippine and Japanese offers leading to the final version of the JPEPA, has
become even less apparent.
In asserting that the balance in this instance tilts in favor of disclosing the JPEPA documents,
the dissent contends that the Executive has failed to show how disclosing them after the
conclusion of negotiations would impair the performance of its functions. The contention,
with due respect, misplaces the onus probandi. While, in keeping with the general
presumption of transparency, the burden is initially on the Executive to provide precise and
certain reasons for upholding its claim of privilege, once the Executive is able to show that the
documents being sought are covered by a recognized privilege, the burden shifts to the party
seeking information to overcome the privilege by a strong showing of need.
When it was thus established that the JPEPA documents are covered by the privilege for
diplomatic negotiations pursuant to PMPF v. Manglapus, the presumption arose that their
disclosure would impair the performance of executive functions. It was then incumbent on
petitioner- requesting parties to show that they have a strong need for the information
sufficient to overcome the privilege. They have not, however.
65
4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming the
privilege "by order of the President," the same may not be strictly applied to the privilege
claim subject of this case.
When the Court in Senate v. Ermita limited the power of invoking the privilege to the
President alone, it was laying down a new rule for which there is no counterpart even in the
United States from which the concept of executive privilege was adopted. As held in the 2004
case of Judicial Watch, Inc. v. Department of Justice,69 citing In re Sealed Case,70 "the issue of
whether a President must personally invoke the [presidential communications] privilege
remains an open question." U.S. v. Reynolds,71 on the other hand, held that "[t]here must be a
formal claim of privilege, lodged by the head of the department which has control over the
matter, after actual personal consideration by that officer."
The rule was thus laid down by this Court, not in adherence to any established precedent, but
with the aim of preventing the abuse of the privilege in light of its highly exceptional nature.
The Court’s recognition that the Executive Secretary also bears the power to invoke the
privilege, provided he does so "by order of the President," is meant to avoid laying down too
rigid a rule, the Court being aware that it was laying down a new restriction on executive
privilege. It is with the same spirit that the Court should not be overly strict with applying the
same rule in this peculiar instance, where the claim of executive privilege occurred before the
judgment in Senate v. Ermita became final.
5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent
implies that the Court therein erred in citing US v. Curtiss Wright72 and the book entitled The
New American Government and Its Work73 since these authorities, so the dissent claims, may
not be used to calibrate the importance of the right to information in the Philippine setting.
The dissent argues that since Curtiss-Wright referred to a conflict between the executive and
legislative branches of government, the factual setting thereof was different from that of
PMPF v. Manglapus which involved a collision between governmental power over the
conduct of foreign affairs and the citizen’s right to information.
That the Court could freely cite Curtiss-Wright – a case that upholds the secrecy of diplomatic
negotiations against congressional demands for information – in the course of laying down a
ruling on the public right to information only serves to underscore the principle mentioned
earlier that the privileged character accorded to diplomatic negotiations does not ipso facto
lose all force and effect simply because the same privilege is now being claimed under
different circumstances.
PMPF v. Manglapus indeed involved a demand for information from private citizens and not
an executive-legislative conflict, but so did Chavez v. PEA74 which held that "the [public’s]
right to information . . . does not extend to matters recognized as privileged information
under the separation of powers." What counts as privileged information in an executive-
legislative conflict is thus also recognized as such in cases involving the public’s right to
information.
Chavez v. PCGG75 also involved the public’s right to information, yet the Court recognized as a
valid limitation to that right the same privileged information based on separation of powers –
closed-door Cabinet meetings, executive sessions of either house of Congress, and the
internal deliberations of the Supreme Court.
These cases show that the Court has always regarded claims of privilege, whether in the
context of an executive-legislative conflict or a citizen’s demand for information, as closely
intertwined, such that the principles applicable to one are also applicable to the other.
The reason is obvious. If the validity of claims of privilege were to be assessed by entirely
different criteria in each context, this may give rise to the absurd result where Congress
would be denied access to a particular information because of a claim of executive privilege,
but the general public would have access to the same information, the claim of privilege
notwithstanding.
Absurdity would be the ultimate result if, for instance, the Court adopts the "clear and
present danger" test for the assessment of claims of privilege against citizens’ demands for
information. If executive information, when demanded by a citizen, is privileged only when
there is a clear and present danger of a substantive evil that the State has a right to prevent,
it would be very difficult for the Executive to establish the validity of its claim in each
instance. In contrast, if the demand comes from Congress, the Executive merely has to show
that the information is covered by a recognized privilege in order to shift the burden on
Congress to present a strong showing of need. This would lead to a situation where it would
be more difficult for Congress to access executive information than it would be for private
citizens.
We maintain then that when the Executive has already shown that an information is covered
by executive privilege, the party demanding the information must present a "strong showing
of need," whether that party is Congress or a private citizen.
The rule that the same "showing of need" test applies in both these contexts, however,
should not be construed as a denial of the importance of analyzing the context in which an
executive privilege controversy may happen to be placed. Rather, it affirms it, for it means
that the specific need being shown by the party seeking information in every particular
instance is highly significant in determining whether to uphold a claim of privilege. This
"need" is, precisely, part of the context in light of which every claim of privilege should be
assessed.
Since, as demonstrated above, there are common principles that should be applied to
executive privilege controversies across different contexts, the Court in PMPF v. Manglapus
did not err when it cited the Curtiss-Wright case.
The claim that the book cited in PMPF v. Manglapus entitled The New American Government
and Its Work could not have taken into account the expanded statutory right to information
in the FOIA assumes that the observations in that book in support of the confidentiality of
treaty negotiations would be different had it been written after the FOIA. Such assumption is,
with due respect, at best, speculative.
As to the claim in the dissent that "[i]t is more doubtful if the same book be used to calibrate
the importance of the right of access to information in the Philippine setting considering its
elevation as a constitutional right," we submit that the elevation of such right as a
constitutional right did not set it free from the legitimate restrictions of executive privilege
which is itself constitutionally-based.76 Hence, the comments in that book which were cited in
PMPF v. Manglapus remain valid doctrine.
6. The dissent further asserts that the Court has never used "need" as a test to uphold or
allow inroads into rights guaranteed under the Constitution. With due respect, we assert
otherwise. The Court has done so before, albeit without using the term "need."
In executive privilege controversies, the requirement that parties present a "sufficient
showing of need" only means, in substance, that they should show a public interest in favor of
disclosure sufficient in degree to overcome the claim of privilege.77 Verily, the Court in such
cases engages in a balancing of interests. Such a balancing of interests is certainly not new in
66
constitutional adjudication involving fundamental rights. Secretary of Justice v. Lantion,78
which was cited in the dissent, applied just such a test.
Given that the dissent has clarified that it does not seek to apply the "clear and present
danger" test to the present controversy, but the balancing test, there seems to be no
substantial dispute between the position laid down in this ponencia and that reflected in the
dissent as to what test to apply. It would appear that the only disagreement is on the results
of applying that test in this instance.
The dissent, nonetheless, maintains that "it suffices that information is of public concern for it
to be covered by the right, regardless of the public’s need for the information," and that the
same would hold true even "if they simply want to know it because it interests them." As has
been stated earlier, however, there is no dispute that the information subject of this case is a
matter of public concern. The Court has earlier concluded that it is a matter of public concern,
not on the basis of any specific need shown by petitioners, but from the very nature of the
JPEPA as an international trade agreement.
However, when the Executive has – as in this case – invoked the privilege, and it has been
established that the subject information is indeed covered by the privilege being claimed, can
a party overcome the same by merely asserting that the information being demanded is a
matter of public concern, without any further showing required? Certainly not, for that would
render the doctrine of executive privilege of no force and effect whatsoever as a limitation on
the right to information, because then the sole test in such controversies would be whether
an information is a matter of public concern.
Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing the
documents of the JPEPA negotiations, the Philippine government runs the grave risk of
betraying the trust reposed in it by the Japanese representatives, indeed, by the Japanese
government itself. How would the Philippine government then explain itself when that
happens? Surely, it cannot bear to say that it just had to release the information because
certain persons simply wanted to know it "because it interests them."
Thus, the Court holds that, in determining whether an information is covered by the right to
information, a specific "showing of need" for such information is not a relevant consideration,
but only whether the same is a matter of public concern. When, however, the government
has claimed executive privilege, and it has established that the information is indeed covered
by the same, then the party demanding it, if it is to overcome the privilege, must show that
that the information is vital, not simply for the satisfaction of its curiosity, but for its ability to
effectively and reasonably participate in social, political, and economic decision-making.79
7. The dissent maintains that "[t]he treaty has thus entered the ultimate stage where the
people can exercise their right to participate in the discussion whether the Senate should
concur in its ratification or not." (Emphasis supplied) It adds that this right "will be diluted
unless the people can have access to the subject JPEPA documents". What, to the dissent, is a
dilution of the right to participate in decision-making is, to Us, simply a recognition of the
qualified nature of the public’s right to information. It is beyond dispute that the right to
information is not absolute and that the doctrine of executive privilege is a recognized
limitation on that right.
Moreover, contrary to the submission that the right to participate in decision-making would
be diluted, We reiterate that our people have been exercising their right to participate in the
discussion on the issue of the JPEPA, and they have been able to articulate their different
opinions without need of access to the JPEPA negotiation documents.
Thus, we hold that the balance in this case tilts in favor of executive privilege.
8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select Committee
case, and In re Sealed Case, are similarly applicable to the present controversy, the dissent
cites the caveat in the Nixon case that the U.S. Court was there addressing only the
President’s assertion of privilege in the context of a criminal trial, not a civil litigation nor a
congressional demand for information. What this caveat means, however, is only that courts
must be careful not to hastily apply the ruling therein to other contexts. It does not, however,
absolutely mean that the principles applied in that case may never be applied in such
contexts.
Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of executive
privilege in contexts other than a criminal trial, as in the case of Nixon v. Administrator of
General Services80 – which involved former President Nixon’s invocation of executive privilege
to challenge the constitutionality of the "Presidential Recordings and Materials Preservation
Act"81 – and the above-mentioned In re Sealed Case which involved a claim of privilege
against a subpoena duces tecum issued in a grand jury investigation.
Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the other
cases already mentioned, We are merely affirming what the Chief Justice stated in his
Dissenting Opinion in Neri v. Senate Committee on Accountability82 – a case involving an
executive-legislative conflict over executive privilege. That dissenting opinion stated that,
while Nixon was not concerned with the balance between the President’s generalized interest
in confidentiality and congressional demands for information, "[n]onetheless the [U.S.] Court
laid down principles and procedures that can serve as torch lights to illumine us on the
scope and use of Presidential communication privilege in the case at bar."83 While the Court
was divided in Neri, this opinion of the Chief Justice was not among the points of
disagreement, and We similarly hold now that the Nixon case is a useful guide in the proper
resolution of the present controversy, notwithstanding the difference in context.
Verily, while the Court should guard against the abuse of executive privilege, it should also
give full recognition to the validity of the privilege whenever it is claimed within the proper
bounds of executive power, as in this case. Otherwise, the Court would undermine its own
credibility, for it would be perceived as no longer aiming to strike a balance, but seeking
merely to water down executive privilege to the point of irrelevance.
Conclusion
To recapitulate, petitioners’ demand to be furnished with a copy of the full text of the JPEPA
has become moot and academic, it having been made accessible to the public since
September 11, 2006. As for their demand for copies of the Philippine and Japanese offers
submitted during the JPEPA negotiations, the same must be denied, respondents’ claim of
executive privilege being valid.
Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v.
Manglapus on September 13, 1988, been recognized as privileged in this jurisdiction and the
reasons proffered by petitioners against the application of the ruling therein to the present
case have not persuaded the Court. Moreover, petitioners – both private citizens and
members of the House of Representatives – have failed to present a "sufficient showing of
need" to overcome the claim of privilege in this case.
That the privilege was asserted for the first time in respondents’ Comment to the present
petition, and not during the hearings of the House Special Committee on Globalization, is of
no moment, since it cannot be interpreted as a waiver of the privilege on the part of the
Executive branch.
67
For reasons already explained, this Decision shall not be interpreted as departing from the
ruling in Senate v. Ermita that executive privilege should be invoked by the President or
through the Executive Secretary "by order of the President."
WHEREFORE, the petition is DISMISSED.
SO ORDERED.

68
EN BANC
G.R. No. 159618 February 1, 2011
BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep.
LIZA L. MAZA, Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity
as Secretary of Foreign Affairs, Respondents.
DECISION
VELASCO, JR., J.:
The Case
This petition1 for certiorari, mandamus and prohibition under Rule 65 assails and seeks to
nullify the Non-Surrender Agreement concluded by and between the Republic of the
Philippines (RP) and the United States of America (USA).
The Facts
Petitioner Bayan Muna is a duly registered party-list group established to represent the
marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of
Foreign Affairs during the period material to this case. Respondent Alberto Romulo was
impleaded in his capacity as then Executive Secretary.2
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome Statute3 establishing the
International Criminal Court (ICC) with "the power to exercise its jurisdiction over persons for
the most serious crimes of international concern x x x and shall be complementary to the
national criminal jurisdictions."4 The serious crimes adverted to cover those considered grave
under international law, such as genocide, crimes against humanity, war crimes, and crimes of
aggression.5
On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the
Rome Statute which, by its terms, is "subject to ratification, acceptance or approval" by the
signatory states.6 As of the filing of the instant petition, only 92 out of the 139 signatory
countries appear to have completed the ratification, approval and concurrence process. The
Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to
the Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral
agreement (Agreement, hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter),
the RP, represented by then DFA Secretary Ople, agreed with and accepted the US proposals
embodied under the US Embassy Note adverted to and put in effect the Agreement with the
US government. In esse, the Agreement aims to protect what it refers to and defines as
"persons" of the RP and US from frivolous and harassment suits that might be brought against
them in international tribunals.8 It is reflective of the increasing pace of the strategic security
and defense partnership between the two countries. As of May 2, 2003, similar bilateral
agreements have been effected by and between the US and 33 other countries.9
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, "persons" are current or former Government officials,
employees (including contractors), or military personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other shall not, absent the express
consent of the first Party,
(a) be surrendered or transferred by any means to any international tribunal for any purpose,
unless such tribunal has been established by the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity or third country, or
expelled to a third country, for the purpose of surrender to or transfer to any international
tribunal, unless such tribunal has been established by the UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to
a third country, the [US] will not agree to the surrender or transfer of that person by the third
country to any international tribunal, unless such tribunal has been established by the UN
Security Council, absent the express consent of the Government of the Republic of the
Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a
third country, the [GRP] will not agree to the surrender or transfer of that person by the third
country to any international tribunal, unless such tribunal has been established by the UN
Security Council, absent the express consent of the Government of the [US].
5. This Agreement shall remain in force until one year after the date on which one party
notifies the other of its intent to terminate the Agreement. The provisions of this Agreement
shall continue to apply with respect to any act occurring, or any allegation arising, before the
effective date of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-
surrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that
the exchange of diplomatic notes constituted a legally binding agreement under international
law; and that, under US law, the said agreement did not require the advice and consent of the
US Senate.10
In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding
and ratifying the Agreement and prays that it be struck down as unconstitutional, or at least
declared as without force and effect.
For their part, respondents question petitioner’s standing to maintain a suit and counter that
the Agreement, being in the nature of an executive agreement, does not require Senate
concurrence for its efficacy. And for reasons detailed in their comment, respondents assert
the constitutionality of the Agreement.
The Issues
I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY ABUSED THEIR
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR CONCLUDING THE RP-
US NON SURRENDER AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13 MAY 2003,
WHEN THE PHILIPPINE GOVERNMENT HAS ALREADY SIGNED THE ROME STATUTE OF THE
[ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY THE PHILIPPINE SENATE.
A. Whether by entering into the x x x Agreement Respondents gravely abused their discretion
when they capriciously abandoned, waived and relinquished our only legitimate recourse
through the Rome Statute of the [ICC] to prosecute and try "persons" as defined in the x x x
Agreement, x x x or literally any conduit of American interests, who have committed crimes
of genocide, crimes against humanity, war crimes and the crime of aggression, thereby
abdicating Philippine Sovereignty.
B. Whether after the signing and pending ratification of the Rome Statute of the [ICC] the [RP]
President and the [DFA] Secretary x x x are obliged by the principle of good faith to refrain
from doing all acts which would substantially impair the value of the undertaking as signed.
C. Whether the x x x Agreement constitutes an act which defeats the object and purpose of
the Rome Statute of the International Criminal Court and contravenes the obligation of good
69
faith inherent in the signature of the President affixed on the Rome Statute of the
International Criminal Court, and if so whether the x x x Agreement is void and unenforceable
on this ground.
D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave abuse
of discretion amounting to lack or excess of jurisdiction in connection with its execution.
II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR CONTRACTING
OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT VARIANCE WITH UNIVERSALLY
RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.
III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT THE
CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE SENATE x x x.11
The foregoing issues may be summarized into two: first, whether or not the Agreement was
contracted validly, which resolves itself into the question of whether or not respondents
gravely abused their discretion in concluding it; and second, whether or not the Agreement,
which has not been submitted to the Senate for concurrence, contravenes and undermines
the Rome Statute and other treaties. But because respondents expectedly raised it, we shall
first tackle the issue of petitioner’s legal standing.
The Court’s Ruling
This petition is bereft of merit.
Procedural Issue: Locus Standi of Petitioner
Petitioner, through its three party-list representatives, contends that the issue of the validity
or invalidity of the Agreement carries with it constitutional significance and is of paramount
importance that justifies its standing. Cited in this regard is what is usually referred to as the
emergency powers cases,12 in which ordinary citizens and taxpayers were accorded the
personality to question the constitutionality of executive issuances.
Locus standi is "a right of appearance in a court of justice on a given question."13 Specifically,
it is "a party’s personal and substantial interest in a case where he has sustained or will
sustain direct injury as a result"14 of the act being challenged, and "calls for more than just a
generalized grievance."15 The term "interest" refers to material interest, as distinguished from
one that is merely incidental.16 The rationale for requiring a party who challenges the validity
of a law or international agreement to allege such a personal stake in the outcome of the
controversy is "to assure the concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult constitutional
questions."17
Locus standi, however, is merely a matter of procedure and it has been recognized that, in
some cases, suits are not brought by parties who have been personally injured by the
operation of a law or any other government act, but by concerned citizens, taxpayers, or
voters who actually sue in the public interest.18 Consequently, in a catena of cases,19 this
Court has invariably adopted a liberal stance on locus standi.
Going by the petition, petitioner’s representatives pursue the instant suit primarily as
concerned citizens raising issues of transcendental importance, both for the Republic and the
citizenry as a whole.
When suing as a citizen to question the validity of a law or other government action, a
petitioner needs to meet certain specific requirements before he can be clothed with
standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc.20 expounded on this requirement, thus:
In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a
statute must be direct and personal. He must be able to show, not only that the law or any
government act is invalid, but also that he sustained or is in imminent danger of sustaining
some direct injury as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way. It must appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute or act complained of. In fine,
when the proceeding involves the assertion of a public right, the mere fact that he is a citizen
satisfies the requirement of personal interest.21
In the case at bar, petitioner’s representatives have complied with the qualifying conditions
or specific requirements exacted under the locus standi rule. As citizens, their interest in the
subject matter of the petition is direct and personal. At the very least, their assertions
questioning the Agreement are made of a public right, i.e., to ascertain that the Agreement
did not go against established national policies, practices, and obligations bearing on the
State’s obligation to the community of nations.
At any event, the primordial importance to Filipino citizens in general of the issue at hand
impels the Court to brush aside the procedural barrier posed by the traditional requirement
of locus standi, as we have done in a long line of earlier cases, notably in the old but oft-cited
emergency powers cases22 and Kilosbayan v. Guingona, Jr.23 In cases of transcendental
importance, we wrote again in Bayan v. Zamora,24 "The Court may relax the standing
requirements and allow a suit to prosper even where there is no direct injury to the party
claiming the right of judicial review."
Moreover, bearing in mind what the Court said in Tañada v. Angara, "that it will not shirk,
digress from or abandon its sacred duty and authority to uphold the Constitution in matters
that involve grave abuse of discretion brought before it in appropriate cases, committed by
any officer, agency, instrumentality or department of the government,"25 we cannot but
resolve head on the issues raised before us. Indeed, where an action of any branch of
government is seriously alleged to have infringed the Constitution or is done with grave abuse
of discretion, it becomes not only the right but in fact the duty of the judiciary to settle it. As
in this petition, issues are precisely raised putting to the fore the propriety of the Agreement
pending the ratification of the Rome Statute.
Validity of the RP-US Non-Surrender Agreement
Petitioner’s initial challenge against the Agreement relates to form, its threshold posture
being that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement.
Petitioners’ contention––perhaps taken unaware of certain well-recognized international
doctrines, practices, and jargons––is untenable. One of these is the doctrine of incorporation,
as expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts the
generally accepted principles of international law and international jurisprudence as part of
the law of the land and adheres to the policy of peace, cooperation, and amity with all
nations.26 An exchange of notes falls "into the category of inter-governmental agreements,"27
which is an internationally accepted form of international agreement. The United Nations
Treaty Collections (Treaty Reference Guide) defines the term as follows:
An "exchange of notes" is a record of a routine agreement, that has many similarities with the
private law contract. The agreement consists of the exchange of two documents, each of the
parties being in the possession of the one signed by the representative of the other. Under
the usual procedure, the accepting State repeats the text of the offering State to record its
assent. The signatories of the letters may be government Ministers, diplomats or
70
departmental heads. The technique of exchange of notes is frequently resorted to, either
because of its speedy procedure, or, sometimes, to avoid the process of legislative approval.28
In another perspective, the terms "exchange of notes" and "executive agreements" have
been used interchangeably, exchange of notes being considered a form of executive
agreement that becomes binding through executive action.29 On the other hand, executive
agreements concluded by the President "sometimes take the form of exchange of notes and
at other times that of more formal documents denominated ‘agreements’ or ‘protocols.’"30 As
former US High Commissioner to the Philippines Francis B. Sayre observed in his work, The
Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between this and other governments ends and
agreements – whether denominated executive agreements or exchange of notes or otherwise
– begin, may sometimes be difficult of ready ascertainment.31 x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the
Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof or as
consent to be bound––is a recognized mode of concluding a legally binding international
written contract among nations.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an international
agreement 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."32 International agreements may be in the form of (1)
treaties that require legislative concurrence after executive ratification; or (2) executive
agreements that are similar to treaties, except that they do not require legislative
concurrence and are usually less formal and deal with a narrower range of subject matters
than treaties.33
Under international law, there is no difference between treaties and executive agreements in
terms of their binding effects on the contracting states concerned,34 as long as the negotiating
functionaries have remained within their powers.35 Neither, on the domestic sphere, can one
be held valid if it violates the Constitution.36 Authorities are, however, agreed that one is
distinct from another for accepted reasons apart from the concurrence-requirement aspect.37
As has been observed by US constitutional scholars, a treaty has greater "dignity" than an
executive agreement, because its constitutional efficacy is beyond doubt, a treaty having
behind it the authority of the President, the Senate, and the people;38 a ratified treaty, unlike
an executive agreement, takes precedence over any prior statutory enactment.39
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of
the nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner takes a
cue from Commissioner of Customs v. Eastern Sea Trading, in which the Court reproduced the
following observations made by US legal scholars: "[I]nternational agreements involving
political issues or changes of national policy and those involving international arrangements
of a permanent character usually take the form of treaties [while] those embodying
adjustments of detail carrying out well established national policies and traditions and those
involving arrangements of a more or less temporary nature take the form of executive
agreements." 40
Pressing its point, petitioner submits that the subject of the Agreement does not fall under
any of the subject-categories that are enumerated in the Eastern Sea Trading case, and that
may be covered by an executive agreement, such as commercial/consular relations, most-
favored nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and settlement of claims.
In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales
and Merchant,41 holding that an executive agreement through an exchange of notes cannot
be used to amend a treaty.
We are not persuaded.
The categorization of subject matters that may be covered by international agreements
mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the
propriety of entering, on a given subject, into a treaty or an executive agreement as an
instrument of international relations. The primary consideration in the choice of the form of
agreement is the parties’ intent and desire to craft an international agreement in the form
they so wish to further their respective interests. Verily, the matter of form takes a back seat
when it comes to effectiveness and binding effect of the enforcement of a treaty or an
executive agreement, as the parties in either international agreement each labor under the
pacta sunt servanda42 principle.
As may be noted, almost half a century has elapsed since the Court rendered its decision in
Eastern Sea Trading. Since then, the conduct of foreign affairs has become more complex and
the domain of international law wider, as to include such subjects as human rights, the
environment, and the sea. In fact, in the US alone, the executive agreements executed by its
President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation,
aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and
nuclear safety, among others.43 Surely, the enumeration in Eastern Sea Trading cannot
circumscribe the option of each state on the matter of which the international agreement
format would be convenient to serve its best interest. As Francis Sayre said in his work
referred to earlier:
x x x It would be useless to undertake to discuss here the large variety of executive
agreements as such concluded from time to time. Hundreds of executive agreements, other
than those entered into under the trade-agreement act, have been negotiated with foreign
governments. x x x They cover such subjects as the inspection of vessels, navigation dues,
income tax on shipping profits, the admission of civil air craft, custom matters and
commercial relations generally, international claims, postal matters, the registration of
trademarks and copyrights, etc. x x x
And lest it be overlooked, one type of executive agreement is a treaty-authorized44 or a
treaty-implementing executive agreement,45 which necessarily would cover the same matters
subject of the underlying treaty.
But over and above the foregoing considerations is the fact that––save for the situation and
matters contemplated in Sec. 25, Art. XVIII of the Constitution46––when a treaty is required,
the Constitution does not classify any subject, like that involving political issues, to be in the
form of, and ratified as, a treaty. What the Constitution merely prescribes is that treaties
need the concurrence of the Senate by a vote defined therein to complete the ratification
process.
Petitioner’s reliance on Adolfo47 is misplaced, said case being inapplicable owing to different
factual milieus. There, the Court held that an executive agreement cannot be used to amend
a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement that
does not require the concurrence of the Senate for its ratification may not be used to amend
a treaty that, under the Constitution, is the product of the ratifying acts of the Executive and
71
the Senate. The presence of a treaty, purportedly being subject to amendment by an
executive agreement, does not obtain under the premises.
Considering the above discussion, the Court need not belabor at length the third main issue
raised, referring to the validity and effectivity of the Agreement without the concurrence by
at least two-thirds of all the members of the Senate. The Court has, in Eastern Sea Trading,48
as reiterated in Bayan,49 given recognition to the obligatory effect of executive agreements
without the concurrence of the Senate:
x x x [T]he right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest days
of our history, we have entered executive agreements covering such subjects as commercial
and consular relations, most favored-nation rights, patent rights, trademark and copyright
protection, postal and navigation arrangements and the settlement of claims. The validity of
these has never been seriously questioned by our courts.
The Agreement Not in Contravention of the Rome Statute
It is the petitioner’s next contention that the Agreement undermines the establishment of the
ICC and is null and void insofar as it unduly restricts the ICC’s jurisdiction and infringes upon
the effectivity of the Rome Statute. Petitioner posits that the Agreement was constituted
solely for the purpose of providing individuals or groups of individuals with immunity from
the jurisdiction of the ICC; and such grant of immunity through non-surrender agreements
allegedly does not legitimately fall within the scope of Art. 98 of the Rome Statute. It
concludes that state parties with non-surrender agreements are prevented from meeting
their obligations under the Rome Statute, thereby constituting a breach of Arts. 27,50 86,51
8952 and 9053 thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that
those responsible for the worst possible crimes are brought to justice in all cases, primarily by
states, but as a last resort, by the ICC; thus, any agreement—like the non-surrender
agreement—that precludes the ICC from exercising its complementary function of acting
when a state is unable to or unwilling to do so, defeats the object and purpose of the Rome
Statute.
Petitioner would add that the President and the DFA Secretary, as representatives of a
signatory of the Rome Statute, are obliged by the imperatives of good faith to refrain from
performing acts that substantially devalue the purpose and object of the Statute, as signed.
Adding a nullifying ingredient to the Agreement, according to petitioner, is the fact that it has
an immoral purpose or is otherwise at variance with a priorly executed treaty.
Contrary to petitioner’s pretense, the Agreement does not contravene or undermine, nor
does it differ from, the Rome Statute. Far from going against each other, one complements
the other. As a matter of fact, the principle of complementarity underpins the creation of the
ICC. As aptly pointed out by respondents and admitted by petitioners, the jurisdiction of the
ICC is to "be complementary to national criminal jurisdictions [of the signatory states]."54 Art.
1 of the Rome Statute pertinently provides:
Article 1
The Court
An International Crimininal Court ("the Court") is hereby established. It x x x shall have the
power to exercise its jurisdiction over persons for the most serious crimes of international
concern, as referred to in this Statute, and shall be complementary to national criminal
jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions
of this Statute. (Emphasis ours.)
Significantly, the sixth preambular paragraph of the Rome Statute declares that "it is the duty
of every State to exercise its criminal jurisdiction over those responsible for international
crimes." This provision indicates that primary jurisdiction over the so-called international
crimes rests, at the first instance, with the state where the crime was committed; secondarily,
with the ICC in appropriate situations contemplated under Art. 17, par. 155 of the Rome
Statute.
Of particular note is the application of the principle of ne bis in idem56 under par. 3 of Art. 20,
Rome Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis that
of the ICC. As far as relevant, the provision states that "no person who has been tried by
another court for conduct x x x [constituting crimes within its jurisdiction] shall be tried by the
[International Criminal] Court with respect to the same conduct x x x."
The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of
jurisdictional conflict between the Philippines, as party to the non-surrender agreement, and
the ICC; or the idea of the Agreement substantially impairing the value of the RP’s
undertaking under the Rome Statute. Ignoring for a while the fact that the RP signed the
Rome Statute ahead of the Agreement, it is abundantly clear to us that the Rome Statute
expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes
committed within their respective borders, the complementary jurisdiction of the ICC coming
into play only when the signatory states are unwilling or unable to prosecute.
Given the above consideration, petitioner’s suggestion––that the RP, by entering into the
Agreement, violated its duty required by the imperatives of good faith and breached its
commitment under the Vienna Convention57 to refrain from performing any act tending to
impair the value of a treaty, e.g., the Rome Statute––has to be rejected outright. For nothing
in the provisions of the Agreement, in relation to the Rome Statute, tends to diminish the
efficacy of the Statute, let alone defeats the purpose of the ICC. Lest it be overlooked, the
Rome Statute contains a proviso that enjoins the ICC from seeking the surrender of an erring
person, should the process require the requested state to perform an act that would violate
some international agreement it has entered into. We refer to Art. 98(2) of the Rome Statute,
which reads:
Article 98
Cooperation with respect to waiver of immunity
and consent to surrender
xxxx
2. The Court may not proceed with a request for surrender which would require the
requested State to act inconsistently with its obligations under international agreements
pursuant to which the consent of a sending State is required to surrender a person of that
State to the Court, unless the Court can first obtain the cooperation of the sending State for
the giving of consent for the surrender.
Moreover, under international law, there is a considerable difference between a State-Party
and a signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory
state is only obliged to refrain from acts which would defeat the object and purpose of a
treaty;58 whereas a State-Party, on the other hand, is legally obliged to follow all the
provisions of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a signatory to the Rome
Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to
refrain from acts which would defeat the object and purpose of the Rome Statute. Any
argument obliging the Philippines to follow any provision in the treaty would be premature.
72
As a result, petitioner’s argument that State-Parties with non-surrender agreements are
prevented from meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89
and 90, must fail. These articles are only legally binding upon State-Parties, not signatories.
Furthermore, a careful reading of said Art. 90 would show that the Agreement is not
incompatible with the Rome Statute. Specifically, Art. 90(4) provides that "[i]f the requesting
State is a State not Party to this Statute the requested State, if it is not under an international
obligation to extradite the person to the requesting State, shall give priority to the request for
surrender from the Court. x x x" In applying the provision, certain undisputed facts should be
pointed out: first, the US is neither a State-Party nor a signatory to the Rome Statute; and
second, there is an international agreement between the US and the Philippines regarding
extradition or surrender of persons, i.e., the Agreement. Clearly, even assuming that the
Philippines is a State-Party, the Rome Statute still recognizes the primacy of international
agreements entered into between States, even when one of the States is not a State-Party to
the Rome Statute.
Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by
bargaining away the jurisdiction of the ICC to prosecute US nationals, government
officials/employees or military personnel who commit serious crimes of international
concerns in the Philippines. Formulating petitioner’s argument a bit differently, the RP, by
entering into the Agreement, does thereby abdicate its sovereignty, abdication being done by
its waiving or abandoning its right to seek recourse through the Rome Statute of the ICC for
erring Americans committing international crimes in the country.
We are not persuaded. As it were, the Agreement is but a form of affirmance and
confirmance of the Philippines’ national criminal jurisdiction. National criminal jurisdiction
being primary, as explained above, it is always the responsibility and within the prerogative of
the RP either to prosecute criminal offenses equally covered by the Rome Statute or to
accede to the jurisdiction of the ICC. Thus, the Philippines may decide to try "persons" of the
US, as the term is understood in the Agreement, under our national criminal justice system.
Or it may opt not to exercise its criminal jurisdiction over its erring citizens or over US
"persons" committing high crimes in the country and defer to the secondary criminal
jurisdiction of the ICC over them. As to "persons" of the US whom the Philippines refuses to
prosecute, the country would, in effect, accord discretion to the US to exercise either its
national criminal jurisdiction over the "person" concerned or to give its consent to the referral
of the matter to the ICC for trial. In the same breath, the US must extend the same privilege
to the Philippines with respect to "persons" of the RP committing high crimes within US
territorial jurisdiction.
In the context of the Constitution, there can be no serious objection to the Philippines
agreeing to undertake the things set forth in the Agreement. Surely, one State can agree to
waive jurisdiction—to the extent agreed upon—to subjects of another State due to the
recognition of the principle of extraterritorial immunity. What the Court wrote in Nicolas v.
Romulo59—a case involving the implementation of the criminal jurisdiction provisions of the
RP-US Visiting Forces Agreement—is apropos:
Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction
or some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of
such immunity like Heads of State, diplomats and members of the armed forces contingents
of a foreign State allowed to enter another State’s territory. x x x
To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the
postulate that some of its provisions constitute a virtual abdication of its sovereignty. Almost
every time a state enters into an international agreement, it voluntarily sheds off part of its
sovereignty. The Constitution, as drafted, did not envision a reclusive Philippines isolated
from the rest of the world. It even adheres, as earlier stated, to the policy of cooperation and
amity with all nations.60
By their nature, treaties and international agreements actually have a limiting effect on the
otherwise encompassing and absolute nature of sovereignty. By their voluntary act, nations
may decide to surrender or waive some aspects of their state power or agree to limit the
exercise of their otherwise exclusive and absolute jurisdiction. The usual underlying
consideration in this partial surrender may be the greater benefits derived from a pact or a
reciprocal undertaking of one contracting party to grant the same privileges or immunities to
the other. On the rationale that the Philippines has adopted the generally accepted principles
of international law as part of the law of the land, a portion of sovereignty may be waived
without violating the Constitution.61 Such waiver does not amount to an unconstitutional
diminution or deprivation of jurisdiction of Philippine courts.62
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral
obligations and/or being at variance with allegedly universally recognized principles of
international law. The immoral aspect proceeds from the fact that the Agreement, as
petitioner would put it, "leaves criminals immune from responsibility for unimaginable
atrocities that deeply shock the conscience of humanity; x x x it precludes our country from
delivering an American criminal to the [ICC] x x x."63
The above argument is a kind of recycling of petitioner’s earlier position, which, as already
discussed, contends that the RP, by entering into the Agreement, virtually abdicated its
sovereignty and in the process undermined its treaty obligations under the Rome Statute,
contrary to international law principles.64
The Court is not persuaded. Suffice it to state in this regard that the non-surrender
agreement, as aptly described by the Solicitor General, "is an assertion by the Philippines of
its desire to try and punish crimes under its national law. x x x The agreement is a recognition
of the primacy and competence of the country’s judiciary to try offenses under its national
criminal laws and dispense justice fairly and judiciously."
Petitioner, we believe, labors under the erroneous impression that the Agreement would
allow Filipinos and Americans committing high crimes of international concern to escape
criminal trial and punishment. This is manifestly incorrect. Persons who may have committed
acts penalized under the Rome Statute can be prosecuted and punished in the Philippines or
in the US; or with the consent of the RP or the US, before the ICC, assuming, for the nonce,
that all the formalities necessary to bind both countries to the Rome Statute have been met.
For perspective, what the Agreement contextually prohibits is the surrender by either party of
individuals to international tribunals, like the ICC, without the consent of the other party,
which may desire to prosecute the crime under its existing laws. With the view we take of
things, there is nothing immoral or violative of international law concepts in the act of the
Philippines of assuming criminal jurisdiction pursuant to the non-surrender agreement over
an offense considered criminal by both Philippine laws and the Rome Statute.
No Grave Abuse of Discretion
73
Petitioner’s final point revolves around the necessity of the Senate’s concurrence in the
Agreement. And without specifically saying so, petitioner would argue that the non-surrender
agreement was executed by the President, thru the DFA Secretary, in grave abuse of
discretion.
The Court need not delve on and belabor the first portion of the above posture of petitioner,
the same having been discussed at length earlier on. As to the second portion, We wish to
state that petitioner virtually faults the President for performing, through respondents, a task
conferred the President by the Constitution—the power to enter into international
agreements.
By constitutional fiat and by the nature of his or her office, the President, as head of state and
government, is the sole organ and authority in the external affairs of the country.65 The
Constitution vests in the President the power to enter into international agreements, subject,
in appropriate cases, to the required concurrence votes of the Senate. But as earlier
indicated, executive agreements may be validly entered into without such concurrence. As
the President wields vast powers and influence, her conduct in the external affairs of the
nation is, as Bayan would put it, "executive altogether." The right of the President to enter
into or ratify binding executive agreements has been confirmed by long practice.66
In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria
Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of
the authority and discretion vested in her by the Constitution. At the end of the day, the
President––by ratifying, thru her deputies, the non-surrender agreement––did nothing more
than discharge a constitutional duty and exercise a prerogative that pertains to her office.
While the issue of ratification of the Rome Statute is not determinative of the other issues
raised herein, it may perhaps be pertinent to remind all and sundry that about the time this
petition was interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. Office of
the Executive Secretary.67 As the Court emphasized in said case, the power to ratify a treaty,
the Statute in that instance, rests with the President, subject to the concurrence of the
Senate, whose role relative to the ratification of a treaty is limited merely to concurring in or
withholding the ratification. And concomitant with this treaty-making power of the President
is his or her prerogative to refuse to submit a treaty to the Senate; or having secured the
latter’s consent to the ratification of the treaty, refuse to ratify it.68 This prerogative, the
Court hastened to add, is the President’s alone and cannot be encroached upon via a writ of
mandamus. Barring intervening events, then, the Philippines remains to be just a signatory to
the Rome Statute. Under Art. 12569 thereof, the final acts required to complete the treaty
process and, thus, bring it into force, insofar as the Philippines is concerned, have yet to be
done.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851,
otherwise known as the "Philippine Act on Crimes Against International Humanitarian Law,
Genocide, and Other Crimes Against Humanity." Sec. 17 of RA 9851, particularly the second
paragraph thereof, provides:
Section 17. Jurisdiction. – x x x x
In the interest of justice, the relevant Philippine authorities may dispense with the
investigation or prosecution of a crime punishable under this Act if another court or
international tribunal is already conducting the investigation or undertaking the prosecution
of such crime. Instead, the authorities may surrender or extradite suspected or accused
persons in the Philippines to the appropriate international court, if any, or to another State
pursuant to the applicable extradition laws and treaties. (Emphasis supplied.)
A view is advanced that the Agreement amends existing municipal laws on the State’s
obligation in relation to grave crimes against the law of nations, i.e., genocide, crimes against
humanity and war crimes. Relying on the above-quoted statutory proviso, the view posits that
the Philippine is required to surrender to the proper international tribunal those persons
accused of the grave crimes defined under RA 9851, if it does not exercise its primary
jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not decide to prosecute a foreign
national for violations of RA 9851, the Philippines has only two options, to wit: (1) surrender
the accused to the proper international tribunal; or (2) surrender the accused to another
State if such surrender is "pursuant to the applicable extradition laws and treaties." But the
Philippines may exercise these options only in cases where "another court or international
tribunal is already conducting the investigation or undertaking the prosecution of such
crime;" otherwise, the Philippines must prosecute the crime before its own courts pursuant
to RA 9851.
Posing the situation of a US national under prosecution by an international tribunal for any
crime under RA 9851, the Philippines has the option to surrender such US national to the
international tribunal if it decides not to prosecute such US national here. The view asserts
that this option of the Philippines under Sec. 17 of RA 9851 is not subject to the consent of
the US, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of the US
before the Philippines can exercise such option, requires an amendatory law. In line with this
scenario, the view strongly argues that the Agreement prevents the Philippines—without the
consent of the US—from surrendering to any international tribunal US nationals accused of
crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851. Consequently, the
view is strongly impressed that the Agreement cannot be embodied in a simple executive
agreement in the form of an exchange of notes but must be implemented through an
extradition law or a treaty with the corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where
the Philippines adopts, as a national policy, the "generally accepted principles of international
law as part of the law of the land," the Court is further impressed to perceive the Rome
Statute as declaratory of customary international law. In other words, the Statute embodies
principles of law which constitute customary international law or custom and for which
reason it assumes the status of an enforceable domestic law in the context of the aforecited
constitutional provision. As a corollary, it is argued that any derogation from the Rome
Statute principles cannot be undertaken via a mere executive agreement, which, as an
exclusive act of the executive branch, can only implement, but cannot amend or repeal, an
existing law. The Agreement, so the argument goes, seeks to frustrate the objects of the
principles of law or alters customary rules embodied in the Rome Statute.
Prescinding from the foregoing premises, the view thus advanced considers the Agreement
inefficacious, unless it is embodied in a treaty duly ratified with the concurrence of the
Senate, the theory being that a Senate- ratified treaty partakes of the nature of a municipal
law that can amend or supersede another law, in this instance Sec. 17 of RA 9851 and the
status of the Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of
the Constitution.
We are unable to lend cogency to the view thus taken. For one, we find that the Agreement
does not amend or is repugnant to RA 9851. For another, the view does not clearly state what
74
precise principles of law, if any, the Agreement alters. And for a third, it does not
demonstrate in the concrete how the Agreement seeks to frustrate the objectives of the
principles of law subsumed in the Rome Statute.
Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the
former merely reinforces the primacy of the national jurisdiction of the US and the Philippines
in prosecuting criminal offenses committed by their respective citizens and military
personnel, among others. The jurisdiction of the ICC pursuant to the Rome Statute over high
crimes indicated thereat is clearly and unmistakably complementary to the national criminal
jurisdiction of the signatory states.
Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international
humanitarian law, genocide and other crimes against humanity;70 (2) provides penal sanctions
and criminal liability for their commission;71 and (3) establishes special courts for the
prosecution of these crimes and for the State to exercise primary criminal jurisdiction.72
Nowhere in RA 9851 is there a proviso that goes against the tenor of the Agreement.
The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the
Philippine State to surrender to the proper international tribunal those persons accused of
crimes sanctioned under said law if it does not exercise its primary jurisdiction to prosecute
such persons. This view is not entirely correct, for the above quoted proviso clearly provides
discretion to the Philippine State on whether to surrender or not a person accused of the
crimes under RA 9851. The statutory proviso uses the word "may." It is settled doctrine in
statutory construction that the word "may" denotes discretion, and cannot be construed as
having mandatory effect.73 Thus, the pertinent second pararagraph of Sec. 17, RA 9851 is
simply permissive on the part of the Philippine State.1avvphi1
Besides, even granting that the surrender of a person is mandatorily required when the
Philippines does not exercise its primary jurisdiction in cases where "another court or
international tribunal is already conducting the investigation or undertaking the prosecution
of such crime," still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851. Said
legal proviso aptly provides that the surrender may be made "to another State pursuant to
the applicable extradition laws and treaties." The Agreement can already be considered a
treaty following this Court’s decision in Nicolas v. Romulo74 which cited Weinberger v. Rossi.75
In Nicolas, We held that "an executive agreement is a ‘treaty’ within the meaning of that
word in international law and constitutes enforceable domestic law vis-à-vis the United
States."76
Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US
Extradition Treaty, which was executed on November 13, 1994. The pertinent Philippine law,
on the other hand, is Presidential Decree No. 1069, issued on January 13, 1977. Thus, the
Agreement, in conjunction with the RP-US Extradition Treaty, would neither violate nor run
counter to Sec. 17 of RA 9851.
The view’s reliance on Suplico v. Neda77 is similarly improper. In that case, several petitions
were filed questioning the power of the President to enter into foreign loan agreements.
However, before the petitions could be resolved by the Court, the Office of the Solicitor
General filed a Manifestation and Motion averring that the Philippine Government decided
not to continue with the ZTE National Broadband Network Project, thus rendering the
petition moot. In resolving the case, the Court took judicial notice of the act of the executive
department of the Philippines (the President) and found the petition to be indeed moot.
Accordingly, it dismissed the petitions.
In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of
an executive agreement. He stated that "an executive agreement has the force and effect of
law x x x [it] cannot amend or repeal prior laws."78 Hence, this argument finds no application
in this case seeing as RA 9851 is a subsequent law, not a prior one. Notably, this argument
cannot be found in the ratio decidendi of the case, but only in the dissenting opinion.
The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the
reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, "[a]n offense shall be an
extraditable offense if it is punishable under the laws in both Contracting Parties x x x,"79 and
thereby concluding that while the Philippines has criminalized under RA 9851 the acts defined
in the Rome Statute as war crimes, genocide and other crimes against humanity, there is no
similar legislation in the US. It is further argued that, citing U.S. v. Coolidge, in the US, a
person cannot be tried in the federal courts for an international crime unless Congress adopts
a law defining and punishing the offense.
This view must fail.
On the contrary, the US has already enacted legislation punishing the high crimes mentioned
earlier. In fact, as early as October 2006, the US enacted a law criminalizing war crimes.
Section 2441, Chapter 118, Part I, Title 18 of the United States Code Annotated (USCA)
provides for the criminal offense of "war crimes" which is similar to the war crimes found in
both the Rome Statute and RA 9851, thus:
(a) Offense – Whoever, whether inside or outside the United States, commits a war crime, in
any of the circumstances described in subsection (b), shall be fined under this title or
imprisoned for life or any term of years, or both, and if death results to the victim, shall also
be subject to the penalty of death.
(b) Circumstances – The circumstances referred to in subsection (a) are that the person
committing such war crime or the victim of such war crime is a member of the Armed Forces
of the United States or a national of the United States (as defined in Section 101 of the
Immigration and Nationality Act).
(c) Definition – As used in this Section the term "war crime" means any conduct –
(1) Defined as a grave breach in any of the international conventions signed at Geneva 12
August 1949, or any protocol to such convention to which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV, Respecting
the Laws and Customs of War on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d]) when
committed in the context of and in association with an armed conflict not of an international
character; or
(4) Of a person who, in relation to an armed conflict and contrary to the provisions of the
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices
as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the
United States is a party to such Protocol, willfully kills or causes serious injury to
civilians.801avvphi1
Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:
§1091. Genocide
(a) Basic Offense – Whoever, whether in the time of peace or in time of war and with specific
intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as
such–
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
75
 (3) causes the permanent impairment of the mental faculties of members of the groupArticle 8 (d) Definition – As used in this Section the term "war crime"
through drugs, torture, or similar techniques; War Crimes means any conduct –
(4) subjects the group to conditions of life that are intended to cause the physical destruction
2. For the purpose of this Statute, "war crimes" means: (1) Defined as a grave breach in any of the international
of the group in whole or in part; (a) Grave breaches of the Geneva Conventions of 12 August conventions signed at Geneva 12 August 1949, or any protocol to
(5) imposes measures intended to prevent births within the group; or 1949, namely, any of the following acts against persons or such convention to which the United States is a party;
(6) transfers by force children of the group to another group; property protected under the provisions of the relevant Geneva (2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the
shall be punished as provided in subsection (b). 81
Convention: x x x84 Hague Convention IV, Respecting the Laws and Customs of War
Arguing further, another view has been advanced that the current US laws do not cover (b)every
Other serious violations of the laws and customs applicable in on Land, signed 18 October 1907;
crime listed within the jurisdiction of the ICC and that there is a gap between the definitions
international armed conflict, within the established framework of (3) Which constitutes a grave breach of common Article 3 (as
of the different crimes under the US laws versus the Rome Statute. The view used a report international law, namely, any of the following acts: defined in subsection [d]85) when committed in the context of
written by Victoria K. Holt and Elisabeth W. Dallas, entitled "On Trial: The US Military andx x xthe
x and in association with an armed conflict not of an international
International Criminal Court," as its basis. (c) In the case of an armed conflict not of an international character; or
At the outset, it should be pointed out that the report used may not have any weight or value serious violations of article 3 common to the four
character, (4) Of a person who, in relation to an armed conflict and contrary
under international law. Article 38 of the Statute of the International Court of Justice (ICJ)
GenevalistsConventions of 12 August 1949, namely, any of the to the provisions of the Protocol on Prohibitions or Restrictions
the sources of international law, as follows: (1) international conventions, whether general or acts committed against persons taking no active part in
following on the Use of Mines, Booby-Traps and Other Devices as amended
particular, establishing rules expressly recognized by the contesting states; (2) international
the hostilities, including members of armed forces who have laid at Geneva on 3 May 1996 (Protocol II as amended on 3 May
custom, as evidence of a general practice accepted as law; (3) the general principles ofdown law their arms and those placed hors de combat by sickness, 1996), when the United States is a party to such Protocol,
recognized by civilized nations; and (4) subject to the provisions of Article 59, judicial wounds, detention or any other cause: willfully kills or causes serious injury to civilians.86
decisions and the teachings of the most highly qualified publicists of the various nations, x x xasx
subsidiary means for the determination of rules of law. The report does not fall under(d) anyParagraph
of 2 (c) applies to armed conflicts not of an
the foregoing enumerated sources. It cannot even be considered as the "teachings of international
highly character and thus does not apply to situations of
qualified publicists." A highly qualified publicist is a scholar of public international lawinternal
and the disturbances and tensions, such as riots, isolated and
term usually refers to legal scholars or "academic writers."82 It has not been shown that the acts of violence or other acts of a similar nature.
sporadic
authors83 of this report are highly qualified publicists. (e) Other serious violations of the laws and customs applicable in
Assuming arguendo that the report has weight, still, the perceived gaps in the definitions armedof conflicts not of an international character, within the
the crimes are nonexistent. To highlight, the table below shows the definitions of genocide established framework of international law, namely, any of the
and war crimes under the Rome Statute vis-à-vis the definitions under US laws: following acts: x x x.
Rome Statute US Law Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the
Article 6 §1091. Genocide report itself stated as much, to wit:
Genocide (a) Basic Offense – Whoever, whether in the time of peace Few believed there were wide differences between the crimes under the jurisdiction of the
or in
For the purpose of this Statute, "genocide" means any of the time of war and with specific intent to destroy, in whole or Court
in and crimes within the Uniform Code of Military Justice that would expose US personnel
following acts committed with intent to destroy, in whole or in to as
substantial part, a national, ethnic, racial or religious group the Court. Since US military lawyers were instrumental in drafting the elements of crimes
part, a national, ethnical, racial or religious group, as such: such– outlined in the Rome Statute, they ensured that most of the crimes were consistent with
(a) Killing members of the group; (1) kills members of that group; those outlined in the UCMJ and gave strength to complementarity for the US. Small areas of
(b) Causing serious bodily or mental harm to members of the (2) causes serious bodily injury to members of that group;potential gaps between the UCMJ and the87 Rome Statute, military experts argued, could be
group; (3) causes the permanent impairment of the mental faculties addressed
of through existing military laws. x x x
(c) Deliberately inflicting on the group conditions of life members of the group through drugs, torture, or similar The report went on further to say that "[a]ccording to those involved, the elements of crimes
88 Thus, the
calculated to bring about its physical destruction in whole or in techniques; laid out in the Rome Statute have been part of US military doctrine for decades."
part; (4) subjects the group to conditions of life that are intendedargument
to proffered cannot stand.
(d) Imposing measures intended to prevent births within the cause the physical destruction of the group in whole or inNonetheless,
part; despite the lack of actual domestic legislation, the US notably follows the
group; (5) imposes measures intended to prevent births within the doctrine of incorporation. As early as 1900, the esteemed Justice Gray in The Paquete
(e) Forcibly transferring children of the group to another group. group; or Habana89 case already held international law as part of the law of the US, to wit:
(6) transfers by force children of the group to another group;International law is part of our law, and must be ascertained and administered by the courts
shall be punished as provided in subsection (b). of justice of appropriate jurisdiction as often as questions of right depending upon it are duly
presented for their determination. For this purpose, where there is no treaty and no
controlling executive or legislative act or judicial decision, resort must be had to the customs
and usages of civilized nations, and, as evidence of these, to the works of jurists and

76
commentators who by years of labor, research, and experience have made themselves
peculiarly well acquainted with the subjects of which they treat. Such works are resorted to
by judicial tribunals, not for the speculations of their authors concerning what the law ought
to be, but for the trustworthy evidence of what the law really is.90 (Emphasis supplied.)
Thus, a person can be tried in the US for an international crime despite the lack of domestic
legislation. The cited ruling in U.S. v. Coolidge,91 which in turn is based on the holding in U.S.
v. Hudson,92 only applies to common law and not to the law of nations or international law.93
Indeed, the Court in U.S. v. Hudson only considered the question, "whether the Circuit Courts
of the United States can exercise a common law jurisdiction in criminal cases."94 Stated
otherwise, there is no common law crime in the US but this is considerably different from
international law.
The US doubtless recognizes international law as part of the law of the land, necessarily
including international crimes, even without any local statute.95 In fact, years later, US courts
would apply international law as a source of criminal liability despite the lack of a local statute
criminalizing it as such. So it was that in Ex Parte Quirin96 the US Supreme Court noted that
"[f]rom the very beginning of its history this Court has recognized and applied the law of war
as including that part of the law of nations which prescribes, for the conduct of war, the
status, rights and duties of enemy nations as well as of enemy individuals." 97 It went on
further to explain that Congress had not undertaken the task of codifying the specific offenses
covered in the law of war, thus:
It is no objection that Congress in providing for the trial of such offenses has not itself
undertaken to codify that branch of international law or to mark its precise boundaries, or to
enumerate or define by statute all the acts which that law condemns. An Act of Congress
punishing ‘the crime of piracy as defined by the law of nations is an appropriate exercise of its
constitutional authority, Art. I, s 8, cl. 10, ‘to define and punish’ the offense since it has
adopted by reference the sufficiently precise definition of international law. x x x Similarly by
the reference in the 15th Article of War to ‘offenders or offenses that x x x by the law of war
may be triable by such military commissions. Congress has incorporated by reference, as
within the jurisdiction of military commissions, all offenses which are defined as such by the
law of war x x x, and which may constitutionally be included within that jurisdiction.98 x x x
(Emphasis supplied.)
This rule finds an even stronger hold in the case of crimes against humanity. It has been held
that genocide, war crimes and crimes against humanity have attained the status of customary
international law. Some even go so far as to state that these crimes have attained the status
of jus cogens.99
Customary international law or international custom is a source of international law as stated
in the Statute of the ICJ.100 It is defined as the "general and consistent practice of states
recognized and followed by them from a sense of legal obligation."101 In order to establish the
customary status of a particular norm, two elements must concur: State practice, the
objective element; and opinio juris sive necessitates, the subjective element.102
State practice refers to the continuous repetition of the same or similar kind of acts or norms
by States.103 It is demonstrated upon the existence of the following elements: (1) generality;
(2) uniformity and consistency; and (3) duration.104 While, opinio juris, the psychological
element, requires that the state practice or norm "be carried out in such a way, as to be
evidence of a belief that this practice is rendered obligatory by the existence of a rule of law
requiring it."105
"The term ‘jus cogens’ means the ‘compelling law.’"106 Corollary, "a jus cogens norm holds the
highest hierarchical position among all other customary norms and principles."107 As a result,
jus cogens norms are deemed "peremptory and non-derogable."108 When applied to
international crimes, "jus cogens crimes have been deemed so fundamental to the existence
of a just international legal order that states cannot derogate from them, even by
agreement."109
These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any state may
exercise jurisdiction over an individual who commits certain heinous and widely condemned
offenses, even when no other recognized basis for jurisdiction exists."110 "The rationale
behind this principle is that the crime committed is so egregious that it is considered to be
committed against all members of the international community"111 and thus granting every
State jurisdiction over the crime.112
Therefore, even with the current lack of domestic legislation on the part of the US, it still has
both the doctrine of incorporation and universal jurisdiction to try these crimes.
Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in
the Rome Statute is not declaratory of customary international law.
The first element of customary international law, i.e., "established, widespread, and
consistent practice on the part of States,"113 does not, under the premises, appear to be
obtaining as reflected in this simple reality: As of October 12, 2010, only 114114 States have
ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier, or on
July 1, 2002. The fact that 114 States out of a total of 194115 countries in the world, or roughly
58.76%, have ratified the Rome Statute casts doubt on whether or not the perceived
principles contained in the Statute have attained the status of customary law and should be
deemed as obligatory international law. The numbers even tend to argue against the urgency
of establishing international criminal courts envisioned in the Rome Statute. Lest it be
overlooked, the Philippines, judging by the action or inaction of its top officials, does not even
feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8) years have elapsed
since the Philippine representative signed the Statute, but the treaty has not been
transmitted to the Senate for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the
concurring elements, thus:
Custom or customary international law means "a general and consistent practice of states
followed by them from a sense of legal obligation [opinio juris] x x x." This statement contains
the two basic elements of custom: the material factor, that is how the states behave, and the
psychological factor or subjective factor, that is, why they behave the way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of states. This
includes several elements: duration, consistency, and generality of the practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the consistency and
the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes necessary to
determine why states behave the way they do. Do states behave the way they do because
they consider it obligatory to behave thus or do they do it only as a matter of courtesy?
77
Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes practice
an international rule. Without it, practice is not law.116 (Emphasis added.)
Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among
the different countries in the world that the prosecution of internationally recognized crimes
of genocide, etc. should be handled by a particular international criminal court.
Absent the widespread/consistent-practice-of-states factor, the second or the psychological
element must be deemed non-existent, for an inquiry on why states behave the way they do
presupposes, in the first place, that they are actually behaving, as a matter of settled and
consistent practice, in a certain manner. This implicitly requires belief that the practice in
question is rendered obligatory by the existence of a rule of law requiring it.117 Like the first
element, the second element has likewise not been shown to be present.
Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes
enumerated therein as evidenced by it requiring State consent.118 Even further, the Rome
Statute specifically and unequivocally requires that: "This Statute is subject to ratification,
acceptance or approval by signatory States."119 These clearly negate the argument that such
has already attained customary status.
More importantly, an act of the executive branch with a foreign government must be
afforded great respect. The power to enter into executive agreements has long been
recognized to be lodged with the President. As We held in Neri v. Senate Committee on
Accountability of Public Officers and Investigations, "[t]he power to enter into an executive
agreement is in essence an executive power. This authority of the President to enter into
executive agreements without the concurrence of the Legislature has traditionally been
recognized in Philippine jurisprudence."120 The rationale behind this principle is the inviolable
doctrine of separation of powers among the legislative, executive and judicial branches of the
government. Thus, absent any clear contravention of the law, courts should exercise utmost
caution in declaring any executive agreement invalid.
In light of the above consideration, the position or view that the challenged RP-US Non-
Surrender Agreement ought to be in the form of a treaty, to be effective, has to be rejected.
WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for
lack of merit. No costs.
SO ORDERED.

78