Yamashita v.

Styer Digest
Yamashita vs. Styer
G.R. L-129 December 19, 1945
Ponente: Moran, C.J.

Facts:
1. Yamashita was the Commanding General of the Japanese army in the Philippines during World
War 2. He was charged before the American military commission for war crimes.

2. He filed a petition for habeas corpus and prohibition against Gen. Styer to reinstate his status as
prisoner of war from being accused as a war criminal. Petitioner also questioned the jurisdiction of
the military tribunal.

Issue: Whether or not the military tribunal has jurisdiction

Held:

YES.
1. The military commission was lawfully created in conformity with an act of Congress
sanctioning the creation of such tribunals.

2. The laws of war imposes upon a commander the duty to take any appropriate measures within
his powers to control the troops under his command to prevent acts which constitute violation of
the laws of war. Hence, petitioner could be legitimately charged with personal responsibility
arising from his failure to take such measure. In this regard the SC invoked Art. 1 of the Hague
Convention No. IV of 1907, as well as Art. 19 of Hague Convention No. X, Art. 26 of 1929
Geneva Convention among others.

3. Habeas corpus is untenable since the petitioner merely sought for restoration to his former
status as prisoner of war and not a discharge from confinement. This is a matter of military
measure and not within the jurisdiction of the courts.

4. The petition for prohibition against the respondent will also not life since the military
commission is not made a party respondent in the case. As such, no order may be issued requiring
it to refrain from trying the petitioner.

Eremes Kookooritchkin v. Solicitor General,G.R. No. L-1812, August 27, 1948

FACTS:In August 1941, appellee-petitioner Kookooritchkin filed with the CFI of Camarines Sur
apetition for naturalization, supported by (a) the affidavits of ex-Judge Jaime M. Reyes andDr.
Salvador Mariano, residents of Camarines Sur, (b) his declaration of intention whichwas sworn in
July 1940, and (c) notice of hearing. The petition was filed in August 1941but was not heard until
August 28 and Sept. 30, 1947 when appellee-petitioner presentedhis evidence, since the province
was invaded by the Japanese forces during WWI and thecase records had to be reconstituted after
being destroyed during the war. AppellantSolGen cross-examined appellee-petitioner’s witnesses
but did not file any opposition anddid not present any evidence to controvert the petition. The CFI
granted the petition for naturalization, finding that appellee-petitioner was a native-born Russian
who grew up as acitizen of and was part of the military of the defunct Imperial Russian
Government under the Czars. He had several stints while in military service before he joined the
WhiteRussian Army at Vladivostok and fought against the Bolsheviks until 1922 when the latter
force defeated the former. Refusing to join the Bolshevik regime, he fled by sea toShanghai, and
eventually went to Manila as part of the group of White Russians under Admiral Stark in March
1923. He finally permanently resided in Iriga, Camarines Sur except during his stint in the
guerrilla force in Caramoan from 1942 to July 1945. Thelower court also made findings of the
establishment of his family, employment, social life,his ability to speak and write English and
Bicol, his good moral character, adherence to theunderlying principles of the Philippine
Constitution, and being a stateless refugeebelonging to no State.ISSUES:W/N (1) appellee-
petitioner’s declaration of intention to become a Filipino citizen was validand sufficient basis for
his petition for naturalization, (2) appellee-petitioner sufficientlyestablished legal residence in the
Philippines and could speak and write any of theprincipal Philippine languages, and (3) appellee-
petitioner was stateless refugee.HELD:(1) Section 5 of the Revised Naturalization Law applies
and provides that “[n]o declarationshall be valid until entry for permanent residence has been
established and a certificateshowing the date, place and manner of his arrival has been issued.”
While appellee-petitioner’s declaration was reconstituted, the attached certificate referred to in
thedeclaration was not reconstituted. The SC ruled that the law does not state that thecertificate is
essential to the validity of the declaration as the only requirement is for thesaid certificate to be
issued. There is the uncontroverted fact of appellee-petitioner’speaceful and continuous residence
in the Philippines for 25 years and statement in hisdeclaration that a certificate had been attached
to the said declaration. Hence, appellee-petitioner’s declaration was valid under law in view of
other competent evidence showingthe facts sought to be established under the certificate that was
not reconstituted.(2) Appellee-petitioner has sufficiently shown legal residence in the Philippines
for acontinuous period of not less than 10 years as required by Section 2 of the
RevisedNaturalization Law. In addition, appellee-petitioner had good command of both English
andBicol. While there may be many standards out there, none was set in the law on therequired
ability to speak and write any of the principal Philippine languages. Appellee-petitioner got along
well with his comrades during his hazardous days in the guerrillamovement thus showing that he
satisfied the requirement of the law. There was alsocircumstantial evidence that appellee-petitioner
also ought to know how to write Bicol.

which uses the same alphabet used in English and so widely used in the Philippines.Given his
good command of English as shown in his testimony, appellee-petitioner couldeasily make use of
the same alphabet in the place where he had been residing for 25years.(3) Appellant SolGen
asserted that appellee-petitioner failed to show that he lost hiscitizenship under the laws of Russia
and that Russia granted to Filipinos the same right tobe naturalized citizens. However, the SC still
found that lower court did not err in findingappellee-petitioner as a stateless refugee. Appellee-
petitioner’s testimony that he is not aRussian citizen and that he has no citizenship is
uncontroverted. There is also the well-known ruthlessness of modern dictatorships giving rise to a
great number of statelessrefugees or displaced persons, without country or flag. The tyrannical
intolerance of dictatorships to opposition translates into beastly oppression, concentration camps
andbloody purges, such that it is only natural that those who flee to other countries to escapesuch a
situation, such as appellee-petitioner, lose all bonds of attachments to their former Fatherlands.

Kuroda v. Jalandoni, G.R. No. L-2662, March 26, 1949

DECISION
(En Banc)

MORAN, C.J.:

I. THE FACTS

Petitioner Shigenori Kuroda, the Commanding General of the Japanese Imperial Forces in the
Philippines during the Japanese occupation, was charged before the Philippine Military
Commission of war crimes. He questioned the constitutionality of E.O. No. 68 that created the
National War Crimes Office and prescribed rules on the trial of accused war criminals. He
contended the Philippines is not a signatory to the Hague Convention on Rules and Regulations
covering Land Warfare and therefore he is charged of crimes not based on law, national and
international.

II. THE ISSUES

Was E.O. No. 68 valid and constitutional?

III. THE RULING

[The Court DENIED the petition and upheld the validity and constitutionality of E.O. No. 68.]

YES, E.O. No. 68 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 law 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.

xxx xxx xxx

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 nations 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 contained in treaties to which our government may have been
or shall be a signatory.

Salonga vs. Executive Secretary (2009)

Doctrine: The VFA is constitutional for being an implementing agreement of the RP-US Military
Defense Treaty which has been ratified & concurred by both US & Philippine Senates. Also, the VFA
provisions regarding the detention & custody of foreign military forces are not in violation of the
Constitutional mandate about the Court’s exclusive power of promulgating rules of procedure. On the
other hand, the Romulo-Kenney agreement is void for not being in accord with the VFA.

Facts:
Daniel Smith
Member of the US Armed Forces
Charged with the crime of rape against a Filipina (Suzette Nicolas, 22-year old unmarried woman)
Trial of the accused
Pursuant to the Visiting Forces Agreement (VFA) between the Philippines and the US, the US was
granted custody of defendant Smith pending the proceedings
Trial was transferred from RTC Zambales to RTC Makati for security purposes
During trial, the US Government faithfully complied to their obligation of bringing Smith to the trial
court every time his presence was required
RTC Makati decision – Smith is guilty beyond reasonable doubt of the crime of rape
Pursuant to Article V, par. 10, of the VFA – Smith shall serve his sentence in a facility that shall be
agreed upon by the Philippine and US authorities.
Pending this agreement, Smith is ordered to be temporarily committed to the Makati city jail
Romulo-Kenney Agreement
This is the agreement pursuant to Art. V, par. 10, of the VFA
It has been agreed upon by Kristie Kenney (representative of US) and Alberto Romulo (representative
of the Philippines) that Smith shall be detained at the 1st floor, Rowe (JUSMAG) Building, US
Embassy Compound in a room of approximately 10x12 square feet
The Philippine police & jail authorities shall have access to the place of detention in order to ensure the
compliance of the US with the terms of the VFA
Dec. 29, 2006 – Smith was taken out of the Makati jail by Philippine law enforcement agents (acting
upon the orders of DILG) and brought to the US Embassy
The matter was brought to the CA, which dismissed the petition for having become moot. Hence, the
present action.

Procedure:
RTC Makati - Smith was convicted of the crime rape
CA – to question the Romulo-Kenney agreement; petition dismissed
SC – petitions for certiorari, as special civil actions and/or for review of the CA decision

Issue/s:
WON the VFA is void and unconstitutional – No
WON the VFA provision on cases of offenses committed by the members of the US Armed Forces in
the Philippines violates Art. VIII, Sec. 5(5) (“...providing for the exclusive power of this Court to adopt
rules of procedure for all courts in the Philippines”)- No
WON the Romulo-Kenney Agreement is in accord of the VFA – No
WON the VFA is affected by the US SC decision on Medellin vs. Texas - No

Held/Ratio:
The VFA is constitutional.
The petitioners contend that the issue is of primordial importance involving the sovereignty of the
Republic, as well as the mandate of the Constitution
The SC upheld the constitutionality of the VFA for the following reasons:
The SC, in Bayan vs. Zamora, has already resolved in favour of the constitutionality of the VFA.
The VFA was duly concurred in by the Philippine senate and has been recognized as a treaty by the US.
Thus, it follows the Constitutional mandate that an agreement concerning Military Bases shall only be
allowed “under a treaty duly concurred in by the Senate ... and recognized as a treaty by the other
contracting state” (Art. XVIII, Sec. 25)
Though the VFA was not submitted for advice and consent of the US Senate, it is still a binding
international agreement or treaty recognized by the US
Only policymaking agreements are submitted to the US Senate
Those that carry out or further implement policymaking agreements are submitted to Congress under
the provisions of Case-Zablocki Act. Submission of this kind of agreement to the US Senate is not
necessary.
The RP-US Military Defense Treaty is the policymaking agreement, while the VFA is its implementing
agreement. The RP-US Military Defense Treaty has been ratified & concurred by both Philippine & US
senates.
Art. VIII, Sec 5 (5) is not violated
Equal protection clause is not violated due to the presence of substantial basis for a different treatment
of a member of foreign military allowed to enter the Philippine territory
Rule on international law – a foreign military allowed to enter one’s territory is immune from local
jurisdiction, except to the extent agreed upon
The issue does not involve the adoption of rules of procedure. Rather, it is the question of
extraterritorial immunity based on what has been agreed upon by the contracting States. Nothing in the
Constitution prohibits such.
The Romulo-Kenney is not in accord with the VFA
The VFA provides for a different treatment between detention and custody
Detention – in a facility agreed by both States BUT shall be “by Philippine authorities”
Romulo-Kenney agreement is in violation of the VFA because the detention agreed upon is not “by
Philippine authorities”
The VFA is different from the subject matter of the Medellin vs. Texas case
In Medellin vs. Texas, the US SC held that “treaties entered into by the US are not automatically part of
their domestic law unless these treaties are self-executing or there is an implementing legislation to
make them enforceable”.
VFA vs Vienna Convention on Consular Relations & the Avena decision of the International Court of
Justice (subject matter of the Medellin decision)
VFA – (1) self- executing agreement because the parties intend its provisions to be enforceable and (2)
it is covered by implementing legislation which is the Case-Zablocki Act
These two characteristics are absent in the subject matter of the Medellin decision

G. R. No. 167919
February 14, 2007
Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr.

FACTS:
On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public Works and
Highways (DPWH) issued a Resolution No. PJHL-A-04-012. It was approved by DPWH Acting
Secretary Florante Soriquez. This resolution recommended the award to 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-Virac-Jct. Bago-Viga road,
with the lengt of 79.818 kilometers, in the island province of Catanduanes.
This Loan Agreement No. PH-204 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.

ISSUE:
Whether or not the Loan Agreement No. PH-204 between the JBIC and the Philippine
Government is a kind of a treaty.

HELD:
The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes dated
December 27, 1999 between the Japanese Government and the Philippine Government is an
executive agreement.
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.
…treaties, agreements, conventions, charters, protocols, declarations, memoranda of
understanding, modus vivendi and exchange of notes all are refer to international instruments
binding at international law.
Although these instruments differ from each other by title, they all have common features and
international law has applied basically the same rules to all these instruments. These rules are the
result of long practice among the States, which have accepted them as binding norms in their
mutual relations. Therefore, they are regarded as international customary law.
That case was dismissed by the SCORP last Feb. 14 2007.

What the petitioners wanted was that Foreign funded projects also undergo the procurement
process.
The dismissal of the case somehow gave justification for the delay of the implementing rules for
foreign funded projects (IRR-B) of the procurement law If we recall the decision of the Abaya vs
Ebdane was used by the DOJ when the DOTC Secretary was asking for an opinion from the
former, during the ZTE controversy.as ruled by the Supreme Court in Abaya v. Ebdane, an
exchange of notes is considered a form of an executive agreement, which becomes binding
through executive action without need of a vote by the
Senate and that (like treaties and conventions, it is an international instrument binding at
international law,
The second issue involves an examination of the coverage of Republic Act No. 9184, otherwise
known as the “Government Procurement Reform Act”. Section 4 of the said Act provides that it
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.

DBM v Kolonwel trading

FACTS :

This is a petition for review, with a prayer for temporary restraining order to nullify and set aside
the Order dated Dec. 04, 2006 of the Manila RTC.

In the middle of 2005, DepEd requested the services of the DBM-PS to undertake procurement
project which is to be jointly funded by the World Bank (WB), thru the Second Social Expenditure
Management Program (SEMP2) of the RP-IBRD Loan Agreement No. 7118-PH and the Asian
Development Bank (ABD) thru SEDIP Loan No. 1654-PHI. In October 2005, the DBM-PS called
for a bidding for the supply of the Makabayan textbooks and teachers manuals. Of the entities,
foreign and local, only eleven (11) bidders submitted, including private respondent Kolonwel.

Following the bid and the book content/body evaluation process, DBM committee issued a
resolution disqualifying, among others, Kolonwel for “failure in cover stock testing “. Kolonwel
was informed of this and subsequently filed with RTC Manila a special civil action for certiorari
with a prayer for TRO. 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 closing-date deadline. After summary hearing, the Manila RTC issued a 20-day TRO, and
later issued a decision wherein Resolution 001-2006-A of the DBM was annulled and set aside.
Hence this petition.

ISSUE :

Will the petition prosper?

RULING :

The petition is granted and the assailed decision of the Manila RTC is hereby nullified and set
aside.

Under the fundamental international principle of pacta sunt servanda, the RP, as borrower bound
itself to perform in good faith the duties and obligations under Loan No. 7118-PH. Applying this
postulate, the DBM 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.

Foreign loan agreements with international financial institutions, such as Loan No. 7118-PH,
partake of an executive or international agreement within the purview of Sec. 4 of RA9184.
Significantly, whatever was stipulated in the loan agreement, shall primarily govern the
procurement of goods necessary to implement the main project.

SUPLICO vs NEDA
G.R. No. 178830; July 14, 2008

FACTS:
Triple petitions for certiorari, prohibition and mandamus, with application for the issuance of a TRO
and/or preliminary injunction were filed and consolidated in the SC. The prayers of the said petitions,
among others, sought the annulment of the award of the contract for the national broadband network to
respondent ZTE Corporation and to enjoin any activity in connection with the said deal.

On October 2, 2007, during a meeting, Pres. GMA, acting in her official capacity informed Pres. Hu
Jintao of China that the Philippine Government had decided not to continue with the ZTE-NBN
project. Later, the Solicitor General made a manifestation and motion stating that in an Indorsement by
the Legal Division of the DOTC, it has been informed that the Philippine Government has decided not
to continue with the ZTE-NBN Project. That said, there is no more justiciable controversy for the Court
to resolve. The public respondents then prayed that the present petitions be dismissed.

The petitioners, in their respective replies, argued that the Indorsement is self-serving and not a
sufficient basis that the deal has been permanently scrapped. Assuming arguendo that the petition has
become moot, the Court may still take cognizance thereof to educate the bench and the bar. Further,
because of the transcendental importance of the issues raised, the Court should take cognizance of this
case despite its apparent mootness.

The petitioners ultimately contended the 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.

ISSUE:
WON the Court may take judicial notice of the acts of President GMA?

HELD:
The SC dismissed the petition. It held that It has no alternative but to take judicial notice of the official
act of the President.

Under the Section 1 Rule 129, 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 said 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.

Moreover, under Section 2, paragraph (m) of Rule 131 of the Rules of Court, the official duty of the
executive officials 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. The
Court finds no factual or legal basis to disregard this disputable presumption in the present instance.

Commissioner of Customs vs Eastern Sea Trading

GR No. L-14279
October 31, 1961
This is a petition for review of a judgement of the Court of Tax Appeals reversing the decision of
Commissioner of Customs.
Since none of the shipments had the certificate required by Central Bank Circulars Nos. 44 and 45,
the goods as imported were seized and subject to forfeiture for violating Sec 1363 of the Revised
Administrative Code.
Argument of Eastern Sea Trading: consignee
1. Central Bank has no authority since shipments are in no dollar imports thus do not involve
foreign exchange.
2. Central Bank Circulars Nos 44 and 45 are null and void
3. No justification for the seizure and forfeiture of goods due to Executive Order No. 328
(executive agreement and no governmental agency authorized to issue import license)
Ruling of Court of Tax Appeals:
1. Validity of Executive Order No. 328 is patent
Executive Agreement
Treaties
no need of concurrence
requires ratification
international agreements embodying adjustments of detail carrying out well-established national
policies and traditions
international agreements involving political issues or changes of national policy
arrangements more or less temporary in nature
international arrangements of permanent character
2. Unreasonable to require Eastern Sea Trading an import license since Import Control
Commission was no longer in existence.

Bayan v. Zamora, G.R. No. 138570, October 10, 2000

DECISION
(En Banc)

BUENA, J.:

I. THE FACTS

The Republic of the Philippines and the United States of America entered into an agreement called
the Visiting Forces Agreement (VFA). The agreement was treated as a treaty by the Philippine
government and was ratified by then-President Joseph Estrada with the concurrence of 2/3 of the
total membership of the Philippine Senate.

The VFA defines the treatment of U.S. troops and personnel visiting the Philippines. It provides
for the guidelines to govern such visits, and further defines the rights of the U.S. and the
Philippine governments in the matter of criminal jurisdiction, movement of vessel and aircraft,
importation and exportation of equipment, materials and supplies.

Petitioners argued, inter alia, that the VFA violates §25, Article XVIII of the 1987 Constitution,
which provides that “foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate . . . and recognized as a treaty by
the other contracting State.”

II. THE ISSUE

Was the VFA unconstitutional?

III. THE RULING

[The Court DISMISSED the consolidated petitions, held that the petitioners did not commit grave
abuse of discretion, and sustained the constitutionality of the VFA.]

NO, the VFA is not unconstitutional.

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 . . . the provision in [in §25, Article XVIII] requiring ratification by a majority
of the votes cast in a national referendum being unnecessary since Congress has not required it.

xxx xxx xxx

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. 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, 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.

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. 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.

xxx xxx xxx

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. 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.
Lim v. Executive Secretary (2002)
G.R. No. 151445 April 11, 2002
Lim v. Executive Secretary

Lessons Applicable: Locus Standi, International Law v. Muncipal Law, Certiorari, Incorporation
Clause, Treaties

Laws Applicable: Constitution

FACTS:

Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the armed
forces of the United States of America started arriving in Mindanao to take partin "Balikatan 02-1”
on January 2002. The Balikatan 02-1 exercises involves the simulation of joint military
maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into by
the Philippines and the United States in 1951. The exercise is rooted from the international anti-
terrorism campaign declared by President George W. Bush in reaction to the 3 commercial
aircrafts hijacking that smashed into twin towers of the World Trade Center in New York City and
the Pentagon building in Washington, D.C. allegedly by the al-Qaeda headed by the Osama bin
Laden that occurred on September 11, 2001. Arthur D. Lim and Paulino P. Ersando as citizens,
lawyers and taxpayers filed a petition for certiorari and prohibition attacking the constitutionality
of the joint exercise. Partylists Sanlakas and Partido Ng Manggagawa as residents of Zamboanga
and Sulu directly affected by the operations filed a petition-in-intervention.

The Solicitor General commented the prematurity of the action as it is based only on a fear of
future violation of the Terms of Reference and impropriety of availing of certiorari to ascertain a
question of fact specifically interpretation of the VFA whether it is covers "Balikatan 02-1” and no
question of constitutionality is involved. Moreover, there is lack of locus standi since it does not
involve tax spending and there is no proof of direct personal injury.

ISSUE: W/N the petition and the petition-in-intervention should prosper.

HELD: NO. 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 -
Supreme Court is not a trier of facts

Doctrine of Importance to the Public

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.
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.
Interpretation of Treaty
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. 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." All other activities, in other words, are fair game.
To aid in this, the Vienna Convention on the Law of Treaties Article 31 SECTION 3 and Article 32
contains provisos governing interpretations of international agreements. 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. According to Professor
Briggs, writer on the 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.

The meaning of the word “activities" was deliberately made that way to give both parties a certain
leeway in negotiation. Thus, the VFA gives legitimacy to the current Balikatan exercises. Both the
history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-
related activities -as opposed to combat itself -such as the one subject of the instant petition, are
indeed authorized.
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." ." 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 VFA allow foreign troops to engage
in an offensive war on Philippine territory. Under the salutary proscription stated in Article 2 of
the Charter of the United Nations.
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 especially Sec. 2, 7 and 8 of Article 2: Declaration of Principles and State
Policies in this case. 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." Even more pointedly
Sec. 25 on Transitory Provisions which shows 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.
International Law vs. Fundamental Law and Municipal Laws
Conflict arises then between the fundamental law and our obligations arising from international
agreements.
Philip Morris, Inc. v. Court of Appeals: “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.”
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." 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."
Our Constitution espouses the opposing view as stated in section 5 of Article VIII: “The Supreme
Court shall have the following powers: 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.”
Ichong v. Hernandez: “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”
Gonzales v. Hechanova: “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.

Pimentel v. Executive Secretary Digest

G.R. No. 158088 July 6, 2005

Facts:

1. The petitioners filed a petition for mandamus to compel the Office of the Executive Secretary
and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the
International Criminal Court to the Senate of the Philippinesfor its concurrence pursuant to Sec.
21, Art VII of the 1987 Constitution.

2. The Rome Statute established the Int'l Criminal Court which will have jurisdiction over the
most serious crimes as genocide, crimes against humanity, war crimes and crimes of aggression as
defined by the Statute. The Philippines through the Chargie du Affairs in UN. The provisions of
the Statute however require that it be subject to ratification, acceptance or approval of the
signatory state.

3. Petitioners contend that ratification of a treaty, under both domestic and international law, is a
function of the Senate, hence it is the duty of the Executive Department to transmit the signed
copy to the senate to allow it to exercise its discretion.
Issue: Whether or not the Exec. Secretary and the DFA have the ministerial duty to transmit to the
Senate the copy of the Rome Statute signed by a member of the Philippine mission to the U.N.
even without the signature of the President.

The Supreme Court held NO.

1. The President as the head of state is the sole organ and authorized in the external relations and
he is also the country's sole representative with foreign nations, He is the mouthpiece with respect
to the country's foreign affairs.

2. In treaty-making, the President has the sole authority to negotiate with other states and enter
into treaties but this power is limited by the Constitution with the 2/3 required vote of all the
members of the Senate for the treaty to be valid. (Sec. 21, Art VII).

3. The legislative branch part is essential to provide a check on the executive in the field of foreign
relations, to ensure the nation's pursuit of political maturity and growth.

CASE DIGEST - AKBAYAN VS. AQUINO

Facts: The signing of the Japan-Philippines Economic Partnership Agreement (JPEPA) at the
sidelines of the Asia-Europe Summit in Helsinki in September 2006 was hailed by both Japanese
Prime Minister Junichiro Koizumi and Philippine President Gloria Macapagal Arroyo as a
“milestone in the continuing cooperation and collaboration, setting a new chapter of strategic
partnership for mutual opportunity and growth (for both countries).”
JPEPA which has been referred to as a ‘mega treaty’ is a comprehensive plan for opening up of
markets in goods and services as well as removing barriers and restrictions on investments. It is a
deal that encompasses even our commitments to the WTO.
The complexity of JPEPA became all the more evident at the Senate hearing conducted by the
Committee on Trade and Commerce last November 2006. The committee, chaired by Senator Mar
Roxas, heard differing views and perspectives on JPEPA. On one hand the committee heard
Government’s rosy projections on the economic benefits of JPEPA and on the other hand the
views of environmental and trade activists who raised there very serious concerns about the
country being turned into Japan’s toxic waste basket. The discussion in the Senate showed that
JPEPA is not just an issue concerning trade and economic relations with Japan but one that
touches on broader national development concerns.

Issues:

1. Do the therein petitioners have standing to bring this action for mandamus in their capacity as
citizens of the Republic, as taxpayers, and as members of the Congress

2. Can this Honorable Court exercise primary jurisdiction of this case and take cognizance of the
instant petition.
3. Are the documents and information being requested in relation to the JPEPA exempted from the
general rules on transparency and full public disclosure such that the Philippine government is
justified in denying access thereto.

Rulings:

The Supreme Court en banc promulgated last July 16, 2008 its ruling on the case of “Akbayan
Citizens Action Party et al vs. Thomas G. Aquino et al” (G.R. No. 170516). The Highest Tribunal
dismissed the Petition for mandamus and prohibition, which sought to compel respondents
Department of Trade Industry (DTI) Undersecretary Thomas Aquino et al to furnish petitioners the
full text of the Japan-Philippines Economic Partnership Agreement (JPEPA) and the lists of the
Philippine and Japanese offers submitted during the negotiation process and all pertinent
attachments and annexes thereto.

In its Decision, the Court noted that the full text of the JPEPA has been made accessible to the
public since 11 September 2006, and thus the demand to be furnished with copy of the said
document has become moot and academic. Notwithstanding this, however, the Court lengthily
discussed the substatives issues, insofar as they impinge on petitioners' demand for access to the
Philippine and Japanese offers in the course of the negotiations.

The Court held: “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 Japenese representatives submitted their offers with the
understanding that 'historic confidentiality' 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.”

It also reasoned out that opening for public scrutiny the Philippine offers in treaty negotiations
would discourage future Philippine representatives from frankly expressing their views during
negotiations. The Highest Tribunal recognized that treaty negotiations normally involve a process
of quid pro quo, where negotiators would willingly grant concessions in an area of lesser
importance in order to obtain more favorable terms in an area of greater national interest.

In the same Decision, the Court took time to address the dissent of Chief Justice Reynato S. Puno.
It said: “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 endeavour 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.”
Rulings:

Bayan Muna vs Romulo

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

Facts:

Petitioner Bayan Muna is a duly registered party-list group established to represent the
marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of
Foreign Affairs during the period material to this case. Respondent Alberto Romulo was
impleaded in his capacity as then Executive Secretary.

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute establishing the International
Criminal Court (ICC) with “the power to exercise its jurisdiction over persons for the most serious
crimes of international concern x x x and shall be complementary to the national criminal
jurisdictions.” The serious crimes adverted to cover those considered grave under international
law, such as genocide, crimes against humanity, war crimes, and crimes of aggression.

On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome
Statute which, by its terms, is “subject to ratification, acceptance or approval” by the signatory
states. As of the filing of the instant petition, only 92 out of the 139 signatory countries appear to
have completed the ratification, approval and concurrence process. The Philippines is not among
the 92.
RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral
agreement (Agreement, hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N 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.

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, “persons” are current or former Government officials,
employees (including contractors), or military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not, absent the express consent of
the first Party,
(a) be surrendered or transferred by any means to any international tribunal for any purpose,
unless such tribunal has been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other entity or third country, or expelled to a
third country, for the purpose of surrender to or transfer to any international tribunal, unless such
tribunal has been established by the UN Security Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a
third country, the [US] will not agree to the surrender or transfer of that person by the third
country to any international tribunal, unless such tribunal has been established by the UN Security
Council, absent the express consent of the Government of the Republic of the Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third
country, the [GRP] will not agree to the surrender or transfer of that person by the third country to
any international tribunal, unless such tribunal has been established by the UN Security Council,
absent the express consent of the Government of the [US].

5. This Agreement shall remain in force until one year after the date on which one party notifies
the other of its intent to terminate the Agreement. The provisions of this Agreement shall continue
to apply with respect to any act occurring, or any allegation arising, before the effective date of
termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-
surrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the
exchange of diplomatic notes constituted a legally binding agreement under international law; and
that, under US law, the said agreement did not require the advice and consent of the US Senate.
In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and
ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared as
without force and effect.

Issue: Whether or not the RP-US NON SURRENDER AGREEMENT is void ab initio for
contracting obligations that are either immoral or otherwise at variance with universally
recognized principles of international law.

Ruling: The petition is bereft of merit.

Validity of the RP-US Non-Surrender Agreement

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. An exchange of notes falls
“into the category of inter-governmental agreements,” 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 departmental heads. The
technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or,
sometimes, to avoid the process of legislative approval.

In another perspective, the terms “exchange of notes” and “executive agreements” have been used
interchangeably, exchange of notes being considered a form of executive agreement that becomes
binding through executive action. On the other hand, executive agreements concluded by the
President “sometimes take the form of exchange of notes and at other times that of more formal
documents denominated ‘agreements’ or ‘protocols.’” As former US High Commissioner to the
Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement
Acts:

The point where ordinary correspondence between this and other governments ends and
agreements – whether denominated executive agreements or exchange of notes or otherwise –
begin, may sometimes be difficult of ready ascertainment. x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03––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.

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.
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.